The failure of the UN Security Council (“UNSC”) to agree resolutions on Syria, thanks largely to Russian and Chinese intransigence, is still big news. But both the European Court of Human Rights (“ECtHR”) and the Court of Justice of the European Union (“CJEU”) have recently had occasion to consider instances in which UNSC resolutions have successfully been passed, in respect of individuals suspected of involvement in terrorism, with sometimes alarming consequences for human rights.
In Nada v Switzerland, the Grand Chamber of the ECtHR made a contribution to the growing jurisprudence, at European level, on States’ obligations when implementing UNSC Resolutions. The case is interesting in that it demonstrates a somewhat surprising reluctance on the part of the Strasbourg court to directly challenge the primacy of the UN legal order. This contrasts with the more robust approach of the CJEU in the Kadi case (judgment is currently pending in the follow-up case, Kadi II, which has been considered by this blog here).
The facts of Nada read like an Alexandre Dumas novel: for years, an elderly businessman is confined to a tiny Italian enclave, separated from the rest of Italy by Lake Lugano, without any charge being made against him and without any means of challenging his confinement. However, rather than resorting to vigilante justice to take revenge on his captors, Mr Nada sought to challenge his treatment before the Strasbourg court.
Mr Nada was an 82 year old of dual Italian and Egyptian nationality, who was listed by the UN Sanctions Committee, in November 2001, on the grounds of suspected involvement with terrorism. UNSC Resolution 1390 provided that States must prevent entry into, or transit through, their territories by listed persons. This was implemented in Switzerland by a “Federal Taliban Ordinance”.
The twist in the tale is that, at the time of his listing, Mr Nada lived in a tiny Italian enclave, Campione d’Italia, surrounded entirely by Swiss territory, and separated from the rest of Italy by Lake Lugano. In short, the effect of the Federal Taliban Ordinance was that Mr Nada was confined to a 1.6 sq. km. area, and unable to travel through Swiss territory (and so access the rest of Italy), until his eventual de-listing in September 2009.
Accordingly, Mr Nada brought a claim to the ECtHR for breach of various Convention rights, most notably those under Article 8 (right to respect for private life) and 13 (right to an effective remedy). His essential case was that (a) the ban had prevented him from seeing his doctors in Italy or in Switzerland and from visiting his friends and family, in breach of Article 8, and (b) he had no proper means of challenging his confinement before a domestic tribunal, in breach of Article 13.
The findings of the Court
The thorniest problem facing the ECtHR was a question of hierarchy. The UNSC Resolution was explicit in naming Mr Nada and imposing an entry and transit ban upon him. Switzerland simply implemented this measure at a national level. Despite the dramatic effects on Mr Nada, it was not clear that Switzerland had any jurisdiction to modify the ban or to allow him to challenge it, given Article 103 of the United Nations Charter, which provides that the obligations of UN members under the Charter, including in respect of UNSC resolutions, will prevail in the event of a conflict with obligations under any other international agreement, including the Convention.
In the present case, there was a clear conflict between Switzerland’s obligation to fully implement the UNSC Resolution and its obligations to respect Mr Nada’s Convention rights. In an earlier case, Al-Jedda, the ECtHR had tackled a similar conflict by “reading down” a UNSC Resolution, employing a presumption that, where a Resolution is vague or ambiguous, the Security Council will not have intended to impose an obligation on Member States to breach fundamental human rights. However, such a presumption was of limited use in the present case, where the UNSC Resolution was seemingly unambiguous.
Nonetheless, in its ruling on Article 8, the Strasbourg Court engaged in some judicial contortionism to reach a finding that Switzerland had breached Mr Nada’s right to respect for private and family life. It was clear that the travel ban was an interference with Mr Nada’s Article 8 rights. But on the question of whether such an interference was justified, the Court found that Switzerland enjoyed a latitude, described as “limited but nevertheless real”, in implementing Resolution 1390. In that context, the failure to modify the travel ban to take account of Mr Nada’s unique circumstances was held to be disproportionate, in breach of Article 8.
The difficulty is that, as noted in the joint concurring opinions of Judges Bratza, Nicolau and Yudkivska, the finding that Switzerland enjoyed any such latitude was dubious at best: Resolution 1390 was expressed in emphatic terms (unlike that in Al-Jedda), with no obvious implementing discretion afforded to states. And it can hardly be regarded as satisfactory that, in finding a breach of Article 8 in the manner in which it did, the Court avoided answering the important question of the proper hierarchy between the UN Charter and the Convention: see the judgment at paragraph 197.
It is notable that, as suggested above, the CJEU has been much more robust on the question of the interrelationship between the UN and the EU legal orders, ruling in the first Kadi judgment that measures taken by Member States and/or EU institutions in order to implement UNSC Resolutions were in principle subject to full review by the European Union, including in relation to the protection of fundamental rights.
The theoretical confusion is further compounded by the ECtHR’s ruling on Article 13 in Nada. Here, the Strasbourg court expressly relied on Kadi in holding that the absence of any domestic mechanism for enforcing Mr Nada’s Convention rights constituted a breach of the Article 13 right to an effective remedy. At paragraph 212, the ECtHR expressly stated that “there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at a national level pursuant to those resolutions”.
This finding, however, is either inconsistent or incoherent. If it means that Switzerland was able to review the Federal Taliban Ordinance and in principle find human rights violations, then the ECtHR has not, after all, avoided the question of the hierarchy between the two legal orders, in contrast to its reasoning on Article 8. If, on the other hand, it means that Switzerland is only able to “verify” national measures (whatever that means) but not to find them incompatible with Convention rights, then it is hard to see how this constitutes an effective remedy at all.
While the result in Nada was certainly the right one, the manner in which it was reached saw the Court dodge some important theoretical questions. As well as the hierarchy point, there is also a question – discussed here – as to how Mr Nada, an Italian national and resident, was able to rely on the Convention as against Switzerland.
The ECtHR may also have missed a trick. As noted here, Judge Malinverni, in his concurring opinion, implicitly advocated a “Solange” solution, a familiar concept for EU lawyers. That approach, whereby the ECtHR would retain the jurisdiction to review UN-mandated measures so long as the UN does not itself adequately ensure the protection of human rights, at least has the advantage of simplicity over the confused reasoning of the main judgment.
At any rate, judgment in Kadi II is looming, and it is difficult to envisage the CJEU doing anything other than reaffirming its strong stance on Luxembourg’s jurisdiction to review acts taken pursuant to UN Resolutions. It may not be long before Strasbourg follows suit.
* Michael is a pupil at Monckton Chambers, specialising in EU, competition and public law.