This Article begins by taking a closer look at the two Security Council resolutions at the center of this debate: Resolution 1373 and Resolution 1540. It argues that they make pragmatic sense as necessary responses by the Security Council to address urgent, global threats. Further, it explains how they serve to fill the existing gaps in international law, which, if not addressed, would hinder the international community's ability to tackle these twenty-first century threats. Part II, after providing a brief summary of the Council's powers under the U.N. Charter, focuses on whether this activity falls within the Security Council's mandate. In doing so, Part II describes the breadth of the Council's powers under Chapter VII, which are subject to few express limitations. Many commentators cite the limitation that the Council may only address a particular situation, with a time-limited, case-based reaction, to support their conclusion that while the Council may have the authority to legislate in response to a specific situation, it lacks the authority to do so on a global basis. Part II concludes, however, that this limitation, which does not actually appear in the text of the Charter itself, is in fact not sufficient to circumscribe the Council's activity in this area. To continue to read such a limitation into the Charter at a time when the most urgent threats to international peace and security are neither time nor geographically limited would prevent the Council from being able to fulfill its responsibility under the Charter to maintain international peace and security through “prompt and effective action.” Part III of this Article looks at previous Council actions that have imposed binding obligations on all States, albeit not in response to a global (vice specific) threat. It explains that the adoption of Resolutions 1373 and 1540 constitutes a qualitatively different exercise of the Council's Chapter VII power, which is manifested in a number of ways. Part III concludes, however, that this difference serves to highlight the innovative nature of the Council's activity rather than make it ultra vires. Despite the unique nature of Resolutions 1373 and 1540, the discretion given to the Council under the Charter, both in terms of determining the existence of threats to the peace and the appropriate enforcement measures to address such threats, appears broad enough to allow for this innovative activity. Part IV addresses the impact that this Security Council activity, which essentially excludes the 176 U.N. Members that are not on the Council from the decision-making process, will have on the traditional consent-based international law-making process. It highlights some of the limitations of this process, which become more pronounced when the United Nations is confronted with the pressing need to fill a legal gap. Part IV concludes that in these circumstances the innovative use of Council powers, while circumventing the cumbersome multilateral treaty-making approach, is nevertheless justified. Recognizing that the U.N. Charter has evolved to allow the Council to act as a “global legislator” under certain circumstances, Part V argues that there are some safeguards the Council should implement each time it uses this authority. Such safeguards are needed to maintain the Council's institutional “legitimacy,” ensuring that the Council exercise this broad power in ways that most States deem appropriate and within its competence. This will induce the broad cooperation from States that is needed to assure the most effective use of this authority. As this Article concludes, the Council needs the ability to use this tool to address, within the State-centered U.N. Charter system in which it operates, the threats posed by non-State terrorists and terrorist groups.
The Security Council As "Global Legislator": Ultra Vires or Ultra Innovative?,
28 Fordham Int'l L.J. 542
Available at: https://ir.lawnet.fordham.edu/ilj/vol28/iss3/2