From Public International Law to International Public Law: A Comment on the “Public Authority” of International Institutions and the “Publicness” of their Law

Abstract

The entry onto a list of an individual or organization suspected of supporting international terrorism by a specialized sanctions committee of the UN Security Council and the effects thereon illustrate that the United Nations has the authority to take decisions which have consequences for individuals, such as travel bans and the seizing of financial assets. The difficulties in reversing a sanctions listing and the reluctance of the Court of First Instance of the European Communities to exercise jurisdiction have raised questions which sound familiar within a constitutional law context. The reason is that the sanctions are implemented like public international law in general, i.e. by a model in which decisions taken at an international level have to be transformed or adopted at the state or European Union level. The result is a lacuna with respect to the protection of fundamental rights: The United Nations has the authority to act, but offers no remedy. Member State courts dispose of the capacity to grant judicial protection, but feel restrained by UN law. This phenomenon illustrates a change in perspective. Targeted sanctions were introduced in the 1990s. They are more efficient than previous economic sanctions such as comprehensive trade embargoes which hit the population, but did not affect those responsible. The new sanctions type had been tested in sanctions against individuals from the former Yugoslavia, Haiti, Libya, Sudan, Angola and Sierra Leone before the Taliban and Al-Qaida sanctions system was set up. Even though they are, as a whole, less detrimental to human rights than other sanctions, individual rights violations, from a lawyer’s point of view, can be better traced back to a specific act and a responsible authority, and might thus have triggered expectations which had not been directed against the Security Council before. This perspective on the process is not exclusively one of public international law, but one of public law as well.