Introduction

Between Power and Process: Legal and Political Control over (Inter)national Security †

“…Smart sanctions are a new international regime to freeze assets 'on the basis of evidence that might not stand up in court … Because the funds would be frozen, not seized, the threshold of evidence [can]be lower and the net wider.' 53 Hovell's claim that 'courts are part of the problem' 54 comes under strain when we step back and consider the broader context in which the UNSCR 1267 regime operates.…”

“…109 This is because courts invalidating regulations implementing smart sanctions risk setting 'informal precedents' and 'opening up dangerous holes in the sanctions net.' 110 Hovell argues that courts should instead occupy a 'fertile middle ground' between the extremes of 'law creation and law enforcement, binding and non-binding law, judicial and political supremacy, and international and domestic legal orders.' 111 By contrast this author believes that binding domestic decisions should serve as demarcations of the outer limits of the space in which Hovell's pluralistic debate on the nature of fairness can take place, and of catalysing action on the international plane.…”

“…This is by no means fatal to Hovell's project of promoting a 'normatively rich' vision of fairness. 115 Instead, it is merely argued that we should see such binding rulings as a complement to the Ombudsperson procedure.…”

“…To this end, she expresses the concern that courts seized of judicial review would be 'to make difficult and largely unguided substantive choices among competing values'. 143 Judicial review of (inter)national security powers in the English legal system has come far since its nadir at the turn of the twentieth century, when it was 'at worst dismal, at best ambiguous.' 144 The definition of national security adopted by the English courts now recognises the challenge inherent in legally controlling an increasingly broad concept.…”