TO: Clive Baldwin, Senior Legal Advisor

memo:

TO: Clive Baldwin, Senior Legal Advisor

Human Rights Watch

Sarah Perkins, Director

International Human Rights Program

Faculty of Law, University of Toronto

Nehal Bhuta, Assistant Professor

Faculty of Law, University of Toronto

FROM: Tony Navaneelan, J.D. candidate

Faculty of Law, University of Toronto

DATE: April, 2009

RE: Is the United Nations Security Council (UNSC), in the exercising of its powers under Chapters VI and VII of the Charter of the United Nations, bound by international human rights law and/or any other legal constraint which may be conducive to the protection of human rights norms?

STRUCTURE OF THE MEMO:

1. SUMMARY OF FINDINGS

2. CHAPTER VI OF THE UN CHARTER

3. CHAPTER VII OF THE UN CHARTER

4. PROPORTIONALITY, NECESSITY AND HUMAN RIGHTS

5. JUS COGENS LIMITATIONS ON THE UN CHARTER AND THE

SECURITY COUNCIL

1. SUMMARY OF FINDINGS:

THEORIES OF APPLICABILITY:

There are three principal theories through which human rights law limitations can be imposed on the United Nations Security Council (UNSC). The leading theory sources limitations in the provisions of the Charter establishing the powers of the UNSC. This theory identifies textual limits and conditions precedent on the exercise of such powers in the Charter and resorts to jus cogens norms to read-in further limits. The other two theories focus on the human rights law obligations of UN Member-States qua States. These theories argue that either (i) States cannot delegate to the UN the power to derogate from their human rights obligations where they could not do so themselves; or (2) States cannot vote for a UNSC resolution which violates human rights law since it would be contrary to their existing international law obligations.

CHAPTER VI OF THE UN CHARTER:

There is complete agreement that, when operating under Chapter VI of the Charter, the UNSC is not authorized to depart from “the principles of justice and international law,” including international human rights law. This conclusion, however, is strictly limited to UNSC action under Chapter VI and does not extend to UNSC action under Chapter VII.

CHAPTER VII OF THE UN CHARTER :

There is large agreement that when acting under Chapter VII of the Charter, the UNSC’s authority is not constrained by conventional international law, including international human rights treaty law. There is little to no agreement whether the UNSC’s authority, when operating under Chapter VII, is also unconstrained by international customary law.

PROPORTIONALITY, NECESSITY AND HUMAN RIGHTS:

There is some agreement that the UNSC should always be presumed to act in accordance with international human rights law and that under Chapter VII it may only authorize action that violates international human rights law if it is in accordance with the principles of necessity and proportionality.

JUS COGENS LIMITATIONS ON THE UN CHARTER AND THE

SECURITY COUNCIL:

There is complete consensus amongst treaty interpretation, judicial doctrine, and the writings of academic commentators that neither the Charter of the United Nations, nor any of the powers of the UNSC established therein, permit departures from jus cogens norms. Resolutions of the UNSC which are contrary to jus cogens norms are ultra vires and void.

2. CHAPTER VI OF THE UN CHARTER:

Chapter VI of the Charter of the United Nations is entitled ‘Pacific Settlement of Disputes’ and sets out the powers of the UNSC with respect to such functions.

Conclusion: There is complete agreement that, when operating under Chapter VI of the Charter, the UNSC is not authorized to depart from “the principles of justice and international law,” including international human rights law. This conclusion, however, is strictly limited to UNSC action under Chapter VI and does not, as discussed in the section to follow, extend to UNSC action under Chapter VII.

I. TEXTUAL LIMITATIONS WITHIN CHAPTER VI:

There are few, if any, textual references in Chapter VI of the Charter through which to source a human rights law limitation to the authority of the UNSC. Indeed, most of the provisions contained therein grant broad discretionary power to “recommend appropriate procedures or methods of adjustment” (Article 36(1)) or to “recommend such terms of settlement as it may consider appropriate” (Article 37(2)). Nonetheless, despite the absence of any explicit limiting language in the Chapter itself, the authority of the UNSC under this Chapter is sharply curtailed by international law.

II. TEXTUAL LIMITATIONS OUTSIDE OF CHAPTER VI:

i. ARTICLE 24(2): “act in accordance with the Purposes and Principles of the UN”

Conclusion: Articles 1(1) and 24(2) of the Charter, when read in together, limit the authority of the UNSC when acting under Chapter VI, requiring it to act in “conformity with the principles of justice and international law.”

Courts and commentators have underscored that the operation of Article 24(2) of the Charter, when cross-referenced with the Article 1 and 2 (Purposes and Principles of the United Nations), serves to make “the principles of justice and international law” a substantive limit on the UNSC’s Chapter VI authority. Article 24(2) places a general limit on the broad authority granted to the UNSC under the Charter. That provision states that:

In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII.

In other words, the UNSC may not exercise any of its powers under the Charter in a manner contrary to the Purposes and Principles of the United Nations, as set out in Articles 1 and 2 of the Charter.

a. Does Article 24(2) actually impose limitations on the authority of the UNSC?:

Conclusion: Yes, Article 24(2) of the Charter imposes a substantive limit on the UNSC authority under Chapters VI, VII, VIII and XII of the Charter

The importance of Article 24(2), and the binding and limiting effect it has on the powers of the UNSC, was underscored by Judge Weeramantry (in dissent) in the Lockerbie case before the International Court of Justice:

But does this mean that the Security Council discharges its variegated functions free of all limitations, or is there a circumscribing boundary of norms or principles within which its responsibilities are to be discharged? Article 24 itself offers us an immediate signpost to such a circumscribing boundary when it provides in Article 24 (2) that the Security Council, in discharging its duties under Article 24 (l), "shall act in accordance with the Purposes and Principles of the United Nations". The duty is imperative and the limits are categorically stated. The Preamble stresses inter alia the determination of the peoples of the United Nations to establish conditions under which respect for the obligations arising from treaties and other sources of international law can be maintained.[1] [Emphasis added]

Likewise, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has also affirmed that Article 24(2) provides a substantive legal limit on the authority of the UNSC. In Prosecutor v. Dusko Tadic a.k.a Dule, the Appeals stated:

It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations "confer on the Security Council primary responsibility for the maintenance of international peace and security", imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph 2, that:

"In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII." (Id., Art. 24(2).)

The Charter thus speaks the language of specific powers, not of absolute fiat.[2]

b. What is the combined effect of the phrase “in conformity with the principles of justice and international law” in Article 1(1) of the Charter¸ and Article 24(2), on the UNSC Chapter VI powers?

Conclusion: The effect of the phrase “in conformity with the principles of justice and international law” in Article 1(1) of the Charter, when read together with Article 24(2) is to deny any authority to the UNSC, when acting under Chapter VI, to act contrary to international law.

In the context of the exercise of Chapter VI powers, the most relevant of the ‘Purposes and Principles of United Nations’ listed in the Charter is Article 1(1), which states that:

The Purposes of the United Nations are:

1.  To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or others breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which lead to a breach of the peace.

[…] [Emphasis added]

a. Plain and Ordinary Meaning:

It is clear from a plain and ordinary reading of Article 1(1) that, when acting by peaceful means to resolve international disputes, the United Nations must act in conformity with the “principles of justice and international law.” According to Bruno Simma, “[w]ith this, the discretionary powers of the organs concerned [including the UNSC] are narrowed to a considerable extent.”[3] The effect of the conditional language of Article 24(2) is to transplant this principled purpose into a de jure limitation on the powers of the UNSC under Chapter VI. In particular, it circumscribes the authority of the UNSC to settle (under Article 37(2) of Chapter VI) or adjust (Article 36(1) of Chapter VI) international disputes by peaceful means, requiring it to exercise such authority in conformity with the “principles of justice and international law.”

b. . Travaux Préparatoires:[4]

Article 32 of the Vienna Convention on the Law of Treaties allows States to make reference to the preparatory materials of a treaty to determine its meaning where the normal procedures set out in Article 31 have led to ambiguity or absurdity.

The preparatory materials make it clear that the invocation in Article 1(1) of the Charter that the United Nations settle or adjust international disputes only in conformity with the principles of justice and international law was an intentional and robust limitation placed on the organization by the States who negotiated the text. By virtue of Article 24(2), mentioned above, this is a strong indication that drafters of the Charter also meant to impose similar limitations on the UNSC when acting under Chapter VI.

The initial draft text of what was to become the Charter was negotiated at the Dumbarton Oaks Conference (officially known as the ‘Washington Conversations on International Peace and Security Organization’) in 1944. That text, entitled Proposals for the Establishment of a General International Organization, included, at Article 1(1), the purposes of the proposed organization. Most of the language in this provision would survive subsequent renegotiations and become Article 1(1) of the Charter. Of particular relevance, however, is that Article 1(1) of the Dumbarton Oaks text made no mention of international law or the principles of justice, stating instead that:

The purposes of the Organization should be:

1. To maintain international peace and security; and to that end to take effective collective measures for the prevention and removal of threats to the peace and the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means adjustment or settlement of international disputes which may lead to a breach of the peace;

At the United Nations Conference on International Organization in 1945 (UNCIO – better known as the ‘San Francisco Conference), where the final text of the Charter of the United Nations was negotiated, several States took exception to Article 1(1) of the Dumbarton Oaks text.[5] After concern was raised that the text afforded too much power for the Organization to depart from international law, several states, including Chile, the Netherlands, Ecuador, Greece and Iran, advocated for limiting language akin to the “principles of justice and international law” to be added to the text.[6]

The US, UK, USSR and Republic of China responded to these objections by proposing a reference to the principle of justice and international law that would have been less forceful and explicit than that which is currently found in Article 1(1) of the Charter. Their proposed amendment would have tasked the Organization to “bring about by peaceful means, and with due regard for principles of justice and international law, adjustment or settlement of international disputes which may lead to a breach of the peace.”[7] Such vague language proved unacceptable to other States who “insisted upon shifting the emphasis from a peace settlement of disputes on the basis of political considerations to one based instead on considerations of international law and justice.”[8] As such, the final negotiated text of Article 1(1) employs much stronger, mandatory language, tasking the Organization to “bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which lead to a breach of the peace” [emphasis added].