The Policy Effects of the Decisions of European Courts on Targeted Sanctions

Abstract This chapter examines the policy effects of decisions by European courts on Security Council targeted sanctions as regards the two concerns that triggered their judicial responses, namely due process reform and genuine realization of human rights. This consequentialist assessment argues that a more Herculean form of judicial activism, as seen in Kadi II before the Court of Justice of the European Union (CJEU), cannot alone uphold human rights and may be counterproductive to the Security Council reform process. This submission suggests that a form of judicial restraint as exercised by the European Court of Human Rights (ECtHR or Strasbourg Court) in Al-Dulimi may prove to be more effective. In particular, the arbitrariness test introduced by the Strasbourg Court in that case with regard to Security Council measures may achieve two policy objectives. First, through a timely review by national courts of arbitrary listings it may encourage the realization of human rights. Second, by demanding that states secure appropriate evidence for listings, it may revitalize reform of the sanction decision-making process. These effects of Al-Dulimi are examined in the context of earlier engagement by national authorities with Security Council measures, including in the Sayadi and Vinck and Nada cases. Despite these consequences, this chapter warns of some limitations inherent in the approach applied by the Strasbourg Court in cases where national executives turn out to be uncooperative.