This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.
By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.
So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.‘
The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:
145. The Court notes, moreover, that the inclusion of individuals and entities on the lists of persons subject to the sanctions imposed by the Security Council entails practical interferences that may be extremely serious for the Convention rights of those concerned. Being drawn up by bodies whose role is limited to the individual application of political decisions taken by the Security Council, these lists nevertheless reflect choices of which the consequences for the persons concerned may be so weighty that they cannot be implemented without affording the right to appropriate review, which is all the more indispensable as such lists are usually compiled in circumstances of international crises and are based on information sources which tend not to be conducive to the safeguards required by such measures. In this connection, the Court would emphasise that the object and purpose of the Convention, a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145), require its provisions to be interpreted and applied in a manner which makes its requirements practical and effective (see Artico, cited above, § 33). The Court further observes that, the Convention being a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and Al‑Skeini and Others, cited above, § 141), the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. Even in the context of interpreting and applying domestic law, where the Court leaves the national authorities very wide discretion, it always does so, expressly or implicitly, subject to a prohibition of arbitrariness (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999-I, and Storck v. Germany, no. 61603/00, § 98, ECHR 2005-V).
146. This will necessarily be true, in the implementation of a Security Council resolution, as regards the listing of persons on whom the impugned measures are imposed, at both UN and national levels. As a result, in view of the seriousness of the consequences for the Convention rights of those persons, where a resolution such as that in the present case, namely Resolution 1483, does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided. By limiting that scrutiny to arbitrariness, the Court takes account of the nature and purpose of the measures provided for by the Resolution in question, in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security.
147. In such cases, in the event of a dispute over a decision to add a person to the list or to refuse delisting, the domestic courts must be able to obtain – if need be by a procedure ensuring an appropriate level of confidentiality, depending on the circumstances – sufficiently precise information in order to exercise the requisite scrutiny in respect of any substantiated and tenable allegation made by listed persons to the effect that their listing is arbitrary. Any inability to access such information is therefore capable of constituting a strong indication that the impugned measure is arbitrary, especially if the lack of access is prolonged, thus continuing to hinder any judicial scrutiny. Accordingly, any State Party whose authorities give legal effect to the addition of a person – whether an individual or a legal entity – to a sanctions list, without first ensuring – or being able to ensure – that the listing is not arbitrary will engage its responsibility under Article 6 of the Convention.
148. Furthermore, the European Court of Justice has also held 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” (Kadi I, § 299 (see paragraph 62 above)). As the Court has already observed, the Security Council is required to perform its tasks while fully respecting and promoting human rights (see paragraph 140 above). To sum up, the Court takes the view that paragraph 23 of Resolution 1483 (2003) cannot be understood as precluding any judicial scrutiny of the measures taken to implement it.
149. In those circumstances, and to the extent that Article 6 § 1 of the Convention is at stake, the Court finds that Switzerland was not faced in the present case with a real conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter. This finding makes it unnecessary for the Court to determine the question 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 UN Charter, on the other (see, mutatis mutandis, Nada, cited above, § 197). The Court’s finding similarly renders nugatory the question whether the equivalent protection test should be applied, as argued by the applicants (see paragraph 102 above). Consequently, the respondent State cannot validly confine itself to relying on the binding nature of Security Council resolutions, but should persuade the Court that it has taken – or at least has attempted to take – all possible measures to adapt the sanctions regime to the individual situation of the applicants, at least guaranteeing them adequate protection against arbitrariness (see, mutatis mutandis, Nada, cited above, § 196).
It’s also noteworthy how the Court in para. 140, in which it re-articulates the Al-Jedda presumption, states that it will interpret SC resolutions in a spirit of systemic harmonization, and how in para. 136 it holds (clearly and correctly) that the right of access to a court in Article 6 is not a norm of jus cogens.
Is the Court’s robust interpretative approach persuasive? Answering that question assumes we have a clear theory of what the proper limits of interpretation are, and that, of course, is a very difficult proposition. As somebody who has advocated for an interpretative presumption of compatibility back in 2009, I personally would not have gone as far as the Court has done, since the whole structure of the UN sanctions system is one which does not leave room for meaningful domestic review of listing decisions (I leave aside the different issue of what domestic constitutional guarantees might require).
In other words, what the Court seems to be doing here – to quote Judge Nussberger’s memorable way of putting it in her dissent – is not harmonious interpretation, but fake harmonious interpretation. It’s simply not a plausible interpretation of the SC’s sanctions regime that sanctions would take effect subject to arbitrariness review by domestic courts, i.e. that the SC wanted the final decision of whether sanctions would be implemented to rest with the judges of Switzerland or Serbia or Swaziland or whatever. But ok – the whole point of the presumptions like the one in Al-Jedda is that we go beyond what the legislator really intended; an excellent comparison point would be the extremely broad interpretative authority granted to UK courts by s. 3 of the Human Rights Act, which requires them to interpret statutes compatibly with the Convention so far as it is possible to do so, immediately raising the further background question of what the limits of the possible actually are. (Cf. in that regard Ghaidan v. Godin Mendoza).
The Court was, I think, correct in not following the Chamber’s approach of applying the Bosphorus equivalent protection analysis to the UNSC. As I explain in my norm conflict piece, doing so requires an implicit assertion of autonomy of the Convention legal order from that of international law, since a hierarchically subordinate norm (the Convention vis-a-vis Article 103 of the Charter) cannot impose conditions on the application of the superior norm. Of the judges in the minority, only Judge Keller would have followed the Bosphorus approach simpliciter (which, as I said, is methodologically difficult). However, in a powerful opinion Judge Pinto de Albuquerque, joined by three other judges, would have applied Bosphorus while openly asserting that the Council of Europe has created an autonomous legal order independent from the UN Charter. In other words, he would have had the Court pull a Kadi – which would, in the immortal words of Yes Minister, have been a very courageous decision indeed.
The Court hence once again navigated between several unappetizing options. On the one hand it wanted to protect the human rights of vulnerable individuals and not appear too cowardly in the face of unchecked political power (especially when that other European Court has been so assertive on the matter). On the other hand, it knows it does not have the background strength of that other Court, and did not want to openly oppose the UNSC or depart from a long line of cases in which it placed the Convention firmly within the framework of international law. Thus it again avoided saying what the effects of Article 103 of the Charter would be in case of a genuine norm conflict by simply denying that such a conflict existed in the first place. It remains to be seen, however, whether the de minimis arbitrariness domestic judicial review that the Court now requires will actually prove to be meaningful and feasible. Even if a domestic judge were to hold a particular listing arbitrary, the executive branch would still find itself in a bind – whether to comply with the SC listing decision, or a decision of its own judiciary buttressed by the authority of Strasbourg. In any event, Al-Dulimi is definitely not going to be the last word when it comes to litigating UN sanctions.