Splitting the Baby

Splitting the Baby This article examines the review of un Security Council resolutions by the European Court of Human Rights. Analysing recent decisions in the Nada and al-Dulimi cases against the background of the conclusion of the long-running Kadi saga, it builds upon the wealth of literature on the subject by proposing a theoretical basis for incidental review. It argues that the ECtHR directly review the lawfulness of an impugned resolution against a customary human rights standard, which would determine the applicability of Article 103 of the un Charter to displace those Convention rights that are not accepted in custom by modifying the Bosphorus doctrine of equivalent protection to one of ‘adequate protection’. It thereby argues that it is possible to compromise between what are at present diametrically polarised positions, thus transcending from the issue of the power to judicially review to that of the standard or intensity of review. It would thus become possible to not only embed the European Convention on Human Rights and the European Court of Human Rights in the wider legal system but also to increase bottom-up pressure to entrench the protection of basic human rights in un Security Council practice. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Organizations Law Review Brill

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Publisher
Brill
Copyright
© 2015 by Koninklijke Brill NV, Leiden, The Netherlands
Subject
Articles
ISSN
1572-3739
eISSN
1572-3747
DOI
10.1163/15723747-01201007
Publisher site
See Article on Publisher Site

Abstract

This article examines the review of un Security Council resolutions by the European Court of Human Rights. Analysing recent decisions in the Nada and al-Dulimi cases against the background of the conclusion of the long-running Kadi saga, it builds upon the wealth of literature on the subject by proposing a theoretical basis for incidental review. It argues that the ECtHR directly review the lawfulness of an impugned resolution against a customary human rights standard, which would determine the applicability of Article 103 of the un Charter to displace those Convention rights that are not accepted in custom by modifying the Bosphorus doctrine of equivalent protection to one of ‘adequate protection’. It thereby argues that it is possible to compromise between what are at present diametrically polarised positions, thus transcending from the issue of the power to judicially review to that of the standard or intensity of review. It would thus become possible to not only embed the European Convention on Human Rights and the European Court of Human Rights in the wider legal system but also to increase bottom-up pressure to entrench the protection of basic human rights in un Security Council practice.

Journal

International Organizations Law ReviewBrill

Published: Nov 20, 2015

Keywords: un Security Council; European Court of Human Rights; judicial review; targeted sanctions; human rights; equivalent protection

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