I. INTRODUCTION
Since the beginning of the 1990s, the revitalization of the Security Council (SC) has resulted in an extraordinary increase in its activity and in the imagination with which its powers have been implemented. In recent years, the SC has taken decisions on general issues, not necessarily linked to a particular conflict, and has established rules of general scope that oblige Member States of the United Nations (UN) to adopt legislation and administrative acts in their internal legal systems. This has particularly been the case in the fight against terrorism, where it has been said that the SC has begun to behave as a global legislator.
This legislative activity of the SC has aroused a great deal of controversy both among scholars and the States. Is the SC acting ultra vires? Has the SC revealed a new form of creating international norms, which definitively overrides State consent as the only material source of international law? This article tries to answer these questions by investigating the scope of the SC powers in the Charter within the context of its recent normative activity. After this analysis, it is submitted that the SC does have this legislative capacity, but with important legal, political and practical limits.
II. CHAPTER VII OF THE CHARTER AS THE LEGAL BASIS FOR LEGISLATIVE ACTIVITY
As is usual in the practice of the SC, the two Resolutions most clearly identified as ‘legislative’, Resolution 1373 (2001) and Resolution 1540 (2004), were adopted ‘acting under Chapter VII of the Charter’. The use of this Chapter as a generic legal base is questionable, but not novel.Footnote 1 In any event, it seems clear that when the SC describes ‘any act of international terrorism’ as ‘a threat to international peace and security’ it is acting under the provisions of Article 39 of the Charter, and when it decides that all States shall necessarily apply specific measures that do not imply the use of force to fight against that terrorism, it does so under the powers granted by Article 41 of that text.Footnote 2 Resolution 1373 itself seems to seek elements of justification in its Preamble when it makes reference to the need to work together ‘urgently’ to prevent and suppress acts of terrorism. Similar arguments were used in relation to Resolution 1540.Footnote 3
Examining the practice of the SC from the beginning of the 1990s, it can be seen that Article 41 has been used with enormous creativity, going far beyond the merely indicative list of examples that the provision contains. The progressive extension of the concept of threat to peaceFootnote 4 has led the Council to widen the range of applicable measures in an attempt to adapt its intervention to the needs of each specific case. Thus, the SC has instituted a Claims Commission to determine the indemnities that Iraq had to pay after its invasion of Kuwait,Footnote 5 has established as ‘final’ the border demarcation between these two States made by a body that it itself had created,Footnote 6 has set up international criminal courts and has approved their Statutes,Footnote 7 has established sanctions against particular physical and legal persons,Footnote 8 and even decreed that all States adopt the necessary measures to return artefacts removed from a national museum.Footnote 9
Regardless of the opinions that can be expressed about these and other initiatives, it is not surprising that with these antecedents, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has suggested in its jurisprudence that the SC possesses a normative capacity in the development of its functions. In the UN there is no clear division between the legislative and executive powers that attributes each of them to a specific organ. Article 41 of the Charter contains a ‘negative definition’ of the SC's powers, since it only lays down what the measures ‘cannot be’ (armed force cannot be used); however, ‘it does not say or suggest what they have to be’.Footnote 10 In such circumstances, as nothing in the Charter contradicts it, the SC would enjoy the normative power necessary for the efficient accomplishment of its mission to safeguard international peace and security.Footnote 11
Moreover, it can be argued that Article 31 (3)(b) of the Vienna Convention on the Law of Treaties establishes that ‘any subsequent practice in the application of a treaty which establishes the agreement of the parties’ can be used as the appropriate criterion for the interpretation of its provisions.Footnote 12 In this sense, the unanimity with which Resolutions 1373 (2001) and 1540 (2004) were adopted in the SC, together with the support for them shown by the General Assembly (GA), may account for the general acceptance of the SC's interpretation made in the said Resolutions on the powers derived from Article 41 of the Charter.Footnote 13 The statement of the ICJ in its Opinion in Certain Expenses of the United Nations case would also favour this interpretation when it said that in the absence of any specific procedure to clarify the validity of the acts of this organization's institutions, each of them must determine its own jurisdiction.Footnote 14 Thus there are well-founded arguments that support in general terms the Council's normative capacity in the development of its mission to maintain international peace and security when some circumstances put them at risk.
I do not share the opinion of a sector of the doctrine that considers that the SC enjoys a general legislative competence on the basis of Article 25 of the Charter, which does not depend on other more specific powers granted by the Charter itself.Footnote 15 Although it is true that in the negotiations on the text of Article 25 the drafters did not want to introduce particular allusions to any Chapter of the Charter so as not to limit the role granted to the SC within the UN,Footnote 16 any of its actions must be grounded on a legal basis. Of course, the ICJ introduced a certain confusion by indicating, in the Namibia case (in which South Africa questioned the validity of a SC Resolution because it lacked a legal basis), that a general Resolution may be based on Article 24 (1) of the Charter, without needing to be remitted to the Chapters mentioned in paragraph 2 of the Article. Later, the Court added that Article 25 is applicable to all the decisions of the SC, and not only to those adopted under Chapter VII.Footnote 17 Nevertheless, in my opinion the interpretation referred to previously would empty Article 24 of all meaning and make it superfluous. In reality, since Article 25 makes no mention whatever of any material sphere, it would convert the SC into a type of universal legislator without limits ratione materiae, which, without doubt, would go beyond the intentions of the Charter's drafters.
III. THE SHARING OUT OF THE NORMATIVE COMPETENCES BETWEEN THE GENERAL ASSEMBLY AND THE SECURITY COUNCIL
The United Nations Charter provides certain criteria to delimit the functions between the GA and the SC in the context of the fight against terrorism. Articles 11 and 12 of the Charter give wide competences to the GA for the maintenance of international peace and security. More concretely, Article 11 (1) establishes that the GA ‘may consider the general principles of co-operation in the maintenance of international peace and security’ (emphasis added). From a more general perspective, Article 13 (1)(a) confers on the GA a limited normative function (something very different from legislative competence), by indicating that it can promote studies and make recommendations for ‘encouraging the progressive development of international law and its codification’.
In practice, these competences have been translated into the drafting of resolutions in which the GA identified the international law in force,Footnote 18 in a declarative function,Footnote 19 although it could not draw up additional or complementary norms that imposed new obligations on the States.Footnote 20 For the latter, and on the basis of Article 13 (1) of the Charter, the GA created its Sixth Committee and the International Law Commission (ILC).Footnote 21 The States' debates in the Sixth Committee, and in other subsidiary bodies created ad hoc for the negotiation of certain international conventions, enable treaties to be drawn up that are subsequently approved by the GA, but which lack binding force until they have been ratified by a sufficient number of States. In short, what makes these conventions obligatory is the States' expression of consent, since the GA possesses competence to ‘encourage’ the progressive development of international law, but it cannot take the place of the indispensable consent of the States in that process.
All this explains why the adoption of general measures against terrorism was in the past considered a function of the GA. Several of its Resolutions identified the obligations that both the Charter and international law imposed on the States in the fight against terrorism.Footnote 22 From a normative perspective, it has also been the GA that has sponsored several international agreements against terrorism, fundamentally through the work of its Sixth Committee and the Special Committee created by its Resolution 51/210.Footnote 23
On the other hand, the Charter seems to outline essentially executive competences for the SC. It can only make use of the powers granted by Chapter VII of the Charter after a declaration of the existence of a threat to the peace, a breach of the peace, or an act of aggression. In such circumstances, the examples set out in Article 41 on the measures that the SC can take, show the Charter's drafters were thinking of executive functions.Footnote 24
This has led a substantial sector of the doctrine to point out that the SC only has competences to confront particular cases that threaten international peace and security,Footnote 25 and that it lacks legislative competence,Footnote 26 understood as the capacity to issue binding norms of general scope on abstract questions.Footnote 27 Other authors recognize, at most, an exceptional normative competence to resolve those concrete cases,Footnote 28 or even an ‘administrative regulatory’ competence.Footnote 29
At the other extreme of the doctrinal spectrum are those authors who defend the SC's legislative capacity,Footnote 30 basing their argument on the fact that no provision of the Charter rules out that possibility, nor establishes limits on its discretion other than respect for the purposes and principles for the UN (Article 24 (2) of the Charter) when deciding what measures to adopt under Chapter VII. It would be simply a question of making a teleological interpretation of a text drawn up in 1945,Footnote 31 to enable the SC to tackle the threats to international peace and security, such as terrorism, which nowadays have a worldwide dimension.Footnote 32
It has already been indicated that, from my point of view, the Charter can be interpreted in such a way that the SC is not prevented from adopting the normative measures necessary to confront the direct and concrete threats to international peace and security. In spite of that, it has to be admitted that in the normative field the Charter imposes a first limit on the SC derived from the balance of power between the two main organs of the United Nations: the SC lacks competence for the codification and the progressive development of international law because that function is explicitly assigned to the GA by the Charter (Article 13 (1)(a)).Footnote 33
In fact, it is not even the GA itself, through the subsidiary organs it has created to that end, that progressively develops international law but rather, in the last instance, the States, which by expressing consent to be bound by its conventions, or by behaving in a constant and uniform manner, and by being aware of the legal obligation to do so, create new norms of international law. In short, the Charter is built on the cornerstone that serves as the basis for the international legal system: State consent is the only origin of the obligations imposed by that system.Footnote 34 In such circumstances, if the SC assumes a general legislative function of progressive development of international law, not only would it be overlapping the GA's modest competences, but rather it would be subverting the structural bases of the international legal order itself, by acting as if State consent were no longer necessary for the creation of new international norms.Footnote 35
Of course, in legal terms it would be tremendously complicated to identify the moment in which such a step has been taken, and even more so bearing in mind the SC's discretionality both to determine the existence of threats to peace and security and to decide on the measures to oppose them, including creating norms. However, that discretion is clearly overstepped if the SC uses it to impose abstract norms of general scope that meet significant opposition in the GA.
IV. THE LEGISLATIVE NATURE OF SOME SC RESOLUTIONS
As a first step to the analysis of the scope of the SC's normative competence, it is necessary to decide whether Resolutions 1373 and 1540 effectively constitute legislative acts, and whether they are truly new, even revolutionary, in the SC's practice.
Of all the precedents in the SC's activity, the creation of international criminal courts has probably been the most clearly legislative.Footnote 36 The approval of the Statutes of those courts, in which the crimes to be judged and the procedural norms are laid down, can only be described as a normative act, and in the Tadić case, the ICTY recognized the SC's competence to carry out such acts.Footnote 37 These assertions do not contradict the fact that in its report on the creation of ICTY, the Secretary-General stated that by punishing serious violations of international humanitarian law, ‘the SC would not be creating or purporting to “legislate” that law’.Footnote 38 These considerations were directed at refuting the violation of the principle nullum crimen, nulla poena sine lege.Footnote 39
In any case, the procedural norms set out in the Statutes,Footnote 40 or their provisions relating to their competence ratione personae, are enough to describe their content as legislative. Moreover, the fact that two members of the SC showed, when Resolution 827 (1993)Footnote 41 was adopted (under which the ICTY was created), that they would have preferred this institution to have been set up through an international treaty, demonstrates the legislative nature of such a Resolution.Footnote 42
With this background, it has to be recognized that many of the obligations imposed by the SC in Resolution 1373 had already been included in earlier resolutions of the GA as derived from customary international law,Footnote 43 and that other obligations established in the same Resolution had been set out in the International Convention for the Suppression of the Financing of Terrorism.Footnote 44
On the other hand, it must be remembered that prior to 11 September 2001, the SC had already condemned terrorism in general terms and without referring to any specific attack in Resolution 1269 (1999).Footnote 45 Nevertheless, it had done so without inferring from that condemnation the imposition of any specific obligation on Member States, beyond the explicit backing mentioned in that Resolution to the Declaration annexed to Resolution 49/60 of the GA.
All these antecedents enable us to understand the evolution that led to the drafting of Resolution 1373, but cannot hide its revolutionary nature. With this Resolution, for the first time the SC acted by establishing general, permanentFootnote 46 obligations, unconnected to any given controversy. They are new obligations—or at least some of them areFootnote 47—created by the SC, so the argument that this institution is limited to codifying pre-existing law cannot be defended. The Resolution imposes on all States, independently of their relation to the terrorist phenomenon, the adoption of a series of penal, administrative and procedural measures that require legislative reforms in national law. Therefore, the legislative (and not the administrative regulatoryFootnote 48) nature of Resolution 1373 is clear. Besides, most of the doctrine understands it that way.Footnote 49
The normative nature of the Resolution is well demonstrated if its effects are compared with the conclusion of a multilateral convention in which all the members of the United Nations appeared as parties. An instrument of that nature would have brought about the same consequences, but with the advantage that Resolution 1373 produces immediate effects without having to wait for the slow process of ratification, and furthermore guarantees that all countries are bound by it.Footnote 50 Another legal difference with the option of the Resolution is that the latter is not ruled by the 1969 Vienna Convention on the Law of Treaties for its modification, interpretation or the control of its compliance. It is the SC itself that carries out all those functions. In short, we find a formidable accumulation of power because of the concentration of normative and executive powers in a single organ.
Also related to the terrorist phenomenon, Resolution 1540 (2004) of the SC,Footnote 51 dealing with the non-proliferation of weapons of mass destruction, reproduces various of the essential characteristics of Resolution 1373: it establishes general obligations on all States, relating to an international problem on which the GA had pronounced with consensus,Footnote 52 and sets up a Committee to evaluate the reports that the members of the organization have to present on the application of the Resolution.Footnote 53
Again this is a basically normative Resolution of the SC that sought to fill a gap in the international law then in force:Footnote 54 it aims to prevent terrorist groups from having access to nuclear, biological or chemical weapons. In the face of that possibility, qualified on repeated occasions by the SC as a ‘threat to international peace and security’, this body has not hesitated to approve (unanimously) another legislative Resolution of universal scope, which obliges all States to adopt specific normative provisions in their domestic law, including the application of penal or civil sanctions for certain acts.Footnote 55
In the same line, the SC has consolidated its role as a general watchdog over specific international problems, adopting decisions with suitable sanctions for those subjects of international law who contravene its instructions. Thus, for example, in its Resolution 1612 (2005) it has created a working group to examine the reports presented by the parties to a conflict, previously identified in a report of the Secretary-General, with a view even to adopting sanctions against those who do not respect the rights of children in armed conflicts.Footnote 56 In this way, the obligation contained in Article 38 of the 1989 UN Convention on the Rights of the Child is extended to all States, and provided with a surveillance and sanction mechanism not envisaged by the Convention.
In short, SC normative Resolutions in the fight against terrorism are no isolated act, an accident justified by the pressures of a given moment in history, but are rather the starting point for a new dimension in its functions. In the absence of other more efficient international mechanisms, the SC has decided to tackle some of the challenges of international security by redefining its role and its functions, although it does so by using the same legal grounds as it did in the past: Chapter VII of the Charter. Thus it puts in place the basis to enable it to go beyond the traditional instruments for the creation of international norms in the field of security in the international legal system.
V. THE LIMITS OF THE NORMATIVE COMPETENCE OF THE SC
A. Legal Limits
In the first place, it should be remembered that the SC is an organ of an international organization. In consequence, the constituent treaty of the organization is the foundation and, at the same time, the limit, of its competences. In that context, the reading of Articles 24–26 of the Charter indicates that the mission of the SC is the maintenance of international peace and security, and that it has been given a series of powers to fulfil that role that ‘are laid down in Chapters VI, VII, VIII and XII’ (Article 24 (2) of the Charter). Therefore, the SC's powers are regulated.
Thus, for example, Article 26 of the Charter imposes an explicit limit on the SC's normative powers when it envisages that in matters of disarmament and regulation of armaments, this institution can formulate ‘plans to be submitted to the Members of the United Nations’ that enable the resources dedicated by States to that activity to be reduced. This means that, although the SC can impose obligations to disarm on a given State when it considers that its arsenals constitute a threat to international peace and security (Chapter VII of the Charter),Footnote 57 this institution has no capacity to establish a universal system of regulation of armaments, since this would only be possible through a multilateral agreement that enjoyed the consent of the States. This demonstrates the importance given by the Charter to State consent as the source of international obligations, and the exceptional character that any normative activity by the SC should have.Footnote 58
Similarly, the Charter makes express reference to certain general limits that the SC must respect in the development of its functions. The second paragraph of Article 24 indicates that ‘the Security Council shall act in accordance with the Purposes and Principles of the United Nations'. These purposes and principles are those set out in Articles 1 and 2 of the Charter,Footnote 59 and have been developed by GA Resolution 2625 (XXV), which nowadays is universally accepted as a central element of the model of legitimacy articulated around the United Nations. From these truly elemental considerations, the first limits to the SC's normative capacity must be deduced: it has to confine itself to questions directly tied to the maintenance of international peace and security, and must scrupulously respect both the purposes and principles of the Charter and the specific provisions that regulate the SC's functions and powers.Footnote 60
A second limit to the SC's legislative capacity is imposed by the need to respect general international law. To ground this requirement, it is enough to recall that the SC is a body of an international organization, and that it has to be presumed that all international organizations, as subjects of the international legal system, are bound by the norms of general international law.Footnote 61
That said, in the particular law of an international organization, nothing prevents it from authorizing a body to act without regard for the ius dispositivum of general international law in its relations with Member States. As no normative hierarchy exists between distinct international norms, the principle lex posterior derogat priori governs, and the Charter can enable the SC to act outside international law,Footnote 62 in given circumstances, and always provided that it respects the ius cogens.Footnote 63
The preparatory work of Article 1 (1) of the Charter provides sound arguments to maintain that the SC, when it ‘adopts efficient collective measures to prevent and eliminate threats to peace’ in crisis situations, can disregard the ius dispositivum of international law without questioning the validity or binding nature of its decisions.Footnote 64 In particular, the purpose was to enable this institution to put an end to hostilities in armed conflicts, without having to decide on the rights of the parties in conflict in accordance with the international legal order. However, apart from exceptional circumstances such as these, no provision of the Charter authorizes the SC to violate international law.Footnote 65
Hence, when the SC establishes general rules whose validity is not subject to a time limit, and is not dealing with a specific crisis, but seeking to give an answer in the medium to long term to a permanent threat to international peace and security, it is bound by general international law, and lacks authority to derogate these norms, which result from inter-State consensus. In this context, it is revealing that the SC has taken care to reiterate on numerous occasions that it acts in accord with international law, in a clear effort to reinforce the legitimacy of its actions.Footnote 66 In the same way, the members of the SC usually refer to the consistency between the Resolutions and the norms of international law as justification of the positive nature of their vote.Footnote 67 Additionally, international jurisprudence provides arguments from which the SC's general obligation to respect international law seems to be deduced.Footnote 68
The question of determining whether the SC can modify or annul the effects of international treaties in force is more controversial. In the debates that took place while approving SC Resolutions 1422 (2002) and 1487 (2003), numerous States stated that such Resolutions entailed a modification of the Statute of the International Criminal Court, and that the SC lacked power to act in that manner.Footnote 69
Unlike the situation with customary international law, the Charter does provide a literal argument for those who defend the pre-eminence of SC Resolutions over the provisions of any international convention. Its Article 103 establishes that, ‘in the event of a conflict between the obligations of the Member States … under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. In fact, interpreting this provision in the Lockerbie case, the ICJ considered that, prima facie, the Court could not protect the rights of the Libyans under the 1971 Montreal Convention for the adoption of cautionary measures, to the extent that these seemed incompatible with the provisions of SC Resolution 748 (1992).Footnote 70
In any case, Article 103 of the Charter must be interpreted in a manner compatible with the principle of sovereignty (set out in Article 2 (1) of that same text), which is the cornerstone of international law, a consensual legal order. This leads one to think that, although the SC can make the ‘obligations’ that it imposes in a particular matter prevail over those foreseen in any international treaty apart from the Charter, it lacks the competence to modify or interpret those international conventions, since this would be only in the hands of the States who were party to them. For the same reasons, no State can be obliged to ratify a given international convention.Footnote 71
However, Article 103 seems a sufficient legal basis to permit the SC, in an extreme case, to declare that a particular provision of an international treaty constitutes a threat to international peace and security, demanding the States Parties not to comply with it. In this line, although it is a controversial question, I think that the same argument would seem strong enough to justify the pre-eminence of the SC's legislative Resolutions over the norms of conventional law,Footnote 72 since it must be presumed that its demands are justified by the need to safeguard international peace and security, on the basis of Articles 25 and 103 of the Charter.
Nevertheless, three limits can be identified that qualify this formidable power of the SC: first, it has to be competent to adopt the Resolution;Footnote 73 secondly, it has to respect the norms of general international law, since, in principle, as indicated above, these also bind the SC; thirdly, respect for the principle of sovereignty compels this organ to make an effort of self-restraint, limiting itself to adopting the measures which are indispensable to the maintenance of international peace and security. In short, the SC would be acting ultra vires, if it used the powers that Chapter VII of the Charter confers on it to modify the rights and obligations of States party to a treaty, if it is not indispensable for safeguarding international security.Footnote 74
These last reflections lead us to examine another legal limit to the SC's discretionality: respect for the principle of proportionality. In various provisions of the Charter reference is made to enabling the SC to adopt the measures ‘necessary’ for the maintenance of international peace and security.Footnote 75 From this it can be inferred that the SC cannot go beyond what is indispensable when using the exceptional powers conferred by Chapter VII of the Charter.Footnote 76 The fact that Article 2 (7) of that same text states as a general principle that the United Nations shall not intervene in the internal affairs of States, and puts forward as an exception the application of ‘enforcement measures’ laid down in Chapter VII, would also lead to a restrictive interpretation of the SC's capacity to intervene in that context.Footnote 77
Nevertheless, it has to be said that in practice this principle has played a very modest role as a limit on the SC's discretion. It is the SC itself that decides on the necessity for its actions, and on their scope,Footnote 78 without any direct mechanism of legal review of its decisions. On many occasions, an evaluation of respect for the principle of proportionality depends on a rule of reason that will be mediated by political considerations, over which no legal control in the strict sense can be exercised. All this gives the SC an enormous margin of appreciation. In consequence, respect for this principle constitutes a rather theoretical limit that until now has not had any relevant function in demarcating the SC's powers.
B. Political Limits
The vitality the SC has acquired since the beginning of the 1990s has enabled it to become progressively aware of its potential. In that process, it has ceased to respond exclusively to concrete incidents, paying attention to some problems from an ever more general perspective, developing medium- and short-term policies in various fields related to international peace and security.Footnote 79
In any case, it is undeniable that Resolution 1373 (2001) entailed a widening of the powers traditionally assigned to the SC. Although sound arguments can be put forward to defend the ‘constitutionality’ of its normative competence (as well as the contrary opinion), almost nobody postulated this possibility openly before 1990. There is no doubt that Resolution 1373 of the SC was approved in an emotionally charged atmosphere. The closeness of the 11 September attacks clearly influenced the drafting of a text that introduced substantial innovations in the conception that the SC itself had of its mission and its powers on the basis of Chapter VII of the Charter. However, in spite of the pressure of the moment, the Member States of the United Nations were fully conscious of the historic step they were taking.Footnote 80
Although it would have been better to take this type of decision after a pause for reflection, which would have permitted an express and generalized consensus of the international community on the reinterpretation of Chapter VII of the Charter,Footnote 81 it is no less true that a process of that nature could have dragged on forever, and that at times history precipitates innovations, when the circumstances move in that direction. Nevertheless, the legitimacy of Resolution 1373 does not depend so much on the situation in which it was adopted as on its acceptance by the generality of States.
Here, it should be indicated that in the debates on the measures to eliminate international terrorism that took place in the GA in the days immediately after the adoption of Resolution 1373, the States' representatives systematically supported it, while at the same time they encouraged the prompt ratification of the 1999 Convention for the Suppression of the Financing of Terrorism by those States who still had not done so.Footnote 82 Subsequently, in successive Resolutions, the GA has expressly backed Resolution 1373, reminding States of its binding nature and encouraging them to adopt the measures necessary to ensure its full compliance.Footnote 83
Despite this, in the discussions leading up to the adoption of Resolution 1540 (2004),Footnote 84 an ever-greater number of States criticized the Council's growing legislative work, questioning its capacity to act as a universal legislator, when imposing obligations that could only be assumed under the expression of consent in an international treaty.Footnote 85 In any case, it must be made clear that these criticisms were directed at the formula chosen for the establishment of norms (SC Resolution), and not at their content, on which there was a broad consensus. These types of arguments have been repeated in the debates on subsequent Resolutions.Footnote 86
Therefore, until now, the States have accepted the SC's legislative initiatives,Footnote 87 but have shown that this way of proceeding has its legal and political limits.Footnote 88 The use of this fast track for creating obligations has been justified to the international community by its effectivenessFootnote 89 in the generalization of obligations that enjoy wide international consensus. As against the exasperating slowness with which the GA's normative projects progress,Footnote 90 which afterwards require various years to come into forceFootnote 91 (due to the delays typical of all ratification processes of conventions that seek universality), it offers an expeditious formula,Footnote 92 which gives worldwide cover, ‘in order to ensure prompt and effective action by the United Nations (Article 24 (1) of the Charter).
However, this new formula can only be effective if it is perceived as legitimate by the vast majority of States, that is if the SC continues establishing in its Resolutions obligations on which there is a high degree of international consensus.Footnote 93 If a significant group of States considers that the line that delimits the essential elements of their sovereign capacity of decision has been overstepped, and they deliberately cease to cooperate with the SC, its Resolutions will stop being efficient, and a crack will have been opened up that will be difficult to repair in the already deteriorated building that houses the collective security system of the United Nations.
To achieve broad international consensus in the SC, it is not enough to obtain nine votes in favour of a Resolution, including the five permanent membersFootnote 94 (Article 27 (3) of the Charter). Although this in itself is a first political filter,Footnote 95 the SC does not have a large enough membership to assume that capacity of representation.
The participation of all States that desire to do so in the preparatory work seems to be a necessary political condition in drawing up this type of Resolution.Footnote 96 This involvement would enable us to asses whether its content effectively meets with international consensus. Fortunately, this is the direction in which the SC practice appears to be heading, because in the drafting of Resolution 1540 (2004) all States that requested it were permitted to intervene.Footnote 97 Although Article 31 of the Charter gives the SC itself the power to decide whether States that are not members of this institution can participate (with voice but without vote) in its deliberations,Footnote 98 the usual practice is for the Council to invite all States that request it to its meetings.Footnote 99 Any future normative Resolution should follow this precedent, rather than that of Resolution 1373, approved in scarcely 48 hours and without an explanatory session for the vote.Footnote 100
C. Practical Limits
The normative resolutions of the SC must be implemented by the Member States in accordance with their respective constitutional procedures and their technical, economic and human possibilities.Footnote 101 Logically, that reality determines the content of SC Resolutions, since they can only impose rules that can be universally applied within a reasonable time, if such Resolutions are not to be mere statements of intent, or even worthless paper.
Thus, for example, although the States have for the most part complied with the obligation to present the reports required under Resolution 1373 (2001), that does not mean that all the measures included in it have been put into practice.Footnote 102 In particular, the work of the CTC has shown the enormous amount of technical assistance that will be needed for many countries really to be able to apply the Resolution.Footnote 103 Compliance with the obligation to present reports under Resolution 1540 (2004) has been rather less, and some of the States that have cooperated made it clear that they did not consider it necessary to promulgate special laws to control the use, sale or transport of weapons of mass destruction or connected materials that are not found on their territory.Footnote 104 In this sense, the more complex the SC Resolutions, the less stringently must their content be considered, so that the only thing that can be demanded of numerous States is that they should not adopt an attitude manifestly opposed to their compliance.
VI. SC LEGISLATIVE RESOLUTIONS AND PROCEDURES FOR THE FORMATION OF INTERNATIONAL LAW
State consent is found in the origin of the creation of all international obligations. The nexus between State consent and the formation of international norms is more evident in the case of international treaties and customary international law; however, that nexus is more indirect in the case of the acts of international organizations, since in that case it is the consent of the State to be bound by the constituent treaty of the organization that compels the State to comply with the organization's binding decisions.
That greater distance between State consent and the genesis of international obligations in the acts of international organizations has generated some doctrinal debate. Tomuschat has come to describe as ‘fictitious’ the argument that the obligatory force of an act adopted by the majority in an international organization, against the will of a State, has its origin in that State's consent. He bases that on the evolutionary interpretation of the provisions of constituent treaties that, at times, leads international organizations to exercise competences that were not foreseen at the time they were created.Footnote 105
Although this theory appears attractive, I cannot share that view of the relativization of the role of State consent, which, in the end, would lead to announcing the overcoming of the principle of State sovereignty. In the first place, the obligations directly derived from the constituent treaty must be clearly distinguished from those imposed by the institutional law of the organization. Evidently these must be different obligations, since otherwise, that institutional law would not be necessary. What is indispensable is that the organ that adopts a binding decision has competence to do so, because there is a legal basis in the constituent treaty that gives it such a capacity. Therefore, when a State agrees to participate in an organization in which there are bodies with specific normative functions, the State consents to be bound by the obligatory decisions of those bodies, always provided that they are acting within the framework of their competences.Footnote 106
Those principles are not lessened by the passing of time or by the creativity of the organ in the exercise of its normative functions. Moreover, by consenting to be bound by the treaty, the State not only assumes obligations, but also rights. In particular, the Member State can use all the mechanisms that the constituent treaty offers to defend its sovereign competences and, in any case, is not obliged to comply with institutional decisions of the organization if it is acting ultra vires.Footnote 107 These guarantees, conferred when the constituent treaty is ratified, but which remain in force throughout its existence (however long that may be), mark the limits of State consent to be bound, and hence the limits of the international organization's normative capacity.
This is the framework within which one has to evaluate the statements of a broad sector of the doctrine who consider that SC Resolutions 1373 and 1540 deviate from the traditional method of creating multilateral obligations,Footnote 108 or that they have substituted the conventional procedure for drawing up norms at the international level.Footnote 109 In my opinion, the legislative initiatives of the SC must continue to be situated within the general theory of international organizations' acts, both for their adequate understanding and for the determination of their limits. I do not think, therefore, that we find ourselves before a new means of creating international obligations.Footnote 110
Comment has already been made on the reasons why it seems possible to deduce from a flexible and evolutionary interpretation of the CharterFootnote 111 the SC's capacity to lay down rules of general scope and indefinite legal effect, with the aim to confront direct threats to international peace and security that pose urgent challenges. Nevertheless, at the same time, there are significant limits on this normative power so that we cannot speak of a general legislative competence or of a universal legislator. This is so, first, because the SC can only lay down rules in relation to the safeguarding of international peace and security. Secondly, it must be done respecting the text of the Charter, which imposes fundamental procedural and material obligations. Furthermore, as previously pointed out, the SC must respect general international law when approving legislative initiatives.
To all these legal limits we must add the political limits faced by this type of decision and, in particular, the impossibility of acting with a minimum of efficiency in fields where no broad international consensus is found. In this sense, the enormous differences that exist between one State and another oblige the SC to formulate very general norms, in which the distinct countries have leeway both for the interpretation of the rules and in the choice of the mechanisms used to apply them. In such circumstances, it is most likely that recourse to normative Resolutions will not be common in the SC. The practice subsequent to Resolution 1373, and the debates following Resolution 1540, seem to indicate as much.Footnote 112
In any case, it is not possible to predict the future and once one sets out on a journey, one often does not know where it will end. The widening of the notion of threat to peace from the beginning of the 1990s could lead the Council to adopt normative Resolutions in many spheres more or less related to international peace and security, which would end by transforming it into a true universal legislator.Footnote 113 Nevertheless, the limits that have just been outlined should prevent that drift.
In these circumstances, it does not seem that the SC normative Resolutions can substitute, or even overshadow, the task of codification and progressive development of international law which is driven by the GA and its subsidiary organs. First, because of the SC's unique subject-matter: international peace and security. Secondly, even in that sphere, the development of more plural negotiations will be necessary to reach universal consensus in many matters, and this only seems possible in the more heterogeneous framework of the GA.Footnote 114 To some extent, there could be greater collaboration between both organs. For example, the adoption of SC Resolution 1540 (2004), not only did not prejudice the deliberations developed in the GA for the adoption of an International Convention for the Suppression of Acts of Nuclear Terrorism, but rather its measures are perfectly complementary with the agreement finally reached.Footnote 115
Moreover, in its normative Resolutions, the SC is obliged to respect general international law and, therefore, the codification conventions, to the extent that they codify customary international law.Footnote 116 As has been submitted in this article, the SC can only act outside that general international law in exceptional circumstances and for specific cases. Moreover, it is subject to the norms of ius cogens in any case.Footnote 117
Until now, however, the role of the SC has been very modest in the consolidation or generation of customary international law.Footnote 118 Due to its restricted composition, it does not seem to be the most appropriate institution to show the existence of a universal opinio iuris,Footnote 119 and for its traditional task in dealing with specific cases, it was not thought that its actions, at times erratic and incoherent, were evidence of a uniform and constant practice.Footnote 120 This situation could change in relation to the normative Resolutions, that for the most part do not include customary international law, but rather create new obligations. As these are grouped together in a universally binding decision of the SC, it could have the effect of generating an international custom, above all if its future Resolutions continue to lay down (as has occurred until now) rules that enjoy broad international backing.
VII. CONCLUSIONS
Obviously, the panorama described shows a far from satisfactory situation. Not even the most ardent supporters of the SC's normative capacity would dispute that it was not created to legislate. As a consequence of that, the adoption of normative Resolutions generates various dysfunctions in the UN system and attracts no few criticisms. However, since this type of initiative can be repeated in the future, it is worth considering the realistic possibilities of improving this system of creating international obligations.
The work of the Counter Terrorism Committee (CTC) shows the main lines along which this form of activity must be conducted. This Committee works from a promotional perspective, focusing on aiding Member States to achieve the construction of a legislative and executive framework that permits them to pursue terrorists and their activities with greater efficiency. From that standpoint, each country is given a wide margin of discretion, as the economic circumstances, human resources and social reality vary enormously. The examination of the reports presented by the States and the visits to the different countries, at least until now, are more concerned with the technical assistance than with control over compliance with the Resolution. This has facilitated the generalized acceptance of Resolution 1373, and has stimulated cooperation with the CTC.Footnote 121
Of course, the SC must limit itself to responding to urgent questions that can admit no delay in their regulation and on which there is broad international consensus. This should not prevent the parallel negotiation of more detailed international conventions on the same subjects in the GA context, but should rather stimulate it. The setting up of the International Criminal Court, created to put an end to the proliferation of ad hoc criminal tribunals, is a good example of the right dynamic.Footnote 122
Nevertheless, any attempt to increase substantially the legitimacy of the procedure for the adoption of legislative Resolutions by the SC requires the institutional reform of the United Nations. On one hand, the SC has to be reformed, adding to the number of its members to make it more representative,Footnote 123 or demanding unanimity for this type of Resolutions. On the other, clearer and more explicit legal limits to that normative capacity should be established, so that the GA's competences in that process would be reinforced. In this sense, a limit could be set to the time these Resolutions remain in force, or their validation/derogation by the GA could be stipulated. Finally, the jurisdiction of the ICJ should be amended to institute a direct mechanism to facilitate the exercise of a legal control.Footnote 124 The great discretion that the Charter confers on the SC protects it from ill-founded proceedings, and the prima facie validity of its Resolutions prevents their effectiveness and application from being questioned in the short and medium term. It could even be argued such a judicial review would contribute to legitimating the Council's ‘new’ powers, by consolidating in the UN system one of the main factors limiting arbitrariness in the rule of law.
In the absence of those reforms, the dangers hidden behind the SC's normative activity are many and serious. It cannot be ruled out that, at a given moment, a SC under pressure from the circumstances would opt to impose general obligations, with the aim to break the tough opposition of a significant group of States to accept certain compromises. However, the international legal order is based on State consent, as a corollary of an international society made up of independent sovereign States. If the foundations are attacked, the whole edifice can collapse.
