Calvin Wilkinson, 41760802

Question: Explain whether the approach of the House of Lords in R (Al-Jedda) v Secretary
of State for Defence [2008] 1 AC 332 or the approach of the European Court of Human
Rights in Al-Jedda v United Kingdom, Judgement of 7 July 2011, is more defensible under
international law.
1.0 Introduction
The approach taken by the European Court of Human Rights (ECtHR) in Al-Jedda v United
Kingdom to interpreting and applying UN Security Council resolutions is, despite some minor
caveats, more defensible under international law than the House of Lords in R (Al-Jedda) v
Secretary of State for Defence. For this argument to be persuasive, it is necessary that it be
answerable to certain criterion, of which there are two: Firstly, the extent to which the
harmonisation approach taken by the ECtHR and the soft subordination analysis of the
House of Lords are adapted to the balancing of human rights with the concern of
fragmentation; and furthermore, whether these two approaches effectively consider the
interrelated principles of customary international law and jus cogens.
The relevant Issue
It is helpful to begin by outlining the relevant issue before the House of Lords and ECtHR.
The Courts were faced with an apparent norms conflict - whether the right to personal
liberty obliged by Article 5(1) of the European Convention on Human Rights (ECHR) was
displaced or qualified by Security Council resolution 1546 (resolution 1546), by virtue of
Article 103 of the United Nations Charter (the Charter). Article 103 provided that the
obligations under the Charter would prevail over conflicting obligations under any other
international agreement. Thus, the interpretation of resolution 1546 whether it could be
considered an obligation for the purposes of displacing Article 5(1), was pertinent. The
issue of attribution, although clearly controversial, was outside the scope of the question
raised and is covered by the academic commentary surrounding the widely panned decision
in Behrami,1 and the almost universal agreement of both courts that the relevant conduct
was attributable to the UK and not the UN.2
2.0 Harmonisation approach
Essentially, the ECtHR developed a harmonisation approach3 to the interpretation of
resolution 1546 that was in line with the principle of systemic integration. Systemic
integration governs all treaty interpretation,4 and is given expression by Article 31 (3)(c) of
the Vienna Convention on the Law of Treaties (VCLT), which mandates that when
interpreting a treaty, the context and any relevant rules of international law applicable in
the relations between the parties should be taken into account. This principle appears to
have influenced the approach of the ECtHR, which did not read resolution 1546 in clinical
isolation, but rather in light of the purposes for which the United Nations was created,
which includes, relevantly, the promotion of human rights and freedoms. The systemic
relationship between this purpose and resolution 1546 was made relevant by Article 24 (2)
1

Samantha Miko, Norm Conflict, Fragmentation, and the European Court of Human Rights [2013] 54 Boston
College Law Review 1369.
2
C.f R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332 at 88 per Lord Rodger of Earlsferry.
3
Kushtrim Istrefi, The Application of Article 103 of the United Nations Charter in the European Courts: the
Quest for Regime Compatibility on Fundamental Rights [2012] 5 European Journal of Legal Studies 83.
4
International Law Commission, Fragmentation Report Conclusions [2006] 413 para. 251 (17).

Calvin Wilkinson, 41760802

of the Charter, which compels the Security Council to act in accordance with the purposes
and principles of the UN. Consequently, the ECtHR was of the opinion that in interpreting
resolution 1546, there was a presumption that the Security Council did not intend to impose
any obligation on Member States to breach fundamental principles of human rights. 5
The legal effect of resolution 1546 on Article 5(1) of the ECHR
Having established this systemic relationship, and In line with the international laws
presumption against normative conflict,6 the ECtHR asserted that resolution 1546 lacked
clear and explicit language necessary for States to take measures which would conflict with
their obligations under international human rights law. On that basis, the Court was obliged
to choose an interpretation of resolution 1546 most in harmony with the requirements of
Article 5(1) of the ECHR. The ECtHR found that since there was no conflict between the UKs
obligations under the UN Charter and its obligations under the ECHR, the provisions of
Article 5 (1) were not displaced.
2.1 Soft Subordination Approach
In contrast to the harmonisation of conflicting norms adopted by the ECtHR, the approach
taken by the House of Lords can be characterised as one of soft subordination, whereby the
giving of effect to one international norm unavoidably leads to the breach of another.7 With
respect to the interpretation of resolution 1546, the leading judgement of Lord Bingham is
notable for eschewing systemic integration with the ECHR regime in favour of a reading in
clinical isolation. In finding that resolution 1546 imposed an obligation to intern, his
Lordship relied on international humanitarian law; Security Council practice; and the
importance of maintaining peace and stability. No attempt at regime compatibility between
resolution 1546 and Article 5 of the ECHR was evident in this analysis. His Lordship did
acknowledge the promotion of the respect for human rights as a fundamental purpose of
the UN, as well as the applicability of Article 31(3) (c) of the VCLT.8 However, this was not in
relation to the interpretation of resolution 1546. It was aimed solely at the scope of
obligations in Article 103, which his Lordship argued should not be given a narrow,
contract-based meaning.9 Such an application of 31 (3) (c) certainly raises questions about
whether the House of Lords correctly interpreted the principles of interpretation of VCLT,
since it was clearly not invoked to read the different treaty rule systems in a mutually
supportive light.10
The legal effect of resolution 1546 on Article 5(1) of the ECHR
Essentially, the House of Lords found that Article 103 gave primacy to resolution 1546 of the
Security Council, and that Article 5 (1) of the ECHR was qualified to the extent required by
the resolution.

Al-Jedda v United Kingdom, Judgement of 7 July 2011 at para 102.

ILC, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of
International Law, Report of the Study Group of the International Law Commission [13 April 2006] UN Doc
A/CN.4/L.682 (ILC Report on Fragmentation) at para. 37.
7
Istrefi, above n 3, 85.
8
R (Al-Jedda) v Secretary of State for Defence at paras. 36-37.
9
Ibid 34
10
ILC Report on Fragmentation, n 6 above at para. 417
6

Calvin Wilkinson, 41760802

2.2 The more adapted approach

Having established the legal effect of both approaches, it is pertinent to address whether
harmonisation or soft subordination was better adapted to balancing concerns of
fragmentation against the protection of human rights.
The harmonisation approach of the ECtHR is defensible under international law because of
two reasons: firstly, it did not follow Kadis11 persuasive authority which would have
resulted in further fragmentation; and furthermore, it provided a bulwark on the Security
Councils ability to override human rights protections. The first point is that the Court
implicitly rejected Al-Jeddas argument that the ECHR creates a self-contained regime that
could not be superseded by Security Council resolutions. This was significant because the
splintering of international law into self-contained regimes, as provided for on a Kadi
analysis, can result in further confliction and incoherent norms with diverging institutional
practices.12
On the second point, the interpretative presumptions established in Al-Jedda are important
because they ensure that human rights are not abrogated by the Security Council without
clear language to the contrary. This has a strong normative effect on the conduct of state
parties to the ECHR. Prior to Al-Jedda, states under the ECHR could engage in military
operations pursuant to ambiguous Security Council resolutions, confident that they would
not be liable for breaches of the ECHR.13 As cases such as Nada14 follow the presumption
established in Al-Jedda, state parties are less likely to act in a manner that threatens human
rights without clear language expressed in the relevant resolution.15
The soft subordination approach by the House of Lords, while less harmful to the coherence
of international law then Kadis self-contained regime, can be criticised for 2 basic reasons.
Firstly, the failure of the court to engage in regime compatibility between different treaty
rule systems in favour of gentle subordination was not in line with the international laws
strong presumption again normative conflict.16 Furthermore, the subordination of Article 5
(1) ECHR challenges the constitutional nature of the ECHR and, fundamentally, it is not easy
for the ECtHR to accept that the Security Council can do this.17 It has been argued that the
ECtHR, which of course has appellant jurisdiction, may in time be tempted to respond in
kind with fragmentationist impulses to assert that the ECHR as a separate legal order.18
3.0 Consideration of Customary Law and Jus Cogens
Having established that the ECtHRs approach was better adapted to balancing the concerns
of fragmentation with the protection of human rights, it is necessary to evaluate whether

11

Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission
of the European Communities (Joined Cases C-402/05 & C-415/05P).
12
ILC Report on Fragmentation, n 6 above at para. 14
13
Miko, above n 1, 1378
14
Nada v Switzerland, ECHR, applic no 10593/08, Judgment of 12 September 2012.
15
Ibid
16
ILC Report on Fragmentation, n 6 above at para. 37.
17
Marko Milanovi, Al-Skeini and Al-Jedda in Strasbourg, [2012].23 European Journal of International Law
138.
18
Miko, above n 1, 1376.

Calvin Wilkinson, 41760802

both approaches can be defended equally in their consideration of the interrelated

principles of customary international law and jus cogens.
Customary International Law
Leaving aside whether simple customary international law prevails over Security Council
resolutions, an argument with proponents on both sides,19 it is more pertinent to evaluate
the ECtHR and House of Lords jurisprudence based on a criticism made of the Court of
Appeals approach, which was the failure to interpret resolution 1546 with reference to
customary international law.20 Of the two Courts, notably only the House of Lords invoked
customary IHL, as reflected in Article 43 of the Hague Regulations, in finding that resolution
1546 obliged the continued internment of Al-Jedda. However, this approach can be
criticised on two bases: firstly, it was inconsistent with the ILCs principle of systemic
integration, since although Article 43 was potentially relevant to both parties, it clearly was
not invoked to read the different treaty rule systems in a mutually supportive light.21
Moreover, as demonstrated by the ECtHRs reasoning, the House of Lords placed misguided
reliance on the International Court of Justice in Armed Activities on the Territory of the
Congo22, which in the ECtHRs view, did not rule that this placed an obligation on the
Occupying Power to use internment.23
Jus Cogens
It has been argued that Al-Jedda, although not explicitly raising jus cogens, at least invoked
the spirit of jus cogens rights in championing the ECHR as a constitutional instrument.24
Arguably, both the ECtHR and House of Lords were justified on two bases in not considering
jus cogens when interpreting resolution 1546. Firstly, although it is uncontroversial that no
derogation is permitted of jus cogens, including by virtue of Article 103, there is no clear
agreement whether the prohibition against preventative detention has peremptory status.25
Moreover, even if a prohibition against internment could be characterised as a peremptory
norm, there is a strong argument against both courts simply accepting a jus cogens
argument in favour of Article 5(1) ECHR. This is because, fundamentally, jus cogens is a
blunt instrument.26 If internment was considered a peremptory norm, the result would be
the invalidation of resolution 1546, denying the Court ability to consider competing values
or balances of interests against the conflicting peremptory norm.27
4.0 Conclusion
This analysis demonstrates that the approach taken by the ECtHR in interpreting Security
Council resolutions is comprehensively more defensible under international law then that of
19

ILC Report on Fragmentation, above n 6 at para 176 c.f 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.
20
Anthony Cassimatis, International Humanitarian Law, International Human Rights Law, and Fragmentation
of International Law [2007] 56 The International and Comparative Law Quarterly 636.
21
ILC Report on Fragmentation, n 6 above at para 417.
22
(Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 116.
23
Al-Jedda v United Kingdom, Judgement of 7 July 2011 at para. 107.
24
Miko, above n 1, 1368
25
Miko, above n 1, 1367-1368 c.f American Law Institute, Restatement (Third) of the Foreign Relations Law of
the United States (Philadelphia 1987) 702.
26
Marko Milanovi, Norm Conflict in International Law: Whither Human Rights? [2009].20 DukeJ. Comp. &
Intl L. 72.
27
Miko, above n 1, 1367.

Calvin Wilkinson, 41760802

the House of Lords, principally because it addresses the interrelated principles of systemic
integration and harmonisation.

Bibliography
Cases
Al-Jedda v United Kingdom, Judgement of 7 July 2011
Nada v Switzerland, ECHR, applic no 10593/08, Judgment of 12 September 2012.
R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332
Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union
and Commission of the European Communities (Joined Cases C-402/05 & C-415/05P).
(Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 116.
Journal Articles
Anthony Cassimatis, International Humanitarian Law, International Human Rights Law, and
Fragmentation of International Law *2007+ 56 The International and Comparative Law
Quarterly
Kushtrim Istrefi, The Application of Article 103 of the United Nations Charter in the
European Courts: the Quest for Regime Compatibility on Fundamental Rights [2012] 5
European Journal of Legal Studies
Samantha Miko, Norm Conflict, Fragmentation, and the European Court of Human Rights
[2013] 54 Boston College Law Review
Marko Milanovid, Al-Skeini and Al-Jedda in Strasbourg, [2012] 23 European Journal of
International Law
Marko Milanovid, Norm Conflict in International Law: Whither Human Rights? [2009].20
Duke Journal of Comparative & International Law
Books
American Law Institute, Restatement (Third) of the Foreign Relations Law of the United
States (Philadelphia 1987)
Reports
International Law Commission, Fragmentation Report Conclusions [2006] 413
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 [13 April 2006] UN Doc A/CN.4/L.682