Thesis Terrorist Sanctions

Do European Union terrorist measures, which were adopted to implement UN terrorist sanctions, follow directly from the UN resolutions or are these based on autonomous powers?

Tilburg University Master International and European Public Law Name: Marisa Goracci ANR: 211609 Adres: Otterstraat 18, 5622 AL Eindhoven Tel. 040-2445591 Thesis supervisor: mr. Drs. A.A.H. van Hoek Date: 8 July 2008 Word count: 14.489

Table of Contents

Introduction................1

Which are the current operating UN and EU terrorist lists? How do these operating lists function, how did the European Union implement the UN resolutions and why is it important to now if the Union used autonomous powers to implement the resolution?.......... 4
1.

1.1 Introduction...............................................................................................4 1.2 How are persons and entities listed according to resolution 1267 and how is that organised by the implementation of this resolution by the European Union?.................................................................................................................5 1.2.1 The list of resolution 1267.......................................................................5 1.2.2 Sanctions Committee; listing procedure.5 1.2.3 Sanctions Committee; de-listing procedure6 1.2.4 The EU implemented list of resolution 1267.......................................9 1.3 How does the listing/de-listing procedure of resolution 1373 and the autonomous European List work?....................................................................10 1.3.1 Resolution 1373.....................................................................................10 1.3.2 The Autonomous European Terrorist List............................................10 1.4 How did the European Union implement the UN resolutions and the resolutions and European Union measures binding for member states?..........13 1.5 Does the EU make use of its autonomous powers by implementing the UN sanctions and why is this an important question?.....................................16 2. Which sanctions are prescribed in the Terrorist resolutions and are these sanctions prescribed differently by the European Union?......................................................................18 2.1 Introduction.............................................................................................18 2.2 Comparison between the Freezing sanction prescribed in the Taliban...18 resolutions and the Freezing sanction, implementing the freezing sanction of resolution 1267, as prescribed by the Union: 2.3 Comparison between the arms embargo and travel ban sanction prescribed by the United Nations and the arms embargo and travel ban sanction prescribed by the Union.....................................................................27 2.3.1 The arms embargo sanction..............................................................27

 2.3.2 Travel bans...........................................................................................29

2.3.3 The travel ban and arms embargo sanction in the European Union 32

2.4 Comparison between the freezing sanction of resolution 1373 and the implemented freezing sanction of 1373 as prescribed by the Union................34 2.4.1 Freezing sanctions of the autonomous list and resolution 1373...........34 2.4.2 Internal terrorist no freezing!................................................................36 2.5 Which persons and entities are sanctioned by the UN resolutions and the European measures?.........................................................................................38 2.5.1 Are the same persons and entities sanctioned by resolution 1267 and the implemented EU list?.................................................................................38 2.5.2 Are the same persons and entities sanctioned by resolution 1373 and the autonomous list? ............................................................................40 Conclusion...43 Literature list.45

Introduction
Terrorism is not a new thing, in fact the violence used in the French revolution in 1790 was referred to as terrorism.1 For quite some time, even after the rise of international organisations, the fight against terrorism was not discussed on an international level and was more seen as a policy for countries. This gradually changed when terrorism became a larger problem. Terrorists were able to find new ways to create fear in societies and the rising of new technologies meant that also terrorist had access to these technologies.2 Because of new technologies terrorists were able to attack larger groups with more severe injuries by using chemical weapons, automatic weapons and explosives.3 This made terrorists more dangerous than ever before. The United Nations was able to create international standards for the fight against terrorism. The United Nations was founded in 1945, just after the Second World War.4 The United Nations has as one of it main objectives to maintain international peace and security. The United Nations has several organs. One of these organs is the Security Council and the Council has the obligation to maintain international peace and security. For several decades the Security Council adopted resolutions to maintain international peace and security. These resolutions were addressed to governments. The period of the Cold War ended with the breakdown of the Soviet Union, it became apparent that a new era had begun: the War on Terror.5 In the 1990s the Security Council adopted resolutions containing targeted sanctions.6 These sanctions were aimed at leaders of terrorist organisations and members of

Http://www.britannica.com/bps/topic/588371/terrorism#tab=active~checked%2Citems~checked%3E %2Fbps%2Ftopic%2F588371%2Fterrorism&title=terrorism%20%20Britannica%20Online%20Encycl opedia. (Online encyclopaedia Consulted 19 January 2008). 2 Http://www.terrorism-research.com/history/. Online terrorism research International Terrorism and Security Research(Go to http://www.terrorism-research.com/ and click on History)(Consulted 21 February 2008). 3 Http://www.un.org/aboutun/basicfacts/unorg.htm. (Home page of the UN, click on about the UN and click on basic facts) (Consulted on 18 January 2008). 4 Http://www.britannica.com/eb/article-217764/terrorism. (Consulted 2 march 2008). 5 Paper by Gary Clyde Hufbauer, and Barbara Oegg, Peterson Institute, Targeted Sanctions: a policy alternative? 2000. Available at http://www.iie.com/publications/papers/paper.cfm?ResearchID=371. Consulted 27 April 2008. 6 Http://www.watsoninstitute.org/project_detail.cfm?id=4. The Watson Institute for International Studies: Information Sheet about research project concerning targeted sanctions. (Consulted 27 April 2008).

terrorist organisations.7 This meant that no longer innocent civilians were affected by the sanctions since the targeted sanctions were not directed at countries. At the end of the 20th century the Taliban was in control of the Afghan government and supported the terrorist organisation Al-Qaeda. The government of Afghanistan was, at the time the resolution was adopted, in the hands of the Taliban. Resolution 1267 was intentioned to pressure the terrorist regime in Afghanistan. The Taliban had been creating a shelter for terrorists in the Afghanistan territory, allowing them to prepare terrorist attacks in other countries.8 Therefore resolution 1267 was directed against the government of Afghanistan to stop the harbouring and training of terrorist in Afghanistan. As a reaction to this situation the Security Council adopted several targeted sanctions to sanction terrorism in Afghanistan. In resolution 1267 sanctions were prescribed for the Taliban, Al-Qaeda, Usama Bin Laden and their associates. Resolution 1267 sanctions persons, groups and entities that are designated on the 1267 international terrorist list. The list is included in resolution 1267. Through the use of this list the sanctions are directly aimed at the persons and entities that form a threat to international peace and security.9 The names on the list have to be subjected to the sanctions mentioned in the resolutions. Several resolutions amended resolution 1267. For instance the second resolution the UN adopted was resolution 1333 and following resolution 1390 was adopted. In this thesis I will usually explicitly refer to resolution 1267 when discussing the lists and sanctions directed to the Taliban, Al-Qaeda, Bin Laden and associates. Yet I will discuss the sanction system of 1267 as it stands today, thus including all amendments. The European Union implemented resolution 1267 into the Aquis of the European Union. When terrorist attacks on the 11th of September 2001 occurred, it was clear that more measures had to be taken in order to maintain international peace and security. On the 28th of September 2001 the Security Council adopted resolution 1373. This resolution includes sanctions for all terrorist activities. Resolution 1373 does not include a list with names neither does it contain the obligation for states to list persons, groups or entities that should be sanctioned. The European Union also

Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p. 607. Ooik and Wessel 2006, SEW- Tijdschrift voor Europees en Economisch Recht (2006) vol. 6 p. 231242. 9 H. Philipp Aust 2008, Anuario Mexicano Derecho Internacional vol. VIII (2008) pp. 51-77. Available at http://www.bibliojuridica.org/estrev/pdf/derint/cont/8/art/art2.pdf. (Consulted 24 April 2008).
8

implemented resolution 1373. Besides the implementation of resolution 1373, the European Union adopted on the basis of this resolution an autonomous terrorist list. In this thesis I would like to give an account about what is actually being sanctioned in the terrorist resolutions of the United Nations and the European measures, who exactly can face the sanctions and what is the content of the sanctions. In this thesis I want to find answer to the question whether the sanctions executed by the European Union are solely an execution of the UN resolutions or is the European Union going further that what is prescribed by the United Nations resolutions? To answer this question I will first give a description about the functioning of the terrorists lists and the implementation of the resolutions by the European Union. Then I will explain why it is important to know whether the European Union is acting on autonomous powers. To find out whether the Union is prescribing more in its own measures, I will have to compare the sanctions and the list of the UN to the sanctions and the lists of the European Union. In the second chapter I will first compare the execution of the sanctions of resolution 1267 to the sanctions prescribed by the European Union. Then I will compare the sanctions of resolution 1373 to the implemented European Union sanctions. Following I want to find out whether the European Union designates different persons, entities and groups. To do this, I will compare the scope of the list of resolution 1267 to the European implemented 1267 list. Next to this I will describe who has to be sanctioned according to resolution 1373 and compare this to persons, groups and entities that are designated on the European autonomous list. Last, the findings will be summed up in a conclusion.

1. Which are the current operating UN and EU terrorist lists? How do these operating lists function, how did the European Union implement the UN resolutions and why is it important to now

if the Union used autonomous powers to implement the resolution?

1.1 Introduction UN resolutions are interpreted as binding upon all UN member states, to an extent that necessary measures have to be taken by the members to effectively implement resolutions into their own national system.10 In the past there have been discussions about the obligations in the resolution, however in general it is accepted that the sanctions in the resolution are binding.11 Members of the UN implemented the resolutions into their national systems and adopted own terrorist list. Accordingly, national terrorist lists arose. Nowadays several terrorist lists exist on different levels; internationally and regionally. The European Union is not a member of the United Nations, since it is an organisation and not a state. Notwithstanding, the European Union implemented the international resolutions into European Union law. In Ayadi it was acknowledged once again that Resolutions of the Security Council are binding for the Community and the European Union.12 Next to this, it was also confirmed that the UN resolutions stand above European Union and Community law and thus in case of conflict the conflicting European law has to be set aside.13 Since the member states of the European Union are bound to UN law acts and these take precedence over European Union acts, the CFI in Yusuf case decided that Community obligations for member states had to be in accordance with the UN resolutions.14 This prevents member states from infringing European Union obligations, which are in violation of United Nations
Http://www2.un.int/Countries/Bahrain/1090306423.pdf. Note verbal dated 15 March 2001 from the Permanent Mission of Bahrain to the United Nations addressed to the Committee (1267) 20 march 2001 (Consulted on 5 November 2007). 11 National Implementation of United Nations Sanctions (a comparative study of The Graduate Institute of International Studies Geneva) 2004, p. 19. 12 CFI 12 July 2006, T-253/02, Ayadi v. Council, [2006] ECR II-2139, paragraph 116. 13 T-235/02 Ayadi see supra note 12, paragraph 116.
10

obligations.15 Therefore the European Union had to, according to the CFI, make the resolutions part of its Aquis. In the next paragraphs I will give a description concerning the functioning of the currently operational United Nations and European Union terrorist lists. Next to this I will explain how the European Union has implemented the UN measures. Last, I will explain why it is important to know whether the European Union acts upon autonomous powers.

1.2 How are persons and entities listed according to resolution 1267 and does the implemented EU list differ from the international list?

1.2.1 The list of resolution 1267 The Taliban, Al-Qaeda, Usama Bin Laden and groups and entities connected to these terrorists and terrorist organisations have to be designated on the 1267 list. Paragraph 2 of resolution 1267 the Security Council demands the extradition of Usama bin Laden. The resolution is aimed to disrupt financial and material support of Al-Qaeda and the Taliban.16 Next to this, the resolution hampers the ability of associates of the Taliban or Al-Qaeda to travel.17

1.2.2 Sanctions Committee; listing procedure When adopted, the listing mechanism of resolution 1267 was difficult to comprehend. The listing mechanism of resolution 1267 did not include procedures for designated persons or entities to question their listing. 18 The Security Council adopted several other resolutions and guidelines were developed by the Sanctions Committee to create a more delineated process of listing and de-listing.19 To place a name on the list, a member state or several member states have to submit names and information to the
14

CFI 21 September 2005, case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation [2005] ECR, II-3533, paragraph 231, 234, 242 and 243. 15 Http://www.mb.utwente.nl/ces/research/other_publications_including_i/oratiewessel.pdf. Rede door A. Wessel, The Invasion by International Organizations De toenemende samenhang tussen de mondiale, Europese en nationale rechtsorde, 12 januari 2006. (Consulted 26 October 2007). See also Yusuf supra note 14 paragraphs 265-269. 16 UN Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999). 17 UN Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999), paragraph 4 (a). 18 Jochen Frowein 2006, The UN Anti-Terrorism Administration and the Rule of Law, Common Values in International Law 2006 available at http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted on 31 October 2007). 19 United Nations Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006).

Sanctions Committee. 20 The resolution at present prescribes that member states, when proposing names for listing, have to provide statements that give more information on the basis of justification of a particular proposal and this statement has to be as detailed as possible.21 Statements should include detailed information on a person or entity that shows the association or activities alleged, supporting evidence such as documents, the nature of supporting evidence and information concerning possible connections with already listed individuals or entities.22 States also have to provide identifying information, as detailed as possible, about the person or entity they propose for a listing.23 The information from member states has to contain sufficient evidence/arguments for a listing since it would be inaccurate to execute a listing on the base of vague allegations. The decision to place a name on the terrorist list is taken by the Sanctions Committee, with the approval of the members of the Committee, on the basis of the information available.24 Several factors that settle the matter for a listing decision are kept secret.25 When a name is placed on the list, member states are informed immediately and the Member State of residence or citizenship of the listed person or entity has the task to inform this person or entity about the imposed measures, of the guidelines of the Committee that contains the listing and de-listing procedure and of the provisions of resolution 1452. The list is updated regularly and to keep the list accurate members of the Sanctions Committee can ask for a review of a listing if there is a justification for this review.26

1.2.3 Sanctions Committee; de-listing procedure When Resolution 1267 was adopted, it did not contain a de-listing procedure. Before this de-listing procedure was adopted, a listing decision taken by the Sanctions Committee was presumed to be accurate.27 It took until 7 November 2002 until a deHttp://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2294423/k.3920/January_2007BRTarg eted_Sanctions_ListingDeListing_and_Due_Process.htm. (Consulted on 31 October 2007). 21 Guidelines of the Committee for the Conduct of its Work, adopted on 7 November 2002 and last amended on 12 February 2007, paragraph 6 (a) (d). (The Guidelines can be found on www.un.org/terrorism and click on Security Council, then click on 1267 Committee and click on guidelines Committee. (Consulted 1 November 2007). United Nations Security Council Resolution 1617, 29 July 2005, S/RES/1617 (2005), paragraph 4. 22 See Guidelines of the Committee, supra note 21, paragraph 6 (d). 23 See Guidelines of the Committee, supra note 21, paragraph 6 (e). 24 Http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2294423/k.3920/January_2007BRTarg eted_Sanctions_ListingDeListing_and_Due_Process.htm. (Consulted on 31 October 2007). 25 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p. 619. 26 See Guidelines of the Committee, supra note 21, paragraph 7. 27 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p. 623.
20

listing procedure was adopted by the Sanctions Committee.28 Since 2002, persons and entities on the list of 1267 have the opportunity to submit a request to review the decision of placing his name on the list. The individual or entity can submit this delisting request to the government of the state where the person or entity resides or has citizenship. As of 2006, the listed individual or entity can also choose to submit a request for a de-listing without the interference of the member state. The person or entity itself can ask for a de-listing by submitting the request to a focal point.29 In all situations the entity or person (petitioner) has to provide a justification for the delisting request and information which supports the de-listing. This is a difficult requirement since the petitioner, in most circumstances, does not have access to all the accusatory information. When the petitioner request the de-listing through the Member State of residence or citizenship, the member state in question has to review the submitted information. If a certain request is founded, the government in question can decide to go into a in-depth study of the requested case, gather additional information and eventually has to contact the state which originally proposed the listing to the Sanctions Committee of this person or entity.30 When a member state makes use of this possibility, it executes diplomatic protection for its nationals or residents. This diplomatic protection is seen as a right belonging to states, to stand up for their nationals, and it is thus not a right that the petitioner can enforce in the state of his residence or citizenship.31 Thus states do not have an obligation to use the right to diplomatic protection. However the Court of First Instance (CFI) stated in Ayadi32 that Europeans or listed persons residing in EU member states have the right to claim diplomatic protection of a competent member state. The Court came to this conclusion because of the fact that listed individuals and entities had complained in earlier cases that their right to effective legal protection was violated if they did not have access to the judicial procedures of the Union and if their state refused to execute diplomatic protection.33 The Court also mentioned that a request for a de-listing is granted through the guidelines of the Sanctions Committee and that this leads to an obligation
28 29

Http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted on 31 October 2007). See supra note 18. United Nations Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006). 30 Http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted on 31 October 2007). See supra note 18. 31 Http://untreaty.un.org/ilc/summaries/9_8.htm. Site of the International Law Commission Information sheet about diplomatic protection 30 November 2005 (extracts form, The International Law Commission, 6th edition volume 1. (Consulted 7 March 2008). 32 T-235/02 Ayadi see supra note 12, paragraphs 146-149.

for the European Union member states to grant their nationals and residents this right as mentioned in the guidelines.34 This means that the diplomatic protection, executed by member states, to file a request for a de-listing is seen as way to grant effective legal protection on Union level when listed persons or entities are not able to gain this effective legal protection through the legal system of the Union.35 If a request for delisting is filed through a state, which is not a member state of the European Union, it is up to the government of the state where the request for de-listing was filed to make the decision to go the Sanctions Committee with a recommendation for a de-listing. If the state does execute diplomatic protection for their nationals or residents the government can try to persuade the government of the state that initially placed the request for listing to go to the Sanctions Committee or it can decide that more time is necessary and more information has to be gathered before going to the Sanctions Committee. However, nowadays every individual has the opportunity to go to the focal point if their nation state or state of residence does not execute diplomatic protection. Still, diplomatic protection is important. The focal point cannot represent the petitioner the same way as states do. The de-listing procedure of the Committee is a political procedure so without the diplomatic protection the de-listing request made through the focal point is usually not as successful as a de-listing request from states.36 For instance governments executing diplomatic protection for nationals and residents have the political power to put requests for de-listings on the agenda of the Sanctions Committee sooner than the focal point. When the petitioner files a request through a focal point, the focal point has to examine whether the request contains additional and new information, if this is not the case then the request will be returned to the petitioner.37 If the request is admissible consultations are started between involved member states.38 After these consultations several things can happen. When one of the member states requests a de-listing, the matter will be forwarded to the Sanctions Committee.39 The Sanctions Committee

Nettesheim 2007, WHI paper, p. 6. Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p. 630. 35 Nettesheim 2007, WHI paper, p. 6. 36 Herik 2007, Leiden Journal of International Law, Vol. 20 nr. 4 (2007), p. 805. Available at: http://journals.cambridge.org/download.php?file=%2FLJL%2FLJL20_04%2FS0922156507004451a.p df&code=31cae2e0f32bb76d6798fcc5c0bfb3b2. 37 UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraphs 1-3. 38 UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraph 5. 39 UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraph 6 a.
34

33

decides upon a decision for de-listing. The decision has to be taken by consensus and if no consensus can be reached the matter can be submitted to the Security Council which has the ultimate say in the matter.40 However, the Sanctions Committee consists of 15 members that also have a seat in the Security Council.41 Notwithstanding, there are differences between the Sanctions Committee and the Security Council. In the Sanctions Committee the permanent members are more dominant. To reach a decision in the Sanctions Committee there has to be consensus but in the Security Council there only have to be nine affirmative votes.42 The Council is more likely to come to a decision. In the Council the 10 non-permanent members do not have a veto. In the Sanctions Committee all 15 members have a right to veto.43 Another solution is the no objection voting in the Committee. The no objection voting has to be requested by the Member State that represents the individual or entity.44 When non of the other member states in the Committee objects the de-listing request, the individual or entity is de-listed.45 However, before a request for the no objection voting can be placed the government that initially requested the listing of the person or entity has to agree with a de-listing. In practise the no objection voting means that the Chairman will circulate the proposed decision and if none of the member states of the Sanctions Committee objects this proposed decision within 5 working days it is adopted.46

1.2.4 The EU implemented list of resolution 1267 The European Union implemented list is identical to the UN terrorist list, since it is an implementation of the UN list into European Law, there are no big differences. The scope of the list is confined to Bin Laden, persons and entities associated with Bin

Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p. 624 and see See Guidelines of the Committee, supra note 21, paragraph 4 (a). 41 Http://www.un.org/sc/committees/1267/information.shtml Site of the Security Council Committee about general info on the work of the Committee. (go to http://www.un.org/sc/committees/1267/index.shtml and click on general information in the site map) (Consulted 6 march 2008). 42 Project of the International Peace Community, the UN Security Council, Lynne Rienner Publishers, 2004, p. 183. 43 Project of the International Peace Community, the UN Security Council, Lynne Rienner Publishers, 2004, p. 184. 44 Http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted on 31 October 2007). P. 5 see supra note 18 45 Http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted on 31 October 2007). P. 5 see supra note 18 46 See Guidelines of the Committee, supra note 21, paragraph 4 (b).

40

laden, the Taliban and Al-Qaeda.47 The implemented European list also states that the Sanctions Committee has the competence to decide upon a listing or a de-listing.48 The European Commission has the task to keep the list in accordance with the list of resolution 1267 and the Commission has the task to review the list regularly.49 The criteria to be listed or to be de-listed are the same as for the UN list. The listing and de-listing has to be in accordance with the list of resolution 1267.

1.3 How does the listing/de-listing procedure of resolution 1373 and the autonomous European List work?

1.3.1 Resolution 1373 Resolution 1373 is seen separate from previous resolutions, which were adopted to sanction the Taliban, Al-Qaeda, Bin Laden and their associates. Resolution 1373 sanctions all terrorist activities. The resolution obligates member states to prevent the financing of terrorist acts, criminalise wilful provision and collection funds, freeze financial or economical assets and prohibit that nationals make funds, financial assists or economical resources available for terrorist acts.50 The resolution is aimed to prevent, prosecute and punish all acts of terrorism including attempting and helping to commit terrorist acts.51 Resolution 1373 does not include a list and it does not obligate member states to compile a list.

1.3.2 The Autonomous European Terrorist List The European Union, independently, has the power to decide upon a listing or delisting.52 The list concerns persons and entities involved in terrorist activities. 53 The list consists of names of people that are also listed in the UN list and of other, new,
Http://www.statewatch.org/terrorlists/listsbground.html. (Consulted 4 November 2007) Http://www.statewatch.org/terrorlists/listsbground.html. (Consulted 4 November 2007) 49 Http://www.statewatch.org/terrorlists/listsbground.html. (Consulted 4 November 2007) 50 UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001) article 1. 51 Site of International Monetary Fund 2003 http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf) Click on free full text, chapter 2. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003, p. 16 (Consulted on 24 November 2007). 52 Site of International Monetary Fund 2003 http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf) Click on free full text, chapter 2. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003, p. 4 (Consulted on 24 November 2007).
48 47

10

names. These new names are listed on the basis of information from the European Union Member States and/or from third countries. The listing and de-listing procedures of the European autonomous list have been adjusted due to decisions of the European Court of Justice and the adoption of a council decision containing procedures for listing and de-listing.54 In the Organisation des Modjahedines du Peuple de l'Iran (OMPI) case the Court of First Instance decided that when assets have been froze affected persons or entities have to receive a statement with reasons. The CFI in OMPI clarified and explained that the Council has a large discretion, on the base of articles 60, 301 and 308 TEC, to execute financial and economical sanctions. The statement of reasons prevents misuse of this large discretion and contributes to transparency of the freezing decision since judging errors of the Council are to be found more easily.55 The statement of reasons has to entail arguments that explicate the assets freeze. Besides this the person or entity also has to receive information about the option to ask the Council of the European Union for a reconsidering of the listing decision and what the requirements are for such a request; namely the person or entity has to include documentation with his request that supports a reconsidering.56 The Court also decided that more information has to be given to designated persons or entities to inform them about their inclusion on the list.57 The Council has the power to decide upon a listing and does this on the basis of received information.58 First of all there has to be an initiative of a state or several states together to come forward with a name that could be listed. Such initiative may even come from a third state.59 Proposals for listings are submitted to the Common Position 931 Working Party. When a person, entity or group is listed they will receive
Http://europa.eu/scadplus/leg/en/lvb/l33208.htm. (To access go to http://europa.eu/scadplus and click on CFSP and click on Fight against terrorism and click on Freezing funds: list of terrorist and terrorist groups). (Consulted 4 November 2007). 54 CFI 12 December 2006, case T-228/02, Organisation des Modjahedines du Peuple de l'Iran (OMPI) v. Council of the European Union, [2006]ECR II-0000 and Council of the European Union, 28 June 2007 10826/1/07 REV 1 available at http://www.consilium.europa.eu/uedocs/cmsUpload/st10826re01en07.pdf. 55 T-228/02 OMPI see supra note 54, paragraph 159. 56 Http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/misc/95034.pdf. (Consulted 5 November 2007). Council of the European Union, 29 June 2007, EU terrorist list adoption of new consolidated list. 57 Http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/misc/95034.pdf. (Consulted 5 November 2007). Council of the European Union, 29 June 2007, EU terrorist list adoption of new consolidated list. 58 Council Common Position 2001/930/CFSP, 27 December 2001 OJ L 344/90, article 1 paragraph 4. 59 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 2.
53

11

a statement of reasons for the inclusion on the list.60 The statement of reasons is drafted by the Council Secretariat together with the state that initially proposed the request for listing.61 The statement has to be approved by the Working Party on a case-by-case basis.62 The discussions about the statement by the Working Party are confidential.63 The statement of reasons explains in what way the person, entity or group meets the requirements set out in article 1 (2) and (3) of the Common Position (involvement in terrorist activities).64 The designated person or entity is also notified about their inclusion on the list. In most cases the state that already has investigated a certain terrorist or a terrorist organisation will take the initiative to bring forward a name for inclusion on the list.65 A request for de-listing can be made by listed persons or entities, a member state or the state that initially requested the listing of the person or entity.66 Statements entailing information supporting the de-listing have to be included with a request for a de-listing.67 Request for de-listings are solely an option when the requirements for listing are no longer being fulfilled by the person or entity in question.68 Requests for de-listings are forwarded to delegations for discussion in the Working Party of Common Position 931. Then the delegations have fifteen days to examine the re-quest for a de-listing including the information on which request is based.69 The Working Party, after it has examined requests, will give recommendations about a listing or a de-listing to the Council. The Council will normally adopt these recommendations.70 The autonomous European list has an automatic review mechanism and is reviewed every six months to ensure there are grounds for keeping the listed names on the list.71

60

Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 17. (the persons or entity has to be listed under council resolution 2580/2001). 61 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 19. 62 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 19. 63 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 19. 64 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 18. 65 Cameron 2003 Human Rights Law Review Vol. 3 No. 2 (2003), p. 234. 66 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 29. 67 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 29. 68 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 30. 69 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 10. 70 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 15.

12

 1.4 Which legal instruments and what legal basis did the European Union use to implement the UN resolutions?

Common Positions Common Position 2002/402 implements resolution 1267 Common Position 2001/930/CFSP and 2001/931/CFSP implement resolution 1373 Common Positions are not directly applicable in the member states. The Common Positions that were adopted in order to implement UN resolution were taken on the basis of the common foreign and security policy, the second pillar, article 15 TEU.72 Common Positions are adopted by the Council under articles 15 TEU because they address matters that fall within the scope of the Common Foreign and Security Policy and obligate member states to bring their national policies in accordance with the Common Positions. 73 Common Positions are binding in the sense that member states are, when executing their national policy, bound to act according to the Common Position. Common Positions do not have direct effect and member states are free on how to attain the result of Common Positions.74 Common Positions in the second pillar are not subjected to a judicial review by the ECJ, since article 46 TEU states that the ECJ does not have competence to question decisions taken in the area of Common Foreign and Security Policy.75 The applicants in the Segi case wanted to claim damages and therefore they questioned the legality of Common Position 2001/931/2001.76 The CFI stated that that it did not have the power to judicially review acts which are based on the second and third pillar.77 In 2007 the ECJ in the Gestoras Pro Amnistia case decided that articles of Common Positions are subjected to judicial review according to article 35 (1) EU. The ECJ decided that national courts have the possibility to refer questions for a preliminary ruling. This is only possible
71

Council Common Position, 27 December 2001, 2001/930/CFSP OJ L 344/90, article 1 paragraph 6. Http://www.statewatch.org/news/2002/jan/refugee.pdf. (Go to www.statewatch.org click on observatories and click on Terrorist lists/proscription and go to January 2002 and click on EU agrees on first list of terrorists (Consulted 4 November 2007). 73 Council Common Position 2002/402/CFSP, (2002) Official Journal L 139/4, article 1. 74 Craig & de Burca 2003, p. 156. 75 Segi/ Gestoras, admissability decision 23 May 2002, appl. No 6422/02, Reports of judgements and decisions 2002-V p. 4. 76 Nettesheim 2007, WHI paper, p.9. 77 Nettesheim 2007, WHI paper, p. 10. 78 ECJ 27 February 2007, case C-354/04, Gestoras Pro Amnista and others v. the Council, [2007] ECR I-0000, paragraphs 53 and 54.
72

13

when an article of the Common Positions has legal effect, which means that the applicants are affected.78 In those situations, the Common Position is treated as a Framework Decision.79

Regulations Regulation 881/2002 implements the sanctions of resolution 1267 Regulation 2580/2001 implements the freezing sanction of resolution 1373 Regulations are adopted under the Treaty on the European Union in line of the Common Foreign and Safety Policy. Regulations are legally binding upon European Union member states. As mentioned in article 249 TEC, regulations are binding and directly applicable in every member state thus no is needed, they are already a part of the International law system of the member states.
80

Regulations have direct effect.

Direct effect means that persons or entities affected can enforce the regulation directly before a judicial authority.81 The Community has the task to under take action to disrupt or limit economic relations with one or more third countries.82 The regulations that implement the freezing sanctions are based on articles 60, 301 and 308 TEC. In Kadi83 and Yusuf84 the Court of First Instance stated that the European Union has the competence to freeze funds and assets of listed persons and entities since this was necessary to fight international terrorism. However, these rulings were grounded on articles 60, 301 TEC, which deal with disrupting financial relations with third countries and it was argued that these articles do not provide competence to freeze funds or assets within the European Union. Article 308 was added because the sanctions were no longer solely connected with Afghanistan.85 However, this has been denied by the Advocate General in the Al Barakaat case.86 The Advocate General argues that articles 60 and 301 TEC form a legitimate basis for the regulation because

79

CFI 7 June 2004, case T-338/02, SEGI association, Araitz Zubimendi Izaga and Aritza Galarraga [2007] ECR I-0000, paragraph 36. 80 Eijsbouts, Jans & Vogelaar 2004, p. 56. 81 Craig and de Burca 2003, p. 202. 82 The Treaty establishing the European Community (1957) article 301. 83 CFI 21 December 2005, case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II-3639. 84 T-306/01 Yusuf see supra note 14. 85 T-306/01 Yusuf see supra note 14, paragraph 88. 86 Conclusion AG Maduro in case T-415/05, 23 January 2008, Al Barakaat International Foundation against the Council of the European Union and the Commission of the European Community.

14

disrupting economical relations concerning persons and entities of third countries contributes to negative economical relations with those third countries.87 According to the CFI the regulations were valid since they intended to disrupt economic relations with third countries and this fulfils the objective of the Union.88 The CFI supported this statement by reasoning that the regulations contribute to the Area of Freedom Security and Justice just like the United Nations adopted the sanctions to maintain international peace and security.89 However, this argument from the CFI is in my opinion not very strong and there exists room for discussion. Member states are prescribed to freeze the assets of terrorists residing in the Union and outside the Union associated with Al-Qaeda, the Taliban or Usama bin Laden. Other terrorists, not associated with Al-Qaeda, Taliban or bin Laden, fall under resolution 1373. When these terrorists reside within the Union they are only subjected to article 4 of Common Position 2001/931/2001. This means that these terrorists do not fall under the freezing sanction of Common Position 2001/931/CFSP. Still, these terrorists within the Union also form a threat to International peace and Security and the European Union does not prescribe the freezing of assets for internal terrorists. However, funds of internal terrorists are frozen by national measures of the member states of the UN. Still, why did the European Union implemented resolution 1373 and did not leave the freezing of both internal and external terrorists up to the member states? In my eyes the European Union should also prescribe the freezing of assets of internal terrorists in the regulations since this would make a bigger contribution to the Area of Freedom Security and Justice.

Framework Decisions Framework decision 2003/48/JHA implements article 4 of Common Position 2001/931/CFSP (judicial and police co-operation) Framework decisions are binding for member states.90 The decisions are binding to result, so member states are free to decide on how to implement framework

87

Conclusion AG Maduro in case T-415/05, 23 January 2008, Al Barakaat International Foundation against the Council of the European Union and the Commission of the European Community, paragraph 13. 88 T-306/01 Yusuf see supra note 14. 89 Tappeiner 2005, Utrecht Law Review, Vol. 1, No. 1 (2005) p. 105. 90 Article 34 (2) (B) TEU. 91 ECJ 16 June 2005, case 105/03, Criminal proceedings against Maria Pupino [2005] ECR I-5285.

15

decisions.91 Framework decisions have no direct effect, this is stated in article 34 (2) (B) TEU. However the Court decided in Pupino92 that member states have to interpret national law in light of the Framework decision, thereby the Court acknowledged the principle of supremacy in Framework Decisions (third pillar).93 Therefore individuals and entities can invoke their rights in Framework decisions in the national courts of the member states, despite the fact that officially these decisions do not have direct effect.94 Framework decisions are subjected to review by the European Court of Justice.

1.5 Does the EU make use of its autonomous powers by implementing the UN sanctions and why is this question important? In this paragraph I will explain to what extent the measures that were adopted by the Security Council and the European Union are binding. Are the measures, taken by the European Union to implement the terrorist lists, taken on the basis of competence of the Union or did the measures taken by the Union follow directly from the resolutions taken by the United Nations? Next to this I will explain what the effects are of the European Union prescribing terrorist sanctions that do not directly follow from the resolutions. Measures that do not directly follow from the UN resolutions were taken in order to execute European Union policy. It is important to explicate which measures directly follow from the UN measures and which not because when doing so it becomes clear what legal action can be taken against these measures. In the Kadi and Yusuf case the applicants asked the Court of First Instance to consider the validity of the UN Resolutions.95 The Court answered that it did not have the competence to check the validity of Resolutions of the UN in the light of Community law.
96

However the Court did find itself competent to check the validity

of the UN Resolutions in the light of Jus Cogens, since these norms stand above International law, and if the Court would find the UN Resolutions contradicting with the norms of Jus Cogens it could limit their binding effect, though the Court examined
Http://www.aeud.org/file/European_Arrest_Warrant.pdf. EU Framework decisions An Integral Part of National Law European Democratic Lawyers, Moritz v. Unger. (Constulted 6 June 2008). 93 Http://www.aeud.org/file/European_Arrest_Warrant.pdf. EU Framework decisions An Integral Part of National Law European Democratic Lawyers, Moritz v. Unger. 94 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p. 629. 95 Ooik and Wessel, (2006) nr. 6 SEW- Tijdschrift voor Europees en Economisch Recht (2006) , p. 237. 96 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p. 629. 97 Bianchi 2006, The European Journal of International Law Vol. 17 no. 5 (2006) p 894.
92

16

that none of the norms of Jus Cogens were violated by the UN Resolutions.97 This means that measures that follow directly from the UN resolutions are not subjected to judicial review according to the CFI. The applicants appealed against the decision of the CFI. The Court has not decided yet against this appeal, however the Advocate General (AG) Maduro has written remarkable opinion with a different view towards the decision of the CFI. According to the AG, the European Community has the task to review the UN Security Council resolutions on the compatibility of human rights since the listed persons and entities do not have the possibility to question the listing decision before an international independent tribunal.98 The CFI in OMPI concluded that measures that do not directly follow from the UN measures, which are thus completely taken on the competence of the European Union, are subjected to judicial review.99 This means that it is indeed of importance to clarify which measures taken by the European Union do not follow directly from the resolutions since these measures are subjected to judicial review to consider the validity.

98

Opinion of Advocate General (Poiares Maduro), 16 January 2008 in Case C-402/05, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, paragraph 54. 99 T-228/02 OMPI see supra note 54, paragraph 151.

17

2. Which sanctions are prescribed in the Terrorist resolutions and are these sanctions prescribed differently by the European Union?
2.1 Introduction In this chapter I will examine whether the European Union acts upon autonomous powers when executing the terrorist sanctions. I will explicate whether the European Union is prescribing more than what the Security Council has prescribed. Therefore this chapter contains an analysis of the individual sanctions mentioned in the terrorist resolutions and the sanctions prescribed within the European Union. If the European Union is prescribing more than obligated by the Security Council, it is acting upon autonomous powers. Several sanctions in resolution 1267 that were directed to a geographic area (Afghanistan) were lifted and do no longer exist. Therefore these lifted sanctions will not be discussed.

2.2 Comparison between the freezing sanction prescribed in the Taliban resolutions and the freezing sanction, implementing the freezing sanction of resolution 1267 and 1333, as prescribed by the Union: Paragraph 4 sub b of UN resolution 1267 prescribes one of the individual sanctions; the assets freeze sanction. The assets freeze sanction includes the freezing of financial or economic resources or funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as listed on the terrorist list of 1267.100 Thereby it should be prevented that funds or financial resources are made available, directly or indirectly, for the benefit of the persons and entities listed.101 Next to this financial funds, assets or funds derived from property directly or indirectly owned or controlled by Usama Bin laden, Al-Qaeda and their associated as listed by the Sanctions Committee have to be frozen.102 First of all has to be cleared what actually can be frozen en what this freezing means. There is no real guidance from the UN what is actually the term funds or financial assets means so it is a matter for the member states to decide what actually
UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 101 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 102 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b).
100

18

falls within the meaning of funds or financial assets. In fact there is no clear understanding among UN member states about, for instance, the content of the term freezing or the term funds, some states define these terms wider than others.103 However, there does exists some international consensus on this point. First of all the United Nations adopted a Convention for the Suppression on the Financing of Terrorism in 1999. Conventions are treaties and thus pertain to the category of international binding law.104 On 9 December 1999105 the General Assembly of the United Nations adopted the Convention on the Suppression on the Financing of Terrorism. The Convention on the Suppression on the Financing of Terrorism is applicable on all the member states that have ratified the Convention. As of 19 November 2006, the Convention for the Suppression of the Financing of Terrorism counts 132 states that have signed the Convention.106 Of these 132 states, 112 states have ratified the Convention and have become state parties to the Convention.107 The Convention on the Suppression of the Financing of Terrorism sets international standards that states have agreed to implement. The Convention for the Suppression on the Financing of Terrorism has created international minimum standards to execute international sanctions. The European Union had called upon its member states to sign and ratify the Convention for the Suppression on the Financing of Terrorism in after the terrorist attacks in 2001.108 Since then, the European Union has expanded with the association of 12 new member states. All of these 12 member states have signed and ratified the Convention, except for Czech Republic that has only signed the Convention and Lithuania that did not

UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 104 Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp1.pdf. p. 1 (6 January 2008) Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. 105 International Convention for the Suppression of the Financing of terrorism. Can be found on: Http://untreaty.un.org/English/Terrorism.asp (United Nations Treaty Collection). 106 Http://www.nti.org/e_research/official_docs/inventory/pdfs/finterr.pdf. Inventory of International Non-proliferation Organisations and Regimes Centre for Non-proliferation Studies. (Consulted 23 February 2008) 107 Http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=337343. (Go to Http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=260414 and click on mobilizes .> advocacy centre> stay informed> fact sheets/ talking points> International Convention for the Suppression of the Financing of Terrorism). Fact Sheet on the site of the United Nations Association of the United States of America about the Convention. (Consulted 30 May 2008). 108 Http://ec.europa.eu/justice_home/news/terrorism/documents/concl_council_21sep_en.pdf. (Consulted 5 June 2008).

103

19

sign but only ratified the Convention.109 So all European Union member states are also members to the Convention for the Suppression of the Financing of Terrorism and 26 out of 27 member states are state parties to the Convention. This means the Convention has an important status among European Union member states since almost all EU member states must abide by the minimum standards of the Convention and next to this they have to apply the sanctions prescribed in the EU measures. If the European Union had not implemented the sanctions, the member states of the Union would still be bound to implement the standards of the Convention. By comparing the minimum standards of the Convention to the standards prescribed by the European Union clarifies whether the Union is prescribing more than the UN. Therefore I am of the opinion that the minimum standards of the Convention have to be applied when executing the sanctions of the UN Security Council resolutions, thus when assets have to be defined. In article 1 of the Convention the meaning of the term funds is explained.

Funds means assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form, including electronic or digital, evidencing title to, or interest in, such assets, including, but not limited to, bank credits, travellers cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit.110 The Convention gives a broad explanation of the term funds. When examining the explanation given in article 1 of the Convention it is clear that also immovable goods, for instance a house, can be marked as fund. A house can be seen as a tangible immovable asset, and thus can be frozen. In resolution 1267 it has been made clear that assets, resources and funds have to be financial and thus the assets must have economical value.111 After all the assets freeze sanction is categorised as an economical sanction. Article 1 of the Convention states that a legal document

containing a right to an asset, falls within the definition of funds. Even titles to or interest in assets are seen as funds. Article 1 does also mention that the asset has to be acquired and thus has to have a relationship with a person or entity. The effects of freezing are radical since for the person or entity in question it means complete
Http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty12.asp. (consulted 5 June 2008). 110 Article 1 (1) of the Convention on the suppression on the Financing of Terrorism (1999). 111 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), Paragraph 4 (a) and UN Security Council Resolution 1333, 19 December 2000, S/RES/1333 (2000) paragraph 8 (c).
109

20

inaccessibility of all their financial assets.112 Freezing of assets means in practise that persons or entities, of which assets have been frozen, are unable to access bank accounts.113 Joint bank accounts can also be frozen. If a designated married person shares a bank account with his partner, the joint account is frozen. 114 This means that even the assets of persons that are not listed can be frozen. If a person receives an income on a bank account and the bank account is frozen, the individual is no longer able to access his salary.115 States are also able to freeze bank accounts of persons who are holding assets on behalf of listed persons and entities, since this falls within the scope of the term directly or indirectly as used in the freezing sanction.116 Even social support from social insurances can be frozen since this can be seen as an acquired title to financial support. It is clear that the freezing sanction violates the right to property as mentioned in article 2 of the ICCPR.117 The freezing sanction postpones making use of the right to property, yet it does not deprive the right to property. Lastly article 1 of the convention gives some examples of objects that fall within the meaning of funds. Funds are defined as assets of every kind.118 Assets are marked as funds even if the assets are intangible, immovable, digital instruments or if they are only titles to assets. All assets can be frozen; it does not matter if assets were acquired before listing or after listing.119 There exists more international law concerning suppression on the financing of terrorism. For instance the Financial Action Task Force (FATF) has given recommendations considering the explanation of the terms used in the measures of resolution 1267. The FATF is an international inter-governmental body that tries to create an international understanding about for instance combating the financing of terrorism.120 The FATF does not create binding international law, such as treaties, but it is an expert body and it sets out guidelines for member states. The FATF was
Bill Bowring 2007, Socialist Lawyer April 2007 available at http://www.uel.ac.uk/chrc/documents/SL46_bowring.pdf. 113 Thorne 2006, HD centre working paper 2006, p.5. 114 Bill Bowring 2007, Socialist Lawyer April 2007 available at http://www.uel.ac.uk/chrc/documents/SL46_bowring.pdf. 115 Bill Bowring 2007, Socialist Lawyer April 2007 available at http://www.uel.ac.uk/chrc/documents/SL46_bowring.pdf. 116 UN document concerning experiences of the member states implementing the Taliban/ Al-Qaeda sanction measures can be found on: http://www.un.org/sc/committees/1267/ExperiencesofMemberStates.pdf. 117 Bianchi 2006, The European Journal of International Law Vol. 17 no. 5 (2006) p. 908. 118 International Convention for the Suppression of the Financing of Terrorism (1999) article 1. 119 Report (fifth) of the United Nations Monitoring Group 1267, 20 September 2006, p. 25.
112

21

founded in 1989 and it began creating international guidelines on combating money laundering.121 After the terrorist attacks in 2001 the expert body also focused on the financing of terrorism. In this period the name of the organisation was changed into FATF and it became clear that the financing of terrorism became their main research area from then on. The Convention concerning the Suppression on the Financing of Terrorism does not deal with the term freezing and the FATF, in its recommendations, has given a decisive answer what a freezing actually means. The FATF defines the term freezing, used in the resolutions, as a measure that prohibits transfer, conversion, disposition or movement of funds or other assets on the basis of, and for the duration of the validity of, an action initiated by a competent authority or a court under a freezing mechanism.122 Yet, the recommendations of the FATF are not binding for the UN member states. The recommendations are not considered to be binding law like international Conventions. However, the recommendations are easy to implement since they are flexible and they can adapt to different circumstances and constitutions.123 Several countries have made political commitments to implement these recommendations as an example for others.124 Next to this, Resolution 1617 (2005) contains an advise from the Security Council directed at all members to implement the recommendations of the FATF. The members of the FATF consist out of 32 states and 2 regional organisations.125 One of those regional organisations is the European Commission. More than half of the members of the FATF are western countries such as the United States, Canada and European countries. This means that the states that harbour the Taliban, Al-Qaeda, Bin Laden and associated terrorists, such as Pakistan and Afghanistan, are non-members of the FATF. In these states the financing of terrorism
Http://www.fatfgafi.org/pages/0,2987,en_32250379_32235720_1_1_1_1_1,00.html. Site of the FATF (Consulted 24 November 2007) 121 Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf. (6 January 2008) Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003, p. 23. 122 Http://www.fatf-gafi.org/dataoecd/53/32/34262136.pdf. Interpretative Note to Special Recommendation III: Freezing and Confiscating Terrorist Assets paragraph 7 (a). (Consulted 6 February 2008). 123 Http://www.fatfgafi.org/document/28/0,3343,en_32250379_32236930_33658140_1_1_1_1,00.html. Site of the FATF (click on 40 recommendations). Consulted on 30 April 2008. 124 Http://www.fatfgafi.org/document/28/0,3343,en_32250379_32236930_33658140_1_1_1_1,00.html. Site of the FATF (click on 40 recommendations) 30 April 2008. 125 Http://www.fatf-gafi.org/pages/0,3417,en_32250379_32236869_1_1_1_1_1,00.html. Site of the FATF (click on about the FATF and click on members & observers). Consulted on 30 April 2008.
120

22

is not disrupted according to the recommendations of the FATF, which makes the recommendations of the FATF globally less important to use when executing freezing sanctions. However, in my opinion the FATF recommendations sets standards which are not covered by the Convention for the Suppression of Terrorism and resolution 1617 urges all states to implement the recommendations of the FATF, therefore these recommendations also have to be considered when defining assets on those areas where the Convention gives no explanation.

The freezing sanction of Common Position 2002/402/CFSP prescribes that funds, assets or other economical resources have be frozen and that these will not be made available to benefit the persons and entities mentioned in article 1. Article 3 does not mention that the sanction has to be executed according to the conditions of a UN resolution. To effectively implement the freezing sanction the European Union adopted legislation; regulation 881/2002. Regulation 881/2002 falls under the first pillar and was adopted to implement the Common position 2002/402.126 The regulation is directly applicable in the member states. Regulation 881/2002 explains in what manner a freezing sanction has to be executed. This is stated in Article 1 of regulation 881/2002. The explanation of the term funds in regulation 881/2002 is more or less comparable to the definition as mentioned in the Special Recommendations of the FATF.127 However, regulation 881/2002 makes a clear distinction between financial funds and economic resources. This distinction cannot be found in the Special Recommendations of the FATF nor the Convention for the Suppression of Terrorism. The distinction adopted by the Union between financial funds and economical resources has a consequence. It means that the assets freeze sanction is prescribed differently by the European Union than by International law. According to the regulation a house, which is intangible and immovable, has to be marked as an economical resource. When applying standard international law, a house falls within the definition of funds. In the European Union a house has to be frozen according to paragraph 4 of article 1 881/2002: freezing of economic resources means preventing their use to obtain funds, goods or services in any way, including, but not limited to,
126

Tappeiner 2005, Utrecht Law Review vol. 1 nr. 1 (2005) p. 104. Http://www.fatf-gafi.org/dataoecd/53/32/34262136.pdf. Interpretative Note to Special Recommendation III: Freezing and Confiscating Terrorist Assets. (Consulted 6 February 2008).
127

23

by selling, hiring or mortgaging them.128 The freezing of a house according to the definitions of the Convention for the suppression of terrorism would mean that transfer, conversion, disposition or movement is prohibited. This means that the European Union uses different words to prescribe the freezing sanction. When looking at the content of the freezing sanction prescribed by the European Union, the Security Council prescribes the same sanction. For instance when applying the

freezing sanction as prescribed by the Convention for the Suppression of the financing of terrorism it is not allowed for a listed person to rent out their house since this falls under deposition. Renting out frozen houses is also not allowed when applying the freezing mechanism of regulation 881/2002 since funds are used to obtain goods (hiring). Freezing in the European Union entails the same as is prescribed by standard international law. The effects of the freezing are thus not different. This means that the freezing sanction of regulation 881/2002 does follow directly from the UN Security Council resolution and is thus not subjected to judicial review of the European Court of Justice. The freezing of funds is explained differently in the European Union. In the Union the freezing of funds means that, for instance, dealing of funds to change their volume and/or character is prohibited. In the Union freezing of assets constitutes prohibiting the use of the frozen funds. International law allows the use of frozen assets, as long as there is no transfer, conversion, disposition or movement of the funds. However, this different explanation does not have any effects since dealing of funds to change their volume and/or character also implies that there has to be transfer, conversion, disposition or movement and this is also prohibited on international level. So the implementation of the freezing of funds by European Union follows directly from the UN resolution and is thus not subjected to judicial review. In article 4 of Regulation 881/2002 it is stated that it is prohibited to intentionally and wilfully ignore articles 2 or 3 of the regulation. This means, for instance, that it is prohibited to prevent a certain freezing. Resolution 1267 calls upon states to act in accordance with the provisions of the resolution and to impose penalties on persons and entities that violate the provision concerning the freezing sanction.129 Article 4 of regulation 881/2002 is an execution of the recommendation
128 129

Council Regulation (EC) 881/2002, 27 May 2002, Official Journal L 139/9 article 4 (1). UN Security Council Resolution 1267, 15 October1999, S/RES/1267 (1999) paragraph 8.

24

given in resolution 1267 to penalise those intentionally ignoring and not executing the sanctions prescribed by the resolution. Paragraph 8 of resolution 1267 uses the term calls upon states to... in contrast to the paragraph 4 decides. At first glance the term decides seems to be obligatory and the term calls upon states to... seems non-obligatory. In several other resolutions the Security Council had been using these terms inconsistently and later states that in some situation the term calls upon states is binding.130 For instance the Security Council can decide to impose embargo sanctions and in another paragraph the Council can call upon states to act in accordance with the provisions of the resolution.131 Despite the different terms, both are obligatory. In this case paragraph 8 is a request from the Security Council to the member states and is not obligatory. However, Security Council resolutions contribute to international peace and security it would be best if member states also implement the non-obligatory paragraphs. The implementation of paragraph 8 by the European Union, in my eyes, contributes to the fight against terrorism. Next to this the implementation follows directly from the UN resolution and is not based on autonomous Union powers. So in my eyes the European Union does not prescribe more than the resolution it does not make a difference that the Union has made the recommendation obligatory for its members. Article 4 of regulation 881/2002 is not subjected to judicial review of the European Court of Justice. UN member states are encouraged to act according paragraph 8 of resolution 1267 and the member states of the Union are also required to execute the obligation mentioned in article 4 of the regulation. The assets freeze measure has to be carried out as an obligation by the UN member states. Competent authorities or courts within member states have the obligation to enforce a freezing.132 The execution of the freezing sanction is not done by the member states themselves but is carried out by financial institutions within the
Background paper centre dtudes sur le droit international et la mondialisation, Sanctions imposed by the Security Council under chapter VII and their implementation under national law, 2007 p. 5 and 6 available at: http://www.cedim.uqam.ca/files/CEDIM_Projets_EIRN_Resource%20Conference%202007_Sanctions %20Paper.pdf. (Consulted 5 June 2008). 131 Background paper centre dtudes sur le droit international et la mondialisation, Sanctions imposed by the Security Council under chapter VII and their implementation under national law, 2007 p. 5 and 6 available at: http://www.cedim.uqam.ca/files/CEDIM_Projets_EIRN_Resource%20Conference%202007_Sanctions %20Paper.pdf. (Consulted 5 June 2008).
130

25

member states. For the execution of the assets freeze measure, the UN member states have to have supporting national legislation. The assets freeze sanction is executed on the basis of the list, included in the resolutions. Member states have the obligation to identify the listed entities or persons. This information is forwarded to financial institutions. The information about persons or entities has to be specific for financial institutions. This information contains full names, nationalities, states of residence and even better are full addresses of listed persons and entities.133 The financial institutions within the states have the obligation to locate and identify the assets of the designated persons and entities by effectively screening transactions and accounts.134 The authorities of member states have to make sure that financial institutions effectively screen accounts and transactions.135 Besides screening accounts the institutions are required to know their customers and look out for suspicious transactions. The person or entity has to be located and identified and more important the assets of the person or entity have to be traced in order to effectively impose financial sanctions.136When no freezing sanction is executed, the financing of terrorism goes on. In most cases it is not easy to locate the assets of listed persons and entities since these will try to transfer, disown and hide the assets before the listing takes place. Assets that have been transferred prior to the listing of the person or entity have to be traced and also have to be frozen in order to effectively execute the freezing sanction. However, in some situations the freezing sanction cannot be executed for example when persons and entities are designated but do not possess any assets. According to the resolutions, states have the obligation to freeze the assets of listed persons and entities but in most cases member states only interpret this obligation as the obligation to notify financial institutions and the listed persons and entities.137 Financial institutions have the task to screen accounts and transactions, mostly without supervision of states.138 In practise, most of the financial institutions solely screen
Http://www.fatf-gafi.org/dataoecd/45/19/34863009.PDF. Interpretative note to Special Recommendation III: Freezing and confiscating Terrorist assets. Paragraph 8 (a) (i). (Consulted 9 march 2008). 133 Rapport (third) of the Analytical support and Sanctions Monitoring team 9 September 2005, p. 21. 134 Http://www.un.org/sc/committees/1267/pdf/guidanc_en.pdf. (Consulted 6 June 2008) and rapport (Fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21. 135 Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21. 136 The Thomas J. Watson Jr. Institute for International Studies: Targeted Financial Sanctions, 2001, p. 94. 137 Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21. 138 Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21.
132

26

their current and possible future customers for matches with the list and this does not contribute to the effectiveness of the assets freeze sanction.139 Several countries have specialist institutions; financial intelligence units, that are assigned to trace suspicious transactions and to trace other hidden assets that the listed persons and entities might have.140 This financial intelligence unit guides the screening of transactions by the financial institutions, which of course contributes to the effectiveness of the sanction.141

2.3 Comparison between the arms embargo and travel ban sanction prescribed by the United Nations and the arms embargo and travel ban sanction prescribed by the Union

2.3.1 The arms embargo sanction Next to the assets freeze sanction, the Taliban, Al-Qaeda and Usama Bin Laden resolution 1267 contains an arms embargo sanction. In resolution 1390, which expands resolution 1267, paragraph 2 describes the arms embargo sanction:

Prevent the direct or indirect supply, sale and transfer, to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned and technical advice, assistance, or training related to military activities;.142

The terms used in this sanction have been explained by the Security Council to create a common understanding among the UN member states. The sanction requires states to hinder the indirect or direct supply, transfer or sale of arms and all other material used for terrorist activities to listed persons or entities. This means that member states have the obligation to prohibit that listed persons and entities have access to arms and

139 140

Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21. Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 21. 141 Rapport (fourth) of the Analytical support and Sanctions Monitoring team 10 march 2006, p. 22. 142 UN Security Council Resolution 1390, 28 January 2002, S/RES/1390 (2002) paragraph 2 (c).

27

other related materiel.143 What actually falls within the scope of arms and other related materiel144 is not explained in one single document. Not only the text of the resolution explains the term but also the rapport of the Analytical Support and Sanctions Monitoring Team (ASSMT) is a guidance to explain the term used in the resolution. The ASSMT is a team that assists the Sanctions Committee.145 The team consists of experts in for instance arms embargo.146 The ASSMT provides states with recommendations and guidance on how to implement and execute the sanctions prescribed by the UN resolutions.147 First of all the text of the resolution makes clear that weapons and ammunitions, military vehicles and equipment, paramilitary equipment, and spare parts for all of these do fall within the scope of the arms embargo sanction.148 The term arms includes biological, chemical and nuclear weapons149 Next to this member states have to make sure that technical advice, assistance or training related to military activities is not supplied, transferred or sold to any persons or entities listed by the Sanctions Committee.150 However, the arms embargo sanction is not limited to the objects previously mentioned, these are examples.151 Thus member states are allowed to give a broader meaning to the term other related military equipment. The term from their territories or by their nationals outside their territories or using their flag vessels or aircrafts requires states to prevent that arms and other military related materiel is transferred by their nationals to listed persons and entities or that arms and other related material is transferred from their own territory or by using their flag vessels or aircrafts to those on the list.152 The scope of the arms embargo sanction is very broad and because the scope is wide also exports and imports to listed persons

Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf (6 January 2008). Document of the Committee explaining terms used in the resolutions. 144 UN Security Council Resolution 1390, 28 January 2002, S/RES/1390 (2002) paragraph 2 (c). 145 Http://www.un.org/terrorism/securitycouncil.shtml. (Consulted 28 April 2008). 146 Http://www.un.org/terrorism/securitycouncil.shtml. (Consulted 28 April 2008). 147 Http://www.europa-eu-un.org/articles/en/article_3797_en.htm (Consulted 30 April 2008) 148 Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. (6 January 2008). 149 Report of the United Nations Monitoring Group 1267, 20 September 2006, p. 33. 150 Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. (6 January 2008) 151 Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. (6 January 2008) 152 Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. (6 January 2008)

143

28

fall within the sanction.153 The possibility of listed persons having access to arms and other military equipment has to be limited.154 The effectiveness of the arms embargo sanction depends on the controls executed by the member states. Without the assistance of the member states, the sanction cannot be executed. Member states also have to prohibit that technical assistance is given to terrorist or weapons are made available for terrorist activities. This means that Member states have to effectively control persons travelling trough the territory. The controls of arms embargoes have to be executed by a controlling authority such as the police in order to be effective.155 Yet, an effective control of arms embargoes remains a difficult requirement in several countries. Especially in those countries were the Taliban, Al-Qaeda, Bin Laden and their associates are active such as Afghanistan and Pakistan there is poverty. For instance officers controlling the exchange, import and export of arms embargoes are willing to approve terrorist deals, imports and exports in exchange for money or other goods. Next to this, a lot of UN member states are unable to implement the arms embargo sanction due to the lack of legal and administrative resources.156 So there can be discussion about the effectiveness of the arms embargo sanction. In my opinion an arms embargo sanction is always better than no arms embargo sanction. The UN has taken action to help member states with the implementation of the sanction. The UN for instance appointed the ASSMT.157 Next to this, it would be helpful if states indeed penalise those who do not execute the arms embargo sanction. effectiveness of the arms embargo sanction. This encourages the

2.3.2 Travel bans When the Taliban lost its position in the government, the sanctions against Afghanistan were lifted such as the aviation embargo. Resolution 1390 re-established the sanctions regime of 1267. Resolution 1390 contains a travel ban. This sanction

Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. (6 January 2008) 154 Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf. ( 6 January 2008) 155 Laura Norris 2000, the Ploughshares Monitor march 2000 vol. 21 no. 1. Available at http://www.ploughshares.ca/libraries/monitor/monm00g.html. (Consulted 30 April 2008). 156 Laura Norris 2000, the Ploughshares Monitor march 2000 vol. 21 no. 1. Available at http://www.ploughshares.ca/libraries/monitor/monm00g.html. (consulted 30 April 2008). 157 Http://www.un.org/terrorism/securitycouncil.shtml. (Consulted 28 April 2008).

153

29

was added on top of the assets freeze sanction and the arms embargo sanction in 2002 with the creation and approval of resolution 1390. The travel ban sanction prevents that individuals and groups named on the list travel through member states.158 If no travel ban sanction would be imposed listed persons would have the opportunity to move freely between states. Freedom of movement gives terrorists opportunities to conspire terrorist activities in different states and it gives terrorists the opportunity to easily create a global terrorist network. Persons on the terrorist list are checked at border ports and when they are identified as listed, they are refused entry or departure and they can be sent back to their nation state. This means that listed persons are not able to leave the territory of the state where they reside and are thus sanctioned to remain in this area. To effectively execute the travel ban sanction, member states have to take measures. Resolution 1735 prescribes that member states have to refuse listed persons entry into their territory and they have to refuse departure requests from listed persons. There is no obligation for states to refuse entry to listed nationals.159 Included in the travel ban sanction is the visa restriction against listed persons.160 All member states have to be alert for listed persons that intend to enter or travel trough their territories, since the persons on the list come from different member states in different parts of the world.161 The resolution gives states a margin of appreciation on how to impose the sanction, as long as they will abide by the resolution to keep listed persons out or in their territories. All member states use different measures; however the Monitoring Team of the United Nations has given some recommendations concerning the effective execution of the travel ban sanction. States have to create exhaustive checks at border ports through which states can identify listed persons. Sometimes situations take place that are not prescribed by the resolution, namely when a listed persons already has secretly travelled into another territory and the member state in question identifies this listed person; the resolution gives no answer on what to do in

Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. (Consulted 1 February) Security Council report of 9 September 2005, p. 34. 159 UN Security Council Resolution 1735, 22 December 2006 S/RES/1735 (2006), paragraph 1 (b). 160 Gary Clyde Hufbauer and Barbara Oegg, Paper: targeted sanctions: A policy alternative? Peterson Institute, 2000. Available at Http://www.iie.com/publications/papers/paper.cfm?ResearchID=371. (Consulted 28 April 2008). 161 Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. Security Council report of 9 September 2005, p. 34.

158

30

this situation. In most cases these persons will be extradited.162 Otherwise the Monitoring Team recommends that in such a situation the member state has to cancel visas and residence permits.163 The effectiveness of the sanction totally depends on the execution of effective border controls. The listed persons will do their utter best to escape from the sanction and thus will try to travel under a false identity.164 So the effectiveness of the travel ban sanction can be questioned since the listed persons have found different ways to escape the sanction. For instance listed persons can send other persons, which are not listed, to different member state to carries messages on behalf of them to listed persons in other states.165 Next to this, listed persons often use fake identities with stolen passports.166 Most of these problems can be overcome, for instance using a world-wide database for stolen passports, if all states co-operate. However, this still lies in the future due to the fact that the decision making process on and international level is difficult. Moreover there are practical difficulties to create a uniform worldwide database, since all member states have to co-operate with each other. There does already exist an international organisation that has created a system that keeps track of lost/stolen passports. This system has recently been updated that means that it also registers fingerprints and photos. However, this system is not complete because only a little more than half of the members of the United Nations participate with this system.167

Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. Security Council report of 9 September 2005, p.35. 163 Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. Security Council report of 9 September 2005, p.36. 164 Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. Security Council report of 9 September 2005, p.34 165 Gary Clyde Hufbauer and Barbara Oegg, Peterson Institute, 2000 Paper: targeted sanctions: A policy alternative? Available at: Http://www.iie.com/publications/papers/paper.cfm?ResearchID=371. 166 Http://www.un.org/sc/committees/1267/ExperiencesofMemberStates.pdf. (consulted 28 January 2008) Document of the Monitoring Team (resolution 1735) about the implementation of the Taliban/ Al-Qaeda Measures, 28 June 2007. 167 Nettesheim 2007, WHI paper p. 5.

162

31

 2.3.3 The travel ban and arms embargo sanction in the European Union Article 1 of Common Position 2002/402 is applicable to Al-Qaeda, Usama Bin Laden, the Taliban and their associates. Articles 2 and 4 are based on the measures of UN resolution 1390. Article 3 contains an obligation for the European Union to freeze economical and financial funds or assets of persons, groups and entities mentioned in article 1. The (weapons) embargo sanction adopted in resolution has been implemented by the European Union in Common Position 2002/402. The Common Position is directed to Member States and nationals of the Member States outside the territory. These are prohibited to sell, supply, transfer arms (including weapons, munitions) to the persons and entities mentioned in article 1. It is also prohibited that aircrafts or vessels of the member states are used by Al-Qaeda, Usama Bin Laden, the Taliban and their associates. In article 2 of the Common Position it is stated that the sanction has to be carried out under the conditions set out in UN resolution 1390. This means that there are no differences between the EU and the UN when executing the arms embargo and travel ban sanction. The measures of the European Union directly follow from the sanctions prescribed by the UN Security Council. The travel ban sanction (UN resolution 1390) is mentioned in article 4 of the Common Position. This article is directed to the member states. The member states of the European Union are obligated to prevent entry or transit trough their territories of Al-Qaeda, Usama Bin Laden, the Taliban and their associates. Next to the Common Position a closer look has to be taken at the other measures the European Union adopted to regulate migration. Over the past years the Union has created an area of Freedom, Security and Justice. Internal borders were abolished to create the area of Freedom, Security and Justice. This has several consequences for the travel ban sanction as prescribed by the United Nations. Due to the Area of Freedom, Security and Justice terrorists coming from outside the European Union will be checked at the external borders of the Area of Freedom, Security and Justice. This means that those terrorists will undergo border controls at airports, ports and even in countries outside the Union when a visa request is being denied. These controls are no different from what is prescribed by the resolution, since terrorists are subjected to border controls before entering European Union territory. The situation is different if terrorists are already within the Area of

Freedom, Security and Justice. Terrorists then reside in the member states. Terrorists within the Area of Freedom, Security and Justice have the ability to travel freely from 32

and to the member states of the Union since there are no internal borders. This means that designated terrorists residing in a member state of the European Union are not confined to stay within the territory of this state. However, the abolishment of the internal borders is not absolute, internal borders can be re-installed on base of the public policy exception. The public policy exception can be used when personal conduct represents a genuine, present and sufficient serious threat affecting on of the fundamental interest of society.168 A previous criminal conviction is insufficient for executing the public policy exception.169 The public policy exception sanctions persons with an expulsion or a custodial penalty.170 The public policy exception is a tool to expel terrorists from the territory of the European Union.171 The ECJ decided in van Duyn that states are not able to expel nationals and are obliged to re-admit nationals.172 The public policy exception hampers the freedom of movement of terrorists residing within. The same situation is applicable to the arms embargo sanction, since the Area of Freedom, Security and Justice is confined to persons, goods, services and capital. Free movement of goods is not an absolute right. The European Union can limit the right of free movement and re-install internal borders. According to article 30 TEC public policy and public security are justified reasons to limit the right of free movement of goods. The European Union does not prescribe more to execute travel bans and arms embargo sanctions, it actually prescribes less since internal borders are abolished. However, internal borders are re-installed by making use of the public policy exception. This means that the European Union executes the sanctions as prescribed by the resolution. Therefore, the European Court of Justice has no competence to judicially review the measures since they follow directly from the UN resolutions.

168 169

Council directive 2004/38/EC, 29 June 2004, L. 229/35, article 27 (3). Council directive 2004/38/EC, 29 June 2004, L. 229/35, article 27 (2). 170 Council directive 2004/38/EC, 29 June 2004, L. 229/35, article 33 (1). 171 ECJ 26 November 2002, case c-100/01 Oteiza Olazabal, ECR 10981. 172 ECJ 4 December 1974, case 41/74Yvonne van Duyn v Home Office, ECR 1337.

33

 2.4 Comparison between the freezing sanction of resolution 1373 and the implemented freezing sanction of 1373 as prescribed by the Union.

2.4.1 Freezing sanction of the autonomous list and resolution 1373 The content of the freezing sanction of resolution 1373 is the same as the freezing sanction in resolution 1267. However, the freezing sanction of resolution 1373 is not specifically directed at Al-Qaeda, the Taliban, Bin Laden and their associates, it is a general measure to freeze funds of terrorists.173 Next to this, resolution 1373 does not refer to resolution 1267 and neither does it refer to the list of these previous resolutions, hence the freezing obligation has to be seen separately from the freezing measures of the previous resolutions.174 Still the explanation of the term freezing and funds are of course the same, both the Convention and the FATF recommendations have to be followed. Thereby, for the execution of the freezing sanction, member states also have to follow the measures laid down in the Convention.175 Articles 2 and 3 of Common Position 2001/931/CFSP request the freezing of funds effecting the movement of capital and are therefore directed to the European Community.176 The scope of Common position 2001/930/CFSP is mentioned in article 2. The Common Position does not include a freezing sanction, in article 1 a general measure for provision of collection of funds is prohibited. In article 2 it is stated that the European Community, and thus not the member states individually, orders the freezing of funds, assets and other economic resources and the Community shall ensure that these funds will not be made available for the persons and entities mentioned in article 1. Next to this, the order to freeze given by the Community is done by a list, that contains names of persons and entities that fall under the description of article 1. Then after an order from the Community has been given to execute a freezing, the freezing has to be in accordance with regulation 2580/2001.
Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. p. 16 (6 January 2008). 174 Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. p. 21-22 (6 January 2008). 175 Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. p. 21 (6 January 2008). 176 Segi/ Gestoras, admissability decision 23 May 2002, appl. No 6422/02, Reports of judgments and decisions 2002-V, p. 2-5.
173

34

This regulation defines what actually can be frozen under article 2 of Common Position 2001/931/CFSP. This definition is identical to the definition given in article 1 (1) of the Convention for the Suppression on the Financing of Terrorism. The definition of freezing is mentioned in article 1 (2). Regulation 2580/2001 is directed to both the authorities in the member states and financial institutions to give a common understanding about what exactly can be frozen. Regulation 2580/2001 does not give a separate definition of funds and economical resources like regulation 881/2002 does. The definition of funds in regulation 2580/2001 is identical to the definition given by the Convention. In my opinion the European Union had to adopt this definition since the Convention is considered to be binding for most of the EU member states in contrast to the recommendations of the FATF. Next to this almost all EU member states are state parties to the Convention just like all EU members are members to the United Nations. So this is similarly to the situation in which the Union decided to implement the resolutions. Therefore the European Union had to adopt the definition of the Convention. The Convention describes funds as assets of every kind.177 The regulation also gives a definition of financial services. There exists no international definition of financial services. Financial services are not frozen. The Common Position prescribes that it is prohibited to make financial services, funds, financial assets and economical recourses available, directly or indirectly, for the listed benefit of the persons, entities and groups. UN resolution 1373 prescribes; Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons
178

Resolution 1373 mentions financial or other related services as the Common Position only mentions financial services. Regulation 2580/2001 gives the same definition of the term freezing of funds as the definition in regulation 881/2002.179 Freezing of funds, financial assets and economical resources is defined by the Union as; prevention of any move, transfer, alteration, use of or dealing with funds in any way that would result in any change in their volume, amount, location, ownership, possession, character,
177 178

International Convention for the Suppression of the Financing of Terrorism (1999) article 1 (1). UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001), article 1 (d).

35

destination or other change that would enable the funds to be used, including portfolio management.180 The FATF defines the freezing of funds as prohibition of transfer, conversions, disposition or movement of assets by a competent authority or court. The Union prohibits any change that would enable the use of the funds, this is not prescribed by the international definition. As already explained in paragraph 2.2 the different term used in regulation 2580/2001 does not have significant consequences since more or less the same group of persons and entities fall within the explanations of both the FATF and the EU. Still, the term any change is broad. Therefore the freezing sanction follows directly from the UN resolutions. So there is no room for judicial review.

2.4.2 Internal terrorists No Freezing! The Common Position makes a difference between listed persons and entities on the list and listed persons and entities on the list with an asterisk behind their name, the latter persons and entities are only subjected to article 4 of the Common Position. The Common Position contains an annex in which persons, groups and entities are listed. Several names in the annex are marked with an asterisk. According to the footnote names with an asterisk are only subjected to article 4 of the Common Position 2001/931/CFSP. The names marked with an asterisk are persons, groups or entities that are based within the European Union territory. This means that these terrorists are made in the European Union such as the ETA and the IRA.181 This also means that the Common Position makes a distinction between groups, entities, and persons within the European Union or outside the European Union (international terrorists). Due to the fact that the European names (for simplicity referred to as internal terrorists)182 only are subjected to article 4 means that there is no obligation for the Community to freeze funds or assets of these listed European names. It is said that this distinction is probably made because the wording article 301 TEC allows the

Council Regulation (EC) 2580/2001, 27 December 2001, Official Journal L 344/70, article 1 (2) and Council Regulation (EC) 881/2002, 27 May 2002, Official Journal L 139/9, article 1 (3). 180 Council Regulation (EC) 2580/2001, 27 December 2001, Official Journal L 344/70, article 1 (2) and Council Regulation (EC) 881/2002, 27 May 2002, Official Journal L 139/9, article 1 (3). 181 Tappeiner 2005, Utrecht Law Review vol 1 no 1 (2005) p. 107. 182 Cameron 2003, Human Rights Law Review Vol. 3 No. 2 (2003) p. 233. (the author uses the term EU internal terrorists for the European names on the list and EU external terrorists for the nonEuropean names. These terms are not officially used but are introduced by the author of the article.

179

36

freezing of funds or assets of third country nationals and that article 301 TEC does not allow the freezing of funds or assets of European nationals.183 Article 4 of the Common Position is directed to both internal and external terrorists. Terrorists with an asterisk behind their name are not sanctioned with a freezing of their assets and it is not prohibited to make funds, financial services and economic resources, indirectly or directly, available for the benefit of these persons. The European Union does not prescribe the freezing the assets of terrorists with an asterisk behind their name. However, resolution 1373 prescribes that states do have to freeze the assets of these persons. This means that the assets of persons and entities without an asterisk are frozen according regulation 2580/2001. The assets of persons and entities with an asterisk are frozen by member states themselves according to national legislation and the international definitions concerning freezing. As seen above the Union uses different definitions for the freezing sanction and because of these different definitions the freezing is executed differently since also financial services are frozen on EU level. This means that assets are not frozen differently. External terrorists are sanctioned by a freezing according to the freezing of assets definition of article 1 paragraph 2 of regulation 2580/2001. This definition is comparable to the international definition.184 Since the definition is not broader, a freezing according regulation 2580/2001 does not entail more than a freezing according to international standards. Internal terrorists are not sanctioned with a freezing prescribed by the European Union but with a freezing from member states. The member states of the European Union have implemented international standards, the Convention for the Suppression of terrorism and the FATF, into their national systems. However, there are also states that have adopted more terrorist legislation to stop the financing of terrorism than the FATF and the Convention. This means that in those counties internal terrorists but also external terrorists are sanctioned with a more radical freezing than in other countries. Financial services are not made available for the benefit of external terrorists according to the definition of regulation 2580/2001. Financial services are not made available for internal terrorist according to national law of member states. It is clear that the European Union prescribes less than the UN resolution since the European Union does not obligate the freezing of funds of
183

Cameron 2003, Human Rights Law Review Vol. 3 No. 2 (2003) p. 233.

37

internal terrorists. So there is no implementation of the freezing sanction for internal terrorists. However, the Union does prescribe an obligation for member states which affects internal terrorists. Article 4 of Common Position 2001/931/CFSP prescribes that member states have to provide each other the widest possible assistance in preventing and combating terrorist acts. This means for instance that member states have to exchange information concerning the listed persons and entities and this exchange of information has to be fast but also has to stay confidential.185 This means judicial and police co-operation and this is co-ordinated in the third pillar and to implement article 4 council decision 2003/48/JHA was adopted on basis of articles 30, 31 and 34 (2) (c) TEU. This decision obligates member states to co-operate with each other, and thus exchanging information on listed persons and entities, through the use of Europol and Eurojust.186 This obligation prescribed by the Common Position in article 4 also follows directly from UN resolution 1373. The resolution obligates states to assist each other in criminal investigations and proceedings.187 Next to this the resolution requests states to exchange information.188

2.5 Which persons and entities are sanctioned by the UN resolutions and the European measures?

2.5.1 Are the same persons and entities sanctioned by resolution 1267 and the implemented EU list? The list consists of names of persons and entities. Listed persons and entities are sanctioned and therefore it is important to know who exactly can get on this list. Resolution 1267 contains the obligation for the Sanctions Committee to create the list of persons and entities that are seen as directly or indirectly associated with the Taliban, Usama Bin Laden or Al-Qaeda.189 This list is based on the information
184

Http://www.fatf-gafi.org/dataoecd/45/19/34863009.PDF. Interpretative note to Special Recommendation III: Freezing and confiscating Terrorist assets. Paragraph 7 (a). (Consulted 9 march 2008). 185 Council Framework decision 2003/48/JHA of 19 December 2002, OJ European Communities 2003 L16/68, articles 2 and 3. 186 Cameron 2003, Human Rights Law Review Vol. 3 No. 2 (2003), p. 232. 187 UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001), paragraph 2 (f). 188 UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001), paragraph 3 (a and b). 189 UN Security Council Resolution 1333, 19 December 2000, S/RES/1333 (2000) Paragraphs 8(c) and 16(b).

38

provided by states or international and regional organisations.190 There is no need to actually take part in terrorist activities to be designated and to be sanctioned.191 This is mentioned in paragraph 4 (b), a persons that provides financial funds to a terrorist organisation is sanctioned even when the person does not take part in terrorist activities, as long as they are mentioned in the list. In order to effectively execute the sanctions, the list has to be updated regularly.192 In resolution 1617 it is stated that an entity or individual is connected to he Taliban, Al-Qaeda or Usama Bin Laden when it participates in planning, facilitating, preparing or perpetrating terrorist acts. Legal or natural persons are also seen as associates when they supply, sell, transfer arms to, recruit for or otherwise support acts or activities of the Taliban, Al-Qaeda or Usama Bin Laden.193 The term supporting act or activities194 is a broad prescription; it entails every activity that can be seen as a supportive activity to the Taliban, Al-Qaeda or Usama Bin Laden. It also means that the scope of the resolutions is large.195 It does not matter if the activity is performed wilfully, the only condition is that the activity has to be beneficial to the Taliban, Al-Qaeda or Usama Bin Laden. This does not mean that in case when a financial institution has the obligation to freeze assets of someone on the list of resolution 1267 and the institution does not execute this freezing, this institution can get listed. In those situations the financial institution can only get listed when it has ties with or if it is directly or indirectly associated with Bin Laden, Al-Qaeda or the Taliban. If there is no connection or association with Bin Laden, Al-Qaeda or the Taliban the financial institution has to be penalised and thus not listed.196 As resolution 1267 prescribes in paragraph 8 any person or entity that does not execute the imposed sanctions has to be penalised by the member state. Resolution 881/2002 also prescribes penalties for those who knowingly and intentionally in some way prevent to execute the freezing sanction. In article 2 of regulation 881/2002 it is stated that the funds and economical resources owned, held by or belonging to designated persons, entities and groups on
Guidelines of the Committee see supra note 21. International Monetary Fund 2003, p. 57. (can be found on https://www.internationalmonetaryfund.com/external/pubs/cat/longres.cfm?sk=16520.0) (Consulted on 24 November 2007). 192 The Thomas J. Watson Institute for International Studies, Targeted financial sanctions, 2001, p.6. 193 UN Security Council Resolution 1617, 29 July 2005, S/RES/1617 (2005), paragraph 2. 194 UN Security Council Resolution 1617, 29 July 2005, S/RES/1617 (2005), paragraph 2 (d). 195 Dewulf and Pacquee 2006, p. 617. 196 UN Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999), paragraph 8.
191 190

39

the list of 1267 have to be frozen. Next to this, listings and de-listings on the implemented European list have to be in accordance with the list of resolution 1267. When looking at the lists, both contain exactly the same persons, entities and groups. This means that the European Union sanctions the same persons as the United Nations does. The list and the de-listing decisions follow directly from the UN resolutions and are therefore not subjected to judicial review by the European Court of Justice.

2.5.2 Are the same persons and entities sanctioned by resolution 1373 and the EU autonomous list? The Common Position 2001/931/CFSP on the application of specific measures to combat terrorism has a delineated application field; its articles are only applicable to persons, groups and entities involved in terrorist acts and named in the Annex.
197

Solely persons or entities that fit this description and that are named in the Annex have to be sanctioned as prescribed by the Common Position. Resolution 1373 has given member states the discretion to list and to sanction.198 Member States are able to create their own list and effectively sanction the persons and entities that are involved in terrorist acts. Listing is necessary for an effective execution of the freezing sanction as prescribed by the resolution and therefore the European Union has adopted an autonomous list. The UN resolution obligates member states to prevent terrorist acts by sanctioning those who commit or intent to commit, participate or facilitate the commission of terrorist acts.199 This means that the resolution gives guidelines on who has to be sanctioned and thus has to be listed. So this means that the European Union does not have complete freedom to list and sanction. Member states themselves have the discretion to list and sanction according to the guidelines of the resolution. The Court of Fist Instance has stated in the OMPI case that the European institutions have the discretion to identify persons for the autonomous list.200 In those situations the European Community acts upon autonomous powers. The sanctions of UN resolution 1373 are not specifically directed to persons or entities. The resolution contains open-ended obligations and the sanctions are not

Council Common Position, 27 December 2001, 2001/931/CPSF, (1999) Official Journal No L 344/93, article 1 (1). 198 Http://www.fatf-gafi.org/dataoecd/53/32/34262136.pdf. FATF Interpretative note to Special Recommendation III: Freezing and Confiscating Terrorist assets. (Consulted 9 march 2008). 199 UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001) article 1 (d). 200 T-228/02 OMPI see supra note 54, paragraph 107.

197

40

directed at persons on a list.201 Resolution 1373 is not directed to the Taliban, Usama Bin Laden, Al-Qaeda and their associates; the resolution has no defined scope. The resolution does not mention to whom it is directed. According to the resolution it is up to the member states to decide who can be submitted to the sanctions.202 The freezing sanction of resolution 1373 is directed to perpetrators of terrorist acts.203 Member states themselves have the task to decide for instance when an act can be seen as a commission of a terrorist act. The European Union adopted a definition of terrorist acts. This definition differs from the standard international definition of a terrorist act.204 When comparing the definition of terrorist acts of the European Union to the standard international definition; there exists difference in the explaining of the term terrorist acts, but this has no significant consequence. Perpetrators of terrorist acts are those who commit, attempt to commit terrorist acts or help to prepare the commission of terrorist acts.205 Secondly entities controlled or owned by, directly or indirectly, the persons mentioned in the previous sentence and last persons acting on behalf of or under direction of the persons and entities mentioned before are applicable to the Common Position.206 Resolution 1373 uses the exact same definition. This definition used in Common Positions 2001/930/CFSP and 2001/931/CFSP directly follows from the UN resolution. When comparing article 1 of Common Position 2001/930/CFSP to article 2 paragraph 1 of the Convention for the Suppression on the Financing of Terrorism it becomes clear that both definitions are the same. Both definitions stipulate that persons or entities providing or collecting funds have to have the knowledge that these funds are to be used to carry out terrorist acts or with the intention that the funds should be used to carry out terrorist acts. Both articles state that the provision and collection has to be wilfully. This means that the autonomous list is directed to the same persons and entities as prescribed by the
The Gaduate Institute of international studies, National Implementation of United Nations Sanctions, ( a comparative study) volume 4 Leiden 2004, P. 19. 202 Http://www.state.gov/e/eeb/rls/rm/2005/57413.htm. Us department of State site international cooperation against the financing of terrorism ( click on Secretary for Economic, Energy and Agricultural Affairs > Bureau of Economic, Energy and Business Affairs > All Remarks and Releases > Remarks > 2005> 16 November 2005). (Consluted 5 January 2008). 203 Tappeiner 2005, Utrecht Law Review vol. 1 no. 1 (2005) p. 101. 204 Http://www.fatf-gafi.org/dataoecd/45/19/34863009.PDF. Interpretative note to Special Recommendation II: Criminalising the Financing of terrorism and associated money laundering. Paragraph 2(c) (ii). (Consulted 9 march 2008). 205 Council Common Position, 27 December 2001, 2001/931/CPSF, (1999) Official Journal No L 344/93, article 1 (2). 206 Council Common Position, 27 December 2001, 2001/931/CPSF, (1999) Official Journal No L 344/93, article 1 (2).
201

41

European Union. The Community lists the persons and entities that commit terrorist acts as prescribed in the resolutions. Therefore, there is no room for judicial review of the listing of entities and persons that commit terrorist acts. The European Union has adopted a separate article that prescribes the participation in terrorist activities. Article 1 (3) (k) of Common Position 2001/931/CFSP also mentions that participating in the activities of a terrorist group is marked as terrorist act. This means that financial institutions that participate in the activities of a terrorist group are able to get listed and do not fall under article 3 of regulation 2580/2001. Comparing article 1 (3) (k) of Common Position 2001/931/CFSP to article 5 (a) of the Convention for the Suppression on the Financing of terrorism it shows that the Common Position has a different definition of participating as an accomplice in terrorist offences. According to the Convention any person that participates in providing or collecting funds with the intention that these funds should be used or in the knowledge that they are to be used207 to carry out terrorist acts is an accomplice. The Common Position states that participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group208. This definition goes further that the definition of the Convention. The Convention solely states the provision or collection of funds. The Common Position also sanctions those that supply information or material resources. Next to this the Common Position does not prescribe that the collected or provided funds, supply of information or material resources have to be used for terrorist acts. The Common Position also sanctions the provision of funds that contribute to the criminal activities of the group. These criminal activities do not have to be terrorist acts. This means that the Common Position prescribes more than the Convention and therefore more persons and entities participating in carrying out terrorist acts as accomplices are sanctioned in the European Union due to the wider definition. Since more is prescribed in the Council Common Position, the European Community acts upon its own powers. Therefore article 1 (3) (k) of Common Position 2001/931/CFSP is subjected to judicial review of the European Court of Justice.
207 208

International Convention for the Suppression on the Financing of Terrorism (1999), article 2. Council Common Position, 27 December 2001, 2001/931/CPSF, (1999) Official Journal L 344/93, article 1 (3) (k).

42

Conclusion
When the UN adopted resolutions against terrorists, the European Union had to make these resolutions part of its aquis to avoid situations, in which members of the Union had to violate Union obligations to execute UN obligations. The European Union has a legal system where applicants can claim damages for their affected rights. The European Court of Justice has the competence to examine whether the Treaty Establishing the European Community and the Treaty on the European Union are executed correctly and that Community law is interpreted consistently. The European Union implemented resolution 1267. The European Union has implemented the list of resolution 1267. This implemented list is identical to the 1267 international list. Therefore this implemented list follows directly from the resolution. When comparing the freezing sanction of 1267 according to the Convention to the European implementation of the sanction (Common Position 2002/402/CFSP and regulation 881/2002) it shows that the European Union describes the sanction differently. However, the European Union does not prescribe more than the resolution does, which means that the same assets and funds are frozen Internationally and in the European Union. This means that the implemented sanction directly follows from resolution 1267. When comparing the international execution of travel ban sanction and the arms embargo sanction to the European execution it becomes clear that the European Union prescribes the sanctions similarly. At first glance it seems that the Union executes the sanction differently since internal border checks are abolished. However, borders can be re-installed on the basis of the public policy exception. This means that the travel ban and the arms embargo sanction are not being executed differently in the European Union. Therefore the sanctions follow directly from the resolution and are not based on autonomous powers. Resolution 1267 sanctions the same persons, entities and groups as the implemented European measures. The list of resolution 1267 and the implemented Union list both contain the same names of persons, groups and entities. Next to this, the European Union does not have the competence to autonomously decide upon a listing and de-listing; these always have to be in accordance with the list of 1267. So the names on the European implemented list follow directly from the list of resolution 1267.

43

The comparison between the UN measures against Taliban, Al-Qaeda, Bin Laden and their associates to the European measures against Taliban, Al-Qaeda, Bin Laden has shown that the European Union did directly implement the measures. The European Union does not prescribe more it its measures that the UN does. Therefore European measures specifically directed at the Taliban, Al-Qaeda, Bin Laden and their associates are not subjected to consider their validity to the European Court of Justice. The European Union also implemented resolution 1373 and adopted an autonomous list. This list does directly follow from the resolution since the resolution contains the obligation to sanction persons and entities and without a list it is impossible to execute individual sanctions. When comparing the freezing sanction of resolution 1373 to the freezing sanction as prescribed by the European Union it becomes clear that there are differences. However, the European Union does not prescribe for instance a more radical freezing that the resolution does. The European Union actually prescribes less since it fails to order the freezing sanction for internal terrorists. This means that the European Court of Justice does not have the competence to consider the validity of the European freezing sanction. However, in my opinion the European Court of Justice has the competence to consider the validity of the listing of the autonomous list. On the European autonomous list the Community has a lot of discretion to list persons, entities and groups. Common position 2001/931/CFSP gives a wider definition of participating in terrorist acts as accomplice, than international does. Therefore this definition and the decisions based on this definition do not directly follow from the UN resolution and have to be judicially reviewed by the European Court of Justice. So in my opinion the Union actually prescribes more than the UN and therefore European Court of Justice has the competence to review the validity of article 1 (3) (k) of Common Position 2001/931/CFSP. A possible consequence of this judicial review is that European Court of justice can decide that the identification of persons for the autonomous list is in violation with articles of the Union or Community treaty and declare the measure invalid. The autonomous list is necessary to execute the freezing sanction of 1373, so declaring the invalidity of listings would hamper the execution of the 1373 freezing sanction.

44

Literature List Articles

Phillipp Aust 2008 H. Philipp Aust, Between Self-assertion and Deference: European Courts and their assesment of UN Security Council Resolutions, Anuario Mexicano Derecho Internacional vol. VIII 2008 pp. 51-77. Available at http://www.bibliojuridica.org/estrev/pdf/derint/cont/8/art/art2.pdf. (Consulted 24 April 2008). Bowring 2007 B. Bowring, Terrorist: flag of convenience?, Socialist Lawyer April 2007 available at http://www.uel.ac.uk/chrc/documents/SL46_bowring.pdf.

Herik 2007 L. Herik, Security Councils Targeted Sanctions Regime: In Need of Better Protection of the Individual, Leiden Journal of International Law, Vol. 20 nr. 4 (2007), pp 797808. Bianchi 2006 A. Bianchi, Assessing the Effectiveness of the UN Security Councils Anti-terrorism Measures: The Quest For legitimacy and Cohesion, The European Journal of International Law Vol. 17 no. 5 (2006), pp. 881-919. Dewulf & Pacquee 2006 S. Dewulf & D. Pacquee, Protecting Human Rights in the War on Terror: Who is Controlling the Security Council? Challenging the Sanctions Regime Originating from Resolution 1267 (1999), Netherlands Quarterly for Human Rights (4) 2006, pp. 607-640. Frowein 2006 Dr. Dres. h.c. Jochen Abr. Frowein The UN Anti-terrorism administration and the rule of Law Common Values in International Law : Essays in Honour of Christian Tomuschat, Kehl [etc.] : Engel, 2006, pp. 785-795. Can be found on Http://ejp.icj.org/IMG/submissionFrowein.pdf. (Consulted 4 November 2007). Ooik & Wessel 2006 R. H. Ooik and R. A. Wessel, De Yusuf en Kadi uitspraken in een nieuw perspectief. Nieuwe verhoudingen in de interne en externe bevoegdheden van de Unie, SEWTijdschrift voor Europees en Economisch Recht (2006) vol. 6, pp. 231-242. Tappeiner 2005 I. Tappeiner, The fight against terrorism. The lists and the gaps, Utrecht Law Review, Vol. 1, No. 1 (2005), pp. 97-125.

45

Cameron 2003 I Cameron, European Union Anti-terrorist Blacklisting, Human Rights Law Review Vol. 3 No. 2 (2003), pp. 225-256. The Thomas J. Watson Institute for International Studies 2001 The Thomas J. Watson Jr. Institute for International Studies:Targeted Financial Sanctions, 2001. Norris 2000 Laura Norris, Arms Embargoes: Making sanctions smarter, the Ploughshares Monitor march 2000 volume 21 no. 1. Available at http://www.ploughshares.ca/libraries/monitor/monm00g.html. (consulted 30 April 2008).

Papers
Centre dtudes sur le droit international et la mondialisation 2007 Background paper centre dtudes sur le droit international et la mondialisation, Sanctions imposed by the Security Council under chapter VII and their implementation under national law, 2007 p. 5 and 6 available at: http://www.cedim.uqam.ca/files/CEDIM_Projets_EIRN_Resource%20Conference%2 02007_Sanctions%20Paper.pdf. (Consulted 5 June 2008). Nettesheim 2007, M. Nettesheim, UN Sanctions against Individuals- A Challenge to the Architecture of the European Union Governance, Walter Hallstein-Institut WHI- Paper 1/07 (2007).

Thorne 2006 K. Thorne, Terrorist Lists-A brief overview of lists and their sanctions in the US, UN, and Europe, HD centre working paper 2006, pp. 1-12. Available at http://www.hdcentre.org/files/Terroristlistsabriefoverview.pdf. HufBaurer & Oegg 2000 Paper by Gary Clyde Hufbauer, and Barbara Oegg, Peterson Institute, Targeted Sanctions: a policy alternative? 2000. Available at http://www.iie.com/publications/papers/paper.cfm?ResearchID=371. Case Law Segi/ Gestoras, admissability decision 23 May 2002, appl. No 6422/02, Reports of judgments and decisions 2002-V. Opinion of Advocate General (Poiares Maduro), 16 January 2008 in Case C-402/05, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities. Conclusion AG Maduro in case T-415/05, 23 January 2008, Al Barakaat International Foundation against the Council of the European Union and the Commission of the European Community. 46

European Court of First Instance CFI 7 June 2004, case T-338/02, SEGI association, Araitz Zubimendi Izaga and Aritza Galarraga [2007] ECR I-0000. CFI 21 September 2005, case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation [2005] ECR, II-3533. CFI 21 September 2005, case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II3639. CFI 12 July 2006, case T-253/02, Ayadi v. Council, [2006] ECR II-2139. CFI 12 December 2006, case T-228/02, Organisation des Modjahedines du Peuple de l'Iran (OMPI) v. Council of the European Union, [2006]ECR II-0000.

European Court of Justice ECJ 16 June 2005, case 105/03, Criminal proceedings against Maria Pupino [2005] ECR I-5285. ECJ 27 february 2007, case C-354/04, Gestoras Pro Amnista and others v. the Council, [2007] ECR I-0000, paragraphs 53 and 54. ECJ 26 november 2002, case C-100/01 Oteiza Olazabal, ECR 10981. ECJ 4 december 1974, case 41/74Yvonne van Duyn v Home Office, ECR 1337.

Books
The Graduate Institute of international studies 2004 A comparative study of The Graduate Institute of International Studies Geneva, National Implementation of United Nations Sanctions, Leiden 2004 volume 4. International Peace Institute 2004 A Project of the International Peace Institute (edited by David M. Malone), The UN Security Council, Lynne Rienner Publishers, 2004. Eijsbouts, Jans & Vogelaar 2004 W. T. Eijsbouts, Jans & J. H. Vogelaar, Europees Recht. Algemeen Deel, Groningen: Europa Law Publishing 2004. Craig & de Burca 2003 P. Craig & G. de Burca, EU Law: Text, Cases and Materials, Oxford University Press, USA third edition 2003.

47

Treaties
The Treaty establishing the European Community (1957) Treaty on the European Union (1992)

Resolutions
United Nations Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999). United Nations Security Council Resolution 1333, 19 December 2000, S/RES/1333 (2000). United Nations Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001). United Nations Security Council Resolution 1390 ,28 January 2002, S/RES/1390 (2002). United Nations Security Council Resolution 1617, 29 July 2005, S/RES/1617 (2005). United Nations Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006). United Nation Security Council Resolution 1735, 22 December 2006 S/RES/1735 (2006).

Conventions
Convention for the Suppression of the Financing of Terrorism (1999). Can be found on: Http://untreaty.un.org/English/Terrorism.asp (United Nations Treaty Collection).

Legislation
Council Common Position 2001/930/CFSP, 27 December 2001, Official Journal L 344/90. Common Position 2001/931/CFSP, 27 December 2001, Official Journal L 344/93. Council Common Position 2002/402/CFSP, (2002) Official Journal L 139/4. Council Regulation (EC) 2580/2001, 27 December 2001, Official Journal L 344/70. Council Regulation (EC) 881/2002, 27 May 2002, Official Journal L 139/9.

48

Council Framework decision 2003/48/JHA of 19 December 2002, OJ European Communities 2003 L16/68. Council Directive 2004/38/EC , 29 June 2004 , L. 229/35. Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II .

Internet Sites
Http://ec.europa.eu/justice_home/news/terrorism/documents/concl_council_21sep_en. pdf. (Consulted 5 June 2008). Http://europa.eu/scadplus/leg/en/lvb/l33208.htm. (To access go to http://europa.eu/scadplus and click on CFSP and click on Fight against terrorism and click on Freezing funds: list of terrorist and terrorist groups). (Consulted 4 November 2007).

Http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty 12.asp. (Consulted 5 June 2008). Http://www2.un.int/Countries/Bahrain/1090306423.pdf. Note verbal dated 15 March 2001 from the Permanent Mission of Bahrain to the United Nations addressed to the Committee (1267) 20 march 2001 (Consulted on 5 November 2007). Http://www.aeud.org/file/European_Arrest_Warrant.pdf. EU Framework decisions An Integral Part of National Law European Democratic Lawyers, Moritz v. Unger. Http://www.britannica.com/bps/topic/588371/terrorism#tab=active~checked%2Citem s~checked%3E%2Fbps%2Ftopic%2F588371%2Fterrorism&title=terrorism%20%20 Britannica%20Online%20Encyclopedia. Online encyclopaedia (Consulted 19 January 2008). Http://www.britannica.com/eb/article-217764/terrorism. (Consulted 2 march 2008). Http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/misc/95034.pdf (Consulted 5 November 2007). Council of the European Union, 29 June 2007, EU terrorist list adoption of new consolidated list.

Http://www.europa-eu-un.org/articles/en/article_3797_en.htm (Consulted 30 April 2008) Http://www.fatf-gafi.org/dataoecd/45/19/34863009.PDF. Interpretative note to Special Recommendation II: Criminalising the Financing of terrorism and associated money laundering. Paragraph 2(c) (ii). (Consulted 9 march 2008).

49

Http://www.fatf-gafi.org/dataoecd/53/32/34262136.pdf. Interpretative Note to Special Recommendation III: Freezing and Confiscating Terrorist Assets. (Consulted 6 February 2008). Http://www.fatfgafi.org/document/28/0,3343,en_32250379_32236930_33658140_1_1_1_1,00.html. Site of the FATF (click on 40 recommendations). Consulted on 30 April 2008. Http://www.fatfgafi.org/pages/0,2987,en_32250379_32235720_1_1_1_1_1,00.html. Site of the FATF (Consulted 24 November 2007) Http://www.fatf-gafi.org/pages/0,3417,en_32250379_32236869_1_1_1_1_1,00.html. Site of the FATF (click on about the FATF and click on members & observers). (Consulted on 30 April 2008). Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp1.pdf. (6 January 2008) Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. Site of International Monetary Fund 2003 Http://www.imf.org/external/pubs/nft/2003/SFTH/pdf/chp2.pdf. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003.Click on free full text, chapter 2. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003. (Consulted on 24 November 2007). Http://www.mb.utwente.nl/ces/research/other_publications_including_i/oratiewessel. pdf. Rede door A. Wessel, The Invasion by International Organizations De toenemende samenhang tussen de mondiale, Europese en nationale rechtsorde, 12 januari 2006. (Consulted 26 October 2007). Http://www.nti.org/e_research/official_docs/inventory/pdfs/finterr.pdf. Inventory of International Non-proliferation Organisations and Regimes Centre for Nonproliferation Studies. (Consulted 23 February 2008) Http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/1267%20S2005%20572.pdf. (Consulted 1 February) Security Council report of 9 September 2005, p. 34. Http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2294423/k.3920/Januar y_2007BRTarg eted_Sanctions_ListingDeListing_and_Due_Process.htm. ( go to www.securitycouncilreport.org click on the side map on Thematic and General Issues and click on Targeted Sanctions: Listing/ De-listing (January 2007). (consulted on 31 October 2007).

50

Http://www.state.gov/e/eeb/rls/rm/2005/57413.htm. Us department of State site international co-operation against the financing of terrorism ( click on Secretary for Economic, Energy and Agricultural Affairs > Bureau of Economic, Energy and Business Affairs > All Remarks and Releases > Remarks > 2005> 16 November 2005). ( 5 January 2008). Http://www.statewatch.org/news/2002/jan/refugee.pdf. (Go to www.statewatch.org click on observatories and click on Terrorist lists/proscription and go to January 2002 and click on EU agrees on first list of terrorists (Consulted 4 November 2007). Http://www.statewatch.org/terrorlists/listsbground.html . (Consulted 4 November 2007) Http://www.terrorism-research.com/history/. Online terrorism research International Terrorism and Security Research(Go to http://www.terrorism-research.com/ and click on History)(Consulted 21 February 2008). Http://www.un.org/aboutun/basicfacts/unorg.htm. (Home page of the UN, click on about the UN and click on basic facts) (Consulted on 18 January 2008). Http://untreaty.un.org/ilc/summaries/9_8.htm. Site of the International Law Commission Information sheet about diplomatic protection 30 November 2005 (extracts form, The International Law Commission, 6th edition volume 1. (Consulted 7 March 2008). UN document concerning experiences of the member states implementing the Taliban/ Al-Qaeda sanction measures can be found on: Http://www.un.org/sc/committees/1267/ExperiencesofMemberStates.pdf. (Consulted 28 January 2008) Document of the Monitoring Team 1267 (resolution 1735) about the implementation of the Taliban/ Al-Qaeda Measures, 28 June 2007. Http://www.un.org/sc/committees/1267/fact_sheet_travel_ban.shtml. Official site of the Security Council Committee of resolution 1267 (Consulted 29 January 2008). Http://www.un.org/sc/committees/1267/index.shtml and click on general information in the site map) (Consulted 6 march 2008). Http://www.un.org/sc/committees/1267/information.shtml Site of the Security Council Committee about general info on the work of the Committee. (go to p. 21 (6 January 2008). Http://www.un.org/sc/committees/1267/pdf/ArmsEmbargo.ExplanationTermsEng.pdf (6 January 2008). Document of the Committee explaining terms used in the resolutions. Http://www.un.org/sc/committees/1267/pdf/guidanc_en.pdf. Guidance for reports required of all States pursuant to paragraphs 6 and 12 of resolution 1455 (2003) from the Security Council Committee established pursuant to resolution 1267. (Consulted 6 June 2008).

51

Http://www.un.org/terrorism/securitycouncil.shtml. (Consulted 28 April 2008). Http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=337343. (Go to Http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&b=260414 and click on mobilizes .> advocacy centre> stay informed> fact sheets/ talking points> International Convention for the Supression of the Financing of Terrorism). Fact Sheet on the site of the United Nations Association of the United States of America about the Convention. (Consulted 30 May 2008). Http://www.watsoninstitute.org/project_detail.cfm?id=4. The Watson Institute for International Studies: Information Sheet about research project concerning targeted sanctions. (Consulted 27 April 2008).

Rapports of the United Nations Analytical Support and Sanctions Monitoring team Rapport (third) of the Analytical Support and Sanctions Monitoring team 9 September 2005, p. 21. Rapport (fourth) of the Analytical Support and Sanctions Monitoring team 10 march 2006, p. 21.

Report of the United Nations Monitoring Group Report of the United Nations Monitoring Group 1267, 20 September 2006. Guidelines of the Committee Guidelines of the Committee for the Conduct of its Work, adopted on 7 November 2002 and last amended on 12 February 2007, paragraph 6 (a). (The Guidelines can be found on www.un.org/terrorism and click on Security Council, then click on 1267 Committee and click on guidelines Committee. (Consulted 1 November 2007).

52

53