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The Security Council Starts Legislating

Published online by Cambridge University Press:  27 February 2017

Paul C. Szasz
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American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 901 - 905
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Copyright © American Society of International Law 2002

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References

1 SC Res. 1373 (Sept. 28, 2001), 40 ILM 1278 (2001). Resolutions of the United Nations Security Council are available online at <http://www.un.org/Docs>.

2 E.g., UN Charter Art. 17(2).

3 E.g., WHO Const. Art. 22.

4 All these matters are discussed at greater length by the present author in Paul, C. Szasz, General Law-Making Processes, in 1 United Nations Legal Order, ch. 1, at 35, 61-67 (Schachter, Oscar & Christopher, C. Joyner eds., 1995)Google Scholar (speculating in particular on the subject of the present note).

5 UN Charter Art. 39.

6 E.g., SC Res. 713, UN SCOR, 46th Sess., Res. & Dec, at 43, para. 6, UN Doc. S/INF/47 (1991), Reprinted in 31 ILM 1431 (1992); SC Res. 757, UN SCOR, 47th Sess., Res. & Dec, at 13, paras. 3-9, UN Doc. S/INF/48 (1992), Reprinted in 31 ILM at 1453 (both with respect to Yugoslavia).

7 E.g., SC Res. 1261 (Aug. 25,1999); SC Res. 1265 (Sept. 17, 1999); SC Res. 1296 (Apr. 19, 2000), 39 ILM 1022 (2000); SC Res. 1314 (Aug. 11, 2000).

8 E.g., SC Res. 1265, 1296, supra note 7.

9 SC Res. 1325 (Oct. 31, 2000).

10 SC Presidential Statement 2000/7 (Mar. 9). Statements of the president of the Security Council are available online at <http://www.un.org/Docs>.

11 SC Res. 1269 (Oct. 19, 1999), 39 ILM 238 (2000); Presidential Statement 2000/38 (Dec. 6).

12 E.g., SC Res. 1261, supra note 7, paras. 3, 8, 11, 13; SC Res. 1325, supra note 9, paras. 8, 9, 10, 12.

13 E.g., SC Res. 1261, supra note 7, para. 2.

14 SC Res.1373, supra note 1, paras. 1, 2.

15 Id., para. 3.

16 Id., para. 6. This aspect of Resolution 1373 is based on the Council’s practice in connection with the establishment of binding economic or other sanctions. In recent years, it has always established a monitoring committee to which states are to Report their activities in complying with the resolution and which may also be charged with taking certain decisions relating to the implementation of the sanctions régime. E.g., SC Res. 1267, para. 6 (Oct. 15, 1999), 38 ILM 235 (2000) (establishing a committee to monitor the sanctions imposed on Afghanistan for refusing to turn over Osama bin Laden).

17 E.g., SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, para. 3, UN Doc. S/INF/49 (1993), Reprinted in 32 ILM 1203 (1993) (establishing the International Criminal Tribunal for the Former Yugoslavia).

18 See, in particular, the 1994 Declaration on Measures to Eliminate International Terrorism and the 1996 Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, adopted respectively by General Assembly Resolutions 49/60 of December 9,1994, and 51/210 of December 17,1996, to which they are annexed, as well as the texts of these resolutions. These declarations have since been regularly reaffirmed by the General Assembly. E.g., GA Res. 55/158, para. 9 (Dec.12, 2000). General Assembly resolutions are available online at <http://www.un.org/Docs>.

19 GA Res. 54/109, annex (Dec. 9, 1999), 39 ILM 270 (2000) [hereinafter Convention on the Financing of Terrorism].

20 SC Res. 1373, supra note 1, para. 3(d).

21 The reluctance of the Security Council to make participation in an international treaty obligatory for states is apparent from the very severe post-Persian Gulf war resolution, SC Res. 687 (1991), infra note 26, para. 7, in which it merely “invited” Iraq to ratify the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction.

22 The United States itself, the originator of Security Council Resolution 1373 and an active proponent and early signatory of the 1999 Convention on the Financing of Terrorism, had not yet submitted the Convention to the Senate as of the date of adoption of the resolution. Though it did so soon thereafter and the Senate rapidly gave its advice and consent to ratification, this had not yet occurred at the time of this writing in early April 2002 because it was necessary first to adopt implementing legislation, which was still under consideration by Congress. Later, on June 25,2002, the bill implementing the Convention, H.R. 3275,107th Cong. (2002), was signed by President George W. Bush. Suppression of the Financing of Terrorism Convention Implementation Act of 2002, Pub. L. No. 107-197, §§201-203,116 Stat. 721; see 148 Cong. Rec. H4927, 4928 (daily ed. July 18, 2002). The following day, June 26,2002, the United States deposited its instrument of ratification to the Convention. For signatures and ratifications of the Convention, see United Nations Treaty Collection, Conventions on Terrorism, at <http://untreaty.un.org/English/Terrorism.asp> (visited Aug. 14, 2002).

23 GA Res. 56/88, para. 7 (Dec. 12, 2001) (referring to SC Res. 1373, supra note 1, para. 3(d)).

24 See Report of the Working Group of the Sixth Committee on Measures to Eliminate International Terrorism, UN Doc. A/C.6/56/L.9 (Oct. 29, 2001).

25 See supra note 18.

26 SC Res. 687, para. 3, UN SCOR, 46th Sess., Res. & Dec., at 11, UN Doc. S/INF/ 47 (1991), Reprinted in 30 ILM 846 (1991) (the so-called mother of all resolutions, adopted at the conclusion of the Persian Gulf war).

27 Id., pt. C.

28 SC Res. 692, UN SCOR, supra note 26, at 18, Reprinted in 30 ILM 864 (1991).

29 SC Res. 827, supra note 17 (International Tribunal for the Former Yugoslavia); SC Res. 995, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994) (International Criminal Tribunal for Rwanda).

30 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970).

31 GA Res. 50/245, annex (Sept. 17, 1996), 35 ILM 1439 (1996). Article XLV requires ratification by forty-four states listed in an annex to the Convention, including some that have always been firm opponents (e.g., India), and some newly minted ones (the United States).

32 Paul C. Szasz, A New Approach to Achieving a CBT, Disarmament Times, Nov. 24, 1992, at 3, Reprinted in Selected Essays on Understanding International Institutions And The Legislative Process 59 (Edith Brown Weiss ed., 2001).

33 In this connection, it might be noted that in the statement its president issued at the conclusion of its summit meeting on January 31, 1992, the Security 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).

34 See the provisional measures orders relating to Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), 1992 ICJ Rep. 3 & 114 (Apr. 14), and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), 1993 ICJ Rep. 3 (Apr. 8).

35 See the Court’s examination of the Council’s voting procedures in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16 (June 21).