Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the 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. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

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.

Another possibility raised in the literature is attribution of conduct by a State organ pursuant to an obligation prescribed by an international organisation to that organisation on the ground that it the State organ acts as an ‘agent’ of that organisation for that purpose. This also has an attractive logic in that international organisations with competence to prescribe such obligations, notably the EU, rely upon State organs to implement them even in areas where normative competence has been exclusively transferred to them by the Member States. Potential drawbacks to this approach include the lack of factual link equivalent to ‘effective control’ discussed above, which may create surreal results in practice, and the traditionally closer relationship that an ‘agent’ enjoys to the organisation. Agents are typically expressly empowered to act on that organisation’s behalf, as in litigation or treaty negotiations, rather than obliged to perform specified acts (though they may of course be ‘instructed’ to do certain acts, which brings them closer to the ‘direction and control’ factual context). The DARIO are rather undeveloped on this point.

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.