The Grand Chamber of the European Court of Human Rights (ECHR) has been asked to decide a case which challenges the legality of national measures implementing Security Council measures taken against persons associated with the Taleban and Al Qaeda. The chamber to which the case – Nada v. Switzerland (application no. 10593/08) – was originally allocated has now relinquished jurisdiction in favour of the Grand Chamber. The case is brought by Mr Nada, an Italian national, who is on the list of persons subject to sanctions under UN Security Council Resolution 1267 (1999) and who lives in an Italian municipality that is an enclave within Switzerland. He is unable to leave the municipality as Switzerland will not allow him to enter or pass through the country. He argues that this is in breach of his rights under the European Convention on Human Rights. The facts of the case and the complaint are set out in the ECHR press release (see here):
The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.
On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.
Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.
On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.
On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.
However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.
Complaints and procedure
Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8.
This case is reminiscent of the various national proceedings dealing with the application of UN sanctions or other measures. It is also reminiscent of the Kadi case in the European Court of Justice and the Sayadi case before the Human Rights Committee (for earlier discussion of these case, see here and here [Kadi]; see here [Sayadi]). It will be interesting to see what approach the ECHR takes to the relationship between UN Security Council resolutions, the UN Charter and the European Convention on Human Rights. Will it, like the House of Lords in the Al Jedda case, say that obligations arising from the ECHR are subject to obligations under the UN Charter as a result of Art. 103 of the Charter? With the result that the UNSC can displace the ECHR obligations. Or will it take an approach similar to that of the ECJ in Kadi and say that the job of the ECtHR is to assess the conformity of measures with the European Convention and that task remains unaffected by whether the State in question is acting in conformity with its other obligations including obligations under the UN Charter. The latter conclusion seems particularly unlikely as it is difficult to see that the legal order within which the ECHR operates is one which is separate and independent of general international law including the UN Charter.
But if the Court takes the former approach, that European Convention obligations are subject to UN Charter obligations, it could go on to examine whether Switzerland actually had UN Charter obligations in this case. In other words it could examine whether Security Council resolutions validly created the obligations that it sought to or whether the Council had exceeded its competence such that its resolutions did not create the obligations it sought to create. In a post of mine from March 2009, I argued that the reflex turn to Art. 103 of the Charter is not the first question these cases raise and that one only gets to Art. 103 after one come to the conclusion that the Council’s resolutions validly create the obligations it sought to create. This, of course, will require the Court to directly question whether the Security Council is bound to act in conformity with human rights and whether it has done so in the particular case. To my knowledge no Court has taken this question head on. I doubt that the ECHR will do so but nothing prevents it from doing so and it certainly ought to answer this question before turning to Article 103.