Harmonious Interpretation Meets the UN Charter: The Derogation Presumption

by Secil Bilgic


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 ‘accept and carry out’ binding decisions of the Security Council (Council), the Council’s Chapter VII Resolutions (Resolutions) enjoy this supremacy as well. However, when Resolutions generate a norm conflict with international human rights law (IHRL), courts employ ‘avoidance techniques’ that enable them not to implement 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 discussed within the context of the European Convention on Human Rights (Convention or ECHR).  It is to addressing this problematique within the ECHR context that this post seeks to contribute.


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 as to whether they conform to the absolute hierarchy specified by Article 103 of the Charter. Thus, in this blog-post, I will first analyse the ECtHR’s Bosphorus 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 that not only resolves both genuine and apparent norm conflicts but also respects the hierarchy imposed by Article 103 of the Charter.


ECtHR’s Doctrines to Resolve Norm Conflicts


Hitherto there have been two methods that the ECtHR has employed to solve norm conflicts between Resolutions and the Convention: (i) the Bosphorus presumption, where the Court examines ‘the objective feature’ of the UN sanctions regime and (ii) harmonious interpretation, where it looks at the Security Council’s ‘intention’.


The case of Bosphorus v Ireland 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’s right to property, the ECtHR established the Bosphorus presumption. According to this doctrine, the Court presumes the states parties’ 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.


While some authors praised the Bosphorus doctrine as a human rights-oriented perspective ‘based on the balancing of the interests at stake’, others questioned its applicability in the absence of an EU legislation. In this regard, Milanovic famously argued that ‘if 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.’ The Court seemed to agree with Milanovic, as it did not apply the Bosphorus doctrine in the succeeding Nada and Al-Jedda cases. However, it was Al-Dulimi, the most recent case regarding the application of Article 103 of the Charter, that marked the lines between the Bosphorus and harmonious interpretation doctrines.


Al-Dulimi v Switzerland concerned Resolution 1483, which prescribed the Member States to freeze the assets of those people listed by the Sanctions Committee ‘without delay’ so as to ‘immediately’ 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.


While the Chamber attempted to solve the norm conflict in Al-Dulimi by adopting the Bosphorus presumption, the Grand Chamber reversed the Chamber’s ruling and instead applied the harmonious interpretation doctrine it had established in Al-Jedda. Although the Court did not provide an explanation for the inapplicability of the Bosphorus doctrine, the Grand Chamber’s 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 presumption, solves the norm conflicts between the Resolutions and the Convention.


Pursuant to the harmonious interpretation doctrine, unless the Resolutions explicitly state otherwise, the ECtHR presumes that the Council ‘does not intend to’ contradict with IHRL. Thus, while interpreting a Resolution, the Court chooses ‘the interpretation which is most in harmony’ with the Convention. Consequently, despite the use of words such as ‘without delay’ and ‘immediately’, the Court accepted that Resolution 1483 allowed domestic judicial review of the listing decisions.


Can There Be Too Much Harmony?


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


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 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 ‘the conflict between the two can be avoided, most often by interpretative means.’ However, interpretative methods are futile in terms of resolving genuine norm conflicts, i.e. situations in which the Resolution expressly 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’s silence on this question was due to an implicit acknowledgment of the Charter’s supremacy in cases of genuine norm conflicts, the ambiguity leaves room for manoeuvre in future cases.


Second, the scope of the Court’s 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’s capacious interpretation of the terms ‘freeze without delay’ and ‘immediately transfer’ in Al-Dulimi, allowing for review of arbitrariness by national courts before freezing or transferring the assets of the people in question, came as a surprise 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 “fake harmonious interpretation.”


Third, the ambit of the harmonious interpretation doctrine still remains unclear.  In Al-Dulimi, the Chamber employed the Bosphorus 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 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 and harmonious interpretation doctrines.


A Win-Win Solution: Derogation Presumption 

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 that the Council’s capacity to adopt Resolutions is bounded by IHRL.


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


Admittedly, this approach is quite helpful when Resolutions explicitly conflict with IHRL. However, it labels every Resolution conflicting with IHRL as ultra vires 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 to resolve norm conflicts.


A derogation is a “complete or partial elimination of an international obligation” in times of emergency. If states can derogate from IHRL to safeguard domestic security, I argue that the Council should enjoy the same latitude to safeguard international peace and security.  Since the Council does not intend 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, one must examine whether the Council’s presumed derogation is lawful.


Assessing the lawfulness of the Council’s derogation requires the Court to determine the sources of the Security Council’s human rights obligations and the applicable derogation conditions deriving from those sources. A suggested source for the Council’s IHRL obligations is the instruments adopted within the UN, as they are “an elaboration of the rights provided for in the Charter.” As the rights envisaged by the Convention largely overlap with those rights set out by the International Covenant on Civil and Political Rights (ICCPR), an examination by the Court of whether the Council’s 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 trial under Articles 14 and 15 of the ICCPR.


Pursuant to Article 4 of the ICCPR, for a lawful derogation, there should 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’s Chapter VII mandate is applicable when and only when there is a public emergency threatening the life of all nations, 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’s 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 because, as Erika de Wet states, the Council’s “authority and responsibilities (…) differ from those of individual states”.

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 and thus binding on the Member States under Article 103, notwithstanding the Resolution’s apparent or genuine conflict with IHRL.  However, if its derogation is unlawful, the Charter’s supremacy would not apply. Consequently, the derogation presumption respects the Charter’s 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.