Sidelining Subsidiarity: United Nations Security Council “Legislation” and Its Infra-Law

Abstract

I INTRODUCTION The principle of subsidiarity has a logic of legitimacy that strives to allocate responsibility at the national level in order to bring decisionmaking closer to those affected by it. Legitimacy is not the only reason for allocating competence to the national level. In some cases, such as the United Nations Security Council's (UNSC) schemes to prevent terrorist financing and the proliferation of chemical, biological, and nuclear (CBN) weapons, decisions about where to allocate responsibility are made for reasons of effectiveness. Treating these security threats as weakest-link goods, (1) the UNSC has aimed to decenter the administration of collective security away from itself by harnessing individual nation-states so as to create a completely regulated international sphere in which terrorists and proliferators are starved of means and opportunities to perpetrate attacks. In pursuit of this goal, the UNSC has sought to create shared frameworks for action by carving out a new quasi-legislative power. In an attempt to quell criticism of this move, the UNSC reassured states that they will retain national control over the implementation of their obligations, thereby satisfying the principle of subsidiarity. In effect, however, subsidiarity has been sidelined by the UNSC's strategy of implementation. The UNSC's strategy employs disciplinary power to generate an infra-law at the level of technical detail and to normalize states according to it. (2) Discipline shares the UNSC's logic of effectiveness and subsidiarity's preference for national responsibility, but it operates below the surface of the formal law and out of the reach of subsidiarity. It offers a notion of national responsibility shorn of national control. The argument proceeds as follows. Subsidiarity's logic of legitimacy is briefly considered in part II, which concentrates on the logic of effectiveness underlying the UNSC's schemes. The disparity between the open-textured norms on the face of the UNSC's quasi-legislative resolutions and the disciplinary work of its subsidiary bodies is the focus of part III. The Financial Action Task Force's (FATF) recommendations on money laundering and terrorist financing are shown to constitute disciplinary infra-law of the legislative resolutions in part IV, which also offers an illustration of discipline's negative effect on national control. A. Logics of Effectiveness and Legitimacy Whereas the principle of subsidiarity has a logic of legitimacy, the UNSC's approach to the prevention of terrorist financing and CBN proliferation has a logic of effectiveness. These logics are incompatible. The UNSC's reasoning is totalizing; it treats the international realm as a bounded space that transnational threats cannot escape as they can the boundaries of nation-states. If this bounded space can be controlled, then, the logic continues, it may be possible to deprive terrorists and proliferators of the conditions they need to succeed, such as financial support, manpower, open borders, lax import-export controls, and corrupt or incompetent criminal-justice systems. The Council has framed the problem of preventing these threats as a weakest link good that makes every gap, deficiency, and malpractice a potential, however remote, impediment to achieving a totally regulated space and thereby preventing international terrorism and CBN proliferation. (3) Achieving this in practice is no easy task. The UNSC cannot regulate the international realm on its own, as it is dependent on UN member states to carry out its decisions. (4) Given this setup and the UNSC's unrepresentative post-World War II composition, it has adopted a strategy of using UN member states as nodes in a decentralized scheme of administering the entire international-- not global--space. Total regulation of aspects of this space is needed to deprive terrorists and proliferators of means of operation and opportunities to operate. …