A/67/396
presumption in international law against normative conflict, 11 human rights treaty
bodies have developed a principle of construction to the effect that Council
resolutions should be read subject to a presumption that it was not the Council’s
intention to violate fundamental rights. 12 In the case of the Al-Qaida sanctions
regime, however, the language of the relevant resolutions does not allow for this
approach. 13
18. The powers of the Security Council are defined and limited by the Charter 14
(as well as being constrained by jus cogens norms of customary international
law 15). By Article 24, paragraph 2, of the Charter, the Council, when exercising its
powers under Chapter VII, is bound to act in accordance with the purposes of the
United Nations as defined in Article 1, which include both the maintenance of
international peace and security and the promotion of respect for human rights. The
General Assembly and the Council have frequently emphasized that these
imperatives do not pull in opposite directions. 16 In its most recent review of the
United Nations Global Counter-Terrorism Strategy in July 2012, the General
Assembly again called upon all United Nations entities involved in supporting
counter-terrorism efforts to continue to facilitate the promotion and protection of
human rights, due process and the rule of law. 17 As former Secretary-General Kofi
Annan has observed, the rule of law is a concept at the “very heart” of the United
Nations mission. 18
19. In 2005, the World Summit Outcome document called upon the Security
Council, with the support of the Secretary-General, to ensure that fair and clear
procedures existed for placing individuals and entities on sanctions lists, for
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13
14
15
16
17
18
12-52254
See A/CN.4/L.682, para. 37.
See CCPR/C/94/D/1472/2006 (“Sayadi and Vinck v. Belgium”), Separate Opinion of Sir Nigel
Rodley; European Court of Human Rights, Al-Jedda v. United Kingdom, Application
no. 27021/08, Judgement, 7 July 2011 (Grand Chamber), paras. 101-102.
See Nada v. Switzerland, Case No. 10593/08, European Court of Human Rights, 10 September
2012, para. 172.
See International Court of Justice, Conditions of Admission of a State to the United Nations
(Charter, Article 4), advisory opinion, ICJ Reports 1948, p. 57; International Criminal Tribunal
for the Former Yugoslavia, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia
Appeals Chamber, 2 October 1995, IT-94-1-AR72, para. 28.
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, ICJ Reports 1993, p. 325, Separate Opinion
of Judge Lauterpacht, p. 440, para. 100; A/CN.4/L.778, International Law Commission, Draft
Articles on the Responsibility of International Organizations, article 26 (30 May 2011); Stefan
Talmon, “Security Council Treaty Action”, Revue Helénique de Droit International, p. 68
(2009); Alexander Orakhelashvili, “The Impact of Peremptory Norms on the Interpretation and
Application of United Nations Security Council Resolutions”, 16 European Journal of
International Law 59 (2005); Prosecutor v. Dusko Tadic, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia
Appeals Chamber, 2 October 1995, IT-94-1-AR72, para. 296; Yassin Abdullah Kadi v. Council of
the European Union and Commission of the European Communities, Court of First Instance of
the European Communities, Case T-315/01, 21 September 2006, para. 230; Al-Jedda v. United
Kingdom, Application no. 27021/08, Judgement, 7 July 2011 (Grand Chamber) and Her
Majesty’s Treasury (Respondent) v. Mohammed Jabar Ahmed and others (FC) (Appellants)
[2010] UKSC 2, [2010] 2 AC 534, para. 151.
See resolution 60/288.
See resolution 66/282, para. 9.
See S/2004/616, para. 6.
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