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Expanding Universe: Grotian Moments in the Practice of the UN Security Council

In: Grotiana
Author:
Inger ÖsterdahlDepartment of Law, Uppsala University, Uppsala, Sweden, Inger.Osterdahl@jur.uu.se

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Abstract

This contribution explores Grotian Moments in the practice of the UN Security Council in three different but closely related subject areas. The three areas are, in turn, the way the Security Council interprets the concept of ‘threat to the peace’ or more generally ‘international peace and security’, the law-making by the Security Council, and the subjects – in the sense of legal or natural persons – that the Security Council chooses to address. It turns out that the interpretation by the Security Council of the UN Charter has been remarkably flexible, expanding the scope of action of the Council considerably. Whether its interpretation of the UN Charter also deserves to be labelled ‘Grotian’, however, is rather a matter of rhetoric than law.

Abstract

This contribution explores Grotian Moments in the practice of the UN Security Council in three different but closely related subject areas. The three areas are, in turn, the way the Security Council interprets the concept of ‘threat to the peace’ or more generally ‘international peace and security’, the law-making by the Security Council, and the subjects – in the sense of legal or natural persons – that the Security Council chooses to address. It turns out that the interpretation by the Security Council of the UN Charter has been remarkably flexible, expanding the scope of action of the Council considerably. Whether its interpretation of the UN Charter also deserves to be labelled ‘Grotian’, however, is rather a matter of rhetoric than law.

1 Introduction

A Grotian Moment, writes Michael Scharf, is a context of fundamental change that can serve as an accelerating agent, enabling customary international law to form much more rapidly and with less positive state practice than is normally the case.1 The accelerated formation of customary international law, in brief, is a further way in which Michael Scharf describes what is in a Grotian Moment.2 In order to explain the concept further, Michael Scharf refers to other authors having used the term Grotian Moment to denote a transformative development in which new rules and doctrines of customary law emerge with unusual rapidity and acceptance.3 This usually happens, writes Scharf, during ‘a period in world history that seems analogous at least to the end of European feudalism…when new norms, procedures, and institutions had to be devised to cope with the then decline of the Church and the emergence of the secular state’.4 In comparison with the tipping point that every rule of customary law encounters as it ripens, according to Michael Scharf what makes a Grotian Moment extraordinary is the context of fundamental change behind the tipping point, laying the foundation for more than an incremental change.5

Similarly, in an earlier work, Michael Scharf explains that the concept of Grotian Moment denotes a paradigm-shifting development, in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance.6 Michael Scharf explains further that a Grotian Moment constitutes an acceleration of the custom-formation process due to states’ widespread and unequivocal response to a paradigm-changing event in international law.7 As an example of a Grotian Moment, Michael Scharf cites the unprecedented human suffering from the atrocities of World War ii and the related recognition that there could be international criminal responsibility for violations of international law.8 As one of several more recent potential Grotian Moments, Scharf mentions the systematic terrorist attacks against the World Trade Center and the Pentagon on 11 September 2001 and the international community’s reactions to those attacks, which have had a profound impact on the global order and ‘transformative consequences for international law’.9 The negotiation of the Peace of Westphalia and the establishment of the UN Charter would be other examples of Grotian moments, according to Michael Scharf.10

In a more recent work, Scharf et al. compare the concept of international constitutional moment and Grotian Moment and seem to find them equivalent in principle; however, Scharf et al. prefer the term Grotian Moment.11 Scharf et al. explain that usually, customary law evolves slowly over many decades, but sometimes world events are such that customary international law develops quite rapidly.12 And, most importantly here, in the context of the discussion of the concept of Grotian Moment, Scharf et al. claim that some scholars call these transformative events that accelerate the formation of customary international law or occasion significant interpretive changes of the UN Charter international constitutional moments, whereas other scholars like, for instance, Scharf himself and his co-authors prefer to describe the phenomenon as Grotian Moments.13 The more generic label ‘accelerated formation of customary international law’ seems to be used by Scharf et al. as an alternative label encompassing both international constitutional moments and Grotian Moments.14

This contribution understands the concept of Grotian Moments as defined by Scharf et al., namely as transformative events that accelerate the formation of customary international law or occasion significant interpretive changes of the UN Charter.15 Similar to Scharf et al., this author also strives to contribute both to the discussion on the concept of Grotian Moments as such and to the discussion on the specific ways in which the Grotian Moments represented in this contribution have affected the development of customary international law and the law of the UN Charter.16

Another observer of the Grotian Moment concept, B.S. Chimni, claims that in mainstream international law, the term Grotian Moment tends to be used to refer to different kinds of developments inside the international legal order.17 This, the current author would claim, is how Scharf et al. use the concept, and it is also the way the current author uses the concept. In the view of B.S. Chimni, however, minimally, a Grotian Moment must involve developments indicating the possibilities of transition to a post capitalist or post imperialist global order along with an emerging law of nations that facilitates its achievement.18 According to B.S. Chimni, there would seem to have been only one true Grotian Moment in world history so far and that would be the events unfolding in Europe around the time of Hugo Grotius himself.19 These developments led, on the one hand, to the emergence of the capitalist mode of production and, on the other hand, to the Westphalian system, Chimni writes.20 And, Chimni continues, the law of nations was recast to facilitate the creation of a new international order based on a new mode of production and a new political order, i.e. colonial international law, emerged.21 According to Chimni, there have also been two potential but so far unsuccessful Grotian Moments: the October revolution and decolonisation.22

Other authors such as Omri Sender and Michael Wood, on the one hand, and Dire Tladi, on the other, have understood and used the concept of Grotian Moment somewhat differently from how Michael Scharf and B.S. Chimni have approached the concept.23 The views of these other authors will be addressed in the conclusion of this contribution.

In this contribution, Grotian Moments in the practice of the United Nations Security Council (unsc) will be explored in three different but closely related subject areas. The three areas are, in turn, the way the unsc interprets the concept of ‘threat to the peace’ or more generally ‘international peace and security’, the law-making by the unsc, and the subjects – in the sense of legal or natural persons – that the unsc chooses to address. Who more precisely are the subjects of the unsc?

These areas have been chosen since this author considers that the original Grotian Moments and the developments that have taken place since then constitute significant aspects of the practice of the unsc. The three Grotian areas that have been singled out here are significant, both from the qualitative perspective of the unsc’s innovativeness and from the more quantitative perspective of the action of the unsc. This has subsequently been repeated and further refined, and the action has played a significant role in international law and politics outside the unsc.

unsc resolutions constitute the fundamental source material of the study. The unsc resolutions have been complemented by records of debates in the unsc, by secondary literature and by the reasoning of the current author. The cases chosen serve only as illustrative examples; thus, no comprehensive review of the practice of the unsc is performed in any of the three subject areas. The contribution concludes that there is and has always been an amazing Grotian potential in the unsc and that generally, the direction of the Grotian tendency in the practice of the unsc has been rather unambiguous: expansion of the authority of the unsc. The concept of Grotian Moment, however, although inspiring, is not indispensable in order to reach this conclusion.

2 Threat to the Peace

2.1 The Applicable Article in the UN Charter

In 1947, the Indonesian Question was brought to the unsc’s attention, as a ‘threat to the peace’ – or even ‘breach of the peace’ under Article 39 of the United Nations (UN) Charter according to some – but opinions differed.24 It was the first time a case was brought before the unsc under Article 39 of the UN Charter.

Australia, which was a member of the unsc at the time, brought the armed hostilities between the Netherlands and the Republic of Indonesia before the unsc because it considered that the hostilities constituted a breach of the peace under Article 39 of the Charter.25 India which was not a member of the unsc also brought the hostilities between the Netherlands and the Republic of Indonesia before the unsc, but under Article 35 (1) of the Charter, as a situation endangering the maintenance of international peace and security covered by Article 34 of the Charter.26 The representatives of India as well as the Netherlands were invited by the President of the unsc to participate in the discussion at the unsc. The Republic of Indonesia became a member of the UN in 1950. The representative of India wished to clarify that in reality there was no difference of opinion between India and Australia: ‘India has asked for action under Chapter vi, which relates to disputes the continuance of which is likely to endanger the maintenance of international peace and tranquility. Australia has applied under Chapter vii which relates to actual threats to the peace. There is really no difference of opinion between Australia and India in this matter. We did not, however, invoke the more urgent provisions of Chapter vii, for we felt that, not being a member of the Security Council, we were not entitled to do so. We rejoice that Australia has taken up this matter under the provisions of Chapter vii, and we are most grateful for this action. We warmly associate ourselves with the Australian proposal pending careful consideration of ours’.27

The representative of the Netherlands for his part denied the competence of the unsc.28 Specifically, the representative argued that there was no threat to, or breach of, international peace, since there was no conflict between two sovereign states, and that the situation was a matter essentially within the domestic jurisdiction of the Netherlands:

There is on the side of the Republic of Indonesia no question of full sovereignty. The sovereign Power – and I think this has never been disputed yet – is the Netherlands, whose Government has difficulties with one of its constituent elements, not with an external element.29 We therefore contend: First, the Charter is not applicable to what is now happening in Java and Sumatra; and Secondly, that while it seems to us that that contention is adequate to rule out action of any kind, including an affirmative vote on the Australian draft resolution now before us, we consider, in addition, that this is a matter essentially within the domestic jurisdiction of the Netherlands. … Assuming purely and simply for argument’s sake that the Charter is applicable – which I deny – to what is now taking place in Java and Sumatra, where then, I ask, is there any danger to international peace or security, let alone breaches of the peace or acts of aggression in the sense of the Charter? In what countries outside the Netherlands’ territory are there any signs of danger to peace caused by this action?30

The delegates of Belgium, the United Kingdom, and France were not entirely convinced that the unsc was competent to handle the matter.31 The representative of the United States, for his part, provided the members of the unsc with an ingenious solution to the ‘very complex and serious questions of law’, raised by the invocation of Articles 39 and 40 in the Australian draft resolution.32 The representative of the United States stated: ‘The question of sovereignty, and the question of the competence of this Council to deal with the case, have been brought up by the representative of the Netherlands and, in our opinion, also merit the respectful attention of the Council. These are very important questions. The fact that there is shooting, and that men are being killed in that region of the world, is also very important. Thus it is a legitimate concern of the Security Council, no matter what concept of sovereignty is involved or what may ultimately be decided to be the fact’.33 And, irrespective of the correct answer in law to ‘the complex question of the sovereignty of the Netherlands government’, the representative of the United States stated that ‘I do think … that the Council must take cognizance of fighting on such a scale and in such conditions that the peace of that region and ultimately of the world might be put in danger’.34

The solution for the time being was simply to eliminate from the text of the Australian draft resolution the invocation of Articles 39 and 40 of the Charter, and an amendment to that effect to the Australian resolution was submitted by the representative of the United States.35 ‘[T]here is no mention of any Article of the Charter, and there is no commitment regarding the sovereignty of the Netherlands over the region in question’, the United States’ representative said; ‘[a]ll of those questions are left open and without prejudice to any determination which the Council may later reach’.36 The representative of Australia accepted the United States amendment – ‘we should avoid long juridical and technical arguments’37 as did the representative of China – ‘I think it would be dangerous to talk too much about legalities’.38

The French representative proposed to insert an explicit disclaimer in the preamble of the resolution suggested by Australia and amended by the United States: ‘Reserving entirely the question of the Council’s competence as regards the application of the Charter but prompted by a wish to see the cessation of bloodshed in the two islands, …’.39 Eventually, the unsc adopted the resolution as proposed by Australia and amended by the United States, and Poland to add to the operative part the sentence: ‘and keep the Security Council informed about the progress of the settlement’.40

On the complex legal question concerning whether or not the unsc was competent to deal with the Indonesian Question, the President of the unsc stated that ‘[w]e are not saying that the Security Council is or is not competent to deal with the question’ and further ‘I do not consider that the question has been settled, but that it has been left in abeyance’.41

2.2 The Competence of the Security Council

It is difficult not to agree with Hans Kelsen who observes that there can hardly be any doubt that the unsc, by adopting the resolution, declared itself competent to intervene in the conflict between the Netherlands and Indonesia, although it did not make an express statement about its competence and although it did not indicate the Articles of the Charter under which it was acting.42 However, even though there can hardly be any doubt, one cannot be certain; moreover, there were certainly participants in the debate in the unsc who did not consider the unsc to be competent to deal with the matter.43 Still, several states expressed views that correspond to Kelsen’s observation.

The United Kingdom (which voted against the resolution) stated that even the re-drafted resolution does ‘prejudge the legal position, because to call on parties to cease fighting is definitely to imply that Article 2, paragraph 7, of the Charter does not apply’.44 The representative of the Soviet Union commenting upon the proposed French amendment, with which the Soviet Union could not ‘possibly agree’, indirectly expressed the opinion that the unsc was competent to handle the matter; the French amendment ‘would create an undesirable precedent for the future, as it would mean that the Security Council might consider a particular question though it was not certain that the question came within its jurisdiction’.45

The Syrian delegation – Syria also held the presidency of the unsc when the resolution was adopted – believed that the unsc was competent in this matter ‘whether it is considered as a humanitarian task in the maintenance of international peace and security or whether the problem is considered on the basis of the independence of Indonesia [Syria considered Indonesia to be independent]’.46

Australia, after the adoption of the resolution, declared that the unsc was examining the case under Chapter vii of the Charter; Australia even referred to ‘the Article of Chapter vii under which we are now examining this case’ (without however mentioning the number of the Article) and, implicitly quoting Article 40, also referred to ‘provisional measures…without prejudice to the rights, claims and position’ of either party’.47 In a later debate, the representative of Australia repeated that ‘[a]lthough the resolution of 1 August omitted reference to Articles 39 and 40 of the Charter, it is very clear that the Indonesian question was brought before the Council under Chapter vii of the Charter, and it is very clear that action was taken under Article 40 in that certain provisional measures were taken or decisions made’.48 If further action would be necessary, the Australian representative said, ‘further action could take the form only of enforcement measures’.49

The representative of Poland said that the unsc had put the Indonesian Question on its agenda under Article 39 of the Charter, thereby recognising the question as an international problem as opposed to an internal one, and that the resolution adopted by the unsc contained no reservation as to the competence of the unsc of the kind proposed by France, i.e. Poland considered that the unsc was competent and that the matter was discussed under Article 39 of the UN Charter.50 At a subsequent meeting, the representative of Poland again, in spite of the fact that no Articles are mentioned in resolution 27 (1947), stated that ‘[b]y admitting the case under Article 39 of the Charter, the Security Council accepted the situation as a breach of international peace, and recognized the competence of the Security Council to deal with it’.51 Poland continued, interestingly: ‘Although the resolution did not expressly mention Article 39, it is quite clear that under this Article, and only under this Article, can the case be dealt with here, and measures provided by the Charter be applied’.52

The representative of the United States declared that paragraph (a) of resolution 27 (1947) calling upon the parties to cease hostilities forthwith ‘is a provisional measure under Article 40’.53 From the United States’ perspective, that decision ‘did not prejudice the contentions of the parties with regard to whether or not the Indonesian Republic was an independent State under international law’.54 ‘In our view’, the representative of the United States importantly stated, ‘the Council’s jurisdiction rested on the fact that large-scale hostilities were being carried on in Indonesia, the repercussions of which were so serious that they amounted to a threat to international peace and security’.55

The delegate of the Philippines – having been invited to participate in the discussion – clearly stated that in his view, ‘even if it were claimed that the armed clash between the Netherlands and the Republic of Indonesia is a domestic dispute [and thus within the domestic jurisdiction of the Netherlands under Article 2 (7) of the UN Charter], such a claim would not and could not have the effect of depriving the Security Council of its competence, under Article 39 of the Charter, to determine the existence of any threat to peace, breach of the peace or act of aggression, and to make recommendations, or to decide what measures shall be taken under Articles 41 and 42 to maintain or restore international peace and security’.56 Thus, in the view of the Philippines, Article 2 (7) did not apply since the unsc was acting under Article 39. Still, as we remember, no Article at all was mentioned in the resolution.

The unsc might have declared itself competent to intervene in the conflict between the Netherlands and Indonesia, as Kelsen found above. Nonetheless, as Kelsen finds, under what provision the unsc acted is very unclear.57 Kelsen finds no Article in the UN Charter – either in Chapter vi or vii – under which resolution 27 (1947) could have been adopted.58 Still, the unsc did adopt the resolution, including the calls upon the parties that it contained.

Perhaps the resolution could be considered having been adopted under the inherent competence of the unsc to maintain international peace and security under Article 24.59 Under Article 24, the unsc potentially has a very broad authority to act in cases not fitting squarely under any other Article or Articles in the UN Charter. However, this thought apparently did not strike any of the participants in the discussion in the unsc; consequently, no participant made such an argument in the debate. Under Article 25 of the UN Charter, the members are bound to accept and carry out the decisions of the unsc, including decisions potentially made under Article 24.

2.3 Defining a Threat to the Peace

Concerning what constitutes a ‘threat to the peace’, the views put forward by the participants in this early debate in the unsc are interesting. Syria, for instance, hinted that humanitarian issues can hypothetically form the basis for the consideration of a situation by the unsc, i.e. humanitarian concerns can constitute a threat to the peace or at least endanger the maintenance of international peace and security.60 The United States argued that the fact that there was ‘shooting’ and that ‘men are being killed’, and was perhaps thereby hinting that the bloody war as such and the human suffering it entailed could form the basis for the competence of the unsc to deal with the Indonesian Question regardless of whether the fighting took place between two states or whether there was a risk that it would spread to other countries in the region.61 The United States’ representative added, however, ‘that the Council must take cognisance of fighting on such a scale and in such conditions that the peace of that region and ultimately of the world might be put in danger’,62 which would rather seem to illustrate that not merely shooting and men being killed were necessary prerequisites for the unsc being entitled to consider the case, but the risk of regional or even global peace being threatened must also be present in order for the unsc to be competent to handle the situation.

Also, there is perhaps an element of support for the right to self-determination or even the right to democracy (as it would later be phrased) in the argument made by Syria, referring to the independence of Indonesia which Syria was convinced was a fact.63 The argument – which, if it is true, is far from obvious in the statement by Syria in 1947 – would then be that a violation by The Netherlands of the right to self-determination of the Republic of Indonesia, and thereby potentially also a violation of the right to democracy of the people of the Republic of Indonesia, constituted a threat to the peace. Such arguments have recurred later in the practice of the unsc under Article 39.

On the need, or not, for a threat to international peace in order for the unsc to be competent, the Philippine argument is that the fact that a conflict is domestic does not deprive the unsc of its competence under Article 39 of the Charter to determine the existence of any threat to the peace, breach of the peace, or act of aggression and make consequent recommendations or decide what measures should be taken.64 A purely domestic conflict can then, in the view of the Philippine delegate, give rise to a threat to the peace. Also, the Philippine delegate argued that a domestic conflict could, in principle, give rise to the competence of the unsc under Article 39 to determine the existence of a breach of the peace or act of aggression. It is a little harder to see how a purely domestic conflict could constitute a ‘breach of the peace’ or ‘act of aggression’ since both these concepts would seem intimately connected with the existence of two separate states involved in the conflict, but the argument shows the potential for flexibility of the UN Charter and its interpretation already from the start.

Australia, which put the issue of the Indonesian conflict on the agenda of the unsc, also argued that it was a matter of a ‘breach of the peace’. However, Australia also clearly stated that in its opinion ‘[i]t can be clearly established that the Republic of Indonesia does constitute a State’.65 Australia made an interesting contribution to the discussion on the issue of what constitutes a ‘breach of the peace’.66 Specifically, Australia stated: ‘This is the first time a case has been brought before the Council under Chapter vii. Under Article 39, we are alleging a breach of the peace. There are no precedents as to what constitutes a breach of the peace, but we assume that this means a breach of international peace and applies to cases where hostilities are occurring, but where it is not alleged that one particular party is the aggressor or has committed an act of aggression [emphasis added]’.67 Before that, Australia had stated that the situation in Indonesia ‘is one of international concern and already has far-reaching repercussions. It affects the well-being and stability of the whole of the South-west Pacific and South-east Asia in which we are directly concerned’.68 Thus, it would seem that a purely domestic conflict then could not qualify as a breach of the peace in the view of Australia, whereas as we saw above, it could qualify as such in the view of the Philippines, including even as an act of aggression.69

There were a lot of Grotian hints in the discussion of the Indonesian Question in the unsc. Most states considered the unsc to be competent to handle the matter, but among the states that considered the unsc competent, many different arguments were put forward to justify this position, notably including the argument to avoid juridical argument completely and to just handle the matter.

The most evidently Grotian step taken by the unsc in the case of Indonesia, in the opinion of this author, was to follow the latter advice: to eliminate all legal problems by just eliminating all references to specific Articles in the UN Charter, leaving ‘in abeyance’ as the President of the unsc put it, the question of competence as well as consequently the question of what kind of decisions the unsc would be entitled to make and what kind of measures the unsc would be entitled to take.70 The silence on Article 39, Article 40, or any Article in the Charter and the silence consequently on the subject of ‘endangerment of’, ‘threat to’, or ‘breach of’ the peace of resolution 27 (1947) is very telling as is the silence of what measures the unsc would be entitled to take, and on what legal basis, in the Charter as a consequence of a finding (or not) of a threat to the peace. The door to a flexible interpretation of the Articles involved, if any, could hardly have been more widely opened than that.

3 Law-Making

3.1 Legislating Against Terrorism

In order to ensure prompt and effective action by the United Nations, according to Article 24 of the UN Charter, its members confer primary responsibility for the maintenance of international peace and security on the unsc. Thus, the unsc is first and foremost an executive organ entitled to act in specific situations, as defined in Chapters vi and vii of the Charter. However, the sc has taken on the task of also legislating in a more general manner in some cases. The moment when the unsc started legislating deserves to be labelled Grotian.

It cannot be considered to have been part of the original mandate of the unsc under the Charter to legislate, but now, arguably, it is as a consequence of the practice of the unsc. The Grotian Moment in this respect came in 2001 in the wake of the terror attacks in New York and Washington DC on 9/11.71 In resolution 1373, the unsc lays down norms concerning the criminalisation of terrorist financing that all States shall implement.72 Firstly, ‘all States shall: … [c]riminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts’.73 Secondly, ‘all States shall: … [e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts’.74

Resolution 1373 also, among many other things, prescribes the freezing of funds of persons and entities associated with terrorism and lays down that ‘all States’ shall: ‘[p]rohibit their nationals or any persons or entities within their territories from making any funds available for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts’.75 In addition to prescribing the specific legislation all states should enact, the unsc also legislates directly for the states and, among other things, decides that all states shall ‘[r]efrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists’.76

An international convention exists in the same subject area as resolution 1373, namely the International Convention for the Suppression of the Financing of Terrorism (1999).77 This Convention now has 189 parties. By 11 September 2001, however, the Convention only had three parties judging from the Status of Treaties list in the UN Treaty Collection.78 The unsc probably (rightly) feared that the ratification process would take a long time, so it legislated through a binding resolution instead. Thereby, the unsc could exclude any potential reservations and declarations by the states and on the whole make the ratification and implementation procedure of the criminal norms involved considerably faster and more effective.

After the adoption of resolution 1373, there was no doubt that all states were obliged to criminalise the financing or perpetration of terrorism by their nationals or in their territories and to refrain from providing any support to terrorists themselves. The International Court of Justice (icj) has even referred to resolution 1373 as an instrument expressing a generally valid rule of international law. In its judgment of 2019 in Ukraine v. Russia, the icj states the following: ‘[t]he conclusion that the financing by a State of acts of terrorism lies outside the scope of the icsft [International Convention for the Suppression of the Financing of Terrorism] does not mean that it is lawful under international law. The Court recalls that, in resolution 1373 (2001), the United Nations Security Council, acting under Chapter vii of the Charter, decided that all States shall “[r]efrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts [emphasis added]”’.79

In 2004, the unsc legislated again, in resolution 1540 on a topic mentioned also in resolution 1373, namely the illegal movement of nuclear, chemical, biological and other potentially deadly materials.80 In resolution 1373, the unsc noted with concern the close connection between international terrorism and the illegal movement of these potentially deadly materials as one among several destructive criminal phenomena with which international terrorism is closely connected.81 In resolution 1540, the sc, among other things, ‘[d]ecides … that all States … shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them’.82 The sc further ‘[d]ecides … that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials’ further specified in the four following points.83

It took some time before the unsc legislated again. Following the emergence of the Islamic State in Iraq and the Levant (isil)/Da’esh in 2014, however, a wave of anti-terrorist law-making resolutions started flowing from the unsc: ‘Ever more law, pertaining to ever more areas of state activity, that is of global effect and applicable indefinitely’, as McKeever finds.84 The post-isil law-making resolutions sometimes repeated obligations already laid down by the unsc in earlier resolutions, sometimes elaborated further on previously stipulated binding obligations, sometimes hortatory but non-binding obligations stipulated earlier were turned into binding obligations, and sometimes new binding obligations were issued by the unsc, as well as new not legally binding ones.85

A case in point is resolution 2178 (2014) on foreign terrorist fighters.86 In this resolution, the unsc, among the operative paragraphs, refers back to its earlier binding decisions in resolution 1373 (2001), and adds new binding obligations, and non-binding ones, for all Member States, or even all states or just states, with a view to stopping the travelling and further activities of foreign terrorist fighters as well as their recruiters and sponsors. Since the unsc is ‘[a]cting under Chapter vii’ of the UN Charter throughout the entire operative part of the resolution (27 paragraphs in total), i.e. acting under a chapter which allows the unsc to make binding decisions as well as recommendations on measures to be taken by the Member States to maintain or restore international peace and security, it is not always crystal clear what prescribed measures should be understood as legally binding and what prescribed measures are not imperative. It will mostly be a question of the language used by the unsc, where what the unsc ‘decides’ must be interpreted as legally binding, whereas what the unsc ‘reaffirms’, ‘underscores’, ‘encourages’, ‘urges’, or ‘calls upon’ the member states to do (given that no explicit reference is made to a preceding decision contained in an earlier resolution), however seriously meant, must be understood as legally non-binding exhortations on the part of the unsc.87

Among the obligations for all Member States decided upon by the unsc in resolution 2178 (2014) were to ‘establish serious criminal offences sufficient to provide the ability to prosecute and to penalize’: their nationals and other individuals who travel or attempt to travel to a State other than their State of residence or nationality for the purpose of in any way becoming involved in terrorist acts or providing or receiving terrorist training; the wilful provision or collection of funds by their nationals or in their territories in order to finance the travel of individuals for the purpose of engaging in terrorist acts in any way or providing or receiving terrorist training; and the wilful organisation, or other facilitation, including acts of recruitment, by their nationals or in their territories, of the travel of individuals abroad for the above-mentioned purposes.88

The significant law-making activity of the unsc in the anti-terrorist area has probably, or hopefully from the point of view of the unsc, given rise to a corresponding high degree of legislative activity on the national level among the UN Member States.89 As implied by McKeever, the extensive law-making activity by the unsc in the anti-terrorism area also causes the national authorities a considerable amount of theoretical and practical difficulties when the law generated by the unsc is to be incorporated into domestic law and practice.90 As McKeever writes, in view of the breadth of topics covered by the new law adopted at the international level, a wide range of domestic stakeholders will need to amend or expand their activities in response to the unsc’s resolutions: legislators; police; prosecutors; judges; prison authorities; immigration authorities; customs authorities; national civil aviation and maritime security authorities; intelligence services; ministries of education; armed forces, banks, and financial institutions.91

Moreover, as noted by McKeever, in many cases, states – and therefore, the wide range of domestic agencies involved – are also required to report to the UN on the measures taken to implement the new rules.92 This gives the national authorities even more work. In addition, McKeever observes, the unsc resolutions on counter-terrorism, which impose monitoring or reporting requirements, often do not distinguish, in this regard, between the binding and non-binding parts of the resolutions.93

3.2 Temptation to Legislate on Climate Change

The area of counter-terrorism activities is the area in which the unsc has become engaged in law-making. Some law-making has also taken place, as we have seen, in the closely related area of measures against the proliferation by non-state actors of weapons of mass-destruction.94 In the arguably most acute area of all, as far as threats to international peace and security in a more fundamental sense are concerned, the area of climate change, there has been a complete shortage of law-making on the part of the unsc so far. The only resolution adopted by the unsc referring to climate change is resolution 2349 (2017) on Peace and Security in Africa, in which the sc under the heading of ‘Root Causes and Development’ ‘[r]ecognizes the adverse effects of climate change and ecological changes among other factors on the stability of the [Lake Chad Basin] Region, including through water scarcity, drought, desertification, land degradation, and food insecurity’.95

The moment when the unsc would start taking climate change seriously and would start making law to counter climate change to the same extent that it has devoted itself to making law to counter terrorism area would be Grotian. Perhaps binding obligations on all Member States – or all states or just states – including the permanent Members of the unsc themselves, with no end date, would be what the world needs. A pragmatic way to ensure a prompt normative response to an identified need is in fact a strong argument in favour of unsc legislation, in contrast to the long and cumbersome treaty-making processes, as cited by McKeever.96 The same would go for the argument of specificity when law-making by the unsc is contrasted with law-making by international custom: unsc law-making could facilitate normative specificity, in contrast to the sometimes indeterminate customary law-making process.97

However, before the unsc hypothetically embarks on the project of legislating to counter climate change, it would be worth taking notice of the warnings issued by McKeever against too intensive a law-making activity on the part of the unsc. If we compare unsc resolutions with treaties generally, resolutions can by their nature be less detailed than treaties, and since resolutions are secured only through political compromise, the language in which they are drafted can be general and lack clarity.98 Furthermore, unsc resolutions lack travaux préparatoires, which removes a possible aid to interpretation, and unsc resolutions making generally applicable law lack clear deadlines for implementation.99 Other criticism of law-making by the unsc taken up by McKeever is that some consider it to lie outside the competence of the unsc and that if the unsc should engage in a legislative activity at all, it should do so in partnership with the UN General Assembly.100 Other criticisms of law-making by the unsc have been the uneven state representation in the unsc; the lack of transparency in its procedure; the absence of supervisory machinery to assess the effectiveness of state implementation of the laws generated by the unsc; and the fact that the unsc’s activity is subject to limited, if any, judicial scrutiny.101 Some, including McKeever himself, go so far as arguing that the assumption by the unsc of a general legislative function would be subverting the structural bases of the international legal order itself.102

Much of the criticism of making law through unsc resolutions originally launched in the international legal doctrine in the wake of 9/11 remains valid with respect to the new legislative wave starting in 2014 and, again in the words of McKeever, indeed has been compounded by the volume and nature of the more recent activity.103 The conclusion drawn by McKeever is that treaties should remain the default option for international law-making in the area of counter-terrorism, not resolutions by the unsc. Notwithstanding the fact that treaties and treaty-making can also be made the subject of much the same criticism as law-making resolutions by the unsc and the procedure whereby the unsc legislates,104 a premise for a meaningful comparison between law-making unsc resolutions and treaties is that there are potentially effective treaties or that such treaties could potentially be adopted. This is the case in the counter-terrorism area, as illustrated by McKeever.105

However, in the area of climate change, the question remains whether there are any treaties as of yet or if any will be concluded that could match a law-making resolution by the unsc. In the absence of effective treaties or even prospects for effective treaties being concluded in the relatively near future, perhaps law-making by the unsc appears less unpalatable. Currently, it looks unlikely that effective treaties will be concluded to counter climate change, and it looks equally unlikely that the unsc will start making law ‘of unprecedented volume and breadth’ in this area;106 perhaps unfortunately, then, as far as climate change is concerned. To quote McKeever once again, ‘[t]errorism is not the only complex phenomenon that poses a threat to international peace and security, and the Council’s activity on other issues that are also complex and of extreme importance to international peace and security is of a strikingly different nature’,107 or completely lacking, as this author would add.

4 Circle of Subjects or Targeting Whom?

4.1 Addressing Non-Members

States are parties to the UN Charter, and under Article 4 of the Charter, only states (peace-loving states) may become members of the UN. A reasonable interpretation of the UN Charter might therefore be that the decisions of the UN and, in our case, the unsc, in particular, would only refer to the actions of states and in particular only be addressed to states and in addition only to Member States. However, at a number of Grotian Moments, the unsc has shown that it considers itself as having the authority to make decisions concerning other states than Member States and even other actors than states.

In the context of the discussion of the concept of ‘threat to the peace’ above, we studied the example of Indonesia, in 1947, where the unsc addressed the Netherlands which was (and still is) a member of the UN, as well as the Republic of Indonesia which was not a member and was not even considered an independent state by all states. Here, we will look at the likewise early case of Korea in 1950.108

In this case, the unsc found that a non-Member State, North Korea, had attacked another non-Member State, the Republic of Korea or South Korea, and that this attack constituted a breach of the peace under the UN Charter. Both North Korea and South Korea later became members of the UN in 1991. The concept of breach of the peace was introduced by its inclusion in the UN Charter; the concept had not existed in customary international law before the creation of the UN Charter. Thus, the concept did not occupy an independent position in international law in parallel to its inclusion in the Charter. Still, acting under the UN Charter and referring to the concept of breach of the peace as it was understood by the drafters of the Charter, the unsc addresses North Korea which is not a member of the UN when it calls upon the authorities in North Korea to withdraw their armed forces to the 38th parallel.109 In its next resolution, the unsc also noted the appeal from the Republic of Korea, which was not a member of the UN either, for immediate and effective steps to secure peace and security.110 In addition to the fact that neither of the two states was a member of the UN, the status as states of the Republic of Korea and North Korea respectively was also not even certain at the time, considering the dispute over the territory and the partition of the Korean peninsula into two halves. The Republic of Korea, i.e. what today constitutes South Korea, came closest, and the unsc alludes to this when it checks the state criteria against developments in the Republic of Korea and finds that the Government of the Republic of Korea is the only lawfully established Government in Korea.111

Despite the lacking UN membership of either of the two possible Koreas and, and one could add, the lacking status as a state of North Korea at least, the unsc determines that the action by North Korea constitutes a breach of the peace under the UN Charter.112 The unsc also calls for the immediate cessation of hostilities.113 The unsc likewise, as we have seen, calls upon the authorities in North Korea to withdraw their armed forces to the 38th parallel.114 After having found that the authorities in North Korea had neither ceased hostilities nor withdrawn their armed forces to the 38th parallel, and that urgent military measures were required to restore international peace and security, the unsc addresses the members of the UN and recommends that they furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security.115 The unsc authorised the use of force against a non-Member State (or non-Member State-like entity); in this way, the system for collective security under the UN Charter intended for the members of the UN was used against a non-member in favour of another non-member.116 The unsc could be said to apply the UN Charter regime to two third parties to the regime. One of the two third parties to the regime – South Korea – presumably wished the regime to be applied to the situation, whereas the other third party – North Korea – presumably did not. In any case, a treaty regime was applied to a situation having arisen between two non-parties to the treaty in question. The maintenance or restoration of international peace and security is the mission of the unsc under the UN Charter, and this mission in the case of Korea is extended to cover also states or areas outside the territory of the states’ parties to the UN Charter.117

4.2 Addressing All States

Whereas in the case of Korea, the unsc had recommended that the ‘Members of the United Nations’ furnish such assistance to the – non-Member State – the Republic of South Korea as may be necessary to repel the armed attack from the non-Member State and possibly non-state North Korea, in the case of the Congo in 1960, the unsc took the slightly different step of addressing ‘all states’ with some of its appeals in some of its resolutions. The Congo was not a member of the UN either when the first unsc resolutions on assistance to the Government of the Congo were adopted in the summer of 1960. The Congo became a member of the UN in September of the same year.

In resolution 145 (1960), the unsc requested ‘“all States” to refrain from any action which might tend to impede the restoration of law and order and the exercise by the Government of the Congo of its authority and also to refrain from any action which might undermine the territorial integrity and the political independence of the Congo’.118 In its following resolution 146 (1960) on the Congo, the unsc called upon ‘all “Member States”’, in accordance with Articles 25 and 49 of the Charter of the United Nations, to accept and carry out the decisions of the Security Council and to afford mutual assistance in carrying out measures decided upon by the Council’.119 Incidentally, before requesting in resolution 145 (1960) ‘all States’ to refrain from action impeding the restoration of law and order in the Congo, the unsc had adopted its very first resolution on the Congo in which it, just as interestingly, however not of primary interest here, decided ‘to authorize the Secretary-General to take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance as may be necessary until…the national security forces may be able, in the opinion of the Government, to meet fully their tasks’.120

In the following year, in 1961, the unsc again addressed ‘all States’ with some of its demands in its two resolutions in all of that year on the Congo Question.121 First, in resolution 161, the unsc ‘[c]alls upon “all States” to take immediate and energetic measures to prevent the departure of [all Belgian and other foreign military and para-military personnel and political advisers not under the United Nations Command, and mercenaries] for the Congo from their territories, and for the denial of transit and other facilities to them’.122 The unsc also, later in the same resolution, ‘[c]alls upon “all States” to extend their full co-operation and assistance and take such measures as may be necessary on their part, for the implementation of this resolution’.123 In the second resolution, adopted by the unsc on The Congo Question in 1961, the unsc, among other appeals, ‘[r]equests “all States” to refrain from the supply of arms, equipment or other material which could be used for warlike purposes, and to take the necessary measures to prevent their nationals from doing the same, and also to deny transportation and transit facilities for such supplies across their territories, except in accordance with the decisions, policies and purposes of the United Nations’.124 All states, obviously, are not parties to the UN Charter, at least not in this early era, but the unsc still considers itself having the authority to request all states to refrain from certain measures except when these measures are in accordance with the purposes of the UN, an international treaty to which, again, all states are not parties. Thus, the unsc seems to expect that third parties will act in line with a treaty and within the legal framework of a regime in which they do not participate.

The language used by the unsc to address ‘all States’ (calls upon; requests) is not the kind of language that – today at least – would normally be understood as creating binding legal obligations on the addressees. Nor is there, for instance, any reference to Chapter vii in the resolution, which would tend to imply that the demands put forward by the unsc are legally binding, nor any reference to the existence of a ‘threat to the peace’, which would tend to have the same effect. Nor is there any reference to Article 25 and Article 49 in the UN Charter in the context of the request addressed to ‘all States’ in this resolution or in the resolution adopted earlier in 1961.

The demands as such made by the unsc on states that are not parties to the UN Charter cannot be considered legally binding, and most likely the unsc itself could not reasonably believe that their requests addressed to third parties were legally binding on the third parties. Still, the unsc did call upon and request ‘all States’ to do or refrain from doing different things with all the political authority that the unsc of the UN carries with it and presumably with the hope that the non-parties to the Charter will still follow the demands on them in the resolutions. The unsc must have been of the opinion that the resolutions would carry some normative weight, even in relation to non-parties to the UN Charter, or at least have hoped that the third parties would have understood the resolutions in that way. In any case, the unsc did not consider itself precluded from requiring certain acts or abstentions from acting from states that were not parties to the treaty in question. In fact, the unsc seems to have considered itself as entitled to make demands on third parties. This is unusual, not to say exceptional – Grotian – as far as treaty relations and actions of international organisations are concerned. What the unsc was doing both in the case of Korea and in the case of the Congo, was, in the words of Michael Scharf et al., to occasion significant interpretive changes of the UN Charter, with additional possible effects on customary international law in the field of the law of international organisations and the law of treaties primarily.125 Since the flexible interpretation on the part of the unsc of the UN Charter has continued and developed further as to who the unsc may address, one can conclude that the unsc succeeded in changing the UN Charter in this respect through its practice.

The effect on international customary law in the field of treaties has arguably been more limited since treaties generally are still not considered being binding on third parties. As to the effect on customary law in the area of international organisations, other international organisations than the UN do not seem to have had their founding treaties as expansively interpreted by any organ of the organisation, as has the UN by the unsc. In terms of the customary law of international organisations, generally the effect of the flexible interpretation by the unsc of who it may address under the UN Charter would thus also seem to have been more limited. The UN organisation itself is important enough, however, particularly considering also Article 103 in its Charter, for the interpretive changes of the UN Charter having a significant international impact even if the expansive practice of the UN and the unsc may not have spread to other international organisations or may not have affected the law of treaties generally. Later, in its Advisory opinion of 1971 in the South West Africa case, the icj, referring, among other things, to the authority of the unsc under Article 24 of the UN Charter, did confirm that under (very) particular circumstances, states that are not members of the UN can still be legally bound by a resolution of the unsc.126

4.3 And Now Individuals

With time, the circle of addressees of the unsc would widen further, directly or indirectly. The furthest that the circle of addressees has widened so far, arguably, is the targeting of individuals suspected of terrorism starting with resolution 1267 (1999) and the listing procedure under unsc auspices and the ensuing resolution 1373 (2001), where the listing of suspected terrorists is managed by states or sometimes international organisations.127 True, the authority of the unsc in the wake of ‘9/11’ is not extended directly to the intended addressees of the new practice, but merely indirectly through obligations placed upon the states, as well as measures ultimately adopted by the states. Still, the shift to individuals in the practice of the unsc is significant enough to be labelled Grotian, considering the way in which the unsc now reaches for other entities than those that might have been originally expected, i.e. states’ members of the UN.

Both resolution 1267 (1999) and 1373 (2001) have since given rise to a long line of further resolutions each, along two slightly different normative tracks, applicable in different contexts where terrorist organisations and foreign terrorist fighters have been acting since 2001. In fact, the unsc might have been frightened by its own creation (or perhaps, rather by outside judicial and political pressure) since in 2006, it established a system for quasi-judicial review of the listing decisions of suspected terrorists made by the sanctions committee established by the unsc under resolution 1267 (1999).128 Later, the unsc, also in 2009, established the Office of the Ombudsperson through which suspected terrorists whose names are inscribed on the isil (Da’esh) and Al-Qaida Sanctions List can submit their delisting requests.129

In resolution 2178 (2014), the unsc would eventually address individuals directly, perhaps not surprising in the context of the fight against isil/Da’esh, now more specifically the fight against ‘foreign terrorist fighters’.130 The unsc now straightforwardly ‘demands that all foreign terrorist fighters disarm and cease all terrorist acts and participation in armed conflict’.131 In addition, resolution 2178 (2014), as we have seen above, places a great number of obligations on different categories of states – ‘all States’, ‘Member States’, and ‘States’. After resolution 2178 (2014), it is difficult to see how the unsc could push the limits of the circle of addressees any further; everyone and anyone between ‘all States’ and all individuals all over the world now seem to potentially be subjected to the more or less direct power of – or decisions or requests by – the unsc. At least in principle, and in practice – since the unsc is still dependent on measures ultimately taken by the states – as long as the states take the measures that they are called on to take by the unsc.

5 Conclusion

The firm Grotian grip of the unsc on the UN Charter has generated a remarkably flexible interpretation on the part of the unsc of the concept of threat to the peace – and indeed of the UN Charter as a whole, and of the significance in law of what the unsc is actually performing. Already in the very first case considered by the unsc, under Article 39, the seed for the expanding conception of ‘threat to the peace’ was sown. Law-making by the executive unsc might have come as a surprise, but this practice has soon become settled and very extensive, so far, however, limited to the area of the fight against terror, largely speaking. Also, the circle of subjects aimed at, or targeted by, the unsc seems to have undergone a Grotian expansion over the years. One would expect the Member States of the UN organisation to be the subjects over whom the unsc rules, but early on in its practice it was obvious that the unsc considered itself entitled to exercise authority with respect to significantly more types of actors than UN Member States. Today, everyone from a state – Member State or not – at the one end of the scale to an individual physical person anywhere in the world at the other end, would seem to be a potential addressee, directly or indirectly, of a decision by the unsc. These developments in the practice of the unsc open up new opportunities for effective international action, but they also entail dangers of uncontrolled exercise of power. Luckily, or unluckily, the permanent members of the unsc are seldom able to unite to the degree where the unsc can live out its Grotian potential to the fullest. Sometimes, but unusually, there are also international judicial institutions that place certain limits on the expansive activities of the unsc. The (Member) States, too, for better or for worse, might not execute all their obligations towards the unsc in full, thus, probably unwittingly, introducing a further element of checks and balances in their otherwise vertical relationship of allegiance towards the unsc.

And what about the Grotian Moment concept? The analysis performed in this contribution could very well have been performed without the conceptual tool of ‘Grotian Moment’. Nevertheless, the focus on Grotian Moments helps to bring out the creative – imperial – elements of the practice of the unsc, which in their turn are noteworthy. The relativity and instrumentality of the powers of the unsc appear all the more clearly. Perhaps there is reason henceforth to evaluate more carefully than before the impact of the practice of the unsc on the legal interpretation of the UN Charter and on international law more widely; as we have seen, the unsc itself does not always seem overly interested in what the UN Charter or international law would have to say about its actions. Where the Grotian road may lead the unsc in the future is an important subject of study for international lawyers still.

Concerning the legal character, or not, of the Grotian Moments concept, this author would agree with what Dire Tladi has concluded, namely that in the final analysis, the concept of Grotian Moment, as a legal concept, has little, if any, value, beyond describing the empirical moments that may, or may not, have an effect on international law.132 This author would not go so far as to say that the concept is potentially dangerous, as Dire Tladi suggests.133

To this author, the beautiful and charmingly imprecise concept of Grotian Moment rather serves an ornamental purpose in argumentation. Perhaps the Grotian Moment concept also constitutes a useful practical rhetorical device in different legal settings for the purpose of persuasion. Michael Scharf himself seems to admit as much when he writes that while there are no legal consequences to calling something a Grotian Moment, there might be several practical applications of which he enumerates quite a few, some of which are based on his own practical legal experience as Special Assistant to the International Prosecutor of the Extraordinary Chambers in the Courts of Cambodia.134 B.S. Chimni’s analysis of the Grotian Moment concept would seem to support the practical usefulness dimension of the idea, when he writes that Grotius was not seeking to shape the law of the nations for all times but to recast it in order to respond to the problems encountered by Holland and, more generally, European nations in the transition from a feudal to a capitalist order.135 And, unlike all others since, according to B.S. Chimni, Grotius succeeded in his endeavour.

Omri Sender and Sir Michael Wood, for their part, would again seem sceptical of the Grotian Moment concept when they conclude that assertions of any rapid development in customary international law – including by reference to Grotian Moments – are to be treated with caution.136 This author would tend to agree with Omri Sender and Sir Michael Wood on this point.

Indeed, it would seem as if Omri Sender and Sir Michael Wood would discard the relevance of the concept of Grotian Moment entirely, at least in the context of customary international law, when they write that, irrespective of any Grotian Moments, any rule of customary international law must meet the criteria of all customary international law: there must still be a general practice that is accepted as law and, citing the International Court of Justice, these ‘are consolidated and confirmed gradually over time’.137 Omri Sender and Sir Michael Wood further criticise those for whom the temptation to find, in customary international law, the capacity to respond quickly to evolving developments is so great that the two-element approach can be relaxed – if not forsaken altogether – in pursuit of desired ends, as they write.138

In conclusion, in the context of the practice of the unsc then, according to this author, a Grotian Moment is an instance where the action of the unsc is unexpected, innovative, or creative where the unsc opens doors which offer new possibilities to act and in particular to act in furtherance in certain political interests. A Grotian Moment may forebode what is to come, a Grotian Moment may be a first step on a road along which the unsc will travel further, and along which the measures taken by the unsc will get bolder and bolder. What might have been considered surprising at the start might, with time, become an everyday practice. It is not certain from the beginning whether a Grotian Moment will generate a long line of action on the part of the unsc or not; it might, but then, as the international political environment transforms, originally Grotian moves might become less useful than they seemed to be at the time they were introduced. A Grotian Moment is not easy to define closely, but an element of novelty, surprise, and innovativeness on the part of the unsc would seem to be necessary ingredients. Crossing borders that previously might have seemed impossible to move beyond might be an element of a Grotian Moment; the unsc makes a move that was impossible to imagine until it was made and then the practice may become natural. It becomes or may become the law.

And let us hope that the sinister Grotian Moment currently looming on the horizon due to the Russian invasion of Ukraine fails to materialise. That would be dangerous.

1

Michael Scharf, ‘Grotian Moments. The Concept’, Grotiana 42 (2021), 193–211, p. 195. This author wishes to thank the Torsten Söderberg Foundation for making the writing of this contribution possible through grant number rt2/19 Krigets juridik i den svenska regeringsformen: ett rörligt mål (The law of war in the Swedish Instrument of Government: a moving target).

2

Ibid., p. 196.

3

Ibid.; citing Saul Mendlovitz and Marev Datan, ‘Judge Weeramantry’s Grotian Quest’, Transnational Law and Contemporary Problems 7 (1997), 401–427, p. 402.

4

Michael Scharf, ibid., quoting Burns H. Weston, International Law and World Order, 3rd edn (St Paul, MN: Thomson-West, 1997), p. 1369.

5

Michael Scharf, ibid., p. 210.

6

Michael Scharf, ‘Seizing the “Grotian Moment”: Accelerated Formation of Customary International Law in Times of Fundamental Change’, Cornell International Law Journal 43 (2010), 439–469, at p. 440.

7

Ibid., p. 446.

8

Ibid.

9

Ibid., pp. 450–1; Scharf is citing, first, Ann-Marie Slaughter and William burke-White, ‘An International Constitutional Moment’, Harvard International Law Journal 43 (2002), 1–21, at p. 2, and, secondly, Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’, European Journal of International Law 12 (2001), 993–1001, at p. 993.

10

Michael Scharf, ibid., p. 444; citing Ibrahim J. Gassama, ‘International Law at a Grotian Moment: The Invasion of Iraq in Context’, Emory International Law Review 18 (2004), 1–52, at p. 9.

11

Michael P. Scharf, Milena Sterio and Paul R. Williams, The Syrian Conflict’s Impact on International Law (Cambridge: Cambridge University Press, 2020), p. 2; see also Michael Scharf 2010, supra note 6, citing Bruce Ackerman, Reconstructing American Law (Cambridge: Harvard University Press, 1984); Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’, Columbia Journal of Transnational Law 36 (1998), 529–619; Jenny S. Martinez, ‘Towards an International Judicial System’, Stanford Law Review 56 (2003), 429–529, at p. 463; Leila Nadya Sadat, ‘Enemy Combatants After Hamdan v. Rumsfeld: Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror’, George Washington Law Review 75 (2007), 1200–1248, at pp. 1206–07; Ann-Marie Slaughter and William Burke-White, supra note 9, p. 2.

12

Michael P. Scharf, Milena Sterio and Paul R. Williams, supra note 11, pp. 1–2.

13

Ibid., p. 2.

14

Ibid., p. 3; see also Chapter 3 Accelerated Formation of Customary International Law (19–28).

15

Cf. ibid., p. 2.

16

Cf. ibid., p. 3.

17

B.S. Chimni, ‘The Grotian Tradition, Grotian Moment, and Decolonization: A twail perspective’, Grotiana 42 (2021), 252–276, at p. 267.

18

Ibid., pp. 275–76.

19

Ibid., p. 266.

20

Ibid.

21

Ibid.

22

Ibid., pp. 266–67, 276.

23

Omri Sender and Sir Michael Wood, ‘Between “Time Immemorial” and “Instant Custom”: The Time element in Customary International Law’, Grotiana 42 (2021), 229–251; Dire Tladi, ‘Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?’, Grotiana 42 (2021), 335–353.

24

A letter from the acting representative of Australia on the Security Council addressed to the Secretary-General dated 30th July 1947, S/449; cf. also the very detailed comment on the discussion of the Indonesian Question provided by Hans Kelsen in The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevens & Sons Ltd, 1951), pp. 438–443.

25

A letter from the acting representative of Australia, supra note 24.

26

A letter from the permanent liaison officer of India addressed to the President of the Security Council dated 30 July 1947, S/447.

27

UN Security Council Official Records, second year, No. 67, 171st meeting, 31 July 1947, p. 1620.

28

Ibid., pp. 1639–1647.

29

Ibid., p. 1645.

30

Ibid., p. 1645.

31

UN Security Council Official Records, second year, No. 68, 172nd and 173rd meetings, 1 August 1947, pp. 1652–1655; 1655–1656; 1676–1682.

32

Ibid., pp. 1657–1659.

33

Ibid., p. 1657.

34

Ibid., pp. 1657–1658.

35

Ibid., pp. 1658–1659.

36

Ibid., p. 1658.

37

Ibid., p. 1694.

38

Ibid., p. 1685.

39

Ibid., p. 1678.

40

Resolution 27 (1947); UN Security Council Official Records, second year, No. 68, 172nd and 173rd meetings, p. 1703.

41

UN Security Council Official Records, second year, No. 68, 172nd and 173rd meetings, supra note 40, pp. 1701–1702. According to The Concise Oxford Dictionary of Current English, ‘abeyance’ means ‘a state of temporary disuse or suspension’.

42

Hans Kelsen, supra note 24, p. 442.

43

See supra note 28; 31 (The Netherlands, Belgium, the United Kingdom, France).

44

UN Security Council Official Records, second year, No. 68, 172nd and 173rd meetings, supra note 40, p. 1674.

45

Ibid., p. 1692; for the suggested French amendment, see supra note 39.

46

Supra note 44, p. 1701.

47

Ibid., p. 1708.

48

UN Security Council Official Records, second year, No. 84, 195th and 196th meetings, 26 August 1947, p. 2216.

49

Ibid.

50

UN Security Council Official Records, second year, No. 74, 180th and 181st meetings, 12 August 1947, p. 1927.

51

UN Security Council Official Records, second year, No. 77, 185th meeting, 15 August 1947, p. 2015.

52

Ibid.

53

UN Security Council Official Records, second year, No. 82, 192nd and 193rd meetings, 22 August 1947, p. 2175.

54

Ibid.

55

Ibid.

56

UN Security Council Official Records, second year, No. 77, supra note 51, pp. 2019–2020.

57

Hans Kelsen, supra note 24, pp. 442, 443.

58

Ibid., p. 443.

59

Cf. Erin Pobjie, ‘covid-19 and the Scope of the UN Security Council’s Mandate to Address Non-Traditional Threats to International Peace and Security’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 81 (2021), 117–146 (passim), in particular pp. 120–135 and further references; Nigel White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1997), pp. 37–38, 63, cf. also infra note 98.

60

Cf. supra note 46.

61

Cf. supra note 33.

62

Cf. supra note 34.

63

Cf. supra note 46. Tom Sparks and Mark Somos, ‘Grotian Moments: An Introduction’, Grotiana, 42 (2021), 179–191, at p. 184, as well as B.S. Chimni (supra note 17, p. 269) draw attention to the role played by UN General Assembly resolution 1514 (xv) Declaration on the granting of independence to colonial territories and peoples, in the crystallisation of the right to self-determination as a rule of customary international law. Concerning another early UN General Assembly resolution, resolution 95 (i) Affirmation of the Principles of International Law recognised by the Charter of the Nürnberg Tribunal, Scharf 2021 (supra note 1, pp. 200–02) comments that it had all the attributes of a resolution entitled to great weight as a declaration of customary international law. On UN General Assembly resolutions potentially signalling new customary international law of the sea, see Snjólaug Árnadóttir, ‘The Impact of Sea Level Rise on Maritime Limits: A Grotian Moment in the Law of the Sea? Grotiana 42 (2021), 277–303, at pp. 299–300).

64

Cf. supra note 56.

65

UN Security Council Official Records, second year, No. 67, supra note 27, p. 1623; a little beside the point in the context of this contribution, Australia also found that ‘the hostilities proceeding are not merely police action but are in fact warfare; that is, in international law, armed conflict between two States’ (ibid.).

66

Cf. supra note 24.

67

UN Security Council Official Records, second year, No. 67, supra note 27, p. 1623.

68

Ibid., pp. 1622–1623.

69

Cf. supra note 56.

70

Cf. supra note 41.

71

See generally David McKeever, ‘Revisiting Security Council action on terrorism: New threats; (a lot of) new law; same old problems?’, Leiden Journal of International Law 34 (2021), 1–30, and further references.

72

On the Grotian – although not using that term – qualities of resolution 1373 (2001), see Kim Lane Scheppele and Arianna Vedaschi, ‘Conclusion: The Afterlife of 9/11’, in 9/11 and the Rise of Global Anti- Terrorism Law: How the UN Security Council Rules the World, ed. by Arianna Vedaschi and Kim Lane Scheppele, (Cambridge: Cambridge University Press, 2021), 242–251 (passim).

73

Resolution 1373 (2001) operative paragraph (op. para.) 1 (b).

74

Resolution 1373 (2001) op. para. 2 (e).

75

Ibid., op. paras. 1 (c) and (d).

76

Ibid., op. para. 2 (a).

77

2178 United Nations Treaty Series (unts) 197.

79

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 558, para. 60; the passage quoted from resolution 1373 (2001) is op. para. 2 (a).

80

Resolution 1540 (2004); Resolution 1373 (2001).

81

Resolution 1540 (2004), ibid, op. para. 4.

82

Ibid., op. para. 2.

83

Ibid., op. para. 3; op. para. 3 items (a) – (d).

84

David McKeever, supra note 71, p. 29; see also generally, Andrea de Guttry, ‘The Role Played by the UN in Countering the Phenomenon of Foreign Terrorist Fighters’, in Foreign Fighters under International Law and Beyond, ed. by Andrea de Guttry, Francesca Capone, Christophe Paulussen (The Hague: T.M.C. Asser Press, 2016), pp. 259–282. The fact that the actual phenomenon which the unsc is striving to curb – terrorism – is inadequately defined in international and domestic law is pointed out by Martin Scheinin, ‘A Proposal for a Kantian Definition of Terrorism: Leading the World Requires a Cosmopolitan Ethos’, in 9/11 and the Rise of Global Anti- Terrorism Law: How the UN Security Council Rules the World, supra note 72, 15–33; see also Kim Lane Scheppele and Arianna Vedaschi, ‘Conclusion: The Afterlife of 9/11’, in 9/11 and the Rise of Global Anti-Terrorism Law: How the UN Security Council Rules the World, supra note 72, p. 245.

85

Cf. McKeever, supra note 71, passim. De Guttry comments that in contrast to resolution 1373 (2001) ‘unsc 2178 (2014) … in not relying on any previous norm (customary or treaty-based), has entirely innovated the realm of international obligations incumbent on UN member States’ (supra note 84, p. 273).

86

An in-depth analysis of unsc resolution 2178 (2014) and of the fluid concept of ‘foreign terrorist fighter’ in particular is provided by Kim Lane Scheppele, ‘Common Template, Diverse Agendas: The Futility (and Danger) of Legislating for the World’, in 9/11 and the Rise of Global Anti- Terrorism Law: How the UN Security Council Rules the World, supra note 72, 56–79.

87

The use of terminology by the Security Council is not consistent, however, and has varied over the years.

88

Resolution 2178 (2014) op. paras. 6 (a) – (c).

89

Cf. McKeever, supra note 71, pp. 25–26; see also Andrea Bianchi, ‘Assessing the effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’, European Journal of International Law 17 (2006), 881–919.

90

Cf. McKeever, supra note 71, p. 25.

91

Ibid.

92

Ibid.

93

Ibid., p. 26 and further references.

94

Cf. supra note 80.

95

Op. para. 26.

96

Cf. McKeever, supra note 71, p. 4.

97

Ibid.

98

Ibid., and further references.

99

Ibid., and further references.

100

See McKeever, supra note 71, pp. 4–5 and further references; pp. 22–24.

101

See McKeever, ibid., p. 5 and further references.

102

McKeever, ibid., p. 5, quoting Luis Miguel Hinojosa Martinez, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political, and Practical Limits’, International and Comparative Law Quarterly 57 (2008), 333–359, at pp. 339–340, and further references; McKeever, supra note 71, p. 26; see also McKeever, supra note 71, pp. 8–22. On the subject of law-making by resolutions 2170 (2014) and 2178 (2014), de Guttry comments a little more carefully that ‘the unsc has once again pushed the boundaries of its powers as traditionally envisaged by the UN Charter’ (de Guttry, supra note 84, p. 278).

103

McKeever, supra note 71, p. 29.

104

Cf. McKeever, ibid., pp. 27–29.

105

Cf. McKeever, ibid., p. 3.

106

Ibid., p. 29.

107

McKeever, ibid., p 29.

108

Resolution 82 (1950); Resolution 83 (1950).

109

Resolution 82 (1950) op. part i.

110

Resolution 83 (1950) preamble.

111

Resolution 82 (1950) pre. para. 1; cf. also UN General Assembly resolution 293 (iv) of 21 October 1949, pre. para. 5, and resolution 195 (iii) of 12 December 1948.

112

Resolution 82 (1950) pre. para. 4.

113

Ibid., op. part i.

114

Ibid.

115

Resolution 83 (1950) sole op. para.

116

The fact that the unsc uses the term armed attack to denote the action of North Korea could lead thoughts to the right to self-defence and to the discussion of the right to self-defence against non-state actors and the effect of unsc resolutions on the development of customary international law in this respect. Without pursuing the issue further here, it can be noted that according to Michael Scharf (2021), the unsc in a considerably later resolution (2249 (2015)) confirmed the right to use force in self-defence against non-state actors and thereby played an important role in crystallising the new rule of customary international law regarding use of force in self-defence against non-state actors.

117

There might in fact be support for this seemingly Grotian sweeping mode of action of the unsc in Article 2(6) of the UN Charter laying down that: ‘[t]he Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’. The fact that already the text of the UN Charter itself allows the Organization to extend its competence to cover third parties might make the Grotian nature of the practice of the unsc in this respect appear relatively less important and the creation of the UN and its Charter relatively more important from a Grotian perspective. Still, the UN Charter only talks about states. As we have seen, the circle of addressees soon widened beyond the (non-member) state limit. In addressing non-state entities, the role of the unsc and its practice again becomes relatively more important in relation to the original UN Charter and leaves a clearer Grotian imprint on the development of the law of the UN Charter than in the case of the unsc’s handling of non-Member States.

118

Op. para. 2.

119

Resolution 146 (1960), op. para. 5.

120

Resolution 143 (1960), op. para. 2; see also resolution 145 (1960) op. para. 3; Resolution 146 (1960) op. paras. 3 and 4; and resolution 169 (1981) op. paras. 4 and 5.

121

Resolution 161 (1961) and resolution 169 (1961).

122

Part A, op. para. 3, referring back to op. para. 2.

123

Part B, op. para. 3.

124

Resolution 169 (1961), op. para. 6.

125

Cf. Michael P. Scharf, Milena Sterio, and Paul R. Williams, supra note 11, p. 2.

126

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16.

127

On resolution 1373 (2001), see also above section 3 on law-making; on the listing see further Gavin Sullivan, The Law of the List: UN Counterterrorism Sanctions and the Politics of Global Security Law (Cambridge: Cambridge University Press, 2020).

128

The so called Focal Point for De-listing was established pursuant to resolution 1730 (2006) and its working was further developed by resolutions 2253 (2015) and 2255 (2015); the sanctions committee is today sometimes labelled the 1267/1989/2253 Committee; on the clash between UN Security Council law and European Union (EU) law in the area of sanctions against individuals suspected of terrorism, and the subsequent refusal of the EU Court of Justice to apply the sanctions flowing from resolution 1267, see among others Kadi on Trial: A Multifaceted Analysis of the Kadi Trial, ed. by Matej Avbelj, Filippo Fontanelli and Guiseppe Martinico (Abingdon, Oxon: Routledge, 2014); see also Research Handbook on UN Sanctions and International Law, ed. by Larissa van den Herik (Cheltenham: Edward Elgar Publishing, 2017).

129

Resolution 1904 (2009); the Ombudsperson’s current mandate is contained in resolution 2368 (2017); Office of the Ombudsperson to the isil (Da’esh) and Al-Qaida Sanctions Committee, <https://www.un.org/securitycouncil/ombudsperson.

130

On resolution 2178 (2014), see also above section 3 on law-making.

131

Op. para. 1.

132

Dire Tladi, supra note 23, p. 353.

133

Ibid.

134

Michael Scharf 2021, supra note 1, pp. 197, 204–205; Michael Scharf, Milena Sterio and Paul R. Williams, supra note 11, pp. 21–22, 28; Michael Scharf 2010, supra note 6, pp. 439–440 (passim).

135

B.S. Chimni, supra note 17, pp. 252, 275.

136

Omri Sender and Sir Michael Wood, supra note 23, p. 251; cf. also, a bit more surprisingly, Michael Scharf 2010, supra note 6, p. 452.

137

Ibid., p. 237; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 130, para. 142.

138

Omri Sender and Sir Michael Wood, supra note 23, p. 238.

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