EHRM, 21-06-2016, nr. 5809/08

The relevant provisions of the Vienna Convention on the Law of Treaties of 1969, which entered into force in respect of Switzerland on 6 June 1990, read as follows:

Article 30 — Application of successive treaties relating to the same subject matter

Article 53 — Treaties conflicting with a peremptory norm of general international law (‘jus cogens’)

Article 64 — Emergence of a new peremptory norm of general international law (‘jus cogens’)

The relevant parts of the International Covenant on Civil and Political Rights (to which Switzerland acceded on 18 June 1992) read as follows:

Preamble

Article 2 § 3

Article 14 § 1

Article 46

In so far as it is relevant in the present case, Resolution 1483 (2003) of 22 May 2003 reads as follows:

The relevant parts of Resolution 1518 (2003) of 24 November 2003 read as follows:

On 29 June 2011 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr Martin Scheinin, issued a statement which contained, in particular, the following passage:

On 26 September 2012 Mr Scheinin's successor, Mr Ben Emmerson, submitted his annual report (A/67/396) to the United Nations General Assembly. He listed the key activities undertaken by the Special Rapporteur between 3 April and 31 August 2012 and evaluated the mandate of the Office of the Ombudsperson established by Security Council resolution 1904 (2009) (subsequently amended) and its compatibility with international human rights norms, assessing in particular its impact on the due process deficits inherent in the Council's al-Qaeda sanctions regime. The report made recommendations for amending the mandate to bring it into full conformity with international human rights norms. The paragraphs of the report that are relevant for the present case read as follows (footnotes omitted):

As regards, more specifically, the due process improvements for persons whose names appeared on the list established by the UN Security Council under Resolutions 1267 (1999) and 1333 (2000), the Special Rapporteur found as follows (footnotes omitted):

The Special Rapporteur gave the following conclusions and recommendations:

The report of the study group of the International Law Commission (ILC) entitled ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’, published in April 2006, contains the following observations concerning Article 103 of the UN Charter:

Draft Articles on State Responsibility with commentaries were adopted by the ILC at its fifty-third session, in 2001, and submitted to the General Assembly of the United Nations as part of the ILC's report covering the work of that session (Document A/56/10, ILC Yearbook, 2001, vol. II(2)). In so far as relevant to the present case, Article 26 and its commentary (adopted together with the Article itself) read as follows (footnotes omitted):

Article 26 — Compliance with Peremptory Norms

Commentary

In the case brought by Nabil Sayadi and Patricia Vinck against Belgium (Views of the Human Rights Committee of 22 October 2008, concerning communication no. 1472/2006), the Human Rights Committee had occasion to examine the national implementation of the sanctions regime established by the Security Council in Resolution 1267 (1999). The two complainants (authors of the communication), both Belgian nationals, had been placed on the lists appended to that resolution in January 2003, on the basis of information which had been provided to the Security Council by Belgium, shortly after the commencement of a domestic criminal investigation in September 2002. They had submitted several delisting requests at national, regional and UN levels, all to no avail. In 2005 the Brussels Court of First Instance had ordered the Belgian State, inter alia, to urgently apply to the Sanctions Committee for the deletion of the names in question, and the State had subsequently done so.

In the Human Rights Committee's opinion, although the State party itself was not competent to remove the names from the list, it had the duty to do all it could to obtain that deletion as soon as possible, to provide the complainants with compensation, to make public the requests for delisting, and to ensure that similar violations did not occur in the future.

On 20 July 2009 the complainants’ names were removed from the list pursuant to a decision of the Sanctions Committee.

As regards Article 14 of the ICCPR, the Human Rights Committee found as follows:

By way of introduction, the Court reiterates that, under Article 35 § 4 of the Convention, the Grand Chamber may dismiss applications it considers inadmissible ‘at any stage of the proceedings’. Thus, even at the merits stage the Court may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Gross v. Switzerland [GC], no. 67810/10, § 37, ECHR 2014; Gillberg v. Sweden [GC], no. 41723/06, § 54, 3 April 2012; and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III).

Article 103 of the Charter is not a primary rule of obligation, but a secondary rule on normative conflicts between concrete obligations derived from the Charter and those resulting from other international agreements5.. The conflict is resolved by a rule of precedence, which gives priority to the former over the latter, with the purpose of safeguarding the efficacy and integrity of the United Nations legal system. Like Article 30 of the Convention on the Law of Treaties (the Vienna Convention), Article 46 of the International Covenant on Civil and Political Rights (ICCPR), Article 131 of the 1948 Charter of the Organization of American States (the OAS Charter) and the seventh Principle of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations6., the conflict rule of the Charter does not determine the ipso jure abrogation or even de facto suspension of the conflicting international treaty or agreement. The prevailing obligation merely sets aside the conflicting obligation, whose legal validity remains untouched. Additionally, failure to abide by the conflicting obligation does not entail liability, as long as the normative conflict persists7..

The scope of the rule includes, on the one hand, all obligations derived from Charter provisions and binding decisions of the United Nations bodies, such as Security Council resolutions adopted under Chapter VII of the Charter8. and, on the other, all obligations derived from other present or future, bilateral or multilateral treaties or agreements, including treaties and agreements with States that are not UN members9., as well as obligations deriving from customary international law10.. Obligations resulting from the founding treaties of international and regional organisations are evidently also addressed by Article 103, even though these organisations are not parties to the Charter. A fortiori, the rule extends to legal or contractual obligations entered into by a State with regard to an individual or private entity11.. In other words, Security Council resolutions may create obligations for any State, international or regional organisation, private entity or individual, which override in a specific situation previous or future rights or obligations under a treaty or of a customary, legislative or contractual nature.

Accordingly, the scope of the rule does include the conflict between Charter obligations and constitutional obligations, i.e., obligations derived from the constitutional framework of a State. In the international legal order, a State cannot adduce its own domestic law, including its Constitution, with a view to evading obligations incumbent upon it under applicable international law, and most notably under the Charter12.. Constitutional engagements may not serve to circumvent international law commitments. The overriding authority of international obligations over domestic law, including constitutional law, has been particularly stated in the field of international human rights law, in view of the nature of human rights as a matter not reserved to the domestic jurisdiction of States (Article 2 § 7 of the Charter) and the fact that human rights treaties not only bind States Parties, but also recognise rights and freedoms of citizens within the jurisdiction of the States Parties (see, for instance, Article 1 of the Convention).

There are intrinsic and extrinsic limitations to the applicability of the rule set out in Article 103. First and foremost, Article 103 presupposes the validity of the obligations in issue. In case of acts ultra vires13. or against the Charter's aims, the provision itself does not come into play. This is not so much an exception to the rule, but an intrinsic requirement for its applicability. Thus, for example, Security Council resolutions which flagrantly contradict the aims and principles of the United Nations (Article 24 § 2 of the Charter) do not benefit from the precedence rule. Before applying the Article 103 rule, the internal validity of the resolution must therefore be checked.

A truly extrinsic limitation to the applicability of the rule set out in Article 103 is jus cogens14., whose most authoritative articulation is still the list of the International Court of Justice (ICJ) in the Barcelona Traction case15.. For example, Security Council resolutions which breach jus cogens are invalid in themselves and therefore do not call for the applicability of Article 10316. Thus, prior to the application of Article 103, the external validity of the Security Council resolution must likewise be tested.

Individuals being the epicentre of international law, human rights are today the central factor of legitimation of international law. Like a new universal Esperanto, the language of international human rights law is individual-centred, not State-centred. The primary role of sovereignty is the responsibility to protect human rights17.. The relations between a State and its own nationals are no longer viewed, as in the past, as a purely domestic question. The Copernican revolution that international law faced with the birth of the twin human rights Covenants and their regional counterparts created a new narrative in international law with constitutional overtones, bearing its own counterfactual strength18.. Remarkable developments in the treaty law of emerging international and regional organisations, and most notably the European Communities, furthered the process of constitutionalisation of international law. The 2005 World Summit Outcome Document brought this process to a point of no return, the topic having attained the status of a locus classicus in international law19..

Although constitutionality has gradually been disconnected from statehood, the time of global constitutionalism has not yet come. The Charter does not yet fulfil the double function of a Constitution, as the foundational, non-derived source of law and the primary limit to the exercise of public power and the use of public force. Neither the principle of speciality of international organisations, nor the lack of a territory and a permanent population are decisive factors in this context. The reasons for the constitutional black hole within the United Nations are twofold. On the one hand, the International Court of Justice has not yet taken its Marbury step, submitting the bodies and officials of the United Nations and in particular its most important political and legislative body, the Security Council, to an effective constitutional control20.. On the other hand, the Human Rights Committee's recommendations under the first optional protocol to the ICCPR do not afford a non-optional, binding, judicial human rights protection system as the guarantee of an effective limitation of public power and public force would have required. The achievement of international cooperation in the promotion and encouragement of respect for human rights and fundamental freedoms for all (Article 1 § 3 of the Charter and ICCPR, fourth preambular paragraph) does not suffice to compensate for the lack of specific human rights constraints in the Charter. Until the day a World Human Rights Court comes into existence, with compulsory jurisdiction over both the bodies and officials of the United Nations and its members, or the International Court of Justice gains compulsory jurisdiction in such matters, the United Nations will not have a constitutional nature. As things stand presently, there may be an emerging foundational, non-derived source of law at the United Nations, but there is no true global Constitution as yet, in the absence of justiciable, human rights limits on the exercise of public power and use of public force. Thus, the Charter of the United Nations has not yet acquired the nature of a Constitution for the international community and consequently there is no hierarchical relationship between Charter obligations and obligations resulting from other international treaties and agreements, most notably human rights treaties.

The majority argue that the ordinary meaning of the language used in Resolutions 1483 (2003) and 1518 (2003)21. did not explicitly prohibit judicial supervision of the measures taken at the national level pursuant to the first of those Resolutions22.. Having due regard to the rules of interpretation of Security Council resolutions, I beg to differ23..

Resolution 1483 created two different confiscation measures: the one set out in paragraph 23 (a) was an in rem confiscation applicable to all funds or other financial assets or economic resources of the previous Government of Iraq or its State bodies, corporations, or agencies, located outside Iraq; and the other set out in paragraph 23 (b) was a strict-liability-based, punitive confiscation, applicable to all funds or other financial assets or economic resources that had 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. These individuals and entities were to be identified by a ‘sanctions committee’.

The Sanctions Committee had to proceed with the identification of the targeted persons and legal entities without having any discretion, according to paragraph 19 (‘shall’). Likewise, all member States were required to confiscate the funds and assets without any discretionary powers, according to paragraph 23 (‘shall’). In both cases under paragraph 23 (a) and (b), there was neither a ceiling on the amount of confiscated assets, nor a time-limit for the applicability of the confiscation measures. In principle, the confiscation measure, with the ensuing transfer of property and possession of the confiscated funds and assets would be final and irreversible, with the exception of one ex post facto non-judicial and non-legal avenue, in the form of the presentation of a ‘claim’ to the legal representative of the Iraqi Government on already ‘transferred’ funds or other financial assets. No criteria were established for the exercise of the review power by this political authority. It was not clear if the ‘private individuals or non-government entities’ who might make a claim were only those targeted by the confiscation or any other persons or legal entities acting on their behalf or under their direction, or anyone else with a legal interest in the transferred funds and assets.

With sufficient clarity, the use of words such as ‘without delay’ and ‘immediately’ indicated that there were no other legal avenues by which to impugn the confiscation before an independent authority, neither ex ante nor ex post facto. Any such legal avenue would entail ‘delays’ and impede the ‘immediate’ transfer of property and possession24.. The expression ‘prior judicial, administrative, or arbitral lien or judgement’ referred to decisions delivered prior to the date of Resolution 1483 itself and which had acquired the force of res judicata before that date. The literal element warranting this interpretation was, of course, the reference in paragraph 23 (a) to ‘the date of this resolution’. Thus, the safeguard of ‘prior’ judicial, administrative or arbitral decisions related to the assets of the targeted individuals and entities ensured the res judicata of final judicial, administrative or arbitral decisions as of 22 May 2003. Assets covered by such res judicata were immune and not to be confiscated.

Both the preamble and the text of Resolution 1483 envisaged putting into motion an urgent, uniform response of the international community to fund Iraq's economic recovery after the 1990 war and the subsequent 13 year-long trade and financial sanctions programme25.. The post-conflict situation in Iraq was so troubling that it was considered a threat to international peace and security, justifying Chapter VII measures and ‘immediate’ action by all member States. Under this light, the effectiveness of the international community's response could not be impaired by judicial, administrative or arbitral procedures lodged against the confiscation measures. Such procedures were incompatible per se with the required promptness of the confiscation procedure. Moreover, the Security Council's aim was to secure a cohesive response of the international community, with the purpose of avoiding a multiple, fragmented approach dependent on the peculiarities of different domestic legal confiscation procedures and respective appeals. Different, prolonged domestic procedures contesting the confiscation measures would defeat the very purpose of the Resolution.

Resolution 1483 was approved in the historical context of the reconstruction of Iraq and its economic infrastructure after the fall of the regime of Saddam Hussein26.. In a situation of immense lack of resources and a humanitarian crisis the assumed policy choice of the Security Council was the identification of resources which should be transferred to the Development Fund for Iraq, thus replacing some of the previous ‘661 Committee’ sanctions, which officially ceased to exist on 22 November 2003. By that date, all prohibitions related to trade with Iraq and the provision of financial or economic resources to Iraq established by Resolution 661 (1990) and others were terminated. One year later, that same threat determined the approval of Resolution 1546 (2004) on the formation of a sovereign Interim Government of Iraq. The international community's reaction was guided by international law and human rights, to which the Security Council explicitly and repeatedly referred in both Resolutions 1483 and 154627..

In a different context, that of the fight against the terrorism threat posed by Osama bin Laden and the Taliban, Resolution 1452 (2002)28. provided for exemptions to Resolution 1267 (1999)29. and Resolution 1390 (2002)30., for assets or economic resources that had been determined by the relevant State(s) to be necessary for basic expenses, payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources, and extraordinary expenses. Resolution 1483 did not provide for similar exemptions in line with the strictly resource-oriented Security Council policy31..

On 24 November 2003, in Resolution 1518 (2003) it was decided to establish, with immediate effect, a Committee of the Security Council (‘the 1518 Committee’), consisting of all the members of the Council, to continue to identify, pursuant to paragraph 19 of Resolution 1483, individuals and entities referred to in paragraph 23 of that Resolution, and to adopt the guidelines32. and definitions33. previously agreed by the Committee established pursuant to paragraph 6 of Resolution 661 (1990). ‘Guidelines for the application of paragraphs 19 and 23 of resolution 1483 (2003)’ provided brief indications related to the Committee's decision-making procedure. A ‘Non-paper on the implementation of paragraph 23 of Resolution 1483 (2003)’, which was ‘not legally binding’, but had been discussed among Committee members and ‘reflects their common understanding’, expanded on the interpretation of certain definitions of Resolution 1483.

In the 2005 World Summit declaration, the General Assembly called on the Security Council, with the support of the Secretary-General, to ensure that fair and clear procedures were in place for the imposition and lifting of sanctions measures, including the granting of humanitarian exemptions34.. The Security Council's response to the Vienna call was a differentiated one. In the majority of cases, it established a Focal Point to examine requests for delisting from the sanctions lists of the following Committees: 751 (1992) and 1907 (2009) concerning Somalia and Eritrea; 1518 (2003); 1521 (2003) concerning Liberia; 1533 (2004) concerning the Democratic Republic of the Congo; 1572 (2004) concerning Côte d'Ivoire; 1591 (2005) concerning the Sudan; 1636 (2005); 1718 (2006); 1970 (2011) concerning Libya; 1988 (2011); 2048 (2012) concerning Guinea-Bissau; 2127 (2013) concerning the Central African Republic; 2140 (2014); and 2206 (2015) concerning South Sudan. The Office of the Ombudsperson was instituted for individuals on the list of the 1267/1989/2253 Committee (‘the ISIL (Da'esh) and Al-Qaida Sanctions List’)35.. These two responses provided totally different approaches to the same legal problem. A logical and systematic interpretation of their interplay is needed in order to truly capture the meaning of each one of them36..

On 14 December 2005, the new ‘1518 Committee’ adopted its ‘Delisting Guidelines’37.. Subsequently, Resolution 1730 (2006)38. adopted the delisting procedure and requested the establishment within the Security Council Secretariat of a Focal Point to receive delisting requests and perform the function of an intermediary between the petitioner and the Committee. The persons concerned could make such requests either through the Focal Point or through their State of citizenship or residence. The Focal Point was responsible for forwarding such requests to the designating government(s) and to the government(s) of citizenship and residence. The latter, before any delisting recommendation, were to consult the government which originally designated the person for inclusion on the list. If the delisting was then recommended, in writing and with reasons, by one of those governments after the consultation, the request was to be placed on the agenda of the Committee by its chairman. However, if one of those governments opposed the delisting request, the Focal Point would inform the Committee and provide copies of the request. Any Committee member possessing information in support of the delisting request was encouraged, but not obliged, to share such information with the governments. The designating state was not obliged to disclose any exculpatory information to the Committee. If, after three months, none of the governments which reviewed the delisting request had commented, any member of the Committee could, after consultation with the designating government(s), recommend delisting by forwarding the request to the chairman of the Committee. If after one month, no Committee member had recommended delisting, the request would be deemed rejected. The Committee was also entitled to grant the request and delete the person's name from the list.

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.

The year 2008 proved to be an annus horribilis for the sanctions mechanism. After three successive straightforward, sometimes even caustic, reproaches by the Parliamentary Assembly of the Council of Europe on 23 January (‘Such a procedure is totally arbitrary and has no credibility whatsoever’)40., the Court of Justice of the European Communities on 3 September41. and the United Nations Human Rights Committee (HRC) on 29 December42., 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 Ombudsperson44.. The Ombudsperson would perform these tasks in an independent and impartial manner and would neither seek nor receive instructions from any government45.. The Ombudsperson had no power to overturn Committee decisions or to make recommendations to the Committee46..

Resolution 1989 (2011)47. further clarified the competence and working methods of the Ombudsperson. Two critical steps were taken. Firstly, the Ombudsperson was given the power to make a recommendation, in a comprehensive report, on the delisting of those individuals, groups, undertakings or entities that had requested removal from the al-Qaeda sanctions list through the Office of the Ombudsperson48. This could be either a recommendation to retain the listing or a recommendation that the Committee consider delisting. Where the Ombudsperson recommended against delisting, the person would remain on the list. Where the Ombudsperson recommended that the Committee consider delisting, the requirement for States to implement the Resolution would automatically terminate with respect to that individual, group, undertaking or entity 60 days after the Committee completed consideration of a comprehensive report of the Ombudsperson, unless the Committee decided by consensus before the end of that 60-day period that the requirement should remain in place with respect to that individual, group, undertaking or entity. Thus, the previous positive consensus requirement for delisting was replaced by a consensus presumption, which could be reversed by a unanimous explicit vote of the 15 Committee members. This ‘reverse consensus’ was the second critical change reinforcing the Ombudsperson position: from now on the Ombudsperson's delisting recommendation prevailed in the absence of a consensus position of the Committee to the contrary or a Security Council reference and vote. In cases where there was no consensus, the Chair had, at the request of a Committee Member, to submit the question of whether to delist that individual, group, undertaking, or entity to the Security Council for a decision within a period of 60 days (‘the triggering mechanism’). The possibility of the Committee's consensual overturn or the Security Council's overriding of the Ombudsperson's recommendation built into the process a decisive political element, aggravated by the lack of any obligation of reasoning imposed on the Security Council49.. The same procedure was followed where the designating State submitted a delisting request.

The Resolution strongly urged member States to provide all relevant information to the Ombudsperson, including any relevant confidential information, where appropriate, the Ombudsperson being bound by any confidentiality restrictions that were placed on such information by the member State providing it. Accordingly, any missing information would not be a part of the case which was analysed by the Ombudsperson and would not be included in the comprehensive report and its recommendations. This would, in principle, bring about an important advantage for the petitioner: the case made known to the petitioner would be the same as that which formed the basis of the recommendation. Furthermore, the report would ‘level’ the information field within the Committee, since all fifteen members would have access to the same information50.. Yet since there was no obligation to disclose relevant information to the Ombudsperson, nothing hindered the providing State in practice from conveying to the Committee or some of its members the information undisclosed to the Ombudsperson, with the risk that the case be decided on the basis of information that was neither communicated to the petitioner nor analysed by the Ombudsperson51.. In other words, the al-Qaeda Committee continued to act as judge in its own cause and the exercise of the Ombudsperson's powers of investigation and disclosure of evidence was still subject to the unfettered discretion of the States52.. The petitioner and the public at large were deprived of access to the Ombudsperson's comprehensive report, its conclusions, incriminating and exculpating evidence, and even to the identity of the designating State53.. These shortcomings were not offset by the newly imposed obligations to provide publicly a narrative summary of reasons for listing and reasons for refusing delisting requests54..

Finally, the Resolution encouraged member States to make use of the provisions regarding available exemptions set out in paragraphs 1 and 2 of Resolution 1452 (2002), as amended by Resolution 1735 (2006), and directed the Committee to review the procedures for exemptions as set out in the Committee's guidelines to facilitate their use by member States and to continue to ensure that exemptions would be granted expeditiously and transparently. Resolution 2161 (2014)55. decided that the Focal Point mechanism might receive requests from listed individuals, groups, undertakings, and entities for exemptions. Nevertheless, the issue remained subject to the Committee's discretion.

A systematic interpretation of the delisting systems of Resolution 1730 (2006) and Resolution 1904 (2009), further developed by Resolution 1989 (2011), shows an abyssal difference: the first of these has not even achieved the basic guarantees of fairness of the second56.. The Focal Point does not study the merits of the delisting petition, having no access whatsoever to the evidence justifying inclusion in the list. The ‘1518 Committee’, which is the competent body for adding names to the list, is also the body responsible for delisting of individuals and entities under Resolutions 1483 and 1730, acting on the basis of a secret and inquisitorial procedure. The Committee reaches a consensual, political decision, which is the outcome of an internal, inter-State, diplomatic negotiation. The unreasoned veto of one single member suffices to block the delisting procedure, without the petitioner having the right to know who cast the veto and on what grounds.

With no evident rationale for such difference in the treatment of individuals facing targeted sanctions, the arbitrariness of the overall panoply of sanctions is further aggravated when individuals are delisted from the ‘first class’ al-Qaeda sanctions list (renamed ‘ISIL (Da'esh) and Al-Qaida sanctions list’) and subsequently relisted in another ‘second-class’ sanctions list, as if the latter regime were being instrumentalised as a catch-all subterfuge to punish those who had managed to get through the torment of the former57.. Blatant errors such as that of Resolution 1530 (2004), which attributed the 2004 Madrid bombings to the ETA organisation, serve to make even worse the prospect of individuals being caught in a Kafkaesque punitive machine.

It is a well-established rule of customary international law applicable in both international and non-international armed conflicts that no one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial and procedural guarantees60.. The right to a fair trial is provided for in Article 49, fourth paragraph, of the First Geneva Convention, Article 50, fourth paragraph, of the Second Geneva Convention, Articles 102–108 of the Third Geneva Convention, Articles 5 and 66–75 of the Fourth Geneva Convention, Article 75 § 4 (adopted by consensus) of Additional Protocol I, and Article 6 § 2 (adopted by consensus) of Additional Protocol II. Depriving a protected person of a fair and regular trial is a grave breach under Article 130 of the Third Geneva Convention, Article 147 of the Fourth Geneva Convention, and Article 85 § 4 (e) (adopted by consensus) of Additional Protocol I. Common Article 3 of the Geneva Conventions prohibits the sentencing of persons or the carrying out of executions without a prior judgment pronounced by a regularly constituted court. Most importantly, depriving a person of the right to a fair trial is listed as a war crime in Article 8 § 2 (a)(vi) and (c)(iv) of the Statute of the International Criminal Court (ICC), Article 2(f) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Article 4(g) of the Statute of the International Criminal Tribunal for Rwanda and Article 3(g) of the Statute of the Special Court for Sierra Leone. It can thus be affirmed that the right of access to a court in criminal proceedings has acquired today the status of a norm of jus cogens. As the High Commissioner for Human Rights stated precisely on the topic of individual blacklists, ‘all punitive decisions should be either judicial or subject to judicial review’61..

Pursuant to the above-mentioned provisions, the non-negotiable guarantee of justiciability of criminal punishment implies access to an independent, impartial and regularly constituted court, before which the accused is presumed innocent, is not compelled to testify against himself or herself or to confess and may be heard, contest incriminating evidence and present exonerating evidence, after having been informed of the nature and cause of the accusation. Some of these guarantees are also ensured by Article 67 (1) of the Rome Statute of the ICC, which includes the intrinsic requirements for a fair trial in the context of international criminal law.

It has been argued that certain human rights obligations bear the nature of peremptory norms of international law. According to the Human Rights Committee, States parties to the ICCPR may in no circumstances invoke its Article 4 as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by deviating from fundamental principles of fair trial, including the presumption of innocence62.. Among the fundamental principles of fair trial recognised as peremptory norms of international law there is nemo debet esse judex in propria sua causa63.. Equally, if not even more important, the principle that ideo homo non potest simul esse accusator, judex et testis is certainly among the non-renounceable ‘principles of natural justice’ referred to by the Canadian Supreme Court64.. The requirement of competence, independence and impartiality of a tribunal in the sense of Article 14 § 1 of the ICCPR is an absolute right that is not subject to any exception, being essentially incompatible with any supervisory power of a political or executive body over the court's judgments and decisions65.. This is even more so when the political body acts sic volo, sic jubeo, concentrating the legislative power to create the legal framework of the sanctions, the executive power to impose them on (to ‘list’) specific persons and entities, and the ‘judicial power’ to exempt from or even lift the sanctions (to ‘delist’).

In Sayadi and Vinck v. Belgium the HRC decided that the case concerned the compatibility with the ICCPR of national measures taken by the State Party in implementation of Security Council Resolutions 1267 (1999), 1333 (2000), 190 (2002) and 1455 (2003) and, without any further explanation stated: ‘Consequently, the Committee finds that article 46 is not relevant in this case’66.. In addition, it considered that, even though the State Party was not competent to remove the applicants' names from the United Nations and European lists, it was responsible for the presence of the applicants' names on those lists and for the resulting travel ban. On the specific point of judicial review, the HRC concluded that the applicants did have an effective remedy, within the limits of the jurisdiction of the State Party, which had guaranteed effective follow-up by submitting two requests for delisting.

In the case of Golder the Court referred to Article 31 § 3 (c) of the Vienna Convention, in conjunction with Article 38 § 1 (c) of the Statute of the International Court of Justice, as recognising that the rules of international law included ‘general principles of law recognized by civilized nations’. The right of access to a court was one of those general principles of law67.. Thus, Article 6 of the Convention should be interpreted in the light of those general principles, the Court concluded. Moreover, this right pertains to ‘an area concerning the public order (ordre public) of the member States of the Council of Europe’, and therefore any measure or decision alleged to be in breach of Article 6 calls for ‘particularly careful review’68.. The power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the very notion of a ‘tribunal’69..

In a fairly abrupt conclusion, the majority state that the right of access to a court is not yet part of jus cogens70.. No further explanation is added. The right of access to a court in civil proceedings is certainly not absolute, since it may be subject to limitations permitted by implication71.. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a ‘legitimate aim’ and if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be achieved’72.. For example, a treaty-based rule on the immunity of an international organisation from national jurisdiction may pursue a legitimate aim73., but is only permissible from the standpoint of Article 6 § 1 if the restriction stemming from it is not disproportionate. Thus, it will be compatible with Article 6 § 1 if the persons concerned have available to them reasonable alternative means to protect their rights effectively under the Convention74..

The most problematic issue relates to State immunity in respect of personal injury caused by an act or omission within the forum State75. and State immunity for State acts against norms of jus cogens committed outside the forum State76.. Al-Adsani, reiterated and enlarged by Jones and Others77., does not accord a norm of jus cogens an overriding effect over the State's right to immunity in civil matters under customary international law. In other words, the peremptory effect of the higher-ranking norm of jus cogens prohibiting and punishing torture is nullified by a lower-ranking norm of customary law. The question that should be put is whether the right of access to a court in civil matters is not a general principle of law which belongs to jus cogens whenever the civil right protected has such status itself. The Court is reluctant to admit as such. In Stichting Mothers of Srebrenica and Others78., the Court again found that international law did not support the position that a civil claim should override immunity from suit for the sole reason that it was based on an allegation of a particularly grave violation of a norm of international law, invoking a recent case of the International Court of Justice in which it had clearly stated this in respect of the sovereign immunity of foreign States79.. In the Court's opinion this also held true as regards the immunity enjoyed by the United Nations.

The right of access to a court is evidently more imperative in criminal than in civil matters. While it might still be subject to implied limitations, in criminal cases these will be much less important than in civil cases80.. In any event, such limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired. Additionally, they must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved81.. When the penalty is applied by a body or officer who does not have a judicial quality, an appeal to a court must be ensured82.. Article 15 of the Convention must be read in the light of the development of international humanitarian and criminal law, which warrants the upholding of the right of access to a court in criminal matters as a non-derogable right. Such a reading alone is compatible with the emergence of this right as an intransgressible norm of jus cogens. Otherwise jus cogens could be discarded like an exquisite — but useless — Bentley that never leaves the garage, to use Brownlie's image83..

A radical solution for the conflict between Charter obligations and human rights treaty obligations consists in a strictly hierarchical submission of the latter to the former, in accordance with Article 103 of the UN Charter88.. Corresponding to an acknowledgment of the constitutional role of the Charter, this solution was followed by the Court of First Instance of the European Communities (‘CFI’, now known as the General Court) in Kadi I. In its judgments of 21 September 200589., the CFI took the view that the European Union judicature had limited jurisdiction as regards the interpretation of Community regulations adopted pursuant to Security Council resolutions. By the effect of the transfer of sovereign powers from the member States to the Union, the latter was bound by the Charter even though it was not itself a member of the United Nations. In addition, it found that the violations of the right to a fair trial and the right to be heard were acceptable in the light of the ‘essential public interest in the maintenance of international peace and security in the face of a threat clearly identified by the Security Council'.

From a hierarchical perspective, Article 103 of the Charter would thus rule out any review by the Court of the acts of State Parties implementing Charter obligations. As a matter of pure logic, the Court would have no choice but to declare inadmissible any complaint with such subject-matter. Yet the lack of constitutionality of the Charter, coupled with the multiplication of normative strata and legal institutions with constitutional claims in the international arena, especially in the field of international human rights protection, both call for an adaptation of the Charter model of normative conflict resolution. In other words, at the universal level, a strictly Kelsenian perspective of the hierarchy of norms in international law is still ill-adapted to reality.

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.

The exact opposite solution expressly rules out any watering-down of the human rights protection norms by submission to binding Security Council resolutions90.. In Kadi I the Court of Justice of the European Communities (CJEC, now known as the Court of Justice of the European Union) found that it had jurisdiction to rule on the lawfulness of Regulation (EC) no. 881/2002 implementing Security Council Resolutions 1267 (1999), 1333 (2000) and 1390 (2002), directed against al-Qaeda and the Taliban. In its judgment of 3 September 2008 the CJEC found that its review of the validity of any Community measure in the light of fundamental rights had to be regarded as the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which was not to be prejudiced by an international agreement91.. It explained that this review concerned the Community act adopted to give effect to the international agreement in question, and not the latter as such, emphasising the principle that all Community acts must respect fundamental rights — that respect constituting a condition of their lawfulness92.. In Kadi I the CJEC found that the applicants' defence rights, in particular the right to be heard, had been breached93.. In addition, their right to an effective legal remedy had been infringed as they had been unable to defend their rights in satisfactory conditions before the Community judicature, and there had been a breach of their right to property, in the absence of basic procedural safeguards94.. In the light of those violations, the Court annulled the contested regulation in so far as it concerned Mr Kadi and the foundation Al Barakaat95..

Summing up, the CJEC attributed to the constitutional order of the European Union a benchmarking effect for the evaluation of any Community or domestic act implementing Security Council resolutions. Affirming that immunity from jurisdiction within the Community's internal legal order ‘appear[ed] unjustified, for clearly that re-examination procedure [before the Sanctions Committee] [did] not offer the guarantees of judicial protection’, the CJEC implicitly introduced a Solange-type caveat96.. The question that now follows is whether the same applies to the community of 47 European States which compose the Council of Europe.

The middle-ground solution avoids the normative conflict. It does that by two, or in reality three, different means. The first consists in examining whether the impugned act or omission can be attributed to the United Nations, and consequently whether the Court has jurisdiction ratione personae to review any such action or omission found to be attributable to the UN; and in concluding that the impugned act or omission cannot be attributed to the respondent State because the ultimate authority and control over them belonged to the Security Council and therefore the Court does not have jurisdiction ratione personae (the Behrami approach)97.. The second involves an interpretation of the text of the Security Council Resolution in such a manner as to make the obligations coexist, either by finding that the impugned measure taken by the respondent State was not in reality required by the Security Council (the Al-Jedda approach)98., or by finding that, in the implementation of the resolution, the respondent State had some latitude — perhaps limited but nevertheless real — and that the alleged violation stemmed from the insufficient use of that room for manœuvre by the respondent State (the Nada approach)99..

As formulated in the Al-Jedda judgment, the presumption against normative conflict aims at the systemic integration of the United Nations legal order with the European legal order. But this is an instrument of interpretation of limited value, since in cases of unambiguous language imposing an obligation in breach of human rights no conclusions are drawn from the reversal of the presumption — and thus, the presumption remains unnecessary — and in cases of language imposing no obligation at all, there is no normative conflict — and thus, the presumption is simply beside the point. The Nada reasoning does not help much in this context. It is permeated by the belief that the Charter leaves to United Nations member States a free choice among the various possible models for transposition of Security Council resolutions into their domestic legal order100.. But the Nada refinement of a two-tier compliance obligation of members of the United Nations, regarding both the interpretation and the implementation of Security Council resolutions, is not convincing. Methodologically speaking, the distinguo between interpretation and implementation ignores a long established acquis of legal theory, namely that any act of interpretation of a norm is already a particular way of implementing it, and vice versa, any act implementing a norm implies a certain interpretation of the norm. Furthermore, by putting the emphasis on the ‘implementation stage’, Nada tacitly nullifies the effect of the allegedly autonomous interpretation test, admitting that the Al-Jedda presumption may be rebutted even in the case of clear and explicit language imposing an obligation of result. In such a case, the fiction of ‘some latitude’101. risks overstretching the text by means of an artificially in-read linguistic ambiguity. The best evidence of this artificiality is reflected in the obligations of facere imposed on the respondent State, which have no foothold in reality. By creating a duty to act to alleviate the strictness of the Resolution within the confines of the Article 103 obligation, the Nada judgment is insistently looking for some sort of Swiss State discretion where the Security Council did not want it to be so. When the laudable effort of systemic integration, as warranted by Article 31 § 3 (c) of the Vienna Convention, goes beyond the limits of reasonableness, it is no longer persuasive. That was the case in Nada.

In spite of the fact that no ‘latitude’ was accorded by the language of the text of the Resolution, State discretion is resuscitated at the level of the transposition tier of the State-compliance obligation, to avoid explicitly performing the equivalent protection test. In fact, there is a covert comparable assessment, which is carried out in the Article 13 part of the Nada judgment. The Court concludes that, in the absence of an effective judicial review at UN level, the respondent State had a duty to provide an effective remedy, without specifying how such a review should have been organised. In this context, the mutatis mutandis reference in Nada to paragraph 299 of Kadi I (2008) is quite illuminating102., revealing that the Nada majority were indeed won over by the CJEC's constitutional philosophy, whilst avoiding the same head-on, confrontational posture.

The majority's promise of an examination of the wording and scope of the text of Resolution 1483 made in paragraph 139 of the present judgment remains unfulfilled. Instead of interpreting the text, the majority reinvent the text of Resolution 1483, stretching the meaning of its language and, worse still, decontextualising the text. No interpretative effort is made to reconcile expressions such as freeze ‘without delay’ and ‘immediate’ transfer with the possibility of a long judicial review procedure. Even less effort is made to explain the exception for assets or resources which are ‘the subject of a prior judicial, administrative, or arbitral lien or judgement’, this exception being simply ignored by the majority. The silence of the majority on this point is positively deafening.

The majority's superficial interpretation of Resolution 1483 is particularly salient in view of the fact that no consideration is given to parallel regimes of sanctions, and namely to the Security Council Committee pursuant to Resolutions 1267 (1999),1989 (2011) and 2253 (2015) concerning ISIL (Da'esh), Al-Qaida and associated individuals, groups, undertakings and entities. In particular, no study is made of the applicability of the regime of exemptions, if any, to the asset freeze, compounded by the omission of any research into the UN legal basis for authorisations by the State Secretariat for Economic Affairs (SECO) to make use of the applicants' frozen assets in Switzerland.

The majority note that the inclusion of individuals on the sanctions lists may have ‘extremely serious’ consequences for the targeted individuals103.. They further argue that, in view of such ‘weighty’ consequences, these lists ‘cannot be implemented without affording the right to appropriate review’. What is noteworthy in this reasoning is not so much the very broadly worded assessment of sanctions lists by the majority, which could be read as setting a general standard for all Security Council resolutions imposing sanctions, i.e. a standard for the fifteen ongoing sanctions regimes which focus on supporting political settlement of conflicts, nuclear non-proliferation, and counter-terrorism. What really stands out is the fallacious nature of that assessment.

As a matter of pure logic, the majority commit two major intellectual errors. First and foremost, they err in a natural fallacy, deriving a value judgment (on the existence of ‘the right to appropriate review’) from a factual statement (on the consequences of inclusion in the sanctions lists). In addition, the majority err in a consequential fallacy, deriving the existence of a requirement in law (an ‘appropriate review’) from the probable negative consequences of its inexistence. This fallacy is particularly notorious, due to the uncertain nature of the statement on the facts, which only refers to potential consequences (‘may be extremely serious’, ‘may be so weighty’).

Even if one would want to concede to the majority's logically tortuous line of argument a limited, purely rhetorical value, the added value of their reasoning could be said to lie not in any strength of the consequential argument (argumentum ad consequentiam) but somewhere else. Reading the whole of paragraph 145 of the judgment, it is evident that the consequential line of argument serves the majority's purpose of placing the discussion where it really belongs: in the midst of European public order. In the same paragraph 145 of the judgment, where reference is made to the ‘extremely serious’ and ‘so weighty’ consequences of the sanctions lists, the majority observe that the Convention is a constitutional instrument of European public order, which is based on the rule of law, and arbitrariness is the negation of that principle. The gravity of the consequences of the sanctions lists is a rhetorical instrument to draw the attention of the reader to what is really at stake: the infringement of so basic and non-negotiable values of the European legal order to which the Court could not remain indifferent.

In fact, the majority read into Resolution 1483 not only the guarantee of ‘judicial supervision’ (paragraph 146) or ‘judicial scrutiny’ (paragraph 148), but also the power of domestic courts to access ‘sufficiently precise information in order to exercise the scrutiny that is incumbent on them’ (paragraph 147). In a quite voluntaristic approach, the majority further state that the scope of such judicial scrutiny includes any ‘dispute over a decision to add a person to the list or to refuse delisting’; not only must a ‘substantiated and tenable allegation made by listed individuals to the effect that their listing is vitiated by arbitrariness’ be entertained by domestic courts, but also the giving of ‘legal effect’ to ‘the addition of a person — whether an individual or a legal entity — to a sanctions list’ must be preceded by an assessment of arbitrariness. This logically presupposes that the restrictive measure is reasoned and that the reasons pertain to the individual circumstances of the targeted person. This also requires that such assessment of the Convention compatibility of the confiscation measures entailed by the listing must be done not only a posteriori at the request of the targeted person, but also a priori and of the domestic authorities' own motion.104. Finally, the majority add that the targeted persons should be allowed to submit to a court, ‘for examination on the merits, appropriate evidence in order to show that their inclusion on the impugned lists had been arbitrary’ (paragraph 151). In other words, the European domestic courts and authorities must disclose the evidence available against the targeted person and he or she must be put in a position to effectively make known his or her views on the grounds advanced against him or her. There should be no doubt: the similarity of the substance of the reasoning of Al-Dulimi and Kadi II is indisputable, meaning that Strasbourg's level of scrutiny is very close to that of the Luxembourg court105.. The two courts want to speak with one voice.

In addition to the above-mentioned procedural requirements, the Al-Dulimi majority define a new, substantive test for judicial review in cases of conflict between Convention obligations and binding Security Council resolutions, namely the test of ‘arbitrariness’106.. They nevertheless also add that the impossibility of challenging the confiscation measures had lasted ‘for a long period of time’, ‘for many years’107.. This time factor again adds a considerable degree of uncertainty to the majority's reasoning. Would the majority's conclusion be different if the lapse of time had been shorter? What is the minimum acceptable lapse of time without any access to a court?

Unseated by their own artificially inflated reading of Security Council Resolution 1483 (2003), the majority go on to admit ‘a degree of flexibility’ in applying that Resolution108., in line with the similar reasoning in Nada. In the logic of Nada, the Al-Jedda interpretation test is supplemented by the test of ‘latitude in implementation’ whenever the presumption of conformity between Security Council resolutions and human rights has been reversed by the usage of clear and explicit language in the resolution109.. As in Nada, the majority pretend that the respondent State enjoyed ‘a degree of flexibility’ in implementing the Security Council Resolution, but unlike Nada, they do so after concluding that there is no clear and explicit wording contrary to the Convention obligations. The establishment of ‘flexibility’ in implementation is evidently superfluous, from the majority's own perspective, since the interpretation of the Resolution itself did not impose obligations that would breach the Convention. In Al-Dulimi, the second stage of the Nada reasoning, pertaining to an assessment of ‘flexibility’ in implementation, did not need to be engaged, according to the majority's own logic, simply because the presumption based on the interpretation test had not been reversed.

Impaired by hesitation until the end, the majority close their argument by returning to the initial fallacious reasoning, deriving the respondent State's obligation (to take practical measures with a view to improving the applicants' situation) from the fact that Switzerland did take ‘certain practical measures’, although finding these measures ‘insufficient’. No care is taken to check whether these practical measures were in conformity with the Security Council Resolution. Had these exemptions been granted by Switzerland in breach of UN obligations, they would evidently not show that Resolution 1483 could be applied with a degree of flexibility. The majority's conclusion that these exemptions were evidence of a ‘degree of flexibility’ in the execution of Resolution 1483 could only be reached if they had been directly or indirectly authorised by the United Nations. The Grand Chamber fails to investigate if that had been the case. In other words, the majority succumb again to the temptation of the natural fallacy, by easily passing from a statement of fact to a judgment on obligations.

Ultimately, according to the majority, the ‘extent of the respondent State's obligations in the present case’ is determined by a comparison between the guarantees of the ‘system applicable in the present case’ at UN level and the European standard, namely, by the previously rejected test of ‘equivalent protection’. In practice, it is this test that rebuts the repeatedly invoked Al-Jedda presumption, by concluding that the protection afforded to the applicants by Resolution 1483 is not sufficient.

Although the majority seek to avoid at all costs the equivalent protection test (see paragraph 149, in fine), they betray their real intention in paragraph 153, where they accept the argument of the respondent Government that the system applicable in the present case, even in its improved form following Resolution 1730 (2006), does not afford ‘satisfactory protection’, in other words, a level of protection comparable or equivalent to that required by the Convention. This is obviously the Bosphorus test, and the artifice of deleting the prohibited word ‘equivalent’ changes nothing110.. The majority's endorsement of this test is made even clearer by the final lapidary sentence of paragraph 153, which consists in a general comparative assessment of the protection provided by the ‘access to these procedures’ (the Focal Point), on the one hand, and the Convention requirement of ‘appropriate judicial scrutiny’, on the other. The general and abstract tone used is similar to that of Bosphorus111..

It is already regrettable that the majority criticise ‘the UN sanctions system’, offering nothing but a cursory dismissal on the basis of ‘serious, reiterated and consistent criticisms’ from the Special Rapporteurs of the United Nations and ‘sources outside that organisation’, indicating one such source (PACE) and a ‘number of courts, such as the CJEU, the United Kingdom Supreme Court and the Federal Court of Canada’. But it is even more censurable that the majority do not assume transparently the exercise of the ‘equivalent protection test’, which they effectively use in paragraph 153.

In the light of the constitutional role of the Convention, the Contracting Parties remain responsible under the Convention for measures taken by them in discharging their international legal obligations, including where those obligations stem from their membership of an international organisation to which they have transferred part of their sovereign powers117.. However, a measure taken for the purposes of fulfilling such obligations must be deemed justified where the organisation in question confers on fundamental rights at least an equivalent or comparable level of protection to that guaranteed by the Convention. Nevertheless, that justification will be negated in two situations: where the impugned acts do not strictly fall within the international legal obligations of the respondent State, particularly where it has exercised discretion; or where the protection of the Convention rights in question is manifestly deficient.

Since no part of the Contracting Parties' legal orders falls outside the jurisdiction of the Court, instruments of international cooperation come under its supervision. Bosphorus set a twofold test, both procedural and substantive, for that purpose. At the admissibility stage, Bosphorus called for the identification of an action, an omission or conduct under the jurisdiction of the respondent member State which was imposed under some other treaty, in the absence of any discretion. At the merits stage, Bosphorus entailed a qualitative comparison of the substantive human-rights and respective protection mechanisms provided for in both the Convention and the relevant international organisation's legal framework. Such comparison is based on a rebuttable presumption of Convention compatibility until the case for manifest deficiencies in the relevant international organisation's legal order is made out. There is nothing to prevent the applicability of this methodology to the United Nations, the practical consequence being that both the Al-Jedda presumption (regarding the interpretation of binding UN decisions) and the Nada presumption (regarding latitude in the implementation of binding UN decisions) become redundant, and even detrimental.

With regard to international organisations other than the European Union, the Court has adopted a nuanced approach, distinguishing between two different situations. Where the applicant has complained of structural shortcomings in the internal mechanism of the international organisation concerned, the Court has applied the Bosphorus logic, ‘retrospectively’ as if it were ascertaining whether the States at the time when they transferred part of their sovereign powers to the international organisation had ensured that the Convention rights would receive an equivalent protection to that afforded by the Convention118..

Where the applicant has complained, not of structural shortcomings in the internal mechanism of the international organisation concerned, but of a specific decision taken within it, the Court has declared the application inadmissible ratione personae. Sometimes implicitly or even explicitly, the Court has not refrained from simultaneously applying the Bosphorus test, or considering the possibility of its application, to international organisations other than the European Union. Thus, in accordance with Article 35 § 4 of the Convention, it rejected complaints with regard to acts of the United Nations Interim Administration Mission in Kosovo and the Kosovo Force119., the international civil administration in Bosnia and Herzegovina120., the Administrative Tribunal of the International Labour Organisation and the European Organisation for the Safety of Air Navigation121., the European Commission, the European Court of Justice (CFI and CJEC)122., the ICTY123., the ICC124., and the International Olive Council125.. The same reasoning was applied to the Administrative Tribunal of the Council of Europe itself126..

The Court is first guided by the report of the International Law Commission (ILC) on the ‘Fragmentation of international law’, which, under the heading ‘Harmonization — Systemic integration’, states in general terms that ‘[i]n international law, there is a strong presumption against normative conflict’ (report quoted in paragraph 56 of the judgment; see also paragraph 138, together with Nada, cited above, §§ 81 and 170). On that premise, the Court emphasises that the United Nations is based on the values of human rights, pointing out that the purposes of the universal organisation, as stated in Article 1 of its Charter, include ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’ (Article 1, paragraph 3). In the same vein, Article 55 (c) of the Charter, which is part of the chapter on ‘[i]nternational economic and social cooperation’, provides that ‘the United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.

Those two provisions of the UN's constitutive treaty form the legal basis for the whole comprehensive normative framework of the United Nations in the field of human rights, starting with the Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948. It is well known that this historic document was the source of inspiration par excellence for the European Convention on Human Rights, as shown by the fact that the Convention's preamble refers to it three times: in the first and second of its consideranda and again in the last, where the governments signatory thereto express their resolve to ‘take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’. To be sure, the Convention system has been much enriched since then (just like the UN's own normative framework). Nevertheless, the fact that the Convention is soundly anchored in the values proclaimed by the Universal Declaration is unquestionable and unquestioned. In those circumstances, it is impossible to refer in the abstract to any normative conflict between the UN system and the Convention system.

The second stage of the Court's reasoning stems from the first and concerns the interpretation of Security Council resolutions. It should be noted here that the organs of international organisations are generally bound by the rules applicable to their functioning. In other words, the Security Council is in principle bound by the provisions of the UN Charter, including Article 1 § 3 and Article 55 concerning respect for human rights. That is what the Court stated in substance when it found that ‘Article 24 § 2 of the Charter require[d] the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to ‘act in accordance with the Purposes and Principles of the United Nations’’. The Court has thus drawn the legal conclusion (see Al-Jedda, cited above, § 102) that when resolutions are interpreted ‘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’ and that ‘[i]n the event of any ambiguity in the terms of a United Nations 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’.

To put it another way, having regard to the normative framework governing the Security Council's activities, there is a presumption whereby its resolutions do not create any obligations that are incompatible with those undertaken by the member States in the domain of human rights. The presumption in question is, admittedly, rebuttable. Nevertheless, any doubt must be dispelled in favour of an interpretation of the relevant Security Council resolutions which avoids a conflict of obligations. This idea of presumption was used in Nada (cited above, §§ 171 et seq.) and has been developed in the present judgment (see in particular paragraphs 139–140).

The Court first reiterates the findings of its case-law according to which, in view of the UN's 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’ (from Al-Jedda, cited above, § 102, and Nada, cited above, § 171). The Court thus assumes the logical consequence of that idea: in the absence of any clear or explicit wording excluding or limiting respect for human rights in the context of the implementation of sanctions against individuals or entities at national level, ‘the Court must always presume that those measures are compatible with the Convention’ (paragraph 140 of the judgment).

The words ‘must always presume’ does not mean that the presumption in question suddenly becomes irrebuttable. It is certainly not in dispute that, except in respect of norms of jus cogens, the Security Council has the possibility of provisionally departing from specific human rights provisions. This is what transpires, moreover, from the judgments given in the context of the present case by the Swiss Federal Court, and this Court shares its conclusions on that point (see paragraph 136 of the judgment). However, the presumption of human-rights compliance by Security Council resolutions is a strong presumption, in the sense that only ‘clear and explicit’ language is capable of negating it. Any vague, ambiguous or implicit terms would not have that effect.

In sum, the Court has made every effort to limit, to the extent possible, the situations where a real conflict of obligations would arise for the Contracting States when they implement Security Council resolutions in general and more specifically those which — as in the present case — impose economic sanctions under Article 41 of the UN Charter. To the extent that they are binding, resolutions based on the latter provision are covered by the effect of Article 103 of the Charter. However, the method of interpretation used by the Court has tended to minimise the significance of the primacy rule in Article 103. The rule in question has only to be applied in ultima ratio, once all the possibilities of a human-rights-compliant interpretation have, so to speak, been exhausted.

On the basis of that methodology, which is common to the three Grand Chamber judgments — Al-Jedda, Nada and the present judgment — the question is whether the Resolutions underlying the present dispute — especially Security Council Resolution 1483 (2003) — may be interpreted such as to avoid a conflict of obligations.

As a general rule, Security Council resolutions, even where they are binding, which is in principle the case for those which impose economic sanctions, leave a certain latitude to States in their implementation. This is true in particular as regards the means to be used, or the possibilities of derogations or exceptions on humanitarian and other grounds. Such latitude — ‘admittedly limited but nevertheless real’ (see Nada, cited above, § 180) — may enable States to find the appropriate solutions in order to harmonise their various obligations.

Resolution 1483 (2003) is no exception to that rule. Indeed, the crucial paragraph — paragraph 23 (cited in paragraph 46 of the judgment) — while using prescriptive language, requiring that the member States ‘shall freeze without delay’ the relevant funds or other financial assets or economic resources and ‘immediately … cause their transfer’ to the Development Fund for Iraq, nevertheless allows for a significant exception by excluding funds or other financial assets or economic resources which are ‘the subject of a prior judicial, administrative, or arbitral lien or judgement’. In other words, it suffices for there to be a dispute or for the assets or economic resources to have been the subject of an administrative measure or decision, and they will be excluded from the scope of the transfer obligation. It would thus appear that the wording of the paragraph at issue cannot be regarded as unconditional in nature. It is, moreover, noteworthy that the Swiss authorities have taken certain practical decisions, as described in paragraphs 31, 32 and 34 of the judgment, which show that it was indeed possible to apply Resolution 1483 (2003) with some flexibility.

Going beyond those textual considerations, what is most important, having regard to the Court's methodology, is to ascertain whether Resolution 1483 (2003) or Resolution 1518 (2003), which created the relevant Sanctions Committee, expressly prohibited access to a court and, accordingly, whether it was possible for the national courts to verify, in terms of human rights, the measures taken at national level pursuant to the first of those Resolutions. Applying mutatis mutandis the general rule of interpretation, as codified in Article 31 of the Vienna Convention on the Law of Treaties, the Court finds that the above-mentioned Resolutions, when ‘understood according to the ordinary meaning of the language used therein’, did not contain any such prohibition. Nor does the Court detect any other legal factor that could legitimise such a restrictive interpretation (see paragraph 143 of the judgment). However, given the nature and purpose of the measures provided for by Resolution 1483 (2003), the Court circumscribes the extent of the judicial scrutiny under Article 6 of the Convention.

It is certainly to be borne in mind that, according to the Court's settled case-law, the right of access to a court, as secured by Article 6 § 1 of the Convention, is not absolute: it may be subject to limitations, since by its very nature it calls for regulation by the State. The Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court, which must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, such a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Cudak v. Lithuania [GC], no. 15869/02, § 55, ECHR 2010, and the references cited therein,).

In the same vein, the Court considers in the present judgment that ‘the fact that it has remained totally impossible for [the applicants] to challenge the confiscation measure for many years is hardly conceivable in a democratic society’ (see paragraph 152 of the judgment). The Court thus seems to be suggesting that such a drastic restriction on the right of access to a court would impair the essence of that right. On the other hand, the Court takes account of the nature and legitimate aim of the impugned measures, namely the protection of international peace and security. 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, the Court takes the view that the courts of the respondent State should have exercised ‘sufficient scrutiny so that any arbitrariness [could] be avoided’ (see paragraph 146). The Court reiterates in this connection that ‘[o]ne of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle’ (see paragraph 145). Moreover, in the context of such scrutiny — admittedly minimal, but nevertheless important — the applicants should 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’ (see paragraph 151). This means that, at least at the outset, the burden of proof is on the applicants, who should have sufficient evidence at their disposal to enable them, if appropriate, to prove that the measures taken against them are arbitrary in nature.

As thus defined, the scrutiny intended by the Court does not seem to place an excessive burden on the national judicial authorities, while taking into account, in a balanced manner, the imperatives of the protection of international peace and security — and, accordingly, the responsibilities of the Security Council under the Charter, on the one hand, and the values at the heart of the Convention system, on the other.