Blacklisting and Human Rights
After the nefarious attacks on New York's Twin Towers, the international community understood that in order to fight Islamic terrorism, international legal instruments had also to be geared to individuals, in addition to states. Cooperation in international law has worked on two fronts: prevention and repression.
Blacklisting is among the preventive measures laid out by the UN Security Council. These are lists compiled to single out physical and juridical persons that are suspected of financing terrrorists. UN member stares are legally constrained by Security Council resolutions, and are thus required to freeze the assets of the blacklisted subjects, so as to interrupt the financial flows benefiting terrorism. In Europe, between the Security Council resolutions and the single states lies the European Union, which, via an original legislative mechanism, issues the regulations implementing UN resolutions. EU jurisdictional organs, the Tribunal and the Court of Justice, have been repeatedly petitioned by blacklisted people who claim that they are not linked to terrorism and that blacklisting is illegal, since it violates fundamental principles of European and national law.
Black lists are compiled by the Sanctions Committee of the Security Council on the basis on information received from the intelligence services of the various member states. Blacklisted people and entities are suspected to finance terrorist activities and thus deprived of their full right to property. A blacklisted person does not have the right to petition directly the Security Council to obtain a revision of blacklisting decision. The delisting procedure can only be activated by a member state, and only after national enforcement occurs. Plaintiffs have invoked the existing EU right of petitioning against an act that is detrimental to one's positions and interests.
In its early decisions, the Tribunal attributed special status to Security Council blacklisting, thereby rendering it immune from controls of juridical legitimacy, arguing that international law is a stronger legal source and that gross violations of human rights had not taken place. The Court of Justice, which handles appeals (Kadi case, C-402/05) has conversely ruled that also the regulations implementing Security Council resolutions can be opposed in court and must respect human rights. The ruling of the European Court of Justice has an important systemic effect, because it affirms the autonomy of European law and reasserts the high standards of human rights protection existing in the EU. But it leaves a question unanswered: can blacklisting and preventive international legal tools be applicable to Europe?