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).