Security Council Resolution 1373 and the Constitution of the United Nations

Leiden Journal of International Law

Volumn 16, Issue 3, 2003, Pages 593-610

  Happold, Matthew ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

constitution; legislation; Security Council; United Nations

Indexed keywords

EID: 27244431969     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156503001304     Document Type: Article

References (86)

1. M. Koskenniemi, ‘The Police in the Temple:Order, Justice and theUN-ADialecticalView’, (1995) 6 EJIL 325, at 348.
2. See the statement issued by the President of the Security Council following itsmeeting ofHeads of State and Government, 31 Jan. 1992, UN Doc. S/23500, reproduced in (1992) 31 ILM 758.
3. GA Res. 54/109 (9 Dec. 1999), reproduced in (2000) 39 ILM 270. For commentary, see R. Lavalle, ‘The International Convention for the Suppression of the Financing of Terrorism’, (2000) 60 ZaöRV 491, and A. Aust, ‘Counter-Terrorism-A New Approach: The International Convention for the Suppression of the Financing of Terrorism’, (2001) 5Max Planck YB 285.
4. As of 4 April 2003, the Convention had 78 state parties. As of 28 Sept. 2001 (the date of the adoption of Resolution 1373), it had four (Botswana, Sri Lanka, the United Kingdom, and Uzbekistan).
5. Which, in practical terms, means all states. Switzerland having become the 190th member of the United Nations on 10 Sept. 2002 and East Timor the 191st member on 27 Sept. 2002, the only non-member state remaining is the Vatican City.
6. SC Res. 731 (21 Jan. 1992). The implication seemed to be that acts of terrorism could jeopardize international peace and security but need not necessarily do so. This seems sensible. It is difficult to see, for example, how an incendiary device in a furrier's shop is a threat to the peace.
7. See SC Res. 1214 (8 Dec. 1998), SC Res. 1267 (15 Oct. 1999), SC Res. 1333 (19 Dec. 2000) and SC Res. 1363 (30 July 2001).
8. Rather than, say, the constitution of a society or a community. See J. Crawford, ‘The Charter of the United Nations as a Constitution’, in H. Fox (ed.), The Changing Constitution of the United Nations (1997), 9-11.
9. To be more specific, the argument is that although the Charter does not contain any system of checks and balances, it does include a ‘weak’ form of the separation of powers. See N. D. White, ‘The United Nations System: Conference, Contract or Constitutional Order?’, (2000) 4 SJICL 281, at 293-4.
10. Koskenniemi, To be more specific, the argument is that although the Charter does not contain any system of checks and balances, it does include a ‘weak’ form of the separation of powers note 1, at 326.
11. K.Harper, ‘DoestheUnitedNationsSecurity CouncilHave theCompetencetoAct as aCourtandLegislature?’, (1994) 27 NYUJILP 103, at 126-9.
12. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Warfare, (1929) 44 LNTS 65.
13. Convention for the Suppression of All Unlawful Acts Against the Safety of Civil Aviation, (1971) 974 UNTS 178.
14. Harper, Convention for the Suppression of All Unlawful Acts Against the Safety of Civil Aviation note 17, at 126-7.
15. TheYugoslaviaTribunal only has jurisdiction over persons responsible for serious violations of international humanitarian law committed in the territory of the former Federal Socialist Republic of Yugoslavia from 1 Jan. 1991 onwards. See Arts. 1 and 8 of the Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to SC Res. 827 (25May 1993). The International Criminal Tribunal for Rwanda only has jurisdiction over persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states between 1 Jan. 1994 and 31 Dec. 1994. SeeArts. 1 and 7 of the Statute of the International Criminal Tribunal for Rwanda, annexed to SC Res. 955 (8 Nov. 1994).
16. Although see, for example, C. Warbrick and P. Rowe, ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadić Case’, (1996) 45 ICLQ 691.
17. UN Secretary-General's Report on aspects of establishing an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia, UN Doc. S/25704 (3May 1993), reproduced in (1993) 32 ILM 1159, at 1170.
18. Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9. (1998).
19. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. USA), ProvisionalMeasures, Order of 13 Sept. 1993, [1993] ICJ Rep. 114.
20. Libya v. UK; Libya v. USA, Art. 25, UN Charter note 27, at 126.
21. F. L. Kirgis Jr, ‘The Security Council's First Fifty Years’ (1995) 89 AJIL 506 at 520.8.
22. E. Yemin, Legislative Powers in the United Nations and Specialised Agencies (1969), 6, quoted by Kirgis, ‘The Security Council's First Fifty Years’ note 30, at 520.
23. Or, indeed, the obligation to co-operate with the Yugoslavia and Rwanda Tribunals in the prosecution of persons accused of committing crimes within each of the Tribunals’ jurisdiction. See Art. 29 ICTY Statute, Legislative Powers in the United Nations and Specialised Agencies note 22; and Art. 28, ICTR Statute, Legislative Powers in the United Nations and Specialised Agencies note 22.
24. Kirgis, the obligation to co-operate with the Yugoslavia and Rwanda Tribunals in the prosecution of persons accused of committing crimes within each of the Tribunals’ jurisdiction note 30, at 522.
25. Kirgis., at 538 (emphasis added).
26. O. Schachter, ‘TheQuasi-Judicial Rô le of the Security Council and the General Assembly’, (1964) 58 AJIL 960, at 964.
27. See, e.g., SC Res. 788 (19 Nov. 1992) on the situation in Liberia.
28. This implication is particularly strong given that any permanent member of the Security Council could ensure that Resolution 1373 remained in force by blocking the adoption of any future resolution aimed at modifying or repealing it. For the operation of the ‘reverse veto’, see D. D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’, (1993) 87 AJIL 552, at 582-4.
29. See alsoArt. 1(1) of theCharter,which provides that one of the Purposes of theUnitedNations is ‘Tomaintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace’. The exercise of the Security Council's collective security functions is, again, linked to the existence of particular situations or conduct. Art. 1(1) can be contrasted with Art. 1(2). See H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1951), at 282-3, and note 48 infra.
30. See Art. 6(a) of the Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution and Punishment of MajorWar Criminals of the European Axis, (1951) 82 UNTS 279 (defining ‘crimes against thepeace'); andGARes. 3314 (XXIX)ontheDefinition ofAggression (14 Dec. 1974).Resolution 3314, however, provides an explicitly non-exhaustive definition of aggression and states that the Security Councilmay determine that other acts constitute aggression under the provisions of the Charter.
31. See L.M. Goodrich, E.Hambro and A. P. Simons, Charter of the United Nations: Commentary and Documents (3rd edn, 1969), at 297-8.
32. Charter of the United Nations: Commentary and Documents., at 295.
33. J. F. Dulles, War or Peace (1950), at 194.
34. Although, of course, the concept of a ‘threat’ has a prospective element to it. The Security Council is not obliged to wait until something happens, it can intervene in a particular situation when it considers that somethingmight.
35. See Arts. 24, 34, 37, 39, and 42 of the Charter.
36. Although not to the extent that is sometimes argued. See R.Cryer, ‘The Security Council and Art. 39:AThreat to Coherence?’, (1996) 1 JACL 161.
37. See also J.-P. Cot and A. Pellet (eds.), La Charte des Nations Unies (2nd edn, 1991), at 447.
38. See alsoArt. 1(2) of theCharter.The purpose it speaks of is: ‘To develop friendly relationsamongnations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ It can be contrasted with Art. 1(1). See note 39 above.
39. Koskenniemi, The purpose it speaks of is: ‘To develop friendly relationsamongnations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ note 1, at 337-9.
40. Goodrich et al., Koskenniemi note 41, at 11.
41. This, of course, is not to say that General Assembly resolutions have no legal value. See B. Sloan, ‘General Assembly Resolutions Revisited’, (1987) 58 BYIL 93.
42. See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), [1949] ICJ Rep. 174, at 179.
43. UN Secretary-General's Report, Reparation for Injuries Suffered in the Service of the United Nations note 24, at 1168.
44. Prosecutor v. Tadić (Jurisdiction) (Appeals Chamber, ICTY), (1995) 105 ILR 453, at 466-7 (emphasis in original).
45. emphasis in original., at 471. See also Judge Sidhwa's Separate Opinion, emphasis in original., at 562: ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’.
46. ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’., at 472.
47. ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’., at 476.
48. ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’., at 473-6.
49. ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’., at 473.
50. The Secretary-General's Report had earlier stated that ‘in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Councilwould not be creating or purporting to “legislate” that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law.’ SeeUNSecretary-General's Report, ‘since the Tribunal to be established was of a limited nature, for a limited purpose, for a limited time, for a limited territory and for offenderswho had committed offences within the territory of former Yugoslavia, the decision was valid and fair, and squarely fell within Art. 41 of the Charter’ note 24, at 1169.
51. Report of theWorking Group on a draft statute for an international criminal court, Annex to Report of the International Law Commission on the work of its forty-fifth session (3May-23 July 1993), UN Doc. A/48/10; [1993] II (2) YBILC at 101-2.
52. See Observations of governments on the report of theWorking Group on a draft Statute for an international criminal court, UN Doc. A/CN.4/458 and Add. 1-8; [1994] II (1) YBILC.
53. Report of the International Law Commission on the work of its forty-sixth session (2May-22 July 1994), UN Doc. A/49/10; [1994] II (2) YBILC, at 22.
54. Report of the International Law Commission on the work of its forty-sixth session. See also A. Bos, ‘From the International Law Commission to the Rome Conference (1994-1998)’, in A. Cassese, P. Gaeta, and J. R.W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), at 40-4.
55. ILC, The Rome Statute of the International Criminal Court: A Commentary., at 28. See also Tadić, separate opinion of Judge Sidhwa, The Rome Statute of the International Criminal Court: A Commentary note 54, at 562.
56. J. Dugard, ‘Obstacles in theWay of an International Criminal Court’, [1997] CLJ 329, at 341-2.
57. ‘Obstacles in theWay of an International Criminal Court’., at 342.
58. LegalConsequences for States of the ContinuedPresence ofSouth Africa inNamibia (SouthWestAfrica) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), [1971] ICJ Rep. 16.
59. LegalConsequences for States of the ContinuedPresence ofSouth Africa inNamibia., at 52. See also R.Higgins, ‘TheAdvisory Opinion onNamibia: WhichUNResolutions are Binding under Art. 25 of the Charter?’, (1972) 21 ICLQ 270.
60. See, for example, Higgins, ‘TheAdvisory Opinion onNamibia: WhichUNResolutions are Binding under Art. 25 of the Charter?’ note 69, and N. D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd edn, 1997), at 61-3.
61. Namibia case, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security note 68, Dissenting Opinions of Judges Fitzmaurice, at 292-5, and Gros Espiell, at 340-1; Separate Opinions of Judges Petré n, at 136, and Dillard, at 165-6.
62. J. Abr. Frowein, ‘Article 39’, in B. Simma (ed.), The Charter of the United Nations: A Commentary (1994), at 613, n. 415.
63. J. Delbrü ck, ‘Article 25’, in Simma, ‘Article 39’., at 415.
64. Frowein, ‘Article 25’ note 72, at 613-4.
65. Namibia case, Frowein note 68, at 51-2.
66. A somewhat similar suggestion was made by Paul Szasz, who proposed that the Security Council prohibit nuclear testing on the ground that it constituted a threat to international peace and security. See P. C. Szasz, ‘New Ideas to Help Eliminate Nuclear Weapons: A New Approach to Achieving a CTB’, (1992) 15 (5) Disarmament Times, repr. in P. C. Szasz, Selected Essays on Understanding International Institutions and the Legislative Process (2001).
67. Cryer, Art. 11(1) of the Charter makes it clear that the General Assembly can only make recommendations with regard to the regulation of armaments note 46, at 184.
68. Kelsen, The Resolution instances Iraq's invasion and occupation of Kuwait; its threats to use weapons in violation of its obligations under the Geneva Protocol; its prior use of chemical weapons; its use of ballistic (Scud) missiles against Israel; and its attempts to obtainmaterials for a nuclearweapons programme contrary to its obligations under the Non-Proliferation Treaty note 39, at 106.
69. Treaty on the Non-Proliferation of NuclearWeapons, (1968) 729 UNTS 169.
70. SC Res. 825 (11May 1993). The use of the verb ‘can’ heavily qualifies the statement.
71. See N. Elaraby, ‘Some Reflections on Disarmament’, in C. Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (1995).
72. D.W. Bowett, ‘Judicial and Political Functions of the Security Council and the International Court of Justice’, in Fox, ‘Some Reflections on Disarmament’ note 12, at 79-80.
73. P. C. Szasz, ‘The Security Council Starts Legislating’, (2002) 96 AJIL 901.
74. ‘The Security Council Starts Legislating’., at 905.
75. ‘The Security Council Starts Legislating’., at 902.
76. ‘The Security Council Starts Legislating’., at 903.
77. Declaration onMeasures to Eliminate International Terrorism, GA Res. 49/60 (1994); and the Declaration to Supplement the 1994 Declaration onMeasures to Eliminate International Terrorism, GA Res. 51/210 (1996).
78. Such as the possession of nuclear weapons. See Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), [1996] ICJ Rep. 226, at 254-5.
79. See Certain Expenses of the United Nations (Advisory Opinion), [1962] ICJ Rep. 151, at 168.
80. Namibia case, Certain Expenses of the United Nations note 68, at 22.
81. For asummaryandanalysis of the debateoverwhether acts of the Security Council canbe judicially reviewed, see J. E. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1.
82. See R. Cryer and N. D. White, ‘The Security Council and the International Criminal Court: Who's Feeling Threatened?’, (2002) 8 Yearbook of International Peacekeeping 141.
83. Koskenniemi, Resolution 1422 is, however, less objectionable than Resolution 1373, in that its duration is not indefinite but limited to a period of 12months note 1, at 338 (emphasis in original).
84. Koskenniemi., at 339.
85. For discussion of the issue of the legitimacy of the Security Council's use of its authority, see Caron, Koskenniemi note 37.
86. See B. Bowring, ‘The Degradation of International Law?’, in J. Strawson (ed.), Law After Ground Zero (2002), at 16-17.