When the UN breach human rights… who wins?

5 October 2012 by Alasdair Henderson

NADA v. SWITZERLAND – 10593/08 – HEJUD [2012] ECHR 1691 – read judgment

How is a Member State of the ECHR supposed to react when the UN Security Council tells it to do one thing and the Convention requires it to do another? That is the interesting and important question which the Grand Chamber of the European Court of Human Rights was presented with, and dodged, in its recent decision in Nada v. Switzerland.

Mr Nada is an 82-year-old Italian-Egyptian financier and businessman, who in November 2001 found himself in the unfortunate position of having his name added to the international list of suspected funders and supporters of al-Qaeda and the Taliban, which is maintained by the Sanctions Committee of the UN Security Council. Mr Nada has consistently denied that he has any connection to al-Qaeda or any other terrorist group, and in 2005 the Swiss Government closed an investigation after finding that the accusations against him were unsubstantiated. However, despite this Mr Nada remained on the list until September 2009. During the intervening 8 years the impact on Mr Nada’s health and his private and family life was severe, so he brought a claim against Switzerland for breach of his Article 8 rights, as well as breaches of Article 13 (right to an effective remedy), Article 3 (right not to be subjected to ill-treatment), Article 5 (right to liberty) and Article 9 (right to freedom of religion).

It’s all about location, location, location

The reason why Mr Nada was so badly affected by being on the UN Sanctions Committee list was that Security Council Resolution 1390 (2002) required all States to “prevent the entry into or the transit through their territories” of any individuals on the list. In response to this the Swiss Federal Government updated its domestic ‘Taliban Ordinance’ to prevent any crossing of the Swiss border by those named individuals, including Mr Nada. The particular difficulty for Mr Nada is that he has lived since 1970 in Campione d’Italia, which is a tiny Italian enclave of about 1.6 sq km, entirely surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. As a result of this geographical quirk, Mr Nada was essentially imprisoned in a 1.6 sq km space for several years.

“But the Security Council made me do it…”

The Swiss Government’s response to Mr Nada’s human rights claim was, in essence, that they were just doing what the UN Security Council had told them to do. Switzerland could not remove Mr Nada from the list – only the Security Council could do that. In fact, Switzerland could not even formally request Mr Nada’s removal from the list – as he is an Italian national only Italy could do that. In the meantime, Switzerland had to follow the requirements of SCR 1390. Article 103 of the UN Charter provides as follows:

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.

Therefore the Swiss Government said that their obligation to follow the UN Security Council resolution trumped any Article 8 concerns under the Convention.

The Court’s decision

However, the ECtHR held that whilst Switzerland had to implement the UN Security Council resolution, the UN did not impose on States a particular model for its implementation. Switzerland still therefore had “limited but nevertheless real” latitude in exactly how it would impose the travel ban on Mr Nada (see para 180). The Court held that, in applying the travel restrictions to Mr Nada, Switzerland did not sufficiently take into account the peculiar circumstances in which he found himself (especially his age, health and the unique geographical situation). The Court also held that Switzerland could have done more to encourage Italy to request Mr Nada’s removal from the list, and should have done this sooner. The Court noted in particular that it was not until four years after the Swiss investigation into Mr Nada was closed for lack of evidence that the Italians were notified about it; once Italy was told about it, and requested his removal,  Mr Nada’s name was very shortly afterwards taken off the list.

Therefore the Court held that Switzerland had breached Mr Nada’s Article 8 rights.

(Almost) dodging the real question

As a result of taking this approach, the ECtHR dodged the thorny issue of whether Article 103 did, in fact, trump the Convention, holding at paras 196-197 that:

In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms, the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation.

That finding dispenses the Court from determining the question…of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent.

Several of the Judges were somewhat uneasy about this analysis. Judges Bratza, Nicolaou and Yudkivska wrote a joint concurring opinion in which they said that they had “considerable doubts” about whether Switzerland did in fact have any latitude in implementing the UNSC resolution. They point out that Mr Nada’s case was different from the earlier case of Al-Jedda (about detention in Iraq – see our posts here and here), where the Court dealt with the Article 103 issue by finding that the relevant UNSC resolution did not specifically mention detention without trial and that, in the absence of clear and explicit language to the contrary, there was a presumption that the Security Council did not intend to impose any obligation on States to breach human rights. In Mr Nada’s case the UNSC resolution contained clear and specific language requiring a travel restriction to be placed on him. (This difference from the Al-Jedda case was also recognised in the main judgment at para 172.)

However, these three judges still dodged the Article 103 question, because in their view Switzerland, although it did not have any latitude in implementing the UNSC resolution, should still have taken such steps as were open to it to mitigate the effects on Mr Nada, and they did not do so.

Despite both the Court and the concurring Judges stating that the Al-Jedda interpretive method of reconciling a UNSC Resolution and the Convention did not apply in this case, it seems they actually then used the presumption that international agreements do not conflict with each other to deal with this case. So whilst the Court carefully avoided saying explicitly whether the Convention trumps a UNSC resolution and sidestepped the Article 103 question, they effectively did ‘read down’ the practical effect of the UNSC resolution in the light of the Convention.

As if that wasn’t confusing enough…

The Court seems to have gone even further in relation to Mr Nada’s Article 13 claim. His complaint was that the Swiss courts had heard his case but held that they were unable to do anything about it because they did not have the power to remove his name from the UN sanctions list (and therefore not from the the Swiss ‘Taliban Ordinance’ list either). The Court held that this meant Mr Nada did not have an effective remedy for the breach of his Article 8 rights, which is in itself a breach of Article 13. In reaching this conclusion, the Court quoted at para 212 from the Court of Justice of the European Union in the case of Kadi:

The Court would further refer to the finding of the [CJEU] that “it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations” … The Court is of the opinion that the same reasoning must be applied…to the present case, more specifically to the review by the Swiss authorities of the conformity of the Taliban Ordinance with the Convention. It further finds that there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at national level pursuant to those resolutions.

Kadi is a complex decision (involving the freezing of assets under the same UNSC resolution that affected Mr Nada) and the quotation above is not the simplest sentence to get your head around, but in brief the CJEU essentially refused to let a UNSC resolution trump EU law. Instead it held that international law (including the UN Charter) and EU law were two different systems, and that international law did not prevent the CJEU from reviewing something done by EU Member States or institutions in order to comply with an international law obligation.

The ECtHR seems to have done the same thing here with the Convention. So the apparent result of the paragraph above is that if the UN requires a Convention Member State to do something contrary to the Convention, the Member State has to do it but also has to provide an effective remedy to the person(s) affected (how is not clear – perhaps by paying compensation?). This does not seem to make any sense – the Member State has to provide a remedy to a person whose rights it had no option but to breach. It also ignores the fact that Article 13 only requires an effective remedy to be provided to someone who has an arguable complaint of a breach of their rights. If Article 103 of the UN Charter trumps the Convention, surely an action taken against someone as a result of a UN requirement is not an arguable complaint of a breach of their rights? Once again, the real issue is the Article 103 question, but the Court refused to deal with that head-on.

Comment

This case will be of great interest to both human rights lawyers and public international lawyers. Some further excellent analysis can be found here, here and here. In particular, whilst this judgment does not resolve the debate about whether actions of the UN Security Council trump Convention rights, it leaves open the intriguing possibility that the ECtHR might in future find that they do not. This is the second time in as many years that the Court has avoided the Article 103 question, but this simply highlights the problem and it seems likely the Court will not be able to avoid it forever.

Nada also raises other questions about the scope of the Convention and then leaves them unanswered, such as why was Mr Nada able to bring a claim against Switzerland when he lived in Italy and was an Italian national? It seems the Swiss Government did not object to the Court’s jurisdiction on this ground, so it was not considered, but it is not clear how this fits with the Court’s previous decisions in Bankovic and Al-Skeini (see our post here).

Postscript – UK involvement

Although this was a Swiss case, British lawyers were intimately involved on both sides of the argument. Mr Nada was represented by a London-based barrister, and the UK Government and JUSTICE both intervened. The UK Government took the view (see para 111) that SCR 1390 required Switzerland to take the actions it did, that Article 103 of the UN Charter took precedence over the ECHR, and that “the effectiveness of the sanctions regime set up to maintain international peace and security would be seriously compromised if priority were given to the rights arising from Articles 5 or 8 of the Convention.” JUSTICE, on the other hand, heavily criticised the UN sanctions regime as failing to allow listed persons any effective right to challenge their listing, and argued that the ECtHR was not obliged to interpret Article 103 as displacing Convention rights, since the Preamble to UN Charter attached equal importance to ‘respect for fundamental rights’ as it did to ‘the maintenance of international peace and security’.

Bonus surprising fact from this case [as a prize for reading this far!] – did you know that Switzerland only became a member of the UN on 10 September 2002?

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