Monday, February 4, 2008

The Security Council and Human Rights

I wanted to flag a couple of interesting posts from over at Opinio Juris a short while ago, dealing with the recent (December 07) judgment from the UK House of Lords in R (Al-Jedda) v Secretary of State for Defence. This case, which concerned almost exclusively international law, dealt with the issue of whether the detention of the appellant - a dual British and Iraqi national - by British forces in Iraq, on the basis of "imperative reasons of security" (the Court notes that "[t]he appellant has not been charged with any offence, and no charge or trial is in prospect") constituted a violation of Article 5(1) of the European Convention on Human Rights (the right to liberty and security of person).

This case raises a number of interesting points, many of which are of real relevance to the field of global administrative law. Here, I want to note just two:

1) Firstly - and incredibly - the Court had to consider a claim by the Secretary of State that under international law the detention of the appellant was attributable not to the British Government, but rather to the United Nations. This was based on the claim that, given that the UN Security Council had accorded to the "multinational force" "the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq" in its Resolution 1546/2004 (amongst others), it thus had assumed "effective control" over the actions of the British and US forces in the country. The legal authority for this claim was drawn entirely from the contentious recent European Court of Human Rights decision in Behrami and Behrami v. France, which decided - on the basis of a disappointingly superficial discussion of the complex international law doctrine on attributability, and a questionable movement from a standard of "effective control" to one of "ultimate control" - that the UN itself was responsible for UNMIK and KFOR activities in Kosovo, not individual states carrying them out, and that the ECHR could not thus be applied.

Thankfully, the House of Lords rejected this argument, distinguishing the facts of the Al-Jedda case from those in Behrami - although, as the interesting discussion following the Opinio Juris posts makes clear, whether there were in fact important and legally relevant differences between the cases is at best an open question. In this regard, that the UK Government was able to claim at all that the UN was responsible for its actions in Iraq seems more a testament to the poorness of the ECtHR's judgment in Behrami than it is an accurate description of the nature of the legal or factual situation in Iraq. If the Office of Legal Affairs at the UN were said to have been angered by the decision in Behrami, one can only imagine their rage at being told they were now also responsible for UK/US actions in Iraq...

2) Neverthless, the House of Lords upheld the decisions of the previous courts, finding that, although the action was attributable to the UK itself under international law, the authorisation to act to preserve security in Iraq contained in several Security Council Resolutions meant that the ECHR was not applicable, as a result of the superiority of UN obligations over all conflicting treaties provided for in Art. 103 of the UN Charter. In the Court's own words, the key questions were whether "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)".

The Court held that "obligations" under Art. 103 included those generated by Security Council Resolutions, and that, in the present case at least, it also covered "authorizations" to act. In particular, Lord Bingham argued that

... there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee's rights under article 5 are not infringed to any greater extent than is inherent in such detention.

(It is perhaps worth noting that this conclusion - the grounds on which the appeal was rejected - cannot but appear, from some perspectives at least, profoundly question-begging. Lord Bingham began his judgment with the observation that "these allegations [of terrorist activity in Iraq] are roundly denied by the appellant, and they have not been tested in any proceedings. Nor is their correctness an issue in these proceedings. The House must therefore resolve the legal issues falling for decision on the assumption that the allegations are true, without forming any judgment whether they are or not". The fact that the Court could not evaluate the substance of the allegations against the appellant meant that it was impossible for it to decide whether or not the detention had in fact been "necessary for imperative reasons of security" - the only condition that would authorise it under UN resolutions and thus evade ECHR applicability. Instead, it was compelled to assume that this was the case, which appears in effect to result in carte blanche for UK forces to detain more or less at will in Iraq - even where such detention is not in itself legal).

Article 103 thus means that obligations on states stemming from Security Council Resolutions are not subject to the provisions of the ECHR or, by extension, any other human rights treaties (excepting, perhaps, those provisions that reflect norms of jus cogens). What is the relevance of this for global administrative law? Simply that, where the Security Council, acting as an administrative body, passes a resolution that places obligations on states to act such actions are essentially unbound by human rights obligations.

Perhaps the clearest - and most currently contentious - example of this type of activity is the UN Security Council's 1267 Committee, responsible for compiling a list of all those suspected of supporting terrorism, against whom the Security Council then obliges states to take a range of measures, including freezing of all assets. If the House of Lords got it right in Al-Jedda, those hoping that measures implementing the Security Council's findings - a result of a process that affords no hearing, fair or otherwise, to those it affects - would be found to violate human rights law and thus invalidated will be disappointed.

All eyes now turn to the European Court of Justice, which is currently considering precisely these issues in the Kadi case, and which will go a very long way to settling the issue once and for all. The opinion of the Advocate General in this case was published in mid-January of this year; I'll post on that in more detail later in the week...

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