The Security Council as World Legislature

Abstract

As recently been noted, Security entered its legislative phase. This phase began on September 28, 2001, with adoption of Resolution 1373.2 Resolution 1540 of April 28, 2004, is most recent example, but undoubtedly not last. In a briefing on Council's schedule for April 2004, its president, referring to planned adoption of Resolution 1540, described ongoing consultation process for that resolution as the first major towards having Security legislate for rest of United Nations' membership. He explained that [Resolution] 1373 had been first step and that Council would be needed more and more to do that kind of legislative work.3 In legal literature is referred to as legislator4 or world legislator.5 One author even claimed that [b]y means of its enforcement powers, Security in fact replaced conventional law-making process on level.6 These are revolutionary statements considering that, for a long time, perceived wisdom was that is no machinery of legislation7 and that states are legislators of legal system. As recently as 1995, Appeals Chamber of International Criminal Tribunal for Former Yugoslavia (ICTY) held in Tadiccase: There is ... no legislature, in technical sense of term, in United Nations system .... That is to say, there exists no corporate organ formally empowered to enact laws directly binding on legal subjects.8 But appeals chamber also noted that is a body that has a limited power to take binding decisions. ... when, acting under Chapter VII of United Nations Charter, it makes decisions binding by virtue of Article 25 of Charter.9 This Note will examine legal framework for Security and assess effectiveness of this new weapon in Security Council's arsenal. But before doing so, it may be useful to ask what is meant by international legislation in context of Security action.