According to Theinal268, fundamentally, the Court considered that Switzerland had violated the applicant’s rights under Article 8 (respect for private and family life and for the home) by failing to take measures in the applicant’s favour within the constraints of the sanction’s regime or ancillary to the sanctions regime. Thus, Switzerland ought to have alerted Italy (as the applicant’s state of nationality) and, via Italy, the Security Council’s Sanctions Committee, to the fact that there was no reasonable suspicion against the applicant. Switzerland was also required ‘to adapt the sanctions regime to the applicant’s individual situation’ (para 196 of Nada) and to mitigate the effects of the sanctions on the applicant. This it had not done to any sufficient extent.
Having found a violation on this approach, the Court left undecided whether Switzerland was also obliged flatly to disobey the Security Council. It specifically left open whether the UN Charter did or did not trump the Convention. This general question under Article 103 of the Charter remains unanswered. The Court avoided the issue by concentrating on violations committed just outside the sanctions regime.
Regarding the right to an effective remedy (Article 13 ECHR), the problem was that the Swiss Federal Court had declined to strike down any of the UN sanctions as contrary to Swiss human rights law. In this regard, the Court followed Kadi in holding that UN law did not prevent judicial review of the domestic implementation of sanctions. In effect, it appears that the European Court has not taken a Kadi approach in itself, but has mandated domestic courts to take it in domestic law. If so, this is quite interesting. The Court appears to have overcome its own international limitations by putting itself in the shoes of a domestic judge, through a review of that judge’s jurisdiction under Article 13. As always only time will tell what the future implications on human rights law will be and their implication for UN targeted sanctions.
268
Tobias Theinal, The Netherlands School of Human rights Research, Invisible College Blog, article on Nada V Switzerland, September 12 2012, at: http://invisiblecollege.weblog.leidenuniv.nl/2012/09/12/nada-v- switzerland-the-ecthr-does-not-pu/, accessed 18 March 2013.
7 Concluding remarks on European regional courts
According to De Burca269 the different approaches taken by the various European judicial courts to the question of UN Security Council accountability exhibit a fascinating range of responses to the question of the authority of international law within Europe’s regional legal order. Ultimately and perhaps surprisingly, it was the ECtHR that initially displayed the greatest deference to the UN Security Council and an unwillingness to question Security Council measures by reference to European human rights norms. The ECJ has since adopted a strongly pluralist approach, treating the UN system and the EU system as separate and parallel regimes, without any privileged status being accorded to UN Charter obligations or UN Security Council measures within EC law. De Burca argues it would have been better to adopted a soft-constitutionalist approach which would seek to mediate the relationship between the norms of the different legal systems, and which would have perhaps involved the ECJ more in the process of shaping customary international law, however from a rights based approach, the ECJ has shown that the UN cannot simply act in a manner not in keeping with its own principles. The recent decision from the ECtHR in Al Jedda and the potential outcome in Nada has shown that there is a growing consensus in Europe’s regional courts, at least, that protection of fundamental rights should be given more prominence in trying to balance both them and peace and security. The lack of an effective judicial procedure at the UN level only compounds this growing sentiment and is at the very heart of this thesis.
8 Other jurisdictions – the Canadian case of Abdelrazik
Mr Abdelrazik is a dual Canadian-Sudanese citizen who came to Canada as a refugee. Abdelrazik knew Ahmed Ressam, the so-called "Millenium Bomber," who was convicted in the US for plotting to blow up the Los Angeles Airport270. Abdelrazik was not implicated in the plot and voluntarily testified against Ressam.
269
Grainne de Burca “The European Court of Justice and the International Legal Order After Kadi”, Harvard Law Journal Volume 51, No 1, winter 2010.
270
United States v. Ressam, 474 F.3d 597 (9th Cir. 2007) Ressam was convicted of (1) conspiring to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. 2332b(a)(1)(B); (2) conspiring to place an explosive in proximity to a terminal, in violation of 18 U.S.C. § 33; (3) possession of false identification documents in connection with a crime of violence, in violation of 18U.S.C. § 1028(a)(4) and (b)(3)(B); (4) use of a fictitious name for admission into the United States, in violation of 18 U.S.C. § 1546; (5) making false statements on a customs declaration, in violation of 18 U.S.C.§ 1001; (6) smuggling explosives into the United States contrary to law,in violation of 18 U.S.C. § 545; (7) transportation of explosives, in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a); (8) possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and (9) carrying an explosive during the commission of a felony, in violation of 18 U.S.C. § 844(h)(2).
In March 2003, Abdelrazik travelled to Sudan whilst there he was arrested on suspicion of involvement in terrorism. Initially When Abdelrazik went to Sudan, he had a valid Canadian passport, which would have still been valid had he returned at the time of his arrest, but it expired during his period of detention. In 2004 he tried to return to Canada and whilst the Canadian authorities initially assisted him in purchasing a plane ticket, the airline refused to fly him back, as was now on the US "no-fly" list. In 2005, the Sudanese government issued a letter exonerating Abdelrazik, however the US government listed him on its US Department of Treasury as having high-level affiliations with al Qaeda and his name was added to the 1267 list.
Inclusion on the 1267 list as previously discussed carries with it a number of sanctions, including asset freezing and a global travel prohibition. Canada had instigated regulations under its own UN Act271 implementing the UNSC resolution 1267272, which, among other things, prohibits anybody from providing financial assistance to a person on the list. Abdelrazik sought help from the Canadian government in being taken off the list, and with apparent support from both CSIS and the Royal Canadian Mounted Police. Canada initially requested his removal from the list. The request was denied in 2007 with no reasons being given.
In April 2008, six years after his initial visit to Sudan, the Canadian Government obtained clearance from the 1267 Committee to provide expenses for Abdelrazik's basic necessities. Whilst in Sudan, Abdelrazik had applied for a renewal of his Canadian passport. The initial application had been made in 2005, to which he received no response. He tried again in 2008, after the Canadian government publicly announced that it would provide emergency travel documents for him when he was cleared to travel. In August 2008, Abdelrazik was able to secure a flight back to Canada, but the Canadian government refused to issue a passport. He was notified that the reason was based on national security.