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

B. Fassbender, Targeted Sanctions and Due Process
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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.