Watchlists, human rights, and judicial politics

The Washington Post has a “story”:http://www.washingtonpost.com/wp-dyn/content/article/2008/03/18/AR2008031802971.html?hpid%3Dtopnews&sub=AR today on the problems of US terrorist watchlists. The emphasis of the story is on the nightmare that these lists generate for people who have names similar to those of people on the watchlist, and the difficulties that they have in getting off. There’s an interesting parallel debate happening in Europe at the moment, but it’s about a more profound question – are these terrorist lists, as they currently stand, a violation of human rights? And where there is disagreement over them, whose laws should apply?

This came to a head in January when one of the European Court of Justice’s Advocate-General issued his finding in the _Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities_ case. The Al Barakaat Foundation is on a UN terrorist watchlist, but hasn’t ever been charged with anything. It took a court case claiming that these two EU institutions had breached its fundamental rights by issuing a regulation that implemented the watchlists. The Advocate-General “found that”:http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-415/05%20P&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100

The appellant alleges that the contested regulation infringes a number of its fundamental rights and, on those grounds, seeks the annulment of that regulation. The respondents – in particular the Commission and the United Kingdom – argue that, to the extent that the contested regulation may interfere with the appellant’s fundamental rights, this is justified for reasons relating to the suppression of international terrorism. In this connection, they also argue that the Court should not apply normal standards of review, but instead should – in the light of the international security interests at stake – apply less stringent criteria for the protection of fundamental rights. … I disagree with the respondents.

In a sense, their argument is yet another expression of the belief that the present case concerns a ‘political question’ and that the Court, unlike the political institutions, is not in a position to deal adequately with such questions. The reason would be that the matters at issue are of international significance and any intervention of the Court might upset globally-coordinated efforts to combat terrorism. … the view that courts are ill equipped to determine which measures are appropriate to prevent international terrorism. The Security Council, in contrast, presumably has the expertise to make that determination. For these reasons, the respondents conclude that the Court should treat assessments made by the Security Council with the utmost deference and, if it does anything at all, should exercise a minimal review in respect of Community acts based on those assessments.

It is true that courts ought not to be institutionally blind. Thus, the Court should be mindful of the international context in which it operates and conscious of its limitations. It should be aware of the impact its rulings may have outside the confines of the Community. In an increasingly interdependent world, different legal orders will have to endeavour to accommodate each other’s jurisdictional claims. As a result, the Court cannot always assert a monopoly on determining how certain fundamental interests ought to be reconciled. It must, where possible, recognise the authority of institutions, such as the Security Council, that are established under a different legal order than its own and that are sometimes better placed to weigh those fundamental interests.

However, the Court cannot, in deference to the views of those institutions, turn its back on the fundamental values that lie at the basis of the Community legal order and which it has the duty to protect. Respect for other institutions is meaningful only if it can be built on a shared understanding of these values and on a mutual commitment to protect them. Consequently, in situations where the Community’s fundamental values are in the balance, the Court may be required to reassess, and possibly annul, measures adopted by the Community institutions, even when those measures reflect the wishes of the Security Council.

The fact that the measures at issue are intended to suppress international terrorism should not inhibit the Court from fulfilling its duty to preserve the rule of law. In doing so, rather than trespassing into the domain of politics, the Court is reaffirming the limits that the law imposes on certain political decisions. This is never an easy task, and, indeed, it is a great challenge for a court to apply wisdom in matters relating to the threat of terrorism. Yet, the same holds true for the political institutions. Especially in matters of public security, the political process is liable to become overly responsive to immediate popular concerns, leading the authorities to allay the anxieties of the many at the expense of the rights of a few.

There is no reason, therefore, for the Court to depart, in the present case, from its usual interpretation of the fundamental rights that have been invoked by the appellant. The only novel question is whether the concrete needs raised by the prevention of international terrorism justify restrictions on the fundamental rights of the appellant that would otherwise not be acceptable. … The problem facing the appellant is that its financial interests within the Community have been frozen for several years, without limit of time and in conditions where there appear to be no adequate means for the appellant to challenge the assertion that it is involved in supporting terrorism. The appellant has invoked the right to property, the right to be heard, and the right to effective judicial review. … Both the right to be heard and the right to effective judicial review constitute fundamental rights that form part of the general principles of Community law. …

The existence of a de‑listing procedure at the level of the United Nations offers no consolation in that regard. That procedure allows petitioners to submit a request to the Sanctions Committee or to their government for removal from the list. (52) Yet, the processing of that request is purely a matter of intergovernmental consultation. There is no obligation on the Sanctions Committee actually to take the views of the petitioner into account. Moreover, the de‑listing procedure does not provide even minimal access to the information on which the decision was based to include the petitioner in the list. In fact, access to such information is denied regardless of any substantiated claim as to the need to protect its confidentiality.

The right to effective judicial protection holds a prominent place in the firmament of fundamental rights. While certain limitations on that right might be permitted if there are other compelling interests, it is unacceptable in a democratic society to impair the very essence of that right. …ad there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order. However, no such mechanism currently exists.

It should be noted that the findings of the Advocate-General are _not_ binding on the European Court of Justice, although they predict the ECJ’s final decision about 80% of the time. A political scientist might reasonably predict that, given how controversial an affirmative ruling would be with powerful member states, the ECJ is likely to prefer discretion over valour, and issue a final judgment that disagrees with the Advocate-General. Here, however, is where it gets interesting. Very shortly before the Advocate-General issued its final ruling, Hans-Juergen Papier, the president of the German Federal Constitutional Court gave an interview¹ to _Der Spiegel_ where he seems to have deliberately fired a shot across the ECJ’s bows (my own rough translation of the relevant bits of Papier’s response follows).

Here, you’re really talking about a very sensitive issue that to my mind is unresolved. On the level of international law, the two poles of freedom and security have not yet been balanced. For example, the Security Council of the European Union has created a so-called Sanctions Committee. This committee has drawn up lists in which not only actual people, but also organizations are included, which have ties with the Taliban or Al Qaeda in the eyes of the sanctions committee. … If you are on such a terrorist list, you can basically do nothing about it.

… You can neither have access to credit, nor buy anything. … What is interesting is that the person who comes to be on such a list is neither told in advance, nor told the reasons why they will be on the list. The underlying evidence isn’t provided, and there is no effective legal protection.

… If something happens in Germany, it may be that the Federal Constitutional Court may take up these issues. … the Federal Constitutional Court has ruled that the Basic Law is protected against European law only so long as the equivalent of fundamental protection of human rights is ensured at the European level. This typically requires that individual rights are protected by independent courts with adequate powers of oversight and veto. That is missing here; the relevant resolutions of the Security Council offer no effective legal protections for those who are affected. Instead, one can try to take someone off the list through diplomatic channels.

I don’t think that it’s unfair to interpret this interview as a barely veiled threat to the ECJ. The German Basic Law – Germany’s constitution – is perhaps unique in that certain provisions governing human rights _cannot be amended under any circumstances_ (the historical reasons for this are obvious). This led to an obvious problem when the ECJ began to assert the effective supremacy of EU law – when EU law and the Basic Law come into conflict, which should win? The German Constitutional Court’s answer was, effectively, that as long as EU law respected basic human rights, it was not in conflict with the Basic Law, and therefore there wouldn’t be an issue. The political implication was that since the EU’s law didn’t trample on basic human rights, there wasn’t any problem, and we should let sleeping dogs lie. Papier is clearly suggesting that if the ECJ _doesn’t_ rule against the UN’s watchlists, he will push to re-open this question, and will happily entertain any case that allows him to do so, and to rule on the limits of EU law. If a majority of the Federal Constitutional Court were to go along with him (and I suspect that he wouldn’t have made so emphatic a statement if he didn’t think that the threat was credible), then the ECJ will find that a set of doctrines that it has devoted decades to building up will come under serious threat from the court system of the biggest member state. I don’t imagine that the ECJ will want to go there.

Thus, if I were a betting man, I would cautiously lay money on the ECJ affirming the Advocate-General’s report, despite the howls of protest that can be expected from the UK, France, and indeed the German interior ministry. I’ll forebear to speculate on the knock-on implications that this might have for the UN and international law, having little specific expertise in either – but if I’m right on the empirics above, I’ll certainly be interested to see what the fallout is.

¹ I can’t find this interview online – this “TAZ”:http://www.taz.de/nc/1/archiv/print-archiv/printressorts/digi-artikel/?ressort=au&dig=2008%2F01%2F24%2Fa0112&src=GI&cHash=3fac94bb87 piece talks about it in passing, and for those who have access to the print edition or to Lexis-Nexis, the article’s title is “Ohne Wenn und Aber” and it is in the Jan 14 issue of _Der Spiegel._