{"id":1812,"date":"2018-07-14T20:32:30","date_gmt":"2018-07-15T00:32:30","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/hrj\/?p=1812"},"modified":"2020-06-06T17:24:39","modified_gmt":"2020-06-06T21:24:39","slug":"harmonious-interpretation-meets-the-un-charter-the-derogation-presumption","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/hrj\/2018\/07\/harmonious-interpretation-meets-the-un-charter-the-derogation-presumption\/","title":{"rendered":"Harmonious Interpretation Meets the UN Charter: The Derogation Presumption"},"content":{"rendered":"

by Secil Bilgic<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Article 103 of the United Nations Charter<\/a> (Charter) stipulates the supremacy of obligations stemming from the Charter over other international obligations. Since the United Nations (UN) Member States are obliged to \u2018accept and carry out<\/a>\u2019 binding decisions of the Security Council (Council), the Council\u2019s Chapter VII Resolutions (Resolutions) enjoy<\/a> this supremacy as well. However, when Resolutions generate a norm conflict with international human rights law (IHRL), courts employ \u2018avoidance techniques<\/a>\u2019 that enable them not<\/a> to implement<\/a> this supremacy. Thus, the question remains as to which norm prevails if an obligation set out in a Resolution conflicts with the norms of IHRL, a question that has been heatedly<\/a> discussed<\/a> within<\/a> the context<\/a> of the European Convention on Human Rights (Convention or ECHR). \u00a0It is to addressing this problematique<\/em> within the ECHR context that this post seeks to contribute.<\/p>\n

 <\/p>\n

Engaged with a potential norm conflict between the Convention and a Resolution, the European Court of Human Rights (Court or ECtHR) employs two different doctrines that give precedence to the Convention. However, these doctrines raise questions<\/a> as to whether they conform<\/a> to the absolute hierarchy specified by Article 103 of the Charter. Thus, in this blog-post, I will first analyse the ECtHR\u2019s Bosphorus<\/em> and harmonious interpretation doctrines and explain why they are not ideal in terms of resolving norm conflicts between the Resolutions and the Convention. Then, I will propose a derogation presumption<\/em> that not only resolves both genuine and apparent norm conflicts but also respects the hierarchy imposed by Article 103 of the Charter.<\/p>\n

 <\/p>\n

ECtHR\u2019s Doctrines to Resolve Norm Conflicts <\/u><\/strong><\/p>\n

\u00a0<\/u><\/strong><\/p>\n

Hitherto there have been two methods that the ECtHR has employed<\/a> to solve norm conflicts between Resolutions and the Convention: (i) the Bosphorus<\/em> presumption, where the Court examines \u2018the objective feature\u2019 of the UN sanctions regime and (ii) harmonious interpretation, where it looks at the Security Council\u2019s \u2018intention\u2019.<\/p>\n

 <\/p>\n

The case of Bosphorus v Ireland<\/em><\/a> concerned the implementation of Resolution 820, which ordered the Member States to impound all aircraft in their territories from the Federal Republic of Yugoslavia. To fulfil the requirements of Resolution 820, the European Community (EC) transposed that Resolution into its legal order by adopting EC Regulation 990\/93. The applicant, a Turkish company named Bosphorus, maintained that the impoundment of its aircraft amounted to a violation of its right to property. The respondent state, Ireland, argued that it was merely enforcing a binding regulation of the EC, in which it had no discretion of its own. To reconcile the binding nature of the EC regulation and the applicant\u2019s right to property, the ECtHR established the Bosphorus<\/em> presumption. According to this doctrine, the Court presumes the states parties\u2019 compliance with the Convention provided that (i) the state party was merely implementing its obligations deriving from that international organization and (ii) the regime in question (EC in that case) offers equivalent protection of the Convention rights.<\/p>\n

 <\/p>\n

While some authors praised the Bosphorus<\/em> doctrine as a human rights-oriented perspective \u2018based on the balancing of the interests at stake\u2019, others questioned<\/a> its applicability in the absence of an EU legislation. In this regard, Milanovic famously argued<\/a> that \u2018if there truly is a (quasi-)hierarchical relationship between two norms, the lower-ranked norm by definition cannot set any conditions on the application of the higher-ranked norm, even if that condition is the equivalent protection of human rights.\u2019 The Court seemed to agree with Milanovic, as it did not apply the Bosphorus<\/em> doctrine in the succeeding Nada<\/em> and Al-Jedda<\/em> cases. However, it was Al-Dulimi,<\/em> the most recent case regarding the application of Article 103 of the Charter, that marked the lines between the Bosphorus<\/em> and harmonious interpretation doctrines.<\/p>\n

 <\/p>\n

Al-Dulimi v Switzerland<\/em><\/a> concerned Resolution 1483, which prescribed the Member States to freeze the assets of those people listed by the Sanctions Committee \u2018without delay\u2019<\/em> so as to \u2018immediately\u2019<\/em> transfer those assets to the Development Fund for Iraq. The applicant, Al-Dulimi, whose assets were confiscated by Switzerland, a UN Member State, in the course of carrying out this Resolution, argued that his right to judicial review had been violated.<\/p>\n

 <\/p>\n

While the Chamber attempted to solve the norm conflict in Al-Dulimi<\/em> by adopting the Bosphorus<\/em> presumption, the Grand Chamber reversed the Chamber\u2019s ruling and instead applied the harmonious interpretation doctrine it had established in Al-Jedda<\/em>. Although the Court did not provide an explanation for the inapplicability of the Bosphorus<\/em> doctrine, the Grand Chamber\u2019s reversal implicitly affirmed that, unless there is an EC regulation adopted to implement the norm-conflicting Resolution, the harmonious interpretation doctrine, rather than the Bosphorus<\/em> presumption, solves<\/a> the norm conflicts between the Resolutions and the Convention.<\/p>\n

 <\/p>\n

Pursuant to the harmonious interpretation doctrine, unless the Resolutions explicitly<\/em> state otherwise, the ECtHR presumes that the Council \u2018does not intend to<\/em>\u2019 contradict with IHRL. Thus, while interpreting a Resolution, the Court chooses \u2018the interpretation which is most in harmony\u2019 with the Convention. Consequently, despite the use of words such as \u2018without delay\u2019 and \u2018immediately\u2019, the Court accepted that Resolution 1483 allowed domestic judicial review of the listing decisions.<\/p>\n

 <\/p>\n

Can There Be Too Much Harmony?<\/u><\/strong><\/p>\n

\u00a0<\/u><\/strong><\/p>\n

In light of the Resolution\u2019s reasonably \u2018explicit\u2019 wording, most commentators<\/a> agreed<\/a> that the harmony that the Court sought and implemented in Al-Dulimi<\/em> was too loose. In the Court\u2019s defence, as they circumvent<\/a> the application of the UN Charter\u2019s supremacy principle, these doctrines are \u2018human rights-friendly\u2019 implementations. Charged with the duty to protect human rights, the Court naturally hesitates to give the Security Council a carte blanche<\/em> in the interpretation of IHRL. Nonetheless, for three reasons, I concur with other scholars in submitting that the ECtHR\u2019s doctrines are problematic.<\/p>\n

 <\/p>\n

First and foremost, the Court hitherto has not answered the fundamental question of whether a Resolution would prevail over the Convention if it were to explicitly\/expressly<\/em> conflict with the Convention. The harmonious interpretation doctrine effectively resolves apparent conflicts, i.e. situations in which two norms are at first glance contradictory but \u2018the conflict between the two can be avoided<\/a>, most often by interpretative means.\u2019 However, interpretative methods are futile in terms of resolving genuine norm conflicts, i.e. situations in which the Resolution expressly<\/em> contradicts IHRL. Unfortunately, the Court has not explained which doctrine, if any, would be employed if a Resolution were to explicitly contradict the Convention. Although some scholars have argued that the Court\u2019s silence on this question was due to an implicit acknowledgment of the Charter\u2019s supremacy in cases of genuine norm conflicts, the ambiguity leaves room for manoeuvre in future cases.<\/p>\n

 <\/p>\n

Second, the scope of the Court\u2019s harmonious interpretation practice remains unpredictable. Aiming to harmoniously interpret the Resolutions in question, the ECtHR takes considerable interpretative liberty and often comes to conclusions that are not supported by the text or the apparent purpose of the Resolutions. Indeed, the Court\u2019s capacious interpretation of the terms \u2018freeze without delay\u2019 and \u2018immediately transfer\u2019 in Al-Dulimi,<\/em> allowing for review of arbitrariness by national courts before freezing or transferring the assets of the people in question, came as a surprise<\/a> even for some ECtHR judges. To highlight the counter-intuitiveness of such an interpretation, Judge Nussberger stated in her dissenting opinion that the Court was employing a \u201cfake harmonious interpretation.\u201d<\/p>\n

\u00a0<\/strong><\/p>\n

Third, the ambit of the harmonious interpretation doctrine still remains unclear. \u00a0In Al-Dulimi<\/em>, the Chamber employed the Bosphorus<\/em> doctrine, which requires the Court to examine whether the colliding regime offers equivalent protection of rights. The Grand Chamber, however, refused to apply the Bosphorus<\/em> presumption and opted for harmonious interpretation. Nonetheless, the Grand Chamber still conducted a comparative assessment of the protection provided by the UN sanctions regime and the ECHR, which extensively conflated the Bosphorus<\/em> and harmonious interpretation doctrines.<\/p>\n

 <\/p>\n

A Win-Win Solution: Derogation Presumption\u00a0 <\/u><\/strong><\/p>\n

To surmount the challenges posed by harmonious interpretation, some scholars take a blunter approach to evaluating Resolutions that are inconsistent with IHRL. Through a systematic interpretation of Articles 1(3), 24(2) and 55 (c) of the Charter, they argue<\/a> that the Council\u2019s capacity to adopt Resolutions is bounded by IHRL.<\/p>\n

 <\/p>\n

Indeed, the Security Council does have IHRL obligations. The introduction of an independent Ombudsperson empowered to provide quasi-judicial review of the Sanction Committee\u2019s listing decisions and the consequent expansion of the Ombudsperson\u2019s competences for delisting certain individuals and entities from the targeted sanctions list, as well as the reduction of the Sanctions Committee\u2019s power to alter the Ombudsperson\u2019s decisions, demonstrate that the Council is, at a minimum, aware of its duty to respect and promote IHRL. Hence, many<\/a> authors<\/a> argue that the Resolutions that are inconsistent with IHRL lose their binding nature as they are ultra vires<\/em>.<\/p>\n

 <\/p>\n

Admittedly, this approach is quite helpful when Resolutions explicitly conflict with IHRL. However, it labels every<\/em> Resolution conflicting with IHRL as ultra vires<\/em> without considering the possibility of derogation, a remedy available to those bound by IHRL. To overcome this shortcoming, I propose to employ a derogation presumption<\/em> to resolve norm conflicts.<\/p>\n

 <\/p>\n

A derogation<\/a> is a \u201ccomplete or partial elimination of an international obligation\u201d in times of emergency. If states can derogate from IHRL to safeguard domestic<\/a> security, I argue that the Council should enjoy the same latitude to safeguard international peace and security. \u00a0<\/em>Since the Council does not intend<\/em> to exceed its capacity, and since derogation enables the Council to remain within that capacity, if a Resolution generates norm conflict, I argue to presume that the Council has derogated from its IHRL obligations. Accordingly, to determine whether a Resolution is ultra vires<\/em>, one must examine whether the Council\u2019s presumed derogation is lawful.<\/p>\n

\u00a0<\/em><\/p>\n

Assessing the lawfulness of the Council\u2019s derogation requires the Court to determine the sources of the Security Council\u2019s human rights obligations and the applicable derogation conditions deriving from those sources. A suggested source for the Council\u2019s IHRL obligations is the instruments<\/a> adopted within the UN, as they are \u201can elaboration of the rights provided for in the Charter.\u201d As the rights envisaged by the Convention largely overlap with those rights set out by the International Covenant on Civil and Political Rights (ICCPR<\/a>), an examination by the Court of whether the Council\u2019s presumed derogation is lawful under the ICCPR would likely be sufficient. That is, if an applicant argues that her right to fair trial has been violated due to the targeted sanctions mechanism, the Court would analyse the derogation criteria of the ICCPR, since the Council has an obligation to respect the right to fair<\/em> trial <\/em>under Articles 14 and 15 of the ICCPR.<\/p>\n

 <\/p>\n

Pursuant to Article 4 of the ICCPR, for a lawful derogation, there should<\/a> be (i) a public emergency threatening the life of the nation, and the State party must (ii) notify other States parties and (iii) respect non-derogable rights. Moreover, the measures taken must be (iv) proportional, (v) non-discriminative, and (vi) consistent with other international obligations. By definition, the Resolutions fulfil the first two conditions. That is, the Council\u2019s Chapter VII mandate is applicable when and only when there is a public emergency threatening the life of all nations<\/em>, which satisfies the first condition. Furthermore, the Resolutions adopted to address that threat are publicly accessible, which satisfies the second condition. Thus, to determine the lawfulness of the Council\u2019s derogation, the Court must assess whether the Resolution fulfils the conditions of non-derogability, proportionality, non-discrimination and consistency. However, these conditions laid out in Article 4 of the ICCPR apply to the Council mutatis mutandis<\/em> because, as Erika de Wet states<\/a>, the Council\u2019s \u201cauthority and responsibilities (\u2026) differ from those of individual states\u201d.<\/p>\n

In conclusion, if a Resolution produces a norm conflict, I suggest the Court presume that the Council has derogated from its IHRL obligations. If its derogation is lawful, i.e. satisfying the derogation conditions, the norm-conflicting Resolution would be intra vires<\/em> and thus binding on the Member States under Article 103, notwithstanding the Resolution\u2019s apparent or genuine conflict with IHRL.\u00a0 However, if its derogation is unlawful, the Charter\u2019s supremacy would not apply. Consequently, the derogation presumption respects the Charter\u2019s supremacy, as it should under Article 103, and ensures human rights protection, as it should pursuant to IHRL. Thus, by providing a sound basis for scrutinizing the Resolutions that produce norm conflicts, the derogation presumption prevents the Council from dismissing its IHRL obligations through the supremacy principle, and as such it ensures the coherence of international law. \u00a0<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

by Secil Bilgic \u00a0 Article 103 of the United Nations Charter (Charter) stipulates the supremacy of obligations stemming from the Charter over other international obligations. Since the United Nations (UN) Member States are obliged to \u2018accept and carry out\u2019 binding decisions of the Security Council (Council), the Council\u2019s Chapter VII Resolutions (Resolutions) enjoy this supremacy […]<\/p>\n","protected":false},"author":101946,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1812","post","type-post","status-publish","format-standard","hentry","category-online-journal"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/1812","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/users\/101946"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/comments?post=1812"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/posts\/1812\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/media?parent=1812"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/categories?post=1812"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hrj\/wp-json\/wp\/v2\/tags?post=1812"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}