Legislation and Adjudication in The Un Security Council

LEGISLATION AND ADJUDICATION IN THE UN SECURITY
COUNCIL: BRINGING DOWN THE DELIBERATIVE DEFICIT
By Ian Johnstone*
Critiques of decision making in international organizations are often framed in terms of the
democratic deficit. Leveled against the United Nations Security Council,1 the charge has
become more pointed in light of recent quasi-legislative and quasi-judicial acts—most notably
the adoption of Resolutions 1373 and 1540 on the financing of terrorism and the spread of
weapons of mass destruction, respectively, and the Resolution 1267 sanctions regime, which
targets individuals suspected of involvement in terrorism.2 With the first two resolutions, the
Security Council imposed general obligations on all states for an indefinite period; with the
third, it set up a sanctions committee that has courtlike powers to identify and freeze the assets
of individuals, groups, and corporations. Despite broad sympathy among the UN membership
for collective counterterrorist action in the aftermath of the attacks of September 11, 2001, a
degree of skepticism accompanied these initiatives from the start and grew with the diplomatic
debacle surrounding the war in Iraq. Some critics asked whether an “imperial” Security Coun-
cil had become an instrument for the imposition of “hegemonic international law.”3 The
Council has moved to address these concerns, but they remain serious enough that the regimes
established under Resolutions 1267, 1373, and 1540 are at risk of collapsing.
The central argument of this article is that steps can and should be taken to bring down the
“deliberative deficit” in the Security Council. More politically achievable than expansion of the
membership or changes in voting rules, improving the quality of deliberations would enhance
the legitimacy and, therefore, effectiveness of Council decision making. The argument applies
in particular to the quasi-legislative and quasi-judicial decisions of the Council, together with
other decisions whose implementation requires broad cooperation (such as the imposition of
comprehensive sanctions). It is less applicable to the traditional crisis management role of the
* Associate Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University. I am grate-
ful for comments on early drafts of the article at The United Nations Security Council: The Politics of International
Authority, workshop at Northwestern University (2005); Counter-terrorism: Democracy’s Challenges, conference
at the Institut Universitaire de Hautes Etudes Internationales, Geneva, Switzerland (2006); and the faculty research
seminar of the Fletcher School of Law and Diplomacy, Tufts University (2007). I would also like to thank Ian Hurd,
Michael Griesdorf, and Cora True-Frost for comments on a complete draft, and Ulrik Ahnfeldt-Mollerup for com-
ments on parts of it.
1
The critique was a staple of debates over Security Council reform leading to the 2005 World Summit. Draft
resolutions, proposals, and official statements are compiled at ⬍http://www.reformtheun.org⬎.
2
SC Res. 1373 (Sept. 28, 2001); SC Res. 1540 (Apr. 28, 2004); SC Res. 1267 (Oct. 15, 1999).
3
Detlev F. Vagts, Hegemonic International Law, 95 AJIL 843 (2001). In developing this concept of hegemonic
law, Vagts draws on WILLIAM E. SCHEUERMAN, CARL SCHMITT: THE END OF LAW (1999); HEINRICH TRIE-
PEL, HEGEMONIE, EIN BUCH VON FÜHRENDEN STAATEN (1938); and WILHELM GREWE, THE EPOCHS OF
INTERNATIONAL LAW (Michael Byers trans. & rev., 2000). See also José E. Alvarez, Hegemonic International Law
Revisited, 97 AJIL 873 (2003).
275
276 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 102:275
Security Council, where the need “to ensure prompt and effective action”4 militates against
extensive deliberation. Yet deliberative principles can usefully inform any discussion of Secu-
rity Council reform, bearing in mind that application of the principles will vary with the type
of action contemplated.
In developing this thesis, I draw on the theory of deliberative democracy to make the case
that public-policy decision making succeeds best when voting and bargaining are accompanied
by reasoned argumentation. While deliberations in the UN Security Council are highly polit-
icized, they are also surprisingly structured—infused by certain expectations and understand-
ings about what counts as a good argument. Legal discourse looms large in that setting; indeed,
the distinction between legal argumentation and democratic deliberation— between the sup-
posedly “principled decision making of courts” and “the prudential lawmaking of legisla-
tures”—is one of degree rather than kind.5 The deliberative deficit I describe is largely proce-
dural, as are the proposed reforms. I do not mean to suggest that procedural legitimacy bears
more on the effectiveness of the Council than substantive issues and disagreements: clearly, the
lack of a consensus definition of terrorism has hindered implementation of the 1267, 1373, and
1540 regimes. My claim is that reasoned deliberation can improve the prospect for substantive
agreement and, when that is not possible, makes it easier to live with disagreement. By legit-
imating decisions in the eyes of those affected, progress in an issue area is possible even in the
face of substantive differences. The Security Council will never be a paragon of democratic
legitimacy, but an analysis of its counterterrorism regimes demonstrates that the minimal con-
ditions for meaningful deliberation already exist. This article takes the democratic deficit cri-
tique seriously, but shifts attention from membership and voting to deliberative features that
exist in nascent form and could be built on without radically transforming the body or ren-
dering it hopelessly inefficient.6
In the next section, I introduce a concept of deliberative legitimacy that fuses democratic
deliberation and legal argumentation. I then turn in part II to an assessment of the negotiation
and implementation of Resolutions 1373 and 1540 from that perspective, followed by a similar
analysis of the Resolution 1267 sanctions regime in part III. The fourth section reviews various
broad objections to the Council’s acting as legislature and court, and offers a partial response
by highlighting features of the Council suggesting that reasoned deliberation is possible even
in that setting. The article concludes with a set of reforms presented under three headings:
inclusive consultations, public justification, and independent review. By bringing down the
deliberative deficit, these reforms would serve both democratic and legal values, as the Council
undertakes innovative efforts to address terrorism and other nontraditional threats to inter-
national peace and security.
4
UN CHARTER Art. 24.
5
AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 45– 46, 358 (1996).
6
This essay builds on work I have done on the notion of justificatory discourse within and constrained by inter-
pretive communities, most fully developed in Ian Johnstone, Security Council Deliberations: The Power of the Better
Argument, 14 EUR. J. INT’L L. 437 (2003). That essay was mainly about how the law is interpreted and compliance
induced through legal discourse in and around the Security Council; this essay focuses on how the Security Council
makes and implements law through a deliberative process that includes, but is not restricted to, legal discourse. Both
are about the power of reasoned argumentation, but the democratic deliberation I describe here is almost by def-
inition more inclusive and free-wheeling than the relatively technocratic exercise described in the earlier article. For
more on this point, see text at notes 35–36 infra.
2008] LEGISLATION AND ADJUDICATION IN THE SECURITY COUNCIL 277
I. LEGITIMATION THROUGH DELIBERATION

The notion that public policy ought to be backed by good arguments is deeply rooted in
democratic societies. Most governmental institutions work on the premise that decisions ought
to be taken for valid reasons and not simply through voting and bargaining. That assumption
does not prevail in international organizations like the UN Security Council, which was not
set up as a democratic institution. Yet as its decisions intrude more deeply into the daily lives
of individuals around the world, questions about its legitimacy necessarily arise. And if those
decisions require broad international cooperation to be effective, then perceptions of legiti-
macy matter. The Council may be able to enforce its will against one state, but it cannot coerce
all states into complying with its edicts.
The connection between legitimacy and effectiveness is not new to the study of international
organizations.7 Thomas Franck, for example, presents a subjective concept of legitimacy that
turns on the perceptions, beliefs, and expectations of those to whom the rules are addressed.
Rules that are perceived as both procedurally and substantively just exert a compliance pull on
states, even in the absence of enforcement.8 This concept has been echoed by international rela-
tions theorists, who claim that legitimate governance is rooted in a collective belief that those
who govern have the right to do so: actors follow rules not only because they fear sanctions or
calculate that compliance is in their interest, but because they sense that the rules and insti-
tutions from which they emanate are legitimate.9 These collective beliefs are not purely coin-
cidental. They do not arise simply because a group of individuals happen to share them but,
rather, through interaction in a contested, political process. Moreover, rulers constantly work
to legitimate their power through this process.10 At the international level, legitimation is an
7
Leading works in the international legal field include JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS
AS LAW-MAKERS (2005); ALLEN E. BUCHANAN, JUSTICE, LEGITIMACY AND SELF-DETERMINATION: MORAL
FOUNDATIONS FOR INTERNATIONAL LAW (2003); THOMAS M. FRANCK, THE POWER OF LEGITIMACY
AMONG NATIONS (1990); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS
(1995) [hereinafter FRANCK, FAIRNESS]; Daniel Bodansky, The Legitimacy of International Governance: A Coming
Challenge for International Environmental Law, 93 AJIL 596 (1999). Leading works in the international relations
field include IAN CLARK, LEGITIMACY IN INTERNATIONAL SOCIETY (2005); INIS CLAUDE JR., SWORDS INTO
PLOWSHARES: THE PROBLEMS AND PROGRESS OF INTERNATIONAL ORGANIZATION (4th ed. 1984); IAN
HURD, AFTER ANARCHY: LEGITIMACY AND POWER AT THE UNITED NATIONS (2007); THE LEGITIMACY OF
INTERNATIONAL ORGANIZATIONS ( Jean-Marc Coicaud & Veijo Heiskanen eds., 2001); Allen Buchanan &
Robert O. Keohane, The Legitimacy of Global Governance Institutions, 20 ETHICS & INT’L AFF. 405 (2006). But
see Alexander Thompson, Coercion Through IOs: The Security Council and the Logic of Information Transmission, 60
INT’L ORG. 1 (2006).
8
FRANCK, FAIRNESS, supra note 7, at 7; see also FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS 136
(Oona A. Hathaway & Harold Hongju Koh eds., 2005).
9
HURD, supra note 7, at 30 – 40; see also Ian Hurd, Legitimacy, in ENCYCLOPEDIA PRINCETONIENSIS: THE
PRINCETON ENCYCLOPEDIA OF SELF-DETERMINATION (2006); Jean-Marc Coicaud, International Democratic
Culture and Legitimacy, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS, supra note 7, at 259. This
concept of legitimacy corresponds to H.L.A. Hart’s theory of law and the legal process theory of Harold Koh, which
builds on Hart. H. L. A. HART, CONCEPT OF LAW (2d ed. 1994); Harold Hongju Koh, Bringing International
Law Back Home, 35 HOUS. L. REV. 623 (1998); Harold Hongju Koh, Why Do Nations Obey International Law?
106 YALE L.J. 2599 (1997) [hereinafter Koh, Why Do Nations Obey?]. To say that an institution is legitimate implies
that it deserves support even if it does not always advance the interests of everyone subject to its rule. The reason
to comply is independent of the content of the rules themselves—that is, it is independent of whether the particular
rule is judged to be a good or useful one. Buchanan & Keohane, supra note 7, at 409 –11.
10
Hurd, Legitimacy, supra note 9, at 1.
attempt to reconcile tensions between competing norms.11 The process is dynamic, aimed at
achieving a working consensus on how to accommodate the competing values at a particular
historical moment.12 And it is deliberative in the sense that rules and institutions are legiti-
mated discursively, through reasoned exchange.
Deliberative Democracy
The theory of deliberative democracy holds that voting alone cannot legitimate collective
decisions, that the decisions must be justified in terms that those who are subject to them can
accept, at least in principle.13 To most theorists, the notion that international institutions can
be “democratized” by giving more governments— or the people they represent—a vote is
problematic; but at least some see the possibility of democratic deliberation within and around
these institutions.14 Thus, more meaningful deliberation can partially address the democratic
deficit in international organizations, without resort to an unrealistic (and theoretically unsus-
tainable) vision of global democracy.
The practical point is that public policy succeeds best when voting and bargaining are
accompanied by reasoned argumentation.15 Deliberation entails appeals to “impartial values”
that reach beyond narrow self-interest.16 Disagreements are settled through the exchange of
reasons that are shared or can be shared by all who are bound by the decisions taken. Reciprocity
regulates the kinds of reasons officials and citizens use to justify their claims to one another:
“you make your claims on terms that I can accept in principle. . . . I make my claims on terms
that you can accept in principle.”17 Deliberation does not always lead to consensus; votes are
11
CLARK, supra note 7, at 4.
12
Id. at 29 –30.
13
Seyla Benhabib, Toward a Deliberative Model of Democratic Legitimacy, in DEMOCRACY AND DIFFERENCE:
TESTING THE BOUNDARIES OF THE POLITICAL 67 (Seyla Benhabib ed., 1996); Joshua Cohen, Deliberation and
Democratic Legitimacy, in DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND POLITICS 67 ( James Bohman
& William Rehg eds., 1997) [hereinafter DELIBERATIVE DEMOCRACY: ESSAYS]. See generally FRANK CUNNING-
HAM, THEORIES OF DEMOCRACY: A CRITICAL INTRODUCTION (2002).
14
If democracy means “[t]he will of the people shall be the basis of the authority of government,” as embodied
in Article 21 of the Universal Declaration of Human Rights, then one state, one vote would not make an institution
more democratic. Robert Dahl makes this and other points in expressing skepticism about the possibility of democ-
ratizing international organizations in Can International Organizations Be Democratic? A Skeptic’s View, in DEMOC-
RACY’S EDGES 19 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999). Among those who see the possibility of
deliberative democracy at the transnational level are JOHN S. DRYZEK, DELIBERATIVE DEMOCRACY AND
BEYOND: LIBERALS, CRITICS, CONTESTATIONS 115 (2000); James Bohman, International Regimes and Demo-
cratic Governance: Political Equality and Influence in Global Institutions, 75 INT’L AFF. 499 (1999); and Harald Mül-
ler, Arguing, Bargaining and All That: Communicative Action, Rationalist Theory and the Logic of Appropriateness in
International Relations, 10 EUR. J. INT’L REL. 395 (2004).
15
As Jon Elster claims, quoting Jürgen Habermas, “presuppositions of rational discourse” steer (or ought to steer)
the course of public debates in a democratic society. Jon Elster, Introduction to DELIBERATIVE DEMOCRACY 1, 12
( Jon Elster ed., 1998); JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DIS-
COURSE THEORY OF LAW AND DEMOCRACY 540 (William Rehg trans., 1996).
16
Elster, supra note 15, at 12; see also Jon Elster, The Market and the Forum: Three Varieties of Political Theory,
in DELIBERATIVE DEMOCRACY: ESSAYS, supra note 13, at 12. Gutmann and Thompson use the term “reciprocal
reasons” to make a similar point. AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY?
98 –102 (2004). For a discussion of the role of different kinds of arguments in world politics, see NETA C. CRAW-
FORD, ARGUMENT AND CHANGE IN WORLD POLITICS: ETHICS, DECOLONIZATION, AND HUMANITARIAN
INTERVENTION (2002).
17
GUTMANN & THOMPSON, supra note 5, at 55; see also Amy Gutmann, Deliberative Democracy and Majority
Rule: Reply to Waldron, in DELIBERATIVE DEMOCRACY AND HUMAN RIGHTS 227, 234 (Harold Hongju Koh &
Ronald C. Slye eds., 1999).
often traded in a bargaining process. But the bargains struck and the outcome of votes are (and
should be) shaped by engagement in public debate, argument, and reason giving. At a minimum,
this process reduces the range of disagreement, and—as important—makes it easer to live with
disagreement.18 Those on the losing side are more likely to accept a decision if they think it was
taken for reasons they see as valid, as opposed to arbitrary or entirely beside the point.
Deliberative democracy has roots in Jürgen Habermas’s theory of communicative action, which
stresses an inclusive and pluralistic conception of “public reason.”19 Habermas imagines an “ideal
speech situation,” within which discourse is unaffected by relationships of power, coercion, or any
other factors extraneous to “the force of the better argument.”20 Deliberation is not a communi-
cative free-for-all, in which any argument is as good as any other; the felt need to offer reasons others
can accept in principle sets the parameters of discourse. This “ideal” is not meant to describe an exist-
ing state of affairs but, rather, is a construct against which actual deliberations and the insti-
tutions where they occur can be measured. Indeed, for deliberation to shape behavior, it need
not even be sincere.21 The felt need to justify is enough, even if the justifications are strategic.
What counts as a “good argument” in any public-policymaking environment depends in
part on the class of people to whom reasons are owed. Amy Gutmann and Dennis Thompson
argue that in a democratic society this class includes citizens as well as noncitizens who are
affected by decisions national governments make.22 Deliberative democracy broadens the
scope of political accountability, so that public officials must consider “not only their electoral
constituents but also what may be called their moral constituents, all those individuals who are
bound by the decisions they make, whether de jure or de facto.”23 Others have done empirical
work to demonstrate that public officials do account for the interests of noncitizens, that mean-
ingful deliberation does occur beyond the level of the nation-state. They certainly see it in
Europe,24 and some see it at the global level.25 Following Habermas, they speak of multiple
“public spheres” operating at the international, national, and subnational levels where
opinions are developed and exchanged on matters of common concern.26 Public reasoning and
18
GUTMANN & THOMPSON, supra note 16, at 20, 23–26.
19
Benhabib, supra note 13, at 73–75; James Bohman, Citizenship and Norms of Publicity: Wide Public Reason in
Cosmopolitan Societies, 27 POL. THEORY 180 (1999); Iris Marion Young, Difference as a Resource for Democratic
Communication, in DELIBERATIVE DEMOCRACY: ESSAYS, supra note 13, at 383; Joshua Cohen, Tanner Lectures
(2007) (unpublished manuscript, on file with author). Habermas’s conception of public reason is to be contrasted
with the more narrow conception of John Rawls. Stephen Macedo, Introduction to DELIBERATIVE POLITICS:
ESSAYS ON DEMOCRACY AND DISAGREEMENT 3, 4 (Stephen Macedo ed., 1999).
20
JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION (Thomas McCarthy trans., 1985).
21
Johnstone, supra note 6, at 453–55.
22
GUTMANN & THOMPSON, supra note 5, at 8, and ch. 4 generally.
23
Dennis F. Thompson, Democratic Theory and Global Society, 7 J. POL. PHIL. 111, 120 (1999); see also GUT-
MANN & THOMPSON, supra note 16, at 29 –39.
24
See JAMES BOHMAN, DEMOCRACY ACROSS BORDERS: FROM DÊMOS TO DÊMOI 135–70 (2007);
DEMOCRACY IN THE EUROPEAN UNION: INTEGRATION THROUGH DELIBERATION? (Erik Oddvar Eriksen &
John Erik Fossum eds., 2000); J. H. H. WEILER, THE CONSTITUTION OF EUROPE: “DO THE NEW CLOTHES
HAVE AN EMPEROR?” AND OTHER ESSAYS ON EUROPEAN INTEGRATION (1999); Jürgen Habermas, Why
Europe Needs a Constitution, 11 NEW LEFT REV. 8 (2001); Michael Zürn, Democratic Governance Beyond the
Nation-State: The EU and Other International Institutions, 6 EUR. J. INT’L REL. (2000).
25
DRYZEK, supra note 14, at 115–39; Bohman, supra note 14; Lars G. Lose, Communicative Action and the World
of Diplomacy, in CONSTRUCTING INTERNATIONAL RELATIONS: THE NEXT GENERATION 179 (Karin M.
Fierke & Knud Erik Jørgensen eds., 2001).
26
Philip Schlesinger & Deirdre Kevin, Can the European Union Become a Sphere of Publics? in DEMOCRACY IN
THE EUROPEAN UNION, supra note 24, at 206, 211. On the global public sphere theory generally, see Jennifer
justification takes place in the institutions of government and intergovernmental bodies, as

well as in political parties, nongovernmental organizations (NGOs), social movements, and
other elements of civil society, whose activities are not confined by national borders.27 Tying
this analysis to international organizations, Allen Buchanan and Robert Keohane argue that
legitimacy requires “principled, informed, collective deliberation” within an institution and
with knowledgeable external actors who have a stake in what the institution does.28 The Secu-
rity Council seems an unlikely venue for this kind of principled contestation, but as I argue in
part IV, features of the Council and its decision-making processes suggest the possibility of
moderately inclusive collective deliberation there as well.
Democratic Deliberation and Legal Argumentation

One of the central insights of deliberative democracy—the notion that decisions ought to
be backed by reasoning and argumentation—lies at the core of a good deal of contemporary
international legal philosophy. Some see a direct cause-and-effect relationship between legal
discourse and state behavior;29 others doubt that action is ever influenced, let alone compelled,
by the power of argument.30 In the first view, law serves a communicative function and the
purpose of legal discourse is to manage the tensions inherent in international society. In the
latter view, the discourse masks hidden ideologies and is an obfuscating attempt to reconcile
the irreconcilable. Either way, what these accounts have in common is the disciplining force
of legal argumentation. Legal deliberations are bounded: certain types of argument and styles
of reasoning are acceptable and accepted; others are not.31 Any language, including the
language of the law, can plausibly be stretched only so far.32 As Habermas claims, a discourse
Mitzen, Reading Habermas in Anarchy: Multilateral Diplomacy and Global Public Spheres, 99 AM. POL. SCI. REV.
401 (2005); Dana R. Villa, Postmodernism and the Public Sphere, 86 AM. POL. SCI. REV. 712 (1992).
27
Benhabib, supra note 13, at 74; see also DRYZEK, supra note 14, at 131; Bohman, supra note 14, at 500, 506;
James Bohman, The Globalization of the Public Sphere: Cosmopolitanism, Publicity and Cultural Pluralism, 75 MOD-
ERN SCHOOLMAN 101 (1998).
28
Buchanan & Keohane, supra note 7, at 434. They call these outsiders “external epistemic actors,” and the pro-
cess by which the insiders and outsiders deliberate the “transnational civil society channel of accountability.” Id. at
432 (emphasis omitted).
29
FRANCK, FAIRNESS, supra note 7, at 7; OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRAC-
TICE (1991). The Chayeses’ managerial model also sees international law as operating largely through a process of
“mostly verbal interchange among interested parties.” ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE
NEW SOVEREIGNTY 118 (1995); see also Jutta Brunnée & Stephen J. Toope, International Law and Constructivism:
Elements of an Interactional Theory of International Law, 39 COLUM. J. TRANSNAT’L L. 19, 51 (2000).
30
Critical theorists fall into the latter camp. MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA 40 – 41,
449 –50 (1989); David Kennedy, Theses About International Law Discourse, 23 GER. Y.B. INT’L L. 353, 355 (1986);
David Kennedy, Tom Franck and the Manhattan School, 35 N.Y.U. J. INT’L L. & POL. 397 (2003) [hereinafter
Kennedy, Tom Franck]; Phillip R. Trimble, International Law, World Order, and Critical Legal Studies, 42 STAN.
L. REV. 811, 838 (1990).
31
Friedrich Kratochwil, How Do Norms Matter? in THE ROLE OF LAW IN INTERNATIONAL POLITICS 35, 52
(Michael Byers ed., 2000). On the disciplining force of legal argumentation generally, see FRIEDRICH KRATOCH-
WIL, RULES, NORMS AND DECISIONS: ON THE CONDITIONS OF PRACTICAL AND LEGAL REASONING IN
INTERNATIONAL RELATIONS AND DOMESTIC AFFAIRS (1991). See also KOSKENNIEMI, supra note 30, at 48;
SCHACHTER, supra note 29, at 46; Kennedy, Tom Franck, supra note 30, at 431.
32
1 QUENTIN SKINNER, VISIONS OF POLITICS: REGARDING METHOD 156 (2002). For an instructive appli-
cation of Skinner’s theory to debates about humanitarian intervention, see NICHOLAS J. WHEELER, SAVING
STRANGERS: HUMANITARIAN INTERVENTION IN INTERNATIONAL SOCIETY 7 (2002).
theory of law might not provide single right answers to legal questions, but the justification
process itself can legitimate decisions. Once a decision is taken,
one cannot exclude the possibility that new information and better reasons will be brought
forward. Under favorable conditions, we bring argumentation to a de facto conclusion
only when the reasons solidify against the horizon of unproblematic background assump-
tions into such a coherent whole that an uncoerced agreement on the acceptability of the
disputed validity claim emerges.33
Put simply, argumentation will not lead to objectively right answers or compel agreement, let
alone action, but it does tend to “solidify” agreement until new, better arguments and reasons
are introduced.
What counts as a “better argument” varies from setting to setting, depending on the nature
of the enterprise in which the argument is advanced. As I have claimed elsewhere, the arbiter
of legal arguments is an amorphous “interpretive community.”34 These are the officials,
experts, and other participants in a field of practice who— by arguing and reasoning with each
other—in effect pass judgment on what constitutes a good legal claim. The interpretive com-
munity can be technocratic and exclusive; indeed, its disciplining force depends to a certain
extent on expertise in the techniques and substance of legal argumentation. From the perspec-
tive of critical theory, this is precisely the problem: certain voices and perspectives never pen-
etrate the legal discourse. Even more profoundly, the form and substance of the discourse is so
determined by powerful voices—so hegemonic—that all who participate in it have “internal-
ized the hegemonic conception of what constitutes ‘the better argument’.”35 This critique
doubts that shared standards and understandings can emerge from diverse points of view
through argumentation. I argue that they can because the interpretive community is penetrable
by other perspectives.36 The community need not be viewed as a closed club, accessible only
to an elite group of specialists or legal technocrats. Networks of knowledgeable and engaged
citizens tend to coalesce around international organizations whose perceived expertise extends
more broadly than to international law alone (like those that deal with human rights). As such,
these organizations are at the core of permeable networks that serve as venues for nascent forms
of democratic deliberation.
In fact, Habermas’s ideal of legal argumentation is anything but insular: “legal discourse can-
not operate self-sufficiently inside a hermetically sealed universe of existing norms but must
rather remain open to . . . . the pragmatic, ethical, and moral reasons brought to bear in the
33
HABERMAS, supra note 15, at 226 –27. But cf. Villa, supra note 26, at 714 –17 (summarizing postmodern
objections to Habermas’s view that communicative action can legitimate decisions).
34
Johnstone, supra note 6. On the structured nature of legal discourse more generally, see Kenneth W. Abbott,
Robert O. Keohane, Andrew Moravscik, Anne-Marie Slaughter, & Duncan Snidal, The Concept of Legalization, in
LEGALIZATION AND WORLD POLITICS 17 ( Judith Goldstein et al. eds., 2001). See also Brunnée & Toope, supra
note 29, at 56.
35
Villa, supra note 26, at 715. This critique draws on Gramscian notions of hegemony, which is understood as
not about brute force but about a dominant group developing an ideology based on values and understandings that
come to be seen as legitimate by subordinate groups. ROBERT W. COX with TIMOTHY J. SINCLAIR, APPROACHES
TO WORLD ORDER 517–18 (1996).
36
For an interesting, albeit small (twenty-three respondents) survey of opinions on the diversity/commonality
of perspectives in the field of international law, see Michael Byers, Introduction to Voices from the Outside: Sovereign
Equality, International Law, and the Imbalance of Power, 99 ASIL PROC. 43 (2005). Among the noteworthy results:
78% thought that international law was influenced by disparities in power, but still reflected to some degree the
interests and concerns of the less powerful states. Id. at 43.
legislative process . . . . ”37 But if legal argumentation is thrown too wide open, its disciplining
force would lose its bite—any argument would be as good as any other. The challenge is to
strike a balance between the constraining force of discursive interaction on the basis of shared
disciplinary standards, and the need to open up that interaction to new perspectives from
beyond the conventions of argumentation that operate in the discipline. Put more concretely
in terms of the functioning of the UN Security Council, the challenge is to balance the need
for efficient decision making within a small group with the power to make decisions stick,
against the value of a more open, inclusive process that accounts for the interests of those most
affected.
Before turning to the quasi-legislative and quasi-judicial acts of the Security Council, a final
point concerning the relationship between democratic deliberation and legal argumentation
requires clarification. On their face, the two processes look different: deliberation is about the
making of law (and policy); legal argumentation is about its interpretation and implementa-
tion. While the latter is a more bounded form of discourse, the difference should not be over-
stated. Deliberative democrats question the distinction made between courts as forums for
principled deliberation and legislatures as brokers of interests.38 Deliberation in legislative bod-
ies is and should be constrained by the felt need to make principled, impartial, mutually accept-
able arguments. Conversely, legal interpretation— especially at the international level where
the lines between nonlaw, soft law, and hard law are blurry—is fundamentally a search for
intersubjective meaning rather than a quest for single right answers. Jutta Brunnée and Stephen
Toope’s “interactional theory” helps to illustrate the connection between the two modes of
argument. Their theory is rooted in Lon Fuller’s understanding that law depends for its effec-
tiveness— even its existence— on the interaction between those who make the rules and those
who are subject to them.39 As they note, “[One] way of imagining the rich role of rhetoric in
Fuller’s legal universe is as ‘an argumentative contribution to democratic deliberation.’ ‘Rhet-
oric’ captures Fuller’s commitment to self-rule through the interaction of government and
governed, and to the construction of law through everyday practice by all participants in the
system.”40
Finally, while states remain the principal actors in the international legal system— both as
rule makers and as subjects of the rules—increasingly one hears that the concerns of individ-
uals, communities, and corporations ought to be accounted for in making and implementing
the law because they are often directly affected. And as the value of democratic deliberation to
sound decision making gains traction internationally, the overlap with transnational legal pro-
cess—where individuals, NGOs, corporations, and levels of government other than the exec-
utive branch play a role— becomes more apparent.41
In the next part, I apply this fusion of democratic deliberation and legal argumentation to
an assessment of recent quasi-legislative and quasi-judicial acts by the Security Council. The
37
HABERMAS, supra note 15, at 230.
38
GUTMANN & THOMPSON, supra note 5, at 46.
39
Brunnée & Toope, supra note 29, at 43–51.
40
Id. at 62 (footnote omitted) (quoting Karol Sołtan, A Social Science That Does Not Exist, in REDISCOVERING
FULLER: ESSAYS ON IMPLICIT LAW AND INSTITUTIONAL DESIGN 387, 395, 401 (Willem J. Witteveen &
Wibren van der Burg eds., 1999)).
41
On transnational legal process, see Koh, Why Do Nations Obey? supra note 9; Mary Ellen O’Connell, New Inter-
national Legal Process, 93 AJIL 334 (1999). On “transgovernmental” interaction, see ANNE-MARIE SLAUGHTER,
A NEW WORLD ORDER (2004).
analysis does not prove, but is highly suggestive of, a causal relationship between the quality
of deliberations and effective implementation of Council resolutions.
II. THE SECURITY COUNCIL AS QUASI LEGISLATURE
When the end of the superpower rivalry freed the Security Council from the relative paralysis
of the Cold War, it began to assume new “interpretive,” “enforcement,” and “declarative”
functions that directly affected international law.42 In its interpretive mode, the Council incre-
mentally redefined what constitutes a threat to the peace within the meaning of Article 39 of
the UN Charter by authorizing intervention for humanitarian purposes in Somalia, Bosnia,
and elsewhere. As an enforcer, it imposed extensive obligations on Iraq in the aftermath of the
1991 Persian Gulf war and created criminal tribunals in the former Yugoslavia and Rwanda,
indirectly making new law. It also began issuing declarations on general themes, like the state-
ment at the conclusion of the Council summit meeting in January 1992 that “[t]he prolifer-
ation of all weapons of mass destruction constitutes a threat to international peace and secu-
rity.”43 Following a meeting on the impact of AIDS in the year 2000, the Council adopted a
resolution stressing “that the HIV/AIDS pandemic, if unchecked, may pose a risk to stability
and security.”44
Though innovative, these acts are not truly “legislative,” as they either respond to a particular
crisis or do not impose binding obligations. Resolutions 1373 and 1540 are different. Rather
than issuing commands to deal with a discrete conflict, they create obligations of a sort usually
found only in treaties.45 They create law for all states in a general issue area, without setting any
time limit or conditions for terminating the obligations.46 They were made possible by the
shock of 9/11, which engendered a widespread sense that traditional ways of making interna-
tional law were not up to the challenge of countering terrorism. A review of the negotiation and
implementation of Resolutions 1373 and 1540 suggests that deliberative principles have been
at play, both in how the Security Council has been operating and in the criticisms of its manner
of operating.
42
Steven R. Ratner, The Security Council and International Law, in THE UN SECURITY COUNCIL: FROM THE
COLD WAR TO THE 21ST CENTURY 591, 591– 606 (David M. Malone ed., 2004).
43
Note by the President of the Security Council, UN Doc. S/23500, at 4 ( Jan. 31, 1992).
44
SC Res. 1308, pmbl. ( July 17, 2000) . A similar effort to stretch the limits of the Council’s competence was
attempted in early 2007, when the United Kingdom sponsored a Council meeting on the impact of climate change
on peace and security, but no statement was agreed upon at that meeting. See UN Press Release SC/900 (Apr. 17,
2007).
45
Many commentators have pointed to the unprecedented nature of the resolutions, some, though not all,
describing them as legislation. See Alvarez, supra note 3; Matthew Happold, Security Council Resolution 1373 and
the Constitution of the United Nations, 16 LEIDEN J. INT’L L. 593 (2003); Eric Rosand, Security Council Resolution
1373, the Counter-Terrorism Committee, and the Fight Against Terrorism, 97 AJIL 333, 333 (2003); Nicholas Ros-
tow, Before and After: The Changed UN Response to Terrorism since September 11th, 35 CORNELL INT’L L.J. 475,
482 (2002); Jane E. Stromseth, The Security Council’s Counter-Terrorism Role: Continuity and Innovation, 97 ASIL
PROC. 41, 41 (2003); Paul C. Szasz, The Security Council Starts Legislating, 96 AJIL 901, 902 (2002); Curtis A.
Ward, Building Capacity to Combat International Terrorism: The Role of the United Nations Security Council, 8 J.
CONFLICT & SECURITY L. 289, 298 (2003); DAVID CORTRIGHT, GEORGE A. LOPEZ, ALISTAIR MILLAR, &
LINDA GERBER, AN ACTION AGENDA FOR ENHANCING THE UNITED NATIONS PROGRAM ON COUNTER-
TERRORISM 3 (2004), at ⬍http://kroc.nd.edu/polbriefs/Action_Agenda.pdf⬎. For a comprehensive treatment of
the lawmaking powers of the Security Council, see ALVAREZ, supra note 7, at 189 –217.
46
As José Alvarez states: “the generalizable legal effects of the Council’s work are not incidental to its efforts to
enforce . . . . These are express attempts to make global law.” ALVAREZ, supra note 7, at 198.
Financing and Other Forms of Support for Terrorism

Negotiation and implementation of Resolution 1373. Resolution 1373 was adopted seventeen
days after 9/11 and close on the heels of Resolution 1368, which set the stage for self-defensive
military action against Al Qaeda and the Taliban in early October 2001. Acting under Chapter
VII of the UN Charter, the Security Council, in Resolution 1373, obliged all states to prevent
and suppress terrorist financing and to refrain from providing any other form of support to
terrorist groups, including safe havens. The resolution does not define terrorism, because its
sponsors did not want to get bogged down in the debate that was blocking negotiations on a
comprehensive convention on terrorism.47 Rather, they attempted to move ahead on a prag-
matic basis, hoping to advance counterterrorism goals despite the lack of consensus on a def-
inition. The most important operative paragraphs echo the International Convention for the
Suppression of the Financing of Terrorism, which had been adopted at the time but had not
yet entered into force.48 The Security Council created the Counter-Terrorism Committee
(CTC) as a subsidiary organ, composed of all its members, to oversee implementation of the
resolution. The CTC reviews reports submitted by states on steps taken to fulfill their obli-
gations and arranges for technical assistance to upgrade the legislative and executive machinery
of states that need it.49
A U.S. initiative, the unanimous passage of Resolution 1373 was remarkably smooth. All
ambassadors on the Council, including representatives of the five permanent members (P–5),
had received instructions from their capitals to cooperate with the United States in the post-
9/11 climate.50 The resolution was presented as both a response to 9/11 and the logical next
step in the Council’s counterterrorism efforts, which included the imposition of three sanc-
tions regimes (against Libya in 1992, Sudan in 1996, and the Taliban in 1999),51 and the adop-
tion of a 1999 resolution declaring terrorism to be a threat to the peace.52 No delegation
objected to the Council’s “legislating” and it is doubtful that any member states even saw it in
those terms.53 While generic in its language, the resolution came in the wake of a clear and dev-
astatingly real manifestation of the type of threat it was aimed at preventing.54 Thus, it could
be seen as a natural extension of the Security Council’s traditional crisis management role. The
early stages of implementation of Resolution 1373 also proceeded smoothly, owing largely to
the deft diplomacy of the first chairman of the CTC, Ambassador Jeremy Greenstock of the
47
Rosand, supra note 45, at 334.
48
International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999, 39 ILM 270
(2000).
49
Rosand, supra note 45, at 334; see also ALISTAIR MILLAR & ERIC ROSAND, ALLIED AGAINST TERRORISM:
WHAT’S NEEDED TO STRENGTHEN WORLDWIDE COMMITMENT (2006).
50
Interview with Carolyn Willson, Permanent Mission of the United States to the United Nations ( July 19,
2004). In addition to this general sense of grievance, there was also a desire on the part of some delegations— es-
pecially the French—to avoid marginalization of the United Nations by the United States. Interview with Ambas-
sador Kishore Mahbubani, Permanent Representative of Singapore to the United Nations ( July 21, 2004).
51
SC Res. 748 (Mar. 31, 1992); SC Res. 1054 (Apr. 26, 1996); SC Res. 1070 (Aug. 10, 1996); SC Res. 1267,
supra note 2.
52
SC Res. 1269 (Oct. 19, 1999); Danilo Türk, Law and Policy: Security Council’s Ability to Innovate, 97 ASIL
PROC. 51, 52–53 (2003).
53
Interviews with Willson, Mahbubani, supra note 50; see also Szasz, supra note 45, at 905.
54
Interview with Ambassador Munir Akram, Permanent Representative of Pakistan to the United Nations ( July
21, 2004).
United Kingdom. Greenstock stressed that it was not the function of the CTC to define ter-
rorism, though he acknowledged that dealing with intransigent states would ultimately require
an internationally accepted definition.55 In the meantime, the CTC would engage states in dia-
logue and build national capacity in legislative drafting, counterterrorism investigation, border
control, and law enforcement. He described the committee as a “switchboard,” brokering deals
between states needing technical assistance and those that could provide it.56 At the outset, it
was remarkably successful. In the fall of 2003, one of the CTC experts rated thirty countries
as having achieved a good record of compliance, sixty more as moving gradually into compli-
ance, seventy as “willing but unable” to comply, and twenty as materially able but unwilling
to comply.57
However, the CTC began to run out of steam in late 2003 and implementation lagged. On
the basis of a report by the new Spanish chairman, the committee proposed a set of reforms to
“revitalize” its work, approved by the Security Council in Resolution 1535.58 The reforms were
designed to give the committee a more proactive compliance-monitoring role, to enhance dia-
logue with governments through site visits, and to facilitate technical assistance to states that
needed it most. The most innovative structural reform was the new Counter-Terrorism Exec-
utive Directorate (CTED), a body of twenty experts charged with helping the CTC to carry
out its strategic and policy decisions. Created in March 2004 but not declared operational until
the end of 2005, the CTED generated considerable controversy, reflected in a row over
whether it should report directly to the CTC or through the secretary-general. The controversy
stemmed from concern that the directorate could undermine the Secretariat and the authority
of the secretary-general by creating a new structure accountable solely to the Security Council
(and, by implication, its most powerful members).59 The end result was a compromise in which
the CTED would operate under the “policy guidance” of the CTC, but the executive director
would be appointed by and report through the secretary-general, and its staff members would
be subject to Article 100 of the UN Charter, the cornerstone of an independent international
civil service.60
55
Jeremy Greenstock, Countering Terrorism: Is the UN Playing Its Proper Role? interview with Joanne J. Myers,
Carnegie Council for Ethics in International Affairs (Feb. 27, 2002), available at ⬍http://www.cceia.org/resources/
transcripts/129.html⬎.
56
Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implemen-
tation of Security Council Resolution 1373 (2001), UN Doc. S/2004/70, annex, at 8 ( Jan. 26, 2004).
57
The ratings were based on four criteria: the existence of the necessary legislation, the administrative capacity
to enforce counterterrorism mandates, the presence of a policy and regulatory framework, and participation in inter-
national counterterrorism conventions and institutions. CORTRIGHT, LOPEZ, MILLAR, & GERBER, supra note 45,
at 7 (based on an unpublished paper by the CTC legal expert, Oct. 2003).
58
SC Res. 1535 (Mar. 26, 2004). The committee’s proposals are contained in UN Doc. S/2004/124, annex (Feb.
19, 2004).
59
The United States and the United Kingdom pushed hardest for the CTED to report directly to the CTC. In
an open meeting several weeks prior to the adoption of Resolution 1535, eight states expressed concerns about the
approach: Spain (as CTC chair), Benin, Germany (referring to the views expressed by the Secretariat in a letter of
March 3, 2004), Pakistan, Ireland (on behalf of the European Union), Argentina (on behalf of the Rio Group),
South Africa, and Indonesia. See UN Docs. S/PV.4921 (Mar. 4, 2004) & S/PV.4921 (Resumption 1) (Mar. 4,
2004). That the concerns persisted until the end of 2006 is reflected in the expressed need of the Security Council
to clarify reporting lines between the CTED, the Secretariat, and the CTC. UN Doc. S/PRST/2006/56 (Dec. 20,
2006).
60
Article 100 reads in part: “In the performance of their duties the Secretary-General and the staff shall not seek
or receive instructions from any government . . . . Each Member of the United Nations undertakes to respect the
exclusively international character of the responsibilities of the Secretary-General and the staff . . . .”
While the CTC continues to be controversial, by August 2006 it had received first reports
from all 191 UN member states, four reports from 107 states, and five from 42 states; most
countries had established legal frameworks for the expeditious freezing of assets; administrative
infrastructure (such as financial intelligence units) was being strengthened in many countries;
banks and other financial institutions were increasingly aware of the new regulations; and pros-
ecutions were starting to occur.61 The CTC developed a set of best practices and the Security
Council “strongly urged” all states to implement forty recommendations on money laundering
and terrorist financing produced by the Financial Action Task Force.62 In 2006 the CTED began
making “preliminary implementation assessments” of all states, 193 of which had been submitted
to the CTC by February 2008.63 Meanwhile, in September 2005, the CTC was given the added
responsibility of monitoring implementation of a Council resolution on incitement to terrorism.64
Implementation through deliberation. Little negotiation accompanied the adoption of Res-
olution 1373,65 but three features do suggest that deliberative principles had an impact on its
implementation: sustained attempts at public justification by Council members; opportunities
for affected nonmembers to state their views; and concerns expressed about the shift to more
exclusive, less accountable working methods in the CTC. Public justification began with a rare
ministerial meeting of the Council on November 12, 2001, in which all fifteen foreign min-
isters expressed strong support for Resolution 1373 and determination to cooperate with the
CTC.66 UK foreign secretary Jack Straw described its adoption as “an historic event”; U.S. sec-
retary of state Colin Powell called it “a mandate to change fundamentally how the international
community responds to terrorism.”67 No minister dissented, though all took the opportunity
to situate the resolution in the broader scheme of global counterterrorism efforts. Most advo-
cated assumption by the Security Council of leadership in the field, while stressing that it was
acting on behalf of the world community. Many spoke of the need not only for vigorous imple-
mentation of Resolution 1373, but also for intensive international cooperation on other
fronts. Many spoke as well of the need to get at the root causes of terrorism. China said it was
important to avoid linking terrorism “to any specific religion or ethnicity” and applying double
61
See Thomas J. Biersteker, The UN’s Counter-terrorism Efforts: Lessons for UNSCR 1540, in GLOBAL NON-PRO-
LIFERATION AND COUNTER-TERRORISM 24, 29 –34 (Olivia Bosch & Peter van Ham eds., 2007) [hereinafter
GLOBAL NON-PROLIFERATION].
62
SC Res. 1617 ( July 29, 2005); FINANCIAL ACTION TASK FORCE, THE FORTY RECOMMENDATIONS
(2003, as amended 2004), available at ⬍http://www.fatf-gafi.org⬎, reprinted in CENTER ON GLOBAL COUNTER-
TERRORISM COOPERATION, REPORT ON STANDARDS AND BEST PRACTICES FOR IMPROVING STATES’
IMPLEMENTATION OF UN SECURITY COUNCIL COUNTER-TERRORISM MANDATES (Sept. 2006), available at
⬍http://www.globalct.org/images/content/pdf/reports/best_practices.pdf⬎. The CTC’s compilation of best
practices from FATF and other organizations is available at ⬍http://www.un.org/sc/ctc/bestpractices.shtml⬎.
63
Organizational Plan for the Counter-terrorism Executive Directorate, UN Doc. S/2008/80, enclosure, at 4,
para. 5(b) (Feb. 8, 2008) [hereinafter Organizational Plan].
64
SC Res. 1624, para. 6 (Sept. 14, 2005). On September 15, 2006, the CTC reported that sixty-nine states had
submitted reports on steps they had taken to implement the resolution, including through changes in national crim-
inal law. Report of the Counter-Terrorism Committee to the Security Council on the Implementation of Reso-
lution 1624 (2005), UN Doc. S/2006/737, at 2, paras. 2, 5 (Sept. 15, 2006).
65
The sense of urgency and the post-9/11 political climate made quick adoption both possible and tolerable.
Nicholas Rostow, legal adviser in the United States Mission to the United Nations at the time, believes it might not
have been possible to reach agreement on the resolution even a few weeks later. Rostow, supra note 45, at 482 n.40.
66
UN Doc. S/PV.4413 (Nov. 12, 2001).
67
Id. at 15, 16.
standards.68 Most of these sentiments were embodied in a declaration at the end of the meeting
that described terrorism as “one of the most serious threats to international peace and security
in the twenty-first century,” a danger to “innocent lives and the dignity and security of human
beings everywhere,” and a challenge “to the social and economic development of all States and
. . . global stability and prosperity.”69 Nonmembers were not invited to speak at that meeting,
but its high profile presented states wanting to mobilize opposition with a perfect opportunity
to do so. None did.
The tenor of the high-level debate was striking in that it seemed to serve two distinct, but
related purposes: Council members were exchanging views in public on where the priorities
should lie in the fight against terrorism; and they were also asserting their collective leadership
on the issue while signaling to the broader membership that its concerns and interests would
be accounted for in implementing the resolution. The meeting was in effect an exercise in pub-
lic deliberation and justification. A second ministerial meeting held in January 2003 served
similar purposes.70
As the first chairman of the CTC, Ambassador Greenstock sought to reinforce the message.
In an interview he gave on February 27, 2002, he stated that one aspect of
the comprehensiveness of what we are doing is the need to persuade people to come along
with us on this program because we cannot compel them. Yes, they have a mandatory obli-
gation under a Chapter 7 Resolution, but the UN is becoming an increasingly egalitarian
institution, and the world an increasingly egalitarian place . . . . It is no longer the case that
the big countries, through their military, political, or economic might, can actually say
something and have it done. You have to lead by persuading followers to follow.71
Ambassador Greenstock then explained that he went about such persuading by doing some-
thing “not normally expected or predicted of the Security Council”:
to be transparent about what the Counter-Terrorism Committee is doing and to talk to
all Member States who want to come along to at least a fortnightly meeting of what the
CTC is actually doing. That has had an effect in persuading people, first of all, that the
Security Council is not just talking from a remote tower, but is actually engaging as people;
and secondly, that there is a natural self-interest which we all share, which means that
everybody should want to come along with our program if they understand what it is.72
This experienced and influential diplomat was asserting that the resolution would achieve
its objectives only if implemented through a more transparent and deliberative process than the
Security Council normally employs. And he practiced what he preached.73 Though complaints
about the CTC’s working methods increased over time (see below), channels for dialogue with
states expanded, through workshops with small groups in New York, direct contacts in capitals,
68
Id. at 4.
69
SC Res. 1377, annex, pmbl. (Nov. 12, 2001).
70
UN Doc. S/PV.4688 ( Jan. 20, 2003).
71
Greenstock, supra note 55.
72
Id.
73
See Rosand, supra note 45, at 335–36; Rostow, supra note 45, at 482– 83; Ward, supra note 45, at 298.
and site visits.74 And although the preliminary implementation assessments had not been
shared with any relevant state by November 2007, doing so could improve the quality of dia-
logue about where the state stands on implementation, what more needs to be done, and what
kind of technical assistance outsiders can provide.75 Thus, presented in a positive light, the
work of the Council and the CTC in implementing Resolution 1373 is characterized by fairly
intensive interaction with each state so as to induce compliance, as well as a broader, more open
deliberative process aimed at legitimation.
Second, special efforts were made to ensure that interested states had plenty of opportunity
to share their views on implementation of the resolution. These efforts were most apparent in
the debates on revitalization of the CTC in late 2003. After consulting other members of the
committee and the UN Secretariat, the chair formulated proposals in February 2004, which
were distributed to the entire UN membership for informal review, consideration, and com-
ment. An open meeting of the Council was then held in March, at which all interested states
were invited to offer opinions on the proposals. A self-selected group of twenty-one nonmem-
ber states spoke on that day, most of which had reason to believe they had something unique
to contribute to the debate, such as Egypt, India, Indonesia, Ireland, Israel, Kazakhstan, South
Africa, and Syria. Many expressed appreciation for the open debate, and for the transparent
way consultations had been conducted. The statement of Ireland, speaking for the European
Union (EU), is illustrative:
Today’s debate is of particular significance, as members’ views and suggestions will provide
valuable, concrete input into the revitalization process, including in the Council’s ongoing
deliberations on the draft resolution on this matter. Such a transparent debate will contribute
to a key goal of the reform: that is, to maintain and, hopefully, to strengthen the CTC’s general
acceptance by—and perceived legitimacy with—all members of the United Nations family.76
That views other than those of the most powerful Council members were taken into account
in the revitalization process is reflected in the structure of the CTED that was ultimately agreed
to, as described above, as well as in the CTC’s greater attentiveness to human rights since
then.77 In March 2005, the CTED hired its first human rights expert, and in May 2006, the
CTC gave the CTED policy guidance on human rights.78
74
ERIC ROSAND, ALISTAIR MILLAR, & JASON IPE, THE UN SECURITY COUNCIL’S COUNTERTERRORISM
PROGRAM: WHAT LIES AHEAD? 11–12 (2007), available at ⬍http://www.globalct.org/images/content/pdf/
reports/unsc_counterterrorism_progam.pdf⬎.
75
Ricardo Alberto Arias, Chairman, Committee Concerning Counter-Terrorism, Statement (Nov. 14, 2007),
available at ⬍http://www.un.org/sc/ctc/17nov07.shtml⬎; ROSAND, MILLAR, & IPE, supra note 74, at 9.
76
UN Doc. S/PV.4921, at 19 (Mar. 4, 2004) (emphasis added); see also id. at 20 (India); id. at 21 (Switzerland);
id. at 30 (South Korea); UN Doc. S/PV.4921 (Resumption 1), at 3 (Argentina (on behalf of the Rio Group)).
77
The committee had initially taken the position that human rights considerations should be dealt with else-
where in the UN system. Resolution 1456 of January 2003 signaled a shift when the Council for the first time called
on states to respect human rights in combating terrorism. SC Res. 1456, annex, para. 6 ( Jan. 20, 2003). But in the
revitalization debate Argentina for the Rio Group, Brazil, Canada, Chile, Costa Rica, Germany, Ireland for the
European Union, Liechtenstein, and Mexico expressed continuing concerns about the impact of counterterrorism
measures on human rights. See UN Docs. S/PV.4921, S/PV.4921 (Resumption 1), supra note 76.
78
UN Doc. S/2006/989 (Dec. 18, 2006); see also UN Doc. S/PRST/2006/56 (Dec. 20, 2006) (Security Council
endorsement of these measures). For recent articles assessing the Council’s counterterrorism activities from the per-
spective of human rights, see Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti-terror Mea-
sures: A Quest for Legitimacy and Cohesion, 17 EUR. J. INT’L L. 881 (2007); E. J. Flynn, The Security Council Counter-
terrorism Committee and Human Rights, 7 HUM. RTS. L. REV. 371 (2007); Rosemary Foot, The United Nations,
Counter-terrorism and Human Rights: Institutional Adaptation and Embedded Ideas, 29 HUM. RTS. Q. 489 (2007).
Third, as the relative harmony of the immediate post-9/11 period began to fade, several
states expressed anxiety that the “revitalization” of the CTC might lead to more exclusive, less
accountable working methods.79 Unlike his Irish counterpart, the South African ambassador
was not impressed by the consultations on reform:
[W]e meet today at a time when the Security Council has already completed its review of
the strategic direction, structures and procedures of the Counter-Terrorism Committee
and has even commenced negotiations on a new resolution. We would hope that it is
not too late for the views of the wider United Nations membership to be taken into
consideration and that we can accurately express our views in the few short minutes allo-
cated to us.80
The representative of India worried about the creation of the CTED, to be composed of an
expert staff who would report directly (and presumably confidentially) to the CTC: “What
kind of precedent are we creating by the establishment of an enhanced mechanism . . . within
the Security Council? How does the Council propose to ensure the accountability of the Exec-
utive Directorate and its institutionalized accessibility to and appropriate consultation with
Member States on their concerns and priorities?”81 The larger issue, enunciated by the Swiss
ambassador, was “whether the fight against terrorism within the framework of the United
Nations should continue to be the primary responsibility of a subsidiary body of the Security
Council.”82
In sum, deliberative principles informed the implementation of Resolution 1373. Council
members sought to legitimate their actions through public justification, consultative oppor-
tunities, and accountable working methods. Fear of double standards has had an impact on the
effectiveness of the regime, but significant progress on implementation has nevertheless been
possible. Since its adoption, some eighty countries have become parties to the twelve counter-
terrorism conventions as called for in the resolution; the CTC has gathered a wealth of infor-
mation through state reporting and site visits; and the channels for meaningful, interactive dia-
logue with states and other international organizations continue to grow.83 Undoubtedly, a
consensus definition of terrorism would facilitate the work of the CTC, as Ambassador
Greenstock said. But that reinforces rather than undermines the claim that deliberations
matter: the principal effect of a definition would be to make discourse about compliance with
the resolution more demanding, counteracting the argument of those who complain about
double standards. In any case, it is striking that criticisms of the regime under Resolution 1373
are still cast mainly (though not exclusively) in terms of working methods of the CTC, sug-
gesting that reforms leading to better deliberation could produce further progress even in the
face of continuing substantive disagreement on the definition.
79
UN Doc. S/PV.4921, supra note 76; see, e.g., id. at 13–14 (Philippines); id. at 21 (India); id. (Resumption 1)
at 2 (Egypt). For statements by the chair and others seeking to dispel these worries, see UN Doc. S/PV.4921, supra,
at 4 (Spain (as chair)); id. at 8 (United States); id. at 9 (United Kingdom); id. at 19 (Ireland (for the European
Union)); id. (Resumption 1) at 5 (Mexico).
80
UN Doc. S.PV.4921 (Resumption 1), supra note 76, at 7.
81
UN Doc. S/PV.4921, supra note 76, at 21.
82
Id. at 22.
83
SC Res. 1805, paras. 5, 6 (Mar. 20, 2008); Organizational Plan, supra note 63, paras. 5(a), (e), & 6, 8, 9;
ROSAND, MILLAR, & IPE, supra note 74, at 7.
The Spread of Weapons of Mass Destruction to Nonstate Actors
Negotiation and implementation of Resolution 1540. Resolution 1540 aims at preventing

weapons of mass destruction from falling into the hands of terrorists. Adopted under Chapter
VII, it demands that all states refrain from supporting efforts by nonstate actors to acquire such
weapons, and that they adopt appropriate legislation and enforcement measures to prevent
that. The resolution established a committee for a period of two years—later extended to April
2008 and then to April 2010 —to oversee its implementation. The 1540 Committee lacks a
CTED-type structure, but it can call for appropriate expertise to assist in its work.
The seeds for the resolution were planted by the United Kingdom when it circulated a non-
paper among EU countries in early 2003 proposing the idea of a “counter-proliferation com-
mittee,” modeled on the CTC.84 U.S. president George W. Bush picked up on the idea in a
speech to the General Assembly on September 24, 2003, calling on the Security Council to
adopt a new antiproliferation resolution that would require all UN members to criminalize the
proliferation of weapons of mass destruction, enact stringent export controls, and secure sen-
sitive materials.85 Consultations by the P–5 began in October 2003 and proceeded exclusively
among them for five months. By the end of that period, four of the five had reached agreement
on a draft (China did not oppose it but took the position that it would continue to negotiate86).
The consultations were extended to other members of the Council in March 2004, and a draft
was first discussed by the Council as a whole at an informal meeting on April 8. An open meet-
ing followed on April 22, where the draft resolution, which had been amended twice over the
previous week, was discussed at length. Meanwhile, the cosponsors actively briefed the
Non-aligned Movement and regional groups in trying to “de-fang” opponents by countering
rumors that had been building up during the period of more closed negotiations.87 After the
open meeting, the resolution was revised once more and then adopted by unanimous vote on
April 29.
Negotiation of Resolution 1540 was more contentious than of Resolution 1373, for several
reasons.88 First, the political climate had changed in the years between 9/11 and early 2004,
not least because of the Iraq war. Second, Resolution 1540 came on the heels of the U.S.-led
Proliferation Security Initiative, which generated suspicion that the resolution was designed
primarily to universalize and make mandatory the interdiction principles that only a limited
number of states had agreed to at that point. Third, while Resolution 1373 takes elements of
international law and extends them to all UN members, Resolution 1540 “fills gaps” in existing
law. In that sense, its “legislative” character was more unsettling. Fourth, Resolution 1540
84
Merav Datan, Security Council Resolution 1540: WMD and Non-state Trafficking, DISARMAMENT DIPL.,
Apr./May 2005, at 47, available at ⬍http://www.acronym.org.uk/dd/dd79/79md.htm⬎.
85
George W. Bush, Address to the United Nations General Assembly in New York City, 39 WEEKLY COMP.
PRES. DOC. 1256, 1259 (Sept. 29, 2003).
86
Interview with Sohail Mahmood, Permanent Mission of Pakistan to the United Nations ( July 21, 2004).
87
Interview with Nicholas Rostow, United States Mission to the United Nations ( July 19, 2004). One theory
circulating was that Resolution 1540 was a backdoor way of circumventing the procedure employed by the Inter-
national Atomic Energy Agency to bring states like Iran into line. Interview with Harsh Shringla, Permanent Mis-
sion of India ( July 21, 2004).
88
My analysis is based on concerns expressed in the Security Council meetings in late April by Algeria, Brazil,
Cuba, Egypt, India, Indonesia, Iran, Mexico, Pakistan, and South Africa. UN Docs. S/PV.4950 (Apr. 22, 2004);
S/PV.4956 (Apr. 28, 2004). It is also based on personal interviews with diplomats from Brazil, India, Pakistan,
Spain, and the United States between July 19 and July 21, 2004, all of whom were involved in the negotiations.
encroaches more deeply on existing treaties (the Non-proliferation Treaty, the Chemical
Weapons Convention, and the Biological Weapons Convention) and the institutions that
monitor them (the International Atomic Energy Agency (IAEA) and the Organisation for the
Prohibition of Chemical Weapons (OPCW)) than Resolution 1373. Finally, many states
feared that adopting the resolution under Chapter VII could trigger military enforcement
action.
Pakistan in particular was adamant that Resolution 1540 exceeded the competence of the
Security Council.89 The threat that terrorists might acquire weapons of mass destruction was
real, but there had never been a concrete manifestation of that threat, unlike the subject matter
of Resolution 1373. To Pakistan, Resolution 1540 looked like “abstract legislation,” discon-
nected from the Council’s crisis management role. Moreover, the Security Council was not the
best “repository of authority” on weapons of mass destruction, where disarmament by the
nuclear powers was not likely to see much headway. Brazil, China, Egypt, India, South Africa,
Germany, and other European countries were less adamant, but they also took pains to stress
that Security Council action should complement and strengthen, rather than undermine, the
existing nonproliferation regimes.
Ultimately, the resolution was adopted unanimously because states that had doubts about
the propriety of this kind of Council action could claim that it temporarily filled a gap in the
law to address an urgent threat, pending adoption of a multilateral treaty (China, India, Iran,
Kuwait, New Zealand, Nigeria, and Pakistan). Many also commented on the explicit assurance
in the resolution that it would not “conflict with or alter the rights and obligations” of parties
to existing conventions, or with the responsibilities of the IAEA and the OPCW90 (Australia,
Brazil, Ireland on behalf of the European Union, Jordan, Liechtenstein, and Spain). Its explicit
connection to terrorism also made the resolution more acceptable. As an antiterrorism rather
than a nonproliferation measure, it was easier to rationalize the minimal references in it to
global disarmament.91
Although the concerns of member states were taken into account in the final version of Res-
olution 1540 (set out below), many delegations still harbored misgivings about the text.92
Moreover, Pakistan worked hard to dilute the mandate of the 1540 Committee, successfully
stalling any substantive action until it rotated off the Security Council at the end of 2004.93
89
My account of Pakistan’s position is drawn from an interview with Ambassador Akram on July 21, 2004; a
nonpaper circulated by Pakistan to the entire UN membership in late March 2004; and the statements of Pakistan
in Security Council meetings on April 22 and 28, 2004, supra note 88.
90
SC Res. 1540, supra note 2, para. 5.
91
Interviews with Davide Carrideo, Permanent Mission of Spain ( July 20, 2004), and Luis Guilhermo, Per-
manent Mission of Brazil ( July 21, 2004). Brazil, in particular, wanted to avoid the term “nonproliferation” in con-
nection with Resolution 1540, as that applied to states; it preferred instead to introduce new concepts like “non-
access, non-transfer and non-availability” to nonstate actors. UN Doc. S/PV.4950, supra note 88, at 4. On the
connection between Resolution 1540 and the broader counterterrorism agenda of the Security Council, see Peter
van Ham & Olivia Bosch, Global Non-proliferation and Counter-terrorism: The Role of Resolution 1540 and Its Impli-
cations, in GLOBAL NON-PROLIFERATION, supra note 61, at 3, 7–9.
92
Colum Lynch, Weapons Transfers Targeted; U.N. Security Council Resolution Seeks Criminalization, WASH.
POST, Apr. 29, 2004, at A21 (quoting the German permanent representative to the United Nations). Similarly,
Ambassador Abdallah Baali of Algeria told the New York Sun that Pakistan and other members were concerned
about the resolution, but “unless you are one of the five veto powers, it is very difficult to remain outside the con-
sensus.” Benny Avni, WMD Proliferation Resolution Passes, N.Y. SUN, Apr. 29, 2004, at 7.
93
MILLAR & ROSAND, supra note 49, at 18.
The committee began to pick up steam in 2005, but by July 5, 2007, only 137 states had sub-
mitted their first national report. This lag in state reporting has been matched by growing con-
cerns about the way the 1540 Committee goes about its work, leading in some cases to mem-
bers’ using the consensus voting rule to block efforts to exert pressure on a particular state.94
The rhetoric of deliberative democracy. By the time negotiations on Resolution 1540 opened
in late 2003, the far-reaching implications of the Council’s legislating had begun to sink in.
This realization, combined with the substantive concerns of Pakistan, India, and others, meant
that the Council members knew that a more inclusive and drawn-out process would be
required to adopt the resolution than for Resolution 1373. Thus, while the negotiations orig-
inated among the P–5, the process was “intentionally porous,” allowing other members of the
Council, nonmembers, the press, and nongovernmental organizations the opportunity to fol-
low the deliberations and provide input.95 Interestingly, the language of deliberative democ-
racy permeated the public debates. In an open meeting on April 22 (requested by Canada, Mex-
ico, New Zealand, South Africa, Sweden, and Switzerland), fifty-one states spoke and more
than half commented on the scope and timing of the consultations to that point, either dis-
paragingly or in a complimentary way. The permanent representative of the Philippines stated:
My delegation appreciates . . . the timeliness of this open debate and the value of lis-
tening to the views of the general membership, who would be implementing the resolu-
tion. Those who are bound should be heard. This is an essential element of a transparent and
democratic process, and is the best [way] to proceed on a resolution that demands legislative
actions and executive measures from the 191 Members of the United Nations.96
New Zealand’s ambassador said support for the draft resolution “requires the Council to
dispel any impression of negotiations behind closed doors or that a small group of States is
drafting laws for the broader membership without the opportunity for all Member States to
express their views.”97 The permanent representative of Malaysia struck a chord when he said,
on behalf of the Non-aligned Movement:
The Non-Aligned Movement sincerely hopes that the sponsors and other Council
members will continue to take into consideration the views and concerns expressed by
NAM member countries. . . . After all, . . . Governments, national legislatures and, for that
94
ROSAND, MILLAR, & IPE, supra note 74, at 6, 10. On the implementation of Resolution 1540 generally, see
Lars Olberg, Implementation of Resolution 1540: What the National Reports Indicate, DISARMAMENT DIPL., Spring
2006.
95
Datan, supra note 84.
96
UN Doc. S/PV.4950, supra note 88, at 2 (emphasis added). Similarly, the permanent representative of Spain
said:
[S]ince the Council is legislating for the entire international community, this draft resolution should prefer-
ably, although not necessarily, be adopted by consensus and after consultation with non-members of the
Council. Therefore, without prejudice to the—I daresay— unprecedented and intensive negotiations of the
sponsors, Spain has always believed the holding of this formal open debate to be appropriate.
Id. at 7; see also id. at 3 (Brazil); id. at 6 (China); id. at 8 (France); id. at 9 –10 (Angola); id. at 11 (United Kingdom);
id. at 13 (Benin); id. at 14 (Romania); id. at 18 (United States); id. at 20 (Peru); id. at 22 (South Africa); id. at 25–26
(Ireland (for the European Union)); id. at 27 (Sweden); id. at 28 (Switzerland); id. at 32 (Indonesia); id. (Resump-
tion 1) at 2 (Apr. 22, 2004) (Egypt); id. at 4 (Mexico); id. at 15–16 (Nigeria); UN Doc. S/PV.4956, supra note 88,
at 2 (France); id. at 5 (United States); id. at 7 (United Kingdom).
97
UN Doc. S/PV.4950, supra note 88, at 21.
matter, the private sector in all Member countries are expected to cooperate and take
appropriate measures . . . .98
The implication of all three statements is that the prospects for effective implementation of
such a substantively controversial resolution depended on the legitimacy of the deliberative
process for making decisions. Moreover, as the Malaysian ambassador hinted, the private sector
had a stake in Resolution 1540 and therefore should be consulted in some way. Indeed, there
was organized nongovernmental input into the negotiating process, especially after March 24,
when a draft resolution surfaced.99 Merav Datan goes too far when she claims that a “counter-
proliferation and [Proliferation Security Initiative–type] initiative . . . was transformed into a
cooperative, iterative and interactive effort to address non-state access to [nuclear, biological,
and chemical] weapons,”100 but changes were made in the draft as a result of the broad con-
sultations: references to disarmament obligations and the integrity of existing treaty regimes
were added; a reference to “interdiction” was removed; the sovereign rights of nonparties to
nonproliferation treaties were affirmed; language on the usefulness of peaceful dialogue was
strengthened; and the proposal to create a monitoring committee was introduced, with suitable
reassurances about its role provided in the explanation of votes.101 The changes were sufficient
to enable even the staunchest critic (Pakistan) to succumb to pressure to vote for the resolution,
and various other states expressed satisfaction that their concerns had been taken into account
(Algeria, Brazil, and Germany). When the application of Resolution 1540 was extended for
two years by Resolution 1673 and a new program of work was devised, similar views were
expressed.102
More generally, the intensive consultations with those most affected served to legitimate a
highly contentious decision. Datan describes the “intentionally porous” nature of the consul-
tations, a “form of practical (though relative) democracy [which] was not the result of ‘security
leaks’, but of awareness that the political sensitivity of the issue requires as much input by global
civil society as a Security Council negotiating process can tolerate.”103 Even for those who did
not participate directly, the public nature of the deliberations meant that the “audience effect”
enhanced legitimacy. The idea (discussed further in part IV below) is that those involved in
public deliberations feel pressure to state their positions and make their appeals in terms of
impartial, as opposed to purely self-serving, reasons.
While the negotiation of Resolution 1540 was a significant diplomatic achievement, imple-
mentation has lagged. Yet it is too soon to close the book on the regime. The 1540 Committee
has suffered as much from disputes about process as about substance; for example, how to use
the analysis prepared by expert groups and how broadly to share it, and how to alleviate the
cumbersome procedures for communicating with states.104 This factor, plus the level of
98
UN Doc. S/PV.4950 (Resumption 1), supra note 96, at 3– 4.
99
A group of NGOs called for an open meeting of the Council, sent a memorandum to the Security Council
setting out its position as well as draft language for the resolution, issued a media advisory, and made regular state-
ments to the press. Datan, supra note 84.
100
Id.
101
Id.
102
See generally Olivia Bosch & Peter van Ham, UNSCR 1540: Its Future and Contribution to Global Non-pro-
liferation and Counter-terrorism, in GLOBAL NON-PROLIFERATION, supra note 61, at 207.
103
Datan, supra note 84; Olberg, supra note 94.
104
ROSAND, MILLAR, & IPE, supra note 74, at 6.
engagement in adopting Resolution 1540, suggests that further progress can be made despite
the ongoing substantive disagreements.
III. THE SECURITY COUNCIL AS QUASI-JUDICIAL BODY
In addition to legislating, the Security Council has begun to act in a more overtly quasi-ju-
dicial manner in recent years. The Council has long been involved in dispute settlement, one
of its enumerated functions in Chapter VI of the Charter, but it normally does this in a non-
binding way—for example, by calling on parties to settle their disputes by the means listed in
Article 33. The Council has gone further by making legal determinations, like declaring South
Africa’s occupation of Namibia to be illegal and branding the use of chemical weapons during
the Iran-Iraq war as a violation of humanitarian law.105 In Resolution 687, it held Iraq finan-
cially liable for losses resulting from its invasion of Kuwait, and declared that Iraq must respect
the border set out in Agreed Minutes of 1963.106 These pronouncements are findings of law—
decisions that would normally be left to a court— but because they were directed at govern-
ments and deemed necessary to restore peace with respect to a particular crisis, none generated
much controversy simply by virtue of their quasi-judicial nature.
Sanctions targeted at individuals, on the other hand, have aroused more controversy. It is
different from the controversy provoked by Resolutions 1373 and 1540; it is not about making
general international law, but about imposing a penalty on an individual without due process.
Still, there are parallels. While no one expects the Security Council to grant full due process
rights, review of the regime under Resolution 1267 suggests that many expect some procedural
fairness, consistent with deliberative principles.
Targeted Sanctions Regimes: Resolution 1267
The Taliban/Al Qaeda sanctions regime was established by a resolution adopted after the
bombing of U.S. embassies in Kenya and Tanzania, for which Osama bin Laden was deemed
responsible. Resolution 1267 of 1999 demanded that the Taliban end its support for terrorism
and extradite bin Laden. It also set up a committee to monitor an asset freeze and travel ban
on the Taliban. The sanctions were expanded in 2000 by Resolution 1333 to include an arms
embargo, diplomatic restrictions, a broadened aviation ban, and an asset freeze against Al
Qaeda and its associates. In that resolution, the Council called on the 1267 Committee to keep
a list of individuals associated with the Taliban, Al Qaeda, or Osama bin Laden, all of whom
would be subject to the financial and travel sanctions. After the terrorist attacks of September
11 and overthrow of the Taliban in 2001, the Security Council lifted the broader aviation sanc-
tions but continued the targeted travel and financial sanctions, as well as the arms embargo
against the Taliban and Al Qaeda.107 In 2004 a sanctions-monitoring group that had been
operating since 2001 was converted into the Analytical Support and Sanctions Monitoring
Team, composed of eight experts, to assess steps being taken to implement the sanctions.108
105
These examples come from ALVAREZ, supra note 7, at 190.
106
SC Res. 687 (Apr. 3, 1991), 30 ILM 846 (1991); see ALVAREZ, supra note 7, at 419 –24; IAN JOHNSTONE,
AFTERMATH OF THE GULF WAR (1994).
107
SC Res. 1390 ( Jan. 28, 2002).
108
SC Res. 1526, para. 6 ( Jan. 30, 2004).
Member states report on the actions they have taken and, like the CTC, the 1267 Committee
engages in dialogue with states through country visits and meetings with representatives in
New York.
The adoption of Resolution 1267 was not the first time the Security Council imposed tar-
geted sanctions. It did so in 1994, against the military junta in Haiti, and again in 1997, against
senior officials of the National Union for the Total Independence of Angola (UNITA) and their
family members there.109 In addition to Resolution 1267, nine resolutions create committees
that currently have roles in listing individuals and entities targeted by sanctions.110 All of the
“listing” committees have given rise to concerns about procedural fairness, as they provide for
no hearing or even proper notification of the case against the individual, and little opportunity
to challenge the decision.111 However, the concerns about the 1267 regime have been the most
acute for several reasons. First, its scope is the widest. Almost half of the currently listed indi-
viduals and entities fall under that regime and, given its global reach and unspecified duration,
an unlimited number of people could be targeted. Second, it focuses more directly on nonstate
actors than the other regimes (even the sanctions against UNITA involved a statelike entity that
controlled a defined territory).112 Third, as pointed out in the preamble to Resolution 1735,
the 1267 regime is preventive in character, imposing restraints on people and corporations not
for what they have done in the past, but for what they might do in the future. Fourth, other
than the Lebanon/Syria sanctions, which relate to a specific incident (the assassination of Rafik
Hariri), it is the only regime clearly directed at terrorism. That makes it a special case because
of the reluctance of many states to assert the primacy of human rights over counterterrorism.113
The 1267 Committee has placed some five hundred names on its consolidated list. Most
were designated by the United States after 9/11, either alone or in conjunction with allies. A
no-objection procedure is used: any member state, or international or regional organization,
may submit a name and, unless an objection or hold is placed within five days (originally it was
109
SC Res. 917 (May 6, 1994); SC Res. 1127 (Aug. 28, 1997).
110
SC Res. 1132 (Oct. 8, 1997) (Sierra Leone); SC Res. 1518 (Nov. 24, 2003) (Iraq); SC Res. 1521 (Dec. 22,
2003) (Liberia); SC Res. 1533 (Mar. 12, 2004) (Democratic Republic of the Congo); SC Res. 1572 (Nov. 15, 2004)
(Côte d’Ivoire); SC Res. 1591 (Mar. 29, 2005) (Sudan); SC Res. 1636 (Oct. 31, 2005) (Lebanon/Syria); SC Res.
1718 (Oct. 14, 2006) (North Korea); SC Res. 1737 (Dec. 23, 2006) (Iran).
111
The due process concerns range from the adequacy of the presentation of the case against an individual prior
to listing, to the lack of notification, the process of requesting exemptions, and the way delisting petitions are han-
dled. ALVAREZ, supra note 7, at 176; THOMAS J. BIERSTEKER & SUE E. ECKERT, STRENGTHENING TARGETED
SANCTIONS THROUGH FAIR AND CLEAR PROCEDURES (Thomas Watson Institute of International Studies,
2006), available at ⬍http://www.watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf⬎; IAIN CAM-
ERON, THE EUROPEAN CONVENTION ON HUMAN RIGHTS, DUE PROCESS AND UNITED NATIONS SECURITY
COUNCIL COUNTER-TERRORISM SANCTIONS (Feb. 6, 2006) (report commissioned by the Council of
Europe), available at ⬍http://www.coe.int/t/e/legal_affairs/legal_co-operation/public_international_law/Texts_&_
Documents/2006/I.%20Cameron%20Report%2006.pdf ⬎; BARDO FASSBENDER, TARGETED SANCTIONS
AND DUE PROCESS 29 –30 (2006) (study commissioned by the UN Office of Legal Affairs), available at ⬍http://
www.un.org/law/counsel/Fassbender_study.pdf ⬎; REVIEW OF THE SECURITY COUNCIL BY MEMBER STATES
(Erika de Wet & André Nollkaemper eds., 2003) [hereinafter REVIEW OF SECURITY COUNCIL]; Peter Gutherie,
Note, Security Council Sanctions and the Protection of Individual Rights, 60 N.Y.U. ANN. SURV. AM. L. 491, 503– 06
(2004). For the application of administrative law standards of procedural fairness to global governance, see Benedict
Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, 68 LAW & CONTEMP.
PROBS. 15, 32, 34, 38 –39 (2005); David Dyzenhaus, The Rule of (Administrative) Law in International Law, 68
LAW & CONTEMP. PROBS. 127, 140 –52 (2005).
112
I would like to thank Ulrik Ahnfeldt-Mollerup for drawing my attention to this point.
113
BIERSTEKER & ECKERT, supra note 111, at 7; see also FASSBENDER, supra note 111; Flynn, supra note 78;
Foot, supra note 78; Gutherie, supra note 111, at 495.
forty-eight hours), all states must freeze the assets of the person and ban his or her travel.
According to a U.S. diplomat, in the early stages the listing was based largely on political trust,
as the committee lacked formal guidelines or evidentiary standards for states to follow in pro-
posing names.114 Nor was there any provision for removing names from the list. Several pro-
cedural changes (discussed below) were made in 2002 and 2003, but by mid-2005 support for
the 1267 regime was eroding and pressure building for further reforms. The 2005 World Sum-
mit called for “fair and clear procedures” for listing and delisting individuals by all sanctions
committees. The UN Office of Legal Affairs commissioned a study by Bardo Fassbender, but
because the 1267 Committee decided it would consider proposals only from its members, the
study was shelved.115 Meanwhile, three governments commissioned a study by the Thomas
Watson Institute at Brown University, also issued in March 2006.116
The secretary-general and his legal counsel drew on these studies in a letter sent to the pres-
ident of the Security Council in mid-2006. Though not issued as an official document, the
letter was read into the record by Legal Counsel Nicolas Michel at a public meeting on June
22.117 In it, the secretary-general set out what he considered the minimum standards required
to ensure fair procedures for listing and delisting: the right of targeted individuals to be
informed of measures taken against them and why; the right of such individuals to make writ-
ten submissions and to be represented by counsel; the right to review by an impartial, inde-
pendent mechanism able to provide a remedy; and periodic review of the lists by the Security
Council itself. The Council eventually acted on some of the recommendations, as well as those
put forward earlier in the year by the monitoring team.118 The most important changes relate
to the listing of names: a fuller statement of the case is now required, including specific infor-
mation and supporting documentation to show that the individual belongs on the list; des-
ignating states are requested to identify which parts of the statement can be publicly released;
additional information is to be submitted as it becomes available; the country of residence or
nationality of the target must be notified of the listing decision within two weeks; and those
states are to endeavor to notify the individual of the decision and case against him or her.119
The Security Council also established a “focal point” to receive delisting petitions for all the
regimes (including petitions from individuals), which it forwards to the various governments
concerned for possible consideration by the relevant committee.120
Nevertheless, support for the 1267 regime is continuing to erode.121 A clear sign of ongoing
concern about the listing and delisting process is the reluctance to create a larger terrorism list
114
MILLAR & ROSAND, supra note 49, at 20.
115
FASSBENDER, supra note 111; Targeted Sanctions: Listing/De-Listing and Due Process, in SECURITY
COUNCIL REPORT, MONTHLY FORECAST, Jan. 2007, at ⬍http://www.securitycouncilreport.org⬎.
116
BIERSTEKER & ECKERT, supra note 111.
117
UN Doc. S/PV.5474, at 7– 8 ( June 22, 2006).
118
UN Doc. S/2006/154 (Mar. 10, 2006).
119
The revised procedures were approved by the committee on November 29, 2006, and endorsed by the Secu-
rity Council in Resolution 1735 (Dec. 22, 2006).
120
SC Res. 1730 (Dec. 19, 2006).
121
ROSAND, MILLAR, & IPE, supra note 74, at 4. In November 2007, the monitoring team reported that the
sanctions regimes continued to suffer from two main weaknesses: the limitations of the consolidated list and lack
of involvement by member states. Seventh Report of the Analytical Support and Sanctions Monitoring Team, UN
Doc. S/2007/677*, Annex I, Summary, para. 2 (Nov. 29, 2007) [hereinafter Seventh Monitoring Team Report].
pursuant to Resolution 1566, adopted following the deaths of hundreds of children taken hos-
tage at a school in Beslan, Russia. The Security Council came close to adopting a definition of
terrorism in that resolution, but ultimately fell back on a reference to acts that constitute
offenses within the scope of existing international conventions and protocols. The resolution
established a working group mandated to consider measures to be imposed on individuals and
entities involved in or associated with terrorism, in addition to those on the Al Qaeda/Taliban
list. To date, no progress at all has been made on creating an expanded list.
Procedural Fairness and Deliberative Principles
Over the years, at least fifty states have expressed concerns about the 1267 regime, as have
various UN officials, including the secretary-general and the high commissioner for human
rights, and numerous nongovernmental organizations.122 Few question the substantive pro-
priety of freezing the assets of individuals associated with Al Qaeda, Osama bin Laden, or the
Taliban. What is objectionable to many is how the Security Council and the 1267 Committee
have gone about that. A thread that runs through both the steps taken to improve the regimes
and the continuing critiques is that, short of full due process, the Council should meet the less
demanding standard of deliberative principles—loosely analogous to administrative law prin-
ciples of procedural fairness. These can be divided into three categories: independent review,
public notice, and reasons for decisions.
A report issued by the Council of Europe in 2006 stated that the 1267 process violates the
European Convention on Human Rights because it provides no protection against arbitrary
decisions and no mechanism for reviewing the accuracy of allegations made.123 In the absence
of a built-in review mechanism, the committee’s decisions have been challenged in regional and
national courts at least fifteen times.124 In one case of special note, the European Court of First
Instance ruled that it had the authority to check whether Security Council resolutions were
consonant with norms of jus cogens, on the grounds that these are nonderogable (meaning that
not even the Council can override them).125 The court suggested that the rights to property,
a fair trial, and an effective remedy were all jus cogens norms. It did not consider—though the
122
BIERSTEKER & ECKERT, supra note 111, at 6 & 51 n.9; see also Strengthening International Law: Rule of
Law and Maintenance of International Peace and Security, UN Doc. S/PV.5474 ( June 22, 2006) (open Security
Council debate).
123
CAMERON, supra note 111; David Crawford, UN Program Generates Blacklist, WALL ST. J., Oct. 2, 2006,
at 9.
124
As of November 2007, cases had been brought in Belgian, Dutch, Italian, Pakistani, Swiss, Turkish, U.S., and
European regional courts. Seventh Monitoring Team Report, supra note 121, Annex I, at 40. Although the cases
brought in the United States did not challenge the UN sanctions directly, two entities listed by the 1267 Committee
challenged asset freezes made under U.S. law. Gutherie, supra note 111, at 518. Also, a Canadian case described by
Dyzenhaus, supra note 111, involved issues that arose under Resolution 1267 as well as Resolution 1373. See gen-
erally REVIEW OF SECURITY COUNCIL, supra note 111.
125
Case T–306/01, Yusuf v. Council (Eur. Ct. 1st Instance Sept. 21, 2005), appeal docketed, Case C– 415/05
P, 2006 O.J. (C 48) 11 (Eur. Ct. Justice Nov. 23, 2005). The court initially reserved judgment on the merits and
soon thereafter, the Security Council sanctions committee delisted two of the individuals. A similar case brought
at the same time involved a Saudi citizen. Case T–315/01, Kadi v. Council (Eur. Ct. 1st Instance Sept. 21, 2005),
appeal docketed, Case C– 402/05 P, 2006 O.J. (C 36) 19 (Eur. Ct. Justice Nov. 17, 2005). On the status of these
cases and seven others brought before the European Court of Justice, see Seventh Monitoring Team Report, supra
note 121, Annex I, at 40, para. 2. By February 2008, the Court had not rendered its opinion on the Yusuf and Kadi
appeals, but one of the advocates-general, Poiares Maduro, issued a nonbinding opinion on the former that fun-
damental values were at stake and the Court might have to rule that the Security Council measures could not be
enforced against individuals. Coming up Trumps: UN Law, ECONOMIST, Feb. 2, 2008 (U.S. ed.). For commentary
European Court of Justice may on appeal—whether the Security Council’s actions in estab-
lishing the 1267 sanctions regime accord with the purposes and principles of the UN Charter,
as required by Article 24, and if not, are therefore ultra vires.126 While the threat of action in
national or regional courts may be having an effect on the Council, its inefficiency and uncer-
tainty as an accountability mechanism has prompted calls for an independent review mech-
anism within the United Nations itself.127
Another line of criticism of the regimes is the lack of public notice. The critique is twofold:
the absence of clear, well-publicized criteria for listing and delisting; and the inadequate noti-
fication of cases against a particular individual. Some steps have been taken to address both
concerns, but not enough in the view of critics. In August 2002, the committee announced
delisting procedures for the first time and, in November, adopted written guidelines for both
listing and delisting.128 Resolution 1526 of 2004 calls on states that seek to place names on the
list to include information about the individual’s connection with bin Laden, Al Qaeda, or the
Taliban. And Resolution 1617 of 2005 clarifies what activities would constitute “association”
with Al Qaeda and the Taliban. But to this day, detailed criteria for adding names to the list
have not been specified. Targeted individuals may be informed that they have been put on the
list by the state of residence and/or citizenship, but the notification requirement is qualified by
the words “to the extent possible.” Moreover, the individual is only told about the portion of
the statement of the case that the designating state chooses to make public: as of early 2008,
no state had agreed to release any portion of any case.
The third line of criticism relates to the lack of reasons given for decisions at each step. Ini-
tially, states were not required to give any reasons for placing individuals on the list. That began
to change with Resolution 1526, as noted above, and then with Resolution 1617 when the
Council decided that states must provide the committee with a detailed “statement of case
describing the basis of the proposal.”129 But targeted individuals have no right to make their
case to the committee before being placed on the list. And once on, it is not easy for an indi-
vidual to argue that he or she should be taken off. The establishment of the focal point makes
it possible for individuals to petition directly, but their request for delisting will not be put on
the committee’s agenda unless some government takes up their cause.130 Even when the cause
on the decisions in the Court of First Instance, see Chia Lehnardt, European Court Rules on UN and EU Terrorist
Suspect Blacklists, ASIL INSIGHT, Jan. 31, 2007.
126
BIERSTEKER & ECKERT, supra note 111, at 22.
127
The procedural reforms already made in the 1267 sanctions regime were motivated in part by a desire to pre-
empt court challenges. See the statements made in the open Council meeting on international law. UN Doc.
S/PV.5474, supra note 122. BIERSTEKER & ECKERT, supra note 111, at 3, note that court actions “potentially pose
significant challenges to the efficacy of targeted sanctions. . . . Improvements in the procedures . . . could reduce
the risk of judicial decisions that could complicate efforts to promote international peace and security.”
128
Guidelines of the Security Council Committee Established Pursuant to Resolution 1267 (1999) for the Con-
duct of Its Work (Nov. 7, 2002, as amended Apr. 10, 2003, revised Dec. 21, 2005, amended Nov. 29, 2006), available
at ⬍http://www.un.org/Docs/sc/committees/1267/1267_guidelines.pdf⬎. In addition to the procedural changes,
the Council introduced an important substantive amendment to the regime in December 2002, carving out a set
of humanitarian exemptions to the financial ban that allowed the release of funds to meet basic needs and for other
“extraordinary expenses.” SC Res. 1452 (Dec. 20, 2002).
129
130
Individuals can send petitions directly to the focal point—a significant step— but either the designating gov-
ernment, or the government of citizenship or residency, must pursue the matter. If none of them acts within three
months, the focal point sends copies of the delisting request to the committee. At that point, any member of the
committee can recommend delisting, thereby putting the matter on the committee’s agenda. If, after one month,
is taken up, whether to grant a delisting request rests entirely within the discretion of the com-
mittee, where decisions are by consensus, meaning that each member has a veto. Moreover, the
committee is not required to give reasons for its decisions whether to list or not to delist.
IV. THE DELIBERATIVE DEFICIT
Assessment of the 1267, 1363, and 1540 regimes demonstrates both that some meaningful
deliberation has taken place in and around the Security Council, and that the deliberative pro-
cesses in all three cases left something to be desired. The record of all three regimes has been
mixed, with some early successes, but support now eroding. The analysis suggests— even if it
does not prove—the existence of a cause-and-effect relationship between the quality of delib-
erations and the effectiveness of implementation. It also provides a partial answer to broad
objections commentators have raised against the Council’s acting as legislature and court.
While these objections have merit, I argue that the Council has more legitimacy than they sug-
gest precisely because deliberative principles inform its decision making and permeate propos-
als for reform.
Should the Council Legislate and Adjudicate?
The specific criticisms of the 1267, 1373, and 1540 regimes highlighted above are rooted
in broader normative considerations. Matthew Happold goes so far as to suggest that Reso-
lution 1373 is ultra vires, pointing to the Council’s lack of explicit legislative authority under
the UN Charter, the structure of the organization, and past practice.131 Several states made
similar arguments in the debates on Resolution 1540.132 Similarly, as far back as 1994, analysts
questioned the competence of the UN Security Council to determine legal rights.133 The tar-
geted sanctions regimes add a new layer of concern, since the lack of due process bumps up
against the requirement of Charter Article 24(2) that the Council act in accordance with the
purposes and principles of the United Nations. Yet from a strictly legal perspective, Arti-
cles 24 and 25, and Chapter VII confer broad authority on the Council to take whatever
measures it deems necessary to maintain and restore international peace and security.134
While the Security Council is first and foremost an executive body whose principal func-
tion is crisis management, no evident legal rule prohibits it from acting in a legislative or
quasi-judicial manner.
That the Council has the competence to act in this way does not necessarily mean it should.
In addition to the obvious problem that it will be seen as serving the interests of its most pow-
erful members only, Council legislation circumvents the normal treaty-making process. Such
action derogates from the principle that states are bound only by the law they have consented
no committee member recommends delisting, then the request is deemed to be rejected. SC Res. 1730, supra note
120, annex, para. 6(c).
131
Happold, supra note 45, at 607.
132
UN Docs. S/PV.4950, S/PV.4956, supra note 88; see ROSAND, MILLAR, & IPE, supra note 74.
133
See, e.g., Keith Harper, Does the United Nations Security Council Have the Competence to Act as Court and Leg-
islature? 27 N.Y.U. J. INT’L L. & POL. 103 (1994).
134
See generally DAN SAROOSHI, INTERNATIONAL ORGANIZATIONS AND THEIR EXERCISE OF SOVEREIGN
POWERS (reprint 2007) (2005).
to, and it encroaches on parliamentary authority within states.135 Moreover, multilateral treaty
negotiations tend to balance global concerns, leading to trade-offs and bargains that account
for a wider range of interests than typically come out of Security Council negotiations. It has
been argued that the General Assembly is a more legitimate venue for this kind of norm set-
ting.136 With respect to its quasi-judicial acts, the Security Council is not well suited to hear
pleadings, assess evidence, and weigh legal claims—functions courts are designed to perform.
Nor are its decisions subject to judicial review, despite hints by the International Court of Jus-
tice that it may someday assert such a power.137 This drawback is particularly worrying when
the Council acts directly against individuals. In their collective zeal for action against terrorism,
the five permanent members may be too quick to agree on (or tolerate) measures that impinge
on civil liberties.138 The lack of a definition of terrorism compounds the problem, raising con-
cerns that the committees and expert bodies will target some states more aggressively than oth-
ers.139 To grant the Security Council the power to legislate and adjudicate as well as execute
international public policy amounts, in the view of some, to acquiescence in a hegemonic
global order. In the absence of a system of checks and balances in the United Nations com-
parable to that of many domestic governments,140 “[t]he perils of an ‘imperial’ Security Coun-
cil,” Alvarez argues, “are as real as is the promise that it will take effective action.”141
Though real, these concerns should not be overstated; the Council enjoys more deliberative
legitimacy than meets the eye. Arguments, as Neta Crawford states, are situated within specific
belief systems and cultures—“the background of shared interpretations (unconsciously held
intersubjective beliefs) and practices . . . that allow[ ] meaningful conversations and arguments
to occur among individuals and groups.”142 The Security Council does not operate on the basis
of a single “belief system,” but its members (especially the P–5) are in an enduring relationship
135
Happold, supra note 45, at 609 –10.
136
As Koskenniemi puts it, “The Security Council should establish/maintain order . . . . The Assembly should
deal with the acceptability of that order.” Martti Koskenniemi, The Police in the Temple: Order, Justice and the UN:
A Dialectical View, 6 EUR. J. INT’L L. 325, 337–39 (1995) [hereinafter Koskenniemi, Police in Temple]. Or, as dis-
senting judge Sir Gerald Fitzmaurice stated in the Namibia case, “It was to keep the peace, not to change the world
order, that the Security Council was set up.” Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opin-
ion, 1971 ICJ REP. 16, 294, para. 115 ( June 21); see also Martti Koskenniemi, International Legislation Today: Lim-
its and Possibilities, 23 WIS. INT’L L.J. 61 (2005); ROSAND, MILLAR, & IPE, supra note 74, at 7.
137
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Inci-
dent at Lockerbie, Preliminary Objections, 1998 ICJ REP. 115 (Feb. 27); Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Preliminary Objections,
1996 ICJ REP. 595 ( July 11). On nascent attempts by the International Court of Justice to assert a power of judicial
review, see ERICA DE WET, THE CHAPTER VII POWERS OF THE UNITED NATIONS SECURITY COUNCIL (2004);
José E. Alvarez, Judging the Security Council, 90 AJIL 1 (1996); Thomas M. Franck, The “Powers of Appreciation”:
Who Is the Ultimate Guardian of UN Legality? 86 AJIL 519 (1992).
138
The general counsel of the Swedish Mission to the United Nations makes this point. Elin Miller, The Use of
Targeted Sanctions in the Fight Against International Terrorism—What About Human Rights? 97 ASIL PROC. 46
(2003); see also Foot, supra note 78.
139
This complaint was leveled by the ambassador of Qatar when Resolution 1735 was adopted. UN Press Release
SC/8925 (Dec. 22, 2006).
140
Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for
Legitimacy and Cohesion, 17 EUR. J. INT’L L. 881, 910 –13 (2006). Koskenniemi states that the fundamental prob-
lem with the Security Council as dispenser of justice—as opposed to guardian of order—is its lack of accountability
within the UN system. Koskenniemi, Police in Temple, supra note 136, at 346.
141
ALVAREZ, supra note 7, at 201; see also Alvarez, supra note 3, at 887.
142
CRAWFORD, supra note 16, at 59; see also Müller, supra note 14.
and share certain understandings and expectations about the enterprise in which they are
engaged. Years of interaction, especially since the end of the Cold War, have created an “insti-
tutional lifeworld” that makes minimally rational discourse possible.143 Debates are structured
by a normative framework embodied in the UN Charter, supplemented by the Security Coun-
cil’s own decisions and operational activities, as well as by treaty law and various forms of soft
law. These constraints may seem to have weakened since 9/11, but in fact the immediate
response to the terrorist attacks that day signaled a moment of convergence among the P–5 com-
parable to the response to the 1991 Gulf war (embodied in Resolutions 1368 and 1373). And
there is evidence even in the failed deliberations concerning Iraq in early 2003 of a fairly robust
normative framework that structured the debates and shaped decision making before and after
the military action.144
Moreover, the Security Council is not dominated entirely by the P–5. While the nonper-
manent members are not equal participants, they do wield some “discursive” power because
the P–5 must compete for their support. The competition is often crass, as in any lawmaking
body, but the elected ten help set the parameters of the more equal deliberations among the
P–5. Non-Council members can speak in public meetings, which tend to be held more often
now than in the early 1990s, and they are sometimes invited to “private meetings” where offi-
cial records are kept but the media and the public excluded. The Council is also influenced by
organs of international public opinion, engaged representatives of NGOs, and other citizens
who keep a close watch on what is going on in the Security Council. When the Council leg-
islates, members feel compelled to appeal to networks of citizens and entities beyond govern-
mental chambers because the action is likely to succeed only with the cooperation of key non-
governmental actors.
These features suggest the possibility for something like a “public sphere” to coalesce around
the Security Council.145 James Bohman believes international institutions open political space
for “informal networks of association and communication at the transnational level” and, in
so doing, function “as forum and audience for democratization.”146 When the Security Coun-
cil was paralyzed by the Cold War and served mainly as a venue for political one-upmanship
by the two superpowers, weaker states had little influence over what was decided there, let alone
nonstate actors. As the Council becomes more active in counterterrorism, peace building, the
protection of civilians, and other areas that touch on human security, the range of actors who
have a stake in its decisions broadens and agitation for greater influence over those decisions
increases.
143
The term “institutional lifeworld” is Corneliu Bjola’s variation on Habermas’s “common lifeworld.” Corneliu
Bjola, Legitimating the Use of Force in International Politics: A Communicative Action Perspective, 11 EUR. J. INT’L
REL. 266, 279 (2005). For my own argument that members of the Security Council inhabit something approx-
imating a common “lifeworld,” see Johnstone, supra note 6, at 455– 60. See also Thomas Risse, Let’s Argue: Com-
municative Action in World Politics, 54 INT’L ORG. 1, 10 –11 (2000); Ian Johnstone, The Power of Interpretive Com-
munities, in POWER IN GLOBAL GOVERNANCE 185 (Michael Barnett & Robert Duvall eds., 2005).
144
Ian Johnstone, US-UN Relations After Iraq: The End of the World (Order) As We Know It? 15 EUR. J. INT’L
L. 813, 830 –36 (2004).
145
On public sphere theory, see Mitzen, supra note 26, at 404; see also Cohen, supra note 19.
146
Bohman, supra note 14, at 500, 505. In public sphere terms, Bohman states: “As various international insti-
tutions emerge, they . . . can become the focus of a critical public sphere as actors in transnational civil society expand
and maintain their public interaction across various political, cultural and functional boundaries.” Id. at 507; see
also Thompson, supra note 23.
That being said, the post-9/11 period and the particular context of Resolutions 1267, 1373,
and 1540 are not especially conducive to democratic deliberation. The “unipolar moment,”
combined with a real sense of the threat posed by terrorism, created conditions that led the
United States to push hard for Security Council innovation, without a corresponding will to
take the institution seriously when it failed to fall into line. Democratic deliberation and legal
argumentation in a hegemonic world order are a long way from the Habermasian ideal of unco-
erced communication among equals.147 As the ambivalence about and difficulties in imple-
mentation of the three resolutions demonstrate, the unanimous votes do not reflect true inter-
national consensus. However, there is enough evidence of reasoned exchange in and around
the Security Council to suggest that a moderately inclusive deliberative process is not only pos-
sible but also understood to be necessary.
Indeed, more democratic deliberation is a thread that runs through the latest round of
debates on Council reform, though that term is not used. In addition to offering proposals for
expansion of the membership, the High-Level Panel on Threats, Challenges and Change pro-
posed several measures that would increase the “democratic and accountable” nature of the
Council: limiting use of the “undemocratic” veto to “matters where vital interests are genuinely
at stake,” implicitly inviting deliberation on what constitutes a vital interest; more consultation
with those who must implement decisions; “greater civil society engagement in the work of the
Security Council”; and a system of “indicative voting” whereby states would announce their
positions publicly prior to an actual vote.148
The high-level panel’s proposals sparked a lively debate among the UN membership, in
which democracy rhetoric figured prominently. Brazil, Germany, India, and Japan (the G– 4)
submitted a resolution to the General Assembly that would have created six new permanent
seats without veto and four nonpermanent seats.149 To counter allegations that adding six new
great powers would not go far toward diminishing the “undemocratic” and “hereditary” way
Council seats are allocated,150 the G– 4 proposed new working methods that would have the
effect of cultivating more reasoned, impartial discourse in and around the Security Council.
For example, they called for public Council meetings as a general rule, regular consultation
with nonmembers of the Council, making draft resolutions available immediately, and more
timely meetings with contributors to peace operations.151 The strongest opponents of the G– 4
147
CUNNINGHAM, supra note 13, at 176 (citing JÜRGEN HABERMAS, MORAL CONSCIOUSNESS AND COM-
MUNICATIVE ACTION (1990)); Risse, supra note 143, at 10 –11; Cohen, supra note 13, at 74.
148
A More Secure World: Our Shared Responsibility: Report of the High-Level Panel on Threats, Challenges
and Change, UN Doc. A/59/565, paras. 248, 249, 256, 257, 260 (2004).
149
Although no states were mentioned by name, the likely six were the G– 4 plus two of three African countries:
Egypt, Nigeria, and South Africa. The G– 4 proposal, together with other proposals and official statements, is avail-
able at ⬍http://www.reformtheun.org⬎, supra note 1.
150
James Paul & Celine Nahory, Theses Towards a Democratic Reform of the UN Security Council, GLOBAL POL’Y
F., July 13, 2005, at 4.
151
The G– 4 proposals build on reforms of working methods undertaken by the Council in the 1990s and early
2000s. For an analysis of the impact of those reforms, see SECURITY COUNCIL REPORT, SECURITY COUNCIL
TRANSPARENCY, LEGITIMACY AND EFFECTIVENESS: EFFORTS TO REFORM COUNCIL WORKING METHODS
1993–2007 (Special Research Rep. No. 3, Oct. 18, 2007), available at ⬍http://www.securitycouncilreport.org⬎.
Recent official documents on working methods include Note by the President of the Security Council, UN Doc.
S/2006/507 ( July 19, 2006), and a draft resolution submitted to the General Assembly by the “Small Five” (Costa
Rica, Jordan, Liechtenstein, Singapore, and Switzerland), UN Doc. A/60/L.49 (Mar. 17, 2006). For a good sum-
mary of the reforms and the rationale for them, see EDWARD C. LUCK, UN SECURITY COUNCIL: PRACTICE AND
PROMISE 122–24 (2006).
proposal, the so-called Uniting for Consensus group, countered that eleven great powers with
permanent seats would be inclined to consult even less broadly than the current P–5. The new
P–11 might calculate that they could accomplish most of their goals by striking deals with each
other, without feeling the need to appeal to the larger membership, making the Council less
rather than more “democratic.”152 Thus, many protagonists in the recent reform debates
seem to believe that making the Council a better venue for deliberation would enhance its
legitimacy.
Bringing down the Deliberative Deficit
Various groups have come up with thoughtful recommendations to improve the Council’s
counterterrorism efforts.153 My purpose is not to produce a similar list but, rather, to identify
measures that follow from the theoretical framework and assessment of the regimes in parts
I–III of this article. I present them under three headings: inclusive consultations, public jus-
tification, and independent review. The overarching goal of all three is to promote more rea-
soned and impartial discourse to go along with the hard bargaining and voting that charac-
terizes the work of the Security Council. All of this must occur within limits: the Council can
tolerate only so much consultation, publicity, and review before it becomes hopelessly inef-
ficient. However, the conclusion I draw from the counterterrorism regimes is that the Council
has already gone some steps down the road to deliberative democracy, and it can go further
without unduly sacrificing efficiency. Following this course becomes especially important if
the Council continues to act like a legislature and a court, but it applies to any action that
requires broad cooperation from state and nonstate actors.
Inclusive consultations. The legitimacy that comes with broader participation must be bal-
anced against the need for the Council to function as an exclusive body that can take decisions
on behalf of the UN membership as a whole. Deliberative principles suggest that, at a mini-
mum, the Council ought to consult those most directly affected by its actions— explaining the
reasons for its proposed or past decisions and seeking feedback. Even if agreement does not
result from these interactions, they at least give interested actors a sense that their views have
been heard and considered. Inclusive consultations are undertaken informally by the Council
president and resolution sponsors engaging with key non-Council members before far-reach-
ing resolutions like 1267, 1373, and 1540 are adopted (though Resolution 1373 demonstrates
that such consultations are not always necessary). To complement these selective consultations
by the Council and its members, open meetings at critical junctures can permit self-selected
states to express their views. More systematic engagement with the wider membership could
be achieved through a joint Security Council–General Assembly consultation committee. The
adoption by the General Assembly of a global counterterrorism strategy indicates that wider
consultation within that body would not necessarily lead to paralysis and might even
strengthen support for the Security Council’s counterterrorism efforts.154 The committee
152
Statement of Ambassador Alan Rock to the UN General Assembly in introducing draft Resolution L.68, UN
Doc. A/59/PV.115, at 1 ( July 26, 2005).
153
E.g., ROSAND, MILLAR, & IPE, supra note 74.
154
GA Res. 60/288 (Sept. 8, 2006). The strategy is up for review in the fall of 2008, making this a good time
for the Security Council’s counterterrorism efforts to be better integrated into it, so as to broaden the political con-
stituencies for the Council. ROSAND, MILLAR, & IPE, supra note 74, at 18. The Council took a step in that direction
should include the states most directly affected by the proposed Council action, and it could
receive written submissions from other states and representatives of regional organizations and
intergovernmental bodies like the Financial Action Task Force, as well as nongovernmental
organizations and business associations.
More inclusive deliberations in the implementation of resolutions can be achieved by includ-
ing non-Council members on committees like the CTC and the 1267 Committee. In addition,
the chairs of these committees could make themselves available informally to all interested
states, employing the sort of “open door” policy Ambassador Greenstock tried to promote.
Greater informal engagement with states could be carried out by expert groups through visits
to capitals and regional meetings with local officials.155 These committees and expert groups
should also be open to nongovernmental input. The proposals submitted by the Watson Insti-
tute, which informed the debate on the 1267 regime, show how nongovernmental participa-
tion can be put to good use without unduly sacrificing efficiency.156
Deliberative principles are also served by cooperation between the CTC, the 1540 Com-
mittee, and the 1267 Committee.157 Coordination by them reinforces their function as a focal
point for well-informed interaction among the constellation of diplomats, experts, UN Sec-
retariat officials, and the international and regional organizations they consult (including the
Financial Action Task Force, the European Union, the Organization of American States, the
Commonwealth of Independent States, the Association of Southeast Asian Nations, the Office
of the High Commissioner for Human Rights, the IAEA, and the OPCW).158 There is room
for improvement here, including through joint engagement with regional organizations out-
side Europe and active participation of these groups in the UN Counter-Terrorism Implemen-
tation Task Force, composed of twenty-four entities across the UN system.159
Finally, the notion of inclusive consultations is loosely related to the due process concerns
associated with the 1267 regime. Deliberative principles—and procedural fairness—suggest
that individuals who are the direct targets of Security Council sanctions ought to be “heard”
in some way. Hearings before the listing decision is made are not possible, and the Security
Council and its committees cannot be expected to function like an administrative agency, let
alone a criminal court.160 But the trade-off between due process and Council effectiveness is
by welcoming the adoption of the UN Global Counter-Terrorism Strategy and emphasizing the importance of the
CTED’s readiness to participate actively in the Counter-Terrorism Implementation Task Force. SC Res. 1805,
supra note 83, pmbl., op. para. 11.
155
ROSAND, MILLAR, & IPE, supra note 74, at 12, 19.
156
See supra note 111.
157
SC Res. 1566 (Oct. 8, 2004); UN Doc. S/PRST/2004/37 (Oct. 19, 2004); UN Doc. S/PRST/2005/16 (Apr.
25, 2005). The Mitchell-Gingrich report on UN reform suggested exploring the possibility of combining the three
committees, or at least mandating closer cooperation by them. UNITED STATES INSTITUTE OF PEACE, AMERICAN
INTERESTS AND UN REFORM: REPORT OF THE TASK FORCE ON THE UNITED NATIONS 78 (2005), available
at ⬍http://www.usip.org/un/report/usip_un_report.pdf⬎. The Security Council has not endorsed this proposal
but continues to press for greater cooperation by the committees, most recently in Resolution 1805, supra note 83,
para. 10.
158
One hundred and ten organizations attended the first in a series of meetings sponsored by the CTC in October
2003. CORTRIGHT, LOPEZ, MILLAR, & GERBER, supra note 45, at 2021. The fifth such meeting was held in Octo-
ber 2007 in Nairobi. On the relationships between the 1540 Committee and the existing nuclear, chemical, and
biological weapons regimes, see GLOBAL NON-PROLIFERATION, supra note 61, chs. 5–7.
159
ROSAND, MILLAR, & IPE, supra note 74, at 13, 18.
160
FASSBENDER, supra note 111, pt. C, para. 11. The Fassbender, Biersteker and Eckert, and Cameron studies
all analyze and set out various due process rights recognized in international law.
not zero-sum: inattention to procedural fairness can undermine targeted sanctions, through a
combination of foot-dragging by member states and court challenges by individuals and
NGOs.161 In addition to the reforms already in place, most notably the appointment of a focal
point for delisting, petitions from individuals could be screened by the focal point and then
placed on the agenda of the committee directly, without the need for reliance on a member state
to take up the cause.162 Moreover, the right to be heard could be guaranteed through written
submissions, by either the targeted individual, a relative, a lawyer, or some other authorized
representative.
Public justification. Public justification is another way of cultivating reasoned, impartial dis-
course. The requirement that policy decisions be backed by good arguments made in public
settings is a tenet of both deliberative democracy and administrative law.163 Buchanan and
Keohane argue that “if institutional agents persist in failing to provide public justifications for
their policies and withhold other information critical to the evaluation of institutional perfor-
mance, we have good reason to believe the institution” is not acting legitimately.164 The notion
of indicative voting proposed by the high-level panel is an element of this. The rationale for
the proposal is that if governments are required to announce their positions publicly prior to
an actual vote, they may hesitate to cast a veto unless the reasons for it are likely to pass muster
in the court of international public opinion.165
Moreover, public justification is a way for nonstate actors to influence decision making with-
out participating directly in the work of the Council and its committees. When representatives
of transnational civil society (NGOs, the media, business groups) are listening attentively,
speakers feel pressure to articulate their positions and justify their actions in terms affected con-
stituencies can accept in principle. The more transparent and public the processes are, the
greater is this “audience effect.” Thus, more open Council meetings would help, as would the
wider dissemination of documents, evidence to support decisions, and reasoning to back up
the decisions. Complete transparency, of course, can inhibit the work of bodies whose delib-
erations on sensitive matters require members to speak candidly with one another. But some
publicity and the requirement of reason giving can shape those more confidential deliberations,
by imposing an expectation of impartial discourse rather than self-serving trade-offs. Even if
the discourse is mere lip service for public consumption, the fact that it occurs at all—and to
the extent that the audience is persuaded by it— helps to legitimate decisions.
161
BIERSTEKER & ECKERT, supra note 111, Executive Summary.
162
Id. at 35. There is a precedent: “in exceptional cases,” the Liberia sanctions committee allows delisting requests
by the individual concerned. By December 2007, the committee had removed one person from the Liberian travel
ban and asset freeze lists on the basis of a delisting request received through the focal point. UN Doc. S/2007/776,
annex, para. 25 (Dec. 31, 2007). In 2005 and 2006, a total of five delisting requests were submitted directly to the
secretariat of the committee by individuals. None were removed from the lists. UN Doc. S/2006/104, annex, para.
20 (Dec. 28, 2006).
163
On administrative law principles, see Kingsbury, Krisch, & Stewart, supra note 111, at 28 –29. Buchanan and
Keohane state: “To help ensure this dimension of broad transparency, it may be worthwhile to draw on, while adapt-
ing, the notice and comment procedures of administrative law at the domestic level.” Buchanan & Keohane, supra
note 7, at 428.
164
Buchanan & Keohane, supra note 7, at 429.
165
The same logic applies to the proposal that written justifications must be provided when a veto is cast. See
Report of the Open-Ended Working Group on the Question of Equitable Representation on and Increase in the
Membership of the Security Council, UN GAOR, 54th Sess., Supp. No. 47, UN Doc. A/54/47 (2000), especially
Annexes IV–VII.
The requirement of public justification also has the effect of giving the interpretive com-
munity the opportunity to weigh in on the debates. At one level, this may be a largely tech-
nocratic exercise, in which international lawyers—through a diffuse normative process—pass
legal judgment on claims made. Insofar as the judgment is unified, it can affect the participants
in the debates— or at least those who feel they have something to gain by appearing to be in
compliance with international law as generally understood. But the justificatory discourse in
and around the Security Council is rarely restricted to legal claims, let alone to lawyers. Often
the discourse aims at stretching the law—not at abrogating it, but at giving old concepts new
meaning in light of changing circumstances. Here, the legal interpretive community is likely
to be penetrated by other voices (or audiences), representing values and perspectives that reach
beyond conventional legal understandings. Those may come from powerful states, seeking to
legitimate new norms that better serve their interests. Or they may come from groups of weaker
states, seeking to use the power of numbers to introduce new conceptions into the legal dis-
course. They may even come from nongovernmental organizations, seeking against all odds to
influence the Security Council’s decision making.166
The 1267 Committee has acknowledged the importance of public justification by requiring
states to provide a “statement of case describing the basis of the proposal” to list a particular
individual or entity. Resolution 1735 is quite demanding in this regard: states must provide
“as much detail as possible on the basis(es) for the listing” of individuals, including evidentiary
information to support the determination of an association with the Taliban, Al Qaeda, or
Osama bin Laden.167 The Council also requests that states notify individuals, to the extent pos-
sible, of the case against them and identify which parts of the statement of the case can be pub-
licly released. The committee could build on these steps by doing more to make its own rea-
soning public. A starting point would be the adoption of more detailed criteria for the making
of decisions, with explicit standards on what constitutes an adequate statement of the case, as
well as what sort of evidence can be kept confidential and what should be released publicly. A
further step would be to require the committee to provide written reasons for listing and delist-
ing decisions. Member states recommend listing or delisting, but it is the committee that
decides and so the committee as a whole should be required to explain the decision.
Independent review. Accountability is a fundamental democratic principle: decision makers
ought to be held to a set of standards for the decisions they make and ought to pay a price when
they fail to meet those standards.168 In democratic societies, politicians are held accountable
to the citizenry through periodic elections (and, on occasion, judicial processes). The identity
of the “accountability holders” at the international level is much less clear and the manner of
holding decision makers accountable is less certain—indeed, this is a central feature of the dem-
ocratic deficit critique. The five permanent members of the Security Council are never held
accountable through elections. In theory the performance of the nonpermanent members may
affect their chances of reelection, but in practice this form of accountability is weak.
The Council occasionally reviews its own decisions and those of its subsidiary organs—for
example, when the mandates of the CTED, the 1540 Committee, and the 1267 monitoring
166
The organization Security Council Report, which publishes a monthly forecast and other documents that
monitor the Council, is a good illustration of how an NGO can influence the Council. See supra note 115.
167
168
Buchanan & Keohane, supra note 7, at 426; Ruth W. Grant & Robert O. Keohane, Accountability and Abuses
of Power in World Politics, 99 AM. POL. SCI. REV. 1 (2005).
team are up for renewal. Judicial review by the International Court of Justice is not likely, but the
1267 Committee’s decisions have been challenged at least fifteen times in regional and national
courts.169 So far, no court has declared the Council to have acted ultra vires and what the legal or
practical impact of such a declaration would be is not clear, but the prospect of embarrassing lit-
igation does factor into Council deliberations (expressly or tacitly), giving some members pause
before they act in a way likely to be seen as violating fundamental rights.170
Independent review, however, need not occur only in nonjudicial bodies. A range of review
mechanisms has been proposed for listing decisions by the 1267 and other committees. For
example, the focal point in the Secretariat or a separate panel could be given independent
review functions—as a sort of ombudsman.171 If an ombudsman were established, confiden-
tiality issues would surely arise, as states would be reluctant to provide such an office with sen-
sitive information. But if evidentiary criteria for listing and delisting are adopted and provisions
for confidentiality are put in place (i.e., only the “ombudsman” sees the confidential informa-
tion), then independent review along these lines is conceivable. The Council of Europe has
engaged in a form of nonjudicial review by questioning the procedures adopted by the 1267
Committee. Other international and regional human rights bodies could do the same. The
consultation committee described above could serve as a sort of shadow Council, analogous to
a loyal opposition in parliamentary systems— keeping watch on and critiquing Council action
that seemed out of line with the interests and will of the broader membership.172 A much more
ambitious step would be to create a “people’s assembly” in the United Nations, which would
serve a review function even if it only had the power to recommend.173
Ultimately, these mechanisms have an impact on the Security Council by extracting repu-
tational costs. If the interpretive community of governmental and nongovernmental actors
casts a negative judgment, the credibility of the Security Council will be undermined and
those who must carry out the decisions will be less likely to comply. The felt need to avoid this
adverse judgment fuels the decision-making process, tipping it in the direction of more prin-
cipled debate, where the voices of those with the most material and voting power are the loud-
est, but the playing field is slightly more level than in environments less conducive to delib-
eration.174
169
See Fourth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc. S/2006/154,
annex, at 45 (Mar. 10, 2006); Fifth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc.
S/2006/750, Annex III, at 47 (Sept. 20, 2006); Sixth Report of the Analytical Support and Sanctions Monitoring
Team, UN Doc. S/2007/132, Annex I, at 38 (Mar. 8, 2007); Seventh Monitoring Team Report, supra note 121,
Annex I, at 40; see also Gutherie, supra note 111. On the prospects for judicial review by the ICJ, see supra
note 137.
170
Peter Gutherie argues that the best way of protecting individual rights from arbitrary Council action is by
strengthening state mechanisms for review through greater intergovernmental and interjudicial cooperation. Guth-
erie, supra note 111, at 535– 40.
171
ROSAND, MILLAR, & IPE, supra note 74, at 15; Targeted Sanctions, supra note 115.
172
A conference on creating a more democratic United Nations suggested the creation of a “standing committee
of the General Assembly of 15 rotating, geographically representative members, [who are] not at the same time
members of the Security Council, to report to the Assembly on the adequacy of efforts made by the Council.” Sec-
ond International Conference on a More Democratic United Nations (CAMDUN 2) (Sept. 17–19, 1991), quoted
in THOMAS D. ZWEIFEL, INTERNATIONAL ORGANIZATIONS AND DEMOCRACY 82 (2005).
173
FRANCK, FAIRNESS, supra note 7, at 483– 85; Richard Falk & Andrew Strauss, On the Creation of a Global
Peoples Assembly: Legitimacy and the Power of Popular Sovereignty, 36 STAN. J. INT’L L. 191 (2000).
174
Gutmann and Thompson make this point in response to criticism that deliberation at the national level is
elitist, in that it disadvantages certain groups and points of view. GUTMANN & THOMPSON, supra note 5, at 133.
V. CONCLUSION
In creating the regimes under Resolutions 1267, 1373, and 1540, the Security Council went
well beyond its traditional crisis management role. As an executive body with limited mem-
bership, the Council was given extraordinary powers at the end of World War II to maintain
international peace and security, not to make, implement, and enforce global law. Moreover,
all three regimes were U.S. initiatives at a time when suspicion of U.S. dominance was rising.
The tragedy of 9/11 created the conditions that made it possible for the Security Council to
innovate in this way, but also heightened fears that an “imperial Security Council” was oper-
ating under the thumb of the United States.
Despite these concerns, few governments questioned the Council’s legal competence to act
in this manner and most value the Council’s leadership in countering terrorism and preventing
weapons of mass destruction from falling into the hands of nonstate actors. For some, this role
is seen as a way of keeping the United States engaged in the Security Council rather than acting
unilaterally or through ad hoc coalitions. Less cynically, many states see global collaborative law
enforcement as at least as important in the struggle against terrorism as military action. Thus,
it is not the fact of the Council’s “legislating” and “adjudicating” that has raised legitimacy con-
cerns so much as how it has done so. The decision-making process matters because these sorts
of resolutions cannot be implemented by a few states acting alone. While it may be possible to
act coercively against a handful of holdouts, broad compliance cannot be compelled if the
majority of UN members views the Security Council as having acted illegitimately.
Normally, when the legitimacy of international organizations is discussed, the focus is on
membership and voting rules, with the purported aim of bringing down the democratic deficit.
In this article, I have sought to shift attention away from that measure of legitimacy to the qual-
ity of deliberations. Doing so invites consideration of a range of reforms designed to cultivate
more reasoned argumentation, serving both democratic and legal values. That principled argu-
mentation occurs at all in the Council has resulted in part from the coalescence there of an inter-
pretive community, which sets the parameters of debate and serves as the gatekeeper of what
counts as a good argument. If deliberative principles continue to inform changes in working
methods, the influence of the interpretive community—as participant in and audience for
Council debates—will rise. This will not eliminate the significance of material power and coer-
cion, of course: the Security Council will never be an ideal deliberative setting, nor should that
be the goal for a body whose effectiveness often depends on the ability of powerful states to act
decisively. But if political struggles are conducted more through argumentation (alongside vot-
ing and hard bargaining), differences in material power will count for less. In any case, the pow-
erful as well as the weak have an interest in better deliberation, as the evolution of the 1267,
1373, and 1540 regimes suggests. Further reforms to bring down the deliberative deficit are
possible precisely because the vast majority of UN members has a stake in enhancing the effec-
tiveness and therefore legitimacy of the Council.
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Legislation and Adjudication in The Un Security Council

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LEGISLATION AND ADJUDICATION IN THE UN SECURITY

COUNCIL: BRINGING DOWN THE DELIBERATIVE DEFICIT

I. LEGITIMATION THROUGH DELIBERATION

justification takes place in the institutions of government and intergovernmental bodies, as

Democratic Deliberation and Legal Argumentation

II. THE SECURITY COUNCIL AS QUASI LEGISLATURE

Financing and Other Forms of Support for Terrorism

The Spread of Weapons of Mass Destruction to Nonstate Actors

Negotiation and implementation of Resolution 1540. Resolution 1540 aims at preventing

III. THE SECURITY COUNCIL AS QUASI-JUDICIAL BODY

Targeted Sanctions Regimes: Resolution 1267

IV. THE DELIBERATIVE DEFICIT

Should the Council Legislate and Adjudicate?

Bringing down the Deliberative Deficit

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