Dr. Leila Nicolas*
The UN Security Council practiced legislation in resolutions 1373 and 1540, where it issued general rules that are not applicable to specific cases only , but to be applied by all countries without specified time and place.
Based on Pragmatic criteria, Some experts defend the opinion that it is acceptable that the Security council practices some authorities that are not within his duties as approved United Nations' charter. This arguments is based on the following: the world is facing major challenges and threats, plus serious global developments that impose on Security council to broaden its implied or discretionary powers. This is necessary to strengthen its ability to respond effectively and quickly to emerging challenges, especially in the field of terrorism.
before we agree or disagree on this, we should define the terms first: what does it mean that Security council has practiced legislative acts?.
In order to classify a work as a legislative act , it should fall within the following framework :
1 - It should be applied to all persons or entities equally i.e. in case of confronting the same circumstances , it must apply the same rules .
2 - It should be general i.e. it is not legislated for special and specific cases.
3 - It should be known by those applicable to them .
4 -It must be constant , and has continuity .
From the aforementioned definition , we can say that the Security council has really practiced legislation especially in the field of international terrorism. So, is it legitimate?.
First: In principle , the United Nations organization does not contain any legislative body. Every rule in international law, must have the consent of the States bound by it. A state has the right to refuse a binding rule of international law unless it has - at least - the opportunity to influence the evolution of this rule or its legal basis.
From this standpoint , and despite the fact that most of what came in resolution 1373 , had been included in previous resolutions , and in the international treaty to combat the financing of terrorism , However the adoption of this resolution, under Chapter VII of the Charter of the United Nations , did not leave an option to the states to accept or reject the imposition of these rules, plus it obliges them amend their national laws to conform with this resolution .
Note, that the Security Council established universal applicable future rules, and acted as a international legislator, without defining that punishable "terror crime", and did not specify exactly what are the acts that can be described as an act of terrorism .
Second - The rules of the charter are binding to the Security Council, and Council should act with compliance with public international law , and Jus cogens of international law . Therefore, there is no legislative authority given to the Security Council , as the Charter does not give the Council this authority explicitly nor implicitly . Even when the resolutions of the Council has mandatory power, it is a power for the implementation of a law and not as a legislator. therefore, The Council cannot create general applicable legislations, however it " sees, notes, and decides ... " in special cases, limited in time and space.
As the Council is an organ of an international organization established by a treaty which constitutes its constitutional framework , and as the Charter of the United Nations is the main reference to define the powers of the Security Council, this certainly means that the council doesn't own unlimited powers , but it has to act in accordance with the principles and objectives of the Charter and the intention of its authors .
To determine , the validity of legislative actions of the Security Council as an organ of the United Nations, we can examine articles 31 and 32 of the Vienna Conventions of 1969 on the Law of Treaties .
Article 31 of the Convention , confirms that any treaty must be interpreted in good faith, must be seen as an integrated whole , and read thoroughly . It stresses that when you need to interpret the words or substance of a Convention, the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
If there is still ambiguity in the interpretation of the Convention after invoking Article 31 , Article 32 can be used. Article 32 calls for the use of supplementary means of interpretation, and those including the preparatory work of the treaty and the circumstances of its conclusion.
So, applying these rules to the United Nations' Charter , it is obvious that the Security Council does not have any legislative power, as the Charter does not provide such authority for the security council , and it does not seem that the intention of the drafters of the Charter and the accompanying circumstances have aimed to give this authority to the Security Council.
Thus , the Security Council is a political body and its decisions must be of the same nature, that is, they should reflect a political point of view and not a judicial or legal one.
Dr. Leila Nicolas PhD teaches contemporary international affairs at Lebanese University, and an expert in international Justice.