In June 2016, the European Court of Human Rights (ECtHR) delivered a significant judgment in Al-Dulimi and Montana Management Inc. v. Switzerland in which it held that there had been a violation of the applicants? right to a fair trial (Article 6(1) of ECHR), because Swiss Courts did not provide meaningful judicial review of the applicants? listing by the UN Security Council (UNSC).
The Arab Legal Forum organised a seminar on 6 October 2016 in London with a distinguished panel of speakers to discuss the impact of the Al Dulimi judgment on the rights of individuals and entities to challenge dual sanctions regimes (UNSC and national sanctions) before domestic courts. The seminar was chaired by ALF?s founding committee member, Omar Naqib, an associate at Freshfields Bruckhaus Deringer.
Maya Lester QC
Maya Lester QC of Brick Court Chambers explained that UNSC resolutions can freeze assets across 200 countries worldwide and member states have an obligation to implement such resolutions without delay. However the Al Dulimi case posed fundamental questions: to what extent can the ECtHR, European Court of Justice (ECJ) and national courts say that the measures of a UNSC resolution are unfair, given the primacy of the UNSC? To what extent is domestic judicial review of a UNSC resolution possible?
Lester summed up the decision of the ECJ in Kadi, which held that due process has to be followed when adopting EU Community measures especially in the case of asset freezing, which is intrusive in nature. Member states protested against the ECJ?s ruling on the ground that following due process steps would delay the implementation of the freezing of assets under the UNSC resolution which had to be implemented right away. More fundamentally the ECJ had failed to recognise the conflicting obligations of EU member states to the UNSC. However, the ECJ?s stated position was not reviewing the UNSC resolution per se, but simply assessing the fairness of the implementing EU measure.
Similarly Lester highlighted the ECtHR decision in Nada v Switzerland where it was held that a UNSC-imposed travel ban placed a disproportionate restriction on the applicant?s human rights. The ECtHR held that since the UNSC did not set down the method of implementing its resolution, there was no problem of a conflict with the UN decision. Domestic courts should merely look at the proportionality of a particular measure i.e. consider the impact of a travel ban on the applicant?s health in Nada.
Lester then examined the Al Dulimi judgement in light of these recent decisions. Mr Al Dulimi had been subject to sanctions in the 1990s where the Swiss courts had said that they could not provide judicial review, because of the UNSC?s requirement to implement its resolutions without delay. The applicants challenged the Swiss domestic courts? decisions to uphold the UNSC resolution and argued that the courts had breached the ECHR by failing to review the measures.
The ECtHR?s position was that the UNSC resolution did not preclude judicial review of the listing and noted that there was no equivalent mechanism for review available within the UN. Denying the applicant recourse to judicial review would amount to a potential breach of Article 6. Subsequently, the ECtHR ruled that judicial review in Switzerland could be allowed to ensure that the listing is not arbitrary.
Lester concluded by highlighting the dichotomy in Al Dulimi that there can be no judicial review of the merits of the UNSC resolution, but only a review of the arbitrariness of listing (i.e. the question of the evidential basis of listing). However it is difficult to see how one is not looking at the merits of the UNSC resolution itself.
Judge Kimberly Prost
Judge Kimberly Prost served as the first Ombudsperson to the United Nations Security Council Al Qaeda Sanctions Committee between July 2010 and July 2015. The Ombudsperson is appointed to independently and impartially review requests from listed individuals and entities seeking to be removed from UNSC?s Sanctions List.
Judge Prost characterised the Security Council as the Ombudsperson?s ?worst enemy?. Permanent members of the Security Council remained opposed to the Ombudsperson process while there have been growing calls to extend the role of the Ombudsperson in other quarters, she added.
Judge Prost went on to examine the impact of the decisions in Al Dulimi and Kadi. In her view, these judgments were not workable in practice. Al Dulimi proposes a completely different approach from Kadi thereby creating endless confusion. She pointed out that neither Al Dulimi nor Kadi stated what standards should be applied by domestic courts when implementing UNSC?s resolution. She also questioned the exact nature of the test of arbitrariness in these cases. She gave the example of whether it would be sufficient to impose sanctions on someone if they were associated with Saddam Hussain.
Fundamentally, Judge Prost stated, the judgments were unworkable, because they would lead to a situation whereby domestic courts in 200 different member states would be reviewing the UNSC resolution leading to 200 potentially different approaches. This would lead to the breakdown of the process. She also iterated that the Security Council would never share underlying confidential information about a sanctions listing with a domestic court. In the case of the Ombudsperson, she said that only the Ombudsperson and not even their staff was allowed have access to confidential underlying information. This is unlikely to be the case with hundreds of judges across Europe, for example.
Judge Prost noted the strong language in the dissenting opinion of Judge Pinto de Albuquerque in Al Dulimi which demanded the need for a world human rights court. Judge Prost doubted that this would happen any time soon. A more realistic proposal in her view was a greater application of the Ombudsperson process which may eliminate situations of actual conflict not to mention that the process is fast (nine months). She stated that many individuals had chosen the Ombudsperson process which can be done without recourse to a lawyer.
Antonios Tzanakopoulos, associate professor of Public International Law at St Anne?s College, University of Oxford began by setting out the mechanism of how a particular sanctions regime is implemented in an EU member state. After the UNSC creates a list, it informs the EU, which in turn tells the treasury in a member state to instruct banks to freeze accounts of listed individuals, he said. Sometimes, there would just be a name of an individual without any other identification (i.e. passport number), he noted.
Tzanakopoulos mentioned that ?clever lawyers? essentially challenged domestic courts? implementation of the UN?s sanctions regime with the result that domestic courts can order judicial review of domestic implementation measures.
He highlighted the three ways in which the European courts have enabled that review. First is the doctrine of ?equivalent protection?. Derived from ECtHR?s decision in Bosphorus Airways v Ireland, this would require that that the implementation of a UNSC resolution must entail equivalent protections of the rights recognised in the ECHR.
Second, Tzanakopoulos explored the idea that the two legal regimes (i.e. under UNSC the ECHR) can be harmonised in their interpretation so that they do not conflict. Yet another approach could be what Tzanakopoulos described as a ?nuclear? option whereby the ECJ says that it is not conditioned by the UNSC and applies its own human rights protections and judicial scrutiny.
Tzanakopoulos summed up the European courts? approaches as falling within the following two categories: (i) the ECJ in Kadi and (ii) the ECtHR in Al Dulimi and Nada. In his view, these decisions stuck ?between a rock and a hard place? of human rights standards and the primacy of the UNSC. He opined that the UNSC is ultimately bound by customary international human rights law. The ECJ in Kadi provided the human rights justification at an internal EU level, he added. However according to him, the decision in Kadi could be problematic in strict sanctions regimes.
The seminar concluded with a lively question and answer session between members of the audience and the panellists.
 Article 103 of the UN Charter: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
The IBA recently revised its Guidelines on Conflicts of Interest in International Arbitration. This was the culmination of a review by the IBA Arbitration Committee,