発表用資料若手人権問題研究会

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　　国際人権法若手合同セミナー 2013年 11 月 22 日(金)　於名古屋大学

「安全保障理事会決議に基づく対テロ制裁措置と人権規範の関係に関する一考察」(鈴木)

資料

1 Kadi v. Council of European Union and Commission of the European Communities (欧州第一審裁判所第二法廷、2005 年 9 月 21 日)

225. It must therefore be considered that the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law. On the contrary, the Court is bound, so far as possible, to interpret and apply that law in a manner compatible with the obligations of the Member States under the Charter of the United Nations.

2 Al-Jedda v. Secretary of State for Defence事件判決 (英国貴族院、2007 年 12 月 12 日) 35. [….] But the reference in article 103 to “any other international agreement” leaves no room for any excepted category, and such appears to be the consensus of learned opinion. [….].

39. [….] there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. [….] in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention. [….].

3 Kadi and Al Barakaat International Foundation v. Council of European Union and Commission of the European Communities事件判決(欧州司法裁判所大法廷、2008 年 9 月 3日)

290. It must therefore be considered whether, as the Court of First Instance held, as a result of the principles governing the relationship between the international legal order under the United Nations and the Community legal order, any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is in principle excluded, [….] , such review is a constitutional guarantee forming part of the very foundations of the Community.

308. That primacy at the level of Community law would not, however, extend to primary law, in particular to the general principles of which fundamental rights form part.

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4 Nabil Sayadi and Patricia Vinck v. Belgium 事件見解 (自由権規約委員会、2008 年 10 月 22 日)

7.2 [….] While the Committee could not consider alleged violations ofother instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party. [….].

10.6 [….] It is the duty of the Committee, as guarantor of the rights protected by the Covenant, to consider to what extent the obligations imposed on the State party by the Security Council resolutions may justify the infringement of the right to liberty of movement, which is protected by article 12 of the Covenant.

5 Al-Jedda v. the UK 事件判決　(欧州人権裁判所大法廷、2011 年 7 月 7 日)

76. [.…] the Court is mindful of the fact that it is not its role to seek to define authoritatively the meaning of provisions of the United Nations Charter and other international instruments. [….].

102. [….] the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. [….].

6 Nada v. Switzerland 事件判決 (欧州人権裁判所大法廷、2012 年 9 月 12 日)

172. [….] the above-mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that resolution.

7 European Commission, Council of the European Union and the United Kingdom v. Kadi (欧州連合司法裁判所大法廷、2013 年 7 月 18 日)

133. [….] despite the improvements added, in particular after the adoption of the contested regulation, the procedure for delisting and ex officio re-examination at UN level they do not provide to the person whose name is listed on the Sanctions Committee Consolidated List [….] the guarantee of effective judicial protection, [….].

134. The essence of effective judicial protection must be that it should enable the person 2

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concerned to obtain a declaration from a court, by means of a judgment ordering annulment whereby the contested measure is retroactively erased from the legal order and is deemed never to have existed, that the listing of his name, or the continued listing of his name, on the list concerned was vitiated by illegality, the recognition of which may re-establish the reputation of that person or constitute for him a form of reparation for the non-material harm he has suffered. [….].

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発 表 用 資 料 若手人権問題研究会

発表用資料若手人権問題研究会