More on Nada v. Switzerland

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).

(1) On the facts of Nada, it appears that the Court could read down the ECHR without much difficulty so that the conflict is no longer real, and thus avoid the issue of Art. 103 of the Charter altogether.

First, there’s an issue that the commentary on Nada has so far missed, and that wasn’t even raised by the Court in its questions to the parties: the extraterritorial application of the ECHR.  Mr Nada is not located on Swiss, but Italian territory. That the ECHR should apply to him at all vis-a-vis Switzerland is at the very least non-obvious under the Court’s case law. One could say that even though Switzerland does not have title over Campione, it still has a level of de facto control over it which satisfies the Loizidou ‘effective overall control’ test so that Mr Nada is within the Art. 1 ‘jurisdiction’ of Switzerland, jurisdiction spatially conceived.

Or, one could say that the imposition of a travel ban on Mr Nada qualifies as ‘authority and control’ over Mr Nada as an individual, thereby satisfying the other strand of Strasbourg case law (as in Issa) that conceives of Art. 1 ‘jurisdiction’ in personal, rather than spatial terms. But if the imposition of a travel ban on an individual outside a state’s territory suffices to engage the ECHR, why would the dropping of a bomb on that individual not qualify (cf. Bankovic)?

Finally, one could say that the ECHR always applies when the negative obligations of states are concerned – a solution that I personally prefer, but one which is at odds with a lot of Strasbourg case law. The extraterritorial application issue is so tricky that the judges might quite happily avoid it – particularly if Switzerland doesn’t raise (which it should!).

This brings us to the merits of Mr Nada’s ECHR claim, which raises the question whether Switzerland’s effective confinement of Mr Nada to Campione qualifies as a deprivation of liberty within the meaning of Art. 5(1). I have not studied the Court’s case law on this threshold applicability question of Art. 5(1) in much detail, though I know that there is much recent UK case law on the matter regarding control orders and riot police actions during public protests.

Having said that, to my mind the proper approach to this issue would be to first ask whether Art. 5(1) would be implicated if a person were to be confined by a state to 1.6 square km within that state, e.g. to a particular city or town. In other words, had Italy ordered Mr Nada not to leave Campione, would that have qualified as a deprivation of liberty under Art. 5(1)? If the answer to that question were to be ‘no’, then I don’t see how Mr Nada could have a claim against Switzerland. If it were to be ‘yes’, then the further question arises as to whether the international context changes anything. On the other hand, Art. 8 is more expansive than Art. 5(1), so Mr Nada could have an easier job there – but he would still be faced with the problem that in order to accept his claim the European Court of Human Rights would have to fashion an almost EU-like (if exceptional) rule on freedom of movement under the ECHR that would allow it to override the sovereign right of a member state to admit foreigners onto its territory, or not.

In short, it appears that if it wanted the Court could simply say that Mr Nada’s ECHR rights are not even engaged. Alternatively, it could balance these rights away and justify this with Switzerland’s need to comply with its obligations under the UN Charter.

(2) If the Court doesn’t do that, it might try reading down the relevant UNSC resolutions instead. For example, I have argued in my norm conflict piece cited above that courts should employ an interpretative presumption to the effect that the UNSC should be presumed not to have intended to violate the basic rights of individuals absent explicit language to the contrary; it is only if such language existed that Art. 103 could be said to override contrary norms in human rights treaties. That presumption can of course be weaker or stronger (cf. the various methods used by UK courts applying s. 3 of the Human Rights Act, instructing them to interpret primary legislation consistently with the ECHR, ‘so far as it is possible’ for them to do so). In his separate opinion in Sayadi, Sir Nigel Rodley also advocated for precisely that kind of a presumption.

However, on the facts of Nada, I doubt that such a presumption can be employed to much effect. The UNSC resolutions are quite clear that member states have to take very specific measures against individuals listed by the Sanctions Committee. Only an exceptionally strong presumption that would require something like a notwithstanding clause in UNSC resolutions (e.g. ‘states are required to apply these measures notwithstanding their obligations under applicable human rights treaties’), could do the necessary work, and it is doubtful whether courts generally, or here the European Court specifically, have both the gumption and the political legitimacy to devise it.

(3) If harmonious interpretation fails, a third possible avenue of norm conflict avoidance would be more drastic – an assertion, in a milder or more overt form, that the ECHR is an independent legal order beholden to no other, one that does not accept the supremacy claim in Art. 103 of the Charter. This type of mega-avoidance, if you will, was of course employed by the ECJ in Kadi when it asserted that EU law and EU guarantees of fundamental rights were independent from the UN Charter and international law. It is emblematic of a ‘constitutionalist’ type of thinking that is common to domestic public lawyers. And indeed there is nothing conceptually problematic for (say) US constitutional lawyers to say that individual rights under the US Constitution cannot be overridden by the United Nations Security Council as a matter of US law; Art. 103 of the Charter itself does not even claim that type of direct effect and primacy. Of course, as far as international law is concerned domestic law cannot be an excuse for failing to comply with an international obligation, but that does not mean that the international obligation prevails over the domestic one in a hierarchical sense. They simply operate in two independent legal orders.

I find it particularly fascinating that this type of domestic, constitutional rejection of international norms intruding upon individual rights has already emerged with regard to Switzerland. In March 2010 the Swiss government informed the Security Council that it has been instructed by the Swiss Parliament to disobey the Security Council and cancel targeted sanctions against specific individuals on the basis of Swiss guarantees of human rights (see letter on p. 6 of the attempted intervention in Nada by the CoE Assembly; h/t Mathias Vermeulen):

Your Excellency,
On the instructions of my government, I have the honour to inform you that the Swiss Parliament has passed a motion concerning the anti-terrorist sanctions imposed by the Security Council. A motion is a parliamentary instrument which instructs the Government (Federal Council) to submit to Parliament a draft act of the Federal Assembly or to take a specific measure.

The motion is worded as follows:

“1. The Federal Council is asked to notify the UN Security Council that, from the end of this year, it will no longer apply the sanctions imposed against physical individuals on the basis of the resolutions adopted in the name of the fight against terrorism, since:
– the individuals concerned have been “blacklisted” for over three years and have still not been brought before a court;
– they have not been allowed to appeal to an independent authority;
– no charges have been brought against them by a judicial authority; and
– no new evidence against them has been put forward since they were blacklisted.
2. The Federal Council, while reiterating its unerring determination to cooperate in the fight against terrorism, is bound to clearly point out that it is not acceptable for a democratic country founded on the rule of law that sanctions imposed by the Sanctions committee, excluded from any procedural guarantee, result in the suspension, for years and without any democratic legitimacy, of the most elementary fundamental rights, rights that are justly proclaimed and promoted by the United Nations Organisation.”

The granting of the motion will not cause any imminent changes in the application in Switzerland of sanctions against Al-Qaida, the Taliban and associated individuals and entities. Those sanctions will remain applicable in Switzerland as long as the four cumulative conditions stipulated in the motion are not found to characterise a given case.

The Chairman of the 1267 Committee responded to this letter be reiterating member states’ obligations under Art. 103 of the Charter (see p. 8). But again, there is conceptually nothing problematic in a state refusing to comply with its international obligations because its domestic law obliges it to do so, if it is prepared to pay the price for non-compliance.

The question in Nada therefore is whether the European Court is prepared to pull a Kadi, like its neighbor in Luxembourg. (The issue is of course more likely to first arise in Al-Jedda, which Nada will then follow.) I personally doubt that it will. Although the European Court has repeatedly referred to the ECHR as the ‘constitutional instrument of European public order’ (e.g. in Bosphorus), the ECHR is as a cohesive system a far cry from EU law. It simply sounds implausible to say that the ECHR is not subject to Art. 103 of the Charter as it constitutes an independent legal order. This doesn’t mean that it can’t become one – this is essentially a matter for the rule of recognition and the distribution of power and authority in a community; if the European Court claims independence for the ECHR from international law a la Kadi and if the other relevant actors accept this claim, than the ECHR will indeed become independent. But I do not think we are there yet.

(4)  A very similar approach to (3) would be for the Court to employ a Bosphorus or Solange equivalent protection analysis to the UNSCR 1267 regime, by saying that the ECHR will give way to the UN Charter if and only if the UN system provides an equivalent level of protection of human rights, which it now does not. However, as I explain in my norm conflict article, this approach actually assumes (3): if the Art. 103 claim to supremacy is valid, then a lower-ranking norm (the ECHR) cannot set conditions for when a higher-ranking norm (UNSCR 1267) would apply. In other words, applying an equivalent protection rationale in Nada would not be a straightforward application of Bosphorus (which concerned a conflicting EU regulation), but would be a different step entirely.

(5) If the Court does not use options (1)-(4), avoidance will have failed, and a genuine norm conflict would emerge, a conflict which it may or may not be possible to resolve. As argued by Dapo in his earlier post, one possible method of resolution would be for the Court to actually engage in incidental judicial review of the applicable UNSC resolutions on human rights grounds.  It could do so in two different ways. First, it could review the resolutions internally, against a human rights content implicit in the Charter itself and defining the vires of the Council. Second, it could review them externally, against a higher body of jus cogens norms. The problem with the former is in the lack of explicit textual foundation and the resulting vagueness of human rights constraints in the Charter, the problem with the latter that confining a person in Campione is hardly comparable to genocide, torture or what have you.  The problem with both is that any such review involves an assumption of authority by the court – something that other actors in the system might not accept lightly.

(6) Finally, the Court might take the simplest route and accept that the UNSC has the power to override the ECHR pursuant to Art. 103 of the Charter. Even though this option is one that a general international lawyer might wish it to take, I doubt that it is very palatable to the Court – but again, we shall see what it does in Al-Jedda.

These are the six options that I believe the Court can (more or less reasonably) take. I did leave one out – which is for the Court to simply ignore Art. 103 altogether and do the ‘right thing’ in human rights terms, much like the Human Rights Committee did in Sayadi. As I explained elsewhere, no matter how much we might like such a result as a matter of policy, it is not one which is legally open to the Court. It must make a choice – either avoid the norm conflict by employing a legitimate method of norm conflict avoidance, or take a stand and engage in judicial review of the Security Council, a la Marbury v. Madison. If I were a betting man, however, option (1) seems the most likely.