Power through Process: An Administrative Law Framework for United Nations Legislative Resolutions

Article excerpt

"To that world assembly of sovereign states, the United Nations, our last best hope in an age where the instruments of war have far outpaced the instruments of peace, we renew our pledge of support--to prevent it from becoming merely a forum for invective--to strengthen its shield of the new and the weak---and to enlarge the area in which its writ may run."

--John F. Kennedy, Inaugural Address, January 20, 1961

I. INTRODUCTION

On September 28, 2001, the United Nations Security Council (UNSC) entered a new legal era with the adoption of Resolution 1373, an unprecedented measure to globally criminalize material support and financing for terrorism. (1) Unlike every resolution which preceded it, Resolution 1373 was not merely a use of the Council's authority to address a specific instance or entity that posed an international threat but was a binding legal directive for nation-states to alter their domestic legal processes in response to the nonspecific and ongoing threat of transnational terrorism. (2) While previous Security Council resolutions mandated that countries take action against specific state sponsors of terrorism (3) or individuals suspected of terrorism, (4) Resolution 1373 obligated nations to enact or reform domestic counterterrorism legislation to bring it within the bounds of an international standard. (5)

Resolution 1373 was the first of a new category of legislative resolutions. (6) Such resolutions share two features. First, like all Chapter VII Security Council resolutions, they are binding upon states, superseding even treaty obligations. Second, legislative resolutions compel states to alter their domestic laws without limiting the change to a specific crisis or entity. In contrast, embargos, sanctions and other Security Council actions invoked under Chapter VII coercive power do not create general international law despite their binding nature--they are limited in time or scope to specific crises. (7)

Legislative resolutions are thus an unprecedented Security Council alternative to international treaties, which similarly address ongoing issues of global concern through binding commitments to domestic legal reform. (8) The Security Council has already used legislative resolutions beneficially to mandate that states alter domestic laws to address pressing international problems (such as terrorism and weapons proliferation), to quickly close gaps within outdated treaty regimes, and to cooperatively build global norms. (9) Unfortunately, the Council has also destructively employed legislative resolutions as a surreptitious and illegitimate means of changing international treaties for partisan purposes.

The potential that the Security Council will abuse legislative resolutions is exacerbated by the general illegitimacy and unusually far-reaching delegation of authority to the Council by United Nations members. Legislative resolutions are an extreme exercise of that authority. As such, current regulations on Security Council actions do little to instill confidence in the legislative process at the Council.

This Note examines the phenomenon of legislative resolutions and argues that a global administrative law (GAL) framework is the best means of improving the legitimacy and effectiveness of such resolutions while simultaneously guarding against their abuse. GAL frameworks have already been used to ameliorate the democratic deficits of other international organizations. The robust application of such a GAL framework to the Security Council process for passing legislative resolutions would likewise infuse the process with added legitimacy. If this is done, Security Council legislative resolutions could serve as a powerful international legal tool to address a wide variety of transnational challenges.

Part II of this Note explores the history of four legislative resolutions and illustrates that they can be used beneficially to expedite and supplement treaty regimes but can also be used destructively to illegitimately subvert existing international treaties for parochial purposes. …