A/67/396
removing them and for granting humanitarian exemptions. 19 On 22 June 2006, at
the conclusion of its thematic debate on the rule of law, the Security Council
expressed its commitment to carrying this recommendation forward. 20 The Council
itself has acknowledged that human rights and international law should guide
counter-terrorism initiatives. 21 Pertinently, the Council has, since 2008, included a
statement to this effect in the preamble to each of its resolutions on the 1267/1989
sanctions regime.
20. Pursuant to Article 39 of the Charter, the Council has determined that
international terrorism associated with Al-Qaida represents a threat to international
peace and security, and that an effective sanctions regime adopted under Article 41
is necessary to address that threat. Since the Council lacks enforcement mechanisms
of its own, however, it is dependent on the ability of States to implement its
resolutions. Even if the Council itself is not formally bound by international human
rights law when acting under Chapter VII (a proposition that is heavily disputed 22),
there is no doubt that Member States are bound by human rights obligations when
implementing Council decisions. Experience has shown that the absence of an
independent judicial review mechanism at the United Nations level has seriously
undermined the effectiveness and the perceived legitimacy of the regime. National
and regional courts and treaty bodies, recognizing that they have no jurisdiction to
review Council decisions per se, 23 have focused their attention instead on domestic
measures of implementation, assessing their compatibility with fundamental norms
of due process. A series of successful legal challenges has highlighted the problem
by quashing implementing legislation, or declaring it unlawful, for precisely this
reason. 24
__________________
19
20
21
22
23
24
8
See resolution 60/1, para. 109.
See PRST/2006/28.
Security Council resolution 1456 (2003).
See Frédéric Mégret and Florian Hoffman, “The United Nations as a human rights violator?
Some reflections on the United Nations changing human rights responsibilities”, Human Rights
Quarterly, vol. 25, No. 2 (May 2003), p. 317; and René Cassin, “La déclaration universelle et la
mise en oeuvre des droits de l’homme”, in Recueil des cours (1951-II) Académie de droit
international, vol. 79; Andrea Bianchi, “Security Council’s anti-terror resolutions and their
implementation by Member States”, Journal of International Criminal Justice, vol. 4, issue 5,
p. 1062 (2006); A/65/258, para. 17; and A/64/10.
See Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat
International Foundation v. Council of the European Union and Commission of the European
Communities, European Court of Justice (Grand Chamber), 3 September 2008, para. 287;
CCPR/C/94/D/1472/2006 (Sayadi and Vinck v. Belgium), para. 7.2; Al-Jedda v. United Kingdom,
Application no. 27021/08, Judgement, 7 July 2011 (Grand Chamber), para. 76; Nada v.
Switzerland, Case No. 10593/08, European Court of Human Rights, 10 September 2012,
Concurring Opinion of Judge Malinverni, para. 20; and Her Majesty’s Treasury (Respondent) v.
Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010] 2 AC 534,
para. 151.
See Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat
International Foundation v. Council of the European Union and Commission of the European
Communities, European Court of Justice (Grand Chamber), 3 September 2008;
CCPR/C/94/D/1472/2006 (“Sayadi and Vinck v. Belgium”), Separate Opinion of Sir Nigel
Rodley; Abdelrazak v. The Minister of Foreign Affairs [2009] FC 580; Her Majesty’s Treasury
(Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010]
2 AC 534; Case T-85/09 Yassin Abdullah Kadi v. European Commission, General Court (Seventh
Chamber), 30 September 2010 [2011] CMLR 24.
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