The Role of Judges Confronted with Norms from Different Origins: The Case of Counter-Terrorist Sanctions
In: K.E. Joergensen and K. Laatikainen (eds), Handbook on Europe and Multilateral Institutions, Forthcoming
21 Pages Posted: 30 Jun 2012 Last revised: 19 Dec 2012
Date Written: 2012
Sanctions against private individuals suspected to have supported terrorism (individual sanctions) are one of the most illustrative examples of the dangers of decision‐taking by multilateral institutions. They combine the two most fundamental power grasps of the executive in recent years: counter‐terrorist policies and the ‘externalization’ of decision‐making. Incrementally but potentially irreversibly counter‐terrorist measures have turned exceptional limitations of fundamental rights into normality. This has considerably increased public powers over citizens – most prominently the powers of the executive. The externalization of decisionmaking refers to the setting‐up and conferring powers to multilateral institutions, which then take over functions and tasks that traditionally lie with states. This international (and European) governance is largely exercised by the executive. Internal policies have become foreign policies and foreign policy, in principle irrespective of the subject matter, remains a prerogative of the executive. States are represented in these multilateral institutions by their government.
The consequences of counter‐terrorist sanctions for the individual are dire: they are publically labeled as terrorists and denied access to their financial assets. In its most recent ruling of 30 September 2010, the General Court left no doubt that individual sanctions are ‘particularly draconian’ and speculated whether they might have to be considered criminal measures irrespective of their administrative disguise. The harm that individual sanctions do, not only to the economic situation but also to the reputation of those listed, can only be imagined after reading the factual background of sanctions cases. However, they have done even greater harm to the reputation of the Security Council and to the ‘fight’ against terrorism, as well as decision‐making by multilateral institutions more broadly. The Security Council should not impose measures as specific as individual sanctions. There is no democratically legitimated framework in which the Security Council could root these measures and they are not subject to independent review mechanisms.
Being confronted with rules of multilateral institutions that apply to the most specific factual situations, the domestic judiciary is given the important task of defining the relationship of these norms with national law. Judges have to take a decision on the applicability of norms from different legal spheres that do not stand in a hierarchical relationship with each other. They will have to find a convincing method of deciding on the applicability of these different norms to the situation before them which combines formal and substantive considerations.
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