YouSaid · the spoken record

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14
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2014-10-23
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2014-10-23
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1
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un-security-council

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  1. “It evidently enhances the protections for individual rights, but at the same time it strengthens the credibility of the regime and contributes to improved implementation of these important sanctions measures, the ultimate aim of which is to safeguard our collective rights to life and security. In my view, cumulatively, these are protections well worth obsessing about. Once again, I thank the Council for the opportunity to provide these comments for this important open debate.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  2. “Given the extraordinary steps that the Council has taken to introduce an independent review mechanism into a targeted sanctions regime in aid of fair process, it seems imperative that it be implemented in a manner that ensures its sustainability as such. In closing, I must acknowledge that it was recently said that I am obsessed with fair process. Upon reflection, I accept that categorization, and I think it is a characteristic that the Council would expect from the Ombudsperson for the Al-Qaida sanctions regime. More importantly for the discussion today, it is a focus motivated by the fact that improved due process has a dual effect in the context of targeted sanctions.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  3. “That can only serve to enhance the credibility and strength of the regimes. This is therefore another example of how fair process, by way of more detailed reasons, would aid the effectiveness of sanction regimes. My final point relates to the implementation of the Ombudsperson regime, as established by the Security Council. I can be brief, because it is a simple point. While the Office of the Ombudsperson continues to deliver on its mandate and to operate independently, as envisaged by the Security Council, it does so based on the good will and efforts of individuals within the Office of the Ombudsperson and within the Secretariat. Structurally, however, the Office of the Ombudsperson does not exist, and the administrative and contractual arrangements supporting it in practice do not provide institutional safeguards for independence.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  4. “In fact, to the contrary, fair process means that regardless of the result, fair and reasonable steps have been taken in reaching the decision. In this particular case, a reasoned decision is the distinction between a fair process and an arbitrary one. It follows, therefore, that substantive reasons with factual information, as a part of fair process, should be provided regardless of the result, as has been mandated by the Council. It also merits noting that, given the confidential nature ofthe sanctions process in general, these reasons provide a rare opportunity to the Security Council and its Committee to demonstrate to the petitioner and well beyond what is factually the case - that decisions within the targeted sanction regimes are reasoned, fair and based on underlying information.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  5. “The necessity for reasons in both retention and delisting cases has been recognized by the Council in successive resolutions, but despite the requirements of the resolution there remains a reluctance in the Committee to provide the factual detail in the reasons, which is essential to making them meaningful. The problem is less acute for retention cases, but even in that context it can be a significant struggle to obtain disclosure of the full reasoning that is critical to defending the decisions. For delisting cases, the View has been expressed that the petitioners have already received their fair process because the remedy has been granted. With respect, however, fair and due process can never be assessed on the bsais of results or outcome.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  6. “However, there remain several challenges, which - save for one - I will leave to my written reports to the Council. The one issue is the provision of reasons with respect to the decisions taken on delisting requests. I emphasize that this problem does not in any way relate to the question of confidential information, which would never be disclosed in the reasons. While there have been many improvements to the Ombudsperson process, the reality remains that it is not a transparent one. While the petitioner receives much-needed information in the dialogue phase, the only View into the actual decision-making process is through these reasons.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  7. “However, if experience with the Al-Qaida regime is any indication, the introduction of a fair process mechanism significantly reduces the number of domestic and regional court challenges. Effectively, the issues come back to the international level. It is clear that cases have been filtered off to the Ombudsperson process and, as well, the fundamental unfairness that provided such fertile ground for legal challenges is no longer present. In sum, the Al-Qaida experience demonstrates that fair process is good for the effective implementation of sanctions. I turn to the second point I wish to address briefly, which is the operation ofthe Office ofthe Ombudsperson within the Al-Qaida regime. As I have stated repeatedly, it is a robust mechanism and it provides a fair process in the individual cases.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  8. “Those challenges are not new, of course, but what is new is that in the context of the Al-Qaida regime there is now a response to them. Reference can be made to the existence of a mechanism at the international level that can consistently address these fundamental concerns. That this is helpful to implementation is not speculation on my part. Recently I saw an example where information communicated to a State about the Ombudsperson process during one of my outreach activities was instrumental in helping the officials overcome some practical obstacles to implementation. As to the legal challenges, the experience definitely shows that there are no measures at the international level, or otherwise, that can eliminate the potential for judicial intervention, and appropriately so.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  9. “The final point on that issue is one which, in my view, rarely gets sufficient attention, but it is continually made clear to me in my practice as Ombudsperson. Fair process is supportive of, and in fact essential to, the effective implementation of sanctions measures. Repeatedly, I have heard from Government officials, legislators and judges about the challenges they face in implementing these significant measures against their citizens and residents without access to the underlying information supporting the measures and, most important, without the availability of an independent recourse. Moreover, these are not just legal challenges in the courts. There are difficulties politically and in terms of policy in developing, adopting and applying the necessary legislation and related measures for implementation.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  10. “The point is made that the justification for that distinction arises from the differing nature and differing criteria of the regimes, and the need for flexibility in order to employ sanctions in other regimes effectively against pressing threats. For the consideration and the discussion on that point, I simply stress the limited role that the Ombudsperson plays in this context. Responsibility to decide upon and interpret the criteria for listing rests exclusively with the Security Council and its Committees. The role of the Ombudsperson is a factual one: to analyze the information to determine whether the person or entity meets the criteria that have been set by the Security Council.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  11. “The inequality of that mechanism was particularly clear a few years back where an individual was delisted from the Al-Qaida sanctions regime and on the same day placed on another sanctions list. In one context he had access to a review mechanism, in the other context he did not. Of course, the other regimes benefit from the focal point mechanism, which was an important and helpful mechanism in respect to fair and clear procedures. But the law is clear that, even with improvements, the focal point mechanism, by its very nature and structure, does not have the fundamental characteristics necessary to serve as an independent review mechanism or to deliver an effective remedy.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  12. “The ramifications of this, given the requirements of Article I of the Charter of the United Nations, in terms of international law and human rights obligations, is evidently a matter for the consideration of the Security Council and of States. A second and related point on the same issue is that, on a principled basis, there is no evident rationale as to why an independent review mechanism is made available to one set of individuals subject to targeted sanctions, but not to others. That is particularly the case when the matter is considered from the perspective of those subject to the sanctions. I have been exposed to that perspective on several occasions when I have been contacted by individuals listed on other regimes, and I must advise them that the mandate of the Office of the Ombudsperson is not applicable.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  13. “The imposition of targeted sanctions, which directly affect the rights of individuals and entities, without the availability of an independent review mechanism that can deliver an effective remedy, is a practice inconsistent with fundamental human rights obligations. The Office of the Ombudsperson has been criticized for not going far enough in that respect in principle, in particular as to the absence of a binding decision-making power. However, it has not been disputed - in fact, it has been acknowledged in some quarters - that if the recommendations of the Ombudsperson are followed, in practice the mechanism provides a fair process and can and does deliver an effective remedy. However, it remains a procedure applicable only in the context of one targeted sanctions regime.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source

  14. “Ms. Prost: I thank you, Madam President, for this opportunity to address the Security Council at this open debate on the topic of enhancing due process in sanctions regimes. I hope that the reflections based on my experience as Ombudsperson will help to inform the discussion today. I will touch on three issues from the concept paper (S/2014/725, annex), beginning with the question of extending the mandate of the Ombudsperson to other sanction regimes. While international law in this area continues to evolve, from experience one point is clear: the relevant jurisprudence, as well as interaction with human rights officials, courts and bodies, conveys a consistent message.”

    2014-10-23 · UN Security Council · Security Council, S/PV.7285 (2014) · source