Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?

Abstract

This article examines the extent to which human rights constrain the Security Council in the exercise of its functions under the United Nations Charter. It argues that there are good grounds for suggesting that human rights bind the Council as a matter of substantive law. However, such a general determination says little about how human rights bind the Council in practice. It is well recog- nized, for example, that many rights permit limitations or derogation in times of war and emergency. The article argues that the possibilities of human rights binding the Council on a practical level are limited. It argues further that an analogous application of the derogation clauses in international human rights treaties is problematic and unlikely to lead to increased accountability of the Council. The article then explores whether human rights can be employed to define the scope and content of alternative procedural constraints. It argues that the proportionality principle, in particular, constitutes a relevant procedural tool that can limit the powers of the Council, both as a principle of law and as a principle of good governance and regulatory policy. The article concludes that human rights law, including the jurisprudence on derogation, can play an import- ant role in defining and informing the application of the proportionality principle in the context of Security Council decision-making.