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ARTICLE 103, UN CHARTER: ITS MANDATE AND OPERATION BY: VIDHI SANTOSH RANE
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ARTICLE 103, UN CHARTER: ITS MANDATE
AND OPERATION
AUTHORED
BY: VIDHI SANTOSH RANE
O.P.
Jindal Global Law School (Sonipat)
“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.”[1]
The UN Charter is considered to revolve around Article 103, not
only theoretically but also in its entire construction. It is the source from
which the Charter's supreme powers flow; this sense of supremacy is present
because, as per the language of the article, it has precedence over obligations
arising from all the other international treaties and agreements. The underlying
premise of the Article is that the Charter serves as both a frame support and
the topmost layer in the hierarchy of standards in International Law.[2] The application of this article, however, strikes up a
conversation about certain issues like hindrance to the sovereignty of a state;
the UN Charter being a treaty negating the obligations of other international
treaties; and the conflict between Article 103 and customary law (jus cogens). This paper will majorly discuss Article 103 in relation to these
three conflicting ideas.
State Sovereignty:
Sovereignty
is an evolving concept. According to the international law norm of state
sovereignty established by the Westphalian sovereignty concept[3], every state, regardless of size, has equal sovereignty rights
and exclusive power over its territory. On the surface, this idea appears to be
engraved in the UN Charter as well. The United Nations' first and greatest
obligation is to create and maintain a calm and secure environment. The
sovereignty of a state and the maintenance of international security are
inextricably linked. According to Article 2(1) of the Charter, the UN derives
its foundation from the sovereign equality of all its members. However, this is
seldom seen in practice. For example, in relation to Article 103, it inserts a
supremacy clause in the Charter which affects not only the legal obligations of
the member states but also imposes a criminal sanction in the case of a state
entering into a treaty whose obligations do not coincide with those of the
Charter. This inconsistency in awarding absolute state sovereignty between the
provisions of Article 2(1) and Article 103 outlandishly suggests that there is
still a lot more research that has to be done on the purpose and mandate when
the obligations emanating from the provisions of the UN Charter vary from other
international agreements. As aforementioned, a state’s sovereignty is absolute
and evolving in nature. The UN Charter freezes this evolution and this becomes
a point of contention if there is an attempt to amend any of the provisions.
However, the decisions taken by the Security Council which subjects the
involved states to certain obligations are made with a socio-political point of
view. On one hand, the question of whether Article 103 interferes with the
state's sovereignty and its ability to enter into international agreements may
be answered in the affirmative; however, at the same time, we cannot ignore the
argument that the main objective of the United Nations is to maintain peace and
security, and in order to fulfil that, the Charter tweaks and protects its own
concept of state sovereignty.[4]
Scope of the Article 103:
Now, it is fairly easy to interpret
that the treaty, through this particular article, does not put a bar on all the
obligations arising from all the international treaties but aims to resolve the
conflicts between the treaty obligations of the members of the United Nations.
According to Hans Kelsen, in his analysis of Article 103, there are two major
types of conflicts with respect to "obligations"[5], namely
(1)
A conflict between treaty obligations under the present Charter and treaty
obligations imposed by treaties signed by members;
(2)
A conflict between treaty obligations under the present Charter and treaty
obligations imposed by treaties signed by members and the non-members
A
conflict arises only in the situation where either the parties to any two
treaties are identical or a state that is party to a treaty enters into another
treaty. This is based on logic, as a conflict is only possible if there is any
apparent similarity between the obligations, and there will be no conflict if
such treaties are signed by different parties. In the first instance, when
there is a disagreement between the Charter and duties developing among members
under other treaties, this clause provides that if an inconsistent treaty is
signed prior to the Charter's execution, it is repudiated. If, on the other
hand, such a treaty is signed by member states after the Charter's
implementation, Article 103 renders the treaty or accord null and invalid. It
is also important to note that, due to the use of the phrase "present charter", the
scope of the article is narrowed and the only way such a conflicting obligation
can be applicable is if there is an amendment to the Charter by way of Article
108. In the second case, where the conflict is between members and non-members,
some international law scholars argue that states that enter into such a treaty
that is inconsistent with the Charter are breaching a contract and thus
committing an illegal act, and that such states should be held legally liable
for the same. However, this approach is critiqued by Kelsen, on the ground that
it is tenable and it is difficult to ascertain if a state is entering into a
treaty which is inconsistent with a treaty previously signed by the state.
Calling it an "illegal act" on the part of the state and holding them
at a strict pedestal would be manifestly unfair, as the treaty may be entered
into by them sincerely and without any malice.[6]
Identifying
obligational conflicts requires a closer look at the text of the Charter. The
term "obligations" in Article 103 includes not only those obligations
that stem directly from the Charter but also indirect ones. A prime example is
the direct obligation stipulated by Article 2(3) to the members to settle
disputes among them in a peaceful manner. In addition to this, there also exist
obligations which are indirectly derived from the other organs of the UN, for
example Article 25, which stipulates the members' to take decisions in
accordance with the Security Council.[7] So, although Article 103 is clear and unambiguous, in its
words, the application of this "supremacy clause" is and will always
be a point of contention for international law scholars, as there is no
straight-jacket formula.
Challenges in Application of Article 103
In
the recent Al-Jedda case, the House of Lords decided that the authorizations
were within the purview of Article 103[8]. The issue concerned the legal ramifications of Peace Council
Resolution 1546, which granted coalition troops in Iraq "power to take all
necessary measures to assist in the maintenance of security and stability in
Iraq in conformity with the letters appended to [the] resolution."[9] Such actions included "internment when... required for
imperative reasons of security in Iraq," according to the accompanying
letter from the US Secretary of State. Mr. Hilal Al-Jedda was detained by
British soldiers because of this. He filed a court complaint alleging that he
had been detained in breach of the European Convention on Human Rights (ECHR)[10], as incorporated into English law by the Human Rights Act 1998.
The House of Lords maintained the lower courts' conclusion that authorizations
did indeed trigger Article 103, thus triumphing over the ECHR. One of the main
reasons was amendments to the security system.[11]
Secondly, the usage of the word "obligation" precludes
the possibility of subordinating the instance of authorizations under Article
103. G. Gaja [12]presents this reasoning. Texts, contrastingly, should be taken
literally but must be understood using a variety of techniques and approaches.
This is especially evident when the text is challenged with later practise,
classifications in the legislations or have fundamental political implications
that contradict the original objectives. It should be recognised that G. Gaja
is correct in not giving the language of Article 103 any petrified status. On another
point raised by this provision, he suggests that "the same principle
should apply with regard to obligations under general international law,
because there would be little reason to treat international obligations
differently depending on their source."[13] Further, the language of Article 103 states that the Charter's
responsibilities take precedence over the commitments of any other
international "agreement." However, this contented because the an
agreement, in its strict sense is not international law, but the language of an
international law. Once the enormous
gate of Chapter VII of the Charter is crossed, the Security Council has much
too much discretionary and unrestrained decision-making authority. This may have
been admirable in 1945, when the newly formed organisation had to contend with
the defunct and impotent League of Nations. Such an astonishing variety of
unrestricted presidential authority may be perplexing today, given the
extending arm of rule of law constraints. However, this concern, must be sought
in the revision of substantive norms on Council action, as well as perhaps in
some kinds of judicial review. Article 103 only represents the Council's
material powers. If the latter are considered to be excessively substantial,
they should be lowered, and so the scope of Article 103 is automatically
restricted.[14]
Article 103 and Jus Cogens:
After considering the extent and effect of Article 103 of the UN
Charter on a state's sovereignty, the question now becomes whether an obligation
deriving from the Charter takes precedence over duties represented by the
customary law concept of jus cogens, given the
constitutional nature of the Charter. The principle of jus cogens, in simple words means, a law that is compelling in nature and
these law are considered as the most superior laws in all of International
laws.[15] It derives its legitimacy through the natural law principles,
which holds that the state’s sovereignty cannot be absolute as there is no
absolute freedom to enter into contractual agreements[16].
With regards to the connection between Article 103 and the jus
cogens, many scholars have commented that, on the technical basis, there is a
limit to the application of Article 103 of the Charter to other treaties
entered into by the member states; it leaves open the possibility of
soporiferous by certain customary laws[17]. Similarly, as per Geoffrey Watson, the reasoning of the
supremacy clause is confined to inconsistent treaty obligations because, as
expressed in the article, "other international agreements" provide
that customary law prevails over the charter[18]. Also, in a genocide case in the year 1991, Lockerbie stated with respect to the Security Council resolutions that the
provision of Article 103 does not extend either to ascertaining the hierarchy
of principles nor to a conflict between the Security Council and the principle
of jus cogens. This demonstrates that the ambit of Article 103 is not universal
and the customary law of jus cogens acts as a limitation to the power extended
to the provision[19]. One could also make the general argument that the Chater is
subject to jus cogens on the ground that it is an international treaty. Given
that there is little evidence in the actual wordings of Article 103 to imply
the inference of customary international law, the concept of jus cogens will
prevail for the purposes of the provisions' implementation in international
law.[20]
Conclusion
In conclusion, as Benedetto Conforti puts
it, "[the] constitutional aspect of the
United Nations Charter should not be exaggerated. The Charter is and remains a
treaty. " It can be successfully
interpreted through this that even though the Charter depicts certain
constitutional elements, the ambit and application of them should extend only
to the subsequent international agreements. Moreover, the evolved sovereignity
maintained by the UN Charter is acceptable as it is a matter of international
peace and security as long as, in order to respect a member state’s
sovereignty, the Charter provides legal justification for the sanctions of
criminal nature against such states for fulfilment of the obligations. The
relevance of Art. 103 is expected to increase in accordance with the broader
trend toward increasing diversification, if not fragmentation, of international
law and the increased exercise of Chapter VII powers by the Security Council.
It serves a crucial, possibly constitutional[21], purpose in preserving the integrity and coherence of the
international legal system under the auspices of the UN Charter[22]. Nonetheless, notwithstanding the Charter's predominance over
other accords under Art. 103, many governments appear to consider it an
ordinary treaty[23]. The absence of direct impact and supremacy of UN law inside
the domestic legal order, and potentially even within regional transnational
legal systems, poses a considerably bigger danger to the UN's power than
challenges to the bindingness of a single Security Council resolution, as in
the Lockerbie Cases[24]. In reality, it appears less significant to consider Art. 103
as an indication of hierarchy in the powers between the Charter and any other
international treaty, or as a mere conflict rule excluding the Charter's
application to later-in-time and lex specialis regulations. In any event,
Article 103 is a crucial Charter principle that ensures the Charter's priority
over all other inter-state treaties. A competent interpretation of the United
Nations Charter in light of relevant general international law and much more so
of ordinary international law in light of the Charter, will make the deployment
of Art. 103's "big stick" unusual, if not superfluous. Thus, Art. 103
principally acts as a rule of interpretation of international law in accordance
with the Charter; it not only acts as a yardstick of the law but also protects
the authority of the Charter.[25]
[2] Fassbender B, “The United Nations Charter as the Constitution of the International
Community” (BrillApril 7, 2009)
accessed October 10, 2022
[4] Reference- “The United Nations
and State Sovereignty: Mechanism for Managing International Security” (Taylor & Francis)
accessed October 10, 2022
[5] Kelsen H, “Conflicts between Obligations under the Charter of the
United Nations and Obligations under Other International Agreements - An
Analysis of Article 103 of the Charter (Page- 284-285)” (Redirecting...)
accessed October 10, 2022
[6] Kelsen H, “Conflicts between Obligations under the Charter of the
United Nations and Obligations under Other International Agreements - An
Analysis of Article 103 of the Charter (Page- 284-285)” (Redirecting...)
accessed October 10, 2022
[7] “The Scope of the
Supremacy Clause of the United Nations Charter - JSTOR”
accessed October 10, 2022
[8] United Nations
High Commissioner for Refugees, “R (On the Application of Al-Jedda) (FC) (Appellant) v
Secretary of State for Defence (Respondent) [2007] UKHL 58” (Refworld)
accessed October
10, 2022
[9] “UNSCR Search
Engine for the United Nations Security Council Resolutions” (UNSCR)
accessed October 10, 2022
[10] “European
Convention on Human Rights - European Court of Human Rights”
accessed October
10, 2022
[12] Gaja G, “The Protection of
General Interests in the International Community General Course on Public
International Law (2011) (Volume 364)” (BrillAugust 1, 2013)
accessed October 10, 2022
[13] Gaja G, “The Protection of
General Interests in the International Community General Course on Public
International Law (2011) (Volume 364)” (BrillAugust 1, 2013)
accessed October 10, 2022
[17] Perez AF, “The Perils of Pinochet: Problems for Transnational
Justice and a Supranational Governance Solution” (Catholic Law Scholarship
Repository)
[18] Watson GR, “Constitutionalism, Judicial Review, and the World
Court” (Catholic Law Scholarship Repository)
[19] Paust JJ, “Peace-Making and
Security Council Powers: Bosnia-Herzegovina Raises International and
Constitutional Questions” (SSRNJune 20, 2014)
accessed
October 10, 2022
[20] “The Scope of the
Supremacy Clause of the United Nations Charter - JSTOR”
accessed October 10, 2022
[21] Dupuy P-M, “The Constitutional
Dimension of the Charter of the United Nations Revisited” (BrillJanuary
1, 1997)
accessed October 10, 2022
[22]Abi-Saab G, “Ordre Juridique
International”
(Google BooksMarch 16, 2001)
accessed October 10, 2022
[23] “NATO, the UN and
the Use of Force: Legal Aspects” (Academic.oup.com)
accessed October
10, 2022
[24] Wessendorf N, “The Charter of the United Nations: A Commentary” (Google
BooksNovember 22, 2012)
accessed October 10, 2022
[25] Leiæ
JR and Paulus A, “Ch.XVI Miscellaneous Provisions,
Article 103” (Oxford Public International Law)
accessed October 10, 2022
Article Information
ARTICLE 103, UN CHARTER: ITS MANDATE AND OPERATION BY: VIDHI SANTOSH RANE
Authors: VIDHI SANTOSH RANE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/03
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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