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  UKHL 58,  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?