Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson
Willis, Grant L., Georgetown Journal of International Law
TABLE OF CONTENTS INTRODUCTION I. BACKGROUND OF TARGETED SANCTIONS AND THE 1267 SANCTIONS REGIME A. Security Council Targeted Sanctions B. The Security Council's 1267 Sanctions Regime 1. Overview of the 1267 Sanctions Regime 2. Evolution of the 1267 Sanctions Regime's Listing and Delisting Procedures C. Due Process Based Legal Challenges to the 1267 Sanctions Regime D. 1267 Sanctions, Administrative or Punitive in Character II. IS THE UNITED NATIONS SECURITY COUNCIL UNBOUND BY RELEVANT RULES OF INTERNATIONAL LAW WHEN ADOPTING TARGETED SANCTIONS PURSUANT TO ITS CHAPTER VII POWERS? A. In General, Are International Legal Norms Applicable to the Security Council? B. Sources of International Law That Are Applicable to the Security Council 1. The U.N. Charter 2. Jus Cogens and the Security Council's Power to Derogate from Applicable Law C. Conclusions on the Security Council and the Rule of Law III. IS THE SECURITY COUNCIL OBLIGED TO ENSURE THAT RIGHTS OF DUE PROCESS ARE MADE AVAILABLE TO INDIVIDUALS AND ENTITIES DIRECTLY TARGETED WITH SANCTIONS UNDER CHAPTER VII OF THE U.N. CHARTER? A. Right of Due Process as Customary International Law and/or a General Principle of Law B. Implied Duties Doctrine C. Universal Declaration of Human Rights D. U.N. Charter E. Jus Cogens F. Other Legal Bases G. Conclusions on Possible Legal Bases for an Obligation on the Security Council to Comply with Due Process IV. SUBSTANTIVE PRINCIPLES INHERENT In THE RIGHT OF DUE PROCESS V. DOES THE CREATION OF THE 1267 OMBUDSPERSON RECTIFY THE REGIME'S NONCOMPLIANCE WITH DUE PROCESS STANDARDS? CONCLUSION
This article proceeds in five parts. The article will begin by examining the evolution of the Security Council's non-military sanctions policy, from traditional collective sanctions to the recent use of targeted sanctions. Part I will continue by describing a few of the most recent and noteworthy international and domestic judicial challenges to the Security Council's Taliban/A1-Qaeda sanctions regime. (1)
Part II analyzes the preliminary question of whether the Security Council can ever be obligated to comply with an international legal norm or whether the Council has a unique status in the international legal sphere that provides it is unbound by international law when it exercises its Chapter VII powers. The article then explains how the Security Council can be obligated to comply with certain relevant international legal norms, supported by holdings of the International Court of Justice. Part II also examines the sources of international law that are applicable to the Security Council. The United Nations Charter and jus cogens norms are the most significant legal limitations to the Security Council's Chapter VII powers, but other sources of international law, such as treaties, custom and general principles of law may bind the Council if certain conditions are satisfied.
To build on the conclusion that the Security Council may be obligated to comply with international legal norms, Part III discusses the most prevalent arguments with respect to legal bases that establish a Security Council obligation to ensure that rights of procedural due process are made available to individuals directly targeted with sanctions under Chapter VII of the U.N. Charter. Specifically, this Chapter scrutinizes such legal bases as the implied duties doctrine, the Universal Declaration on Human Rights, U.N. Charter provisions, and due process as a jus cogens norm.
Part IV brings together the discussions in the prior two parts by examining the substance of the Security Council obligation regarding procedural due process standards. This Chapter identifies the international legal principles implicit in an individual's right to due process and the legal foundations of such a right. …