Достучаться до Совета Безопасности ООН: санкционные списки и обязательства государств по защите прав человека в решениях международных судебных и квазисудебных органов

Международное правосудие. 2017. № 1. С. 68–84.

Rusinova V.

The problem of relationship between obligations of states on implementation of the UN Security Council resolutions imposing individual sanctions and fulfillment of duties arising from international treaties on human rights is disclosed in this article through a prism of key decisions taken by international judicial and quasi-judicial bodies: decisions of the judicial organs of the European Union in the Kadi cases, views of the UN Human Rights Committee in Sayadi and judgments of the ECtHR in the Nada and Al-Dulimi cases. In all these decisions the bodies tried to escape application of Article 103 of the UN Charter, although there is a number of ways to allow concluding that the Security Council is bound not only by jus cogens norms, but also by norms related to fundamental human rights. Moreover, in the sphere of protection of this category of rights, the passing of responsibility between the UN as an international organization and its member states is hardly to be recognized as lawful. As to the test of “equivalent protection”, developed by the ECtHR, it could have served as an asset helping to combine responsibilities of both the organization and its member states, but it is aimed to solve more institutional, than substantive, problems. Finally, despite polyphony of the approaches applied by different bodies in the abovementioned decisions, it is possible to deduce a general pattern, which lies in recognition of a special nature of basic human rights. Basing on these grounds, the author comes to conclusion, that pluralistic picture of approaches taken by international judicial and quasi-judicial bodies does not rule out the systemic nature of contemporary international law, in which formation human rights norms play a pivotal role.

Keywords: права человека, санкции, Европейский Суд по правам человека, human rights, Комитет по правам человека ООН, European Court of Human Rights, Security Council, Совет Безопасности ООН, правовая коллизия, sanctions, Суд Европейского Союза, legal conflict, Court of the European Union, Human Rights Committee, fragmentation of International Law, фрагментация международного права