As our readers are aware, currently pending before the Grand Chamber of the European Court of Human Rights is the fascinating case of Nada v. Switzerland. It concerns an Italian national resident in the Italian enclave of Campione in Switzerland, who was placed at Switzerland’s request on a terrorist suspect list by the UNSCR 1267 Committee, and subjected to targeted sanctions. Among these sanctions is a travel ban that Switzerland implemented through its domestic legal mechanisms. Accordingly, the applicant was denied permission to transit through Switzerland from Campione, thus rendering him unable to move even to other parts of Italy, let alone anywhere else, essentially confining him to the (rather posh and casino-filled) 1.6 square km of Campione. Mr Nada complains that the Swiss travel ban violates his rights under Arts. 5 (liberty of person) and 8 (private life) of the ECHR.
As Dapo explained in his earlier post, this is one in a series of recent cases dealing with the impact of the UNSC terrorist sanctions regime on human rights, such as OMPI, Kadi I and Kadi II before EU courts (see Antonios’s recent post) or Sayadi before the Human Rights Committee, implicating the supremacy clause in Art. 103 of the UN Charter, pursuant to which UN member states’ obligations under the Charter (including UNSC resolutions) prevail over conflicting obligations under other international agreements. Also currently pending before the ECtHR Grand Chamber is the Al-Jedda case, directly dealing with the interaction between the ECHR and Art. 103 of the Charter, with the UK House of Lords previously explicitly holding that the Security Council can override the Art. 5 ECHR ban on preventive detention.
Nada, like Al-Jedda, presents a situation of apparent norm conflict. On the one hand, the UNSC commands Switzerland not to allow Mr Nada to travel; on the other, the ECHR (arguably) commands Switzerland to let Mr Nada through. In my article ‘Norm Conflict in International Law: Whither Human Rights?,’ (2009) 20 Duke Journal of Comparative & International Law 69 I examine several different approaches for avoiding or resolving such norm conflicts. In effect, when addressing the apparent norm conflict in Nada the European Court will have before it a menu of several different options, and we will see which one it chooses. I would now like to outline some of these options – though of the course the Court might come up with something completely new.
The first impulse in practically all cases of apparent norm conflict is to avoid the conflict through (harmonious) interpretation, usually by reading down the content of one of the conflicting norms so that the danger of conflict is no longer real. That reading down can be consistent with the text and object and purpose of a particular norm, or can range down from the more creative interpretative approaches up to the quite forcible limitation of the particular norm. Generally speaking, the more forcible the interpretation, the more it looks like legislation and the less legitimate a route for a court to take. In our specific example of Mr Nada, the Court could read down either the ECHR or the relevant UNSC resolutions. If avoidance is impossible, the conflict may (but also might not) be resolved through the application of a hierarchical or hierarchy-like rule. Some conflicts may be both unavoidable and unresolvable.
(Warning! long post).