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 103 of the UN Charter; second, the range of restrictions to the power of the Security Council. In its judgment the Federal Supreme Court dealt with both aspects. However, on the one hand the examination was incomplete; on the other hand it did not make a clear distinction between the two questions.

A2 The findings of the Federal Supreme Court were very much inspired by four judgments of the Court of First Instance of the European Communities: Yusuf and Al Barakaat International Foundation v Council and Commission, Judgment of first instance, Case No T-306/01; ECR 2005 II-3533, 21 September 2005, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, Judgment of first instance, Case No T-315/01; ECR 2005 II-3649, 21 September 2005; Hassan v Council and Commission, Judgment of first instance, Case No T-49/14; ECR 2006 II-52, 12 July 2006; and Chafiq Ayadi v Council, Judgment of first instance, Case No T-253/02; ECR 2006 II-2139, 12 July 2006. However, it is far from certain that the European Court of Justice (‘ECJ’) will support these judgments. In his opinion concerning Kadi of 16 January 2008, Advocate General Miguel Poiares Maduro suggested that the ECJ set aside the judgment of the court of first instance

A3 By declaring that the Security Council was only bound by ius cogens and that, by virtue of Article 103 of the UN Charter, obligations under the UN Charter, including binding Security Council resolutions, prevailed over all other rules of national and international law, the Federal Supreme Court imputed an enormous abundance of power to the Security Council which could hardly be justified. This result is even less appropriate as the role of the Security Council at present is not the same as it was when the UN Charter was drafted. The Security Council is no longer merely reacting to certain situations concerning mainly states or regions, but is evolving into a world legislator. This new role necessitates corresponding control mechanisms.

A4 Although the Federal Supreme Court clearly pointed out that the de-listing procedure at the UN-level was deficient from the point of view of human rights standards applicable in Switzerland, it rather uncritically followed the Court of First Instance and refrained from a clear and comprehensive argumentation. In respect of the two aspects mentioned above, two points need to be emphasized that disclose that another outcome would have been possible.

A5 First, any kind of primacy rule only needs to be applied when there is an irresolvable conflict between two rules. Such conflicts can often be avoided by interpreting one rule in the light of the other. In the present case, it was undisputed that the listing of persons or entities on the consolidated list needed to be followed at the national level: states are obligated to implement the Security Council resolution underlying the listing of suspected persons. However, when it comes to the protection of the rights and freedoms of the persons concerned after the implementation of the measures foreseen in the Security Council resolution, the situation is not the same. As under Article 24(2) of the UN Charter the Security Council shall act in accordance with the purposes and principles of the UN, it cannot lightly be assumed that the Security Council intended to create a legal situation leading to considerable deficiencies in respect of human rights protection—one of the purposes of the UN (Article 1(3) of the UN Charter). In any case, the Security Council did not expressly exclude the possibility of any kind of remedy for individuals affected in their fundamental rights and freedoms. Thus, as long as there is no judicial protection at the UN level, it is for states to implement the Security Council resolution in accordance with the relevant rules protecting the rights of persons affected.

Oxford Reports on International Law — ILDC 461 (CH 2007) — © Oxford University Press 2009. All rights reserved. 3 A6 Second, it is difficult to understand why the Federal Supreme Court contended that the Security Council was bound by the UN Charter, while at the same time declaring that the obligation to implement Security Council resolutions was only limited by ius cogens. The Security Council's function is to take measures in order to maintain or restore international peace. In doing so, the Security Council can adopt resolutions that are not in conformity with other rules of international law. Here, the restriction of ius cogens comes into play. However, this does not mean that the Security Council would be completely free in the adoption of resolutions except from the obligation to observe ius cogens. The Security Council is obliged to act in accordance with the purposes and principles of the UN. As the strengthening of respect for human rights and fundamental freedoms is one of the purposes of the UN, the Security Council—even taking measures under Chapter VII of the UN Charter—is under the obligation to restrict human rights only when, and insofar as, it is indispensable for the effectiveness of the measure taken to maintain or restore international peace. Thus, the Security Council is not restricted solely by ius cogens. The special importance of these rules rather lies in them not being limitable at all. Human rights rules not being part of ius cogens can—undoubtedly —be restricted if this is necessary for the maintaining or restoring international peace. In the present case this means that the right to be heard cannot be granted ex ante, prior to the listing of suspected persons or entities. However, after Nada had been listed in Annex 2 of the Ordinance and the proceedings had not brought any evidence against him, there was no more need to deny access to judicial control.

Date of Analysis: 30 June 2008

Analysis by: Markus Lanter

Other decisions cited in the full text of this decision:

Bosphorus v Ireland, App no 45036/98, Reports 2005-VI, 30 June 2005

Yusuf and Al Barakaat International Foundation v Council and Commission, Judgment of first instance, Case T-306/01; ECR 2005 II-3533, 21 September 2005

Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, Judgment of first instance, Case T-315/01; ECR 2005 II-3649, 21 September 2005

Hassan v Council and Commission, Judgment of first instance, Case T-49/14; ECR 2006 II-52, 12 July 2006

Chafiq Ayadi v Council, Judgment of first instance, Case T-253/02; ECR 2006 II-2139, 12 July 2006

Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1984, 392, 26 November 1984

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v UK, Provisional measures, ICJ Reports 1992, 3, 14 April 1992

L v Public Prosecutor's Office IV, Canton of Zurich, 1A 124/2001, 28 March 2002

Instruments cited in the full text of this decision:

Charter of the United Nations (26 June 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, entered into force 24 October 1945, Articles 1(3), 24(2), 25, 48(2), 103

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, Articles 6(1), 13, 15 (2)

International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force, entered into force 23 March 1976, Articles 2(3), 4(2), 14

Vienna Convention on the Law of Treaties (23 May 1969) 155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entered into force 27 January 1989, Articles 30(1), 53, 64, 71

Resolution 1267, UN Doc S/RES/1267, UN Security Council, 15 October 1999

Resolution 1333, UN Doc S/RES/1333, UN Security Council, 19 December 2000

Resolution 1373, UN Doc S/RES/1373, UN Security Council, 28 September 2001

Resolution 1452, UN Doc S/RES/1452, UN Security Council, 20 December 2002

Resolution 1735, UN Doc S/RES/1735, UN Security Council, 22 December 2006

Constitution, 1874 (Switzerland), Articles 29(a), 184(3), 190

Previous stages in these proceedings:

Decision; Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, (unreported), 18 January 2006

Decision; Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, (unreported), 15 June 2006