Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

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In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

Article 103 of the Charter has a twofold effect: (1) it gives priority to Charter obligations over other international obligations (except for jus cogens), but it does not invalidate these conflicting obligations; and (2) it precludes the responsibility of a state for failing to abide by its conflicting obligation, so long as the conflict lasts (see Art. 59 of the ILC Articles on State Responsibility and commentary thereto). To give an example – states A and B conclude a treaty of friendship, whereby they agree to freely trade with one another. Subsequently, the UNSC determines that state B is engaged in a threat to international peace and security, and passes a Chapter VII resolution ordering trade sanctions. State A would be obliged to implement the trade sanctions, notwithstanding its earlier trade treaty with B, and it would incur no responsibility for failing to abide by that treaty, even though the treaty is not void, but remains valid.

So, back to Sayadi – because the listing of the applicants was done by a Chapter VII resolution, Belgium argued that its obligations under the resolution prevailed over its obligations under the ICCPR, by virtue of Art. 103 of the Charter. Indeed, the preclusive effect of Charter obligations is only confirmed by Art. 46 ICCPR, which provides that ‘Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of specialized agencies in regard to the matters dealt with in the present Covenant.’

Norm conflicts between a UNSC resolution and human rights treaties have been the subject of several recent cases. In Al-Jedda, the House of Lords found that a UNSC resolution prevailed over the ECHR by virtue of Art. 103 of the Charter, in regard of (otherwise prohibited) preventative detention in Iraq. In Behrami and Saramati, the European Court of Human Rights was faced with the question whether a UNSC resolution authorized preventative detention in Kosovo, and avoided the Art. 103 issue by inventing out of whole cloth an attribution rule that would impute the acts of NATO peacekeepers in Kosovo to the UN. In Kadi, the EU Court of First Instance held that Charter obligations prevailed over EU human rights guarantees, so long as they did not impinge on human rights protected by jus cogens. On appeal, the European Court of Justice in Kadi reversed the CFI, essentially by holding that Charter obligations cannot prevail over EU human rights protections, as EU law is an independent constitutional legal order. In the ECJ’s view, nothing prevented its review of EU legislation implementing UNSC resolutions vis-à-vis EU constitutional guarantees, even though that might lead to member states incurring responsibility at the international level.

With such complex issues at hand, and with such rich and developing case law to draw from, one would have expected the UN Human Rights Committee to produce a worthwhile contribution to the ongoing debate. What we’ve got instead is this (at para. 10.3 of the views):

Although the parties have not invoked article 46 of the Covenant, in view of the particular circumstances of the case the Committee decided to consider the relevance of article 46. The Committee recalls that article 46 states that nothing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations. However, it considers that there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the Charter of the United Nations. The case concerns the compatibility with the Covenant of national measures taken by the State party in implementation of a Security Council resolution. Consequently, the Committee finds that article 46 is not relevant in this case.

Article 103 of the Charter is not even mentioned. The reasoning that the Committee gives – or rather, the lack thereof – is simply astonishing. Yes, of course the Committee is reviewing national measures taken by a state party in implementing the UNSC resolution, not the UNSC resolution itself. It if it were otherwise, the Committee would have no personal jurisdiction, as it can only examine whether a state party, not the UN, has committed a wrongful act under the ICCPR. That disposes of only one objection of Belgium, that the applicants were not within its jurisdiction or control, or that the act complained of was not attributable to Belgium (see para. 6.1). But the question is no longer what the Committee is reviewing, but what is it doing the reviewing against. In Belgium’s argument, it is the ICCPR itself that was displaced or qualified by virtue of Art. 103 of the Charter (see para. 8.1). Though Belgium’s implementation of the resolutions against the applicant might be characterized as wrongful under the ICCPR, that wrongfulness is precluded by the Charter – not to mention Art. 46 of the ICCPR itself.

Just take a moment to compare this decision with the ECJ’s ruling in Kadi. The reason why the ECJ found the UNSC resolutions immaterial was not just that it was reviewing EU legislation, but that it was reviewing this legislation against a corpus of constitutional norms independent of the UN Charter:

[T]he review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement. The question of the Court’s jurisdiction arises in the context of the internal and autonomous legal order of the Community, within whose ambit the contested regulation falls and in which the Court has jurisdiction to review the validity of Community measures in the light of fundamental rights. (Kadi ECJ, paras. 316-317).

Now, I personally am not really persuaded by the ECJ’s idea that a legal order created by treaties between sovereign states can truly be so completely independent from the UN Charter and international law. But the ECJ at least gave reasoning for its position (even if that reasoning was solipsistic and self-serving, but that is a topic for another day). The ECtHR’s Behrami decision is also disappointing precisely because of its poor reasoning – but the Court there at least bothered to give some reasoning. Likewise, when it comes to Al-Jedda, one may not like the result or every step that the House of Lords takes in that judgment, but at least the judgment is jurisprudentially sound and well reasoned.

But in Sayadi the Committee gives us nothing, no reasoning whatsoever. Of course, it could never do what the ECJ did in Kadi, as the very idea that the ICCPR is a constitutional instrument independent of the UN Charter would, well, be laughable. What it did instead was to sidestep Art. 103 of the Charter as if it wasn’t even there. Take a look at how the Committee reasons in regard of the travel ban imposed by the UNSC (at para. 10.6):

In the present case, the Committee recalls that the travel ban for persons on the sanctions list, particularly the authors, is provided by Security Council resolutions to which the State party considers itself bound under the Charter of the United Nations. Nevertheless, the Committee considers that, whatever the argument, it is competent to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council. It is the duty of the Committee, as guarantor of the rights protected by the Covenant, to consider to what extent the obligations imposed on the State party by the Security Council resolutions may justify the infringement of the right to liberty of movement, which is protected by article 12 of the Covenant.

The Committee thus looks at UNSC resolutions within the structure of the limitations clause of Art. 12(3) ICCPR – but the whole point of Belgium’s argument was that Article 12, like the rest of the ICCPR, was (poof!) gone to the extent that it conflicted with its obligations under the UN Charter. One may not like this argument, but one must address it. What the Committee does instead is this (at para. 10.7):

The Committee notes that the obligation to comply with the Security Council decisions adopted under Chapter VII of the Charter may constitute a “restriction” covered by article 12, paragraph 3, which is necessary to protect national security or public order. It recalls, however, that the travel ban results from the fact that the State party first transmitted the authors’ names to the Sanctions Committee. The proposal for the listing, made by the State party on 19 November 2002, came only a few weeks after the opening of the investigation on 3 September 2002. According to the authors, this listing appears to have been premature and unjustified. On this point, the Committee notes the State party’s argument that the authors’ association is the European branch of the Global Relief Foundation, which was placed on the sanctions list on 22 October 2002, and the listing mentions the links of the Foundation with its European branches, including the authors’ association. The State party has furthermore argued that, when a charitable organization is mentioned in the list, the main persons connected with that body must also be listed, and this has been confirmed by the Sanctions Committee. The Committee finds that the State party’s arguments are not determinative, particularly in view of the fact that other States have not transmitted the names of other employees of the same charitable organization to the Sanctions Committee (see paragraph 9.2 above). It also notes that the authors’ names were transmitted to the Sanctions Committee even before the authors could be heard. In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban.

So, it seems that a state which communicates an individual’s name to the Sanctions Committee of the UNSC commits a distinct wrongful act under the ICCPR if it does so without sufficient factual basis, apparently on the Human Rights Committee’s assessment, even if the UNSC Sanctions Committee thinks that there WAS sufficient factual basis for the listing. The state is thus responsible for the travel ban itself, even though the travel ban was ordered by the UNSC. This is not reasoning, not even result oriented jurisprudence – this is simply the Human Rights Committee’s wishful thinking.

Had the Committee truly wanted to tackle the norm conflict issue, it had several viable options. First, it could have decided, as the House of Lords did in Al-Jedda, that the ICCPR was regrettably displaced or qualified by the UNSC, but it might have managed to minimize the scope of the conflict. Second, it could have tried to avoid the norm conflict by attempting to harmoniously interpret the relevant UNSC resolution and the ICCPR, supported by a presumption that the UNSC did not wish to infringe on human rights absent a clear statement to the contrary. Third, as the applicants in the case in fact suggested (at para. 5.6), it could have reviewed the relevant UNSC resolution and declared it ultra vires as contrary to the Charter, and thus void, or indeed void for violating a norm of jus cogens. All of these options of course carry with them their own difficulties (especially the last one), but at least they are all intellectually honest and to a greater or lesser extent supported by the law. (I’ve incidentally written a rather longish article on the various different mechanisms of norm conflict avoidance and resolution in the human rights context, dealing with Behrami, Al-Jedda, Kadi etc. If anyone would like to read it, please feel free to email me at marko.milanovic [at], since I won’t put up the article on SSRN before it is accepted for publication).

The only truly meaningful discussion of some of these complex questions can be found in the individual opinions of some of the Committee’s members (particularly Ivan Shearer’s). The silence in the views of the Committee itself, however, is positively deafening. Whatever disagreement there can be, it is particularly important for a body such as the Committee, which is for all its aspirations not a court and can only issue non-binding views and general comments, and whose considerable authority relies solely on the expertise of its individual members, to provide adequate reasons for its decisions. A decision as poorly reasoned as is this one – even if the Committee’s collective heart was in the right place – will fail to persuade anyone, least of all the Security Council or its member states, or for that matter even Belgium. The applicants will gain nothing from it, as Belgium has no way of delisting them. The Committee has in fact put Belgium in a position to have to choose whether to disobey the UN Security Council or theCommittee itself. Guess which one will Belgium choose to disobey? (One can’t even characterize this as putting Belgium between a rock and hard place – Belgium has rather found itself between a really, really big rock with some pretty sharp edges, and a soft, gentle, oh-so fluffy human rights treaty body.) It frankly beggars belief that the Committee managed to so obviously undermine its own authority.

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Andreas Paulus says

January 29, 2009

No question I would love to read your full article. Basically, I also agree with your reasoning in this short comment. But it seems to me you disregard the particular circumstances of the Committee that are quite different from the ECJ. Whenever the Committee moves out of its box to review international law in general rather than the Convention as such it gets repudiated by States. Remember that even Western States deny the Committee to review the permissibility - under the Convention! - of reservations. Thus, the avoidance strategy in the Sayadi ruling seems to be rather apt. You cannot review the Security Council, therefor you rather attack the State behaviour leading up to it.
I would also tend to disagree that a State suggesting a name without proper evidence is not by itself violating PIL. Domestically, charging someone with a crime without proper evidence can be libellous or worse. Why should a State be allowed to wrongly suggesting to put somebody on a terror list? You bet that I would call it illegal and a violation of my right to freedom of movement and property if Germany put me on such a list, even more so when it did so without proper evidence.
Best wishes, Andreas

Marko Milanovic says

January 29, 2009


Thanks for your thoughts, as always, and the norm conflict article is in the mail. As you'll see when you read it, I absolutely LOVE norm conflict avoidance, and the various techniques courts have devised to do so. But avoidance still must be based on some principle, and at the very least must be reasoned. In Sayadi we have neither principle nor reasoning, which are both sacrificed for the sake of an (apparently) human rights friendly result that is ultimately useless.

As for the repudiation by states of the Human Rights Committee's ventures into general international law, they are usually the product of it devising some novel solution that supposedly account for the special nature of human rights and is in fact incongruous with general international law. Reservations are in fact a good example, as you well know. It is one thing to say, as all states agree, that reservations that are contrary to the object and purpose of a treaty are invalid. But it quite another to say that the HRC - as opposed to the contracting states themselves through objections - is to be the judge of whether a reservation is valid or not, and moreover that the consequence of invalidity is the severance of the reservation, without affecting the reserving state's status as a party to the treaty.

This brings me to your point on the possibility of the state providing information on a person to the Sanctions Committee as a distinct wrongful act. I am not discounting this possibility - what I am discounting is the idea that this possibility can be used to evade Art. 103 of the Charter. It is precisely at issue whether the applicants were put on the list wrongly, and who is authorized to make that call. The Security Council prescribed the process through which listing will be made. The Sanctions Committee and the Security Council, not Belgium alone, thought that the information provided was sufficient to blacklist the applicants. One cannot get around this determination, as the HRC did, by saying that other persons similar to the applicants were not listed . The only thing that one can do is to review the determination itself, i.e. review the Security Council, with all problems that this entails.

Let me put this another way. If you were listed, and the German Constitutional Court said no, no German government, Andreas has rights under our Basic Law, and you cannot dispense with these rights merely on the Security Council's say so, without a minimum of due process; our constitution cannot be displaced at the whim of the United Nations -- that would be absolutely fine by me. But the ICCPR is a treaty - an important treaty, but just a treaty - and it cannot escape the constraints of the Charter that easily.

Dapo Akande says

January 30, 2009


You assume that the relationship between Security Council obligations and human rights treaties is governed solely by Art. 103 of the Charter. This is a common assumption in the cases tht you mention, eg Al Jedda. However, Art. 103 may not actually be relevant. That provisions says that obligations under the Charter prevail over obligations under the Charter prevail over obligations under other treaties. In principle, Security Council resolutions will be covered by Art. 103. But there is a good argument to be made that only valid security Council resolutions create obligations under the Charter and thus bring Art. 103 into play. In other words, if a Security Council resolution is ultra vires, then it is without legal effect and does not create obligations under the Charter. So, the question then becomes: when are Security Council resolutions ultra vires? You concede that the SC is bound by jus cogens obligations. But it may be argued that the SC is also bound by fundamental human rights principles since the Organization and SC are bound to act in accordance with the purposes and principles contained in Arts. 1 & 2 of the Charter (see Art. 24(2)).

There are questions as to which human rights principles the Council must comply with. I would also concede that limitations to human rights (eg national security limitations) would apply to SC action by analogy. Indeed, from your summary of the case, the HRC also appears to concede this. However, the point is that human rights are relevant to Council action and where the Council fails to take them into account, members may not have an obligation to obey the Council resolution (I agree that this latter point does not necessarily follow from the first). If that is correct, Art. 103 does not come into play and the HRC would have been right not to allude to it.

To follow up on Andreas' point, the violation (one violation?) by Belgium that is at issue in the case is not the placing of the application on the list. Rather it is suggesting that he placed on the list. The former is an action of the SC, the latter is an action of Belgium. Art. 103 can apply to that Belgium action (proposing the applicant for the list), if Belgium had an obligation to make such a proposal. But the HRC says Belgium had no such obligation. So one doesn't get to Art. 103.

The point about responsiblity of States for actions they take in voting for and making proposals in international organizations is an under explored area. If I am not mistaken the Committee on Economic Social and Cultural Rights alluded to such responsibility in its General Comment 8 dealing with sanctions.

Marko Milanovic says

January 30, 2009


I agree completely on your first point re the validity of the UNSC resolutions. Indeed, as I've said in my post, both the (internal) validity of the resolution vis-a-vis the Charter and the (external) validity of the resolution vis-a-vis jus cogens were actually challenged by the applicants. I personally think that such challenges are a viable option in dealing with situations like these. It's not me, but the Human Rights Committee, who didn't want to pursue any of these options.

What I would disagree with is that you can apply human rights limitations directly to the UNSC without taking either of these two routes, as the HRC basically did. It is only if you read a minimum of human rights content into the Charter, or test a resolution against jus cogens that the Council can be restrained explicitly. As you are well aware, both options have shortcomings, as (1) the Charter does not specify in any way what human rights exactly are binding on UN organs (2) jus cogens protects only the barest minimum of human rights and (3) the court or treaty body needs to assert a Marbury v. Madison-like authority to review the UNSC, if only incidentally.

What I suggest in the article is that a better way of restraining the Council would be to apply an interpretative presumption to it - that it did not want to infringe on human rights guaranteed by international treaties, even though it in principle could do so, absent a clear statement to the contrary. By doing so, and by holding the UNSC very strictly to this principle, we could avoid most norm conflicts and reliance on Art. 103, or at the very least force UN member states to accept political responsibility for their actions.

Finally, however, I don't think viewing the suggestion that the applicants be put on a list as (1) distinct from the listing itself and (2) not covered by the UNSC resolution is a viable solution. At the time, Belgium thought that it had enough evidence to proceed; it provided what evidence it had in a procedure prescribed by the UNSC; the Sanctions Committee agreed; the Security Council agreed; the Sanctions Committee STILL thinks there is enough evidence, or they would have been de-listed. You cannot go to the suggestion alone without challenging the determination made by the Sanctions Committee and the UNSC. It just doesn't work.