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Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Published on September 25, 2012        Author: 

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the judgment appears to have continued a muddled and inconsistent line of cases dealing with the attribution to Member States and/or international organisations concerning conduct pursuant to UN Security Council resolutions or other joint operations under the aegis of an international organisation such as NATO or the EU (e.g. – Bosphorus v. Ireland, Behrami and Saramati v. France and others, Beric v. Bosnia and Herzegovina, Al-Jedda v. United Kingdom, Al-Skeini v. United Kingdom, Bankovic v. Belgium and others).  Of course, the rules of attribution for international organisations remain nebulous and a delicate work in progress but the Court’s handling could be improved. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

The respondent argued that the application was inadmissible ratione personae and ratione materiae because the impugned measures had been based upon Security Council Resolutions 1267 (1999) et seq. which, per Articles 25 and 103 of the UN Charter, were binding and prevailed over any international agreement. This argument, and even more so that of France as intervener, used both ‘hierarchy of norms’ and ‘attribution’ language. On the one hand, obligations emanating from Security Council resolutions displace obligations arising under the Convention by virtue of Articles 25(2) and 103 of the Charter (cf. Lockerbie). On this approach, there could have been no infringement of Convention rights because those rights were displaced with respect to this applicant. On the other hand, the same obligations arising out of the resolutions rendered the alleged infringement of the applicant’s Convention rights attributable to the UN and thus, per the ‘Monetary Gold principle’, inadmissible ratione personae before the Court. This was the outcome of the much-criticised Behrami and Saramati decision.

The Court’s analysis (at paras 117-123) appears to skirt the problem of attribution. Read the rest of this entry…

 
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