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Revisiting Security Council action on terrorism: New threats; (a lot of) new law; same old problems?

Published online by Cambridge University Press:  26 February 2021

David McKeever
David McKeever*
Affiliation:
Legal Officer, United Nations, 220 East 42nd St., New York City, USA Email: davidmckeever80@hotmail.com
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Abstract

The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.

Keywords

fragmentationSecurity Councilsoft lawterrorismtreaties
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 34 , Issue 2 , June 2021 , pp. 441 - 470
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations. Many thanks to Naureen Fink, Francesco Messineo, and the reviewers at the Leiden Journal of International Law for helpful comments. Very special thanks to Ken Keith. All remaining errors are the sole responsibility of the author.

References

1 S. Talmon, ‘The Security Council as World Legislature’, (2005) 99(1) AJIL 175; E. Rosand, ‘The Security Council as “Global Legislator”: Ultra vires or ultra innovative?’, (2004) 28(3) Fordham International Law Journal 542; M. Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’, (2003) 16 LJIL 593; J. E. Alvarez, ‘Hegemonic International Law Revisited’, (2003) 97 AJIL 873, at 874–8; P. Szasz, ‘The Security Council Starts Legislating’, (2002) 96 AJIL 901; L. M. Hinojosa Martinez, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political, and Practical Limits’, (2008) 57 ICLQ 333; and, more recently, the report of the UN Special Rapporteur of the Human Rights Council on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/73/361 (2018), paras. 8–18.

2 UN Charter, Art. 24.

3 See, e.g., UN Doc. S/RES/686 (1991), relating to Iraq’s invasion of Kuwait, and UN Doc. S/RES/1441 (2002), relating to Iraq’s breach of earlier resolutions arising out of the invasion of Kuwait and WMD.

4 UN Doc. S/RES/1564 (2004), para. 12, regarding reported violations of international humanitarian law and human rights law in Darfur.

5 UN Doc. S/RES/1973 (2011), authorizing certain member states to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya.

6 UN Doc. S/RES/918 (1994), relating to Rwanda; UN Doc. S/RES/752 (1992) relating to Bosnia and Herzegovina.

7 These are UN entities engaged in conflict prevention, peace-making and post-conflict peacebuilding at various locations across the globe (see dppa.un.org/en/dppa-around-world).

8 UN Doc. S/RES/1590 (2005), establishing the United Nations Mission in Sudan.

9 See, respectively, UN Doc. S/RES/827 (1993) (establishing the International Criminal Tribunal for the former Yugoslavia), and UN Doc. S/RES/1593 (2005) (referring the situation in Darfur to the Prosecutor of the International Criminal Court).

10 See, e.g., Council statements regarding Res. 1540 (2004) (pertaining to WMD and non-State actors) at www.un.org/press/en/2004/sc8076.doc.htm.

11 If not necessarily universal consensus, a point returned to below regarding those critiques of Council activity which focused on questions of democratic representation. On the benefits of such manifestations of consensus, see D. DeBartolo, ‘Security Council “Legislation” on Foreign (Terrorist) Fighters’, (2018) 112 Proceedings of the ASIL Annual Meeting 303, at 305. On the Council’s legislative activity specifically, Johnstone has contended that the ‘democratic deliberation’ leading to the adoption of such resolutions ‘can legitimize outcomes that serve collective interests, even when initiated by a hegemon’, See I. Johnstone, The Power of Deliberation (2011), at 94.

12 See K. Herndl, ‘Reflections on the Role, Functions and Procedures of the Security Council of the United Nations’, (1987) Recueil des cours 289, at 307–8.

13 Under Arts. 31 or 32 of the Charter.

14 See UN Doc. S/RES/1054 (1996), relating to the attempted assassination of President Mubarak, imposing an obligation on Sudan (and deciding that all states shall take certain steps with respect to Sudan), and with a stipulated time for review of the situation by the Council (paras. 1–3, 8); and UN Doc. S/RES/748 (1992) relating to the Lockerbie bombing, imposing (i) obligations on Libya, (ii) obligations on other states that were to apply until the point where the Council determined that Libya had complied, and (iii) stipulating a date for the Council to review the situation (paras. 1–2, 3 and 13 respectively).

15 The text of each instrument can be accessed at www.un.org/sc/ctc/resources/international-legal-instruments/.

16 The latter category includes the 1979 Convention against the Taking of Hostages, 1316 UNTS 205 and the 1999 Convention for the Suppression of the Financing of Terrorism, 2178 UNTS 197.

17 1999 OAU Convention on the Prevention and Combating of Terrorism.

18 2007 ASEAN Convention on Counter-Terrorism.

19 2005 Council of Europe Convention on the Prevention of Terrorism, CETS No. 196; 2015 Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, CETS No. 217.

20 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA.

21 1999 Treaty of Cooperation among States members of the Commonwealth of Independent States in Combatting Terrorism.

22 1999 Convention of the Organisation of the Islamic Conference on Combatting International Terrorism.

23 1987 SAARC Regional Convention on Suppression of Terrorism; 2004 Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism.

24 A definition proposed by Yemin is useful here: ‘legislative acts have three essential characteristics: they are unilateral in form, they create or modify some elements of a legal norm, and the legal norm is general in nature, that is, directed to indeterminable addresses and capable of repeated application in time’. See E. Yemin, Legislative Powers in the United Nations and Specialized Agencies (1969), at 6. See, similarly, F. L. Kirgis, ‘The Security Council’s First Fifty Years’, (1995) 89 AJIL 506, at 520.

25 In 2011, the sanctions regime established under Res. 1267 (1999) was split in two: the existing Security Council Committee would focus on Al Qaeda, while a separate Committee was established to focus on the Taliban (UN Doc. S/RES/1988 (2011), UN Doc. S/RES/1999 (2011)). References in this paper to the ‘1267 sanctions regime’ or ‘1267 Committee’ are to the ‘ISIL and Al-Qaeda’ sanctions regime. On the development of this regime see A. Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’, (2006) 17 EJIL 881, at 881–3, 902–3; E. Cardenas, ‘The United Nations Security Council’s Quest for Effectiveness’, (2004) 25 Michigan Journal of International Law 1341.

26 UN Doc. S/RES/2170 (2014), paras. 14, 18, 19; UN Doc. S/RES/2253 (2015).

27 See, for example, M. Wood, ‘The Security Council as a Law-Maker: The Adoption of (Quasi)-Judicial Decisions’, in R. Wolfrum and V. Röben (eds.), Developments of International Law in Treaty Making (2005), at 227, 231–2; Szasz, supra note 1, at 901–2; Happold, supra note 1, at 593–9; Alvarez, supra note 1, at 874; D. H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown International Law Review 225, at 230–1.

28 Bianchi, supra note 25, at 888; see also G. Nolte, ‘Lawmaking through the UN Security Council: A Comment on Erika de Wet’s Contribution’, in Wolfrum and Röben, ibid., at 241; Rosand, supra note 1, at 544–5, 573–8.

29 Bianchi, supra note 25, at 888.

30 Talmon, supra note 1, at 188–92.

31 Happold, supra note 1.

32 A. Bianchi, supra note 25, at 889, 903, 912–14.

33 Alvarez, supra note 1. Indeed, in 1996, Alvarez had suggested that the Council ‘could benefit from a measure of normative restraint’. See J. E. Alvarez, ‘Judging the Security Council’, (1996) 90 AJIL 1, at 22. For earlier discussion of the need to balance democratic representation with an effective Council see Herndl, supra note 12.

34 Martinez, supra note 1, at 339–40, 352.

35 M. Wood, ‘The UN Security Council and International Law – First Lecture, The Legal Framework of the Security Council’, Hersch Lauterpacht Memorial Lectures, 7 November 2006, para. 26, available at www.lcil.cam.ac.uk/press/events/2006/11/lauterpacht-lectures-2006-united-nations-security-council-and-international-law-sir-michael-wood.

36 M. Wood, ‘The UN Security Council and International Law – Second Lecture, The Security Council’s Powers and their Limits’, Hersch Lauterpacht Memorial Lectures, 8 November 2006, para. 64.

37 UN Doc. S/RES/2249 (2015), para. 1.

38 UN Doc. S/2016/92 (2016), paras. 4–17; see also S/RES/2199 (2015), preamble.

39 Ibid., para. 25.

40 UN Doc. S/2018/80 (2018), paras. 5–11; S/2019/103, paras. 4–10.

41 UN Doc. S/2020/53 (2020), paras. 7, 9.

42 Ibid., para. 47.

43 Ibid., paras. 85–9.

44 UN Doc. S/RES/2396 (2017); see in particular paras. 29–37 on strategies for the prosecution, rehabilitation and reintegration of returning or relocating FTFs and their family members.

45 Martinez, supra note 1, at 356; J. E Stromseth, ‘Imperial Security Council – Implementing Security Council Resolutions 1373 and 1390’, (2003) 97 American Society of International Law Proceedings 41, at 45.

46 Chesterman, Johnstone and Malone noted that ‘with the change on political winds [following the adoption of resolutions 1373 and 1540], the Security Council stayed out of the business of legislating for many years’, and that the adoption of Res. 2178 (2014) was, therefore, surprising. See S. Chesterman, I. Johnstone and D. M. Malone, Law and Practice of the United Nations (2016), at 149.

47 The resolutions adopted under Chapter VII were: 2170 (2014); 2178 (2014); 2199 (2015); 2253 (2015); 2368 (2017); 2396 (2017) and 2462 (2019). The others were: 2195 (2014); 2249 (2015); 2309 (2016); 2322 (2016); 2341 (2017); 2354 (2017); 2370 (2017); 2395 (2017); and 2482 (2019).

48 For this analysis, where a given operative paragraph is sub-divided into a series of sub-paragraphs calling for or deciding upon distinct measures (for example, para. 6 of Res. 2178 (2014)), these are counted individually (excluding the chapeau). Where a series of sub-paragraphs together address the same measure, as in para. 2 of Res. 2354 (2017), these are counted as one.

49 While it is not the case that only those resolutions adopted under Chapter VII can contain decisions of the Council having the binding effect provided for in Art. 25 of the Charter (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 76 (1970), Advisory Opinion [1971] ICJ Rep. 16, paras. 113–14; L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), at 380–93; Herndl, supra note 12, at 322–5), the majority of Council decisions discussed in this article do indeed come in Chapter VII resolutions (see, e.g., UN Doc. S/RES/2178 (2014); UN Doc. S/RES/2368 (2017); UN Doc. S/RES/2396).

50 See, for example, UN Doc. S/RES/2178 (2014), para. 12, which expressly extends previously-imposed obligations (‘that Member States shall afford one another the greatest measure of assistance in connection with criminal investigations or proceedings relating to the financing or support of terrorist acts’) to persons responsible for the conduct newly criminalized under that resolution.

51 First, in terms of the entities to whom the sanctions regime applies (see UN Doc. S/RES/2170 (2014), paras. 14, 18–19, Ann. and then UN Doc. S/RES/2253 (2015), para. 2, on the addition of ISIL). Second, in terms of the forms of economic activity to be covered (UN Doc. S/RES/2199 (2015), paras. 1–2 on the generation of oil revenue and para. 17 on the trade in cultural property). Third, in revising the procedures for listing and de-listing (UN Doc. S/RES/2253 (2015), paras. 43–74, as well as Ann. II on the Office of the Ombudsperson). Fourth, in introducing specific measures with respect to particular individuals (UN Doc. S/RES/2253 (2015), para. 70; S/RES/2368 (2017), para. 76).

52 UN Doc. S/RES/2175 (2014), UN Doc. S/RES/2222 (2015), UN Doc. S/RES/2286 (2016), UN Doc. S/RES/2417 (2018), UN Doc. S/RES/2474 (2019), and UN Doc. S/RES/2475 (2019).

53 UN Doc. S/RES/2325 (2016).

54 See also V. J. Proulx, ‘A Postmortem for International Criminal Law? Terrorism, Law and Politics, and the Reaffirmation of State Sovereignty’, (2020) 11 Harvard National Security Journal 151, at 211.

55 UN Doc. S/RES/2178 (2014).

56 UN Doc. S/RES/2253 (2015); UN Doc. S/RES/2368 (2017).

57 UN Doc. S/RES/2199 (2015), paras. 1–2, 17; UN Doc. S/RES/2462 (2019).

58 UN Doc. S/RES/2195 (2014); UN Doc. S/RES/2482 (2019)

59 UN Doc. S/RES/2309 (2016).

60 UN Doc. S/RES/2322 (2016).

61 UN Doc. S/RES/2341 (2017).

62 UN Doc. S/RES/2354 (2017).

63 UN Doc. S/RES/2396 (2017), para. 21.

64 UN Doc. S/RES/2370 (2017).

65 UN Doc. S/RES/2396 (2017), para. 13.

66 Ibid., para. 15.

67 UN Doc. S/RES/2178 (2014), paras. 8–9, 11; UN Doc. S/RES/2396 (2017), paras. 2–16.

68 UN Doc. S/RES/2396 (2017), paras. 40–41.

69 Ibid., para. 29–41.

70 Whereas Res. 1272 (1999) (East Timor), contained 18 operative paragraphs, and Res. 1244 (1999) (Kosovo) contained 20, Res. 2253 (2015) and 2368 (2017) on the 1267 sanctions regime both have over 100 operative paragraphs.

71 UN Doc. S/RES/1973 (2011) relating to Libya – 29 operative paragraphs.

72 UN Doc. S/RES/2100 (2013), establishing MINUSMA (Mali) – 35 operative paragraphs.

73 Proulx, supra note 54, at 194.

74 On soft law, generally, see F. Francioni, ‘International “soft law”: a contemporary assessment’, in V. Lowe and M. Fitzmaurice (eds.), Fifty Years of the International Court of Justice – Essays in Honour of Sir Robert Jennings (1996), at 167–78; D. Thürer, ‘Soft Law’, (2009) MPEPIL; D Shelton (ed.), Commitment and Compliance—The Role of Non-Binding Norms in the International Legal System (2000); W. M. Reisman ‘The Concept and Function of Soft Law in International Politics’, in E. G. Bello (ed.), Essays in Honour of Judge Taslim Olawale Elias, vol. I (1992), at 135–44.

75 See K. W. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’, (2000) 54 International Organization, at 421–56.

76 Namibia, supra note 49, at para. 114. Similarly, in the Kosovo Advisory Opinion, the Court noted differences between Council resolutions and treaties, observing that interpreting the former may require that additional factors be taken into account: ‘The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolution’. See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep. 403, para. 94.

77 For illustration of this at the international level, see Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, [1998] ICJ Rep. 155, para. 43 (where the Court rejected the respondent’s argument that, in view of Arts. 25 and 103 of the Charter, Security Council Res. 731 (1992) constituted a legal impediment to the admissibility of the Application, on the basis that this resolution ‘was a mere recommendation without binding effect’). See also V. Gowlland-Debbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, (1994) 88 AJIL 643, at 647–8.

78 Wood, supra note 35, paras. 34–8.

79 Thürer, supra note 74, para. 9, according to whom, the others features of soft law are: that it generally expresses common expectations concerning the conduct of international relations as it is often shaped by international organizations; it is created by subjects of international law; and that, despite its legally non-committal quality, it is characterized by a certain proximity to law, and above all by its capacity to produce legal effects.

80 Which provides, inter alia, that decisions of the Council on non-procedural matters ‘shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’ (UN Charter, Art. 27(3)).

81 See, for examples, UN Doc. S/RES/2396 (2017), paras. 11–13.

82 Binding decisions of the Council tend to be incorporated in resolutions that are expressly adopted under Ch. VII, though technically this is not a pre-requisite (see supra note 49).

83 UN Doc. S/RES/2368 (2017), para. 17.

84 On the terms used by the Council when taking decisions see Sievers and Daws, supra note 49, at 382–3.

85 UN Doc. S/RES/2178 (2014), para. 9.

86 See UN Doc. S/PRST/2014/23, at 3; also, UN Doc. S/2015/377 (a May 2015 report noting gaps in current member state practice in this area, and making recommendations to improve this situation), and UN Doc. S/2015/939, Guiding Principle 19.

87 UN Doc. S/RES/2309 (2016), para. 6(g).

88 With some limited exceptions (none of which are relevant to the present discussion), states party to the Chicago Convention are under no legal obligation to implement the ‘international standards and recommended practices’ that may be adopted by ICAO under Art. 37; the only obligation is for the state party which, at any time, deems implementation of a given standard or recommended practice not to be practicable, to notify ICAO of this fact (Art. 38). On the law-making powers of ICAO generally, and the legal effect of the standards and recommended practices it adopts, see further T. Buergenthal, Law-Making in the International Civil Aviation Organization (1969), at 57–122. For details of the API standard see www.icao.int/WACAF/Documents/Meetings/2018/FAL-IMPLEMENTATION/an09_cons.pdf, at 9.5; UN Doc. S/2018/80, para. 54.

89 UN Doc. S/RES/2368 (2017), para. 11 (emphasis added). The Council did so notwithstanding its observation, in the preamble of this resolution, that many ICAO member states had not yet implemented the ICAO standard on API (ibid., preamble).

90 R. Higgins, ‘The United Nations and Lawmaking: The Political Organs’, (1970) 64 AJIL, at 37–48, 40–6.

91 In addition to the five permanent members, between 2014 and 2019 there were 36 elected members of the Council; the non-permanent members are elected for two year terms, though occasionally two states from the same regional grouping may choose to divide the two-year term between them (details available at www.un.org/securitycouncil/content/security-council-members).

92 The process of soft law subsequently developing into binding treaty rules has often taken decades. A notable example is the 1948 Universal Declaration of Human Rights, the bulk of which attained binding force in the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, both adopted in 1966 and which entered into force ten years later. For an example of swifter development, the General Assembly’s 1963 Declaration on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, in Res. 1962 (XVIII) was followed, just over three years later, by the Treaty on Principles Governing the Activities in the Exploration and Use of Outer Space (610 UNTS 205).

93 Between mid-2014 and mid-2019 the General Assembly adopted 26 resolutions on terrorism (including eight in a single GA session between 2017 and 2018, see research.un.org/en/docs/ga/quick/regular/72).

94 An international forum of 29 states (including all five permanent members of the Security Council) and the EU seeking to ‘strength[en] the international architecture for addressing 21st century terrorism’ by preventing, combating, and prosecuting terrorist acts and countering incitement and recruitment to terrorism (see www.thegctf.org/About-us/Background-and-Mission).

95 On the impact of various ‘soft law’ instruments for human rights compliance in states’ counter-terrorism measures see Report of the Special Rapporteur on the promotion and protection of human rights while countering terrorism, 29 August 2019, A/74/335; K. Huszti-Orban and F. Ní Aoláin, ‘The Impact of “Soft Law” and Informal Standard-Setting in the Area of Counter-Terrorism on Civil Society and Civic Space’, University of Minnesota Human Rights Centre, 2020.

96 UN Doc. S/RES/1373 (2001), paras. 1(b), 1(d) (emphasis added).

97 Financing Convention, supra note 16, Art. 2(1)(a)–(b).

98 Huszti-Orban and Ní Aoláin, supra note 95, at 12.

99 FATF, International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation: The FATF Recommendations, at 11, 35.

100 FATF, Criminalising Terrorist Financing: Recommendation 5, October 2016, paras. 18–20, available at www.fatf-gafi.org/media/fatf/documents/reports/Guidance-Criminalising-Terrorist-Financing.pdf. On FATF generally see I. Bantekas, ‘The international law on terrorist financing’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014), 121, at 125–7.

101 For an earlier discussion of FATF’s role in ‘soft legalization’ see Abbott and Snidal, supra note 75, at 439–40.

102 In addition to its 35 member jurisdictions, FATF is also comprised of two regional organizations (the European Commission and the Gulf Cooperation Council) and has nine ‘associate members’, known as FATF-style regional bodies (FSRBs), which, in turn, include a number of jurisdictions which are not UN member states (such as Aruba, the Cook Islands, Gibraltar, Guernsey, the Holy See, the Isle of Man, Jersey, Macau, Niue). FATF’s membership policy emphasizes that candidate countries should be ‘strategically important’, in view of factors including size of GDP, size of the banking, insurance and securities sector, and population, and also enhance FATF’s geographic balance, see www.fatf-gafi.org/about/membersandobservers/fatfmembershippolicy.html.

103 2019 Report of the Special Rapporteur, supra note 95, paras. 28–46. See also Huszti-Orban and Ní Aoláin, supra note 95, at 10–13

104 UN Doc. S/RES/2253 (2015), preamble, paras. 16–17 (emphasis added).

105 UN Doc. S/RES/2322 (2016), preamble (emphasis added).

106 A well-established method of interpreting treaties, at least, as reflected notably in the Namibia Advisory Opinion, in which the ICJ (in 1970) interpreted provisions from the 1919 Charter of the League of Nations, noting that it ‘must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’ (Namibia, supra note 49, para. 53). See also Navigational and Related Rights in which the ICJ interpreted, in 2009, a treaty from 1858 (Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, [2009] ICJ Rep. paras. 64–70).

107 UN Doc. S/RES/2368 (2017), para. 20.

108 FATF, Criminalising Terrorist Financing: Recommendation 5, October 2016, paras. 18–20

109 UN Doc. S/RES/2462 (2019), para. 3.

110 Ibid., para. 5 (emphasis added).

111 F. Ni Aoláin, ‘The Massive Perils of the Latest U.N. Resolution on Terrorism’, Just Security, 8 July 2019, available at www.justsecurity.org/64840/the-massive-perils-of-the-latest-u-n-resolution-on-terrorism/.

112 1969 Vienna Convention on the Law of Treaties (VCLT), Arts. 39–41.

113 VCLT, Art. 31(3)(a).

114 VCLT, Art. 31(3)(b).

115 VCLT, Art. 31(3)(c), and see discussion in K. Keith, ‘Evolutionary Interpretation of International Law in National Courts’, in G. Abi-Saab et al. (eds.), Evolutionary Interpretation and International Law (2019); D. McKeever, ‘Evolving Interpretation of Multilateral Treaties: “Acts Contrary to the purposes and principles of the United Nations” in the Refugee Convention’, (2015) 64 ICLQ 405, at 406–7.

116 On the interpretation of Council resolutions, generally see M. Wood, ‘The Interpretation of Security Council Resolutions, Revisited’, (2017) 20(1) Max Planck Yearbook of United Nations Law Online, 29 August 2017, available at brill.com/abstract/journals/mpyo/20/1/article-p1_1.xml. He notes ‘considerable scope for authentic interpretation [of its resolutions] by the Council itself’ (at 5), as well as the possible evolution of the Council’s understanding of its own decisions (at 26, citing Security Council Report, ‘Special Research Report: Security Council Action under Chapter VII: Myths and Realities’, 23 June 2008, at 36).

117 See text at supra note 51.

118 The ICJ has confirmed that the contemporaneous practice of the Security Council on similar issues is a relevant factor in interpreting its resolutions (Kosovo, ICJ, supra note 76, paras. 94, 114).

119 The principle of which is similar to that of API: the more information that state authorities can receive before a traveller arrives at their border, and cross-check against national and international databases, the more informed that state’s decision as to any security-related measures which need to be taken with respect to that traveller. Whereas API data is limited to information contained in a national passport, PNR includes also details such as the traveller’s address, how the flight ticket was purchased, recent travel history, etc.; that is, data that would not otherwise be collected from the traveller (UN Doc. S/2015/377, paras. 26–8).

120 Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

121 Under the Treaty on European Union, the rights guaranteed in the European Convention on Human Rights constitute general principles of EU law, while the rights recognized in the 2000 Charter of Fundamental Rights of the EU have the same legal value as the EU treaties (see Art. 6, paras. (3) and (1) respectively, Treaty on European Union).

122 Following a referral by the European Parliament, in a 2017 Opinion the Court of Justice of the European Union held that the proposed EU-Canada PNR agreement was incompatible with the fundamental rights recognized by the Charter, and therefore, could not be concluded. Specifically, the Court found that the proposed agreement raised issues under Arts. 7 and 8 of the Charter (private life, and protection of personal data, respectively), and did not meet the strict necessity criterion that would justify such interference (CJEU, Opinion 1/15 of the Court (Grand Chamber), 26 July 2017).

123 As of August 2020, 20 UN Member states are not party to the ICCPR (see treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND); while only 74 states had made a declaration accepting the compulsory jurisdiction of the International Court of Justice under Art. 36(2) of its Statute (see www.icj-cij.org/en/declarations).

124 UN Doc. S/RES/2396 (2017), para. 12 (emphasis added).

125 See www.icao.int/Newsroom/Pages/New-PNR-Data-Standards-amendment-to-improve-global-counterterrorism-efforts.aspx.

126 ICAO’s press release on adoption of the PNR standard noted that ‘[f]ollowing the UNSC unanimous adoption of resolution 2396 (2017), [ICAO] Secretary General Liu has made calls in the UN for greater international awareness and co-operation on the importance of information sharing to help prevent terrorist mobility. ICAO has pushed for progress by countries on enhanced border security, and also initiated an ad-hoc Task-Force which quickly realized the new PNR data standards’ (ibid).

127 Writing long before the Council’s legislative phase, Jenks perceived conflict as ‘an unavoidable incident of the present stage of development of the international legislative process’. See C. W. Jenks, ‘The Conflict of Law-Making Treaties’, (1953) 30 BYIL 401, at 402–5.

128 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, 13 April 2006, A/CN.4/L, at 682. See also J. Crawford, Chance, Order, Change: The Course of International Law (2014), at 275–309.

129 Report of the Special Rapporteur of the Human Rights Council on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 27 September 2017, A/72/495, paras. 21–22.

130 See for example H. Duffy, The ‘War on Terror’ and the Framework of International Law (2015), at 456–660; and the contributions in Part III of B. Saul (ed.), Research Handbook on International Law and Terrorism (2014), at 335–553.

131 See, for example, J. Pejic, ‘Armed Conflict and Terrorism: There Is a (Big) Difference’, in A. M. Salinas de Frías, K. Samuel and N. D. White (eds.), Counter-Terrorism: International Law and Practice (2012), at 171–204; B. Saul, ‘Terrorism and International Humanitarian Law’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014), at 231; D. A. Lewis, N. K. Modirzadeh and G. Blum, Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism – Legal Briefing and Compendium (2015); D. McKeever, ‘International Humanitarian Law and Counter-Terrorism: Fundamental Values, Conflicting Obligations’, (2020) 69(1) International and Comparative Law Quarterly 43; B. Saul, ‘Terrorism, Counter-Terrorism, and International Humanitarian Law’, in B. Saul and D. Akande (eds.), The Oxford Guide to International Humanitarian Law (2020), at 403–23 (‘Saul 2020’).

132 Additional Protocol II, Art. 6(5)

133 Saul 2020, supra note 131, at 418.

134 Albeit the approaches taken differ across the treaties (see discussion in Saul 2020, ibid., at 410–12; McKeever, supra note 131, at 57–60).

135 On this, and varying approaches in domestic courts see Saul 2020, ibid., at 415–19.

136 On the relevant provisions of IHL, see McKeever, supra note 131, at 54–7.

137 The ICRC has noted a range of activities which it and other humanitarian actors engage in and which could potentially engage counter-terrorism laws: ‘visits and material assistance to detainees suspected of, or condemned for, being members of a terrorist organization; facilitation of family visits to such detainees; first aid training; war surgery seminars; IHL dissemination to members of armed opposition groups included in terrorist lists; aid to meet the basic needs of the civilian population in areas controlled by armed groups associated with terrorism; and large-scale assistance activities for IDPs, where individuals associated with terrorism may be among the beneficiaries’. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, 16 June 2020, Doc. 32IC/15/11, at 20.

138 See, generally, on these issues, A. Debarre, ‘Safeguarding Medical Care and Humanitarian Action in the UN Counterterrorism Framework’, (2018) International Peace Institute, at 4–20; McKeever, supra note 131, at 53–77.

139 Norwegian Refugee Council, Principles under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action (2018), at 8, 16; E-C. Gillard, Recommendations for Reducing Tensions in the Interplay Between Sanctions, Counterterrorism Measures and Humanitarian Action (2017); F. Bouchet-Saulnier, ‘IHL and Counter-Terrorism: Tension and Challenges for Medical Humanitarian Organizations’, (2016) Médecins sans Frontières Analysis, at 1–7; Debarre, supra note 138, at 4–10.

140 McKeever, supra note 131, at 68–73

141 See UN Doc. S/RES/2462 (2019), para. 24; UN Doc. S/RES/2482 (2019), para. 16. On the legal effect of these provisions see McKeever, ibid., at 63.

142 See, for example, www.hrw.org/news/2019/04/02/un-security-council-resolution-undermines-aid-human-rights-work; www.justsecurity.org/64158/correcting-course-avoiding-the-collision-between-humanitarian-action-and-counterterrorism/.

143 See, for a specific example, the situation where medical assistance is provided, by an impartial humanitarian agency, to an individual known to be a member of a group designated as terrorist (McKeever, supra note 131, at 68–71).

144 International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, (2001) ILC Yearbook 2001/II(2), 25, Arts. 20–7.

145 Ibid., Arts. 1, 30–1 respectively.

146 Ibid., Arts. 42, 48.

147 Ibid., Arts. 49–53.

148 V-J. Proulx, Transnational Terrorism and State Accountability: A New Theory of Prevention (2012); V-J. Proulx, ‘An Incomplete Revolution: Enhancing the Security Council’s Role in Enforcing Counterterrorism Obligations’, (2017) 8 Journal of International Dispute Settlement 303–38 (hereinafter Proulx 2017).

149 K. N. Trapp, State Responsibility for International Terrorism (2011); K. N. Trapp, ‘Holding States Responsible for Terrorism before the International Court of Justice’, (2012) 3 Journal of International Dispute Settlement, at 279 (hereinafter Trapp 2012).

150 On the Council and state responsibility, generally, see V. Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, (1994) 43(1) International and Comparative Law Quarterly 55.

151 Proulx 2017, supra note 148, at 325–6; Trapp 2012, supra note 149, at 288. See also Gowlland-Debbas, supra note 77, at 659–60.

152 Proulx also highlights, in this respect, the Council’s imposition of sanctions on Sudan following the attempted assassination of Egyptian President Mubarak (Proulx 2017, ibid., at 326).

153 See, e.g., UN Doc. S/RES/1390 (2002); UN Doc. S/RES/2253 (2015); UN Doc. S/RES/2170 (2014). It is noted that resolutions adopted in the aftermath of 9/11 which addressed the provision of safe haven to al-Qaida (i) condemned, in this regard, the Taliban rather than Afghanistan, and (ii) did not draw express links between that activity and the (universal) obligations imposed under Res. 1373 (2001) (see, e.g., UN Doc. S/RES/1378 (2001), preamble).

154 Proulx has noted that Council resolutions ‘may shed light on the legal characterization of a given situation or provide guidance as to both the permissibility and legality of countermeasures or other responses contemplated by injured States’. See Proulx 2017, supra note 148, at 327.

155 See, for analysis of the various possibilities and critiques of both the ‘legalist’ and ‘realist’ schools of thought on this issue, J. E. Alvarez, ‘Judging the Security Council’, (1996) 90(1) American Journal of International Law 1–39; also Gowlland-Debbas, supra note 77, at 662–73. For judicial views on the matter see Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151, at 168; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, [1993] ICJ Rep. 325; Separate Opinion of Judge Lauterpacht, at paras. 98–107; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, [1992] ICJ Rep. 114, Separate Opinion of Judge Shahabuddeen, at 140–2.

156 See, for example, Namibia, supra note 49, paras. 108–16; Lockerbie Preliminary Objections, supra note 77, para. 43; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep. 136, paras. 120, 134, 139; Gowlland-Debbas, supra note 150, at 94–6.

157 See also Proulx 2017, supra note 148, at 317–18.

158 On the contention that the ‘effective control’ test for attribution may be inadequate with respect to state responsibility for terrorism see J. Crawford, State Responsibility: The General Part (2014), at 156–61.

159 Under Art. 36(1) of the Statute of the Court, ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’.

160 Trapp 2012, supra note 149, at 279–98.

161 Dispute settlement clauses are typically included in the counter-terrorism treaties discussed in Section 2 above, providing for arbitration and, where this is unsuccessful, referral to the ICJ, with the possibility of opting-out at time of signature or ratification (see, e.g., Financing Convention, Art. 24; 1988 Rome Convention, Art. 16; Terrorist Bombing Convention, Art. 20)

162 See also Trapp 2012, supra note 149, at 284–6.

163 See supra note 123.

164 As of August 2020, of the 15 cases pending before the Court, only two had been instituted by way of compromis (the territorial dispute between Guatemala and Belize, and the Gabcikova-Nagymaros Project case between Hungary and Slovakia, which was instituted in 1993 and in which discontinuance was initiated in 2017 – details available at www.icj-cij.org/en/pending-cases).

165 See for example Art. XXXI of the American Treaty on Pacific Settlement (the Pact of Bogota), which has regularly been invoked in cases coming before the ICJ.

166 This perhaps is contrary to some expectations: Alvarez, writing prior to the Council’s legislative phase on counter-terrorism, predicted that ‘as the Council generates more law, ICJ judges, elected to decide the law, will find it difficult to avoid reexamining some of that Council-generated law’. See Alvarez (1996), supra note 33, at 20.

167 Also, in the Tehran Hostages case the United States had argued, inter alia, that jurisdiction could be founded on the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, though ultimately the Court found it unnecessary to consider this argument (United States Diplomatic and Consular Staff in Tehran, Judgment, [1980] ICJ Rep. 3, para. 55).

168 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Judgment of 8 November 2019; Proulx 2020, supra note 54, at 167–70.

169 See Case concerning Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), CR 2018/17, 14–20, paras 19–33 (Newstead); Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v. Qatar), Joint Application, 4 July 2018, paras. 8–9.

170 While Res. 1373 (2001) was considered by the Court in its Advisory Opinion in the Wall case, this related to effects which that resolution was alleged to have had on the scope of the right to self-defence under Art. 51 of the Charter (a matter addressed, obliquely, in the preamble), not on the operative parts of that resolution which addressed counter-terrorism measures to be taken by states (Wall Advisory Opinion, supra note 156, paras. 138–9; see also Separate Opinion of Judge Koojimans, ibid., at 219, paras. 35–6).

171 India had claimed that Pakistan had breached its obligations under the Vienna Convention on Consular Relations with respect to an Indian national. In response, Pakistan made multiple arguments against the admissibility of India’s application, including that the individual in question had been involved in terrorist activities and India had failed to act in good faith. Here, Pakistan invoked three provisions of Res. 1373 (2001), contending that India was in breach of obligations arising under paras. 2(f) (on mutual legal assistance) and 2(g) (preventing the movement of terrorists by effective border controls and controls on travel documents). In light also of para. 3(a) (calling on states to intensify exchange of operational information, including on forged travel documents), Pakistan therefore contended that India was in violation of binding obligations of international law (Jadhav Case (India v. Pakistan), Counter-Memorial of the Islamic Republic of Pakistan, 13 December 2017, paras. 171–83). In response, India stated simply that it was Pakistan that was in breach of these decisions and that the absence of an MLAT between the parties was due to the position of Pakistan (Jadhav Case (India v. Pakistan), Reply of the Republic of India, 17 April 2018, para. 90). The argument was not developed during the oral proceedings (www.icj-cij.org/en/case/168/oral-proceedings). In its judgment of July 2019, the Court held that these matters could not be invoked as a ground of inadmissibility as they pertained to the merits (Jadhav Case (India v. Pakistan), Judgment of the 17 July 2019, para. 57) but did not in fact return to them in its consideration of the merits.

172 The case relates to the effect of a 1996 amendment to the Foreign Sovereign Immunities Act of the United States, which removed the immunity before US courts of states designated by the US as ‘State sponsors of terrorism’. The respondent state invoked provisions of Res. 1373 (2001) in its challenges to admissibility and jurisdiction, arguing inter alia that, due to its alleged sponsorship of international terrorism contrary to that resolution, the applicant had come before the Court with ‘unclean hands’ (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections submitted by the United States of America, 1 May 2017, paras. 6.26, 7.33). Here the US cited paras. 1–2 of the resolution, specifically the provisions on preventing and suppressing the financing of terrorist acts and on refraining from providing any form of support to entities or persons involved in such acts. In its judgment on preliminary objections, the Court rejected this challenge to admissibility without prejudging whether such allegations might provide a defence on the merits (Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections, 13 February 2019, paras. 22–7, 116–24).

173 UN Doc. S/RES/1373 (2001), para. 6.

174 Proulx recently observed of the CTC that ‘this novel counterterrorism edifice facilitated ongoing dialogue between key institutions in the transnational security realm and domestic legal systems and ensured that international legal obligations would be translated and implemented in those same systems’. See Proulx 2020, supra note 54, at 193.

175 The CTC is given a clear role with respect to a number of Council resolutions (see UN Doc. S/RES/1373 (2001), para. 6; UN Doc. S/RES/1624 (2005), para. 6; UN Doc. S/RES/2178 (2014), para. 24; UN Doc. S/RES/2309 (2016), para. 11; UN Doc. S/RES/2322 (2016), para. 19; UN Doc. S/RES/2341 (2017), para. 10; UN Doc. S/RES/2354 (2017), para. 4; UN Doc. S/RES/2396 (2017); UN Doc. S/RES/2462 (2019), para. 36; 2482 (2019) para. 23). The CTC is not directly responsible for monitoring resolutions pertaining to the 1267 Sanctions regime, however, though there are areas of overlap: for example, Res. 2178 (2014) included provisions (on API) pertaining to individuals designated by the 1267 Committee, and the Council charged both the CTC and the 1267 Committee, as well as the entities established to assist their work, with following up on implementation of the resolution (UN Doc. S/RES/2178 (2014), paras. 9, 20–5; see, similarly, UN Doc. S/RES/2462 (2019), para. 36).

176 See, e.g., UN Doc. S/RES/2395 (2017), para. 10; Johnstone, supra note 11, at 95–6. See also earlier discussion of the CTC’s adoption of ‘managerial compliance strategies’ (N. Chowdhury Fink, ‘Meeting the Challenge: A Guide to United Nations Counterterrorism Activities’, (2012) International Peace Institute, at 8–10).

177 See UN Doc. S/RES/2395 (2017), para. 13.

178 Until 2006, individual country reports on implementation of Res. 1373 (2001) and Res. 1624 (2005) were publicly available. Since then, in its work supporting the CTC, CTED has issued public reports on the global implementation of Res. 1373 (2001), broken down by region or sub-region rather than individual states (see, e.g., UN Doc. S/2016/49; this report notes, at para. 5, that while it ‘includes some references to specific States that have made notable progress in certain areas … the fact that other States are not mentioned should not be understood to reflect negatively on their implementation efforts’. See further www.un.org/sc/ctc/resources/assessments/).

179 Proulx has suggested that the Council’s adoption of a series of resolutions on FTFs ‘signals that the UNSC may be called upon to play a role in implementing the responsibility of individuals or non-state terrorist actors on the international plane, or at least deliver pronouncements relevant to the subsequent implementation of individual and/or non-state responsibility in other settings’ (Proulx 2020, supra note 54, at 210).

180 Chowdhury Fink previously noted that notwithstanding the unprecedented political momentum for international counter-terrorism co-operation that followed 9/11, ‘enforcement remains a challenge in the absence of the council’s willingness to name and shame noncompliant states’ (Fink, supra note 176, at 20; see also E. C. Luck, ‘The US, Counterterrorism, and the Prospects for a Multilateral Alternative’, in J. Boulden and T. G. Weiss (eds.), Terrorism and the UN: Before and After September 11 (2004), at 80–1.

181 UN Charter, Art. 13(1). On the General Assembly’s law-making generally see Chesterman, Johnstone and Malone, supra note 46, at 151–5. See also Hinojosa Martinez, supra note 1, at 339–40.

182 See UN Charter, Art. 14; Certain Expenses, supra note 155, at 162–3; Crawford, supra note 158, at 709–10.

183 Respectively, 1316 UNTS 205 and UN Doc. A/RES/34/146; 2149 UNTS 256 and UN Doc. A/RES/52/164; UN Doc. A/RES/54/109; 2445 UNTS 89 and UN Doc. A/RES/59/290). Details available at treaties.un.org/pages/Treaties.aspx?id=18&subid=A&clang=_en.

184 J. Alvarez, International Organizations as Lawmakers (2005), at 273; see also Chesterman et al., who note that ‘an interesting feature of [the General Assembly’s lawmaking] is that all member states of the United Nations or relevant specialized agency have the right to participate in the negotiation and adoption of the treaty. Additionally, non-state actors, especially nongovernmental organizations (NGOs) tend to have more access, [international organization] personnel play a significant role, and expert bodies such as the [ILC] often play a role in treaty-drafting’ (Chesterman, Johnstone and Malone, supra note 46, at 151).

185 General Assembly Res. 174 (II), November 1947.

186 A. Watts, Codification and Progressive Development (2006) MPEPIL, at 37.

187 Statute of the International Law Commission, Art. 8.

188 Ibid., Art. 16(c).

189 Rosenne, contrasting the ILC, in this sense, with its League of Nations predecessor, described a ‘marriage of governmental reaction and professional expert investigation’ (S. Rosenne, ‘The Role of the International Law Commission’, (1970) 64(4) AJIL 24, at 28–9).

190 Under Art. 18(2) of its Statute, ‘When the Commission considers that the codification of a particular topic is necessary and desirable, it shall submit its recommendations to the General Assembly’ (emphasis added); see also discussion in P. S. Rao, ‘International Law Commission’, (2017) MPEPIL, at 6.

191 See Art. 23 of the ILC Statute; Watts, supra note 186, at 16, 31; International Law Commission, Survey of International Law in Relation to the Work of Codification of the International Law Commission: Preparatory work within the purview of article 18, paragraph 1, of the Statute of the International Law Commission – Memorandum submitted by the Secretary-General, 1949, UN Doc. A/CN.4/1/Rev.1, paras. 20–1.

192 UN Charter, Art. 39.

193 The range of phenomena which the Council characterizes as constituting threats to international peace and security has developed significantly over time (see Chesterman, Johnstone and Malone, supra note 46, at 127–8; McKeever, supra note 115, at 427–8).

194 As stated by the ICTY Appeals Chamber, ‘Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys wide discretionary powers in this regard; and it could not have been otherwise, as such a choice involves political evaluations of highly complex and dynamic situations’ (Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 39).

195 UN Charter, Art. 24(2)

196 UN Charter, Arts. 40, 42, 43, 51.

197 Talmon, supra note 1, at 181. The recent resolutions assert that ‘terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed’ (e.g., UN Doc. S/RES/2178 (2014), preamble (emphasis added)).

198 Talmon, ibid., at 183–4; Hinojosa Martinez, supra note 1, at 349.

199 Talmon argued that ‘the usual way of to create obligations of an abstract and general character (the conclusion of treaties and the development of customary international law) must be inadequate to achieve that aim. Council legislation is always emergency legislation’ (Talmon, supra note 1, at 183–4); see also Rosand, supra note 1, at 585.

200 See UN Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, paras. 2, 17; Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism on the human rights challenge of states of emergency in the context of countering terrorism, 1 March 2018, A/HRC/37/52, paras. 10, 14.

201 Writing in 2005, Rosand was broadly favourable towards the Council’s legislative action, but proposed a number of safeguards were this activity to be repeated, such as ‘regular (e.g., yearly) Council review of the measures to ensure that they are still needed’ (Rosand, supra note 1, at 585–6); Hinojosa Martinez, supra note 1, at 359.

202 See UN Doc. S/RES/2368 (2017), para. 94; UN Doc. S/RES/2395 (2017), para. 2.

203 See supra note 14.

204 On the resources involved in campaigning for a Council seat, see www.cbc.ca/news/politics/canada-un-security-council-von-scheel-1.5113585; news.err.ee/948972/un-security-council-spot-would-cost-foreign-ministry-4-million-per-year; www.regjeringen.no/en/aktuelt/costs-campaign-un-security-council/id2638778/.

205 On the staffing requirements of Council membership, the relative advantages of the permanent Members in terms of institutional memory and familiarity with Council procedure see P. Romita, N. Chowdhury Fink and T. Papenfuss, ‘Issue Brief: What Impact? The E10 and the 2011 Security Council’, (2011) International Peace Institute, at 2–3, 10; S. von Einsiedel, D. M. Malone and B. Stagno Ugarte, ‘The UN Security Council in an Age of Great Power Rivalry’, (2015) United Nations University, Working Paper Series No. 4, at 4–5.

206 R. Gowan, Minimum Order – The role of the Security Council in an era of major power competition (2018), at 10–12; Chesterman, Johnstone and Malone, supra note 46, at 288.

207 The five permanent members have played major roles in advancing some of the keystone resolutions in this area, including Res. 1373 (2001), 1624 (2005), 2178 (2014), and 2396 (2017).

208 Where two member states agree to split a two-year term, as was the case recently with Italy and the Netherlands for the 2017–2018 term. On the evolving (strategic) approaches taken by E10 members, see ‘In Hindsight: Emergence of the E10’, Security Council Report, October 2018, available at www.securitycouncilreport.org/monthly-forecast/2018-10/in_hindsight_emergence_of_the_e10.php. On the history of split Council terms see Herndl, supra note 12, at 311–12

209 See, with respect to legislation adopted in the United Kingdom, C. Walker, ‘Clamping Down on Terrorism in the United Kingdom’, (2006) 4 JICJ 1137; with respect to Australia, see Proulx 2020, supra note 54, at 199–200; K. Roach, The 9/11 Effect: Comparative Counter-Terrorism (2011), at 309; F. Davis, N. McGarrity and G. Williams, ‘Australia’, in K. Roach (ed.), Comparative Counter-Terrorism Law (2015), at 650–82.

210 On the challenges which incorporating Security Council resolutions into domestic law may pose for states see Bianchi, supra note 25, at 893–5.

211 See, for example, UN Doc. S/RES/2199 (2015), para. 29; UN Doc. S/RES/2253 (2015), paras. 15, 36; UN Doc. S/RES/2368 (2017), para. 16.

212 See, e.g., UN Doc. S/RES/2462 (2019), paras. 36–37. Thürer noted in his discussion of ‘soft law’, generally, that ‘soft law is sometimes coupled with hard procedure’ (Thürer, supra note 74, para. 13); in the context of counter-terrorism specifically, Huszti-Orban and Ní Aoláin have noted that the nomenclature of ‘soft law’ understates the extent to which these ‘function as distinctly hard in practice’ (Huszti-Orban and Ní Aoláin, supra note 95, at 6).

213 See the Council discussion on 30 May 2006, UN Doc. S/PV.5446, and discussion in Bianchi, supra note 25, at 897.

214 Ibid., at 914.

215 In particular, regarding measures relating to countering the financing of terrorism (see UN Doc. S/2016/49, paras. 415–19, noting that ‘[t]he level of compliance with the requirements of paragraph 1 (c) and (d) of resolution 1373 (2001) remains inadequate’ (para. 416)).

216 On the imbalance in resources among even Security Council Members, and the impact this can have on actions taken in the area of counter-terrorism see Alvarez, supra note 1, at 876–7; on these imbalances generally see D. D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’, (1993) 87(4) AJIL 552, at 564–5.

217 See Section 3, supra.

218 See Zollmann v. United Kingdom, ECtHR (2003), Application no. 62902/00, Decision on Admissibility, at 1.

219 For example, the 2015 Council of Europe Protocol mentioned above, and the 2017 EU Directive, supra note 20.

220 A. Aust, Modern Treaty Law and Practice (2007), at 244–7; I. Sinclair, The Vienna Convention on the Law of treaties (1984), at 116.

221 1969 Vienna Convention on the Law of Treaties, Art. 31(3).

222 Kosovo, supra note 76, para. 94.

223 Talmon, supra note 1, at 187; Hinojosa Martinez, supra note 1, at 350 (note 81).

224 The Council spent six months working on the draft of Res. 1540; the views of states within and outside the Council were taken, and indeed the Council held an open debate with the active participation of 51 member states, 36 of whom were not members of the Council at the time (Talmon, supra note 1, at 188; Rosand, supra note 1, at 582–3; Hinojosa Martinez, supra note 1, at 352–3). See also Joyner, supra note 27, at 227–30, 235–8.

225 Johnstone, supra note 11, at 112. Separately, in her discussion of the due process issues raised by the 1267 sanctions regime, Hovell has contended that development of the ombudsperson mechanism has ‘undoubtedly opened up decision making in important ways’ and has ‘the potential to promote democratization by increasing access to information and opening up deliberation to a wider cross-section of the international community’ (D. Hovell, ‘Due Process in the United Nations’, (2016) 110(1) AJIL 1, at 22–5).

226 An informal meeting, arranged and chaired by a Council member but held outside of the Council chambers.

227 See S/PV.8496, available at https://undocs.org/en/S/PV.8496. See also discussion at www.securitycouncilreport.org/monthly-forecast/2019-05/in-hindsight-arria-formula-meetings.php.

228 On the drafting process for Council resolutions see Wood, supra note 116, at 11–14.

229 Other examples of the more open approach of the Council can be seen in the open briefings of the CTC (in July 2019, Res. 2482 (2019) was adopted on the subject of the nexus between terrorism and organized crime; nine months earlier the CTC had held an open briefing on that subject (www.un.org/sc/ctc/news/2018/10/09/counter-terrorism-committee-holds-open-briefing-terrorcrimenexus/)).

230 Johnstone, supra note 11, at 207. He also notes that some of the Council’s functions are properly conducted behind closed doors, that the Council ‘would not be an effective crisis manager if all its meetings were in public, let alone open to participation by the entire UN membership and interested NGOs’ (at 211).

231 The ILC has defined a reservation as ‘a unilateral statement, however phrased or named, made by a State or an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State or organization purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that international organization’, and an interpretative declaration as ‘a unilateral statement, however phrased or named, made by a State or an international organization, whereby that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions’ (Report of the International Law Commission, Sixty-Third Session, 2011, A/66/10/Add.1, at 1–2)

232 See VCLT, Arts. 19–23; see also the work of the ILC on this topic, available at legal.un.org/ilc/texts/1_8.shtml.

233 See, e.g., Financing Convention, Art. 27; Terrorist Bombing Convention, Art. 23; see, generally, VCLT Arts. 42–3, 54, 56.

234 In Res. 1372 (2001), after noting measures taken by Sudan to comply with earlier resolutions and welcoming that State’s accession to some of the counter-terrorism treaties, the Council terminated the sanctions it had imposed in Res. 1070 (1996) following the attempted assassination of President Mubarak.

235 On the need for express Council action to terminate obligations arising under an earlier resolution, and consequences for issues of democratic representation, see Caron, supra note 216, at 577–84; see also Gowlland-Debbas, supra note 77, at 673.

236 Crawford, supra note 128, at 115.

237 Herndl, supra note 12, at 387.

238 For State perspectives on this threat see National Strategy for Counterterrorism of the United States of America, October 2018, at 9–10, 18; CONTEST: The United Kingdom’s Strategy for Countering Terrorism, June 2018, at 21. See also The Soufan Centre, White Supremacy Extremism: The Transnational Rise of the Violent White Supremacist Movement, September 2019; CTED Trends Alert, Member States concerned by the growing and increasingly transnational threat of Extreme Right-Wing Terrorism, July 2020 (the latter notes the efforts of such groups to use COVID-19-related conspiracies to radicalize) (www.un.org/sc/ctc/wp-content/uploads/2020/04/CTED_Trends_Alert_Extreme_Right-Wing_Terrorism.pdf).