So-called 'Magnitsky laws' in various jurisdictions are turning unilateral sanctions into normalised instruments for the international promotion of the rule of law. However, the considerable regulatory and executive flexibility introduced by these laws is at strain with the fundamental requirements of the rule of law, both domestically and internationally. Despite a growing literature on sanctions, a systematic and comparative assessment of Magnitsky laws against both the national and international requirements of the rule of law is still lacking. This paper offers a first comparative analysis of the compatibility of US, Canadian, UK, and Australian unilateral sanctions laws with the formal and procedural principles of the rule of law that constitute the common core of both its national and international notions. By analysing the formal aspects of the legal basis, design and application of these laws, our study identifies and conceptualises the legislative techniques that enable the normalisation of Magnitsky sanctions. We find that these techniques, which we name the 'generalisation' of sanctions laws, are not inherently incompatible with the rule of law, but so far national legislators have failed to ensure the right balance between the flexibility introduced by such techniques and the rigorous requirements of legality. The principled recommendations we propose based on our findings seek to help lawmakers around the world to strike the right balance between form and flexibility.
Shortly after the outbreak of the Syrian Civil War and the emergence of the so-called 'Islamic State', concerns mounted that individuals were travelling to the region to take part in the hostilities, before returning to their countries of origin having been trained to commit acts of terrorism. In response, the British Parliament enacted the Counter-Terrorism and Security Act 2015 which introduced temporary exclusion orders; a relatively unknown administrative power which temporarily bars an individual from returning to the UK, before allowing for their managed return subject to restrictions. Although this power has, to date, been scarcely utilised, the implications of the mechanism for the right to a fair trial are significant. Whilst the decision to impose the mechanism is subject to automatic judicial review, these proceedings can take place without the individual's knowledge or meaningful involvement due to the possibility of the review being heard in ex parte and in camera proceedings. Moreover, should the individual seek to challenge the Secretary of State's decisions, or any of the conditions imposed upon their return, they must wait until they have returned to the UK, where the proceedings are again likely to take place in closed conditions.
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