The Power of Article 103 of the un Charter on Treaty Obligations: Can the Security Council Authorise Non-Compliance of Human Rights Treaty Obligations in United Nations Peacekeeping Operations?

Understanding Article 103 of the Charter of the United Nations (UN Charter) has proven to be complex and controversial. This provision stipulates that in the event of a conflict, the obligations imposed on UN Member States under the UN Charter prevail over international treaty obligations. Difficulties arise when state parties must determine whether to construe the provision as applying narrowly only to express Charter obligations, or more widely to obligations generated by Charter bodies such as the United Nations Security Council (UNSC). Within the context of UN peacekeeping operations, such operations are mandated by the UNSC. Emphasizing on the respect of the relationship between the UNSC and the UN Charter, Article 25 serves as a specific legal basis for the UNSC’s obligations to respect the provisions of the UN Charter by developing intra vires decisions which are consistent with Charter obligations. State practice therefore presupposes that priority for UNSC resolutions over treaty obligations is provided by Article 103. This article will first analyse Article 103 and in doing so, it will examine the obligations that the UNSC can impose on states. This will include a consideration of when UNSC mandated peacekeeping operations can, by their nature, contravene international human rights treaty obligations. It will then discuss the impact on peacekeeping operations on the presumption of complying with human rights obligations, including the right to life, freedom from torture and the right to liberty and security. Finally, this article will offer a critique of the capacity of Article 103 to override human rights obligations through the UNSC interpretation of ‘all means necessary’ in peacekeeping operations.