Norm Conflict, Fragmentation, and the European Court of Human Rights

IntroductionOn July 7, 2011, the European Court of Human Rights (ECtHR) Grand Chamber ruled on the landmark case of Al-Jedda v. United King- dom.1 This case dealt with the legality of the security internment of dual British-Iraqi citizen Hilal Abdul-Razzaq Ali Al-Jedda in Iraq by British forces pursuant to a United Nations (UN) Security Council resolution.2 In Al-Jedda, the ECtHR meaningfully confronted the conflict of human rights norms guaranteed by the Convention for the Protection of Hu- man Rights and Fundamental Freedoms (ECHR) with those of secu- rity.3 By holding that the rights to personal liberty and security en- shrined in Article 5 of the ECHR were not displaced in this instance, the Grand Chamber for the first time confronted the norm conflicts it had previously avoided,4 and embarked down a path of interpretation that is both definitive and uncertain.5 On one hand, the Grand Cham- ber's decision is definitive because it reaffirms the constitutional nature of the ECHR6 and establishes a firm rule for interpreting Security Council resolutions that errs on the side of human rights protection and Security Council accountability.7 On the other hand, the Grand Chamber's decision is also uncertain because such a move by the court will soon require the ECtHR to decide how much of a human rights restraint on the Security Council it intends to be, and what level of fragmentation in the international system it is willing to accept in order to assert such authority over its states parties.8Part I of this Note provides a background on the facts of Al-Jedda and the circumstances of Al-Jedda's detention, as well as the legal land- scape in which British forces in Iraq were operating. Part II presents a discussion of norm conflict, fragmentation of the international system, and the particular difficulties in assessing norm conflicts regarding human rights. Part II further recounts the U.K. House of Lords deci- sion in Al-Jedda as well as that of the ECtHR. Part II concludes with a discussion of the subsequent case Nada v. Switzerland, in which the ECtHR applied the Grand Chamber's Al-Jedda reasoning. Part III ar- gues that the ECtHR should value international legal cohesion and be reluctant to challenge the Security Council by asserting itself as an in- dependent legal order, a move that could compromise the universality of the treaty's protections by encouraging states parties to seek formal derogations.I. BackgroundA. Occupation of Iraq and the Internment RegimeOn November 8, 2002, the UN Security Council adopted Resolu- tion 1441 under its Chapter VII9 authority from the UN Charter.10 The Resolution asserted that, in failing to disarm and cooperate with the UN and the International Atomic Energy Agency weapons inspectors, Iraq continued to be in material breach of its obligations under previous Se- curity Council resolutions.11 Resolution 1441 gave Iraq a final opportu- nity to disarm and cooperate fully with the inspectors or "face serious consequences as a result of its continued violations of its obligations."12On March 20, 2003, the United States led a unified coalition of armed forces including the United Kingdom, Poland, Australia, and Denmark in the invasion of Iraq.13 By April 9, 2003, British forces over- took the city of Baghdad, and by May 1, 2003, the coalition declared ma- jor combat operations in Iraq complete, turning its efforts toward re- construction.14 In early May 2003, the occupying states created the Coalition Provisional Authority (CPA) to serve as an interim quasi- governmental administrative body with legislative authority until the area became secure and it became possible to establish an Iraqi gov- ernment.15 Coalition States appointed representatives to the CPA and divided Iraq into regional areas, with CPA South to be controlled by the United Kingdom and responsibility for the area to be vested in a U.K. Regional Coordinator.16On May 22, 2003, the Security Council passed Resolution 1483. …