The Interfaces between the National and International Rule of Law: The Case of UN Targeted Sanctions

In: International Organizations Law Review

The interfaces between national and international law have significantly evolved due to subject-matter overlap between national and international law. The restriction of governmental authority by the ‘rule of law’ is no exception in this regard. International scholarship has so far largely examined the national reception of the international rule of law. Much less recognised is the international perspective: namely, as to how the international rule of law understands, accepts, or resists the national rule of law. This paper examines the international reception of national rule of law practices within a specific regulatory context of UN targeted sanctions. Member states’ exercise of authority and the UN Security Council’s listing decisions bear resemblance to each other, which creates the conditions for the interfaces between the national and international rule of law. A series of judicial contestations formally based on the national rule of law were translated into normative, theoretical, and political forces at the international level, leading to the generation and materialisation of the principles of fairness and transparency as one of the elements of the international rule of law.

  • 26)

    Diceysupra note 15, pp. 110–113 (first requirement). See Chesterman, supra note 15, p. 342 (a ‘government of laws’ as the first core definition of the rule of law).

  • 28)

    Razsupra note 25, pp. 198–199 (first principle); Tamanaha, supra note 15, pp. 93–99.

  • 37)

    Chestermansupra note 15, p. 352.

  • 39)

    Schermers & Blokkersupra note 38, pp. 990, 992–993; White, supra note 38, pp. 40–41.

  • 50)

    Between 1994 and May 2012the Council instigated eighteen sanctions targeting specific individuals and entities. (i) Haiti: S/RES/917 (6 May 1994), paras. 3, 4. (ii) Bosnian Serbs: S/RES/942 (23 September 1994), para. 14. The list was not drawn: see Final Report of the Security Council Committee Established Pursuant to Resolution 724 (1991) Concerning Yugoslavia, S/1996/946 (15 November 1996), para. 63. (iii) Angola: S/RES/1127 (28 August 1997), para. 4(a), (b); S/RES/1173 (12 June 1998), para. 11. (iv) Sierra Leone: S/RES/1132 (8 October 1997), para. 5; S/RES/1171 (5 June 1998), para. 5. (v) Al Qaeda and Taliban: S/RES/1267 (15 October 1999), para. 4; S/RES/1333 (19 December 2000), paras. 8, 10, 11; S/RES/1390 (28 January 2002), para. 2. In June 2011, the sanctions regime was split into two: for Al Qaeda, S/RES/1989 (17 June 2011); for Taliban, S/RES/1988 (17 June 2011). (vi) Liberia; S/RES/1343 (7 March 2001), para. 7(a). (vii) Iraq: S/RES/1483 (22 May 2003), para. 23(b). (viii) Liberia, S/RES/1521 (22 December 2003), para. 4(a); S/RES/1532 (12 March 2004), para. 1. (ix) DRC: S/RES/1533 (12 March 2004), paras. 13, 15; S/RES/1596 (18 April 2005); S/RES/1807 (31 March 2008). (x) Côte d’Ivoire: S/RES/1572 (15 November 2004), paras. 9, 11. (xi) Sudan: S/RES/1591 (29 March 2005), para. 3; cf. S/RES/1054 (26 April 1996), para. 3(b). (xii) Lebanon/Syria, S/RES/1636 (31 October 2005), para. 3. (xiii) North Korea: S/RES/1718 (14 October 2006), para. 8. (xiv) Iran: S/RES/1737 (27 December 2006), paras. 10, 12. (xv) Eritrea/Somalia: S/RES/1844 (20 November 2008); S/RES/1907 (23 December 2009). (xvi) Libya: S/RES/1970 (26 February 2011). (xvii) Taliban: S/RES/1988 (17 June 2011). (xviii) Guinea-Bissau: S/RES/2048 (18 May 2012). For the summary and analysis of each sanctions regime, see Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press, Cambridge, 2007).

  • 57)

    ICCPRsupra note 54, Art. 14.

  • 78)

    Lauterpachtsupra note 10; Robert Jennings & Arthur Watts (eds.), Oppenheim’s International Law, 9th ed. (Harlow, Essex: Longman, 1992) p. 41; ILA, Statement of Principles Applicable to the Formation of General Customary International Law, principle 9, reproduced in ILA, Report of the Sixty-Ninth Conference (2000); Conforti, supra note 10, p. 79 (‘domestic court decisions constitute one of the most important categories of custom–shaping State behaviour’). See further Nollkaemper, supra note 45, pp. 267–271.

  • 100)

    Eckessupra note 69, p. 301.

  • 121)

    Ahmedsupra note 83, para. 78 (Lord Hope, with whom Lord Walker and Lady Hale agree). Lord Phillips observed that the Guidelines revised according to Resolution 1822‘fall far short’ of providing the access to a court as well as the reasons for the listing to enable him to make an effective challenge: ibid., para. 149 (Lord Phillips). Lord Mance also denounced the procedure of the 1267 committee, despite various modifications up to Resolution 1904, in that they do not provide judicial procedure for review, nor do they guarantee that individuals affected will know sufficiently about the case against them in order to be able to respond to it: ibid., para. 239 (Lord Mance). See also Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/65/258 (6 August 2010), paras. 55-58 (the Special Rapporteur, Martin Scheinin, remains concerned that the revised delisting procedures do not meet the fundamental principles of the right to fair trial); Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/67/396 (26 September 2012), paras. 27-59 (the Special Rapporteur, Ben Emmerson, recommended that the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA), and that states should be obligated to disclose information to the IDA on conditions of confidentiality. The Rapporteur also suggested that the information obtained through torture should be excluded from consideration by the IDA.)

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