The practice of the United Nations in combating terrorism from 1946-2008 : questions of legality and legitimacy

Abstract

Over the last thirty years, the UN has shown an unmistakable interest in combating terrorism. In this study, the practice of the General Assembly and the Security Council in combating terrorism is analysed, in order to answer the question whether these organs, taking into account their powers and the constitutional and public international law limitations thereon, best contribute to a universal counter-terrorism policy? In order to assess whether both organs are in the best way possible contributing to a universal counter-terrorism policy, the analyses of the adopted counter-terrorism measures of both the General Assembly and the Security Council are focused on the legality and the legitimacy of these measures. Whereas clearly the measures adopted should fall within the powers of the organs (legality), testing the legitimacy of these measures adds another layer of information with regard to the quality of these measures. The quality of these measures helps predict the perceived legitimacy of each measure, and henceforth its potential formal effectiveness. The assumption is that member states are more willing to implement measures that they perceive to be legitimate; hence the connection between legitimacy and effectiveness. The analysis of the legitimacy of the counter-terrorism measures is based on the theory of Thomas Franck, who claims that a rule’s legitimacy provides information on the pull to compliance of the measure. He therefore points to four indicators that provide information on the rule’s degree of legitimacy: determinacy, pedigree or symbolic validation, coherence and adherence. Especially considering the new legislative and adjudicative functions adopted by the Security Council in the combat against terrorism, the questions relating to the resolutions’ legality and legitimacy are very important in light of the overall purpose of effectively contributing to the fight against terrorism, and more in general to the credibility of the organisation. Apart from a critical analysis of the legality and the legitimacy of more than 130 resolutions adopted by the General Assembly and the Security Council, this study offers an essential insight in the way the degree of legitimacy of certain measures can be improved, and the overall effectiveness of the counter-terrorism policy of the UN can be strengthened.