By Tobias Thienel
This morning, 11 years and one day after 9/11, the European Court of Human Rights has delivered its judgment in Nada v Switzerland. The case concerned targeted sanctions by the UN Security Council, which had (until they were revised) prevented the applicant from leaving the small Italian town of Campione d’Italia. This was because the Security Council sanctions required states to prevent the applicant from crossing their borders, and Campione d’Italia is an Italian exclave within Swiss territory. Because the applicant thus could not enter Switzerland, he could not travel to any other part of Italy, either.
The judgment was eagerly awaited by human rights lawyers, and by those concerned with more general international law, as well. This was largely because the case raised the thorny question of whether the UN sanctions enjoyed precedence over the ECHR under Article 103 of the UN Charter. The Court had avoided this issue in the earlier case of Al-Jedda v United Kingdom, preferring there to read down the UN resolutions and thus remove the conflict by means of a harmonising interpretation. This was convincing, but wasn’t necessarily going to help in Nada, because the obligation not to allow Mr Nada to travel internationally was much more precise than was the alleged duty to detain Mr Al-Jedda. In fact, the Court in Nada has now recognised as much (para 172).
The Court could have done one of several things (see Marko Milanovic’s post at EJIL:Talk):
– It could nevertheless have ‘read down’ the UN obligations even in Mr Nada’s case. This might have involved a judicial extension of the very limited exceptions allowed in the sanctions regime. But this would have been exceedingly difficult.
– It could also have ‘read down’ the ECHR. This it could have done either by denying that the case came within Swiss ‘jurisdiction’ for the purposes of Article, because the matter was determined by the UN. However, the Bosphorus case, another case on the application of UN sanctions by a state, would probably have precluded this. Or the Court could have found Articles 5 and 8 inapplicable on the facts of the case (for the purposes of Article 13, this would have required even denying an ‘arguable case’ under Article 8, which was problematic).
– If the conflict thus could have been avoided from neither the one side nor the other, the Court could have gone along with the Government and the Swiss Federal Court in holding that UN law took precedence over the ECHR. This was unlikely as a matter of judicial policy.
– Instead, the Court could have been minded to follow the ECJ case of Kadi and Al Barakaat International Foundation v Council and Commission. There, the ECJ had declined to give precedence to UN law over the law of the EC/EU (which the Court of First Instance before it had done). The ECJ recast the relationship between EC/EU law and international law on a strict dualist model, thus subordinating the UN Charter to the law of the European Treaties, including fundamental rights law. The ECtHR was unlikely to do this, because the European Convention can by no stretch of the imagination be assimilated to a domestic system, separated from other international law by a dualists’ wall.
– The Court could also have followed the lead of the German Solange I case. This had held (until overtaken by Solange II) that for as long as (the German word ‘solange’ means ‘as long as’) the then EEC did not have a satisfactory body of human rights law, the German Federal Constitutional Court would exercise its competence to review EEC acts under the human rights provisions of the German Basic Law. (Solange II then reversed this position, holding that the German court would not exercise its competence for as long as the EEC retained its body of fundamental rights – which the ECJ had in the meantime created.)
In the event, the European Court did not take any of these positions (except, in part, the first). It is noteworthy, however, that Judge Malinverni (still sitting for Switzerland in this case, but no longer on the Court) advocated a Solange I solution in his Concurring Opinion.