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Al-Dulimi and Montana Management Inc. v. Switzerland (Eur. Ct. H.R.)

Published online by Cambridge University Press:  27 February 2017

Stefan Kadelbach
Affiliation:
Goethe University Frankfurt am Main, Germany

Abstract

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Type
International Legal Materials
Copyright
Copyright © American Society of International Law 2016

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References

1 Al-Dulimi and Montana Management Inc. v. Switzerland, Grand Chamber, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i_001-164515 [hereinafter Judgment].

2 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, CETS No. 5.

3 Bosphorus Hava Turizm ve Ticaret Anonim Şirketi v. Ireland, 2005-VI Eur. Ct. H.R. 107 [hereinafter Bosphorus].

4 Al-Jedda v. United Kingdom, ECHR 2011-IV Eur. Ct. H.R. 305 [hereinafter Al-Jedda].

5 Nada v. Switzerland, ECHR 2012-V Eur. Ct. H.R. 213 [hereinafter Nada].

6 S.C. Res. 661 (Aug. 6, 1990); S.C. Res. 670 (Sept. 25, 1990).

7 S.C. Res. 1483 (May 22, 2003).

8 S.C. Res. 1518 (Nov. 24, 2003).

9 Judgment, supra note 1, ¶ 29.

10 See, e.g., Kadi v. Council and Commission, 2005 ECR II 3649, ¶¶ 268, 286.

11 Al-Dulimi and Montana Management Inc. v. Switzerland, Second Section, Eur. Ct. H.R., (2013), http://hudoc.echr.coe.int/eng?i_001-138948; see Anne Peters, Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?, EJIL Talk! (Dec. 4, 2013), http://www.ejiltalk.org/targeted-sanctions-after-affaire-al-dulimi-et-montanamanagement-inc-c-suisse-is-there-a-way-out-of-the-catch-22-for-un-members.

12 Bosphorus, supra note 3.

13 Judgment, supra note 1, ¶¶ 126–27.

14 Id. ¶¶ 129, 135.

15 Id. ¶ 134.

16 Id. ¶ 145.

17 Loizidou v. Turkey, Preliminary Objections, 20 Eur. H.R. Rep. 99, ¶ 75 (2015).

18 Al-Jedda, supra note 4.

19 Nada, supra note 5.

20 Nabil Sayadi and Patricia Vinck v. Belgium, H.R. Com., No. 1472/2006, ¶ 10.9, U.N. Doc. CCPR/C/94/D/1472/2006 (2008).

21 See the material cited in Judgment, supra note 1, ¶¶ 52–55. The focal point was established by S.C. Res. 1730 (Dec. 19, 2006) and was replaced, as far as measures against terrorism are concerned, by the ombudsperson introduced by S.C. Res. 1904 (Dec. 17, 2009).

22 Judgment, supra note 1, at 75–114 (concurring opinion by Judge Pinto de Albuquerque, joined by Judges Hajiyev, Pejchal and Dedov).

23 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission, 2008 E.C.R. I-6351, ¶¶ 300, 322–26, 342– 43.

24 Since the Treaty of Lisbon entered into force, legal acts imposing sanctions must provide for judicial protection. See Consolidated Version of the Treaty on the Functioning of the European Union art. 75, § 3, 215, § 3, Dec. 13, 2007, 2012 O.J. (C 306).

25 Judgment, supra note 1, at 140–48.

26 Id. ¶ 151.

27 Id. ¶ 64.

page 1078 note 1 For the full text of Resolution 1483 (2003), see paragraph 46 below.

page 1078 note 2 A State can decide, that as a rule, its citizens or residents should address their de-listing requests directly to the focal point. The State will do so by a declaration addressed to the Chairman of the Committee that will be published on the Committee's website.

page 1097 note 1 UN Security Council Resolution 1483 (2003) on the situation between Iraq and Kuwait, 22 May 2003, S/RES/ 1483 (2003).

page 1097 note 2 See Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI (“Bosphorus”).

page 1097 note 3 It is evidently the role of the Court to interpret Article 103 of the Charter and the applicable resolution for the purposes of the case in order to examine whether there was a plausible basis in such instruments for the matters impugned before it (see, mutatis mutandis, Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, § 122, 2 May 2007 (“Behrami”)).

page 1097 note 4 A/RES/25/2625, 24 October 1970.

page 1097 note 5 Article 59 of the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two.

page 1097 note 6 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 392, § 107, and “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006 (“ILC Report on Fragmentation”), §§ 331–332.

page 1098 note 7 This evidently leaves open the question of responsibility towards non-member States as a result of the application of Article 103 (ILC Report on Fragmentation, cited above, § 343).

page 1098 note 8 ILC Report on Fragmentation, cited above, § 345.

page 1098 note 9 Ibid., § 355. The Security Council frequently calls upon all States, including States that are not members of the United Nations, “to act strictly in accordance with the provisions of this resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed” (see, for example, Resolutions 661 (1990), 748 (1992), 757 (1992), 917 (1994), 1267 (1999), 1306 (2000)). This practice has been accepted by the European Union (see, for example, Article 8 of Council Regulation (EC) No 1263/94, of 30 May 1994).

page 1098 note 10 See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory, Advisory Opinion, 1932, PCIJ, Series A/B, No. 44 (Feb. 4), p. 24, and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ Reports 1988, p. 12, § 57. Article 27 of the Vienna Convention confirms a longstanding rule of customary international law, restated by Article 3 of the ILC Draft Articles on State Responsibility.

page 1098 note 11 ILC Report on Fragmentation, cited above, § 331.

page 1098 note 12 Since the Charter was adopted before Article 53 of the Vienna Convention entered into force, the relationship between the Charter and jus cogens is regulated by customary international law.

page 1098 note 13 See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase), Judgment, ICJ Reports 1970, p. 3, § 34. In spite of the erga omnes language, the examples given are undoubtedly jus cogens.

page 1098 note 14 ILC Report on Fragmentation, cited above, § 346.

page 1098 note 15 See my opinion in Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015.

page 1098 note 16 In fact, as early as 1932, Kelsen affirmed that issues traditionally in the domain of constitutional law, such as the duties of a State in relation to its citizens, could be apprehended by international law and therefore the development of an international protection of human rights and fundamental freedoms strongly emphasises the unity of the rule of law (François Rigaux, “Hans Kelsen on International Law”, EJIL 9 (1998), p. 333).

page 1098 note 17 See UN General Assembly Resolution 60/1, of 16 September 2005, which adopted the document in question (A/RES/60/1).

page 1098 note 18 The reference is obviously to Marbury v. Madison, 5 U.S. 137 (1803). For the ICJ's conception of its powers, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16, § 89, and Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956: ICJ Reports 1956, p. 77 at p. 85.

page 1098 note 19 Security Council Resolution 1518 (2003), 24 November 2003, S/RES/1518 (2003).

page 1098 note 20 See paragraph 143 of the judgment.

page 1098 note 21 International judicial practice and scholarly opinion have affirmed certain rules of interpretation of Security Council resolutions, which mostly derive from a mutatis mutandis application of the Vienna Convention rules on interpretation (See Legal Consequences for States, cited above, p. 53, § 114, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 114; Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94-1, 2 October 1995, §§ 71–137; and, among scholars, Michael Wood, “The Interpretation of Security Council Resolutions”, 2 Max Planck Yearbook of United Nations Law 77 (1978), and Droubi, Sufyan, Resisting United Nations Security Council Resolutions, Routledge, 2014, pp. 710 Google Scholar).

page 1098 note 22 Resolution 1483 avoided the expressions “necessary” or “where appropriate” of Resolution 1390 (2002).

page 1098 note 23 On the teleological interpretation of Security Council Resolutions see Nada v. Switzerland [GC], no. 10593/08, § 175, ECHR 2012; Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, joined cases C-402/05 P and C-415/05 P (“Kadi I”), Judgment of the Court of Justice of the European Communities (CJEC), Grand Chamber, 3 September 2008, §§ 296–297; and ICTY Appeals Chamber in Dusko Tadić, cited above, §§ 72–78.

page 1098 note 24 The contextual interpretation of Security Council resolutions was also taken into account by the Court in Nada, cited above, § 175, and by the ICTY Appeals Chamber in Dusko Tadić, cited above, § 93.

page 1098 note 25 While Resolution 1483 (2003) had three references to “international law” and one sole reference to “human rights”, Resolution 1546 (2004) had two references to “human rights” and one sole reference to “international law”. Quite significantly, Resolution 1390 (2002) on the conflict in Afghanistan had no reference whatsoever to “international law” or “human rights”.

page 1098 note 26 Security Council Resolution 1452 (2002) on the threats to international peace and security caused by terrorist acts, 20 December 2002, S/RES/1452 (2002).

page 1098 note 27 Security Council Resolution 1267 (1999) adopted by the Security Council at its 4051st meeting on 15 October 1999, S/RES/1267 (1999).

page 1098 note 28 Security Council Resolution 1390 (2002) on the situation in Afghanistan, 16 January 2002, S/RES/1390 (2002).

page 1098 note 29 Consultation of the 1518 Sanctions Committee's web page confirms that no exemptions are foreseen for the asset freeze (“none”); https://www.un.org/sc/suborg/en/sanctions/1518 (accessed 22 April 2016).

page 1098 note 30 See SC/7791 IK/365 of 12 June 2003.

page 1098 note 31 See SC/7831 IK/372 of 29 July 2003.

page 1098 note 32 UNGA Resolution 60/1, cited above, § 109.

page 1098 note 33 Security Council Resolution 2253 (2015), New ISIL (Da'esh) and Al-Qaida Sanctions List, 17 December 2015, S/RES/2253 (2015).

page 1098 note 34 On the logical and systematic interpretation of Security Council Resolutions, see ICTY Appeals Chamber in Dusko Tadić, cited above, § 83.

page 1099 note 35 The 1518 Committee's “Delisting Guidelines”, published on its website, start with the words “without prejudice to available procedures”, but no other specification is given. See https://www.un.org/sc/suborg/en/sanctions/1518/materials/delistingguidelines (accessed 11 May 2016).

page 1099 note 36 Security Council Resolution 1730 (2006), General Issues Relating to Sanctions, 19 December 2006, S/RES/1730 (2006).

page 1099 note 37 Security Council Resolution 1735 (2006), Threats to International Peace and Security Caused by Terrorist Acts, 22 December 2006, S/RES/1735 (2006).

page 1099 note 38 Council of Europe Parliamentary Assembly (PACE), Resolution 1597 (2008), United Nations Security Council and European Union blacklists, 23 January 2008, § 6.1.

page 1099 note 39 Kadi I, 3 September 2008, cited above.

page 1099 note 40 HRC Communication No. 1472/2006, CCPR/C/94/D/1472/ 2006, 29 December 2008.

page 1099 note 41 Security Council Resolution 1904 (2009) [on continuation of measures imposed against the Taliban and Al-Qaida], 17 December 2009, S/RES/1904 (2009), § 20.

page 1099 note 42 In addition to the respective annual reports, these documents are very pertinent to assess the practice of the Ombudsperson: Ombudsperson's Statement during an Open Briefing to Member States, 23 November 2015; Remarks to the 49th meeting of the Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe in Strasbourg, France, 20 March 2015; Briefing of the Ombudsperson at the Security Council's Open Debate on “Working Methods of the Security Council” (S/2014/725) on the topic: “Enhancing Due Process in Sanctions Regimes”, 23 October 2014; Remarks by the Ombudsperson delivered to the panel on “Due Process in UN Sanctions Committees” at Fordham Law School, 26 October 2012; Letter of the Ombudsperson to the President of the Security Council, S/2012/590, 30 July 2012; Remarks of the Ombudsperson at the workshop on the UN Security Council, Sanctions and the Rule of Law, 31 May 2012 (Kimberly Prost, “The Office of the Ombudsperson; a Case for Fair Process”); Lecture by the Ombudsperson at the Institute of Legal Research at The National Autonomous University of Mexico, 24 June 2011; Speaking Notes for Presentation by Kimberly Prost, Ombudsperson at the 41st meeting CAHDI, 18 March 2011; Briefing by the Ombudsperson to the annual informal meeting of Legal Advisers of the Ministries of Foreign Affairs of United Nations Member States, 25 October 2010.

page 1099 note 43 As the first Ombudsperson herself stated, the birth of the Office was a “difficult one”, since it had been “the product of a compromise forged between two very different perspectives on this use of the Security Council sanctions power” (Kimberly Prost, Speaking Notes, 18 March 2011, cited above, p. 1).

page 1099 note 44 The Ombudsperson herself acknowledged that “Structurally the Office of the Ombudsperson does not exist and the administrative and contractual arrangements supporting it in practice do not provide institutional safeguards for independence.” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 4). “There are no institutional protections for the independence of the office of the ombudsperson, which leaves it very vulnerable, especially when going through the upcoming period of transition.” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 6).

page 1099 note 45 Security Council Resolution 1989 (2011) on expansion of the mandate of the Ombudsperson established by the resolution 1267 (1999) and the establishment of a new Al-Qaida sanctions list, 17 June 2011, S/RES/1989 (2011).

page 1099 note 46 Since its inception, the comprehensive report has been used by the Ombudsperson as a means to ensure that the petitioner's side of the story is heard by the decision maker (Lecture at the Institute of Legal Research, cited above, p. 6).

page 1099 note 47 See Kimberley Prost, “The Office of the Ombudsperson; a Case for Fair Process”, p. 4. https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/fair_process.pdf (accessed 22 April 2016).

page 1099 note 48 See Kimberley Prost, “The Office of the Ombudsperson”, cited above, p. 2.

page 1099 note 49 After the office became operational, the Ombudsperson herself admitted that the process was “not a transparent one”, referring to non-disclosure of the comprehensive reports beyond the Committee but, on a discretionary basis, to some interested States upon request, and to the States’ reluctance to provide factual detail and access to confidential information (Remarks delivered to the informal meeting of legal advisers, cited above, p. 2; Briefing of the Ombudsperson, cited above, p. 3; and Remarks by Ombudsperson, cited above, p. 5).

page 1099 note 50 There seems to be a State practice to respect the Ombudsperson's position. According to the Ombudsperson, “in all completed cases post resolution 1989 (2011), the decision of an independent and impartial mechanism has prevailed in terms of the assessment of the delisting requests” (Remarks by Ombudsperson, 25 October 2010, cited above, p. 3).

page 1099 note 51 For this criticism, see: the report of the UN Special Rapporteur on Protection of human rights and fundamental freedoms while countering terrorism, 26 September 2012, A/67/396 (“the Emmerson Report”), § 31; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 15 December 2010, A/HRC/ 16/50 (“the High Commissioner's Report 2010”), §§ 21–22, 44; and the report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 6 August 2010, A/65/258 (“the Scheinin Report 2010”), §§ 55–56.

page 1099 note 52 Recently, the 1518 Committee made accessible a merely formalistic “narrative summary of reasons for the listing” of the second applicant, Montana Management, Inc. No substantive reasons or evidence were given.

page 1099 note 53 Security Council Resolution 2161 (2014) “[on threats to international peace and security caused by terrorist acts by Al-Qaida]”, 17 June 2014, S/RES/2161 (2014).

page 1099 note 54 As the Ombudsperson herself concluded, “the Focal Point mechanism by its very nature and structure does not have the fundamental characteristics necessary to serve as an independent review mechanism which can deliver an effective remedy” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 2).

page 1099 note 55 As criticised by the Ombudsperson herself, Kimberley Prost, “The Office of the Ombudsperson”, cited above, p. 5, and Briefing of the Ombudsperson, cited above, p. 1. Later on, the Ombudsperson argued that this procedure had “significant advantages over court process” adding “it is a simple procedure, it can be started through an email, the Petitioner can communicate in a language of choice, no lawyer is required, there are no costs, and it has strict deadlines which make it quite fast relatively speaking” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 4). I would oppose the argument that no great stretch of the imagination is necessary to conceive a simplified, urgent judicial procedure with all these “advantages”. She also argued that judicial review could not take into account evolving situations. I would reply that nothing hinders a court from proceeding with a de novo review of the initial situation. This is exactly the case with the evaluation of an accused person's dangerousness in European security measures (strafrechtliche Maßnahmen, misure di sicurezza) applied in criminal proceedings.

page 1100 note 56 In favour of the punitive character of the United Nations sanctions, including freezing orders, see: the Emmerson Report, cited above, § 55; the High Commissioner's Report 2010, cited above, § 17; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 2 September 2009, A/HRC/12/22 (“the High Commissioner's Report 2009”), § 42; and the report by the former UN Special Rapporteur, 6 August 2008, A/63/223 (“the Scheinin Report 2008”), § 16. The EU General Court judgment in case T-85/09, Yassin Abdullah Kadi v. European Commission (30 September 2010, § 150) had raised the issue of the punitive nature of these sanctions with regard to the freezing orders, while accepting that confiscation did affect the very substance of the right to property. The Ombudsperson opposes such understanding, considering (on the Office's website) that the sanctions “are not intended to punish for criminal conduct”, but to “hamper access to resources” and “encourage a change of conduct” on the part of the targeted people. At the same time, it is admitted that these sanctions flowing from listing have a “direct and considerable impact on the rights and freedoms of individuals and entities” and are of “indeterminate length” and therefore that there must be “some substance and reliability to the information upon which such sanctions are applied”. No specific intent by an individual is required by the Ombudsperson, but it must be demonstrated that the person “knew or [must] have known” that he or she supported ISIL or al-Qaeda or any associated entity. In my view, it is highly disputable to say that a temporary freeze of all assets of a person or entity without any sunset clause is merely a preventative measure. In any event, the Al-Dulimi case is simpler in so far as it does not deal with a temporary freezing order, but a truly confiscatory measure implying a final and unlimited transfer of property with a clearly punitive purpose.

page 1100 note 57 Her Majesty's Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010] 2 AC 534, § 60, referring to Security Council Resolution 1373 (2001). The International Commission of Jurists calls them “international pariahs” (International Commission of Jurists, “Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights”, Geneva, December 2008, p. 117).

page 1100 note 58 The Scheinin Report 2008, § 9 (customary international law).

page 1100 note 59 The High Commissioner's Report 2009, cited above, § 42, and ICTY Appeals Chamber in Dusko Tadić, Appeal judgement on allegations of contempt against prior counsel, Milan Vujin, IT-94-1-A-AR77, 27 February 2001 (see the consideranda of the judgment) and Special Tribunal for Lebanon, Prosecutor v. El Sayed, President Antonio Cassese's “Order Assigning Matter to Pre-Trial Judge”, CH/PRES/ 2010/01, 15 April 2010.

page 1100 note 60 Human Rights Committee, General Comment No. 29, States of Emergency (article 4), 31 August 2001, CCPR/C/21/ Rev.1/Add.11, §§ 7 and 15, and General Comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, §§ 6 and 59. See also Article 27 § 2 of the American Convention on Human Rights and Article 4 § 2 of the Arab Charter on Human Rights; also Inter-American Court of Human Rights, Goiburú et al. v. Paraguay, Judgment (Merits, Reparations and Costs), 22 September 2006, § 131, Habeas corpus in emergency situations, Advisory Opinion OC-8/87, 30 January 1987, §§ 17–43, and Judicial guarantees in states of emergency, Advisory Opinion OC-9/87, 6 October 1987, §§ 18–34.

page 1100 note 61 See the Emmerson Report, cited above, § 15, and the Scheinin Report 2008, cited above, § 12.

page 1100 note 62 Abdelrazak v. The Minister of Foreign Affairs, [2009] FC 580, § 51.

page 1100 note 63 General Comment No. 32, cited above, § 19.

page 1100 note 64 HRC Communication No. 1472/2006, cited above (§ 10.3). The HRC expressed its view against the punitive nature of the sanctions of the above-mentioned Resolutions (§ 10.11).

page 1100 note 65 Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18.

page 1100 note 66 Deweer v. Belgium, 27 February 1980, Series A no. 35, § 49.

page 1100 note 67 Van de Hurk v. the Netherlands, 19 April 1994, § 45, Series A no. 288.

page 1100 note 68 See paragraph 136 of the judgment.

page 1100 note 69 Golder, cited above, § 38; Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012.

page 1100 note 70 Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93, and Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B.

page 1100 note 71 Waite and Kennedy v. Germany [GC], no. 26083/94, § 63, ECHR 1999-I.

page 1100 note 72 Ibid., §§ 68–74, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 48, ECHR 2001-VIII.

page 1100 note 73 McElhinney v. Ireland [GC], no. 31253/96, § 38, ECHR 2001-XI (extracts).

page 1100 note 74 Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 54, ECHR 2001-XI.

page 1100 note 75 Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, 14 January 2014.

page 1100 note 76 Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, 27 June 2013.

page 1100 note 77 Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening), Judgment, ICJ Reports 2012, p. 99.

page 1100 note 78 Deweer, cited above, § 49, and Kart v. Turkey [GC], no. 8917/05, § 67, ECHR 2009 (extracts).

page 1100 note 79 Guérin v. France [GC], 29 July 1998, § 37, Reports of Judgments and Decisions 1998-V.

page 1100 note 80 See my separate opinion in A. Menarini Diagnostics S.R.L. v. Italy, no. 43509/08, 27 September 2011.

page 1100 note 81 Brownlie, Ian, “Comment”, in Weiler, and Cassese, (eds.), Change and Stability in International Law-Making, Berlin: de Gruyter, 1988, p. 110 Google Scholar.

page 1101 note 82 See, among other independent voices, both from inside and outside the United Nations: the Emmerson Report, cited above, §§ 55–57; the High Commissioner's Report 2010, cited above, §17; International Commission of Jurists, “Assessing Damage”, cited above, pp. 115–116; and the Scheinin Report 2008, cited above, § 16.

page 1101 note 83 See paragraph 26 of the judgment.

page 1101 note 84 The Emmerson Report (cited above, §§ 56–58) pleads for a balance of probabilities test and a sunset clause imposing a time-limit on the duration of designations. In its most recent Resolution 2253 (2015), paragraph 16, the Security Council urged the member States to apply “an evidentiary standard of proof” of “reasonable grounds” or “reasonable basis”.

page 1101 note 85 See, mutatis mutandis, Articles 53 and 64 of the Vienna Convention, cited above. The UN Special Rapporteur is of the view that the absence of independent judicial review of sanctions of a penal nature is so grave that it has rendered the current sanctions regime ultra vires of the Security Council's Chapter VII powers (the Scheinin Report 2010, cited above, § 57).

page 1101 note 86 See, for example, R. Kolb, “L’article 103 de la Charte des Nations Unies”, Collected Courses of The Hague Academy of International Law, 2013, vol. 367, pp. 119–123; Arcari, “Forgetting Article 103 of the UN Charter? Some perplexities on ‘equivalent protection’ after Al-Dulimi”, in QIL, Zoom-in 6 (2014), p. 33; and Bernhardt, “Commentary to Article 103”, in B. Simma (ed.), The Charter of the United Nations: A Commentary, 2002, p. 1300.

page 1101 note 87 CFI, cases T-315/01, Reports II-3649, and T-306/01, Reports II-3533, respectively.

page 1101 note 88 See, for example, Bruno Simma, “Universality of International Law from the perspective of a practitioner”, in 20 EJIL (2009), p. 294: “If … universal institutions like the UN cannot maintain a system of adequate protection of human rights, considerations of human rights deserve to trump arguments of universality”.

page 1101 note 89 Kadi I, 3 September 2008, cited above, § 316.

page 1101 note 90 Ibid., §§ 284–287.

page 1101 note 91 The Ombudsperson herself considered this judgment the “tipping point” in the context of the criticism emanating from many geographic corners, by putting the enforceability of the Security Council regime “clearly directly in peril” (Kimberley Prost, Remarks delivered to the informal meeting of Legal advisors, 25 October 2010, p. 2).

page 1101 note 92 Kadi I, 3 September 2008, cited above, § 353.

page 1101 note 93 In Commission and Others v. Kadi (joined cases C-584/10 P, C-593/10 P and C-595/10 P, judgment of 18 July 2013) (“Kadi II”), the Court of Justice of the European Union (CJEU) confirmed the annulment of the new Regulation adopted by the Commission to comply with Kadi I. It is instructive to observe how, in the Kadi II judgment, the CJEU gives precise details as to the conduct that it expects of the competent Union authority (see §§ 111–116, 135–136). But in Kadi II the CJEU did not include in its analysis the Ombudsperson, an omission which the latter considered as “unfortunate”. She added that such consideration by the CJEU “would have been helpful … even if it considered the mechanism did not go far enough” (Remarks by the Ombudsperson to the CAHDI, cited above, p. 4).

page 1101 note 94 See Kadi I, 3 September 2008, cited above, § 322, and Kokott and Sobotta, “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance”, in EJIL (2012), vol. 23, no. 4, p. 1019. Most notably, Malenovsky considers that the CJEC applied the Bosphorus test by implicitly finding the protection at UN level to be manifestly deficient (see “L’enjeu délicat de l’éventuelle adhésion de l’Union européenne à la Convention européenne des droits de l’homme : de graves différences dans l’application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg”, RGDIP 2009-4).

page 1101 note 95 See Behrami, cited above, § 133. The Court adopted Sarooshi's “overall authority” test, as set out in his The United Nations and the Development of Collective Security (1999), which is distinct from the more rigorous criterion of Article 5 of the Draft Articles on the Responsibility of International Organisations. See, for a critique of the Behrami approach, L.-A. Sicilianos, “Le Conseil de Sécurité, La responsabilité des Etats et la Cour européenne des droits de l’homme : vers une approche intégrée ?”, in RGDIP, 2015-4, p. 782, and the literature cited therein.

page 1101 note 96 See Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011. The Court followed the concurring opinion of Sir Nigel Rodley in Sayadi and Vinck, cited above.

page 1101 note 97 See Nada, cited above.

page 1101 note 98 Ibid., § 176.

page 1101 note 99 Ibid., §§ 179–180.

page 1101 note 100 Ibid., § 212.

page 1101 note 101 See paragraph 145 of the judgment. In paragraph 146 the “seriousness of the consequences” is also mentioned.

page 1101 note 102 The majority are not clear at all in paragraph 147. As they are talking about the UN decision to list or delist, any “dispute” would be at UN level, so this passage conflates the UN level with the domestic level. In the present case, the applicants appealed directly to the Sanctions Committee (with the support of the government) and at that point – when there was already a dispute – the domestic courts were not yet involved. Reading the paragraph as a whole, and particularly its last sentence, it seems that the majority are not requiring an a priori assessment of the original listing itself – which would be at UN level – but an assessment at the domestic level before the “measures” are taken, or before “legal effect” is given to the UN listing. The point at which such domestic ex proprio motu assessment by the administration is to be carried out remains, however, unclear. Should it have taken place before 12 May 2004, when the applicants’ names were added to the Swiss list (paragraph 18 of the judgment) in accordance with Article 2 § 2 of the Swiss Iraq Ordinance (paragraph 36 of the judgment)? Or before the actual confiscation decision, which took place only on 16 November 2006 (paragraph 23 of the judgment), in accordance with Article 2 § 2 of the Swiss Confiscation Ordinance (paragraph 37 of the judgment)? By stating in paragraph 150 that “before taking the above-mentioned measures, the Swiss authorities had a duty to ensure that the listing was not arbitrary”, the majority still fail to resolve the crucial question of the timing of the a priori assessment. This lack of clarity on the part of the majority entails a serious problem in terms of the guidance that should have been given to the respondent State for the future.

page 1101 note 103 It is highly relevant to compare paragraphs 147 and 152 of the Al-Dulimi judgment with paragraphs 111–114, 118, 135–136 of the Kadi II judgment.

page 1101 note 104 104 Paragraph 146 of the judgment.

page 1102 note 105 Paragraph 152 of the judgment.

page 1102 note 106 Paragraph 154 of the judgment.

page 1102 note 107 See Nada, cited above, § 175.

page 1102 note 108 Compare paragraphs 114 and 153 of the judgment.

page 1102 note 109 Inspired by the so-called Solange II case (Federal Constitutional Court, judgment of 22 October 1986, BVerfG 73, 339), this general and abstract evaluation was criticised by Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki in their separate opinion annexed to Bosphorus, inviting the Court to proceed with a more specific and concrete analysis of the equivalent protection. The Solange II test of the German Constitutional Court, which only purported to “generally ensure (generell gewährleisten) an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights”, was less stringent than the Solange I test, which focussed on a comparison between the catalogues of specific guarantees for fundamental rights in the conflicting legal orders as long as there was insufficient protection at EU level (“in Geltung stehenden formulierten Katalog von Grundrechten enthält, der dem Grundrechtskatalog des Grundgesetzes adäquat ist”, Federal Constitutional Court, judgment of 29 May 1974, BVerfG 37, 211).

page 1102 note 110 See Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 50, 4 July 2013; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, §§ 40, 41, 54, ECHR 2009; Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 103, 26 April 2007; and United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports of Judgments and Decisions 1998-I. In other words, the principles of primacy and direct effect developed by the CJEU are to be found in the Court's case-law as well. Similar principles have been ascertained under the American Convention on Human Rights by the Inter-American Court of Human Rights, especially since “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, 5 February 2001 (see Mac-Gregor, “The Constitutionalization of International law in Latin America, Conventionality Control, The New doctrine of the Inter-American Court of Human Rights”, in AJIL Unbound, 11 November 2015, and the case-law referred to therein).

page 1102 note 111 This does not mean that the Convention is an exclusive, self-contained document. On the contrary, it is an inclusive treaty, generously open to other texts which promote a higher degree of protection of human rights (Article 53 of the Convention).

page 1102 note 112 See Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310. It is relevant to note in this context that the preamble to the Convention only refers to the Universal Declaration of Human Rights and not to the Charter. Moreover, the Convention does not contain a general provision, unlike other treaties, to the effect that the rights guaranteed therein are qualified to the extent required or authorised by the Charter or by United Nations Resolutions.

page 1102 note 113 See, among many other authorities, M.C. and Others v. Italy, no. 5376/11, 3 September 2013; Kurić and Others v. Slovenia [GC], no. 26828/06, ECHR 2012; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, ECHR 2010; and Suljagić v. Bosnia and Herzegovina, no. 27912/02, 3 November 2009.

page 1102 note 114 On the European-wide, constitutional competence of the Court, see my previous separate opinions in Fabris v. France [GC], no. 16574/08, ECHR 2013, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013.

page 1102 note 115 Bosphorus, cited above, § 153.

page 1102 note 116 See, for example, Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009.

page 1102 note 117 Behrami, cited above.

page 1102 note 118 Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 and 25 others, § 30, 16 October 2007. It replicates the Behrami reasoning.

page 1102 note 119 Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008. The Court was tempted to use the Bosphorus test.

page 1102 note 120 Connolly v. 15 member States of the European Union (dec.), no. 73274/01, 9 December 2008. The Court clearly used the Bosphorus test before concluding that, “in any event” (quoi qu’ il en soit), the acts were not imputable to the respondent State.

page 1102 note 121 Galić v. the Netherlands (dec.), no. 22617/07, 9 June 2009. In § 46 the reasoning echoes the Bosphorus test.

page 1102 note 122 Djokaba Lambi Longa v. the Netherlands (dec), no. 33917/12, ECHR 2012. Here again, the reasoning in § 79 is inspired by Bosphorus.

page 1102 note 123 López Cifuentes v. Spain (dec.), no. 18754/06, 7 July 2009. The Court refers to § 73 of Waite and Kennedy to conclude that the refusal of access to the domestic courts did not attain the core of the applicant's Article 6 right.

page 1102 note 124 Beygo v. 46 member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009. The reasoning is similar to Boivin.

page 1102 note 125 The power of the national court to carry out effective judicial review will be gravely impaired if the implementing State does not have access to the full justification for the listing or, even if it does, the designating State does not consent to reveal the information to the targeted person (see the Emmerson Report, cited above, § 22).

page 1102 note 126 UN General Assembly Resolution A/RES/68/178, 28 January 2014.

page 1102 note 127 This was the position of the first Ombudsperson Kimberley Prost, in her “Remarks delivered to the informal meeting of Legal Advisors”, 25 October 2010, p. 8. The same position is reflected on the Ombudsperson's website page on “approach and standard”, when it refers to the “unique context of decisions by a Committee acting under the express direction of the Security Council” as a justification for the adopted evidentiary standard.

page 1102 note 128 This was the position of the Court in Behrami, cited above, and Stichting Mothers of Srebrenica, cited above, which clearly departed from the general principles established in Waite and Kennedy and Bosphorus.

page 1102 note 129 On the “hegemonic competition” between different treaties and the systems created thereby, see Koskenniemi, , “Droit international et hégémonie : une reconfiguration” in Koskenniemi, M. (ed.), La politique du droit international, Paris: Pédone, 2007, pp. 291320 Google Scholar.

page 1103 note 130 See Nollkaemper, A., “Rethinking the Supremacy of International Law”, Zeitschrift für öffentliches Recht, 65 (2010), p. 74 CrossRefGoogle Scholar.

page 1103 note 131 See Rosas, A., “The Death of International Law?”, Finnish Yearbook of International Law, 20 (2011), p. 227 Google Scholar.

page 1103 note 132 Since domestic remedies can only provide limited relief, because the relevant Security Council resolution, the ensuing obligations and the universal “blacklists” remain valid even when the State implementation measure is invalidated at national level, an effective remedy at UN level is indispensable. Such a universal remedy may render unnecessary additional domestic remedies, provided it is effective.

page 1103 note 133 See my separate opinion in Sargsyan, cited above, § 30.

page 1124 note 1 This approach has been criticised mainly because it does not provide a clear answer regarding Article 103 of the UN Charter. See, in this vein, Hollenberg Stephan, “The Diverging Approaches of the European Court of Human Rights in the Cases of Nada and Al-Dulimi”, International and Comparative Law Quarterly 64 (2015) 445– 460; Willems, Auke, “The European Court of Human Rights on the U.N. Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland ”, Nordic Journal of International Law 83 (2014) 3960.CrossRefGoogle Scholar However, I believe that it is not within the Court's competence to make a final determination regarding the role of Article 103 of the UN Charter. And, last but not least, the harmonisation approach discussed by the two authors and applied here by the Grand Chamber does not provide an answer to this issue either.

page 1124 note 2 Some authors count 250 such organisations (Rittberger Volker, Zangl Bernhard and Kruck Andreas, Internationale Organisationen, Grundwissen Politik (Springer 2013), 17–18; Wheatley Steven, The Democratic Legitimacy of International Law (Hart 2010), 65); others gauge the number at over 500 (Wouters Jan, Brems Eva, Smis Stefaan and Schmitt Pierre, Accountability for Human Rights Violations by International Organisations (Intersentia 2010), 2).

page 1124 note 3 UN Charter, Article 1 (3), Article 13 (1) b), and Article 55 c).

page 1124 note 4 International Covenant on Civil and Political Rights (ICCPR), entry into force 23 March 1976, ratified by 168 States; International Covenant on Economic, Social and Cultural Rights (ICESCR), entry into force 3 January 1976, ratified by 164 States; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), entry into force 4 January 1969, ratified by 77 States; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), entry into force 3 September 1981, ratified by 189 States; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), entry into force 26 June 1987, ratified by 158 States; Convention on the Rights of Persons with Disabilities (CRPD), entry into force 3 May 2008, ratified by 161 States; International Convention for the Protection of All Persons from Enforced Disappearance (CED), entry into force 23 December 2010, ratified by 51 States; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), entry into force 1 July 2003, ratified by 48 States. For the CRC see next note.

page 1125 note 5 Convention on the Rights of the Child (CRC), entry into force 2 September 1990, ratified by 196 States (as of March 2016).

page 1125 note 6 See, in this regard, the present judgment (paragraphs 52–55) and the Chamber judgment (§§ 106 and 118). In terms of literature, compare for example Annalisa, Ciampi, “Security Council Targeted Sanctions and Human Rights”, in Bardo, Fassbender, Securing Human Rights: Achievements and Challenges of the UN Human Rights Council, Oxford University Press 2011, 98140 Google Scholar.

page 1125 note 7 Compare, in this vein, the considerations of the UK Supreme Court in Youssef (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2016] UKSC 3, §§ 55–59, on the standard of review required in a similar context.

page 1125 note 8 On the potential responsibility of the UN, see the Draft Articles on the Responsibility of International Organizations (DARIO) adopted by the ILC at its sixty-third session in 2011 (Document A/66/10, ILC Yearbook 2011, vol. II(2), Articles 15, 16 and 17).

page 1125 note 9 Or, in the words of Nina Blum (The European Convention on Human Rights beyond the Nation-state: The Applicability of the ECHR in Extraterritorial and Inter-governmental Contexts, Helbing 2015, p. 223), “[f]rom the perspective of the individual and the human rights courts, states should not be let off the hook. The UN is not (yet) within reach of the courts, but the member states are.”

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