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Legal boundaries of the UN Security Council: Limitations in the use of targeted sanctions

Eriksson, Karin (2009)
Department of Law
Abstract
The UN Security Council has been questioned ever since the time of its foundation in 1945. Mostly the criticism has evolved around its powerful status in relation to its limited number of seats and the privileges of the permanent members, such as their right to veto, thus, the question is not new. Nonetheless, the change of political circumstances in the 1990s that suddenly enabled the Council to make use of its extensive powers for the first time since its creation, put the this question in a new dimension&semic the previously paralysed Council was now acting unified and the common concerns were no longer about how to break the deadlock but how to handle its use of these far-reaching powers. In this context, the main question in this... (More)
The UN Security Council has been questioned ever since the time of its foundation in 1945. Mostly the criticism has evolved around its powerful status in relation to its limited number of seats and the privileges of the permanent members, such as their right to veto, thus, the question is not new. Nonetheless, the change of political circumstances in the 1990s that suddenly enabled the Council to make use of its extensive powers for the first time since its creation, put the this question in a new dimension&semic the previously paralysed Council was now acting unified and the common concerns were no longer about how to break the deadlock but how to handle its use of these far-reaching powers. In this context, the main question in this essay is to examine if there are any legal measures or remedies available if the Security Council were to adopt decisions contrary to international law. Different possibilities of legal review is analysed by using the example of the Security Council resolutions ordering the use of targeted sanctions that freeze assets belonging to individuals suspected of terrorism. The most serious problem surrounding these measures is considered to be the limited rights to be heard and tried when exposed to these sanctions. The right to a fair trial or an effective remedy form an important part of any society abiding to the rule of law, and in my study it becomes apparent that the Council might very well be acting contrary to international law when deciding that these targeted economical sanctions should be implemented despite the limited guarantees of procedural safeguards. The problem is that not many courts of law consider themselves to have the jurisdiction to try such a breach, save for a few important exceptions. One of these is the recent judgement of the European Court of Justice in the Kadi and al-Barakaat cases that concern the implementation of targeted sanctions within the EU, based on the above-mentioned resolutions stemming from the Security Council. The Court found that the procedure was contrary to the fundamental rights of the EU because of the limited possibilities to a fair trial. In my conclusion I found the decisions of the Council in this particular case most likely are in breach of fundamental international norms, making the lack of control mechanisms apparent. However, there might be room for careful optimism because of the judgement of the European Court. Although limited to the member states of the EU, it is the first time a court so clearly expresses its jurisdiction to try- indirectly- the implementation of a Security Council resolution. Still, despite the positive effects this judgement might bring, the fact that the Security Council is self controlling remains, and as the analysis of the targeted sanctions showed, supported by the judgement of the European Court, this is not enough to prevent oversteps of the law. I find this to be worrying as well as unacceptable for an organisation that is supposed to uphold the core values of international law and human rights. Thus, in my conclusion I also find that reforms are necessary&semic for the sake of the innocent affected by these breaches as well as for the continued respect and credibility of the UN and the Security Council (Less)
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author
Eriksson, Karin
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
EG-rätt, Folkrätt
language
English
id
1557304
date added to LUP
2010-03-08 15:55:20
date last changed
2010-03-08 15:55:20
@misc{1557304,
  abstract     = {The UN Security Council has been questioned ever since the time of its foundation in 1945. Mostly the criticism has evolved around its powerful status in relation to its limited number of seats and the privileges of the permanent members, such as their right to veto, thus, the question is not new. Nonetheless, the change of political circumstances in the 1990s that suddenly enabled the Council to make use of its extensive powers for the first time since its creation, put the this question in a new dimension&semic the previously paralysed Council was now acting unified and the common concerns were no longer about how to break the deadlock but how to handle its use of these far-reaching powers. In this context, the main question in this essay is to examine if there are any legal measures or remedies available if the Security Council were to adopt decisions contrary to international law. Different possibilities of legal review is analysed by using the example of the Security Council resolutions ordering the use of targeted sanctions that freeze assets belonging to individuals suspected of terrorism. The most serious problem surrounding these measures is considered to be the limited rights to be heard and tried when exposed to these sanctions. The right to a fair trial or an effective remedy form an important part of any society abiding to the rule of law, and in my study it becomes apparent that the Council might very well be acting contrary to international law when deciding that these targeted economical sanctions should be implemented despite the limited guarantees of procedural safeguards. The problem is that not many courts of law consider themselves to have the jurisdiction to try such a breach, save for a few important exceptions. One of these is the recent judgement of the European Court of Justice in the Kadi and al-Barakaat cases that concern the implementation of targeted sanctions within the EU, based on the above-mentioned resolutions stemming from the Security Council. The Court found that the procedure was contrary to the fundamental rights of the EU because of the limited possibilities to a fair trial. In my conclusion I found the decisions of the Council in this particular case most likely are in breach of fundamental international norms, making the lack of control mechanisms apparent. However, there might be room for careful optimism because of the judgement of the European Court. Although limited to the member states of the EU, it is the first time a court so clearly expresses its jurisdiction to try- indirectly- the implementation of a Security Council resolution. Still, despite the positive effects this judgement might bring, the fact that the Security Council is self controlling remains, and as the analysis of the targeted sanctions showed, supported by the judgement of the European Court, this is not enough to prevent oversteps of the law. I find this to be worrying as well as unacceptable for an organisation that is supposed to uphold the core values of international law and human rights. Thus, in my conclusion I also find that reforms are necessary&semic for the sake of the innocent affected by these breaches as well as for the continued respect and credibility of the UN and the Security Council},
  author       = {Eriksson, Karin},
  keyword      = {EG-rätt,Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Legal boundaries of the UN Security Council: Limitations in the use of targeted sanctions},
  year         = {2009},
}