Prelude: What are individual sanctions? And why are they such an illustrative example of pluralism?

The changing position of sanctioned individuals

UN counterterrorist sanctions have made individuals direct objects of decisions of the UN Security Council. They immediately and fundamentally change the legal position of those listed. However, so far the decision-making process has taken place completely outside of the reach of national (or other) legislative and judiciary powers. Indeed, this direct determination of individual rights has not led to new ‘ports of entry’^{Footnote 33} of political or democratic influence of individuals in the UN context. Representatives of the national executive of five permanent and ten rotating members of the Security Council take the listing decisions. Their decisions are – as is well known – not subject to an independent control by any court in the UN context. Overall protection in the UN context remains lower than the protection provided against measures with adverse effect under domestic law.

However, the picture is not all bleak. By establishing first the so-called ‘focal point’^{Footnote 34} and later the office of the Ombudsperson,^{Footnote 35} the UN Security Council has created unprecedented administrative ‘ports of entry’ for those listed as terrorist suspects. These administrative channels allow individuals to directly make their voice heard in the UN context irrespective of the position of their states of nationality or residence. In particular the creation of the office of the Ombudsperson in UN Security Council Resolution 1904 and the extension of her powers by resolutions 1989^{Footnote 36} establish an independent guardian in the UN context, albeit with limited powers. She does not have the power to delete individuals or even require an official reply to her concerns. Yet, the choice of Ms Kimberly Prost, a former judge at the International Criminal Tribunal for the former Yugoslavia, confirmed an honest attempt to ensure impartiality. The existence of an independent institution that scrutinizes and evaluates the practice of the Sanctions Committee is in any event an important step in the direction of accountability.^{Footnote 37}

The same could be said about the judicial review of implementing measures by domestic courts. This has indeed been confirmed not only by academics^{Footnote 38} but also by the UN Monitoring Team.^{Footnote 39} Under EU law, the Treaty of Lisbon gave the Court of Justice jurisdiction to review individual sanctions adopted in CFSP decisions.^{Footnote 40} This is an exception to the general exclusion of jurisdiction for the CFSP. Very controversial and ‘restrictive’ measures^{Footnote 41} against individuals in a policy area that is otherwise largely used to establish general political positions have led to the understanding that increased access to court for individuals is needed. This could on the one hand be seen as an extension of the protection of individuals under CFSP; on the other, it is of course the direct consequence of increased effects on the rights of individuals in this particular policy area.

However, in all three legal contexts, UN, EU and national, the main problem remains lack of information. This directly limits the active role of individuals who are exposed to the consequences of claims they do not know and cannot rebut. It also limits the ability of other actors to ensure fair procedures. Ms Prost does not have the legal power to request or seize information. The quality and quantity of information available to Ms Prost depends on the willingness of the designating member state (and potentially other states) to provide information to her.^{Footnote 42} Resolution 1989 encourages states to share all relevant information with the Ombudsperson but it does not impose an obligation. Nor does the resolution draw a line similar to the General Court under the autonomous sanctions regime that information that is not shared cannot be considered justifying a listing request.^{Footnote 43}

Lack of information is also the main obstacle to judicial review in the domestic context. It is to some extent due to the distance and the many layers between the individual and the authority adopting the measure. Any attempts to comply with fundamental rights is futile, as long as domestic institutions adopt individual sanctions without being able to defend this decision in court other than by referring to their duty to show blind obedience to the UN Security Council. No domestic procedural reform can remedy this fact. The General Court expressed this clearly: ‘the applicant’s rights of defence have only been “observed” in the most formal and superficial sense’ (emphasis added);^{Footnote 44} he did not have ‘even the most minimal access to the evidence against him’.^{Footnote 45} Indeed, judicial review of the merits is impossible so long as the domestic courts have no access to the relevant information. Under these circumstances, they cannot and should not pretend to be able to judge whether any particular measure is appropriate, or whether any particular listing is justified.

The direct restrictions of individual rights by international law measures with a claim to ultimate authority (UN Security Council resolutions adopted under Chapter VII) also has implications for popular sovereignty or the right to self-determination. One could argue that constitutional pluralism and popular sovereignty^{Footnote 46} stand by definition in tension with each other. This tension goes further than the simple fact that international law can constrain the (legal) exercise of sovereign rights by states or that in a globalized world states are by definition subject to factual (largely economic) constraints irrespective of the fact that they remain sovereign entities.^{Footnote 47} Accepting that we live in a pluralist world and that different constitutional authorities compete to govern the same legal situation means by definition that the constitutional authority of the state as the sovereign over its own territory is questioned.

UN sanctions against individuals challenge the popular sovereign within its own legal order in a more direct fashion than most other international law. Sanctions have direct effects for the legal position of individuals who have not or very indirectly exercised democratic participation within the legal regimes outside the state. The direct beneficiaries of the externalization of decision-making to international organizations, such as the UN, are in terms of an increase in (political) power the executives – more particularly, the executives of those UN member states that are represented in the UN Security Council. They do no longer only determine who is a terrorist suspect on the territory and within their own legal order but construct and apply a counterterrorist regime for the entire globe.

Choosing between different judicial tools and the implications for individuals

Neil MacCormick described the multiplication of potentially applicable and conflicting rules as ‘not logically embarrassing, because strictly the answers are from the point of view of different systems. But it is practically embarrassing to the extent that the same human beings or corporations are said to have and not have a certain right.’^{Footnote 48} He questioned ‘[h]ow shall they act? To which system are they to give their fidelity in action?’^{Footnote 49} This touches upon the problem of uncertainty resulting from pluralism.^{Footnote 50} Individuals do not know what legal regime/system governs their actions and cannot know before a court settles this question for their specific situation.

The power to decide what legal provision, and in this context more importantly what legal regime, applies is in the hands of domestic courts. This is the case when courts rule on cases concerning individual sanctions. The rights of individuals under the UN sanctions procedure have been improved and some form of a direct access has been created through the introduction of the office of the Ombudsperson. Actions for annulment of the implementation measures, however, are eventually upheld or annulled by domestic courts. The most well-known case concerning EU sanctions giving effect to UN lists of terrorist suspects is the case of Kadi.^{Footnote 51} In short, the facts of the case are as follows. Mr Kadi was first placed on a UN terrorist list. In 2002, the EU gave effect to that listing. In 2005, the Court of First Instance (CFI) rejected his action for annulment.^{Footnote 52} On appeal in 2008, the Court of Justice set aside the CFI’s ruling and annulled the sanctions measures as far as they concerned Mr Kadi.^{Footnote 53} In response, the EU institutions introduced very basic procedural rights, such as notification and the (limited) possibility to be heard, into the EU sanctions regime and relisted Mr Kadi.^{Footnote 54} In 2010, the General Court ruled in favour of the second action for annulment.^{Footnote 55} It followed the Court of Justice’s line in the appeal in Kadi II and annulled the measures. This time the Commission, the Council and the UK appealed.^{Footnote 56} At the time of writing,^{Footnote 57} the case is still pending.

Kadi required the EU Courts to take a choice between the competing constitutional claims of the UN and the EU, while keeping in mind potential national voices in the background. On the one hand, they could choose to give effect to the Member States’ obligations under the UN Charter at the price of lowering the standard of fundamental rights protection within the European legal order and potentially undermining the EU’s status as an autonomous legal order, separate from international and national law. This position disregards the EU’s own claim to constitutional authority. It also, at least potentially, invites national constitutional courts to make a parallel argument and question the supremacy of EU law,^{Footnote 58} and herewith its claim to constitutional authority. On the other hand, the EU Courts could choose to protect Mr Kadi’s rights but potentially place Member States in breach of their UN obligations under the UN Charter. This position could be seen to reduce the effectiveness of the international security system^{Footnote 59} and challenge the UN Security Council’s claim to constitutional authority. It also, at least potentially, invites national legislators to adopt parallel national measures in breach of EU law. As is well known, the CFI opted in Kadi I for the first approach. It recognized the constitutional authority of the Security Council and ruled as a consequence that it did not have jurisdiction to review the European implementation measures in the light of the EU standard of fundamental rights protection because of the underlying Chapter VII resolution. On appeal, the Court of Justice took the opposite position. It sided with the constitutional authority of EU law in the EU legal order and protected the rights of the applicant.^{Footnote 60}

To give a full picture of individual sanctions as an example of constitutional pluralism, it is necessary to turn to the national and regional context. National courts, both in third countries and in EU Member States, as well as the European Court of Human Rights (ECtHR) have not been spared the difficult decision between the different legal regimes governing individual sanctions. In third countries, parallel challenges should not surprise since UN sanctions are given effect in national legislation. To give but one example: after the CFI’s decision in Kadi I but before the appeal, the Swiss Supreme Court was asked in to rule on the validity of the Swiss measures of implementation (Nada).^{Footnote 61} It sharply criticized the UN sanctions regime but took a line similar to the CFI and found Switzerland obliged to give effect to the UN sanctions regime even if the implementing measures clash with the ECHR (to add another legal regime to the equation). More surprising are the challenges in national courts of the EU Member States, since the UN Al-Qaida list is given effect in directly applicable EU regulations. In principle, any further national implementation is a breach of EU law.^{Footnote 62} However, several Member States, including the UK, chose to adopt parallel measures of implementation.^{Footnote 63} On 10 January 2010 (Ahmed), the UK Supreme Court gave a ruling on the legality of national measures giving effect to the UN Al-Qaida sanctions list.^{Footnote 64} The Court did not question whether individual sanctions could be adopted within the UK legal order but how and more importantly by whom they could be adopted. It framed the issue in terms of separation of powers and parliamentary supremacy and came to the conclusion that the legislator (not the executive) is free to adopt individual sanctions as long as the legislation makes an explicit reference to the necessary derogation from fundamental rights.^{Footnote 65} The UK Supreme Court briefly considered the Court of Justice’s ruling in Kadi I and declared it not relevant because the Union was not bound by obligations while the UK is. The directly applicable EU regulation governing the exact same legal situation was simply ignored by the UK Supreme Court. This might be a peculiar choice in light of the fact that the EU’s constitutional claim is significantly stronger in national legal orders than that of the UN Security Council. To name but the most obvious indications: The supremacy of EU law is well-established practice. National Constitutions are amended to comply with EU law.^{Footnote 66} The UK Supreme Court’s ‘peculiar’ choice only confirms the power of courts to accept or reject external claims of constitutional authority (EU and UN) in the particular case. The UK Supreme Court ruled that national Parliament could authorize national Government to give effect to UN Security Council resolutions. Consequently, it did not endorse the Security Council’s independent constitutional authority either.

An additional regional jurisdictional lever was added when the Swiss case Nada was brought to the ECtHR. The Strasbourg Court ruled on 12 September 2012 that, even though Switzerland was limited in what it could do in compliance with the UN Charter, it had acted in violation of the Convention by not doing all that it could when implementing the sanctions to adapt, as far as possible, to the specific circumstances of the applicant.^{Footnote 67} Within its jurisdictional mandate under the Convention, the ECtHR focused on the specificities of the case and in particular the question of whether the judgment of the Swiss Supreme Court violated the Convention, rather than an evaluation of the UN sanctions procedure.^{Footnote 68} By contrast, the Court considered the efforts that the Swiss Government made within the UN system, to assist the applicant to seek exemptions and delisting.

In essence, both the Court of Justice and the UK Supreme Court approached the conflicting claims of authority similarly. They both rejected the external claim and argued within the self-referential logic of their own constitutional framework. It is a logical position for domestic courts, whose powers are created by and rooted in their respective legal orders to respect the domestic constitutional claim.^{Footnote 69} The outcome of the two rulings was, however, different. In the case of the UK Supreme Court, the internal logic of the domestic constitutional framework allowed for Parliament to set aside fundamental rights and give effect to the international obligation. The ECtHR by contrast recognized the UN Security Council’s claim of authority. It considered what Switzerland could have done within the UN legal framework to comply with the Convention. Any external claim of authority by institutions that do not have internal implementing powers will depend in practice on the value given to it by the applying institutions, which are, at least in the event of conflict, usually the domestic courts.

Beyond hierarchy: Shared principles and values

In a pluralist view, courts ‘cannot always assert a monopoly on determining how certain fundamental interests ought to be reconciled’.^{Footnote 70} No court can set the rules for all others. Krisch for instance argues that court decisions (such as the UK courts decisions on Ahmed) that avoid ‘statements of principle’ on a ‘quest for reconciliation’ constitute a ‘judicial voice in a new, pluralist context’.^{Footnote 71} Indeed, pluralism does not appear to aspire to develop guidelines of how to develop interface norms.^{Footnote 72} Not setting rules and avoiding statements of principle, however, could become ‘the norm’, which if followed by domestic courts could establish a ‘pluralist practice’.

In this pluralist practice, there is ideally a competition for the better (suited) norm applicable in any given factual situation without establishing more broadly applicable rules of principle. However, as we have seen above, domestic courts have a natural tendency to argue within their own constitutional framework and give voice to the constitutional claim of their legal order. This is a practice that naturally places limits on the legitimacy and transferability of their arguments. At the same time, the implications of the decisions of domestic courts can go far beyond the individual case and beyond the domestic legal order. It is difficult to gauge the influence of the Court of Justice’s Kadi I ruling on the UN sanctions procedure. Several authors appear to relate the UN reforms and the Court of Justice’s position.^{Footnote 73} Also, the Monitoring Team made a specific reference stating that it ‘believes that the decision of the Court of Justice … [in Kadi I] has changed the terms of this debate’.^{Footnote 74}

In the context of individual sanctions, the choice between relying on institutional hierarchy and substantive grounds was particularly relevant. Without reliance on a formal argument of hierarchy, the domestic implementation of the UN Al-Qaida sanctions breaches national constitutional law,^{Footnote 75} EU law, the ECHR^{Footnote 76} and the International Covenant on Civil and Political Rights.^{Footnote 77} An abundance of literature^{Footnote 78} and several judgments of national courts^{Footnote 79} as well as the EU Courts^{Footnote 80} have confirmed that the UN sanctions regime cannot be implemented without breaching well-established fundamental rights standard. However, besides blatantly breaching the core of the right to procedural and judicial protection, as well as the right to property,^{Footnote 81} the adoption of individual sanctions has brought a more fundamental problem to the fore. The CFI’s ruling of 2005 takes a standpoint that could have – if it had not been set aside by the Court of Justice – led to a structural gap in the EU’s fundamental rights protection. In Luxembourg, such a structural gap has been closed by the Court of Justice – at least for the time being.^{Footnote 82} However, an appeal against the decision of the General Court in Kadi II is pending in Luxembourg; the ECtHR’s decision in Nada recognized the UN Security Council’s claim of authority, without ruling specifically on the apparent conflict with the ECHR. In the logic of the specific case it was strictly speaking enough to rule that Switzerland did not do all it could under the UN system. However, this makes it far from certain whether the Strasbourg Court would step up to declare a violation where the implementing state did all it could but was forced to choose between its obligations under the Convention and its obligations under the UN Charter. Similarly, the ruling of the UK Supreme Court in Ahmed demonstrates that giving voice to the domestic constitutional claim does not exclude a blatant breach of established human rights standards either, where this is possible within the internal constitutional set-up.

While there might be no (clear) evidence that domestic courts develop a hierarchical perspective on international law by placing human rights at its apex,^{Footnote 83} this is at least the outcome of what the Court of Justice did in Kadi I. Indeed, even within the hierarchy of EU law the Court of Justice elevated the ‘very foundations of the [EU] legal order’ as they were expressed in ex-Article 6(1) TEU to a superior position above ordinary primary law.^{Footnote 84} These ‘foundations’ include essentially ‘liberty’ and ‘democracy’ and the ‘protection of fundamental rights’. These are EU values. At the same time, the EU has not been created in isolation. Nor has the Court of Justice developed these foundations in a vacuum. Whether the Court could have referred to more external sources more explicitly is a different issue. Shared principles already exist. Human rights conventions adopted under the auspices of the UN prohibit counterterrorist sanctions against individuals as they were adopted at the time the Kadi appeal was decided and as they are currently adopted by the UN. The Court of Justice was walking on a fine line when giving its ruling in the Kadi I appeal. It was criticized for taking a myopic approach by not referring to international human rights standards.^{Footnote 85} At the same time, the CJEU, or the ECtHR for that matter, would have pretended to be a world court if it had analysed the legal situation within a global legal framework. The CJEU chose the way of compromise. It referred to the ECHR, as it does regularly, and it based its ruling on EU standards. This is a pluralistic way of strengthening the importance of fundamental rights.