1. Introduction
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 by international lawyers and policy-makers alike.Footnote 1 It 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 five years following 9/11 was relatively modest.
By contrast, the June 2014 declaration of a ‘caliphate’ by ISIL triggered not just one major legislative resolution by the Council but a veritable wave of action, sustained over the following five years. Both quantitatively and qualitatively, the 2014–2019 activity far exceeded that of 2001–2006. This 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.
The first section of this article will recall the ways in which counter-terrorism law was made prior to Resolution 1373 (2001). Section 2 will outline the main critiques of the Council’s legislative activity in the early 2000s. Section 3 will outline the factual context for the more recent legislative activity in the counter-terrorism sphere and will describe the new law adopted in response to those developments. Section 4 will examine some consequences of this recent activity and the challenges it poses for the application of organizing principles and processes of international law, including as relates to the distinction between soft law and binding rules; interpretation and amendment of legal rules; consistency across legal regimes; and compliance. Section 5 will consider whether the recent activity nevertheless represents a necessary and effective way of achieving the aims of the Council. In light of this analysis, the final section will revisit earlier assessments of the comparative advantages and disadvantages of making counter-terrorism law by Council resolution rather than by treaty.
This article will make 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.
2. The role of the Council and traditional ways of making counter-terrorism law
Under the UN Charter, in order ‘to ensure prompt and effective action’ by the United Nations, the Security Council has the primary responsibility for the maintenance of international peace and security.Footnote 2 To this end, its resolutions can serve a number of important functions: make determinations of internationally wrongful acts and demand cessation;Footnote 3 establish fact-finding mechanisms;Footnote 4 authorize the use of force;Footnote 5 demand that parties to a dispute take steps to reduce tensions;Footnote 6 establish special political missionsFootnote 7 or peace operations;Footnote 8 establish judicial bodies or refer particular situations to such bodies;Footnote 9 and legislate to fill an identified gap in the law.Footnote 10 In addition to their legal or operational effects, which can be swiftly felt, such resolutions may also have significant political effects in that, by manifesting multilateralFootnote 11 consensus on an issue, they can generate or sustain political momentum on the international, regional, or national levels. No less importantly, the Council also serves as a forum,Footnote 12 for its 15 members as well as invited member statesFootnote 13 or relevant international and regional organizations, to engage in high-level dialogue on pressing matters of international peace and security.
Traditionally, the Council did not play a significant role in making international counter-terrorism law. That is not to say that it was inactive in this area, rather that its activity was rarely intended to create binding rules applicable to all states. Prior to 9/11, Council resolutions on terrorism typically addressed particular terrorist attacks or organizations, or bilateral disputes arising from particular attacks (for example, the attempted assassination of Egyptian President Mubarak, and the Lockerbie bombing); where such resolutions imposed obligations, these related to a defined factual situation and applied for a defined period of time.Footnote 14
Instead, in earlier decades, the vast majority of international counter-terrorism law was made through treaties. From 1963, a series of multilateral conventions were adopted relating to conduct commonly associated with terrorism: acts against the safety of civil aviation and maritime navigation, bombing, hostage-taking, activities involving nuclear material, and the financing of terrorism. These imposed a range of obligations with respect to such conduct: domestic criminalization; establishment of extra-territorial criminal jurisdiction in certain circumstances; the aut dedere aut judicare rule; exclusion of the conduct at issue from being considered a political offence for the purposes of extradition, and so on. There are currently 19 of these instruments.Footnote 15 The most recent was adopted in 2014. Twelve have over 150 state parties; eight have over 170.Footnote 16 There have also been a series of regional instruments adopted on counter-terrorism, by the African Union,Footnote 17 the Association of Southeast Asian Nations,Footnote 18 the Council of Europe,Footnote 19 the European Union,Footnote 20 the Commonwealth of Independent States,Footnote 21 the Organization of the Islamic Conference,Footnote 22 and the South Asian Association for Regional Cooperation.Footnote 23
3. Resolution 1373 and the critiques
Over the course of the last two decades, however, the Council has become increasingly active, in a legislative sense,Footnote 24 in the area of counter-terrorism. There are two distinct, but related, components to the legal framework developed by the Security Council. First, the Council established a counter-terrorism sanctions regime, under which states are obliged to impose an asset freeze, travel ban, and arms embargo with respect to certain individuals and entities designated, by the Council’s ‘1267 Committee’,Footnote 25 as being associated with al-Qaida and, since 2014, ISIL.Footnote 26 Second, the Council has imposed on all states obligations to take certain measures to counter terrorism, irrespective of the affiliation of the perpetrator to any particular organization: these include obligations to criminalize participation in, support to, and financing of terrorist acts (Resolution 1373 (2001)), and travel for the purpose of committing terrorist acts or providing or receiving terrorist training (Resolution 2178 (2014)). Both components have been frequently refined by the Council. They have also been expanded: in terms of the individuals and groups to whom the repressive measures are to be applied, but also in terms of the areas of state activity identified by the Council as germane to counter-terrorism and in respect of which legal obligations have therefore been created.
The Security Council’s creation of new legal obligations in the area of counter-terrorism following 9/11 was contentious, not least as it imposed binding obligations on all member states, with no stipulated end-date.Footnote 27 Some potential advantages of this new approach were noted, including that Council law-making could prove a pragmatic way to ensure a prompt normative response to an identified need, in contrast to the long and cumbersome treaty-making processes;Footnote 28 and/or could facilitate normative specificity, in contrast to the sometimes indeterminate customary law making process.Footnote 29
Most legal commentators saw more negatives than positives, however. Talmon observed that resolutions, by their nature, are less detailed than treaties, and are secured only through political compromise, leading to general language and often a lack of clarity; that the lack of travaux préparatoires for Council resolutions removes a possible aid to interpretation; and that Council resolutions lacked clear deadlines for implementation.Footnote 30 Happold questioned whether the Council had acted ultra vires, worried that the adoption of Resolution 1373 (2001) might mark the beginning of a new state in the practice of the Council, and suggested that such legislative activity might be more palatable if it were carried out only in partnership with the General Assembly.Footnote 31 Bianchi noted the issues of uneven state representation on the Council; the lack of transparency in its procedure; the absence of supervisory machinery to assess the effectiveness of state implementation of these new laws; and the fact that the Council’s activity is subject to limited, if any, judicial scrutiny.Footnote 32 Alvarez analysed the adoption of Resolution 1373 (2001), and other measures taken by the Council in the early 2000s, within the prism of ‘hegemonic international law’.Footnote 33 Hinojosa Martinez, noting that the Council lacked a large enough membership to be considered representative, argued that if the Council were to assume a general legislative function, ‘not only would it be overlapping the [General Assembly’s] modest competences, but rather it would be subverting the structural bases of the international legal order itself’.Footnote 34 Wood acknowledged that the Council was empowered to take general measures in response to a particular threat to the peace, if it considered this to be necessary, but suggested that ‘the circumstances in which such general measures are considered necessary and appropriate may prove to be rare’Footnote 35 and cautioned that the Council ‘needs to exercise self-restraint and use its undoubted powers responsibly and only where it really is necessary to do so in order to ensure prompt and effective action to maintain international peace and security’.Footnote 36
4. The new threat and the new law
4.1 The new and evolving threat
ISIL declared its ‘Caliphate’ in mid-2014; by November 2015 the Security Council described it as constituting ‘a global and unprecedented threat to international peace and security’.Footnote 37 By January 2016, the UN Secretary-General reported that ISIL had captured large swathes of territory in both Iraq and Syria, was conducting military campaigns, administering territory, and implementing a communications strategy to broaden its support, while also expanding its influence across West and North Africa, the Middle East and South and South-East Asia.Footnote 38
The emergence of ISIL and its affiliates did constitute a new type of terrorist threat. A number of characteristics stand out: the control of extensive areas of territory, the generation of vast financial resources, the scale of impact on civilians and the institutionalization of sexual slavery and human trafficking, and the capacity to organize attacks on multiple continents. Another was highlighted in the same report of the Secretary-General, namely that more than 30,000 individuals had travelled from over 100 countries to join ISIL and its affiliates in Iraq and Syria: this phenomenon of ‘foreign terrorist fighters’ (FTFs) demanded ‘not only global and national solutions, but also urgent action at the local level’.Footnote 39
That threat has evolved. By 2019 ISIL remained ‘by far the most ambitious international terrorist group, and the one most likely to conduct a large-scale, complex attack in the near future’, but had reverted to a decentralized group, the rate of travel of FTFs to the conflict zones in the Middle East had decreased, and states’ concerns had shifted to the threats posed by FTFs returning to and through their territory.Footnote 40 By 2020, states assessed that between one half and two thirds of the more than 40,000 persons who had travelled to join the ISIL ‘caliphate’ were still alive, and that regional ISIL affiliates were maintaining a high tempo of attacks.Footnote 41 Other concerns related to the impending release from prison of FTFs who had received relatively short sentences upon their return to Europe, many of whom were still assessed to be dangerous,Footnote 42 and, in particular, the complex legal and operational challenges posed by the presence of large numbers of FTFs and family members in detention camps in northern Syria.Footnote 43 The laws adopted in response have reflected many of these evolutions.Footnote 44
4.2 The news laws – unprecedented volume and breadth
Amidst extensive debates on the legality and legitimacy of Council law-making in the early 2000s, the Council’s legislative activity on counter-terrorism in the years following Resolution 1373 (2001) was, in fact, relatively modest. A number of observers predicted that this would continue to be the case,Footnote 45 and until 2014, broadly speaking, it was.Footnote 46 But with the rise of ISIL and the advent of the FTF phenomenon the Council’s law-making activity on counter-terrorism has sharply accelerated and diversified, as illustrated by a number of factors.
First, the sheer volume of activity. July 2019 marked five years since the emergence of ISIL. In that period, the Council adopted 16 resolutions on global counter-terrorism efforts, seven of which were adopted under Chapter VII of the Charter;Footnote 47 together, these contain over 350 operative paragraphs directed at member states.Footnote 48 Notably, at least 85 of the operative paragraphs directed at member states constitute mandatory measures decided by the Council – that is, binding obligations on member states.Footnote 49 True, some of those operative paragraphs ‘reiterated‘ or ‘reaffirmed’ earlier decisions, but when such reiterations appear in resolutions introducing new substantive obligationsFootnote 50 or significantly expanding the scope of existing ones (a pattern particularly notable with respect to the ‘1267 sanctions regime’Footnote 51), then even those reiterations will need to be carefully scrutinized to determine the precise scope of the measures henceforth to be undertaken by member states. Any material changes to existing obligations are rendered more significant by the fact that these resolutions – unlike the Council’s earlier terrorism-related activity discussed above – have no geographical boundaries or sunset clauses.
The increase in recent years has been both quantitative and qualitative. To provide some context: in the five years following 9/11 (another period marked by a series of terrorist attacks, in multiple countries, perpetrated by one major terrorist organization and its affiliates), the Council adopted a similar number of resolutions specifically on counter-terrorism (19). However, these contained only 78 operative paragraphs directed at member states, 29 of which constituted binding measures. In other words, when compared to its activity following 9/11, the Council’s resolutions in response to ISIL directed five times as many operative paragraphs at states and imposed three times as many legal obligations.
To provide further context: in the same period from mid-2014 to mid-2019 when the Council was so active on counter-terrorism, it adopted just six resolutions on its agenda item ‘Protection of civilians in armed conflict’ (none of which were under Chapter VII),Footnote 52 and only one on ‘Non-proliferation of weapons of mass destruction’.Footnote 53 The Council’s activity on counter-terrorism since the emergence of ISIL thus significantly exceeds both what it is has done on this issue previously, and what it has been doing on other topics of eminent importance to international peace and security in the same period. The (political) causes for this, and some (legal and practical) consequences, will be examined below.
A second point is the breadth of topics addressed by these recent resolutions:Footnote 54 prosecuting, countering the financing of, and preventing the travel of FTFs;Footnote 55 sanctions (travel bans, asset freezing and arms ban) on designated individuals and groups;Footnote 56 new methods of terrorism financing and measures to counter these;Footnote 57 the link between terrorism and organized crime;Footnote 58 aviation security;Footnote 59 international co-operation in criminal matters, including extradition and mutual legal assistance;Footnote 60 protecting critical infrastructure from terrorist attack;Footnote 61 countering terrorists’ narratives,Footnote 62 misuse of information and communications technology,Footnote 63 and access to small arms and light weapons;Footnote 64 the use of national and international watch-lists and databases;Footnote 65 the use of biometrics;Footnote 66 border management;Footnote 67 the prevention of radicalization in prisons;Footnote 68 and strategies for the prosecution, rehabilitation and reintegration of FTFs and their family members.Footnote 69 Some of these issues had been referred to in earlier resolutions, but the resolutions adopted since 2014 have seen far more detailed treatment, including through binding obligations, leading to a significantly more prescriptive approach.
Addressing the complex phenomenon that is terrorism properly requires a multi-faceted approach: not just repressive measures but also steps to prevent radicalization and mobilization. But terrorism is not the only complex matter on the agenda of the Council, and its approach to this topic is materially different to its approach to other complex matters. Adding to the point made above on the comparative frequency of resolutions, many of the recent counter-terrorism resolutions are significantly more elaborate than resolutions which: established international transitional administrations over territory;Footnote 70 established a no fly zone, authorized ‘all necessary measures’ to protect civilians and extended a sanctions regime;Footnote 71 or established a peacekeeping operation.Footnote 72 As will be discussed below, when combined with other dimensions of the Council’s recent activity (including the unclear content of some rules, and shifting normative value of others), this breadth of topics increases the risk of incoherence and even normative conflict across different bodies of international law. Such breadth and volume, and thus such risks, were not anticipated in the critiques of the early 2000s.
5. Why does this matter?
These developments raise a series of questions regarding important dimensions of contemporary international lawmaking: the development and impact of soft law; interpretation and amendment of legal rules; normative fragmentation; and compliance. In respect of each, the distinctive character of the Council’s recent activity on counter-terrorism complicates the application of organizing principles and processes of general international law in ways which were not fully anticipated in the earlier critiques.
5.1 Soft law and/or binding rules?
It has recently been noted that the Council’s resolutions on terrorism ‘also rely on the assistance of “soft law” mechanisms to ensure their effective and enforceable implementation’.Footnote 73 While this may be the intention, in practice the impact of the soft law components may be more mixed, not least as the relationship between these elements and the binding components is often unclear and fluid.
To be clear, the contention here is not that soft lawFootnote 74 is necessarily more or less advantageous as a method of developing multilateral responses to terrorism – there may be clear advantages to employing soft law, including in facilitating agreement, dealing with uncertainty, and lowering ‘sovereignty costs’.Footnote 75 Rather, the issue is that the Council’s recent activity on counter-terrorism utilizes both hard and soft law simultaneously, in a manner which can obscure the important distinctions between the two.
In its Advisory Opinion in Namibia, the International Court of Justice (ICJ) was required to determine whether in Resolution 276 the Council had made a decision (under Article 25 of the Charter) as opposed to a recommendation or request. It stated as follows:
In view of the nature of the powers under Article 25, the question whether they have in fact been exercised, is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.Footnote 76
Being able to make this determination is important. In his 2006 Lauterpacht lectures, Wood noted a number of reasons why: Governments need to know whether they are obliged to do or abstain from a particular act, for purposes of domestic and international litigation as well as statements before Parliament; states need to know whether other states are under a legal obligation to act in a certain way; to make determinations, where necessary and in view of Article 103 of the Charter, on the prioritization of obligations ;Footnote 77 and for domestic law implementation. Wood also observed that the requisite clarity is often lacking, however, due to time and political pressures under which resolutions are adopted, unexplained changes in drafting practices, and the Council’s inconsistent use of language.Footnote 78
Looking to the activity we are discussing here, several points can be made. First, the universal and indefinite nature of the recent resolutions broadens the category of states affected by them, which heightens the importance of being able to determine what is and what is not binding (and when). Second, whereas the resolution at issue in Namibia comprised nine operative paragraphs and pertained to one particular situation, applying the contextual factors identified by the ICJ in that case may be more difficult with respect to a counter-terrorism resolution such as Resolution 2253 (2015), comprised of 99 operative paragraphs (and two annexes) and applicable in respect of individuals and entities across the globe.
Third, whereas typically ‘soft law rules have not – or not entirely – passed through all stages of the procedures prescribed for international law-making; they do not stem from a formal source of law and thus lack binding legal force’,Footnote 79 the soft law we are considering here does stem from a formal source of law (namely the competence of the Security Council, under Article 25 of the Charter, to adopt decisions binding on all member states) and has gone through the procedures prescribed for law-making of this nature (by being included in a resolution adopted by the Council in a manner consistent with Article 27 of the CharterFootnote 80). Indeed, often these soft law norms are pronounced in resolutions which also include binding components (sometimes in the same operative paragraphFootnote 81); many are included in resolutions adopted under Chapter VII.Footnote 82 This compounds the factors noted by Wood, above, further complicating the task of distinguishing soft law from binding rules in the recent Council resolutions on terrorism in ways not envisaged in the earlier critiques of Council law-making.
To take one example: how to characterize an operative paragraph in which the Council, in a resolution adopted under Chapter VII, ‘strongly urges’ all member states ‘to implement’ the standards of the Financial Action Task Force (FATF) on Combatting Money Laundering and the Financing of Terrorism?Footnote 83 The paragraph in question is quite specific: it identifies the particular elements of the FATF standards to be applied, including the appropriate evidentiary standard of proof for targeted financial sanctions. The paragraph does not use mandatory language, however:Footnote 84 on its face this is not a decision of the Council. But it seems far weightier than what is usually characterized as ‘soft law’. And as to the contextual aids to interpretation mentioned above, this particular resolution has 105 operative paragraphs, and three annexes.
In any event, even if the character of a given provision as soft law rather than binding obligation is clear at first, it may not stay that way for long: in some cases, the Council’s initial ‘calls’ for a particular action by member states have swiftly developed, by the time of a later resolution, into a mandatory decision by the Council that states shall take such action.
One example relates to advance passenger information (API). In September 2014, the Council called on member states:
to require that airlines operating in their territories provide advance passenger information to the appropriate national authorities in order to detect the departure from their territories, or attempted entry into or transit through their territories, by means of civil aircraft, of individuals designated by the [1267 Committee].Footnote 85
This resolution was adopted under Chapter VII, but the operative paragraph in question was hortatory, not mandatory. The benefits of API were then flagged in a number of other Council documents (not resolutions).Footnote 86 In September 2016 the Council reiterated the call (with respect to the same individuals) in Resolution 2309 (2016).Footnote 87 A month later, the International Civil Aviation Organization (ICAO) adopted an amendment to Annex 9 of the Chicago Convention on Civil Aviation, making the collection of API an international standard for states party to that instrument (though not yet a binding rule of international law).Footnote 88 Two months thereafter, acting under Chapter VII, the Security Council decided, in furtherance of Resolution 2178 (2014) and the standard established by ICAO ‘that Member States shall require airlines operating in their territories to provide API to the appropriate national authorities …’, in order to detect not just persons designated by the 1267 Committee, but also FTFs more generally.Footnote 89
That the Council’s resolutions, both the binding and non-binding components, can play a role in the development of international law is not a new observation – Higgins addressed this half a century ago.Footnote 90 What has been different in the counter-terrorism sphere in recent years is the pace at which this happens, and that can be traced to two factors. First, these resolutions, unlike those adopted by the Council in previous years and on other topics, are of general scope rather than addressed to discrete situations. And second, the apparent perception among Council members between 2014–2019Footnote 91 that the adoption of multiple resolutions, on an ever-increasing range of topics, constitutes a necessary and effective contribution to multilateral counter-terrorism efforts. The result, whereby ‘soft law’ coalesces into binding international rules within a handful of years, has few parallels in other areas of international law.Footnote 92
The development of soft law on counter-terrorism has also been impacted by the work of other entities, including the General Assembly,Footnote 93 the Global Counterterrorism Forum,Footnote 94 and the FATF. While a detailed discussion of each of these is beyond the scope of the present article,Footnote 95 the relationship between FATF recommendations and Security Council resolutions on the financing of terrorism is worthy of further discussion, and will be considered next.
5.2 Interpreting (amended) Council resolutions
In one important area of counter-terrorism law the Council has materially changed the scope of obligations imposed under its own earlier resolution to bring them in line with standards developed by another body. In Resolution 1373 (2001), the Council had decided that all states shall take measures including:
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criminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts (para. 1(b));
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prohibit their nationals or any persons and entities within their territories from making any funds … available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts … (para. 1(d)).Footnote 96
With this resolution the Council imposed on all UN member states some of the obligations arising from the 1999 Convention on the Suppression on the Financing of Terrorism. Article 2 of that Convention requires that states parties criminalize the willful collection or provision of funds with the intention or knowledge that they are to be used in order to carry out specific acts of terrorism (defined according to earlier counter-terrorism instruments, listed in an annex, and/or a free-standing definition included in the Convention).Footnote 97 Resolution 1373 (2001) departed from the 1999 Convention on the issue of providing a definition of terrorism, but remained consistent with that Convention in that it required the act of financing to be linked to a specific act of terrorism.
Subsequent to this resolution, however, international standards in this area evolved, particularly under the influence of FATF, a 35-member inter-governmental body established by the G-7 to set standards and promote effective implementation of measures to combat money laundering, and (since 2001) the financing of terrorism and WMD. Its Recommendations, first issued in 1990 and revised frequently since then, are recognized as international standards in these areas. FATF, and its regional derivatives, conduct mutual evaluations of states and issue detailed, influentialFootnote 98 and public reports on compliance with the FATF standards. From 2004 onwards, FATF had recommended that terrorism financing offences should not require that the funds or other assets (i) were actually used to carry out or attempt a terrorist act, or (ii) be linked to a specific terrorist act.Footnote 99 As the accompanying guidance observes, in this regard FATF’s Recommendation 5 deliberately went beyond the obligations contained in the 1999 Convention.Footnote 100 While its expertise is not doubted, FATF cannot easily be situated within traditional international law-making processes:Footnote 101 it was not established by treaty, has no formal authority to oversee the implementation of any international legal instrument, and does not propose treaties for adoption by its ‘member jurisdictions’.Footnote 102 Separately, concerns have been raised regarding the extent to which human rights concerns are reflected in its processes and products.Footnote 103
For present purposes, it is useful to track the way in which the FATF recommendations have been reflected in the Council’s activity. In Resolution 2253 (2015), the Council first reaffirmed, in the preamble, the provisions of Resolution 1373 (2001), with explicit reference to the financing ‘of terrorist acts’, then (as noted above) in the operative paragraphs, ‘strongly urge[d]’ all member states to implement the revised FATF standards, welcomed recent FATF reports, and expressly highlighted that FATF Recommendation 5 ‘applies to the financing of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act’.Footnote 104
A year later, in the preamble to Resolution 2322 (2016), the Council:
recall[ed] that the obligation in paragraph 1(d) of resolution 1373 (2001) also applies to making funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act.Footnote 105
The extent to which this was merely a ‘recall’, rather than a reinterpretation of the obligation in paragraph 1(d) of Resolution 1373 which materially changed the scope of that obligation, is open to question. Paragraph 1(d) had not included the ‘for any purpose’ stipulation, or the express de-coupling from a link to a specific terrorist act – changes which must be seen to have broadened the reach of the obligation. This was not simply an evolutive interpretationFootnote 106 of the terms in Resolution 1373 (2001).
In any event, the precise legal effect of this statement in Resolution 2322 (2016) was not immediately clear, given that the earlier provision had come in a mandatory paragraph of a Chapter VII resolution, while the ‘recall’ came in the preamble of a resolution which did not have that status. To what extent, as a matter of law, could the latter amend the former? Six months later, in Resolution 2368 (2017), the Council went further, and in an operative paragraph in a resolution adopted under Chapter VII, expressly ‘clarified’ that the obligation in para. 1(d) of Resolution 1373 (2001) applied to making funds available, directly or indirectly, for the benefit of terrorist organizations or individual terrorists ‘for any purpose’, and ‘even in the absence of a link to a specific terrorist act’.Footnote 107
As of this date, beyond the issue of when the obligation in question had attained this broader scope, it was unclear whether the ‘for any purpose’ stipulation also applied to paragraph 1(b) of Resolution 1373 (2001). That provision was not mentioned in Resolutions 2253 (2015), 2322 (2016) or 2368 (2017), and yet the rationale for adding ‘for any purpose’ would appear to apply equally here, and indeed FATF’s recommendation (above) had been made with specific reference to the criminalization obligation addressed in paragraph 1(b) of Resolution 1373 (2001).Footnote 108
This question was answered in March 2019, with the adoption of Resolution 2462 (2019). Here, in addition to confirming again the more expansive interpretation of paragraph 1(d) of Resolution 1373 (2001),Footnote 109 the Council also:
Decides that all States shall, in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law, ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense the wilful provision or collection of funds, financial assets or economic resources or financial or other related services, directly or indirectly, with the intention that the funds should be used, or in the knowledge that they are to be used for the benefit of terrorist organizations or individual terrorists for any purpose, including but not limited to recruitment, training, or travel, even in the absence of a link to a specific terrorist act.Footnote 110
Again, as noted above, paragraph 1(b) of Resolution 1373 (2001) had required criminalization only of financing known or intended to be used ‘in order to carry out terrorist acts’: the requirement that this link exist was express. The italicized text in Resolution 2462 (2019) expressly removed that requirement and confirmed that that obligation is now of a significantly broader reach.
Commentators including the UN Special Rapporteur for the promotion and protection of human rights while countering terrorism have criticized the breadth of the criminalization obligations in Resolution 2462 (2019),Footnote 111 though for present purposes these developments raise a separate point.
Considerations of how obligations would evolve, or be formally amended, were rarely addressed in the critiques of the early 2000s. With treaties, the situation is clearer. Treaties may be amended by agreement of the parties, with the specific procedures for doing so regulated either by the treaty itself, or, by default, under rules provided in the Vienna Convention on the Law of Treaties.Footnote 112 Certainly, such processes are unlikely to be swift. Separately, however, treaty law also provides that a particular word or phrase in a treaty can attain a different meaning over time, through the express agreement of the parties,Footnote 113 their subsequent practice in implementing the treaty,Footnote 114 or through developments in other international rules that bind the parties.Footnote 115
These established rules do not exist with respect to Council resolutions.Footnote 116 There is nothing in the Charter to suggest that the Council is precluded from amending its own previous resolutions: if it determines such action to be necessary, it is authorized to do so. But practice even within the counter-terrorism sphere is uneven, and whereas some amendments to the Council’s resolutions on counter-terrorism have been express (notably, changes to the scope of the 1267 sanctions regime),Footnote 117 the foregoing discussion illustrates some questions that may arise where this is not the case.
For example, in ascertaining whether, and to what extent, the Council has amended a previous resolution or is now interpreting a phrase in a previous resolution in a materially different manner, what weight is to be attached to statements in preambular paragraphs, operative paragraphs in resolutions that were not adopted under Chapter VII, statements by Council members at sessions when the resolutions in question were adopted, or the Council’s subsequent practice in other areas (presidential statements, practice of subsidiary bodies, etc.)?Footnote 118 There are no hard and fast rules here, and a case-by-case, contextual analysis is unlikely to facilitate clarity and consistency in application of what are, after all, legally binding provisions of global effect. A lack of clarity is particularly problematic in resolutions which oblige member states to establish individual criminal liability.
5.3 (In)coherence and the risk of fragmentation
Elements of recent Security Council resolutions on terrorism also raise questions regarding the coherence and consistency of international legal rules. Once more, the factors triggering these questions were not anticipated in the earlier critiques of Council law-making.
Looking first at coherence, a good example is the obligation to collect and use Passenger Name Record (PNR) data.Footnote 119 In April 2016, the EU adopted a Directive on the use of PNR in countering terrorism.Footnote 120 It had taken almost five years of negotiation for this instrument to be adopted, in view of complex issues relating to data protection, and particularly the sharing of PNR data with states outside of the EU. And this, it should be noted, was an instrument adopted by a collection of states whose legal systems already have so many rules in common, through the acquis, common instruments stipulating human rights obligations,Footnote 121 and a court with mandatory jurisdiction to rule on disputes that may arise (indeed, a court which has pronounced on precisely this issue)Footnote 122 – characteristics which are not replicated across the wider UN membership.Footnote 123
In Resolution 2396 (2017), adopted in December 2017 under Chapter VII, the Security Council nevertheless decided that all UN member states:
shall develop the capability to collect, process and analyse, in furtherance of ICAO standards and recommended practices, passenger name record (PNR) data and to ensure PNR data is used by and shared with all their competent national authorities, with full respect for human rights and fundamental freedoms for the purpose of preventing, detecting and investigating terrorist offenses …Footnote 124
As the end of the same operative paragraph acknowledged, however, at the time of this Council resolution ICAO had not yet adopted the requisite standards; the Council therefore ‘urge[d] ICAO to work with its member states to establish a standard for the collection, use, processing and protection of PNR data’.
So how were states to implement an obligation ‘in furtherance of’ standards that did not yet exist? Also, compliance with this obligation would clearly have important resource considerations - as, again, the Council itself acknowledged in simultaneously ‘call[ing] upon Member States, the UN, and other international, regional, and subregional entities to provide technical assistance, resources and capacity building to Member States in order to implement such capabilities’. Here, then, the Council imposed on all UN member states a new obligation, with significant legal and resource implications, despite the fact that there was no international consensus on what the correct, lawful, implementation of this obligation would look like – no consensus on the precise content of the obligation.
More than two years later, in July 2020, the ICAO Council adopted a standard on PNR. At time of writing, that standard is due to become effective in October 2020, and applicable in February 2021.Footnote 125 There are political dimensions to consider here, in that the Council’s adoption of a binding rule on PNR (in December 2017) may have catalyzed political discussions within ICAO,Footnote 126 leading to adoption by the ICAO Council of a standard two and a half years later. Such political considerations should not be ignored. But equally – reflecting once more the distinctive character of the activity we are discussing – here the typical sequence in international law-making whereby political negotiation precedes and is directed towards the adoption of binding legal rules, was reversed.
Turning to consistency, the issue of ‘fragmentation’ in international law, generally, has been discussed at length elsewhere, in the 1950s by JenksFootnote 127 and more recently by the International Law Commission (ILC).Footnote 128 With respect to counter-terrorism law specifically, in her September 2017 report the UN Special Rapporteur for the promotion and protection of human rights while countering terrorism, noted that the pace of norm-creation was creating challenges regarding fragmentation and ineffectiveness, and indeed, that the rate of response ‘has often out-paced the capacity for full consideration of the overall effects of sustained norm creation on the protection and promotion of human rights’. She went on to call for fuller exploration of the interaction of these new norms with other bodies of norms, notably in the area of human rights and humanitarian law.Footnote 129
The former has been discussed in detail elsewhere,Footnote 130 but the interaction of counter-terrorism law and IHL is also gaining prominence.Footnote 131 The recent focus reflects, in part, the evolution in the terrorist threat outlined at Section 4.1 above – that is, the fact that groups such as ISIL and affiliated groups, designated as terrorist organizations, are also party to non-international armed conflicts (NIAC) to which IHL is applicable, and tens of thousands of individuals have travelled to join such groups in situations of armed conflict. This raises at least two legal challenges.
First, whereas counter-terrorism law seeks to proscribe acts of violence and much conduct that is ancillary thereto, IHL envisages (and in an international armed conflict renders lawful) the use of violence within certain parameters. True, in a NIAC IHL neither provides for ‘combatant immunity’ nor precludes the application of domestic criminal (including counter-terrorism) law, but it does call on states to grant ‘the broadest possible amnesty’ to persons who have participated in the armed conflict,Footnote 132 and ICRC and other stakeholders have emphasized that characterizing as ‘terrorist’ the violent acts of a non-state party to a NIAC can undermine efforts to encourage that party to comply with IHL.Footnote 133 To date, whereas many of the counter-terrorism treaties include clauses clarifying the extent to which conduct in armed conflict is excluded from the reach of the treaties,Footnote 134 the Security Council has not expressly addressed whether the criminalization provisions in its resolutions apply equally in situations of armed conflict.Footnote 135
The second challenge is how to ensure that counter-terrorism law does not impede the delivery of impartial humanitarian assistance as protected under IHL.Footnote 136 Humanitarian agencies have reported that, in practice, counter-terrorism laws often limit their ability to implement programmes according to needs alone, obliging them to avoid certain groups and areas, thereby delaying or preventing humanitarian assistance from reaching the most vulnerable communities.Footnote 137 This impact can arise in a number of ways: the risk of prosecution of humanitarian agency staff under laws which criminalize support to terrorism; the ‘chilling effect’ which that risk engenders; the incorporation in donor agreements of counter-terrorism clauses seen as unduly onerous or resource-intensive; and de-risking by financial institutions unwilling to provide financial services to humanitarian actors operating in situations of armed conflict where terrorist entities are known to be active. An important factor here is the expansion (discussed at Section 5.2 above) of the terrorism financing obligation to proscribe both the direct and indirect financing of terrorism and the provision of funds to terrorists ‘for any purpose’ – this increases the risk that the provision of humanitarian assistance can fall afoul of terrorism financing laws.Footnote 138 These interactions between IHL and counter-terrorism law have been characterized by many as ‘tensions’,Footnote 139 and by some as conflicts between legal rules.Footnote 140 In an important development, resolutions adopted by the Council in 2019 have expressly addressed the possible effect of counter-terrorism measures on the delivery of impartial humanitarian assistance,Footnote 141 though some commentators have argued that the Council still needs to do more to resolve these tensions between the two areas of law.Footnote 142
5.4 Compliance
This final point brings together those already noted in this part. First, as to enabling compliance, the blurring of the lines between soft law and binding rules means that a state seeking in good faith to ascertain what, precisely, the Security Council is obliging it to do and to act accordingly, must navigate this complex web of evolving norms. Second, unresolved issues around conflicts between elements of the counter-terrorism law developed by the Council and rules from other areas of international law, including IHL, may place states in a situation where complying with the former entails non-compliance with some of the latter.Footnote 143
Third, a lack of clarity in what the binding rules are, whether and when the content of the rules has been amended, and (again) the point at which previously hortatory statements have attained the status of binding rules, complicates the task of ascertaining whether in fact a state has complied with the obligations created by the Security Council.
And fourth, in the event of non-compliance, what can be done? Absent a circumstance precluding wrongfulness,Footnote 144 a state’s breach of a primary rule of international law on terrorism (be it treaty-based or deriving from a Security Council resolution) gives rise to that state’s responsibility for an internationally wrongful act and the resulting obligations to cease the wrongful conduct and make reparation for any injury caused.Footnote 145 This international responsibility can be implemented through invocation (including by recourse to a competent international tribunal),Footnote 146 or countermeasures.Footnote 147 These are well-established rules of general international law. In practice, however, they may be significantly more difficult to apply in respect of counter-terrorism obligations created under Council resolutions as compared to those arising under the counter-terrorism treaties.
ProulxFootnote 148 and TrappFootnote 149 have examined in detail the intersection of counter-terrorism law with the law on state responsibility, and contend that the Council itself could play, and in some cases has played, a significant role in implementing state responsibility for terrorism.Footnote 150 The most compelling examples cited by these commentators pre-date 9/11, however, and relate to the more traditional counter-terrorism resolutions discussed in Section 2 above (notably, the Council’s activity regarding Lockerbie):Footnote 151 that is, disputes arising out of alleged state involvement in specific acts of terrorism, involving Council resolutions which were limited in scope and comprised time-limits.Footnote 152 In the almost 20 years since the adoption of Resolution 1373 (2001), the Council has frequently condemned the terrorism-related acts of non-state actorsFootnote 153 but has yet to infer,Footnote 154 much less find, that a particular state is internationally responsible for breach of that resolution or the other law-making resolutions which followed it.
What other forum is available? Adjudication by the ICJ is possible in principle, though unlikely. An inter-state dispute relating to alleged failure to comply with obligations arising under a Council resolution (on terrorism) would fall within the competence of the Court. While the question of whether the Court can or should conduct ‘judicial review’ of the legality of particular Council action remains open (and much debated),Footnote 155 there is nothing to stop the Court interpreting Council resolutions where necessary; it has already done so on many occasions.Footnote 156
The more vexing issue is likely to be jurisdiction.Footnote 157 Whereas Trapp, looking at possibilities for invoking responsibility for state-sponsored terrorism,Footnote 158 examined the compromissory clausesFootnote 159 in the counter-terrorism treaties,Footnote 160 neither the Council resolutions at issue nor the Charter itself have such clauses. Indeed, these Council resolutions have no dispute settlement clauses whatsoever.Footnote 161 Alternatively, the consent-based jurisdiction of the Court over disputes relating to Council counter-terrorism resolutions could be founded on applicable Article 36(2) declarations or on an ad hoc agreement between the parties (compromis), though the cases in which either are available are likely to be rare.Footnote 162 Despite some recent progress on this front, still just over one-third of all UN member states have made the necessary declaration under Article 36(2), many with reservations as to subject matter and/or parties,Footnote 163 while the use of a compromis continues to be uncommon.Footnote 164 In some cases, regional treaties include dispute settlement clauses providing for the jurisdiction of the ICJFootnote 165 which could potentially encompass disputes relating to implementation of Security Council resolutions, though such mechanisms do not exist with respect to all regions.
Whatever about the possibilities in theory, in practice the Court has not yet been seised of claims based on these resolutions.Footnote 166 This is not for want of inter-state disputes relating to terrorism: both before and after 9/11, the Court has been seised of disputes relating to alleged breaches of the counter-terrorism treaties (Lockerbie being an early case;Footnote 167 the pending dispute between Ukraine and the Russian Federation a more recent exampleFootnote 168 ), while more general allegations of support to terrorism have been made by parties to a number of recent cases when setting out their positions on the factual background to the dispute.Footnote 169 Also, in two recent cases parties have made submissions based on Resolution 1373 (2001), though in neither instance were the applicant’s claims based on the resolutionFootnote 170 – in both Jadhav Footnote 171 and the pending Certain Iranian Assets Footnote 172 the resolution was invoked (unsuccessfully) in support of challenges to admissibility.
In practice, then, the most significant mechanism in terms of compliance with Security Council resolutions on terrorism has been the Counter-Terrorism Committee (CTC). This entity, established by the Council under Resolution 1373 (2001),Footnote 173 plays an important and – again – distinctiveFootnote 174 role in monitoring states’ implementation of certainFootnote 175 Council resolutions on terrorism. In Resolution 1535 (2004) the Council established the Counter-Terrorism Committee Executive Directorate (CTED) as a ‘special political mission’ charged with supporting the CTC in this work. Importantly, the CTC’s assessments do not seek to identify cases of non-compliance per se but, rather, take a more constructive approach by identifying ways in which the assessed state can strengthen its implementation of the Council provision in question (with technical assistance from a third party, if required): the CTC seeks to strengthen implementation of the Council’s resolutions through dialogue with states, not through ‘name and shame’ findings of non-compliance.Footnote 176 And though there have been moves to increase information-sharing with other UN agencies,Footnote 177 the CTC assessments are not made public unless and until the assessed states choose to publicize them.Footnote 178
While the benefits of this deliberate, pragmatic, and well-established approach can readily be appreciatedFootnote 179 the present point is that the CTC’s methodology is not designed to facilitate implementation by the Security Council (or indeed any other entity) of the international responsibility of states for breaches of the Council’s resolutions on terrorism.Footnote 180
6. Is it worth it? Necessity and efficacy
Recent Council resolutions on counter-terrorism, then, represent a distinctive category of international law-making and one which resists easy application of some organizing principles and processes of general international law. But that is not the end of the matter: as noted in Section 3, two of the arguments in favour of Council legislative activity in this area were that this was a necessary response to the threat which terrorism posed to international peace and security, and would be effective to that end.
As to necessity, there are legal, political, and practical dimensions to consider. Looking first at the legal, a point often missed in commentaries on the Security Council’s law-making activities is that it is the General Assembly (GA), not the Council, to which the Charter assigns the responsibility for making ‘recommendations for the purpose of … encouraging the progressive development of international law and its codification’.Footnote 181 And the Council has primary, not exclusive responsibility for international peace and security, with the GA also having competence in this area.Footnote 182 Indeed, both before and after the Council began legislating in this area, the GA adopted a number of international counter-terrorism instruments, including the 1979 International Convention against the Taking of Hostages, the 1997 International Convention for the Suppression of Terrorist Bombings, the 1999 Financing Convention, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.Footnote 183 This ‘default’ allocation of responsibilities under the Charter should be borne in mind when considering the Council’s recent legislative activity in the counter-terrorism sphere. Also, commentators including Alvarez have highlighted the increased ‘democratization’ of lawmaking by the GA, in view of both the number and type of stakeholders involved.Footnote 184
In the context of the critiques of Council law-making outlined above, it is useful to highlight some characteristics of the International Law Commission (ILC), the body established in 1947 to assist the GA regarding the progressive development and codification of international law.Footnote 185 First, on the issue of (in)consistency of legal rules, Watts highlighted the:
great value in a generalist legal body such as the ILC with overall responsibility for international law and able to secure the coherence of its different sectors and to guarantee the balance and perspective of the system as a whole.Footnote 186
Second, on democratic representation, the 34 members of the Commission are to be elected (by the GA) so that ‘representation of the main forms of civilization and of the principal legal systems of the world should be assured’,Footnote 187 while in its work on the progressive development of international law, the ILC is obliged to seek the views of governments on the topic under considerationFootnote 188 and the drafts it prepares are then discussed at the Sixth Committee of the GA, for discussion by all UN member states.Footnote 189 And third, the related point that the ILC does not always conclude that progressive development, or codification, on a given topic is appropriate. It is empowered to determine that the time is in fact not right for practice on a given issue to be codified: it can determine, at the outset, that a given topic is not yet appropriate for its study, or it can conclude, after initial study, that a given rule is not yet ‘ripe for codification’.Footnote 190 Or, indeed, having concluded its examination of a topic, it can recommend that any draft articles it has prepared remain in that form, without being converted into a treaty.Footnote 191 These ‘brakes’ serve an important function, ensuring that the ILC’s progressive development and codification of the law does not get too far out of step with the actual practice of states. The absence of such ‘brakes’ in Council law-making was apparent with the adoption of rules on PNR, discussed at Section 5.3 above: given the open questions as to content and the lack of consistent state practice, this would appear a topic that was not ‘ripe for codification’. In short, the Council is not the only UN entity with competence in the area of developing international law, and indeed the other bodies having that competence are in some respects less susceptible to the criticisms directed at the Council’s activities in this regard.
Coming back to the role which the Charter assigns to the Council itself, under Chapter VII it shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 [non-forcible measures] and 42 [forcible measures], to maintain or restore international peace and security.Footnote 192 The Council’s discretion here is wide – both in terms of determining the existence of a threat,Footnote 193 and in deciding on the appropriate measure to respond to that threat.Footnote 194 It is not unfettered, however. In discharging its duties the Council must act in accordance with the purposes and principles of the United Nations (which are laid down in Articles 1 and 2 of the Charter).Footnote 195 Also, Chapter VII itself contains multiple references to the Council adopting such measures as are necessary to maintain or restore international peace and security.Footnote 196 In the present context, the fact that the threat identified by the Council and against which its resolutions constitute a response, is, simply, ‘terrorism’, not limited to any one event, country, region, or period, gives further latitude to the Council.Footnote 197 Nevertheless, the Council’s actions – whether authorization for the use of force, establishment of subsidiary bodies, or legislative action to fill an identified gap in the law – are to be framed by what it has determined to be a necessary measure to remove a particular threat or restore peace.Footnote 198
This prompts the question: if the ‘default’ under the Charter is that legislative functions are the responsibility of the General Assembly, should Council legislation therefore (still) be seen as constituting urgent, exceptional, or even emergency measures to address an identified gap in existing international law?Footnote 199 In domestic law, and as is also reflected in international human rights law,Footnote 200 emergency measures are assumed not to be permanent, and often include clauses requiring the relevant authorities to verify whether they remain necessary after a designated period of time. Despite recommendations to this effect,Footnote 201 clauses of this nature have not been included in the Council’s recent resolutions on counter-terrorism, however. The mandates of some of the UN bodies established to support implementation of the counter-terrorism framework are time-limited,Footnote 202 but the legal obligations imposed on states are not. Again, this contrasts with the Council’s pre-9/11 approach, where it imposed legal obligations with respect to specific factual situations and with set times for the Council itself to reassess the necessity for such measures.Footnote 203
The second dimension on necessity is political, and may go a long way to explain the volume of Security Council activity on counter-terrorism in recent years. For non-permanent members of the Council, campaigning for membership of the Security Council requires the commitment of significant resources on the part of a candidate state. Campaigns are planned years in advance, require the usage of significant political capital on the international stage, and necessitate the diversion of diplomatic resources from other locations or international organizations.Footnote 204 When such campaigns are successful, membership of the Council requires significant staffing increases in states’ diplomatic representations in New York (with demands heightened where the incoming member chairs Council subsidiary organs or working groups),Footnote 205 not to mention increases in the workload of relevant ministries in capitals. In turn, this commitment of resources creates a need for Council members to be able to identify tangible outputs for that investment. In recent years, amidst strong disagreements among Council members on other matters affecting international peace and security, there has been relative consensus on counter-terrorism.Footnote 206 Reaching agreement on resolutions in this sphere may be seen, therefore, as the most achievable ‘deliverable’ for Council members, including permanent members who have directly experienced a terrorist attack.Footnote 207 Further, for the non-permanent members, their term on the Council is a maximum of two years (sometimes only one year),Footnote 208 a factor contributing perhaps to the pace of recent developments in this sphere, as discussed above.
These political imperatives cannot be ignored. But they should be weighed, by Council members, against the legal points made above and also against a final, practical point which speaks to both necessity and efficacy.
The risk of excessive domestic legislation in the counter-terrorism sphere has been highlighted by many commentators, and sometimes characterized as ill-considered, ‘knee-jerk’ responses to particular terrorist attacks.Footnote 209 Fewer have drawn attention to an analogous risk arising from excessive legislation at the international level, but the concerns are similar. In view of the breadth of topics covered by the new law adopted at the international level, a wide range of domestic stakeholders will need to amend or expand their activities in response to the Council’s resolutions: legislators;Footnote 210 police; prosecutors; judges; prison authorities; immigration authorities; customs authorities; national civil aviation and maritime security authorities; intelligence services; ministries of education; armed forces; banks and other financial institutions. In many cases, states – and therefore the wide range of domestic agencies involved – are also required to report to the UN on the measures taken to implement the new rules.Footnote 211 The 16 resolutions adopted between 2014 and 2019, discussed above, also contain 170 paragraphs addressed to relevant UN entities; with the expansion in the range of issues addressed by the resolutions has come a corollary expansion in the scope of the assessments carried out by those entities – this further increases the demands on member states when engaging in those processes. Recalling the discussion of soft law at Section 5.1 above, the Council resolutions on counter-terrorism which impose monitoring or reporting requirements often do not distinguish, in this regard, between the binding and non-binding parts of the resolutions.Footnote 212 As early as 2006, the Council itself acknowledged the heavy reporting burden which its counter-terrorism measures were imposing on member statesFootnote 213 – and yet the volume and breadth of those measures continues to expand.
Writing in 2006, Bianchi observed that it would be ‘misleading to believe that the efficacy of the fight against terrorism depends on increasing the number of international legal obligations incumbent on states’.Footnote 214 This was correct in 2006 and remains correct in 2020 but it does not go quite far enough: at some point excessive legislation is not only ineffective but counter-productive. Without commensurate increases in the resources allocated, the additional tasks which must be undertaken if states are to comply with Council resolutions will have consequences for the ability of those domestic actors to carry out existing tasks. Insofar as many of these domestic actors were already engaged in activities relevant to counter-terrorism (including those mandated by the Council in Resolution 1373 (2001), implementation of which remained far from complete while much of this new law was being adopted),Footnote 215 the new measures may mean that resources are spread ever more thinly in this field.
The foregoing assumes, of course, that these domestic actors are actually aware of these new rules. Whereas treaties are developed over time and require the involvement of domestic executive and parliamentary bodies, both during negotiation and – usually – ratification (involvement which can have positive consequences in terms of swift application thereafter), raising domestic awareness of rules arising from Security Council resolutions requires action by states’ diplomatic representations, relaying developments at the UN level to capitals. In this context, it is pertinent that while the Security Council resolutions discussed here impose obligations on all member states, the staffing levels of member states’ representations to the UN vary widely; few of the 193 UN member states have officers working solely on counter-terrorism matters.Footnote 216 Imbalances in member states’ resources are even more apparent domestically, of course.
7. Council resolutions v treaties? Revisiting the comparison
If the Council’s recently law-making activity creates significant challenges for the application of organizing principles and processes of general international law (as outlined in Section 5 above), and indeed may not be necessary or effective in achieving the aims sought (Section 6), what are the alternatives? Much of the earlier commentary placed the Council’s law-making activity in opposition to traditional treaty-making processes.Footnote 217 With the benefit of hindsight, and additional practice to consider, some comments can now be made in response to those critiques.
First, the expected advantages of making law by Council resolutions. One was clarity, but as discussed above, there are important areas of the recent resolutions where this has been, or indeed remains, lacking. Another was speed. It is undoubtedly true that the Council has legislated on a great many areas of counter-terrorism in a relatively short period of time. And it is very difficult to imagine that multilateral treaties on all of these topics could have been adopted in a similar period. It is also true that this Council action has generated or catalyzed political momentum on the international, regional, and national levels. And yet, the criminalization provisions, which are at the core of the Council’s counter-terrorism framework, are not directly enforceable in any court, international or domestic.Footnote 218 Nobody is prosecuted for ‘conduct contrary to paragraph 6 of resolution 2178’. Instead, domestic legislation is required. Indeed, in some regions the process of domestic incorporation has had to be further catalyzed by regional instruments or even, yes, the adoption of multilateral treaties.Footnote 219
Also, the Council has, on occasion, subsequently amended counter-terrorism obligations created through its own earlier resolutions. In principle, this might be seen as illustrating an advantage: the Council is able to respond swiftly to evolving threats to international peace and security while treaties, by contrast, are more difficult to amend. And yet, in practice, as discussed at Section 5.2 above, the extent to which the Council has made such amendments in its resolutions on counter-terrorism, and the point in time at which they take effect, is not always easy to discern.
And what of the expected disadvantages of making counter-terrorism law through Council resolutions? As to the concern that resolutions would be less detailed than treaties, in fact the more recent resolutions have become significantly more elaborate, in some cases of comparable length to treaties: to take one example, Resolution 2368 (2017) has 103 operative paragraphs, 45 preambular paragraphs, and three annexes. As to the influence of politics on Council resolutions, it can hardly be denied that political compromise is an unavoidable part of treaty-making, too. As for the absence of travaux for Council resolutions, preparatory works are rarely dispositive in treaty interpretation, one way or another,Footnote 220 are only intended to play a supporting role, where other methods fail to remove ambiguity,Footnote 221 and in any event the records of Council debates at sessions when resolutions are adopted may serve an analogous function.Footnote 222
The earlier critiques had also pointed to procedural flaws in Council law-making, noting that Resolution 1373 (2001) was adopted in just over 48 hours, that at the Council session when it was adopted no Council member spoke on the resolution, and that states which were not members of the Council were neither consulted on the draft nor present at its adoption.Footnote 223 There have, however, been subsequent examples of the Council employing more inclusive, and more considered, procedures in preparing resolutions. One related to Resolution 1540 (2004), on WMDs and non-state actors.Footnote 224 Drawing on the preparation of that resolution, Johnstone suggested that the Council is ‘a more deliberative body than meets the eye’, and that the co-operation of Council members with state and non-state actors outside the Council indicated a possibility ‘for something like a “public sphere” to coalesce around’ the Council.Footnote 225
A recent resolution provides a positive illustration of this possibility. In January 2019 an Arria formula meetingFootnote 226 on measures to counter the financing of terrorism was organized by France, Peru, and Indonesia (who were Council members at the time) together with Australia and Tunisia (who were not); this allowed for the issues to be discussed among a larger group of states, UN bodies, representatives of research institutes, and private sector entities. Two months later, Resolution 2462 (2019) was adopted on this topic at a Council session at which representatives of 48 non-Council states, the EU, AU, FATF, ICRC, and Interpol also spoke; the benefits of the prior, more inclusive, step were highlighted by a number of states.Footnote 227 There is nothing in the Charter or the Council’s rules of procedureFootnote 228 which requires that it take this more inclusive approach or, still less, that the views expressed by non-Council members are taken into account in the resolution that is ultimately adopted. But this more inclusive approach is certainly to be welcomed.Footnote 229 To quote Johnstone again: ‘those at the table ultimately decide, but what they decide and how effective their decisions are is determined in part by the inclusiveness of the deliberations that led to them’.Footnote 230
A different dimension of the debate regarding democratic representation – and one which was not fully explored in the earlier critiques – is the limited opportunities for non-Council states to circumscribe or subsequently amend the obligations imposed upon them by Council resolutions. First, states cannot enter reservations or interpretative declarations to Council resolutions in the way they can with respect to treaties.Footnote 231 Such devices have obvious benefits in that they enable states to specify – within certain parametersFootnote 232 – the obligations which they assume when becoming party to a treaty, thereby facilitating both wider adherence to legally-binding instruments and clarity in the precise scope thereof. And second, whereas treaties typically provide a state party with the option of bringing to an end the obligations it assumed thereunder by withdrawing from the treaty,Footnote 233 there is no such mechanism with respect to obligations arising under a Council resolution. As outlined above, the Council itself has the power to amend or terminate elements of previous resolutions,Footnote 234 though in the recent counter-terrorism resolutions it has consistently built upon existing obligations rather than terminating them.Footnote 235 Once more, these considerations become more significant in the present context given the breadth and indefinite nature of the resolutions.
In sum, many of the criticisms of making law through Council resolutions as compared to treaties remain valid, and indeed have been compounded by the volume and nature of the more recent activity. There are many reasons why treaties have long been the preferred method for creating international law across an increasingly broad field of subjects,Footnote 236 and the foregoing analysis illustrates that what works in other fields should remain the default option for counter-terrorism, too.
That is not to say that making law through treaties will necessarily avoid all of the difficulties outlined above. The 1950 analysis by Jenks, cited earlier in this article, was based solely on conflicts which can and do arise between treaties – general and specific, universal and regional, old and new. Rather, it is to say that the way, and the pace, at which treaties are negotiated, adopted, and ratified, provides greater opportunities for these difficulties to be appreciated and resolved by actors at the domestic and international levels, before the law takes effect.
8. Conclusion
Law-making is only one of many functions which Security Council resolutions can serve. In the counter-terrorism sphere, as in others, the political imperatives for, and the political impacts of, Council resolutions should not be downplayed.Footnote 237 And the Council clearly has an important role to play in guiding multilateral responses to terrorism and ensuring that these are responsive to the threat as it continues to evolve. As of late-2020, two emerging issues stand out. First, the Council could encourage states to collect and share information on the increasing threat posed by terrorist groups motivated by extreme-right wing ideologies (including in the context of the COVID-19 pandemic), any transnational links between such groups, and effective response measures.Footnote 238 And second, further Council activity could also be beneficial with respect to the possible impact of counter-terrorism measures on the delivery of humanitarian assistance protected under IHL.
But there is a need for a shift in the institutional mindset. The volume and breadth of the Council’s activity on terrorism since the emergence of ISIL is unprecedented. Ever more law, pertaining to ever more areas of state activity, that is of global effect and applicable indefinitely. Terrorism is not the only complex phenomenon that poses a threat to international peace and security, and the Council’s activity on other issues that are also complex and of extreme importance to international peace and security is of a strikingly different nature. It would be a mistake to proceed on the basis that every evolution in international terrorism requires a Security Council resolution or, still less, a Security Council resolution that imposes binding obligations on all member states.
Many of the concerns raised in the early 2000s regarding the Council’s law-making activity remain valid. Some which relate to Council procedures could be addressed: indeed, the Council has done so already, just not on a systematic basis. Regularizing some of the measures seen in 2019 would be a positive development. Overall, however, the problems highlighted in the earlier critiques have been compounded by the sheer volume of activity since 2014, as new laws have been adopted and some of the older laws have been amended (expressly or otherwise). Clarity – regarding the precise scope of the obligations imposed by the Council or the interaction of those new obligations with other international rules – is often lacking.
Moving forward, the presumption should be that treaties – the more traditional method – constitute the more appropriate and effective mechanism for making new law. Where the Council determines, exceptionally, that this traditional method will in fact not suffice and that it must act, the content of the resolutions it adopts should be more systematically informed by considerations of necessity and of efficacy. Failure to do so risks unnecessarily over-burdening states’ legislators, police, prosecutors and judges, and even diplomats; more to the point, it risks being counter-productive.
