ECHR Case on Implementation of UN Security Council Black-lists

You will recall from our discussion of sources and subjects of international law, there have been objections to the increasingly legislative nature of resolutions passed by the U.N. Security Council, particularly those anti-terrorism resolutions that have created blacklists of individuals alleged to have be associated with terrorist organizations. In this very recent judgment of the European Court of Human Rights, the question was whether Swiss legislation implementing such a Security Council resolution violated the human rights of an Italian-Egyptian resident of Switzerland. The case will also be helpful in priming our thinking about human rights, which we will be begin looking at in a little over a week.

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Nada v. Switzerland (Sept. 12, 2012) [source - ASIL Int'l Law Brief]

Click here for document (approximately 82 pages)

The Grand Chamber of the European Court of Human Rights has ruled in Nada v. Switzerland that Switzerland violated the applicant's Article 8 right to respect his private and family life and Article 8 taken together with Article 13 right to an effective remedy of the European Convention on Human Rights by failing to strike a fair balance between the applicant's Convention rights and the legitimate aims of the Swiss government to prevent crime and to protect its national security and public safety.

This case deals with a Swiss ordinance implementing the UN Sanctions Regime against Osama bin Laden and his network adopted by the Security Council in 1999 in response to the 1998 bombings of U.S. embassies in Kenya and Tanzania. As the Security Council extended the sanctions regime with subsequent resolutions against al-Qaeda and the Taliban, the Swiss government followed suit by modifying its ordinance, adding a ban on entry into and transit through Switzerland for individuals and entities listed in the UN Sanctions Committee blacklist. The applicant, an Italian and Egyptian national living in Campione d'Italia, an Italian enclave surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano, was added to the list in November 2001 and was thus banned from traveling through Switzerland. He tried to have his name removed from the blacklist by appealing to both the relevant UN bodies and the national courts. His was eventually delisted in 2009, shortly after Switzerland informed the UN Sanctions Committee that domestic investigations against the applicant failed to produce evidence showing that he had ties with any of the sanctioned organizations or persons.



Relying on Article 8 of the European Convention, the applicant alleged that the travel ban imposed on him when his name was added to the UN Sanctions Committee's blacklist, which prevented him from entering or transiting through Switzerland, had breached his right to respect for his private, professional, and family life. Relying on Article 13, the applicant also claimed that there had been no effective remedy to examine his claims. Furthermore, the applicant argued that by preventing him from entering or transiting through Switzerland and by failing to review the lawfulness of the restrictions on his freedom of movement, the Swiss authorities had deprived him of his liberty, thus violating his Article 5 right of the Convention.

While the Court acknowledged that Security Council resolutions adopted under Chapter VII of the UN Charter impose obligations on states, it held that states are free to choose "a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII." According to the Court, "[w]ithout prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes on States an obligation of result, leaving them to choose the means by which they give effect to the resolutions." In the present case, the Court concluded that the Swiss government should have taken into account the applicant's circumstances thus "avoid[ing] interference with his private and family life." Thus, according to the Court, Switzerland "could not validly confine itself to relying on the binding nature of Security Council resolutions" to avoid its Convention obligations.

The Court turned down the invitation by Switzerland and several intervening governments to rule on "the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other." Instead, the Court emphasized that "the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent."

With respect to the allegation Article 5 violation, while the Court acknowledged that the travel restrictions lasted several years, the applicant was not prevented from freely living and moving within the territory of his voluntary residence, and thus there was no violation of Article 5.

The Court ordered Switzerland to pay the applicant € 30,000 in respect of costs and expenses.