This article has been written by Akshat Rawat, pursuing a Diploma in US Tax Compliance and Paralegal Work from LawSikho and edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Introduction
The nations that were a part of this organisation when it was founded are now considered United Nations member states. According to UN Charter Articles 24, 25, and 103, these countries were required to abide by the Chapter VII resolution. What exactly is this Chapter VII resolution, though? The UNSC (United Nations Security Council) has the authority to uphold peace and security under this chapter of the UN Charter. The Security Council takes action if there is a whiff of any threat or form of aggression that endangers world peace and security. The operations might be military or non-military, according to UN Charter Article 41. Once more, this authority has the power to impose sanctions on these countries or any other organisation that may also be subject to economic sanctions.
It all began with economic sanctions on Iraq, which subsequently led to the imposition of further measures known as “Targeted Sanctions.” This penalty was implemented in order to target specific people rather than the entire country. The 1267 Sanctions regime of targeted sanctions was implemented against the Taliban and al-Qaeda as a response to this problem, but new legislation also brought up several other concerns. The UNSC was unable to offer a better alternative or a remedy for the innocent people who suffered the consequences of the flawed delisting procedure. We shall provide our arguments and viewpoints in this research paper, and we’ll critique the UN using the Articles of the UN Charter as support. We will also talk about whether or not the UNSC is subject to any international laws. The discussion will turn to the UNSC’s disregard for the rule of law and finish with a new discussion of the delisting process. In between all these main topics, we will also discuss a few international cases that will help us find flaws in the delisting process. We will also entrench our discussion over Articles 1, 25, 41, 42, and 103 of the UN Charter. In this research paper, we will also express our opinion and show our stand as to which side we are in. All this will be concluded in the conclusion part.
History of targeted sanctions
Continuing the discussion from above, Resolution 661 was the name of the action taken against Iraq in the year 1990 that included economic sanctions as well as certain military measures. These sanctions had a negative impact on citizens in the country, particularly children, the impoverished, and the elderly. The government’s decision to take this measure, which affects the most disadvantaged population in the nation, was a major failure. Among the most at-risk categories, 100,000 fatalities were documented. The UN and the human rights authorities (save the children) were prompted to intervene and change the system as a result of this sort of governmental activity, which ultimately took the shape of “targeted sanctions.”
What are targeted sanctions
The idea behind targeted sanctions was simple: rather than applying them to the entire country, why not only a certain group of people, protecting innocent civilians from their effects? Targeted sanctions can be discussed in a variety of ways, but we will only touch on those that are important to us. Again, the goal of the penalty is to exert coercive pressure on the targeted entity or individuals who are the focus of the acts rather than on innocent bystanders, and though this new idea was severely attacked at first, many further adjustments were made to it throughout time.
Personal opinion
I thought it was a positive move for the UN and the Human Rights Authority to introduce this adjustment into the system. The organisation always prefers to go down a route that is more successful in terms of punishment for the wrongdoer and less harmful for the innocent, despite the fact that many individuals suffered both before and after this shift. Although obtaining 100% efficiency is unachievable, significant goals can be accomplished, as shown by the change in the topic of targeted sanctions, which was more effective in the 2000s than it was before.
Resolution 1267
Resolution 1267, which the Security Council enacted at its 4051st meeting on October 15, 1999, was a fantastic and well-admired targeted sanction against the Taliban/Al-Qaida. This occurred in August 1998, when Osama Bin Laden and his allies attacked the US embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, coupled with a conspiracy to assassinate American citizens living across their respective countries. However, they weren’t the only contentions made in the resolution. There has been a serious violation of international peace and security when claims of the existence of terror groups and training camps are made. Additionally, these resolutions often result in travel bans, financial freezes, and other types of restrictions that might serve to curb certain types of activity that could jeopardise global peace and security.
The faulty procedure
These stated targeted people are then added to a “Consolidated List” and are referred to as the listed people. Additionally, there is a delisting method called the “Focal Point Procedure” that allows any person or organisation to contact a UN delisting agency and submit their request. A board makes the decision to delist that specific person or business. The decision to delist that specific person or business is made by a board of 15 members, and it must be unanimous. Everything here seems so simple, but when allegations of a flawed delisting process were made in 2006, as the 1267 sanction regime tried to include more and more people, it came under heavy fire. As a result, many Higher National Authorities, NGOs, and affected individuals, as well as NGOs and affected individuals, claim that the particular regime is failing when it comes to protecting the rights of those targeted individuals. It was therefore evident that these kinds of problems may contribute to the legitimacy of the rule. One person who was included in these targeted sanctions in Canada in June 2009 was detained and later charged with an unspecified offence. The Canadian Federal Court determined that, overall, the individual was not even given his basic rights, such as the right to a hearing, and was not even permitted to provide any kind of evidence. Similar events occurred in Belgium when a person was mistakenly listed, and this further demonstrates a flaw in the delisting procedure for those people. In this instance, two spouses were classified under the 1267 regime for their involvement in supporting al-Qaida, and when they requested assistance in their own nation for the delisting process, they received none. Furthermore, those two people asked for assistance from the HRC (Human Rights Committee), but Belgium argued that the HRC lacks jurisdiction because United Nations anti-terrorist sanctions have already carried out these orders. These orders have already been carried out by United Nations anti-terrorist sanctions and they are now required to be carried out under Chapter VII of the Charter. However, the HRC determined that Belgium had failed to uphold its ICCPR (International Covenant on Civil and Political Rights) commitment to protecting the rights of that couple, and it further compelled Belgium to offer an appropriate remedy.
Youssef Nada has been identified as a global terrorist in the case of Nada (Youseef) vs. State Secretariat for Economic Affairs and Federal Dept. for Economic Affairs (2007), and his name is also included on the “Consolidated List,” a blacklist maintained by the UN Security Council. He also filed a petition with the SECO (State Secretariat for Economic Affairs) after the authorities were unable to obtain enough evidence to support the charges against him. However, the SECO rejected the petition and stated that Chapter VII of the UN Charter binds Switzerland, which is bound by Chapter VII of the UN Charter and cannot review the petition. This error strengthens a harmful international mechanism. There are several such circumstances of this nature when the issue of due process of law arises. The main problem is the flaw in the international procedure, which constantly casts doubt on the listed person’s authenticity as a mistake in identification.
Should UNSC abide by these international laws
The question whether or not the UN Security Council must abide by these international rules has not been addressed in the charter because the security council is a political organization that has been given authority under Chapter VII of the Charter. We shall attempt to weigh the advantages and disadvantages of this system as other scholars provide their arguments in support of or against it. While it is asserted that the UNSC will be able to intervene and resolve the issue quickly in the absence of any international obligations, this is another weak legal defence that simply puts expediency ahead of righteous justice. However, in the circumstances listed above, this system allows the people to receive justice. However, even the International Court of Justice has asserted that the UNSC must abide by international laws when taking actions that have an external impact, but Articles 103 and 25 both state that these obligations take precedence over inconsistencies between international treaties and customary international law, respectively. As a result, there are many researchers and authorities who have divergent viewpoints, which causes us to put an end to this argumentative conflict.
The Security Council is not mentioned as being exempt from these international norms in Chapter VII of the UN Charter, and we may thus argue that even though it holds the highest position, the UNSC is not permitted to have unlimited authority. The ICTY (International Criminal Tribunal for Yugoslavia) ruled that the UNSC is subject to international law, even in the Tadic case. It has also been claimed that these international organisations are subject to some constitutional restraints and that nothing in the UN Charter implies that the UNSC is “legibus solutus.” Further giving it a new scope of interpretation. Even in the Genocide Convention case, British lawyer and former ICJ Judge Hersch Lauterpacht rejected the idea that the UNSC is free to carry out any act without being bound by international law. Even in the Lockerbie case, it was not explicitly stated that the UNSC is free to carry out any act without being bound by international law. (Para 99, pg. no. 118) (Separate opinion of Judge Lauterpatch)
Further, Article 42 of the UN Charter, if read properly, can also help us understand that the UNSC has to take actions to maintain peace and security and is further obligated to follow the international law of necessity to act for that cause. Article 1 of the Charter talks about maintaining peace, security and justice, which means that the UNSC has to take measures in such a way that they are in accordance with international law.
Opinions and arguments
Since natural law will always take precedence over all other principles, changes will be made in accordance with contemporary developments. The current tendency is to broaden the application of these international customary norms in order to make them more equitable and to uphold the rule of law. Additionally, the UNSC should be subject to this legal procedure in regard to the theme of the targeted sanctions. Since the UNSC tends to be the supreme authority under Chapter VII of the Charter and Article 1 of the Charter contains a section linked to human rights, those who are named and who seek to be removed from the list are not treated fairly. It appears that the Charter was not thoroughly crafted and also leaves little room for the states to act. It would be a grave error to take away the rights that were promised in the first Article of the Charter. I remain in favour of the UN taking action on all of these concerns, but the system should be changed in order to prevent the fulfilment of the Charter’s promises and the continuation of these sorts of human rights violations.
Non-compliance with the due process
The resolution 1904, which was added to the 1267 sanction regime, creates the possibility of sight or what we may refer to as an “Ombudsperson.” The ombudsperson has been given the authority to examine and evaluate the council’s decisions and the entire delisting procedure in order to make the necessary changes. Still, the problem with this is that they were not given enough authority to make any changes and to offer relief to those who were inadvertently listed as targeted individuals under UN targeted sanctions. It may be argued that the first phase, which gives the ombudsperson very little authority, violates the legal requirements for due process. Further, the regime shows flaws in the legal criteria where the ombudsperson has not been given powers that are binding in nature and are there just for show. Since the sanction committee will be the only authority to make decisions, the role of the ombudsperson has been neglected, even though they compile all the vital information at the end. The discrepancy lies in the hands of the sanctions committee. These kinds of so-called alterations in the sanctions regime show non-compliance with the due process of the law and are non-beneficial for anyone. It would have been beneficial if the sanctions committee had heard those targeted and listed individuals other than the ombudsperson and made effective decisions. This functioning of the committee seems like they lack the motivation to work and are hungry for their powers.
Conclusion
I shall stand within the UN based on the examination of the problem indicated above and after learning all the pertinent details. Although I disagree with the changes made by the UN to several resolutions, the issue of adherence to due process of law continues to exist. However, it is true that national governments are required to abide by the body’s operation, despite the fact that it is quite ambiguous. The UNSC can provide this solution of a fair method, but one element that can be addressed is having conformity with the due process of law, which can further increase faith in the faulty procedure. On analysing the procedure of targeted sanction, we know it can’t be 100% efficient, but it certainly is a better initiative to initiate and a better way to treat those targeted individuals. The only issue with the delisting procedure is not a small fault but also not a flawed theory. These measures have so far been able to maintain peace and security for the whole world, and I hope they will be able to continue. A good alteration is required by the UNSC to change this fault in the system, which has put spots on its reputation. Along with some human rights angles, these flaws have devastating outcomes for innocent people, and furthermore, they should be remedied at the ground level.
References
- (n.d.). Retrieved from icj-cig.org: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.icj-cij.org/public/files/case-related/91/091-19930913-ORD-01-05-EN.pdf
- Drezner, D. W. (2011). Sanctions Sometimes Smart: Targeted Sanctions in Theory and Practice. International Studies Review.
- Martino, A.-M. (2014). Reform of the UN Targeted Sanctions Regime – Mission Accomplished? SIAK-Journal − Journal for Police Science and Practice.
- RESOLUTION 1267 (1999. (1999, October 15). UNSC – United Nation Security Council .
- Tzanakopoulos, A. (2009). An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation. Blog of the European Journal of International Law.
- WILLIS*, G. L. (n.d.). SECURITY COUNCIL TARGETED SANCTIONS,DUE PROCESS AND THE 1267 OMBUDSPERSON.
- Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative appeal judgment, Case No 1A 45/2007; ILDC 461 (CH 2007); BGE 133 II 450. (2007, November 14 ). Retrieved from Oxford Reports on International Law in Domestic Courts: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.eui.eu/Documents/DepartmentsCentres/AcademyofEuropeanLaw/CourseMaterialsHR/HR2009/DeWet/DeWetBackgroundReadingCase8.pdf
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
