12
peace and security by giving the Tribunals jurisdictions over crimes that it believed
already existed in international customary law.
How the Security Council will act in the future, and how it will act in the further
implementation of Resolution 1373 must remain to be seen. It is clear though that the
Security Council had acted as though it does have legislative authority to create criminal
law, if the creation of that law would lead to restoration and maintenance of international
peace and security.
Implications for the reform of domestic law
The Security Council has a powerful mandate and the weight and binding authority of
Chapter VII behind it. So far, it seems to have received overwhelming support from
virtually all member States. How long this cooperative spirit will last and whether the
CTC can sustain it, are the big challenges. The critical point may well be crossed as the
CTC shifts focus from foundational arrangements (of domestic legislation and executive
machinery in place in national systems) to monitoring what domestic action States are
actually taking to combat terrorism (whether States are bringing terrorists to justice or
providing safe havens).
There are other concerns: for instance, that the implementation of Resolution 1373 should
not be used as an excuse to infringe on human rights. Successive UN High
Commissioners (Mary Robinson and the late Sergio Vieira de Mello18) have urged the
CTC to appoint an expert on human rights to assume responsibility for monitoring States
compliance with human rights norms in the area of counterterrorism.
Whatever the implications for law creation at the international level, what is clear about
Resolution 1373 is its direct and widespread impact on law making at the domestic level.
The influence of foreign and international rules and models on domestic systems has
been a growing phenomenon and certainly is not new. However, by any measure, the use
of Chapter VII powers in this instance and the import of the actions taken by and through
the CTC to implement Resolution 1373 are quite unprecedented. Domestic policy and
legislative changes are being sought to conform to a pre-determine framework and taken
under circumstances that may be viewed as under direct influence, if not pressure, of a
powerful Security Council (and, yes, a less-than-fully-representative Security Council at
that) or through other influential Governments or regional authorities, and often under
stipulated or narrow time frames. In these circumstances, it may well be asked whether
the law making power has not truly moved further away from the State. From the law
reform perspective, it may also be asked whether the process of law making risks losing
some of the valued traditions and requirement for due time for reflection, proper study
and for domestic debate.
However, Resolution 1373 needs also to be seen in the light of the horrors of September
11 and the enormous challenge of responding to the immediate threat of widespread
terrorism in the environment of a globalised world. It was essential for the international
community to be united in its response, and to do so as promptly and as effectively as it
18
Statement to the Counter-Terrorism Committee of the Security Council, 21 October 2002.