Counter-terrorism and human rights: the emergence of a rule of customary int'l law from U.N. resolutions.

In response to the global threat of international terrorism and the counterterrorism efforts by national governments, the United Nations General Assembly (G.A.) and the United Nations Security Council (S.C.) have adopted various resolutions and conventions. (1) The effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism. However, the absence of such agreement to date has, inter alia, thwarted efforts aimed at adopting a comprehensive international, legally-binding instrument regarding international terrorism. In spite of its urgency and the critical importance of terrorism to contemporary international relations, international terrorism has proven not easily amenable to satisfactory or exclusive regulation by treaty. Notwithstanding the definitional dilemma, the United Nations' resolutions regarding counter-terrorism have insisted on the necessity to protect human rights in the context of counter-terrorism. (2)

Although the United Nations currently has no agreed-upon definition of terrorism, this article will argue that it is nonetheless possible to hold States engaged in counter-terrorism efforts liable for violations of international human rights law even when they are not signatories to relevant international treaties. The basis for such an obligation, it will be advocated, derives from various resolutions of the United Nations and decisions of national courts which represent a step toward the codification of a general obligation to protect human rights in the context of counter-terrorism as an emerging rule of customary international law. The substance of such a rule would provide that no State can legally adopt strategies aimed at combating international terrorism if those strategies simultaneously derogate from established international human rights norms. The practical utility of this discussion would be to put States on notice that counterterrorism efforts oblivious of international human rights standards may be in breach of international law, regardless of the non-existence of an international treaty regime regulating State practices in this area. In that regard, States could be legally liable both domestically and internationally.

As will be discussed, a norm of customary international law depends on the existence of State practices and the engagement in those practices with a sense of legal obligation (opinio juris). (3) This article will propose that the relevant international conventions and U.N. General Assembly and U.N. Security Council paper-trail (4) regarding protection of human rights while combating international terrorism, as well as on national and international decisions, establishes a sufficient documentary record of State practice. Similarly, the nature and language of those resolutions, as well as the respect that national governments have accorded the decisions of their own national courts in regard to the need to protect human rights while combating international terrorism, would support the case for the existence of the requisite opinio juris.

The argument that will be developed is premised not only on the recent cases of the International Court of Justice (I.C.J.), but also on the more foundational I.C.J. cases establishing the circumstances under which codification of international norms takes place by reference to resolutions of instruments of the United Nations. In particular, the argument is predicated on the North Sea/Continental Shelf Case's (5) discussion of the codification of customary law from conventional documents, as well as the I.C.J. decisions in the Case Concerning Military and Par-Military Activities in and Against Nicaragua, (6) Case Concerning Armed Activities on the Territory of Congo (Congo v. Uganda), (7) the Construction of A Wall Advisory Opinion, (8) and the Threat or Use of Nuclear Weapons Advisory Opinion (9) in their treatment of the legal effect of U.N. resolutions. Additionally, the article will examine the decisions of several national courts that have ruled anti-terrorism legislations and practices as being overreaching to the extent these derogated from human rights standards. Specifically, courts in the United Kingdom, the United States, and India exemplify this trend, with some of these tribunals having derived their norms of international law by reference to the resolutions of international organizations.

This article is divided into four sections. Section I will discuss how a rule of customary international law generally develops, including discussions of development from conventional sources and the use of United Nations resolutions for finding a rule of customary international law generally. Section II will expound the treatment of and reliance upon the United Nations resolutions as a source of law by the International Court of Justice, in order to facilitate our discussion of an emerging rule of customary international law from resolutions. Section III will consider the limitations for using resolutions as binding statements of opinio juris. Finally, section IV will analyze the resolutions of both the General Assembly and Security Council that are particularly relevant to complying with human rights while combating terrorism and advocate that such resolutions have established the necessary opinio juris and, combined with the decisions of the high courts of influential countries which abide by the rule, confirms a rule of customary international law that counter-terrorism measures must conform to human rights.

I. DEVELOPMENT OF A RULE OF CUSTOMARY INTERNATIONAL LAW (C.I.L.)

As this article addresses the emergence of a norm of customary international law from resolutions, a fundamental explanation of the typical development of customary international law is in order. The list of sources of international law under Article 38 of the Statute of the International Court of Justice (10) includes what is labeled as "international custom," also known as customary international law. (11) Customary international law, which has equal authority with conventional laws, such as treaty law, (12) is often relied upon for its important role in providing a rule of law in areas of international law in which no widely applicable conventional rule exists.