The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

Which presumptions are we talking of? Al-Jedda as opposed to Bosphorus, and what about Stichting?

At least four points are new in the Grand Chamber judgment. First, no judge on the bench doubted any longer that the freeze of the assets was imputable to Switzerland − independently of the pre-determination of the freeze by the UN Security Council (unlike Judge Sajó had opined in the Chamber).

Second, the “presumption” applied was a totally different one from the one applied in the Chamber judgment. In 2013, the Chamber had relied on Bosphorus, and had argued that States’ measures implementing obligations arising out of their UN-membership could be presumed to be in conformity with the ECHR, but only if the organization guarantees an “equivalent protection” to human rights as the Convention itself (Chamber judgment Al-Dulimi, para. 114). In contrast, the Grand Chamber majority applied the “presumption” which it had established in Al-Jedda and in Nada, namely “that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights” (GC Al-Dulimi, majority, para. 140). The majority went on to say that:

“where a Security Council resolution does not contain any clear or explicit wording excluding or limiting respect for human rights in the context of the implementation of sanctions against individuals or entities at national level, the Court must always presume that those measures are compatible with the Convention” (ibid., emphases added).

This presumption differs from the Bosphorus-presumption in the sense that it does not look at the objective features of the “other”, the colliding regime (which in Bosphorus was the EU; here it is the UN sanctions scheme), but at the “intention” of the Security Council to allow for human-rights securing implementing action. The statement that “the Court must always presume that those measures are compatible with the Convention” means that the ECtHR must presume that the Security Council decision allows the Member States to implement the Security Council decision in way that is compatible with the ECHR.

The application of this presumption of the admissibility of a human rights-friendly implementation (let us call it the Al-Jedda-presumption) has two important legal consequences. The first consequence is the inapplicability of Article 103 UN Charter. As the majority in Al-Dulimi said:

“[I]n such cases, in a spirit of systemic harmonisation, it [the Court] will in principle conclude that there is no conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter“ (majority, para. 140).

The second consequence of the Al-Jedda-presumption is that the Grand Chamber in Al-Dulimi was able to avoid examining whether the UN itself currently offers “equivalent protection” to the ECHR – a question which would obviously have to be answered in the negative for the time being. With the help of the strained reconciliation of the obligations flowing from SC Res. 1438 on the one hand and the ECHR on the other hand, and by denying any “real conflict” between the states’ obligations under both treaty regimes, the Grand Chamber sought to render “nugatory the question whether the equivalent protection test should be applied” (majority, para. 149).

The third new element of the Grand Chamber judgment is the dry statement that access to review does not form part of the body of ius cogens (majority para. 136; see for doubts on this point the concurring opinion by Judge Pinto and others, paras 33-35).

Fourth, and in practical terms most importantly, the Grand Chamber prescribed a new standard of review for domestic courts to which I shall turn now.

The new arbitrariness standard

The Grand Chamber held:

“As regards the substance of the sanctions – the freezing of the assets and property of senior officials of the former Iraqi regime, as imposed by paragraph 23 of Resolution 1483 (2003) – the Court takes the view that the choice fell within the eminent role of the UN Security Council as the ultimate political decision-maker in this field. However, before taking the above-mentioned measures, the Swiss authorities had a duty to ensure that the listing was not arbitrary. (…) The applicants should (…) have been afforded at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, to seek to show that their inclusion on the impugned lists had been arbitrary” (majority opinion, paras 150-151).

Because the Swiss authorities, including the Swiss Federal Court, completely refused to examine the complaint, they did not perform any arbitrariness-test.

Is the new test a way out of the catch-22 in which the ECHR Member States find themselves? This test seeks to strike a compromise between safeguarding the bindingness of the Security Council decisions and the UN Member States’ obligation to carry them out on the one hand, and protecting the human right to judicial review on the other hand. It allows for review of the Security Council resolution by national courts, but only with a limited scrutiny, a scrutiny for arbitrariness. The only thing which seems certain is that the prohibition of arbitrariness constitutes a rather high threshold for refusing implementation of a Security Council resolution. But beyond this, the standard will hardly provide real guidance for domestic courts.

Unlike the meanwhile basically discarded ius cogens-standard for Security Council action, still employed by the ECJ in Kadi I (2005) and by the Swiss Federal Tribunal (BGE 2A.783/2006; BGE 2A.784/2006; BGE 2A.785/2006) in 2008, the prohibition of “arbitrariness” as a barrier to implementing Security Council action is more open-ended. “Arbitrariness” relates less to the substance of the material rights impaired than to factual and procedural issues. For example, errors in fact and procedural flaws may constitute arbitrariness.

The Grand Chamber majority in Al-Dulimi specifically pointed to the refusal of granting information:

“[I]n 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” (majority, para. 147).

In the case of Al-Dulimi, a factual question is whether he, in his capacity as the financial head of the secret service, really took part in, could influence, or at least knew of the crimes committed by the regime. Arguably, if the Security Council got the facts completely wrong, the listing decision might have to be qualified as having been arbitrary, too.

Finally, while not completely unknown in international law, “arbitrariness” is taken from the reservoir of constitutionalism. For example, the prohibition of arbitrariness (Willkürverbot; protection contre l’arbitraire) is a traditional principle of Swiss constitutional law, which is even codified as a fundamental right in Article 9 of the Swiss Constitution. Longstanding experience with this standard will allow the Swiss authorities, including the SECO (the Swiss Federal Department of Economic Affairs), to which the matter will be remanded, to apply the prohibition of arbitrariness with some confidence.

Competing Constitutionalisms

For the Grand Chamber majority, the prevention of arbitrariness is the essence of constitutionalism and of the rule of law; and this is how the majority explained the new standard it created in Al-Dulimi. It justified its call for “appropriate review” (majority, para. 145) with a constitutionalist argument:

“[T]he Convention being a constitutional instrument of European public order (…), 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.” (ibid., emphasis added).

Also Judge Pinto and three colleagues built their concurring opinion around the topoi of global constitutionalism. This long and substantive concurring opinion acknowledged the existence of two constitutional orders, one established by the UN Charter, and another one established by the ECHR. The “trick” then was to declare the UN constitutional system as the weaker one which led the way to allowing and even mandating the prevalence of judicial protection under the competing constitutional order of the ECHR.

This is how the argument runs: Because of the absence of an “effective constitutional control” of the Security Council and the “lack of specific human rights constraints in the Charter”, “[t]he Charter does not yet fulfil the double function of a Constitution, as the foundational, non-derived source of law and the primary limit to the exercise of public power and the use of public force” (concurring opinion Pinto et al., para. 8).

In contrast, “the constitutional nature of the convention” (the ECHR) is depicted as stronger (concurring opinion, paras 59-60). This strength ultimately stems from the fact that, “[i]ndividuals being the epicentre of international law, human rights are today the central factor of legitimation of international law.” The “primary role of sovereignty is the responsibility to protect human rights”. The adoption of the human rights covenants caused a “Copernican revolution” of international law which “created a new narrative in international law with constitutional overtones” (concurring opinion, para. 7).

The important consequence drawn from these two competing constitutionalisms by the concurring opinion is to deny any supremacy to the UN Charter while ascribing such supremacy to the ECHR. (This is a bit strange in terms of legal theory … but I will leave this aside). On the UN Charter:

“Thus, the Charter of the United Nations has not yet acquired the nature of a Constitution for the international community and consequently there is no hierarchical relationship between Charter obligations and obligations resulting from other international treaties and agreements, most notably human rights treaties.“ (concurring opinion, para. 8, emphasis added).

“[T]he lack of constitutionality of the Charter, coupled with the multiplication of normative strata and legal institutions with constitutional claims in the international arena, especially in the field of international human rights protection, both call for an adaptation of the Charter model of normative conflict resolution.” (concurring opinion, para. 39, emphasis added).

Because the “Charter of the United Nations has not yet acquired the nature of a Constitution for the international community”, Article 103 of the Charter is only a “non-hierarchical conflict rule” (concurring opinion, para. 25, emphasis added).

In contrast, the concurring opinion found that the ECHR has a “supra-constitutional effect” over domestic law (!) and is “the supreme law of the European continent” (concurring opinion, para. 59). Pinto and colleagues went on to say that:

“the Council of Europe (…) envisages the relationship between international law and Convention law beyond the orthodox, yet outdated, monist/dualist dichotomy. The Convention is both international and constitutional law, the conflict between Convention obligations and UN Charter obligations being an intra-systemic conflict. The Charter’s weak constitutional claim may not always prevail in this conflict, in spite of the secondary rule of Article 103” (concurring opinion, para. 71).

Wisely, Pinto and colleagues specified that this is (only) a matter of “the Council of Europe’s own internal hierarchy of norms”. From the perspective of the Council of Europe, “United Nations law is (…) subordinated to the primacy of the Convention as a constitutional instrument of European public order” (concurring opinion, para. 60). This statement presupposes that – generally speaking − a pluralism of perspectives on the hierarchy of norms belonging to different legal orders (or systems) persists. At the same time, the judicial statement illustrates that a participant in the legal process – namely a judge at the ECtHR − , who is called to decide on a conflict of obligations, must inevitably espouse one of the perspectives, and decide the case from this starting point.

Having thus established that the obligations stemming from the ECHR enjoy priority (over the UN Charter obligations and over the domestic law of the Convention Member States), the concurring opinion found that the convention Member States “may” (one might rather say: they must) exercise the appropriate constitutional control:

“Council of Europe Member States may have to verify the internal and external validity of UN resolutions. In view of the constitutional black hole in the United Nations, this exercise may even have to be performed by invoking the Council of Europe’s own strong constitutional claim, based on the Convention and its additional protocols” (concurring opinion, para. 71).

The competing and conflicting usages of a constitutionalist vocabulary by the various fractions on the Grand Chamber’s bench illustrate that global constitutionalism does not resolve any concrete case. But it remains an inspiring intellectual framework to discuss and challenge issues of legitimacy and fairness of the international legal system.

Other international law-based restrictions of judicial review

Switzerland had defended itself, inter alia, by pointing to the law of immunities (judgment, para. 113). Indeed, the ECtHR has so far accepted that the international principles on the immunity of states, of state officials, and of the United Nations may compel domestic courts to declare inadmissible complaints directed at these actors. Put differently, the individual right of access to an independent and impartial court under Article 6 ECHR may be lawfully restricted by the international law of immunities. The case most in point is Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, ECHR 2013), where the Court upheld the immunity of the United Nations which lead to the inadmissibility of plaintiffs’ civil actions against the world organisation.

The presumption used in Stichting again relates to something different:

“Measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity (the Court would add: or the immunity of international organisations) cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1” (para. 139 lit f), emphasis added).

The “measures taken by a High Contracting Party” are the domestic courts’ refusals to hear a complaint, their inadmissibility decisions justified by the immunity of the defendant. The Stichting court went on:

“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” (para. 139 lit g), emphasis added).

Is it consistent to allow States to restrict the right of access to court in proceedings directed against the United Nations for immunity reasons but to force States to grant access to court so as to review sanction measures which are predetermined by the Security Council? The objects of the domestic review are similar: In both cases, measures of organs of international organisations, in combination with domestic implementing measures, are at stake. From the perspective of the plaintiffs’, the need for review seems to be similar. Concomitantly, the reasons for precluding judicial review are similar, too. In both constellations, the legitimate objective is to safeguard the functioning of the UN system which ultimately seeks to maintain world peace (cf. Al-Dulimi, para. 113, summarising the Swiss pleading; and para. 133). In both constellations, domestic review will potentially lead to diverging assessments by national bodies of one and the same international measure which creates unequal treatment of victims.

The second set of international law principles which are apt to limit judicial review pertain to state jurisdiction. Ironically, these have prevailed over the right of access to a court in an unnoticed decision in Nait-Liman c. Suisse (no. 51357/07), issued on the same day (!) as Al-Dulimi. Here, the Court’s second section found that Switzerland had not violated Article 6 ECHR when denying judicial review to Nait-Liman in a torture case directed against Tunisia out of respect for the international law-based prohibition of extraterritorial jurisdiction. The ECtHR followed the Swiss courts’ reasoning that although the prohibition of torture is an international peremptory norm, it does not prescribe States to exercise universal jurisdiction and thus does not force the Swiss courts to hear the complaint. I find it difficult (if not arbitrary …) to distinguish the various constellations, and thus suggest that all types of international law-based restrictions of the human right of access to court should be assessed more consistently.

Conclusion

The main structural weakness of the majority’s opinion seems to be that it reads a room for manoeuvre for UN Member States into Security Council resolution 1483 although there was none. The presumption that the Security Council did not intend Switzerland to violate the ECHR has no basis in the facts (as dissenting judge Nussberger in Al-Dulimi rightly pointed out).

But despite this flaw in reasoning, the outcome of the Grand Chamber judgment is in order, pragmatically speaking. It paves the way for States to (de facto) submit Security Council sanction decisions to a mild domestic review. This will hamper the effectiveness of the sanctions regime, but probably not too much. The collateral damage of undermining the binding nature of Security Council resolutions is acceptable against the background of otherwise completely lacking options for judicial or quasi-judicial review.

The question of human rights obligations of the Security Council itself (see my commentary on Art. 25, in: Bruno Simma et al (eds), The Charter of the United Nations: A Commentary on the UN Charter (Oxford: Oxford University Press 2012), 787-854, esp. at paras 109-127) may be somewhat marginalised by the novel focus on “arbitrariness”, though − unless one qualifies, as the Swiss do, the prohibition of arbitrariness itself as a kind of human right.

The functions of the domestic courts as stop-gaps for securing the legitimacy of Security Council action will be crucially strengthened by Al-Dulimi. It is likely that courts outside the European espace conventionnel will subscribe to the arbitrariness-standard, too. Whether the judgment will empower states seeking to pressure the Security Council to reform the sanctions regimes remains doubtful, however.

Would a way out of the catch-22 for implementing States be the translation of the UN blacklists into domestic law – a proposal floating around currently? The domestic lists would be easily subjectable to domestic judicial review. But this kind of “dédoublement” would (further) undermine the unique competence of the UN Security Council to issue binding decisions and is therefore not recommended.

UN Member States remain obliged by Art. 25 UN Charter to implement sanction resolutions faithfully. Domestic judicial review which seeks to compensate for the deficiencies of the extant review mechanism on the international plane is no real solution, most of all because it leads to unequal treatment of blacklisted persons in different states.

Therefore, the (further) constitutionalisation of the UN, especially of its targeted sanctions regime, remains as urgent as ever. Because a constitutional moment such as the establishment of a “World Human Rights court which would have jurisdiction also over the UN Security Council” (as demanded by the concurring opinion in Al-Dulimi, para. 71) is not in sight, the only available strategy is constitutional evolution by improving the mechanisms for reviewing the Security Council’s listing decisions. The evolution within the 1267-regime (now called “ISIL (Da’esh) and Al-Qaida Sanctions Committee”), from a focal point to an ombudsperson’s office, and the subsequent expansion of the ombudsperson’s competences, show that such evolution is in principle possible. The ombudsperson is independent and therefore satisfies a core requirement of judicial review. Steps towards satisfying the rule of law would be to establish ombudspersons also for the other sanctions regimes (such as the one at issue in the case of Al-Dulimi, who did not have access to the ombudsperson), and most importantly to grant these offices a power to issue a binding decision as opposed to a recommendation. This might, as the Grand Chamber majority remarks en passant, also satisfy Article 6 ECHR-standards, because that guarantee does not insist on “full jurisdiction”, but can be applied “in a flexible manner“ (majority, para. 130).

The facial appeal of the Court’s new favourite harmonising technique of presuming all kinds of things easily makes us overlook that these presumptions relate to completely different actors and measures: to the quality of a competing legal regime (Bosphorus), to the intentions of the Security Council (Al-Jedda, Nada, and Al-Dulimi), or to the posture of national courts (Stichting). Generally speaking, the mentioned presumptions do not have a basis in the involved law-makers’ or law-appliers’ actual intentions. They rather have the effect of allowing almost any outcome. Arbitrariness?