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Youssef Nada V State Secretariat for Economic Affairs and Federal Oxford Reports on International Law in Domestic Courts Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative appeal judgment, Case No 1A 45/2007; ILDC 461 (CH 2007); BGE 133 II 450 14 November 2007 Parties: Youssef Nada State Secretariat for Economic Affairs, Federal Department of Economic Affairs Foreign language case name: Nada gegen Seco, Staatssekretariat für Wirtschaft, sowie Eidgenössisches Volkswirtschaftsdepartment Date of Decision: 14 November 2007 Jurisdiction/Arbitral Institution/ Switzerland, Federal Supreme Court, First Public Law Chamber Court: Judges/Arbitrators: Michel Féraud (President of the court); Heinz Aemisegger; Arthur Aeschlimann; Bertrand Reeb; Jean Fonjallaz Procedural Stage: Administrative appeal judgment OUP Reference: ILDC 461 (CH 2007) Subject(s): Human rights – Relationship between international and domestic law – Sources, foundations and principles of international law – Universal international organizations and institutions Keyword(s): Due process – ECJ (European Court of Justice) – Human rights, civil and political rights – Human rights, right to a judge – Human rights, right to effective remedy – Human rights, right to fair trial – Human rights, right to liberty of movement – Human rights, right to property – International law and domestic law, conflicts between – International peace and security – Judicial review – Margin of appreciation – Peremptory norms / ius cogens – Terrorism – Terrorism, financing – UN (United Nations) – UN Security Council Core Issue(s) 1. Whether Switzerland was bound by UN Security Council resolutions and decisions of the UN Security Council's Al- Qaida and Taliban sanctions committee. Facts F1 On 15 October 1999, the UN Security Council adopted Resolution 1267, UN Doc S/RES/1267, UN Security Council, 15 October 1999, applying sanctions against the Taliban and establishing a committee (‘sanctions committee’) for the purpose of overseeing the implementation of sanctions on Taliban-controlled Afghanistan for its support of Osama bin Laden. The sanctions regime was modified by Resolution 1333, UN Doc S/RES 1333, UN Security Council, 19 December 2000 in order to ensure that the sanctions also covered individuals and entities associated with Osama bin Laden and Al-Qaida. All relevant resolutions were adopted under Chapter VII of the Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945 (‘UN Charter’). On behalf of the Security Council, the sanctions committee maintained a list of individuals and entities with respect to Al-Qaida, Osama bin Laden, and the Taliban, and other individuals, groups, undertakings, and entities associated with them (the consolidated list). F2 De-listing requests could be brought before the same sanctions committee by states or individuals through the focal point process established by Resolution 1730, UN Doc S/RES/1730, UN Security Council, 19 December 2006. The sanctions ommittee reached its decisions by a consensus of its 15 members, in accordance with its usual decision-making process as set out in the Guidelines of the sanctions committee for the conduct of its work, pursuant to Resolution 1267. Thus, the sanctions committee did not act as an independent judicial organ but as a political Oxford Reports on International Law — ILDC 461 (CH 2007) — © Oxford University Press 2009. All rights reserved. 1 body, and accordingly, individuals did not have a right to be heard. Individuals were therefore very much dependent on their state of residence or nationality to exercise diplomatic protection. F3 On 2 October 2000, the Swiss Federal Council enacted an ordinance on measures against persons and entities connected with Osama bin Laden, Al-Qaida, or the Taliban (Ordinance, Swiss Treaty Series 946.203, 2 October 2000 (Switzerland) (‘Ordinance’)). According to this Ordinance, all assets of individuals or entities listed in Annex 2 of the Ordinance were frozen. In addition, these individuals and entities were banned from entry into or journey through Switzerland. F4 On 9 November 2001, Youssef Mustapha Nada, an Italian citizen of Egyptian origin living in Campione, an Italian enclave in Switzerland, and various organizations connected with him, were included in the list issued by the sanctions committee. Accordingly, Annex 2 of the Ordinance was amended on 30 November 2001. F5 On 10 September 2002, Switzerland became a member state of the United Nations. F6 On 22 September 2005, Nada submitted a request to the Federal Council to remove his name and the names of the organizations connected with him from Annex 2 of the Ordinance. He contended that after criminal proceedings against him had been closed on 31 May 2005, there was no reason to uphold the sanctions against him. F7 On 18 January 2006, the State Secretariat for Economic Affairs (‘SECO’) dismissed his request, declaring that Switzerland was not entitled to remove names from Annex 2 of the Ordinance so long as those names were included in the consolidated list issued by the sanctions committee. F8 Nada lodged an administrative appeal against this decision, which was dismissed by the Federal Department of Economic Affairs (‘FDEA’) on 15 June 2006. The FDEA maintained that, for the purpose of striking a name from Annex 2 of the Ordinance, it was necessary to be de-listed by the sanctions committee. F9 On 6 July 2006, Nada lodged an appeal against this decision with the Federal Council. After an exchange of views with the Federal Supreme Court, the Federal Council referred the case to it. As the applicant was clearly affected in his civil rights, under Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953 (‘European Convention on Human Rights’, ‘ECHR’). Switzerland was obliged to grant judicial review by an independent tribunal. Thus, as Article 6(1) of the ECHR was applicable in the present case, the Federal Supreme Court disregarded Article 100(1)(a) of the Federal Statute on the Organisation of Justice (Switzerland) which declared that acts concerning internal or external state security could not be challenged before the Federal Supreme Court. Held H1 Where civil claims under Article 6(1) of the ECHR were concerned, national rules excluding certain matters from judicial control by a court could not be applied. (paragraph 2(2)) H2 Decisions of the UN Security Council were binding for the UN member states in accordance with Article 25 of the UN Charter. For decisions taken under Chapter VII of the UN Charter, this principle was stressed by Article 48(2) of the UN Charter. (paragraph 5) Additionally, according to Article 103 of the UN Charter obligations of the UN members under the UN Charter prevailed over their obligations under any other international agreement. (paragraph 5(1)) H3 The Security Council itself was bound by the UN Charter and had to act in accordance with the purposes and principles of the UN (Article 24(2) of the UN Charter). These purposes included respect for human rights and fundamental freedoms (Article 1(3) of the UN Charter), but member states were not entitled to evade their obligations under the UN charter by declaring that a Security Council resolution was not in conformity with the UN Charter. (paragraph 5(3)) H4 The obligation to apply Security Council resolutions was only limited by ius cogens; being compulsory for all subjects of international law. (paragraph 7) H5 The fundamental rights and procedural guarantees invoked by Nada were in principle not part of the internationally recognized ius cogens. (paragraph 7(3)) Especially in the context of Security Council resolutions adopted under Chapter VII of the UN Charter, there was no consensus as to the recognition of internationally coercive procedural guarantees. (paragraph 7(4)) H6 Traditionally, Security Council resolutions were adopted without the possibility for affected individuals to be heard. The introduction of a de-listing procedure and the improvements adopted in 2006 (by Resolution 1730 and Resolution Oxford Reports on International Law — ILDC 461 (CH 2007) — © Oxford University Press 2009. All rights reserved. 2 1735, UN Doc S/RES/1735, UN Security Council, 22 December 2006 had led to considerable progress. Even if the system was still affected with grave deficiencies, it did not contradict international ius cogens. (paragraph 7(4)) H7 The de-listing procedure was not in conformity with the standards of judicial control granted by Article 29(a) of the Constitution, 1874 (Switzerland), Article 6(1) of the ECHR, and Article 14(1) of the International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 (‘ICCPR’). However, the Federal Supreme Court was not in the position to correct this situation. That task had to be carried out on the international level within the United Nations by introducing an effective control mechanism. (paragraph 8(3)) Date of Report: 30 June 2008 Reporter(s): Markus Lanter Analysis A1 This judgment highlighted the tension between, on one hand, the need for a collective implementation of Security Council resolutions and, on the other hand, individual human rights protection, which was deeply rooted in countless national constitutions and in universal and regional multilateral treaties. Two aspects were of fundamental importance in this context: first, the scope of the primacy rule of Article
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