Judicial Dialogue on the 1267 Smart Sanctions Regime

Abstract

Ever since the first judicial decisions on the question of implementing the resolutions passed by the Security Council in the wake of combatting terrorism were rendered, the tension between the so-called 1267 sanctions regime and fundamental human rights became all too visible and confronted the lawyer – most of all, the judge(s) – with the unpleasant dilemma to choose sides in the classical liberty or security-dichotomy: obeying the Security Council or looking for legal loopholes, regardless of how fishy they may appear, in order to guarantee the basic human rights for those affected? Case-law on this subject matter shows that judges soon realized that they were not alone in attempting to find a somewhat acceptable way out of this dilemma. Many domestic and international courts have – to varying degrees – proven to be ready and willing to refer to the decisions and the underlying rationale of their counterparts in other jurisdictions. After all, the main reason why judges resort to such a ‘judicial dialogue’ – a legal problem which goes beyond the specific technicalities of a given legal order and which has been raised during the proceedings of various courts – was obviously present and while it may be too emphatic to speak of a triumph of judicial dialogue, it has certainly played a key role in improving (although still not to a satisfying extent) the 1267 sanctions regime.

Keywords: judicial dialogue, international law in domestic courts, human rights law, fair trial, smart sanctions, targeted sanctions, Kadi, ECJ, ECtHR, Nada