Stefan Talmon - UN SC as world legislator
This phase began on September 28, 2001, with the adoption of Resolution 1373.2 Resolution 1540 of April 28, 2004, is the most recent example, but undoubtedly not the last.
In a briefing on the Council’s schedule for April 2004, its president, referring to the planned adoption of Resolution 1540, described the ongoing consultation process for that resolution as “the first major step towards having the Security Council legislate for the rest of the United Nations’ membership.”
Security Council resolutions that established the United Nations Compensation Commission and the two ad hoc war crimes tribunals for Yugoslavia and Rwanda, imposed dis- armament obligations on Iraq, determined the Kuwait-Iraq border, declared the applicability of the Fourth Geneva Convention to the occupied Palestinian territories, and, generally, im- posed any economic sanctions have been termed international legislation or legislative acts in the literature.12 States, on the other hand, used the term for the first time in connection with Resolution 1373, and, more recently, Resolution 1540.13
On the basis of the criteria for international legislation just established, the Security Council has legislated on four occasions so far. In Resolution 1373, adopted unanimously, the Council set out a range of abstract measures for all states to undertake in combating terrorism. These included the obligations to prevent and suppress the financing of terrorist acts, freeze the resources of terrorists, and criminalize the perpetration of terrorist acts. 21 Several provisions were almost identical to provisions in the International Convention for the Suppression of the Financing of Terrorism, which was not yet in force.22 The representative of Angola declared in the Council debate on April 22, 2004: “By adopting resolution 1373 (2001), the Security Council took the unprecedented step of bringing into force legislation binding on all States on the issue of combating terrorism.”23 The adoption of Resolution 1373 was widely welcomed by the UN member states.24 It was hailed as a “groundbreaking resolution,”25 a “landmark deci- sion,”26 a “historic event,”27 and even “one of the most important resolutions in [the] history [of the Council].”28
“In short, for the first time in history, the Security Council enacted legislation for the rest of the international community.” The representative of Costa Rica, referring to Resolution 1373
Legislation by the Security Council is a powerful instrument for the maintenance of interna- tional peace and security—in theory at least! It allows the Council to take a proactive or even preemptive approach to the discharge of its primary responsibility under the Charter. After all, preventing threats to the peace is an essential element in maintaining international peace and security.150 Once a general phenomenon such as international terrorism has been iden- tified as a threat to the peace, the Council can take preventive general action without waiting for the threat to materialize. Instead of dealing with each specific terrorist organization as it emerges, the Council can deal with terrorist organizations in general, enabling it to have mea- sures in place when another terrorist organization is set up, or even to prevent its foundation.
In practice, however, Council legislation is fraught with problems, the most significant being the lack of clarity of the legislative acts and the question of implementation. It may be possible to monitor the “classic Article 41 measures,” which comprise the interruption of economic rela- tions and means of communication, and the severance of diplomatic relations. But it most defi- nitely is not possible to monitor the adoption or, more important, the enforcement of complex
criminal, financial, and other laws or the establishment of export and transshipment controls by 191 UN member states.
Moreover, it is a misconception to equate the submission of reports to the various implementation committees with compliance. Resolutions 1373 and 1540 are akin to directives in European Community law. They are binding on the member states as regards their aims but leave to the member states the choice of ways and means of reaching these aims. The European Commission, which monitors the implementation of these directives in the twenty- five member states, employs some twenty-four thousand permanent staff,151 while the Assessment and Technical Assistance Office of the Counter-Terrorism Committee, which analyzes the reports submitted by states on their implementation of Resolution 1373, consists of about twenty experts.152 This discrepancy demonstrates that international legislation by the Council can be effective only with the full support and cooperation of the wider UN membership. The Council would be well-advised to legislate only to an extent that reflects the general will of the member states.
Eric Rosand : the SC - Ultra Vires or Ultra Innova
This Article begins by taking a closer look at the two Security Council resolutions at the center of this debate: Resolution 1373 and Resolution 1540. It argues that they make pragmatic sense as necessary responses by the Security Council to address urgent, global threats
Part II, after providing a brief summary of the Council’s powers under the U.N. Charter, focuses on whether this activity falls within the Security Council’s mandate. In doing so, Part II describes the breadth of the Council’s powers under Chapter VII, which are subject to few express limitations. Many commentators cite the limitation that the Council may only address a particular situation, with a time-limited, case-based reaction, to support their conclusion that while the Council may have the authority to legislate in response to a specific situation, it lacks the authority to do so on a global basis. Part II concludes, however, that this limitation, which does not actually appear in the text of the Charter itself, is in fact not sufficient to circumscribe the Council’s activity in this area. To continue to read such a limitation into the Charter at a time when the most urgent threats to inter- national peace and security are neither time nor geographically limited would prevent the Council from being able to fulfill its responsibility under the Charter to maintain international peace and security through “prompt and effective action.”
Part III of this Article looks at previous Council actions that have imposed binding obligations on all States, albeit not in response to a global (vice specific) threat. It explains that the adoption of Resolutions 1373 and 1540 constitutes a qualita- tively different exercise of the Council’s Chapter VII power, which is manifested in a number of ways. Part III concludes, however, that this difference serves to highlight the innovative nature of the Council’s activity rather than make it ultra vires. Despite the unique nature of Resolutions 1373 and 1540, the discretion given to the Council under the Charter, both in terms of determining the existence of threats to the peace and the appropriate enforcement measures to address such threats, appears broad enough to allow for this innovative activity.
Part IV addresses the impact that this Security Council activity, which essentially excludes the 176 U.N. Members that are not on the Council from the decision-making process, will have on the traditional consent-based international law-making process. It highlights some of the limitations of this process, which become more pro- nounced when the United Nations is confronted with the pressing need to fill a legal gap. Part IV concludes that in these circumstances the innovative use of Council powers, while circumvent- ing the cumbersome multilateral treaty-making approach, is nevertheless justified.
Recognizing that the U.N. Charter has evolved to allow the Council to act as a “global legislator” under cer- tain circumstances, Part V argues that there are some safeguards the Council should implement each time it uses this authority. Such safeguards are needed to maintain the Council’s institutional “legitimacy,” ensuring that the Council exercise this broad power in ways that most States deem appropriate and within its competence. This will induce the broad cooperation from States that is needed to assure the most effective use of this authority. As this Article concludes, the Council needs the ability to use this tool to address, within the State-centered U.N. Charter system in which it operates, the threats posed by non-State terrorists and terrorist groups.
The U.S. decision to go to war in Iraq in March 2003 without a resolution comparable to the one that launched the first Gulf War, and the continuing dispute as to whether this action was or was not "illegal" under the U.N. Charter, has been at the centre of the debate concerning the role of the United Nations in the twenty-first century.' This dispute, however, has overshadowed the discussion surrounding a developing Security Council practice with perhaps even greater implications for both the United Nations and its Member States: namely, the Security Council's adoption of resolutions that impose far-reaching, binding obligations on all 191 U.N. Member States. The Security Council has taken this action, which has been described as "global legislating" - as distinguished from taking decisions which impose binding obligations that relate to a particular dispute or situation - as part of its effort to address the global terrorist threat.
Specifically, the Security Council has adopted two resolutions dating 2001 and 2004. Adoption of these resolutions has been described as a "fast- track" procedure under Chapter VII of the U.N. Charter for addressing global threats to international peace and security.
This action has been applauded in some circles as an important exercise of the Council's powers, an extraordinary response to an extraordinary threat and a positive contribution to the U.N. fight against terrorism.
The Council's use of this tool, however, has been also questioned and criticized by some commen- tators and governments as falling outside the Security Council's mandate.The Council, they argue, was not intended to act as a "global legislator". They fear that such action could disrupt the balance of power between the Council and the General Assembly as set forth in the Charter. Moreover, they assert that having the Security Council, a fifteen-Member body not accountable to other U.N. organs, impose obligations on all 191 members threatens to weaken one of the cornerstones of the traditional international law structure, namely, the principle that international law is based on the consent of States.
Following the events of September 11, 2001, the Council, like a number of governments and other international bodies, took unprecedented steps to increase its contribution to the fight against terrorism. Perhaps its most important action was the adoption of Resolution 137315 on September 28, 2001. The Council had previously adopted resolutions condemning terror- ism generally or addressing specific terrorist acts, often in the context of State-sponsored terrorism.16 In the aftermath of September 11, 2001, however, the Council sought to address the global terrorist threat posed, not by States, but by non-State terrorists and terrorist groups. The Council imposed a series of obligations on all States, requiring them to take various measures to enhance their capacity to combat terrorism.1 7 It required all States, inter alia, to criminalize terrorist financing activity, freeze terrorist funds, refrain from providing "active or passive" support to terrorists, and deny safe haven to terrorists and their supporters.
Some two and a half years later the Council again sought to tackle a global threat in a comprehensive way, this time the threat posed by the proliferation of WMD and their means of delivery, in particular, the threat that terrorists and other non- State actors might acquire such weapons.19 Again, faced with a global threat potentially emanating from both non-State actors as well as any State, the Council decided to adopt a resolution that imposed a series of far-reaching obligations on all States. It required them to refrain from providing support to non-State actors attempting to manufacture, possess, transport, or use WMD and their means of delivery. It further required them to prohibit in domestic law any such activities by non-State actors, particularly for terrorist purposes, and prohibit assistance or financing of such activities. It obligated States to adopt mea- sures to prevent the proliferation of WMD and their means of delivery, including by accounting for and physically protecting such items, establishing effective border controls and law enforcement measures.
The two resolutions share a number of elements. In each instance, the Council is responding, not to a specific situation or threat but to one of a global nature. 23 Additionally, as noted, both use the Council's authority under Chapter VII of the U.N. Charter to impose far-reaching binding obligations on all States. Whether this constituted an appropriate use of this au- thority will be discussed below. In doing so, both resolutions seek to establish global norms, while leaving considerable discretion to each State to decide how best to implement those norms consistent with its domestic system. Moreover, both are seeking to fill a recognized gap in existing international law regimes re- lating to counter-terrorism and counter-proliferation, thus devi- ating from the traditional method of creating multilateral obli- gations, namely, the intergovernmental treaty-making process.2 5 In addition, each resolution established a committee of the Se- curity Council, consisting of all fifteen Council members, to monitor States' implementation of the relevant resolution, and requested States to report to the committee on their implemen- tation efforts.26 The effectiveness of each resolution will de- pend, in large part, on whether these committees will be able to secure cooperation from States.
From a purely pragmatic perspective, this Council behavior should be welcomed. The Council's objective in adopting Resolution 1373 was to convince all U.N. Member States to do more to combat terrorism. The global nature of the terrorist problem is difficult to dispute. Given the proven mobility of terrorists, the permeable nature of borders, the different and evolv- ing sources of terrorist financing, and the ability of terrorists to identify and exploit those countries with weak counter-terrorist infrastructure, it is also hard to question the logic behind the Council's decision to require all States to take action to combat terrorism. Partly as a result of Resolution 1373, and the work of its offspring, the Counter-Terrorism Committee ("CTC") ,almost every country has taken steps to enhance its counter-terrorism machinery, whether in the form of adopting anti-terrorism legislation, strengthening border controls, becoming party to in- ternational treaties related to terrorism, or becoming proactive in denying safe haven to terrorists and their supporters.
Furthermore, the adoption of Resolution 1373 makes even more pragmatic sense in light of the U.N. efforts, or lack thereof, outside of the Security Council to combat terrorism. This is best exemplified by the work in General Assembly, where disputes over the definition of terrorism have left negotiations on a draft comprehensive convention against international ter- rorism at a standstill for the past thirty-two years.32 In addition, when the Council adopted Resolution 1373, only two States were party to all twelve of the existing international conventions and protocols related to terrorism that were negotiated and con- cluded in the General Assembly and other U.N. bodies.
In fact, the Terrorist Financing Convention, the most recent of these treaties, did not yet have enough parties to have entered into force.34 Moreover, none of the existing instruments con- tains a mechanism to monitor State parties' efforts to implement them. Thus, the need for the Council to step in - to establish a set of global counter-terrorism norms and to create a committee to work with States to help them implement such norms - was apparent. This is particularly so if the United Nations, and in particular the Security Council, is serious about tackling the global terrorist threat to international peace and security.
The Council's adoption of Resolution 1540 should also be welcomed as a pragmatic use of its authority to address another critical, global threat. Only a few months prior to the adoption of Resolution 1540, the 191 Member General Assembly called upon States to support international efforts to prevent terrorists from acquiring weapons of mass destruction and their means of delivery and urged States to strengthen their domestic infrastructure to this end.3 5 Resolution 1540 could be viewed partly as the Council's attempt to stimulate these international efforts.
It is also generally recognized that there is a gap in the ex- isting non-proliferation regimes. The relevant instruments - the Chemical Weapons Convention,3 6 the Non-Proliferation Treaty,37 and the Biological Weapons Convention s - are gener- ally viewed as not dealing with this potential of non-State actors acquiring WMD in the necessary detail.39 Thus, as it did in adopting Resolution 1373, the Council acted to fill this gap so as to address this pressing threat. It adopted a resolution under Chapter VII that imposes a series of obligations on all States and creates a monitoring committee to work with them to help en- sure that they implement them. It would take many years to ne- gotiate a multilateral treaty in this area and convince all States to become parties to it; given the urgent nature of the threat, that inevitable delay makes Resolution 1540 a welcome practical re- sponse to a pressing problem.
Despite their contributions to the U.N. efforts to address the preeminent threats of the new century, these Council resolu- tions have nevertheless been the subject of much criticism and debate, which center on the role of the Security Council under the U.N. Charter system in addressing such threats in the twenty- first century.
CONSISTENT WITH THE U.N. CHARTER?
From the above discussion, it appears that a strong case can be made the Security Council's adoption of Resolution 1373 and Resolution 1540 were sensible responses to serious, critical Whether they were consistent with the U.N. Charter and within the Security Council's mandate, is, however, another question. The question is pressing in light of the criticism that
the Council, in assuming this "global legislating" function - which critics claim was not assigned under the Charter - has in fact acted contrary to the Charter.40 Whether or not this is viewed as a legitimate innovation or an ultra vires exercise of the Council's powers could have an impact on States' willingness to implement the obligations imposed by these resolutions.
The debate over whether the Council has the power to act as a "global legislator" is the most recent in a long line of debates over the scope of the Council's powers under Chapter VII of the U.N. Charter, which authorizes it to adopt measures necessary to maintain international peace and security." Since the end of the Cold War, the question of whether there are any political
and legal limits on the exercise of the Council's Chapter VII au- thority has received much attention. Part II will seek to answer this question by trying to place this Council activity within the Charter framework to determine whether the criticisms of the Resolution 1373 and 1540 are valid.
Article 24, Paragraph 1 of the Charter endows the Security Council with the primary responsibility for the maintenance of international peace and security so as to ensure prompt and ef- fective action by the United Nations.42 U.N. Members have agreed that, in carrying out these duties, the Council acts on its behalf.43 Moreover, it is generally agreed that each U.N. organ is the judge of its own competence.44 The International Court of Justice, the Charter's judicial organ, is also given a role here. The scope of which remains the subject of much debate, although it is generally agreed that the court lacks the power to find a Council resolution to be "null and void."
To enable the Council to fulfill this responsibility effectively and efficiently, the Charter endows it - under Chapter VII - with the power to take far-reaching decisions, which are binding on U.N. Member States. All U.N. Members have not only under- taken to carry out the decisions of the Council (Article 25) , but
To enable the Council to fulfill this responsibility effectively and efficiently, the Charter endows it - under Chapter VII -with the power to take far-reaching decisions, which are binding on U.N. Member States. All U.N. Members have not only under- taken to carry out the decisions of the Council (Article 25) , but they have also agreed to carry out such decisions that are for the
maintenance of peace and security (Article 48, Paragraph 1).41 Before the Council can utilize its powers under Chapter VII,
however, it must determine, pursuant to Article 39, that there is a situation involving a threat to international peace and secur- ity,49 and the measures the Council takes under Chapter VII
must be aimed at removing the threat by ending that situation.5 ° The Council has broad discretionary power in making this deter- mination.51 While the "threat to the peace" concept in Article 39 was drafted to refer to threats created by inter-State conflicts, the Council quickly broadened this narrow interpretation and now applies it to intra-State conflicts.52 Council practice over the past fifteen years, where it has exercised its Chapter VII authority in internal national conflicts - such as those of Albania, Angola, Burundi, the Central African Republic, the Democratic Republic of the Congo, East Timor, Liberia, Rwanda, Sierra Leone, Somalia, and Sudan - indicates wide acceptance that the con- cept of "threat to the peace" now encompasses both inter and intra-State conflicts. 53 In the post-September 11th world, includ- ing through the adoption of Resolutions 1373 and 1540, the con- cept of "threat to the peace" has been further expanded to en- compass global threats posed by non-State actors such as ter- rorists and terrorist organizations. This broadening of the Council's view of what constitutes a "threat to international peace and security" has resulted in a corresponding broadening of the types of measures it has chosen to impose on States in an attempt to address the threat.
To summarize briefly, in acting under Chapter VII, the Council can make recommendations or decisions relating to a particular situation or dispute. In exercising this latter function, it is generally accepted that that Council may impose obligations (which under Article 103 prevail over any conflicting treaty, and presumably customary law, and obligations); it may reaffirm and/or apply existing rules; and it may depart or override such rules. Furthermore, there appears to be no legal limitation in the Charter that prohibits the Council from using its Chapter VII authority in a legislative capacity."4 Again, a traditional ca- veat to all of the above concepts has been that the Council may only do so in discrete cases, involving a specific threat to peace and security.75 However, to continue to read such a limitation into the Charter at a time when the most urgent threats to inter- national peace and security are limited by neither time nor geog- raphy would prevent the Council from fulfilling its responsibility under the Charter to maintain international peace and security through "prompt and effective action."
To argue that the Charter provides the Council with the principal responsibility for maintaining international peace and security, grants it broad discretion both to determine the exis- tence of threats to peace and security and determine the means for addressing such threats, but does not grant a mandate to im- pose binding obligations of a legislative character on all States begs the following question: What if, in order to address a threat effectively, the Council determines that imposing binding obli- gations on all States to criminalize certain activity and increase domestic capacities to combat the threat is necessary? (The situation facing the Council when it adopted Resolutions 1373 and 1540.)
Presumably, if the Council thought that the lack or weakness of existing counter-terrorism or counter-proliferation legislation and regulations 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 the existing terrorist and counter-prolifera- tion threats are global in nature, and thus, require global re- sponses. Imposition of such requirements was not a propor- tional response to the threat. Thus, it would be logical for the Council to claim the authority under Chapter VII to impose these same requirements on all States.
The U.N. Charter was drafted, and the United Nations has lived much of its life, in a world where States were the major threat to peace, in large part because they controlled the weap- ons that could threaten international peace and security. As the last few years have made clear, this is no longer the case. Today, the greatest threats are posed by non-State terrorists and terror- ist groups and the risk that they might come to possess WMD.
The challenge for the U.N. system, and the Security Council in particular, given its primary responsibility for maintaining inter- national peace and security, has been and remains, to find ways to address such threats in a sovereignty-centered system.2°1 Rather than being able to address non-State actors directly, the Security Council must rely on the cooperation of States to imple- ment its measures within their respective jurisdictions against the relevant individuals, entities, and groups.
Therefore, in order to be able to target terrorists and terrorist organizations ef- fectively, the Council had to adopt a series of detailed measures through the intermediary of State action.The alternative was to have merely urged or demanded all States to do more to com- bat terrorism, without establishing any global standards or norms for States to meet.
In both Resolution 1373 and 1540, the Council chose the more ambitious route, requiring States to take a number of detailed steps within their jurisdictions to address the terrorist threat and it established a committee to work with States to monitor the implementation of measures. Although both Resolutions allow States considerable discretion in imple- menting the various measures, the Council has nevertheless pro- vided States with a detailed prescription for how to combat ter- rorism and prevent terrorists from getting their hands on WMD. In the end, however, it is up to the States to take the necessary action within their jurisdictions.
The question of whether the Council has the authority to act as a "global legislator" is not simply a theoretical one. Rather, there would be serious practical consequences, includ- ing to the credibility of the United Nations, if this Council action were to be viewed by most observers as illegitimate or, worse, illegal. Although this result could not prevent the Council from engaging in such action, it would likely reduce the level of coop- eration the Security Council received from States in implement- ing its "global legislative" measures. Without such cooperation, the Council-imposed measures become hollow and the Council would be less likely to use this tool in the future. Such a result is neither in the interest of the United Nations nor its Member States, as the Council needs to be able to use this instrument effectively in order to address adequately the global, non-State threats of the new century.