Abstract:
The United Nations Security Council regime of listing Al Qaida and Taliban terrorists under
Resolution 1267 (1999), as subsequently amended, has been subject to increasing criticism, including
through litigation and judicial pronouncements. The role of EU courts in voicing the criticism, and
quashing EU-level implementation measures of the sanctions required under the 1267 regime, has
become important. The authors assess the current status of the 1267 regime, notably after the adoption
of Resolution 1904 (2010) and the establishment of the office of a delisting Ombudsperson. In the
view of the authors, also after the reforms, the 1267 regime falls short of international or European
standards concerning fair trial or due process. After discussing the Kadi II ruling by the General Court
of the EU, the authors propose a political solution to the tension between the legal orders of the UN
and the EU, namely that those EU Member States that sit on the Security Council should block any
terrorist listing proposal, where the proposing state does not accept the disclosure of information used
for the listing decision in a manner that will enable the EU courts to exercise judicial review over the
implementation of the resulting sanctions, to a degree that will be acceptable to these courts. As to the
issue of the required degree of disclosure, the authors propose that EU courts, departing from the Kadi
II ruling by the General Court, should be prepared to accept a more modest degree of disclosure than
the sharing of all evidence with the listed individual or entity.
