CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ TEN YEARS AND ONE HUNDRED OF REVIEWS OF THE UNITED NATIONS … the IDAQ sanctions list, and assisting the IDAQ Sanctions Committee in regularly reviewing names on the list. 8 The sanctions committees carry out a regular review of their sanctions list and deal with requests of individuals and entities seeking a delisting. With one exception – the IDAQ regime – the petitioners may submit requests for delisting in two ways: either to the Sanctions Committee through the State of nationality or residence, i.e. by “diplomatic channel”, or (without the involvement of the Member State) through the Focal point for delisting. The Focal point, established in 2006, is an administrative body (with no decision- making power) entrusted with receiving delisting requests from the petitioner and conveying them to reviewing governments and sanctions committees. 9 Unlike the Ombudsperson, the Focal point was not entrusted with independent authority to investigate and make recommendations to Sanctions Committees. 10 Consideration of delisting requests of individual petitioners lays fully in the hands of sanctions committees. However, since 2009 the IDAQ sanctions review mechanism includes the above-mentioned Office of the Ombudsperson. The Ombudsperson’s task is to receive delisting requests, communicate with the petitioner, forward the delisting request to the members of the committee and to relevant States (designating State, State of residence and nationality), and gather information for the assessment of the delisting request. Furthermore, the Ombudsperson shall draft a comprehensive report that summarizes all information relevant to the delisting request and presents the principal arguments concerning the delisting request. Originally, the mission of the Ombudsperson was completed and further decision-making about the delisting was exclusively handed down to the sanctions committee. In 2011 the role of the Ombudsperson was strengthened by the so-called ‘reverse consensus’ rule. The Ombudsperson’s delisting recommendation enters into force 60 days after that recommendation, “unless the Committee decides by consensus before the end of that 60-day period that the requirement shall remain in place with respect to that individual, group, undertaking or entity”. 11 The possibility to submit a delisting request to an impartial organ makes the formal situation of individuals and entities listed on the IDAQ list much better in comparison with the other regimes because they can rely on a predictable procedure and defined time framework. Deadlines are set for the three main phases of the delisting request consideration: 4 months (possible extension to 6 months) for the information gathering, 2 months (4 months) for the dialogue between the Ombudsperson and the petitioner, and 4 months for the IDAQ Sanctions Committee discussion, decision, and reasoning. 12 As aptly remarked by the European Court of Human Rights Judge Pinto de Albuquerque, the IDAQ Sanctions List is a “first-class” list; meanwhile, the others can be marked as “second-class” lists. 13 In the second class, neither a time-framed procedure nor dialogue phase are available to petitioners. 10 James Cockayne, Rebecca Brubaker and Nadeshda Jayakody, ‘Fairly Clear Risks: Protecting UN sanctions’ legitimacy and effectiveness through fair and clear procedures’ United Nations University (New York, March 2018) accessed 19 May 2019, p. viii. 11 UNSC 1989 (17 June 2011), UN Doc 1989 (2011), Annex II par. 12. 12 UNSC 2368 (20 July 2017), UN Doc 2368 (2017), Annex II. 13 Al-Dulimi and Montana Management Inc. v. Switzerland App no 5809/08 (ECtHR 21 June 2016) Grand Chamber, Concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal and Dedov, par. 24. 8 UNSC Res 2368 (20 July 2017) UN Doc S/RES/2368, Annex I. 9 UNSC Res 1730 (19 December 2006) UN Doc S/RES/1730.

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