IILJ Working Paper 2005/18

The Security Council as World Legislator?: Theory, Practice & Consequences of an Expanding World Power

Axel Marschik

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In the 1990s the UN Security Council accreted new functions and responsibilities: to administer territories, establish tribunals to try individuals for war crimes, delineate borders, decide on questions of compensation, and determine juridically-salient facts. This paper considers the relevant resolutions, but argues that until 2001, these activities were linked directly to a territorially-specific international conflict aimed at restoring peace and order.

With SC-Resolution 1373(2001) the Security Council created general and abstract obligations in the field of counter-terrorism that, under Chapter VII of the Charter, are immediately binding on all States. While one such legislative act could be considered an aberration, the acceptance of SC-1373 by the states, and the prevailing political dynamic, has prompted the Council to engage in more of this generally-applicable non-localized law-making. Resolution 1540 (2004) on obligations of all states concerning weapons of mass destruction, has provoked much more intense reactions.

This paper analyzes the implications of these two resolutions, and argues that continuation of this trend may have significant consequences for the creation of international law. Traditionally, states have the freedom to choose whether they wish to be bound by a norm: they can choose not to sign treaties or they can persistently object to the formation of custom. The creation of international law also relies on the principle of legal equality of the states creating the norm. General legislation by the Council via Chapter VII of the Charter supersedes both these principles. This paper assesses advantages and disadvantages of such lawmaking by the Council as well as possible remedies for potential problems.