Judgment 5908/08 of the European Court of Human Rights of November 26 is a great success and step forward for access to justice: failing the availability of a judicial review in ECHR Member States implementing UN Security Council sanctions regimes to those blacklisted, the implementation of the sanctions are illegal under the ECHR. While this may seem obvious to anyone under common due process and access to justice principles guaranteed by most modern Constitutions, it actually took quite a struggle to get there. The Court’s reasons in the case at hand that a Member State may transfer some of its powers to a supranational organization, but under the requirement of an equivalent protection at the level of the supranational organization, is well affirmed in the Court’s case law. There was thus no reason to rule otherwise here. Dissenting judges expressed the opinion that article 103 of the UN Charter should have prevented the Court to hear the case, respectively that this should prevent the acknowledgment of a violation of article 6. All judges however concurred that there was a violation of article 6. In material terms, the judgment affirms the authority of the ECHR on Member States, and that it is not for the ECHR to suffer or take inference from treaty conflicts. Frankly speaking, the European Court of Human Rights could decently not have set a lower ground than the Court of Justice of the EU – a Court not dedicated to human rights – in Kadi. This would moreover have been appalling and defying justice and common sense, since the UN promotes human rights and access to justice in just the same terms than the ECHR. In political terms, does it undermine the sanctions mechanisms that judicial review of a listing takes place in ECHR Member States?

This argument was raised by Switzerland, France and Great Britain, the latter the two ECHR Member States simultaneously permanent UN Security Council Members. But achieving justice and due process never undermines anything. Not even over achieving security or fighting terrorism – as under Resolution 1267 but which was not involved here. It is the opposite. It is the enforceability of sanctions regimes non-compliant with article 6 on the ground of the precedence of article 103 which would have kept on undermining the credibility of the sanctions regimes and their level of acceptance by Member States. It was an argument defying common sense and damaging the human rights at stake – since promoted in the same material sense by the UN. It would have in the end just undermined human rights to say that the UN Charter imposes that sanctions regimes are not subject to judicial review – when the UN Charter at the same time requires that human rights be respected, thus including access to justice, in implementing sanctions regimes. So access to justice prevailed over, ultimately, schizophrenia and, overall, sheer bad faith. And Switzerland together with the UN Security Council undermined its sanctions regimes. Will the UN Security Council create equivalent protection mechanisms? While efforts were made under the pressure of this issue with respect to sanctions under Resolution 1267, the system is still not ECHR-compliant. It is doubtful that it will ever be. The UN Security Council repeatedly stated that it is a political organization. That is just fine – as long as it is just fine that judicial review takes place in Member States, which ultimately will reinforce the sanctions regimes rather than undermine them. But once again the judiciary was needed where the political failed to abide by human rights.