A/67/396 appropriate, 66 but imposes no duty to do so, even where the information may be decisive for a delisting request. This represents a significant limitation on the Ombudsperson’s ability to examine the full facts, a challenge she describes as “pressing and significant”. 67 39. The Ombudsperson has so far negotiated bilateral agreements for the disclosure of confidential information with 11 States. 68 These agreements typically include restrictions on the use that may be made of the confidential information, prohibiting its onward disclosure to the petitioner, or to other members of the Committee, and prohibiting reference to it in the comprehensive report, without the express consent of the providing State. Resolution 1989 (2011) imposes an obligation on the Ombudsperson to respect any confidentiality condition that a State may impose.66 Questions that the Ombudsperson may need to ask the petitioner in connection with such material must first be vetted by the providing State. 40. If a State elects not to share confidential information with the Ombudsperson, she obviously cannot take it into account in her report. While this provides some incentive to a designating State to disclose inculpatory material, 69 it does little to counterbalance the procedural unfairness to the petitioner. This is because there is no means of preventing the undisclosed information from being held against the petitioner in the decision-making process. The State concerned may elect to disclose information bilaterally to other Committee members, or to the Committee as a whole, without disclosing it to the Ombudsperson; 70 it may disclose information to the Ombudsperson, but refuse to give permission for its onward disclosure to the petitioner; or it may refer the delisting request to the Security Council, where any permanent Member can exercise a veto. Any one of these eventualities would be fundamentally inconsistent with international standards of due process. 41. If the recommendation of the Special Rapporteur contained in paragraph 59 (a) below is accepted, then the approach the Ombudsperson has so far adopted would provide the basis for a solution. Domestic administrative and judicial tribunals have developed rules of procedure for scrutinizing intelligence information that a State is unwilling to disclose to the subject. 71 This experience provides a useful guide to the procedural modifications necessary to enable such material to be judicially reviewed in an inter-State context. 72 If, despite the availability of suitably adapted procedures, a State remains unwilling to disclose relevant information, or to authorize its onward disclosure to the individual, then it is excluded from the decision-making process, thereby eliminating the risk of unfairness. 42. The European Court of Human Rights has held that where judicial review of a counter-terrorism measure is based solely or to a decisive degree on intelligence __________________ 66 67 68 69 70 71 72 16 See Security Council resolution 1989 (2011), para. 25. S/2012/590, para. 12. See S/2012/590, paras. 12-13. See S/2012/600, p. 4. The Monitoring Team has pointed out to the Special Rapporteur that if States will not share critical information with [the Ombudsperson], they will have to do so with members of the Committee or accept that in that case sanctions are not the appropriate tool. See Kent Roach, “The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations”, in Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11, Nicola McGarrity, Andrew Lynch and George Williams, eds. (London, Routledge, 2010). See General Court of the European Union, C-27/09 P, French Republic v. People’s Mojahedin Organization of Iran, Judgement of 21 December 2011, Opinion of Advocate General Sharpston. 12-52254