At last week’s ASIL meeting there was a panel on whether the United Nations Security Council is bound by human rights law. The panelists (Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Linos-Alexander Sicilianos, University of Athens & Gráinne de Búrca, Fordham University School of Law) discussed cases such as the Kadi decision of the European Court of Justice, Al Jedda (House of Lords), Sayadi (Human Rights Committee and Behrami (European Court of Human Rights). These cases have been the subject of posts on this blog (for Kadi, see here and here, for Sayadi, see here and for Behrami, see here). One of the things that strikes me about much of this discussion is the use made of Article 103 of the UN Charter. That article provides that:
In the event of 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.
Of the four decisions mentioned above, only the Al Jedda decision discusses and applies Art. 103. According to Lord Bingham,
The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1) [of the European Convention on Human Rights]. (para. 26)
The House of Lords held that the Security Council authorisation to detain the appellant did indeed bring Art. 103 into play (on the theory that Art. 103 also extends to authorisations) and that rights under the ECHR were qualified to the extent that they conflicted with that authorisation. Some have criticised the ECJ in Kadi and the Human Rights Committee in Sayadi for not evening mentioning Art. 103 and for failing to take the Al Jedda approaching (for some more discussion of this issue see here and here).
However, the role of Art. 103 is often overplayed in these debates concerning the conflicts between Security Council obligations and human rights law. There are 2 overlapping questions here: (i) Is the Security Council bound by human rights norms when it acts (eg in combatting terrorism, imposing sanctions or in authorising action in peacekeeping or peace enforment)?; (ii) are States bound to apply Security Council decisions that may conflict with the human rights obligations of those States?. Art. 103 does not and cannot answer the first question. Art. 103 should not be regarded as the starting point in answering the second question. Furthermore one may not even reach Art. 103 in answering that latter question. Read the rest of this entry…