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Youssef Nada v State Secretariat for Economic Affairs and Federal Department of Economic Affairs, Administrative Appeal Judgment, Case No. 1A 45/2007, Switzerland, Federal Tribunal,14 November 2007, 133 BGE II 450; ILDC 461 (CH2007)

Antonios Tzanakopoulos[1]

Relevance of the case

The Nada case before the Swiss Federal Tribunal is one of the first cases to challenge Security Council sanctions under Chapter VII before a domestic court. Its significance lies in the fact that the Swiss Federal Tribunal, instead of refusing jurisdiction to review, essentially if only indirectly, a Security Council decision, proceeded to deal with the issue head-on, putting forward an argument regarding the proper law and standard of review against which Security Council decisions could be controlled by domestic courts. In doing that, it was also the first court to adopt the European Union’s (then) Court of First Instance reasoning in Kadi I.1 The decision of the Swiss Federal Court led to a challenge by Nada before the European Court of Human Rights, which was decided by the Grand Chamber at the end of 2012.

I. Facts of the case

A. The sanctions regime

The 1267 sanctions regime was established by the Security Council by means of Resolution 1267 (1999), a resolution adopted under Chapter VII of the UN Charter, and in particular art. 41.2 When the Security Council determines that there exists a threat to the peace, under art. 39 of the Charter, it has the power under art. 41 to take measures not involving the use of armed force in order to maintain or restore international peace and security. The sanctions regime in this case originally targeted the Taliban regime in Afghanistan and its prominent members, but after the collapse of the regime following the military intervention in the aftermath of the 11 September 2001 attacks on the US it was extended to cover also Osama bin Laden and persons and institutions associated with Al-Qaida.3 Various other Security

Council resolutions maintained the regime in force, while updating it and occasionally refining it.[2]

Under the 1267 regime, member states of the UN are directed to impose asset freezes, travel bans, and arms embargoes on individuals and legal entities associated with the Taliban, Osama bin Laden, and Al-Qaida. The persons to be targeted, whether natural or legal, are identified by a UN Security Council ‘Sanctions Committee’ established under the 1267 regime (the ‘1267 Sanctions Committee’) and included in a relevant ‘Consolidated List’. The imposition of the sanctions on the persons identified by the Sanctions Committee is an obligation of member states under the UN Charter in accordance with art. 25.[3] It is thus an obligation that enjoys the ‘primacy’ vested on obligations arising from the UN Charter by virtue of art. 103.[4]

Member states implement art. 41 sanctions imposed by the Security Council in accordance with their domestic law.[5] For example, the United Kingdom has adopted the UN Act 1946, which allows the Government to pass administrative acts (Orders in Council) in order to implement the Resolution. In Switzerland, the Federal Council (the Executive) adopted a relevant regulation (‘Verordnung’) to implement the sanctions, to which it annexed a list that would reflect the UN Sanctions Committee’s Consolidated List and would be updated accordingly.

B. Nada’s case

In the case at hand, Youssef Nada was identified by the Sanctions Committee as a person to be targeted and his name was included in the Consolidated List on 9 November 2001.[6] Switzerland implemented this on 30 November by including Nada’s name in the annex to the relevant regulation and thus subjecting him (and certain legal persons associated with him) to an asset freeze and travel ban.

Nada responded by challenging his listing in the annex to the Swiss regulation before the competent administrative authorities, relying on the fact that the criminal process commenced against him in Switzerland had been closed in 2005, as accusations were found to be baseless. The State Secretariat for Economic Affairs (SECO) denied his challenge in early 2006, arguing that Switzerland had no authority to remove a name from the annex to the regulation as long as this name appeared on the Security Council’s Consolidated List.

Nada brought an administrative appeal against SECO’s refusal to remove him from the Swiss list before the Federal Department of Economic Affairs, but this was again unsuccessful. The Federal Ministry responded that Nada could only be removed following removal from the UN list, and that a special delisting procedure existed to that effect on the UN level. However, that procedure could only be pursued on behalf of the person listed by the state of their nationality or residence, of which Switzerland was neither. Nada was indeed not a Swiss national, and was resident in Campione d’ltalia, an Italian enclave surrounded by Swiss territory in the canton of Ticino. This however made his travelling from the tiny enclave through Switzerland to Italy impossible due to the travel ban.

The case finally reached the Swiss Federal Tribunal, the supreme judicial instance of Switzerland. In the meantime, Resolution 1730 (2006) had created a ‘Focal Point’ where listed individuals could bring delisting requests without going through their State of nationality or residence. Nada had submitted a request but had heard nothing in response by the time the question fell to be decided by the Federal Tribunal. Before the Federal Tribunal, Nada argued that the Swiss regulation went beyond what was required by the 1267 sanctions regime. By imposing a travel ban on him, Swiss authorities prevented him from leaving the tiny Italian enclave to travel to Italy in order to get medical attention for various ailments and in order to tend to administrative and legal matters. To that extent, the Swiss regulation should be annulled, as it effectively had put him under house arrest for almost six years (by 2007).

II. The legal questions

The crucial legal questions before the Swiss Federal Tribunal were numerous. The first issue was whether the Tribunal could review a domestic measure implementing Security Council sanctions, when this would in effect mean that the Tribunal would also be indirectly reviewing decisions of the Security Council, over which it does not have jurisdiction. A second question was against what law the Tribunal would review the domestic decision, and thus also (indirectly) the decision of the Security Council. The overarching issue in the case was to what extent the Security Council can set aside international obligations for the protection of human rights binding on Switzerland in order to sanction individuals in the exercise of its primary responsibility for the maintenance of international peace and security.[7]

III. Excerpts

2.1 ... Through [his] inclusion in Annex 2 of the Taliban Regulation, the claimant is subjected to the sanctions provided for in [that] Regulation and is thus directly and specifically affected in his enjoyment of fundamental rights. For this reason, he must be allowed to seek to legally protect these rights [before a court] ...[8]

2.2 Administrative court complaints are however barred against decisions [administrative acts] whose subject-matter is that of internal or external security of the State ... as well as other matters of foreign affairs. The decision of the [Federal Ministry to refuse Nada’s request for the removal of his name from the administrative act freezing assets] refers to measures for the implementation of international sanctions and belongs thus to those decisions dealing with matters of foreign affairs for which the Federal Council [the Executive] has in principle [exclusive] competence. However, the exceptions [from judicial scrutiny described above ...] do not apply when the complaint refers to rights which must be granted judicial protection in accordance with Article 6(1) of the European Convention of Human Rights (ECHR) ... The inclusion of the claimant and his organisation in Annex 2 of the Taliban Regulation results in all his [assets] in Switzerland being frozen. On account of this, and on account also of the prohibition of making any payments to him or to his organisation, it is impossible for the claimant to conduct any business in Switzerland. Thus, the Taliban Regulation directly interferes with economic and business rights of the claimant. These are not precautionary measures taken to secure [the implementation] of a decision, against which judicial protection would be possible, but rather measures that have been adopted independently [of such a decision]. These independent measures have been in force now for 5 years already and there is no end in sight .

[After the Federal Tribunal established thus its jurisdiction to hear the complaint, it considered Nada’s allegation that the adoption of the measures against him was an autonomous act of Switzerland, which was not bound by Security Council decisions in 2000-2001, that is before it had become a UN Member State. However, that position had changed by the time the Federal Tribunal came to hear the complaint.]

  • 5. In accordance with Article 25 of the UN Charter ... Member States have assumed the obligation to accept and carry out the decisions of the Security Council in accordance with the present Charter. Decisions of the Security Council are thus binding for Member States (to the extent that they do not take the form of non-binding recommendations). For decisions of the Security Council taken under Articles 41 or 42 for the maintenance or restoration of international peace and security, this also emerges from Article 48(2) of the Charter.
  • 5.1 The obligations of the Member States under the Charter take precedence not only over their domestic law, but also, in accordance with Article 103 of the Charter, over obligations under other international treaties. In accordance with the jurisprudence of the ICJ, this precedence applies to all bilateral, regional, and multilateral treaties ... and indeed irrespective of whether these were adopted before or after the [adoption of the] Charter ...
  • 5.2 This precedence is enjoyed not only by obligations contained in the Charter, but also by obligations which arise for the Member States under a binding Resolution of the Security Council. [...]
  • 5.3 Even the Security Council is bound by the Charter and must thus act in accordance with the purposes and principles [of the United Nations] (Article 24(2) UN Charter), which include respect for human rights and fundamental freedoms (Article 1(3) UN Charter). However, Member States are in principle not competent to disobey an obligation with the justification that a (formally lawful) Resolution of the Security Council is materially not in accordance with the Charter. [.] This applies namely to

Resolutions which the Security Council adopts under Chapter VII of the Charter for the maintenance or restoration of international peace and security. [...]

  • 5.4 [The Federal Tribunal then discusses the decisions of the European Court of First Instance (CFI) (as it then was) in Yusuf and Kadi, as well as Ayadi and Hassan and concludes:] The CFI assumed that the only limit to the binding force of Security Council Resolutions is posed by jus cogens, that is by peremptory fundamental norms that apply to all subjects of international law, including the organs of the United Nations, and from which no derogation is permitted. The CFI then reviewed the sanctions Resolutions against this benchmark and reached the conclusion that these had not violated jus cogens. [...] ...
  • 5.5 In accordance with the jurisprudence of the European Court of Human Rights (ECtHR), Member States are responsible for the implementation of obligations imposed on them through international organisations, to the extent that they retain some measure of discretion [margin of appreciation] [in their implementation]. When this is not the case, the ECtHR will only review whether the relevant organisation provides for equivalent protection of rights to that of the ECHR, and whether the protection of Convention rights was manifestly deficient in the case at hand. [The Federal Tribunal refers here to the Bosphorus decision of the ECtHR]. The ECtHR has however not decided whether this also applies to obligations stemming from binding Resolutions of the Security Council under Chapter VII of the Charter .

[In paras 6. and 6.1 the Federal Tribunal establishes that international law, which includes binding decisions of the Security Council, is binding on all Swiss organs].

  • 6.2 Article 190 of the Constitution, however, does not include a rule regarding potential conflicts between different norms of international law that are both binding on Switzerland, such as, in the case at hand, sanctions Resolutions of the Security Council on the one hand and guarantees of the ECHR and of the International Covenant on Civil and Political Rights (ICCPR) on the other. If the conflict cannot be removed through interpretation, it will be the hierarchy of norms under international law that will apply. In accordance with that [hierarchy], obligations under the UN Charter take precedence. [...] The global uniform application of UN sanctions would be imperiled if the courts of each Member State could refuse the implementation of sanctions against certain individuals or legal entities on account of potential violations of fundamental rights under the ECHR or the ICCPR—which overlap to a large extent with fundamental rights protected by national constitutions.
  • 7. However, the obligation to implement Security Council Resolutions is limited by jus cogens, as peremptory law that is binding on all subjects of international law. It must thus be considered whether the sanctions decisions violate jus cogens, as the claimant alleges.
  • 7.1 Norms of jus cogens, or peremptory norms of international law, are these norms of international law from which no derogation is permitted, even when there is mutual agreement [between states]. International treaties that conflict with these norms are thus void (cf. Articles 53, 64, and 71 of the Vienna Convention on the Law of Treaties). Accordingly, States could not have dispensed with compliance with such norms even in the UN Charter. [...] Indicators of the absolute character of a norm are provisions in treaties that characterise certain rights and obligations as indispensable, for example by disallowing any contrary agreements on the part of the parties, by prohibiting the invocation of necessity as a justification for their suspension, or by excluding the possibility of making reservations to them. [...]
  • 7.2 The CFI did not find, in the aforementioned cases, any violation of jus cogens. For one, it found that the fundamental rights invoked by the claimants (right to property, rights of defence, right to effective judicial protection) were not absolute, and particularly not when it came to decisions of the Security Council under Chapter VII of the Charter. For another, the Court pointed out that the relevant measures were of a limited duration, whose continuation in force is reviewed by the Security Council every 12-18 months, for which humanitarian exemptions are provided in cases of hardship, and for which there exists a formal process for the review of individual cases through the Sanctions Committee. [...]
  • 7.3 [The Federal Tribunal] must agree with this assessment. In general, basic human rights such as the right to life, the protection from torture and inhuman or degrading treatment, the freedom from slavery and trafficking, the prohibition of collective punishment, the principle of individual criminal responsibility, as well as the rule of non-refoulement are considered norms of jus cogens. [...] Further, the protection from arbitrary detention and certain related procedural rights are also considered norms of jus cogens. [...] However, other human rights do not constitute peremptory norms of international law, even if they are of particular preeminence for Switzerland. [...] This is particularly the case for the fundamental rights to property and to economic freedom, which have been invoked by the claimant. [...] But even the invoked procedural guarantees (the right to a fair trial under Article 6(1) ECHR and Article 14(1) ICCPR; the right to an effective remedy under Article 13 ECHR and Article 2(3) ICCPR) do not belong to the non-derogable core of international human rights conventions (cf. Article 15(2) ECHR and Article 4(2) ICCPR) and thus in principle also not to the norms of jus cogens. [...]
  • 7.4 Namely, in the area of sanctions imposed by the Security Council under Chapter VII of the Charter, there appears to be no consensus on the part of States to recognize internationally peremptory procedural guarantees for the protection of individuals. These sanctions provide for far-reaching economic limitations for the targets; however, the necessary means for basic maintenance are subject to exemptions (cf. Resolution 1452 (2002), para 1(a)), which means that there is no danger to life or health or a violation of the prohibition of inhuman or degrading treatment. The travel ban limits the freedom of movement of targeted individuals but does not in principle constitute a deprivation of their liberty: targeted individuals may still move freely within their State of residence [...]; and travelling to the State of nationality is also expressly permitted (cf. Resolution 1735 (2006) para 1(b)). Traditionally, sanctions are imposed by the Security Council without granting an individual [target] the opportunity to be heard whether in advance or after the imposition, or to challenge the imposition before an international or national court. The introduction of the delisting-procedure and the adoption in 2006 of [relevant] improvements ([description of improvements including direct requests for delisting, description of criteria for listing and delisting, notification of the targeted individual etc.]) constitute essential progress compared to the earlier situation. Even if this system falls significantly short of the requirements from the perspective of fundamental rights protection [...], there is still no violation of jus cogens.

[In section 8 of the decision, the Federal Tribunal examines to what extent Switzerland, bound as it is by the decisions of the Security Council, has any room for manoeuver/margin of discretion in their implementation. It finds that the Council has imposed strict obligations on member states through Resolution 1267 (1999) in that it has described the sanctions in detail and has identified the individuals and entities to be subjected to the regime, thus leaving no margin of discretion in the implementation of the decision. In conjunction with the provision of a special delisting-procedure, it is forbidden for member states to independently decide not to apply the sanctions against a designated individual; contrary conduct would constitute a violation of the Charter. The Federal Tribunal then concedes that the procedure falls short of the requirements of the right to a fair trial and to an effective remedy under both ECHR and ICCPR, but maintains that this can only be remedied by the introduction of a control mechanism at UN level, which the Federal Council and the Swiss Permanent Mission to the UN are trying to achieve. Section 9 of the decision then establishes the obligations of Switzerland to actively support the claimant in his attempt to achieve delisting by the Security Council. Section 10 determines that Switzerland has not gone beyond what the Council requires with respect to the imposition of the travel ban and thus has no independent margin of discretion in this regard as well. In section 11 the Federal Tribunal rejects the complaint.]

IV. Commentary

A. The decision

Though somewhat complicated in its structure, the Swiss Federal Tribunal’s decision has a clear and logical red thread running through it, and raises many of the problems that would plague courts and tribunals as well as scholars dealing with UN targeted sanctions in years to come. The first, though implicit, point raised by the Tribunal is that of attribution of conduct and indirect review of Security Council decisions ((i) below); the Tribunal however also picks up, necessarily, on the question of conflict of norms and normative hierarchy in international law ((ii) below), as well as the question of the ‘equivalent protection’ doctrine of the European Court of Human Rights ((iii) below).

(i) Attribution of conduct and indirect review

The first question with which the Tribunal must grapple is that of its jurisdiction to review the impugned act. The act being challenged in the instance is a domestic act. However, it is a domestic act implementing a ‘strict’ international obligation, that means an obligation of result which leaves no room for manoeuver (margin of discretion in its implementation) to the implementing state. As such, the Tribunal understands that by reviewing the domestic implementing act, it will be indirectly reviewing the international act which constitutes the domestic act’s basis and which defines its content. This has a twofold implication for international law. The first is the recognition that the domestic act is attributable to the state, because it is an act of one of its organs, and it can thus be reviewed by a domestic court. But at the same time, the

Tribunal recognizes that the state is not free in promulgating this act: it is controlled by the international obligation imposed by the Security Council. The Tribunal thus needs to deal with this lack of autonomy on the part of the acting state, a problem that many courts have found difficult to deal with. This is evident in the case law of the European Court of Human Rights in the cases of Behrami and Al-Jedda,n as well as in the various Kadi decisions in the Courts of the European Union,[9] [10] [11] and the Ahmed decision of the UK Supreme Court/3

In general public international law terms, the courts (including the Federal Tribunal) could relatively easily side step the issue (as some of them have done) by focusing on the fact that the act is an act of a state organ and thus automatically attributable to the state. Whether it may also be attributable to another subject of international law, such as the UN, need not be discussed, especially in view of the fact that the court’s ratione personae jurisdiction would not extend to that entity anyway. Further, parallel attribution to the UN need not necessarily preclude attribution of an act of a state organ to the state.

However, courts have felt uneasy in focusing solely on this simple attribution link and proceeding with review ‘as usual’. The fact that the state is normatively controlled^ in its conduct leads the court to be reticent to review the domestic act against domestic law. On the other hand then, the Federal Tribunal agrees to review the domestic act, but only against law that would regulate both the domestic act and the international act which ‘conditions’ the domestic act. This leads the Federal Tribunal to questions of conflict of norms and normative hierarchy in international law.

(ii) Conflict of norms and normative hierarchy

The Federal Tribunal needs to deal with international obligations binding on two different subjects of international law, namely Switzerland on the one hand and the United Nations (of which the Security Council is an organ) on the other. Starting with Switzerland, the Federal Tribunal notices that it is faced with an apparent conflict of obligations incumbent on Switzerland (see para. 6.2): on the one hand, Switzerland is bound to comply with binding Security Council decisions under art. 25 of the UN Charter (which also take precedence over other obligations of Switzerland under international treaties, in accordance with art. 103 UN Charter). On the other hand, Switzerland is also bound to protect fundamental human rights under the ECHR and the ICCPR. In order to avoid the inevitable resolution of the conflict by granting precedence to the obligation to comply with Security Council decisions in accordance with art. 103 UN Charter, the Federal Tribunal shifts the focus to the other subject of international law at play, the Security Council (by which of course it means the UN, of which the Council is an organ) (see all of section 7): whatever the situation regarding Switzerland’s obligations, even the Security Council is limited by norms of jus cogens. As such, jus cogens being binding on both Switzerland and the Security Council, and jus cogens constituting peremptory (supreme) law, the Federal Tribunal feels safe in reviewing the domestic act (and indirectly the international act) against the norms of jus cogens.

This approach of the Federal Tribunal is internally consistent, and also respects in principle the rules regarding conflict of norms and normative hierarchy in international law, even though parts of the reasoning could be criticized. The most serious problem in the Federal Tribunal’s decision however is its identification of norms of jus cogens. Despite its apparent agreement with the CFI in the first Kadi (and related) case(s) (whose identification of jus cogens can and has also been criticized), the Federal Tribunal proceeds to find that such fundamental rights as the right to a fair trial or the right to an effective remedy are not jus cogens simply because they can be derogated from in times of emergency and are otherwise not absolute. Irrespective of whether the relevant rights, or some part of them, can be characterized as jus cogens, deroga- bility and the lack of absolute character are not enough to deny a particular norm the character of jus cogens. Even derogable rights retain a non-derogable core, and this core could be jus cogens—if the international community of states has recognized the norm (or the core of the right) as one from which no derogation is permitted.15 Where the CFI had been overly generous in characterizing fundamental rights as jus cogens, the Federal Tribunal revealed itself to be overly restrictive.

The reason for this could be the uneasiness that both courts felt in reviewing domestic (but also indirectly Security Council) acts against the vague category of norms that can considered jus cogens. Both the CFI and the Federal Tribunal accepted that they could undertake such review in principle, but when the time came to undertake it, they were reticent to find the Security Council as having violated jus cogens. This would be a particularly bold step, and one taken on very shaky ground to boot, given the inherent uncertainty regarding the identification and content of norms of jus cogens. Both courts avoided it, the CFI by undertaking a particularly low intensity review against the many norms of jus cogens it identified, and the Federal Tribunal by limiting the norms of jus cogens it identified to the core of the right to life and of the prohibition of torture and inhuman or degrading treatment or punishment.

(iii) The equivalent protection doctrine

Another interesting point that the Federal Tribunal picks up on is the equivalent protection doctrine elaborated by the European Court of Human Rights in Bosphorus [12]

and other cases.[13] [14] [15] The equivalent protection doctrine is the ECtHR’s way of dealing with the problem of attribution and normative control identified under (i) above. The ECtHR generally finds that acts of state organs are attributable to the state and thus subject to the obligations of the ECHR and controllable by the ECtHR. However, when such acts are strictly conditioned by way of an international obligation imposed by an international organization, the ECtHR understands that by holding the state responsible for a violation of the ECHR, it would also be indirectly holding the international organization to the standards of the ECHR, of which of course the organization is not a party (even though the organization may still be bound by norms of similar if not identical content under customary international law).

To avoid this, the ECtHR has elaborated a doctrine of ‘equivalent protection’. According to this doctrine, which is much reminiscent of the Solange doctrine elaborated by the German Federal Constitutional Court in a number of cases (in particular Solange II) discussing the relationship of the German domestic legal order with the legal order of the European Union/7 the ECtHR will presume that an act of a state in implementation of an obligation stemming from its membership of an international organization is in compliance with the ECHR, as long as the international organization provides human rights protection at least equivalent to that provided by the ECHR. As such, once it is established that the international organization offers equivalent protection of fundamental rights in general, the ECtHR will forgo control of the domestic implementing act of the state, unless the protection offered by the organization has been manifestly deficient in the instance at hand.

The Federal Tribunal notes this in connection with its discussion of the conflict of obligations faced by Switzerland under the ECHR and the UN Charter. It notes further, however, that while the ECtHR has established, through its case law, that certain organizations (such as the EU) do offer equivalent protection, it has not done so for the United Nations. It does not pursue the point further at this point (para. 5.5), but further below it explicitly recognizes that the UN procedure for listing and delisting of individual targets of sanctions falls far short of both ECHR and ICCPR requirements of procedural fairness. It thus concedes the lack of equivalent protection, and foreshadows a relevant analysis of the ECtHR.

B. The aftermath

The case of Nada inevitably reached the European Court of Human Rights, as was to be expected. In its decision/8 the Grand Chamber of the ECtHR avoided the ‘equivalent protection’ analysis that many commentators had expected—and that the Swiss Federal Tribunal had indeed foreshadowed. Instead, the ECtHR ‘invented’ a margin of discretion in the implementation of the Security Council decision which Switzerland had not used to its full extent in order to safeguard Nada’s rights under the ECHR, and thus found Switzerland in breach of the relevant obligations. This was a somewhat surprising decision, given that Switzerland had very little—if indeed any at all—such room for manoeuver, as the Federal Tribunal so clearly establishes in its own decision in Nada.

And yet, the wish of the ECtHR to avoid such an ‘equivalent protection’ analysis seems understandable, if not necessarily justifiable. It is clear that, at least at the time of the alleged violations, the UN offered nothing like equivalent protection of ECHR rights. This is confirmed by the fact that when the ECtHR (though not the Grand Chamber) did query whether the UN offered ‘equivalent protection’ to that of the ECHR in connection with the Iraqi sanctions regime (whose procedures for listing and delisting are currently the same as they were for Nada and the 1267 regime at the time of the alleged violations) in Al-Dulimi, it found that it clearly did not.[16] This latter case is now before the Grand Chamber, which, it is hoped, will offer some harmonization of the case law. It would then be interesting to see how the Grand Chamber will deal with the question of art. 103 UN Charter, which the Second Chamber clearly avoided in Al-Dulimi. Namely, if the UN offers no equivalent protection, and the state implementing the sanctions is to be held to the standards of the ECHR, how is that squared with the fact that the state must indeed give precedence to the UN obligation under arts 25 and 103 UN Charter?

  • [1] Many thanks are due to Eleni Methymaki for truly helpful comments and excellent research assistance. All errors remain, of course, my own. 1 On this case see further ch. 4.5 in this collection. 2 1945 UN Charter, 1 UNTS XIV, art. 41 provides: ‘The Security Council may decide what measuresnot involving the use of armed force are to be employed to give effect to its decisions, and it may call uponthe Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’ 3 The regime was split up in 2011, with two separate regimes being established for the Taliban and Al-Qaida respectively. See: uNsC Res 1988, UN Doc S/RES/1988 (17 June 2011); UNSC Res 1989, UN DocS/RES/1989 (17 June 2011).
  • [2] The most pertinent among them being UNSC Res 1333, UN Doc S/RES/1333 (19 December 2000);UNSC Res 1730, UN Doc S/RES/1730 (19 December 2006); UNSC Res 1904, UN Doc S/RES/1904 (17December 2009); S/RES/1988 (2011) and S/RES/1989 (2011) splitting the regime up (n. 3).
  • [3] Article 25 UN Charter provides: ‘The Members of the United Nations agree to accept and carry outthe decisions of the Security Council in accordance with the present Charter.’
  • [4] Article 103 UN Charter provides: ‘In the event of a conflict between the obligations of the Membersof the United Nations under the present Charter and their obligations under any other internationalagreement, their obligations under the present Charter shall prevail.’
  • [5] See generally V. Gowlland-Debbas (ed.), National Implementation of United Nations Sanctions:A Comparative Study (The Hague, Martinus Nijhoff 2004).
  • [6] This section relies largely on the ‘Regeste’ section of the Federal Tribunal’s decision and on the ‘Facts’section of the decision of the European Court of Human Rights Grand Chamber, to which Nada eventually complained: Nada v Switzerland, App No 10593/08, (Grand Chamber 12 September 2012), availableat http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113121.
  • [7] See art. 24(1) UN Charter.
  • [8] These excerpts have been translated from the German text of the decision by the author. This is notan official translation of the decision. Most references of the Court have been omitted, which is signifiedby ellipses in square brackets [...].
  • [9] ECtHR: Behrami and Behrami v France and Saramati vFrance, Germany and Norway, App No 71412/01and 78166/01, Admissibility (Grand Chamber 2 May 2007), paras 128-44; Al-Jedda v UK, App No 27021/08(Grand Chamber 7 July 2011), paras 76-86.
  • [10] Case T-315/01, Yassin Abdullah Kadi v Council of the European Union and Commission of theEuropean Communities, [2005] ECR II-3649; Joined Cases C-402/05 and C-415/05 P, Yassin AbdullahKadi and Al Barakaat International Foundation v Council of the European Union and the Commissionof the European Communities, [2008] ECR I-6351; Case T-85/09, Yassin Abdullah Kadi v EuropeanCommission, [2010] ECR II-5177; Joined Cases of C-584/10 P, C-593/10 P and C-595/10 P, EuropeanCommission and Others v Yassin Abdullah Kadi [2013] ECR-0000. See further ch. 4.5 in this collection.
  • [11] Her Majesty’s Treasury (Respondent) v Mohammed Jabar Ahmed and Others (FC) (Appellants) [2010]UKSC 2. 14 On the issue of normative control over state conduct, see generally Antonios Tzanakopoulos,Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (Oxford, OxfordUniversity Press 2011) pp. 40-5.
  • [12] See art. 53, 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.
  • [13] ECtHR: Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, App No 45036/98(Grand Chamber 30 June 2005), paras 152-6; cf on immunity of international organizations Waite andKennedy v Germany, App No 26083/94 (Grand Chamber 18 February 1999), paras 67-73.
  • [14] Solange I [1974] 37 BVerfGE 271; Solange II [1986] 73 BVerfGE 339. See further ch. 4.2 in thiscollection.
  • [15] ECtHR: Nada v Switzerland, App No 10593/08 (Grand Chamber 12 September 2012).
  • [16] ECtHR: Al-Dulimi AND Montana Management Inc. v Switzerland, App No 5809/08 (26 September2013), paras 117-21.
 
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