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The Security Council as World Legislature

As has recently been noted, the Security Council has entered its legislative phase. This phase began on September 28, 2001, with the adoption of Resolution 1373.2 Resolution 1540 of April 28, 2004, is the most recent example, but undoubtedly not the last. In a briefing on the Council's schedule for April 2004, its president, referring to the planned adoption of Resolution 1540, described the ongoing consultation process for that resolution as "the first major step towards having the Security Council legislate for the rest of the United Nations' membership." He explained that "[Resolution] 1373 had been the first step" and that the "Council would be needed more and more to do that kind of legislative work."3 In the legal literature the Council is referred to as "legislator"4 or "world legislator."5 One author has even claimed that "[b]y means of its enforcement powers, the Security Council has in fact replaced the conventional law-making process on the international level."6 These are revolutionary statements considering that, for a long time, the perceived wisdom was that "there is no machinery of international legislation"7 and that the states are the legislators of the international legal system. As recently as 1995, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) held in the Tadiccase: "There is ... no legislature, in the technical sense of the term, in the United Nations system .... That is to say, there exists no corporate organ formally empowered to enact laws directly binding on international legal subjects."8 But the appeals chamber also noted that the Council is a body that "has a limited power to take binding decisions. ... when, acting under Chapter VII of the United Nations Charter, it makes decisions binding by virtue of Article 25 of the Charter."9 This Note will examine the legal framework for Security Council legislation and assess the effectiveness of this new weapon in the Security Council's arsenal. But before doing so, it may be useful to ask what is meant by "international legislation" in the context of Security Council action.