SC – Open debate on the Al-Qaida and Taliban Sanctions Committee, the Counter-Terrorism Committee (CTC) and the Committee established pursuant to resolution 1540 (2004)
Personal remarks by the Permanent Representative of Austria, Ambassador Thomas Mayr-Harting
New York, 15 November 2010
Permit me to add a few words in my personal capacity about the most significant developments during the past two years of my chairmanship of the 1267 Committee:
(1) The comprehensive review of the Committee’s consolidated list pursuant to resolution 1822 (2008) was a groundbreaking and unprecedented step: It was the first time ever that a Sanctions Committee conducted such a thorough review. All 488 names were carefully scrutinized, 45 entries were deleted from the list. Some 60 delisting requests resulting from the review are still pending. About 270 list entries added in 2001 had never been reviewed since their listing.
However, despite these efforts, a number of problematic entries such as deceased people, defunct entities and entries lacking identifying information remain on the list. Therefore, additional reviews were introduced by resolution 1904:
> a review of deceased persons;
> a review of entries that lack identifiers; and
> the triennial comprehensive review of each name on the list.
In addition, the Committee recently agreed to conduct a specific review of entities that have ceased to exist, which goes beyond resolution 1904. This demonstrates that Committee Members are seriously engaged in improving the sanctions regime. With these upcoming reviews some list entries will be scrutinized by the Committee up to three times in the upcoming 2-3 years.
(2) The adoption of resolution 1904 (2009) and the appointment of Judge Kimberly Prost as Ombudsperson was undoubtedly the most significant step. Some have already judged her office before she had even started. In my view it is a matter of fairness towards the Ombudsperson to give her the necessary time to fulfill her mandate. Judge Prost took up her office at the beginning of July and has only recently started working on the first cases. I would like to reiterate the importance that all Member States fully cooperate with the Ombudsperson and provide her with all relevant information.
Much will depend on the handling of the first cases in practice. I am confident that Judge Prost will exercise her independent and impartial mandate in a very thorough and diligent manner. I am equally convinced that the Committee will attach full weight to her written reports. In practice, the rather artificial distinction drawn between “recommendations” and “observations” of the Ombudsperson will most likely prove to be irrelevant. Finally, given the fact that the Ombudsperson was appointed six months after adoption of resolution 1904, I would be very pleased to see Judge Prost’s mandate continue next June. The Council should also consider extending the mandate of the Ombudsperson to other sanctions regimes.
(3) Important progress has been achieved over the past two years to strengthen due process in the internal procedures and working methods of the Committee, which is evidenced by the adoption of revised Committee guidelines last July. Moreover, during the review of the list the Committee met almost 40 times over the last year to thoroughly discuss each list entry, which contributed to a new form and quality of communication, transparency and exchange of information within the Committee and dialogue with other Member States. This very positive effect will be further enhanced during the upcoming reviews.
As regards the decision-making of the Committee, I would like to share some thoughts on the principle of consensus, which some have criticized as giving the designating State a right to “veto” any delisting requestIt is obvious that this is a rather far reaching statement, since only a designating State that is a Member of the Security Council may participate in the decision-making. While it is true that the consensus rule applies to the decisions of all Sanctions Committees of the Security Council, it is often overlooked that paragraph 4 (a) of the Committee Guidelines expressly provides that if after consultations undertaken by the Chairman “consensus still cannot be reached, the matter may be submitted to the Security Council.”
Thus, even under the current procedures, any delisting request may be submitted to the Security Council for review and subsequent decision by majority rule pursuant to Article 27 of the Charter. Bearing this in mind, it would not seem a revolutionary step to adopt the same decision-making procedure as in the Security Council, i.e. majority voting, for delisting decisions of the Committee as well. It is also interesting to note, that in some instances, such as the granting of humanitarian exemptions pursuant to resolution 1452 (2002), the Committee takes decisions by so-called “negative consensus”, i.e. the consensus principle has been reversed by requiring the Committee to take a negative decision by consensus.
(4) Finally, the 1267 regime regarding Al-Qaida/Taliban has also been recently criticized that it was no longer a temporary emergency measure to address a specific threat, but an open-ended measure that was not limited in time or space. It is interesting to note that the Security Council has not adopted a consistent approach in this regard: While some country regimes, such as for DRC, are annually renewed, many targeted sanctions measures, including in Sudan, Somalia/Eritrea, DPRK and others are open-ended.
In the 1267 regime, however, the concerns regarding the open-ended nature of the measures are considerably mitigated by the reviews pursuant to resolution 1822 and 1904, which I have outlined above. At least every three years, each name on the list is thoroughly reviewed by the Committee, in some cases up to three times. If the procedure of these triennial reviews was changed to require a positive re-confirmation of each list entry under review, many of the above concerns would be satisfied. This adaption of the periodic review procedure would in fact have the same effect as the introduction of a time limit or “sunset clause” for the listings and would put an end to the recurring question whether the sanctions regime is punitive or preventive in nature.
I am confident that the Security Council and the Committee will continue to actively follow the developments and will continue to look for answers to the concerns raised. The upcoming resolution to extend the mandates of the Monitoring Team and the Ombudsperson in June 2011 will provide the next opportunity for the Security Council to take further steps in this important matter.