Targeted Sanctions and Due Process - United Nations Treaty ...

B. Fassbender, Targeted Sanctions and Due Process
6
______________________________________________________________________________________________
C. Summary of findings
1. On the basis of constitutional and statutory rules and practices common to a great
number of States of all regions of the world, and as guaranteed by universal and regional
human rights instruments, rights of due process, or “fair trial rights”, have been generally
recognized in international law protecting individuals from arbitrary or unfair treatment by
State organs. Generally recognized due process rights include the right of every person to
be heard before an individual measure which would affect him or her adversely is taken,
and the right of a person claiming a violation of his or her rights and freedoms by a State
organ to an effective remedy before an impartial tribunal or authority. These rights can be
considered as part of the corpus of customary international law, and are also protected by
general principles of law in the meaning of Article 38, paragraph 1, lit. c, of the ICJ Statute.
2. The UN Security Council being a principal organ of the United Nations, a legal obligation
of the Council to comply with standards of due process, or “fair and clear procedures”,
for the benefit of individuals and “entities” presupposes that the United Nations, as
a subject of international law, is bound by respective rules of international law. In accordance
with the established system of sources of international law, the United Nations could
be obliged to observe such standards by virtue of international treaties (including the UN
Charter as the constitution of the United Nations), customary international law, or general
principles of law recognized by the members of the international community.
3. Since the United Nations is not a party to any universal or regional treaty for the protection
of human rights, it is not directly bound by the respective treaty provisions guaranteeing
rights of due process. The United Nations being an autonomous subject of international
law, it does not follow from the fact alone that its Member States have ratified certain
human rights instruments that an according obligation of the Organization has come
into existence.
4. However, the emergence of “supranational” organizations of the type of the European
Community has changed this traditional picture. The law of the European Community
(European Union) has made both human rights treaty obligations of EC (EU) Member
States as well as “constitutional traditions common to the Member States” sources of
Community (Union) law from which direct obligations of the Community (Union) itself
arise. There is good reason to expect that the law of other international organizations, including
the United Nations, will be increasingly influenced by that development as they,
too, begin to engage in “supranational” lawmaking with a direct effect on individuals.
5. At present, customary international law does not provide for sufficiently clear rules
which would oblige international (intergovernmental) organizations to observe standards
of due process vis-à-vis individuals. To the extent that rules of customary law exist with
respect to such standards, they address obligations of States in the sphere of domestic law,
and not obligations of international organizations. However, a trend can be perceived widening
the scope of customary law in regard to due process to include direct “governmental”
action of international organizations vis-à-vis individuals. To this development, the
law of the European Community (European Union) has strongly contributed.