CASE OF AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND

Application no. 5809/08 · Delivered 2016-06-21 · ECLI:CE:ECHR:2016:0621JUD000580908 · Languages: EN · EN · FR

← Strasbourg↗ HUDOC original
Application no.
5809/08
Delivered
2016-06-21
Respondent State
CHE
Conclusion
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione materiae;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Convention articles
6, 6-1, 15, 35, 35-3-a, 41
Importance
Key case
Original
HUDOC ↗
PresidentMirjana Lazarova TrajkovskaJudgeDean SpielmannJudgeJosep CasadevallJudgeAngelika NußbergerJudgeIneta ZiemeleJudgeMark VilligerJudgeKhanlar HajiyevJudgeVincent A. De GaetanoJudgeJulia LaffranqueJudgePaulo Pinto de AlbuquerqueJudgeLinos-Alexandre SicilianosJudgeHelen KellerJudgeAndré PotockiJudgeAleš PejchalJudgeDmitry DedovJudgeEgidijus KūrisJudgeRobert SpanoJudgeJohan CallewaertJudgeDeputy Grand Chamber Registrar
Summary
Preparing…

GRAND CHAMBER

CASE OF AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND

(Application no. 5809/08)

JUDGMENT

STRASBOURG

21 June 2016

This judgment is final.

In the case of Al-Dulimi and Montana Management Inc. v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Mirjana Lazarova Trajkovska, President,

Dean Spielmann,

Josep Casadevall,

Angelika Nußberger,

Ineta Ziemele,

Mark Villiger,

Khanlar Hajiyev,

Vincent A. De Gaetano,

Julia Laffranque,

Paulo Pinto de Albuquerque,

Linos-Alexandre Sicilianos,

Helen Keller,

André Potocki,

Aleš Pejchal,

Dmitry Dedov,

Egidijus Kūris,

Robert Spano, judges,

and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 10 December 2014 and 9 March 2016,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

There appeared before the Court:

(a) for the respondent Government Mr F. Schürmann, Head of the International Human Rights

Protection Unit, Federal Office of Justice, Federal

Department of Justice and Police, Agent,

Mr V. Zellweger, Director of the Public International Law

Directorate, Federal Department of Foreign Affairs,

Mr R. Vock, Head of Sanctions Section, State Secretariat

for Economic Affairs, Federal Department of Economic

Affairs, Training and Research,

Mr A. Scheidegger, Deputy Head of the International

Human Rights Protection Unit, Federal Office of Justice,

Federal Department of Justice and Police,

Ms C. Ehrich, scientific assistant, International Human

Rights Protection Unit, Federal Office of Justice,

Federal Department of Justice and Police,

Ms N. Blum, scientific assistant, International Treaties

Section, Public International Law Directorate,

Federal Department of Foreign Affairs, Advisers;

(b) for the applicants Mr J.-C. Michel, member of the Geneva Bar,

Mr T. Obeidat, member of the Amman and New York

Bars,

Mr S. Fries, member of the Geneva Bar, Counsel,

Prof. A. Bianchi, professor of international law,

Institut de Hautes Études Internationales

et du Développement, Geneva, Adviser,

Mr K. Al-Dulimi, applicant;

(c) for the United Kingdom Government Ms I. Rao, Agent,

Mr J. Wright QC MP, Attorney General,

Mr S. Wordsworth QC, Counsel,

Mr A. Murdoch,

Mr T. Rycroft,

Ms T. Njai,

Ms N. Davey, Advisers;

(d) for the French Government Mr G. de Bergues, Deputy Director of Legal Affairs,

Ministry of Foreign Affairs, Co-Agent,

Mr D. Lemétayer, Drafting Officer, Public International

Law Section, Ministry of Foreign Affairs,

Mr R. Féral, Drafting Officer, Human rights Section,

Ministry of Foreign Affairs,

Ms M. Janicot, Drafting Officer, Human rights Section,

Ministry of Foreign Affairs, Advisers.

The Court heard addresses by Mr Michel, Professor Bianchi, Mr Schürmann, Mr Zellweger, Mr Wright and Mr de Bergues, and their replies to questions from judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

“The Security Council

...

Decides that all Member States in which there are:

(a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or

(b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph 22.”[1]

(a) the sum of 86,276.85 Swiss francs (CHF) belonging to the first applicant, representing the liquidation dividend of a company (not the second applicant) of which he had been the sole shareholder, and deposited in the “client” account of a Swiss law firm which represented him;

(b) a total of CHF 164,731,213 deposited in the applicant company’s name with bank X;

(c) a total of CHF 104,739,882.57 deposited in the applicant company’s name with bank Y.

B. Federal Court judgments of 23 January 2008

“5.5.1 On 10 September 2002 Switzerland became a member of the United Nations and ratified the United Nations Charter of 26 June 1945 (the Charter; RS 0.120). Article 24, paragraph 1, of the Charter provides that, in order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Under Article 25 of the Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter. The binding nature of Security Council decisions concerning measures taken in accordance with Articles 39, 41 and 42 to maintain or restore international peace and security also stems from Article 48, paragraph 2, of the Charter, which provides that such decisions must be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The mandatory effect of Security Council decisions is the basis for the similar effect of decisions taken by subsidiary organs such as the sanctions committees (see Eric Suy and Nicolas Angelet in Jean-Pierre Cot, Alain Pellet and Mathias Forteau, La Charte des Nations Unies, commentaire article par article, 3rd edition, Economica 2005, Article 25, pp. 915 et seq.).

5.2 It was under Chapter VII (Articles 39 to 51) of the Charter that the Security Council adopted Resolution 1483 (2003): having regard to the situation in Iraq, the Security Council considered that it had to take measures ‘to maintain or restore international peace and security’. Those measures included, in particular, the decisions stated in paragraphs 19 and 23 of the Resolution: in particular, the Security Council decided that member States were required to freeze and transfer to the Development Fund for Iraq the assets described in paragraph 23 of the Resolution. It also decided that the 1518 Sanctions Committee would have the task of identifying the individuals and entities referred to in paragraph 23.

5.3 At the outset, the 1518 Sanctions Committee published a set of guidelines for the application of paragraphs 19 and 23 of Resolution 1483 (2003) (see http://www.un.org/french/sc/committees/1518/indexshtml); they described the manner in which the lists of individuals and entities would be drawn up and disseminated. In that document the Committee requests as follows: ‘The names of individuals and entities proposed for identification should be accompanied by, to the extent possible, a narrative description of the information that forms the basis or justification for taking action pursuant to resolution 1483 (2003).’ The procedure is then described in the following terms. The Committee will reach decisions by consensus. If consensus cannot be reached, the Chairman should undertake such further consultations as may facilitate agreement. If after these consultations, consensus still cannot be reached, the matter may be submitted to the Security Council. Given the specific nature of the information, the Chairman may encourage bilateral exchanges between interested member States in order to clarify the issue prior to a decision. Where the Committee agrees, decisions may be taken by a written procedure. In such cases, the Chairman will circulate to all members of the Committee the proposed decision of the Committee, under the ‘no-objection’ procedure within three working days. If no objection is received within such a period, the decision will be deemed adopted.

5.4 Company S. SA and [the first applicant] appear on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ... for the company and ... for the latter, on the ground that its managing director is [the first applicant], the head of finance, at the time, of the Iraqi secret services, who also controls the companies H., K. SA and M. [the second applicant], three entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).”

The two judgments concerning the second applicant:

“5.4 The [second applicant] appears on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ..., on the ground that its managing director is [the first applicant], who also controls H. and K. SA, two entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).”

The judgment concerning the first applicant (continued):

“6.6.1 Since 28 November 1974 Switzerland has been a Contracting Party to the European Convention on Human Rights. However, even though it signed, on 19 May 1976, additional Protocol No. 1 of 20 March 1952, which guarantees in particular the protection of property (Article 1), it has not ratified it to date. That Protocol has not therefore come into force in respect of Switzerland. Consequently, in Switzerland, the protection of property is guaranteed by the Federal Constitution alone (Article 26).

Under Article 1 ECHR, the High Contracting Parties undertake to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention (Articles 2 to 18 ECHR). Article 6 § 1 ECHR, in particular, grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of an individual’s civil rights and obligations or of any criminal charge against him or her. Under Article 13 ECHR, everyone whose rights and freedoms as set forth in the Convention are violated is entitled to an effective remedy before a national authority.

...

6.4 Even though he relies on the guarantee of the protection of property and points out that restrictions on property are possible only under the conditions laid down in Article 36 of the Constitution, the appellant is in reality only complaining of a breach of procedural safeguards and not of a violation of Articles 26 and 36 of the Constitution. He observes that restrictions on the enjoyment of his possessions, such as the confiscation of his property, can be ordered only after due process under domestic law, including a substantive examination of the legal conditions for such restriction, while ensuring the observance of fundamental rights, basic procedural safeguards, and defence rights, or the right to be heard, and in compliance with the requirement to state reasons, the prohibition of any denial of justice, and the equality of arms and adversarial principles (see appellant’s observations, ch. 76-80). He complains that the reasons for his inclusion on the list of the 1518 Sanctions Committee were never brought to his knowledge and that he was not able to comment on them or defend himself in adversarial proceedings before an independent and impartial judicial body, this not being disputed – quite rightly – by the Department for Economic Affairs in the light of the listing procedure (see above, point 4.3).

In this connection, the appellant is of the opinion that Switzerland is required to apply Resolution 1483 (2003), but also the provisions of the European Convention on Human Rights and those of the International Covenant on Civil and Political Rights concerning procedural safeguards; he argues that there is no contradiction between those various obligations, and that for this reason the decision appealed against should be quashed and the matter referred back for fresh confiscation proceedings before the Swiss courts, which would examine the merits of the measure in compliance with basic procedural safeguards.

It is therefore appropriate to examine the procedural safeguards that Switzerland is required to comply with, having regard to its obligations under the Charter and Resolution 1483 (2003), in the proceedings initiated by the Federal Department for Economic Affairs leading to the confiscation of the appellant’s assets.

7.7.1 Pursuant to Article 5 paragraph 4, of the Constitution, the Confederation and the Cantons comply with international law. Under Article 190 of the Constitution, the Federal Court and the other authorities are required to apply federal laws and international law. International law, within the meaning of Article 190 of the Constitution, is defined by jurisprudence as the entire body of international law that is binding on Switzerland, comprising international agreements, customary international law, the general rules of the law of nations and the decisions of international organisations that have mandatory effect in Switzerland. Accordingly, the Federal Court is in principle required to comply with the provisions of the Charter, United Nations Security Council resolutions, the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

7.2 Article 190 of the Constitution does not, however, provide for any rule of conflict between the various norms of international law that are equally binding on Switzerland. However, under Article 103 of the Charter, in the event of a conflict between the obligations of the members of the United Nations under the Charter and their obligations under any other international agreement, their Charter obligations prevail. This primacy is also enshrined in Article 30 § 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (‘VCLT’; RS 0.111; came into force in respect of Switzerland on 6 June 1990).

According to legal opinion and case-law, this is an absolute and general primacy which applies regardless of the nature of the treaty which is in conflict with the Charter, whether it is bilateral or multilateral, or whether the treaty came into force before or after the entry into force of the Charter. The primacy is granted not only to the obligations expressly laid down in the Charter, but also, according to the International Court of Justice, to those that stem from binding decisions of United Nations organs, in particular the binding decisions taken by the Security Council pursuant to Article 25 of the Charter (see the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, ICJ Reports 1992, p. 15, paragraph 39; see also Felipe Paolillo in Les conventions de Vienne sur le droit des traités, commentaire article par article, Olivier Corten and Pierre Klein (eds.), Bruylant, Brussels 2006, no. 33 on Article 30 VCLT and the numerous references cited). This primacy does not render null and void the treaty which is in conflict with the Charter obligations, but merely suspends the treaty for as long as the conflict remains (see Eric Suy in Les conventions de Vienne sur le droit des traités, op. cit., no. 15 on Article 53 VCLT and the references cited).

Moreover, neither the European Convention on Human Rights nor the International Covenant on Civil and Political Rights contains clauses which would, in themselves or by virtue of another treaty, prevail over the conflict clause that is enshrined in both Article 103 of the Charter and Article 30 § 1 VCLT.

Article 46 ICCPR certainly provides that ‘[n]othing 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 the specialized agencies in regard to the matters dealt with in the present Covenant’. However, according to legal opinion, this provision simply means that the International Covenant on Civil and Political Rights cannot hinder the task of the political organs and specialised agencies which have been entrusted under the Charter with duties relating to human rights (see Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, no. 3, on Article 46 ICCPR, p. 798). It does not therefore establish any hierarchy between the decisions of the Security Council and the rights guaranteed by the ICCPR – the United Nations as such is not a party to the latter in any event. It cannot be concluded that the International Covenant on Civil and Political Rights prevails over Charter obligations.

7.3 Consequently, in the event of any conflict between Switzerland’s obligations under the Charter and those deriving from the European Convention on Human Rights or the International Covenant on Civil and Political Rights, the Charter obligations in principle prevail over the latter, as the appellant has not in fact denied. He takes the view, however, that this principle is not absolute. In his opinion, the obligations arising from the Charter, in particular those imposed by Resolution 1483 (2003), lose their binding character if they contravene the rules of jus cogens.

8.1 Under the heading ‘Treaties conflicting with a peremptory norm of general international law (jus cogens)’, Article 53 VCLT provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, that is, a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Moreover, Article 64 VCLT provides that, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Article 71 VCLT governs the consequences of the invalidity of a treaty in such cases.

8.2 Article 53 VCLT does not contain any examples of peremptory norms of general international law (Report of the International Law Commission, Commentary on Art. 50, ILC Yearbook 1966 II, pp. 269 et seq.). The words ‘by the international community of States as a whole’ do not mean that a norm must be accepted and recognised as peremptory by States unanimously. A significant majority is sufficient. By way of example, the norms concerning the prohibition of the use of force, slavery, genocide, piracy, unequal treaties and racial discrimination are generally cited (see Eric Suy, op. cit., no. 12 on Article 53 VCLT, p. 1912; Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international public, 7th edition, LGDJ 2002, no. 127, pp. 205 et seq.; and Joe Verhoeven, Droit international public, Larcier 2000, pp. 341 et seq.).

This list of examples does not include the rights deriving from Article 14 ICCPR and Article 6 ECHR, which are relied upon by the appellant. Their mere recognition by the International Covenant on Civil and Political Rights and the European Convention on Human Rights does not go so far as making them peremptory norms of general international law. It transpires, moreover, from the preparatory work in respect of Article 53 VCLT and the wording of that provision that in principle there can be no regional jus cogens norms (see Eric Suy, op. cit., no. 9 on Article 53 VCLT, p. 1910; this is a controversial matter in legal opinion, see inter alia: Eva Kornicker, Ius cogens und Umweltvölkerrecht, Thesis Basle 1997, pp. 62 et seq. and the numerous references cited therein).

8.3 It is true that, in the event of a public emergency which threatens the life of the nation, Article 4, paragraphs 1 and 2, ICCPR authorises, under certain conditions, measures that derogate from the obligations under the Covenant, except for those deriving from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 (right to life, prohibition of torture, prohibition of slavery, prohibition of imprisonment on the ground of inability to fulfil a contractual obligation, prohibition of retrospective criminal legislation, recognition of legal personality, freedom of thought, conscience and religion). Article 15, paragraphs 1 and 2, ECHR also contain a public-emergency clause permitting derogation from Convention obligations, similarly excluding any derogation from Articles 2, 3, 4 (paragraph 1) and 7 (right to life, prohibition of torture, prohibition of slavery, no punishment without law). Some authors take the view that the rights and prohibitions listed in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR correspond to the core human rights and could therefore be regarded as peremptory norms of general international law (see Stefan Oeter, ‘Ius cogens und der Schutz der Menschenrechte’, in Liber amicorum Luzius Wildhaber 2007, pp. 499 et seq. and pp. 507 et seq.); for other authors the provisions merely point in that direction (see Eva Kornicker, op. cit., pp. 58 et seq.). The latter opinion seems to correspond to that of the (former) Commission on Human Rights [recte: Human Rights Committee], which found that the list of non-derogable rights in Article 4, paragraph 2, ICCPR might admittedly be related to, but not identical with, the question whether certain human rights corresponded to peremptory norms of general international law (General Comments 29/72 of 24 July 2001 under Article 40, paragraph 4, ICCPR, ch. 11, in Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, pp. 1145 et seq. at 1149). In the present case it is not necessary to settle this question in so far as Article 14 ICCPR and Article 6 ECHR do not, in any event, appear in the lists given in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR.

8.4 Consequently, contrary to what the appellant has claimed, neither the fundamental procedural safeguards, nor the right to an effective remedy, under Articles 6 and 13 ECHR and Article 14 ICCPR, have per se the nature of peremptory norms of general international law (jus cogens), in particular in the context of the confiscation procedure affecting the appellant’s property (see, to the same effect, the judgment of the Swiss Federal Court no. 1A.45/2007 of 14 November 2007 in the case of Nada v. DFE, point 7.3; judgment of the Court of First Instance of the European Communities, 21 September 2005, Yusuf and Al Barakaat International Foundation v. Council and Commission, T-306/01 Reports 2005 II, p. 3533, paragraphs 307 and 341; judgment of the Court of First Instance of the European Communities, 21 September 2005, Kadi v. Council and Commission, T-315/01 Reports 2005 II p. 3649, paragraphs 268 and 286; judgment of the Court of First Instance of the European Communities, 12 July 2006, Ayadi v. Council, T-253/02 Reports 2006 II p. 2139, paragraph 116; judgment of the Court of First Instance of the European Communities, 12 July 2006, Hassan v. Council and Commission, T-49/04 Reports 2006 II p. 52, paragraph 92).

As to the rights guaranteed by Articles 29 et seq. of the Constitution, this is a matter of domestic law which cannot constitute jus cogens or hinder the implementation by Switzerland of Resolution 1483 (2003).

9.1 That opinion cannot be upheld. The description of the measures (freezing of funds or other financial assets, immediate transfer thereof to the Development Fund for Iraq), of the individuals and entities concerned (previous Iraqi government, Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction), and of the mandate given to the 1518 Sanctions Committee (to enumerate the individuals and entities mentioned in paragraph 23), is detailed and leaves no room for interpretation. Similarly, the list of individuals and entities drawn up by the 1518 Sanctions Committee is not indicative in nature. It is not a matter of deciding whether the appellant’s name should be, or is legitimately, included on that list; it is simply a question of observing that his name does appear on the list in question, which must be transposed into Swiss domestic law. In asserting that it should be possible to deal separately with the question of the confiscation of his assets, the appellant overlooks the fact that the measures imposed on member States include the immediate transfer of the frozen assets to the Development Fund for Iraq. This order does not call for any interpretation, nor does it grant any latitude in the result that it requires of member States as to the treatment of the frozen assets of persons who, like the appellant, are included in particular on the list of the 1518 Sanctions Committee. Being clearly ascertained, those assets must be transferred to the Development Fund for Iraq. From that perspective, the present case differs from a case examined by the Court of First Instance of the European Communities, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union. It concerned Resolution 1373 (2001) of 28 September 2001 laying down strategies to combat terrorism, which required the member States of the United Nations – in that case the European Community – to identify individuals, groups and entities whose funds had to be frozen, because the Resolution itself did not provide any list of the latter. The Court of First Instance found that procedural safeguards had to be observed in the keeping of such a list (judgment of the Court of First Instance of the European Communities, 12 December 2006, Organisation des Modjahedines du peuple d’Iran v. Council, T-228/02, not yet reported).

9.2 In those circumstances, contrary to what the appellant has claimed, the implementation of Resolution 1483 (2003) requires Switzerland to adhere strictly to the measures introduced and to the decisions of the 1518 Sanctions Committee, which, unless found by the Security Council to be in breach of jus cogens norms, does not leave any room, even on the grounds of ensuring the procedural safeguards provided for in the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the Swiss Constitution, for an examination of the procedure by which the appellant’s name was added to the list issued by the 1518 Sanctions Committee, or for verification of the justification for such addition.

10.1 According to the foregoing considerations, Article 4 of the Confiscation Ordinance cannot authorise the Federal Court, any more than the authority below, to verify whether the appellant’s inclusion on the list issued by the 1518 Sanctions Committee complied with the procedural safeguards of Article 14 ICCPR, Article 6 ECHR and Articles 29 et seq. of the Constitution. With the exception of an examination of a possible breach of jus cogens norms, as shown above, Switzerland is thus not authorised to scrutinise the validity of Security Council decisions, and in particular that of Resolution 1483 (2003), not even in terms of compliance with procedural safeguards, or to provide redress for any defects in such decisions. For that could have the effect of depriving Article 25 of the Charter of any effectiveness, as would be the case if the appellant’s frozen assets were not confiscated and transferred to the Development Fund for Iraq (see Eric Suy and Nicolas Angelet in La Charte des Nations Unies, Commentaire article par article, Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), 3rd edition, Economica 2003, Art. 25, p. 917).

10.2. However, with that reservation, Switzerland is free to choose how it transposes into domestic law the obligations arising from Resolution 1483 (2003) and the arrangements for transferring the frozen assets. The Federal Council has made use of this discretion in distinguishing between the measures introduced for the freezing of the assets and those governing the transfer of frozen assets. The Federal Department, for its part, suspended the confiscation procedure at the request of the appellant, who sought to have the matter examined by the Sanctions Committee, and resumed it only upon his express application. With the same reservation, the Federal Council was entitled to guarantee the right of the frozen asset-holders to be heard before the confiscation decision was taken. It was also entitled to make available an administrative-law appeal against such decisions.

In the present case, the appellant made full use of his right to be heard because he obtained access to the file of the Federal Department for Economic Affairs, or at least to the relevant bank documents, and had the opportunity to express himself before that authority. He also fully availed himself of the right provided for in Article 4 of the Confiscation Ordinance by lodging the present administrative appeal. As to that matter, falling as it does within the jurisdiction of Switzerland, it should be noted that the applicant has not submitted any complaint of a violation of Articles 26 and 36 of the Constitution in respect of the confiscation procedure (see point 5.4).

In a further complaint, lastly, the appellant contended that the refusal to annul the decision of the Federal Department for Economic Affairs of 16 November 2006 for a breach of procedural safeguards ran counter to the position defended on many occasions by Switzerland, the Federal Council or the Federal Department for Foreign Affairs, asserting an intangible principle of respect for human rights. He argued that this was an ‘indivisible’ position in relation to other Nations which had been disregarded by the decision of the Federal Department for Economic Affairs of 16 November 2006.

10.3 The appellant seems to be unaware of the meaning that should be given to indivisibility (in the area) of human rights. According to legal opinion, the principle of indivisibility of human rights means that States cannot choose between human rights in order to give priority to some over others. The aim of this principle is to prevent governments from claiming to defend human rights by choosing from the list, as they see fit, those they accept and those they ignore (see Françoise Bouchet-Saulnier, Droits de l’homme, droit humanitaire et justice internationale, Actes Sud 2002, pp. 23 and 27 et seq.).

10.4 In the present case, to the extent that his position can be understood, the appellant is complaining more about Switzerland’s attitude, which he regards as contradictory. This opinion disregards the fact that the positive legal order, as set out above, is mandatory under Article 190 of the Constitution for reasons of legal certainty. Switzerland cannot, by itself, delete the appellant’s name from the list drawn up by the Sanctions Committee, which has sole competence for that purpose, even if the procedure for that purpose is not fully satisfactory (see judgment 1A.45/2007 of 14 November 2007, point 8.3). Moreover, it is not contradictory for the federal authorities to find the system deficient and yet, as in the present case, to advocate and act on a political level in favour of intangible respect for human rights, especially in relation to the listing and delisting procedures applied by the 1518 Sanctions Committee. Switzerland’s conduct does not therefore breach Articles 26 and 29 et seq. of the Constitution, Articles 6 and 13 ECHR or Article 14 ICCPR, under that head either.

C. Subsequent developments

II. RELEVANT DOMESTIC LAW

A. Federal Constitution

Article 26: Guarantee of property

“1. Property shall be guaranteed.

Article 190: Applicable law

“The Federal Court and the other authorities shall be required to apply federal statutes and international law.”

B. Ordinances of the Federal Council

Article 1

Ban on supply of military equipment

“1. The supply, sale or brokerage of arms to anyone in Iraq, with the exception of the Iraqi government or the multinational force within the meaning of Security Council Resolution 1546 (2004), shall be prohibited.

Article 2

Freezing of assets and economic resources

“1. The following assets and economic resources shall be frozen:

(a) Those belonging to or under the control of the previous government of Iraq or to undertakings or corporations under its control. The scope of this freezing measure shall not extend to the assets and economic resources of Iraqi representations in Switzerland or to any assets and economic resources which have been deposited in Switzerland by Iraqi State-owned undertakings or corporations or which have been paid or transferred thereto after 22 May 2003.

(b) Those belonging to or under the control of senior officials of the former Iraqi regime and their immediate family members.

(c) Those belonging to or under the control of undertakings or corporations which are themselves controlled by persons listed in sub-paragraph (b) or which are under the management of persons acting on behalf of or at the direction of persons listed in paragraph (b).

Article 2a

Mandatory declarations

“1. Any person or organisation holding or managing assets acknowledged to be covered by the freezing of assets under Article 2 § 1 hereof must immediately declare them to the SECO.

1 bis. Any person or organisation knowing of economic resources acknowledged to be covered by the freezing of economic resources under Article 2 § 1 hereof must immediately declare them to the SECO.

Article 2c: Implementation of the freezing of economic resources

“On the direction of the SECO, the competent authorities shall take the necessary measures for the freezing of the economic resources, for example, by an indication of freezing in the land register or the seizure or placing under seal of luxury goods.”

Article 1

Object

“The present Ordinance shall govern:

(a) The confiscation of the assets and economic resources which have been frozen pursuant to Article 2 § 1 of the Ordinance of 7 August 1990 instituting economic measures in respect of the Republic of Iraq; and

(b) The transfer of the assets and the proceeds from the sale of the economic resources to the Development Fund for Iraq.” Article 2

Confiscation procedure

“1. The Federal Department for Economic Affairs, Training and Research (DEFR) shall be authorised to confiscate, by means of a decision, the assets and economic resources under Article 1 hereof.

Article 3

Exceptions

“The DEFR may, after consulting the appropriate services of the Federal Department for Foreign Affairs and the Federal Department for Finance, authorise exceptions in order to prevent hardship cases. Requests pertaining thereto shall be submitted to the DEFR within the time-limit provided for in Article 2 § 2.”

Article 4

Appeals

“Confiscation decisions taken by the DEFR may be appealed against to the Federal Administrative Court.”

Article 5

Transfer to the Development Fund for Iraq

“As soon as the confiscation decision has become res judicata, the DEFR shall proceed with the transfer of the confiscated assets, and the proceeds from the sale of the confiscated economic resources, to the Development Fund for Iraq.”

Article 6

Entry into force and term

“1. The present Ordinance shall come into force on 1 July 2004 and shall remain in effect until 30 June 2007.

C. Case-law of the Swiss Federal Court

III. RELEVANT INTERNATIONAL AND EUROPEAN LAW AND PRACTICE

A. The United Nations Charter and relevant case-law of the International Court of Justice

Preamble

“We the peoples of the United Nations, determined

...

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,

...”

Article 1

“The Purposes of the United Nations are:

...

...”

Article 24

“1. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

...”

Article 25

“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

...”

Article 41

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

Article 48

“1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

Article 55

“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

...

(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Article 103

“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.”
“... Furthermore, it is also important always to bear in mind that all regional, bilateral, and even multilateral, arrangements that the Parties to this case may have made, touching on the issue of settlement of disputes or the jurisdiction of the International Court of Justice, must be made always subject to the provisions of Article 103 of the Charter ...”
“... when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision, including those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council. To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter ...”
“Whereas both Libya and the United Kingdom, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; ... and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement ...”

B. International treaties of universal scope

Article 30

Application of successive treaties relating

to the same subject matter

“1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.

(a) as between States Parties to both treaties the same rule applies as in paragraph 3;

(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

Article 53

Treaties conflicting with a peremptory

norm of general international law (“jus cogens”)

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

Article 64

Emergence of a new peremptory norm of

general international law (“jus cogens”)

“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”

Preamble

“The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

...

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

...

Agree upon the following articles:

...”

Article 2 § 3

“Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.” Article 14 § 1

“... In the determination ... of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ...”

Article 46

“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 the specialized agencies in regard to the matters dealt with in the present Covenant.”

C. UN Security Council resolutions relevant to the present case

“The Security Council,

Recalling all its previous relevant resolutions,

Reaffirming the sovereignty and territorial integrity of Iraq,

...

Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly,

...

Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance,

Noting the statement of 12 April 2003 by the Ministers of Finance and Central Bank Governors of the Group of Seven Industrialized Nations in which the members recognized the need for a multilateral effort to help rebuild and develop Iraq and for the need for assistance from the International Monetary Fund and the World Bank in these efforts,

...

Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security,

Acting under Chapter VII of the Charter of the United Nations,

...

...

(d) facilitating the reconstruction of key infrastructure, in cooperation with other international organizations;

(e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and the international financial institutions;

...

(g) promoting the protection of human rights;

...

...

...

...

(a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or

(b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph 22;

...

“The Security Council,

Recalling all of its previous relevant resolutions,

Recalling further its earlier decision in resolution 1483 (2003) of 22 May 2003 to terminate the Security Council Committee established pursuant to resolution 661 (1990),

Stressing the importance of all Member States fulfilling their obligations under paragraph 10 of resolution 1483 (2003),

Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security,

Acting under Chapter VII of the Charter of the United Nations,

...

(a) Resolution 1730 (2006)

“The Security Council,

Recalling the statement of its President of 22 June 2006 (S/PRST/2006/28),

Emphasizing that sanctions are an important tool in the maintenance and restoration of international peace and security,

Further emphasizing the obligations placed upon all Member States to implement, in full, the mandatory measures adopted by the Security Council,

Continuing in its resolve to ensure that sanctions are carefully targeted in support of clear objectives and implemented in ways that balance effectiveness against possible adverse consequences,

Committed to ensuring that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions,

De-listing procedure

The Security Council requests the Secretary-General to establish, within the Secretariat (Security Council Subsidiary Organs Branch), a focal point to receive de‑listing requests. Petitioners seeking to submit a request for de-listing can do so either through the focal point process outlined below or through their state of residence or citizenship.[2]

The focal point will perform the following tasks:

(b) If any of the governments, which were consulted on the de-listing request under paragraph 5 above oppose the request, the focal point will so inform the Committee and provide copies of the de-listing request. Any member of the Committee, which possesses information in support of the de-listing request, is encouraged to share such information with the governments that reviewed the de‑listing request under paragraph 5 above.

(c) If, after a reasonable time (3 months), none of the governments which reviewed the de-listing request under paragraph 5 above comment, or indicate that they are working on the de-listing request to the Committee and require an additional definite period of time, the focal point will so notify all members of the Committee and provide copies of the de-listing request. Any member of the Committee may, after consultation with the designating government(s), recommend de-listing by forwarding the request to the Chairman of the Sanctions Committee, accompanied by an explanation. (Only one member of the Committee needs to recommend de-listing in order to place the issue on the Committee’s agenda.) If after one month, no Committee member recommends de-listing, then it shall be deemed rejected and the Chairman of the Committee shall inform the focal point accordingly.

(a) Of the decision of the Sanctions Committee to grant the de-listing petition; or

(b) That the process of consideration of the de-listing request within the Committee has been completed and that the petitioner remains on the list of the Committee.”

(b) Other procedures

D. Resolution A/RES/68/178 of the UN General Assembly

“The General Assembly,

...

...

...”

E. Opinions of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

“ ... the procedures for terrorist listing and delisting by the 1267 Committee of the Security Council do not meet international human rights standards concerning due process or fair trial. Therefore he takes the view that as long as proper due process is not guaranteed at the United Nations level when listing individuals or entities as terrorists, national (or European Union) courts will need to exercise judicial review over the national (or European) measures implementing the sanctions.

...”

“16. Under the Al-Qaida regime, the Council, through its Sanctions Committee, is responsible for designating individuals and entities on the Consolidated List and for adjudicating upon applications for their removal. This is inconsistent with any reasonable conception of due process, and gives the appearance that the Council is acting above and beyond the law. However, some members of the Council are unwilling to cede their Chapter VII powers to any form of binding review by an independent body. Indeed, some argue that this would be contrary to the provisions of the Charter of the United Nations itself, and therefore would be ultra vires.

...

“27. On 17 December 2009, the Council adopted resolution 1904 (2009), which introduced an independent Ombudsperson for an initial period of 18 months to assist the Committee in its consideration of delisting requests. The first Ombudsperson, Kimberly Prost, a former ad litem judge of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 with 20 years experience as a federal prosecutor in Canada, was appointed by the Secretary-General on 3 June 2010. Under resolution 1904 (2009), she was mandated to investigate delisting requests according to the procedure set out in annex II to the resolution and to prepare a ‘comprehensive report’ for the Committee within a set time frame. She is also required to report to the Council twice a year on the operation of her mandate.

...

...”

“59. The Special Rapporteur acknowledges and welcomes the significant due process improvements brought about by resolution 1989 (2011), but nevertheless concludes that the Al-Qaida sanctions regime continues to fall short of international minimum standards of due process, and accordingly recommends that:

(a) The mandate of the Office of the Ombudsperson should be amended to authorize it to receive and determine petitions from designated individuals or entities (i) for their removal from the Consolidated List and (ii) for the authorization of humanitarian exemptions; and to render a determination that is accepted as final by the Al-Qaida Sanctions Committee and the Security Council...”

F. Work of the UN International Law Commission

“37. In international law, there is a strong presumption against normative conflict. Treaty interpretation is diplomacy, and it is the business of diplomacy to avoid or mitigate conflict. This extends to adjudication as well. As Rousseau puts the duties of a judge in one of the earlier but still more useful discussions of treaty conflict:

... lorsqu’il est en présence de deux accords de volontés divergentes, il doit être tout naturellement porté a rechercher leur coordination plutôt qu’à consacrer à leur antagonisme [Charles Rousseau, “De la compatibilité des normes juridiques contradictoires dans l’ordre international”, RGDIP vol. 39 (1932), p. 153].

presumption that the parties intend something not inconsistent with generally recognized principles of international law, or with previous treaty obligations towards third States [Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law (London: Longman, 1992) (9th ed), p. 1275. For the wide acceptance of the presumption against conflict – that is the suggestion of harmony – see also Pauwelyn, Conflict of Norms ... supra note 21, pp. 240-244].

it is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and intended to produce effects in accordance with existing law and not in violation of it [Case concerning the Right of Passage over Indian Territory (Preliminary Objections) (Portugal v. India) I.C.J. Reports 1957 p. 142].

...

Article 26 – Compliance with Peremptory Norms

“Nothing in this Chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.”

Commentary

“...

...”

G. Resolution 1597 (2008) of the Parliamentary Assembly of the Council of Europe

H. Relevant European and international case-law

(a) The case of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission

“...

...

...

...

Concerning the actions before the Court of First Instance

...

...”

(b) The case of Commission and Others v. Kadi

“111. In proceedings relating to the adoption of the decision to list or maintain the listing of the name of an individual in Annex I to Regulation No 881/2002, respect for the rights of the defence and the right to effective judicial protection requires that the competent Union authority disclose to the individual concerned the evidence against that person available to that authority and relied on as the basis of its decision, that is to say, at the very least, the summary of reasons provided by the Sanctions Committee (see, to that effect, the Kadi judgment, paragraphs 336 and 337), so that that individual is in a position to defend his rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in bringing an action before the Courts of the European Union.

...

...

...

(c) Subsequent case-law

“101. In that regard, the Commission’s argument, based on the fact that it had initiated the review procedure, which was still underway, and communicated to the applicant the statement of reasons which had been sent to it by the Sanctions Committee, must be rejected. It is settled case-law that a letter emanating from an institution, stating that examination of the questions raised is in progress, does not, however, constitute the definition of a position which brings to an end a failure to act ...
“10.9 With regard to the allegation of a violation of article 14, paragraph 1, the authors contend that they were placed on the sanctions list and their assets frozen without their being given access to ‘relevant information’ justifying the listing, and in the absence of any court ruling on the matter. The authors also draw attention to the prolonged imposition of those sanctions and maintain that they did not have access to an effective remedy, in violation of article 2, paragraph 3, of the Covenant. The Committee notes, in this connection, the assertion of the State party that the authors did have a remedy, since they took the State party to the Brussels Court of First Instance and obtained an order requiring it to submit a de-listing request to the Sanctions Committee. Based solely on consideration of the actions of the State party, the Committee therefore finds that the authors did have an effective remedy, within the limits of the jurisdiction of the State party, which guaranteed effective follow-up by submitting two requests for de-listing. The Committee is of the view that the facts before it do not disclose any violation of article 2, paragraph 3, or of article 14, paragraph 1, of the Covenant.”

IV. RELEVANT CASE-LAW OF OTHER STATES

A. The case of Ahmed and others v. HM Treasury (United Kingdom Supreme Court)

“6. ... The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”
“81. I would hold that G is entitled to succeed on the point that the regime to which he has been subjected has deprived him of access to an effective remedy. As Mr Swift indicates, seeking a judicial review of the Treasury’s decision to treat him as a designated person will get him nowhere. G answers to that description because he has been designated by the 1267 Committee. What he needs if he is to be afforded an effective remedy is a means of subjecting that listing to judicial review. This is something that, under the system that the 1267 Committee currently operates, is denied to him. I would hold that article 3(1)(b) of the AQO [al-Qaeda Order], which has this effect, is ultra vires section 1 of the 1946 Act. It is not necessary to consider for the purposes of this case whether the AQO as a whole is ultra vires except to say that I am not to be taken as indicating that article 4 of that Order, had it been applicable in G’s case, would have survived scrutiny.

B. The case of Abdelrazik v. Canada (Federal Court of Canada)

“[51.] I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness.”
“[54.] ... it is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion.”

THE LAW

I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal ...”

A. The Chamber’s findings

B. Preliminary objections raised by the respondent Government

(a) The respondent Government

(b) The applicants

(a) The United Kingdom Government

(b) The French Government

(a) Compatibility ratione personae

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
“91. In the present case the measures imposed by the Security Council resolutions were implemented at national level by an Ordinance of the Federal Council. The applicants’ assets were frozen and the Federal Department for Economic Affairs issued a decision of 16 November 2006 whereby certain assets were to be confiscated. The acts in question therefore correspond clearly to the national implementation of a UN Security Council resolution (see, mutatis mutandis, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above, § 137, and contrast Behrami and Saramati, decision cited above, § 151). The alleged violations of the Convention are thus imputable to Switzerland (see, mutatis mutandis, Nada, cited above, § 121).

(b) Compatibility ratione materiae

C. Merits of the case

(a) The applicants

(b) The respondent Government

paragraph 64 of the Nada judgment (cited above). They stated that Switzerland was working with a group of ten other States to make the sanctions regime procedure fairer, and that in April 2014 the group had submitted some new proposals to the Security Council to that effect. They argued that, in sum, Switzerland had taken – and was continuing to take – all steps remaining within its power to ensure compliance with the Convention.

(a) The United Kingdom Government

(b) The French Government

(a) Whether there was a limitation on the right of access to a court and the existence of a legitimate aim

(i) Whether there was a limitation

(ii) Legitimate aim

Resolution,1483 (2003), adopted by the UN Security Council under

Chapter VII of the UN Charter with the aim of imposing on member States a series of measures designed to further the stabilisation and development of Iraq. One of those measures, referred to in paragraph 23 of the Resolution, was to ensure that the assets and property of senior officials of the former Iraqi regime, including the first applicant, who was considered by the Sanctions Committee to be a former head of finance of the Iraqi secret services, would be transferred to the Development Fund for Iraq and, accordingly, returned to the Iraqi people to enable them to benefit from those assets. The Court acknowledges that the impugned decision was taken to implement an objective that is compatible with the Convention.

(b) The proportionality of the limitation in question

(i) The international normative context

(ii) The allegation of a conflict of obligations

(iii) Extent of the respondent State’s obligations in the present case

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

FOR THESE REASONS, THE COURT

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 June 2016.

Johan Callewaert Mirjana Lazarova Trajkovska

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal and Dedov;

(b) concurring opinion of Judge Sicilianos;

(c) concurring opinion of Judge Keller;

(d) concurring opinion of Judge Kūris;

(e) partly dissenting opinion of Judge Ziemele;

(f) dissenting opinion of Judge Nußberger. M.L.T.

J.C.

CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE, JOINED BY JUDGES HAJIYEV, PEJCHAL AND DEDOV

TABLE OF CONTENTS

I. Introduction (§ 1)

First Part – The origins of the normative conflict (§§ 2-37)

II. The United Nations legal framework (§§ 2-27)

A. The Interpretation of Article 103 of the Charter (§§ 2-8)

(i) The nature of the rule (§ 2)

(ii) The scope of the rule (§§ 3-4)

(iii) Intrinsic and extrinsic limitations to the applicability of the rule (§§ 5-6)

(iv) The constitutionalisation of the Charter? (§§ 7-8) B. The interpretation of Resolution 1483 (§§ 9-24)

(i) The textual interpretation (§§ 9-12)

(ii) The teleological interpretation (§ 13)

(iii) The contextual interpretation (§§ 14-16)

(iv) The systematic interpretation (§§ 17-24) C. Preliminary conclusion (§§ 25-27)

III. The right of access to a court in international law (§§ 28-37)

A. The nature of the right of access to a court (§§ 28-32)

(i) In international humanitarian and criminal law (§§ 28-29)

(ii) In international human rights law (§§ 30-31)

(iii) In European human rights law (§ 32) B. A norm of jus cogens? (§§ 33-35)

(i) In civil proceedings (§§ 33-34)

(ii) In criminal proceedings (§ 35) C. Preliminary conclusion (§§ 36-37)

Second Part –The solution to the normative conflict (§§ 38-70)

IV. The conflict between Charter obligations and human rights treaty obligations (§§ 38-58)

A. The possible solutions (§§ 38-44)

(i) Primacy of Charter obligations (§§ 38-39)

(ii) Primacy of human rights treaty obligations (§§ 40-41)

(iii) Harmonisation of Charter and human rights treaty obligations (§§ 42-44) B. Critique of the majority’s reasoning (§§ 45-56)

(i) The unfulfilled promise of an interpretation of Resolution 1483 (§§ 45-46)

(ii) The implicit “constitutional nature” of the right of access to a court (§§ 47-53)

(iii) The disguised Bosphorus solution (§§ 54-56) C. Preliminary conclusion (§§ 57-58)

V. Taking the Convention seriously (§§ 59-70)

A. The constitutional nature of the Convention (§§ 59-60)

B. The applicability of Bosphorus to UN Charter obligations (§§ 61-64)

(i) The material scope of Bosphorus (§§ 61-62)

(ii) The temporal scope of Bosphorus (§ 63)

(iii) The personal scope of Bosphorus (§ 64) C. The application of Bosphorus to the present case (§§ 65-67)

D. Preliminary conclusion (§§ 68-70)

VI. Final Conclusion (§§ 71-73)

I. Introduction

First Part – The origins of the normative conflict

II. The United Nations legal framework

A. The Interpretation of Article 103 of the Charter

(i) The nature of the rule

(ii) The scope of the rule

(iii) Intrinsic and extrinsic limitations to the applicability of the rule

(iv) The constitutionalisation of the Charter?

B. The interpretation of Resolution 1483

(i) The textual interpretation

(ii) The teleological interpretation

(iii) The contextual interpretation

(iv) The systematic interpretation

Although its preamble referred to “granting humanitarian exemptions”, the text of Resolution 1730 (2006) omitted any reference to such “exemptions”. Still in 2006, another important improvement was added by Resolution 1735 (2006)[39]. When proposing names to the Committee for inclusion on the Consolidated List, States had to provide a statement of case, furnishing as much detail as possible on the basis(es) for the listing.

3 September[41] and the United Nations Human Rights Committee (HRC) on 29 December[42], the Security Council finally decided to take serious action to allay the roots of the political and judicial criticism. In the fight against al-Qaeda, Osama bin Laden and the Taliban, and other individuals, groups, undertakings and entities associated with them, Resolution 1904 (2009)[43] decided that, when considering delisting requests, the Committee should be assisted by an Office of the Ombudsperson[44]. The Ombudsperson would perform these tasks in an independent and impartial manner and would neither seek nor receive instructions from any government.[45] The Ombudsperson had no power to overturn Committee decisions or to make recommendations to the Committee.[46]

C. Preliminary conclusion

III. The right of access to a court in international law

A. The nature of the right of access to a court

(i) In international humanitarian and criminal law

(ii) In international human rights law

(iii) In European human rights law

B. A norm of jus cogens?

(i) In civil proceedings

(ii) In criminal proceedings

C. Preliminary conclusion

Second Part – The solution to the normative conflict

IV. The conflict between Charter obligations and human rights treaty obligations

A. The possible solutions

(i) Primacy of Charter obligations

Since Article 103 of the Charter cannot be interpreted independently of the Charter’s primary rules of obligation, a systematic interpretation of the Charter cannot ignore the limitations and deficiencies of the State-centred United Nations architecture in the case of conflicting constitutional claims in international law. Putting forward an emerging, but still weak, constitutional claim, UN Charter primary law may, in specific instances of conflict, be displaced by international norms with a stronger constitutional claim and whose effect is not offset by the secondary rule of Article 103 of the Charter.

(ii) Primacy of human rights treaty obligations

(iii) Harmonisation of Charter and human rights treaty obligations

B. Critique of the majority’s reasoning

(i) The unfulfilled promise of an interpretation of Resolution 1483

(ii) The implicit “constitutional nature” of the right of access to a court

(iii) The disguised Bosphorus solution

C. Preliminary conclusion

V. Taking the Convention seriously

A. The constitutional nature of the Convention

B. The applicability of Bosphorus to UN Charter obligations

(i) The material scope of Bosphorus

(ii) The temporal scope of Bosphorus

(iii) The personal scope of Bosphorus

C. The application of Bosphorus to the present case

D. Preliminary conclusion

VI. Final conclusion

In spite of the lack of a Constitution for the international community as a whole, the irreducible plurality of present-day international law does not necessarily mean persistent fragmentation into self-contained, hermetic regimes as if they were isolated towers. On the contrary, decentralised plurality may foster cross-fertilisation and synergy between competing legal orders.[131] This does not mean that the risk of a cacophony of multiple regional constitutional orders is not omnipresent, with the concomitant emergence of conflicts and overlaps, at least in Europe and the Americas with their own regional human rights courts increasingly playing the role of regional constitutional courts. But that risk can only be prevented once a World Human Rights Court comes into being. On that day, the United Nations will have established itself as a truly constitutional order. Hopefully, the synchronised criticism from Luxembourg and Strasbourg will be heeded in New York and give new impetus to the construction of a World Human Rights Court. Only then can a universal, homogenous, hierarchical meta-system of human rights be built, for the benefit of all mankind, as a limitation to the exercise of public power and the use of public force by the bodies and officials of the United Nations and its members.

CONCURRING OPINION OF JUDGE SICILIANOS

(Translation)

A. The non-applicability in the present case of the “equivalent protection” test

B. Concern for systemic harmonisation

CONCURRING OPINION OF JUDGE KELLER

A. No real conflict with a strict international obligation?

B. Origin and significance of the presumption of equivalence

C. Applicability and Rebuttal of the Presumption of Equivalent Protection

D. Merits of the Article 6 Complaint

E. Conclusion

CONCURRING OPINION OF JUDGE KŪRIS

PARTLY DISSENTING OPINION OF JUDGE ZIEMELE

“The applicants should, on the contrary, have been afforded at least a genuine opportunity to submit appropriate evidence to a court, for examination on the merits, in order to show that their inclusion on the impugned lists had been arbitrary. That was not the case, however. The fact that, unlike the situation in Nada (cited above, § 187), the applicants in the present case did not submit, either in the Swiss Federal Court or in this Court, any precise argument to show that they should not have been included on the list drawn up by the Sanctions Committee makes no difference to this analysis, since no such omissions on their part were relied on by the Swiss authorities in refusing to examine their complaints. ...”

At the same time, the Court accepts that the Federal Court was unable to rule on the merits or appropriateness of the measures entailed by the listing of the applicants (see paragraph 150). I do not share the view that the applicants could not submit evidence and arguments to the domestic courts as they would have wanted to. I also have great difficulty in seeing how the very detailed reasoning of the Federal Court could be regarded as arbitrary in terms of Article 6.

DISSENTING OPINION OF JUDGE NUSSBERGER

In the present case the majority of the Grand Chamber have tried to resolve a conflict by denying its very existence (A). In my view this is not an acceptable approach as it does not follow the normal methods of treaty interpretation (B), it is not in line with other leading judgments on the interaction between Convention law and general international law (C), and it creates unnecessary problems and tensions both for the State concerned and the United Nations as a whole (D). Switzerland was confronted with the dilemma of being bound by contradictory treaty obligations, accepted the de lege lata existing conflict-resolution mechanism, and did its utmost to mitigate the consequences for the individual concerned (E). Therefore I cannot find any violation of the Convention.

That does not mean that I would not endorse the finding of an obvious deficiency in the UN targeted-sanctions regime. To block the existing mechanism of implementing UN sanctions (only) in the bilateral relationship between the UN and the member States which are also parties to the Convention does not, however, promote the rule of law. It is a dead end, as it leaves the State concerned in a legal limbo. An effective solution must be found at UN level.

A. Existence of a conflict

The existence of a growing number of bilateral and multilateral treaty obligations unavoidably creates for States the danger of being confronted with contradictory duties under international law. In the present case Switzerland was bound to implement several UN Resolutions, among them Resolution 1483 (2003), that were adopted in the context of the Iraqi invasion of Kuwait and the ultimate overthrow of the Iraqi regime. On this basis Switzerland was required to “freeze without delay ... funds or other financial assets or economic resources and [to] immediately ... cause their transfer to the Development Fund for Iraq ...”. The names of those whose funds were concerned were included in a specific list. At the same time, Article 6 of the Convention prescribed a right to a fair hearing which, according to the Court’s jurisprudence, included “[t]he principle whereby a civil claim must be capable of being submitted to a judge” (see Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18).

The majority of the Grand Chamber could not see any conflict between those obligations, arguing that “[t]here was in fact nothing [in Resolutions 1483 or 1518] – understood according to the ordinary meaning of the language used therein – that explicitly prevented the Swiss courts from verifying, in terms of human rights protection, the measures taken at national level pursuant to the first of those Resolutions” (paragraph 143 of the judgment). This position follows up on a line of argument that was developed in Al-Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011) and then transferred to Nada v. Switzerland ([GC], no. 10593/08, § 180, ECHR 2012). But while it was convincing in Al‑Jedda and arguable in Nada it goes beyond what is acceptable in the present case. In Al-Jedda the relevant UN Resolution clearly left room for interpretation as it only required the United Kingdom to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (UN Security Council Resolution 1511 passed on 16 October 2003, paragraph 13). That wording was obviously vague and open and did not oblige States to detain persons without trial as the United Kingdom was reproached for having done. The Court was therefore right to argue that it was possible to “choose the interpretation which [was] most in harmony with the requirements of the Convention and which avoid[ed] any conflict of obligations” (see Al-Jedda, cited above, § 102). Although the language of UN Resolution 1390 in Nada was much more explicit and required the prevention of entry into or transit through Swiss territory by listed individuals, nevertheless there was a clause which stated “this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified”. Concerning the immediate steps to be taken, the words “where appropriate” were used. The Court could once more argue that the terms “necessary” and “where appropriate” left the States discretion and allow for a Convention-compliant application of the Resolution (see Nada, cited above, §§ 177-78).

The present case is, however, different. The UN Resolution does not only describe the measures of freezing and transferring funds in a very concrete way and explain that they have to be applied to specific “listed” persons, but also demands that these measures be taken “immediately” and “without delay”. I agree with my colleague Helen Keller that this wording does not leave any discretion or choice of interpretation for implementation. To hold otherwise turns a “harmonious interpretation” into a “fake harmonious interpretation” that is not in line with basic methodological requirements of international treaty interpretation.

In my view it is impossible to deny that the treaty obligations Switzerland has been confronted with in the present case are not only conflicting, but also mutually exclusive.

B. Interpretation of the conflicting treaty obligations

It is convincing to take, as proposed by the UN International Law Commission (ILC), as a starting-point for the interpretation of obligations arising out of different treaty regimes, a “strong presumption against normative conflict” (see the Report of the ILC study group cited in paragraph 56 of the present judgment). It is also to be welcomed if this principle can be stretched, as far as possible, in order to resolve otherwise unresolvable conflicts between obligations arising out of the Convention and out of other international treaties. But that does not mean that the generally accepted methods of interpretation as defined in the Vienna Convention on the Law of Treaties (VCLT) can be ignored.

The ordinary meaning of taking a measure “immediately” or “without delay” is hardly compatible with allowing substantial judicial review. “Without delay” clearly indicates that no intermediate steps are permitted. Furthermore, it is obvious that judicial review takes time, more time than the notions “immediately” and “without delay” could possibly allow. The majority of the Grand Chamber do not seem to assume that a quick procedure would be possible, as they require the domestic courts to obtain “sufficiently precise information in order to exercise the scrutiny that is incumbent on them” (paragraph 147). Taking into account the fact that most, if not all, of the information will be confidential, even the preparatory phase before starting judicial review can be expected to last for a long time.

The object and purpose of the Resolution, which is based on Chapter VII of the UN Charter and has to be applied by all member States of the United Nations, implies the necessity of uniform implementation. If judicial control at national level were allowed, one would have to expect divergent implementation practices according to the respective standards used. Sanctions against the same listed person might be allowed in one jurisdiction and stopped in another. This cannot be intended if the system is to be efficient, especially not in a situation where funds are urgently required for the most basic needs of the Iraqi population. The Court stated in Al-Jedda “... that a United Nations Security Council resolution should be interpreted in the light not only of the language used but also [of] the context in which it was adopted” (see Al-Jedda, cited above, § 76).

The majority of the Grand Chamber draw far-reaching conclusions from the silence of the Security Council Resolution as to procedural safeguards (see paragraph 146):

“... where a resolution such as that in the present case, namely Resolution 1483, does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided.”

This presumption is not, however, compatible with a systematic interpretation of the Resolution in the light of its object and purpose and goes far beyond what was stated in Al-Jedda.

In Al-Jedda (cited above, § 102) the Court held that “[i]n the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law”. It cannot be said that Resolution 1483 (2003) did not use “clear and explicit language”. The requirement to freeze and transfer funds immediately and without delay is not ambiguous. In the present case, the majority of the Grand Chamber are, however, no longer satisfied with the clear and explicit language describing the particular measures to be taken, but expect “clear and explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation” (see paragraph 146). This turns the obligation to state clearly and explicitly what is intended into an assumption that what is not clearly and explicitly stated is not intended. That is a completely different approach.

Chapter VII of the UN Charter establishes competences for the Security Council in situations which are characterised as “threats to the peace, breaches of the peace and acts of aggression”. Even the use of armed force may be authorised on the basis of Article 42 of the UN Charter. The measures have to be applied by all members of the United Nations (Article 25 of the UN Charter). Human rights protection is nevertheless not denied. As clearly stated in Article 24 § 2 of the UN Charter “[i]n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations”, among them “promoting and encouraging respect for human rights and for fundamental freedoms” (Article 1 § 3 of the UN Charter). But the very idea of Chapter VII of the UN Charter is that the Security Council should be the one which has the last word in deciding on the necessity of the measures to be taken in order to maintain peace and security. Under such conditions, it would be the exception rather than the rule to allow judicial control by domestic courts in the member States obliged to implement the measures, as this would transfer the last word to domestic judicial institutions. This is all the more so as fair trial and access to a court are considered to be derogable rights in emergency situations, as is also confirmed by Article 15 of the Convention. Up to the present time there has never been a practice whereby the Security Council asks States to examine whether the implementation of sanctions is consonant with human rights protection.

Thus, there is no ground on which an assumption of some sort of separation of powers between the Security Council and the domestic courts could be based.

Even assuming that judicial review were possible within the time span defined by the words “immediately” and “without delay”, there would still be an unbridgeable conflict between the obligation under the UN Resolution and Article 6 of the Convention as interpreted by the Court. According to the Court’s long-standing jurisprudence, it is not sufficient merely to provide access to a court (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II):

“... that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 para. 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention ... Execution of a judgment given by any court must therefore be regarded as an integral part of the ‘trial’ for the purposes of Article 6; ...”

The majority of the Grand Chamber require the domestic courts to verify whether the implementation of the measures ordered in the UN Resolution would be arbitrary. The result of such a procedure in the domestic court would necessarily be open. If the court came to a negative conclusion and found the measures arbitrary, the refusal to implement the sanctions would no longer be transitory, but permanent. The obligation to freeze and transfer the funds would be definitively frustrated.

It is not possible to cut Article 6 of the Convention in half. Access to a court would be fictitious if a final judgment did not have any consequences. In trying to harmonise the different treaty obligations the majority do not address this crucial question.

C. Interaction between the Convention and general international law on the basis of the Court’s case-law

The Court has stated on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part (see Hassan v. the United Kingdom [GC], no. 29750/09, § 102, ECHR 2014, with reference to Article 31 § 3 (c) of the VCLT).

Therefore the Convention obligations have to be interpreted in the light of the UN Charter.

The precondition for the existence of a “European public order” to which the majority of the Grand Chamber allude in their reasoning (paragraph 145 of the present judgment) is peace and security. For that reason all the Contracting Parties to the Convention have transferred sovereign rights to the United Nations and more specifically to the Security Council on the basis of Articles 24 and 25 of the UN Charter. The cornerstone of this whole system is Article 103 of the Charter, which grants priority to the obligations under the Charter, a provision taken up in Article 30 of the VCLT. This is confirmed by the case-law of the International Court of Justice (ICJ) and legal opinion (see the references to ICJ case-law in paragraphs 41-43 of the present judgment).

I agree with the argument of the respondent State that this concept is as fundamental as the principle par in parem non habet imperium, which the Court accepted as a total barrier to access to a court in Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001‑XI). The same conclusion was reached in the case of Stichting Mothers of Srebrenica and Others v. the Netherlands ((dec.), no. 65542/12, § 154, ECHR 2013), where the Court held as follows:

“... since operations established by UN Security Council Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the UN. To bring such operations within the scope of domestic jurisdiction would mean to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the UN in this field, including with the effective conduct of its operations.”

In the present case, even though the legal question is a different one, the interaction between UN law and Convention law poses the same problems. The consequences of not interpreting the Convention in line with UN law are also the same. Nevertheless, this time the Court has come to the opposite conclusion.

In my view the conflicting obligations on the basis of Article 6 of the Convention and UN Resolution 1483 (2003) should not have been artificially denied, but put in the context of general international law as it stands, of which Article 103 of the UN Charter is a basic pillar. In view of the overarching aim of having an efficient mechanism for guaranteeing peace and security worldwide, a restriction on the right of access to a court under Article 6 is proportionate, unless the arbitrariness of a measure ordered by the Security Council is so plain to see that no State governed by the rule of law could agree to implement it. This is not so, however, in the present case (see below).

The explicit regulations in the UN Charter also contradict the solution to the conflict elaborated on the basis of the Bosphorus presumption in the Chamber judgment. While there are no norms resolving the conflict between EU law and Convention law, Article 103 of the UN Charter is clearly designed for conflict regulation; there is no lacuna to be filled by a presumption.

D. Problems and tensions caused by the Court’s judgment

On the basis of Resolution 1483 (2003), immediate implementation of the sanctions was required in 2003. Nevertheless, in 2016 the funds have still not been transferred. The process has been dragging on for thirteen years already. Neither the first applicant, who still does not have access to his funds, nor the Iraqi people, who still cannot use the money for rebuilding the country, have profited in any way from this long-lasting legal meander. On the basis of the Court’s judgment, this legal limbo will probably continue to exist for many more years to come. This is detrimental both for human rights protection and for the effective functioning of the UN Security Council resolutions under Chapter VII of the UN Charter.

Different scenarios are foreseeable. Firstly, the Swiss Federal Court could examine the claim on the merits, but based on the assumption that the outcome would not have any legal consequences, as Switzerland would in any case be bound by the Security Council Resolution. The legal procedure would thus be l’art pour l’art – purely fictitious. Secondly, the Swiss Federal Court could examine the claim on the merits with the intention of disregarding the duty to implement the resolutions if any arbitrariness is found. This would create major tensions within the UN system. If followed as a general example, targeted economic sanctions would become ineffective. Thirdly, it might be that the Swiss Federal Court does not obtain any information for adjudication of the claim on the merits. The procedure would thus end without any tangible result.

None of these scenarios is to be welcomed for the purposes of effective human rights protection. On the basis of Article 46, Switzerland has to abide by the Court’s judgment. But, as is clearly stated in the present judgment (paragraph 149), the legal message is not directed at Switzerland, but at the Security Council; namely, that it should not forget the rule of law principles in ordering targeted measures. This message is not new (see the Opinions of the UN Special Rapporteurs quoted in paragraphs 52 et seq. of the present judgment). It is an important message for human rights protection. But it would have been sufficient to express it in an obiter dictum without finding a violation of the Convention by Switzerland.

E. The exemplary approach of the Swiss authorities

Even assuming that the obligations arising out of UN Security Council Resolution 1483 (2003) and Article 6 of the Convention were compatible and domestic courts were required to exercise a basic review of arbitrariness in implementing the Resolution, I would argue – like my colleague Ineta Ziemele – that Switzerland has fulfilled this requirement.

The first applicant’s main complaints were that he had never been told why his name had been put on the list and that he had never been heard by a judge. While this is true, it has to be put into perspective in the light of the historical context and the actual wording of the Security Council Resolution. Resolution 1483 (2003) clearly explained both against whom the sanctions should be directed and the reasons why they were necessary. The personal scope of the application of the Resolution was defined by the words “Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction”. According to the Security Council, the first applicant had been the head of finance for the Iraqi secret services under the regime of Saddam Hussein (see paragraph 10 of the present judgment); thus there was a priori a presumption that he fell within the group indicated. As to the reason for the freezing and transfer of his funds, the Resolution takes as a precondition for the sanction that such funds or financial assets have been removed from Iraq. The first applicant’s more than 200 million Swiss francs were kept in bank accounts in Switzerland and his company was incorporated under the laws of Panama. So, even if the applicant had not personally been informed of the reasons for the measures taken, he must have known or could at least have presumed why his accounts and assets were targeted. It is important to note that he never claimed not to have been the head of the Iraqi secret services, or not to have removed funds from Iraq to Switzerland, or not to have incorporated a company under the laws of Panama. This aspect clearly distinguishes the case from Nada (cited above), where the applicant had always argued that he did not have any connection with Osama bin Laden and the al-Qaeda organisation, against which the sanctions were directed.

It is also not entirely true that the first applicant had never been heard. When applying to the 1518 Committee he was asked to provide supporting documents, but he did not follow up on this request. He only asked to be allowed to give oral testimony (see paragraphs 20 and 21 of the present judgment). Even though he was not in fact offered an oral hearing, at least he was given an opportunity to present his counter-arguments.

It is thus unclear on what factual elements a suspicion of arbitrariness could be based. This is all the more true as the first applicant’s lawyer was asked in the hearing before the Court why his client thought that the sanctions applied to him were arbitrary. He referred only to the procedure, that is, the fact of not having been heard, but did not advance any substantive reason for finding the targeted sanctions arbitrary.

What is at stake is thus only procedural arbitrariness.

From the very beginning, the Swiss authorities tried to mitigate the negative consequences for the first applicant and to counterbalance the procedural deficiencies of the listing procedures for which they were not responsible and which they could not influence.

They allowed and supported his application to the 1518 Committee and suspended the domestic procedure for over a year (from 18 May 2004 until 1 September 2005). They gave reasoning for the decision to transfer the funds and made available an administrative-law appeal. They guaranteed the right to be heard in the procedure, granted him access to the file of the Federal Department for Economic Affairs, and gave him the opportunity to express himself before that authority.

The Swiss Federal Court, in its judgments of 23 January 2008, examined the legal basis for the confiscation and the basic elements required in order to avoid arbitrariness, verified that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets belonged to the first applicant and the company of which he was managing director, referred to the reasons for putting him on the list, namely, his role in the regime of Saddam Hussein, analysed a potential conflict of the Resolution with jus cogens and added an obiter dictum as to the insufficiency of the procedure before the Sanctions Committee. As the applicants had never advanced any substantive ground of arbitrariness, the court had no indication of where or how to further scrutinise the matter even in the framework of the decision on admissibility.

In my view this form of judicial review should be seen to have fulfilled the requirement of exercising “sufficient scrutiny so that any arbitrariness can be avoided” (see paragraph 146 of the present judgment).

The execution of the final judgment of the Federal Court was suspended in order to allow the first applicant to apply for a new delisting procedure (from 23 January 2008 until 6 January 2009). The Swiss authorities furthermore allowed him to deduct the amount necessary to pay his lawyers’ fees from the frozen funds. Finally they once more suspended the domestic procedure when he brought his application to the Court.

Besides these individual measures the authorities made general efforts to improve the system of delisting.

What else could they possibly have done?

The Swiss authorities interpreted the obligations arising out of the Convention, on the one hand, and out of the binding resolutions of the Security Council, on the other, as conflicting and gave priority to the UN law. They accordingly applied the de lege lata existing conflict mechanism enshrined in Articles 25 and 103 of the UN Charter and Article 30 of the VCLT. Based on Article 1 of the Statute of the Council of Europe, pursuant to which “participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations”, I cannot accept that Switzerland has violated the Convention.

[1]. For the full text of Resolution 1483 (2003), see paragraph 46 below.

[2]. A State can decide that, as a rule, its citizens or residents should address their de-listing requests directly to the focal point. The State will do so by a declaration addressed to the Chairman of the Committee that will be published on the Committee’s website.

[3]. UN Security Council Resolution 1483 (2003) on the situation between Iraq and Kuwait, 22 May 2003, UN Doc. S/RES/1483 (2003).

[4]. See Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI (“Bosphorus”).

[5]. It is evidently the role of the Court to interpret Article 103 of the Charter and the applicable resolution for the purposes of the case in order to examine whether there was a plausible basis in such instruments for the matters impugned before it (see, mutatis mutandis, Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, § 122, 2 May 2007 (“Behrami”)).

[6]. UN Doc. A/RES/25/2625, 24 October 1970.

[7]. Article 59 of the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two.

[8]. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 392, § 107, and “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006 (“ILC Report on Fragmentation”), §§ 331-32.

[9]. This evidently leaves open the question of responsibility towards non-member States as a result of the application of Article 103 (ILC Report on Fragmentation, cited above, § 343).

[10]. ILC Report on Fragmentation, cited above, § 345.

[11]. Ibid., § 355. The Security Council frequently calls upon all States, including States that are not members of the United Nations, “to act strictly in accordance with the provisions of this resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed” (see, for example, Resolutions 661 (1990), 748 (1992), 757 (1992), 917 (1994), 1267 (1999), 1306 (2000)). This practice has been accepted by the European Union (see, for example, Article 8 of Council Regulation (EC) No 1263/94 of 30 May 1994).

[12]. See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory, Advisory Opinion, 1932, PCIJ, Series A/B, No. 44 (Feb. 4), p. 24, and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ Reports 1988, p. 12, § 57. Article 27 of the Vienna Convention confirms a long-standing rule of customary international law, restated by Article 3 of the ILC Draft Articles on State Responsibility.

[13]. ILC Report on Fragmentation, cited above, § 331.

[14]. Since the Charter was adopted before Article 53 of the Vienna Convention came into force, the relationship between the Charter and jus cogens is regulated by customary international law.

[15]. See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase), Judgment, ICJ Reports 1970, p. 3, § 34. In spite of the erga omnes language, the examples given are undoubtedly jus cogens.

[16]. ILC Report on Fragmentation, cited above, § 346.

[17]. See my opinion in Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015.

[18]. In fact, as early as 1932, Kelsen affirmed that issues traditionally in the domain of constitutional law, such as the duties of a State in relation to its citizens, could be apprehended by international law and therefore the development of an international protection of human rights and fundamental freedoms strongly emphasises the unity of the rule of law (François Rigaux, “Hans Kelsen on International Law”, EJIL 9 (1998), p. 333).

[19]. See UN General Assembly Resolution 60/1, of 16 September 2005, which adopted the document in question (UN Doc. A/RES/60/1).

[20]. The reference is obviously to Marbury v. Madison, 5 US 137 (1803). For the ICJ’s conception of its powers, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, § 89, and Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956, ICJ Reports 1956, p. 77 at p. 85.

[21]. Security Council Resolution 1518 (2003), 24 November 2003, UN Doc. S/RES/1518 (2003).

[22]. See paragraph 143 of the present judgment.

[23]. International judicial practice and scholarly opinion have affirmed certain rules of interpretation of Security Council resolutions, which mostly derive from a mutatis mutandis application of the Vienna Convention rules on interpretation (See Legal Consequences for States, cited above, p. 53, § 114; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 114; Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94-1, 2 October 1995, §§ 71-137; and, among scholars, Michael Wood, “The Interpretation of Security Council Resolutions”, 2 Max Planck Yearbook of United Nations Law 77 (1978), and Sufyan Droubi, Resisting United Nations Security Council Resolutions, Routledge, 2014, pp. 7-10).

[24]. Resolution 1483 avoided the expressions “necessary” or “where appropriate” of Resolution 1390 (2002).

[25]. On the teleological interpretation of Security Council Resolutions, see Nada v. Switzerland [GC], no. 10593/08, § 175, ECHR 2012; judgment of the Court of Justice of the European Communities (CJEC) of 3 September 2008 in Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, C-402/05 P and C-415/05 P, EU:C:2008:461, §§ 296‑97 (“Kadi I”); and ICTY Appeals Chamber in Dusko Tadić, cited above, §§ 72-78.

[26]. The contextual interpretation of Security Council resolutions was also taken into account by the Court in Nada, cited above, § 175, and by the ICTY Appeals Chamber in Dusko Tadić, cited above, § 93.

[27]. While Resolution 1483 (2003) had three references to “international law” and one sole reference to “human rights”, Resolution 1546 (2004) had two references to “human rights” and one sole reference to “international law”. Quite significantly, Resolution 1390 (2002) on the conflict in Afghanistan had no reference whatsoever to “international law” or “human rights”.

[28]. Security Council Resolution 1452 (2002) on the threats to international peace and security caused by terrorist acts, 20 December 2002, UN Doc. S/RES/1452 (2002).

[29]. Security Council Resolution 1267 (1999) adopted by the Security Council at its 4051st meeting on 15 October 1999, UN Doc. S/RES/1267 (1999).

[30]. Security Council Resolution 1390 (2002) on the situation in Afghanistan, 16 January 2002, UN Doc. S/RES/1390 (2002).

[31]. Consultation of the 1518 Sanctions Committee’s web page confirms that no exemptions are foreseen for the asset freeze (“none”); www.un.org/sc/suborg/en/sanctions/1518 (accessed 22 April 2016).

[32]. See SC/7791 IK/365 of 12 June 2003.

[33]. See SC/7831 IK/372 of 29 July 2003.

[34]. UNGA Resolution 60/1, cited above, § 109.

[35]. Security Council Resolution 2253 (2015), New ISIL (Da’esh) and Al-Qaida Sanctions List, 17 December 2015, UN Doc. S/RES/2253 (2015).

[36]. On the logical and systematic interpretation of Security Council Resolutions, see ICTY Appeals Chamber in Dusko Tadić, cited above, § 83.

[37]. The 1518 Committee’s “Delisting Guidelines”, published on its website, start with the words “without prejudice to available procedures”, but no other specification is given. See www.un.org/sc/suborg/en/sanctions/1518/materials/delisting-guidelines (accessed 11 May 2016).

[38]. Security Council Resolution 1730 (2006), General Issues Relating to Sanctions, 19 December 2006, UN Doc. S/RES/1730 (2006).

[39]. Security Council Resolution 1735 (2006), Threats to International Peace and Security Caused by Terrorist Acts, 22 December 2006, UN Doc. S/RES/1735 (2006).

[40]. Council of Europe Parliamentary Assembly (PACE), Resolution 1597 (2008), United Nations Security Council and European Union blacklists, 23 January 2008, § 6.1.

[41]. Kadi I, 3 September 2008, cited above.

[42]. HRC Communication No. 1472/2006, 29 December 2008, UN Doc. CCPR/C/94/D/1472/2006.

[43]. Security Council Resolution 1904 (2009) on continuation of measures imposed against the Taliban and Al-Qaida, 17 December 2009, UN Doc. S/RES/1904 (2009), § 20.

[44]. In addition to the respective annual reports, these documents are very pertinent to assess the practice of the Ombudsperson: Ombudsperson’s Statement during an Open Briefing to Member States, 23 November 2015; Remarks to the 49th meeting of the Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe in Strasbourg, France, 20 March 2015; Briefing of the Ombudsperson at the Security Council’s Open Debate on “Working Methods of the Security Council” (UN Doc. S/2014/725) on the topic: “Enhancing Due Process in Sanctions Regimes”, 23 October 2014; Remarks by the Ombudsperson delivered to the panel on “Due Process in UN Sanctions Committees” at Fordham Law School, 26 October 2012; Letter of the Ombudsperson to the President of the Security Council, 30 July 2012, UN Doc. S/2012/590; Remarks of the Ombudsperson at the workshop on the UN Security Council, Sanctions and the Rule of Law, 31 May 2012 (Kimberly Prost, “The Office of the Ombudsperson; a Case for Fair Process”); Lecture by the Ombudsperson at the Institute of Legal Research at The National Autonomous University of Mexico, 24 June 2011; Speaking Notes for Presentation by Kimberly Prost, Ombudsperson at the 41st meeting CAHDI, 18 March 2011; Briefing by the Ombudsperson to the annual informal meeting of Legal Advisers of the Ministries of Foreign Affairs of United Nations Member States, 25 October 2010.

[45]. As the first Ombudsperson herself stated, the birth of the Office was a “difficult one”, since it had been “the product of a compromise forged between two very different perspectives on this use of the Security Council sanctions power” (Kimberly Prost, Speaking Notes, 18 March 2011, cited above, p. 1).

[46]. The Ombudsperson herself acknowledged that “[s]tructurally the Office of the Ombudsperson does not exist and the administrative and contractual arrangements supporting it in practice do not provide institutional safeguards for independence” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 4). “There are no institutional protections for the independence of the office of the ombudsperson, which leaves it very vulnerable, especially when going through the upcoming period of transition” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 6).

[47]. Security Council Resolution 1989 (2011) on expansion of the mandate of the Ombudsperson established by the resolution 1267 (1999) and the establishment of a new Al-Qaida sanctions list, 17 June 2011, UN Doc. S/RES/1989 (2011).

[48]. Since its inception, the comprehensive report has been used by the Ombudsperson as a means to ensure that the petitioner’s side of the story is heard by the decision-maker (Lecture at the Institute of Legal Research, cited above, p. 6).

[49]. See Kimberley Prost, “The Office of the Ombudsperson; a Case for Fair Process”, p.

[50]. See “The Office of the Ombudsperson: a Case for Fair Process”, cited above, p. 2.

[51]. After the office became operational, the Ombudsperson herself admitted that the process was “not a transparent one”, referring to non-disclosure of the comprehensive reports beyond the Committee but, on a discretionary basis, to some interested States upon request, and to the States’ reluctance to provide factual detail and access to confidential information (Remarks delivered to the informal meeting of legal advisers, cited above, p. 2; Briefing of the Ombudsperson, cited above, p. 3; and Remarks by Ombudsperson, cited above, p. 5).

[52]. There seems to be a State practice to respect the Ombudsperson’s position. According to the Ombudsperson, “in all completed cases post resolution 1989 (2011), the decision of an independent and impartial mechanism has prevailed in terms of the assessment of the delisting requests” (Remarks by Ombudsperson, 25 October 2010, cited above, p. 3).

[53]. For this criticism, see the report of the UN Special Rapporteur on Protection of human rights and fundamental freedoms while countering terrorism, 26 September 2012, UN Doc. A/67/396 (“the Emmerson Report”), § 31; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 15 December 2010, UN Doc. A/HRC/16/50 (“the High Commissioner’s Report 2010”), §§ 21-22, 44; and the report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 6 August 2010, UN Doc. A/65/258 (“the Scheinin Report 2010”), §§ 55-56.

[54]. Recently, the 1518 Committee made accessible a merely formalistic “narrative summary of reasons for the listing” of the second applicant, Montana Management, Inc. No substantive reasons or evidence were given.

[55]. Security Council Resolution 2161 (2014) on threats to international peace and security caused by terrorist acts by Al-Qaida, 17 June 2014, UN Doc. S/RES/2161 (2014).

[56]. As the Ombudsperson herself concluded, “the Focal Point mechanism by its very nature and structure does not have the fundamental characteristics necessary to serve as an independent review mechanism which can deliver an effective remedy” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 2).

[57]. As criticised by the Ombudsperson herself in “The Office of the Ombudsperson: a Case for Fair Process”, cited above, p. 5, and Briefing of the Ombudsperson, cited above, p. 1. Later on, the Ombudsperson argued that this procedure had “significant advantages over court process” adding “it is a simple procedure, it can be started through an email, the Petitioner can communicate in a language of choice, no lawyer is required, there are no costs, and it has strict deadlines which make it quite fast relatively speaking” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 4). I would oppose the argument that no great stretch of the imagination is necessary to conceive a simplified, urgent judicial procedure with all these “advantages”. She also argued that judicial review could not take into account evolving situations. I would reply that nothing hinders a court from proceeding with a de novo review of the initial situation. This is exactly the case with the evaluation of an accused person’s dangerousness in European security measures (strafrechtliche Maßnahmen, misure di sicurezza) applied in criminal proceedings.

[58]. In favour of the punitive character of the United Nations sanctions, including freezing orders, see the Emmerson Report, cited above, § 55; the High Commissioner’s Report 2010, cited above, § 17; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 2 September 2009, UN Doc. A/HRC/12/22 (“the High Commissioner’s Report 2009”), § 42; and the report by the former UN Special Rapporteur, 6 August 2008, UN Doc. A/63/223 (“the Scheinin Report 2008”), § 16. The EU General Court judgment in case T-85/09, Yassin Abdullah Kadi v. European Commission (30 September 2010, § 150) had raised the issue of the punitive nature of these sanctions with regard to the freezing orders, while accepting that confiscation did affect the very substance of the right to property. The Ombudsperson opposes such understanding, considering (on the Office’s website) that the sanctions “are not intended to punish for criminal conduct”, but to “hamper access to resources” and “encourage a change of conduct” on the part of the targeted people. At the same time, it is admitted that these sanctions flowing from listing have a “direct and considerable impact on the rights and freedoms of individuals and entities” and are of “indeterminate length” and therefore that there must be “some substance and reliability to the information upon which such sanctions are applied”. No specific intent by an individual is required by the Ombudsperson, but it must be demonstrated that the person “knew or [must] have known” that he or she supported ISIL or al-Qaeda or any associated entity. In my view, it is highly disputable to say that a temporary freeze of all assets of a person or entity without any sunset clause is merely a preventative measure. In any event, the present case is simpler in so far as it does not deal with a temporary freezing order, but a truly confiscatory measure implying a final and unlimited transfer of property with a clearly punitive purpose.

[59]. Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010] 2 AC 534, § 60, referring to Security Council Resolution 1373 (2001). The International Commission of Jurists calls them “international pariahs” (International Commission of Jurists, “Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights”, Geneva, December 2008, p. 117).

[60]. The Scheinin Report 2008, § 9 (customary international law).

[61]. The High Commissioner’s Report 2009, cited above, § 42, and ICTY Appeals Chamber in Dusko Tadić, Appeal judgement on allegations of contempt against prior counsel, Milan Vujin, IT-94-1-A-AR77, 27 February 2001 (see the consideranda of the judgment) and Special Tribunal for Lebanon, Prosecutor v. El Sayed, President Antonio Cassese’s “Order Assigning Matter to Pre-Trial Judge”, CH/PRES/2010/01, 15 April 2010.

[62]. Human Rights Committee, General Comment No. 29, States of Emergency (article 4), 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, §§ 7 and 15, and General Comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, UN Doc. CCPR/C/GC/32, §§ 6 and 59. See also Article 27 § 2 of the American Convention on Human Rights and Article 4 § 2 of the Arab Charter on Human Rights; also Inter-American Court of Human Rights, Goiburú et al. v. Paraguay, Judgment (Merits, Reparations and Costs), 22 September 2006, § 131, Habeas corpus in emergency situations, Advisory Opinion OC-8/87, 30 January 1987, §§ 17-43, and Judicial guarantees in states of emergency, Advisory Opinion OC-9/87, 6 October 1987, §§ 18-34.

[63]. See the Emmerson Report, cited above, § 15, and the Scheinin Report 2008, cited above, § 12.

[64]. Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580, § 51.

[65]. General Comment No. 32, cited above, § 19.

[66]. HRC Communication No. 1472/2006, cited above (§ 10.3). The HRC expressed its view against the punitive nature of the sanctions of the above-mentioned Resolutions (§ 10.11).

[67]. Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18.

[68]. Deweer v. Belgium, 27 February 1980, § 49, Series A no. 35.

[69]. Van de Hurk v. the Netherlands, 19 April 1994, § 45, Series A no. 288.

[70]. See paragraph 136 of the present judgment.

[71]. Golder, cited above, § 38; Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012.

[72]. Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93, and Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B.

[73]. Waite and Kennedy v. Germany [GC], no. 26083/94, § 63, ECHR 1999-I.

[74]. Ibid., §§ 68-74, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 48, ECHR 2001-VIII.

[75]. McElhinney v. Ireland [GC], no. 31253/96, § 38, ECHR 2001-XI.

[76]. Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 54, ECHR 2001-XI.

[77]. Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, 14 January 2014.

[78]. Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, ECHR 2013.

[79]. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99.

[80]. Deweer, cited above, § 49, and Kart v. Turkey [GC], no. 8917/05, § 67, ECHR 2009.

[81]. Guérin v. France, 29 July 1998, § 37, Reports of Judgments and Decisions 1998‑V.

[82]. See my separate opinion in A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, 27 September 2011.

[83]. Ian Brownlie, “Comment”, in Weiler and Cassese (eds), Change and Stability in International Law-Making, Berlin: de Gruyter, 1988, p. 110.

[84]. See, among other independent voices, both from inside and outside the United Nations: the Emmerson Report, cited above, §§ 55-57; the High Commissioner’s Report 2010, cited above, § 17; International Commission of Jurists, “Assessing Damage”, cited above, pp. 115-16; and the Scheinin Report 2008, cited above, § 16.

[85]. See paragraph 26 of the present judgment.

[86]. The Emmerson Report (cited above, §§ 56-58) pleads for a balance of probabilities test and a sunset clause imposing a time-limit on the duration of designations. In its most recent Resolution 2253 (2015), paragraph 16, the Security Council urged the member States to apply “an evidentiary standard of proof” of “reasonable grounds” or “reasonable basis”.

[87]. See, mutatis mutandis, Articles 53 and 64 of the Vienna Convention, cited above. The UN Special Rapporteur is of the view that the absence of independent judicial review of sanctions of a penal nature is so grave that it has rendered the current sanctions regime ultra vires of the Security Council’s Chapter VII powers (the Scheinin Report 2010, cited above, § 57).

[88]. See, for example, R. Kolb, “L’article 103 de la Charte des Nations Unies”, Collected Courses of The Hague Academy of International Law, 2013, vol. 367, pp. 119-23; Arcari, “Forgetting Article 103 of the UN Charter? Some perplexities on ‘equivalent protection’ after Al-Dulimi”, in QIL, Zoom-in 6 (2014), p. 33; and Bernhardt, “Commentary to Article 103”, in B. Simma (ed.), The Charter of the United Nations: A Commentary, 2002, p. 1300.

[89]. CFI, cases T‑315/01, Reports 2005 II‑03649, and T‑306/01, Reports II‑03533, respectively.

[90]. See, for example, Bruno Simma, “Universality of International Law from the perspective of a practitioner”, in 20 EJIL (2009), p. 294: “If ... universal institutions like the UN cannot maintain a system of adequate protection of human rights, considerations of human rights deserve to trump arguments of universality.”

[91]. Kadi I, cited above, § 316.

[92]. Ibid., §§ 284-87.

[93]. The Ombudsperson herself considered this judgment the “tipping point” in the context of the criticism emanating from many geographic corners, by putting the enforceability of the Security Council regime “clearly directly in peril” (Kimberley Prost, Remarks delivered to the informal meeting of Legal advisors, 25 October 2010, p. 2).

[94]. Kadi I, cited above, § 353.

[95]. In Commission and Others v. Kadi (judgment of 18 July 2013, C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518 (“Kadi II”)), the Court of Justice of the European Union (CJEU) confirmed the annulment of the new Regulation adopted by the Commission to comply with Kadi I. It is instructive to observe how, in the Kadi II judgment, the CJEU gives precise details as to the conduct that it expects of the competent Union authority (see §§ 111-16 and 135-36). But in Kadi II the CJEU did not include in its analysis the Ombudsperson, an omission which the latter considered as “unfortunate”. She added that such consideration by the CJEU “would have been helpful … even if it considered the mechanism did not go far enough” (Remarks by the Ombudsperson to the CAHDI, cited above, p. 4).

[96]. See Kadi I, cited above, § 322, and Kokott and Sobotta, “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance”, in EJIL (2012), vol. 23, no. 4, p. 1019. Most notably, Malenovsky considers that the CJEC applied the Bosphorus test by implicitly finding the protection at UN level to be manifestly deficient (see “L’enjeu délicat de l’éventuelle adhésion de l’Union européenne à la Convention européenne des droits de l’homme : de graves différences dans l’application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg”, RGDIP 2009-4).

[97]. See Behrami, cited above, § 133. The Court adopted Sarooshi’s “overall authority” test, as set out in his The United Nations and the Development of Collective Security (1999), which is distinct from the more rigorous criterion of Article 5 of the Draft Articles on the Responsibility of International Organisations. See, for a critique of the Behrami approach, L.-A. Sicilianos, “Le Conseil de Sécurité, La responsabilité des Etats et la Cour européenne des droits de l’homme : vers une approche intégrée ?”, in RGDIP, 2015-4, p. 782, and the literature cited therein.

[98]. See Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011. The Court followed the concurring opinion of Sir Nigel Rodley in Sayadi and Vinck, cited above.

[99]. See Nada, cited above.

[100]. Ibid., § 176.

[101]. Ibid., §§ 179-80.

[102]. Ibid., § 212.

[103]. See paragraph 145 of the present judgment. In paragraph 146 the “seriousness of the consequences” is also mentioned.

[104]. The majority are not clear at all in paragraph 147. As they are talking about the UN decision to list or delist, any “dispute” would be at UN level, so this passage conflates the UN level with the domestic level. In the present case, the applicants appealed directly to the Sanctions Committee (with the support of the government) and at that point – when there was already a dispute – the domestic courts were not yet involved. Reading the paragraph as a whole, and particularly its last sentence, it seems that the majority are not requiring an a priori assessment of the original listing itself – which would be at UN level – but an assessment at the domestic level before the “measures” are taken, or before “legal effect” is given to the UN listing. The point at which such domestic ex proprio motu assessment by the administration is to be carried out remains, however, unclear. Should it have taken place before 12 May 2004, when the applicants’ names were added to the Swiss list (paragraph 18 of the present judgment) in accordance with Article 2 § 2 of the Swiss Iraq Ordinance (paragraph 36 of the present judgment)? Or before the actual confiscation decision, which took place only on 16 November 2006 (paragraph 23 of the present judgment), in accordance with Article 2 § 2 of the Swiss Confiscation Ordinance (paragraph 37 of the present judgment)? By stating in paragraph 150 that “before taking the above-mentioned measures, the Swiss authorities had a duty to ensure that the listing was not arbitrary”, the majority still fail to resolve the crucial question of the timing of the a priori assessment. This lack of clarity on the part of the majority entails a serious problem in terms of the guidance that should have been given to the respondent State for the future.

[105]. It is highly relevant to compare paragraphs 147 and 152 of the Al-Dulimi judgment with paragraphs 111-14, 118 and 135-36 of the Kadi II judgment.

[106]. Paragraph 146 of the present judgment.

[107]. Paragraph 152 of the present judgment.

[108]. Paragraph 154 of the present judgment.

[109]. See Nada, cited above, § 175.

[110]. Compare paragraphs 114 and 153 of the present judgment.

[111]. Inspired by the so-called Solange II case (Federal Constitutional Court, judgment of 22 October 1986, BVerfG 73, 339), this general and abstract evaluation was criticised by Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki in their separate opinion annexed to Bosphorus, inviting the Court to proceed with a more specific and concrete analysis of the equivalent protection. The Solange II test of the German Constitutional Court, which only purported to “generally ensure (generell gewährleisten) an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights”, was less stringent than the Solange I test, which focused on a comparison between the catalogues of specific guarantees for fundamental rights in the conflicting legal orders as long as there was insufficient protection at EU level (“in Geltung stehenden formulierten Katalog von Grundrechten enthält, der dem Grundrechtskatalog des Grundgesetzes adäquat ist”, Federal Constitutional Court, judgment of 29 May 1974, BVerfG 37, 211).

[112]. See Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 50, 4 July 2013; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, §§ 40-41 and 54, ECHR 2009; Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 103, 26 April 2007; and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports 1998-I. In other words, the principles of primacy and direct effect developed by the CJEU are to be found in the Court’s case-law as well. Similar principles have been ascertained under the American Convention on Human Rights by the Inter-American Court of Human Rights, especially since “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile (merits, reparations, and costs), Judgment, 5 February 2001 (see Mac-Gregor, “The Constitutionalization of International law in Latin America, Conventionality Control, The New doctrine of the Inter-American Court of Human Rights”, in AJIL Unbound, 11 November 2015, and the case-law referred to therein).

[113]. This does not mean that the Convention is an exclusive, self-contained document. On the contrary, it is an inclusive treaty, generously open to other texts which promote a higher degree of protection of human rights (Article 53 of the Convention).

[114]. See Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310. It is relevant to note in this context that the preamble to the Convention only refers to the Universal Declaration of Human Rights and not to the Charter. Moreover, the Convention does not contain a general provision, unlike other treaties, to the effect that the rights guaranteed therein are qualified to the extent required or authorised by the Charter or by United Nations Resolutions.

[115]. See, among many other authorities, M.C. and Others v. Italy, no. 5376/11, 3 September 2013; Kurić and Others v. Slovenia [GC], no. 26828/06, ECHR 2012; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010; and Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009.

[116]. On the European-wide, constitutional competence of the Court, see my previous separate opinions in Fabris v. France [GC], no. 16574/08, ECHR 2013, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013.

[117]. Bosphorus, cited above, § 153.

[118]. See, for example, Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009.

[119]. Behrami, cited above.

[120]. Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 and 25 others, § 30, 16 October 2007. It replicates the Behrami reasoning.

[121]. Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008. The Court was tempted to use the Bosphorus test.

[122]. Connolly v. 15 member States of the European Union (dec.), no. 73274/01, 9 December 2008. The Court clearly used the Bosphorus test before concluding that, “in any event” (quoi qu’ il en soit), the acts were not imputable to the respondent State.

[123]. Galić v. the Netherlands (dec.), no. 22617/07, 9 June 2009. In paragraph 46 the reasoning echoes the Bosphorus test.

[124]. Djokaba Lambi Longa v. the Netherlands (dec.), no. 33917/12, ECHR 2012. Here again, the reasoning in paragraph 79 is inspired by Bosphorus.

[125]. López Cifuentes v. Spain (dec.), no. 18754/06, 7 July 2009. The Court refers to paragraph 73 of Waite and Kennedy to conclude that the refusal of access to the domestic courts did not attain the core of the applicant’s Article 6 right.

[126]. Beygo v. 46 member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009. The reasoning is similar to Boivin.

[127]. The power of the national court to carry out effective judicial review will be gravely impaired if the implementing State does not have access to the full justification for the listing or, even if it does, the designating State does not consent to reveal the information to the targeted person (see the Emmerson Report, cited above, § 22).

[128]. UN General Assembly Resolution UN Doc. A/RES/68/178, 28 January 2014.

[129]. This was the position of the first Ombudsperson, Kimberley Prost, in her “Remarks delivered to the informal meeting of Legal Advisors”, 25 October 2010, p. 8. The same position is reflected on the Ombudsperson’s website page on “approach and standard”, when it refers to the “unique context of decisions by a Committee acting under the express direction of the Security Council” as a justification for the adopted evidentiary standard.

[130]. This was the position of the Court in Behrami, cited above, and Stichting Mothers of Srebrenica, cited above, which clearly departed from the general principles established in Waite and Kennedy and Bosphorus.

[131]. On the “hegemonic competition” between different treaties and the systems created thereby, see Koskenniemi, “Droit international et hégémonie : une reconfiguration” in M. Koskenniemi (ed.), La politique du droit international, Paris: Pédone, 2007, pp. 291‑320.

[132]. See A. Nollkaemper, “Rethinking the Supremacy of International Law”, Zeitschrift für öffentliches Recht, 65 (2010), p. 74.

[133]. See A. Rosas, “The Death of International Law?”, Finnish Yearbook of International Law, 20 (2011), p. 227.

[134]. Since domestic remedies can only provide limited relief, because the relevant Security Council resolution, the ensuing obligations and the universal “blacklists” remain valid even when the State implementation measure is invalidated at national level, an effective remedy at UN level is indispensable. Such a universal remedy may render unnecessary additional domestic remedies, provided it is effective.

[135]. See my separate opinion in Sargsyan, cited above, § 30.

[136]. This approach has been criticised mainly because it does not provide a clear answer regarding Article 103 of the UN Charter. See, in this vein, Stephan Hollenberg, “The Diverging Approaches of the European Court of Human Rights in the Cases of Nada and Al-Dulimi”, International and Comparative Law Quarterly 64 (2015) 445-460, and Willems Auke, “The European Court of Human Rights on the U.N. Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland”, Nordic Journal of International Law 83 (2014) 39-60. However, I believe that it is not within the Court’s competence to make a final determination regarding the role of Article 103 of the UN Charter. And, last but not least, the harmonisation approach discussed by the two authors and applied here by the Grand Chamber does not provide an answer to this issue either.

[137]. Some authors count 250 such organisations (Volker Rittberger, Bernhard Zangl and Andreas Kruck, Internationale Organisationen, Grundwissen Politik (Springer 2013), 17‑18; Steven Wheatley, The Democratic Legitimacy of International Law (Hart 2010), 65); others gauge the number at over 500 (Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt, Accountability for Human Rights Violations by International Organisations (Intersentia 2010), 2).

[138]. UN Charter, Article 1 § 3, Article 13 § 1 (b), and Article 55 (c).

[139]. International Covenant on Civil and Political Rights (ICCPR), entry into force 23 March 1976, ratified by 168 States; International Covenant on Economic, Social and Cultural Rights (ICESCR), entry into force 3 January 1976, ratified by 164 States; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), entry into force 4 January 1969, ratified by 77 States; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), entry into force 3 September 1981, ratified by 189 States; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), entry into force 26 June 1987, ratified by 158 States; Convention on the Rights of Persons with Disabilities (CRPD), entry into force 3 May 2008, ratified by 161 States; International Convention for the Protection of All Persons from Enforced Disappearance (CED), entry into force 23 December 2010, ratified by 51 States; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), entry into force 1 July 2003, ratified by 48 States. For the CRC see next note.

[140]. Convention on the Rights of the Child (CRC), entry into force 2 September 1990, ratified by 196 States (as of March 2016).

[141]. See, in this regard, paragraphs 52-55 of the present judgment and paragraphs 106 and 118 of the Chamber judgment. In terms of literature, compare for example Annalisa Ciampi, “Security Council Targeted Sanctions and Human Rights”, in Bardo Fassbender, Securing Human Rights: Achievements and Challenges of the UN Human Rights Council, Oxford University Press 2011, 98-140.

[142]. Compare, in this vein, the considerations of the United Kingdom Supreme Court in Youssef (Appellant) v. Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2016] UKSC 3, §§ 55-59, on the standard of review required in a similar context.

[143]. On the potential responsibility of the United Nations, see the Draft Articles on the Responsibility of International Organizations (DARIO) adopted by the ILC at its sixty-third session in 2011 (Document A/66/10, ILC Yearbook 2011, vol. II(2), Articles 15, 16 and 17).

[144]. Or, in the words of Nina Blum (The European Convention on Human Rights beyond the Nation-state: The Applicability of the ECHR in Extraterritorial and Inter-governmental Contexts, Helbing 2015, p. 223), “[f]rom the perspective of the individual and the human rights courts, states should not be let off the hook. The UN is not (yet) within reach of the courts, but the member states are.”

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