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

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B. Fassbender, Targeted Sanctions and Due Process 8 ______________________________________________________________________________________________ 12. While the circumstances and modalities of particular sanctions regimes may require certain adjustments or exceptions, the rights of due process, or “fair and clear procedures”, to be guaranteed by the Security Council in the case of sanctions imposed on individuals and “entities” under Chapter VII of the UN Charter should include the following elements: (a) the right of a person or entity against whom measures have been taken to be informed about those measures by the Council, as soon as this is possible without thwarting their purpose; (b) the right of such a person or entity to be heard by the Council, or a subsidiary body, within a reasonable time; (c) the right of such a person or entity of being advised and represented in his or her dealings with the Council; (d) the right of such a person or entity to an effective remedy against an individual measure before an impartial institution or body previously established.
B. Fassbender, Targeted Sanctions and Due Process 9 ______________________________________________________________________________________________ D. Comments and explanations 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. 1.1 Principles of due process, or fair trial, are fundamental to the protection of human rights. 9 Such rights can only be protected and enforced if the citizen has recourse to courts, tribunals or other impartial institutions which enjoy a sufficient measure of independence from the governmental or administrative organs of a State, and which resolve disputes in accordance with fair procedures. The fairness of the legal process has a particular significance in criminal cases. It appears that it was in that context that principles of a fair trial were first developed, and both older constitutions of States and international human rights treaties focus on standards of fairness in criminal proceedings. However, due process rights must also be secured in other proceedings which deal with disputes between citizen and state, or in which civil rights and obligations of a person are determined. As by two English human rights lawyers remarked, “the protection of procedural due process is not, in itself, sufficient to protect against human rights abuses but it is the foundation stone for ‘substantive protection’ against state power”. 10 1.2 One of the earliest and most well known provisions is to be found in the Fifth Amendment to the Constitution of the United States of America, adopted in 1791: “No person shall … be deprived of life, liberty, or property, without due process of law”. 11 These procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary government action. 12 The Sixth Amendment to the US Constitution includes the provision that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, and it elaborates the essential elements of such a trial. 1.3 In 1948, due process rights were for the first time universally recognized. Article 10 of the Universal Declaration of Human Rights provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Article 11 9 For this and the following, see Richard Clayton & Hugh Tomlinson, The Law of Human Rights, Oxford: Oxford University Press, 2000, at p. 550. 10 See Clayton & Tomlinson, ibidem. 11 For the full text of the Amendment, see infra, part F.IV.7. 12 See Laurence H. Tribe, American Constitutional Law, 2 nd ed., Mineola, NY: Foundation Press, 1988, at p. 664. See also John V. Orth, Due Process of Law: A Brief History, Lawrence, Kansas: University Press of Kansas, 2003.
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