A novel, if awkward, exercise in international law-making: Security council resolution 1540 (2004)

Netherlands International Law Review

Volumn 51, Issue 3, 2004, Pages 411-437

  Lavalle, Roberto ^a  

^a Permanent Mission of Guatemala   (United States)

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EID: 85010279679     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X04004115     Document Type: Article

References (51)

1. A national statute may deal exclusively with a situation that, being limited to a certain part of the country (e.g., a localized natural disaster) is not applicable throughout its territory. But this is not the normal situation. It may also apply only for a certain period of time. But, again, this is not the normal case. (It may occur that, in accordance with its terms, a law applies outside the territory over which the competence of the body that enacted it normally extends; but such cases of extraterritorial reach are likewise exceptional.)
2. As will be pointed out and commented on later, when acting under Art.41the Council’s practice is to cite not this provision but Chapter VII as a whole. (Cf., in the text, the paragraph containing footnote reference 17 and that note.) This terminology (on the understanding, of course, that a reference to Chapter VII should be taken to mean one to Art. 41) shall accordingly be used. 3. It should be noted that, far from seeking to inflict hardship on the three countries concerned, i.e., Uganda, Iraq and Liberia, Res. 1127 (1997), 1483 (2003) and 1532 (2004) sought to benefit those countries.
3. This faction, in addition to being recognized as the government of Afghanistan by only two states, was, on account of its gross and blatant violations of human rights, an international pariah. 5. Yet, at meetings held by the Council, on 25, Mayand 13 September 2004, to consider the question of terrorism as a whole, the delegate of Angola characterized the regime of sanctions the Council had adopted against the A1 Qaida terrorist network as being of a legislative nature (UN Doc. S/PV.4976, p. 16, left-hand column, paragraph beginning with '[b]y adopting’, and UN Doc. S/PV.5031, left-hand column, paragraph beginning with '[b]y adopting’).
4. P.C. Szasz, 'The Security Council Starts Legislating’, 96 AJIL (2002) pp. 901 – 905. A note published in 2003 (J.E. Alvarez, 'Hegemonic International Law Revisited’, 97 AJIL (2003) p. 873) touches on the subject of the Council’s legislative powers. It does not seem that there is as yet any other literature on the matter. It may be noted that, on 8 June 2004, the Council, by adopting Res. 1546 (2004), concerning Iraq, introduced into the legal system of that country rules that can be regarded as being of a legislative, or perhaps more accurately, a constitutional nature. Thus, after legislating for the community of states as a whole, the Security Council has ventured to legislate for one particular state.
5. Szasz, Human Rights in the World n. 6, at p. 902.
6. As was observed by several of the participants in the 22 April meeting of the Council, the first at which the Council publicly considered the draft resolution that was to become Res. 1540 (2004), it was meant to fill a gap arising in the existing disarmament and non-proliferation regimes from the failure of the relevant treaties to adequately address the need to prevent access by non-state individuals and entities, particularly terrorist ones, to weapons of mass destruction. (See, for example, in the record of the 22 April meeting (S/PV.4950), the statements by the Philippines, Brazil and Spain (members of the Council), pp. 3, right and left hand columns, and 7, top left-hand column.) Having been submitted unofficially, the draft resolution considered at this meeting (dated 15 April and on file with the author), is not in the public domain. This draft resolution differed from the one (S/2004/326) officially submitted on 28 April (and adopted on that day). But the differences between the two successive texts are minor and, with one exception that will be noted, of no relevance to the questions discussed here. (The fact that at the 22 April meeting delegates were discussing such a draft is a good example of the lack of transparency that characterizes the work of the Council and can seriously hamper the use of travaux preparatoires as a means of interpreting its resolutions.) (For information on the background to Res. 1540 (2004) additional to that provided subsequently in the text, see 98 AJIL (2004) pp. 606-607.)
7. As pointed out by the representative of the United Kingdom at the meeting at which Res. 1540 (2004) was adopted, it was the 'Council’s first-ever resolution addressing the proliferation of weapons of mass destruction’. The draft resolution that became Res. 1540 (2004) was sponsored by seven members of the Council, France, the Philippines, Romania, the Russian Federation, Spain, the United Kingdom and the United States (UN Doc. S, 326, dated 28 April 2004).
8. In a statement made at the meeting at which Res. 1540 (2004) was adopted, the representative of Pakistan expressed the view, which he based on the presence of the word 'henceforth’ in the penultimate preambular paragraph, that the resolution was not retroactive. One would think that there is no reason why Art. 28 of the Vienna Convention on the Law of Treaties should not apply to resolutions of intergovernmental bodies, and that accordingly the resolution would be without retroactive effect even if that word were not in its preamble.
9. 10A. Thus far two reports have been submitted, the first by Costa Rica, the second by Turkmenistan (UN docs. S/AC.44/2004/(02)/l and S/AC.44/2004/(02)/2).
10. Cf., Szasz, Human Rights in the World n. 6, at p. 902 and the statement made by Pakistan at the meeting at which the resolution was adopted (UN Doc. S/PV.4956, p. 3, paragraph beginning with '[f]ifth’).
11. However, unlike the committee established by Res. 1373 (2001), which was set up without any temporal limitation, the committee established by Res. 1540 (2004) is, in accordance with operative para.4thereof, to function for no more than two years.
12. In this regard the reader is referred, in particular, to the observations contained in the second (complete) paragraph of p. 904 and the following (last) page of Szasz’s note.
13. As pointed out in fn. 4 of Szasz’s note (Human Rights in the World n. 6, at p. 901), its subject was treated by him at greater length (and with remarkable prescience) in P.C. Szasz, 'General Law Making Processes’, In O. Schachter and C.C. Joyner, eds., United Nations Legal Order, Vol. 1 (Cambridge, Cambridge University Press 1995) p. 35 at pp. 61–67. This monograph, however, also does not deal with the three questions that are now to be discussed.
14. The, far-reaching, analogy in question brings to mind the theory of 'new custom’ that has been articulated particularly well by A.E. Roberts ('Traditional and Modern Approaches to Customary International Law: A Reconciliation’, 95 AJIL (2001) pp. 757–791) and is capable of producing law instantaneously (Bin Cheng, 'United Nations Resolutions on Outer Space: “Instant” United Nations Customary International Law’, 5 Indian JIL (1965) p. 23). It does not seem, however, that this theory, which can be viewed as involving the creation of 'quasi legislation’ (Roberts, Human Rights in the World, at p. 765), could provide an explanation of the way the two resolutions produce their effects. The reason is that they respond to instrumental rather than moral concerns and that a body in which only a few of the members of the international community are represented would lack the legitimacy required to create 'new’ customary international law.
15. At the Council’s 22 April meeting, the representative of Namibia said that since the issue being discussed required 'the engagement of the whole membership of the United Nations’, it 'belongs in the General Assembly’ (UN Doc. S/PV./4950 (Resumption 1), p. 17, fourth paragraph of the statement).
16. The first resolution of the Council providing that it was 'acting underd Chapter VII’ (as distinct from any particular article) of the Charter is Res. 253 (1968), of May 1968, by which the Council imposed sanctions on the racist minority regime then in power in Southern Rhodesia, a clear application of Arts. 39 and 41 of the Charter. In a prior resolution pursuing the same objective, i.e., Res. 232 (1966), of 16 December 1966 (which, incidentally, constituted the first application of Art. 41), the Council expressly cited Arts. 39 and 41 as the legal basis of its action. From the legal viewpoint this was obviously a far more sensible way of doing things. (In para. 7 of Art.2the Charter refers to 'measures under Chapter VII’; but in so doing it does not refer to that Chapter as a whole; it refers to 'enforcement measures’ under it (emphasis added), i.e., to Arts. 41 and 42.) Notwithstanding the impression of sloppiness this practice produces, it is legally innocuous whenever, as is the case with Res. 253 (1968), there can be no doubt as to which of the provisions of Chapter VII is the legal basis of a resolution. But whenever the contrary occurs, the practice can be faulted, for it can be viewed as a device by which the Council spreads a veneer of constitutionality on resolutions that, like, for example, Res. 827 (1993), by which it established the International Criminal Tribunal for the former Yugoslavia, have no specific basis in the Charter.
17. Cf., UN Doc. S/PV./4956, p. 9, paragraph on right-hand side beginning with '[t]he resolution’ (the Philippines, a member of the Council) and UN Doc. S/PV./4950, p. 24, first paragraph on right-hand side (India). 19. It may in fact be the case that the taking of such action against a state not complying with a Chapter VII resolution of the Council is lawful even if the action involves non-compliance by the state taking it with an obligation it owes to the state against which the action is directed. (Cf., Art. 54 of the Draft articles on responsibility of states for internationally wrongful acts adopted by the International Law Commission in 2001 and the commentaries to that article, in UNGAOR, Suppl. No. 10, pp. 349-355; the view just expressed is further corroborated by Art. 2 (5) of the Charter, applied in conjunction with a broad interpretation of Art.103thereof.)
18. Curiously enough, some of the representatives who spoke at the 22 April meeting said that they would have preferred the legal basis of the resolution to be Art. 25 of the Charter (rather than, as the resolution states, Chapter VII). The reasons for this preference are difficult to fathom, since, if that article (which raises the vexed question whether it can by itself be the basis for action by the Council) were its sole legal underpinning, the resolution would be equally binding. Moreover, if the Council could exercise legislative powers either under Art. 25 or on the basis of the relevant provisions of Chapter VII, it would, by opting for the former possibility, be able to legislate without having to meet any of the prerequisites laid down in Art. 39 of the Charter, which would very considerably expand its authority as a world legislature. See UN Doc. S/PV.4950, p. 4, paragraph beginning with '[f]ourthly’ (Brazil, a member of the Council), p. 5, paragraph beginning with '[i]n accordance’ (Algeria, a member of the Council), S/PV.4950 (Resumption 1), p. 4, paragraph straddling both columns (Malaysia), p. 11, left-hand column, paragraph beginning with '[w]e feel’ (Jordan), and p. 14, paragraph on left beginning with '[fourthly’ (Nepal).
19. Beginning with 'to save succeeding generations’. 22. To the extent that the Afghan faction known as the Taliban was akin to a government and Res. 1267 (1999) and 1333 (2000) were directed against it, those resolutions can be deemed consistent with an interpretation of Art.41that the authors of the Charter would presumably not have rejected. This is particularly true of Res. 1267 (1999), since at the time of its adoption Osama Bin Laden and his associates based their activities on the territory of a state, i.e., Afghanistan.
20. That terrorism was of international concern prior to the Second World War is shown by the adoption in 1937, under the auspices of the League of Nations, of a treaty against it. For the text of this treaty, entitled Convention for the Prevention and Punishment of Terrorism, see Annex III A of UN Doc.A/C.61418 of 1972. The treaty, which, prior to that war, had been ratified by India and signed on behalf of 24 other states, has not been the object of any formality after the Second World War. Obviously, at the time of the San Francisco Conference, terrorism was a form of violence that had been overshadowed into oblivion by that war. 24. Cf., the examples Szasz gives of action by the Council 'not explicitly provided for in the Charter’ (and of which an additional example could be the binding decision contained in operative para. 7 of Res. 1483 (2003), referred to above, a decision that can hardly be squared with Chapter VII). Szasz, Human Rights in the World n. 6, at p. 904. Given the Council’s tendency to take such action, which can only be enhanced by the hegemonic traits that are increasingly becoming part of international
21. There is little likelihood that the International Court of Justice or any other body of a judicial nature might check further innovations by the Council. Nor is it to be expected that the press or public opinion would exert such an influence: can one imagine journalists or members of the general public being in the least troubled by the lack of conformity of a Security Council resolution with the Charter? The only source of opposition conceivable would be from the General Assembly, which would be tantamount to opposition by the international community as a whole. But the background to the adoption of Res. 1540 (2004) stood in the way of this, inasmuch as a general consensus among the United Nations membership preceded that action. 27. In that statement, issued by the President of the Council at the conclusion of its meeting at the level of Heads of State and Government on 31 January 1992, the Council declared, inter alia, that [t]he non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security’ (UN Doc. S/PV.3046 (1992), p. 6). Cf., Szasz, Human Rights in the World n. 6, at p. 904.
22. Szasz, Human Rights in the World n. 6, at p. 905. 29. At the 22 April meeting of the Council, the representative of India said that '[t]he credibility and even respect that the Security Council can garner depend on its actions being the product of internal cohesion and universal acceptability (emphasis added) (UN Doc. S/PV.4950, p. 23, paragraph of the statement beginning with '[t]he issue goes beyond’).
23. Cf., UN Docs. S/246/2001 (the draft resolution), dated 28 September 2001, and S/PV.4385 (2001). At the meeting, the President of the Council stated that it was being held 'in accordance with the understanding reached [by the Council] in its prior consultations’, adding that the draft resolution had been prepared 'in the course of’ them.
24. Szasz, Human Rights in the World n. 6, at pp. 902, 903 and 905.
25. At the first part of the Council’s meeting on 22 April (which, as pointed out thereat by Brazil, a member of the Council, had been convened at the request of six non-members, namely Canada, Mexico, New Zealand, South Africa, Sweden and Switzerland), the representative of Pakistan (a member of the Council) stated that the draft resolution that was to become Res. 1540 (2004) had been 'initiated by some permanent members of the Security Council and negotiated for five months by the five permanent members’ (UN Doc. S/PV.4950, p. 15). (The note in the AJIL mentioned at the end of n. 8Human Rights in the World speaks (at p. 607) of seven months of negotiations.) All that transpired prior to the Council’s open meetings was anything but transparent, for which reason doubts can be entertained as to whether all states had an equal opportunity to participate in them. (Cf., also the next note.)
26. See, respectively, UN Doc. S/PV.4950, pp. 25–27 and S/PV.4950 (Resumption 1), pp. 3 and 4.
27. With one exception, these comments were made at the (two-part) 22 April meeting.
28. See UN Doc. S/PV.4950, p. 7, second paragraph of the statement, and pp. 9 and 10, respectively.
29. See UN Doc. S/PV.4950, p. 28, penultimate paragraph of the statement, and on the same page, second paragraph of the statement, respectively. 39. See, respectively, UN Doc. S/PV.4950, p. 3, sixth paragraph of the statement and UN Doc. S/PV.4250 (Resumption 1), p. 8, fourth paragraph of the statement.
30. See, respectively, UN Doc. S/PV.4950, p. 31, fourth paragraph of the statement, and UN Doc. S/PV.4950 (Resumption 1), p. 3, last paragraph of the statement.
31. See UN Doc. S/PV.4950, p. 5, fourth paragraph of the statement, and p. 32, sixth paragraph of the statement, respectively.
32. UN Doc. S/PV.4956, p. 3, beginning with 'Pakistan shares’. An interesting (but questionable) constitutional point raised earlier by Pakistan relates to Art. 39 of the Charter: the representative of that country observed that the threat of proliferation of weapons of mass destruction by non-state actors not being an imminent one, there was no threat to the peace within the meaning of that article (UN Doc. S/PV.4950, p. 15, beginning with the word '[t]hirdly’).
33. See UN Doc. S/PV.4950, p. 25, second paragraph on right-hand side of the page, and S/PV.4950 (Resumption 1), p. 14 (paragraph beginning with '[f]irst’), respectively.
34. UN Doc. S/PV.4950, p. 23, para. 5 of the statement and UN Doc. S/PV.4950 (Resumption 1), p. 5, paragraph beginning with '[h]owever (The observation made by India is reiterated in the letter from its Permanent Representative to the United Nations referred to in n. 57, infra.) 45. Interestingly, however, none of the speakers referred to any particular provision or provisions of the Charter (other than, as has been noted, Art. 25). (Which, possibly, reflects the legally ludicrous view that the Council is vested with powers by Chapter VII as a whole and adopted the resolution under those powers.)
35. UN Doc. S/PV.4950, p. 15, paragraph of the statement beginning with [s]ixthly’ and UN Doc. S/PV.4950 (Resumption 1), p. 14, paragraph beginning with '[fifthly’. (The three terms are, in the order of their definitions, '[mjeans of delivery’, '[n]on-State actor’, and '[rjelated materials’.)
36. This definition, which is intrinsically unclear, is rendered even fuzzier by a reference to the term 'non-State actor’ contained in the preamble of Res. 1540 (2004). According to the eighth paragraph of the preamble the 'non-State actors’ with which the resolution concerns itself are 'such as those’ (emphasis added) to which Council Res. 1267 (1999) (on Afghanistan) and 1373 (2001) apply. This is strange, since the individuals or entities covered by those resolutions (in which the term in question is absent) not only do not necessarily conduct 'activities which come within the scope of’ Res. 1540 (2004), but, one would think, normally do not engage in them at all. It would, however (and fortunately) appear to be the case that the reference in question to 'non-State actors’ should, for the purposes of interpreting the term, be ignored. (It is one of the fairly numerous examples of what appears to be muddled thinking on the part of the drafters of the resolution.)
37. Cf., Art. II of the Nuclear Non-Proliferation Treaty (a provision that, it would appear, obliges states to prohibit the production of nuclear weapons not only when they themselves carry it out but also when it is carried out, in their territory, by private individuals and entities), Art. I(4) of the Chemical Weapons Convention and Art. II of the Biological and Toxin Weapons Convention. (The full official titles of these treaties are, respectively, Treaty on the Non-Proliferation of Nuclear Weapons (text in 729 UNTS p. 168), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (text in 1974 UNTS p. 316), and Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (text in 1015 UNTS p. 163).) It does not seem that these treaties require the States Parties to criminalize the activities that under their terms are to be prohibited. 51. UN Doc. S/PV.4956, p. 5, first paragraph 1 of the statement, and p. 7, second paragraph of the statement.
38. If the expression 'acting under the lawful of authority of any State’ is analyzed in the abstract, it appears that, barring (perhaps) the extremely exceptional cases of individuals who are, physically, outside the jurisdiction of any state (e.g., those traveling, on the high seas, in a ship without links to any state, flying over them in an aircraft for which the same goes, or standing on a fragment of ice that is legally part of the high seas), it is, strictly speaking (and however much this may evoke 'big brother’), impossible for any human activity to take place outside 'the lawful authority of any State’. This applies to both lawful and unlawful acts, it being indifferent whether they are or are not done in a manner that prevents the authorities from becoming aware of them. It would appear, accordingly, that if the expression in question is looked at in isolation, the most plausible way to interpret it is to apply it solely to acts subject to a regulatory regime that are carried out in a manner incompatible with it (e.g., driving an automobile without a valid license). 53. The rule was referred to by the International Court of Justice in its advisory opinion on the interpretation of the Peace Treaties with Bulgaria, Hungary and Romania (ICJ Rep. (1950) p. 229).
39. The representative of Brazil referred expressly only to operative para. 2 of Res. 1540 (2004). The representative of India did not refer to any particular provision of the resolution. It seems reasonable to consider, however, that the two were taking issue with the reference to 'laws’ contained not only in that paragraph but also in subpara. (d) of operative para. 3 (cf., the statements and the letter that are the subject of the next three notes).
40. See UN Doc. S/PV.4950, p. 4 (paragraph beginning with '[fifthly’).
41. See UN Doc. S/PV.4950, p. 24 (paragraph on left-hand side beginning with, India has taken note’).
42. UN Doc. S/2004/329. 58. Cf., for example, Art. 4 of the International Convention for the Suppression of the Financing of Terrorism (adopted by the United Nations General Assembly in 1999), which reads as follows: 'Each State Party shall adopt such measures as may be necessary: (a) To establish as criminal offences under its domestic law the offences set forth in article 2; (b) To make those offences punishable by appropriate penalties which take into account the grave nature of the offences.’
43. It does no credit to the authors of Res. 1540 (2004) that at the end of subpara, (d) of para. 3 (from the last semicolon of this subparagraph to its end) they specified the nature ('crimi-nal or civil’) of the penalties that should be applied to violations of the controls that states are to establish pursuant to this paragraph, but failed to specify the nature of the penalties that should apply in connection with the far more important prohibitions states are to lay down pursuant to operative para. 2.
44. Maintaining those privileges is probably the principal objective of operative para. 5 of Res. 1540 (2004). 61. This is reflected in para. 1 of Art. 5 of the Convention referred to in n. 58, Human Rights in the World (cf., particularly, the last sentence of that paragraph).
45. See n. 53, Human Rights in the World and accompanying text.
46. See UN Doc. S/PV.4956, p. 3, fourth paragraph of the statement. The representative of Pakistan would have been on firmer ground if the adverbial clause referred not to 'national procedures’ but to 'national laws’ or 'national legal principles’. Cf., para. 1 of Arts. 5 and 8 of the Convention referred to in n. 58, Human Rights in the World.
47. Szasz, Human Rights in the World n. 6, at p. 904.
48. Even though, surprisingly, none of the speakers at the public meetings held in connection with the resolution made any reference to Res. 1373 (2001). 66. Szasz, Human Rights in the World n. 6, at p. 904.
49. Last sentence of paragraph containing footnote reference 36.
50. The fact that states not members of the Council participated in the meeting of 22 April involved a paradox. Art. 31 of the Charter allows a non-member state to participate in the work of the Council 'whenever’, in the Council’s view, the 'interests’ of that state are 'specially affected’. With regard to participation in that meeting by states not members of the Council, general interests were indistinguishable from special ones: since the measures that the Council was to adopt affected each and every member of the United Nations, the interests of all of them were to an equal degree involved. 69. As has been observed, further applications in the area of terrorism are not inconceivable. In a futuristic (and possibly facetious) vein, it might be noted that the process could provide humankind with a useful mechanism for responding to an attack on our planet by maleficent beings from outer space!
51. For information on the activities of the Res. 1540 (2004) Committee, see UN press communique .