LJIL Symposium: A Comment on Devika Hovell’s “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making”

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]

The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.

My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.

Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.

While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration. This description is closely connected to article 31(3)(c) of the Vienna Convention on the Law of Treaties and reflects an awareness that states have to harmonize their different obligations under different treaty regimes as far as possible, as a matter of state responsibility.  The great advantage of this technique is that it finds a solution for conflicts between international obligations within the international legal order itself and thereby strengthens the unity of international law.

The ECtHR first applied this technique in relation to UNSC obligations in the Al-Jedda decision of 2011 and subsequently in the Nada decision. In both instances the technique was directed at preventing open rejection of UNSC resolutions by individual states, which could result in undermining a unified system for the protection of international peace and security. This risk is inherent in the dualist approach followed by the ECJ in the Kadi cases, since the ECJ regarded international law as irrelevant for deciding the norm conflict. When applying the technique of systemic integration on the other hand, states remain bound to give effect to UNSC resolutions even though the scope of these obligations is limited by human rights obligations through interpretation. Systemic integration therefore reduces the risk of an open rebellion against and destabilization of the United Nations system for the protection of international peace and security. Stated differently, systematic integration contributes to the unity of the international legal order and serves as a counter-force against fragmentation of international law.

Even so, one has to concede that the technique is only convincing where it does not lead to a distortion of the text of the competing international obligations at stake. The Al-Jedda decision, which concerned internment in Iraq on the basis of UNSC Resolution 1546 (2004), exemplifies a case where the technique was applied convincingly. It did not contradict the text of the UNSC resolution, which was sufficiently flexible to allow for the interpretation chosen by the ECtHR. The Nada decision on the other hand, would amount to an over-stretching of the technique.

In the Nada decision the language of the UNSC Resolution 1267 (1999) sanctions regime left no meaningful scope for interpretation, although the ECtHR claimed the opposite. According to the ECtHR, there was nothing in this sanctions regime that prevented the Swiss authorities from providing effective judicial review mechanisms on the domestic level. As a result, it concluded that Switzerland had violated Article 13(1) ECHR by not providing Mr. Nada with access to judicial review on the domestic level, by means of which he could have verified those measures implementing the Resolution 1267 (1999) sanctions regime. This implies nothing less than that a sanctions regime such as the one resulting from Resolution 1267 (1999) necessarily and implicitly allows states the discretion needed to enforce the respective sanctions regime in accordance with international human rights standards.  Such an interpretation would amount to assuming the permissibility of judicial review in accordance with the standards of the ECHR (or other applicable international human rights instruments), unless this was explicitly excluded.

In practice, this would place implementing states and the affected individuals and entities in a similar situation of legal uncertainty, as would result from a consistent enforcement of the Kadi decisions. Whereas the individuals would regain access to their assets and freedom of movement within a particular jurisdiction, they would remain formally listed at the United Nations level, until such as time as the respective sanctions committee de-listed them. Furthermore, states which delisted individuals on the domestic level subsequent to a court decision to this effect may trigger state responsibility on the international level for acting in contravention with a UNSC obligation.

In the case of Mr. Nada these two consequences will not arise, as he has since also been delisted by the Al Qaida sanctions committee. However, for Switzerland this is not the end of the matter, as at least two other individuals in Switzerland faced a similar predicament than Mr. Nada on the domestic level. It is very difficult to see how Switzerland can give effect to the message underpinning the ECtHR’s decision without violating the exclusive right of the respective United Nations sanctions committee to decide (by means of political procedure) whether an individual or entity should be delisted.

On the other hand, any other conclusion by the ECtHR in the Nada case would have amounted to an abdication from its responsibility to give meaningful effect to the ECHR. It is highly unlikely that a mere declaration of human rights incompatibility that leaves that implementing measures as such intact (Devika’s option (iii) on p 594), would inspire the UNSC to reform its delisting procedure. After all, the open revolt of the ECJ through its Kadi decisions was a direct result of years of fruitless political dialogue between the EU member States and the UNSC, directed at introducing some form of independent judicial review for those directly listed by the Al Qaida sanctions committee. The introduction of the Ombudsperson in UNSC Resolution 1904 (2009) was a direct result of the revolt by the ECJ in the 2008 Kadi decision, which affected no less than 27 member States, two of which are also permanent members of the UNSC. Whatever the judicial shortcomings of the Ombudsperson mechanism, it would not have been possible without the bottom-up pressure generated by the ECJ’s first Kadi decision.

In the final analysis, the extent to which the technique of judicial dialogue or systemic integration could curb fragmentation depends on the nature and extent of the norm conflict generated by the competing international obligations. The overriding message from the ECJ and the ECtHR in Kadi and Nada was that extensive reform is required of those sanctions committees that engage in direct listing and delisting. Until such a time as impartial and independent judicial review is introduced at the United Nations level for individuals and entities directly listed by UNSC sanctions committees, judicial rebellion is unlikely to subside in Europe. After all, the ‘recalibration of the judicial function’ [p 593] cannot be interpreted to mean a total abdication of the very principles underpinning the UN Charter itself.