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THE DIVERGING APPROACHES OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASES OF NADA AND AL-DULIMI

Published online by Cambridge University Press:  30 April 2015

Stephan Hollenberg
Stephan Hollenberg*
Affiliation:
Assistant Professor, Utrecht University, Department International and European Law and Netherlands Institute of Human Rights, [email protected].
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Abstract

The UN Security Council's practice of targeted sanctions has resulted in serious limitations on the enjoyment of targeted individuals' human rights. The European Court of Human Rights pronounced on this issue in two instances. In the cases of Nada (Grand Chamber judgment) and al-Dulimi (Chamber judgment) the Court was asked to evaluate the lawfulness of the domestic implementation of sanction measures against the ECHR. Surprisingly, each Chamber opted for a different solution. The present article will discuss these solutions and evaluate them within the broader framework of international law, the Court's jurisprudence, and the conflicting interests involved.

Keywords

access to courteffective remedyequivalent protectionEuropean Convention on Human RightsEuropean Court of Human Rightspresumption of complianceSecurity Counciltargeted sanctions
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 2 , April 2015 , pp. 445 - 460
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 The most familiar example of a targeted sanctions regime is probably that imposed against the Taliban and al-Qaida, established by UNSC resolutions 1267 (15 October 1999) UN Doc S/Res/1267; UNSC Res 1333 (19 December 2000) UN Doc S/Res/1333; and UNSC Res 1390 (28 January 2002) UN Doc S/Res/1390. Subsequently adopted resolutions separated this regime into two sanctions regimes, one concerning the Taliban (UNSC Res 1988 (17 June 2011) UN Doc S/Res/1988) and one concerning al-Qaida (UNSC Res 1989 (17 June 2011) UN Doc S/Res/1989). For an overview of Security Council's presently operative sanction regimes and the Sanctions Committees involved see <http://www.un.org/sc/committees/>. This research will, for readability purposes, refer only to individuals and not also to private entities. Targeted individuals and private entities are to a large extent in a similar position.

2 de Wet, E, ‘From Kadi to Nada: Judicial Techniques Favouring Human Rights over United Nations Security Council Sanctions’ (2013) 12 ChineseJIL 787, 789–90Google Scholar. See also Tladi, D and Taylor, G, ‘On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting’ (2011) 10 ChineseJIL 771, 788–9Google Scholar.

3 UNSC Res 1989 (17 June 2011) UN Doc S/Res/1989 [21]. See (n 1).

4 They can only resort to the Focal Point established by UNSC Res 1730 (19 December 2006) UN Doc S/Res/1730. This Focal Point functions merely as an intermediary between individuals who request delisting, and the Sanctions Committee. It does not have any powers of review. It forwards an individual's request to members of the Committee upon which any member can recommend delisting. See also Tladi and Taylor (n 2) 785–6.

5 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119 (UN Charter) art 103.

6 ibid.

7 See R (on the application of al-Jedda) v Secretary of State for Defence [2007] UKHL 58, ILDC 832 (UK 2007) [35].

8 Milanović, M, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) 20 DukeJComp&IntlL 69Google Scholar, 86.

9 S Hollenberg, Challenges and Opportunities for Judicial Protection against Decisions of the Security Council diss. University of Amsterdam, 11 June 2013, 17 and 221–5. Tzanakopoulos refers to such occurrence as dissociation. Tzanakopoulos, A, ‘The Solange Argument as a Justification for Disobeying the Security Council in the Kadi Judgments’ in Avbelj, M, Fontanelli, F and Martinico, G (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Judgment (Routledge 2014)Google Scholar available at SSRN <http://ssrn.com/abstract=2364764> 2ff. For examples in case law see: HM Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 2 & UKSC 5; ILDC 1533 (UK 2010) (Ahmed); The Netherlands v A and Others [2011] LJN: BQ4781 [5.5]; and The Netherlands v A and Others [2012] LJN: BX8351; ILDC 1959 (NL 2012) [3.6.2]. See also the Kadi I case in which the Court of Justice (CJ) clearly separated the EU legal order from general international law. Case C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351 (Kadi I, CJ) [288]. It relied on the constitutional principles of the European legal order, which it found could not be prejudiced by obligations imposed by an international agreement. ibid [285]. In this context, it equated to a certain extent the EU legal order with a domestic legal order. On the basis of the Court of Justice of the EU's (CJEU) characteristics that are most relevant for the analysis, it will be considered a domestic court for the purpose of the present discussion.

10 Nada v Switzerland [2012] ECHR 1691.

11 al-Dulimi & Montana Management Inc. v Switzerland [2013] ECHR 1173. The case was referred to the Grand Chamber 14 April 2014, see the Press Release issued by the Registrar of the Court, ECHR 105 (2014) available at <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=003-4735701-5755259>.

12 See (n 1).

13 See Youssef Mustapha Nada v Staatssekretariat für Wirtschaft [2007] 1A.45/2007 [10.2].

14 Nada (n 10) [149], [154].

15 Nada ibid [149]. The Court did not evaluate this complaint separately from the other issues under art 8 ECHR. However, see Concurring Opinion of Judge Malinverni to Nada v Switzerland [2012] ECHR 1691 [27]–[29]. See also A Willems, ‘The European Court of Human Rights on the UN Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland’ (2014) 83 NordicJIntlL 39, 58.

16 Art 8 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221; CETS 5 (ECHR). Mr Nada further complained about violations of the prohibition of torture and other inhumane treatment (art 3 ECHR); right to liberty and security (art 5 ECHR); and the right to freedom of religion (art 9 ECHR), which the Court all found to be manifestly ill-founded. Nada (n 10) [234] and [237].

17 Nada (n 10) [196].

18 Art 13 ECHR.

19 Nada (n 10) [213].

20 al-Dulimi (n 11) [10].

21 UNSC Res 1483 (22 May 2003) UN Doc S/Res/1483 [23]. The Sanctions Committee which had to designate the individuals and entities that had to be targeted was established by UNSC Res 1518 (24 November 2003) UN Doc S/Res/1518. See also ‘Non-Paper on the Implementation of Paragraph 23 of Resolution 1483 (2003)’ available at  <http://www.un.org/sc/committees/1518/pdf/Non-paper.pdf>.

22 UNSC Res 1483 (2003) ibid.

23 Art 6 (1) ECHR. al-Dulimi (n 11) [134]. Mr al-Dulimi also invoked arts 6(2), 6(3), 8 and 13 ECHR. See ibid [136]–[140].

24 There are different understandings of the notion ‘norm conflict’, compare: Pauwelyn, J, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CUP 2003)Google Scholar; de Wet, E and Vidmar, J, ‘Introduction’ in de Wet, E and Vidmar, J (eds), Hierarchy in International Law: The Place of Human Rights (OUP 2012)Google Scholar 2; and Milanović (n 8) 75.

25 International Law Commission (ILC), ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ UN Doc A/CN.4/L.682 [37]; Pauwelyn (n 24) 240.

26 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 31.

27 ibid art 31(3)(c).

28 al-Jedda v The United Kingdom [2011] 53 EHRR 23.

29 ibid [102].

30 ibid [102]. Sir Nigel Rodley, in his individual (concurring) opinion to the Human Rights Committee's view on the Sayadi and Vinck case, formulated a similar interpretative principle in relation to obligations created by the Security Council. UN Human Rights Committee ‘Views of the Committee Concerning the Communication Submitted by Sayadi and Vinck’ (29 December 2008) CCPR/C/94/D/1472/2006, 36. See to the same effect Alvarez, J, ‘The Security Council's War on Terrorism: Problems and Policy Options’ in de Wet, E and Nollkaemper, A (eds), Review of the Security Council by Member States (Intersentia 2003) 135–7Google Scholar, and Tzanakopoulos, A, Disobeying the Security Council (OUP 2011) 118CrossRefGoogle Scholar, 120. See also de Wet (n 2) 800.

31 UN Charter (n 5) art 24(2).

32 ibid art 1(1) and 1(3) in conjunction with arts 55 and 56. See al-Jedda (ECtHR) (n 28) [102].

33 al-Jedda (ECtHR) ibid.

34 ibid.

35 UNSC Res 1546 (8 June 2004) UN Doc S/Res/1546. The annexed letter of US Secretary of State Colin Powell refers to ‘internment where this is necessary for imperative reasons of security’.

36 al-Jedda (ECtHR) (n 28) [105]–[106].

37 ibid [109].

38 ibid. This interpretation conflicts with the House of Lords' earlier finding in the same case, al-Jedda (UKHL) (n 7). See also Eckes, C and Hollenberg, S, ‘Reconciling Different Legal Spheres in Theory and Practice: Pluralism and Constitutionalism in the Cases of Al Jedda, Ahmed and Nada’ (2013) 20 Maastricht Journal of European and Comparative Law 220Google Scholar, 237.

39 By way of analogy with the concept of parliamentary sovereignty as applied in the UK: see eg Ahmed (n 9) [111], [193] and [240]. See also Hollenberg (n 9) ch 6.4.1.

40 Milanović, M, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 EJIL 121, 138CrossRefGoogle Scholar.

41 ibid.

42 Nada (n 10) [172].

43 ibid.

44 UNSC Res 1390 (2002) (n 1) [2b].

45 ibid.

46 Nada (n 10) [172]. See UNSC Res 1267 (1999) (n 1) [7].

47 The travel ban in this sanctions regime was first adopted in UNSC Res 1390 (2002) (n 1) [2b].

48 UNSC Res 1624 (14 September 2005) UN Doc S/Res/1624 preamble. See similarly the declaration contained in UNSC Res 1456 (20 January 2003) UN Doc S/Res/1456 [6]. See also Special Rapporteur ‘Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (26 September 2012) UN Doc A/67/396 [18]–[19].

49 Nada (n 10) [176]–[180].

50 Al-Jedda (n 28) [102].

51 Nada (n 10) [196].

52 ibid. See also Concurring Opinion of Judges Bratza, Nicolaou and Yudkivska to Nada v Switzerland [2012] ECHR 1691 [9].

53 Nada ibid. [187]–[188].

54 ibid [193].

55 ibid [195]–[196].

56 ibid [197].

57 See eg Milanović (n 40) 138.

58 See Nada (n 10) [195].

59 Art 13 ECHR.

60 Nada (n 10) [212].

61 Nada (n 10) [210]–[213]. It found no such remedy, but did not include in its review the latest amendments, which established and further developed the Office of the UN Ombudsperson. It merely relied on the Swiss Federal Court's evaluation of such protection, which that court had made five years earlier in its decision on the case of Nada. Nada ibid. [211]; see also Nada CH (n 13) [8.1] and [8.3]. That was well before all the recent amendments were made to the de-listing procedure, such as the institution of the Ombudsperson in 2009. See especially UNSC Res 1904 (17 December 2009) UN Doc S/Res/1904 [20] and UNSC Res 1989 (17 June 2011) UN Doc S/Res/1989 [23].

62 See on this issue also Judges Bratza, Nicolaou and Yudkivska (n 52) [1]–[8], and Judge Malinverni (n 15) [2]–[10]. On scope of discretion see further section VI.

63 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [2005] 42 EHRR 1 [157].

64 See introduction to section III, and nn 25 and 26.

65 Bosphorus (n 63) [150].

66 See ibid [155]. See also M & Co v Germany (App 13258/87) (1990) 64 DR 138.

67 Bosphorus (n 63) [156].

68 al-Dulimi (n 11) [117]–[121]. As to the meaning of scope of discretion see section V.

69 ibid [119].

70 See (n 4).

71 ibid [120].

72 ibid [121] and also [134].

73 ibid [122]. See section VI.

74 See Bosphorus (n 63), and also ibid. [116]. The Court has however also extended its application to other international organisations. See Ryngaert, C, – AND the opening quote mark which follows is the wrong way around ‘The European Court of Human Right's Approach to the Responsibility of Member States in Connection with Acts of International Organisations’ (2011) 60 International and Comparative Law Quarterly 997Google Scholar.

75 See the argument developed in Hollenberg (n 9) 118–25. See also similarly Mothers of Srebrenica v The Netherlands [2013] App No 65542/12 [154] and [161]–[164], in which the ECtHR rejected the application of the reasonable alternative means test—which would normally apply in the context of assessing the lawfulness of limitations on the access to court due to IO immunities—in relation to conduct following from Security Council action under Chapter VII of the UN Charter.

76 See Hollenberg, S, ‘The Security Council's 1267/1989 Targeted Sanctions Regime and the Use of Confidential Information: A Proposal for Decentralization of Review’ (2015) 28 LJIL 49CrossRefGoogle Scholar.

77 Hollenberg (n 9) ch 5.2.1. Indeed, also among courts opinions may differ on the extent of scope of discretion left by the Security Council. Compare the General Court's (GC) decision in Case T-85/09 Kadi v European Commission [2010] ECR II-05177 (Kadi II, GC) [116] to Kadi I, CJ (n 9) [298].

78 It engaged in some half-hearted and unconvincing attempts in Nada (n 10) paras [177] and [178]. See also Judge Malinverni (n 15) [3]–[4].

79 Nada (n 10) [176] and [212]. Referring to the Court of Justice in Kadi I (n 9) [298] and [299].

80 UN Charter (n 5) art 25.

81 al-Dulimi (n 11) [117].

82 Still courts may disagree on this matter; see (n 77).

83 Tzanakopoulos (n 9) 3.

84 See similarly Kadi II, CFI (n 77) [171].

85 al-Dulimi (n 11) [117]–[121].

86 Compare UNSC Res 1390 (n 1) [2] to UNSC Res 1483 (n 21) [23].

87 Tzanakopoulos (n 9) 3; Blokker, N, ‘Reviewing the Review: Did the European Court of Justice in Kadi Indirectly Review Security Council Resolutions? On the Downside of a Courageous Judgment’ in Bulterman, M et al. (eds), Views of European Law from the Mountain: Liber Amicorum Piet Jan Slot (Kluwer Law International 2009) 315, 323–4Google Scholar. See also Kadi II, CFI (n 77) [171].

88 For a suggestion to decentralize the designation procedures for the targeted sanctions regimes see Hollenberg (n 76).

89 The Security Council resolution relevant to Mr al-Dulimi does mention that ‘claims made by private individuals or non-government entities on [funds transferred to the Development Fund for Iraq] may be presented to the internationally recognized, representative government of Iraq.’ UNSC Res 1483 (n 21) [23]. This might suggest that Mr al-Dulimi's only remedy foreseen by the Security Council is via the Iraqi government, and a contrario excluding other possibilities. But the context of this provision indicates that it must be concerned with the claims of others than the targeted individual. Moreover, the Court does not consider this aspect of the provision at all.

90 T Theniel, ‘Nada v Switzerland: The ECtHR Does Not Pull a Kadi (But Mandates It for Domestic Law)’ (12 September 2012) Invisible College Blog <http://invisiblecollege.weblog.leidenuniv.nl/2012/09/12/nada-v-switzerland-the-ecthr-does-not-pu/>.

91 See Hollenberg (n 76) 60–1.

92 For the ancillary character of the right to an effective remedy, see B Rainey, E Wicks and C Ovey, Jacobs, White & Ovey: The European Convention on Human Rights (6th edn, OUP 2014) 130–1.

93 A prerequisite for the application of art 13 ECHR. See ibid 131ff.

94 Nada (10) [209].

95 ibid [188], [193] and [195]–[196].

96 See ibid [213].

97 Golder v The United Kingdom [1975] 4451/70 [36].

98 Rainey et al. (n 92) 137–9.

99 See Golder (n 97) [34], and Ahmed (n 9) [146].

100 Civil rights and obligations have autonomous meanings, but it is clear that they must be granted or exist under domestic law. It is then for the Court to ascertain whether that is the case. Rainey et al. (n 91) 259.

101 ibid 535–8.

102 Golder (n 97) [33]. But see Rainey et al. (n 92) 536.

103 See, however, Hollenberg (n 9) 139.

104 See Hollenberg (n 76) 53–4.

105 Wikileaks Cable Viewer ‘cable 08STATE116615, UN FOCAL POINT DELISTING REQUEST FOR KHALAF’ <http://wikileaks.org/cable/2008/10/08STATE116615.html> (last visited 25 March 2014).

106 An example can be found in the recent decision of EU's General Court in the case of Makhlouf, concerning sanction measures against members of the Syrian regime. Case T-383/11 Makhlouf v Council [2013] ECR-II 0000.

107 See Kadi I, CJ (n 9); Kadi II, GC (n 77); Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission and United Kingdom v Yassin Abdullah Kadi [2013] ECR I-0000 (Kadi II, CJ); Ahmed (n 9).

108 See for example the preamble of the resolution establishing the Office of the Ombudsperson, in which the Security Council took ‘note of challenges, both legal and otherwise, to the measures implemented by Member States'. UNSC Res 1904 (n 61). See also de Wet (n 2) 799.

109 Special Rapporteur ‘Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’ (26 September 2012) UN Doc A/67/396 [23]. See also Blokker (n 87) 325.

110 Hollenberg (n 9) 255.

111 This in contrast to the Court of Justice's decision in its latest Kadi case, in which it largely ignored the progress being made at the UN level. See Kadi II, CJ (n 107) [133].

112 See Bosphorus (n 63) [159].

113 See for a solution Hollenberg (n 76).

114 See (n 39).