Skip to main content Accessibility help
×
×
Home

THE LEGISLATIVE ROLE OF THE SECURITY COUNCIL IN ITS FIGHT AGAINST TERRORISM: LEGAL, POLITICAL AND PRACTICAL LIMITS

  • Luis Miguel Hinojosa Martínez (a1)

Abstract

This article studies the normative activity developed by the Security Council (SC) in recent years, particularly in the fight against terrorism. This legislative activity has aroused a great deal of controversy both among scholars and the States. Is the SC acting ultra vires? Has it revealed a new form of creating of international norms, which overrides definitively States' consent as the only material source of international law? This contribution tries to answer these questions by investigating the scope of the SC powers in the Charter, their historical background and the reaction of UN Member States towards its Resolutions. After this analysis, it is submitted that the SC does have a legislative capacity, but with important legal, political and practical limits.

Copyright

References

Hide All

1 Although in Resolution 232 (16 Dec 1966), the SC explicitly mentioned Articles 39 and 41 of the Charter as the legal ground of its decision, since Resolution 253 (29 May 1968), it has referred to ‘Chapter VII of the Charter’ as the generic legal basis for its actions in situations where it estimates that there is a threat to international peace and security, apart from very specific exceptions (see, eg, Resolution 1718 (14 Oct 2006), in which it clarifies that the SC adopted measures in accordance with Article 41 of the Charter).

2 Colombia's representative, a member of the SC when Resolution 1373 was adopted, expressly cited Article 41 of the Charter as the legal basis of that Resolution (Doc S/PV.4394 (Resumption 1) (25 Oct 2001) 7).

3 SC Res 1540 (2004) was also justified by the urgency of the circumstances. In a press conference prior to the commencement of the debates on this Resolution (2 April 2004), the President of the SC pointed out, ‘there was a gap in international law pertaining to non-State actors. So, either new international law should be created, either waiting for customary international law to develop, or by negotiating a treaty or convention. Both took a long time, and everyone felt that there was an “imminent threat”, which had to be addressed and which could not wait for the usual way’, (available at <http://www.un.org/News/briefings/docs/2004/pleugerpc.DOC.htm>).

4 The SC not only considers inter-State conflicts as threats to peace, but also clearly has extended that concept to include internal conflicts (Sierra Leona, Somalia, Sudan, etc). In the same way, it has incorporated into that notion other forms of violence distinct from armed conflicts, such as a coup d'état against a democratically chosen President that generates a humanitarian crisis (Resolution 841 (16 June 1993)), ethnic cleansing (Resolution 808 (22 Feb 1993)), or terrorism (Resolution 1269 (19 Oct 1999)).

5 FSC Res 687 (3 April 1991) para 18.

6 BSC Res 833 (27 May 1993) para 4.

7 CEg, the ICTY in SC Res 808 (22 Feb 1993) and 827 (25 May 1993), or the Special Tribunal for Lebanon in Resolution 1757 (30 May 2007).

8 SSee the sanctions against a list of persons connected to Al Qaeda and the Taliban, based on SC Res 1267 (15 Oct 1999), 1333 (19 Dec 2000) and 1390 (28 Jan 2002).

9 ISC Res 1483 (22 May 2003).

10 See Tadić (Jurisdiction) ICTY-94-1 (2 October 1995) para 35.

11 ibid paras 43–44. The preparatory work of the Charter sheds no light in this respect, since it only discusses (and rules out) the possibility of expressly granting the GA legislative competence (P De Visscher, ‘Valeur et autorité des actes des organisations internationales’ in RJ Dupuy (ed), Manuel sur les organisations internationals (Académie de Droit International de la Haye/Nihoff, The Hague, 1988) 324). However, the fact that this question was not even discussed in relation to the SC allows various interpretations, from completely rejecting this possibility to not wanting to limit the SC's discretion by imposing conditions on its action.

12 In the Namibia case ([1971] ICJ Rep 22), the ICJ alludes to the practice of SC members, generally accepted by the members of UN, as a criterion of interpretation of Article 27 (3) of the Charter, in order to assert that the abstention of one of the States with a permanent seat in the SC cannot prevent the adoption of decisions.

13 For a defence of this evolving interpretation of Article 41 of the Charter, see R Lavalle, ‘A Novel, if Awkward, Exercise in International Law-Making: Security Council Resolution 1540 (2004)’ (2004) 51 Netherlands Intl L Rev 419–23 (NILR).

14 [1962] ICJ Rep 168.

15 C Tomuschat, ‘L'adaptation institutionnelle des Nations Unies au nouvel ordre mondial’ in R Ben Achour and S Laghmani, Les nouveaux aspects du droit international (Pedone, Paris, 1994) 163.

16 B Simma (ed), The Charter of the United Nations. A Commentary (Oxford University Press, Oxford, 2002) vol I, 454.

17 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep, paras 110 and 113.

18 See, eg, the well-known GA Res 2625 (XXV) (24 Oct 1970), or 3314 (XXIX) (14 Dec 1974).

19 The ICJ has referred on numerous occasions to GA Resolutions to clarify the concrete content of the norms of customary international law. See, eg, the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep 136, which remits to Resolution 2625 (XXV) to set out the specific content of the principle of the prohibition of the use of force (para 87), or of the principle of free determination of peoples (para 88). However, the fact that a Resolution of the GA indicates that a given action is contrary to the Charter or international law does not signify that this is necessarily so. In the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts [1996] ICJ Rep, paras 70–71, after pointing out that ‘General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris’, the ICJ indicated, ‘several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions’. In consequence, the Court considered that, in spite of their forceful asseverations, those GA resolutions did not prove the existence of an opinio iuris that enabled the existence of a customary norm to be proved.

20 As is well known, GA Resolutions are not binding on States, since it can only make ‘recommendations’ (Article 10 of the Charter).

21 Although Article 16 of the ILC Statute reserves to the GA the ‘progressive development’ of international law, the ILC does not distinguish in practice its work of ‘codification’ from that of ‘progressive development’, carrying out both tasks together (Doc A/51/10, paras 157–58) On the other hand, over recent years the GA has habitually created ad hoc subsidiary bodies, outside the ILC, to draw up particular conventions. On these questions, see Y Daudet, ‘Actualités de la codification du droit international’ (2003) 303 Recueil des Cours de l'Académie de la Haye 9 (RCADI).

22 See, in particular, GA Res 49/60 (17 Feb 1995) and 51/210 (16 Jan 1997), which preceded Resolution 60/288 (20 Sept 2006).

23 On the base of this Special Committee's work the GA has drafted and approved three ‘new generation’ treaties that have notably completed international conventional law against terrorism: the International Convention for the Suppression of Terrorist Bombings (1997), the International Convention for the Suppression of the Financing of Terrorism (1999), and the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). At present, and since the year 2000, the Special Committee established by Resolution 51/210 is working on drawing up a draft General Convention for the Suppression of International Terrorism.

24 Article 41 of the Charter speaks of the interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

25 M Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 Leiden Journal of International Law 600; G Arangio-Ruiz, ‘On the Security Council's “Law Making”’ (2000) 83 Rivista di Diritto Internazionale 692–700; V Gowlland Debbas, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’ (2000) 11 Eur J Intl L 377 (EJIL).

26 E Lagrange, ‘Le Conseil de sécurité des Nations Unies peut-il violer le droit international?’ (2004) 37 Revue belge de droit international 577 (RBDI).

27 M Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’ (1995) 6 EJIL 345; A Pellet, ‘Peut-on et doit-on contrôler les actions du Conseil de sécurité?’ in M Boutros Ghali et al, Le Chapitre VII de la Charte des Nations Unies (Pedone, Paris, 1995) 236.

28 S Sur, ‘Conclusions’ in Boutros Ghali et al (n 27) 311.

29 Corten considers that SC Resolutions 1373 (2001) and 1540 (2004) ‘se présentent comme des décisions de type réglementaire et non comme l'expression de règles générales’ (O Corten, ‘La participation du Conseil de Sécurité à l’élaboration, à la cristallisation ou à la consolidation de règles coutumières' (2004) 37 RBDI 562).

30 JE Álvarez, ‘Hegemonic International Law Revisited’ (2003) 97 AJIL 874; PA Szasz, ‘The Security Council Starts Legislating’ (2002) 96 AJIL 904–5; C Tomuschat, ‘Obligations Arising for States Without or Against their Will’ (1993) 241 RCADI 344–46.

31 The ICJ has recognized in its jurisprudence the convenience of making a teleological interpretation of the Charter in such a way that the United Nations can carry out effectively the missions that are assigned to it (Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 182). There are even some authors who point out that it is only now that the SC is ‘functioning as was originally intended under the United Nations Charter’ (P Wallensteen and P Johansson, ‘Security Council Decisions in Perspective’ in DM Malone (ed), The UN Security Council from the Cold War to the 21st Century (Lynne Rienner Publishers, Boulder, 2004) 17). For an examination of the changes that the SC has undergone since its creation, while requiring scarcely any reforms in the Charter, see FL Kirgis, ‘The Security Council's First Fifty Years’ (1995) 89 AJIL 506.

32 ‘If the Council thought that the lack or weakness of existing counter-terrorism … legislation … in a particular country posed a specific threat to peace and security, few would question its authority under Chapter VII to adopt a resolution requiring that State to take certain steps to enhance its capacity. It is also difficult to dispute the fact that existing terrorist … threats are global in nature, and thus, … it would be logical for the Council to claim the authority under Chapter VII to impose the same requirements on all States’ (E Rosand, ‘The Security Council as a “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2005) 28 Fordham Intl L J 559–60 (FILJ)).

33 There are objective data that show the SC's progressive invasion of the GA's competences. The expansion of SC competences has increased the average length of its Resolutions, so that they now extend to considerations that previously were only seen in those of the GA (see, eg, the reflections in SC Res 1624 (14 Sept 2005), on the need to promote dialogue among civilizations, paying special attention to the problems of development as an element that contributes to strengthening the fight against terrorism). But even more, the SC has permitted itself to identify what rules set out in a Convention must be considered norms of customary international law (SC Res 1067 (26 July 1996) para 6).

34 It can be argued here that the States ‘consent’ when they ratify the UN Charter, thus accepting the obligatory nature of the SC's decisions; but this would only be so in the case that the Charter itself effectively granted the SC competence for the progressive development of international law. As Judge Sir Gerald Fitzmaurice pointed out in his separate opinion in the Namibia case ([1971] ICJ Rep 294, para 115), ‘It was to keep the peace, not to change the world order, that the Security Council was set up’.

35 In the debate that took place in the SC prior to the adoption of Resolution 1540 (2004), some States indicated that its legislative initiatives might break the balance of power between the GA and the SC (see, eg, the intervention of the Indian representative in Doc S/PV.4950, 22 April 2004, 25), while other States explicitly pointed out that the SC's legislative role was supplanting State competences (see, eg, the intervention of the Indonesian representative in Doc S/PV.4950, 34); nevertheless, a majority of States accepted the Council's legislative capacity in exceptional circumstances and in response to an urgent need (for example, see the Swiss representative's intervention in Doc S/PV.4950, 31).

36 Other precedents can also be mentioned, such as SC Res 687 (3 April 1991), which for its scope and thoroughness can be considered as the equivalent of a peace treaty between Iraq and Kuwait; SC Res 1031 (15 December 1995), which established in detail the criteria of the application of the General Framework Peace Agreement in Bosnia and Herzegovina; or the approval of a criminal code for Somalia by the UN Secretary-General's Representative on the basis of a mandate conferred by the SC under Chapter VII of the Charter (see the reference in D Sarooshi, The United Nations and the Development of Collective Security (Clarendon Press, Oxford, 1999) 62–63).

37 In paras 33–36 of Tadić (Jurisdiction) ICTY-94-1 (2 Oct 1995), the argument was put forward as to why the SC could create international criminal courts and, in paras 43–44, it was asserted that no clear division between legislative and executive power existed in the UN's institutional framework, suggesting a justification of the SC's legislative capacity on the basis of Chapter VII of the Charter.

38 Doc S/25704 (20 May 1993) para 29.

39 ibid para 34.

40 Eg, Article 10 of the ICTY Statute establishes that no State could judge persons tried before the ICTY in its own courts for the same crimes, while Article 19 of the same text imposes exacting obligations of judicial cooperation on all States.

41 SC Res 827 (25 May 1993).

42 The words of the Chinese representative, as a permanent member of the SC are particularly clarifying: ‘the Statute of the International Court that has just been approved is a legal instrument that enjoys the attributes of an international treaty that involves complex legal and financial questions. It should only come into force after having been negotiated and concluded by sovereign States and having been ratified by their national legislative organs in accordance with their national laws’ (Doc S/PV.3217 (25 April 1993) 32). In spite of these words, China voted in favour of Resolution 827 (1993). However, to show its growing dissatisfaction at this formula for creating international criminal courts, it abstained in the vote on Resolution 955 (8 Nov 1994), which set up the International Criminal Tribunal for Rwanda (ICTR).

43 The second paragraph of Resolution 1373 (2001) incorporated no new obligations on the States that the GA had not already accepted as arising from general international law in its previously mentioned Resolutions 49/60 and 51/210, with the exception of those relating to the financing of terrorism. Eg, the fifth paragraph of the Declaration annexed to Resolution 49/60 considers as arising from international law the obligations to refrain from ‘tolerating terrorist activities and to take appropriate practical measures to ensure that their respective territories are not used … for the preparation or organization of terrorist acts intended to be committed against other States’, ‘to ensure the apprehension and prosecution or extradition of perpetrators of terrorist acts’, or ‘to take appropriate measures … for the purpose of ensuring that the refugee status is not used’ for the preparation of terrorist acts.

44 Eg, Resolution 1373, in para 1(b), requires the financing of terrorism to be classified as a crime, so extending to all States the obligation imposed by Article 4 of the 1999 Convention.

45 SC Res 1269 (19 Oct 1999).

46 It seems evident that the measures envisaged in Resolution 1373 will only give results in the medium and long term, and that terrorism will not be eradicated, if at all, for many years.

47 Eg, in para 1 (c) of Resolution 1373, the SC imposes on all States the duty of freezing the funds and resources, not only of all persons related to the commission of terrorist acts, but also of businesses they own, under their direct or indirect control, which act under their orders, and even of other ‘associated persons and entities’ (emphasis added); for its part, the 1999 Convention limits itself to requiring the confiscation or seizure of funds ‘used or allocated’ to commit terrorist crimes (Article 8 of the Convention), and referring to legal persons, it only demands that their liability is established ‘when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence’ of terrorism (Article 5 (1) of the Convention). It can also be mentioned that para (1)(d) of Resolution 1373 lays down that States shall ‘prohibit their nationals or any persons and entities within their territories from making any funds, financial assets … or financial or other related services available’ to persons or entities related with terrorism. This obligation does not seem to be contained in the 1999 Convention, which is limited to regulating the intentional crime of terrorism financing. The only obligations that the latter text imposes on legal persons that are not directly implicated in these crimes are those of identifying their clients, and informing the authorities of all suspicious transactions (Article 18 (1)(b) of the Convention). Therefore, Resolution 1373 again shows itself to be more rigorous than the Convention and fills a gap it has left.

48 In that line, see Corten (n 29) 562. However, to be able to classify a norm as administrative, it has to be based on a general law that it details or applies to the particular case. In the case of Resolution 1373, the SC creates new norms, such as requiring the provision of funds to terrorists to be categorized as a crime, which do not appear in the Charter, nor could be considered as derived from customary international law.

49 JE Álvarez, International Organizations as Law-Makers (Oxford University Press, Oxford, 2005) 196–98; S Talmon, ‘The Security Council as a World Legislature’ (2005) 99 AJIL 176–77; J Delbrück, ‘Transnational Federalism: Problems and Prospects of Allocating Public Authority Beyond the State’ (2004) 11 Indiana Journal of Global Legal Studies 37; S Szurek, ‘La lutte internationale contre le terrorisme sous l'empire du chapitre VII: un laboratoire normatif’ (2005) 109 Revue Générale de Droit international public 15–16 (RGDIP); A Pellet and V Tzankov, ‘L’État victime d'un acte terroriste peut-il recourir à la force armée ?' in Société Française pour le Droit International, Les nouvelles menaces contre la paix et la sécurité internationales (Pedone, Paris, 2004) 98; N Angelet, ‘Vers un renforcement de la prévention et la répression du terrorisme par de moyens financiers et économiques?’ in K Bannelier et al (eds), Le droit international face au terrorisme après le 11 septembre (Pedone, Paris, 2002) 219–20.

50 I Thomas, ‘La mise en œuvre en droit européen des dispositions internationales de lutte contre le terrorisme’ (2004) 108 RGDIP 464; L Condorelli, ‘Les attentats du 11 septembre et leurs suites: où va le droit international?’ (2001) 105 RGDIP 834.

51 SC Res 1540 (5 Nov 2004).

52 See GA Res 57/83 (9 Jan 2003) and 58/48 (8 Jan 2004).

53 For comments on the content of SC Res 1540 (2004), see S Sur, ‘La résolution 1540 du Conseil de sécurité (28 avril 2004): entre la prolifération des armes de destruction massive, le terrorisme et les acteurs non étatiques’ (2004) 108 RGDIP 855; Lavalle (n 13) 411.

54 In the exchange of opinions that took place in the SC, numerous delegations started from the basis that none of the international Conventions on this issue (1968 Treaty on the Non-Proliferation of Nuclear Weapons, the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction) adequately treated the question of the measures to adopt in order to prevent non-State actors, in particular terrorists, from having access to these types of weapons. See those debates in Doc S/PV.4950 (22 April 2004).

55 See, eg, para 2 and 3(d) of Resolution 1540 (2004), in which the obligation is imposed on the States to adopt ‘appropriate effective laws which prohibit any non-State actor to manufacture, acquire, posses, develop, transport, transfer or use nuclear, chemical or biological weapons’, or pass ‘appropriate laws and regulations to control export, transit, trans-shipment and re-export’ of these arms and related materials.

56 See points 2, 8 and 9 of SC Res 1612 (26 July 2005).

57 See eg, para C of SC Res 687 (3 April 1991), which imposed many very specific disarmament obligations on Iraq.

58 Article 26 of the Charter has been interpreted in many different ways. While for Happold, Article 26 shows that ‘even in an area where the Security Council has been given a specific mandate to act, it is not permitted to impose general obligations on the UN membership’, thus demonstrating the Council's lack of legislative competence (Happold (n 25) 605–7), for Kelsen, the SC can change the plans drawn up on the basis of Article 26 into obligations, by deciding that non-compliance entails a threat to international peace and security (H Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (London Institute of World Affairs, Stevens & Sons, London, 1951) 106; in the same line, see Tomuschat (n 30) 344–46). From my point of view, both postures are partly right, but both strain the meaning of Article 26. I agree with Happold when he points out that this provision ‘submits’ clearly the final decision on the general system of regulation of armaments to the Member States, so that the SC lacks competence to establish it on its own and with a binding character. However, it seems equally clear that this Article is limited to speaking of the ‘regulation of armaments’, and a general and absolute limitation on the SC's normative capacity cannot be deduced from it (a contrary reading could even lead some to deduce a regulatory competence in the other security spheres). I also agree with Kelsen when he indicates that the SC can declare that the behaviour in armament matters of a State or group of States which ignore its plans constitutes a direct threat to peace and security, giving rise to the adoption of measures on the basis of Chapter VII of the Charter. Nevertheless, I understand that that such a declaration cannot be used as a short cut to impose general disarmament plans drawn up by the SC on States that are not in accord with them. To do so would violate the principle of sovereignty, as seems to be defended in Article 26 of the Charter.

59 In spite of the very general wording of these provisions, their legal content cannot be underestimated as a limit on the SC's activities. Eg, the text of the principle of non-intervention in the domestic affairs of Member States (Article 2 (7) of the Charter), expressly envisages an exception for cases in which the SC acts in ‘application of enforcement measures under Chapter Vll’. This indicates that the SC cannot intervene in questions of State competence on the basis of the powers that the other Chapters of the Charter confer.

60 Talmon (n 49) 182–83.

61 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 89–90, para 37.

62 Lagrange (n 26) 571–72.

63 It seems to me impossible to admit that the intention of the drafters of the Charter was to create an organ with the capacity to dispose of the very structural elements of the legal order on which its power and competences are founded. As the ad hoc Judge E Lauterpacht indicated in a separate Opinion on the Order of 13 Sept 1993, relating to Further Requests for the Indication of Provisional Measures, in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case ([1993] ICJ Rep 440, para 100), ‘the relief which Article 103 of the Charter may give to the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot—as a matter of simple hierarchy of norms—extend to a conflict between a Security Council resolution and ius cogens. Indeed, one only has to state the opposite proposition thus—that a Security Council resolution may even require participation in genocide—for its unacceptability to be apparent’. See, in this line, E Papastavridis, ‘Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis’ (2007) 56 ICLQ 107–10.

64 During the deliberations in the Conference of San Francisco, some States proposed that the limitation that measures be adopted ‘in conformity with the principles of justice and international law’ should also apply to the first phrase of the first paragraph of Article 1 (collective measures against threats to the peace) and not only to the second (dispute settlement). From these debates it is deduced that the proposal was rejected to prevent the binding nature of SC decisions from being questioned in a crisis situation, alleging that some norm of international law was being breached (Simma (n 16) 43; B Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL 545).

65 For Lagrange, ‘la Charte attribue au Conseil de sécurité le pouvoir de déroger aux règles du droit international lorsqu'il agit sur le fondement du chapitre VII, non par de règles, mais par des décisions’ (Lagrange (n 26) 574–82).

66 In its Resolution 1377 (12 Nov 2001), the SC, meeting at ministerial level shortly after adopting Resolution 1373, to give greater significance to the Declaration on its new role in the fight against terrorism, stated that to combat the scourge of international terrorism what is essential is ‘a sustained and comprehensive approach … in accordance with the Charter of the United Nations and international law’. In the same way, the SC has made an effort to remind Member States on many occasions that, ‘they must ensure that any measures taken to combat terrorism comply with all their obligations under international law’ (SC Res 1787 (10 Dec 2007); 1566 (8 Oct 2004), both in the Preamble).

67 See, eg, the intervention of President of the Council, although speaking in the name of Pakistan, when explaining his vote in favour of Resolution 1483 (22 May 2003), relating to the finalization of the sanctions against Iraq and the recognition of the role of the Authority created by the occupying forces for the political transition in that country (Doc S/PV.4761 (22 May 2003) 11–12).

68 Namibia [1971] ICJ Rep 51–52, especially paras 111–12. See also Tadić (Jurisdiction) ICTY-94-1 (2 October 1995) paras 28 and 42, which, on examining whether the SC enjoyed powers to create an international criminal court, laid down that in order for that to be possible, ‘such a court ought to be rooted in the rule of law and offer all guarantees embodied in the relevant international instruments’.

69 Resolutions 1422 (12 July 2002) and 1487 (12 June 2003). In these Resolutions, the SC used the prerogative set out in Article 16 of the Statute of the International Criminal Court to prevent persons who participated in peace-keeping operations, and who came from States that were not parties to the Statute, from being tried before that Court. Numerous States, and even the UN Secretary-General, expressed the view that in Article 16 that type of exemption was not permitted, and some countries even stated that the incorrect use of this norm by the SC was equivalent to its modification (see Docs A/57/PV.22 (4 Oct 2002) 6, in which the Liechtenstein representative firmly asserted that, ‘the functions and powers of the SC do not encompass the competence to alter or interpret international treaties’; and S/PV.4772 (12 June 2003), in particular the interventions of Greece, in the name of the European Union (8–9), Iran (10) or Brazil (13)).

70 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Order of 14 April 1992 [1992] ICJ Rep paras 39–40. See, also in this matter, the Joint Declaration by Judges Evensen, Tarassov, Guillaume and Aguilar, of 9 April 1992, on the change that the Resolution brought about in relation to the rights of the parties to the controversy, as reflected in the 1971 Montreal Convention.

71 Both in Resolution 1373 (see its para 3 (d)), as in the other Resolutions that complement and develop it, the SC limits itself to ‘calling’ upon States to adhere ‘as soon as possible’ to the international conventions and protocols to prevent and suppress terrorist attacks, without ever formulating this petition as an obligation.

72 Condorelli (n 50) 835.

73 In this sense, Talmon considers that the SC could not impose universal rules on the control of armaments that would modify the States' rights and obligations under the Non-Proliferation Treaty, since it lacks competences to impose general obligations on Member States in the field of arms regulation (Article 26 of the Charter) (Talmon (n 49) 185).

74 With an optimistic vision, Rosand considers that this self-restraint is very likely because of the care that the governments of Member States of the SC must take not to establish norms that could offend or upset their national Parliaments (Rosand (n 32) 578–79). In effect, the rules established by the SC are imposed on the States, and national Parliaments have no capacity to influence the terms or alter the wording of any of their provisions. However, in some circumstances, this could make the SC's ‘legislative option’ even more tempting for governments.

75 Articles 24 (3), 40, 42, 43 (1) and 51 of the Charter.

76 Talmon (n 49) 184–85; E De Wet and A Nollkaemper, ‘Review of Security Council Decisions by National Courts’ (2002) 42 German Ybk Intl L 179–81.

77 G Nolte, ‘Article 2 (7)’ in Simma (n 16) 171, para 75.

78 In principle, it is the SC itself that determines the scope of its competence and, in that sense, the legality of its intervention (Namibia [1971] ICJ Rep 21–22, para 20).

79 See SC Res 1170 (28 May 1998), on UN activities on the African continent; 1261 (30 Aug 1999), on the situation of children in armed conflicts; or 1325 (31 Oct 2000), on the role of women in the resolution of conflicts and humanitarian aid programmes.

80 As an illustration, the words of the French representative in his address to the GA on 1 Oct 2001, ‘On the evening of Friday, 28 September, the Security Council unanimously adopted resolution 1373 (2001), a resolution that will stand out in history. By virtue of its global and binding nature, this resolution traces the new and ambitious path to which the Council has resolutely committed itself in order to contribute to eradicating acts that constitute a threat to international peace and security’ (Doc A/56/PV.13 (1 Oct 2001) 24–25).

81 Resolution 1373 was approved in record time. The USA presented the proposal to the other permanent members on 26 Sept 2001 (Doc S/2001/921 (28 Sept 2001)), and it was informally discussed the following day with the rest of the SC members. On 28 Sept 2001 the Resolution was unanimously approved in a five-minute session, at which only members of the Council attended (the other countries were neither invited nor consulted) (Doc S/PV.4385 (28 Sept 2001)).

82 A reading of the Minutes of the GA's plenary sessions that took place between 1 and 5 Oct 2001, and that they were devoted solely to measures against international terrorism, is enough to verify the overwhelming support of the speakers on SC Resolution 1373 (see Docs A/56/PV.12–A/56/PV.22). Even States that, like Mexico, had argued that the SC lacked competences to create international criminal tribunals (Doc A/55/PV.95 (14 March 2001) 3) supported Resolution 1373 (Doc S/PV.4453 (Resumption 1) (18 Jan 2002) 26–27).

83 See, eg, GA Res 62/71 (8 Jan 2008) para 9; 60/43 (6 Jan 2006) para 7; 60/1 (24 Oct 2005) para 90; 59/46 (16 Dec 2004) para 7; or 58/81 (8 Jan 2004) para 7.

84 SC Res 1540 (5 Nov 2004).

85 See the various speeches that took place in the SC on 22 April 2004, Doc S/PV.4950, especially the words of the Indian representative at 23–24: ‘The issue goes beyond a mere legal consideration of the Council's allocated powers under the Charter. The credibility and even respect that the Security Council can garner depend on its actions being the product of internal cohesion and universal acceptability’. Although in different tones, countries as distinct as Cuba, Namibia, Nepal, Mexico or Indonesia showed their concern, or opposition, in regard to the fact that the SC assumed the role of universal legislator. Other countries, such as Switzerland or the Philippines, accepted this initiative as exceptional due to its ‘urgent need’. See a comment on the different interventions in the SC in Lavalle (n 13) 425–28. For a systematic exposition of the arguments against the SC's legislative capacity, consult J Tercinet, ‘Le pouvoir normatif du Conseil de Sécurité: le Conseil de Sécurité peut-t-il légiférer?’ (2004) 37 RBDI 53–42; B Elberling, ‘The Ultra Vires Character of Legislative Action by the Security Council’ (2005) 2 International Organizations Law Review 337–360.

86 In the explanatory session on the vote after the approval of Resolution 1566 (8 Oct 2004), which contained a definition of terrorism, Brazil's representative regretted (despite having voted in favour of the Resolution) the excessive recourse to Chapter VII of the Charter, pointing out that such a tendency was ‘unnecessary and counterproductive’, and that during the negotiations ‘this point was raised by several other delegations’. In particular, the Brazilian representative insisted that ‘no constraints should be imposed on States’ freedom to negotiate the terms of international conventions' (Doc S/PV.5053 (8 Oct 2004) 7).

87 Very explicitly, in the Plan of Action of the ‘United Nations Global Counter-Terrorism Strategy’, approved under GA Res 60/288 (20 Sept 2006) Annexe, para (2)(c), it was established that Member States of the UN resolve ‘to implement all Security Council resolutions related to international terrorism and to cooperate fully with the counter-terrorism subsidiary bodies of the Security Council in the fulfilment of their tasks’.

88 On the need to make these legal and political limits on the SC's legislative capacity more explicit through the reform of the Charter, see the report The United Nations and the New Threats: Rethinking Security (2004) 13–14 (available online at <http://www.un-globalsecurity.org>), which summarizes the results of the Conference on ‘Threats, Challenges and Change’, held in Rome in May 2004, and organized by the United Nations Foundation.

89 ‘The perils of an “imperial” Security Council are as real as is the promise that it will take effective action. An effective Council may well be an imperial one’ (Álvarez (n 49) 201). Also see A Bianchi, ‘Assessing the Effectiveness of the UN Security Council Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 EJIL 888–89.

90 It is enough to remember that the negotiations for drafting a general Convention against terrorism have been blocked for several years due to the lack of agreement on the definition of terrorism in the Committee created by GA Res 51/210. In fact, the 1999 Convention for the Suppression of the Financing of Terrorism had not entered into force when SC Res 1373 (2001) was approved, and the rhythm of ratifications promised several years of waiting before that would occur (the adoption of Resolution 1373 spectacularly speeded up ratifications).

91 A typical example related to terrorism is the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, which took ten years to be negotiated, and after finally being approved through GA Res 44/34 (4 Dec 1989), did not come into force until 20 Oct 2001. This Convention still only has 30 States as parties.

92 Nevertheless, the SC's efficiency should not be mythified. One only has to read the reports of the Counter-Terrorism Committee (CTC) to appreciate the enormous difficulties this organ faces in numerous countries. See, eg, its considerations on the fight against money-laundering, or the absence of legal mechanisms in national legal systems to freeze and seize funds in procedures of mutual international judicial assistance (Doc S/2004/70 (26 Jan 2004) 4–5), which demonstrate that total compliance with the provisions of Resolution 1373 can only be a medium or long-term objective in some States. Besides, the CTC Executive Directorate was not declared operative until 15 Dec 2005, and its first mission was the elimination of the backlog accumulated in the review of the reports presented by the States on the basis of Resolution 1373 (Doc S/PV.5375 (21 Feb 2006) 2–3). This organ did not expect to conclude its preliminary implementation assessments of Resolution 1373 until the end of 2007 (Doc S/2007/254 (4 May 2007) 5; see also the Briefing to the SC by the CTC Chairman of 14 Nov 2007).

93 When there is no international consensus on a rule, the SC cannot substitute, and even less impose, its will over that of the sovereign will of the States if it does not want to be ignored. In the work carried out in the Special Committee established by the GA to negotiate a general Convention against terrorism, the definition of terrorism given by the SC in its Resolution 1566 (8 Oct 2004), has been considered simply irrelevant, and the States continue discussing this point, which is the main obstacle to achieving an agreement on that general Convention (Doc A/63/67 (11 March 2008) Annex II).

94 It must be remembered that both of the normative Resolutions (1373 and 1540) adopted by the SC in the framework of the fight against terrorism have been unanimous.

95 In spite of this, Anghie considers that the SC Resolutions against terrorism of recent years are a clear manifestation of US hegemony in international law (A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, Cambridge, 2005) 298–303).

96 Lavalle (n 13) 436; Talmon (n 49) 186–88.

97 See Doc S/PV.4950 (22 April 2004) 1, in which it is stated that 36 countries not members of the SC applied to attend, and the majority of them participated, in the debate on the adoption of what would subsequently be SC Res 1540, that being accepted by SC members by assent.

98 By virtue of Article 31 of the Charter, the SC can authorize the participation in its deliberations of a State that is not a member of that organ whenever it ‘considers that the interests of that Member are specially affected’. Obviously, it would be difficult to argue this for normative resolutions of general scope. However, from the political point of view, the most elemental requirements of legitimacy demand that all States that wish to do so are permitted to participate in SC deliberations on this type of Resolutions.

99 For this to be possible, it is indispensable that the SC makes its initiatives public beforehand. Taking into account that it is usual for Council members not to inform the rest of UN members of their proposals, and that these are discussed in informal and private meetings, the adoption of normative Resolutions would require a significant change in this practice. It is revealing that Rule 48 of the SC Provisional Rules of Procedure lays down that SC meetings should be public, unless this body decides to the contrary (something which has never happened), with the intention of distancing the Council from the practice of secret diplomacy, which aroused so much prejudice against the League of Nations. Paradoxically, the fact that all the meetings are public has resulted in the decisions taken by the SC being previously ‘cooked up’ in informal and often secret meetings of Council members.

100 Doc S/PV.4385 (28 Sept 2001).

101 Bianchi (n 89) 892–903.

102 Talmon (n 49) 190–92. Often the reports are used to show the political opinion of the government of the State in question, without contributing really relevant information (K Von Hippel, ‘Improving the International Response to the Transnational Terrorist Threat’ in J Boulden and TG Weiss (eds), Terrorism and the UN (Indiana University Press, Bloomington, 2004) 112–13).

103 The reports of the CTC and its Executive Directorate show that at present its main task is supplying technical assistance to members that request it, with the aim of creating conditions necessary for the effective application of Resolution 1373 (See, eg, Docs S/2006/107 (16 Feb 2006) 6–8; S/2006/607 (4 Aug 2006) 3–4). In fact, the reports serve essentially to identify those shortages that can only be solved through external aid (See, eg, the fourth report of Kyrgyzstan, in which that country asked for three computers with external modem, three printers, and one fax machine so that its Parliament could tackle the legislative work necessary to comply with Resolution 1373 (Doc S/2006/350 Add.1 (23 Aug 2006) 4)).

104 Doc S/2006/257 (25 April 2006) 2–4. By 20 April 2006, 62 Member States still had not presented any report on their compliance with SC Res 1540 (2004).

105 ‘Even if the requirements for the exercise of a regulatory power are relatively well defined, any grant of such a power opens up a dynamic process whose ultimate outcome can hardly be forecast with any degree of reliability. … In any event, the more the act of ratification as an actual political decision disappears in the shadows of the past, the less convincing it becomes to trace back the binding force of a resolution adopted against the declared will of the State concerned to the remote act of ratification’ (Tomuschat (n 30) 326–29).

106 It is true that in the UN each institution interprets the provisions of the Charter on the scope of its powers and functions. However, this does not mean that such a reading cannot be questioned. The preparatory work for the Charter demonstrates that it was not intended to attribute an express competence to make an authentic interpretation of the Charter to any organ of the UN. In a Report of the Special Subcommittee of Committee IV/2 on the Interpretation of the Charter, 13 UNCIO (1945) 831–32, it is explained that ‘it is inevitable that each organ will interpret such parts of the Charter as are applicable to its particular functions. … Accordingly, it is not necessary to include in the Charter a provision either authorizing or approving the normal operation of this principle. … It is to be understood, of course, that if an interpretation made by any organ of the Organization … is not generally acceptable it will be without binding force’ (emphasis added).

107 For a study of the theory of ultra vires acts in the context of international organizations, see CF Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, Cambridge, 2005) 193–216; R Bernhardt, ‘Ultra Vires Activities of International Organisations’ in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of K. Skubiszewski (The Hague, Kluwer, 1996) 599.

108 Rosand (n 32) 548.

109 N Krisch, ‘The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council’ in C Walter et al (eds), Terrorism as a Challenge for National and International Law: Security versus Liberty? (Springer, Berlin, 2004) 884.

110 For the opposite position, see Lavalle (n 13) 436.

111 For a defence of an evolutionary interpretation of the Charter, giving various convincing examples showing the creativity with which this treaty has been applied to adapt it to historic necessities, see Rosand (n 32) 569–73.

112 See above notes 83 and 84.

113 Bearing in mind that the SC's discretion to qualify a situation as a threat to peace, it cannot be ruled out that in the future massive displacements of immigrant populations, generalized famine or specific genetic research programmes will be considered as such. If the SC ends by laying down norms in a range of issues of that variety, evidently it will have become a universal legislator.

114 In this sense, the declarations of various countries after the GA's approval of the Convention for the Suppression of Acts of Nuclear Terrorism were enlightening; in these they praised the fact that the forum for the negotiation of the Convention had been that created by the GA (See, eg, the intervention of the Indonesian representative in Doc A/59/PV.91 (13 April 2005) 9–10).

115 The Convention was finally approved by GA Res 59/290 (15 April 2005).

116 But instead, as indicated previously, the obligations imposed by SC Resolutions would have priority over those derived from particular conventional law, in virtue of what is provided in Article 103 of the Charter.

117 The European Court of First Instance has declared its ‘indirect’ competence to control the legality of SC Resolutions in relation to the norms de ius cogens, when considering that in the case (which it considers ‘improbable’) that the latter were breached by a Resolution, that Resolution ‘would bind neither the member States of the UN, nor, in consequence, the Community’ (Cases T–315/01 Kadi [2005] ECR II-0000, paras 226–31 and T–253/02 Ayadi [2006] ECR II-0000, para 116).

118 Corten (n 29) 562–66.

119 This does not mean that SC work has not been used to identify the opinio iuris in order to prove the existence of a customary norm. Eg, in Tadić (Jurisdiction) ICTY-94-1 (2 October 1995) para 133, it was held that the customary norms of international humanitarian law were applicable to internal armed conflicts, and that their breach generated the liability of the individuals who violate them. To prove the opinio iuris in this sense, the Court referred, among other arguments, to the SC Resolutions dealing with the armed conflict in Somalia.

120 In any case, it is necessary to recall that international jurisprudence has alluded on some occasions to the SC's practice to prove the existence of a customary norm, although always as one further element among other evidence. See, eg, in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep, paras 89–101, the references to the practice of the States that demonstrated that the IV Geneva Convention of 1949, on the Protection of Civilian Persons in Time of War, was applicable to the Palestinian territories occupied by Israel, among which various SC Resolutions were cited (para 99 of the Advisory Opinion).

121 For a detailed analysis of the CTC's role, see Szurek (n 49) 22–42; E Rosand, ‘Security Council Resolution 1373 and the Counter-Terrorism Committee: the Cornerstone of the United Nations Contribution to the Fight against Terrorism’ in C Fijnaut, J Wouters and F Naert (eds), Legal Instruments in the Fight against International Terrorism. A Transatlantic Dialogue (Nijhoff, Leiden, 2004) 608–31.

122 ‘Unless the Council soon stipulates that these are emergency regulations to contain an imminent threat to peace and security, perhaps of time-limited duration till more legally founded instruments of law can be negotiated and come into force, the Council's authority and legitimacy will almost certainly come under intensifying attack’ (The United Nations and the New Threats: Rethinking Security (n 88) 13–14).

123 In the debate that took place in the GA in 2004 on the ‘Question of equitable representation on and increase in the membership of the Security Council and related matters’, the German representative used the argument of this institution's new legislative function to justify the need for its enlargement (Doc A/59/PV.26 (12 Oct 2004) 18). In the never-ending discussion on the need to reform the SC, see Doc A/61/47 (14 Sept 2007). The consultations held in the GA from 12 to 14 November 2007 showed that we are still very far from consensus on this issue.

124 During the San Francisco Conference, Belgium presented a proposal that would have enabled a direct claim to the ICJ to be lodged in the event of a State considering that a decision of the SC breached its essential rights (3 UNCIO (1945) 336). However, the great powers opposed this initiative because they considered it could entail an excessive reduction in the SC's effectiveness (12 UNCIO (1945) 49–66). Therefore, although the ICJ is the main judicial organ of the United Nations (Article 92 of the Charter), the Member States of the Organization cannot initiate proceedings directly to challenge the legality of the SC's acts. However, this does not mean that this Court cannot pronounce on the legality or on the effects of the acts of other UN organs. Despite lacking ‘powers of judicial review or appeal’ in respect of the decisions taken by UN organs, it can be argued that the ICJ has recognized its capacity to review the validity of such organs' Resolutions indirectly, to the extent that it is necessary to resolve legal questions that have been validly put to it, both in its advisory opinions (Namibia [1971] ICJ Rep 45), and in contentious cases (Lockerbie [1998] ICJ Rep paras 41–42 and 50). For a submission that the ICJ assume its full responsibility in solving today's international legal problems, see HE Judge P Kooijmans, ‘The ICJ in the 21st century: Judicial Restraint, Judicial Activism, or proactive Judicial Policy’ (2007) 56 ICLQ 741.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed