Le respect des droits de l’homme dans les actions du Conseil de sécurité des Nations Unies

This paper analyses whether the Security Council of the United Nations has to respect international human rights law when it adopts measures on the basis of Chapter VII of the United Nations Charter that directly affect individuals. This study also examines whether the Security Council has to take international human rights law into consideration when it adopts coercive measures that must be applied by Member States without any margin of appreciation. One objective of the United Nations, enshrined in Article 1 Paragraph 3 of the Charter of the United Nations, is to develop and encourage respect for human rights by Member States. The general principle of international law of good faith, which applies to the United Nations, requires that the United Nations, including the Security Council, interpret the Charter with good faith. The paper applies the general principle of good faith to the interpretation of Article 1 Paragraph 3 of the Charter and concludes that the Security Council has in principle to observe human rights of treaties drawn up under United Nations auspices, and that it cannot in principle ask Member States that they dismiss those rights in the implementation of resolutions of the Security Council. The Council can however deviate from human rights of treaties prepared by the United Nations or impose to Member States that they deviate from those in the implementation of sanctions decided by the Security Council, when the deviation is necessary and proportionate to the success of its action in the maintenance of peace. The Security Council enjoys a wide margin of appreciation when it assesses which derogations to human rights are necessary and proportionate to the fulfilment of its security’s objective. The paper also demonstrates that the United Nations, including the Security Council, have in principle to respect non-peremptory customary international law, including customary international human rights law. In addition, they cannot require from Member States that they dismiss that law, including in the implementation of resolutions of the Security Council. The study explains that the Security Council is however allowed to derogate from non-peremptory customary international human rights law and to require from Member States that they derogate from that law, when this is necessary to the success of its action in the maintenance of peace. The scope of the obligation of respect and taking into account of customary human rights by the Security Council is thus identical to that of the obligation of respect and taking into consideration of human rights of United Nations treaties on human rights. Finally, the paper argues that the United Nations cannot derogate through their unilateral acts from peremptory customary international law. The Security Council is therefore bound, without exception, by peremptory customary international human rights law. It cannot impose to Member States a derogation from that law. There are however only a few peremptory human rights. Thus, the paper concludes that the coercive action of the Security Council is limited to small extent by international human rights law.