A. The ‘International Constitutional’ and ‘Parochial’ Approaches

The ‘international constitutional’ and ‘parochial’ models proposed here are human rights- centred models of international law. They each represent an alternative means of ordering the relationship between national and international law, and different obligations within international law itself, in such a way that ensures the human rights guarantees undertaken by States remain effective. If human rights obligations are to be considered permanent in the sense that they are valid for individuals within a State's territory and jurisdiction, and that they cannot be revoked by the State, it is necessary to clarify what shape the international system could or should take to ensure this.

The answer to this depends on how one views the system itself: is it (should it be?) hierarchical, or ‘parochial’? As is discussed below, this goes beyond the monist versus dualist debate as well as the question of human rights as a lex specialis. The issue is not merely whether international law should penetrate the domestic sphere automatically, nor whether, in certain circumstances, the rules of human rights law should displace those of general international law (eg relating to the validity of treaty reservations).Footnote ⁵ Rather, the question is whether obligations of a ‘higher’ international order should penetrate those of a ‘lower’ order where they fail to observe human rights guarantees.

According to an ‘international constitutional’ model, human rights would be guaranteed within international law at a level higher than all other obligations. While some precedent exists in international law for this with the existence of rules of jus cogens, protection of human rights through this means cannot be considered concrete or clear. As is discussed below, the content of jus cogens is too narrow and too uncertain for this purpose. Rather, an ‘international constitutional’ model would fix human rights within the constitutions of all IGOs to ensure that no rules generated by such organizations, binding on their Member States, could conflict with human rights standards. Such a top-down approach would place human rights guarantees at the top of a pyramid of international obligations, allowing for States to implement their IGO-derived obligations without the danger of abrogating or defaulting on human rights obligations that already exist in international law.

It should be noted that the term ‘constitutional’ is used here simply to capture the idea of protecting human rights from the top-down via the constitutions or founding treaties of IGOs. It does not imply that any particular IGO should be seen to represent an overarching international constitution, nor that IGOs themselves should be democratized or in any other way ‘legitimated’ to the people of the world.Footnote ⁶

A ‘parochial’ approach would see human rights protected at a lower level. Rather than fixing human rights protection at a higher point in international law, States would filter international obligations at the national or regional level. Wherever international obligations conflict with national or regional human rights rules, any rule of international law would be denied effect within that jurisdiction.

B. Related Debates: Monism vs Dualism and Legal Pluralism

A. Hierarchy between Rules of International Law

The idea of hierarchy in international law is not well developed.Footnote ¹⁵ The existence of a hierarchy of norms, in the sense that Kelsen described, where each rule derives its validity from a higher rule, exists only in a limited sense.Footnote ¹⁶ The concept of jus cogens shows that those rules which have been recognized by the international community as a whole as of fundamental importance will take precedence over others.Footnote ¹⁷ According to article 64 of the Vienna Convention on the Law of Treaties (VCLT)—which is reaffirmed by article 26 of the Draft Articles on State Responsibility—treaty-law conflicting with rules that have attained jus cogens status will not be valid.Footnote ¹⁸ Thus, there do exist rules of international law that take priority over all others. It might therefore be argued that the protection of human rights through an ‘international constitutional’ approach to international law already exists through rules of jus cogens. However, it is extremely difficult to rely on rules of jus cogens for the protection of human rights because so few rules have been recognized as having attained this status. While the case-law of the Inter-American Commission of Human Rights has recognized rules of jus cogens quite liberally, most other international judicial bodies (such as the European Court of Human Rights and the International Court of Justice) have been far more cautious in making such pronouncements.Footnote ¹⁹

If jus cogens cannot be relied upon to ensure the protection of human rights, what of the range of regional and global human rights treaties? Unfortunately, while a considerable number of human rights instruments exist, there is nothing within them to suggest a superior status over other rules. In the absence of such a provision, the normal rules relating to priority among particular treaties must be applied. Similarly to customary international law, the principle of lex posterior derogat priori is affirmed by the VCLT.Footnote ²⁰

A later agreement on a matter between the same parties will take priority over an earlier agreement. To the extent that the subject matter and identity of the parties is not identical, a State's obligations towards other States will differ accordingly. This general rule does little to set an objective hierarchy, given the web of treaties to which States are party, but does give guidance on how to determine priority between conflicting obligations.Footnote ²¹ Some treaties, particularly those that establish IGOs, contain specific provisions relating to their status relative to other agreements. These might be termed ‘supremacy clauses’. For example, the UN Charter, which will be discussed below, contains article 103, according it priority over any other agreement that States have entered. Other treaties appear more modest. Thus, for instance, the Treaty on the Functioning of the European Union (TFEU) preserves treaty obligations entered into by Member States before joining the EU as towards third States, but takes priority over those obligations as between the Member States. It also requires Member States to eliminate incompatibilities as soon as possible.Footnote ²² The North American Free Trade Agreement (NAFTA) reaffirms commitments to all States under the World Trade Organisation, but then provides that the NAFTA Agreement shall prevail over all other agreements.Footnote ²³ The Treaty of the Economic Community of West African States (ECOWAS) permits States parties to conclude agreements with third States or organizations insofar as these are compatible with the ECOWAS treaty, and provides that agreements entered into prior to the creation of ECOWAS should be removed if they are incompatible.Footnote ²⁴ Some treaties however, contain little or no guidance on how to resolve a conflict with other agreements. For example, the Agreement Establishing the World Trade Organisation does not seem to contain a provision on priority,Footnote ²⁵ and the Articles of Agreement of the International Monetary Fund provide for negotiation of a mutually acceptable solution between parties where IMF obligations may conflict with obligations contained in a prior agreement, but only in limited circumstances.Footnote ²⁶

International law is not a particularly refined hierarchical system in that treaties, in practice, do not derive their validity from superior rules. Rather, they derive their validity from the procedural circumstance of having been created through State consent and—barring some procedural defect—will remain valid unless they conflict with a rule of jus cogens.Footnote ²⁷ At the same time States may maintain separate sets of conflicting rules with different groups of States quite freely so long as they remain able to perform their respective obligations. If treaties are a source of obligation rather than a source of law it is possible to accept that there exists a plurality of legal regimes on an equal level—a kind of heterarchy.Footnote ²⁸ In this sense the most that international law does in practice is to provide a means of assessing priority between conflicting rules, rather than establishing a pre-defined hierarchy.

Thus, successive treaties on the same subject matter between the same parties—subject to express exceptions, such as those given above—will take priority over earlier treaties, as between those parties. It might be objected that this poses no threat to human rights protection. If one treaty only takes priority over another to the extent that the same subject matter is covered, then the only kind of treaty that can take priority over a human rights treaty is another human rights treaty. However, the problem lies in the cross-cutting nature of human rights. A treaty regulating any subject matter can potentially have an impact on human rights guarantees, even if it does not expressly relate to the same issue. This much can be seen from the conflicts between rules relating to free trade and human rights in the context of the (then) European Economic Community.Footnote ²⁹

Apart from the potential confusion that may arise for governments as to the scope and beneficiaries of their obligations a very grave problem exists from the perspective of human rights.Footnote ³⁰ There is a danger when particular treaties provide for priority over other agreements, including human rights treaties, or are silent on the matter but concluded subsequently to human rights treaties.Footnote ³¹ Here the State may be faced with a conflict between its human rights obligations and other duties towards third States. The situation is more pronounced where the treaty in question has created an IGO, since often (either implicitly or explicitly) the IGO will possess legal personality and a degree of power to act autonomously of its individual State members. It is rare for the constitutive instruments of most IGOs—unless expressly created for that purpose—to contain human rights guarantees, nor are most (if any) IGOs party to human rights instruments, which means that there may well be no internal human rights ‘check’ to ensure that their decisions do not result in violations. The principal exception to this will be the EU, which intends to accede to the UN Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.Footnote ³²

B. Hierarchy between Rules of International and National Law

At the interface of international and national law, article 27 of the VCLT (reaffirmed by article 3 of the Draft Articles on State Responsibility)Footnote ³³ prohibiting States from using national law as an excuse for failure to execute international obligations, implicitly accepts that while national and international law may co-exist on different planes, international law should take priority between States.Footnote ³⁴ That is not to say that article 27 obliges the State to change its national law (though a pure monist might argue that this is the case), but it does confirm that at the international level it is international law and not national law that takes priority.Footnote ³⁵ The rules of national law, usually as interpreted by the national courts, then determine the extent to which the rule may apply domestically.Footnote ³⁶ A tradition conforming to a true ‘monist’ position will allow international law to penetrate into and take precedence over national law, while a ‘dualist’ tradition will permit entry of international law into national law only to the extent that it satisfies certain conditions.Footnote ³⁷

Thus under the current model of international law, States may be obliged to prioritize international commitments conflicting with prior human rights commitments. In addition to this they may not use human rights guaranteed at the national level as justification for refusing to implement these obligations. If a State chooses to prioritize national human rights law over international commitments, it will engage its international responsibility with regards to those States to which that obligation is owed.

From the foregoing, the following observations can be made. Firstly, while rules of jus cogens will prevail over conflicting rules, they are an inadequate vehicle for guaranteeing human rights protection, given their potentially vague and sparse content. Secondly, the rules for assessing priority between treaties obliges States to give effect over latterly created obligations, irrespective of their conflict with earlier human rights obligations. Thirdly, States are expected to ensure that their national law conforms to their international obligations, insofar as national law is relevant to inter-State relations. Accordingly, the current model of international law, given the context of increasing international integration, is inadequate to ensure that human rights obligations continue to be guaranteed. The article will now discuss the different possibilities for ensuring the continued protection of human rights.

A. A Priori Check

Currently within the UN there exists no routine prior verification that decisions taken by its institutions, or treaties elaborated in the context of the organization, actually comply with States members' human rights obligations. Exceptionally one might note the Security Council's Counter-Terrorism Committee. The CTC, responsible for monitoring and providing assistance to States in building capacity to prevent and combat terrorist activity, is required to seek advice at a general level on human rights from the UN's Office of the High Commissioner for Human Rights, but this does not seem to amount to the vetting or review of its decisions or policies before they are enacted.Footnote ³⁹ It is true that a substantial human rights infrastructure exists at the UN, having evolved since the organization's creation, but its role is predominantly to ensure that States—rather than the UN itself—collaborate in the creation of, and giving effect to, human rights guarantees.Footnote ⁴⁰ Were it possible to harness the expertise of the High Commission for Human Rights to assess the compatibility of proposals for UN action with human rights guarantees, this could significantly reduce the potential for decisions stemming from the UN to conflict with Member States' human rights obligations. There is already a precedent for this within another IGO, the European Union, which is discussed below.Footnote ⁴¹

B. Ex Post Facto Check

Similarly, ex post facto oversight is decidedly piecemeal and weak. The ‘Special Procedures’ operating under the UN Charter permit an independent expert to monitor human rights violations according to theme or country, and they have included UN administered territories within their enquiries,Footnote ⁴² as well as UN peacekeeping missions.Footnote ⁴³ However, this avenue is not geared towards individualized or enforceable remedies.Footnote ⁴⁴ Exceptionally, the UN human rights treaty bodies have also allowed the UN to report on human rights in territories under their administration despite not being party to the given treaty.Footnote ⁴⁵

These examples of supervision of the UN according to international human rights standards is remarkable in a sense since, as noted, the human rights machinery of the UN is geared towards its Member States. But at the same time, the example is of limited significance, because it relates to a situation where an IGO is substituting or supplementing a State as administrator of a territory, which is necessarily exceptional and temporary. Of greater concern here is the existence of a control over the law-making and decision-taking functions of the UN. In this situation one could envisage at least two possibilities: one, that the conduct of the IGO itself might be reviewed by a competent judicial body; the other that Member States' conduct remains subject to review, even when executing obligations deriving from membership of an IGO. The first possibility will be discussed through the example of the International Court of Justice (ICJ) as a judicial body competent to review conduct of the UN itself. The second possibility will contemplate the approach of the European Court of Human Rights (ECtHR) to the relative weight of the European Convention on Human Rights (ECHR) vis-à-vis States parties' obligations under the TFEU. These will now be discussed in turn.

C. Conduct Attributed to a State

The ECtHR has determined that where national authorities execute obligations incumbent upon them by virtue of obligations flowing from membership of an IGO, the State remains responsible for the acts in question.Footnote ⁷³ The ECtHR has maintained the principle that States cannot simply escape their human rights obligations by delegating powers to an IGO:

This statement would indicate that the ECtHR is prepared, in principle, to prevent States parties from allowing international commitments to override their human rights obligations. However, the ECtHR has instead conditioned the depth of its review according to arrangements existing within the IGO in question. Where the ECtHR is faced with such a situation, it will first determine whether a right has been interfered with; second, whether this interference was based on law and pursued a legitimate aim; and third, whether the level of interference was proportionate to the aim pursued. If the ECtHR finds that the State's alleged interference with human rights is rooted in obligations deriving from its membership of an IGO, it considers that the State's decision to implement such a rule is of itself a legitimate aim: that of complying with its international obligations.Footnote ⁷⁵ In order to determine whether pursuit of this legitimate aim was proportionate, the ECtHR has developed a doctrine of ‘equivalent’ protection. According to this approach, set out in the Bosphorous case, an interference with human rights will be presumed to be proportionateFootnote ⁷⁶ if the State has ensured that the IGO in question disposes of a system of ‘equivalent’ or ‘comparable’ protection of their human rights obligations derived from the ECHR.Footnote ⁷⁷ Such a presumption may be rebutted on evidence that the protection was in fact ‘manifestly deficient’.Footnote ⁷⁸ Accordingly, where the ECtHR finds that a State has provided for a system of comparable or equivalent protection of human rights within the IGO that the State is ‘blaming’ for the particular interference, the ECtHR will not consider the interference in question on its merits.Footnote ⁷⁹

This is not of itself a negative approach. Indeed, it can be seen as a living example of an ‘international constitutional’ model because the ECtHR's deference to a State's compliance with IGO-derived obligations depends on the guarantee of human rights within that particular organization. Where that organization is considered to have adequate internal human rights checks the ECtHR is prepared to indicate to national jurisdictions that they should allow these obligations to enter their legal systems without restriction. However, the difficulty lies in the ECtHR's view of what constitutes equivalent or comparable protection. Indeed this constitutes the danger inherent in the ‘international constitutional’ model.

The ECtHR has developed its approach in this area through cases relating to the EU, where it was satisfied—at least as regards those parts of EU activity permitting review by the CJEU—that human rights protection is indeed adequate.Footnote ⁸⁰ It is true that the CJEU's supervision of EU law and its application by the institutions and EU Member States includes ensuring compliance with the ‘general principles of community law’ developed by the Court. Among the general principles one can find substantive human rights as inspired by the ECHR.Footnote ⁸¹ The ECtHR found that while direct access for individuals to the CJEU under article 230 of the EC Treaty (the action for annulment of Community measures, now article 263 TFEU) was highly restricted, the existence of other remedies (the preliminary reference procedure under article 234 (now article 267 TFEU) and the actions for damages in tort under articles 235 and 288 (now articles 268 and 340 TFEU) was found to compensate for this.Footnote ⁸² While it beyond the scope of this article to conduct a detailed analysis of this finding, brief observations on the ECtHR's analysis should be made.

Firstly, the standing of individuals under article 263 TFEU is such that claimants may effectively only succeed where they are specifically targeted by a Community measure, which makes challenging general legislative measures virtually impossible.Footnote ⁸³ Secondly, while a preliminary reference by a national court to the CJEU for an interpretation of EC law allows the CJEU the opportunity to review Community legislation (under article 277 TFEU) the decision to make the referral and the parameters of the enquiry rest not with the individual parties to the case but with the national court itself.Footnote ⁸⁴ Further, only courts of last instance are obliged to make such a reference and even then they may choose not to refer (with little consequence) where they believe the interpretation to be given to the rule of Community law is clear.Footnote ⁸⁵ Thirdly, the action for damages in Union law under articles 268 and 340 TFEU does not allow the CJEU to annul any offending legislation and the individual will only succeed where the breach of law is manifest.Footnote ⁸⁶

This situation creates significant gaps in human rights protection. This much has been recognized by the EU's General Court (GC) which, having reviewed the range of remedies available, concluded ‘that the procedures provided for in, on the one hand, Article 234 EC [267 TFEU] and, on the other hand, Article 235 EC [268 TFEU] and … Article 288 EC [340 TFEU] can no longer be regarded, in the light of Articles 6 and 13 of the ECHR and of Article 47 of the Charter of Fundamental Rights,Footnote ⁸⁷ as guaranteeing persons the right to an effective remedy enabling them to contest the legality of Community measures of general application which directly affect their legal situation.’Footnote ⁸⁸ Given that there is doubt among the judicial institutions of the EU itself, it seems difficult to understand how the ECtHR could comfortably conclude that the system of remedies within the EU can form a comparable system of protection to that of the ECHR.Footnote ⁸⁹

Nevertheless, the ECtHR has displayed the potential for flexibility in its approach. In the earlier case of Matthews v UK, it did choose to examine the substance of a rule of EU law concerning elections to the European Parliament in Gibraltar. The rules being challenged by the claimant in Matthews were contained in a treaty agreed between the foreign ministers of the EU Member States outside the regular law-making process of the EU (the so-called ‘1976 Act’) and the Maastricht treaty itself, amending the EC Treaty.Footnote ⁹⁰ In contrast, the rule in Bosphorus stemmed from internal EU legislation. The Court in Bosphorus (where it first set out it test of equivalent or comparable protection) distinguished this case on the grounds that the UK's responsibility stemmed from ‘international instruments which were freely entered into’.Footnote ⁹¹ It seems that the ECtHR is making a distinction on the grounds of the immediacy or remoteness of State consent, leading to the violation: where the violation stems directly from a treaty this will be directly reviewable, whereas where the violation stems from the exercise of powers delegated to the institutions of the EU, this will engage the weaker level of review.Footnote ⁹² Thus by choosing to enter into the Treaty of Maastricht and the 1976 Act, the Member States were directly responsible for the impeached rule concerning elections to the European Parliament. While not expressly articulated by the ECtHR, in a retrospective reading of the cases, Costello points out a further distinction between the two cases: the acts complained of in Matthews were beyond the review of the CJEU because they were not themselves acts of the EU, while the same is not so of the acts complained of in the Bosphorous case.Footnote ⁹³

It is therefore possible to understand these cases to indicate that the ECtHR is prepared to adopt an ‘international constitutional’ approach by conditioning the depth of its review on the existence of an adequate human rights protection mechanism within the IGO in question. However, where the Court finds that such protection does not exist it is willing to resort to a ‘parochial’ approach by fully reviewing the disputed act. Such an approach leaves States free to conduct their affairs through IGOs while ensuring that human rights receive protection either at the point of origin (an internal check within the IGO) or, failing this, the point of impact (a check at the national or regional level).

At first glance, the problem for human rights protection might seem perceived rather than real given that, as noted above, most IGOs do not contain any a priori or ex post facto mechanisms for reviewing human rights compatibilities of measures taken. As such, one might expect the ECtHR to react as it did in Matthews, and apply a more thorough review when faced with situations where States parties act in execution of obligations derived from the vast majority of IGOs. However, quite apart from the lack of confidence one might have in the ECtHR's assessment of the equivalence of protection in another IGO, there is a further difficulty: in the Bosphorous case the ECtHR was examining a violation that stemmed not directly from an act of the EU, but from the implementation of that act by a Member State. Thus, it considered that the conduct in question was attributable to that State. Where the ECtHR considers that the act is to be attributed directly to the IGO, it will exercise no review at all. This has the potential to exclude a wide range of situations from supervision.

D. Conduct Attributed Directly to the IGO

Disappointingly, the ECtHR has failed to remain steadfast to its statement that ‘Contracting States’ responsibility [under the ECHR] continues even after they assume international obligations' in an IGO. In the Behrami and Saramati cases the Grand Chamber of the ECtHR found it was unable to take jurisdiction in an application alleging violations committed by UN peacekeeping forces created under Chapter VII of the UN Charter. Guided by the Draft Articles on the Responsibility of International Organisations of the International Law Commission,Footnote ⁹⁴ the ECtHR found that because States had donated troops to serve in forces operating under the command and control of a subsidiary organ of the UN (KFOR and UNMIK)Footnote ⁹⁵ individual donating States would not remain responsible for their illegal actions.Footnote ⁹⁶ That is, the conduct in question became attributable to the UN itself rather than the individual States.

The Court's reasoning—similarly to that of the House of Lords in the Al Jedda caseFootnote ⁹⁷—based itself in great part on its consideration that operations authorized under Chapter VII of the UN Charter are central to the UN's task of maintaining international peace and security, and that holding States to account for the acts of their armed forces under peacekeeping actions would frustrate this aim, by potentially interfering with actions mandated by the Security Council.Footnote ⁹⁸ The Court played down the fact that among the purposes and principles of the UN is the achievement of international cooperation in promoting and encouraging respect for human rights (UN Charter, article 1(3)), which features alongside maintaining international peace and security in article 1(1) of the Charter. It is submitted that, contrary to the position implied by the ECtHR, the Charter does not create a hierarchy between its purposes and principles giving priority to peace and security.Footnote ⁹⁹ According to the Charter's preamble, the very reason for charging the UN with the maintenance of international peace and security is that war brings ‘untold sorrow to mankind’ in the form of human rights violations. Surely, the aim of the UN is not to bring peace as the absence of war, but to bring peace as justice and fairness: integral to this is the protection of human rights.

The ECtHR then, essentially conforms to the approach, discussed above, that the UN Charter must take precedence over other international obligations, including human rights treaties. However, the ECtHR misses the opportunity to apply its own review of the UN to ensure the validity of its actions according to the references to human rights within the Charter, and elaborated by subsequent agreements in extension of the Charter.

The obvious problem with this approach is that, where conduct is attributed directly to an IGO, there is no means of holding the UN—or indeed any other IGO—to account for any violations that are attributed to it, even where these are carried out by the organs of the State. It does seem wrong to allow the UN Security Council carte blanche when there is no satisfactory method for verifying compliance of action authorized under Chapter VII with UN sponsored and endorsed human rights standards.Footnote ¹⁰⁰ It is surprising that the ECtHR does not require that the State ensure that the particular IGO provide for a system of comparable human rights protection. Even if the ECtHR accepted that individual national authorities had relinquished control over their forces, one cannot ignore that the act of handing over that control without ensuring adequate safeguards within the UN is arguably of itself a violation of its obligations under the ECHR. While referring to the International Law Commission (ILC) Draft Articles on the issue of attribution, the ECtHR appeared to neglect article 28(1) which states that a

The ILC's commentary on this article states that ‘it concerns circumvention by a State of one of its international obligations when it avails itself of the separate legal personality of an international organization of which it is a member.’Footnote ¹⁰² Arguably this should prevent a total absence of accountability such as that resulting in the Behrami and Saramati cases. That is, where States delegate power to an IGO to command and control forces ‘donated’ by national authorities they are arguably circumventing their own human rights obligations, and they should therefore be held responsible.

De Wet, in examining the position of the ECtHR as protector of a European public order based on human rights, concluded that ‘the line of jurisprudence affirming the ECHR's normatively superior position as a constitutional instrument of European public order in the field of human rights that can outweigh the interest of international cooperation is very prevalent.’Footnote ¹⁰³ The author holds up the ECtHR as a body which adheres predominantly to what would be termed here as a ‘parochial’ approach. However, the above discussion clearly demonstrates that the ECtHR's approach is rather more split between a ‘constitutional’ approach and a ‘parochial’ approach. Where it deems conduct to be attributable to the State party, it is happy to refrain from interference, but only if it is satisfied that the IGO in question adequately regulates human rights internally. This suggests that deference to external international obligations is conditioned upon their respect for human rights and that a ‘parochial’ approach will be taken where this condition is not satisfied. While this confirms De Wet's opinion, two extremely important caveats must be underlined. Firstly, the verification of other IGOs' human rights guarantees may prove superficial. Secondly, the ECtHR may choose to decline jurisdiction altogether on the basis of how it attributes responsibility for the conduct in question. Where the ECtHR refuses to take jurisdiction at all, it embraces an ‘international constitutional’ model of international law, minus human rights guarantees, because it provides the national courts with no guidance on how to prioritize the ECHR and other obligations.

The question is how often the ECtHR will lean towards denial of jurisdiction on the basis of attribution of responsibility to an IGO. If the ECtHR in Behrami and Saramati set special store by the fact that it was dealing with the safeguarding of international peace and security by the Security Council then perhaps it may be less ready to deny jurisdiction when faced with (less important) acts performed through other IGOs. Even so, these cases set a dangerous precedent, potentially excluding from review a situation where the State party's organs are deemed to be at the disposal of an IGO, or where the IGO has its own personnel to execute the act. If the ECtHR does not take a sufficiently rigorous stance, then national courts may not feel able to accord local human rights standards the importance they deserve, and this much is evidenced by the House of Lords decision in Al-Jedda, discussed above.

E. An International Constitutional Model in Practice

In light of the above, how then would an ‘international constitutional’ model of human rights protection function? It seems that in theory at least, an ‘international constitutional’ approach to human rights protection is feasible. The UN disposes of the necessary human rights standards and a great deal of machinery which could be oriented towards the performance of ex ante human rights checks on decisions that originate from UN organs. It is suggested that a mechanism be put in place whereby measures taken by UN organs incorporate an impact assessment for the consequences of measures or policies adopted for human rights as recognized in the ‘core’ UN human rights treaties. The methodology for ensuring human rights compliance could involve the mainstreaming of human rights standards into decision-making processes, through the elaboration of guidelines tailored to match the functions of different institutions and agencies, as well as human rights training for policy-makers. Such measures would reduce the possibility of decisions emanating from these bodies that would compel or allow States members to contravene human rights standards. It may also be possible to imagine the Office of the High Commissioner for Human Rights being able to offer a greater pool of human rights specialists, who could themselves be attached to each of the UN's organs and agencies to systematically review policies and work plans. Similar mechanisms should be put in place for all IGOs which, depending upon their size, would need to recruit or externally contract human rights specialists (for example, through NGOs) to systematically advise them on the compatibility of proposed measures with UN human rights standards. A process along these lines has been adopted by the EU's Commission to ensure ‘fundamental rights proofing’ when drawing up legislative proposals. However the Commission seems to distance itself from the EU's Fundamental Rights Agency in this respect, stating that while it ‘can, indeed, harness the expertise of the Agency … it is to be recalled that the scrutiny of conformity of proposals with fundamental rights is not within the mandate of the Agency.’Footnote ¹⁰⁴

An ex post facto review of measures and policies emanating from IGOs may offer a more straightforward solution. As noted, there exist protection mechanisms both at the UN and regional level capable of dealing with complaints of human rights violations committed by States. It is not beyond imagination to envisage that these mechanisms could themselves be turned to review the actions of IGOs. This could be accomplished simply be requiring all IGOs to become party to the principal UN human rights treaties. Alternatives include establishing a single world human rights court with jurisdiction over all IGOs, States and individuals, or creation of a monitoring system internal to the IGO. With the requisite consent the respective monitoring bodies would then be able to receive individual complaints concerning these IGOs as well as periodic reports detailing measures that they have taken to ensure the implementation of the treaties. This would require amendment of most of these human rights treaties, as currently the UN Disabilities Convention is the only one to envisage membership of an IGO. However, this is a feasible proposition, as can be seen in the context of the Council of Europe where several human rights treaties—including the ECHR—are now open to membership by the EU itself.Footnote ¹⁰⁵ Such an approach may also call for an amendment of the founding treaties of the IGOs in question. For instance, the EU was held by the CJEU to lack competence to become party of the ECHR without an amendment to the treaty to this effect (now contained in article 6(3) of the TEU).Footnote ¹⁰⁶

As discussed, the UN Charter poses a particular problem because of the perceived status of article 103. As a conceptual issue, it is important, therefore, that any organs which were to become competent to review the actions of the UN would appreciate that UN decisions must conform to the general purpose of the UN to promote human rights. This would be in line with the stance of the ICJ that article 103 cannot itself preclude review of whether the UN has acted ultra vires.

If human rights could be protected in such a top-down manner, it would alleviate the dangers outlined in the introduction to this article. That is, States would not be placed in a position where they would have to accord priority to UN obligations which conflict with their existing human rights obligations, because there would be no such conflict from the start. This, however, does not imply that an ‘international constitutional’ approach is necessarily ideal in practice. The approach of the ECtHR reveals the potential pitfalls if excessive deference is accorded to an IGO considered to provide adequate internal human rights checks. If national or regional courts were to accept an ‘international constitutional’ model, it follows that the protection provided at the international level must itself prove effective. The ECtHR's questionable assessment of the EU's human rights protection mechanisms, which led it to adopt the ‘international constitutional’ approach, suggests that it may be desirable to opt for a ‘parochial’ approach.

A. The General Court of the EU

As discussed above, in the Kadi decision the GC accepted that the EU—insofar as its competences were relevant—was duty-bound to give effect to the Member States' obligations derived from the UN Charter. With reference to article 103 of the UN Charter the GC acknowledged that ‘[f]rom the standpoint of international law’ the UN Charter imposed obligations on the Member States that ‘clearly prevail over every other obligation of domestic law or of international treaty law including … their obligations under the ECHR and … their obligations under the EC Treaty.’Footnote ¹¹² The GC even went so far as to say that the EU itself was bound by the UN Charter ‘in the same way as its Member States’.Footnote ¹¹³ However, the GC also maintained that it was ‘not under general international law’ that the EU was required to give effect to obligations deriving from the UN, but rather ‘by virtue of the EC Treaty itself’,Footnote ¹¹⁴ namely article 307 of the European Community Treaty (now article 351 TFEU),Footnote ¹¹⁵ which reads:

In the eyes of the GC, article 307 EC preserved Member States' obligations towards third States that originate prior to their membership of the EU which, for all Member States, includes the UN Charter. Thus the GC appears to draw a distinction between the EU's obligation vis-à-vis third States (which is to observe the Charter) and what the EU is obliged to do internally (which is to observe the EC Treaty and the acquis communautaire). Nevertheless, article 307 combined with article 103 of the UN Charter meant that any SC Resolution would take precedence over all obligations deriving from EU law including the protection of fundamental rights secured within EU law by the ‘general principles’ developed by the CJEU. Ultimately, while the GC declined to review the UN Security Council Resolutions by reference to the Charter, it found that rules of jus cogens relevant to human rights protection would prevail over UN-derived obligations.

The GC then, was prepared to prevent UN-derived obligations from penetrating the EU legal order by reference to a set of rules existing beyond its legal order. However, the GC did not admit that the EU's internal law relating to human rights could apply in the circumstances, given the status of the UN Charter. This is one way that a parochial approach to international law could operate. That is to say, review of an IGO could be carried out by a regional or national court (‘from below’) by reference to international law itself. Whether that may be by reference to rules of jus cogens, the constitution of the IGO itself (where it contains human rights guarantees), or by according priority in national courts to human rights treaties.

B. The Court of Justice of the EU

Another means of framing the parochial approach would be to evaluate rules stemming from an IGO according to human rights as incorporated into the internal (regional or national) legal system. This has the advantage that judges applying the law will be more familiar with the standards they are safeguarding and also reflects the idea that ultimate responsibility and capacity to guarantee human rights rests at the national level.Footnote ¹¹⁶ In this vein the CJEU, on appeal from the Kadi case, was prepared to review the pertinent SC Resolutions according to human rights derived from an internal source of law—the general principles of EU law developed by the CJEU.

On appeal from the GC,Footnote ¹¹⁷ the CJEU, despite acknowledging the supremacy in general international law of the UN Charter and obligations deriving from it,Footnote ¹¹⁸ reasserted the traditional stance of the CJEU: that the EU legal order is autonomous vis-à-vis international law.Footnote ¹¹⁹ It further maintained that ‘the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights’.Footnote ¹²⁰ While maintaining that it had no jurisdiction to pronounce on the validity of the original SC Resolutions, (even in light of rules of jus cogens, unlike the GC) it did have the duty to ensure compliance by the EU with internal human rights standards when implementing these Resolutions.Footnote ¹²¹

The CJEU's interpretation of article 307 is of particular pertinence. As noted above, many IGOs contain ‘supremacy clauses’ governing the relationship between obligations towards third parties and obligations between the other members under the founding treaty. Article 307 preserves for Member States their pre-existing commitments towards third States. While the GC took article 307, together article 103 of the UN Charter to mean that SC Resolutions penetrated directly into the EU's legal order, the CJEU maintained a clear boundary between the internal and external legal order:

Thus, as between themselves, the Member States must ensure observance of EU law, even if they remain obliged otherwise to third States. Advocate General Maduro before the CJEU summed up the ‘parochial’ approach that the CJEU chose to take maintaining that the

In this respect it was implicitly accepted by the CJEU—and explicitly accepted by the Advocate General—that Member States may thereby engage their international responsibility towards other UN members by failing to implement the SC Resolutions.Footnote ¹²⁴ Interestingly, the Advocate General seemed to suggest that the solution to this situation would be a human rights check at the point of origin within the UN—ie an ‘international constitutional’ approach. In this vein he pointed to the duty of Member States to eliminate incompatibilities between their obligations towards third States and their obligations under EU law in ECT article 307. According to the AG this ‘duty requires Member States to exercise their powers and responsibilities in an international organization such as the United Nations in a manner that is compatible with the conditions set by the primary rules and the general principles of Community law.’Footnote ¹²⁵ Accordingly, Member States must do everything in their power to prevent the adoption by organs of the UN of decisions that are incompatible with EU law.

C. The Influence of the CJEU in the UK Courts

As noted above, in the Al-Jedda case the UK House of Lords chose to follow the lead of the ECtHR in denying the ability to review UN action for compatibility with human rights, either as contained in the ECHR or the UN Charter. However, in cases arising since that judgment, the UK Courts appear to be changing their course, and in part this seems to be a response to the approach of the CJEU. A number of cases have arisen relating to the interpretation of both EC Regulation 881/2002 and the UK Orders in Council, giving effect to the sanctions regime of the Security Council, in particular regarding how strictly the UK government should construe the obligations to deny resources to individuals suspected of terrorism.Footnote ¹²⁶ In the case of A et al v HM Treasury the Queen's Bench Division quashed two Orders in Council detailing the implementation of SC Resolutions.Footnote ¹²⁷ The judgment of Justice Collins draws heavily upon the Opinion of Advocate General Maduro (since it was decided before the CJEU delivered its judgment) in the Kadi case and expressed a certain regret in feeling obliged to follow the Al-Jedda precedent in the House of Lords, which accorded priority to SC Resolutions over human rights guarantees.Footnote ¹²⁸ Nevertheless the Court was able to find that because the legislation contained so many potential threats to human rights, the choice of legislative instrument was defective, in that it failed to allow Parliament the opportunity to debate the implementation of the SC Resolutions in a way that would guarantee the minimum interference possible with human rights.Footnote ¹²⁹ Thus, while unable to deviate from the stance of the House of Lords, the judgment shows considerable deference for the overall approach of Advocate General Maduro in producing an outcome that maximizes protection for human rights. Furthermore in the case of R (on the application of M) v HM Treasury and other actions, concerning the interpretation of EC Regulation 881/2002 and an earlier Order in Council giving effect to the sanctions regimeFootnote ¹³⁰ the House of Lords has requested an interpretation of the EC legislation from the CJEU under the preliminary reference procedure.Footnote ¹³¹ Taking into account the CJEU's approach to this Regulation in the Kadi case, it may well have occasion to declare parts of the legislation null for failing to secure sufficient human rights guarantees. However, this remains to be seen, since the questions raised in the House of Lords reference concern how to interpret certain provisions relating to access to resources for subsistence purposes, rather than the question of the legality per se of freezing assets, or the inadequacy of fair trial guarantees in the process as a whole.Footnote ¹³²

Significantly, the Orders in Council do not, in the main, purport to implement EU Regulation 881/2002, but are rare domestic implementations of the SC Resolutions establishing the sanctions regimes.Footnote ¹³³ This is significant because in light of the Kadi decision, Member States of the EU might in future decide to adopt national measures individually rather than acting through the EU itself. However, as Advocate General Maduro pointed out, EU law would prevent a Member State from implementing any obligation deriving from commitments to third parties individually where the law in question overlapped with areas of EU competence.Footnote ¹³⁴ Considering that both EU legislation and the Orders in Council purport to implement the same SC regime, it is difficult to see how any national legislation could not fall within the jurisdiction of the CJEU for the purposes of review.

Accordingly, the CJEU, in adopting a ‘parochial’ approach, ensures that obligations external to the EU legal system, even if they have a higher status in the international legal order, may only penetrate the EU system under conditions determined by the CJEU itself. Such conditions include the need to comply with human rights as guaranteed by EU law. As noted above, there is still difficulty concerning access for individuals to the CJEU. Nevertheless the stance in the Kadi decision is a powerful inspiration for national courts. For as long as there is no human rights protection against the UN's own decisions through an ‘international constitutional’ approach, such a ‘parochial’ approach has its advantages.

D. A Parochial Model in Practice

A parochial model of human rights protection requires that each State's national courts refrain from recognizing the validity of international obligations that conflict with national human rights guarantees. Of course, this presupposes the existence of such guarantees and that they have ‘primary’ or constitutional status in national law.Footnote ¹³⁵ Examples of such an approach in practice can be found in the dialogue between the German and Italian national courts and the CJEU during the early years of European integration, where these courts reserved for themselves the ability not to recognize the supremacy of Community legislation when it conflicted with constitutional human rights guarantees.Footnote ¹³⁶ As can be seen, it may also be possible for a ‘parochial’ approach to be adopted by a regional IGO relative to obligations stemming from wider IGOs or international law more generally. However, the modality of this will depend on the relationship between the legal system of that IGO, and its Member States—and at present the EU is probably a unique example, given the degree of integration between national and EU law. EU law has primacy over national law, and where the application of EU law overlaps with national law, the CJEU will prevent the EU or the Member States applying rules that conflict with the general principles of EU law. Member States may be able to avoid this supervision by legislating on these matters individually, rather than through the EU itself, though where these matters have already been legislated and struck down at the EU level, the CJEU may regard such individual measures as falling within the competence of the Union. Even so, a parochial approach could include a double layer of protection, with national courts, at the same time as the CJEU, checking on national implementation of international obligations. As discussed above, a refusal to execute these obligations may still engage international responsibility, because States may not use internal law as a justification for failure to implement their international obligations (article 27 VCLT).