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The Legal Authority of the United Nations Security Council
AS SOUTH AFRICA held her first democratic elections, a constitutional lawyer, Etienne Mureinik, depicted South Africa’s shift from parliamentary supremacy to a constitutional democracy as a shift from a ‘culture of authority’ to a ‘culture of justification’. In the former, government is obeyed without question; in a culture of justification, ‘every exercise of power is expected to be justified’, and ‘the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command’.1
Mureinik saw the constitutional Bill of Rights as the ‘chief strut’ of a culture of justification,2 and because he focused on the Bill of Rights, the courts were regarded as the chief guardians of the culture of justification. However, Mureinik’s description of the role of the Bill of Rights makes clear that the court is considered merely a conduit for the people to whom the government owe account:
A Bill of Rights is a compendium of values empowering citizens affected by laws or decisions to demand justification. If it is ineffective in requiring governors to account to people governed by their decisions, the remainder of the Constitution is unlikely to be very successful.3
In his contribution to this volume, Dyzenhaus draws on the concept of a culture of justification to consider questions of institutional design, proposing a ‘due deference’ model for the relationship between the judiciary and government in cases involving national security. Their analysis grapples with the specific case-law and institutional design of the United Kingdom, but their proposed model can be applied in any domestic legal system because it is, in their analysis, an incident of the rule of law. Indeed, to the extent that current institutions and practice do not reflect a culture of justification in the United Kingdom, Dyzenhaus suggests that changes in the institutional design may be necessary.
This chapter looks to the institutional design of the international legal order. The first section examines whether the international order reflects a culture of justification, focusing in particular on the anti-terrorism programme of the United Nations Security Council (SC). It sets out the powers of the SC and the measures the SC has taken in its anti-terrorism programme, then considers a range of criticisms of Council practice. The second section of this chapter engages with a particular capacity that the SC has claimed in its anti-terrorism programme: namely, the capacity to make laws for the international community. Drawing on the concept of a culture of justification, the next section argues that the SC’s law-making capacity is limited. The fourth section examines how a culture of justification might be realised in the international arena, looking in particular at the SC’s role in the creation of customary law.
I. CRITIQUES OF SECURITY COUNCIL PRACTICE
This section reviews the recent practice of the Security Council and the critiques of this practice. Because the UN Charter provides very few express limitations on the SC’s power, criticism of its actions often draws on implied Charter limitations to the Council powers or on general principles of law. Sections I.2 to I.4 describe the three main bases of criticism of the SC, namely human rights law, (global) administrative law and fundamental principles of law.
1. Security Council Practice on Terrorism
The end of the Cold War ushered in a period of heightened activity for the Security Council. Freed from the frustration of the veto, it began to use its Chapter VII powers in a manner unlikely to have been anticipated by the framers of the Charter. It has intervened in states where there was no apparent threat to international peace and security,4 set up international criminal tribunals,5 promoted regime change in Iraq6 and determined national borders.7 But it is probably in its counter-terrorism measures that the Council’s influence has been most pervasive and enduring.
Concerted Security Council action against terrorism has resulted in more than 40 resolutions (SCRs) on terrorism and a huge bureaucracy that monitors and administers state compliance with the obligations stipulated under the resolutions. Through this anti-terrorism programme, the Council has created mechanisms to designate certain persons and organisations ‘terrorist’, and it mandates and co-ordinates a range of sanctions against these ‘terrorists’ and other targets on an ongoing basis. These two categories of measures are discussed below.8 Particularly significant for the purposes of this chapter are the general obligations imposed by the resolutions on states to implement a broad, international antiterrorism programme. The Council’s committees monitor and support the implementation of the anti-terrorism programme at the domestic level.
SCR 1373 (2001) contains the most significant general anti-terrorism measures. These include an obligation not to provide any kind of support to terrorist groups and to prevent terrorist acts through early warning systems and mutual assistance in investigation and prosecution.9 States also have to establish and prosecute a range of terrorist offences within their domestic criminal justice systems and must suppress recruitment to terrorist groups.10 In addition, SCR 1373 attempts to fasttrack the crystallisation of international norms against terrorism. It calls on states to sign all international conventions and protocols relating to terrorism,11 including, specifically, the International Convention for the Suppression of the Financing of Terrorism (1999).12
There are currently four Security Council committees on terrorism: the ‘1267 Committee’,13 the Counter-terrorism Committee (CTC),14 the ‘1540 Committee’15 and the ‘1566 Working Group’.16 The ‘1267 Committee’, initially established to monitor the compliance of states with a range of sanctions imposed against Al Qaeda and the Taliban, has had its mandate extended by later resolutions.17 It administers one of the most controversial of the SC’s anti-terrorism mechanisms: the so-called ‘listing’ system.
Under this mechanism, the committee designates a person or organisation as linked to Al Qaeda once one or more states have submitted the name of this person or organisation, the name has been circulated to other states, and no objection has been received within 48 hours. The delisting procedure is far more onerous, requiring negotiation between the government that wants to remove the name and the original, ‘designating’ government.18 Once a person or organisation has been listed, a range of sanctions follow, to which states are obliged, under Chapter VII of the Charter, to give effect. States therefore have to freeze the financial assets of individuals and entities appearing on the list, deny them entry into and transit through their territories and prevent them from selling and supplying military equipment, whether such sales and supplies are carried out from their territories or even by their nationals outside their territories.19
The Counter-terrorism Committee was set up by SCR 1373 of 2001 to monitor compliance with a range of general obligations set out in the resolutions. Since September 2005, it has also monitored compliance with SCR 1624, which ‘calls on’ states to criminalise the incitement to terrorism.20 Apart from requiring, evaluating and publicising reports from member states of the UN on their compliance with the SCRs, the Counter-terrorism Committee presents itself as an advisor to states, facilitating the drafting and passing of legislation that is required by the resolutions.21 Among other measures, it provides a list of best practices,22 which includes models for domestic anti-terrorism legislation.23
The ‘1540 Committee’ monitors the implementation of a resolution against weapons of mass destruction. This resolution prohibits states from providing any form of support to non-state actors who attempt to develop weapons of mass destruction and implements a range of measures, including legislative measures, to prevent non-state actors from acquiring the materials for such weapons or trading in the materials or technology.24 The committee is mandated to report regularly to the SC, as well as to recommend to the Council measures to improve the execution of the resolution.25 Like the Counter-terrorism Committee, it has a hand in the development of domestic legal systems, through the co-ordination of a system that assists states in setting up legal and regulatory infrastructures that will enable them to carry out their obligations under the resolutions and relevant treaty law.26
Finally, the ‘1566 Working Group’ is meant to deal with terrorist groups not falling within the purview of the 1267 Committee, and is therefore tasked with examining ‘practical measures to be imposed upon individuals, groups or entities involved in or associated with terrorist activities, other than those designated by the Al-Qaeda/Taliban Sanctions Committee’ and ‘the possibility of establishing an international fund to compensate victims of terrorist acts and their families’.27
2. Human Rights Law
Those who argue that the SC is bound by the international human rights regime point out that the SC, like the UN as a body, is bound by the Charter, which includes the protection of human rights as one of its fundamental principles.28 The SC’s anti-terrorism programme threatens a range of internationally recognised human rights, including the right to property29 and the right to due process.30 Using international and comparative human rights law, the literature in this area considers the extent to which these rights may legally be limited or derogated from in the cause of security.31
Because Article 103 of the United Nations Charter gives SC decisions primacy over competing treaty obligations, it has been suggested that the SC is not bound by general norms of customary international law, and some commentators have suggested that it is not even bound by norms of jus cogens.32 However, most authors agree that the SC’s powers are limited by norms of jus cogens,33 a view recently confirmed by the EC Court of First Instance in the case of Kadi v EU.34 In this case, the Court accepted jus cogens as the ‘one limit to the principle that resolutions of the SC have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens’.35
The primacy of jus cogens norms can be argued at a number of levels.36 A literal interpretation of the UN Charter would maintain the primacy of not only jus cogens but all customary international law, because Article 103 of the Charter subjugates conflicting treaty obligations only. At a deeper level, some commentators seem to find it self-evident that jus cogens limits the SC’s powers because of the nature of the values that this category of norms protects. Thus, Judge Lauterpacht stated in the Case concerning the Application of the Genocide Convention:
[T]he prohibition of genocide … has generally been accepted as having the status not of an ordinary rule of international law but of jus cogens … The relief which Article 103 of the Charter may give 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 jus 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.37
3. Administrative Law
The procedures adopted by the SC in reaching its decisions raise concern for several reasons, one of which is that individuals who are affected by the Council’s decisions are powerless to influence them. For example, Gutherie describes the listing procedure of the 1267 Committee in the following terms:
The requirements for adding names are … vague and relatively standardless …. Furthermore, the de-listing procedures are inadequate. There is no opportunity for sanctioned individuals to directly contest their inclusion on the list. They must first get the support of the state of their nationality or residence. If cooperation is not forthcoming from those countries, then the Committee has provided no avenue for an individual to come before the Committee directly. In addition, consensus decisions mean that any one state can prevent de-listing, and the state is not required to provide any reasoning or justification.38
If the SC is an administrative body, and its action an administrative action, then an argument can be made that it is constrained by administrative law. The Global Administrative Law Project suggests that the Council fulfils the function of ‘international administration’ and identifies a range of administrative law principles that constrain international and supranational bodies, including the SC.39 This critique of SC action is linked to the human rights-based approach but can result in more stringent standards of review. It examines both the procedural and substantive elements of SC decisions. Its procedural principles include procedural participation (the right of affected individuals to have their views and information considered before a decision is taken), reasoned decisions and review.40 Criteria for review of the substance of a SC decision include proportionality, avoidance of unnecessarily restrictive means and legitimate expectations.41
Benedict Kingsbury, Nico Krisch and Richard Stewart identify a range of sources for these criteria and for the emerging discipline of global administrative law.42 Although these sources include the usual treaties, custom and general principles, the authors argue that the normative practice in the field goes beyond the principles contained in these sources, and that a better source for the existing normative practice could be seen as a revived ius gentium, which ‘could encompass norms emerging among a wide variety of actors and in very diverse settings, rather than any kind of ius inter gentes built upon agreements among states’.43
4. Critiques based on Fundamental Principles of Law
The third basis of criticism of SC practice is related to and informs the other two bases, but reaches more deeply into law as a normative system. This argues that particular decisions or actions of the SC are inconsistent with fundamental principles of law and must therefore be null and void.
Dyzenhaus criticises the listing mechanism of the 1267 Committee on this basis. He argues that law entails the rule of law, which is itself informed by the principle of legality. Upholding such principles maintains the integrity of international law and its claim to be law at all.44 Dyzenhaus emphasises that his argument moves beyond institutional design and therefore applies whether the legal system in question maintains a formal separation of powers. In his analysis, the rule of law is not about the maintenance of a formal separation of powers but about the service of all the institutions of legal order, whether international or domestic, to its underlying values:
[V]iolations of the rule of law are to be determined by looking to the substantive values which the separation of powers is supposed to protect rather than to whether the particular arrangement of powers in a legal order has been disturbed.45
Because the underlying basis of the rule of law is the doctrine of legality—to which the legislature, judiciary and executive are equally subject—Dyzenhaus criticises the SC listing procedure on the basis that the principle of legality has been contravened. Discussing the analogy between listing and legislative bills of attainder, he points out:
The repugnance of such statutes to the common-law tradition is born of the idea that while a legislature can enact into law its understandings of subversion and other offences, the rule of law requires both that the offence be framed generally and that anyone accused of such an offence be tried in a court of law. In other words, the argument is a deeply normative one, which is not as much about the separation of powers as it is about the reasons for the separation of powers. The constitutional role of the judges is to guard the civil rights of the individual, here both the right to a fair trial and the right to be treated as equal before the law.46
Dyzenhaus claims that his argument is independent of the institutional design of any particular governmental system, but it does maintain a special place for the judiciary, because this is the institution through which other organs of government are kept within the rule of law. Under this argument, the substance of the law determines the judges’ duties as upholders of the rule of law.
In 1995, the International Criminal Tribunal for the Former Yugoslavia (ICTY) employed arguments based on the rule of law to find that it had certain judicial capacities that no other governmental body, including the SC, could remove. In the Tadiç decision, the ICTY emphasised that it had an inherent power to determine its own jurisdiction, noting in an obiter dictum that that the SC might not be able to limit this power should such a limitation threaten the independence of the Tribunal. It claimed as part of its incidental jurisdiction the power to scrutinise the legality of its own creation,49 thereby refusing to place its creator—the Security Council—above the law. In holding the SC to the international human rights law requirement that a court must be ‘established by law’, the Tribunal interpreted this phrase to mean ‘in accordance with the rule of law’.50 To flesh out the implications of the rule of law for its own procedure, the Tribunal relied on international human rights law and found that the SC was bound to respect certain trial rights.51
5. The Focus of the Criticism
All three critiques set out above have as their target a particular type of decision of the SC—one that is directed at a particular person, state or entity and has a direct effect on individual rights. In this way, the criticism is generally levelled at SC actions that we would in a municipal system classify as administrative.
This is demonstrated most clearly by the Global Administrative Law Project, which describes the SC as an international administrative body and defines administrative action as ‘all rule-making and adjudications or other decisions of particular matters that are neither treaty-making nor simple dispute settlement between disputing parties’.52 Kingsbury, Krisch and Stewart see this definition as an elaboration of the more intuitive sense of administrative action as state acts that are neither legislative nor judicial.53 By adopting such a definition in the designation of the SC as an international administrative body, they are clearly steering the discipline away from the legislative function of the SC. Furthermore, the range of principles proposed by the Global Administrative Law Project to restrain global administrative action focuses on the content of decisions and the process by which they are made, not on the powers of the decision maker.
Human rights-based criticisms and those based on fundamental principles of law have a wider application than those based on administrative law, and they can and do critique legislation as well as administrative acts. Human rights critics thus take issue with the general mandates issued by the SC as well as their legislative enactment in national systems, on the basis that they are too vague and over-inclusive and that they exclude necessary human rights guarantees.54 However, they do not take issue with the SC for legislating per se. Dyzenhaus’s rejection of legislative bills of attainder, cited above, focuses expressly on their content, and not on the organ that issues them. Indeed, it would seem to be implicit in Dyzenhaus’s reasoning that the listing mechanism could be brought into compliance with the rule of law if the SC first produced a resolution that framed the offence of terrorism in general terms. Under the definition of legislation suggested below, such a resolution would constitute legislative action by the SC.
II. THE LEGISLATIVE CAPACITY OF THE SECURITY COUNCIL
1. The Legislative Practice of the Security Council
For some commentators,55 legislation is one of the new powers that the SC has arrogated to itself in recent years, particularly in response to the ‘war on terrorism’. The decisive step seems to have been taken with Resolution 1373, in which the SC used its Chapter VII powers to order all states to take particular steps against international terrorism and to refrain from others.
Szasz explains that SCR 1373 constituted a break with past practice because the SC had previously used its Chapter VII powers only with reference to particular conflicts or situations, such as when it imposed sanctions against states56 or non-state entities57 in order to force compliance with international law. This use of the mandatory power was not legislative because the resolutions were limited to specific subject matters and specific time periods.58 When the SC did decide on measures with respect to an open-ended problem, such as the position of children and civilians in armed conflict, these measures were not phrased in compulsory terms but as recommendations. They too did not produce the sense of binding legislation.59
What is different about SCR 1373 is that it is a mandatory order with no time limit, and it is not confined to a particular conflict but rather aimed at an undefined threat: ‘global terrorism’. For Szasz, this resolution can therefore be said to ‘establish new binding rules of international law—rather than mere commands relating to a particular situation’.60
Szasz sees the defining feature of this new activity by the SC as the general nature of the obligations it imposes on states. Talmon adds two main elements: that the legislation applies to an indefinite number of cases and is not limited in time,61 which also implies that the legislation is forward-looking. Together, these aspects suggest an understanding of SC legislation that is best described in the following terms:
‘[L]egislative powers’ [are] the powers of the Security Council to enact general, abstract norms that are directly binding on all Member States of the UN. The ensuing norms do not enforce the peace in a specific political crisis, but regulate rights and obligations of States on a wider issue with long-term or indefinite effect.62
Only a small number of the SC practices described above can be classified as legislation. The controversial listing procedure affects named individuals only and imposes only specific obligations on states. Similarly, any other procedure that results in specific recommendations or measures against named persons or organisations—such as the recommendations likely to proceed from the 1566 Working Group—would count as administrative action and not as legislation. By contrast, the SC legislates in two main ways. First, and most importantly, it issues resolutions imposing general obligations, such as those contained in SCR 1373. But there is a second source of legislation which should not be overlooked: the SC imposes an obligation on states to co-operate with its committees. To the extent that the committees oversee and influence the adaptation of states’ domestic legal systems to comply with SC measures—a role that the Counter-terrorism Committee in particular has assumed with fervour—the SC is creating new legislation at the domestic level.63
2. Responses to the Council’s Legislative Practice
Critics have condemned at some length what we can call the executive and administrative acts of the SC. By contrast, its legislative acts have often been met with acquiescence64 or even approval.65 Talmon suggests (and discounts) four main objections to the legislative role of the SC: that a body as patently undemocratic and unrepresentative as the SC is not suited to lawmaking; that SC resolutions are not recognised as a source of international law; that Council practice violates the basic structure of the international legal order in that it is not based on the consent of states; and that a body that carries out the general role of a ‘policeman’ is ill suited to adopt the role of ‘a legislature or jury’.66 Only this last objection argues directly that the constitutional role of the SC is to be an executive rather than a legislative body. All of the objections, however, raise questions about the legitimacy of the SC and echo Alvarez’s view that the SC was not intended to act as a ‘global legislator’.67
An analysis of the arguments both for and against the SC’s legislative function reveals their circular nature. This is particularly the case when commentators attempt to rely on as open-ended a document as the UN Charter, because their interpretations of the Charter provisions are deeply influenced by the specific case they are trying to prove. The circular reasoning results from an unfortunate lacuna in the scholarship on governance. Theories of representation that support the internal constitutional arrangement of states do not transfer easily to the international arena, with the result that we have no way of ascertaining when the assumption of international governance by any one body is legitimate.68 Without a tool to determine the legitimacy of the SC’s claim of acting for the global community, we are left to fall back on some unspoken assumptions when we interpret its powers.69
This chapter proceeds on the assumption that we are dealing with a situation of global governance when the SC exercises its Chapter VII powers. The opposing assumption—what may be called a ‘private law’ approach—treats the international legal order as a community of equals and views the relationship between its members through a contractual rather than constitutional lens. This approach is perhaps most clearly demonstrated by the arguments with which Talmon dismisses the objections to the SC’s legislative function.
Talmon supports the idea that the Council works within a legal framework and aligns himself to the view of the ICTY that the Council is not unbound by law.70 However, the legal framework that he chooses for the Council appears to be restricted to the UN Charter. Thus he meets the objection that the SC is a policeman, not a legislature, with the remark that the SC’s powers should be determined not by reference to that body’s general role but ‘on the basis of the provisions of the UN Charter’.71
Despite some references to past UN practice,72 Talmon also tends to treat the Charter as a complete document, the meaning of which does not need to be ascertained with reference to factors outside of the document. Thus, as the UN Charter does not in its wording distinguish between legislative and executive functions, Talmon is able to work from the assumption that there is no difference between these two functions. Conflating these two functions at the outset in itself answers many of the criticisms that Talmon identifies against SC legislation. Thus, for example, he disposes of the objection that the SC is unrepresentative by pointing out that the Charter allows this unrepresentative body some powers. He ignores the executive nature of these already accepted powers and claims that there is no difference between them and the power of legislation:
It can hardly be maintained that authorizing the use of force requires less democratic legitimacy than imposing an obligation to prevent and suppress the financing of terrorist acts.73
Similarly, another argument merges quasi-judicial and legislative acts:
[I]f the Council can require states to freeze the funds of every single person who commits a specific terrorist act, it must—a fortiori—also be able to order states to freeze the funds of all persons who commit such acts. In this sense, the imposition of general obligations is nothing but the generalization of individual obligations.74
Talmon’s reliance on the International Court of Justice (ICJ) ‘application’ of resolutions of the SC—which, he argues, renders the SC resolutions a source of law75—also ignores the difference between legislative and executive acts. In a municipal system, a court can quite easily recognise the validity of an executive act—and give effect to it—without elevating that executive act into a legal principle.76 I would argue that this is what the Court has done in Talmon’s example of the ‘application’ of an SC resolution by the ICJ.77 The resolution in this example is the one by which the SC directed Libya to surrender the Lockerbie bombing suspects to the United Kingdom.78 It was directed at a specific situation and specific addressee and, as such, does not meet Talmon’s own criteria for ‘legislation’ by the SC. By giving effect to this resolution, the ICJ recognised its validity, but it did not turn the Council’s decision into law.
Ironically, a different starting point—namely, an understanding of the SC as an executive and not a legislative organ—can make some of Talmon’s arguments easier to accept. For example, one of his assertions relies on the delegated power of the SC, which Talmon uses to discount two main objections to the SC’s legislative function. To the objection that the SC overrides the consent of states, he suggests that under Article 25 of the UN Charter, states have given what amounts to almost blanket consent to abide by any decision that the SC finds necessary to make, and that the ‘consent’ element of the international legal order is thereby being maintained.79 He also uses the delegated power in Article 25 to link SC action to a treaty—the UN Charter—thereby bringing SC resolutions under the auspices of a source of law recognised by the ICJ statute.80
This argument is not tenable if the UN Charter is seen simply as a contract between sovereign states. States do not sign a blank cheque on joining the UN. Certainly, there is no corresponding concept of consent in comparative private law. Relationships that arise from agency, contracts, negotiorum gestio