Un security council resolutions (domestic enforcement of)

• Author: International Law Group, PLLC
• Pages: 10-16

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Article 25 of the 1946 United Nations Charter (UNC) requires the United Kingdom, as a member of the UN to carry out resolutions of the Security Council (UNSC) in accordance with the Charter. It provides in part that: "The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." As a result, the UK promptly

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passed the United Nations Act of 1946 (UNA). Section 1 of the UNA authorized the issuance of Orders in Council (OIC) to make such provision as seemed "necessary or expedient" to enable the UK government to issue internal orders that would effectively carry out UNSC Resolutions.

In 2006, the UK Council - under the powers conferred by Section 1 of the 1946 UNA - issued the following OICs titled Terrorism (U. N. Measures) Order 2006 ... (TO) and the Al-Qaida and Taliban (U. N. Measures) Order 2006 (AQTO) ... to give effect to SCRs, including R. 1373 (2001). The SCRs aimed to suppress and prevent the financing and preparation of terrorist acts. They broadly provided for the freezing of the financial assets and economic resources - save for basic expenses - of designated persons under the Orders.

Article 4(1)(2) of the TO empowered the Treasury to decide that an individual was a Treasury designate if it had reasonable grounds for suspecting that the individual "is or may be" a person who committed, tried to commit, took part in, or helped bring about the commission of, terrorist acts. Article 3(1)(b) of the AQTO provided, inter alia, that persons on a list compiled by the UNSC sanctions committee were designates.

Pursuant to Article 4 of the TO, the Treasury made such a direction with respect to each of the three Applicants in the first case [A, K, and M] and the Applicant in the second case [G]. The Treasury also informed G that it had also designated him under Article 3(1)(b) of the AQTO. This Treasury action froze the Applicants' bank accounts and denied him and his family access to their assets - though they did obtain licences to go on receiving their social security benefits.

Applicants A, K, M, and G applied to the High Court under Article 5(4) of the TO to set aside these directions while G also sought judicial review of the AQTO. Holding that each Order was ultra vires of Section 1 of the 1946 Act, the judge quashed them and their directions as unlawful. The Treasury appealed.

The Court of Appeal allowed the Treasury's appeal in part. First, it held that the excision of the words "or may be" from the test of "reasonable suspicion" on which the Treasury had based its directions, preserved the validity of Article 4 of the TO. Secondly, it ruled that the challenged provisions of the AQTO were lawful, but that a person in G's situation had the right to seek judicial review of his designation.

Following that decision, G claimed a right to judicial review of the basis on which the sanctions committee had listed him and, in the alternative, sought an order quashing the AQTO. The judge declared that the AQTO, as a whole, was ultra vires as it applied to the Claimant. But the judge declined to quash it. Instead, it granted a certificate to enable the Treasury to proceed directly to the UK Supreme Court.

On the several appeals, three separate Supreme Court opinions agreed on quashing the Orders but relied on three distinct lines of reasoning for holding that the instant OICs were ultra vires: (1) that the relevant SCRs do not fall within the scope of the 1946 UN Act; (2) that the freezing orders violated rights protected by the European Convention on Human Rights; or (3) that the terms of the freezing orders fell outside the powers granted by the 1946 Act. Due to the cumulative length of the several fascinating opinions, the Update focuses on the first set to which three law Lords subscribed.

These Lords allowed the appeals of the Applicants(A, K, and M) in the first case. Briefly, they reasoned that, only express language or necessary implication could override fundamental rights. Thus, the general wording of § 1 of the UNA did not empower the executive branch to override the fundamental rights of these individuals. Moreover, UNSCR 1373 itself did not speak in terms of "reasonable suspicion" Thus, by introducing such a test, the TO went beyond what was necessary or expedient to comply with R 1373. Accordingly, these three court members would quash the TO as ultra vires of the powers conferred on the UK Council by Section 1 of the 1946 UN Act .

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In the second case involving G, the Supreme Court allowed the Applicant's appeal in part and the Treasury's appeal in part over one dissent. The Court held that the AQTO, in its effort to effectuate the regime mandated by the UN sanctions committee:

[1] failed to provide for basic procedural fairness, and [2] deprived those designated under it of the fundamental right of access to review by an effective judicial remedy. Accordingly, the Court quashed Article 3(1)(b)...