Security Council Resolution 1373

In one line

Resolution 1373 decides that all States shall prevent and suppress the financing of terrorist acts, criminalise the provision or collection of funds, freeze assets without delay, refrain from support, deny safe haven, bring perpetrators to justice, assist one another and control borders, and it establishes the Counter-Terrorism Committee to monitor implementation.

Why it is unusual

The Security Council ordinarily decides a situation. It determines under article 39 that a particular set of facts threatens the peace and takes measures directed at it.

Resolution 1373 does something else. It states obligations of general and indefinite application, addressed to all States, with no expiry, on a subject rather than a situation. That is legislation.

The legal basis and the objection. Article 25 obliges Members to accept and carry out the Council's decisions, and article 39 gives the Council the determination without criteria. The objection is that a body of fifteen, five of them permanent, is making law of general application for a hundred and ninety-three, without their consent, on a subject a treaty negotiation had failed to agree.

The Council did it again in resolution 1540 of 2004 on weapons of mass destruction and non-State actors, which confirms that 1373 was not an isolated act.

Paragraph 1: the financial obligations

Decides that all States shall:

(a) prevent and suppress the financing of terrorist acts;

(b) criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;

Paragraph 1(b) is article 2(1) of the financing convention, made binding on every State two years before that Convention entered into force, and without its careful definition of the object of the financing. [The Financing Convention, and Article 2(1)(b)].

(c) freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities.

(d) prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of such persons and entities.

Note what paragraph 1(c) requires: freezing without delay, of the assets of persons who commit, attempt, participate in or facilitate, with no requirement of charge, conviction or judicial determination of any kind. That is the provision from which the listing problem grows. [Listing, Sanctions and the Right to a Remedy].