On 24 September 2014, the UN Security Council passed Resolution 2178 under Chapter VII regarding foreign terrorist fighters. The UN Security Council is making it obligatory for UN member states to change their domestic criminal law. The conduct criminalized in the draft text includes attempts to travel abroad “for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training”, gathering funds to assist such travel, or other facilitation of such travel. At least three aspects of such a resolution are noteworthy.
First, one might note that the Security Council has again proven itself to be rather innovative, to put it positively, or imperious, to put it more negatively. When creating the Security Council’s extensive powers, it is unclear that the framers of the U.N. Charter had in mind such actions as commanding the production of domestic law or, for that matter, the creation of ad hoc tribunals. These innovations are much more frequent since the end of the Cold War. It will be interesting to see if they continue. The commandment to states to issue domestic criminal legislation is remarkable in itself, although not unprecedented – see for example UNSC resolution 1373 (2001), which mandated that those financing, planning, preparing or perpetrating terrorist acts are “brought to justice.” There is certainly a strong case to be made that certain forms of terrorism are threats to international peace and security, but it is also worth pointing out that if there is an outer limit of legitimate (non-ultra vires) Security Council action, this action is near that outer limit. Is this the creation of international Criminal Law in domestic fora, not by custom or treaty but by an organ of the UN? What legislation might be mandated next? Might not something along the lines of the anti-commandeering doctrine in US constitutional law apply? Continue reading