The European Court of Human Rights on the UN Individual Counter-Terrorist Sanctions Regime: Safeguarding Convention Rights and Harmonising Conflicting Norms in Nada v. Switzerland

Abstract

This article analyses the judgment of the European Court of Human Rights in the case of Nada v. Switzerland from the perspective of individual due process rights and the wider constitutional implications. In Nada v. Switzerland, the Strasbourg Court was asked to rule on the conformity of a State Party to the European Convention on Human Rights in its implementation of the United Nations individual counter-terrorist sanctions regime. The Court found violations of an applicant’s right to respect for private and family life and right to an effective remedy. What the Court did not do was rule on the wider questions of hierarchy, i.e. the relationship between the Convention and binding resolutions by the United Nations Security Council that have precedence over any other international agreement by virtue of Article 103 UN Charter. By choosing to harmonise norms originating in different legal contexts, the Court avoided this fundamental question. However, elements of pluralism and constitutionalism can be found in the judgment. By not giving precedence to the United Nations sanctions regime, the Court has implicitly made a statement about the question of hierarchy, while at the same time managing to uphold its primary task of safeguarding States Parties’ compliance with the Convention.