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From Bilateralism to Community InterestEssays in Honour of Bruno Simma$
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Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder

Print publication date: 2011

Print ISBN-13: 9780199588817

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199588817.001.0001

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The Right of Access to Justice to Challenge the Security Council's Targeted Sanctions: After-thoughts on Kadi

The Right of Access to Justice to Challenge the Security Council's Targeted Sanctions: After-thoughts on Kadi

Chapter:
(p.908) The Right of Access to Justice to Challenge the Security Council's Targeted Sanctions: After-thoughts on Kadi
Source:
From Bilateralism to Community Interest
Author(s):

Francesco Francioni (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588817.003.0057

The adoption by the Security Council of counter-terrorism measures targeting specific individuals and entities is a fairly recent phenomenon. The original Charter scheme contemplated the adoption of sanctions ‘not involving the use of armed force’ only in relation to Sates. Article 41, even more restrictively, provided that only States that are ‘Members of the United Nations’ may be called upon ‘to apply such measures’. The practice of ‘targeted sanctions’ has changed this paradigm. Even if the addressees of the measures formally remain the States, de facto the Security Council bypasses the States and aims directly at individuals and entities suspected of involvement in, or association with, terrorist activities or organizations. This results in the inclusion of suspected names in the Security Council terror ‘lists’, with consequent freezing of the assets of targeted persons and possible limitations on their freedom of movement for an indefinite period of time. It is not surprising, therefore, that this practice has been met by academic concern about the human rights implications and, more important, by legal challenges in courts of the implementing measures adopted at national and European levels. The high water mark of this challenge is represented by the string of cases brought before the European Community (now European Union) courts and ultimately adjudicated by the European Court of Justice in the now famous Kadi decision of 3 September 2008. The judgment of the Court has stimulated passionate reactions and conflicting views about the relationship between the United Nations (UN) system and the Community legal order. This chapter focuses on the specific legal issue of whether individuals and entities which have been blacklisted by the Security Council for their alleged association with terrorist activities or organizations may be totally deprived of their right of access to justice to challenge counter-terrorism measures that may have been adopted on erroneous or faulty grounds. Before it addresses this question, it points out several paradoxes that surround the Kadi saga.

Keywords:   international law, Security Council, Kadi decision, blacklist, terrorism

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