An Article by Edward Grodin

Abstract

In the aftermath of 9/11, collective action, particularly through the United Nations Security Council (UNSC), has emerged as a central tool in the fight against terrorism. UNSC Resolution 1373 (2001) represented a novel way to wield this tool. For the first time, an organ of an intergovernmental organization created what amounts to proactive legislation applicable to all Member States . This paper will use the case of Resolution 1373 to explore the deficiencies of the Arenas of Power model developed by Theodore Lowi, John L. Senior Professor of American Institutions at Cornell University and author of The End of Liberalism, in effectively characterizing such policy made at the international level. As will be argued, a globalized world with a fully-embedded international system has opened the doors for a fundamentally new way to forcibly export and import law, and thus policy, via international institutions.

About the Author

Edward Grodin is a Fellow at the Cornell Institute for Public Affairs at Cornell University, pursuing a Master of Public Administration degree with a concentration in Government, Politics and Policy. He received a Bachelor of Arts in History with a minor in European Union Studies from the University of Florida in 2010. He was inducted into Phi Beta Kappa and received a summa cum laude designation for his senior honors thesis examining the anti-Semitic racial laws promulgated in Fascist Italy.

Introduction

Much has changed in the world since the publishing of Theodore Lowi’s The End of Liberalism in 1969. New threats and challenges hold worldwide consequences like they never have before. In the aftermath of 9/11, perhaps no umbrella policy of the United States government has been as existentially important as the global “war on terrorism.” This approach has fundamentally redefined ‘national security’ as a concept and called into question the United States’ relationship with the rest of the world. Implicated in this shifting notion of security is the issue of collective responses to terrorism at the international level. As the center of such multilateral deliberation, the United Nations (UN) has served as the symbol of international law and norms. The UN Security Council, consisting of five permanent and ten rotating members, has become the hub of international peace and security issues. In particular, Chapter VII of the UN Charter bestowed upon the Security Council the power to act definitively on matters of security. Such action ranges from optional to mandatory, with mandatory powers understood as reactive against a specific state’s behavior (i.e. situational).

That paradigm ended with UN Security Council Resolution 1373. For the first time, an organ of an intergovernmental organization created what amounts to proactive legislation at the international level. In essence, it required all 191 members of the UN to adopt certain prescribed counterterrorism policies. Considering that the creation of international law has traditionally rested exclusively within the purview of nation-states, this development clearly illustrated a novel approach. While other scholars have adeptly discussed the implications of the resolution for public international law, this paper will draw upon this story as a case study in policy analysis. It will explore the potential deficiencies of the Arena of Powers model developed by Theodore Lowi, John L. Senior Professor of American Institutions at Cornell University and author of The End of Liberalism, in effectively characterizing policy made at the international level. Most of all, this paper will seek to answer the question: How should scholars understand policy imposed upon entire countries from above? The answer, as will be shown, attests to the novelty of Resolution 1373 itself; a globalized world with a fully-embedded international system has opened the doors for a fundamentally new way to forcibly export and import law, and thus policy via international institutions. As such, the world is being made safe for democracy, not the other way around.

The Powers [1] 

The United Nations Charter established within the United Nations structure an organ known as the Security Council. Chapter V Article 24 stated that the Security Council shall as its primary responsibility ensure the “maintenance of international peace and security.” Chapter VII, entitled “Action with respect to threats to the peace, breaches of the peace, and acts of aggression,” laid out the Security Council’s power with respect to both determining and responding to such threats or acts. Most pertinently, Article 41 provided the Security Council with the ability to authorize non-military action:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Similarly, Article 42 permitted military action should the Security Council deem an Article 41 response inadequate to address an issue. Furthermore, Article 48 made any decision of the Security Council binding upon Member States .[2] Lastly, Article 51 embedded a right to self-defense within the Security Council framework:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence [sic] if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence [sic] shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Thus, the Security Council can make binding military and non-military decisions on behalf of all UN Member States . These States are then expected to apply such measures domestically.

The Story: Pre-Resolution 1373          

Prior to 9/11, the UN Security Council’s approach to targeting issues of terrorism was much less compulsory and much more direct. This method adhered to pre-9/11 assumptions about the use of Chapter VII power in that sanctions were clearly intended for a specific state or “concrete security threats.”[3] For example, Resolution 1267 (1999) established a sanctions regime against the Taliban.[4] All states were obliged to freeze assets and refuse entry or arrival of aircraft affiliated with the Taliban government. The Security Council also formed a committee to monitor the implementation of the resolution, including review of reports submitted by each member country. This committee was further empowered to keep a running list of individuals whose assets could be frozen. Building upon this foundation, Resolution 1333 (2000) banned the sale of weaponry as well as the provision of military assistance to the Taliban.[5] Furthermore, states had to ensure the closure of Taliban offices within their jurisdiction. In July 2000, the Security Council approved Resolution 1363, which primarily reinforced its commitment to monitoring progress on Resolution 1267.[6] It is important to note that the Security Council merely “urged” Member States to “enforce and strengthen” domestic legislation aimed at compliance with resolutions 1267 and 1333. As such, the legal language implied a request, not a mandate. Kim Scheppele, Director of the Program in Law and Public Affairs at Princeton University’s Woodrow Wilson School and a primary critic of Resolution 1373, notes that these resolutions typified the pre-9/11 approach: “singling out a particular state for sanctions and only requiring actions from all Member States in order to enforce this narrowly tailored objective.”[7]

When addressing the overall problem of terrorism, the Security Council never imposed broad obligations on all states backed by the threat of sanction. In Resolution 1269 (1999), the Security Council employed the non-binding language of “calls upon” to encourage states to cooperate on matters of terrorism prevention.[8] Even the Security Council’s immediate response to 9/11 did not demand action by all members. Resolution 1368, passed on September 12, 2001, avoided use of the imperative “decides” and instead opted for “calls on.”[9] The called-upon states were persuaded to “redouble their efforts” in terrorism prevention. This was hardly a mandate for action. Therefore, these resolutions served more as lofty statements of principle than legal obligations for all UN members, even though they were not directed at a particular state. This approach accords with the historical usage of Chapter VII powers as described above.

The Law

On September 28, 2001, less than three weeks after the 9/11 attacks, the UN Security Council convened for less than five minutes to pass extraordinary, unprecedented measures in counterterrorism policy under Resolution 1373.[10] Scheppele argues that it represented an “essentially legislative resolution that, for the first time in the Security Council’s history, used binding authority under Chapter VII of the UN Charter to require all Member States to change their domestic laws in very specific ways.”[11] Matthew Happold, Professor of Public International Law at the University of Luxembourg, also asserts that it is “in the form of a legislative act or statute…a unilateral act imposing a series of general obligations binding on all UN Member States .”[12] Finally, Monika Heupel, Research Fellow at the Social Science Research Center Berlin’s program on Transnational Conflicts and International Institutions, emphasizes that the novelty of Resolution 1373 lies in the generic nature of the responsibilities as well as the fact that the Security Council declared “any act of terrorism per se…a threat to international peace and security.”[13]

The shift is apparent from the very beginning of Resolution 1373. Section 1 begins, “[d]ecides that all States shall,” indicating both mandatory language and universal applicability. Four policies follow: (1) preventing and suppressing the financing of terrorist acts; (2) criminalizing terrorist funding (direct and indirect); (3) freezing assets of terrorists and any participants or accomplices; (4) prohibiting citizens from financially aiding terrorists. Section 2 demands even more active participation of all Member States . Section 2(a) implores them to abstain from “any form of support, active or passive” which would benefit a terrorist or affiliated organization, including “by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists.” Subsection (b) invoked a vague duty to take “necessary steps to prevent the commission of terrorist acts.” Other subsections required states to deny safe haven to terrorists, prevent them from launching attacks against other states, and make sure that they are “brought to justice.” While these obligations impliedly expect Member States to act, they do not explicitly necessitate a domestic legal transformation.

After laying out these general responsibilities, the “Security Council starts legislating.”[14] In addition to bringing terrorists to justice, the resolution declares that states had to ensure that “such terrorist acts are established as serious criminal offences in domestic laws and regulations” with punishment appropriate to the seriousness of the act. States were also expected to give 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.” Finally, all countries had to institute immigration reforms through “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.” Scheppele contends that taken together these measures delve “deeply into the domestic laws of states, into the area of criminal justice and procedure which often tend to have constitutional implications.”[15] Furthermore, nothing in Resolution 1373 qualifies these responsibilities with human rights protections.[16] Clearly, such regulations held dire implications for sovereign policymaking.

The remainder of the statute used non-binding language, with one notable exception. The Security Council returned to “calls upon” to urge Member States to cooperate in the prevention of terrorist acts, exchange relevant information, ratify any pending international conventions on counterterrorism matters, and carefully evaluate applications for refugee status. Only in relation to this non-binding wording did any reference to human rights concerns emerge. In section 6, the Security Council returned to its obligatory wording and decided to create a Counter-Terrorism Committee (CTC) to monitor the implementation of Resolution 1373. States had to report to the CTC within 90 days regarding their progress. This committee thus serves as the compliance board for Resolution 1373’s novel imposition of international law upon sovereign states. Yet, like most international organizations, it lacks direct enforcement power and operates under the vague mandate of raising “the average level of government performance against terrorism across the globe.”[17] As a product of Chapter VII, the legally binding nature of the resolution represents the only significant enforcement mechanism outside of ‘naming and shaming’ (i.e. identifying noncompliant members and publicly excoriating them).[18]

A number of definitional problems arise from these mandates. First, what constitutes a “terrorist act?” Even more broadly, what qualifies as “terrorism?” Or better yet, who counts as a “terrorist” or a “participant?” As has been discussed above, prior resolutions of the Security Council targeted a specific country (i.e. Afghanistan) or government (i.e. The Taliban) accused of delinquent behavior. The lack of definitions meant that domestic actors were granted fairly wide latitude in their translation of the resolution into domestic law.[19] Not surprisingly, Scheppele finds that definitions of terrorism came to “reflect the political programs of the individual states.”[20] Another part of the reason may be that “the inevitable politicization of terrorism renders any search for a consensus definition futile.”[21] Accordingly, Eric Rosand, Senior Advisor on Multilateral Counterterrorism Engagement at US Department of State, argues that the sponsors of Resolution 1373 wanted to avoid lengthy, divisive debate on the bill and consciously omitted any definitions in order to get it passed swiftly.[22]


The Story: Post-Resolution 1373

On October 7, 2001, nine days after the passage of Resolution 1373, the US commenced Operation Enduring Freedom in Afghanistan and, in doing so, the Global War on Terror. This strategic vision of the world as one of permanent, transnational, decentralized, and existential threat categorically changed the ways in which the United States and other governments conceived of their power to act. Less than one month later, the Security Council passed Resolution 1377 reaffirming the aims of Resolution 1373. Among other things, the resolution called upon the CTC to assist Member States with its implementation including “the preparation of model laws.”[23]

Clearly, the shock of 9/11 prompted a paradigm shift within the Security Council. Its “legislative” capacity proved durable as its pursuit of international counterterrorism standardization widened. Resolution 1390 (2002) gave observers all the more reason to believe in this new direction.[24] The first clear indication was the prevalent use of the binding “decides” language in the resolution. Moreover, Osama bin Laden (an individual), Al Qaeda (an organization), and any associated group or entity were targeted. This list reflected the continuing expansion of sanctions to non-state actors. States were directed to freeze the assets of those persons or groups placed on the Sanctions Committee list (created under Resolution 1267). They were also expected to prevent the transfer of any form of weaponry, and bar entry into or travel through their territory unless otherwise allowed on a case-by-case basis by the Sanctions Committee. The latter provision holds due process implications as international movement of those on the list now operated at the behest of the Security Council. In one year, the Sanctions Committee would review these measures to decide whether or not to further develop them.

This trend continued as events shaped international responses. Acts of terrorism in 2002 in Bali and Moscow provided occasions to explicitly remind Member States of their commitments under Resolution 1373 through Resolutions 1438 and 1440.[25] Resolution 1455 followed in early 2003. The Security Council encouraged States to not only strengthen domestic laws against citizens on the sanction list, but also refer names of new individuals to the Sanctions Committee for review.[26] The review procedures lacked transparency especially in “standards of evidence generally or in defining the standard of proof that must be met for listing a specific individual more particularly.”[27] Furthermore, in a meeting of the Security Council at the foreign minister level, the Security Council adopted Resolution 1456 (2003).[28] This declaration took a hard line with respect to the CTC’s mandate. In particular, the Security Council admonished States that had not yet reported pursuant to Resolution 1373 and urged the CTC to step up its oversight of country reports. Recognizing such problems with the implementation of Resolution 1373, the Security Council passed Resolution 1535 (2004), directly acknowledging in the preamble the “special nature of Resolution 1373.”[29] This resolution created a new committee known as the Counterterrorism Committee Executive Directorate (CTED) to assist the CTC and address difficulties in monitoring progress on Resolution 1373’s implementation. Thus, not only was the Security Council legislating, but it also assumed a quasi-judicial role in the due process of targeted individuals and quasi-administrative role in the implementation of Resolution 1373.

The Law Redux

As time progressed, Resolution 1373 served as precedent in the ongoing Global War on Terror for another landmark statute: Resolution 1540.[30] Peter Crail, research analyst at the Arms Control Association, notes that, like Resolution 1373, 1540 was a U.S. initiative prompted by President George W. Bush’s speech to the UN General Assembly in September 2003 calling for universal nonproliferation legislation in domestic law.[31] Accordingly, in April 2004, the Security Council sought to tackle this broad issue of weapons of mass destruction (WMDs). Again using its full power under Chapter VII of the UN Charter, the Security Council did not specify a time and space for its action; it required a domestic legal transformation with every country, thus constituting a legislative act. Daniel Joyner, Professor of Law at the University of Alabama, sees the resolution as a “continuation of a distinct change in the Council’s understanding of its role and powers under Chapter VII.”[32] For Roberto Lavalle, Minister Counselor of the Permanent Mission of Guatemala to the United Nations, 1540 stands as “a novel, if awkward, exercise in international law-making.”[33]

Importantly, 1540 should be distinguished from 1373 in that it defined terms, though they are applicable only to the particular resolution.[34] In particular, the definition of “Non-State actor” attempts to delineate a classification of persons not envisioned by previous resolutions. The vague nature of the term is especially problematic given the fact that Resolution 1540 deals almost exclusively with such individuals. Joyner observes that two factors exacerbated the issue. First, a number of Member States remained non-signatories on international treaties addressing the proliferation of WMDs. Second, since such regimes involved States themselves, there existed “no substantive restriction on private parties, including business entities as well as other non-state actors.”[35] Consequently, Resolution 1540 aimed to fill in these gaps.

In the operative sections, Resolution 1540 returned to mandatory language to impose binding legal obligations on all UN Member States . The first paragraph required States to “refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.” Then, the Security Council delved deep into national lawmaking. Paragraph 2 obliged States to “adopt and enforce appropriate effective laws which prohibit any non-State actor” from engaging in the activities listed in the first paragraph, especially when related to “terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them.” Section 3 also invoked a broad obligation to “take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials.” Subsections specified that States had to adopt measures to track such weaponry, develop “physical protection measures,” and secure all borders. Moreover, States had to ensure adequate physical and legal methods to prevent trans-shipment of WMDs, including the establishment of civil and criminal penalties for violations of these export laws. Lastly, the Security Council formed a new committee to monitor implementation, with country reporting to be achieved within six months.[36]


The Model

The preceding developments concerning the UN Security Council’s exercise of power lend themselves to a case study for a discussion of Theodore Lowi’s Arenas of Power model. He explained his now-famous formulation, policy causes politics, in Arenas of Power: “If policy determines the mission of each working unit of the state, the mission would be the key determinant of most of the relationships in politics.”[37] In the classic Lowi typology, public policies fall into one (with some exceptions) of four ‘arenas’: distributive, regulatory, redistributive, and constituent. This matrix is divided horizontally by whether the rule is primary (imposes obligations) or secondary (confers powers), and vertically by whether the policy affects micro or macro behavior. However, this vision assumed the state as its central node of analysis. In a globalized world with an established international order, the question of power centers has become more important yet in many ways obscured.

Accordingly, the foreign policies of separate nations cannot simply encompass the relations of their state vis-à-vis another state anymore. To some extent, traditionally sovereign decision-making has been exported to international organizations. For the US, this entails membership in organizations and associations such as the UN, North American Free Trade Agreement (NAFTA), and the World Trade Organization (WTO). These bodies have the ability to enforce treaty obligations and resolve disputes through adjudicative processes with the backing of putative recourse. In doing so, they also maintain ultimate control over certain policy outcomes. The European Union’s level of regional integration (deemed ‘supranationalism’ for its unique transcendence of national sovereignty) poses a far deeper question about sovereignty, the discussion of which has filled volumes. For the purposes of this paper, it is sufficient to say that some international organizations have the power to impose policy for the duration of that country’s membership.

The distribution of competences characterizes the American system as well. In many ways, the federal structure of the United States mirrors the type of multilevel governance outlined in the preceding paragraph. This separation of powers holds consequences for the development of foreign policy. As Lowi has argued, fragmentation represents a “system of politics that is inappropriate for foreign-policy formulation by a major power.”[38] Internal discontinuity in the foreign policy establishment means that actors are “forced to oversell every remedy for world ailments and to oversell each problem for which the remedy might be appropriate” in order to avoid partial decision-making.[39] In fact, Lowi contends that America’s lack of a central foreign ‘ministry’ results in three main features of U.S. foreign policy: “fragmentation; the application of domestic political principles to the international realm; the effort to displace domestic problems onto the world.”[40]

In emergency situations, this institutional design bursts into the limelight. Lowi asserts, “Crisis constitutes a very special condition in the workings of American foreign policy” where exigent decisions are “made by an elite of formal officeholders.”[41] The 9/11 attacks provided a context of crisis through which elites could craft counterterrorism policy with near-unanimous consent. According to Lowi, the constant backdrop of terrorism in American politics allowed for the “conversion of interactions into incidents, incidents into challenges, challenges into threats and threats into crises for the purpose of imposing temporary and artificial cohesion upon the members of the foreign policy establishment.”[42] In the domestic sphere, Congress passed the Authorization for the Use of Military Force against Terrorists (AUMF) as well as the USA PATRIOT Act within a month and a half of the attacks. Both statutes were extremely vague, allowing for wide executive discretion in the implementation to tackle the crisis, a practice Lowi refers to as “legiscide” or “policy without law.”

The Critique

UN Security Council Resolution 1373 stands for the stark proposition that an international organization can legislate. If this is the case, then two conclusions must be taken into account. First, the Security Council seems to be a legislature in this configuration. Legislatures retain the right to lawmaking unless they delegate the power to another institutional branch. Second, if the Security Council does in fact legislate, then Resolution 1373 looks a lot like a case of “legiscide.” Stefan Talmon, Professor of Public International Law at Oxford, proposes that the “hallmark of any international legislation is the general and abstract character of the obligations imposed.”[43] In fact, the Security Council left it to the Member States to translate Resolution 1373’s desired policy outcomes into domestic legislation. Coincidentally, country reports to the CTC regarding implementation show that most States have adopted domestic counterterrorism laws and joined international treaties in accordance with Resolution 1373.[44]

This multilayered, multi-step paradigm shift complicates the practice of policy analysis. Can the Arenas of Power model accommodate Resolution 1373, and if so, how? Going back to the policy objectives outlined in the text itself, the statute predominantly takes regulatory action with a bit of constituent policy. Activities that fall within the realm of regulation include defining and punishing terrorism, preventing and criminalizing funding for terrorists, freezing assets, suppressing terrorist recruitment, and strengthening border controls and identification procedures. The resolution also creates a committee to monitor the implementation of the statute in the Member States, an exercise in constituent policy.

However, there is a clear problem: the United Nations is not a nation-state, and Member States are not individuals. Under Lowi’s model, regulatory policy affects individual conduct and imposes obligations or positions. While Resolution 1373 undoubtedly imposes obligations, it “decides that all States shall…” (emphasis added). Moreover, the model anticipates coalition-driven pluralistic politicking in which bargaining and compromise produce policy outcomes. Such coalitions, by their very rooting in situational circumstances, are supposed to be “too unstable to form a single policy-making elite” with the final product representing the “residue” of the bargaining process.[45] Yet, the U.S.-drafted resolution passed unanimously in less than five minutes through a voting system composed of five veto-wielding and ten rotating political elites (UN Permanent Representatives). Even if the analysis descends upon people targeted by the ensuing national measures, with whom will these coalitions of the affected negotiate in order to impact policy? Decisions are being made at the international level, and States must abide by them.

According to Lowi, elite decision-making occurs in the constituent arena where the state itself becomes the focal point. Unlike regulatory policy, constituent policy deals with the environment of conduct and confers powers or privileges. The creation of the Counterterrorism Committee would serve as a strong example, except that the United Nations represents 191 separate entities without the mechanizations of a government. As such, the Security Council seems to be vicariously governing without the legitimacy of elected government, what Ian Johnstone of The Fletcher School at Tufts University calls a “deliberative deficit.”[46] Thus, it operates at the top of a legal funnel, making broad binding decisions that get progressively narrowed at the national level and ultimately distill the State’s legitimate coercive power into force against individuals. Worse, the elite structure and essentially legislative function of the Security Council allows states to bypass the normal modes of legislating to accomplish policy goals that may be politically unpalatable in the domestic sphere. The crisis of terrorism undergirds the entire process thereby granting legitimacy to an extraordinary act of remote governance.

In reference to the “legiscidal” aspects of Resolution 1373, Lowi’s intellectual sophistication proves quite prescient. In Chapter 14 of Arenas of Power, Lowi discusses the macro dimension of political economy that arises from treaties and regional free trade agreements. He states emphatically that “globalization and its discourse seek a drastic restructuring of government and government authority” which reaches into constitutional matters.[47] Though he predicted this development within the limited case of global economics, it carries equal weight in the notion of political globalization encapsulated by Resolution 1373. As has been shown, the Security Council achieved the creation of an international counterterrorism standard that all States are bound to follow. This explains the upward flow of sovereignty implied by Resolution 1373’s passage. In return, since the resolution directed national governments to take further action, states received a wide degree of latitude in the interpretation of 1373’s obligations. Olivier warns that the delegation of interpretative powers relating to such an abstract and ambiguous statute could lead states to invoke Resolution 1373 in order to avoid obligations under human rights treaties.[48] The concept of “legiscide” captures this concern perfectly, so long as the Security Council takes on the role of legislator and national legislatures assume the role of interpreter. Thus, Resolution 1373 causes an inversion of the legislative process.

So how should scholars understand policy imposed upon entire countries from above? In sum, it calls into question how they conceptualize policymaking. In particular, Lowi’s Arenas of Power model must adapt to new ways of wielding power in international relations. One solution involves a shift in context for the ‘four arenas’ matrix. Rather than delineating relations between an individual or group and the state, this new contextual underpinning would conceive of states as the micro level and the international system as the macro level. This essentially entails the creation of a third dimension to the matrix, accounting for the multiple interactions in a globalized world. It also allows policies to flow from one dimension to the next (i.e. from an international level to the national level, and vice versa).

Yet, even a three-dimensional layout cannot fully explain Resolution 1373. Elite permanent representatives are operating a makeshift legislature out of an organ of an international organization and imposing policy upon national policymakers. These decisions have potentially dire repercussions on individuals inside the nation-state. A policy of regulation invokes the politics of constituent policy. This sort of cross-fertilization is bound to arise again and again (as it already has for Resolution 1540) unless the model changes to accommodate it. As international organizations seek to make the world safe for democracy, the nature of democracy itself has been transformed.

Conclusion

The legacy of Resolutions 1373 and 1540 remains an open question. Without a doubt, Resolution 1373 held precedential value and represented a novel development in international law. Resolution 1540 built off of that foundation to extend broad-based legislative obligations to the subject of WMDs. Taken together, a clear picture emerged of a UN Security Council intent on utilizing its full powers under Chapter VII of the UN Charter. However, a survey of Security Council Resolutions through October 2011 reveals no equally surprising exercises of such power. Sanctioning has been limited to specific states (such as Iran in response to its nuclear program) and references to Resolutions 1373 and 1540 have arisen, primarily concerning the extension of a particular committee’s mandate.

What, then, should observers make of the “legislative” function of the Security Council? There seems to be two take-away messages from the examples laid out in this paper. First, they stand as a testament to an exceptional period of crisis and emergency. In fact, Scheppele refers to the passage of domestic laws in accordance with Resolution 1373 as an “international state of emergency,” as the executive privileges gained from the internationally-imposed national-level measures were tantamount to emergency powers.[49] This argument is highly persuasive, but a second effect can be discerned: Civil libertarians should view the policy implications of these international security “laws” with skepticism. By attempting to make the world safe for democracy, the Security Council largely undermined democracy itself. Fifteen members of a 191 member international organization were able to impose a particular set of counterterrorism policies on every single country in the UN in five minutes. Given the track record of Member State compliance, Resolution 1373 enabled governments to “launch ambitious new anti-terrorism programs while allowing them to say that international law made them do it.”[50] Even if Resolutions 1373 and 1540 remain anomalies in the long-term work of the Security Council, all people should be wary of future attempts to exercise legislative power in an executive organ of an international institution.

 



[1] All of the quotations in this section are taken from the UN Charter: United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.unhcr.org/refworld/docid/3ae6b3930.html.

[2] Article 48 reads: “The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.”

[3] Monika Heupel, “Adapting to Transnational Terrorism: The UN Security Council’s Evolving Approach to Terrorism”, Security Dialogue 38, no. 4 (2007), 482.

[4] S/RES/1267 (1999).

[5] S/RES/1333 (2000).

[6] S/RES/1363 (2000).

[7] Kim Scheppele, “The migration of anti-constitutional ideas: the post-9/11 globalization of public law and the international state of emergency,” in The Migration of Constitutional Ideas, ed.Sujit Choudhry (Cambridge: Cambridge University Press, 2006), 355.

[8] S/RES/1269 (1999).

[9] S/RES/1368 (2001).

[10] S/RES/1373 (2001). Public record of the meeting can be found here: http://www.ilsa.org/jessup/jessup08/basicmats/rsc1373.pdf. Resolution 1373 passed unanimously by a vote of hands without any debate or objections.

[11] Scheppele, 352.

[12] Matthew Happold, “Security Council Resolution 1373 and the Constitution of the United Nations”, Leiden Journal of International Law 16, no. 3 (2003), 595.

[13] Heupel, 488.

[14] Paul Szaz, “The Security Council Starts Legislating,” American Journal of International Law 96, no. 4 (2002).

[15] Scheppele, 353.

[16] Clémentine Olivier, “Human Rights Law and the International Fight Against Terrorism: How Do Security Council Resolutions Impact on States’ Obligations Under International Human Rights Law? (Revisiting Security Council Resolution 1373),” Nordic Journal of International Law 73, no. 4 (2004), 401.

[17] Eric Rosand, “Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism,” American Journal of International Law 97, no. 2 (2003), 334.

[18] Under Article 25, all UN members must carry out Security Council decisions. Moreover, Article 103 of the UN Charter serves as a ‘supremacy clause’ granting the UN Charter a higher legal position than States’ other international obligations. For a further discussion of Article 103, see Rain Liivoja, “The Scope of the Supremacy Clause of the United Nations Charter,” International and Comparative Law Quarterly 57, no. 3 (2008): 583-612.

[19] Happold, 594.

[20] Kim Scheppele, “The Global Patriot Act,” The American Prospect 22, no. 7 (2011): 50.

[21] Stephen Dycus, National Security Law, 4th ed (New York: Aspen Publishers, 2007), 467. It is widely recognized that, as of yet, there is no international consensus on the definition of terrorism. For example, see United States v. Yousef, 327 F.3d 56, 106-107 (2d Cir. 2003), stating “We regrettably are no closer…to an international consensus on the definition of terrorism or even its proscription; the mere existence of the phrase ‘state-sponsored terrorism’ proves the absence of agreement on basic terms among a large number of States that terrorism violates public international law.” The UN’s attempt to rectify this situation, The Comprehensive Convention on International Terrorism, has failed to move forward.

[22] Rosand, 334.

[23] S/RES/1377 (2001).

[24] S/RES/1390 (2002).

[25] S/RES/1438 (2002) and S/RES/1440 (2002).

[26] S/RES/1455 (2003).

[27] Scheppele, The Migration of Anti-Constitutional Ideas, 356. The vagueness in procedural requirements was clarified in Resolutions 1730 (2006) and 1735 (2006).

[28] S/RES/1456 (2003).

[29] S/RES/1535 (2004).

[30] S/RES/1540 (2004).

[31] Peter Crail, “Implementing UN Security Council Resolution 1540,” The Nonproliferation Review 13, no. 2 (2006), 356.

[32] Daniel Joyner, “Non-Proliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council,” Leiden Journal of International Law 20, no. 2 (2007), 490.

[33] Roberto Lavalle, “A Novel, If Awkward, Exercise in International Law-Making: Security Council Resolution 1540”, Netherlands International Law Review 51, no. 3.

[34] Resolution 1540 proposes three definitions:

–          Means of delivery: missiles, rockets and other unmanned systems capable of delivering nuclear,

chemical, or biological weapons, that are specially designed for such use.

–          Non-State actor: individual or entity, not acting under the lawful authority of any State in

conducting activities which come within the scope of this resolution.

–          Related materials: materials, equipment and technology covered by relevant multilateral treaties

and arrangements, or included on national control lists, which could be used for the design,

development, production or use of nuclear, chemical and biological weapons and their means of

delivery

[35] Joyner, 508.

[36] Jones contends that the lack of a definition for “appropriate and effective national export and transshipment controls” has impeded the Committee’s ability to effectively assess the implementation of 1540. As such, the standardization anticipated by the statute is difficult to measure. See S. Jones, “Resolution 1540: Universalizing Export Control Standards?”, Arms Control Today: a Publication of the Arms Control Association 36, no. 4 (2006), 20.

[37] Theodore Lowi and Norman K. Nicholson, Arenas of Power (Boulder: Paradigm Publishers, 2009), 9.

[38] Theodore Lowi, The End of Liberalism: The Second Republic of the United States (New York: Norton, 1979), 127.

[39] Lowi, End of Liberalism, 139.

[40] Lowi, End of Liberalism, 155.

[41] Lowi, End of Liberalism, 128-9.

[42] Lowi, End of Liberalism, 144.

[43] Stefan Talmon, “The Security Council As World Legislature,” American Journal of International Law 99, no. 1 (2005), 176.

[44] UN Security Council Counter-Terrorism Committee, 2011 Global Implementation Survey, UN Document S/2011/463, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/451/21/PDF/N1145121.pdf.

[45] Lowi, Arenas of Power, 37.

[46] Ian Johnstone, “Legislation and Adjudication in the Un Security Council: Bringing Down the Deliberative Deficit”, American Journal of International Law 102, no. 2 (2008), 275.

[47] Lowi, Arenas of Power, 294.

[48] Olivier, 414.

[49] Scheppele, The Migration of Anti-Constitutional Ideas.

[50] Scheppele, The Global Patriot Act, 49.


Benjamin

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