Assessing the effectiveness of the UN Security Council's anti-terrorism measures: The quest for legitimacy and cohesion

European Journal of International Law

Volumn 17, Issue 5, 2006, Pages 881-919

  Bianchi, Andrea ^a,b  

^a GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES   (Switzerland)

^b UNIVERSITÀ CATTOLICA DEL SACRO CUORE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33846605435     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl032     Document Type: Article

References (281)

1. On the effects of the Iraqi sanctions regime see the Symposium on: 'The Impact on International Law of a Decade of Sanctions against Iraq', with contributions by different authors, published at 13 EJIL (2002) 1.
2. See SC Res. 1127 (1997)
3. and SC Res. 1173 and 1176 (1998).
4. As is well known, smart sanctions have been the object of study in the context of a joint diplomatic and scholarly effort to assess their efficacy and design their implementation. See: T. Biersteker. Targeted Financial Sanctions: A Manual for the Design and Implementation. Contributions from the Interlaken Process (2001)
5. M. Brzoska, Design and Implementation of Arms Embargoes and Travel and Aviation Related Sanctions: Results of the Bonn-Berlin Process (2001)
6. P. Wallensteen, C. Staibano, and M. Eriksson, Making Targeted Sanctions Effective Guidelines for the Implementation of UN Policy Options (2003).
7. Report of the Secretary-General on the Work of the Organization, A/55/1, at 13, para. 100.
8. Relevant measures included the freezing of assets, a ban on travel and a weapons embargo aimed at targeted individuals and groups.
9. SC Res. 1267 (1999)
10. SC Res. 1333 (2000).
11. SC Res. 1390 (2002).
12. See Cameron, 'UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights', 72 Nordic J Int'l L (2003) 159, at 164.
13. SC Res. 1373 (2001).
14. It may be worth recalling the obligations imposed by the SC on UN Member States by way of Res. 1373: 'The Security Council... Acting under Chapter VII of the Charter of the United Nations, 1. Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons: And of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons; 2. Decides also that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts; (f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings; (g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents'.
15. For a full account of the subsequent SC resolutions which bear on the functioning of the sanctions regime originally established under Res. 1267, 1333, 1390, and 1373. see infra para. 2. D.
16. In fact, the resolution seems to fit the definition given by Yemin: 'legislative acts have three essential characteristics: They are unilateral in form, they create or modify some element of a legal norm, and the legal norm in question is general in nature, that is, directed to indeterminate addressees and capable of repeated application in time': E. Yemin. Legislative Powers in the United Nations and Specialized Agencies (1969), at 6.
17. Among other things, Res. 1540 (2004) imposes on States an obligation to refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, transport, transfer, or use nuclear, chemical, or biological weapons and their means of delivery. States are under an obligation to adopt and enforce effective laws to implement the above obligation and to establish domestic controls to prevent the proliferation of weapons of mass destruction. The resolution established a committee to monitor its implementation.
18. Apparently, the CTC also does not possess formal objective criteria for evaluating implementation by Member States. In the literature reference is made to an anonymous CTC legal expert who in Oct. 2003 developed in an unpublished paper some criteria to measure State compliance and categorize the level of States' performance. These criteria include: (i) The existence of legislative authority for freezing terrorist finances and co-operating with international law enforcement efforts; (ii) the administrative capacity to enforce various counter-terrorism mandates; (iii) the presence of a policy and regulatory framework for prioritizing counter-terrorism across a range of government institutions and programmes; (iv) participation in international counterterrorism conventions and institutions: See D. Cortright, G.A. Lopez, A. Miller, and L. Gerber, An Action Agenda for Enhancing the United Nations Program on Counter-Terrorism (2004) (published in the framework of the Counter-terrorism research project, a joint research programme of the Fourth Freedom Forum and the Joan B. Croc Institute for International Peace Studies at the University of Notre Dame), at 7-8.
19. 'A More Secure World: Our Shared Responsibility'. Report of the High-level Panel on Threats, Challenges and Change, New York, 2004 (UN Doc. A/59/565), para. 204: 'the effectiveness of the global collective security system, as with any other legal order, depends ultimately not only on the legality of decisions but also on the common perception of their legitimacy - their being made on solid evidentiary grounds, and for the right reasons, morally as well as legally.'
20. See Hurd, 'Legitimacy, Power, and the Symbolic Life of the Security Council', 8 Global Governance (2002) 35,
21. quoting B. Russett and J.S. Sutterlin, 'The U.N. in a New World Order', 70 Foreign Affairs (1991) 69
22. and the seminal work of Claude Jr., 'Collective Legitimation as a Political Function of the United Nations', 20 Int'l Org (1966) 367.
23. See the Study commissioned by the UN Office of Legal Affairs on 'Targeted Sanctions and Due Process'. by Prof. Bardo Fassbender of Humboldt University (20 Mar. 2006).
24. In the context of the Council of Europe see 'The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions', Report prepared by Professor Iain Cameron (6 Feb. 2006).
25. Wood, 'Comment on Erika de Wet's Contribution "The Security Council as a Law Maker: The Adoption of (Quasi)-Judicial Decisions"', in R. Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (2005), at 227, 228.
26. See, among others, D. Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (2001)
27. Lamb, 'Legal Limits to United Nations Security Council Powers', in G. Goodwin-Gill and S. Talmon (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie (1999), at 361
28. Nolte, 'The Limits of the Security Council's Powers and Its Functions in the International Legal System: Some Reflections', in M. Byers (ed.), The Role of Law in International Politics (2000), at 315.
29. H. Kelsen, The Law of the United Nations. A Critical Analysis of Its Fundamental Problems (2001), at 735.
30. Ibid, at 372, 724-731.
31. Arangio-Ruiz, 'On the Security Council's "Law-Making"', 3 Rivista di diritto internazionale (2000) 609, at 710.
32. See, among others, Statement dated 29 Dec. 1997 by the Inter-Agency Standing Committee to the Security Council on the Humanitarian Impact of Sanctions, S/1998/147; Note by the President of the Security Council: Work of the Security Council, S/1999/92; Sub-Commission on the Promotion and Protection of Human Rights: The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, Working Paper Prepared by Mr. Marc Bossuyt, E/CN.4/Sub.2/2000/33; Committee on Economic, Social and Cultural Rights: The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, General Comment No. 8 (1997), E/C.12/1997/8, CESCR. For a general assessment, see T. Weiss et al., Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions (1997).
33. De Wet, 'The Security Council as a Law Maker: The Adoption of (Quasi)-Judicial Decisions', in Wolfrum and Röben (eds.), supra note 18, at 183, 193.
34. See in this respect Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt [1980] ICJ Rep 73, at 89-90.
35. See Reinisch, 'Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions', 95 AJIL (2001) 851, at 858-859.
36. 'Là... s'arrête le balancier : Ie Conseil de Sécurité a l'obligation absolue de respecter le jus cogens...': Pellet. 'Rapport introductif. Peut-on et doit-on contrôler les actions du Conseil de Sécurité?', SFDI. Colloque de Rennes, Le chapitre VII de la Charte des Nations Unies (1995). at 221, 237.
37. '... [I]t can hardly be maintained that States can avoid compliance with peremptory norms by creating an organization': Report ofthe International Law Commission on the Work of its Thirty-Fourth Session. A/ 37/10, II Yearbook of the International Law Commission (1982). Part Two, at 56.
38. Case T-306/01. Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities. Judgment ofthe CFI, 21 Sept. 2005, at para. 281; Case T-315/ 01.
39. Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities. Judgment of the CFI, 21 Sept. 2005, at para. 230.
40. Arangio-Ruiz, supra note 22, at 693.
41. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970).
42. Dissenting Opinion of Judge Sir Gerald Fitzmaurice. [1971] ICJ Rep 291, at 294, para. 115.
43. Koskenniemi, 'The Police in the Temple. Order, Justice and the UN: A Dialectical View'. 6 EJIL (1995) 325, at 328.
44. 'A body of detailed rules is not to be looked for in customary international law...': Case concerning delimitation of the maritime boundary in the Gulf of Maine area (Canada/United States of America). [1984] ICJ Rep 246, at 299, para. 111.
45. Charney. 'Universal International Law'. 87 AJIL (1993) 529, at 551.
46. Bianchi, 'Enforcing International Law Norms against Terrorism: Achievements and Prospects', in A. Bianchi (ed.), Enforcing International Law Norms against Terrorism (2004), at 491, 516-517.
47. As M. Koskenniemi pointed out, 'it is not possible to conceive the Security Council as a legitimate global law-maker': Koskenniemi, 'International Legislation Today: Limits and Possibilities', 23 Wisconsin Int'l LJ (2005) 61, at 74.
48. See Koskenniemi, supra note 32, at 3. According to Koskenniemi, these elements 'hardly justify enthusiasm about its [the Security Council's] increased role in world affairs'.
49. Somalia (SC Res. 733 (1992) and Haiti (SC Res. 841 (1993) are the outstanding examples.
50. See SC Res. 748 (1992) adopting sanctions against Libya for its non-compliance with SC Res. 731 (1992). Res. 748 was adopted by 10 votes to none, with 5 abstentions (Cape Verde, China, India, Morocco and Zimbabwe).
51. See the dissenting opinion of Judge Gros in the advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). supra note 31: 'that is another attempt to modify the principles of the Charter as regards the powers vested by States in the organs they instituted.
52. To assert that a matter may have a distant repercussion on the maintenance of peace is not enough to turn the Security Council into a world government': Ibid., at 340, para. 34.
53. See also the dissenting opinion of Judge Sir Gerald Fitzmaurice in the same case: 'limitations on the powers of the Security Council are necessary because of the all too great ease with which any acutely controversial international situation can be represented as involving a latent threat to peace and security, even where it is really too remote genuinely to constitute one. Without these limitations, the functions of the Security Council could be used for purposes never originally intended': Ibid.. at 294, para. 116.
54. See SC Res. 1438 (2002) concerning the bomb attacks in Bali on 12 Oct. 2002:
55. SC Res. 1440 (2002) concerning the taking of hostages in Moscow on 23 Oct. 2002:
56. SC Res. 1530 (2004) concerning the bomb attacks in Madrid on 11 Mar. 2004
57. SC Res. 1611 (2005) concerning the terrorist attacks in London on 7 July 2005.
58. See SC Res. 731 (1992), SC Res. 1054 (1996). SC Res. 1267 (1999).
59. See SC Res. 733 (1992), SC Res. 794 (1992). SC Res. 788 (1992), SC Res. 1132 (1997).
60. See Report of the Ad Hoc Committee established by General Assembly Res. 51/210 of 17 Dec. 1996, A/60/37, at 23-28.
61. In this resolution the SC '[r]ecalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature': SC Res. 1566 (2004), para. 3.
62. See SC Res. 1448 (2002) whereby the sanctions against UNITA were terminated.
63. The language is borrowed from derogation clauses in human rights treaties: See Art, 4 ICCPR. Art. 15 ECHR, and Art. 27 IACHR.
64. See Benvenisti. 'The US and the Use of Force: Double-edged Hegemony and the Management of Global Emergencies'. 15 EJIL (2004) 677, at 697-699.
65. See on this theory Arangio-Ruiz, supra note 22, at 655-682.
66. For a discussion of the different theories (such as constitutionalism, implied powers, modification by way of custom, and so on) that have been used by legal scholars to justify the expansion of the SC's powers see ibid., at 682-692.
67. See infra at sect, 5.A.
68. Arangio-Ruiz, supra note 22, at 700.
69. The Counter-Terrorism Committee has received more than 600 reports from Member States since its establishment: See Report of the Counter-Terrorism Committee to the Security Council for its Consideration as Part of Its Comprehensive Review of the Counter-Terrorism Committee Executive Directorate, S/2005/800, at para. 30. More than 140 reports have been submitted under SC Res. 1267 (1999).
70. See, among others, the Report of Bolivia on the Implementation of Security Council Resolution 1455 (2003), S/AC.37/2005/(1455)/3, at 2
71. Report of Colombia on the Implementation of Resolutions 1267 (1999), 1333 (2000), and 1390 (2002), S/AC.37/2003/(1455)/39, at 4
72. Report Submitted by the Republic of Costa Rica Pursuant to Security Council Resolution 1455 (2003), S/AC.37/2004/(1455)/33, at 4
73. Report of the Czech Republic in Fulfilment of United Nations Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/59, at 6.
74. See the Costa Rica Report, supra note 54, at 4
75. The Socialist Republic of Vietnam Report Submitted to the Committee Established under Resolution 1267 (1999) of the United Nations Security Council Pursuant to Paragraphs 6 and 12 of Resolution 1455 (2003) of the Security Council, S/AC.37/2003/(1455)/77, at para. 9.3.
76. See, for instance, Art. 260 quinquies of the Swiss criminal code, which creates a 'political exception' to the criminalization of the financing of terrorism: '[a]n act shall not constitute financing of terrorism if it is intended to establish or re-establish a democratic regime or the rule of law or to enable the exercise or safeguarding of human rights'. See the CTC's objections and the Swiss government's response thereto in UN Doc. S/2005/161.
77. Second Report of Belgium on the Implementation of Security Council Resolution 1373 (2001), S/2003/526, at 6.
78. Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001), S/2004/70, at 5.
79. The most illustrative examples are the Republic of Angola (Report of the Republic of Angola Pursuant to Paragraph 6 of Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/3, at 4) and the Republic of Belarus (Report of the Republic of Belarus on the Implementation of Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/25, at 2).
80. and the Republic of Belarus (Report of the Republic of Belarus on the Implementation of Security Council Resolution 1455 (2003) S/AC.37/2003/ (1455)/25, at 2).
81. The latter category includes such states as Argentina, Brazil, Cyprus, Liechtenstein, and Russia,
82. Such states include Australia, partly Canada (dual system), Finland, Iceland, New Zealand, Slovakia, Portugal Switzerland, and Singapore.
83. Report of the Republic of Guinea Submitted Pursuant to Paragraph 6 of Resolution 1455 (2003), S/AC.37/2003/(1455)/78, at 2.
84. The Vietnam Report, supra note 55, at para 2.1
85. Supplementary Report Submitted by Algeria to the Counter-Terrorism Committee Pursuant to Security Council Resolution 1373 (2001), S/2003/ 723, at 4.
86. Report of Angola on Legislation and Measures for Preventing and Combating Terrorism. Prepared Pursuant to Security Council Resolution 1373 (2001), S/2003/402, at 11.
87. See SC Res. 1373, at para. 2(c) and (e).
88. See the concerns expressed by the CTC: Report by the Chair of the Counter-Terrorism Committee, supra note 58, at 6.
89. Ibid., at 6-7.
90. See the Report of Switzerland Submitted Pursuant to Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/44, at 7 (34 million SFr)
91. Report of Canada Pursuant to Security Council Resolution 1455 (2003), S/ AC.37/2003/(1455)/20, at 12 (CAN$340, 000)
92. Report of Germany Required Pursuant to Paragraphs 6 and 12 of Resolution 1455 (2003) S/AC.37/2003/(1455)/10, at 10 (€4.935.75)
93. Report of the United Kingdom Pursuant to Paragraphs 6 and 12 of Resolution 1455 (2003), S/AC.37/2003/(1455)/19, para. 12. (£334,428.14)
94. Report of the Government of the United States Called for under Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/26, at 9 (US$ 36.3 million).
95. Seethe Report of the Argentine Republic on the Implementation of Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/29, at para. 9
96. Report on the Steps Taken by the Government of the Republic of Guatemala to Implement Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/ 23, at 4
97. Report of Chile in Implementation of Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/38, at 4 and 8.
98. 'To require local court approval prior to freezing the assets of parties listed by the UN would give judges in all 191 Member States a potential veto power over the mandatory decisions of the Security Council. acting under Chap. VII of the Charter. It would also mean that local judges could secondguess the decision of the Committee based on their own reviews of the evidence, which may or may not be the same evidence as that presented to the Committee (because the evidence given to the Committee is generally confidential). Furthermore, this would result in local courts judging United Nations listings based on criminal standards of evidence, despite the fact that the List is not a criminal list. This is untenable': Third Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1526 (2004) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2005/ 572, 9 Sept. 2005, at para. 48.
99. See, e.g., Thailand's Implementation Report Pursuant to Paragraphs 6 and 12 of Resolution 1455 (2003), S/AC.37/2003/(1455)/50, at 3.
100. See, among others, the Report of the Government of Jamaica Pursuant to Paragraphs 6 and 12 of Security Council Resolution 1455 (2003), S/AC.37/ 2004/(1455)/10, at 4
101. Report of the Government of the Republic of Nicaragua Submitted in Compliance with Security Council Resolution 1455 (2003), S/AC.37/2003/ (1455)/82, at 2.
102. Report of the Principality of Andorra Pursuant to Paragraphs 6 and 12 of Security Council Resolution 1455 (2003) S/AC.37/2004/(1455)/35, at 5
103. Report of Croatia on the Implementation of Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/33, at para, 9.
104. See Bantekas, 'International Law of Terrorist Financing', 97 AJIL (2003), 315, at 321-323
105. and Gardella, 'The Fight against the Financing of Terrorism between Judicial and Regulatory Cooperation', in Bianchi (ed.), supra note 35, at 415, 419-422.
106. Supplementary Report of the Islamic Republic of Iran to the Security Council Counter-Terrorism Committee Pursuant to Paragraph 6 of Security Council Resolution 1373 (2001), S/2003/266, at 4
107. Information Provided by the Russian Federation in Response to the Additional Questions and Observations Prepared by the Counter-Terrorism Committee of the Security Council in Connection with the Supplementary Report of the Russian Federation Submitted in Accordance with Security Council Resolution 1373 (2001), S/2003/839, at 6.
108. See the Fourth Report of the Netherlands on the implementation of Security Council Resolution 1373 (2001), S/2005/425, at 4.
109. Third Report of the United Arab Emirates on Additional Information Submitted to the Security Council Committee Established Pursuant to Resolution 1373 (2001) Concerning Counter-Terrorism, S/2003/1211, at 7.
110. Fourth Report of India to the Counter Terrorism Committee, S/2004/451, at 8.
111. See the Fourth Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Security Council Resolutions 1526 (2004) and 1617 (2005) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2006/154, at para. 81. Such red flags include: Informal solicitation of donations; transactions that are more complicated than is necessary; actual use of funds different from their stated purpose at the time of collection; the absence of a donor list; hidden donations; little or no fund-raising expenditure, possibly indicating a few wealthy donors; and funds transfers to the same overseas beneficiary through multiple bank accounts.
112. See the Supplementary Report Submitted by France to the Counter-Terrorism Committee Pursuant to Security Council Resolution 1373 (2001), S/2002/783, at 6
113. Supplementary Report by Italy to the Counter-Terrorism Committee Pursuant to Security Council Resolution 1373 (2001), S/2003/724, at 7
114. Denmark's Further Information Following the Supplementary Report Submitted Pursuant to Paragraph 6 of Security Council Resolution 1373 (2001), S/2004/119, at 10.
115. Art. 78 of the Danish Constitution precludes the State from introducing rules which require associations to obtain permission from the public authorities prior to their formation: Ibid.
116. See the letter dated 1 Dec. 2005 from the Chairman of the Security Council Committee established pursuant to Res. 1267 (1999) concerning Al-Qaida and the Taliban and associated individuals and entities addressed to the President of the Security Council, S/2005/761, at 3-4.
117. Ibid. The Chairman of the CTC has also recently acknowledged that '[t]he seemingly endless requests to report to the Council on counter-terrorism - which, to be fair, come mostly from the CTC - have led States to ask what the purpose of reporting is.'
118. (See the discussion held at the SC on 30 May 2006 on 'Threats to international peace and security caused by terrorist acts' (UN Doc. S/ PV.5446), at 5).
119. See the First Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1526 (2004) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2004/679, at para. 28.
120. Report Submitted by the Republic of Benin Pursuant to Paragraph 6 of Security Council Resolution 1455 (2003) and Paragraph 23 of Security Council Resolution 1526 (2004), S/AC.37/2004/(1455)/30, at 5
121. Report Submitted by Bangladesh Pursuant to Resolution 1455 (2003) S/ AC.37/2004/(1455)/13, at 3
122. Report by the Kingdom of Bhutan Pursuant to Paragraph 6 of Security Council Resolution 1455 (2003) Submitted to the Security Council Committee Established Pursuant to Security Council Resolution 1267 (1999), S/AC.37/2005/(1455)/8, at 2.
123. Report of Finland Pursuant to Security Council Resolution 1455 (2003), S/ AC.37/2003/(1455)/11, at 2
124. Report of Germany Required Pursuant to Paragraphs 6 and 12 of Resolution 1455 (2003), S/AC.37/2003/(1455)/10, at 3
125. Report of Honduras Prepared by the Secretary of State for Security Pursuant to Paragraph 6 of Security Council Resolution 1455 (2003), S/ AC.37/2004/(1455)/16, at 2
126. Report of Spain in Fulfilment of United Nations Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/5, at 3
127. Report of the Government of the United States Called for under Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/26, at 3.
128. Report Submitted by France Pursuant to Security Council Resolution 1455 (2003) Concerning Sanctions against Al-Qa'idah, S/AC.37/2003/(1455)/37, at 3.
129. Report of the Principality of Liechtenstein to the Counter-Terrorism Committee Established Pursuant to Security Council Resolution 1373 (2001), S/2001/1253, at 9
130. Report of the Grand Duchy of Luxembourg to the Committee Established Pursuant to Paragraph 6 of Security Council Resolution 1373 (2001), S/ 2002/6, at 4
131. Report on Counter-Terrorism submitted by Switzerland to the Security Council Committee Established Pursuant to Resolution 1373 (2001), S/2001/ 1224, at 5.
132. See the First Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1526 (2004) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2004/679, at para. 29.
133. Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, E/CN.4/ 2006/98, at para. 47.
134. UN Doc. A/59/894, App. II.
135. Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 Dec. 1996 A/60/37, at 23-28.
136. Liechtenstein, e.g., indicates in its Report under Res. 1267 that it will introduce into its criminal code a 'terrorist group' offence: '[t]he inclusion of this offence will criminalize mere participation in a terrorist group as a member': Report of Liechtenstein to the Security Council Committee Established Pursuant to Resolution 1267 (1999), S/ AC.37/2003/(1455)/52, at 5).
137. The Australian Criminal Code enables the Government to list specific organizations for the purpose of specified terrorist offences: '[t]he effects of this is to criminalise a range of activities associated with those organisations, including recruitment, membership and the provision of support': Report of Australia Pursuant to Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/13, at para. 11.
138. Arts 1(1) and 2 of the Council Framework Decision of 13 June 2002 on Combating Terrorism (2002/475/JHA), OJ (2002) L164/1. Although these decisions are not meant to have direct effects. the ECJ recently ruled that '[t]he binding character of framework decisions ... places on national authorities, and particularly national courts, an obligation to interpret national law in conformity': Case C-105/03, Pupino, Judgment of 16 June 2005, at para. 34.
139. See Res. 1566 (2004), in which the SC '[r]ecalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature': SC Res. 1566 (2004), at para. 3.
140. On the early days of the CTC see Rosand, 'Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism', 97 AJIL (2003) 333.
141. See also Bianchi. supra note 35, at 532-533.
142. See the Report of the Counter-Terrorism Committee to the Security Council for Its Consideration as Part of Its Comprehensive Review of the Counter-Terrorism Committee Executive Directorate, UN Doc. S/2005/800.
143. Countries visited so far include Morocco, Kenya, Albania, Thailand, Algeria, and Tanzania. See the Press Release of 10 Feb. 2006, SC/8635.
144. See the Special Rapporteur's Report, supra note 90, at 19.
145. Reference to the duty by States to respect international human rights, humanitarian, and refugee law in the implementation in their anti-terror measures had already been made by SC Res. 1456 (2003), at para, 6.
146. See 'Conclusions for policy guidance regarding human rights and the CTC', S/AC.40/2006/PG.2, 25 May 2006: '[t]he CTC and CTED, under direction of the Committee, should incorporate human rights into their communications strategy, as appropriate, noting the importance of States ensuring that in taking counter-terrorism measures they do so consistent with their obligations under international law, in particular human rights law, refugee law and humanitarian law, as reflected in the relevant Security Council resolutions'.
147. It is of note that in its early days the CTC considered that '[m]onitoring performance against other international conventions, including human rights law, is outside the scope of the Counter-Terrorism Committee's mandate': Briefing of the first Chair of the CTC to the Security Council on 18 Jan. 2002. S/PV.4453. at 5.
148. See the 27 Feb. 2006 letter by the Assistant Secretary General of the CTED addressed to the Chairman of the CTC regarding the revised 'Technical Assistance Implementation Plan'.
149. See the Briefing by the Counter-Terrorism Committee Chairman to the Security Council on 21 Feb. 2006. available at www.un.org/sc/ctc/ 21feb.shtml (last visited on 12 May 2006).
150. On the operation of the 1267 Sanctions Committee and its subsidiary bodies see Rosand, 'The Security Council's Effort to Monitor the Implementation of Al Qaeda/Taliban Sanctions', 98 AJIL (2003) 745.
151. Hitherto the Monitoring Team has produced four reports: See UN Docs. S/ 2004/679 of 25 Aug. 2004; S/2005/83 of 15 Feb. 2005; S/2005/572 of 9 Sept. 2005; and S/2006/154 of 10 Mar. 2006.
152. See Annex I to the Letter dated 1 Dec. 2005 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities Addressed to the President of the Security Council, S/2005/ 761, at para. 37.
153. Among other things, Res. 1617: Shed light on the definition of the expression 'associated with' Al-Qaida, Usama bin Laden, and the Taliban (para. 2): Decided to authorize the release of statements of the case, under some circumstances (para. 6); and requested 'States to inform to the extent possible, and in writing, where possible, individuals and entities included in the Consolidated List of the measures imposed on them ... and, in particular, the listing and de-listing procedures' (para. 5).
154. See SC/8536.
155. See the concerns expressed by the CTC concerning the co-ordination between its sole responsibility for providing policy guidance to the CTED and the Secretary General's responsibility for oversight and management issues. See Report of the Counter-Terrorism Committee to the Security Council for its Consideration as Part of Its Comprehensive Review of the Counter-Terrorism Committee Executive Directorate, S/2005/ 800, at para. 10.
156. Other issues of co-ordination of an intra-institutional character concern the co-ordination with the Monitoring Team established under
157. See UN Doc. E/CN.4/2006/98, supra note 90, at paras. 19-24.
158. The expressions 'paper truths' and 'ground truths' are used by Cardenas in 'The United Nations Security Council's Quest for Effectiveness', 25 Michigan J Int'l L (2004) 1341, at 1343.
159. See: 'A more secOre world: our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change', A/59/565, at para. 152: 'the Security Council must proceed with caution. The way entities or individuals are added to the terrorist list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental human rights norms and conventions'.
160. See also the declaration made by Liechtenstein at the recent discussion held at the SC on 30 May 2006, supra note 83: '[t]here is no doubt that United Nations organs, when imposing measures that have a direct and dramatic impact on the rights of individuals, must respect international standards of human rights in a similar manner as States would have to' (at 30).
161. Res. 1456 (2003), at para. 6.
162. Report of the Czech Republic in Fulfilment of United Nations Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/59, at 6
163. Report of the Republic of the Fiji Islands to Security Council Committee Al-Qaida and Taliban Resolution 1267, S/AC.37/2004/(1455)/39, at 3 and 6
164. Report of the United Republic of Tanzania Pursuant to Security Council Resolution 1455 (2003), S/AC.37/2005/(1455)/10, at 3.
165. The Governments of Germany, Switzerland, and Sweden commissioned the Watson Institute for International Studies at Brown University to draft a report on the subject of targeted sanctions and human rights. The Report, entitled 'Strengthening Targeted Sanctions through Fair and Clear Procedures', is now available at www.watsoninstitute.org (last visited 6 June 2006).
166. See also the concern voiced by Austria, speaking on behalf of the EU, at the occasion of the discussion held at the SC on 30 May 2006 on 'Threats to international peace and security caused by terrorist acts', supra note 83: '[w]e believe that the Security Council should devote special attention to that matter, as a negative court ruling would not only put the Member States concerned in a difficult position but might also call the whole system of targeted United Nations sanctions into question' (at 26).
167. For an overall view of the litigation by or relating to individuals on the Consolidated List, see Annex to the Fourth Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Security Council Resolutions 1526 (2004) and 1617 (2005) concerning Al-Qaida and the Taliban and Associated Individuals and Entities, UN Doc. S/2006/154.
168. Report of the Government of the United States Called for under Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/26, at 4
169. Report by Sweden on the Implementation of Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/2, at 3
170. Report of Italy to the Committee Established Pursuant to Security Council Resolution 1267 (1999), Submitted in Accordance with Resolution 1455 (2003), S/AC.37/2003/(1455)/40, at 9
171. Updated Report of Turkey on Steps Taken to Implement the Measures Imposed by Paragraph 4 (b) of Resolution 1267 (1999), Paragraph 8 of Resolution 1333 (2001) and Paragraphs 1 and 2 of Resolution 1390 (2002), S/AC.37/2003/(1455)/6, at 4
172. Report of Pakistan to the 1267 Committee on Implementation of United Nations Security Council Resolution 1455 (2003), S/AC.37/2003/(1455)/35, at 4.
173. Kadi v. Council and Commission, supra note 29
174. Yusuf v. Council and Commission, supra note 29.
175. See General Comment No. 29, CCPR/C/21/Rev.1/Add.11. at para. 16.
176. Appeal Judgment on Allegations of Contempt against Prior Council, Milan Vujin, Case No.: IT-94-1-A-AR77, Judgment of 27 Feb. 2001.
177. Other relevant criteria include the stigma of the charge, relegation of the individual to the margins of social life, and the scope of the freezing measures.
178. Ravnsborg v. Sweden, ECtHR (1994) Series A, No. 283-B, 18 EHRR (1994) 38, at para. 30.
179. Quite understandably, the 1526 Monitoring Team resists the view that the List be considered a criminal list: See Third Report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolution 1526 (2004), concerning Al-Qaida and the Taliban and associated individuals and entities, UN Doc. S/2005/572, at paras. 39-43.
180. See Eckle v. Germany, ECtHR (1982), Series A, No. 51, 5 EHRR (1983) 1, at para. 73
181. Foti and others v. Italy, ECtHR (1982), Series A, No. 56, 5 EHRR (1983) 313, at para. 52.
182. The principle of presumption of innocence must be applied not only by the judiciary, but also by any other public authorities: See General Comment No. 13 of the Human Rights Committee, HRI\GEN\1\Rev.1 (1994), at para. 7.
183. See also, in the context of the ECHR, Allenet de Ribemont v. France, ECtHR (1995) Series A, No. 308, at para. 36.
184. In this context, it is interesting to refer to a recent case decided by the ECtHR (SEGI and others v. 15 States of the European Union, Apps Nos 6422/02 and 9916/02, ECtHR (2002), Decision of 23 May 2002). The applicants claimed to be victims of a violation of Arts 6 and 8 of the ECHR, as they had been identified as terrorist organizations under two texts adopted by the EU Council (Common Position 2001/930/CFSP and Common Position 2001/931/CFSP). In particular, the two entities came within the purview of Art. 4 of Common Position 2001/931/CFSP, which aimed at improving police and judicial co-operation between the Member States of the EU in the fight against terrorism. The Court concluded that '[t]he mere fact that the names of two of the applicants (Segi and Gestoras Pro-Amnistt́ia) appear in the list referred to in that provision as "groups or entities involved in terrorist acts" may be embarrassing, but the link is much too tenuous to justify application of the Convention. The reference in question, which is limited to Article 4 of the common position, does not amount to the indictment of the "groups or entities" listed and still less to establishment of their guilt. In the final analysis, the applicant associations are only concerned by the improved cooperation between member States on the basis of their existing powers and they must accordingly be distinguished from the persons presumed to be actually involved in terrorism who are referred to in Articles 2 and 3 of the Common Position'. The Court added that Art. 4 'contains only an obligation for member States to afford each other police and judicial cooperation, a form of cooperation which, as such, is not directed at individuals and does not affect them directly'. It is fair to speculate that the Court would reach a different conclusion if it were possible to prove that the two entities were directly affected by the measures, a requirement which would surely be met if individuals and/or entities were the object of financial sanctions.
185. For the test of impartiality as applied by the ECtHR see De Cubber v. Belgium, ECtHR (1984) Series A, No. 86, 7 EHRR (1985) 236, at para. 24
186. Hauschildt v. Denmark, ECtHR (1989) Series A, No. 154, 12 EHRR (1990) 266, at para. 46.
187. See, for instance, Zollmann v. UK, in which the ECtHR held: 'statements attributing criminal or other reprehensible conduct are relevant rather to considerations of protection against defamation and adequate access to court to determine civil rights and raising potential issues under Articles 8 and 6 of the Convention': Zollmann v. United Kingdom, ECtHR (2003), Reports of Judgments and Decisions 2003-XII.
188. See Golder v. UK, ECtHR (1975), Series A, No. 18, 1 EHRR (1975) 524, at para. 40.
189. See also Rotaru v. Romania, ECtHR (2000), Reports of Judgments and Decisions 2000-V, at para. 44.
190. Zollmann v. UK, supra note 126.
191. Judgment of 29 Apr. 2002 in Ministère public du canton de Tessin v. A and B, summarized at 13 Revue Suisse de Droit International (2003) 449.
192. See the minutes of the discussion held at the SC on 30 May 2006, supra note 83, in which several delegations stressed 'the need to establish procedural fairness and an effective remedy within the current system' (Greece, at 10).
193. Denmark reiterated its proposal 'to establish an independent review mechanism - an ombudsman - to which individuals ... would have direct access': Ibid., at 8.
194. France proposed 'that a focal point be set up within the Secretariat for the direct receipt of listed individuals requesting delisting or exemption': Ibid., at 22.
195. As is known, under Art. 2 of the ICCPR and Art. 13 of the ECHR, the right to a remedy can be invoked only in relation to the violation of another right. In the case at hand, surely the right to fair trial could be invoked, as well as the right to property, although invocation of the latter would be limited to the ECHR, as the ICCPR does not guarantee it.
196. Second Report of the Analytical Support and Sanctions Monitoring Team Appointed Pursuant to Resolution 1526 (2004) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, S/2005/83, 15 Feb. 2005, at para. 53.
197. In two recent judgments (Case T-253/02, Chafiq Ayadi v. Council of the European Union, Judgment of the CFI of 12 July 2006, at para. 146,
198. and Case T-41/04, Faraj Hassan v. Council of the European Union and Commission of the European Communities, Judgment of the CFI of 12 July 2006, at para. 116),
199. the EC CFI drew an obligation for the EU Member States from Art. 6 EU promptly to ensure that the case of individuals and entities challenging their inclusion in the list is 'presented without delay and fairly and impartially to the [Sanctions] Committee': Chafiq Ayadi, at para. 149
200. Faraj Hassan, at para. 119). Should states fail to fulfil this obligation, individuals should be allowed to bring an action for judicial review before the national courts against competent national authorities.
201. Hassan and Tchaouch v. Bulgaria, ECtHR, App. No. 30985/96 (2000), at para. 100.
202. See also Daniel Monguya Mbenge v. Zaire, Human Rights Committee, Communication No. 16/1977, CCPR/C/18/D/16/1977, at para. 18
203. See Klass and others v. Germany, ECtHR, Series A, No. 28, 2 EHRR (1978) 214, at para. 64.
204. See Art. 26 of the Federal Constitution of Switzerland: Art. 14 of the Constitution of Germany.
205. See Art. 1 of the First Protocol to the ECHR; Art. 21 of the American Convention on Human Rights.
206. Art. 1 of Prot. I to the ECHR reads: '[n]o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law'. See also Art. 21 of the American Convention on Human Rights: '[n]o one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law'.
207. The exceptions apply to funds and other financial assets or economic resources that have been determined by the relevant State(s) to be: (a) necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, or fees or service charges for routine holding or maintenance of frozen funds or other financial assets or economic resources, after notification by the relevant State(s) to the Committee established pursuant to resolution 1267 (1999) of the intention to authorize, where appropriate, access to such funds, assets or resources and in the absence of a negative decision by the Committee within 48 hours of such notification; (b) necessary for extraordinary expenses, provided that such determination has been notified by the relevant State(s) to the Committee and has been approved by the Committee: See Res. 1452 (2002), para. 1.
208. Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, ECtHR (2005), Judgment of 30 June 2005, at para. 156.
209. Ibid., at para. 155.
210. Kadi v. Council and Commission, supra note 29, at para. 242
211. Yusuf v. Council and Commission, supra note 29, at para. 293.
212. Kadi, supra note 29, at para. 248,
213. Yusuf, supra note 29, at para. 299.
214. This reasoning was later confirmed by the CFI in Chafiq Ayadi v. EU Council, supra note 133, at para. 135
215. and Faraj Hassan v. Council and Commission, supra note 133, at para. 105.
216. See SC Res. 1483 (2003), at para. 23.
217. Prosecutor v. Dusko Tadic aka 'Dule', IT-94-1, ICTY, Decision of the Appeals Chamber on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995, at para. 43.
218. M. Bedjaoui, The New World Order and the Security Council. Testing the Legality of its Acts (1994), at 11-12.
219. United States Diplomatic and Consular Staff in Tehran (United States/ Iran), [1980] ICJ Rep 3, at 21-22 (para. 40)
220. Military and Paramilitary Activities in and against Nicaragua, [1984] ICJ Rep 392, at 434-435 (para. 95)
221. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), [1993] ICJ Rep 3, at 18-19 (para. 33).
222. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at 149-150, at paras. 27-28.
223. See on this point Bianchi, 'Dismantling the Wall: The ICJ's Advisory Opinion and Its Likely Impact on International Law', 47 German Yearbk Int'l L (2004) 343, at 363 ff.
224. See M.J.C. Vile, Constitutionalism and the Separation of Powers (2nd. edn., 1998).
225. See, however, the considerations advanced supra at sect. 2.
226. See the US Senate Judiciary Committee Hearing on 'War Time Executive Power and the NSA's Surveillance Authority' held last Feb. and available at http://judiciary.senate.gov/hearing.cfm?id=1770 (last visited 25 May 2006).
227. Caflisch, 'Is the International Court Entitled to Review Security Council Resolutions Adopted under Chapter VII of the United Nations Charter?', in N. Al-Nauimi and R. Meese (eds.), International Legal Issues Arising under the United Nations Decade of International Law (1995), at 633
228. Akande, 'The ICJ and the Security Council: Is There Room for Judicial Control of the Decisions of the Political Organs of the UN?', 46 ICLQ (1997) 309
229. Alvarez, 'Judging the Security Council', 90 AJIL (1996) 1
230. De Wet, 'Judicial Review as an Emerging General Principle of Law and Its Implications for the International Court of Justice', 47 Netherlands Int'l LR (2000) 181
231. Schweigman, supra note 19.
232. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep 16 (where the Court exercised judicial scrutiny over GA Res. 2145 (XXI), 45-50, at paras. 87-103,
233. and over SC Res. 284 (1970), 21-22, at paras. 20-22
234. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136, at 148-150, paras. 24-28, where the Court reviewed GA Res. ES-10/14,
235. and, arguably, GA Res. 377(V): Ibid., at 150-151, paras. 29-31.
236. See Prosecutor v. Tadic, IT-94-I-AR, supra note 145, 72
237. Prosecutor v. Joseph Kanyabashi, ICTR Trial Chamber Decision of 18 June 1997 on the Defence Motion on Jurisdiction, Case No. ICTR-96-15-T.
238. Prosecutor v. Tadic, supra note 145, at para. 35
239. Prosecutor v. Kanyabashi, supra note 154, at para. 27.
240. Kadi v. Council and Commission, supra note 29, at paras. 209-231
241. Yusuf v. Council and Commission, supra note 29, at paras. 260-282.
242. Kadi, supra note 29, at para 225
243. Yusuf, supra note 29, at para. 276.
244. Kadi, supra note 29, at para. 226
245. Yusuf, supra note 29, at para. 277.
246. Jus cogens is defined by the CFI 'as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible': Ibid.
247. See supra sect. 4.D.
248. See appeals brought on 17 Nov. 2005 by Kadi and on 23 Nov. 2005 by Yusuf and Al Barakaat International Foundation against the judgments of 21 Sept. 2005 by the Second Chamber (Extended Composition) of the CFI (Cases C-402/05 P and C-415/05 P), noted respectively at [2006] OJ C39/ 36, at 19 and [2006] OJ C 48/11.
249. (on the application of Al-Jedda) v. Secretary of State for Defence, Court of Appeal, Civil Division, Judgment of 29 Mar. 2006.
250. Ibid., at para. 68.
251. Ibid., at para. 75.
252. Ibid., at para. 74.
253. Bianchi. 'Globalization of Human Rights: The Role of Non-State Actors'. in G. Teubner. Global Law without a State (1997). at 179, 192 ff.
254. Teubner. 'Global Bukowina: Legal Pluralism in the World Society'. in ibid., at 3, 14.
255. See Bianchi. supra note 35. at 494 ff.
256. Besides the vexata quaestio of adopting a general definition of international terrorism, possibly within the framework of the would-be comprehensive UN convention on international terrorism, another example which springs to mind is the regulation of alternative and informal money-transfer systems.
257. Bianchi, supra note 35, at 525 ff.
258. See Alvarez, 'The Security Council's War on Terrorism: Problems and Policy Options'. in E. de Wet and A. Nollkaemper. Review of the Security Council by Member States (2003), at 119, 121.
259. See The Economist, 22 Oct. 2005, at 15 and 73-75.
260. See Cameron, supra note 8, at 186.
261. See the Report from the Commission, based on Art. 11 of the Council Framework Decision of 13 June 2002 on combating terrorism. COM(2004)409 final, 8 June 2004.
262. See the Report of the Study Group of the ILC finalized by Martti Koskenniemi on 'Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law', A/CN.4/ L.682.
263. Supra sect. 5.2.
264. Kadi v. Council and Commission. supra note 29. paras. 184, 224
265. Yusuf v. Council and Commission. supra note 29, at paras. 234, 275.
266. Al-Jedda v. Secretary of State for Defence, supra note 161, at para. 87.
267. In fact, SC Res. 1546 (para. 10) generally authorized the Multinational Force 'to take all necessary measures to contribute to the maintenance of security and stability in Iraq'.
268. See SC Res. 1456 and SC Res. 1624. which gave the CTC the mandate to check the conformity of States' anti-terror measures with human rights.
269. It is of note that in a recent speech concerned with strengthening international law, delivered before the SC by the Legal Counsel of the UN on behalf of the Secretary General, the issue of how to guarantee fundamental due process rights to individuals targeted by the SC's measures came to the fore, Legal Counsel stressed that such a person should be informed of the case against him and have the right to be heard, via submissions in writing, within a reasonable time. Moreover, an independent, impartial, and effective review mechanism should be established and the measures taken should be regularly reviewed by the SC, the frequency of such reviews depending on the rights and interests involved. See 'Strengthening international law: Rule of law and maintenance of international peace and security', S/PV.5474, at 5.
270. As is known this is the theory propounded by T. Franck in his well-known book. The Power of Legitimacy Among Nations (1990).
271. See the declaration made by Ecuador at San Francisco: '[i]n the fulfilment of the duties inherent in its responsibility to maintain international peace and security, the Security Council shall not establish or modify principles or rules of law': UNCIO, vol. 3. at 431).
272. It is difficult to infer any conclusion from the fact that this proposal was eventually rejected. In this context it is interesting to note also that at San Francisco the Philippines had made a proposal whereby '[t]the General Assembly should be vested with the legislative authority to enact rules of international law which should become effective and binding upon the members of the Organization after such rules have been approved by a majority vote of the Security Council. Should the Security Council fail to act on any of such rules within a period of thirty days after submission thereof to the Security Council, the same should become effective and binding as if approved by the Security Council': UNCIO Doc., vol. 9, at 316.
273. See the statement of the representative of Algeria: '[i]n the absence of binding international standards, and because of the seriousness and the urgent nature of the threat, the response to it needs to be articulated and formulated by the Security Council': S/PV. 4950, at 5. See also S/ PV.4956, particularly the statements of France (at 2), Pakistan (at 3), and Spain (at 8).
274. See GA Res. A/RES/58/48 on measures to prevent terrorists from acquiring weapons of mass destruction.
275. See para. 6 of the Declaration attached to SC Res. 1456 (2003), the preamble to SC Res. 1566 (2004), and para. 4 ofSC Res. 1624 (2005).
276. See GA resolutions on 'Protection of Human Rights and Fundamental Freedoms While Countering Terorism' (A/RES/57/219, A/RES/58/187, A/RES/ 59/191, A/RES/60/158).
277. '[C]e qu'il dit est le droit' : Pellet, 'Conclusions générales', in B. Stern (ed.), Les aspects juridiques de la crise et de la guerre du Golfe (1991), at 487, 490.
278. Koskenniemi, supra note 32.
279. See supra, sect. 2.B.
280. See Koskenniemi, supra note 32, at 25.
281. '[A]ll discretionary powers of lawful decision-making are necessarily derived from the law, and are therefore governed and qualified by the law. This must be so if only because the sole authority of such decisions flows itself from the law. It is not logically possible to claim to present the power and authority of the law, and at the same time, claim to be above the law', in Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Dissenting Opinion of Judge Jennings, [1998] ICJ Rep 99, at 110.