United Nations Financial Sanctions by Sachiko Yoshimura

Author:Sachiko Yoshimura [Yoshimura, Sachiko]
Language: eng
Format: epub
ISBN: 9780429522468
Barnesnoble:
Goodreads: 54415690
Publisher: Routledge
Published: 2020-11-29T00:00:00+00:00

Two problems on the two-tier system

While accumulated court judgments clarify the content of the Common Position and regulations defining autonomous sanctions, two questions remain unanswered: (i) whether the first national competent authority to determine the involvement of a private individual in acts of terrorism in the two-tier system is limited to authorities under EU Member States that comply with human rights standards such as the European Convention on Human Rights and the Charter of Fundamental Rights of the EU; (ii) whether it is only the initial sanction that requires such a domestic decision in advance in terms of the protection of human rights. In other words, it is not clear if sources of information available to the Council when reviewing the list of targets of sanctions and maintaining the already-listed persons in the list is limited only to decisions by domestic authorities. These two questions affect the effectiveness of sanctions because they are related to the practical question of whether the scope of the information on which the Council can rely in preparing the list of persons subject to sanctions is limited.

The lack of explicit provisions on the above questions in the Common Position or the regulations regarding autonomous sanctions is a problem. As regards whether or not institutions of third countries are included in a “competent authority” that determines the involvement of private individuals in acts of terrorism, practical documents9 issued by the Council stipulate only the treatment of proposals of sanctions on certain private individuals made by the authorities of third countries. The judicial branch of the EU, thus, needs to make a conclusive decision to resolve the problem through its interpretation in a decision.

There is no explicit provision in Common Position 2001/931 or regulations with regard to question (ii), that is, whether the Council needs to rely solely on domestic decisions when reviewing the list of targets of sanctions. No provision specifies whether, like the initial inclusion of targets in a list, the domestic decision should be the only resource on which the Council should rely to determine the involvement of targets in an act of terrorism when the list is reviewed to decide whether to maintain the already-listed individuals in the lists of new decisions and regulations. This leads to the more specific question of whether the Council can, upon reviewing the list, base its decisions on information that is not included in domestic decisions—information that is not subject to review by the relevant domestic authorities. If the resource on which the Council bases its decisions is limited to the information included in national decisions, persons will have the opportunity to dispute domestic decisions at their national courts and enhance the protection of their procedural rights, while the information used by the Council to impose sanctions will be limited. This will make it difficult to recognize the involvement of persons in acts of terrorism, which may in turn impede the continuation of sanctions.

Because question (ii) largely depends on the interpretation of Article 1(6) of Common Position

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