YouSaid · the spoken record

Cockayne

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17
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2019-06-06
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2019-06-06
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1
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un-security-council

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  1. “We can only hope that, faced by that new risk to its control of the sanctions instrument, which has proven so crucial in the Security Council's maintenance of international peace and security, that the members of the Council will once again find creative ways to adapt the working methods of sanctions committees to forestall that risk. It happened once, 10 years ago, with the adoption of the Ombudsperson arrangements. Perhaps it is not too much to hope that it will happen again.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  2. “Fourthly, automated periodic reviews of sanctions regimes and lists would ensure that they do not become outdated and more vulnerable to due process challenges. Fifthly, there may be easy wins from developing publicly available guidance on the fair and clear procedures during investigations to be used by groups and panels of experts, with training in those procedures provided to the experts. Most people, like me, are simply observers of the Council's deliberations, although our lives are affected by its choices.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  3. “First, in order to lock in the growing judicial recognition that the Ombudsperson offers due process protections in the counter-terrorism context, adjustments could be made to the contractual arrangements of the Office of the Ombudsperson and the workflow for interaction between the Ombudsperson and Council members. Secondly, the provision of detailed reasons letters for refusals to delist would help protect those decisions against due process legal challenges in all sanctions regimes. The same is true for the denial of requests for humanitarian exemptions, which are increasingly coming under judicial scrutiny. Thirdly, greater use of open source material in listing decisions will protect against due process challenges, because it makes it easier to provide reasons for delisting decisions and refusals.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  4. “The simple extension of the Ombudsperson arrangements to all the other sanctions regimes may not be the only, or necessarily even the best, answer. Careful further reflection by the Security Council may in time identify other better ways to operationalize the Council's stated commitment to human rights and the rule of law through an adjustment to the working methods of different types of sanctions committees. Finally and very briefly, our study also identifies five specific ways in which the Council might strengthen due process protections by adapting the existing working methods of sanctions committees.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  5. “A reviewer of fact might need the ability to visit conflict theatres and engage directly with conflict parties, while maintaining independence and neutrality. That could suggest a different set-up than the Office of the Ombudsperson, perhaps closer to the modalities used by mediators or commissions of inquiry, rather than by judges. Thirdly, in the counter-proliferation context, where the vital national security interests of the great Powers are squarely in play, special arrangements may be needed to ensure that the reviewer is both trusted by all parties and has the requisite technical expertise. That may suggest a profile like that of a senior official of the International Atomic Energy Agency or the Organization for the Prohibition of Chemical Weapons. It might require special information-gathering, sharing and handling arrangements.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  6. “Thus, what works for counter-terrorism may not be what works best for armed conflict or for counter-proliferation. In the counter-terrorism context, it may not be feasible to share all listing information with the target, and it may or may not be feasible for the reviewer of the fact base to meet in person with the target. The Monitoring Team and Ombudsperson arrangements have shown, however, that States will trust individuals with appropriate law enforcement, intelligence, national security and judicial experience to undertake an impartial review of the fact base, realize the right to be heard and assess eligibility for listing. In the context of armed conflict, however, impartial review and the right to be heard may require different information-gathering modalities and a reviewer of fact with a different profile.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  7. “There are two central components to that test. First, the working methods must meaningfully protect the rights of the affected person to be heard. Secondly, the working methods must offer an impartial review of the fact base underpinning the sanctions listing. That is a review not of the final decision to list, but of the determination that the person was or is eligible to be listed, according to the criteria set by the sanctions committee. The final decision on listing is a political one, for the Council or its sanctions committees. How those due process protections are afforded may therefore differ, depending on the sanctions context. It will depend in particular on how the right to be heard can be organized practically and how a reviewer can access relevant information.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  8. “The Security Council has been reluctant to accept that argument. It may not align with the letter or the spirit of the United Nations Charter, which gives the Council the primary responsibility for maintaining international peace and security. The imposition and removal of targeted sanctions are not a penal decision, as the Council has stressed, but a political decision, taken to generate and harness leverage to fight terrorism, manage armed conflict and counter proliferation. In fact, the United Nations University study found that the test in courts is not whether the working methods used by the Security Council or those implementing its decisions offer judicial protection; the test is whether the working methods offer equivalent protection to that available if analogous restrictive measures were imposed at the domestic level.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  9. “History offers not only warnings but also lessons, and the lesson here is that those risks can be dealt with, precisely through the kind of creative adaptation of the working methods under discussion today. Ten years ago, litigation on due process grounds posed a fairly clear risk to the 1267 regime. Today, after the Council adapted that Committee's working methods, courts increasingly recognize them as meeting international due process standards. With that new wave of litigation targeting other sanctions regimes, it may be time for the Security Council to consider adapting its working methods for those regimes. What might that adaptation look like? Some legal experts say that the only way to ensure a completely fair process in sanctions listing and delisting is through independent judicial review.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  10. “Those countries are at the heart of international finance, trade and travel, and therefore of implementation of United Nations sanctions, but it would be wrong to conclude that the effects are strictly European. For one thing, the first two waves of litigation reached beyond Europe, to Canada and the United States to the west and Pakistan and Turkey to the east. There is no reason to think that the third wave will be any different. For another thing, States that provide the information underpinning listings will face administrative costs, fielding inquiries from those States required by their courts to check that due process was respected when the listing was adopted.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  11. “If courts find that the working methods used to impose and review sanctions listings do not meet countries' due process obligations, those countries may prove unable to implement the binding decisions of the Council under Chapter VII of the Charter of the United Nations. The Council's control of that crucial sanctions instrument will be fragmented as domestic courts and, perhaps in time, parliaments begin to assert themselves to protect their citizens' due process rights. To date, that third wave oflitigation has taken place in Europe, in courts with jurisdiction over one-quarter of the United Nations membership, including three of the five permanent members of the Council.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  12. “The third wave of litigation, starting in 2016, takes aim at those other arrangements, beyond the 1267 regime context. Litigants are harnessing the precedents developed in the 1267 counter-terrorism context to contest the working methods of other Security Council sanctions committees dealing with armed conflict and counter-proliferation. Precisely because the Ombudsperson arrangements are not in place in those regimes, the due process protections are weaker. Litigants are succeeding. That presents a fairly clear risk, not only to those sanctions regimes' legitimacy but also to their effectiveness.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  13. “The first part of the study identifies three separate waves of due process litigation testing sanctions committee working methods. The first wave of litigation, running from roughly 2002 to 2011, challenged the sanctions regime under resolution 1267 (1999) on due process grounds. Responding creatively, the Security Council adjusted the working methods of that sanctions committee, instituting the Ombudsperson system. It also put in place the focal point arrangements for other sanctions contexts. The second wave of litigation, running from around 2012 to 2016, saw courts grappling with those changes to working methods. Courts increasingly recognize the due process protections offered by the Ombudsperson, while expressing a more sceptical attitude to the protections provided by the focal point arrangements.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  14. “Our Charter mandates us to conduct "research into the pressing global problems that are the concern of the United Nations". My remarks today draw on a research study, Fairly Clear Risks Protecting UN sanctions' legitimacy and eflectiveness through fair and clear procedures, that I conducted with two colleagues, Ms. Rebecca Brubaker, who is here with me today, and Ms. Nadeshda J ayakody. The study was commissioned by the Federal Department of Foreign Affairs of Switzerland. It involved a review of over 47 due process legal challenges to Security Council imposed sanctions over 15 years. That litigation took place in Belgium, Canada, the European Court of Human Rights, the European Court of Justice, Italy, the Netherlands, Pakistan, Switzerland, Turkey, the United Kingdom, the United Nations treaty bodies and the United States of America.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  15. “And so today, the Security Council may once again wish to consider adapting its sanctions committees' working methods to strengthen due process protections and maintain control over this central tool for maintaining international peace and security. The good news is that there are numerous practical options available for the Council to explore. The extension of the Ombudsperson arrangements is one option, but, as I shall explain, not the only one and not necessarily the best one for all sanctions contexts. It is my great honour to brief the Council today. Unusually, as Director of the Centre for Policy Research at United Nations University, I am both a United Nations staff member and an academic researcher. The University is an autonomous organ of the General Assembly, afforded academic freedom by the Members of the United Nations.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  16. “Hardly a day goes by without evidence of the role that targeted sanctions play in efforts to maintain international peace and security, from the Democratic People's Republic of Korea to the Democratic Republic of the Congo. Ten years ago, due process concerns around the working methods used to take sanctions listing decisions in the counter-terrorism context led the Council to adapt those working methods. The Council created the Office ofthe Ombudsperson to strengthen due process protections in that context, and the focal point arrangements for other sanctions contexts. Today, a new wave of due process litigation is successfully challenging listing decisions relating to those other contexts, already including the Central African Republic, the Democratic Republic of the Congo, Iran, Iraq and Libya.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source

  17. “Mr. Cockayne: For most people, struggling to make ends meet, a debate on the working methods of the Security Council may seem an almost theologically abstract affair. It is far removed from the pressing demands of routine daily life. That does not mean that these working methods are unimportant. On the contrary, the effective work of the Council has contributed to a long period of relative calm in international affairs. Threats to the effectiveness and legitimacy of its working methods must be considered very carefully. Today, it is my humble role to share early warning of a fairly clear risk to that effectiveness and that legitimacy, in an area of particular significance for the Council. These are targeted sanctions.”

    2019-06-06 · UN Security Council · Security Council, S/PV.8539 (2019) · source