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Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit

Published online by Cambridge University Press:  27 February 2017

Ian Johnstone
Affiliation:
Fletcher School of Law and Diplomacy, Tufts University

Extract

Critiques of decision making in international organizations are often framed in terms of the democratic deficit. Leveled against the United Nations Security Council, the charge has become more pointed in light of recent quasi-legislative and quasi-judicial acts—most notably the adoption of Resolutions 1373 and 1540 on the financing of terrorism and the spread of weapons of mass destruction, respectively, and the Resolution 1267 sanctions regime, which targets individuals suspected of involvement in terrorism. With the first two resolutions, the Security Council imposed general obligations on all states for an indefinite period; with the third, it set up a sanctions committee that has courtlike powers to identify and freeze the assets of individuals, groups, and corporations. Despite broad sympathy among the UN membership for collective counterterrorist action in the aftermath of the attacks of September 11, 2001, a degree of skepticism accompanied these initiatives from the start and grew with the diplomatic debacle surrounding the war in Iraq. Some critics asked whether an “imperial” Security Council had become an instrument for the imposition of “hegemonic international law.” The Council has moved to address these concerns, but they remain serious enough that the regimes established under Resolutions 1267, 1373, and 1540 are at risk of collapsing.

Type
Research Article
Copyright
Copyright © American Society of International Law 2008

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References

1 The critique was a staple of debates over Security Council reform leading to the 2005 World Summit. Draft resolutions, proposals, and official statements are compiled at <http://www.reformtheun.org>.

2 SC Res. 1373 (Sept. 28, 2001); SC Res. 1540 (Apr. 28, 2004); SC Res. 1267 (Oct. 15, 1999).

3 Detlev, F. Vagts, Hegemonic International Law , 95 AJIL 843 (2001)Google Scholar. In developing this concept of hegemonic law, Vagts draws on William, E. Scheuerman, Carl Schmitt: The End Of Law (1999)Google Scholar; Heinrich, Triepel, Hegemonie, Ein Buch Von Führenden Staaten (1938)Google Scholar; and Wilhelm, Grewe, The Epochs Of International Law (Michael, Byers trans. & rev., 2000)Google Scholar. See also José, E. Alvarez, Hegemonic International Law Revisited , 97 AJIL 873 (2003)Google Scholar.

4 UN Charter Art. 24.

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6 This essay builds on work I have done on the notion of justificatory discourse within and constrained by interpretive communities, most fully developed in Ian, Johnstone, Security Council Deliberations: The Power of the Better Argument , 14 Eur. J. Int’l L. 437 (2003)Google Scholar. That essay was mainly about how the law is interpreted and compliance induced through legal discourse in and around the Security Council; this essay focuses on how the Security Council makes and implements law through a deliberative process that includes, but is not restricted to, legal discourse. Both are about the power of reasoned argumentation, but the democratic deliberation I describe here is almost by definition more inclusive and free–wheeling than the relatively technocratic exercise described in the earlier article. For more on this point, see text at notes 35–36 infra.

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22 Gutmann & Thompson, supra note 5, at 8, and ch. 4 generally.

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28 Buchanan & Keohane, supra note 7, at 434. They call these outsiders “external epistemic actors,” and the process by which the insiders and outsiders deliberate the “transnational civil society channel of accountability.” Id. at 432 (emphasis omitted).

29 Franck, Fairness, supra note 7, at 7 Google Scholar; Oscar, Schachter, International Law in Theory and Practice (1991)Google Scholar. The Chayeses’ managerial model also sees international law as operating largely through a process of “mostly verbal interchange among interested parties.” Abram, Chayes & Antonia, Handler Chayes, The New Sovereignty 118 (1995)Google Scholar; see also Jutta, Brunnée & Stephen, J. Toope, International Law and Constructivism: Elements of an Interactional Theory of International Law , 39 Colum. J. Transnat’l L. 19, 51 (2000)Google Scholar.

30 Critical theorists fall into the latter camp. Martti, Koskenniemi, From Apology to Utopia 40–41, 44950 (1989)Google Scholar; David, Kennedy, Theses About International Law Discourse , 23 Ger. Y.B. Int’l L. 353, 355 (1986)Google Scholar; David, Kennedy, Tom Franck and the Manhattan School , 35 N.Y.U. J. Int’l L. & Pol. 397 (2003)Google Scholar [hereinafter Kennedy, Tom Franck]; Phillip, R. Trimble, International Law, World Order, and Critical Legal Studies , 42 Stan. L. Rev. 811, 838 (1990)Google Scholar.

31 Friedrich, Kratochwil, How Do Norms Matter? in The Role of Law in International Politics 35, 52 (Michael, Byers ed., 2000)Google Scholar. On the disciplining force of legal argumentation generally, see Friedrich, Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1991)Google Scholar. See also Koskenniemi, , supra note 30, at 48 Google Scholar; Schachter, , supra note 29, at 46 Google Scholar; Kennedy, , Tom Franck, supra note 30, at 431 Google Scholar.

32 IQuentin, Skinner, Visions of Politics: Regarding Method 156 (2002)Google Scholar. For an instructive application of Skinner’s theory to debates about humanitarian intervention, see Nicholas, J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society 7 (2002)Google Scholar.

33 Habermas, supra note 15, at 226–27. But cf. Villa, supra note 26, at 714–17 (summarizing postmodern objections to Habermas’s view that communicative action can legitimate decisions).

34 Johnstone, supra note 6. On the structured nature of legal discourse more generally, see Kenneth, W. Abbott, Robert, O. Keohane, Andrew, Moravscik, Anne–Marie, Slaughter, & Duncan, Snidal, The Concept of Legalization , in Legalization and World Politics 17 (Judith, Goldstein et al. eds., 2001)Google Scholar. See also Brunnée & Toope, supra note 29, at 56.

35 Villa, supra note 26, at 715. This critique draws on Gramscian notions of hegemony, which is understood as not about brute force but about a dominant group developing an ideology based on values and understandings that come to be seen as legitimate by subordinate groups. Robert, W. Cox with Timothy, J. Sinclair, Approaches To World Order 51718 (1996)Google Scholar.

36 For an interesting, albeit small (twenty–three respondents) survey of opinions on the diversity/commonality of perspectives in the field of international law, see Michael, Byers, Introduction to Voices from the Outside: Sovereign Equality, International Law, and the Imbalance of Power , 99 ASIL Proc. 43 (2005)Google Scholar. Among the noteworthy results: 78% thought that international law was influenced by disparities in power, but still reflected to some degree the interests and concerns of the less powerful states. Id. at 43.

37 Habermas, supra note 15, at 230.

38 Gutmann & Thompson, supra note 5, at 46.

39 Brunnée & Toope, supra note 29, at 43–51.

40 Id. at 62 (footnote omitted) (quoting Karol, Sofran, A Social Science That Does Not Exist , in Rediscovering Fuller: Essays on Implicit Law and Institutional Design 387, 395, 401 (Willem, J. Witteveen & Wibren van der, Burg eds., 1999)Google Scholar).

41 On transnational legal process, see Koh, , Why Do Nations Obey? supra note 9Google Scholar; Mary, Ellen O’Connell, New International Legal Process , 93 AJIL 334 (1999)Google Scholar. On “transgovernmental” interaction, see Anne–Marie, Slaughter, A New World Order (2004)Google Scholar.

42 Steven, R. Ratner, The Security Council and International Law , in The Un Security Council: From The Cold War To The 21st Century 591, 591606 (David, M. Malone ed., 2004)Google Scholar.

43 Note by the President of the Security Council, UN Doc. S/23500, at 4 (Jan. 31, 1992).

44 SC Res. 1308, pmbl. (July 17, 2000). A similar effort to stretch the limits of the Council’s competence was attempted in early 2007, when the United Kingdom sponsored a Council meeting on the impact of climate change on peace and security, but no statement was agreed upon at that meeting. See UN Press Release SC/900 (Apr. 17, 2007).

45 Many commentators have pointed to the unprecedented nature of the resolutions, some, though not all, describing them as legislation. See Alvarez, supra note 3; Matthew, Happold, Security Council Resolution 1373 and the Constitution of the United Nations , 16 Leiden J. Int’l L. 593 (2003)Google Scholar; Eric, Rosand, Security Council Resolution 1373, the Counter–Terrorism Committee, and the Fight Against Terrorism , 97 AJIL 333, 333 (2003)Google Scholar; Nicholas, Rostow, Before and After: The Changed UN Response to Terrorism since September 11th , 35 Cornell Int’l L.J. 475, 482 (2002)Google Scholar; Jane, E. Stromseth, The Security Council’s Counter–Terrorism Role: Continuity and Innovation , 97 ASIL Proc. 41, 41 (2003)Google Scholar; Paul, C. Szasz, The Security Council Starts Legislating , 96 AJIL 901, 902 (2002)Google Scholar; Curtis, A. Ward, Building Capacity to Combat International Terrorism: The Role of the United Nations Security Council , 8 J. Conflict & Security L. 289, 298 (2003)Google Scholar; David, Cortright, George, A. Lopez, Alistair, Millar, & Linda, Gerber, An Action Agenda For Enhancing The United Nations Program On Counterterrorism 3 (2004)Google Scholar, at <http://kroc.nd.edu/polbriefs/Action_Agenda.pdf>. For a comprehensive treatment of the lawmaking powers of the Security Council, see Alvarez, supra note 7, at 189–217.

46 As José Alvarez states: “the generalizable legal effects of the Council’s work are not incidental to its efforts to enforce . . . . These are express attempts to make global law.” Alvarez, supra note 7, at 198.

47 Rosand, supra note 45, at 334.

48 International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, 39 ILM 270 (2000)Google Scholar.

49 Rosand, supra note 45, at 334; see also Alistair, Miliar & Eric, Rosand, Allied Against Terrorism: What’s Needed To Strengthen Worldwide Commitment (2006)Google Scholar.

50 Interview with Carolyn Willson, Permanent Mission of the United States to the United Nations (July 19, 2004). In addition to this general sense of grievance, there was also a desire on the part of some delegations—especially the French—to avoid marginalization of the United Nations by the United States. Interview with Ambassador Kishore Mahbubani, Permanent Representative of Singapore to the United Nations (July 21, 2004).

51 SC Res. 748 (Mar. 31, 1992); SC Res. 1054 (Apr. 26, 1996); SC Res. 1070 (Aug. 10, 1996); SC Res. 1267, supra note 2.

52 SC Res. 1269 (Oct. 19, 1999); Danilo, Türk, Law and Policy: Security Council’s Ability to Innovate , 97 ASIL Proc. 51, 5253 (2003)Google Scholar.

53 Interviews with Willson, Mahbubani, supra note 50; see also Szasz, supra note 45, at 905.

54 Interview with Ambassador Munir Akram, Permanent Representative of Pakistan to the United Nations (July 21, 2004).

55 Jeremy, Greenstock, Countering Terrorism: Is the UN Playing Its Proper Role? Google Scholar interview with Joanne, J. Myers, Carnegie Council for Ethics in International Affairs (Feb. 27, 2002)Google Scholar, available at <http://www.cceia.org/resources/transcripts/129.html>.

56 Report by the Chair of the Counter–Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001), UN Doc. S/2004/70, annex, at 8 (Jan. 26, 2004).

57 The ratings were based on four criteria: the existence of the necessary legislation, the administrative capacity to enforce counterterrorism mandates, the presence of a policy and regulatory framework, and participation in international counterterrorism conventions and institutions. Cortright, Lopez, Millar, & Gerber, supra note 45, at 7 (based on an unpublished paper by the CTC legal expert, Oct. 2003).

58 SC Res. 1535 (Mar. 26, 2004). The committee’s proposals are contained in UN Doc. S/2004/124, annex (Feb. 19, 2004).

59 The United States and the United Kingdom pushed hardest for the CTED to report directly to the CTC. In an open meeting several weeks prior to the adoption of Resolution 1535, eight states expressed concerns about the approach: Spain (as CTC chair), Benin, Germany (referring to the views expressed by the Secretariat in a letter of March 3, 2004), Pakistan, Ireland (on behalf of the European Union), Argentina (on behalf of the Rio Group), South Africa, and Indonesia. See UN Docs. S/PV.4921 (Mar. 4, 2004) & S/PV.4921 (Resumption 1) (Mar. 4, 2004). That the concerns persisted until the end of 2006 is reflected in the expressed need of the Security Council to clarify reporting lines between the CTED, the Secretariat, and the CTC. UN Doc. S/PRST/2006/56 (Dec. 20, 2006).

60 Article 100 reads in part: “In the performance of their duties the Secretary–General and the staff shall not seek or receive instructions from any government.... Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary–General and the staff. . . .”

61 See Thomas, J. Biersteker, The UN’s Counter–terrorism Efforts: Lessons for UNSCR 1540 , in Global Non–Proliferation and Counter–Terrorism 24, 2934 (Olivia, Bosch & Peter van, Ham eds., 2007)Google Scholar [hereinafter Global Non–Proliferation] .

62 SC Res. 1617 (July 29, 2005); Financial Action Task Force, The Forty Recommendations (2003, as amended 2004)Google Scholar, available at <http://www.fatf–gafi.org>, reprinted in Center on Global Counterterrorism Cooperation, Report on Standards and Best Practices for Improving States’ Implementation of UN Security Council Counter–Terrorism Mandates (Sept. 2006)Google Scholar, available at <http://www.globalct.org/images/content/pdf/reports/best_practices.pdf>. The CTC’s compilation of best practices from FATF and other organizations is available at <http://www.un.org/sc/ctc/bestpractices.shtml>.

63 Organizational Plan for the Counter–terrorism Executive Directorate, UN Doc. S/2008/80, enclosure, at 4, para. 5(b) (Feb. 8, 2008) [hereinafter Organizational Plan].

64 SC Res. 1624, para. 6 (Sept. 14, 2005). On September 15, 2006, the CTC reported that sixty–nine states had submitted reports on steps they had taken to implement the resolution, including through changes in national criminal law. Report of the Counter–Terrorism Committee to the Security Council on the Implementation of Resolution 1624 (2005), UN Doc. S/2006/737, at 2, paras. 2, 5 (Sept. 15, 2006).

65 The sense of urgency and the post–9/11 political climate made quick adoption both possible and tolerable. Nicholas Rostow, legal adviser in the United States Mission to the United Nations at the time, believes it might not have been possible to reach agreement on the resolution even a few weeks later. Rostow, supra note 45, at 482 n.40.

66 UN Doc. S/PV.4413 (Nov. 12, 2001).

67 Id. at 15, 16.

68 Id. at 4.

69 SC Res. 1377, annex, pmbl. (Nov. 12, 2001).

70 UN Doc. S/PV.4688 (Jan. 20, 2003).

71 Greenstock, supra note 55.

72 Id.

73 See Rosand, supra note 45, at 335–36; Rostow, supra note 45, at 482–83; Ward, supra note 45, at 298.

74 Eric, Rosand, Alistair, Millar, & Jason, Ipe, The UN Security Council’s Counterterrorism Program: What Lies Ahead? 1112 (2007)Google Scholar, available at <http://www.globalct.org/images/content/pdf/reports/unsc_counterterrorism_progam.pdf>.

75 Ricardo, Alberto Arias, Chairman, Committee Concerning Counter–Terrorism, Statement (Nov. 14, 2007)Google Scholar, available at <http://www.un.org/sc/ctc/17nov07.shtml>; Rosand, Millar, & IPE, supra note 74, at 9.

76 UN Doc. S/PV.4921, at 19 (Mar. 4, 2004) (emphasis added); see also id. at 20 (India); id. at 21 (Switzerland); id. at 30 (South Korea); UN Doc. S/PV.4921 (Resumption 1), at 3 (Argentina (on behalf of the Rio Group)).

77 The committee had initially taken the position that human rights considerations should be dealt with elsewhere in the UN system. Resolution 1456 of January 2003 signaled a shift when the Council for the first time called on states to respect human rights in combating terrorism. SC Res. 1456, annex, para. 6 (Jan. 20, 2003). But in the revitalization debate Argentina for the Rio Group, Brazil, Canada, Chile, Costa Rica, Germany, Ireland for the European Union, Liechtenstein, and Mexico expressed continuing concerns about the impact of counterterrorism measures on human rights. See UN Docs. S/PV.4921, S/PV.4921 (Resumption 1), supra note 76.

78 UN Doc. S/2006/989 (Dec. 18, 2006); see also UN Doc. S/PRST/2006/56 (Dec. 20, 2006) (Security Council endorsement of these measures). For recent articles assessing the Council’s counterterrorism activities from the perspective of human rights, see Andrea, Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti–terror Measures: A Quest for Legitimacy and Cohesion , 17 Eur. J. Int’ l L . 881 (2007)Google Scholar; Flynn, E.J., The Security Council Counterterrorism Committee and Human Rights , 7 Hum. Rts. L. Rev. 371 (2007)Google Scholar; Rosemary, Foot, The United Nations, Counter–terrorism and Human Rights: Institutional Adaptation and Embedded Ideas , 29 Hum. Rts. Q. 489 (2007)Google Scholar.

79 UN Doc. S/PV.4921, supra note 76; see, e.g., id. at 13–14 (Philippines); id. at 21 (India); id. (Resumption 1) at 2 (Egypt). For statements by the chair and others seeking to dispel these worries, see UN Doc. S/PV.4921, supra, at 4 (Spain (as chair)); id. at 8 (United States); id. at 9 (United Kingdom); id. at 19 (Ireland (for the European Union)); id. (Resumption 1) at 5 (Mexico).

80 UN Doc. S.PV.4921 (Resumption 1), supra note 76, at 7.

81 UN Doc. S/PV.4921, supra note 76, at 21.

82 Id. at 22.

83 SC Res. 1805, paras. 5, 6 (Mar. 20, 2008); Organizational Plan, supra note 63, paras. 5(a), (e), & 6, 8, 9; Rosand, Miliar, & Ipe, supra note 74, at 7.

84 Merav, Datan, Security Council Resolution 1540: WMD and Non–state Trafficking , Disarmament Dipl., Apr./May 2005, at 47 Google Scholar, available at <http://www.acronym.org.uk/dd/dd79/79md.htm>.

85 George, W. Bush, Address to the United Nations General Assembly in New York City, 39 Weekly Comp. Pres. Doc. 1256, 1259 (Sept. 29, 2003)Google Scholar.

86 Interview with Sohail, Mahmood, Permanent Mission of Pakistan to the United Nations (July 21, 2004)Google Scholar.

87 Interview with Nicholas, Rostow, United States Mission to the United Nations (July 19, 2004)Google Scholar. One theory circulating was that Resolution 1540 was a backdoor way of circumventing the procedure employed by the International Atomic Energy Agency to bring states like Iran into line. Interview with Harsh, Shringla, Permanent Mission of India (July 21, 2004)Google Scholar.

88 My analysis is based on concerns expressed in the Security Council meetings in late April by Algeria, Brazil, Cuba, Egypt, India, Indonesia, Iran, Mexico, Pakistan, and South Africa. UN Docs. S/PV.4950 (Apr. 22, 2004); S/PV.4956 (Apr. 28, 2004). It is also based on personal interviews with diplomats from Brazil, India, Pakistan, Spain, and the United States between July 19 and July 21, 2004, all of whom were involved in the negotiations.

89 My account of Pakistan’s position is drawn from an interview with Ambassador Akram on July 21, 2004; a nonpaper circulated by Pakistan to the entire UN membership in late March 2004; and the statements of Pakistan in Security Council meetings on April 22 and 28, 2004, supra note 88.

90 SC Res. 1540, supra note 2, para. 5.

91 Interviews with Davide Carrideo, Permanent Mission of Spain (July 20, 2004), and Luis Guilhermo, Permanent Mission of Brazil (July 21, 2004). Brazil, in particular, wanted to avoid the term “nonproliferation” in connection with Resolution 1540, as that applied to states; it preferred instead to introduce new concepts like “non–access, non–transfer and non–availability” to nonstate actors. UN Doc. S/PV.4950, supra note 88, at 4. On the connection between Resolution 1540 and the broader counterterrorism agenda of the Security Council, see Peter van, Ham & Olivia, Bosch, Global Non–proliferation and Counter–terrorism: The Role of Resolution 1540 and Its Implications , in Global Non–proliferation, supra note 61, at 3, 79 Google Scholar.

92 Colum, Lynch, Weapons Transfers Targeted; U.N. Security Council Resolution Seeks Criminalization , Wash. Post, Apr. 29, 2004, at A21Google Scholar (quoting the German permanent representative to the United Nations). Similarly, Ambassador Abdallah Baali of Algeria told the New York Sun that Pakistan and other members were concerned about the resolution, but “unless you are one of the five veto powers, it is very difficult to remain outside the consensus.” Benny, Avni, WMD Proliferation Resolution Passes , N.Y. Sun, Apr. 29, 2004, at 7 Google Scholar.

93 Millar & Rosand, supra note 49, at 18.

94 Rosand, Millar, & Ipe, supra note 74, at 6, 10. On the implementation of Resolution 1540 generally, see Lars, Olberg, Implementation of Resolution 1540: What the National Reports Indicate , Disarmament Dipl., Spring 2006 Google Scholar.

95 Datan, supra note 84.

96 UN Doc. S/PV.4950, supra note 88, at 2 (emphasis added). Similarly, the permanent representative of Spain said:

[S]ince the Council is legislating for the entire international community, this draft resolution should preferably, although not necessarily, be adopted by consensus and after consultation with non–members of the Council. Therefore, without prejudice to the—I daresay—unprecedented and intensive negotiations of the sponsors, Spain has always believed the holding of this formal open debate to be appropriate.

Id. at 7; see also id. at 3 (Brazil); id. at 6 (China); id. at 8 (France); id. at 9–10 (Angola); id. at 11 (United Kingdom); id. at 13 (Benin); id. at 14 (Romania); id. at 18 (United States); id. at 20 (Peru); id. at 22 (South Africa); id. at 25–26 (Ireland (for the European Union)); id. at 27 (Sweden); id. at 28 (Switzerland); id. at 32 (Indonesia); id. (Resumption 1) at 2 (Apr. 22, 2004) (Egypt); id. at 4 (Mexico); id. at 15–16 (Nigeria); UN Doc. S/PV.4956, supra note 88, at 2 (France); id. at 5 (United States); id. at 7 (United Kingdom).

97 UN Doc. S/PV.4950, supra note 88, at 21.

98 UN Doc. S/PV.4950 (Resumption 1), supra note 96, at 3–4.

99 A group of NGOs called for an open meeting of the Council, sent a memorandum to the Security Council setting out its position as well as draft language for the resolution, issued a media advisory, and made regular statements to the press. Datan, supra note 84.

100 Id.

101 Id.

102 See generally Olivia, Bosch & Peter van, Ham, UNSCR 1540: Its Future and Contribution to Global Non–proliferation and Counter–terrorism , in Global Non–proliferation, supra note 61, at 207 Google Scholar.

103 Datan, supra note 84; Olberg, supra note 94.

104 Rosand, Millar, & IPE, supra note 74, at 6.

105 These examples come from Alvarez, supra note 7, at 190.

106 SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991); see Alvarez, supra note 7, at 419–24; Ian Johnstone, Aftermath of the Gulf War (1994).

107 SC Res. 1390 (Jan. 28, 2002).

108 SC Res. 1526, para. 6 (Jan. 30, 2004).

109 SC Res. 917 (May 6, 1994); SC Res. 1127 (Aug. 28, 1997).

110 SC Res. 1132 (Oct. 8, 1997) (Sierra Leone); SC Res. 1518 (Nov. 24, 2003) (Iraq); SC Res. 1521 (Dec. 22, 2003) (Liberia); SC Res. 1533 (Mar. 12, 2004) (Democratic Republic of the Congo); SC Res. 1572 (Nov. 15, 2004) (Côte d’Ivoire); SC Res. 1591 (Mar. 29, 2005) (Sudan); SC Res. 1636 (Oct. 31, 2005) (Lebanon/Syria); SC Res. 1718 (Oct. 14, 2006) (North Korea); SC Res. 1737 (Dec. 23, 2006) (Iran).

111 The due process concerns range from the adequacy of the presentation of the case against an individual prior to listing, to the lack of notification, the process of requesting exemptions, and the way delisting petitions are handled. Alvarez, supra note 7, at 176; Thomas, J. Biersteker & Sue, E. Eckert, Strengthening Targeted Sanctions Through Fair and Clear Procedures (Thomas, Watson Institute of International Studies, 2006)Google Scholar, available at <http://www.watsoninsdtute.org/pub/Strengthening_Targeted_Sanctions.pdf>; Iain, Cameron, The european Convention on Human Rights, Due process and United Nations Security Council Counter–Terrorism Sanctions (Feb. 6, 2006)Google Scholar (report commissioned by the Council of Europe), available at <http://www.coe.int/t/e/legal_affairs/legal_co–operation/public_international_law/Texts_&_Documents/2006/I.%20Cameron%20Report%2006.pdf>; Bardo, Fassbender, Targeted Sanctions and Due Process 2930 (2006)Google Scholar (study commissioned by the UN Office of Legal Affairs), available at <http://www.un.org/law/counsel/Fassbender_study.pdf>; Review Of the Security Council by Member States (Erika de, Wet & André, Nollkaemper eds., 2003) [hereinafter Review of Security Council]Google Scholar; Peter, Gutherie, Note, Security Council Sanctions and the Protection of Individual Rights , 60 N.Y.U. Ann. Surv. Am. L. 491, 50306 (2004)Google Scholar. For the application of administrative law standards of procedural fairness to global governance, see Benedict, Kingsbury, Nico, Krisch, & Richard, B. Stewart, The Emergence of Global Administrative Law , 68 Law & Contemp. Probs. 15, 32, 34, 3839 (2005)Google Scholar; David, Dyzenhaus, The Rule of (Administrative) Law in International Law , 68 Law & Contemp. Probs. 127, 14052 (2005)Google Scholar.

112 I would like to thank Ulrik Ahnfeldt–Mollerup for drawing my attention to this point.

113 Biersteker & Eckert, supra note 111, at 7; see also Fassbender, supra note 111; Flynn, supra note 78; Foot, supra note 78; Gutherie, supra note 111, at 495.

114 Millar & Rosand, supra note 49, at 20.

115 Fassbender, supra note 111; Targeted Sanctions: Listing/De–Listing and Due Process, in Security Council Report, Monthly Forecast, Jan. 2007 Google Scholar, at <http://www.securitycouncilreport.org>.

116 Biersteker & Eckert, supra note 111.

117 UN Doc. S/PV.5474, at 7–8 (June 22, 2006).

118 UN Doc. S/2006/154 (Mar. 10, 2006).

119 The revised procedures were approved by the committee on November 29, 2006, and endorsed by the Security Council in Resolution 1735 (Dec. 22, 2006).

120 SC Res. 1730 (Dec. 19, 2006).

121 Rosand, Millar, & Ipe, supra note 74, at 4. In November 2007, the monitoring team reported that the sanctions regimes continued to suffer from two main weaknesses: the limitations of the consolidated list and lack of involvement by member states. Seventh Report of the Analytical Support and Sanctions Monitoring Team, UN Doc. S/2007/677*, Annex I, Summary, para. 2 (Nov. 29, 2007) [hereinafter Seventh Monitoring Team Report].

122 Biersteker & Eckert, supra note 111, at 6 & 51 n.9; see also Strengthening International Law: Rule of Law and Maintenance of International Peace and Security, UN Doc. S/PV.5474 (June 22, 2006) (open Security Council debate).

123 Cameron, supra note 111; David, Crawford, UN Program Generates Blacklist , Wall St. J., Oct. 2, 2006, at 9 Google Scholar.

124 As of November 2007, cases had been brought in Belgian, Dutch, Italian, Pakistani, Swiss, Turkish, U.S., and European regional courts. Seventh Monitoring Team Report, supra note 121, Annex I, at 40. Although the cases brought in the United States did not challenge the UN sanctions directly, two entities listed by the 1267 Committee challenged asset freezes made under U.S. law. Gutherie, supra note 111, at 518. Also, a Canadian case described by Dyzenhaus, supra note 111, involved issues that arose under Resolution 1267 as well as Resolution 1373. See generally Review of Security Council, supra note 111.

125 Case T–306/01, Yusuf v. Council (Eur. Ct. 1st Instance Sept. 21, 2005), appeal docketed, Case C–415/05 P, 2006 O.J. (C 48) 11 (Eur. Ct. Justice Nov. 23, 2005). The court initially reserved judgment on the merits and soon thereafter, the Security Council sanctions committee delisted two of the individuals. A similar case brought at the same time involved a Saudi citizen. Case T–315/01, Kadi v. Council (Eur. Ct. 1st Instance Sept. 21, 2005), appeal docketed, Case C–402/05 P, 2006 O.J. (C 36) 19 (Eur. Ct. Justice Nov. 17, 2005). On the status of these cases and seven others brought before the European Court of Justice, see Seventh Monitoring Team Report, supra note 121, Annex I, at 40, para. 2. By February 2008, the Court had not rendered its opinion on the Yusuf and Kadi appeals, but one of the advocates–general, Poiares Maduro, issued a nonbinding opinion on the former that fundamental values were at stake and the Court might have to rule that the Security Council measures could not be enforced against individuals. Coming up Trumps: UN Law, Economist, Feb. 2, 2008 (U.S. ed.). For commentary on the decisions in the Court of First Instance, see Chia, Lehnardt, European Court Rules on UN and EU Terrorist Suspect Blacklists , ASIL Insight, Jan. 31, 2007 Google Scholar.

126 Biersteker & Eckert, supra note 111, at 22.

127 The procedural reforms already made in the 1267 sanctions regime were motivated in part by a desire to preempt court challenges. See the statements made in the open Council meeting on international law. UN Doc. S/PV.5474, supra note 122. Biersteker & Eckert, supra note 111, at 3, note that court actions “potentially pose significant challenges to the efficacy of targeted sanctions. . . . Improvements in the procedures . . . could reduce the risk of judicial decisions that could complicate efforts to promote international peace and security.”

128 Guidelines of the Security Council Committee Established Pursuant to Resolution 1267 (1999) for the Conduct of Its Work (Nov. 7, 2002, as amended Apr. 10, 2003, revised Dec. 21, 2005, amended Nov. 29, 2006), available at <http://www.un.org/Docs/sc/committees/1267/1267_guidelines.pdf>. In addition to the procedural changes, the Council introduced an important substantive amendment to the regime in December 2002, carving out a set of humanitarian exemptions to the financial ban that allowed the release of funds to meet basic needs and for other “extraordinary expenses.” SC Res. 1452 (Dec. 20, 2002).

129 SC Res. 1617, supra note 62, para. 4.

130 Individuals can send petitions directly to the focal point—a significant step— but either the designating government, or the government of citizenship or residency, must pursue the matter. If none of them acts within three months, the focal point sends copies of the delisting request to the committee. At that point, any member of the committee can recommend delisting, thereby putting the matter on the committee’s agenda. If, after one month, no committee member recommends delisting, then the request is deemed to be rejected. SC Res. 1730, supra note 120, annex, para. 6(c).

131 Happold, supra note 45, at 607.

132 UN Docs. S/PV.4950, S/PV.4956, supra note 88; see Rosand, Millar, & Ipe, supra note 74.

133 See, e.g., Keith, Harper, Does the United Nations Security Council Have the Competence to Act as Court and Legislature? 27 N.Y.U. J. Int’l L. & Pol. 103 (1994)Google Scholar.

134 See generally Dan, Sarooshi, International Organizations and Their Exercise of Sovereign Powers (reprint 2007) (2005)Google Scholar.

135 Happold, supra note 45, at 609–10.

136 As Koskenniemi puts it, “The Security Council should establish/maintain order . . . . The Assembly should deal with the acceptability of that order.” Martti, Koskenniemi, The Police in the Temple: Order, Justice and the UN: A Dialectical View , 6 Eur. J. Int’l L. 325, 33739 (1995)Google Scholar [hereinafter Koskenniemi, Police in Temple]. Or, as dissenting judge Sir Gerald Fitzmaurice stated in the Namibia case, “It was to keep the peace, not to change the world order, that the Security Council was set up.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 294, para. 115 (June 21)Google Scholar; see also Martti, Koskenniemi, International Legislation Today: Limits and Possibilities , 23 Wis. Int’l L.J. 61 (2005)Google Scholar; Rosand, Millar, & Ipe, supra note 74, at 7.

137 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Preliminary Objections, 1998 ICJ Rep. 115 (Feb. 27)Google Scholar; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Preliminary Objections, 1996 Icj Rep. 595 (July 11)Google Scholar. On nascent attempts by the International Court of Justice to assert a power of judicial review, see Erica De, Wet, The Chapter VII Powers of the United Nations Security Council (2004)Google Scholar; Jose, E. Alvarez, Judging the Security Council , 90 AJIL 1 (1996)Google Scholar; Thomas, M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality? 86 AJIL 519 (1992)Google Scholar.

138 The general counsel of the Swedish Mission to the United Nations makes this point. Elin, Miller, The Use of Targeted Sanctions in the Fight Against International Terrorism—What About Human Rights? 97 ASIL Proc. 46 (2003)Google Scholar; see also Foot, supra note 78.

139 This complaint was leveled by the ambassador of Qatar when Resolution 1735 was adopted. UN Press Release SC/8925 (Dec. 22, 2006).

140 Andrea, Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti–terrorism Measures: The Quest for Legitimacy and Cohesion , 17 Eur. J. Int’l L. 881, 91013 (2006)Google Scholar. Koskenniemi states that the fundamental problem with the Security Council as dispenser of justice—as opposed to guardian of order—is its lack of accountability within the UN system. Koskenniemi, Police in Temple, supra note 136, at 346.

141 Alvarez, supra note 7, at 201; see also Alvarez, supra note 3, at 887.

142 Crawford, supra note 16, at 59; see also Müller, supra note 14.

143 The term “institutional lifeworld” is Corneliu Bjola’s variation on Habermas’s “common lifeworld.” Corneliu, Bjola, Legitimating the Use of Force in International Politics: A Communicative Action Perspective , 11 Eur. J. Int’l Rel. 266, 279 (2005)Google Scholar. For my own argument that members of the Security Council inhabit something approximating a common “lifeworld,” see Johnstone, supra note 6, at 455–60. See also Thomas, Risse, Let’s Argue: Communicative Action in World Politics , 54 Int’l Org. 1, 1011 (2000)Google Scholar; Ian, Johnstone, The Power of Interpretive Communities , in Power in Global Governance 185 (Michael, Barnett & Robert, Duvall eds., 2005)Google Scholar.

144 Ian, Johnstone, US–UN Relations After Iraq: The End of the World (Order) As We Know It? 15 Eur. J. Int’l L. 813, 83036 (2004)Google Scholar.

145 On public sphere theory, see Mitzen, supra note 26, at 404; see also Cohen, supra note 19.

146 Bohman, supra note 14, at 500, 505. In public sphere terms, Bohman states: “As various international institutions emerge, they. . . can become the focus of a critical public sphere as actors in transnational civil society expand and maintain their public interaction across various political, cultural and functional boundaries.” Id. at 507; see also Thompson, supra note 23.

147 Cunningham, supra note 13, at 176 (citing JÜrgen, Habermas, Moral Consciousness and Communicative Action (1990))Google Scholar; Risse, supra note 143, at 10–11; Cohen, supra note 13, at 74.

148 A More Secure World: Our Shared Responsibility: Report of the High–Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, paras. 248, 249, 256, 257, 260 (2004).

149 Although no states were mentioned by name, the likely six were the G–4 plus two of three African countries: Egypt, Nigeria, and South Africa. The G–4 proposal, together with other proposals and official statements, is available at <http://www.reformtheun.org>, supra note 1.

150 James, Paul & Celine, Nahory, Theses Towards a Democratic Reform of the UN Security Council , Global Pol’y F. July 13, 2005, at 4 Google Scholar.

151 The G–4 proposals build on reforms of working methods undertaken by the Council in the 1990s and early 2000s. For an analysis of the impact of those reforms, see Security Council Report, Security Council Transparency, Legitimacy And Effectiveness: Efforts To Reform Council Working Methods 1993–2007 (Special Research Rep. No. 3, Oct. 18, 2007), available at <http://www.securitycouncilreport.org>. Recent official documents on working methods include Note by the President of the Security Council, UN Doc. S/2006/507 (July 19, 2006), and a draft resolution submitted to the General Assembly by the “Small Five” (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland), UN Doc. A/60/L.49 (Mar. 17, 2006). For a good summary of the reforms and the rationale for them, see Edward, C. Luck, Un Security Council: Practice and Promise 12224 (2006)Google Scholar.

152 Statement of Ambassador Alan Rock to the UN General Assembly in introducing draft Resolution L. 68, UN Doc. A/59/PV.115, at 1 (July 26, 2005).

153 E.g., Rosand, Millar, & Ipe, supra note 74.

154 GA Res. 60/288 (Sept. 8, 2006). The strategy is up for review in the fall of 2008, making this a good time for the Security Council’s counterterrorism efforts to be better integrated into it, so as to broaden the political constituencies for the Council. Rosand, Millar, & Ipe, supra note 74, at 18. The Council took a step in that direction by welcoming the adoption of the UN Global Counter–Terrorism Strategy and emphasizing the importance of the CTED’s readiness to participate actively in the Counter–Terrorism Implementation Task Force. SC Res. 1805, supra note 83, pmbl., op. para. 11.

155 Rosand, Millar, & Ipe, supra note 74, at 12, 19.

156 See supra note 111.

157 SC Res. 1566(Oct.8, 2004);UN Doc.S/PRST/2004/37(Oct. 19, 2004);UN Doc.S/PRST/2005/16(Apr. 25, 2005). The Mitchell–Gingrich report on UN reform suggested exploring the possibility of combining the three committees, or at least mandating closer cooperation by them. United States Institute of Peace, American Interests and Un Reform: Report of the Task Force on the United Nations 78 (2005)Google Scholar, available at <http://www.usip.org/un/report/usip_un_report.pdf>. The Security Council has not endorsed this proposal but continues to press for greater cooperation by the committees, most recently in Resolution 1805, supra note 83, para. 10.

158 One hundred and ten organizations attended the first in a series of meetings sponsored by the CTC in October 2003. Cortright, Lopez, Millar, & Gerber, supra note 45, at 2021. The fifth such meeting was held in October 2007 in Nairobi. On the relationships between the 1540 Committee and the existing nuclear, chemical, and biological weapons regimes, see Global Non–Proliferation, supra note 61, chs. 5–7.

159 Rosand, Millar, & Ipe, supra note 74, at 13, 18.

160 Fassbender, supra note 111, pt. C, para. 11. The Fassbender, Biersteker and Eckert, and Cameron studies all analyze and set out various due process rights recognized in international law.

161 Biersteker & Eckert, supra note 111, Executive Summary.

162 Id. at 35. There is a precedent: “in exceptional cases,” the Liberia sanctions committee allows delisting requests by the individual concerned. By December 2007, the committee had removed one person from the Liberian travel ban and asset freeze lists on the basis of a delisting request received through the focal point. UN Doc. S/2007/776, annex, para. 25 (Dec. 31, 2007). In 2005 and 2006, a total of five delisting requests were submitted directly to the secretariat of the committee by individuals. None were removed from the lists. UN Doc. S/2006/104, annex, para. 20 (Dec. 28, 2006).

163 On administrative law principles, see Kingsbury, Krisch, & Stewart, supra note 111, at 28–29. Buchanan and Keohane state: “To help ensure this dimension of broad transparency, it may be worthwhile to draw on, while adapting, the notice and comment procedures of administrative law at the domestic level.” Buchanan & Keohane, supra note 7, at 428.

164 Buchanan & Keohane, supra note 7, at 429.

165 The same logic applies to the proposal that written justifications must be provided when a veto is cast. See Report of the Open–Ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council, UN GAOR, 54th Sess., Supp. No. 47, UN Doc. A/54/47 (2000), especially Annexes IV–VII.

166 The organization Security Council Report, which publishes a monthly forecast and other documents that monitor the Council, is a good illustration of how an NGO can influence the Council. See supra note 115.

167 SC Res. 1735, supra note 119, para. 5.

168 Buchanan & Keohane, supra note 7, at 426; Ruth, W. Grant & Robert, O. Keohane, Accountability and Abuses of Power in World Politics , 99 Am. Pol. Sci. Rev. 1 (2005)Google Scholar.

169 See Fourth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc. S/2006/154, annex, at 45 (Mar. 10, 2006); Fifth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc. S/2006/750, Annex III, at 47 (Sept. 20, 2006); Sixth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc. S/2007/132, Annex I, at 38 (Mar. 8, 2007); Seventh Monitoring Team Report, supra note 121, Annex I, at 40; see also Gutherie, supra note 111. On the prospects for judicial review by the ICJ, see supra note 137.

170 Peter Gutherie argues that the best way of protecting individual rights from arbitrary Council action is by strengthening state mechanisms for review through greater intergovernmental and interjudicial cooperation. Gutherie, supra note 111, at 535–40.

171 Rosand, Millar, & Ipe, supra note 74, at 15; Targeted Sanctions, supra note 115.

172 A conference on creating a more democratic United Nations suggested the creation of a “standing committee of the General Assembly of 15 rotating, geographically representative members, [who are] not at the same time members of the Security Council, to report to the Assembly on the adequacy of efforts made by the Council.” Second International Conference on a More Democratic United Nations (CAMDUN 2) (Sept. 17–19, 1991), quoted in Thomas D. Zweifel, International Organizations and Democracy 82 (2005).

173 Franck, Fairness, supra note 7, at 483–85; Richard Falk & Andrew, Strauss, On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty , 36 Stan. J. Int’l L. 191 (2000)Google Scholar.

174 Gutmann and Thompson make this point in response to criticism that deliberation at the national level is elitist, in that it disadvantages certain groups and points of view. Gutmann & Thompson, supra note 5, at 133.

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