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A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of Global Governance

This short blog post is a comment to Zachary Goldman’s Just Security post, “The Foreign Fighter Resolution: Implementing a Holistic Strategy to Defeat ISIL.” Goldman presents a favorable assessment of UN Security Council Resolution 2178. Without repeating what I wrote in my earlier post, here is a short comment.

There is one major and one minor issue. The major issue is that Goldman presents a view according to which Resolution 2178 represents a generally accepted post-9/11 model of international governance through mandatory Security Council resolutions adopted under Chapter VII of the UN Charter.

Legally, the resolution builds on the model of transnational counterterrorism regulation embodied in UNSCR 1373, which required all member states to criminalize the provision of financial support to terrorist groups. In adopting this structure, the international community appears to have moved even farther down a path that diverges from the treaty-based global counterterrorism regime that predominated before 9/11….

UNSCR 1373 introduced a process by which, instead of going through the long and sometimes inconclusive procedure of treaty-drafting (which, for example, has plagued attempts to conclude a Comprehensive Convention on International Terrorism), the Security Council can impose binding obligations in response to rapidly evolving international conditions through the vehicle of Chapter VII resolutions. Thus, just as UNSCR 1373 required states to adopt domestic legal instruments banning terrorist financing, UNSCR 2178 requires states to take specific and concrete steps to clamp down on the movement of foreign fighters from and through their territory.

True, there are important similarities between Resolutions 1373 and 2178. But there is also one significant difference, and that difference calls for caution before saying that through its exercise of ‘legislative’ powers the Security Council, under the justification of addressing a threat to international peace and security, would have managed to modify the rules of the UN Charter (without a formal amendment) as to the distribution of competencies between itself and the General Assembly.

Resolution 1373 postdated the adoption of the International Convention for the Suppression of the Financing of Terrorism in 1999 by the General Assembly, the GA here exercising its responsibility under Article 13 of the UN Charter  for ‘the progressive development of international law and its codification’. By 9/11, the General Assembly had legislated but only a handful of states had followed up by ratifying the Terrorist Financing Convention. In that situation, faced with new phenomenal acts of terrorism committed by Osama bin Laden and al-Qaida on 9/11, the Security Council, exercising its ‘emergency’ powers under Chapter VII, took a shortcut and adopted Resolution 1373 to impose upon all UN Member States the obligations of the Convention irrespective of its ratification.  On 10 April 2002, after the 22nd ratification, the Convention entered into force and has by now obtained almost universal ratification (186 parties). Whatever criticisms we may have about Resolution 1373, it was a success story in getting states on board to combat the financing of terrorism, and the emergency shortcut was remedied through subsequent action by states.

The Foreign Fighters resolution is different. It imposes new legislative obligations upon Member States, without the existence of preceding treaty adopted by the General Assembly, and there is no way states could regularize the legal basis for their action by ratifying a treaty. Resolution 2178 is worse –indeed, far worse — than Resolution 1373 from the perspective of the international rule of law.

This was the major point. And the minor one? Goldman opens his blog post by stating that Resolution 2178 was adopted ‘after a debate involving dozens of world leaders’. Not quite so. Obviously there was broad support for the resolution. But there was no debate. The resolution was first adopted without any discussion (at 2 minutes and 30 seconds on the video), and then followed by statements by Heads of State or Government. Only one person — President Obama — spoke before the vote.

Here’s the video:

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About the Author

is Professor of Public International Law at the European University Institute. He was the United Nations Special Rapporteur on human rights and counter-terrorism (2005-2011).