International law sometimes is binding.
International treaties may be amended or repealed by new treaties, customary law can evolve over time (and sometimes it takes centuries), but a core of international law is really binding.
Members’ obligations under the UN Charter override their obligations under any other treaty; decisions by the International Court of Justice are law for the parties to the judgment; resolutions of the UN security Council – grounded on chapter seven of the charter- must be enforced and – of course – rules of jus cogens are not modifiable.
What happens when this core of international law conflicts with fundamental rights of individuals? what comes first? Most of the legal scholars would say: the binding international rules. As uncomfortable as it appears, the primacy of the rules ensuring the peaceful coexistence of states must be guaranteed.
But aren’t human rights a too high price to pay? And isn’t the system contradicting itself? After all, the United Nations are the cradle of the doctrine of human rights: they gave birth to the Universal Declaration of Human Rights (1948), another conerstone of international law.
Now, some jurisdictions are challenging the UN system on this same ground of the guarantee of human rights. A couple of meaningful examples will clarify what I’m saying: the Kadi saga and the decision 238/2014 of the Italian Constitutional Court
Scholars of EU Law and of international Law are very familiar with the Kadi and Kadi II decisions which from 2001 to 2013 involved the European Courts in the evaluation of EU acts implementing a UN Security Council binding Resolution.
In its Kadi judgment, the European Court of Justice (ECJ) stated that “the Community judicature must (…) ensure the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.”
The resolution we are speaking about ( Resolution 1267 (1999)) established a “Sanctions Committee” responsible in particular for designating the funds or other financial resources which all States must freeze in order to ensure that those funds or are not made available to, or for the benefit of, the Taliban . In Resolution 1333 (2000), the UN Security Council instructed the Sanctions Committee to maintain an updated list of the individuals and entities designated as associated with Osama bin Laden, and held that States must freeze funds and other financial assets of these individuals. In order to implement this resolution, the Council of the EU adopted, inter alia, the contested Council Regulation 881/2002
Even if the ECJ emphasized that it had no no power to review the lawfulness of resolutions adopted by the UN Security Council, the European regulation adopted on its ground was annulled as the whole procedure both at UN level and EU level didn’t respect the right of the individual to be heard.
In the community of international lawyers this decision was almost heretical. infact, according to Article 103 of the UN Charter :
‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’
But is the right of the individual to be heard just an European Law principle or is it a cornerstone in the whole human rights doctrine?
And even if one may have little sympathy with that Saudi businessman (and his well equipped legal team), wasn’t the principle right?
In the so called Kadi II case, mr Kadi then brought new proceedings before the General Court, seeking annulment of Commission’s Regulation 1190/08. It appeared that the delisting procedure available before the Sanctions Committee failed to offer the minimum guarantees of judicial protection, nor had the system set up at the EU level offered other than a formalistic protection. Even this second Regulation was annulled.
In October 2012 – after more than a decade- Mr Kadi was delisted by the Sanctions Committee.
In July 18, 2013, the Court of Justice of the EU handed down the judgment in the so-called Kadi II dispute. With this decision, the Court dismissed the appeals brought by the Council, the Commission and the UK against the General Court’s judgment. In so doing, the Court has confirmed that Mr. Kadi’s inclusion in the list was in breach of his fundamental rights.
Now, we are not so much worried for the question whether the primacy of UN Charter obligations is jeopardized as -from a substantial point of view- we are for the non compliance with fundamental human rights by the Security Council
What is really important to point up is that since 2009 there is an Ombudsperson in the UN System. It was established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011). He is also in charge for assisting the Sanctions Committee in dealing with delisting requests.
The creation of the Ombudsperson is a direct result of combative individuals and brave judges (see also some cases in domestic courts, such as , Abdelrazik, Hay, Ahmed, etc). I don’t see it as a failure but as a step forward in international law.
Another step forward is suggested by the decision 238/2014 of the Italian Constitutional Court which concerned the constitutional legitimacy of certain Italian norms which had been adopted by Italy in order to give application to the International Court of Justice’s 2012 Judgment on Jurisdictional Immunities of the State (Germany v. Italy).
This time the clash was between the jurisdictional immunity of states and the rights of victims of war crimes and an “heretical” decision by the Italian Court chose to favor the rights of individuals.
In the dispositif, the Constitutional Court declared Article 3 of Italian law 5/2013 constitutionally unlawful. This article was a specific implementation of the ICJ Judgment of 2012, requiring Italian Courts to decline jurisdiction in any cases where the International Court of Justice had decided that Italian civil Courts should not adjudge upon the conduct of other States; moreover, the Court declared the 1957 Italian law of ratification of the UN Charter constitutionally unlawful,
“with respect to the execution given to Article 94 of the Charter, only to the extent in which it obliges Italian Courts to comply with the Judgment of the International Court of Justice of 3 February 2012, which requires them to decline their jurisdiction in relation to the acts of a foreign State which consist in war crimes and crimes against humanity, impairing inviolable human rights”.
For further explanations of the Court’s reasoning, you can see here
The conflict between fundamental human rights and international law cannot be healed remaining on the same level of thinking in which it has been generated, what I see here is an effort of the Italian Constitutional Court to move to a new level: giving fundamental rights a different stance vis-a-vis binding international law.