2. United Nations' powers and the powers of its member states

When states create international organizations (IOs), often by concluding a treaty, they delineate their fields and means of operation through the principle of conferral.Footnote ⁹ According to this principle, states transfer specific competences and powers to an IO in order to achieve certain common objectives. ‘Competences’ are the spheres of authority of the organization whereas ‘powers’ refers to any ‘instrumental tool available within a given sphere of competence’.Footnote ¹⁰ Powers are thus the key to making competences real and effective.Footnote ¹¹ From the above, it becomes apparent that IOs are entities whose jurisdictional authority, namely their political and/or legal power to act, is circumscribed and dependent. As the International Court of Justice (ICJ) said in the Reparation for Injuries Advisory Opinion, IOs are not states, still less ‘super-states’, and their rights and duties are therefore more limited than those of states.Footnote ¹² By delimiting the competences and powers of an IO, states also protect themselves against any subsequent power grabbing by that IO. That having been said, the relationship between IOs and member states is more complex and indeed more dynamic than the above account reveals. For example, and as far as the United Nations is concerned, although states have transferred certain competences and powers to the Organization (primarily in relation to peace and security),Footnote ¹³ it has not been possible to enumerate in detail all its powers or to foresee all the circumstances under which the United Nations might be called upon to act. Moreover, the UN Charter is formulated as an enabling document. It contains programmatic principles and purposive objectives whose realization may require powers additional to the ones initially conferred on the Organization. If the United Nations is a ‘political body, charged with political tasks of an important character, and covering a wide field, namely, the maintenance of international peace and security’Footnote ¹⁴ and if ‘the fulfilment of the other purposes will be dependent upon the attainment of that basic condition’,Footnote ¹⁵ the United Nations should not only exercise its powers to their ‘full extent’,Footnote ¹⁶ but also assume additional powers in order to attain ‘the master idea’Footnote ¹⁷ behind its creation, that of maintaining international peace and security. Another factor that lends itself to the growth of UN powers is the fact that the United Nations is endowed with permanent organs that are independent from states. Thus, in the exercise of their powers, they not only impact on states, but can also produce a redistribution of power, vis-à-vis the member states as well as amongst themselves. It should also be noted in this regard that the competence of each organ to determine the scope of its respective powers is self-referential and self-judging, measured only against the aims it pursues.Footnote ¹⁸ Furthermore, UN organs, with the exception of the ICJ, are not organically limited as far as their powers are concerned according to predetermined jurisdictional domains because they do not operate on the basis of the principle of separation of powers. According to this principle, each institution in the tripartite division of institutions into legislative, executive, and judiciary can only exercise powers commensurate with its jurisdictional domain. In the United Nations, instead, there is no real correlation between organs and types of power or between powers and specific instruments, but the UN political organs, such as the Security Council or the General Assembly, can exercise different powers and employ a variety of instruments − legislative, executive, or even quasi-judicial − depending on the nature of the problem at hand and the objective sought to be achieved. For all of the above reasons, the principle of conferral provides little restraint to the expansion of UN powers. As a matter of fact, the question of what powers belong to the United Nations has been answered in functional and teleological terms, with emphasis being placed on UN purposes as moulded by the demands of international life.Footnote ¹⁹ As Judge Azevedo put it, ‘the aims of the United Nations must be served so that mankind may flourish’Footnote ²⁰ and, for this reason, according to Judge Alvarez, the text of the Charter must be ‘vivified’ and the United Nations attributed with rights that it does not possess, provided that they are ‘in harmony with the nature and objects’ of the Organization.Footnote ²¹ Or, in the words of the former UN Secretary-General Dag Hammarskjöld, a concept of the United Nations as ‘a dynamic instrument of government’ is to be preferred over that of a ‘static conference machinery’, if the United Nations is to save succeeding generations from the scourge of war.Footnote ²²

From the very beginning, the ICJ has been instrumental in reading UN powers in teleological terms. According to the ICJ, ‘the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’Footnote ²³ and it went on to say that ‘under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.Footnote ²⁴Essential, however, does not mean ‘absolutely essential’ or ‘indispensable’,Footnote ²⁵ but means that which enables the United Nations to function in view of its objectives and also in view of the ‘necessities of international life’, as the ICJ was quick to add in another instance.Footnote ²⁶

Truth to tell, the ICJ has been rather ambivalent as to how extensive such additional powers can be. In the Reparation for Injuries Advisory Opinion, it linked such powers to the aims pursued by the United Nations and not to the expressed powers granted to the Organization, which is what Judge Hackworth advocated.Footnote ²⁷ In the Certain Expenses Advisory Opinion, the ICJ conceded that, even if the UN purposes are broad, neither these purposes nor the powers to effectuate them are unlimited. However, it went on to say that ‘when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation’.Footnote ²⁸ In the Nuclear Weapons Advisory Opinion, the ICJ was more circumspect as to the scope of additional powers that certain specialized IOs may assume but, when it came to the United Nations, it reaffirmed its view that the United Nations possesses broad powers commensurate with its objectives. More specifically, the ICJ found in that instance that the World Health Organization (WHO) lacked the power to request an advisory opinion concerning the legality of the threat or use of nuclear weapons. For the Court, the principle of speciality,Footnote ²⁹ the other aspect of the principle of attribution, is more restrictive as far as the powers of specialized agencies such as the WHO are concerned. Yet, the ICJ allowed for some flexibility in the way the powers of specialized agencies should be interpreted by noting that the interpretation should be made in such a way as to take into account the logic of the whole UN system.Footnote ³⁰ With regard to UN powers, however, the Court repeated its findings in the Reparation for Injuries case, namely that the Organization also has those powers that are essential for the performance of its duties.Footnote ³¹

What emerges from the ICJ jurisprudence is that the United Nations has either very broad implied powers in order to achieve its aim of peace and security or has, in fact, inherent powers – that is, all the powers that derive from the UN objectives.Footnote ³²

It is in this context − that is, the exponential expansion of UN powers culminating in the assertion by the Security Council of legislative powers − that the jurisdictional authority of the United Nations is pitted against the jurisdictional authority of its member states. States feel that the balance of power between the United Nations and themselves has been disturbed and that their jurisdictional capacity is declining, whereas that of the United Nations is increasing. Legal discourse tends to portray the problem as one of competing jurisdictions that need to be separated by a competent organ on the basis of the law. However, such an approach is not helpful because the legal criteria, if they exist, are not at all clear whereas the availability of judicial processes to resolve disputes or the legally binding effect of their decisions is haphazard. The flaws of the ‘technical’ approach are evident in those cases mentioned above, such as the Reparation for Injuries and the Certain Expenses cases, in which the ICJ was called upon to give an advisory opinion as to the scope of UN powers. More specifically, the Court was asked to give its opinion, in the former case as to whether the United Nations has specific powers to bring a claim for reparation due in respect of damage caused to a victim of a wrongful act and in the latter case as to whether the General Assembly has the power to provide for the financing of measures designed to maintain international peace and security, in this case, peacekeeping operations, which required a finding as to whether the General Assembly has the power to establish such operations. According to France, one of the parties that provoked the General Assembly's request for an advisory opinion in the Certain Expenses case, if the issue of how the peacekeeping operations should be financed is to become a legal one, then it is the UN Charter that should provide the relevant answers.Footnote ³³ The Court was, however, asked to deliver its legal opinion in a context in which, on the one hand, there is an organization that, as explained above, has broad powers and objectives and, on the other, there are no legally enforceable criteria in the Charter to demarcate the said powers. Therefore, the ICJ invoked policy considerations. It took the view that the nature and scope of UN powers are not determined by any specific provision in the Charter, but by the ends pursued by the Organization, which justifies the arrogation of new powers.Footnote ³⁴ Although the ICJ's advisory opinions are silent on the question of how the relationship between the United Nations and its member states should be configured, this is the default question lurking behind the request in the Certain Expenses case. As Judge Fitzmaurice put it in his separate opinion, ‘what is really in question here is the relationship of the Member States inter se, and vis-à-vis the organisation as such’.Footnote ³⁵ According to France's submissions, member states have not alienated themselves from their powers by becoming UN members, but only ‘dans la stricte mesure où ils y ont consenti’.Footnote ³⁶ For the French government, the General Assembly's budgetary decisions outside the strict confines of the powers bestowed upon it by the Charter amount to ‘un pouvoir législatif mondial’.Footnote ³⁷

The Court did not deal with this issue but, by adopting a goal-oriented approach to UN powers, it disposed rather abruptly of the principle of conferral, which, as noted above, provides guarantees to member states that their powers will not be appropriated by the IO.Footnote ³⁸ The ease with which the Court dispensed with this principle is explained by the one-dimensional focus of its analysis: for the Court, the question was what powers the United Nations can assume in the light of its purposes and not what powers the United Nations can assume vis-à-vis its member states in the light of its purposes. By adopting an all-or-nothing approach to UN powers, the ICJ may have also encouraged, even if involuntarily, antagonistic relations between the United Nations and its member states. It is not surprising, then, that the Court's opinions neither impressed states, some of which opposed them,Footnote ³⁹ nor assuaged states’ deeper anxieties as to how membership of the United Nations and striving for peace and security can be combined with preserving their jurisdictional authority and integrity. Such anxieties are not unique to UN members only, but are also visible in other settings in which institutions have been endowed with broad objectives and powers that they tend to pursue dynamically. One should recall here the frequent and often terse jurisdictional clashes between the European Union and its member states, which, in contrast to the United Nations, take place in a system in which respective powers are more clearly demarcated and compulsory adjudication mechanisms exist.Footnote ⁴⁰

What the preceding discussion then shows is that a legal and indeed a judicial approach to the demarcation of powers between the United Nations and its member states is not always able to settle any disputes that may arise because the issue is not necessarily a technical one about delimitation of powers, but a more profound one about the jurisdictional autonomy and integrity of each respective order, and about the appropriate level of interaction between the United Nations and its member states in the pursuit of the common goal of peace and security. Such tensions will always be immanent, because both the United Nations and its member states, whilst representing different loci of authority, operate within the same policy field and pursue common goals. Law-making with regard to terrorism and WMD is but one example in which UN powers seem to be on a collision course with those of member states. What is needed, therefore, is a change of perspective: from one that focuses on separating different jurisdictional authorities to another that focuses on mediating between them, in order to identify the appropriate level at which power will be exercised for attaining the common good − an aim to which all actors subscribe, and in which they have invested. This comes in the form of the principle of subsidiarity, as will now be explained.

3. The principle of subsidiarity and its place in the UN Charter: Article 2(7) UN Charter

The origins of the principle of subsidiarity go back to Aristotle, but it is Catholic doctrine that popularized this concept. Subsidiarity was invoked in 1891 by the Catholic Church and has been reaffirmed since then in different contexts as a principle of social ordering of constituent parts in order to serve and attain the common good.Footnote ⁴¹ In Catholic teaching, the concept of subsidiarity tries to reconcile the individual and social aspects of human existence in its search for personal fulfilment and, for this reason, it encourages intervention by larger units only when the individual unit cannot attain its fulfilment without such assistance.Footnote ⁴² Thus, the main values underpinning subsidiarity are the value of autonomy, mutual assistance, and the fulfilment of each unit and of the referent order as a whole.

From its origins in Catholic social doctrine, subsidiarity gradually acquired political dimensions when it was applied to organized and composite political orders, whether state or international ones.Footnote ⁴³ Within political orders, subsidiarity assists in regulating the relationships between and among different power holders with a view to attaining the common good effectively and less intrusively. More specifically, subsidiarity determines which level of authority will achieve the objectives of the proposed action more efficiently and justify action by a higher level of authority only if the proposed objectives cannot be achieved equally well by the lower levels of authority and only if that action does not interfere unnecessarily with their authority. That said, subsidiarity does not define the common good, which is defined by the stakeholders at a prior stage and through a different process.Footnote ⁴⁴ Furthermore, subsidiarity does not define the scope of powers that each unit possesses or how they are allocated. Again, this is determined at an earlier stage and by a different process. Instead, subsidiarity mediates between different, albeit interlocking, authorities and provides the conditions and the reasons for preferring one level of authority to exercise power over the other on a case-by-case basis.Footnote ⁴⁵ Put differently, subsidiarity is about the dialectics of power in composite polities. Its role is thus flexible. It can have a negative connotation of limiting the opportunity for exercising power as well as a positive one of legitimizing the assertion of power by any one of the referent units. In the same vein, it can be a centralizing as well as a decentralizing force.

The European Union is the best-known supranational institution in which subsidiarity has become one of the constitutional principles.Footnote ⁴⁶ The United Nations is another organization in which the principle of subsidiarity applies even if it has never been mentioned expressly. For example, subsidiarity informs inter-institutional relations between the United Nations and other security actors,Footnote ⁴⁷ as well as intra-institutional relations between the Security Council and the General Assembly.Footnote ⁴⁸ Above all, it informs the relationship between the United Nations and its member states in Article 2(7) UN Charter. According to that article, the United Nations should not intervene in matters falling essentially within a state's domestic jurisdiction. It is true that most interpretations of that article try to decipher the content of the limitation contained therein,Footnote ⁴⁹ and do not approach it in the way suggested here – that is, as an expression of the principle of subsidiarity. Yet, such interpretations fail to elucidate its content because the meaning of the phrase ‘matters within the domestic jurisdiction’ or the meaning of ‘intervention’ is ‘à la fois juridiquement indéterminé et juridiquement indéterminable’.Footnote ⁵⁰

It has been maintained, for example, that those matters that are excluded from domestic jurisdiction are matters of international concern. As the Permanent Court of International Justice (PCIJ) put it, ‘the question whether a certain matter is or is not within the jurisdiction of a state is an essentially relative question; it depends on the development of international relations'.Footnote ⁵¹ According to another view, those things that are excluded from the domestic preserve are matters regulated by international law. Yet, according to a third view, that article protects a small bundle of rights that are inherent to state sovereignty and thus removed from the reach of international law without, however, being conclusively defined.Footnote ⁵² The same lack of interpretative determinacy mars the word ‘intervention’. The debate has focused on whether it refers to any coercive action below the enforcement threshold that is explicitly exempted from the purview of Article 2(7) or to any type of interference, such as political or economic interference. The different constructions of that article not only make its content elusive, but themselves tend towards contradictions or self-negating results.Footnote ⁵³ For example, if what is exempted from Article 2(7) is matters that concern the international community or matters that are the subject of international regulation, that article loses any content or purpose to the extent that the United Nations is the embodiment of the international community and creator as well as facilitator of international law. On the other hand, it can always be ‘possible for a State to maintain, without necessarily laying itself open to an irresistible charge of bad faith, that practically every dispute concerns a matter essentially within its domestic jurisdiction’.Footnote ⁵⁴ Furthermore, if the United Nations is precluded from taking any action other than enforcement because such action may impact on member states, this would severely curtail its powers, emasculate its effectiveness, and raise questions about its existence. UN practice concerning Article 2(7) has equally failed to clarify its content but instead shows that the invocation of domestic jurisdiction never succeeded in stopping UN organs from asserting their powers with regard to matters that were claimed to fall within a state's domestic jurisdiction. This led one commentator to say that domestic jurisdiction is ‘undergoing a continuous process of reduction’.Footnote ⁵⁵

It appears, then, that the impact of Article 2(7) has been negligible and that it has become devoid of juridical meaning or purpose in the UN system. Although it was introduced as a complement to the principle of conferral in order to protect the jurisdictional authority of states, it failed to prevent the expansion of UN powers just as the principle of conferral failed to arrest such ‘power creep’.

That having been said, if Article 2(7) still has a place in the UN system and a role to play, what is needed is to revisit its underlying principle and its ‘spirit’.Footnote ⁵⁶ First, it should be recalled that Article 2(7) was introduced in order to protect the jurisdictional autonomy of states as members of the United Nations.Footnote ⁵⁷ Second, its role is to regulate the exercise of jurisdictional authority by the United Nations and its member states in the pursuit of common objectives and not to define the realm of jurisdictional authority enjoyed by the United Nations or member states, which is a prior question that is subject to different considerations. Third, the jurisdictional interaction between the United Nations and member states that emerges from that article and its different interpretations is relational and not fixed or organically separated.Footnote ⁵⁸ Fourth, its nature is political rather than juridical, as a comparison with its predecessor, Article 15(8) of the Covenant of the League of Nations, which specifically included the criterion of international law, reveals, as well as the rejection of proposals to make the ICJ final arbiter of domestic jurisdiction.Footnote ⁵⁹ This view is also supported by the travaux préparatoires according to which Article 2(7) was viewed not as ‘a technical and legalistic formula’Footnote ⁶⁰ but as a fundamental rule regulating the relationship of the United Nations with its member states and was considered ‘inherent in the whole concept of an international organization’.Footnote ⁶¹ It is for this reason that it was transposed to the general-principles section of the Charter from the section on the peaceful settlement of disputes.

From the above, it emerges that Article 2(7) was placed at the intersection of United Nations' and member states’ jurisdictional authorityFootnote ⁶² and provides the context in which the powers of the United Nations meet those of its member states in the pursuit of the common goal of peace and security. It is only if it is seen in this way, as a filter of powers, that this article acquires normative and practical significance and meaning. It is in this vein, then, that it is claimed here that Article 2(7) is an expression of the principle of subsidiarity.Footnote ⁶³

4. Subsidiarity and legislation by the Security Council

Having explained in the previous section the function of subsidiarity and its place in the UN system, I will now consider its application to the case of SC legislation. Its application involves a number of more specific enquiries. It should be established, first, that the proposed legislation falls within the Security Council's jurisdictional powers and within an area in which states also have jurisdictional powers; secondly, that SC legislation deals with a transnational issue and serves the common purpose more efficiently than law-making by states; and, thirdly, that the legislative act is proportional to the ends sought.

The first enquiry is a necessary a priori inquiry because subsidiarity is relevant only when the Security Council shares legislative powers in the specific policy area with states; it is only then that questions about identifying the appropriate locus of jurisdictional authority arise. If the Security Council does not have legislative power with regard to the specific issue or the issue belongs to its exclusive powers or to the exclusive powers of member states, subsidiarity is not relevant.

With regard to the question of whether the Security Council possesses legislative powers in the area of peace and security, an affirmative answer is supported by the pervading teleological interpretation of UN powers explained previously – an interpretation that derives powers from objectives and purposes. Support can also be found in specific Charter provisions. According to Article 39, the Security Council can adopt ‘measures’ to maintain or restore the peace if it determines that a threat to the peace, a breach of the peace, or an act of aggression exists.Footnote ⁶⁴ Such measures can be military according to Article 42 or non-forcible according to Article 41 but the list of measures included in this article is only indicative and not exhaustive.Footnote ⁶⁵ This is because the situations that can trigger SC measures are defined in generic terms, such as a threat to the peace, which precludes any predetermination of the measures that will be employed by the Security Council. In this respect, what was said previously needs to be recalled, namely that there is no correlation between organs, powers, and instruments in the United Nations other than in relation to the objectives pursued by the United Nations. It can thus be safely said that the word ‘measures’ in Article 41 is agnostic as to what specific measures the Security Council may use but, depending on the circumstances, the Security Council can adopt a variety of measures of executive or of general character, such as legislation. For example, faced with a specific terrorist act, the Security Council may adopt specific and expeditious measures in order to maintain or restore the peace, but, faced with terrorism as a state of affairs, it may adopt legislative measures in order to suppress or eradicate it. It is in this vein that SC Resolution 1373 (2001) tries to deal in a general manner with certain aspects of terrorism, even though it was adopted against the background of the specific events of 9/11.

With regard to the second issue − namely that the Security Council needs to share legislative powers with states in the particular policy area − it may be contended that the Security Council enjoys jurisdictional pre-emption in all matters concerning peace and security because, according to Article 24 of the UN Charter, states have conferred on the Security Council primary responsibility in peace and security. The questions, then, are what does the word ‘primacy’ mean and what are its legal implications? The word ‘primacy’ is rather ambiguous but acquires meaning when interpreted in the context of the UN system as a whole. It can thus refer to institutional primacy as well as to subject-matter primacy. Institutional primacy refers to the relationship between the Security Council and the General Assembly in the sense that the Security Council takes precedence over the General Assembly, whose role is subsidiary to that of the Security Council. This is corroborated by other Charter provisions according to which the General Assembly cannot make any recommendation with regard to questions relating to international peace and security while the Security Council is exercising its functionsFootnote ⁶⁶ and by the Uniting for Peace Resolution according to which the General Assembly can be seized of a situation that otherwise falls within SC competence and can recommend enforcement action only if the Security Council, ‘because of lack of unanimity of the permanent members, fails to exercise its primary responsibility’ for the maintenance of peace.Footnote ⁶⁷ Above all, it is supported by the rationale behind the creation of two organs with overlapping powers in peace and security. More specifically, the founding states wanted an organ, the Security Council, with extensive and compelling powers in peace and security and a plenary organ, the General Assembly, with equally broad powers in peace and security to ‘discuss’ or ‘recommend’ but with no compelling powers.Footnote ⁶⁸

Subject-matter primacy refers to the area within the Security Council's areas of authority that should be given prominence by the Security Council in its operations, as well as to the specific matters within this area over which the Security Council enjoys pre-emptive powers. More specifically, having created an independent organ with broad and diverse powers, states instructed the Security Council to give priority to issues pertaining to international peace and security and, for this reason, they have also conferred on the Security Council sole powers with regard to ‘prompt and effective’ action. ‘Prompt and effective action’ does not, however, mean any action whatsoever but, according to the ICJ in the Certain Expenses case, it means enforcement action in the sense of military enforcement.Footnote ⁶⁹ The Court in that instance distinguished the word ‘action’ from the word ‘measures’, which resonates with the wording of Articles 41 and 42 of the UN Charter, in that Article 41 uses the word ‘measures’ whereas Article 42, which is the basis for the use of force, uses the word ‘action’. From the above, it can be safely said that, in so far as military enforcement is concerned, primacy implies exclusivity, whereas, in all other areas, the Security Council shares powers with member states. This view is corroborated by other provisions of the Charter. For example, the General Assembly does not have military enforcement powersFootnote ⁷⁰ and, according to the Uniting for Peace Resolution, it can only recommend military action. Furthermore, states can undertake enforcement action only with the authorization of the Security CouncilFootnote ⁷¹ and this is also the case with regard to regional organizations.Footnote ⁷² Likewise, whilst peacekeeping operations, as peace and security measures, can be established by states, international organizations, the General Assembly, or the Security Council, only peacekeeping operations that have an enforcement component involving the use of force fall within the exclusive competence of the Security Council.Footnote ⁷³ Thus, to the extent that legislation is not military enforcement for which states have conferred exclusive powers on the Security Council, it is a power that the Security Council shares with states, which, at any rate, possess inherent legislative power in international law.Footnote ⁷⁴

If both the Security Council and member states enjoy legislative powers, the immediate question, then, is to decide when it is opportune for the Security Council to exercise such power, which is an inquiry into subsidiarity stricto sensu. More specifically, what needs to be ascertained is whether the issue has a transnational aspect, the regulation of which will satisfy an objective pursued by the United Nations and its member states, and whether that objective can be achieved by member states through the normal law-making processes or more efficiently by the Security Council. It transpires, then, that the default position is that law-making remains with the member states as long as they can attain the common objective effectively.Footnote ⁷⁵

As far as international peace and security are concerned, these are goals for the achievement of which both states and the United Nations strive. Furthermore, certain issues affecting peace and security may also acquire transnational character. The question, then, is whether the Security Council is a more appropriate forum to lay down rules than states, in view of the nature of the problem and the benefits that will accrue. This is a question that the principle of subsidiarity helps to answer and, as a matter of fact, it informed the process surrounding the adoption by the Security Council of its legislative resolutions on terrorism and WMD. More specifically, the Security Council intervened when the threat posed by terrorism and WMD acquired transnational dimensions affecting international peace and security, and when the disparities and gaps in the existing legal framework distorted or impeded efforts at efficient regulation and enforcement.Footnote ⁷⁶ Terrorism acquired a transnational dimension when its aims, means, methods, participants, or victims spread beyond and across borders. Also, prior to the adoption of SC Resolution 1373, there have been more than a dozen conventions dealing with different aspects of terrorism.Footnote ⁷⁷ Some of these conventions have been adopted under the auspices of the General Assembly, such as the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973), the International Convention against the Taking of Hostages (1979), the International Convention for the Suppression of Terrorist Bombings,Footnote ⁷⁸ and the International Convention for the Suppression of Financing of Terrorism.Footnote ⁷⁹ Other conventions and protocols were adopted by specialist organizations such as the International Civil Aviation Organization (ICAO), the International Maritime Organization (IMO), and the International Atomic Energy Agency (IAEA) to deal with the threat that terrorism presents in their specific areas. The problem, though, with these conventions was that state membership was low, ratifications even lower, reservations abundant, and monitoring mechanisms weak. The same is true with regard to the legal regime applying to the development, acquisition, manufacture, possession, transport, transfer, or usage of nuclear, chemical, or biological weapons and their delivery systems by non-state actors. Treaties such as the 1968 Nuclear Non-Proliferation Treaty, the 1972 Biological Weapons Convention, or the 1993 Chemical Weapons Convention may have been widely ratified but their domestic implementation has not been always satisfactory and, in any case, they are not concerned with non-state actors.Footnote ⁸⁰

Thus, the Security Council intervened in areas that required but lacked a global and uniform regulatory framework. This was noted in SC Resolution 1540, which states that the Security Council proceeded with the adoption of that Resolution, ‘[r]ecognizing the need to enhance co-ordination of efforts on national, sub-regional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security’ and in order ‘to facilitate henceforth an effective response to global threats in the area of non-proliferation’.Footnote ⁸¹ In the same vein and in view of the threat that piracy and armed robbery pose to international peace and security, the Security Council contemplated the creation of regional, international, or mixed tribunals in order to prosecute and try those suspected of piracy and armed robbery, because the existing regime has proven inadequate. This is due to the fact that ‘the domestic law of a number of States lacks provisions criminalizing piracy and/or procedural provisions for effective criminal prosecution of suspected pirates’.Footnote ⁸² The Security Council has not created any tribunal yet but, if states fail to adopt a common criminal code as that Resolution urges them to do, the creation of such tribunals by the Security Council will fill that void. This will not be the first time that the Security Council will create criminal tribunals. The Security Council has created in the past the criminal tribunals for Rwanda and the former YugoslaviaFootnote ⁸³ because, at the time, no international criminal-law code and process existed to bring to justice those responsible for the widespread violations of international humanitarian and human-rights law committed during the conflict in these countries. By creating these two tribunals as a means of restoring peace and by adopting their statutes, which contain general and abstract criminal-law provisions,Footnote ⁸⁴ the Security Council filled that void.

The third set of subsidiarity enquiries invokes the notion of proportionality and gives rise to questions about the form and content of SC legislative action, so as to avoid unnecessary interference with state orders. Although the principle of proportionality is well known in international law, it is particularly important in the case of SC legislation. This is because, in contrast to other forms of international law-making in which proportionality is implicitly accounted for in the principle of state consent, SC legislation is unilateral and erga omnes mandatory. It is for this reason that questions of proportionality need to be integrated into subsidiarity enquiries. It is submitted that the criterion of proportionality will be satisfied by framework legislation, whereby the Security Council outlines the aims to be achieved but allows member states to decide how to implement them. In this way, states retain a meaningful degree of jurisdictional authority because they enjoy flexibility in the way they implement the SC legislation and participate thus in the law-making process together with the Security Council, without, however, deviating from the common goal. In this sense, the centralizing and decentralizing effects of subsidiarity referred to above become evident: whereas SC legislation represents a move towards centralization, the promulgation of framework legislation that is implemented by member states represents a move away from centralization.

The Security Council resolutions under discussion satisfied this criterion. SC Resolutions 1373 and 1540Footnote ⁸⁵ set out a number of mandatory legislative targets but allow states to implement them in conformity with the relevant provisions of national or international law. As the Representative of Spain said, ‘the Resolution [1540] is not intrusive because it enables States to translate the obligations conferred by it into domestic law as they wish’.Footnote ⁸⁶ The Security Council's practice of setting general standards and allowing their implementation by states is evident in other resolutions of a general character, even if they are not binding as such. For example, in SC Resolution 1456 (2003), the Council called upon states to ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, particularly international human-rights, refugee, and humanitarian law.Footnote ⁸⁷ Also, in Resolution 1918 (2010), the Security Council called upon states to ‘criminalize piracy under their domestic law and favourably consider the prosecution of suspected, and imprisonment of convicted, pirates apprehended off the coast of Somalia, consistent with applicable international human rights law’.Footnote ⁸⁸

This aspect of subsidiarity is also reflected in the establishment of committees to assist states in the implementation of their obligations under the aforementioned legislative resolutions. The mandate of the Counter-Terrorism Committee (CTC), which was established by Resolution 1373, is to monitor states’ implementation of the obligations imposed by that resolution but also to provide technical assistance, engage states in dialogue, compile country reports, and encourage states to apply known best practices.Footnote ⁸⁹ According to the guidelines adopted by the CTC in October 2001, the Committee would be guided in its work by the principles of co-operation, transparency, and even-handedness.Footnote ⁹⁰ In the same vein, the 1540 Committee established pursuant to SC Resolution 1540 also provides assistance to states to implement their obligations under that resolution. More specifically, the role of the Committee is to:

States have, in general, co-operated with the relevant committees, which shows that their initial fears were to some extent allayed by the co-operative nature of the implementation process of these resolutions. States have submitted reports and provided data to the committees, allowed visits, but also enacted specific legislation as requested by the resolutions.Footnote ⁹² As was noted with regard to the implementation of SC Resolution 1540:

Be that as it may, a critical question to ask is whether the Security Council is the appropriate body to decide on subsidiarity. To the extent that subsidiarity is primarily a political principle, the Security Council is better positioned to make the relevant inquiries because it is a political organ that brings together the relevant stakeholders who can then assess whether legislation by the Security Council is more appropriate than law-making by states. Although the Security Council is not the sum of its members, but an independent organ representing the United Nations, it is not totally removed from states that bring to the deliberations their interests. This is reflected in Article 24 UN Charter, according to which the Security Council acts in peace and security on behalf of the UN member states, intimating thus a degree of representativeness between member states and the Security Council. Furthermore, since states are quite sensitive when it comes to issues of jurisdictional authority and will be most affected by SC legislation, it is expected that, notwithstanding any other factors that may influence their behaviour, they will give careful consideration to the question of whether legislation by the Security Council is required and, if it is, what the limits of such legislation should be. To this, it should be added that the Security Council cannot, by itself, initiate legislation or practically enforce it worldwide because it does not have its own administration or links with domestic stakeholders, but relies on the co-operation of states, which means that state interests will be taken on board in its legislative initiatives. That said, the more specific question is whether the Security Council is indeed the right forum for making such decisions in view of its composition and decision-making process. It is well known that the Security Council has limited membership, that it privileges its permanent members in the decision-making process, and that its proceedings are closed and secretive.Footnote ⁹⁴ The Security Council is aware of such criticisms and it tried to address them during the discussions preceding the adoption of the aforementioned legislative resolutions. For example, the drafting of SC Resolution 1540 was preceded by five months of consultations with non-Security Council members and open meetings.Footnote ⁹⁵ As the representative of New Zealand said with regard to SC Resolution 1540, ‘it will not succeed in its aim without the support and acceptance of Member States. Such acceptance requires . . . the opportunity for all Member States to express their views’.Footnote ⁹⁶ These resolutions were also adopted by consensus. As the representative of Spain stated, ‘since the Council is legislating for the entire international community, this draft Resolution (1540) should preferably, although not necessarily, be adopted by consensus’.Footnote ⁹⁷

If subsidiarity is, however, to be formalized, what is needed is a radical overhauling of the Security Council's working methodsFootnote ⁹⁸ that go beyond ad-hoc-ism and experimentation. What are also needed are accountability mechanisms. These issues go to the heart of the debates on UN reform, but lie outside the scope of an article aiming at developing a theoretical case for the application of subsidiarity to SC legislation by identifying its conceptual parameters. What is undoubtedly the case, however, as the preceding discussion has demonstrated, is that the Security Council − even in its current form and with its present working methods − has been guided by considerations identified here as being salient to the principle of subsidiarity.