Is the adoption of resolutions containing simultaneously binding, abstract and general norms coherent with the competencies of the United Nations Security Council? : - Security Council Resolution 1373 and 1540 in context

Resolutions 1373 of 2001 and 1540 of 2004 are Security Council Resolutions, which clearly separate themselves from previously adopted Security Council Resolutions through their simultaneously binding, abstract and general contents. Previously adopted Security Council Resolutions with widespread implications, like those establishing the International Criminal Tribunals for the former Yugoslavia or Rwanda, or those establishing intrusive embargos on particular states or entities are only of a binding and general character. Resolutions of both general and abstract character have been adopted in the past, however only on a non-binding basis. Taken the innovative character of the Resolutions, the question arises whether or not these resolutions are within the competencies endowed on the Security Council under the Charter. The question is whether or not the adoption of binding resolutions containing simultaneously binding, abstract and general measures are encompassed by Article 41 of the United Nations Charter, opening for measures short of armed force. A necessary prerequisite for this is a determination of a ‘threat to the peace’ under Article 39 of the Charter, and the question must be asked if the abstract dangers of international terrorism and proliferation of weapons of mass destruction might be encompassed by this notion. From the lingual point of view, the notion ‘threat to the peace’ is arguably open when it comes to whether or not the Security Council might address abstract dangers as ‘threats to the peace’. The measures found in the Article itself are of fairly concrete nature, leading to an assumption that ‘threats to the peace’ must be of a somewhat concrete nature. However, the contents of the notion have developed over the years, to encompassing situations, which fundamentally threaten the peace. The notion ‘threat to the peace’ remains open when it comes to whether or not it encompasses abstract phenomena. The adoption of resolutions containing simultaneously abstract, general and binding norms is not mentioned as a ‘measure short of armed force’ under Article 41 of the Charter. This list of measures found in Article 41 is though not an exhaustive one. The measures listed in the article are, however, all of a concrete character, suitable for responding to concrete situations. Resolutions of simultaneously binding, abstract and general character are of a different character than these measures, and Article 41 does not open for the adoption of such. This conclusion is supported by a systematic interpretation of the Charter emphasizing the distribution of competencies between the organs of the Organization as well as by the preparatory works of the Charter. An interim conclusion is therefore that the Security Council acted ultra vires as it adopted Resolutions 1373 and 1540. However, the concept of implied powers could possibly expand the powers of the Security Council under the Charter to encompass the adoption of resolutions of simultaneously binding, abstract and general contents. There are different approaches to the subject, which are closely interconnected with the view one has on the Charter of the United Nations as a ‘constitution’ in the stronger sense of the notion. Arguably, the competencies of the Security Council would be wider in the instance that the Charter was a ‘constitution’ in the stronger sense of the notion. In this matter, no clear conclusion might be given. There are strong arguments in both directions, and the Charter of the United Nations clearly contains elements similar to those found in a national constitution, for example rudiments of a separation of powers. An interesting theory, which the present writer understands as a solution in between is the “living tree” theory, which implies a particularly vivid interpretation of the Charter. If one sponsors the conclusion that the Charter of the United Nations is not a ‘constitution’ in the stronger sense of the notion, this would still imply a certain dynamic-evolutionary interpretation of the Charter, that is: some powers would still be implied on the Security Council without direct basis in the Charter text. These implied powers would though not be far- reaching enough to imply as well the adoption of resolutions containing simultaneously binding, abstract and general norms, as this would imply giving the Council materially far wider competencies than originally implied on it in the Charter. If one sponsors the conclusion that the Charter of the United Nations is in fact a ‘constitution’ in the stronger sense of the notion, this would mean that the Security Council would have a larger degree of powers implied on it. This would possibly open for the adoption of resolutions of simultaneously binding, abstract and general contents. However, the consequences of such competencies are crucial for to which conclusion one arrives at here. The Security Council has over the years widened the field of what it determines a ‘threat to the peace’ or a potential such, which again broadens its possibilities to adopt measures under Chapter VII. The implications of competencies to adopt resolutions of simultaneously binding, abstract and general contents would be widespread and would seriously challenge the sovereignty of the Member States as well as it would disturb what existing distribution of competencies between the organs of the United Nations. This would be the main argumentation against implied powers for the Security Council to adopt Resolutions of simultaneously binding, abstract and general contents. The conclusion on the matter is of course open, depending on mainly which need one sees for such competencies by the Security Council as well as to which extent one sees the potential extension of the circle of phenomena as likely. The present writer holds the view that the Security Council is not in possession of the competencies to adopt resolutions containing simultaneously binding, abstract and general norms even after the implied powers rule and an understanding of the Charter as a ‘constitution’ in the stronger sense of the notion. As the previous conclusions remain under debate, the subsequent practice and implementation must be discussed. It is clear, that even if the adoption of the Resolutions 1373 and 1540 was ultra vires at the time of adoption, this could have healed through subsequent acceptance of the Resolutions and the legal basis for these. The Security Council has clearly and continuously regarded itself competent to adopt the Resolution 1373 and 1540 as well as to address other phenomena as at least potential ‘threats to the peace’. Its persistence is particularly clear through the work of the Counter Terrorism Committee and that of the 1540 Committee. The subsequent practice of the Security Council is, however, substandard to that of the Member States. The Member States have arguably implemented the Resolution 1373 diligently. Large amounts of reports have been given, as well as the number of members to the different international instruments on the area of counter terrorism has increased drastically. This does, however, only give indications on the actual implementation in the Member States, as this would have to be found through an analysis of the internal legislation inn the individual states. As to the implementation of the Resolution 1540, the Member States initially proved sceptical to both to the resolution and to the powers of the Security Council to do so. After the adoption of the Resolution, however, the Member States have reported to the 1540 Committee and has raised few critical voices. For the present writer, it remains difficult both to draw the conclusion that the Security Council was in the initial position to adopt Resolutions 1373 and 1540 from both clear and implied powers as well as to draw the conclusion that that the ultra vires character of the Resolutions have healed through subsequent practice and implementation. The conclusions, though, must said to be open. It will in the time to come be a great emphasis on the implementation by the Member States of Security Council Resolutions to come.