European Court Decides Nada v. Switzerland

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As announced, the Grand Chamber’s judgment in Nada v. Switzerland, no. 10593/08 is available here. I can’t blog about it more extensively as I’m in Valencia right now for the ESIL conference, but the gist of the judgment is as a follows:

1) The applicant wins, on relatively narrow grounds under Article 8, and more broadly under Article 13 of the Convention. When examining Article 8, the Court engages in its assessment of the relationship between the ECHR and state obligations under the UN Charter, specifically UNSC resolution, and the effect of the supremacy clause in Article 103 of the Charter.

2) In that regard, the Court quite correctly finds that while the applicant’s listing by the Sanctions Committee of the UNSC was attributable to the UN, the implementation of the sanctions by Switzerland was attributable to Swtizerland itself (para. 121). The Court then finds (para. 122) that:

The measures in issue were therefore taken in the exercise by Switzerland of its “jurisdiction” within the meaning of Article 1 of the Convention. The impugned acts and omissions are thus capable of engaging the respondent State’s responsibility under the Convention. It also follows that the Court has jurisdiction ratione personae to entertain the present application.

Note that the Court here skirts the non-obvious question of the ECHR’s extraterritorial application (a point that as far as I am aware was not argued by the respondent government). That the implementation of the travel ban imposed against the applicant and Switzerland’s decision to deny him access to Swiss territory in order to leave the 1.6 sq km Italian enclave of Campione were undoubtedly attributable to Switzerland does not ipso facto entail that the applicant had rights vis-a-vis Switzerland under the Convention; the former is an issue of attribution of conduct, the latter of the threshold criterion for the existence of a legal obligation. The Court does not explain under what theory exactly the applicant had rights against Switzerland even though he does not live in Switzerland proper, nor how its position is to be squared with its prior case law on the matter (cf. Bankovic in particular, Al-Skeini notwithstanding).

3) The Court finds Article 8 of the Convention to be engaged on the facts (para. 154), and that it has been interfered with. It also finds that the state’s obligations under the Convention and under UNSC resolutions are in apparent conflict, and that the first order question is whether this conflict can be avoid through the harmonious interpretation of these possibly competing obligations (para. 170):

When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi, cited above, § 126; Al-Adsani, cited above, § 55; and the Banković decision, cited above, §§ 55-57; see also the references cited in the ILC study group’s report entitled “Fragmentation of international law: difficulties arising from the diversification and expansion of international law”, paragraph 81 above).

4) In that regard, the Court finds that on the facts of the case it cannot employ the Al-Jedda interpretative presumption that UNSC resolutions should not presumed as derogating from human rights absent reasonably explicit language to the contrary (on which see more here, here and here), because the Council’s decisions were in fact explicit (para. 172):

The Grand Chamber confirms those principles. However, in the present case it observes that, contrary to the situation in Al-Jedda, where the wording of the resolution at issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, 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 (see also paragraph 7 of Resolution 1267 (1999), paragraph 70 above, in which the Security Council was even more explicit in setting aside any other international obligations that might be incompatible with the resolution).

5) In assessing whether the sanctions taken were contrary to Article 8, the Court finds them to have a sufficent legal basis and to have pursued a legitimate aim, with the key issue being whether they were necessary in a democratic society. In that regard, the Court finds (para. 180) that ‘Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the UN Security Council.’  The Court’s reasoning on this point is rather dubious, with what exactly Switzerland’s latitude was being unclear, and with the relevance of this point for the Court’s ultimate result being even more unclear. In their joint concurrence judges Bratza, Nicaloau and Yudkivska rightly criticize the majority in that regard.

6) The Court then proceeds to find that the measures taken by Switzerland were not proportionate, essentially on two grounds. First, in para. 188 the Court points out that:

In this connection the Court is surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005 (see paragraph 61 above). Observing, however, that the veracity of this allegation has not been disputed by the Government, and without any explanation having been given by the latter for such delay, the Court finds that a more prompt communication of the investigative authorities’ conclusions might have led to the deletion of the applicant’s name from the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8 (see, in this connection, Sayadi and Vinck (Human Rights Committee), § 12, paragraphs 88-92 above).

Second, the Court emphasized the personal, especially medical, circumstances of the applicant’s situation, and that (paras. 195-196):

the Swiss authorities did not sufficiently take into account the realities of the case, especially the unique geographical situation of Campione d’Italia, the considerable duration of the measures imposed or the applicant’s nationality, age and health. It further finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order should have allowed some alleviation of the sanctions regime applicable to the applicant, having regard to those realities, in order to avoid interference with his private and family life, without however circumventing the binding nature of the relevant resolutions or compliance with the sanctions provided for therein. … the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation.

In short, the Court found that Switzerland could have done more to alleviate the applicant’s situation even within the scope of the relevant UNSC resolutions. In effect, the Court somewhat furtively interpreted these resolutions as allowing for such remedial measures even though it had previously decided not to rely on the Al-Jedda presumption – it has in fact read down the UNSC resolutions.

7)  Consequently, the norm conflict between the ECHR and the relevant UNSC resolutions was avoidable through harmonious interpretation, and there was no need to resort to Article 103 of the Charter as a method for resolving the norm conflict (para. 197):

That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent.

Note how the Court, as in Al-Jedda, quite deftly avoided saying whether it considered that UNSC resolutions could, in principle, displace the ECHR by virtue of Article 103 – that issue is stil left open, and the Court has not pulled a Kadi (at least not yet).

8) On these rather narrow grounds the Court thus found a violation of Article 8. But it was rather more expansive when it came to Article 13, where it did work some Kadi magic (paras. 212-213):

The Court would further refer to the finding of the CJEC that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” (see the Kadi judgment of the CJEC, § 299, see paragraph 86 above). The Court is of the opinion that the same reasoning must be applied, mutatis mutandis, to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those resolutions.

Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above).

Note how the second paragraph quoted here directly contradicts the first. The applicant’s removal from the domestic list by Swiss authorites would inevitably lead to non-compliance with the UNSC resolution and the listing done by the UNSC Sanctions Committee. In effect the Court seems to be saying here that states have the obligation to enforce domestic human rights guarantees even if this would lead to their non-compliance with UNSC resolutions, in effect by relying on theKadiseparation between the domestic and international legal orders. But it is not clear to me how that result, good or bad, can be deduced from Article 13 ECHR, which depends on an arguable violation of the Convention, which in turn depends on the relationship between the Convention and UNSC resolutions and the whole Article 103 issue that the Court had avoided.

9) The final point of general interest the Court’s finding that the applicant’s confinement to the 1,6 sq km of Campione did not constitute a deprivation of liberty under Article 5 ECHR (para. 227-234).

To conclude, Nada is a very important case, but not as important as it could have been. The Court’s ruling was quite narrowly tailored to the very specific facts of the case. The Article 103 issue is left open. The potentially farthest reaching, but also the least clear, is its Kadi-like ruling under Article 13. (For more commentary, see also this excellent post by Tobias Thienel).

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Arman Sarvarian says

September 23, 2012

Dear Marko,

Thank you very much for this excellent summary. One of the many interesting issues raised by the judgment is attribution of responsibility (your point 2). I would like to offer a few thoughts on the handling of attribution of responsibility by the Court. In my view, the Nada 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.

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. The Court distinguished Behrami on the ground that in that case the UN through UNMIK had delegated its powers to the participating States in KFOR whereas the respective resolutions in the instant case ‘required States to act in their own names and to implement them at national level’ (para. 120). According to the Court, this renders the case analogous to Bosphorus. There, of course, the Court's approach to attribution radically differed from Behrami by focusing upon the factual commission of the act rather than the Security Council resolution and implementing EC Regulation as sources of Ireland's obligation to impound the aircraft (see paras 135-138 of Bosphorus).

As in Bosphorus, the Court took Article 1 of the Convention as its starting-point. Although the phrase 'within their jurisdiction' in Article 1 defines the scope of Convention obligations, it is not seemingly relevant to attribution. In the language of the ILC texts, Article 1 relates to 'breach'. Conduct may be attributable to the Member States but not breach the Convention due to the applicability limitations imposed by Article 1 (e.g. - Bankovic where the attribution issue was not decided by the Court but where France had alone amongst the respondents argued (see paras 31-32 of that judgment as well as the Legality of the Use of Force cases) that the impugned conduct was attributable to NATO). Consequently, in the absence of Convention provisions on attribution, it is less than clear why the International Law Commission Draft Articles on the Responsibility of International Organizations ('DARIO') were material in both Behrami and Al-Jedda but not in Nada when all three cases concerned conduct pursuant to Security Council resolutions arguably attributable to the UN.

Attribution is considerably more complex than the judgment suggests. When the Security Council obliges Member States to act, are the actions taken pursuant to those obligations attributable to the UN? The Commentary to Draft Article 15 DARIO raises this possibility:

'In the relations between an international organization and its member States and international organizations the concept of “direction and control” could conceivably be extended so as to encompass cases in which an international organization takes a decision binding its members…[i]f one interprets the provision in light of the passages [from the Commentary to Article 17 ASR] quoted above, the adoption of a binding decision on the part of an international organization could constitute, under certain circumstances, a form of direction or control in the commission of an internationally wrongful act. The assumption is that the State or international organization which is the addressee of the decision is not given discretion to carry out conduct that, while complying with the decision, would not constitute an internationally wrongful act.'

This resembles the ‘ultimate control and authority’ test that the Court formulated in Behrami, which focuses not upon the commission of the act but rather upon the authority to do so. The approach fails, however, to distinguish the legislation of the obligation from its implementation. These may be viewed as discrete acts, each attributable to a different legal person, or as elements of a composite act (cf. Draft Art. 13 DARIO) with jointly responsible persons. Whilst the Court implicitly edged away from the Behrami test in Al-Jedda following the parties' agreement upon the applicability of the 'effective control' test (see para. 84 of that judgment), the principles of attribution before the Court (whether deriving from general international law or lex specialis envisaged by Draft Article 64 DARIO) remain tenuous and inconsistent.
Although there is an attractive logic to this focus upon the obligation, in considering the possibility raised in the Commentary to Draft Article 15 above at least three problems arise. First, it ignores that the State has consented to be bound by potentially conflicting obligations, namely, the Charter duty to implement Security Council resolutions and the EC Treaty duty to implement EC regulations and ECJ judgments on the one hand and the duty to ensure respect for Convention rights within its jurisdiction on the other. Second, the application of the ‘direction and control’ concept to legislative acts is imprecise. In effect, it attributes to the legislator (namely, the UN) all of the conduct (drafting and voting for the resolution, legislation of the resolution and its implementation by the Member State concerned) that resulted in the breach as if the legislator had done all of the several acts itself. Third, the extension of the ‘direction and control’ concept to normative acts was not envisaged by the ILC in Article 17 ASR upon which Draft Article 15 is based. Rather, the direction and control envisaged in the Commentary to Article 17 involves a relationship of dependency between a dominant State and a dependent State (for example, a protectorate or military occupation). There is a real distinction between a State that has freely chosen to be bound by conflicting international obligations and a State that, as a result of occupation or other dependence, is incapable of directing its own conduct. Practical examples of an international organisation being 'dominant' might include the role of the UN High Representative in Bosnia or those of KFOR and/or UNMIK in Kosovo.

Consequently, it is an open question whether the impugned conduct
was attributable to the UN in its entirety owing to the highly specific obligation to deny entry or transit prescribed by the Security Council that (notwithstanding the Court's doubtful finding to the contrary) left no discretion to Member States amounts to 'direction or control' for the purpose of attribution. If not, then a piecemeal and nuanced approach to the alleged breach would be necessary. One approach (seemingly that of Bosphorus) would be to attribute the act of denying entry and transit to Switzerland regardless of the fact that it was done pursuant to a Charter duty (whether intra vires nor not). Another would be to attribute the whole of the conduct to the legislator (the Behrami approach). A third would be to treat the various acts and omissions resulting in the breach as a 'composite act' per Draft Article 13 DARIO. This last engages the Monetary Gold principle as well as sensitive problems concerning the scope of Convention obligations. As in Bankovic, these issues were regrettably avoided.

In Nada, the actions and omissions causing the breach potentially included: the drafting and voting in the Security Council of Resolution 1390 (attributable to the MS, in particular France and the UK), the enactment of that resolution (attributable to the UN through the Security Council), the listing of the applicant (attributable to the UN through the Sanctions Committee), the denial of entry and transit through Switzerland (attributable to Switzerland), the failure to take steps to delist the applicant by contacting the Sanctions Committee (attributable to Italy) and the failure to inform the Sanctions Committee of the outcome of an investigation concerning the applicant (attributable to Switzerland). The Court seemingly based its finding of breach of Article 8 upon the failure of Switzerland to encourage Italy to takes steps to delist the applicant (para. 194) and to inform the Sanctions Committee of the findings of its investigation of the applicant over a three-year period (para. 188). Since Switzerland was not forbidden by Resolution 1390 to take either of these steps, the Court's questionable finding of 'limited but nevertheless real discretion' in implementing that resolution was rightly considered in the Joint Concurring Opinion of Judges Bratza, Nicolaou and Yudkivska to be immaterial to the finding of breach. Rather, the breach concerned omissions by Switzerland apparently based upon a failure to take practicable steps to mitigate the effects of Resolution 1390 upon the applicant's human rights that that resolution did not prohibit.

By focusing exclusively upon Switzerland's conduct, inadmissibility ratione personae was avoided. However, this is neither convincing in the factual context of Nada (where a combination of acts and omissions potentially caused the breach) nor helpful in untangling a complex and inconsistent line of cases on attribution. The Court's analysis of the inadmissibility ratione personae objection ultimately bore little relation to its finding of breach based exclusively upon Switzerland's omissions. As with other thorny issues raised by Nada (judicial review of UNSC Resolutions, conflicting duties to carry out UNSC decisions and secure Convention rights, hierarchy of norms) we are left no wiser in predicting how the Court will handle the attribution of conduct in complex operations involving multiple international legal actors pursuant to Security Council resolutions.