Thursday, August 6, 2009

Post-Kadi progress within the EU?

The second post that I wanted to flag today from over at the EJIL:Talk! blog is an excellent round-up and analysis of post-Kadi developments by Devika Howell: 'A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi'. The author discusses Kadi's new appeal, the Kadi case as precedent in the Othman judgment, and the proposal by the European Commission, on the 22nd of April 2009, for a new Council regulation.

Howell is more positive on the transformative potential last of these than I am at present. On one hand, she is correct in noting that

The proposed regulation provides for ‘a listing procedure ensuring that the fundamental rights of defence and in particular the right to be heard are respected’ in the case of all individuals and entities listed by the UN. The proposed regulation would replace the current system of automatic listing with a duty upon the Commission to consider the appropriateness of the listing independently. It also provides for a method by which to consider classified information of the UN and other member states. Due in large part to the failure of the Security Council to provide satisfactory due process protections, this proposed measure threatens to take decision-making about sanctions out of the hands of the Security Council and into the hands of a regional body.

On the other hand, however, as I have already blogged previously, the proposed regulation is little if anything more than a general formalisation of the - fairly paltry - concessions made to the individuals concerned in the light of the Kadi judgment: a short statement of reasons, an opportunity to make representations, and a promise to take these into consideration. As before, the really interesting question is whether or not the ECJ will view these as significant enough changes to fulfil human rights obligations; as it stands, I feel it is not a massively important adjustment.

GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

Abdelrazik v. Canadian Minister of Foreign Affairs: A Challenge to the Security Council's 1267 Regime?

The first of two quick posts today to flag some interesting and (relatively) recent posts (yeah, I've been on holiday...) over at EJIL:Talk!, both dealing in some way with the Kadi judgment and subsequent reactions to the UN' s sanctions listing mechanism. The first post that I want to discuss briefly is by Antonios Tzanakopoulos, and discusses a recent judgment from a Canadian Federal Court - Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada - which involved a claim by a Canadian/Sudanese citizen, trapped at the Canadian Embassy in Sudan, that Canada had violated his Charter right to return to Canadian soil. The interesting part for our purposes here is that Abdelrazik has been listed by the Security Council's 1267 Committee, and as such – Canada argued – he could not be allowed to return to Canada without violating the travel ban.

Tzanakopoulos' post, entitled 'An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation', gives a full account of the factual background to the case, and the legal arguments raised. In my view, however, he reads too much into it in suggesting that this is in any real sense a challenge to the Security Council's sanctions regime (although there is some dicta that makes the judge's distaste for that regime plain), or that it somehow 'goes further' than did the ECJ in Kadi. Two quick points in this regard.

Firstly, Tzanakopoulos argues that 'In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law'. Certainly, the judge did state openly, after listing the now/familiar problems with the UN system, that 'I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights (para. 51), and that 'is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion' (para. 54). These strong statements, however, and the many others like them, are all in the 'legal background' section of the judgment; I could find little to suggest that they were more than obiter dicta, forming part of the actual substantive basis of the judgment other than a passage that notes that 'in light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court' – para 53). In that sense, this judgment is nothing like as important an indictment of the procedural deficiencies of the listing mechanism as was Kadi.

Tzanakopoulos seems to acknowledge this, arguing instead that these statements indicate the 'underlying rationale' of the judgment: the 'international ilegality of the 1267 regime'. Again, however, I find this to be overreaching somewhat. While there is no doubt of the judge's disdain for the sanctions regime, it is equally clear that he was at pains to point out that compelling Canada to return Abdelrazik would not in fact violate the Security Council Resolutions in question. Far from mounting a legal challenge to the 1267 regime then, the judge in effect reaffirmed it (even if through gritted teeth), and simply dismissed a pretty flimsy Canadian attempt to use the travel ban to circumvent its domestic constitutional obligations.

Canada had argued that it was the Security Council listing, not Canada itself, that had prevented Abdelrazik's return, as Canada was bound by the Security Council Resolutions in question. In response to this, the judge simply noted that

The UN 1267 travel ban provides that States shall “prevent the entry into or transit through their territories” of listed individuals, “provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified.” (para. 121)

In response to Canada's argument that to get him back onto Canadian soil from Sudan he would have to transit through the airspace ('territory') of a number of other States, thus violating the travel ban, the judge first noted that such an interpretation of the Resolution ran contrary to that previously expressed by Canada itself; and that, in any event,

...the respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution. (para. 127).

As I said, this is more a reaffirmation of the primacy of the Security Council resolutions – procedural warts and all – than any sort of challenge to them. Moreover, it is achieved not through any interpretative gymnastics, but rather on an entirelyreasonable and persuasive reading of the text in question. An interesting case then, and Tzanakopoulos' post is worth reading in full; but Kadi it ain't.