Birleşmiş Milletler Güvenlik Konseyi Bireye Yönelik Ekonomik Yaptırım Kararları ve İnsan Hakları İlişkisi
Ceren KaragözoğluBirleşmiş Milletler Şartı ile uluslararası barış ve güvenliğin korunmasında başlıca sorumluluk Güvenlik Konseyi’ne verilmiştir. Konsey’in bireye yönelik yaptırım kararları da bu esasa dayalı olarak ağır insan hakkı ihlalleri ve terörizmin önlenmesi odağında gerçekleştirilmektedir. Ancak bu kararların insan haklarına ilişkin yeterli koruma içermemesi çeşitli ihlallere sebep olmakta ve kararların hukuki sınırlarının belirlenmesi ve yargısal denetimi hususunda tartışmaların doğmasına sebebiyet vermektedir. Çalışmada ise Güvenlik Konseyi’nin bireye yönelik yaptırım kararlarının ortaya çıkan bu hukuki sorunlar üzerinden değerlendirilmesi amaçlanmıştır.
The Evaluation of United Nations Economic Sanctions Decisions in Terms of Human Rights Law
Ceren KaragözoğluThe Security Council has the primary responsibility for the maintenance of international peace and security. Targeted sanctions have been utilized by the Security Council to address the range of threats to international peace and security to counter terrorism, and protect human rights. However, the lack of adequate protection of human rights by these decisions causes various violations and leads to debates about the determination of the legal limits of decisions and judicial review. In this study, it is aimed to evaluate the targeted sanctions of the Security Council on these legal problems.
The United Nations Security Council has the primary responsibility for maintenance of international peace and security. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security (Article 39 UN Charter). According to Article 41 of the United Nations Charter, the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decision. These may include a complete or partial interruption of economic relations and rail, sea, air, postal telegraphic, radio and other means of communication and the severance of diplomatic relations. The sanctions list of Article 41 is not a closed list, but in practice, economic sanctions on the list are more frequently referred to than others. The policy of government-oriented economic sanctions has led to negative consequences on the civilian population. For this reason, the Council has started to take decisions on certain goods and products or responsible persons or organizations instead of taking comprehensive measures affecting everyone. While typically states are sanctioned, non-state entities and individuals have recently also become targets. United Nations Security Council has a wide margin apprecition to determine any situation contrary to international peace and security within the framework of Article 39. Targeted sanctions have been utilized by the Security Council to address the range of threats to international peace and security such as counter terrorism and the protection of human rights. Thus, the Security Council proposed to protect individual human rights and to reduce the negative impact of economic measures. However, there have been some problems as a result of the effective implementation of targeted sanctions. In recent practice, the most common sanctions are arms embargoes, targeted travel restrictions, the freezing of assets or funds and any sources of terror financing. These sanctions may affect the specific individual rights and freedoms, for instance free movement of people, property rights and the right to a fair trial as well as the right to an effective remedy. In this context, the lack of adequate protection of human rights poses various violations and leads to debates about the determination of the legal limits of decisions and judicial review. The Security Council has established Sancitons Commitees to list the names of the individuals or entities to be sanctioned. Guidelines on the working procedures of the committees are accepted. However, working guideline determined the working procedure of committees are neither clear nor fair. A judicial mechanism is not envisaged by which individuals or entities may apply for their removal from the list. The implementation of sanctions without granting these individuals the possibility of being heard or of challenging the measures taken against them, causes a violation of the right of access to court and the right to a fair trial. The procedure of listing and de-listing should be improved. Listed individuals and entities should be notified of the decision and the statement of the case. First of all, this issue is to a large extent discussed within the framework of the United Nations Charter. According to Article 24 (2) of the Charter, the Security Council is bound to act in accordance with the purposes and principles of the United Nations. The promotion of respect for human rights is one of the aims of the United Nations. Therefore the Charter must be interpreted with evolving human rights. Secondly, this issue is discussed within the framework of human rights conventions. The targeted sanctions do not contain sufficient guarantees for the protection of human rights. Especially, sanctions lack adequate guarantees under the right to a fair trial. That is why the implementation of sanctions causes a violation of the right of access to court and the right to a fair trial as well as the right to an effective remedy. In the United Nations system, a judicial review is not foreseen in order to ensure the control of the Security Council resolutions. The issue of judicial review of these sanctions both internationally and nationally arises as a problem. The domestic courts control within the framework of national regulations the implementation of the sanctions. This review is undoubtedly important in terms of fulfilling the fundamental rights and freedoms. However, the national authorities decide on the basis of the legislation they depend on. This situation may cause the decisions of the Council to move away from a uniform application and to appear in different ways. Therefore, a new and centralized control mechanism needs to be developed within the United Nations. The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. But at the same time, states have to comply with the provisions of the human rights conventions to which they are parties. At this point, the question of whether there should be a hierarchy between the obligations of the member States arising from Conventions regarding human rights and United Nations Charter are raised. However, it is accepted that obligations of Charter and human rights law should be interpreted in harmony without entering into any hierarchy discussion and the Security Council resolutions should be implemented in the light of human rights law by member states.
