HIGH LEVEL REVIEW OF UN SANCTIONS
WORKING GROUP:
UN SANCTIONS, REGIONAL ORGANISATIONS, AND EMERGING CHALLENGES

Statement by
Mr Jörg POLAKIEWICZ 

Director of Legal Advice and Public International Law
Council of Europe 

Athens, 13-14 October 2014

Madam Chair,
Ladies and Gentlemen,

Let me start by thanking the organisers and in particular Maria Telalian for inviting the Council of Europe to this very important event and for giving me the opportunity to introduce topic 3: “Enhancing cooperation with regional organisations”.

I shall do so from the perspective of a regional organisation, the Council of Europe.

THE COUNCIL OF EUROPE

The Council of Europe was created in 1949 to promote and protect democracy, human rights and the rule of law in Europe. Different and separate from the European Union, the Council of Europe is a pan-European intergovernmental organisation composed of 47 member
states.

While the Council of Europe has its own sanction powers, mainly suspension and withdrawal of membership, I shall not address those but concentrate on the Council's role in assisting member states in the implementation of UN sanctions.

Based on its conventions and continent-wide monitoring mechanisms, the Council of Europe is an ideal forum for such assistance.

For us it is of crucial importance to reconcile the need to impose sanctions – and thus guarantee international peace and security – with the need to protect human rights.

We strongly believe that such a balance can be successfully struck. Respect for human rights and the rule of law is a precondition to an effective and durable elimination of terrorism.

I would like to briefly present the most relevant actors and instruments and their contribution to the implementation of UN sanctions:

o the CAHDI – an intergovernmental committee which regularly examines this issue,
o the European Court of Human Rights (ECtHR), as well as
o CODEXTER and MONEYVAL and the CoE conventions whose implementation they monitor.

THE CAHDI

The Council of Europe’s Committee of Legal Advisers on Public International Law (“CAHDI”) is an intergovernmental committee composed of the legal advisers to the ministries of foreign affairs.

Since 2004, it has periodically examined the question of “the national implementation measures of UN sanctions and respect for human rights”.

The high level of representation as well as the important number of members and observers, such as the Canada, Japan, Mexico and the USA, participating twice a year in its meetings makes the CAHDI a unique forum for information exchange and policy development (we
count around 90 participants at each meeting).

On the topic of UN sanctions, the CAHDI adressed in particular the balance to be struck between:

o on the one hand, the obligation and responsibility of states to implement international obligations arising from the UNSC resolutions and,
o on the other hand, the obligation to respect and implement the obligations arising from other international treaties, such as the ECHR.

In addition, the CAHDI monitors and considers cases submitted to national tribunals by persons or entities included in or removed from the lists established by the Sanctions Committee.

All details on state practice regarding the implementation of sanctions were first gathered in the form of replies to a questionnaire prepared in 2004. All replies (so far 37 replies from states and a reply from the European Union) are available on a public website of the CAHDI (www.coe.int/cahdi) which is regularly updated.

THE EUROPEAN COURT OF HUMAN RIGHTS

In June, my colleague Ms Requena presented to you two ECHR cases of utmost importance to this issue, namely the 2012 Nada case (which concerns a travelling ban imposed in the context of Taliban sanctions) and the 2013 Al-Dulimi case (which concerns a confiscation of Iraqi
assets and economic ressources).

As you are all experts in the field, I will not go again into the details of each case. I would only like to recall that in the case Al-Dulimi and Montana Management, the defendant government (Switzerland) referred the case to the Grand Chamber of the ECtHR and a public hearing will take place on 10 December 2014. The governments of France and United Kingdom intervened and have already presented written observations.

Awaiting the final judgment in the Al-Dulimi case, I would like to highlight some trends of this case-law which provides invaluable guidance for member states:

o First of all, the ECtHR has consistently highlighted that contracting parties remain responsible under the ECHR for acts and omissions of their authorities regardless of whether such acts or missions are a consequence of domestic law or the necessity to comply with international obligations. Within the discretion available to them, states have a duty to take all possible measures to adapt UN sanctions to the individual situation of the persons targeted with a view to reconciling international obligations that may sometimes appear contradictory.
o Secondly, addressing one of the issues before us today, namely implementation mechanisms, the ECtHR clearly stated that as long as there was no effective and independent judicial review at UN level, it was essential that the targeted individuals and entities could turn to national courts for a review of the measures adopted pursuant to a particular sanctions regime. The ECtHR underscored repeatedly the need for due process guarantees, i.e. access to independent review mechanisms at international and/or national level.
o Thirdly, the ECtHR recognised that there is a presumption that the UN Security Council does not intend to impose any obligations that would be in breach of fundamental human rights. Nor does the ECtHR require a level of protection that would be identical to that of the ECHR. Instead, it uses the notion of 'equivalent protection' which is intended to ensure that states parties are not faced with a dilemma when being obliged to implement obligations incumbent on them as a result of their membership of an international organisation which itself is not party to the ECHR.
o The applicants in the Al-Dulimi case were able to rebut this presumption because they successfully demonstrated that the sanctions regime against the former Iraqi government under resolution 1483 (2003) did not guarantee respect for international human rights standards. The chamber judgment explicitly agreed on this point with the findings of the UN's Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
o However, the ECtHR has so far not squarely addressed the important issue of the hierarchy of norms between the UN Charter and the ECHR in cases where states do not enjoy any discretion in the implementation of sanctions. It is interesting to note that the written observations of Switzerland, France and UK in the Al-Dulimi case all concur in asking the ECtHR to give precedence to the obligations under the UN Charter over the ECHR, in particular the right of access to a court under article 6, as a necessary condition to preserve international peace and security.

Whatever the outcome of Al-Dulimi will be, the legal arguments made
before the ECtHR are certainly of interest for the further development
of the UN sanctions system.

COUNCIL OF EUROPE CONVENTIONS AND MONITORING MECHANISMS

Within the Council of Europe, we have various intergovernmental committees and monitoring mechanisms related to conventions dealing directly or indirectly with the issues of terrorism. Though not making judicial findings as such, the monitoring mechanisms evaluate the implementation of the conventions in question through procedures of peer review.

The Council of Europe Convention on the Prevention of Terrorism [CETS No. 196] adopted in 2005 is the first international legally binding instrument reaffirming that “all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law.” Its articles 2 (purpose) and 3 (national prevention policies) specifically mention the need to fight terrorism while respecting human rights. This Convention sets up preventive criminal offences such as public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism as well as ancillary offences.

The Council of Europe Committee of experts on terrorism (CODEXTER) follows the implementation of the various instruments applicable to the fight against terrorism relying in particular on contributions (“self-assessment”) to be presented by the states parties.

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism [CETS No. 198] set up a Conference of the Parties responsible for following its implementation.

The Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) assesses its members' compliance with all relevant international standards in the legal, financial and law enforcement sectors through a peer review process of mutual evaluations.

The assessment is undertaken with regard to the relevant FATF standards including Special Recommendation III which sets standards related to the implementation of UN targeted financial sanctions within domestic frameworks. A new review has just been launched in September 2014 covering UNSC resolution S/RES/2170(2014) related to the ISIS.

MONEYVAL and the relevant UN bodies already cooperate to support the effective implementation of targeted financial sanctions. This cooperation should be further enhanced.

When assessing compliance with targeted financial sanctions provisions of relevant UNSC resolutions, publicly available information from MONEYVAL assessment reports should be used by the United Nations as an invaluable source of information.

Wherever feasible, MONEYVAL and the UN Counter-Terrorism Committee Executive Directorate (UNCTED) should continue cooperating by joining in each other’s assessments. This will be made possible under MONEYVAL’s rules of procedure for the 5th round of evaluations (which will be formally adopted in December 2014).

UNCTED and other relevant UN bodies/experts should have an active presence in MONEYVAL and provide feedback regarding the assessment of implementation of the UN sanctions regime when country assessment reports are being discussed. The active guidance of relevant UN bodies in MONEYVAL is essential to ensure a consistent implementation of targeted financial sanctions across different bodies.

THE COUNCIL OF EUROPE: AN “OUTWARD-LOOKING” ORGANISATION

As a last point, I wanted to draw your attention to the fact that the Council of Europe has always been open to coordination and cooperation with the UN. We stand ready to assist and/or provide good practices to states or other organisations on specific topics.

I can mention for instance that in April 2011, the Council of Europe organised together with the Security Council Counter-Terrorism Committee (CTC) the Special Meeting of the CTC with international, regional and sub regional organisations on “Prevention of Terrorism”. This meeting enhanced cooperation and information-sharing among the many actors engaged in assisting states in their efforts to build capacity against terrorism.

Furthermore, the CAHDI has had on several occasions exchanges of views on this question with special guests. In March 2011, it welcomed Ms Kimberly Prost, Ombudpserson of the UN Security Council’s 1267 Committee, and voiced support for her work.
 

FINAL REMARKS

To conclude, I will try to provide some answers to the questions which we examine today from the perspective of the Council of Europe. 

The CAHDI should continue to serve as a forum for the exchange of information and good practices among legal advisers. It may even go further and could draw conclusions from its regular debates to provide a distinctly European contribution to the UN debate.

The case-law of the ECtHR will continue to provide invaluable guidance to states parties on how to implement UNSC resolutions in compliance with their human rights obligations.

The already existing practical cooperation between MONEYVAL, CODEXTER and other CoE bodies on the one hand and the relevant UN bodies on the other should be further strengthened to support the effective implementation of targeted financial sanctions.

The various CoE monitoring mechanisms are models that may not be transposed, but can at least inspire other regions of the world to further the implementation of UNSC resolutions.

Therefore, and to finish my presentation, I believe that international organisations and particularly the Council of Europe indeed have very much to offer in this regard.
 

I thank you for your attention.