When Worlds Collide: Enforcing United Nations Security Council Asset Freezes in the EU Legal Order

• Author: Jorge Godinho
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00499.x
• Date: 01 January 2010
• Published date: 01 January 2010

eulj_49967..94

When Worlds Collide: Enforcing

United Nations Security Council Asset

Freezes in the EU Legal Order

Jorge Godinho*

Abstract: Asset freezes are since 2000 being applied by the United Nations (UN) Secu-

rity Council (SC) to non-state actors. This came about as a ‘mutation’ of the sanctions

program initiated by Resolutions 1267 (1999), 1333 (2000) and 1390 (2002): currently

the targets are only supected terrorists or terrorism f‌inanciers.

This ‘mutation’ has created perplexities and problems, namely for the EU, which enforces

UN SC Resolutions by a combination of f‌irst and second pillar methods. The main problem

concerns issues of fundamental rights, currently being litigated.The debate on the compat-

ibility of the current practice of UN SC asset freezing within EU law takes place amidst

a fundamental lack of clarity as to the exact purposes and operational objectives of such

freezes. It is argued that this practice amounts to an ad hoc (para-)criminal procedure

measure, enacted by political bodies rather than courts, and without judicial oversight.

The current UN SC practice of asset freezing against non-state actors breaches the

right to judicial review, as well as the presumption of innocence. If this practice it is to

continue at all, methods that make it fully compatible with the rule of law must be adopted.

Especially, their renewal ad aeternum should not be possible.

I Introduction

This article discusses UN (United Nations) SC (Security Council) asset freezing

directed against individuals rather than states and the problems and perplexities it

raises, especially for the EU.

Section II of the article traces the evolution of the sanctions program initiated by

Resolution (Resolution) 1267 (1999), highlighting its ‘mutation’, operated by UN SC

Resolution 1333 (2000) and by UN SC Resolution 1390 (2001). Upon its creation in

1999, this program was targeted at the Taliban régime of Afghanistan. Subsequently,

it was in 2000 enlarged to cover also the assets of Osama bin Laden/Al-Qaida

and related individuals. The evolution into a totally new reality was completed

in early 2002: since that time the targets are only supected terrorists or terrorism

f‌inanciers.

* Assistant Professor, Faculty of Law, University of Macau (jgodinho@umac.mo).

European Law Journal, Vol. 16, No. 1, January 2010, pp. 67–93.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The sets of problems arising from this ‘mutation’, for the EU legal order, are

basically two. The f‌irst relates to issues of EU competence to implement UN SC

sanctions against individuals, and asset freezes in particular, mentioned in section III of

the article. The second, and more important matter, is the compatibility of the current

practice of UN SC asset freezing with fundamental rights protected in the EU legal

order, discussed in section IV of the article.

General observations and conclusions then follow (in section V).

II The ‘Mutation’ of the Afghanistan Sanctions Program

A On Sanctions Programs in General

It is not the purpose of this article to examine in minute detail what is known about

UN sanctions programs.1Essentially, sanctions in general and asset freezes in par-

ticular are not new, having existed for decades.2Sanctions are legitimate mechanisms

to apply pressure on states and, being non-military measures, should be attempted

whenever possible—war should always be the last resort. In addition, a positive move

towards ‘targeted’ sanctions has taken place mainly as a result of humanitarian con-

cerns arising from the negative effect on innocent civilians of sanctions such as general

trade embargos.

Up to the 1990s, UN sanctions had been imposed only twice, against South Rhodesia

and South Africa. As a result of the end of the Cold War, the application of sanctions

became extremely frequent: Iraq, the ex-Yugoslavia (twice), Libya, Somalia, Haiti, the

UNITA movement of Angola, Rwanda, Liberia (twice), Sudan, Sierra Leone, Afghani-

stan, North Korea, Iran, all became the target of sanctions.3

Sanctions have been imposed for a large variety of reasons, namely to try to reverse

an unlawful invasion and occupation, to stop human rights abuses, to force the extra-

dition of alleged terrorists, or to avoid genocide.

Sanctions are approved as a consequence of the SC determining the existence of a

threat to international peace and security, under Article 39 of the Charter of the United

Nations. Article 41 regulates all non-forcible or non-military measures:

The Security Council may decide what measures not involving the use of armed force are to be employed

to give effect to its decisions, and it may call upon the Members of the United Nations to apply such

measures. These may include complete or partial interruption of economic relations and of rail, sea, air,

postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Six brief comments are called for.

1We f‌irst discussed economic sanctions elsewhere: J. Godinho, ‘Sanctions against States versus the enforce-

ment of criminal law against individuals: a note on UN Security Council Resolutions freezing the assets

of alleged terrorists’, (2003) VII(15) Boletim da Faculdade de Direito da Universidade de Macau 145 ff.

Sections of this article draw upon this text, with multiple amendments and updates.

2J. Godinho, ‘Sanctions against States versus the enforcement of criminal law against individuals’, ibid,at

146–150.

3See, in detail, Andreas Paulus, ‘Comment to art 29’, in Bruno Simma (ed), The Charter of the United

Nations. A commentary (Oxford University Press, 2002), marginal number 36, at 548; for a critical

overview, see David Cortright and George Lopez, The sanctions decade. Assessing UN strategies in the

1990s (Lynne Rienner, 2000).

European Law Journal Volume 16

68 © 2010 Blackwell Publishing Ltd.