Update to Chapter 14, Problem 1. Legitimacy and Authority in the International System: Security Council Anti- Terrorism Sanctions

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1 Update to Chapter 14, Problem 1 Legitimacy and Authority in the International System: Security Council Anti- Terrorism Sanctions The European Court of Human Rights recently considered another case involving potential conflicts between a state s obligations to carry out UN Security Council decisions and to respect human rights. Al- Dulimi arose out of sanctions imposed pursuant to Security Council Resolution 1483, which required the freezing without delay of assets of Saddam Hussein and other members of Iraq s former government, and the immediate transfer of assets to the Development Fund for Iraq. A UN Sanctions Committee listed the firm Montana Management, which was organized under the laws of Switzerland, and its director, Al- Dulimi, who had been head of finance for the Iraqi secret services under the regime of Saddam Hussein, in April Thereafter, Switzerland initiated a confiscation procedure concerning Al- Dulimi s and Montana Management s assets. Al- Dulimi sought relief in the Swiss courts, alleging that the listing of his name and confiscation of his assets violated procedural safeguards guaranteed by the European Convention on Human Rights ( Convention ). The Swiss Federal Tribunal ruled that Switzerland was bound by Security Council resolutions, which under article 103 of the UN Charter are hierarchically superior to any conflicting norms found in other treaties. Hence the court refused to examine the merits of Al- Dulimi s listing. Al- Dulimi then filed suit at the European Court of Human Rights ( ECtHR ) and, in June 2016, the Court s Grand Chamber issued its judgment. Al- Dulimi and Montana Management Inc. v Switzerland, no. 5809/08. By a vote of 15-2, it found that that Switzerland had violated article 6 of the Convention, which guarantees the right to a fair hearing by an independent tribunal. Six of the judges in the majority concurred in the result, but not in the majority s reasoning; thus, the majority s reasoning was adopted by a vote of nine to eight. The majority stated: 139. The Court emphasises that it is not its role to pass judgment on the legality of the acts of the UN Security Council. However, where a State relies on the need to apply a Security Council resolution in order to justify a limitation on the rights guaranteed by the Convention, it is necessary for the Court to examine the wording and scope of the text of the resolution in order to ensure... that it is consonant with the Convention. In that connection the Court must also take into account the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security..., Article 1 of the Charter provides... that the United Nations was created [t]o achieve international co- operation... in promoting and encouraging respect for human rights and for fundamental freedoms.... Article 24 2 of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of 1

2 international peace and security, to act in accordance with the Purposes and Principles of the United Nations Consequently, there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a UN Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In 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. Accordingly, where a Security Council resolution does not contain any clear or explicit wording excluding or limiting respect for human rights... the Court must always presume that those measures are compatible with the Convention. In other words, in such cases, in a spirit of systemic harmonisation, it will in principle conclude that there is no conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter. The Court determined that nothing in the terms of the relevant Security Council resolutions explicitly prevented the Swiss courts from reviewing, in terms of human rights protections, measures taken to implement these resolutions. The Court emphasized, however, that this review would be quite narrow: 145. The Court notes, moreover, that the inclusion of individuals and entities on the lists of persons subject to the sanctions imposed by the Security Council entails practical interferences that may be extremely serious for the Convention rights of those concerned. [These consequences] may be so weighty that they cannot be implemented without affording the right to appropriate review, which is all the more indispensable as such lists are usually compiled in circumstances of international crises and are based on information sources which tend not to be conducive to the safeguards required by such measures. In this connection, the Court would emphasise that the object and purpose of the Convention, a human rights treaty protecting individuals on an objective basis, require its provisions to be interpreted and applied in a manner which makes its requirements practical and effective. The Court further observes that, the Convention being a constitutional instrument of European public order, the States Parties are required, in that context, to ensure a level of scrutiny of Convention compliance which, at the very least, preserves the foundations of that public order. One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle.... 2

3 As a result, in view of the seriousness of the consequences for the Convention rights of those persons, where a resolution... 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. By limiting that scrutiny to arbitrariness, the Court takes account of the nature and purpose of the measures provided for by the Resolution in question, in order to strike a fair balance between the necessity of ensuring respect for human rights and the imperatives of the protection of international peace and security Furthermore, the European Court of Justice has also held that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations (Kadi I, 299). As the Court has already observed, the Security Council is required to perform its tasks while fully respecting and promoting human rights. To sum up, the Court takes the view that paragraph 23 of Resolution 1483 (2003) cannot be understood as precluding any judicial scrutiny of the measures taken to implement it In those circumstances... the Court finds that Switzerland was not faced in the present case with a real conflict of obligations capable of engaging the primacy rule in Article 103 of the UN Charter. This finding makes it unnecessary for the Court to determine the question of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the UN Charter, on the other.... Notes and Questions: 1. Note that the European Court of Human Rights cites to the European Court of Justice s (now, the Court of Justice of the European Union) Kadi opinion, which is excerpted in the textbook at pp Do you think the two courts adopt similar approaches to potential conflicts between the obligation to carry out Security Council resolutions and the obligation to respect human rights? 2. At least six judges disagreed with the Al- Dulimi majority s finding that there was no conflict between Resolution 1483 and the Convention. For example, in her dissent, Judge Nussberger argued that the Resolution not only describe[s] the measures of freezing and transferring funds... but also demands that these measures be taken immediately and without delay.... 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 3

4 intermediate steps are permitted. Judge Nussberger concluded that the Resolution s 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. Assuming a conflict between the Resolution and the Convention, how should that conflict be resolved? Judge Nussberger argued that 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. In striking contrast, Judge Pinto de Albuquerque, writing for himself and three other judges, argued that The Council of Europe is an autonomous legal order, based on agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms. With more than 217 treaties, the legal order of this international organisation has at its top an international treaty, the European Convention on Human Rights, that has direct, supra- constitutional effect on the domestic legal orders of the member States of the Council of Europe. Being more than just a multilateral agreement on reciprocal obligations of States Parties, the Convention creates obligations for States Parties towards all individuals and private entities within their jurisdiction. With its transformational role emphatically proclaimed in the preamble as an instrument for building a closer union of European States and developing human rights on a pan- European basis, the Convention is subordinated neither to domestic constitutional rules, nor to allegedly higher rules of international law, since it is the supreme law of the European continent. In the Council of Europe s own internal hierarchy of norms, United Nations law is equal to any other international agreement and subordinated to the primacy of the Convention as a constitutional instrument of European public order. Which of these two approaches seems to most appropriately value the conflicting interests at stake? 4

5 3. Al- Dulimi argued that the procedural safeguards enshrined in article 6 of the Convention were jus cogens norms, and therefore that the Resolution could not supplant them. The Court observed that the guarantees of a fair hearing and in particular the right of access to a court occupy a central position in the Convention.... Nevertheless... the Court does not consider these guarantees to be among the norms of jus cogens in the current state of international law. A concurring opinion argued that [t] he deprivation of access to a court in order to challenge punitive confiscation measures breaches a jus cogens norm, with the consequence of depriving the conflicting Resolution 1483 obligation, together with its implementing measures, of their legal force under Articles 24 and 103 of the Charter. Do you find the majority or of the concurrence more persuasive on this point? 5