1. Introduction

In June 2016, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR, the Court) delivered its judgment in the case of Al-Dulimi and Montana Management Inc v Switzerland.[1] The GC confirmed the findings of the Chamber (C) that had examined the case in 2013,[2] but appears to have departed in parts from its reasoning. The purpose of this note is to assess if/to what extent the Court is consistent in its interpretation of the European Convention of Human Rights (ECHR, the Convention), and evaluate how this (ie the ECHR) is integrated in the broader environment of the international legal order and the ways in which the Convention’s regime interacts and co-exists with other areas of international law.
Al-Dulimi belongs to that family of cases where the respondent state is accused of violating the ECHR because of conduct amounting to compliance with international obligations stemming from an international organisation. In particular, the victims complained about a breach of Article 6(1) ECHR owing to the failure of the Swiss judiciary to scrutinise the national acts confiscating their property in Switzerland.[3] The acts at issue were aiming to enable the respondent state to comply with its obligations under a Chapter VII UN Security Council (UNSC) resolution that imposed smart sanctions against individuals. In such cases, respondent states face a dilemma between the ECHR and their other international obligations, whereas the ECtHR, while assessing the conformity of state conduct with the exigencies of the ECHR, reviews -albeit indirectly- the compatibility of these other obligations with human rights protected by the ECHR.
The lines that follow examine Al-Dulimi from the perspective of the following three questions: indirect (ie through common member states) review of the conduct of international organisations and the associated test of equivalent protection; hierarchy of rules; and systemic integration. As far as the structure of the note is concerned, the first question is partially discussed in Part 2 and partially in Part 3, which also discusses the question of hierarchy. In more detail, Part 2 gives background information regarding equivalent protection and discusses its function and the possible drivers behind it. Part 3 examines the role of equivalent protection in Al-Dulimi and scenarios about the future of the test. Part 4 links the questions examined in the previous Parts with systemic integration. Part 5 concludes by asking a number of questions regarding the interaction between the ECtHR and the UNSC.


2. The test of equivalent protection and indirect review of the acts of international organisations

The ECHR is not the only set of international obligations European states have agreed to observe. Each party to the ECHR is simultaneously bound by a plethora of other international obligations, whilst European states are members of several international organisations, with 28 parties to the ECHR forming the European Union (EU). Occasionally, clashes arise between the ECHR and extraneous to the ECHR international/EU obligations. As is discussed below, international law offers means to solve such conflicts. Yet, solutions favouring the ECHR might undermine the effectiveness of the conflicting rules, and hinder the ability of international organisations to effectively perform their tasks and pursue their goals – and vice versa. Moreover, such conflicts may lead to the fragmentation of international law, whilst, as already explained, bring states to the rather unpleasant position of having to decide which of their clashing obligations to honour and if/to what extent they should diverge from their commitments under a ‘special’, regional instrument of ‘constitutional’ weight that aims at protecting the human being (ie the individual), namely the ECHR.[4]
The Court’s point of departure in cases of this nature has been rather inflexible. In principle, states are free to transfer powers to international organisations. Yet, the ECtHR allows them to do so as long as this does not impede their ability to safeguard the rights enshrined in the ECHR,[5] especially when this is lex prior in comparison with the laws providing powers to international organisations.[6] Because of the ECHR’s humanistic object and purpose and the need to guarantee effectiveness in its application,[7] the Court cannot tolerate that states give priority to their obligations stemming from international organisations members they are to. Under that approach, states would be responsible for their wrongful conduct, irrespective of the legitimacy of the reasons underpinning that conduct, namely the need to comply with obligations stemming from their participation in an international organisation. That threshold is rather high and rigid. It leaves no room for states to participate in international organisations, unless they have first ensured full compatibility with the ECHR.[8] In the unfortunate event of a clash, states are expected to prioritise the Convention.


2.1. The test of equivalent protection and the criterion of discretion

The test of equivalent protection came to mitigate this standard and, in a sense -conditionally- discharge states from the onerous task of always being expected to undermine their effective participation in international organisations to the benefit of the ECHR regime. Because international co-operation is a legitimate purpose and there is a need to secure the proper functioning of international organisations through which co-operation is made possible,[9] the Court shall abstain from scrutinising state conduct corresponding to compliance with obligations stemming from an international organisation when two conditions are met.
First, the international organisation that imposes obligations contradicting the ECHR shall offer equivalent protection of human rights to that offered by the ECHR system.[10] Rather than proceeding with the usual scrutiny (that might involve a balancing act, ie applying proportionality), the Court examines whether, in general and in abstract, an international organisation provides equivalent protection. This leads to the establishment of a presumption, namely ‘that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.’[11] The presumption can be rebutted if, in the light of the particular circumstances of a case, the Court finds a manifest deficit in the protection of human rights.[12] If no equivalent protection is offered, the Court will proceed with its usual scrutiny, as ‘[i]n such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights’.[13]
Second, even if equivalent protection is offered by the international organisation, the obligation shall leave states with no discretion to comply with their obligations stemming from participation in an international organisation in a way that satisfies the ECHR.[14] If no discretion exists, the Court shall self-restrain its powers to allow states to comply with their extraneous to the ECHR obligations even if this means that they will diverge from the ECHR, the expectation being that any human rights issues raised can be duly addressed within the system of the organisation imposing the obligations at issue. Therefore, it is essential that the organisation offers equivalent protection. However, even if the organisation offers equivalent protection, if discretion exists, states shall aim at fulfilling their obligations under the ECHR. In that case, the Court will exercise its functions and control whether states exercised the discretion they enjoy sensibly to satisfy their duties under the Convention.
The following illustrates how the equivalent protection test works:

[For diagrams, Please, refer to the the PDF version of this article]

2.2. The rationale and drivers behind the test of equivalent protection

Seen from the perspective of international human rights law, the test of equivalent protection may be perceived as creating a loophole for states to lawfully breach human rights if international organisations, cumulatively, offer equivalent standards of protection to those of the ECHR system, establish obligations (that may be co-shaped by member states) that contradict the ECHR and give states no discretion as to how to comply with human rights. This can lead to self-restraint on behalf of the Court, giving states leeway that may result in conduct that is incompatible with the ECHR. As detrimental for human rights as this policy choice of the ECtHR may be, it reflects its will to facilitate effective state participation in international organisations.[15] As Part 4 (discussing systemic integration) argues, it involves a value judgment as to the importance of international co-operation and the institutions states create for that purpose, but also the need to ensure that the ECHR system co-exists with other areas, rules and institutions of international law. But it may also be perceived as a sign of political realism on behalf of the ECtHR, which understands that it cannot reasonably expect states to always contravene important economic and political institutions pursuing legitimate and significant goals, such as the EU, NATO and primarily the UN, for human rights law.
But, if one wishes to delve into speculations regarding the (political) motivations behind the test of equivalent protection, the list with such conjectures, plausible explanations and scenarios is quite rich. Equivalent protection is reminiscent of a (reverted[16]) Solange,[17] inviting international organisations to improve their standards of human rights scrutiny. Possibly, it is also an invitation to the respective courts of these organisations to engage in a meaningful judicial dialogue,[18] or even an act of comity[19] vis-à-vis them, and especially the EU, as it was in the context of a case (namely Bosphorus[20]) involving indirect review of EU law that the Court gave birth to the test of equivalent protection and the associated presumption that the EU offers such equivalent protection.
The scenario that the author of the present note had advanced[21] was that, indeed, equivalent protection was an act of comity. But not towards the Court(s) of the EU. Comity was addressed to the UNSC, with whose acts EU law was complying. In Bosphorus, the ECtHR was invited to scrutinise the conduct of the respondent state, which was acting in compliance with EU law that was giving effect to UNSC resolutions, enabling in this way EU member states to comply with their obligations under the UN Charter. The idea underpinning that hypothesis is that, before Bosphorus, the ECtHR had already (indirectly) reviewed EU law and fully scrutinised state conduct diverging from the ECHR to comply with obligations under the EU legal order.[22] After Bosphorus, the Court kept (indirectly) scrutinising EU law when states enjoyed discretion in its implementation.[23] Overall, the ECtHR had been austere with the EU,[24] but deferential vis-à-vis the UN.[25]Behrami and Saramati differ in many respects from cases like Bosphorus and Al-Dulimi, inter alia because the Court (artfully, but artificially) attributed the conduct allegedly amounting to a breach of the ECHR to the UNSC, over which it has no jurisdiction ratione personae.[26] But the Court also refrained from holding the respondent states responsible for the conduct of the UNSC, openly admitting that the reason behind that decision was that it did not wish to undermine the ability of the UN to fulfil its very important tasks and effectively protect peace and security.[27] In a nutshell, the picture is that of a Court that was inflexible vis-à-vis organisations other than the UN, whose (ie the UN’s) conduct it would refrain from (indirectly) scrutinising, in recognition of ‘the imperative nature of [its] principle aim’.[28] Reviewing state conduct covered by UNSC resolutions under Chapter VII would ‘interfere with the fulfilment of the UN’s key mission [and] be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself’.[29] Besides, there is a key difference between the EU and the UN regarding their nature, especially since the latter is ‘an organisation of universal jurisdiction fulfilling its imperative collective security objective.’[30] Thus, according to the reading of the motivations behind equivalent protection defended by the author of the note, among the reasons why the Court adopted the test of equivalent protection in Bosphorus was to avoid reviewing UN law.[31] It (temporarily?) abandoned its antagonism[32] (ie struggle for hegemony within Europe) with the EU judiciary and refrained from (indirectly) scrutinising EU law (that would help it establish its authority vis-à-vis the EU) to avoid undermining the primacy of the UN system. It might be that the ECtHR did not feel that it had the authority and gravitas to interfere with the UN system or that it genuinely considered that peace and security should trump human rights, but the author of this note sees Bosphorus as a ‘sacrifice’ (in the sense that it established a precedent, ie the test of equivalent protection, benefiting first and foremost the EU, and not the UN) that the ECtHR was willing to make at the time.
This changed when the Court of Justice of the European Union (CJEU) delivered (after both Bosphorus and Behrami and Saramati) its judgment in Kadi,[33] which presents similarities with the Bosphorus and the Al-Dulimi cases. In Kadi, the CJEU proceeded with full scrutiny of UNSC acts imposing sanctions on individuals and found UN-stemming law to be incompatible with EU human rights law. Thus, the CJEU (admittedly, not in a very international law friendly way[34]) did exactly what the ECtHR had avoided, ie it (indirectly) reviewed the conduct of the UN. Since that moment (according to the narrative developed by the author of this note, presumably because of the competition between ECtHR and CJEU), the ECtHR – sometimes employing equivalent protection,[35] sometimes without it[36]– started scrutinising UN law, departing from the part of the Behrami and Saramati decision that was emphasising the imperative nature of the UN mission and aims.


3. The equivalent protection test in Al-Dulimi

The test is also used in the C’s judgment in Al-Dulimi, with the Court holding that the UN system offers no equivalent protection.[37] This conclusion untied the Court’s ‘hands’. It proceeded with its regular balancing act, finding (with a thin majority of four against three) Switzerland responsible for a breach of Article 6(1) ECHR.[38] Interestingly, when examining whether the UN offered equivalent standards of protection to those of the ECHR, the Court’s Chamber felt necessary to establish also that the UN-stemming rules in question left no discretion to the respondent state.[39] Yet, in accordance with the equivalent protection test, this was a question that would only need to be examined had the Court found that the UN system offered equivalent protection. A plausible explanation as to why the Court jumps into assessing that component of the test is that it wishes to respond to the arguments put forth by the respondent and third-party interveners.[40] Another reason can be that the Court  strives to show that the reasoning in Al-Dulimi is not departing from previous case law, especially from Nada, in which the Court had found that the respondent disposed latitude (ie discretion).[41] That part of the reasoning may be seen as a ‘bridge’ between the equivalent protection test and the presumption that UNSC resolutions do not intend to violate human rights law[42] that the Court had employed in both Al-Jedda[43] and Nada.[44] The latter is in essence a presumption against conflict of obligations, that opens the way for the Court to interpret the UN-stemming rules and the ECHR in a way that harmonises them.[45]
Conflict of obligations is central in the GC’s judgment in Al-Dulimi.[46] The case was referred to the GC at the respondent state’s request. As already mentioned, the GC confirmed (with a majority of fifteen against two) the breach of Article 6(1), but, ostensibly(?), departed from the C’s reasoning. The Court found that there was nothing in the text of the UNSC acts explicitly preventing the Swiss judiciary from reviewing the measures taken at the national level pursuant to the UNSC acts.[47] Given the serious consequences that the denial of the Swiss courts to fully examine the claims before them has from the perspective of the ECHR, the absence of an explicit prohibition by the UNSC to permit judicial review of the conduct implementing the measures it has adopted, should be understood as an authorisation for national courts to exercise scrutiny.[48] Thus, by putting the text of the UNSC resolution on a Procrustean bed, authorisation was inferred from the absence of an explicit prohibition.[49] As a result, the text of the UNSC resolution at issue ‘cannot be understood as precluding any judicial scrutiny of the measures taken to implement it.’[50] This means that the respondent state was not faced in the present instance with a real conflict of obligations,[51] that is to say, the circumstances of the case are such that no real clash exists between the UN Charter (and the obligations deriving from its system) and the ECHR. This conclusion makes Article 103 of the UN Charter[52] inapplicable and ‘renders nugatory the question whether the equivalent protection test should be applied’.[53]
What is the impact of this reasoning on the test of equivalent protection? Is the Court abandoning or altering it in cases of a similar nature? The answer to these questions can also address the question of whether the Court is departing from its previous case law (both regarding the UN and, more generally, international organisations), including the C’s judgment on the same case.
Unfortunately, the Court did not wish to offer answers to any of these questions in its GC judgment. Its reasoning remains rather enigmatic as to the shape and fate of the test of equivalent protection. Judges might have already discussed these issues in their deliberations, but their discussions are not made known to the readers of the judgment. This means that we can only give speculative answers and attempt to identify possible scenarios based on logic. With this preliminary clarification in mind, there are two main strands of arguments advanced in this note.


3.1. No need for test of equivalent protection if no real conflict of rules exists

The first is that the test of equivalent protection could be absorbed (or replaced) by the test of real clash of obligations when the output of the latter test is negative, ie no real clash of obligation is found to exist, as both tests give the same conclusions. This would apply to all international organisations, including both the UN and the EU. The reasons supporting this thesis are the following. The Court could either stop short after concluding that no real clash of obligations exists – as it does in Al-Dulimi – and proceed with scrutiny (ie application in the present instance of the test of proportionality), or continue with the test of equivalent protection. In that case too, it would reach a conclusion allowing it to exercise scrutiny. The explanation supporting that argument is twofold.
First, if the organisation at stake offers no equivalent protection, the Court will not self-restrain its powers. This could be the case of the UNSC system. Both because the protection offered is not equivalent and because the UN-stemming obligations are not (according to the Court) genuinely conflicting with the ECHR, the Court shall proceed with its review – as it did in Al-Dulimi.
Second, if the organisation offers equivalent standards of protection, examining whether a clear clash of obligations exists between the ECHR and the obligations stemming from membership of an international organisation is indeed relevant for deciding whether the respondent state had any discretion in the way it would comply with its obligations under the international organisation. Admittedly, the GC does not employ the term discretion regarding the specific circumstances surrounding the Al-Dulimi case, but it does refer to it in the part of the judgment that examines clash of obligations when discussing its previous case law indirectly reviewing UN-stemming rules and the latitude (ie discretion) it had recognised in both Al-Jedda and Nada.[54] In both these cases, the Court is linking clash of obligations with discretion/latitude (the two terms being used interchangeably).[55] Therefore, the ‘clear conflict of obligations’ part of the reasoning may well fall within the ‘existence of discretion’ part of the equivalent protection test. Because the Court finds no clear clash of obligations, the respondent state is deemed unrestricted, ie has discretion to comply with the ECHR. Consequently, the Court shall review the conduct of the respondent state. In different words, the existence of discretion (because of the absence of clear conflict of obligations) enables the Court to review whether the state had fulfilled its duties under the ECHR. This way it (indirectly) scrutinises the compatibility of the acts of the international organisation with human rights. That approach would equally suit cases involving EU law. The presumption that the EU offers equivalent protection triggers the next question in the test, namely whether discretion exists. Either because of the absence of a real clash of obligations (which is tantamount to existence of discretion) or because of the existence of discretion, the Court shall allow itself to proceed with scrutiny.
The conclusion to be reached is that, if no real clash of obligations exists, the Court does not need to examine whether the international organisation offers equivalent protection as that test (including the ‘existence of discretion’ part of it) will always give the same outcome as the real clash of obligations test, ie the Court shall always feel free to exercise its powers.  Thus, the equivalent protection test may be seen as ‘absorbed’ by the clear clash of obligations inquiry. In the absence of a clear conflict of norms, both tests, ie the test of equivalent protection and the criterion of the clear clash of obligations will give identical results, namely a ‘green light’ for the Court to review state conduct and, indirectly, the acts of the organisation involved. With or without the equivalent protection test, the output is the same. The following ‘decision tree’ illuminates this idea.
[For diagrams, Please, refer to the the PDF version of this article]
Consequently, irrespective of whether the clear clash of obligations question replaces the test of equivalent protection or complements it by adding a preliminary question in it (ie if a clear conflict of obligations exists), the output is identical when no clear clash of obligations exists. To simplify things, the Court can narrow down the steps of its inquiry as the GC did in Al-Dulimi by simply establishing that no clear clash of obligations exists. The same could apply vis-à-vis all international organisations, irrespective of whether a presumption that they do not intend to contradict human rights applies or not. The presumption is rebuttable. Ultimately, it results in a question of whether a clear clash of obligations exists – and the outputs of this inquiry fully converge with the test of equivalent protection when no clear conflict (that is, discretion) is found to exist. In Al-Dulimi, the GC reinforces the presumption of normative conformity.[56] However, this does not necessarily mean that it has departed from its previous case law. It might be that the test of equivalent protection is nugatory because the Court finds it no more of worth (thus, it wishes to abandon it) or, simply enough, because it would be pointless to apply a longer test to reach a conclusion it can reach with its ‘abridged’ version, namely the test of real normative conflict.


3.2. What is the role of the equivalent protection test if a real clash of obligations exists?

However, the conclusions drawn thus far have no application when a clear clash of obligations exists, ie when the presumption of normative consistency is rebutted. In that case, the tests of equivalent protection and real conflict of norms do not always go hand in hand. Analysis in that respect becomes speculative, but we can distinguish between two main paths; firstly, if a hierarchy of norms can be established when a clear clash exists and, secondly, if norms are parallel and contradictory.


3.2.1. Real clash of obligations when a hierarchy of norms can be established

Starting with the former case, if a clear clash exists and one of the two rules is superior, the state shall have no discretion in the way that it will comply with its international obligations. Discretion will be limited both because of the clear conflict[57] and because the state will be expected to abide by the higher rule. Scrutiny by the ECtHR will depend on which is the higher rule, ie if it is the ECHR or the extraneous to it rule that prevails. Results might diverge from the part of the equivalent protection test that inquires discretion. If the equivalent protection test applies and no discretion is found to exist, the Court would have to refrain from exercising its powers, unless the organisation offers no equivalent protection, in which case the Court shall proceed with scrutiny. But in the case of hierarchically structured conflicting rules the output may differ. We can distinguish between two sub-scenarios.
First, if the prevailing rule is a jus cogens provision of the ECHR, the Court shall proceed with a review (and nullify conflicting rules) even if the international organisation offers equivalent protection and no discretion exists (in which case, according to the equivalent protection test the court should not exercise scrutiny). Admittedly, it is highly unlikely that an international organisation explicitly requires states to torture people (to give an example of a ECHR rule endowed with the effects of jus cogens), but if such an improbable scenario were to occur, the Court would be expected to leave aside its equivalent protection test and employ hierarchy as a conflict resolution tool with a view to ensure that jus cogens rules develop their special effects, namely supremacy, nullity of conflicting rules and an absolute nature that is not susceptible to limitations, exceptions and derogations.[58]
Second, if the rule that prevails is higher than the conflicting ECHR, the Court should abstain from proceeding with a review giving effect to the Convention. This is tantamount to no discretion existing for the respondent state, meaning that, in that respect, both tests, ie the clear conflict of rules and the equivalent protection, coincide in the results they give, as no test authorises the Court to exercise scrutiny. Yet, the former test (namely, the clear clash of rules one) diverges from the latter in case the organisation at issue offers no equivalent protection. In that case, the former test, because of the hierarchy of the extraneous rule, would call the Court to allow it (ie the extraneous rule) to prevail to the detriment of the ECHR, whereas the equivalent protection test would invite the Court to exercise scrutiny (possibly, to diagnose then the conflict of rules and reach the same conclusion by giving priority to the extraneous rule[59]).
To become more realistic, we know that the ECHR is not directly clashing with any jus cogens rule. This means that the main scenario that might arise is that of a clear conflict between the ECHR and UN-stemming rules enjoying priority in accordance with Article 103 of the UN Charter. This is absolutely central to the real conflict test adopted by the ECtHR’s GC in Al-Dulimi. The message that the Court seems to be signalling is that it intends to consider the priority assigned to UN-stemming rules by Article 103, but only when a real conflict of rules applies.[60] Two assumptions can be inferred. First, that the Court might be prepared to depart from the equivalent protection test in the case of the UN and, with no regard to the fact that it might not offer equivalent protection, refrain from indirectly reviewing its acts (giving, this way, states room to comply with their UN commitments), whenever a clear conflict of rules exists (that leaves states with no discretion). Second, the ambit of Article 103 may be understood as being circumscribed only to genuine conflicts that under no circumstances can be reconciled. This way, the semantic field of Article 103 is narrowed down to irreconcilable conflicts – or, if one wishes to see the glass half-full, its integrity is maintained in case of real conflicts. Yet, the Court offers no guidance as to the definition of a ‘clear’ conflict,[61] whether, for instance, this implies mutually exclusive obligations or is broader than that, whereas, as already mentioned, the presumption of no clash of obligations is clearly inflated in Al-Dulimi.[62]  Conflicts that are (according to the Court) not clear are left outside the sphere of Article 103, allowing the ECtHR to create space for the implementation of the Convention. This engenders an expectation that states will satisfy the exigencies of the Convention. If no clear conflict exists, the ECtHR shall exercise scrutiny, exactly as it did in Al-Dulimi. In the opposite case, namely when a clear conflict arises, UN-stemming obligations shall prevail by reason of Article 103, in which case the Court shall allow states to diverge from their Convention obligations to comply with rules of a higher rank.
It remains to be seen whether the Court will follow that path in the case of the UN and proceed with fully replacing the test of equivalent protection with the test of real clash of obligations when the latter test is answered in the affirmative, ie the existence of a real clash is established. To be transparent and serve the purposes of legal certainty the Court will be expected to offer criteria regarding the existence of clear clashes and explain if hierarchy or rules will apply in this case. The expectation created by Al-Dulimi is that clear clashes will be very rare but, whenever they occur, priority will be given to the UN rules in accordance with Article 103 of the UN Charter. Otherwise, the Court would not need to establish the criterion of clear conflict. Besides, the very purpose of Article 103 is to act as a conflict resolution tool by establishing priorities that render conflicting obligations inapplicable.[63] With this in mind, the argument that can be made is that in Al-Dulimi the GC is not departing from previous case law (to the extent that both the equivalent protection and the real normative conflict test would give identical outputs in this case) but is preparing the ground to depart from the equivalent protection test (and abandon it) in case of real clash of obligations.
Before moving to the second sub-scenario, namely that of parallel and contradictory norms, the ‘decision tree’ below presents schematically the arguments built thus far regarding the comparison between equivalent protection and real conflict.
[For diagrams, Please, refer to the the PDF version of this article]

3.2.2. Parallel(?) and contradictory norms

Because, according to the ILC,[64] obligations erga omnes (partes) do not develop supremacy, if a clear clash arose between the ECHR and rules not being gifted with the special qualities of jus cogens or Article 103, one would need to resort to other available conflict resolution tools. These would depend on the context and particular features of the clash,[65] bearing in mind the restrictions that apply in the employment of tools such as lex prior and lex specialis.[66]
However, attention should be given to the fact that human rights law bears a special normative weight. The argument that the author of this note has put forth elsewhere is that human rights, because of their teleology and importance – which, besides, justify their erga omnes (partes) nature and the procedural consequences that this entails in terms of collective enforcement[67]–, develop a sui generis type of occasional[68] primacy when they clash with other rules of international law (other than jus cogens).[69] The argument goes on pointing to proportionality, which, apart from its other functions (such as assessing the lawfulness of a limitation based on the criteria of suitability and necessity) contains a core (amounting to proportionality stricto sensu) that allows establishing priorities on the basis of the importance of the aims pursued by a rule. If X’s home is on fire and the only way for her to save her life is to enter her neighbour’s home, this will be a legitimate/lawful limitation of the neighbour’s rights to privacy and home life because this was necessary for X to save her life. Beyond necessity, the lawfulness of the limitation of the neighbour’s rights stems from the legitimacy of the aim pursued. Proportionality delivers the results it delivers not only because of necessity in the sense of what is necessary for achieving a goal (eg protection of life), but also because human life is more important than privacy. Human rights may only be limited to the extent that a conflicting rule makes it necessary. The case law of the ECtHR contains examples of international law rules conflicting with the ECHR that have been examined from the perspective of proportionality as a tool establishing priorities (either in favour of human rights law[70] or in favour of the conflicting extraneous rule[71]). Priorities will be occasional, and will depend on the particular circumstances of a case and whether these justify limiting human rights.[72]
Therefore, the argument maintained here is that, even when a clear-cut hierarchy is absent, the special normative weight of erga omnes (partes) rules that aim at protecting fundamental values requires balancing these rules and their teleology against conflicting rules. This requires proceeding with scrutiny that may be obstructed by the test of equivalent protection, which contains preliminary criteria applied by the Court as a means to decide when to self-restrain its powers and when to proceed with weighting the Convention against extraneous to it rules (that are causing states to behave in a way leading to a complaint under the ECHR). One cannot tell what the Court might wish to do in that respect in the future. It may proceed with its full scrutiny both in case of clear and no clear conflicts with rules stemming from organisations that do not enjoy the privileges of Article 103 UN Charter (ie not the UN). That would be tantamount to abandoning the test of equivalent protection. A second option would be to complement the test of real conflict with the equivalent protection one, maintaining the latter intact in case of conflict and using its criteria as the basis for deciding if/when it should exercise scrutiny. A third option (that seems to be supported by Al-Dulimi) would be to apply the real conflict test in the case of the UN and the equivalent protection one for all other organisations. It remains to be seen how the ECHR will wish to proceed. Admittedly, the relatively recent dead end in the procedure leading to the EU’s accession to the ECHR,[73] because of the CJEU’s maximalist opinion 2/13,[74] gives strong incentives to the ECHR to wish to abandon the test of equivalent protection. Al-Dulimi might be preparing the ground for change vis-à-vis all international organisations and not only vis-à-vis the UN. Future and the Judges in Strasbourg will tell.


4. What type of systemic integration within an unsettled constitutional landscape?

The equivalent protection test and the criteria of discretion and real normative clash as preconditions for exercising scrutiny are constructions of the ECtHR. The Court can unmake them in the same way it has created them, ie through case law. As long as outputs and the policy considerations that lead to them are duly reasoned, justified and legitimate, courts may depart from previous standards and case law. Outside assessing whether with Al-Dulimi the GC departs from its earlier case law, it is essential to understand that cases of the kind of Al-Dulimi raise for the Court a dilemma: to what extent should human rights be a priority over conflicting goals, including peace, security or the fight against terrorism? More generally, how to maintain the subtle balance between the Convention and duties that are extraneous to it. In the case of the UN, the dilemma is even more challenging as the clash is between a (regional) ‘constitutional’ framework[75] aiming to protect fundamental human rights and another ‘constitutional’ framework[76] that aims at maintaining peace and security at the global level.[77] As the author of this note has argued elsewhere, this dilemma is translated into a quandary regarding the model of systemic integration the Court wishes to pursue when its regime intersects with other areas and systems of international law.[78] Tests like the equivalent protection one and the criteria it contains have been created by the Court as a means to allow it to place its practice within two extremes.
One extreme may be termed ‘static systemic integration’. In that case, the Court places its regime (ie the ECHR) into the broader environment of international law in a way that does not challenge ‘orthodoxy’, pre-established (informal constitutional) structures and (both de jure and de facto) hierarchies. Bosphorus, and Behrami and Saramati are such cases. The ECtHR clearly abstained from challenging the UN system. It gave it a carte blanche, recognised its authority and (both legal and political) gravitas, and consciously self-restrained its own powers and the reach of the ECHR to prioritise the goals pursued by the UN policies even if these were raising serious questions of compatibility with fundamental human rights.
The other extreme may be called ‘dynamic systemic integration’. Priority is given to human rights (thus, to the ECHR regime), which invite(s) other players in the system (including the UN) to change. This is what the Court has done in Nada, when it indirectly reviewed UN-stemming rules, and this is what both the C and GC did in Al-Dulimi when they applied proportionality as a means to prioritise the ECHR and concluded that, given the circumstances of the case, it was not necessary to limit the rights enshrined in the Convention.  Allegedly, this way the Court is harmoniously integrating the ECHR in the broader system of international law.[79] This is a tactful way for the Court to present its decision to proceed with scrutiny. References made to the idea of harmonious integration could be seen as a ‘euphemism’, ie a friendlier and more diplomatic way for the Court to say that it prioritises its own regime against the UNSC system.[80] In cases like Al-Dulimi and Nada, the ECHR develops its effects, whereas UN-stemming law is being read as if it does not contradict the ECHR. Consequently, the UN-stemming rules are prohibited from developing effects beyond the point allowed by the ECHR. With equivalent protection, the Court invites international organisations to develop mechanisms of human rights scrutiny.[81] As long as (implying Solange[82]) they do not do so, the ECtHR, but also the national courts of the ECHR parties shall be free to control the compatibility of rules stemming from international organisations with human rights and misapply them to the extent dictated by human rights law. The UNSC is invited to consider human rights and employ clear language.[83] Otherwise, its practice is presumed to be compatible with human rights, ie develop obligations that do not require states to violate human rights. Judgments like Al-Dulimi by both the C and the GC tend towards the dynamic systemic integration end of the continuum. They position human rights in an informal constitutional ‘throne’ that conditions the conduct of all other players in the broader system of international law.[84] Their practice and conduct needs to be aligned with human rights. By prioritising human rights, courts such as the ECtHR set a (constitutional) threshold that actors (including the UN) need to reach. This way, the ECHR is integrated in the system in a way that invites its elements and actors to change towards the direction of acquiring features that will allow them to meet the (constitutional) threshold of human rights law.
Irrespective of whether one likes the particular criteria contained in the tests of equivalent protection and clear clash of norms, these tests are necessary and useful in that they give the ‘tone’ in terms of systemic integration, co-ordination and co-existence between different areas, regimes and actors of international law that pursue wide-ranging aims and values. The employment of these tests enables the Court to self-restrain its powers (opting for static systemic integration) or proceed with scrutiny (possibly leading to evolutive systemic integration). One might erroneously think that this is achieved through Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT).[85] Scholarship and the ILC alike have assigned that provision a new role as an anti-fragmentation tool.[86] However, valuable as it may be, Article 31(3)(c) is of very limited usefulness in the case of conflict of norms (the term being used here lato sensu, ie not only corresponding to what the Court considers real conflicts).[87] Its function is limited to bringing the conflicting rules in ‘contact’, ie allowing the ECtHR to open the windows of the Palais des droits de l’homme and let extraneous to the ECHR rules get into its normative environment. Yet, after employing Article 31(3)(c), as the Court does in Al-Dulimi,[88] conflicting rules remain… conflicting. This means that the Court must employ other tools and techniques to solve conflicts.[89]
The Court enjoys discretion in that respect, exactly as it enjoys discretion in establishing the criteria for self-restraining its powers. The argument suggested in this note is that the weight of human rights law allows the ECtHR to legitimately raise the ECHR to the same rank as the UN-stemming rules, ie treat the two sets of obligations, namely the ECHR and the UN-stemming ones, as parallel. If the Court wished it, it could apply full scrutiny (through proportionality) in case also of a clear conflict between the ECHR and UN-stemming rules and treat its Convention (that establishes erga omnes partes rules, many of which correspond to international customary law) as being of an equally high standing as the obligations stemming from the Charter in the sense that both types of obligations – the former because of its humanistic purpose and erga omnes (partes) metal, and the latter because of Article 103 –, require priority in their fulfilment. Proportionality would be applicable in that case as a means to establish occasional (ie ad hoc) priorities in the light of the circumstances of each case. It goes without saying that treating the two sets of obligations as parallel involves a value judgment regarding the weight of the goals pursued through human rights and UN law. This is where the question of how the ECtHR wishes to integrate/place its regime into the broader system of international law comes into place.


5. Instead of a conclusion: What if…

The GC’s judgment in Al-Dulimi sets the tone and (partially) reveals how the ECtHR wishes to approach UN law. Unless there is a clear normative clash, the acts of the UNSC will be submitted to the scrutiny of the Court and will only be permitted to produce effects to the extent allowed by human rights law. Yet, there are also things Al-Dulimi remains silent on. We shall wait to see what is meant by a clear clash, how inflated the presumption of consistency will be, if (because of Article 103) priority will be given to the UN system in case of clear normative conflict and what the Court will do with all other international organisations, including the EU. We shall also await and see what future (if any) the test of equivalent protection will have. More generally, we shall wait to see how the ECtHR will continue placing its regime in comparison with other areas of international law and how it will contribute to the shaping of a new constitutional landscape – especially when different areas of (‘constitutional’) international law collide.
What should not escape our attention is that, as such, Article 103 of the UN Charter is not binding on the ECtHR. Article 31(3)(c) VCLT enables the Court to take it into account when it interprets the ECHR, but, formally speaking, Article 103 only binds UN member states. It is principally through their practice that it produces effects (when, for instance, national courts prioritise UN-stemming obligations) and acquires its shape and dimensions.[90] Yet, this only concerns states non-parties to the ECHR. Within that instrument’s system, the tone is given by the ECtHR, which sets the criteria and standards ECHR state parties are expected to comply with when they give effect to UN-stemming law that raises concerns from the perspective of the ECHR. Admittedly, the exercise of (indirect) judicial control over the acts of the UNSC is associated with dangers. As the author of this note has argued, ‘[i]f Europeans can subject international law to their “constitutional” values, then what is to stop the national courts of any dictatorship or democracy of our fragmented world feeling equally free to review UNSC practice on the basis of their “special” laws, values, culture and interests?’[91] However, with Al-Dulimi we might be moving from one extreme (ie everyone being entitled to review UNSC acts) to the other. If the way this note reads Al-Dulimi is correct, no European national court shall be allowed to review UN-stemming law when this clearly clashes with the ECHR. Because of the (highly inflated) presumption of consistency, clashes will be rare. However, when they occur, UN law shall automatically prevail, without ever being weighed against human rights law. After all, Mr Kadi might not have killed Article 103.[92]Al-Dulimi is limiting the ambit of Article 103 (because of the presumption of the absence of normative clash), but possibly also resurrecting it (in cases of clear clash of obligations).
Behind the presumption of normative consistency (and the consequences this has regarding the exercise of scrutiny) lies the idea that the UNSC shares the values of human rights and is willing to avoid normative clashes. Yet, what (silently) underpins that perception is another presumption, namely that the UNSC is a trust-worthy, reasonable political player who acts in good faith and is ready to tolerate (international human rights) courts conditioning the effectiveness of its policies to prioritise human rights protection. What if the ECtHR is wrong? What if the UNSC is not interested in engaging in that type of dialogue with judges and courts? Imagine if the UNSC introduces in its future resolutions a clause containing clear language that forbids the national courts of UN member states to (indirectly) scrutinise UN-stemming law. To be consistent with what Al-Dulimi seems to suggest, because of the existence of a clear normative conflict, the ECtHR should abstain from exercising scrutiny. Wouldn’t that lead to a vacuum in human rights protection? Unless the Court decided to elevate (as this note suggests) the ECHR to the same level as UN law and balance the conflicting obligations in the light of the particular circumstances of each case before it. Alternatively, the Court could envisage piercing the institutional veil of the UNSC to hold the ECHR state parties that are members of the UNSC accountable for their failure to prevent the UNSC from causing a normative conflict that undermines human rights law. Of course, none of this might be necessary. The UNSC might prove to be a reliable partner who shares the preoccupations of the ECtHR and wishes to engage in a meaningful dialogue leading to harmony and balance between peace and security, and human rights. Mutatis mutandis, the ECtHR might prove to be right in its strategy vis-à-vis the UNSC and the tone it gives in terms of systemic integration. But what if it is wrong? The quality of laws is tested when bad scenarios become reality. Good laws are the laws that produce effects under adverse conditions. The same applies with tests, presumptions and standards conditioning the exercise of scrutiny. Is Al-Dulimi a good judgment?



[1]Al-Dulimi and Montana Management Inc v Switzerland App no 5809/08 (ECtHR (GC), 21 June 2016).

[2]Al-Dulimi and Montana Management Inc v Switzerland App no 5809/08 (ECtHR (C), 26 November 2013).

[3]Al-Dulimi (GC, n 1) para 81.

[4]Al-Dulimi (GC, n 1) refers in para 145 to the constitutional nature of the ECHR as an instrument of European public order. This is associated with the idea of specialty, ie human rights being a special regime of international law. By specialty is not meant that the Convention is a self-contained regime. On special or self-contained regimes of international law see ILC, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission on the Work of its 58th Session’ (1 May–9 June 2006 and 3 July–11 August 2006) UN Doc A/CN.4/L.682, 65 and following and, especially regarding human rights, 85-87. The conclusions reached by the ILC are that the ECHR is not a self-contained regime as it is often interpreted in the light of general international law. Human rights owe their special nature to their object and purpose. Specialty translates in recognising human rights as a particular type of obligations that are owed erga omnes (partes). The ECtHR has recognised since its early days that dimension of specialty: ‘Unlike international treaties of the classical kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”’, Ireland v United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 239.

[5] Among other, Waite and Kennedy v Germany App no 26083/94 (ECtHR (GC), 18 February 1999) para 67; Beer and Regan v Germany App no. 28934/95 (ECtHR (GC), 18 February 1999) para 57; Matthews v United Kingdom App no 24833/94 (ECtHR (GC), 18 February 1999) para 32; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland App no 45036/98, (ECtHR (GC), 30 June 2005) paras 153-154; Gasparini v Italy and Belgium, App no 10750/03 (ECtHR, 12 May 2009); Michaud v France App no 12323/11 (ECtHR, 6 December 2012) para 102.

[6] For instance, M&Co v Germany App no 13258/87 (European Commission of Human Rights, 09 February 1990) and ECtHR, Bosphorus (n 5) para 154 and Nada v Switzerland App no 10593/08 (ECtHR (GC), 12 September 2012) para 170.

[7] For instance, Bosphorus (n 5) para 154.

[8] Moreover, states have a duty to act in good faith when creating or joining an international organisation and determine whether the standards of human rights protection within the organisation are not in a flagrant contradiction with the ECHR (Gasparini, n 5). This may be read as establishing a duty of means/duty diligence.

[9] For instance, Bosphorus (n 5) para 150.

[10] The test of equivalent protection has been introduced with Bosphorus (n 5). See especially paras 155-156. See also M&Co (n 6) which may be seen as a prelude to equivalent protection.

[11] ibid para 156.

[12] ibid.

[13] ibid.

[14] ibid para 157 and more clearly in a number of other cases, like MSS v Belgium and Greece App no 30696/09 (ECtHR (GC), 21 January 2011) paras 338-340, Al-Jedda v United Kingdom App no 27021/08 (ECtHR(GC), 7 July 2011) para 109 (not referring to discretion, but to the absence of conflict between the ECHR and UNSC resolutions), Michaud (n 5) paras 103 and 113, and Nada (n 6) para 180 (using the term latitude).

[15]Bosphorus (n 5) paras 154-155.

[16] VP Tzevelekos, ‘When Elephants Fight it is the Grass that Suffers: “Hegemonic Struggle” in Europe and its Side-Effects for International Law’ in K Dzehtsiarou et al (eds), Human Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and the ECHR (Routledge 2014) 9-34, 10 (fn 7).

[17] Among others, N Lavranos, ‘Towards a Solange-method between international courts and tribunals’ in Y Shany, T Broude (eds), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity. Essays in honour of Ruth Lapidoth (Hart 2008) 217-235.

[18] On the CJEU and judicial dialogue, among others, A Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2007) 1 J European L Studies 1.

[19]Among others, N Lavranos, ‘The SolangeMethod as a Tool for Regulating Competing Jurisdictions Among International Courts and Tribunals’ (2008) 30 Loyola of Los Angeles Intl Comparative L Rev, 314-334.

[20]Bosphorus (n 5). See also (n 10).

[21] Tzevelekos (n 16).

[22]Matthews (n 5).

[23]MSS (n 14) and Michaud (n 5).

[24] But see M&Co (n 6) where the European Commission of Human Rights refrained from holding the state responsible for conduct linked to the EU legal order as it offered human rights protection.

[25]Behrami and Behrami v France App no 71412/01 and Saramati v France and Germany App no 78166/01 (ECtHR (GC), 2 May 2007). See also Stitchting Mothers of Srebenica and Others v The Netherlands App no 65542/12 (ECtHR, 11 June 2013). The Court held that ‘since operations established by United Nations Security Council resolutions under Chapter VII of the United Nations Charter are fundamental to the mission of the United Nations 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 United Nations. To bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in this field, including with the effective conduct of its operations’ (para 154). However, Mothers of Srebrenica differs from Behrami and Saramati in the sense that the question of attribution of the conduct at issue (alleged failure to protect from the 1995 Srebrenica massacre) was excluded from the scope of the case (para 137). The case concerned access to justice before the national courts of the respondent conflicting with immunity granted to the UN. The Court confirmed previous case by concluding that civil claims cannot override immunities. For a critical discussion of the early stance of the ECtHR (and the CJEU) vis-à-vis the UNSC see, among others, P De Sena, MC Vitucci, ‘The European Courts and the Security Council: Between Dédoublement Fonctionnel and Balancing of Values’ (2009) 20 European J Intl L 193. See also the interesting dialogue between the two authors and G de Búrca, A Nollkaemper and I Canor who commented on the paper (in the same vol, 853-887).

[26]Behrami and Saramati (n 25) para 144.

[27] ibid paras 148-151.

[28] ibid para 148.

[29] ibid para 149.

[30] ibid para 151.

[31] Tzevelekos (n 16) 17-20.

[32] ibid 25.

[33] Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ECR I-6351.

[34] Tzevelekos (n 16) 24.

[35]Al-Dulimi (C, n 2) paras 111-122. The test of equivalent protection has also been applied against NATO. See Gasparini (n 5).

[36]Al-Jedda (n 14) and Nada (n 2).

[37]Al-Dulimi (C, n 2) especially paras 117-121. On the application of the test of equivalent protection by the C in Al-Dulimi, see M Marchegiani, ‘Le principe de la protection équivalente dans l’articulation des rapports entre ordre juridique des NU et CEDH après l’arrêt Al-Dulimi’ (2014) 6 Questions Intl L 3.

[38]Al-Dulimi (C, n 2) para 135.

[39] ibid para 117.

[40] ibid para 113.

[41] ibid paras 113 and 117 and Nada (n 6) paras 175-180.

[42] For a comparison between equivalent protection and the presumption of consistency, see S Hollenberg, ‘The Diverging Approaches of the European Court of Human Rights in the Cases of Nada and Al-Dulimi’ (2015) 64 ICLQ 445, 448-454.

[43]Al-Jedda (n 14) paras 102 and 109.

[44]Nada (n 6) paras 171-172, where the Court refers verbatim to Al-Jedda and holds that the presumption of absence of conflicts is rebutted in Nada, because of ‘the clear and explicit language [in the UNSC resolution], imposing an obligation to take measures capable of breaching human rights’ (para 172). Yet, that position was then mitigated, when the Court, after examining inter alia the text of the UNSC resolutions at issue, concluded that the respondent ‘enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the relevant binding resolutions of the United Nations Security Council’ (para 180).

[45] Harmonious interpretation is briefly discussed in Part 4 of the note. The ILC holds that there is a generally accepted principle of harmonisation, according to which ‘when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations.’ Conclusion 4, ILC, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) UN Doc A/61/10, para 251. See also, ILC, UN Doc A/CN.4/L.682 (n 4) 25-28.

[46]Al-Dulimi (GC, n 1) paras 137 and following.

[47] ibid para 143.

[48] ibid para 146.

[49] Judge Nussberger starts her dissenting opinion in Al-Dulimi (GC) with the following statement: ‘In the present case the majority of the Grand Chamber have tried to resolve a conflict by denying its very existence’. She holds that the respondent state was faced with mutually exclusive obligations. According to Judge Kūris (para 1, concurring opinion in Al-Dulimi, GC) the respondent state did not dispose of any latitude. From her side, Judge Keller argues that the Court ‘has stretched the possibilities of a harmonised interpretation beyond the plain text and the general understanding of the relevant Security Council Resolution’ (para 4 of concurring opinion in Al-Dulimi, GC) and that this is a case ‘in which there is no room for compliance with both the ECHR and the UN Charter’ (para 8 of the opinion).

[50]Al-Dulimi (GC, n 1) para 148.

[51] ibid para 149.

[52] Art 103 of the UN Charter reads: ‘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 ILC has interpreted the term ‘prevails’ as meaning that priority shall be given to the conflicting rules, which remain however valid. ILC, UN Doc A/CN.4/L.682 (n 4) 168-181, especially 193, paras 333-334. Thus, a (non-jus cogens) rule conflicting with obligations stemming from the UN Charter becomes inapplicable to the extent that a conflict exists (ILC (n 45) Conclusion no 41(b)). On varied approaches in Europe vis-à-vis UNSC resolutions (enjoying the effects of art 103) that raise concerns from the perspective of human rights, see I Kushtrim, ‘The Application of Article 103 of the United Nations Charter in the European Courts: The Quest for Regime Compatibility on Fundamental Rights’ (2012/13) 5 European J L Studies 81.

[53] ibid.

[54] ibid para 141.

[55] See (nn 14, 43 and 44).

[56]Al-Dulimi (GC, n 1) para 140.

[57] See Arcari, who argues that a conflict between obligations stemming from the UNSC and the ECtHR will arise when states are left with no discretion at all. M Arcari, ‘UN Security Council Resolutions before the European Court of Human Rights: Exploring Alternative Approaches for the Solution of Normative Conflicts’, in P Acconci et al (eds), International Law and the Protection of Humanity. Essays in Honor of Flavia Lattanzi (Brill 2017) 24-37, 32.

[58] ILC, UN Doc A/CN.4/L.682 (n 4) 181-192, especially 181-182 and 190 referring to the non-derogable and absolute nature of jus cogens.

[59] As Arcari argues referring to the equivalent protection test, ‘[o]ne may however doubt that the same presumption or preliminary question can overshadow the existence of a normative conflict, the hierarchical or quasi-hierarchical relationship existing between the involved norms and, more importantly, the application of the appropriate rule intended to settle such a conflict (ie, Article 103 of the UN Charter).’ M Arcari, ‘Forgetting Article 103 of the UN Charter? Some Perplexities on ‘Equivalent Protection’ After Al-Dulimi’ (2014) 6 Questions Intl L 31, 35-36.

[60] Indeed, the GC, ‘emphasise[s] that one of the basic elements of the current system of international law is constituted by Article 103 of the UN Charter, which asserts the primacy, in the event of conflict, of the obligations deriving from the Charter over any other obligation arising from an international agreement, regardless of whether the latter was concluded before or after the UN Charter or was purely a regional arrangement’. Al-Dulimi (GC, n 1) para 135.  See also para 149, explaining that the absence of a real conflict makes it ‘unnecessary […] to determine the question of […] hierarchy’ and the concurring opinion in Al-Dulimi (GC) by Judge Sicilianos, who very openly explains that the UN, because of Art 103, cannot be treated by the Court as all other organisations (para 7 of the opinion). According to Judge Sicilianos, ‘when it comes to the implementation of the Security Council’s economic sanctions by non-members of the EU, such as Switzerland, there are two sides to the equation: either there is no real conflict of obligations for the respondent State, as the Court has found in the present case, in which case the equivalent protection test does not even come into play […]; or there is a conflict of obligations, but then it will be governed by Article 103 of the UN Charter. In both cases – and tertium non datur – the equivalent protection test is inapplicable to a situation such as the present’ (para 8 of the opinion).

[61] On the definition of conflict, ILC, UN Doc A/CN.4/L.682 (n 4) 17-20. See also the very thorough monograph by J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CUP 2003) that defines conflict and suggests a typology of conflicts.  

[62] See (n 49).

[63] See (n 52).

[64] ILC, UN Doc A/CN.4/L.682 (n 4) 193-206, especially 193, para 380, where the ILC holds that ‘[t]he erga omnes nature of an obligation […] indicates no clear superiority of that obligation over other obligations. Although in practice norms recognized as having an erga omnes validity set up undoubtedly important obligations, this importance does not translate into a hierarchical superiority similar to that of Article 103 and jus cogens.’

[65] For instance, the ILC suggests that ‘[t]he relationship between the lex specialis maxim and other norms of interpretation or conflict solution cannot be determined in a general way. Which consideration should be predominant – ie whether it is the speciality or the time of emergence of the norm – should be decided contextually.’ ILC (n 45) Conclusion 6.

[66] Scholarship on these conflict resolution tools is vast. For the purposes of this note, suffice it to refer to the ILC report and conclusions on the fragmentation of international law. On lex specialis, see ILC, UN Doc A/CN.4/L.682 (n 4) 30-62 and (n 45) Conclusions 5-10, and especially Conclusion 5, providing that ‘whenever two or more norms deal with the same subject matter, priority should be given to the norm that is more specific’ [emphasis added]. Regarding lex posterior, see ILC, UN Doc A/CN.4/L.682 (n 4) 115-166 and (n 45) Conclusions 24-29. See also the text of Art 30 of the 1969 Vienna Convention on the Law of Treaties that limits lex posterior to treaties relating to the same subject matter and establishes a number of preconditions for it to apply.

[67] ILC norms on state responsibility (‘Articles on Responsibility of States for Internationally Wrongful Acts’, UN Doc A/56/83, 3 August 2001) art 48. See also ILC, UN Doc A/CN.4/L.682 (n 4) 193-206, especially 197, para 389, where the ILC explains the procedural dimension of the effects developed by obligations erga omnes (partes).

[68] For instance, in his seminal work E Roucounas (‘Engagements parallèles et contradictoires’ (1987) 206 Recueil des Cours de l’Académie de Droit International 62 and 64-65) argues that erga omnes obligations develop structural supremacy and places that class of obligations next to jus cogens and Art 103 of the Charter. On the other hand, as already explained (n 64 and n 67) the ILC sees obligations erga omnes as not developing any sort of supremacy. The thesis maintained by the author of the note is that, although, prima facie, it is difficult for bilateral(isable) obligations to allow two or more states to diverge from obligations they owe to the entire international community, because human rights that are not jus cogens can be limited, priority in their fulfilment can only be occasional, once they have been balanced against conflicting rules. The primacy of erga omnes (partes) obligations is occasional, stems from interpretation and translates into (occasional) priority in their fulfilment.

[69] VP Tzevelekos, ‘The Use of Article 31(3)(C) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of the Teleology of Human Rights? Between Evolution and Systemic Integration’ (2010) 31 Michigan J Intl L 621, 642-643, VP Tzevelekos, ‘Revisiting the Humanisation of International Law: Limits and Potential. Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation’ (2013) 6 Erasmus L Rev 62, 70-72 and, more briefly, VP Tzevelekos, L Lixinski, ‘Towards a Humanized International “Constitution”?’ (2016) 29 Leiden J Intl L 343, 359-361.

[70] See, for instance, Slivenko v Latvia App no 48321/99 (ECtHR (GC), 9 October 2003) (concerning a conflict between family life and an international treaty on the withdrawal of troops).

[71] See, for instance, Al-Adsani v United Kingdom App no 35763/97 (ECtHR (GC), 21 November 2001) (concerning a conflict between access to justice and state immunity).

[72] Tzevelekos, ‘Revisiting the Humanisation’ (n 69) 70-72.

[73] See the monograph by P Gragl, The Accession of the European Union to the European Convention on Human Rights (Hart 2013). For a collection of essays on the topic, see V Kosta, N Skoutaris, VP Tzevelekos (eds), The EU Accession to the ECHR (Hart 2014).

[74] Opinion C-2/13 (ECJ, 18 December 2014). Among many other comments, see S Douglas-Scott, ‘Opinion 2/13 on EU Accession to the ECHR: a Christmas Bombshell from the European Court of Justice’ UK Constitutional Law Blog (24 December 2014) <https://ukconstitutionallaw.org/2014/12/24/sionaidh-douglas-scott-opinion-213-on-eu-accession-to-the-echr-a-christmas-bombshell-from-the-european-court-of-justice/>; P Gragl, ‘The Reasonableness of Jealousy: Opinion 2/13 and EU Accession to the ECHR’ (2015) European YB Human Rights 27; T Lock, ‘The Future of the European Union’s Accession to the European Convention on Human Rights After Opinion 2/13: Is It Still Possible and Is It Still Desirable?’ (2015) 11 European Constitutional L Rev 239 and S Peers, ‘The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection’ EU Law Analysis (18 December 2014) <http://eulawanalysis.blogspot.co.uk/2014/12/the-cjeu-and-eus-accession-to-echr.html>.

[75] See in that respect the comments made by Judge Pinto de Albuquerque in his concurring opinion in Al-Dulimi (GC, paras 59-60 of the opinion), who goes as far as stating that ‘[i]n the Council of Europe’s own internal hierarchy of norms, United Nations law is equal to any other international agreement and subordinated to the primacy of the Convention as a constitutional instrument of European public order.’ See also (n 4).

[76] See, for instance, B Fassbender, The United Nations as the Constitution of the International Community (Martinoff Nijhoff 2009) and B Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Columbia J Transnational L 529.

[77] Peters describes this dilemma as ‘competing constitutionalisms’.  A Peters, ‘The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi’ EJIL:Talk! (30 June 2016) <www.ejiltalk.org/the-new-arbitrariness-and-competing-constitutionalisms-remarks-on-ecthr-grand-chamber-al-dulimi/>. See also Tzevelekos, ‘When Elephants Fight…’ (n 16) pp. 20 and 29. Cf L Gasbarri, ‘Al-Dulimi and Competing Concepts of International Organizations’ (2016) 1 European Papers 1117. The author argues that ‘[i]t is not a question of constitutionalization or competing constitutionalisms between fundamental instruments of international organizations’ (at 1125).

[78] Tzevelekos, ‘When Elephants Fight…’ (n 16) 26-30 (introducing the idea of the distinction between static and dynamic systemic integration). On systemic integration, in general, see ILC, UN Doc A/CN.4/L.682 (n 4) 206-244 and the monograph by P Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration. Normative Shadows in Plato’s Cave (Brill 2015). For a critical overview of systemic integration within human rights law and the ECHR regime, in particular, see, among others, C Pitea, ‘Interpreting the ECHR in the Light of “Other” International Instruments: Systemic Integration or Fragmentation of Rules on Treaty Interpretation?’ in N Boschiero et al (eds), International Courts and the Development of International Law. Essays in Honous of Tullio Treves (Asser Press 2013) 545-559, A Rachovitsa, ‘Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights’ (2015) 28 Leiden J Intl L 863 and Tzevelekos ‘The Use of Article 31(3)(c)’ (n 69).

[79] See (n 45). See also para 1 of the partly dissenting opinion in Al-Dulimi (GC) by Judge Ziemele, who maintains that ‘conflict of obligations should be avoided through a systemic interpretation and harmonisation of international obligations’ and, primarily, the detailed discussion by Judge Sicilianos in his concurring opinion in Al-Dulimi (GC) paras 9 and following.

[80] Tzevelekos (n 16) 25-26.

[81] See, for instance, Gasparini (n 5).

[82] On equivalent protection and Solange, among others, see the detailed discussion by S Platon, ‘The “Equivalent Protection Test” From European Union to United Nations, from Solange II to Solange I (With Reference to the Al-Dulimi and Montana Management inc. v. Switzerland Judgment of the European Court of Human Rights’ (2014) 10 European Constitutional L Rev 226.

[83] For instance, Al-Jedda (n 14) para 102 and Al-Dulimi (GC, n 1) para 140 (inviting the UNSC to employ clear and explicit language when diverging from human rights law).

[84] Human rights and, in particular, the humanisation of international law play a central role in its constitutionalisation. The literature on human rights, the constitutionalisation of international law and legal pluralism is vast. See Tzevelekos,  Lixinski (n 69), and the scholars to which they refer. For an introduction to the idea of the constitutionalisation of international law, see J Klabbers, A Peters, G Ulfstein, The Constitutionalisation of International Law (OUP 2009). See also N Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010).

[85] Art 31(3)(c) establishes a rule of treaty interpretation requiring interpreters to take into account, together with the context, ‘[a]ny relevant rules of international law applicable in the relations between the parties’. Initially, it was associated with inter-temporality in treaty interpretation, but scholarship and the ILC associated it with the systemic integration method of interpretation. See (n 78) and (n 86).

[86] ILC, UN Doc A/CN.4/L.682 (n 4) 206-244; C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279. See also (n 78).

[87] Tzevelekos ‘The Use of Article 31(3)(c)’ (n 69) 686.

[88]Al-Dulimi (GC, n 1) para 134.

[89] As is argued by Palombella, in cases of the kind, ‘one cannot simply resort to ‘formal’ tools; it can only flow from taking the participant’s point of view in a shared interconnection between diverse international law regimes. It requires bridging the gap that separates the two orders’. G Palombella, ‘The Principled, and Winding, Road to Al-Dulimi. Interpreting the Interpreters’ (2014) 6 Questions Intl L 15, 28. 

[90] Art 31(3)(b) VCLT treats the subsequent practice in the application of a treaty as a criterion for its interpretation.

[91] Tzevelekos (n 16) 29.

[92] As Judge Crawford was delightfully arguing in his poem on Kadi in EJIL: Talk! (29 June 2013) <www.ejiltalk.org/mr-kadi-and-article-103-by-james-crawford-a-poem>.