16 Jan Can the Security Council Displace Human Rights Treaties? (Al-Jedda, Part 2)
I explained on Monday how the House of Lords in R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58, [2008] 2 WLR 31, came to decide that the Multinational Force in Iraq was not acting for the UN. But that holding alone did not put paid to the respondent’s arguments drawn from SC Res. 1546. The Secretary of State’s main submission, which had been successful in both the High Court and the Court of Appeal below, was that the authorization of the Security Council displaced, or was not subject to, the limitations on the power to detain that Article 5 of the European Convention on Human Rights (ECHR) would normally impose. This would have been because the authorization of the Security Council overrode the ECHR by virtue of Article 103 of the UN Charter, which provides as follows: ‘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.’
That submission was upheld, and Mr. Al-Jedda lost his case. The House accepted, first, that the term ‘obligations … under the present Charter’ in Article 103 encompassed Article 25 of the Charter, i.e. all obligations following from binding resolutions of the Security Council (paras. 35, 117, 151; the ICJ had said as much in Lockerbie, (1992) ICJ Reports 3, at 15). It also agreed that Article 103 applied not only to ‘obligations’ under the Charter, but also to authorizations by the Security Council; this was accepted on the strength of supporting state practice and academic opinion (paras. 33, 115, 117, 125, 135). Finally, the House of Lords accepted that Article 103 of the Charter applied to all conflicting treaty obligations; there was no exception for human rights treaties (paras. 35, 125; see also paras. 115 et seq. and 135). Thus, Mr. Al-Jedda did not succeed on the interpretation of the relevant Charter provisions.
It is not a very pleasant conclusion to say that the Security Council can ride roughshod over human rights treaties, but I think it is correct as a matter of Charter law. In the first place, it is hardly contestable that the reference in Article 103 to ‘obligations … under the present Charter’ includes those under Article 25, which article refers for the content of such obligations to any binding Security Council resolutions. I also see little to support the argument that human rights treaties are somehow a breed apart from any other treaties, and that states can, by concluding a human rights treaty, limit their obligations under the Charter or prevent them from taking priority under Article 103.
The only truly difficult conclusion of the House of Lords seems to be that Article 103 extends to authorizations, as opposed to the ‘obligations’ that it actually refers to: if the Security Council merely authorizes a state to do something, presumably it retains full discretion to do it or not, and there is no conflict between the authorization and any treaty provision purporting to outlaw the authorized conduct.
But the distinction between a resolution requiring a state to do something, and one allowing a state to do it, can be exaggerated; in this case, I think it is. Generally, where the Security Council authorizes action that may then be taken by any state, it does not hurt the objectives of the Council if one state refuses to do so (or to take part in such action). That kind of thing happens all the time, if usually for political reasons, not because of conflicting treaty obligations.
But if the Council authorizes an existing power (in Southern Iraq, the UK) to take measures for the maintenance of international peace and security, there will be an expectation that such measures are then taken if the occasion arises (i.e., in our case, that someone presenting a security threat will be detained if necessary). If that power (the UK) then cannot and does not do so, the objectives of the Security Council’s authorization will have been frustrated. After all, why would the Security Council authorize the UK to detain people if the UK’s treaty obligations then prevent it from ever doing so? Why, indeed, would the Security Council be able, under Article 39 of the Charter, to give such an authorization if that can have no effect whatsoever on the relevant threat to the peace?
The effectiveness of the Chapter VII system would therefore suggest that Article 103 ought to apply to authorizations by the Security Council as much as it does to obligations imposed by the Council. Accordingly, if a human rights treaty would ordinarily prevent a state from carrying out action authorized by the Security Council, the treaty will have to give way to the authorization to the extent of the collision between the two (see Al-Jedda, paras. 39, 126, 129, 136). This means, in our case, that Mr. Al-Jedda’s detention as such cannot be unlawful under the ECHR; but this does not entail that paragraphs 2, 4 and 5 of Article 5 are also inapplicable. Mr. Al-Jedda does, therefore, have a right to be informed of the reasons for his arrest (para. 2), to bring proceedings to test the legality of his arrest (para. 4), and to claim compensation for any unlawful detention (para. 5). Until now, the legality of his detention has been only partially tested (for instance, there has been no review of the factual basis), so there may be more litigation to come (see Al-Jedda, para. 129).
As for the substance of such a challenge, it also appears that some form of proportionality test must have survived the qualification of the human right by the Security Council. That test would come from Article 5(1) ECHR, and cannot have been displaced by the Security Council’s authorization, the very terms of which only provide for ‘internment where this is necessary’ (my emphasis). Baroness Hale (at para. 128) points to a serious problem for the Government in this regard: rather than detain Mr. Al-Jedda in Iraq, the British authorities there could simply return him to the UK, of which he is a citizen. Keeping him under lock and key cannot be necessary to maintain security in Iraq, bearing in mind that alternative.
Of course, a very different way of taking care of the conflict between the ECHR and the power to detain might have been for the UK to enter a derogation under Article 15 ECHR, the emergency clause of the Convention. Counsel for Mr. Al-Jedda had suggested as much. In that case, there would presumably have been no need for the Security Council to displace the ECHR, as no conflict would likely have arisen [the following argument is fully transferable to Article 4 ICCPR]:
To be sure, even if there had been a derogation, any measures taken by the UK would still have had to be proportionate in the context of the relevant ‘public emergency’ (Article 15(1) ECHR). But similar rules apply to the powers of the Security Council under the Charter: it can only take or authorize action if that action contributes to the maintenance of international peace and security (in ECHR terms, to the amelioration of the ‘public emergency’). It is therefore likely (and arguably to be presumed) that the measures envisaged by the Security Council will be proportionate.
But the fact remains that the UK had not entered any such derogation. There was, accordingly, a conflict between Article 5 ECHR and SC Res. 1546, which had to be resolved in favor of the Security Council. Also, if the measures approved by the Council should turn out not to have been proportionate in the sense of Article 15 ECHR, the derogation would merely have delayed the point at which the precedence of SC Res. 1546 bites. Mr. Al-Jedda would not have had any more rights than he does at present.
[Lord Bingham and Lord Brown nevertheless said that no derogation was even available to the UK in respect of a public emergency outside its territory: paras. 38, 150. I think that’s wrong, but do not need to burden this post with any further comment.]
Of course, none of all this can arise if the basic rights of the citizen are enshrined in a Bill of Rights in domestic law, which in domestic law outranks the UN Charter, and which applies abroad. In such a case, Mr. Al-Jedda’s right to be released could not be displaced by the Security Council (although there might then be problems in international law).
So the lesson is this: do not trust international human rights treaties.
Or is it?
Tobias, Thanks for these interesting comments. I’ve been concerned with the application of Article 103 to international human rights legal protections since the Kosovo intervention. At that time, I argued that Article 103 did not apply to customary and voluntary law of nations norms — a fortiori in case of international human rights legal guarantees reflecting jus cogens — because Article 103 addresses only conventional law of nations obligations. Indeed, would it not conflict with the UN Charter’s object and purpose “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” (UN Charter, preamble) and to “promot[e] and encourag[e] respect for human rights” (UN Charter, art. 1(3)) if one were to construe Article 103 to allow for the violations of these international human rights legal norms? Furthermore, it is not clear to me how states — as a matter of treaty law — lawfully could have become parties to the UN Charter if they had pre-existing international legal obligations (conventional or otherwise) with other states that had not (or still have not) become parties to the UN Charter when these obligations conflicted with Article 103. I think… Read more »
Francisco, Interesting thoughts, thank you. I’m not quite sure what you mean by ‘voluntary law of nations norms’, so I’m afraid I can express no opinion on that part of your argument. I completely agree that the Security Council is bound by, and so cannot overrule, norms of jus cogens. That category of norms outranks the Charter, so the Charter cannot empower the Council to act in defiance of such norms. I’m not sure, however, that the invocations of the idea of human rights in the Charter can really be used to impose limits on the exercise by the Security Council of its sweeping powers under Chapter VII, over and above the limits set by jus cogens. They do, I think, provide good reasons to interpret Security Council resolutions cautiously where they could otherwise cause violations of human rights, but I can find no provision in the Charter that would allow the undefined concept of human rights to act as a break on the powers of the Security Council. But that, I feel, isn’t really asking the right questions. If we are talking about the effect of Security Council action on human rights treaties, the fact that we are talking… Read more »
Tobias, I don’t think its obvious that the answer to the question whether the Security Council can displace human rights treaties is to be found in Art. 103 of the UN Charter. As you note, Art. 103 states that obligations of members under the Charter are to prevail over their obligations under other treaties. For this Article to be engaged, it is essential to show that members have a relevant obligation under the Charter. There is an argument to be made that, in certain cases, where a Security Council resolution is inconsistent with human rights norms, that resolution is ultra vires the Council and void. If that is the case, such a resolution does not create any obligations under the Charter and therefore Art. 103 does not apply. In order to sustain such an argument one would have to address a couple of questions: (i) to what extent is the Security Council bound to act in compliance with human rights norms, i.e are those norms a substantive limit on the powers of the Council? (ii) What are the legal effects of a Council decision where the Council acts beyond its powers? With regard to question (i) many would agree that… Read more »
Dapo, Thank you for your comment. I quite agree that there is an argument to be made along the lines you point out. While I’m not sure if I would, in the end, join your analysis (if it is a concluded view), I readily acknowledge that Article 24(2) gives it some credence. That said, I don’t find it utterly compelling. There could be a grammatical argument, for instance, that the Principle of ‘promoting and encouraging respect for human rights’ doesn’t necessarily entail unfailing respect for human rights by the UN itself, particularly if there are other Purposes (notably, ‘[t]o maintain international peace and security’) that may be said to come in conflict with the entitlements of persons affected by measures under Chapter VII. Mind you, this argument may be countered by the more general point that it would be difficult to accept the UN as promoting human rights if it does not, as it were, put its money where its mouth is, and respects such rights in its own action. That clearly goes to the credibility of the UN, and may – I suspect, not in the technical sense – found an argument of estoppel. (I believe a similar argument… Read more »
Tobias and Dapo, Great discussion. Let me join in with a hypo – assume that SC Res. 1546 is valid, and assume that – for whatever reason – Art. 103 of the Charter is out of the picture. Then you would have a conflict between a valid SC resolution and a valid treaty. What then? Or, if we rewind time a bit to the period before Res 1546 was passed, when Iraq was still under belligerent occupation. The power to inter civilians then existed under the Fourth Geneva Convention, which Tobias has cited. Yet, the ECHR still applied to those persons within UK’s jurisdiction, including any detainees. However, unlike Art. 9(1) ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Art. 5(1) ECHR sets a bright line rule, which does not allow for internment on solely preventative grounds, under any circumstances. What then? You simply can’t resolve this conflict between GC IV and the ECHR via lex specialis etc., as Art. 5(1) is as specific as it could possibly be. This question was in fact asked of Professor Crawford by one of the Law Lords during the oral arguments. Crawford’s response was basically that the only option the… Read more »
Dear all, Great discussion, indeed. Unfortunately, these doctrinal questions seem to be interesting for Europeans only. Tobias, your point regarding the human rights restrictions on the Security Council seem to me a little bit too narrow. Article 24, para. 2 sentence 1 explicitly requires the SC to act in accordance with the Purposes and Principles of the Charter, i.e. Articles 1 and 2, including human rights. Article 25 conditions the obligation of member states to accept and carry out SC decisions on their “accordance with the present Charter”, probably including Articles 24, para. 2; 1, and 2. That does not make hr treaties binding on the SC, but those hr that are customary law or general principles. For example, I would argue that the right to a hearing belongs to those principles, and is violated by the current anti-terror listing procedures. This leads me to my main argument. Yesterday, the EU Advocate General argued, in the Kadi case before the European Court of Justice, that the EU/EC is not bound by Article 103 UNC and that the listing procedure is contrary to European human rights. Thus, the European regulation implementing them is null and void. One may argue with the… Read more »
Thank you, Marko. As for your hypo, wouldn’t the situation in that case (i.e. in a conflict of treaty obligations vis-à-vis different states, and in the absence of any considerations of jus cogens or Art. 103) be as I outlined above by reference to Soering v. UK, in my reply to Francisco F. Martin? That is to say, wouldn’t both treaty obligations remain intact, with the state having, in fact, a political choice on which treaty it prefers to violate, while definitely having to violate one of the treaties, without any excuse? Or is there any argument that the Security Council couldn’t require a state to contravene another treaty if there was no Article 103? Such a limitation on the SC’s power could only, it seems to me, derive from the Charter, and particularly from the reference in the preamble to ‘respect for the obligations arising from treaties’ that Francisco has cited. However, I find that much too frail a peg on which to hang the subordination in law of the Security Council to the various treaty obligations that UN members enter into. True, this is very much a hypothetical scenario, since Article 103 does exist. But the same argument… Read more »
A postscript: another possibility would be to apply Article 5 ECHR as if it was Article 9 ICCPR. The ECtHR has rightly said that the object and purpose of Article 5 was to prevent arbitrary detention. I think it has also applied the article as saying only that, in some abduction cases. Unfortunately, I don’t have the time to check that now. That will have to wait. On the point made by Andreas Paulus: I wouldn’t commit to the view that the SC is legibus solutus as far as human rights are concerned. That would be a very unpleasant conclusion for all the reasons given by Francisco and Dapo, and one that wouldn’t really fit into modern international law. I just don’t find the Charter argument completely beyond doubt. As I suggested above, ‘promoting and encouraging respect for human rights’ is something that can be done even if the Security Council does not unfailingly show such respect itself. But that is a strictly grammatical point, very probably displaced by the further consideration that the SC couldn’t honestly and plausibly do its job of ‘promoting … human rights’ if it flouted them every so often. I expressed certain doubts on this… Read more »
Tobias, Thanks for your latest comments, with which I agree entirely, particularly in regard of derogations. My first hypo was actually based on the applicant’s argument in Al Jedda that the SC Res in question did not oblige the UK to do anything, but merely authorized it, and that therefore Art. 103 was inapplicable. Of course, as you’ve said, the House rejected this argument, but if it did not, it would still have two equally valid norms before it – a UNSC resolution and the ECHR – and it would either have had to reconcile them somehow, or it would have to had given precedence to one or another. I do agree with you that in principle there are norm conflicts which are unresolvable, as in your Soering example. Many scholars today seem to view the principle of systemic integration as a sort of a magic bullet which can always produce a coherent resolution to a conflict of norms. I don’t think that’s true, as states are clearly perfectly capable of assuming two (equally valid) contradictory obligations. Indeed, the very first case before the PCIJ, the SS Wimbledon, had as its background an unresolvable norm conflict – that of Germany’s… Read more »
Tobias suggests that it is unlikely that a domestic court will decide on the validity of Security Council resolution. Of course, whether this is so depends on the particular domestic court. It also depends on how the the question arises before the court. The decision of the Court of First Instance of the European Communities in Kadi shows precisely how the issue of the validity of a Security Council resolution may arise before a domestic court and also shows that domestic courts may well be inclined to decide the question. Though the EC courts are in a sense international, for some purposes, the EC courts are more akin to domestic courts. When EC courts decide on the implementation of Security Council resolutions they perform a function that is similar to that which may be performed by domestic courts. In considering whether the English courts could have decided on the legality of the Security Council resolution, were the issue raised, it is important to remember how the SC resolution came to be relevant as a matter of English law. This is a question which, as far as I can tell from a quick reading of the House of Lords decision Al… Read more »
Thanks again, Dapo, Marko, Tobias, for your great postings. Three preliminary points on the Advocate General: The truly magic word for him seems to be ‘constitution’, eg the idea that the EC treaties construing a constitution, the EC is not bound by PIL and thus can ignore Article 103 UNC. Of course, this reading is a quite extraordinary exercise in Begriffsjurisprudenz, in particular after the rejection of the constitutional treaty. In addition, the AG’s solution contradicts the EC treaty itself. Article 307 preserves treaties in force at the time of concluding the EC treaty, including Article 103 UNC. Does the AG really believe that it would be good for the EC to apply Aricle 307 only to the member States rather than allowing the EC to respect pre-existing international law? This would allow member States to put their own implementing legislation of the SC resolution in the place of the Community’s. Finally, it appears to me that the only way to deal with conflicts between different legal orders is by trying to find accommodation and bridging the divide, eg interpreting the different legal orders in a parallel fashion if possible. That’s the opposite of what the AG has done. This… Read more »