DISSENTING OPINION OF JUDGE NUSSBERGER

In the present case the majority of the Grand Chamber have tried to resolve a conflict by denying its very existence (A). In my view this is not an acceptable approach as it does not follow the normal methods of treaty interpretation (B), it is not in line with other leading judgments on the interaction between Convention law and general international law (C), and it creates unnecessary problems and tensions both for the State concerned and the United Nations as a whole (D). Switzerland was confronted with the dilemma of being bound by contradictory treaty obligations, accepted the de lege lata existing conflict-resolution mechanism, and did its utmost to mitigate the consequences for the individual concerned (E). Therefore I cannot find any violation of the Convention.

That does not mean that I would not endorse the finding of an obvious deficiency in the UN targeted-sanctions regime. To block the existing mechanism of implementing UN sanctions (only) in the bilateral relationship between the UN and the member States which are also parties to the Convention does not, however, promote the rule of law. It is a dead end, as it leaves the State concerned in a legal limbo. An effective solution must be found at UN level.

A. Existence of a conflict

The existence of a growing number of bilateral and multilateral treaty obligations unavoidably creates for States the danger of being confronted with contradictory duties under international law. In the present case Switzerland was bound to implement several UN Resolutions, among them Resolution 1483 (2003), that were adopted in the context of the Iraqi invasion of Kuwait and the ultimate overthrow of the Iraqi regime. On this basis Switzerland was required to “freeze without delay ... funds or other financial assets or economic resources and [to] immediately ... cause their transfer to the Development Fund for Iraq ...”. The names of those whose funds were concerned were included in a specific list. At the same time, Article 6 of the Convention prescribed a right to a fair hearing which, according to the Court’s jurisprudence, included “[t]he principle whereby a civil claim must be capable of being submitted to a judge” (see Golder v. the United Kingdom , 21 February 1975, § 35, Series A no. 18).

The majority of the Grand Chamber could not see any conflict between those obligations, arguing that “[t]here was in fact nothing [in Resolutions 1483 or 1518] – understood according to the ordinary meaning of the language used therein – that explicitly prevented the Swiss courts from verifying, in terms of human rights protection, the measures taken at national level pursuant to the first of those Resolutions” (paragraph 143 of the judgment). This position follows up on a line of argument that was developed in Al-Jedda v. the United Kingdom ([GC], no. 27021/08, § 102, ECHR 2011) and then transferred to Nada v. Switzerland ([GC], no. 10593/08, § 180, ECHR 2012). But while it was convincing in Al ‑ Jedda and arguable in Nada it goes beyond what is acceptable in the present case. In Al-Jedda the relevant UN Resolution clearly left room for interpretation as it only required the United Kingdom to take “all necessary measures to contribute to the maintenance of security and stability in Iraq” (UN Security Council Resolution 1511 passed on 16 October 2003, paragraph 13). That wording was obviously vague and open and did not oblige States to detain persons without trial as the United Kingdom was reproached for having done. The Court was therefore right to argue that it was possible to “choose the interpretation which [was] most in harmony with the requirements of the Convention and which avoid[ed] any conflict of obligations” (see Al-Jedda , cited above, § 102). Although the language of UN Resolution 1390 in Nada was much more explicit and required the prevention of entry into or transit through Swiss territory by listed individuals, nevertheless there was a clause which stated “this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case by case basis only that entry or transit is justified”. Concerning the immediate steps to be taken, the words “where appropriate” were used. The Court could once more argue that the terms “necessary” and “where appropriate” left the States discretion and allow for a Convention-compliant application of the Resolution (see Nada , cited above, §§ 177-78).

The present case is, however, different. The UN Resolution does not only describe the measures of freezing and transferring funds in a very concrete way and explain that they have to be applied to specific “listed” persons, but also demands that these measures be taken “immediately” and “without delay”. I agree with my colleague Helen Keller that this wording does not leave any discretion or choice of interpretation for implementation. To hold otherwise turns a “harmonious interpretation” into a “fake harmonious interpretation” that is not in line with basic methodological requirements of international treaty interpretation.

In my view it is impossible to deny that the treaty obligations Switzerland has been confronted with in the present case are not only conflicting, but also mutually exclusive.

B. Interpretation of the conflicting treaty obligations

1. Interpretation of the UN Resolution

It is convincing to take, as proposed by the UN International Law Commission (ILC), as a starting-point for the interpretation of obligations arising out of different treaty regimes, a “strong presumption against normative conflict” (see the Report of the ILC study group cited in paragraph 56 of the present judgment). It is also to be welcomed if this principle can be stretched, as far as possible, in order to resolve otherwise unresolvable conflicts between obligations arising out of the Convention and out of other international treaties. But that does not mean that the generally accepted methods of interpretation as defined in the Vienna Convention on the Law of Treaties (VCLT) can be ignored.

The ordinary meaning of taking a measure “immediately” or “without delay” is hardly compatible with allowing substantial judicial review. “Without delay” clearly indicates that no intermediate steps are permitted. Furthermore, it is obvious that judicial review takes time, more time than the notions “immediately” and “without delay” could possibly allow. The majority of the Grand Chamber do not seem to assume that a quick procedure would be possible, as they require the domestic courts to obtain “sufficiently precise information in order to exercise the scrutiny that is incumbent on them” (paragraph 147). Taking into account the fact that most, if not all, of the information will be confidential, even the preparatory phase before starting judicial review can be expected to last for a long time.

The object and purpose of the Resolution, which is based on Chapter VII of the UN Charter and has to be applied by all member States of the United Nations, implies the necessity of uniform implementation. If judicial control at national level were allowed, one would have to expect divergent implementation practices according to the respective standards used. Sanctions against the same listed person might be allowed in one jurisdiction and stopped in another. This cannot be intended if the system is to be efficient, especially not in a situation where funds are urgently required for the most basic needs of the Iraqi population. The Court stated in Al-Jedda “... that a United Nations Security Council resolution should be interpreted in the light not only of the language used but also [of] the context in which it was adopted” (see Al-Jedda , cited above, § 76).

The majority of the Grand Chamber draw far-reaching conclusions from the silence of the Security Council Resolution as to procedural safeguards (see paragraph 146):

“... where a resolution such as that in the present case, namely Resolution 1483, does not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it must always be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness can be avoided.”

This presumption is not, however, compatible with a systematic interpretation of the Resolution in the light of its object and purpose and goes far beyond what was stated in Al-Jedda .

In Al-Jedda (cited above, § 102) the Court held that “[i]n the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law”. It cannot be said that Resolution 1483 (2003) did not use “clear and explicit language”. The requirement to freeze and transfer funds immediately and without delay is not ambiguous. In the present case, the majority of the Grand Chamber are, however, no longer satisfied with the clear and explicit language describing the particular measures to be taken, but expect “clear and explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation” (see paragraph 146). This turns the obligation to state clearly and explicitly what is intended into an assumption that what is not clearly and explicitly stated is not intended. That is a completely different approach.

Chapter VII of the UN Charter establishes competences for the Security Council in situations which are characterised as “threats to the peace, breaches of the peace and acts of aggression”. Even the use of armed force may be authorised on the basis of Article 42 of the UN Charter. The measures have to be applied by all members of the United Nations (Article 25 of the UN Charter). Human rights protection is nevertheless not denied. As clearly stated in Article 24 § 2 of the UN Charter “[i]n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations”, among them “promoting and encouraging respect for human rights and for fundamental freedoms” (Article 1 § 3 of the UN Charter). But the very idea of Chapter VII of the UN Charter is that the Security Council should be the one which has the last word in deciding on the necessity of the measures to be taken in order to maintain peace and security. Under such conditions, it would be the exception rather than the rule to allow judicial control by domestic courts in the member States obliged to implement the measures, as this would transfer the last word to domestic judicial institutions. This is all the more so as fair trial and access to a court are considered to be derogable rights in emergency situations, as is also confirmed by Article 15 of the Convention. Up to the present time there has never been a practice whereby the Security Council asks States to examine whether the implementation of sanctions is consonant with human rights protection.

Thus, there is no ground on which an assumption of some sort of separation of powers between the Security Council and the domestic courts could be based.

2. Interpretation of Article 6 of the Convention

Even assuming that judicial review were possible within the time span defined by the words “immediately” and “without delay”, there would still be an unbridgeable conflict between the obligation under the UN Resolution and Article 6 of the Convention as interpreted by the Court. According to the Court’s long-standing jurisprudence, it is not sufficient merely to provide access to a court (see Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II):

“... that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 para. 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention ... Execution of a judgment given by any court must therefore be regarded as an integral part of the ‘trial’ for the purposes of Article 6; ...”

The majority of the Grand Chamber require the domestic courts to verify whether the implementation of the measures ordered in the UN Resolution would be arbitrary. The result of such a procedure in the domestic court would necessarily be open. If the court came to a negative conclusion and found the measures arbitrary, the refusal to implement the sanctions would no longer be transitory, but permanent. The obligation to freeze and transfer the funds would be definitively frustrated.

It is not possible to cut Article 6 of the Convention in half. Access to a court would be fictitious if a final judgment did not have any consequences. In trying to harmonise the different treaty obligations the majority do not address this crucial question.

C. Interaction between the Convention and general international law on the basis of the Court’s case-law

The Court has stated on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part (see Hassan v. the United Kingdom [GC], no. 29750/09, § 102, ECHR 2014, with reference to Article 31 § 3 (c) of the VCLT).

Therefore the Convention obligations have to be interpreted in the light of the UN Charter.

The precondition for the existence of a “European public order” to which the majority of the Grand Chamber allude in their reasoning (paragraph 145 of the present judgment) is peace and security. For that reason all the Contracting Parties to the Convention have transferred sovereign rights to the United Nations and more specifically to the Security Council on the basis of Articles 24 and 25 of the UN Charter. The cornerstone of this whole system is Article 103 of the Charter, which grants priority to the obligations under the Charter, a provision taken up in Article 30 of the VCLT. This is confirmed by the case-law of the International Court of Justice (ICJ) and legal opinion (see the references to ICJ case-law in paragraphs 41-43 of the present judgment).

I agree with the argument of the respondent State that this concept is as fundamental as the principle par in parem non habet imperium , which the Court accepted as a total barrier to access to a court in Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001 ‑ XI). The same conclusion was reached in the case of Stichting Mothers of Srebrenica and Others v. the Netherlands ((dec.), no. 65542/12, § 154, ECHR 2013), where the Court held as follows:

“... since operations established by UN Security Council Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the UN. To bring such operations within the scope of domestic jurisdiction would mean to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the UN in this field, including with the effective conduct of its operations.”

In the present case, even though the legal question is a different one, the interaction between UN law and Convention law poses the same problems. The consequences of not interpreting the Convention in line with UN law are also the same. Nevertheless, this time the Court has come to the opposite conclusion.

In my view the conflicting obligations on the basis of Article 6 of the Convention and UN Resolution 1483 (2003) should not have been artificially denied, but put in the context of general international law as it stands, of which Article 103 of the UN Charter is a basic pillar. In view of the overarching aim of having an efficient mechanism for guaranteeing peace and security worldwide, a restriction on the right of access to a court under Article 6 is proportionate, unless the arbitrariness of a measure ordered by the Security Council is so plain to see that no State governed by the rule of law could agree to implement it. This is not so, however, in the present case (see below).

The explicit regulations in the UN Charter also contradict the solution to the conflict elaborated on the basis of the Bosphorus presumption in the Chamber judgment. While there are no norms resolving the conflict between EU law and Convention law, Article 103 of the UN Charter is clearly designed for conflict regulation; there is no lacuna to be filled by a presumption.

D. Problems and tensions caused by the Court’s judgment

On the basis of Resolution 1483 (2003), immediate implementation of the sanctions was required in 2003. Nevertheless, in 2016 the funds have still not been transferred. The process has been dragging on for thirteen years already. Neither the first applicant, who still does not have access to his funds, nor the Iraqi people, who still cannot use the money for rebuilding the country, have profited in any way from this long-lasting legal meander. On the basis of the Court’s judgment, this legal limbo will probably continue to exist for many more years to come. This is detrimental both for human rights protection and for the effective functioning of the UN Security Council resolutions under Chapter VII of the UN Charter.

Different scenarios are foreseeable. Firstly, the Swiss Federal Court could examine the claim on the merits, but based on the assumption that the outcome would not have any legal consequences, as Switzerland would in any case be bound by the Security Council Resolution. The legal procedure would thus be l’art pour l’art – purely fictitious. Secondly, the Swiss Federal Court could examine the claim on the merits with the intention of disregarding the duty to implement the resolutions if any arbitrariness is found. This would create major tensions within the UN system. If followed as a general example, targeted economic sanctions would become ineffective. Thirdly, it might be that the Swiss Federal Court does not obtain any information for adjudication of the claim on the merits. The procedure would thus end without any tangible result.

None of these scenarios is to be welcomed for the purposes of effective human rights protection. On the basis of Article 46, Switzerland has to abide by the Court’s judgment. But, as is clearly stated in the present judgment (paragraph 149), the legal message is not directed at Switzerland, but at the Security Council; namely, that it should not forget the rule of law principles in ordering targeted measures. This message is not new (see the Opinions of the UN Special Rapporteurs quoted in paragraphs 52 et seq. of the present judgment). It is an important message for human rights protection. But it would have been sufficient to express it in an obiter dictum without finding a violation of the Convention by Switzerland.

E. The exemplary approach of the Swiss authorities

Even assuming that the obligations arising out of UN Security Council Resolution 1483 (2003) and Article 6 of the Convention were compatible and domestic courts were required to exercise a basic review of arbitrariness in implementing the Resolution, I would argue – like my colleague Ineta Ziemele – that Switzerland has fulfilled this requirement.

1. The applicants’ situation

The first applicant’s main complaints were that he had never been told why his name had been put on the list and that he had never been heard by a judge. While this is true, it has to be put into perspective in the light of the historical context and the actual wording of the Security Council Resolution. Resolution 1483 (2003) clearly explained both against whom the sanctions should be directed and the reasons why they were necessary. The personal scope of the application of the Resolution was defined by the words “Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction”. According to the Security Council, the first applicant had been the head of finance for the Iraqi secret services under the regime of Saddam Hussein (see paragraph 10 of the present judgment); thus there was a priori a presumption that he fell within the group indicated. As to the reason for the freezing and transfer of his funds, the Resolution takes as a precondition for the sanction that such funds or financial assets have been removed from Iraq. The first applicant’s more than 200 million Swiss francs were kept in bank accounts in Switzerland and his company was incorporated under the laws of Panama. So, even if the applicant had not personally been informed of the reasons for the measures taken, he must have known or could at least have presumed why his accounts and assets were targeted. It is important to note that he never claimed not to have been the head of the Iraqi secret services, or not to have removed funds from Iraq to Switzerland, or not to have incorporated a company under the laws of Panama. This aspect clearly distinguishes the case from Nada (cited above), where the applicant had always argued that he did not have any connection with Osama bin Laden and the al-Qaeda organisation, against which the sanctions were directed.

It is also not entirely true that the first applicant had never been heard. When applying to the 1518 Committee he was asked to provide supporting documents, but he did not follow up on this request. He only asked to be allowed to give oral testimony (see paragraphs 20 and 21 of the present judgment). Even though he was not in fact offered an oral hearing, at least he was given an opportunity to present his counter-arguments.

It is thus unclear on what factual elements a suspicion of arbitrariness could be based. This is all the more true as the first applicant’s lawyer was asked in the hearing before the Court why his client thought that the sanctions applied to him were arbitrary. He referred only to the procedure, that is, the fact of not having been heard, but did not advance any substantive reason for finding the targeted sanctions arbitrary.

What is at stake is thus only procedural arbitrariness.

2. The Swiss authorities’ support for the first applicant

From the very beginning, the Swiss authorities tried to mitigate the negative consequences for the first applicant and to counterbalance the procedural deficiencies of the listing procedures for which they were not responsible and which they could not influence.

They allowed and supported his application to the 1518 Committee and suspended the domestic procedure for over a year (from 18 May 2004 until 1 September 2005). They gave reasoning for the decision to transfer the funds and made available an administrative-law appeal. They guaranteed the right to be heard in the procedure, granted him access to the file of the Federal Department for Economic Affairs, and gave him the opportunity to express himself before that authority.

The Swiss Federal Court, in its judgments of 23 January 2008, examined the legal basis for the confiscation and the basic elements required in order to avoid arbitrariness, verified that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets belonged to the first applicant and the company of which he was managing director, referred to the reasons for putting him on the list, namely, his role in the regime of Saddam Hussein, analysed a potential conflict of the Resolution with jus cogens and added an obiter dictum as to the insufficiency of the procedure before the Sanctions Committee. As the applicants had never advanced any substantive ground of arbitrariness, the court had no indication of where or how to further scrutinise the matter even in the framework of the decision on admissibility.

In my view this form of judicial review should be seen to have fulfilled the requirement of exercising “sufficient scrutiny so that any arbitrariness can be avoided” (see paragraph 146 of the present judgment).

The execution of the final judgment of the Federal Court was suspended in order to allow the first applicant to apply for a new delisting procedure (from 23 January 2008 until 6 January 2009). The Swiss authorities furthermore allowed him to deduct the amount necessary to pay his lawyers’ fees from the frozen funds. Finally they once more suspended the domestic procedure when he brought his application to the Court.

Besides these individual measures the authorities made general efforts to improve the system of delisting.

What else could they possibly have done?

3. Acceptance of the de lege lata existing mechanism of conflict resolution

The Swiss authorities interpreted the obligations arising out of the Convention, on the one hand, and out of the binding resolutions of the Security Council, on the other, as conflicting and gave priority to the UN law. They accordingly applied the de lege lata existing conflict mechanism enshrined in Articles 25 and 103 of the UN Charter and Article 30 of the VCLT. Based on Article 1 of the Statute of the Council of Europe, pursuant to which “participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations”, I cannot accept that Switzerland has violated the Convention.

[1] . For the full text of Resolution 1483 (2003), see paragraph 46 below.

[2] . A State can decide that, as a rule, its citizens or residents should address their de-listing requests directly to the focal point. The State will do so by a declaration addressed to the Chairman of the Committee that will be published on the Committee’s website.

[3] . UN Security Council Resolution 1483 (2003) on the situation between Iraq and Kuwait, 22 May 2003, UN Doc. S/RES/1483 (2003).

[4] . See Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI (“ Bosphorus ”).

[5] . It is evidently the role of the Court to interpret Article 103 of the Charter and the applicable resolution for the purposes of the case in order to examine whether there was a plausible basis in such instruments for the matters impugned before it (see, mutatis mutandis , Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], nos. 71412/01 and 78166/01, § 122, 2 May 2007 (“ Behrami ”)).

[6] . UN Doc. A/RES/25/2625, 24 October 1970.

[7] . Article 59 of the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two.

[8] . See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) , Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 392, § 107, and “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, A/CN.4/L.682, 13 April 2006 (“ILC Report on Fragmentation”), §§ 331-32.

[9] . This evidently leaves open the question of responsibility towards non-member States as a result of the application of Article 103 (ILC Report on Fragmentation, cited above, § 343).

[10] . ILC Report on Fragmentation, cited above, § 345.

[11] . Ibid., § 355. The Security Council frequently calls upon all States, including States that are not members of the United Nations, “to act strictly in accordance with the provisions of this resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit granted prior to the date of coming into force of the measures imposed” (see, for example, Resolutions 661 (1990), 748 (1992), 757 (1992), 917 (1994), 1267 (1999), 1306 (2000)). This practice has been accepted by the European Union (see, for example, Article 8 of Council Regulation (EC) No 1263/94 of 30 May 1994).

[12] . See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory , Advisory Opinion, 1932, PCIJ, Series A/B, No. 44 (Feb. 4), p. 24, and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 , Advisory Opinion, ICJ Reports 1988, p. 12, § 57. Article 27 of the Vienna Convention confirms a long-standing rule of customary international law, restated by Article 3 of the ILC Draft Articles on State Responsibility.

[13] . ILC Report on Fragmentation, cited above, § 331.

[14] . Since the Charter was adopted before Article 53 of the Vienna Convention came into force, the relationship between the Charter and jus cogens is regulated by customary international law.

[15] . See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) , Judgment, ICJ Reports 1970, p. 3, § 34. In spite of the erga omnes language, the examples given are undoubtedly jus cogens .

[16] . ILC Report on Fragmentation, cited above, § 346.

[17] . See my opinion in Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015.

[18] . In fact, as early as 1932, Kelsen affirmed that issues traditionally in the domain of constitutional law, such as the duties of a State in relation to its citizens, could be apprehended by international law and therefore the development of an international protection of human rights and fundamental freedoms strongly emphasises the unity of the rule of law (François Rigaux, “Hans Kelsen on International Law”, EJIL 9 (1998), p. 333).

[19] . See UN General Assembly Resolution 60/1, of 16 September 2005, which adopted the document in question (UN Doc. A/RES/60/1).

[20] . The reference is obviously to Marbury v. Madison , 5 US 137 (1803). For the ICJ’s conception of its powers, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) , Advisory Opinion, ICJ Reports 1971, p. 16, § 89, and Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O. , Advisory Opinion of October 23rd, 1956, ICJ Reports 1956, p. 77 at p. 85.

[21] . Security Council Resolution 1518 (2003), 24 November 2003, UN Doc. S/RES/1518 (2003).

[22] . See paragraph 143 of the present judgment.

[23] . International judicial practice and scholarly opinion have affirmed certain rules of interpretation of Security Council resolutions, which mostly derive from a mutatis mutandis application of the Vienna Convention rules on interpretation (See Legal Consequences for States , cited above, p. 53, § 114; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) , Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, p. 114; Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadić, Decision on the defence motion for interlocutory appeal on jurisdiction , IT-94-1, 2 October 1995, §§ 71-137; and, among scholars, Michael Wood, “The Interpretation of Security Council Resolutions”, 2 Max Planck Yearbook of United Nations Law 77 (1978), and Sufyan Droubi, Resisting United Nations Security Council Resolutions , Routledge, 2014, pp. 7-10).

[24] . Resolution 1483 avoided the expressions “necessary” or “where appropriate” of Resolution 1390 (2002).

[25] . On the teleological interpretation of Security Council Resolutions, see Nada v. Switzerland [GC], no. 10593/08, § 175, ECHR 2012; judgment of the Court of Justice of the European Communities (CJEC) of 3 September 2008 in Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities , C-402/05 P and C-415/05 P, EU:C:2008:461, §§ 296 ‑ 97 (“ Kadi I ”); and ICTY Appeals Chamber in Dusko Tadić , cited above, §§ 72-78.

[26] . The contextual interpretation of Security Council resolutions was also taken into account by the Court in Nada , cited above, § 175, and by the ICTY Appeals Chamber in Dusko Tadić , cited above, § 93.

[27] . While Resolution 1483 (2003) had three references to “international law” and one sole reference to “human rights”, Resolution 1546 (2004) had two references to “human rights” and one sole reference to “international law”. Quite significantly, Resolution 1390 (2002) on the conflict in Afghanistan had no reference whatsoever to “international law” or “human rights”.

[28] . Security Council Resolution 1452 (2002) on the threats to international peace and security caused by terrorist acts, 20 December 2002, UN Doc. S/RES/1452 (2002).

[29] . Security Council Resolution 1267 (1999) adopted by the Security Council at its 4051st meeting on 15 October 1999, UN Doc. S/RES/1267 (1999).

[30] . Security Council Resolution 1390 (2002) on the situation in Afghanistan, 16 January 2002, UN Doc. S/RES/1390 (2002).

[31] . Consultation of the 1518 Sanctions Committee’s web page confirms that no exemptions are foreseen for the asset freeze (“none”); www.un.org/sc/suborg/en/sanctions/1518 (accessed 22 April 2016).

[32] . See SC/7791 IK/365 of 12 June 2003.

[33] . See SC/7831 IK/372 of 29 July 2003.

[34] . UNGA Resolution 60/1, cited above, § 109.

[35] . Security Council Resolution 2253 (2015), New ISIL (Da’esh) and Al-Qaida Sanctions List, 17 December 2015, UN Doc. S/RES/2253 (2015).

[36] . On the logical and systematic interpretation of Security Council Resolutions, see ICTY Appeals Chamber in Dusko Tadić , cited above, § 83.

[37] . The 1518 Committee’s “Delisting Guidelines”, published on its website, start with the words “without prejudice to available procedures”, but no other specification is given. See www.un.org/sc/suborg/en/sanctions/1518/materials/delisting-guidelines (accessed 11 May 2016).

[38] . Security Council Resolution 1730 (2006), General Issues Relating to Sanctions, 19 December 2006, UN Doc. S/RES/1730 (2006).

[39] . Security Council Resolution 1735 (2006), Threats to International Peace and Security Caused by Terrorist Acts, 22 December 2006, UN Doc. S/RES/1735 (2006).

[40] . Council of Europe Parliamentary Assembly (PACE), Resolution 1597 (2008), United Nations Security Council and European Union blacklists, 23 January 2008, § 6.1.

[41] . Kadi I , 3 September 2008, cited above.

[42] . HRC Communication No. 1472/2006, 29 December 2008, UN Doc. CCPR/C/94/D/1472/2006.

[43] . Security Council Resolution 1904 (2009) on continuation of measures imposed against the Taliban and Al-Qaida, 17 December 2009, UN Doc. S/RES/1904 (2009), § 20.

[44] . In addition to the respective annual reports, these documents are very pertinent to assess the practice of the Ombudsperson: Ombudsperson’s Statement during an Open Briefing to Member States, 23 November 2015; Remarks to the 49th meeting of the Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe in Strasbourg, France, 20 March 2015; Briefing of the Ombudsperson at the Security Council’s Open Debate on “Working Methods of the Security Council” (UN Doc. S/2014/725) on the topic: “Enhancing Due Process in Sanctions Regimes”, 23 October 2014; Remarks by the Ombudsperson delivered to the panel on “Due Process in UN Sanctions Committees” at Fordham Law School, 26 October 2012; Letter of the Ombudsperson to the President of the Security Council, 30 July 2012, UN Doc. S/2012/590; Remarks of the Ombudsperson at the workshop on the UN Security Council, Sanctions and the Rule of Law, 31 May 2012 (Kimberly Prost, “The Office of the Ombudsperson; a Case for Fair Process”); Lecture by the Ombudsperson at the Institute of Legal Research at The National Autonomous University of Mexico, 24 June 2011; Speaking Notes for Presentation by Kimberly Prost, Ombudsperson at the 41st meeting CAHDI, 18 March 2011; Briefing by the Ombudsperson to the annual informal meeting of Legal Advisers of the Ministries of Foreign Affairs of United Nations Member States, 25 October 2010.

[45] . As the first Ombudsperson herself stated, the birth of the Office was a “difficult one”, since it had been “the product of a compromise forged between two very different perspectives on this use of the Security Council sanctions power” (Kimberly Prost, Speaking Notes, 18 March 2011, cited above, p. 1).

[46] . The Ombudsperson herself acknowledged that “[s]tructurally the Office of the Ombudsperson does not exist and the administrative and contractual arrangements supporting it in practice do not provide institutional safeguards for independence” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 4). “There are no institutional protections for the independence of the office of the ombudsperson, which leaves it very vulnerable, especially when going through the upcoming period of transition” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 6).

[47] . Security Council Resolution 1989 (2011) on expansion of the mandate of the Ombudsperson established by the resolution 1267 (1999) and the establishment of a new Al-Qaida sanctions list, 17 June 2011, UN Doc. S/RES/1989 (2011).

[48] . Since its inception, the comprehensive report has been used by the Ombudsperson as a means to ensure that the petitioner’s side of the story is heard by the decision-maker (Lecture at the Institute of Legal Research, cited above, p. 6).

[49] . See Kimberley Prost, “The Office of the Ombudsperson; a Case for Fair Process”, p. 4. www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/fair_process.pdf (accessed 22 April 2016).

[50] . See “The Office of the Ombudsperson: a Case for Fair Process”, cited above, p. 2.

[51] . After the office became operational, the Ombudsperson herself admitted that the process was “not a transparent one”, referring to non-disclosure of the comprehensive reports beyond the Committee but, on a discretionary basis, to some interested States upon request, and to the States’ reluctance to provide factual detail and access to confidential information (Remarks delivered to the informal meeting of legal advisers, cited above, p. 2; Briefing of the Ombudsperson, cited above, p. 3; and Remarks by Ombudsperson, cited above, p. 5).

[52] . There seems to be a State practice to respect the Ombudsperson’s position. According to the Ombudsperson, “in all completed cases post resolution 1989 (2011), the decision of an independent and impartial mechanism has prevailed in terms of the assessment of the delisting requests” (Remarks by Ombudsperson, 25 October 2010, cited above, p. 3).

[53] . For this criticism, see the report of the UN Special Rapporteur on Protection of human rights and fundamental freedoms while countering terrorism, 26 September 2012, UN Doc. A/67/396 (“the Emmerson Report”), § 31; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 15 December 2010, UN Doc. A/HRC/16/50 (“the High Commissioner’s Report 2010”), §§ 21-22, 44; and the report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 6 August 2010, UN Doc. A/65/258 (“the Scheinin Report 2010”), §§ 55-56.

[54] . Recently, the 1518 Committee made accessible a merely formalistic “narrative summary of reasons for the listing” of the second applicant, Montana Management, Inc. No substantive reasons or evidence were given.

[55] . Security Council Resolution 2161 (2014) on threats to international peace and security caused by terrorist acts by Al-Qaida, 17 June 2014, UN Doc. S/RES/2161 (2014).

[56] . As the Ombudsperson herself concluded, “the Focal Point mechanism by its very nature and structure does not have the fundamental characteristics necessary to serve as an independent review mechanism which can deliver an effective remedy” (Briefing of the Ombudsperson, 23 October 2014, cited above, p. 2).

[57] . As criticised by the Ombudsperson herself in “The Office of the Ombudsperson: a Case for Fair Process”, cited above, p. 5, and Briefing of the Ombudsperson, cited above, p. 1. Later on, the Ombudsperson argued that this procedure had “significant advantages over court process” adding “it is a simple procedure, it can be started through an email, the Petitioner can communicate in a language of choice, no lawyer is required, there are no costs, and it has strict deadlines which make it quite fast relatively speaking” (Remarks by Ombudsperson, 20 March 2015, cited above, p. 4). I would oppose the argument that no great stretch of the imagination is necessary to conceive a simplified, urgent judicial procedure with all these “advantages”. She also argued that judicial review could not take into account evolving situations. I would reply that nothing hinders a court from proceeding with a de novo review of the initial situation. This is exactly the case with the evaluation of an accused person’s dangerousness in European security measures ( strafrechtliche Maßnahmen, misure di sicurezza ) applied in criminal proceedings.

[58] . In favour of the punitive character of the United Nations sanctions, including freezing orders, see the Emmerson Report, cited above, § 55; the High Commissioner’s Report 2010, cited above, § 17; the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, 2 September 2009, UN Doc. A/HRC/12/22 (“the High Commissioner’s Report 2009”), § 42; and the report by the former UN Special Rapporteur, 6 August 2008, UN Doc. A/63/223 (“the Scheinin Report 2008”), § 16. The EU General Court judgment in case T-85/09, Yassin Abdullah Kadi v. European Commission (30 September 2010, § 150) had raised the issue of the punitive nature of these sanctions with regard to the freezing orders, while accepting that confiscation did affect the very substance of the right to property. The Ombudsperson opposes such understanding, considering (on the Office’s website) that the sanctions “are not intended to punish for criminal conduct”, but to “hamper access to resources” and “encourage a change of conduct” on the part of the targeted people. At the same time, it is admitted that these sanctions flowing from listing have a “direct and considerable impact on the rights and freedoms of individuals and entities” and are of “indeterminate length” and therefore that there must be “some substance and reliability to the information upon which such sanctions are applied”. No specific intent by an individual is required by the Ombudsperson, but it must be demonstrated that the person “knew or [must] have known” that he or she supported ISIL or al-Qaeda or any associated entity. In my view, it is highly disputable to say that a temporary freeze of all assets of a person or entity without any sunset clause is merely a preventative measure. In any event, the present case is simpler in so far as it does not deal with a temporary freezing order, but a truly confiscatory measure implying a final and unlimited transfer of property with a clearly punitive purpose.

[59] . Her Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants) [2010] UKSC 2, [2010] 2 AC 534, § 60, referring to Security Council Resolution 1373 (2001). The International Commission of Jurists calls them “international pariahs” (International Commission of Jurists, “Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights”, Geneva, December 2008, p. 117).

[60] . The Scheinin Report 2008, § 9 (customary international law).

[61] . The High Commissioner’s Report 2009, cited above, § 42, and ICTY Appeals Chamber in Dusko Tadić , Appeal judgement on allegations of contempt against prior counsel, Milan Vujin, IT-94-1-A-AR77, 27 February 2001 (see the consideranda of the judgment) and Special Tribunal for Lebanon, Prosecutor v. El Sayed , President Antonio Cassese’s “Order Assigning Matter to Pre-Trial Judge”, CH/PRES/2010/01, 15 April 2010.

[62] . Human Rights Committee, General Comment No. 29, States of Emergency (article 4), 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11, §§ 7 and 15, and General Comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, UN Doc. CCPR/C/GC/32, §§ 6 and 59. See also Article 27 § 2 of the American Convention on Human Rights and Article 4 § 2 of the Arab Charter on Human Rights; also Inter-American Court of Human Rights, Goiburú et al. v. Paraguay , Judgment (Merits, Reparations and Costs), 22 September 2006, § 131, Habeas corpus in emergency situations , Advisory Opinion OC-8/87, 30 January 1987, §§ 17-43, and Judicial guarantees in states of emergency , Advisory Opinion OC-9/87, 6 October 1987, §§ 18-34.

[63] . See the Emmerson Report, cited above, § 15, and the Scheinin Report 2008, cited above, § 12.

[64] . Abdelrazik v. Canada (Minister of Foreign Affairs) , 2009 FC 580, § 51.

[65] . General Comment No. 32, cited above, § 19.

[66] . HRC Communication No. 1472/2006, cited above (§ 10.3). The HRC expressed its view against the punitive nature of the sanctions of the above-mentioned Resolutions (§ 10.11).

[67] . Golder v. the United Kingdom , 21 February 1975, § 35, Series A no. 18.

[68] . Deweer v. Belgium , 27 February 1980, § 49, Series A no. 35.

[69] . Van de Hurk v. the Netherlands , 19 April 1994, § 45, Series A no. 288.

[70] . See paragraph 136 of the present judgment.

[71] . Golder , cited above, § 38; Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012.

[72] . Ashingdane v. the United Kingdom , 28 May 1985, § 57, Series A no. 93, and Fayed v. the United Kingdom , 21 September 1994, § 65, Series A no. 294-B.

[73] . Waite and Kennedy v. Germany [GC], no. 26083/94, § 63, ECHR 1999-I.

[74] . Ibid., §§ 68-74, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 48, ECHR 2001-VIII.

[75] . McElhinney v. Ireland [GC], no. 31253/96, § 38, ECHR 2001-XI.

[76] . Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 54, ECHR 2001-XI.

[77] . Jones and Others v. the United Kingdom , nos. 34356/06 and 40528/06, 14 January 2014.

[78] . Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, ECHR 2013.

[79] . Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening ), Judgment, ICJ Reports 2012, p. 99.

[80] . Deweer , cited above, § 49, and Kart v. Turkey [GC], no. 8917/05, § 67, ECHR 2009.

[81] . Guérin v. France , 29 July 1998, § 37, Reports of Judgments and Decisions 1998 ‑ V.

[82] . See my separate opinion in A. Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011 .

[83] . Ian Brownlie, “Comment”, in Weiler and Cassese (eds), Change and Stability in International Law-Making , Berlin: de Gruyter, 1988, p. 110.

[84] . See, among other independent voices, both from inside and outside the United Nations: the Emmerson Report, cited above, §§ 55-57; the High Commissioner’s Report 2010, cited above, § 17; International Commission of Jurists, “Assessing Damage”, cited above, pp. 115-16; and the Scheinin Report 2008, cited above, § 16.

[85] . See paragraph 26 of the present judgment.

[86] . The Emmerson Report (cited above, §§ 56-58) pleads for a balance of probabilities test and a sunset clause imposing a time-limit on the duration of designations. In its most recent Resolution 2253 (2015), paragraph 16, the Security Council urged the member States to apply “an evidentiary standard of proof” of “reasonable grounds” or “reasonable basis”.

[87] . See, mutatis mutandis , Articles 53 and 64 of the Vienna Convention, cited above. The UN Special Rapporteur is of the view that the absence of independent judicial review of sanctions of a penal nature is so grave that it has rendered the current sanctions regime ultra vires of the Security Council’s Chapter VII powers (the Scheinin Report 2010, cited above, § 57).

[88] . See, for example, R. Kolb, “L’article 103 de la Charte des Nations Unies”, Collected Courses of The Hague Academy of International Law , 2013, vol. 367, pp. 119-23; Arcari, “Forgetting Article 103 of the UN Charter? Some perplexities on ‘equivalent protection’ after Al-Dulimi”, in QIL, Zoom-in 6 (2014), p. 33; and Bernhardt, “Commentary to Article 103”, in B. Simma (ed.), The Charter of the United Nations: A Commentary , 2002, p. 1300.

[89] . CFI, cases T ‑ 315/01, Reports 2005 II ‑ 03649, and T ‑ 306/01, Reports II ‑ 03533, respectively.

[90] . See, for example, Bruno Simma, “Universality of International Law from the perspective of a practitioner”, in 20 EJIL (2009), p. 294: “If ... universal institutions like the UN cannot maintain a system of adequate protection of human rights, considerations of human rights deserve to trump arguments of universality.”

[91] . Kadi I , cited above, § 316.

[92] . Ibid., §§ 284-87.

[93] . The Ombudsperson herself considered this judgment the “tipping point” in the context of the criticism emanating from many geographic corners, by putting the enforceability of the Security Council regime “clearly directly in peril” (Kimberley Prost, Remarks delivered to the informal meeting of Legal advisors, 25 October 2010, p. 2).

[94] . Kadi I , cited above, § 353.

[95] . In Commission and Others v. Kadi (judgment of 18 July 2013, C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518 (“ Kadi II ”)), the Court of Justice of the European Union (CJEU) confirmed the annulment of the new Regulation adopted by the Commission to comply with Kadi I . It is instructive to observe how, in the Kadi II judgment, the CJEU gives precise details as to the conduct that it expects of the competent Union authority (see §§ 111-16 and 135-36). But in Kadi II the CJEU did not include in its analysis the Ombudsperson, an omission which the latter considered as “unfortunate”. She added that such consideration by the CJEU “would have been helpful … even if it considered the mechanism did not go far enough” (Remarks by the Ombudsperson to the CAHDI, cited above, p. 4).

[96] . See Kadi I , cited above, § 322, and Kokott and Sobotta, “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance”, in EJIL (2012), vol. 23, no. 4, p. 1019. Most notably, Malenovsky considers that the CJEC applied the Bosphorus test by implicitly finding the protection at UN level to be manifestly deficient (see “L’enjeu délicat de l’éventuelle adhésion de l’Union européenne à la Convention européenne des droits de l’homme : de graves différences dans l’application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg”, RGDIP 2009-4).

[97] . See Behrami , cited above, § 133. The Court adopted Sarooshi’s “overall authority” test, as set out in his The United Nations and the Development of Collective Security (1999), which is distinct from the more rigorous criterion of Article 5 of the Draft Articles on the Responsibility of International Organisations. See, for a critique of the Behrami approach, L.-A. Sicilianos, “Le Conseil de Sécurité, La responsabilité des Etats et la Cour européenne des droits de l’homme : vers une approche intégrée ?”, in RGDIP , 2015-4, p. 782, and the literature cited therein.

[98] . See Al-Jedda v. the United Kingdom [GC], no. 27021/08, ECHR 2011. The Court followed the concurring opinion of Sir Nigel Rodley in Sayadi and Vinck , cited above.

[99] . See Nada , cited above.

[100] . Ibid., § 176.

[101] . Ibid., §§ 179-80.

[102] . Ibid., § 212.

[103] . See paragraph 145 of the present judgment. In paragraph 146 the “seriousness of the consequences” is also mentioned.

[104] . The majority are not clear at all in paragraph 147. As they are talking about the UN decision to list or delist, any “dispute” would be at UN level, so this passage conflates the UN level with the domestic level. In the present case, the applicants appealed directly to the Sanctions Committee (with the support of the government) and at that point – when there was already a dispute – the domestic courts were not yet involved. Reading the paragraph as a whole, and particularly its last sentence, it seems that the majority are not requiring an a priori assessment of the original listing itself – which would be at UN level – but an assessment at the domestic level before the “measures” are taken, or before “legal effect” is given to the UN listing. The point at which such domestic ex proprio motu assessment by the administration is to be carried out remains, however, unclear. Should it have taken place before 12 May 2004, when the applicants’ names were added to the Swiss list (paragraph 18 of the present judgment) in accordance with Article 2 § 2 of the Swiss Iraq Ordinance (paragraph 36 of the present judgment)? Or before the actual confiscation decision, which took place only on 16 November 2006 (paragraph 23 of the present judgment), in accordance with Article 2 § 2 of the Swiss Confiscation Ordinance (paragraph 37 of the present judgment)? By stating in paragraph 150 that “before taking the above-mentioned measures, the Swiss authorities had a duty to ensure that the listing was not arbitrary”, the majority still fail to resolve the crucial question of the timing of the a priori assessment. This lack of clarity on the part of the majority entails a serious problem in terms of the guidance that should have been given to the respondent State for the future.

[105] . It is highly relevant to compare paragraphs 147 and 152 of the Al-Dulimi judgment with paragraphs 111-14, 118 and 135-36 of the Kadi II judgment.

[106] . Paragraph 146 of the present judgment.

[107] . Paragraph 152 of the present judgment.

[108] . Paragraph 154 of the present judgment.

[109] . See Nada , cited above, § 175.

[110] . Compare paragraphs 114 and 153 of the present judgment.

[111] . Inspired by the so-called Solange II case (Federal Constitutional Court, judgment of 22 October 1986, BVerfG 73, 339), this general and abstract evaluation was criticised by Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki in their separate opinion annexed to Bosphorus , inviting the Court to proceed with a more specific and concrete analysis of the equivalent protection. The Solange II test of the German Constitutional Court, which only purported to “generally ensure ( generell gewährleisten ) an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguard the essential content of fundamental rights”, was less stringent than the Solange I test, which focused on a comparison between the catalogues of specific guarantees for fundamental rights in the conflicting legal orders as long as there was insufficient protection at EU level (“ in Geltung stehenden formulierten Katalog von Grundrechten enthält, der dem Grundrechtskatalog des Grundgesetzes adäquat ist” , Federal Constitutional Court, judgment of 29 May 1974, BVerfG 37, 211).

[112] . See Anchugov and Gladkov v. Russia , nos. 11157/04 and 15162/05, § 50, 4 July 2013; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, §§ 40-41 and 54, ECHR 2009; Dumitru Popescu v. Romania (no. 2) , no. 71525/01, § 103, 26 April 2007; and United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 29, Reports 1998-I. In other words, the principles of primacy and direct effect developed by the CJEU are to be found in the Court’s case-law as well. Similar principles have been ascertained under the American Convention on Human Rights by the Inter-American Court of Human Rights, especially since “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile (merits, reparations, and costs), Judgment, 5 February 2001 (see Mac-Gregor, “The Constitutionalization of International law in Latin America, Conventionality Control, The New doctrine of the Inter-American Court of Human Rights”, in AJIL Unbound , 11 November 2015, and the case-law referred to therein).

[113] . This does not mean that the Convention is an exclusive, self-contained document. On the contrary, it is an inclusive treaty, generously open to other texts which promote a higher degree of protection of human rights (Article 53 of the Convention).

[114] . See Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310. It is relevant to note in this context that the preamble to the Convention only refers to the Universal Declaration of Human Rights and not to the Charter. Moreover, the Convention does not contain a general provision, unlike other treaties, to the effect that the rights guaranteed therein are qualified to the extent required or authorised by the Charter or by United Nations Resolutions.

[115] . See, among many other authorities, M.C. and Others v. Italy , no. 5376/11, 3 September 2013; Kurić and Others v. Slovenia [GC], no. 26828/06, ECHR 2012; Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, ECHR 2010; and Suljagić v. Bosnia and Herzegovina , no. 27912/02, 3 November 2009.

[116] . On the European-wide, constitutional competence of the Court, see my previous separate opinions in Fabris v. France [GC], no. 16574/08, ECHR 2013, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013.

[117] . Bosphorus , cited above, § 153.

[118] . See, for example, Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009.

[119] . Behrami , cited above.

[120] . Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 and 25 others, § 30, 16 October 2007. It replicates the Behrami reasoning.

[121] . Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008. The Court was tempted to use the Bosphorus test.

[122] . Connolly v. 15 member States of the European Union (dec.), no. 73274/01, 9 December 2008. The Court clearly used the Bosphorus test before concluding that, “in any event” ( quoi qu’ il en soit ), the acts were not imputable to the respondent State.

[123] . Galić v. the Netherlands (dec.), no. 22617/07, 9 June 2009. In paragraph 46 the reasoning echoes the Bosphorus test.

[124] . Djokaba Lambi Longa v. the Netherlands (dec.), no. 33917/12, ECHR 2012. Here again, the reasoning in paragraph 79 is inspired by Bosphorus .

[125] . López Cifuentes v. Spain (dec.), no. 18754/06, 7 July 2009. The Court refers to paragraph 73 of Waite and Kennedy to conclude that the refusal of access to the domestic courts did not attain the core of the applicant’s Article 6 right.

[126] . Beygo v. 46 member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009. The reasoning is similar to Boivin .

[127] . The power of the national court to carry out effective judicial review will be gravely impaired if the implementing State does not have access to the full justification for the listing or, even if it does, the designating State does not consent to reveal the information to the targeted person (see the Emmerson Report, cited above, § 22).

[128] . UN General Assembly Resolution UN Doc. A/RES/68/178, 28 January 2014.

[129] . This was the position of the first Ombudsperson, Kimberley Prost, in her “Remarks delivered to the informal meeting of Legal Advisors”, 25 October 2010, p. 8. The same position is reflected on the Ombudsperson’s website page on “approach and standard”, when it refers to the “unique context of decisions by a Committee acting under the express direction of the Security Council” as a justification for the adopted evidentiary standard.

[130] . This was the position of the Court in Behrami , cited above, and Stichting Mothers of Srebrenica , cited above, which clearly departed from the general principles established in Waite and Kennedy and Bosphorus .

[131] . On the “hegemonic competition” between different treaties and the systems created thereby, see Koskenniemi, “Droit international et hégémonie : une reconfiguration” in M. Koskenniemi (ed.), La politique du droit international , Paris: Pédone, 2007, pp. 291 ‑ 320.

[132] . See A. Nollkaemper, “Rethinking the Supremacy of International Law”, Zeitschrift für öffentliches Recht , 65 (2010), p. 74.

[133] . See A. Rosas, “The Death of International Law?”, Finnish Yearbook of International Law , 20 (2011), p. 227.

[134] . Since domestic remedies can only provide limited relief, because the relevant Security Council resolution, the ensuing obligations and the universal “blacklists” remain valid even when the State implementation measure is invalidated at national level, an effective remedy at UN level is indispensable. Such a universal remedy may render unnecessary additional domestic remedies, provided it is effective.

[135] . See my separate opinion in Sargsyan , cited above, § 30.

[136] . This approach has been criticised mainly because it does not provide a clear answer regarding Article 103 of the UN Charter. See, in this vein, Stephan Hollenberg, “The Diverging Approaches of the European Court of Human Rights in the Cases of Nada and Al-Dulimi ”, International and Comparative Law Quarterly 64 (2015) 445-460, and Willems Auke, “The European Court of Human Rights on the U.N. Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland ”, Nordic Journal of International Law 83 (2014) 39-60. However, I believe that it is not within the Court’s competence to make a final determination regarding the role of Article 103 of the UN Charter. And, last but not least, the harmonisation approach discussed by the two authors and applied here by the Grand Chamber does not provide an answer to this issue either.

[137] . Some authors count 250 such organisations (Volker Rittberger, Bernhard Zangl and Andreas Kruck, Internationale Organisationen , Grundwissen Politik (Springer 2013), 17 ‑ 18; Steven Wheatley, The Democratic Legitimacy of International Law (Hart 2010), 65); others gauge the number at over 500 (Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt, Accountability for Human Rights Violations by International Organisations (Intersentia 2010), 2).

[138] . UN Charter, Article 1 § 3, Article 13 § 1 (b), and Article 55 (c).

[139] . International Covenant on Civil and Political Rights (ICCPR), entry into force 23 March 1976, ratified by 168 States; International Covenant on Economic, Social and Cultural Rights (ICESCR), entry into force 3 January 1976, ratified by 164 States; International Convention on the Elimination of All Forms of Racial Discrimination (CERD), entry into force 4 January 1969, ratified by 77 States; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), entry into force 3 September 1981, ratified by 189 States; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), entry into force 26 June 1987, ratified by 158 States; Convention on the Rights of Persons with Disabilities (CRPD), entry into force 3 May 2008, ratified by 161 States; International Convention for the Protection of All Persons from Enforced Disappearance (CED), entry into force 23 December 2010, ratified by 51 States; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), entry into force 1 July 2003, ratified by 48 States. For the CRC see next note.

[140] . Convention on the Rights of the Child (CRC), entry into force 2 September 1990, ratified by 196 States (as of March 2016).

[141] . See, in this regard, paragraphs 52-55 of the present judgment and paragraphs 106 and 118 of the Chamber judgment. In terms of literature, compare for example Annalisa Ciampi, “Security Council Targeted Sanctions and Human Rights”, in Bardo Fassbender, Securing Human Rights: Achievements and Challenges of the UN Human Rights Council , Oxford University Press 2011, 98-140.

[142] . Compare, in this vein, the considerations of the United Kingdom Supreme Court in Youssef (Appellant) v. Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2016] UKSC 3, §§ 55-59, on the standard of review required in a similar context.

[143] . On the potential responsibility of the United Nations, see the Draft Articles on the Responsibility of International Organizations (DARIO) adopted by the ILC at its sixty-third session in 2011 (Document A/66/10, ILC Yearbook 2011, vol. II(2), Articles 15, 16 and 17).

[144] . Or, in the words of Nina Blum ( The European Convention on Human Rights beyond the Nation-state: The Applicability of the ECHR in Extraterritorial and Inter-governmental Contexts , Helbing 2015, p. 223), “[f]rom the perspective of the individual and the human rights courts, states should not be let off the hook. The UN is not (yet) within reach of the courts, but the member states are.”