UN SECURITY COUNCIL DEBATES SANCTIONS, DUE PROCESS & THE OMBUDSPERSON

The United Nations Security Council  held an open debate on the working methods of the Security Council on 23 October 2014.  The issues for debate are set out here in a background letter from the Permanent Representative of Argentina to the UN, addressed to Secretary General.

The Ombudsperson to the UN’s 1267 Sanctions Committee, Kimberly Prost, was invited to brief the Security Council on the counter-terrorist sanctions regime under her mandate and due process, and to make recommendations for enhancing the effectiveness of the regime.  See previous post on the Ombudsperson.  A link to Kimberly Prost’s presentation to the Security Council is here.  She made (in summary) the following points:

1. The Ombudsperson’s remit applies only to one UN sanctions regime, namely the Al-Qaida Sanctions Committee list. There is no rationale for this mechanism being available for one set of individuals facing targeted sanctions but not others. The imposition of targeted sanctions which directly affect the rights of individuals and entities, without the availability of an independent review mechanism which can deliver an effective remedy, is inconsistent with fundamental human rights obligations.  The Focal Point at the UN does not have the characteristics of an independent review mechanism which could serve as an effective remedy.  The introduction of a fair process mechanism at international level will also reduce the number of domestic and regional court challenges, because it will weaken arguments about fundamental unfairness in the system.

2. As regards the Al Qaida terrorist sanctions regime, the Ombudsperson recommended that reasons should be given for decisions as to whether to de-list or not, since a reasoned decision is what distinguishes a fair process from an arbitrary one.  She noted the current reluctance to provide factual detail in the reasons, which would enhance the credibility and strength of regime.

3. There should be institutional safeguards in order to secure the Office of the Ombudsperson and its independence, which presently exist only because of the good will of those within that office and the secretariat.

The informal group of “Like-Minded States” on targeted sanctions (Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Lichtenstein, the Netherlands, Sweden, Switzerland and Norway) also made a statement, saying that considerable due process concerns persist, and re-inviting the Security Council and Member States to consider the proposals it had submitted on 17 April 2014.

Those proposals were (in summary): (a) to make the office of Ombudsperson permanent; (b) enhanced information sharing between Member States and the Ombudsperson, and between the Sanctions Committee, Member States, national and regional courts, and other authorities; (c) to enhance transparency and publish reasons for decisions, including for continued designations (allowing for legitimate privacy, security and confidentiality interests to be protected); (d) for the Sanctions Committee to continue to conduct triennial reviews in a timely and thorough manner and regularly inform Member States of the results; (e) for listings to be automatically deleted if not reviewed and confirmed within 3 years; (f) to give the Ombudsperson authority to decide whether to maintain or discontinue a listing, and ask Member States and international bodies to encourage individuals or entities that seek de-listing to go to the Ombudsperson first before going to court; (g) to extend the Ombudsperson’s remit to other regimes; (h) to ensure that a listed entity or individual is adequately informed about the basis for a listing, including a narrative summary of reasons; and (i) to ensure that no decision to maintain or discontinue a listing is pending for longer than 6 months.

This entry was posted in United Nations by Maya Lester QC. Bookmark the permalink.

About Maya Lester QC

Maya Lester QC has a wide ranging practice in public law, European law, competition law, international law, human rights & civil liberties. She has a particular expertise in sanctions. As the most recent (2016) Chambers & Partners directory put it, she "owns the world of sanctions". She spent 2011-12 in New York at Columbia Law School lecturing and writing on sanctions. She represents and advises hundreds of companies and individuals before the European and English courts and has acted in most of the leading cases, including Kadi, Tay Za, Central Bank of Iran, NITC and IRISL.

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