Although the Committee plays an important role in hearing and reporting on alleged human rights violations under the ICCPR, the fact that only those states that have signed the optional protocol allows an individual to bring to the committee attention alleged individual abuse in
362
ICCPR Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989.
363
Among others, a case concerning human rights violations in Uruguay where the Committee’s views simply fell onto deaf ears. See, Torkel Opshal in Philip Alston’s (Ed.), The United Nations and Human Rights, Ibid (n 314) 434-443.
the first place, that coupled with the fact that the Committee hands down a judgment without the power to make an offending state or organisation change its practice makes it less effective for the purposes of this study.
8 Other Treaty-based Communication Procedures
Other treaties have entered into force that are legally binding on States parties providing they are signatories to them; namely The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which came into force on 21 December 1965 and took effect on 4 January 1969, the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into effect on 3 January 1976, The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) entered into force on 3 September 1981, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT Convention) entered into force on 26 June 1987 and the Convention on the Rights of the Child (CRC), which came into force on 2 September 1990. Whilst these international treaties deal with human rights issues, none are relevant in the present study of individual or target sanctions and are not discussed further.
9 Conclusion
This chapter has demonstrated that the current procedures available to the individual under international law who wishes to bring a claim regarding a human rights issue are sadly lacking in any real enforcement mechanism with no ability to give effective just satisfaction that would provide a real legally binding remedy that could be pursued by an individual who wished to seek redress for inclusion on a sanctions list instigated by the UN.
The treaty bodies were not designed with that remit in mind. They do not possess the necessary quality and expertise of a court and have little experience in handing down judgements. Their membership is not made up from the judiciary but from a mixture of academics and specialists in their respective areas of competence.
Treaty bodies to date have no authority to examine the competence of the UN itself and in order to enable any such body to do so would require a new treaty signed by all members of the UN, even then should this be possible it would leave the treaty body likely to be in conflict with the UN through article 103 of the UN treaty discussed later.
The next chapter will begin to look at the proposal of an international judicial review or appeal mechanism capable of offering such a proposal within the bounds of international law. To begin with the concept of judicial review or appeal and human rights will be discussed and outlined as neither are by no means a universally accepted precept.
CHAPTER 6
JUDICIAL REVIEW AND HUMAN RIGHTS
1 Preliminary Remarks
As this study focusses on the lack of an effective judicial remedy currently available at the international level for those subjected to targeted sanctions by the United Nations it is necessary to examine at the outset the elements required for a judicial review to occur, this will be achieved from examination of various jurisdictions and deciding what constitutes a judicial review or appeal for the purposes of this thesis. Likewise there must be the same discussion surrounding what constitutes ‘human rights’ as this is itself a much contested issue. The starting point for this thesis is the Universal Declaration of Human Rights which has been accepted by most states and is the basis of most modern human rights documents. This last element will be considering some of the ideals and ideologies which underpin contemporary concepts of human rights throughout the world. The discussion in this chapter will be concluded with a brief explanation of what constitutes a violation of human rights. The subject of international judicial review, as a possible solution for the current problem, will be examined in detail later; this chapter will continue to use a comparative view as discussed in the methodology section of this thesis in order to obtain a wider assessment of the purpose of judicial review.
2 Judicial Review
Clive Lewis QC a barrister practising English Law, writing in the context of English common law, defined judicial review as:
“…the process by which the courts exercise a supervisory jurisdiction [or control] over the activities of public authorities in the field of public law”.364
This control is exercised primarily through the application for judicial review of regulations and policies made by those public authorities by individuals and entities who feel that the public authority has acted ultra vires. Lewis further emphasizes that judicial review jurisdiction only operates in the field of public law; and:
364
Clive Lewis, Judicial Remedies in Public Law. (2nd
[The] procedure is generally regarded as public law remedy. More accurately, the application for judicial review is a specialized procedure by which an applicant can seek one or more of the existing prerogative remedies which can now only be claimed by way of an application for judicial review and, in appropriate circumstances, declarations and injunctions and damages.365
Supperstone and Goudie, also writing in the context of English law, assert that “judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties.”366
In this connection, it is important to distinguish between application for judicial review and appeal, bearing in mind the suggestion of Ian McLeod that “appeal is a means of challenging a [court] decision, while [judicial] review is a means of challenging the way in which the decision was made.”367 Whilst this may be the case in UK law, it is not the case in EU law. However, it is important to distinguish between judicial review and judicial appeal, here it is explained as:
One major practical consequence of the distinction is that in the case of an appeal the appellate body is not only being asked to say whether the decision was right or wrong, but can also generally substitute its own decision. Whereas in the context of [judicial] review, the supervisory body is not called upon to say whether it agrees with the merits of the decision, and therefore, even if it upholds the challenge, it cannot substitute its own decision, compel it to be re-made in a lawful fashion, and make an order prohibiting future illegality.368
In the case Chief Constable of the North Wales Police v Evans, Lord Brightman expresses himself in similar vein:
Judicial review, as the words imply, is not an appeal from a [court] decision, but a review of the manner in which the decision was made. [It] is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of
365
Ibid n 364, 19
366
Michael Supperstone, & James Goudie, (Eds.). Judicial Review, (Butterworths: London 1992) 24.
367
Ian McLeod, Judicial Review. (Barry Rose: Chichester, 1993) 1.
368
the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.369
A United States-oriented definition of judicial review is put forward by Tate and Jackson in the book they edited, entitled “Comparative Judicial Review and Public Policy”. This book states that:
… Judicial review refers to the ability of a court to determine the acceptability of a given law or other official action on grounds of compatibility with constitutional forms.370
In relation to McLeod’s term “fashion”, the word “forms” refers to procedural matters and the substance or matter of the law. From this perspective, judicial review can be categorized into two major types, namely procedural and substantive judicial review. In the procedural review, the object of examination or review is the "fashion", the way or the procedure by which a decision or law was issued. Thus, it concerns itself with whether or not all the necessary formalities have been met. That is why this type of review is also called formal judicial review. The procedure by which the constitutionality and legality of the substance or the subject matter of the decision or law are tested is called substantive or material judicial review.371
Neal Tate goes even further when he divides judicial review into five different types: a. Constitutional and Administrative Review
b. Direct and Indirect Review
c. A Priori / A Posteriori and Abstract / Concrete Review d. Coerciveness of Review.372
In the aforementioned book, co-editor Neal Tate provides comprehensive explanations of these types of review, which can be summarised as follows:
369
Ibid (n 366) 24.
370
Donald Jackson, & N e a l Tate, (Eds.),, Comparative Judicial Review and Public Policy. Greenwood Press: (Westport 1992) 4.
371
A Bradley & K Ewing, Constitutional & Administrative law 15th Ed Pearson, (London, 2011) 67.
372
a. Constitutional review occurs when the courts are assigned to examine and to declare whether state laws, legislation and actions of government (including legislative and judicial agencies) are constitutional or unconstitutional. Administrative review occurs when the courts are assigned to examine and to declare whether the actions of
government agencies (other than the courts) are legally appropriate or not.
b. Direct review is basically the same as constitutional review, while indirect review occurs where, in the process of interpretation of laws; a court considers whether or not the issuing body or legislature actually has the legislative power it claims.
c. A priori / a posteriori review is an examination procedure exercised by the courts before (a priori) or after (a posteriori) laws or actions take effect. The former is identical to abstract, the latter to concrete.
d. Coerciveness of review was introduced by William Kitchin in 1990. This has to do with the effectiveness of the procedure. At one extreme, the ability of courts to declare official laws void on grounds of unconstitutionality is very limited (like in Indonesia); at the other extreme, the power of courts is unlimited (coercive). It is therefore important to determine in which instance the power of courts exercising judicial review may be coercive and those in which it may be advisory373.
For the purpose of the discussion in this thesis, which is mainly considering the actions of the UN Security Council, the assertion of Brewer-Carias’ that judicial review is “[the] power of court to decide upon the constitutionality of legislative acts; in other words, the judicial control of the constitutionality of [all] legislation”374
is particularly helpful.
Further detailed discussion of either procedural judicial review or the divisions mentioned above is outside the parameters of this study. This is because whilst most of the measures mentioned are primarily concerned with municipal law, this thesis will contend that they can be equally applied to both the State internally and externally and to international organisations in particular the United Nations but further discussion of the mechanics of
373
Jackson and Tate, ( n 370) 8.
374
Allan Brewer-Carias, Judicial Review in Comparative Law , Cambridge University Press (Cambridge, 1989) 4-8.
judicial review is academic. At present there is no legal concept of judicial review for actions of the Security Council! Consequently, the focus of this thesis is grounded in establishing that there should be a system in place to allow for such action.
It should be noted for sake of completeness that not all decisions or laws that are disliked by citizens or groups of citizens, are reviewable. Three main factors are used to decide whether aggrieved persons can challenge decisions: firstly, whether or not the particular body or agency that made the decision is the appropriate body to be subject to a review procedure, secondly, assuming that the body is appropriate and subject to review, whether or not it is possible to review the particular decision or law that is subject to complaint and thirdly, whether or not the person who is submitting application for review has locus standi to do so. Moreover, the procedural relevance for the applicant of answers to the above questions must also be considered. Must the applicant proceed in a particular way depending on whether or not review is available? What consequences are there for the applicant’s case, if, in challenging the decision in question, he or she uses a procedure deemed to be inappropriate by the court? Due to limited space, and in order to maintain a focussed discussion, these issues will not be dealt with in this thesis except in relation to the United Nations Security Council.375
In summary, judicial review is the procedure whereby the ‘court’ is able, in certain cases, with or without application, to review the legality (and constitutionality or in this case compliance with its own Charter) of legislation or decisions affecting an individual or entity made by a wide variety of bodies, ranging from internal, such as government or state institutions, ministers and officials exercising prerogative or statutory powers, and other powerful self-regulating bodies, to external, such as those rules now made by international organisations such as the United Nations.
This thesis will not consider every act or role of the United Nations but only those acts made by the Security Council that have taken on a quasi-legal significance; such as naming individuals and entities for inclusion on ‘smart’ or targeted’ sanctions lists. The judicial
375
For details on this subject matter, see, among others, Grahame Aldous & John Alder, Application for judicial Review: Law and Practice of the Crown Office, (2nd ed)., Buttersworth: London, 1998; Sue Arrowsmith, Government Procurement and Judicial Review, Carswell: Toronto, 1988; Stanley A. de Smith, Harry Woolf, A.P. LeSeur & Jeffrey Jowell (Eds.) Judicial Review of Administrative Action. (5thed)., Sweet & Maxwell London 1998; and C.T. Emery & B. Smythe Judicial Review: legal limits of official power. Sweet & Maxwell: London, 1988.
review aspect will consider whether the Security Council acted ultra vires of its own powers in taking on such a role and where pertinent, to mention within the context of this study, the compliance with human rights norms established under the UN Charter and the United Nations Universal Declaration of Human Rights.