Aftermath of an Unwise Decision: The U.N. Terrorist Sanctions Regime after Kadi II

Amsterdam Law Forum, Vol. 6, Spring 2014

Roger Williams Univ. Legal Studies Paper No. 151

13 Pages Posted: 7 Jul 2014

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: June 28, 2014

Abstract

The July 2013 European Court of Justice decision in Kadi v. European Commission is a well-intentioned but impractical solution to the problem of ensuring fairness in terrorism sanctions. The ECJ held that the EU, in implementing sanctions imposed by the UN Sanctions Committee pursuant to Security Council resolutions, had to provide the subjects of sanctions with all of the formal elements of due process, such as an opportunity to be heard in a neutral, independent body. The Court was correct that notice and recourse are essential elements of a viable sanctions regime. However, the Court failed to exhibit appropriate deference to the UN’s own decisions about the route that reform should take. The UN had established an Office of the Ombudsperson that had effectively intervened on behalf of a number of subjects of sanctions, including the petitioner in Kadi II. Requiring more formal measures may frustrate international cooperation against terrorist financing, because states fear sharing sensitive intelligence information without a uniform regime for protecting the sources and methods revealed in such information. To address this issue, the Article urges creation of a Sanctions Review Tribunal that can protect sensitive intelligence information and supplement the Ombudsperson’s efforts to ensure fairness.

Keywords: Kadi II, U.N., U.N. Terrorist Sanctions Regime, ECJ, European Court of Justice

Suggested Citation

Margulies, Peter, Aftermath of an Unwise Decision: The U.N. Terrorist Sanctions Regime after Kadi II (June 28, 2014). Amsterdam Law Forum, Vol. 6, Spring 2014; Roger Williams Univ. Legal Studies Paper No. 151. Available at SSRN: https://ssrn.com/abstract=2462933

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

10 Metacom Avenue
Bristol, RI 02809
United States

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