Restriction of Powers : Human Rights Protection in the context of Security Council

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http://urn.fi/URN:NBN:fi:hulib-201508062791
Title: Restriction of Powers : Human Rights Protection in the context of Security Council
Author: Ylinen, Kati
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingfors universitet
Date: 2013
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201508062791
http://hdl.handle.net/10138/38182
Thesis level: master's thesis
Discipline: International law
Kansainvälinen oikeus
Folkrätt
Abstract: Is about the sanctions and procedures of the United Nations Security Council and the problems their application in practise may cause. Two cases are presented to exemplify the problems from an individual’s standpoint as well as that of the states bound by obligations towards individuals. The Kadi case represents a very direct breach of the rights of individuals attempted to justify with the need to protect and maintain international peace and security. It is argued that principles of necessity, proportionality, due process and legality are not paid sufficient attention and that the sanctions imposed by the Security Council should not be targeted on individuals since adequate means for legal protection are not available against such sanctions dictated by an intra-governmental organ without the capacity to arrange court hearings should the targeted individual wish to defend their self against the accusations. The facts of the Kadi case are presented along with the assessment of the human rights that conflict with the Security Council Resolutions in question. The improvements made into the procedures of the Sanctions Committee are noted despite the conclusion that they are not sufficient to make up for the inherent deficiencies of the sanctioning system in terms of human rights guarantees. In the Lockerbie case, the thesis argues, the Security Council was utilized to circumvent an international treaty to allow for a result that satisfied two of the permanent members of the Council, which again led to a violation of the rights of an individual. The Security Council demanded Libya to adjust its claims under the Montreal Convention which essentially prevented the International Court of Justice from effectively applying its jurisdiction. Instead being given the opportunity to trial its own nationals, Libya was pressured into allowing an international ad hoc court to try the suspects in the Netherlands. As a result, the individuals in question were put through a trial in which their rights as the accused where blatantly overlooked. Whether the convicted individual or any Libyan national for that matter, was responsible for the bomb aboard the Pan Am flight that exploded above Lockerbie in 1988 Is left uncertain. The authority and function of the Security Council and the historical background of it is presented in the third chapter. The reality of international politics is taken into account when deliberating the options for the restriction of the actions of the Council. The instances that are examined in sought of possible solutions include the International Court of Justice, the United Nations Charter, the General Assembly, human rights and international law. Assessment of the possible restrictions is performed taking into consideration the continuing need for an effective organ with the means to intervene when something threatens international peace or security. The credibility of the institution and the present and (possible) future compliance issues are reflected on. The European development in especially the field of human rights protection is presented as a possible source of inspiration for improving respect for fundamental human rights within the United Nations. The conclusions present the need to balance the different goals of the international community and the Security Council as the instrument of international law enforcement. Effective peace maintenance and human rights protection need to find correspondence with the interests of both the members of the Security Council and the general membership of the United Nations to allow both individual and common benefits realized. Being aware of the difficulties in changing greatly influential, international documents such as the United Nations Charter, which was obviously a result of various compromises to begin with, changing the Charter directly, is mostly disregarded as an option for updating the function of the Security Council. The thesis relies on the assumption that changing the Charter is not a realistic option at the moment and looks for solutions to the presented problems elsewhere. Gradually changing the present standpoints, deliberation procedures could amount to a sufficient correction of the power locus around the Security Council. If not, the International Court of Justice adopting a more teleological style of interpretation to reign in the actions of the Council could pose as a last resort to finding the necessary check to the balances.


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