Is the UN Security Council bound by human rights law?

Author:Gowlland-Debbas, Vera
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 am, Friday, March 27 by its moderator, Ryan Goodman of Harvard Law School, who introduced the panelists: Vera Gowlland-Debbas of the Graduate Institute of International and Development Studies; Linos-Alexander Sicilianos of the National and Kapodistrian University of Athens; and Grainne de Burca of Fordham University School of Law. *


I would like to approach this topic from certain paradoxes in the international legal system. The first lies in the contradictory legal processes that reflect centrifugal and globalizing forces in international society: on the one hand, fragmentation and compartmentalization of international law and, on the other, construction of unifying, universalizing elements--an ordre public emerging from the hierarchization of rules due to a growing value-oriented or public interest-oriented international law. The international legal order has singled out certain vital functions of the system, inter alia, maintenance of international public order and the incorporation of a certain universal moral or ethical foundation in the form of human rights. This hierarchization of norms has paradoxically resulted in the construction of bridges between and the permeability of different areas of law simply because we need consistent and coherent responses to the challenges we are facing. Where international organizations (hereinafter "10s") are concerned, this has led to a trend to internalize such community values and interests, which in turn has required a re-interpretation of mandates. In the absence of a central instance for deciding on the content of a public policy, this is being done piecemeal through the practice of the individual institutions. Of course, the UN contains its own value system, including its human rights provisions. Yet, ironically, it is in the context of the UN that clashes between public policy norms have landed before a variety of judicial organs.

This leads me to the second paradox that is to be found in the very decisions of the Security Council. On the one hand, it has the primary responsibility for maintaining international peace and security, and on the other hand, in its practice it has also arraigned on itself a human rights protection function. The Security Council visibly is concerned with human rights. Rather than seeing a tension between human rights and maintenance of public order, we have seen a shift in priority with human rights now forming a component part of the security fabric--instead of, as originally intended, perceived as part of the longer-term creation of the conditions conducive to peace. In fact, in thus dabbling in human rights law, the Council has pre-empted the functions of other organs such as the General Assembly.

The paradox lies in that effective implementation of Security Council decisions has challenged these...

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