Can the Security Council Displace Human Rights Treaties? (Al-Jedda, Part 2)

by Tobias Thienel

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?

11 Responses

  1. 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 the solution has to be that Article 103 cannot apply to customary and voluntary law of nations norms on the basis of the plain meaning of the Article’s text and that Article 103 must be construed narrowly when applied to human rights treaty obligations undertaken after the UN Charter coming into force.


    Francisco Forrest Martin

  2. 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 about treaty law made by states seems to me particularly relevant. I don’t really see how the bare notion of human rights in the Charter could give states a title to limit the powers of the Security Council by declaring something to be a human right. The alternative, of course, would be to decide under an autonomous Charter concept what is and what is not a human right, and which treaty provision can therefore be displaced under Art. 103, and which cannot. But how do you do that? What, to repeat a point, is that Charter concept of human rights?

    Remember also that the activity of the Security Council is directed at what the drafters of the Charter perceived as the foremost task for international society. I think that this concern, and the whole of Chapter VII that it spawned, more than any other source of obligations in the Charter explains Article 103. Charter obligations were to supersede all others in the interests of peace and security, which concept surely pervades the Charter more than references to human rights do. Human rights seem to have a role in the concept of peace that the Charter pays homage to, but they are not envisaged as holding back measures designed to keep the peace or restore it.

    You also make a few interesting points on more general treaty law, apart from the human rights issue.

    First, your refer to the preamble of the Charter, and its reference to ‘respect for the obligations arising from treaties’. My reply to that would be along these lines: if the members of the UN can give precedence to the Charter, then that is part and parcel of international law. Respecting international law, you would then have to respect Article 103, and its derogating effect on conflicting treaty obligations, as well.

    But, of course, that is where your second point comes in, namely to show that the members of the could not give precedence to the Charter over obligations owed to non-members.

    I would argue that they could, in effect, have done that, though not without incurring state responsibility for any ensuing failure to comply with obligations owed to non-members.

    To illustrate, let me first make reference to a very different case of the collision of treaty obligations, one entirely without anything like Article 103. That case is Soering v. United Kingdom, the famous judgment by the ECtHR. The upshot of that judgment was, of course, that Mr. Soering could not be extradited to the United States, despite the existence of an extradition treaty. Now let us imagine that the treaty obligation on the UK to extradite was without any relevant exceptions (which I think it was at the time; nowadays, there obviously is a human rights exception). The failure by the UK to extradite would have been in violation of the treaty, but the extradition would have violated the ECHR (in the event, that violation was avoided, by obtaining appropriate assurances from the US authorities). The UK was between a rock and a hard place; failing any way of avoiding either violation (which of course it found), it only had a political choice on which treaty it would prefer to violate.

    That, indeed, is how collisions of treaty obligations work; it is ultimately a consequence of the largely uncoordinated nature of international law, a system of subjective rights held against one another by differing groups of subjects of law. Why, to come back to the example, would the US lose its claim to have Jens Soering extradited, only because the UK had undertaken conflicting obligations vis-à-vis someone else? Conversely, why would Mr. Soering – and the other parties to the ECHR – lose their rights just because of treaty obligations entered into by the UK with someone else?

    If it hadn’t been for Article 103, the situation of conflict between Charter obligations and other conventional obligations would have been just that. UN members would have had a political choice of complying with one of those treaties, but would in either case violate the other. Article 103 enjoins them to exercise their choice in favor of the Charter, and to violate the other treaty. That does not affect the validity of that other treaty, which would be impossible under the pacta tertiis rule. The treaty persists as a source of state responsibility for the breach occasioned by the Charter obligation; only the UN member’s sovereign choice of whether to comply with the treaty has been preempted by Article 103. I don’t think that’s unlawful.

    Neither do I think, incidentally, that it necessarily matters whether the other treaty had been concluded before or after the entry into force of the Charter. After the entry into force of the Charter, it might be arguable that all engagements undertaken by a UN member vis-à-vis a non-member are under the implied reservation that the engagement will not be honored if it conflicts with a Charter obligation. But I find that argument a little unrealistic. If such a reservation does not exist, the situation is as stated above.

    [I have, of course, ignored the possibility that the Charter may by now have become opposable even to non-parties, by virtue of being the constitution of the international community.]

    Any thoughts?

  3. 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 the Council is bound to act in a manner not inconsistent with norms of jus cogens (the Court of First Instance of the European Communities said as much in the Kadi v. Council case). So, what possible arguments could be put forward for the view that the Council is bound by human rights norms beyond those contained in jus cogens norms? Well, the argument would go along these lines. Art. 24(2) of the Charter requires the Council to act in accordance with the purposes and principles of the Charter. Art. 1 lists the purposes of the Charter and these include in Art. 1(3) “promoting and encouraging respect for human rights and fundamental freedoms”. A combination of these provisions suggests that the Council must act in a mannter which in in accordance with human rights norms. Less compellingly, Art. 55 of the Charter states that the UN shall promote universal respect for and observance of human rights and fundamental freedoms. If one accepts the argument that Art 24(2) in combination with Art. 1(3) requires the Council to respect human rights, the question would be what rights. The UN is not itself bound by human rights treaties so one must refer to general, customary, principles of human rights law. However, one ought to be cautious here as human rights law permits States to derogate from some human rights in time of public emergency. Arguably, the Council ought to be permitted a similar latitude. But not withstanding this, some rights are regarded as non-derogable and these do not equate with jus cogens norms.

    Even if one accepts that the Council is bound to comply with some human rights norms, the question arises as to whether a Council decision that violates such a principle is to be regarded as invalid and therefore not creating any binding obligation. The question here is: what is the legal effect of illegal decisions of international organizations (or the SC decisions in particular). Are such decisions void ab initio or are they only voidable, becoming void where some competent authority decides that the decision was illegal or ultra vires? But if one takes the latter view, who would be competent to decide this question? The analysis here is not easy but there is literature and some dicta from case law suggesting that such decisions are void and states are free to depart from it (eg Judge Morelli in Certain Expenses case. I deal with these issues briefly in my Chapter on “International Organizations” in Evans, International Law (2nd ed 2006, OUP).

    If one accepts the analysis above, one may never get to Art. 103 as the key question becomes: does the member have any obligations under the Charter to obey a Security Council decision which violates human rights?

  4. 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 was advanced by Tobias H. Irmscher in his article ‘The Legal Framework for Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation’, German Yearbook of International Law 44 (2001), 353 et seq.)

    More fundamentally, I would accept, as you say, that the question of who could decide such questions is not an easy one. Of course, that question would arise even if you believe a resolution offending human rights standards to be void ab initio, as soon as that submission is made to a court.

    I further suspect that the House of Lords would never have entertained the argument that SC Res. 1546 was invalid. It is one thing for the ICJ to reserve a power of incidental review of SC or other UN action, but another for domestic courts to claim similar powers (aside, perhaps, from any jus cogens issues; Kadi). The justiciability doctrine from Buttes Gas and Oil Co v Hammer [1982] AC 888 might well have resurfaced here, although it would have had to be supported by some form of argument in international law to the effect that the HRA and ECHR analysis did not demand a review of the resolution (consider R (Gentle) v Prime Minister [2006] EWCA Civ 1689, [2007] QB 689, paras. 26-33, 38).

    I should also mention another difficulty in any human rights challenge to the power of detention in SC Res. 1546: that power was expressed in the letter of Secretary of State Powell, to which the authorization by the SC referred, as conditioned by the Geneva Conventions. It is at least arguable that, by reason of this reference, the substance of the relevant provisions of the Geneva Conventions remains applicable to what is now the power of internment deriving from the SC resolution. That power would therefore be under the following conditions:

    Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power

    The very proceedings the outcome of which we are now discussing also show that Mr. Al-Jedda ‘is not being arbitrarily detained in a “legal black hole”, unlike the detainees in Guanatanamo Bay’ (Brooke LJ in the Court of Appeal, para. 108). This is certainly not sufficient to deny a violation of Article 5 ECHR, but it just might be apposite to the human right of liberty in customary international law, particularly if you are right to say that the ambit of that right must take into account the availability of derogations in treaty law (as I think you are).

  5. 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 UK had to avoid the norm conflict was to derogate from Art. 5. That was met with much scepticism, particularly on the part of Lord Bingham. So, what do you think? Is derogation really the only way of resolving this type of norm conflict?

  6. 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 first point of the opinion, but hardly, I would propose, with the second. If and to the extent the Council is not faithful to a minimum protection of human rights, its authority will be affected. That’s why a purposive reading of the Charter should strive to get the SC in line with universally recognized human rights. This is well within a good faith interpretation of the Charter.

    Looking forward to your responses,


  7. 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 applies, methinks, to any other organ established by a multilateral treaty. If the organ had to respect all treaties entered into by its member states, then this would, in any case, expose the treaty organ to the bounce and heft of all the law-making by all the various member states. That strikes me as an impossible position.

    Your second problem has, I think, given rise to a great deal of thought before. I seem to recall, for instance, that Professor Dietrich Schindler has previously identified it: ‘Kriegsrecht und Menschenrechte’, in: Ulrich Häfelin, Walter Haller and Dietrich Schindler (eds.), Menschenrechte, Föderalismus, Demokratie. Festschrift für Werner Kägi, 1979, 323, 336-7. He points out there that Article 15 may not allow derogation from Article 5 if there is only a very limited military operation in which prisoners of war are taken (another application of your problem). He also says, however, that it was inconceivable that the ECHR would prohibit the taking of prisoners of war, especially in an armed conflict with a non-ECHR state that could do so. His conclusion is that the ECHR only appears to give more rights than the Geneva Conventions.

    With respect, the last step in the argument seems to me to skip from the problem to a solution while leaving out the necessary element that is reasoning.

    Still, the problem is compellingly described by Schindler and by yourself. The result, if it is to be acceptable in practical terms, must be that Article 5 ECHR ceases to apply – at least in the restrictive sense that its exhaustive list of reasons for arrest imposes.

    That, it seems to me, cannot be done by inventing anything like a general rule of law, of whatever nature, to the effect that human rights cannot apply in armed conflict where they cannot be reconciled with the lex specialis of armed conflict. The derogation clause particularly of Article 15 ECHR is dead against this. It even acknowledges the existence of the laws of war in referring to ‘deaths resulting from lawful acts of war’, yet does not begin to subordinate the ECHR to that other body of law.

    Nor, of course, where the dicta of the ICJ in Nuclear Weapons, Israeli Wall or Armed Activities directed at any rule external to the human rights treaties that somehow limited their application in times of war. Instead, the Court said this (in the last two cases):

    ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 [ICCPR].’ (My emphasis.) (Israeli Wall, para. 106; Armed Activities, para. 216; para. 25 of Nuclear Weapons is in very similar terms.)

    That, of course, is fairly exactly what Professor Crawford SC told the House (thank you for reporting that). I think it’s also quite true.

    That, of course, raises the question of whether such a course will always be open to a belligerent state. In the ECHR, this raises the first problem of what might constitute a ‘war’ for the purposes of Article 15? Professor Schindler suggested that small scale engagements do not attract Article 15 (see above), so he obviously thought they did not make a ‘war’. That is consonant with the traditional meaning of the term. But could it not be argued, against the background of the inappropriateness of certain ECHR guarantees in the field of application of the law of armed conflict, that ‘war’ in Article 15 should be understood as describing just that field? That may appear to open the way to serious inroads to ECHR rights that are not called for in the context of armed conflict, much less specifically allowed by the law of armed conflict. But let’s not forget that Article 15 also requires derogations to be proportionate. A derogation to allow for the taking of prisoners of war would be proportionate (the law of armed conflict would play a role in the assessment), but a derogation from Article 12 (the right to marry) clearly would not.

    The prohibitions IHL, incidentally, would play a role in limiting any derogations by virtue of the closing part of Article 15(1): ‘provided that such measures are not inconsistent with [the derogating state’s] other obligations under international law.’

    If that argument was not possible, we would be left with the concept of a ‘public emergency threatening the life of the nation’. Lord Bingham and Lord Brown doubted in their speeches whether that could be engaged in the case before them. Lord Bingham said, at para. 38:

    One solution, discussed in argument, is that a state member of the Council of Europe, facing this dilemma, should exercise its power of derogation under article 15 of the Convention, which permits derogation from article 5. However, such power may only be exercised in time of war or other public emergency threatening the life of the nation seeking to derogate, and only then to the extent strictly required by the exigencies of the situation and provided that the measures taken are not inconsistent with the state’s other obligations under international law. It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.

    As I see it, there are two arguments here: a) there can be no ‘public emergency threatening the life of the nation’ if the nation could simply withdraw from the conflict, and b) states have never entered derogations in respect of extraterritorial military engagements.

    The first point I would answer like this: yes, there can. The ‘nation’ is the community in the area to which the Convention applies in any instance. Article 15 merely assumes that states will derogate in respect of crises affecting their ‘nation’ stricto sensu, in their own territory, because that is where the Convention usually applies. But if it applies elsewhere (say, to – constructively – Turkish conduct in Northern Cyprus), surely it would be unfair to exclude any derogation, and apply the Convention immutably?

    Lord Bingham’s second point was that states had never entered derogations in respect of extraterritorial military engagements. So it is. The ECtHR considered this fact as relevant state practice in the interpretation of Article 1 ECHR. I think that’s where it belongs, as disclosing the states’ belief that the Convention didn’t apply anyway.

    Lord Brown made a similar point, saying at para. 150:

    ‘it is highly doubtful whether article 15 could be invoked with regard to action taken outside the member state’s own territory – see, for example, the Grand Chamber’s judgment in Bankovic v Belgium (2001) 11 BHRC 435, para 62: “… the court does not find any basis upon which to accept the applicants’ suggestion that article 15 covers all ‘war’ and ‘public emergency’ situations generally, whether obtaining inside or outside the territory of the contracting state.’

    With respect, I think this is a fairly simple misunderstanding of Bankovic. There, the applicants had, of course, tried to argue that the NATO air raid on Belgrade had put them within the application ratione loci of the Convention. To that end, they referred to Article 15 as applying to all ‘war[s]’ without distinction. This the Court – rightly in my view – denied. It went on to say immediately after the passage quoted by Lord Brown: ‘Indeed, Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.’ Hence, Article 15 does not apply to all ‘war[s]’ of its states parties anywhere, but could only apply where the Convention did by virtue of Article 1. But wherever the Convention does apply, Article 15 applies with it. How could it be any different?

    Does that have the ring of truth to it?

  8. 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 partly to suggest that the question was not one that a domestic court would not very readily take on. I specifically doubt if the House of Lords would have been prepared to do anything of the kind. That’s why, I conjecture, the appellants did not raise the point. (Either that, or the reference to Art. 78 GC IV in the SC authorization made a finding of a violation of the customary human right unlikely.)

    Thank you also for your reference to the latest stage of Kadi. I will have to look at that later, I’m afraid.

  9. 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 obligations under the Kiel canal regime, and its customary obligations of neutrality.

    Anyway, I’ve also just read the Advocate General’s opinion in Kadi which Andreas mentioned, and it’s a blast. One really has got to appreciate the whole dualism redux thing that EU lawyers have got going right now – just take a look at how many times he asserts that the EU legal order is autonomous from public international law. He even adds a few choice quotes from Judge Barak’s Targeted Killings judgment. Fascinating stuff, really.

  10. 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 Jedda, was not discussed in any detail by their Lordships. However, it was considered by the Court of Appeal. In summary, the SC resolution was only relevant because the Court held that the ECHR rights incorporated into English law by the Human Rights Act are those convention rights which have effect for the UK for the time being. In other words, only those rights that may be vindicated in Strasbourg before the ECtHR are incorporated into English law. So, the underlying argument was that because international law accords priority to SC resolutions (through Art. 103 of the UN Charter), the ECHR right was inapplicable as a matter of international law – and therefore as a matter of English law. Well, if the argument was put that as a matter of international law, the SC resolution was void and of no effect, then it ought to follow that ECHR right was still applicable. This is a question which the court would have had to decide because the application of the ECHR as a matter of international law (and consequently as a matter of English law) depends on it. I don’t think principles of non-justiciability would have barred consideration of this question. But that’s a rather complicated area.

    Marko asks what the situation would be if there was no Security Council resolution and it was a question of a conflict between GCIV and the ECHR. So the issue is one concerning the relationship between international humanitarian law and human rights law. The key question here is whether the UK could have relied on a more permissive provision in GCIV to avoid a stricter obligation in the ECHR. I agree that the lex specialis principle trumpeted by the ICJ in a couple of cases where similar issues have arisen (Nuclear Weapons &Israeli Wall Advisory Opinions) doesn’t resolve the issue. If one accepts that, absent a derogation, human rights treaties apply in armed conflicts (and the wording of the derogations clauses makes this argument irresistable) then it appears to me to be difficult to come up with an argument that says that the HR treaty should not apply. The lex specialis argument for importing IHL into a human rights treaty works well when the HR treaty has a window through which the importation can be done – eg the word “arbitrary”, or the limitations clause. Where there is no such window, one wonders how one can come to the conclusion that an obligation that a State undertook by treaty and which is acknowledged to be applicable in an armed conflict simply does not operate.

  11. 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 seems also to speak in favor of a re-interpretation of the Charter in the sense of holding the SC against the (rather general) hr standards in the Charter. It’s by no way a perfect or incontestable point, Tobias, but it does not claim to be. But it preserves hr and the principles of the Charter while avoiding the posturing of the AG.

    If the ECJ follows suit, the result will be a great mess.The alternative would be to give the European SC members the breathing space for changing the SC procedures by arguing that this is not only what the ECJ demands, but what the Charter itself requires.

    Best, Andreas

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