Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-25T06:51:13.620Z Has data issue: false hasContentIssue false
  • English
  • Français

International Humanitarian Law, International Human Rights Law, and Fragmentation of International Law

Published online by Cambridge University Press:  17 January 2008

Anthony E Cassimatis
Get access Rights & Permissions [Opens in a new window]

Extract

International tribunals and legal scholars have been considering the relationship between International Humanitarian Law (‘IHL’) and International Human Rights Law (‘IHRL’) for a number of years.1 The International Court of Justice famously or infamously (depending on your perspective) considered their relationship in its Nuclear Weapons Advisory Opinion in 1996.2 The Court concluded that while IHRL did apply in times of armed conflict, when it came to the prohibition of arbitrarily taking human life in Article 6 of the International Covenant on Civil and Political Rights 1966, the content of that prohibition had to be found in the lex specialis of IHL.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 3 , July 2007 , pp. 623 - 639
Copyright
Copyright © British Institute of International and Comparative Law 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Consider, eg, GIAD Draper, Humanitarian Law and Human Rights [1979] Acta Juridica 193Google Scholar; Quentin-Baxter, R, ‘Human Rights and Humanitarian Law—Confluence or Conflict?’ (1980) 9 Australian Year Book of International Law 94Google Scholar; Green, Leslie C, ‘Human Rights and the Law of Armed Conflict’ (1980) 10 Israel Yearbook on Human Rights 9Google Scholar; Dietrich, Schindler, ‘Human Rights and Humanitarian Law: Interrrelationship of the Laws’ (1982) 31 American University Law Review 935Google Scholar; Louise, Doswald-Beck and Sylvain, Vité, ‘International Humanitarian Law and Human Rights Law’ (1993) 293 International Review of the Red Cross 94Google Scholar; Kelly, Michael J, Peace Operations (Australian Government Publishing Service, Canberra, 1997), ch 6Google Scholar; John, Dugard, ‘Bridging the gap between human rights and humanitarian law: The punishment of offenders’ (1998) 324 International Review of the Red Cross 445Google Scholar; Vera, Gowlland-Debbas, ‘The Right to Life and Genocide: The Court and an International Public Policy’ in Laurence Boisson de, Chazournes and Philippe, Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (CUP, Cambridge, 1999) 315Google Scholar; Theodor, Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 AJIL 239Google Scholar; Dale, Stephens, ‘Human Rights and Armed Conflict— The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case’ (2001) Yale Human Rights and Development Law Journal 1Google Scholar; Adam, Roberts, ‘The Laws of War in the War on Terror’ (2003) 32 Israel Yearbook on Human Rights 193Google Scholar; Hans-Joachim, Heintze, ‘The European Court of Human Rights and the Implementation of Human Rights Standards During Armed Conflicts’ (2005) 45 German Yearbook of International Law 60Google Scholar; Sub-Commission on the Promotion and Protection of Human Rights, Administration of Justice, Rule of Law and Democracy—Working paper on the relationship between human rights law and international humanitarian law by Françoise Hampson and Ibrahim Salama, UN Doc E/CN.4/Sub.2/2005/14, 14 06 2005Google Scholar; Noam, Lubell, ‘Challenges in applying human rights law to armed conflict’ (2005) 87 International Review of the Red Cross 737Google Scholar; Schabas, William S, ‘Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of ius ad bellum’, paper presented at a conference on the parallel application of international human rights law and international humanitarian law, Hebrew University, Jerusalem, 21–22 05 2006 (on file with author).Google Scholar

2 Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General Assembly for an Advisory Opinion) [1996] ICJ Reports 226.Google Scholar

3 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Reports 136.Google Scholar

4 ibid 136, 178, para 106.

5 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19 12 2005.Google Scholar

6 ibid, para 178.

7 ibid, para 3 dispositif.

8 Jean-Marie, Henckaerts and Louise, Doswald-Beck, Customary International Humanitarian Law, Volume I, Rules (CUP, Cambridge, 2005).Google Scholar This publication is the result of a request by the 26th International Conference of the Red Cross and Red Crescent in 1995 to the International Committee of the Red Cross to prepare a report on customary IHL applicable in international and non-international armed conflicts—ibid, xxvii.

9 International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc A/CN.4/L.682, 13 04 2006.Google Scholar

10 ILC report refers to the ‘tool-box’ metaphor in a number of places. See, eg, International Law Commission, Fragmentation of International Law, ibid 250.

11 See generally Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 ICLQ 279.Google Scholar

12 The ILC gives the example of the Mox Plant dispute between Ireland and the UK—where essentially the same dispute was raised via three different institutional procedures—International Law Commission, Fragmentation of International Law, n 9 above, 12–13.Google Scholar

13 According to the Study Group the ‘issue of institutional competencies is best dealt with by the institutions themselves’—International Law Commission, Fragmentation of International Law, ibid 13.

14 Case Concerning the United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Reports 41, para 86.Google Scholar

15 International Law Commission, Fragmentation of International Law, n 9 above, 82.Google Scholar

16 ibid 117.

17 ibid 120–1.

18 ibid 151–66.

19 International Law Commission, Report on the work of its fifty-third session (23 04–1 06 and 2 07–10 08 2001), General Assembly Official Records, sixty-first session, Supplement No 10 (A/61/10), 208.Google Scholar

20 International Law Commission, Fragmentation of International Law, n 9 above, 189.Google Scholar

21 ibid 207.

22 International Law Commission, Report on the work of its fifty-eighth session (1 05–9 06 and 3 07–11 08 2006), General Assembly Official Records, fifty-fifth session, Supplement No 10 (A/56/10), 408.Google Scholar

23 cf Anja, Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis’ (2005) 74 Nordic Journal of International Law 27Google Scholar, who argues that: ‘lex specialis is a suitable approach to the resolution of conflicts between treaties when a connection exists between those treaties. Its application is not automatic and does not solve conflicts between two special norms, however, especially if these derive from different normative orders. The maxim of lex specialis does not provide any criteria to guide the decision whether one area of law is generally more important than another’—at 44.

24 International Law Commission, Fragmentation of International Law, n 9 above, 130.

25 ibid, 245. See also Martti, Koskenniemi and Päivi, Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553, 561.Google Scholar It is of course possible that intra-regime conflicts may involve ‘technical mistakes’.

26 ibid 249.

27 ibid 244.

28 ibid 142.

29 ibid 166.

30 International Law Commission, Report on the work of its fifty-eighth session (1 05–9 06 and 3 07–11 08 2006), General Assembly Official Records, fifty-fifth session, Supplement No 10 (A/56/10), 418.Google Scholar

31 Contrast the ‘most favoured nation’ rule with the precautionary principle.

32 Contrast the use of framework conventions in the environmental regime with the specific tariff schedules in trade treaties.

33 Contrast the concept of comparative advantage with the concept of sustainable development.

34 See, eg, the references to human dignity in the Universal Declaration of Human Rights.

35 Case Concerning the Corfu Channel (Merits) [1949] ICJ Reports 4, 22.Google Scholar

36 Sir Gerald Fitzmaurice, Law of Treaties, Second report by G Fitzmaurice, Special Rapporteur [1957] Yearbook of the International Law Commission, Volume II, 16, at 54.Google Scholar Note also Art 60(5) of VCLT that embodies this concept. For a detailed discussion of the distinction between reciprocal obligations on the one hand and integral and interdependent obligations on the other, see Joost, Pauwelyn, ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?’ (2003) 14 European Journal of International Law 907.Google Scholar

37 See, eg, the decision of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Kupreskic, Case No It–95–16–T, Trial Chamber, Judgment, 14 01 2000, paras 515–20.Google ScholarCf René, Provost, ‘Reciprocity in Human Rights and Humanitarian Law’ (1994) 65 BYIL 383Google Scholar who argues that IHL still appears to contain areas where reciprocity remains significant.

38 See Arts 2 and 15 of the European Convention on Human Rights and Art 27 of the American Convention on Human Rights.

39 Doswald-Beck, and Vité, , n 1 above, 98.Google Scholar

40 ibid 101.

41 David, Petrasek, ‘Current Developments—Moving Forward on the Development of Minimum Humanitarian Standards’ (1998) 92 AJIL 557, at 560Google Scholar; see also Draper, , n 1 above, 195.Google Scholar

42 Schabas, , n 1 above, 17.Google Scholar On the importance of the distinction between jus ad bellum and jus in bello see Christopher, Greenwood, ‘The relationship between ius ad bellum and ius in bello’ (1983) 9 Review of International Studies 221.Google Scholar Draper makes the following assertions in relation to efforts to link human rights and humanitarian law in the 1960s and 1970s: ‘The attempt to confuse the two regimes of law is insupportable in theory and inadequate in practice. The two regimes are not only distinct but are diametrically opposed. The confusion between the two was a heresy of the UN, brought about by political forces which achieved their purpose by the inclusion of struggles for self-determination within the law applicable to international armed conflicts’—Draper, op cit 205.Google Scholar For criticism of Draper's views see Stephens, , n 1 above 9–14.Google Scholar

43 Gowlland-Debbas, , n 1 above, 335.Google Scholar

44 Doswald-Beck, and Vité, , n 1 above, 109.Google Scholar

45 For a critique of the margin of appreciation jurisprudence from a human rights perspective, see Susan, Marks, ‘Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights’ (1995) 15 OJLS 69.Google Scholar

46 See, eg, Dinah, Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 AJIL 291, 297–319.Google Scholar

47 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3.Google Scholar

48 Al-Adsani v UK (2001) 34 EHRR 273.Google ScholarSee also the discussion of two other decisions of the European Court of Human Rights (in the Fogarty and McElhinney decisions) in McLachlan, n 11 above, 304–6.Google Scholar

49 For an analysis of recent decisions on immunity in civil proceedings before national courts see Kate, Parlett, ‘Immunity in Civil Proceedings for Torture: The Emerging Exception’ [2006] European Human Rights Law Review 49.Google Scholar

50 International Law Commission, Fragmentation of International Law, n 9 above, 185.Google Scholar Cf the observation of the International Criminal Tribunal for the former Yugoslavia ‘that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime’— Prosecutor v Tadic, Judgment in Sentencing Appeals, Case No IT–94–1–A and IT–94–1–Abis, 26 01 2000, para 69.Google Scholar

51 Despite being emphasized in the report (see, eg, p 130 of the ILC report, ibid) and despite acknowledging problems with the way in which the lex specialis principle was utilized in the Nuclear Weapons Advisory Opinion (see the ILC's reference to the perceptive criticism by Professor Gowlland-Debbas' in n 129 of the fragmentation report) the Study Group did appear to offer the following defence of the application of the principle: ‘The example of the laws of war focuses on a case where the rule itself identifies the conditions in which it is to apply, namely the presence of an “armed conflict”. Owing to that condition, the rule appears more “special” than if no such condition had been identified. To regard this as a situation of lex specialis draws attention to an important aspect of the operation of the principle. Even as it works so as to justify recourse to an exception, what is being set aside does not vanish altogether.…The Court was careful to point out that human rights law continued to apply within armed conflict. The exception—humanitarian law—only affected one (albeit important) aspect of it, namely the relative assessment of “arbitrariness”. Humanitarian law as lex specialis did not suggest that human rights were abolished in war. It did not function in a formal or absolute way but as an aspect of the pragmatics of the Court's reasoning. However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in those (exceptional) circumstances. Legality of Nuclear Weapons was a “hard case” to the extent that a choice had to be made by the Court between different sets of rules none of which could fully extinguish the others. Lex specialis did hardly more than indicate that though it might have been desirable to apply only human rights, such a solution would have been too idealistic, bearing in mind the speciality and persistence of armed conflict. So the Court created a systemic view of the law in which the two sets of rules related to each other as today's reality and tomorrow's promise, with a view to the overriding need to ensure “the survival of a State”’—ibid 57.

52 Doswald-Beck, and Vité, , n 1 above, 101.Google Scholar

53 Lubell, n 1 above, 743Google Scholar; Sub-Commission on the Promotion and Protection of Human Rights, n 1 above, 4.Google Scholar

54 Andrew, Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006) 14.Google Scholar In a footnote Professor Clapham refers to the ICRC customary law study and then makes the following observation: ‘The [ICRC] study mysteriously asserts that the ‘majority view’ is that international human rights law (in contrast to international humanitarian law) only binds governments and not armed opposition groups (at 299 [of the ICRC study]). For those who do not accept this apparent limitation on human rights law, the set of customary rules will provide a useful normative framework for holding non-state actors accountable in times of armed conflict for violations of international human rights law.’

55 There has, apparently, been a high turnover of personnel at the Court.

56 cf Dugard, n 1 above; and Meron, , n 1 above, 253 and 263–6.Google Scholar

57 Sir Hersch Lauterpacht observed in 1950 that ‘the Charter and the judgment of the [Nuremburg] Tribunal, in so far as they recognise in principle crimes against humanity, have a direct bearing on the question of recognition, in the international sphere, of fundamental rights of the individual. Crimes against humanity are crimes regardless of whether they were committed in accordance with and in obedience to the national law of the accused. Such acts were deemed to violate the sanctity of human personality to such a degree as to make irrelevant reliance upon the law of the State which ordered them. To lay down that crimes against humanity are punishable is, therefore, to assert the existence of rights of man grounded in a law superior to the law of the State. Thus, upon analysis, the enactment of crimes against humanity in an international instrument signifies the acknowledgement of fundamental rights of the individual recognised by international law.…In terms of law, with the conception of crimes against humanity there must correspond the notion of fundamental human rights recognised by international law and, as a further result, of an international status of the individual whose rights have thus been recognised’—Lauterpacht, , International Law and Human Rights (Stevens and Sons Ltd, London, 1950) 36–7.Google Scholar The prohibitions of slavery and racial and gender discrimination (human rights standards directed at non-state entities) and the development of international criminal responsibility for individuals, particularly individual criminal responsibility for crimes against humanity committed in the absence of armed conflict and in furtherance of the policy of non-State entities, makes the a priorism apparent in the observations of the authors of the ICRC customary law study referred to in n 54 above in relation to obligations to respect human under general international law untenable today whatever support it may have had in the past.

58 The link between crimes against humanity and violations of human rights protected under international law is apparent in the work of the International Law Commission. In 1991 the Commission provisionally adopted the ‘draft Code of Crimes against the Peace and Security of Mankind’ which dealt with crimes under international law for which there could be individual responsibility. Art 21 of this draft was entitled ‘[s]ystematic or mass violations of human rights.’ Art 21 was subsequently redrafted and retitled ‘crimes against humanity’. The redrafted Art was adopted by the Commission in 1996 as Art 18 of the draft code. The terms of Art 18, however, remained similar to those of Art 21 of the 1991 draft.

59 It may, however, be indirectly relevant, see Joost, Pauwelyn, Conflict of Norms of Public International Law: How WTO Law Relates to other Rules of International Law (CUP, Cambridge, 2003), 456–86.Google Scholar

60 International Law Commission, Fragmentation of International Law, n 9 above, 237–9.Google ScholarSee generally Pauwelyn, , op cit 237–74Google Scholar; cf McLachlan, , n 11 above, 313–15.Google Scholar

61 International Law Commission, Fragmentation of International Law, n 9 above, 237–8.Google Scholar

62 Art 41 of the VCLT (‘Agreements to modify multilateral treaties between certain of the parties only’) includes requirements that the modification not be inconsistent with the terms of the treaty (expressly or impliedly), that the modification not affect the rights or obligations of other parties to the treaty and that the modification not be incompatible ‘with the effective execution of the object and purpose of the treaty as a whole’—Art 41(1)(b)(ii). If the proposed modification satisfies these requirements then Art 41 also requires those parties intending to modify the treaty to notify other parties of their intention to modify the treaty to provide details of the proposed modification. These notification requirements are similar to those that apply in relation to amendment (VCLT Article 40), suspension of treaties (Art 58) and reservations proposed by States seeking to become parties to treaties (Art 23).

63 ‘Article 31 [of the VCLT] is concerned with the promulgation of a general rule, which would apply to the interpretation of a treaty irrespective of whether any particular parties to it may happen to be in dispute’—McLachlan, n 11 above, 315.Google Scholar

64 Outcomes which the ILC Study Group expressly acknowledges as possible—International Law Commission, Fragmentation of International Law, n 9 above, 238.Google Scholar

65 See Pauwelyn, , n 59 above, 237–74.Google ScholarCf McLachlan, , n 11 above, 314–15.Google Scholar

66 See, eg, Isayeva v Russia, Application No 57950/00, 24 02 2005.Google Scholar Commentary on this case has contrasted similarities and differences in the way IHL and IHRL would have dealt with the facts of this case. See, eg, Schabas, , n 1 above, 11–12.Google ScholarSee also Isayeva, Yusupova and Bazayeva v Russia, Applications Nos 57947/00, 57948/00, and 57949/00, 24 02 2005.Google Scholar It is important to note (as emphasized by the European Court of Human Rights in both cases) that Russia had not formally sought to rely on emergency derogations under Art 15 of the European Convention on Human Rights.

67 It should also be noted that in relation to this issue the ILC study expressly accepted that the approach they advocated regarding later treaties would not apply in the case of absolute non-reciprocal obligations—International Law Commission, Fragmentation of International Law, n 9 above, 238–9.Google Scholar

68 Henckaerts, and Doswald-Beck, , n 8 above, x.Google Scholar

69 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, [1971] ICJ Reports 16.Google Scholar

70 Henckaerts, and Doswald-Beck, , n 8 above, xxxi.Google Scholar

71 ibid, xxxi.

72 cf Provost, n 37 above, 423–7.Google Scholar Art 31(3)(c) of the VCLT also requires consideration of ‘general principles of law’ [in the sense of Art 38(1)(c) of the Statute of the International Court of Justice], see, eg, McLachlan, , n 11 above, 290.Google Scholar It is also possible that human rights (and IHL) obligations under general international law derive from such ‘general principles of law’–see, eg, Bruno, Simma and Philip, Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles (1988–1989) 12 Australian Yearbook of International Law 82, 105–6Google Scholar; and Judge Tanaka’s dissent in South West Africa, Second Phase, [1966] ICJ Reports, 4, 298.Google Scholar I am indebted to one of the anonymous referees for drawing this point to my attention. For discussion of controversies surrounding the existence and content of customary human rights obligations see, eg, Simma, and Alston, , op cit 85 and 88–100Google Scholar; and Hilary, Charlesworth and Christine, Chinkin, The Boundaries of International Law – A Feminist Analysis (MUP, Manchester, 2000) 70–7.Google Scholar

73 Banković v Belgium, admissibility decision, Application No 52207/99, 19 12 2001, paras 59–82.Google ScholarContrast the decision of the European Court of Human Rights in Issa and others v Turkey, merits decision, Application 31821/96, 16 11 2004, para 71.Google Scholar

74 David, Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 European Journal of International Law 171, 184.Google Scholar

75 For a discussion of difficulties in the Court's approach in the Wall Advisory Opinion see Dennis, Michael J, ‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 AJIL 119CrossRefGoogle Scholar; cf Manfred, Nowak, UN Covenant on Civil and Political Rights—CCPR Commentary (2nd edn, NP Engel, Kehl, 2005) 43–4.Google Scholar

76 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19 12 2005, para 24.Google Scholar

77 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Provisional Measures) [1996] ICJ Reports 595, 615–16, para 31.Google Scholar

78 See, eg, Kretzmer, , n 74 above, 185.Google Scholar

79 cf the description by Moses, J at first instance of the Government's key submission as ‘startling’—R (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v Secretary of State for Defence [2005] EWHC 1809 (Admin), para 34.Google Scholar

80 [2006] EWCA Civ 327, 29 Mar 2006.Google ScholarNoted by Penelope Nevill, ‘Case and Comment— Qualifying the Human Rights Act: Detention under Security Council Resolutions’ [2006] CLJ 476.Google Scholar

81 The Court of Appeal appears to have based its decision on Security Council Resolution 1546 (2004), adopted on 8 June 2004.Google Scholar Para 10 of this resolution refers to the following Security Council decision: ‘that the multinational force shall have all the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people … and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities.’

Two letters were annexed to the resolution. The relevant part of the of the annexed letter from the US Secretary of State provided: ‘Under the agreed arrangement, the [Multinational Force] … stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include…internment where this is necessary for imperative reasons of security in Iraq.…[T]he forces that make up the [Multinational Force]…are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions'—emphasis added by the Court of Appeal. This authorization was reaffirmed in Security Council Resolutions 1637 (2005) and 1723 (2006).

82 International Law Commission, Fragmentation of International Law, n 9 above, 176.Google Scholar For a contrary view see Alexander, Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 European Journal of International Law 59, 69 (and other authors cited there).Google Scholar

83 A Security Council resolution is not a treaty but does appear to be subject to analogous rules of interpretation—see, eg, the approach to the interpretation of resolutions in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 [1971] ICJ Reports 16, 53, para 114.Google Scholar On the relationship between treaties and subsequent developments in customary international law, see, eg, Pauwelyn, , n 59 above, 137–43.Google Scholar

84 See generally Wood, Michael C, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Yearbook of United Nations Law 73, in particular 92–3.Google ScholarCf the application of a similar principle to an instrument created unilaterally by a State in the Case concerning right of passage over Indian territory (Preliminary Objections), Judgment of 26 11 1957Google Scholar, ICJ Reports 1957, 125, 142Google Scholar: ‘[i]t is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it.’

It is submitted that even though resolutions adopted under Chapter VII of the Charter are regularly intended to prevail over particular treaty obligations, the interpretative principle referred to above is nonetheless applicable in order to ensure the systemic integrity of international law. Thus resolutions authorising in broad terms the use of force under Chapter VII of the Charter [consider, for example, the resolution 1264 (1999) that authorised the intervention force for East Timor to use ‘all necessary measures’ to fulfil its mandate] ought not to be construed and have not been construed as prevailing over and excluding obligations under IHL.

85 See the text accompanying n 59 above.

86 In particular the words ‘internment…necessary for imperative reasons of security’ ought to have been construed in light of the relevant rules of customary international law applicable given the changing nature and scale of the conflict in Iraq. Having considered the general international law relevant to the interpretation of the resolutions the Court would have been better placed to then assess the extent to which obligations under the European Convention on Human Rights continued to apply notwithstanding the relevant resolutions.

87 Whilst noting the existence of academic authority supporting such challenges the Court of Appeal considered that a municipal court should not ‘entertain’ such arguments—[2006] EWCA Civ 327, 29 03 2006, para 75.Google Scholar Professor Karl Zemanek has argued, for example, that ‘[t]he Security Council is… bound by the norms of jus cogens in the same manner as the States composing it, and its decisions are null and void if they conflict with a peremptory norm. It is equally inconceivable that a decision by the Security Council, invoking the duty under Article 25 of the Charter, should oblige members of the United Nations to violate their obligations under human rights conventions’—Zemanek, K, ‘General Course on Public International Law: The Legal Foundations of the International System’ (1997) 266 Recueil des Cours 9, 231.Google Scholar

88 [2006] EWCA Civ 327, para 64.Google Scholar In particular reference was made to the decision of the Court of First Instance of the European Court of Justice in Yassin Abdullah Kadi v Council of the European Union, Case T-301/01, 21 09 2005.Google Scholar Also relevant in that regard are two other decisions of the Court of First Instance—Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union, Case T-306/01, 21 09 2005Google Scholar; and Chafiq Ayadi v Council of the European Union, Case T-253/02, 12 07 2006.Google Scholar All three of these decisions are currently under appeal.

89 According to the Court of First Instance in Kadi the relevant Security Council resolutions in that case contained ‘clear, precise and detailed definitions and obligations that [left]…scarcely any room for differing interpretation’—Case T-301/01, 21 Sept 2005, para 113. The same point is made by the Court of First Instance in the Yusuf case, Case T-306/01, 21 09 2005, para 149.Google Scholar

90 See n 81 above.

91 International Law Commission, Fragmentation of International Law, n 9 above, 245.Google Scholar

92 Democratic Republic of the Congo v Uganda, International Court of Justice, Judgment 19 12 2005, separate opinion of Judge Simma, paras 38–41.Google Scholar