Dr. Rachael Lorna Johnstone

Dr. Rachael Lorna Johnstone

Assistant Professor, Faculty of Law and Social Science, University of Akureyri Doctor of Juridical Science (S.J.D.), University of Toronto, Canada. 2000: Master of Legal Theory (LL.M.), magna cum laude, European Academy of Legal Theory, Belgium 2000. Bachelor of Law (LL.B.(Hons)), University of Glasgow, Scotland 1999.


Grein birt í: Lögfræðingur 2008

International Martial Law The Security Council’s “legislative“ response to terrorism

[T]he Security Council cannot legislate for the world.1 

Introduction

One could be forgiven for believing that terrorism was invented on the 9th of September 2001, given the international response to the attacks that day on the United States (9/11). International geopolitics was transformed overnight, as the World’s only superpower responded to its first experience of mass killing of civilians on their home soil by foreign non-State actors. United Nations (UN) organs and States rushed to condemn the attacks and offer their condolences to an unprecedented extent.2 Members of the Security Council, rather than raising their hands to vote for the resolution condemning the attacks as is usual practice, instead voted by rising to their feet „in a show of unity in the face of the scourge of terrorism.“3 Academics and publishers found new material and universities sold new study lines in security and terror- ism.

But terrorism is not a new phen-omenon and the UN has had reason
to address it long before now. The
 General Assembly has agreed 13
 counterterrorism treaties, 12 of
which were concluded before the 
attacks of 9/11.4 The Security Coun-
cil had likewise addressed the threat of terrorism in resolutions pertaining to Libya, Sudan and Afghanistan.5 However, the resolutions passed by the Security Council following 9/11 differ from these earlier interventions. Rather than presenting individual (purportedly deviant) member states with requirements, the latest resolutions create binding obligations for all member states of the UN. These resolutions and the Security Council’s authority to make them will be the subject of this article.

Terrorism

Despite the extensive treaty law, there is no single comprehensive definition of terrorism common to all, with each treaty instead addressing a particular issue, e.g. hijacking, bombings, hostage taking, nuclear terrorism and terrorist financing. The most general definition is that found in the International Convention for the Suppression of the Financing of Terrorism but even this relies on reference to nine of its fore-runners or:

(b) any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.6

Attempts to agree a general counter-terrorism convention at the General Assembly routinely stall on the definitional question, with States fighting to ensure that their own interests, and those of their allies, are not compromised.

The Security Council, despite its recent activism, has likewise evaded the matter, and instead relies on a general reference to „international conventions and protocols relating to terrorism.“7 A previous chairperson of the Security Council’s counter-terrorism committee (CTC) ensured that the CTC would not be hampered by this lack of agreement: „For the Committee, terrorism is what the members of the Committee decide unanimously is terrorism.“8

The Security Council

The Security Council derives its authority from Chapters five, six and seven of the UN Charter, backed up by Article 103 which states that „[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.“ By virtue of their ratification of the Charter, member States of the UN „confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf“ and „agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.“9 On this basis, the Security Council is often called the „police force“ of the UN system. It must respect the „Purposes and Principles of the United Nations“ which are laid down in the Preamble to the Charter.10

The Security Council is first empowered to assist member States in settling their disputes by peaceful means and can investigate potential disputes or situations „which might lead to international friction or give rise to a dispute“ and can make non-binding recommendations for settlement (Chapter VI powers).11 They should, however, recall the authority of the International Court of Justice (the Court) as the principal forum for the resolution of legal disputes.12 Stronger measures are available under Chapter VII, where there exists a „threat to the peace, breach of the peace, or act of aggression.“13 It is left in the hands of the Security Council to determine whether such a threat to the peace, breach of the peace or act of aggression exists or has taken place and they appear to enjoy a broad discretion in this regard.14 The Security Council can require provisional measures from States whilst considering disputes15 and can institute sanctions and other measures not involving armed force.16 If the Security Council determines that such measures are insufficient, the Charter authorises the Council to take military action.17 Since the UN has no military of its own, in practice this has meant the Security Council authorising States or groups of States to act on its behalf.18 The Security Council does not, however, retain an exclusive monopoly on the legal use of force as the „inherent right of individual or collective self-defence“ of Member States in response to an „armed attack“ is retained. Member States engaged in self-defence in such circumstances must report their activities to the Security Council.19

Finally, the Security Council is the body entrusted with the enforcement of decisions of the Court and their powers to do so, extending to the use of force, do not require a Chapter VII finding of a threat to peace and security.20

Responding to terrorism

In the cases of Libya, Sudan and Afghanistan, the Security Council had considered terrorism to constitute a threat to international peace and security, thus triggering its powers under Chapter VII. In its resolutions, the target States were made subject to sanctions which all member states must respect. In the case of Afghanistan, a committee was established to monitor their implementation.21

Following the terrorist attacks of 9/11, the Security Council swiftly agreed Resolution 1368 in which they condemn the attacks „like any act of international terrorism, as a threat to international peace and security.“22 The „inherent right of individual or collective self-defence in accordance with the Charter“ is recognized in the preamble to the resolution, but the terrorist attacks are not explicitly given the status of an „armed attack“ which, according to Article 51 of the UN Charter, is a necessary pre-requisite for lawful self-defence. By contrast, in previous resolutions authorising the use of force in self-defence, the Security Council had instead used the term „armed attack.“23 The ambiguity of the resolution can be explained at least in part by the uncertainty at the time as to who bore responsibility for the attacks. It was still one plausible hypothesis that state organs or agents had been directly involved.24

States are „called upon“ (which is Security Council speak for „asked politely“) to „work together“ in the pursuit of justice against the attacks’ „perpetrators, organizers and sponsors“ and to improve their cooperation, including by implementing the conventions and prior Security Council resolutions, in particular, Resolution 1269 (instituting sanctions against Afghanistan).25 Finally, the Security Council „expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism,“ paving the way for the application of Chapter VII powers and authorisation of the use of force.26

On September 28th, with two weeks for further negotiations amongst Security Council members, resolution 1373 was passed.27 The meeting lasted only five minutes: time only for a vote but no comments from members’ representatives who had presumably negotiated and agreed the text „off the record.“28 Resolution 1373 is a departure from previous counter-terrorism resolutions to the extent that it creates binding obligations which are not time-limited and is a reaction to the threat of terrorism in general, not a threat emanating from any particular rogue state or terrorist group. The Security Council „decides that States shall“ (it is no longer „asking politely“) take measures to prevent and suppress terrorist financing, refrain from providing support to terrorists, give them „save haven“ or otherwise allow them to operate within their territories or move freely between states, and ensure a functioning criminal justice system to punish terrorists.29 These obligations fall on every member state of the UN, leaving out only the State of the Vatican City, which, at 44 square hectares is a little too small to be harbouring terrorists, and possibly Antarctica, which instead is a little too cold.

States are „called upon“ to cooperate to reduce the risk of terrorism in a number of areas and the Security Council also „notes with concern“ connections between terrorism and trans-national organised crime, money laundering and trafficking in drugs and weapons (but not trafficking in human beings).30

The Security Council is determined that this resolution shall be complied with and establishes the CTC to which all member states must report on their efforts to comply with the resolution.31 States are expected to submit reports within 90 days and thereafter, according to a timetable to be set by the CTC. Furthermore, the Security Council, although no longer threatening to take „all necessary steps“ against the perpetrators of the 9/11 attacks as they had in Resolution 1368, now „expresses its determination to take all necessary steps in order to ensure the full implementation of this resolution.“32

The obligation to refrain from supporting terrorists has long been admitted as a principle of customary international law.33 However, the extensive and, for international law, detailed obligations to criminalise terrorist fundraising and freeze existing funds held by terrorists and their supporters were certainly not. These provisions draw their inspiration from International Convention for the Suppression of the Financing of Terrorism. However, at the time of Resolution 1373, this Convention had only 4 state parties, and needed 22 to enter into force.34 Furthermore, whilst the Security Council was keen to introduce the provisions of the Convention restricting terrorist funds, it neglected to introduce any of the provisions that protect the human rights of suspected terrorists.35 Human rights concerns were belatedly recognised by the Security Council in 2003 and since then, lukewarm attempts have been made to remind States and the CTC itself of competing obligations to respect human rights.36

State reaction to the novelty of Resolution 1373 was muted with only Cuba bluntly challenging the Security Council’s authority. At the General Assembly plenary dedicated to discussion of the 9/11 attacks and their lasting implications for international law and security, the Cuban representative commented:

The Security Council has been pushed to give its legal support to the hegemonic and arbitrary decisions of the dominant Power. Those decisions violate the Charter and international law and encroach upon the sovereignty of all States. In this, the Council is once again usurping the functions of the General Assembly, which is the only organ whose universal membership and democratic format could legitimize such far-reaching decisions. The Council uses the unusual method of imposing on all States some of the provisions found in the conventions against terrorism, to which individual States have the right to decide whether or not they wish to be signatories.37

Nevertheless, Cuba, along with every other member state of the UN, complied with the formalities and reported to the CTC.38 The Secretary- General’s Treaty Depository office was inundated with documents of ratification for the counter-terrorism treaties, with the International Con- vention for the Suppression of the Financing of Terrorism coming into force on April 2002. At the time of writing, it had 156 state parties. States have also taken practical domestic steps to try to limit terrorist financing.39

Given the international political environment in September 2003, it is possible that the Security Council members did not reflect deeply on the significance of resolution 1373. The same, however, could not be said when they passed Resolution 1540 in 2004.40 By this time, the Security Council’s legislative initiative had been the subject of academic commentary41 and some of the Council’s members, as well as other UN member states, expressed concerns with the process.42 The resolution was passed unanimously, but Pakistan indicated its hesitations:

Pakistan shares the general view expressed in the Council’s open debate that the Security Council cannot legislate for the world... Pakistan also shares the general view of the United Nations membership that the Security Council cannot assume the stewardship of global non-proliferation and disarmament issues. The Council, composed of 15 States, is not a representative body.43

Despite uncertainties about the legitimacy of the resolution, no State refused to comply.44 

Resolution 1540 shares the legislative features of 1373 in terms of its generality of application and the absence of a time limit. It addresses the threats from nuclear, chemical and biological weapons and affirms proliferation of the same as a threat to international peace and security.45 Accordingly, Chapter VII is invoked as the basis for the Security Council’s introduction of new obligations on States to „refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture posses, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.“46 States must also introduce and apply suitable laws to restrict access to nuclear weapons by non-State actors.47 They should further introduce domestic controls to prevent proliferation and trafficking of such weapons.48 This latter obligation is not restricted to proliferation and trafficking to non-State actors, but appears to be applicable also to States, including those who are not parties to the Nuclear Non-proliferation Treaty.49

Another monitoring committee is established, this time with a limited two-year mandate, to receive reports from states on measures taken or to be taken in compliance with the resolution.50 The Security Council’s commitment to enforcement of the resolution is more restrained than was the case in 2001 and it only „expresses its intention to monitor closely the implementation of this resolution and, at the appropriate level, to take further decisions which may be required to this end.“51 It is less keen „to take all necessary steps.“

Constitutional Controversies: Are Resolutions 1373 and 1540 In Vires?

This leads to two related questions. The first is whether or not the Security Council had the authority to pass Resolutions 1373 and 1540. The second is to what extent, in the event of a negative answer to the former question, these resolutions are binding. In other words, even if the Security Council did not have the power to pass the resolutions, are states obliged to follow their content anyway and can they be enforced?

Arguments to support the Security Council’s legislative innovation can be either legal or political, but there is not always a clear line to be drawn between the two types. Authors supporting the resolutions rely, as one might expect, on both. The most ardent advocate of the legality of the resolutions is former Deputy Legal Counsellor of the United States’ mission to the UN, Eric Rosand.52 Across the Atlantic and opposed to expansive Security Council powers is Italian former member of the International Law Commission, Gaetano Arangio-Ruiz who developed his critique of Security Council „law-making“ before 9/11.53

Legal defences of the Security Council’s extensive powers are based on a textual interpretation of the Charter by virtue of Articles 24, 25 and 103.54 Rosand describes State consent to Security Council legislative authority thus: „When U.N. Member States adhered to the Charter they expressly consented to a system in which the Council - fifteen States - acts on their behalf when carrying out its duty to maintain international peace and security. This implies their consent to each and every exercise of Council authority.“55 Rosand does not take the power of the Security Council to be infinite: it must determine a threat to peace and security in order to trigger its authority under Chapter VII.56 However, the Security Council itself has the exclusive competence to determine such a threat to peace and security, and such a determination does not appear to be reviewable by any other body.57

Those who contest such broad Security Council authority first point to Article 24(2) which requires the Security Council to exercise its powers „in accordance with the Principles and Purposes of the United Nations.“ The Purposes are found in Article 1 of the Charter include the maintenance of international peace and security, the development of friendly relations between nations based on respect for equal rights and self-determination, international cooperation, respect for human rights and non-discrimination. The Principles are listed in Article 2 and include sovereign equality of States, good faith implementation of obligations, peaceful settlement of disputes, non-use of force, assistance and respect for UN institutions and respect for the sovereignty and domestic jurisdiction of states. Resolutions that con- tradict those principles and purposes would, according to this view, be ultra vires.58

Further, purported Chapter VII resolutions where there is no actual threat to international peace and security or where the resolution in question does not contribute to the elimination that threat are also considered by some to be ultra vires.59 The Security Council has been criticised for con- flating its Chapters VI and VII powers and determining that a failure to comply with a (non-binding) Chapter VI resolution constitutes per se a threat to international peace and security.60 Moreover, its authority to respond to threats must be to actual threats, not hypothetical threats as appears to be the case in Resolutions 1373 and 1540.61

Even if the Charter text does not provide adequate authority for the Security Council counter-terrorism measures, there is a further argument that the Charter is subject to modification by later practice.62 The most commonly cited example is that of voting in the Security Council. The Charter text states quite clearly that: „[d]ecisions of the Security Council on all other [i.e. non-procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.“ Nevertheless, the Court accepted in the Namibia case a resolution passed with the abstention of two permanent members, on the basis that there was already (in 1971) a customary international law that abstention would not constitute a bar to the validity of a resolution.63

Roberto Lavalle, expressing something between a realist approach and resignation describes the Security Council’s law-making in the terrorism field as: „just another confirmation of something that should be regarded as a well-established fact of international law, namely that, so long as it is not inhibited by any compelling political factors (...) the Council has virtually complete freedom in fashioning its actions in the sphere of international peace and security as it sees fit.“64

The justifications for a reading of a customary law expansion of Security Council authority vis à vis terrorism are usually grounded on a functional necessity argument: something has to be done and the General Assembly, hamstrung by the failure of States to agree on a common definition of terrorism, is unable to do it.65 At this point, the arguments de iure condito (what the law is) become difficult to distinguish from arguments de iure condendo (what it would be desirable for the law to be). Rosand argues that in this time of great crisis, „[f]rom a purely pragmatic perspective, this Council behavior should be welcomed“ because the „traditional law-making process in the General Assembly was not working.“66 The failure of the General Assembly to agree adequate legislative measures (i.e. a general treaty) to combat terrorism had left a dangerous vacuum and the international community should be grateful that the Security Council has taken the necessary action. The idea of this state of emergency justifies the exercise of these powers by the Security Council in the absence of any other adequate authority.67 Hence the title of this paper: „international martial law“ - the World police force is passing (and adjudicating) anti-terrorism laws, usurping the role of the General Assembly and states more broadly as the creators of international law. The legal niceties are not at the forefront of those advocating such views: something has to be done and it is enough that someone is doing it.

Whilst this argument is politically appealing to those who see terrorism as a major (albeit hardly novel) threat, the first doubt cast up by this view is the extent to which the international system really has failed to regulate terrorism. There are, after all, thirteen UN conventions on the subject (in addition to a number of regional treaties) and even if a general convention has not proven forthcoming through the General Assembly, these thirteen cover most conceivable manifestations of terrorism.68 Aside from the treaties, to which not all states are parties, customary international law demanded long before 9/11 that States desist from involvement in terrorism and exercise due diligence to prevent terrorists from operating within their territories.69

Furthermore, to defend the Security Council’s measures even at a political, non-legal level, one must consider just how much of a threat terrorism really poses. The numbers of persons killed by terrorism pales in comparison with more banal threats to human life, such as HIV and AIDS, malnutrition, lack of clean water and even car accidents.70 In the future, climate change may prove a more serious risk to the human population. One doubts that advocates for the Security Council’s law-making in the counter-terrorism field are equally keen to see similar exercises of power in these other areas. One difference of terrorism is that it poses a threat to civilians - in particular civilians of the professional classes - in developed nations, states that are not in the habit of accepting a high mortality rate as a matter of everyday life. „Islamic terrorism“ has so far taken victims in the states of 3 of the 5 permanent members of the Security Council. The particular geopolitical interests of the Security Council members are hard to ignore.

More profound is the criticism that the UN neither has, nor needs, the powers to fill the gaps in the regulation of terrorism, or in any other field. The error has its basis on a false analogy of the UN as a kind of World state and hence requiring equivalent institutional arrangements. This mistake is made possible by erroneous assertions that the UN Charter is the constitution of the international community (which it is not), rather than the constitution of the United Nations (which it is).71 The Charter is a constitution of the UN to the extent that it establishes and defines the competences of the UN’s institutions. But it is not a constitution of the international community writ large.72

Neil MacCormick’s distinction between formal and functional constitutions, although not in itself conclusive of the point, is informative. A formal constitution (of a legal order) is the collection of documents that define the role and powers of the institutions of that order. The functional constitution, instead, is the practice of those institutions, as accepted, de facto, by the subjects of the legal order.73 The UN Charter is the formal constitution of the UN and largely indicative of the functional constitution of the same although the functional constitution may depart from the text in some instances.74 But the Charter is neither formal nor functional constitution of the international community; rather the UN is only a part of the international legal framework, at the base of which States are still sovereign and remain the ultimate law-makers.

States bear sovereignty over their jurisdictions and must have adequate institutional arrangements in place to ensure that gaps can be filled; if some area appears unregulated and requires regulation, then one institution or another should have the residual power to fill the gap. This is the justification for the imposition of martial law in domestic systems: other institutions have failed and the military or police must take over to prevent anarchy. This argument, however, is not applicable to the UN because the UN is not sovereign; states remain the sovereign law-makers in international law. The UN therefore has no residual power, but only such powers as are ceded to it by States. International law is not a closed and complete system; if there is a gap, so be it. If there is no international law (or apparently inadequate international law) on counter-terrorism, states must be left to deal with the matter as they see fit.

In part because international law is not a closed and complete legal system, the consequences of an ultra vires decision by the Security Council are not immediately obvious. The Court has held that it does not have the power of judicial review over Security Council resolutions and this accords with the travaux préparatoires of the Charter.75 During the negotiations, a Belgian proposal to entrust the Court explicitly with such a power was rejected. The Belgian proposal was intended to apply to the powers of the Council under what is now Chapter VI, but was dropped when it was made clear that Chapter VI recommendations were not binding on the States to whom they were addressed. Judicial review over Chapter VII powers was not mooted and Arangio-Ruiz argues that this is because the Security Council was never considered to have extensive powers under Chapter VII beyond immediate peace-enforcement.76

On the other hand, despite lacking explicit power of judicial review, it is not self-evident that the Court must apply an ultra vires resolution of the Security Council. There is no clear institutional hierarchy between the Court and the Security Council which would imply that one is subservient to the other. Articles 24, 25 and 103 clearly indicate the priority of valid Security Council resolutions: but to the extent a resolution is ultra vires, the Court might consider it simply not to be a resolution at all.77 This suggests a kind of de facto review.78 Whilst a State could not raise the validity of a Security Council resolution before the Court as a stand-alone issue, should it find itself in proceedings before the Court in which a questionable resolution is invoked, it could argue that the Court should disregard it.

Tentative Conclusions

In a field that is developing with such pace, any conclusions offered can only be tentative. One of the great advantages of Lögfræðingur is the speed at which its editors manage to move from submission to publication, allowing the author to hope that these reflections will not be outdated at least before going to press.

The present author shares the opinion of Arangio-Ruiz that the Charter does not authorise the Security Council to legislate. Furthermore, despite the „legislative“ natures of counter-terrorism Resolutions 1373 and 1540, there is still insufficient praxis to determine a de facto amendment to the Charter, authorising the Security Council to create law, rather than enforce peace. The concerns expressed by States prior to the approval of Resolution 1540 indicate that opinio iuris is insufficiently harmonious to support a change in customary international law granting the Security Council legislative competence, even in extremis.

On the other hand, in this author’s view, a change in the primary rules of States obligations to prevent terrorism is evident: a higher standard of diligence is due. The authority of these new, stricter norms comes not from the Security Council resolutions directly but from States’ acceptance of them. The Security Council may „decide that States shall“ but law is only made when (and if) States endorse those proposals in usus and opinio iuris.79 States have, as a matter of fact (usus) increased their counter-terrorism measures considerably following the 9/11 attacks (and Security Council resolutions) and, moreover, appear to share the view that these more extensive measures are required as a matter of law (opinio iuris). They have also submitted reports to the Security Council’s committees under Resolutions 1373 and 1540. If this interpretation is indeed correct, then Arangio-Ruiz’ pre 9/11 understanding of the sources of international law remains unimpaired: „those rules [on sources of international law] have not undergone any essential change in the course of the twentieth century. States remain the ordinary lawmakers by treaty or custom; States remain the ordinary dispute settlers; and States remain the ordinary enforcers of their rights against law-breakers.“80

End notes 

1. Representative of Pakistan to the Security Council on the adoption of Resolution 1540, UN SCOR, 56th Sess., 4956th mtg, UN Doc. S/PV.4956, (April 28, 2004) p3.

2. G.A. Res. 1, U.N. GAOR, 56th Sess., UN Doc. A/Res/56/1 (Sep. 12, 2001); S.C. Res. 1368, U.N. SCOR, 4370th mtg (Sep. 12, 2001). Allies and adversaries of the United States alike expressed their sympathies and condemnation of the attacks. Only the administration of Iraq openly celebrated. U.N. GAOR 56th Sess., 13th mtg, at 14, UN Doc. A/56/PV.13 (Oct. 2, 2001) (Cuba); U.N. GAOR 56th Sess., 15th mtg, at 5, UN Doc. A/56/PV.15 (Oct. 2, 2001) (Iran); U.N. GAOR 56th Sess., 16th mtg at 17, UN Doc. A/56/PV.16 (Oct. 3, 2001) (Syria); Susan Hall, et al., Palestinian Joy, Global Condemnation, THE GUARDIAN, SEP. 12, 2001; Suzanne Goldenberg, et al., Iraq stands alone as Arab World offers sympathy and regrets, THE GUARDIAN, SEP. 13, 2001.

3. UN SCOR, 56th Sess., 4370th mtg. UN Doc. S/PV.4370 (Sep. 12, 2001).

4. Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sep. 14, 1963, 704 UNTS 
219; Convention for the Suppression of Unlawful Seizures of Aircraft, Dec. 16, 1970, 860 UNTS 105; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sep. 23, 1971, 974 UNTS 177; Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 1035 UNTS 167; International Convention Against the Taking of Hostages, Dec. 17, 1979, 1316 UNTS 205; Convention on the Physical Protection of Nuclear Material, March 3, 1980, 1456 UNTS 124; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Feb. 24, 1988, 1589 UNTS 474; Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, March 10, 1988, 1678 UNTS 221; Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, March 10, 1988, 1678 UNTS 304; Convention on the Marking of Plastic Explosives for the Purpose of Detection, March 1, 1991, 30 ILM 721 (1991); International Convention for the Suppression of Terrorist Bombings, Dec. 17, 1997 37 ILM 249 (1998); International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, 39 ILM 270 (2000); International Convention for the Suppression of Acts of Nuclear Terrorism, April 13, 2005, 44 ILM 815 (2005).

5. Under Chapter VI (non-binding recommendations), see: SC Res. 731 (Jan. 21, 1992); SC Res. 1044 (Jan. 31, 1996); Under Chapter VII (binding orders), see: SC Res. 748 (March 31, 1992); SC Res. 1054 (April 26, 1996); SC Res. 1070 (Aug. 16, 1996); SC Res. 1267 (Oct. 15, 1999); SC Res. 1333 (Dec. 19, 2000). See also Chapter VI SC Res. 1269 (Oct. 19, 1999) addressed to all States.

6. International Convention for the Suppression of the Financing of Terrorism, supra note 4, art 2. For a review of various definitions to be found in international instruments and their strengths and weaknesses, see HELEN DUFFY, THE “WAR ON TERROR” AND THE FRAMEWORK OF INTERNATIONAL LAW 20-28 (2005); see also Antonio Cassese, claiming that there is a definition in international law, Terrorism as an International Crime, in ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM 213, 214 & 219 (Andrea Bianchi, ed., 2004).

7. SC Res. 1566 (Oct. 8, 2004), operative para. 3.

8. Quoted in Andrew Clapham, Terrorism, National Measures and International Supervision, in ENFORCING INTERNATIONAL LAW NORMS AGAINST TERRORISM, supra note 6, 283, 297. On the CTC, see infra at note 31.

9. UN CHARTER, arts. 24(1) & 25.

10. Id., art. 24(2).

11. Id., Chapter VI: Pacific Settlement of Disputes, arts. 33-38.

12. Id., art. 36(3).

13.
Id., Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression, arts. 39-51.

14. Id., art. 39; see also infra text at note 57.

15. UN CHARTER, art. 40.

16. Id., art. 41.

17. Id., art. 42.

18. Id., arts. 43-46 require States to make armed forces available to the Security Council on its demand; this has never been introduced. Instead, the Security Council authorises the use of force by member states, see TARCISION GAZZINI, THE CHANGING RULES ON THE USE OF FORCE IN INTERNATIONAL LAW, (Manchester, 2005), 43, 56.

19. UN CHARTER, art. 51.

20. Id., art. 94; see also Gaetano Arangio-Ruiz, On the Security Council’s <> 83(3) RIVISTA DI DIRITTO INTERNAZIONALE 609 (2000), 622-3.

21. This committee is generally known as the 1267 Committee (as it is created by Res. 1267, supra note 5, operative para. 6)

22. SC Res. 1368 (Sep. 12, 2001) operative para. 1.

23. Derek Jinks, State Responsibility for the Acts of Private Armed Groups, 4 CHI. J. INT’L L. 83, 85 (note 8).

24. On state responsibility for actions of its organs or agents, see Military and Paramilitary Activities in and Against Nicaragua (Nicar. V U.S.), Merits, 1986 ICJ REP. 14, 110 (June 27), [hereinafter Nicaragua] para. 109 for the tests of complete dependence and effective control. See also more recently Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), reprinted in 46 ILM 85 (2007) (Feb. 26) paras. 385-438. On the difference between state responsibility for terrorist attacks and the right to use force in self-defence against such attacks, see Antonio Cassese, Terrorism is Also Disrupting Some Crucial Legal Categories of International Law, 12 EUR. J. INT’L L. 993 (2001).

25. SC Res. 1368, supra note 22, operative paras. 3 & 4.

26. Id., para. 5.

27. SC Res. 1373 (Sep. 28, 2001).

28. UN SCOR, 56th Sess., 4385th mtg. UN Doc. S/PV.4385.

29. SC Res. 1373, supra note 27, operative paras. 1 & 2.

30. Id., operative paras. 3 & 4.

31.
Id., operative para. 6.

32. Id., operative para. 8.

33. Corfu Channel (UK v Alb.) Merits, 1979 ICJ Rep 3 (April 9) p. 22 [hereinafter Corfu Channel]; Nicaragua, supra note 24, para. 195; G.A. Res. 2625 (XXV) Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/8082 (1970) [hereinafter Corfu Channel]; UN CHARTER, art. 2(4).

34. International Convention for the Suppression of the Financing of Terrorism, supra note 4, art. 26.

35. Id., arts. 9 & 17. See also, Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti- terrorism Measures: The Quest for Legitimacy and Cohesion, 17 EUR. J. INT’L L. 881, 914-915 (2007); Jose Alvarez, Hegemonic International Law Revisited, 97 AJIL 874, 857-858 (2003).

36. SC. Res. 1456 (Jan. 20, 2003) operative para. 6; SC. Res. 1624 (Sep. 14, 2005) operative para. 4; SC. Res. 1735 (Dec. 22, 2006) operative paras. 13 & 14.

37. UN Doc. A/56/PV.13, supra note 2. (Mr. Rodríguez Parrilla: Cuba).

38. David Cortright, A Critical Evaluation of the UN Counter-Terrorism Program: Accomplishments and Challenges, Paper presented at: GLOBAL ENFORCEMENT REGIMES: TRANSNATIONAL ORGANIZED CRIME, INTERNATIONAL TERRORISM AND MONEY LAUNDERING, Transnational Institute, (Amsterdam, 2005) available at: 5-6. To compare, reporting rates for the United Nations Human Rights Treaty Bodies stand at around 70%, States having voluntarily assumed these obligations by ratifying the relevant treaties: Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, UN Doc. HRI/MC/2006/2 (Mar. 22, 2006), Annex 1.

39. See, TERRORISM FINANCING AND STATE RESPONSES: A COMPARATIVE PERSPECTIVE (Jeanne K Giraldo & Harold A Trinkunas, eds., 2007).

40. SC Res. 1540 (April 28, 2004).

41. E.g., Paul C Szasz, The Security Council Starts Legislating, 96 AJIL 901 (2002); Alvarez, supra note 35; Matthew Happold, Security Council Resolution 1373 and the Constitution of the United Nations, 16 LEIDEN J. INT’L L. 593 (2003).

42.
UN Doc. S/PV.4956, supra note 1; Roberto Lavalle, A Novel, if Awkward, Exercise in International Law Making: Security Council Resolution 1540, 51 NETH. INT’L L. REV. 411, 426-28 (2004).

43. UN Doc. S/PV.4956, supra note 1, p. 3.

44. Lavalle, supra note 42, 428.

45.
SC Res. 1540, supra note 40, preambular para. 1.

46. Id., operative para. 1.

47. Id., operative para. 2.

48. Id., operative paras. 3.

49. But see, the Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 UNTS 161, arts. I-III. India, Israel, North Korea and Pakistan are not parties to this treaty.

50. SC Res. 1540, supra note 40, operative para. 4.

51. Id., operative para. 11.

52. Eric Rosand, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative, 28(3) FORDHAM INT’L L.J. 542 (2005).


53. Arangio-Ruiz, supra note 20; see also, Matthew Happold, Security Council Resolution 1373 and the Constitution of the United Nations, 16 LEIDEN J. INT’L L. 593 (2003).

54. See supra text at note 9.

55. Id., operative para. 11.


56. Id., 554; see also Arangio-Ruiz, supra note 20, 627-630 & 647.


57. UN Charter, art. 39. Andrea Bianchi argues that the Security Council has a “largely unfettered discretion” to determine whether there has been a threat to peace and security and whether its measures are necessary to enforce peace and security: Bianchi, supra note 35, 886.


58. See, Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16 [hereinafter Namibia], Dissenting Opinion of Judge Fitzmaurice, paras. 113-14.

59.
See id., Dissenting Opinion of Judge Fitzmaurice, para. 116; Dissenting Opinion of Judge Gros, para. 35.

60. Arangio-Ruiz, supra note 20, 702-712 criticising Security Council Resolution 748 (pertaining to Libya) on this basis (amongst others). See SC Res. 746, supra note 5, preambular para. 7.

61. Happold, supra note 5, 600.

62. Rosand, supra note 52, 570-572.

63. Namibia, supra note 58, para. 22.

64. Lavalle, supra 42, 422-23.

65. See, e.g. Bianchi, supra 35, 888-89; see also Szasz, supra note 41, 905.

66. Rosand, supra 52, 548 & 576.

67. Bianchi, supra note 35, 891.

68. Supra note 4.

69. UN CHARTER, art. 2(4); Friendly Relations Declaration, supra note 33,1st principle; Corfu Channel supra note 33, p. 22; Nicaragua, supra note 24, para 195.

70. 6,500 people die from AIDS every day: see, Ogni Giorno L’AIDS Uccide nel Mondo 6500 Persone, CITY (Genova edition), (Nov. 20, 2007). Over 40,000 people die in road accidents each year in the United States alone: see Drive and Stay Alive, Inc., Crash and Casualty Statistics for the USA (visited Nov. 12, 2007).

71. Arangio-Ruiz, supra note 20, 617.

72. Id., 681-688.

73. Neil MacCormick, Who’s Afraid of a European Constitution, (Exeter, UK, 2005), 38-46.

74. E.g. on Security Council voting as discussed above, at note 62; Rosand also gives the example of Security Council authorisation of peace-keeping missions not envisaged in the Charter: Rosand, supra note 52, 570-572.

75. Namibia, supra note 58, paras. 87-116 but see also dissenting opinion of Judge Gros, paras. 33-36; and dissenting opinion of Judge Fitzmaurice, paras. 108-116. See also, Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v UK; Libya v USA), Request for Provisional Measures (Sep. 13, 1993) 1993 ICJ REP. 114 paras. 39-41.

76. Arangio-Ruiz, supra note 20, 643-46.

77. Id., 708-711; Namibia, supra note 58,dissenting opinion of Judge Fitzmaurice, para. 113.

78. Indeed, Bianchi argues that this is exactly what the Court has done whilst at the same time protesting that it has no power of review: Bianchi, supra note 35, 912.

79. Customary international law is defined in North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands), Merits, 1969 ICJ REP. 25 para 77. (Feb. 20). “[T]wo conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough.”

80. Arangio-Ruiz, supra note 20, 693.

 

 

 



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