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Legal sources and the United Nations Counter-Terrorism Strategy

 

Having introduced the UN's CT Strategy, the discussion now moves to considering the different types of binding and non-binding legal sources that underpin the Strategy, as well as the 19 counter terrorism instruments and Security Council resolutions, which form the core of the UN's institutional response against terrorism.

There are two categories of legal sources. One is 'material' sources, which is the instrument or document in which obligations are found, for example treaties and judicial decisions. The other type is a 'formal' source, which relates to an instrument's authority, that is the legal weight and effect of particular rules. Both types of sources underpin the CT Strategy. Formal sources are of especial interest throughout this University Module Series since they are relevant regarding the extent to which States comply with or are in breach of their rule of law obligations in their national, regional and global efforts to effectively counter terrorism.

Formally binding legal sources

Under article 38(1) of the 1945 Statute of the International Court of Justice International Court of Justice, there are two principal sources of binding legal sources to consider here: international treaties (article 38(1)(a)) and customary international law (article 38(1)(b)). Additionally, national legislation is binding within the context of the States concerned, and the jurisprudence of courts and tribunals is binding on those parties involved in particular proceedings. Though these latter two sources are not considered in any detail here, examples of both of them permeate this University Module Series, including as case studies.

International treaties

The international treaties of especial relevance to international counter-terrorism efforts are the 1945 Charter of the United Nations, the 19 United Nations (sectoral) instruments against terrorism (considered in this section), and other key instruments governing international human rights law, international refugee law and international humanitarian law, which the UN has made clear are an integralpart of any effective counter terrorism response by its Member States.

Charter of the United Nations

With respect to the Charter of the United Nations (Treaty Series, vol. 1, no. XVI), as its article 1 purposes state, its primary objectives include the maintenance of international peace and security (Article 1(1)). This is important since, as reaffirmed by the Security Council in various resolutions, terrorist activities are often regarded as posing a threat not only to targeted countries, but also regional and global security more generally (UNSC Resolution 1373 (2001); UNSC Resolution 1540 (2004)). It is in the interest of all States that the related threats are countered in a manner that does not undermine wider international peace and security. Since terrorist threats are generally transnational in nature, the Organization's underpinning principles articulated in article 2 are significant too for governing related counter-terrorism efforts. In particular, these principles are that: Charter obligations will be fulfilled by Member States in good faith (article 2(2)); the resolution of "international disputes [should be] by peaceful means in such a manner that international peace and security, and justice, are not endangered" (article 2(3)); a presumption exists against "the threat or use of military force against the integrity or political independence of any state" (article 2(4)), subject to the exception of self-defence articulated in article 51; and the principle of non-intervention by the United Nations "in matters which are essentially within the domestic jurisdiction of any state" (article 2(7)).

Consistent with these principles, including the doctrine of State sovereignty, a State should not use military force against non-State terrorist actors located in the territory of another sovereign State without its permission, thereby violating its territorial integrity, unless certain, limited, exceptions permitted under international law apply. For example, where a State is unable or unwilling to prevent such actors from planning and perpetrating terrorist attacks against third party States. Certainly, there has been some increased resort to military measures in such circumstances by States in the post 9/11 era. (See e.g. Dempsey, 2006; Newman, 2007).

While such categorization of a State is not determinative per se regarding the lawfulness of any military force employed, it may be a relevant factor regarding the perceived necessity of using such force in the absence of any alternative means. This is despite the fact that terrorist groups can thrive in and operate out of any State, 'failed' or otherwise.

Notable too is article 1(3) which seeks to achieve international cooperation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion", which is reflected within other Charter provisions, notably article 55 (with accompanying article 56 under which Member States commit to taking action, both individually and collectively, to further article 55 purposes). These principles permeate other United Nations instruments dealing with counter-terrorism issues, including General Assembly and Security Council resolutions, as well as the international anti-terrorism conventions considered next.

United Nations (sectoral) conventions against terrorism

In addition to the Charter, 19 dedicated instruments against terrorism have been developed within the UN over the past five decades. These have largely evolved as responses to specific terrorist incidents or threats and cover offences related to civil aviation (i.e. hijacking, aviation sabotage, use of an aircraft as a weapon); crimes against internationally protected persons (i.e. the kidnapping of diplomats); hostage taking; illicit use or handling of nuclear materials; acts against the safety of maritime navigation and fixed platforms located on the continental shelf; terrorist bombings; financing of terrorism; and acts involving the criminal use or handling of chemical, biological, radiological or nuclear materials or weapons.

In a nutshell, these instruments do not define terrorism rather create obligations on State parties to: criminalize the offences in question under domestic law; exercise jurisdiction over offenders under prescribed conditions; establish the obligation to extradite or prosecute; and set up mechanisms for enhancing international cooperation in criminal matters. They will be discussed in more detail in Module 4.

Treaty Reservations

An important principle of treaty making, encapsulated in the 1969 Vienna Convention on the Law of Treaties (Treaty Series, vol. 1155, p. 331) is that "[a] treaty does not create either obligations or rights for a third State without its consent" as encapsulated in article 34. On occasion, the situation can arise whereby a State is willing to agree to be bound by most but not all of the obligations created by an international treaty, including the universal conventions against terrorism. Since it is in the interests of the international community, including to facilitate international counter-terrorism cooperation, for States to be parties to these important legal instruments, a mechanism exists - the entering of a reservation - whereby a State can consent to be bound by most but not all of a treaty's obligations. Under article 2(d) of the Vienna Convention, a "'reservation' is defined as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State".

Not all reservations entered by States are permissible though. They are subject to certain restrictions provided for by article 19 which provides that:

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

(c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

With respect to the universal instruments against terrorism specifically, a number of States have relied upon such reservations. For example, a number of States - such as Algeria, China, India, Mexico and so forth - entered reservations to the 1979 International Convention against the Taking of Hostages (Treaty Series, vol. 1316, p. 205) resisting the compulsory adjudication by the International Court of Justice on the interpretation of implementing provisions between Member States.

Customary international law

Another source of binding legal obligation recognized in the 1945 Statute of the International Court of Justice is customary international law (article 38(1)(b)). Customary international law is an important source of law. It consists of:

[R]ules of law derived from the generally consistent conduct of States, acting out of the belief that the law required them to act that way. It results from a general and consistent practice of States followed out of a sense of legal obligation, so much so that it becomes custom. Customary international law must be derived from a clear consensus among States as exhibited both by widespread conduct and a discernible sense of obligation. (OSCE, ODIHR, 2007, p. 55).

Therefore, in a human rights law context, States parties to a particular treaty will not only have obligations under that treaty, but also in relation to those rights and freedoms that have become part of customary international law. Significantly, generally these obligations will bind those States which are not parties to conventions in which such customary rights and obligations are articulated since they bind all States, whether or not they are party to a particular treaty. For example, many of the rights and obligations set out in the Universal Declaration of Human Rights 1948 (United Nations, General Assembly, 1948)) and Geneva Conventions 1949 (Treaty Series , vol.75, p.31, p.85, p.135, p.287), as well as some of those articulated in the International Covenant on Civil and Political Rights 1966 and Refugee Convention 1951, reflect norms of customary international law (see later in the module).

As the International Court of Justice found in the case of Military and Paramilitary Activities in and against Nicaragua, a hierarchy of rules does not exist in international law between international treaties (in that case Articles 2(4) and 51 of the Charter) and customary international law (1986, paras. 177-182). This means that one legal source is not more important or authoritative than the other. As the Court further held, both sources of law have parallel, but separate, existences which are not mutually dependent. Customary international law rules often form the basis of international treaty texts, but may be further developed as part of the codification process within the eventual text adopted. Consequently, some differences may exist between comparable rules existing within both of these legal sources. That said, practically speaking, it is easier to identify treaty obligations in a written text.

One issue of particular relevance to counter-terrorism, which has been raised by some Member States, relates to whether or not an at least partial definition of terrorism exists under customary international law. This is of potential significance in the continuing absence of a universally agreed definition contained within treaty texts. This issue is examined in more detail in Module 4 including with respect to the determination on this issue of the Special Tribunal for Lebanon in 2011 (para. 83).

Jus cogens

A number of customary international law obligations are of special relevance to global counter-terrorism efforts, including under the auspices of the United Nations CT Strategy. Generally, these have jus cogens (peremptory) status (Vienna Convention article 53), which means that they cannot be derogated from (see Module 7), and that they have accompanying erga omnes obligations by States towards the international community as a whole to respect and enforce them ( Belgium v Spain, 1970; Prosecutor v. Anto Furundzija, 1998, para. 151). Jus cogens norms form an important exception to the general rule that all norms on the international legal plane are horizontal in nature. Instead, they enjoy a vertical relationship meaning that in the event of any conflict between obligations created by peremptory and non-peremptory norms, the former will prevail over the latter.

A common starting point for identifying the key qualities for jus cogens, or peremptory, norms is article 53 of the Vienna Convention on the Law of Treaties:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Although no universally agreed list of such principles exist, the prohibitions against the threat or use of force, torture, genocide, slavery, racial discrimination and crimes against humanity are widely recognized as peremptory norms. As is explored in subsequent Modules, a number of these jus cogens obligations have come under increased strain in the context of some counter-terrorism efforts.

General principles of law

At present, the general consensus is that a fully comprehensive universal counter-terrorism legal regime is still evolving. One important consequence of this is that gaps can exist within existing legal regimes, which are not counter-terrorism specific, when they are applied to a counter-terrorism context, both more generally as well as in response to new or emerging terrorism related phenomena. An important way of bridging such gaps is to draw upon a third source, namely general principles of law referred to in article 38(1)(c) of the Statute of the International Court of Justice.

The exact nature and role of general principles of law are not entirely clear, with differences of opinion existing regarding their exact function, nature and scope. Nor is the demarcation between customary and general principles of international law always clear, especially since general principles commonly acquire customary qualities as well. An example is the principle of due diligence, which includes a customary obligation on States to take reasonable and appropriate measures to protect their own citizens, such as through preventing terrorist attacks from occurring. There is though agreement that general principles can assist in the interpretation and development of treaty and customary international law rules and, as such, that they complement other sources of international law (Bassiouni, 1990; Cheng, 1953).

United Nations General Assembly and Security Council resolutions

The General Assembly and Security Council have engaged with terrorism related matters, to varying degrees, during the past five (almost six) decades. The General Assembly especially has been apprised of such issues since 1960, with the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples (United Nations, General Assembly, 1960, A/RES/15/1514), adopting many non-binding, but nevertheless influential resolutions in the process.

In terms of the division of labour between the two organs, they have different but complementary functions. The Security Council is largely concerned with the effectiveness of terrorism related measures, in performance its key role of seeking to maintain international peace and security; whereas a principal focus for the General Assembly is to ensure that such measures are just and consistent with the Organization's purposes and principles as stated in Articles 1 and 2 of the Charter.

In terms of the approach of both organs towards terrorism matters, including how legal norms have been shaped, there are three discernible phases. The first is the period between the adoption of the 1960 Declaration, and the late 1980s, when much of the General Assembly terrorism related discourse centred on self-determination struggles from colonialism and other forms of alien or foreign subjugation or domination. This reflected the fact that its Membership was growing in number as previously colonized States achieved their independence. A particular feature of this period was debates regarding whether or not persons and entities engaged in armed struggles should be classified as non-State terrorist actors.

The second phase spans from the early 1990s until 2001, when a key focus of the General Assembly was on the criminalization of terrorist acts regardless of any stated motive. This focus was central to General Assembly Resolution on Measures to eliminate international terrorism (United Nations, General Assembly, 1995, A/RES/49/60) and has remained so ever since.

During these two time periods, the Security Council's involvement in terrorism related issues was less extensive than that of the General Assembly. For example, its declarations that any terrorism related activities posed threats to international peace and security were very infrequent. That all changed following the 9/11 terrorist attacks, since when the Security Council has arguably become more apprised of terrorism related issues than the General Assembly. This is evidenced in the creation of various entities such as the United Nations Security Council Counter-Terrorism Committee, supported by the Counter-Terrorism Committee Executive Directorate (CTED), as well as the markedly expanded role, reach and influence of the earlier 1267 (1999) sanctions committee activities against named non-State terrorist actors (UNSC Resolution 1276 (1999) most recently extended to ISIL under UNSC Resolution 2253 (2015)). That said, the General Assembly remains actively involved including through its adoption of resolutions, the anti-terrorism treaty negotiation work of the Sixth Committee that has resulted in the adoption of sectoral conventions examined in Module 4, as well as the biennial review of the UN CT Strategy.

A notable feature of this current third phase, of particular relevance to legal sources, has been the Council's increased readiness to declare that a terrorist attack (or form and manifestation of terrorism more generally) poses a threat to (international) peace and security (see e.g. UNSC Resolution 1566 (2004). One of the associated implications of this is that it has more frequently relied upon article 39 of the Charter in invoking its Chapter VII Charter powers, which can lead to non-forcible and forcible measures under articles 41 and 42 of the Charter respectively.

The nature of General Assembly and Security Council resolutions as legal sources

With respect to resolutions of the General Assembly, the starting point is that these are non-binding in nature. Under Chapter IV of the Charter, which describes its functions and powers, the General Assembly is able to make recommendations regarding the exercise of the powers and functions of the United Nations more generally. Since these are non-binding recommendations rather than binding decisions, they are referred to as 'soft law'. Though 'soft' in nature, recalling the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, issued on 8 July 1996 (ICJ, 1996, p. 25, para. 70), they can nonetheless play an important law-making function, both in terms of the development of legal principles which may subsequently acquire customary international law status and/or be incorporated as part of a codifying process within binding international treaty texts. The most authoritative form of General Assembly resolutions are its 'declarations' which normally affirm key legal principles.

The resolutions of the Security Council, on the other hand, may be non-binding or binding, depending upon which of its powers are relied upon at the time of a resolution's adoption. Resolutions adopted under Chapter VI of the Charter for the "pacific settlement of disputes" will be non-binding, whereas resolutions adopted under Chapter VII for "action with respect to the peace, breaches of the peace and acts of aggression" are likely to be binding. Of particular significance to recent counter-terrorism deliberations and responses have been those resolutions which have invoked Chapter VII Charter powers. The generally accepted view is that the combined effect of this, when taken together with article 25 of Charter - which provides that "[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter" - is to make them binding upon UN Member States.

The potential law-making significance, and reach, of such resolutions is illustrated by Security Council Resolutions 1373 (2001) and 1566 (2004). The former resolution was adopted shortly after the 9/11 terrorist attacks. One particularly notable feature was the Security Council's reliance on its Chapter VII powers to require States to carry out a number of specified measures, including legislating at the national level (UNSC Resolution 1373 (2001), para. 2(e)). Such previously unprecedented invocation of its Chapter VII powers attracted much discussion, especially among academics, regarding whether or not the Security Council technically possessed (quasi-) legislative powers under the Charter.

In practice, Resolution 1373 has been widely supported by Member States through required legislative incorporation ( United Nations, Security Council Counter-Terrorism Committee). Certainly, Resolution 1373 had the desired effect in terms of strengthening counter-terrorism frameworks, especially at the national level. In terms of its legal effect, the Resolution has been described in terms of forming the lynch-pin of "a legal architecture emerging which may, over time, impel the crystallisation and consolidation of a customary international crime of terrorism" (Saul, 2012, p. lxxiii). Security Council Resolution 1566 was adopted similarly under Chapter VII of the Charter. One of its notable features is that it included terrorism related terminology to guide the subsequent practice of States in response to it (UNSC Resolution 1566 (2004), para. 3), while not implying the existence of a universal definition of terrorism. This was intended to assist in the harmonization of counter-terrorism instruments being developed in response to the mandate of Security Council Resolution 1373 (see Module 4). It will be interesting to observe in the future whether or not Resolution 1566 plays a role as a legal source in informing any eventual emergence of a definition of terrorism in customary international law even though that was not its intended purpose. On such themes, see further Module 4 decision of the Special Tribunal for Lebanon.

Another example of an important Security Council resolution creating obligations on Member States as part of global efforts to counter terrorism is Resolution 1540 (2004) (UNSC Resolution 1540 (2004)). Also adopted under Chapter VII, this resolution obliges States to, among others, refrain from supporting by any means non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their delivery systems. In order to achieve this objective, States are required to establish domestic controls to prevent the proliferation of nuclear, chemical and biological weapons and their means of delivery, including by establishing appropriate controls over related materials.

Non-formally binding legal sources

In addition to the formally binding legal sources just examined, a number of non-formally binding instruments (often referred to as 'soft law') form part of the universal framework governing counter-terrorism, including under the CT Strategy. The fact that they are not formally binding does not mean that they are less important; sometimes soft law instruments can be more influential in practice, especially on matters where wide consensus does not yet exist. In circumstances where States may be reluctant to commit to the text of a treaty and its accompanying obligations, they may be more willing to support and, at least to some extent, follow a non-binding instrument. Indeed, a well drafted, detailed soft law instrument can be much more effective in practice than, for example, a weak, poorly drafted or ratified treaty instrument. This section considers different types of non-binding sources that form part of the international framework, namely General Assembly and Security Council resolutions, jurisprudence, United Nations special mandates and procedures, and instruments like codes of practice and guidelines.

Resolutions and other outputs of United Nations organs and entities

Technically speaking, most resolutions adopted within the United Nations system - with the exception of those of the Security Council as was explained in the previous section - are non-binding. That said, they and other influential outputs, such as the High Level Panel Report 2004 (United Nations, General Assembly, 2004, A/59/565), can play a pivotal role in the development of legal norms which eventually result in their incorporation within a treaty text and/or their evolution into customary international law rules. For example, General Assembly Resolution 60/158 (2005) articulates the fundamental framework for the Protection of human rights and fundamental freedoms while countering terrorism (United Nations, General Assembly, 2006, pillar IV, para. 1). The General Assembly's annual resolutions on 'Measures to eliminate international terrorism', most recently UNGA Res 72/123 (2017) (United Nations, General Assembly, 2017), also play an important role in shaping legal principles regarding terrorism approaches many of which have subsequently been incorporated into anti-terrorism instruments.

As was noted earlier in this Module, both the General Assembly and Security Council have different, but complementary roles on counter-terrorism issues at a policy-level, and in terms of assessing (through the Counter-Terrorism Committee) levels of compliance of Member States with key resolutions, e.g. UNSC 1373 (2001).

This is equally true of other United Nations organs and entities concerned with upholding the rule of law in counter-terrorism responses, such as the Human Rights Council. Although not technically binding, their outputs can be influential, including in shaping increased rule of law compliance. For example, most years, the Human Rights Council adopts a resolution on the theme of Protection of human rights and fundamental freedoms while countering terrorism (most recently United Nations, General Assembly, Human Rights Council, 2017(b), A/HRC/35/L.27). Of particular relevance to this University Module Series, the Human Rights Council regularly expresses, and keeps under review, its " concern at the violations of human rights and fundamental freedoms and of international refugee law and international humanitarian law in the context of countering terrorism and violent extremism conducive to terrorism" (United Nations, General Assembly, Human Rights Council, 2017(b), A/HRC/35/L.27, para. 2). It routinely emphasizes the crucial important of respecting and adhering to the rule of law, including the international legal framework explained in this Module (United Nations, General Assembly, Human Rights Council, 2017(b), A/HRC/35/L.27); as well as the importance of strengthening international cooperation in order to strengthen existing efforts to prevent, counter and combat terrorism (United Nations, General Assembly, Human Rights Council, 2017(b), A/HRC/35/L.27, para. 4).

Jurisprudence of courts and tribunals

Another important legal source specified in article 38(1)(d) of the Charter of the International Court of Justice is "judicial decisions…..as a subsidiary means for the determination of rules of law". Generally, such decisions are only legally binding on parties to legal proceedings, illustrated by article 59. Nevertheless, the resultant case law, of national, regional and international courts and tribunals, can be an important legal source in terms of shaping future decision-making and informing existing as well as new laws, policies and practices, including in relation to promoting and upholding the rule of law in counter-terrorism approaches. A number of judicial decisions are examined throughout this University Module Series, including as case studies.

United Nations treaty body outputs

The other form of jurisprudence considered here is that of United Nations treaty bodies (Committees) which derive their mandate from each of the nine core international human rights treaties, some of which are of particular relevance to counter-terrorism. Each treaty body comprises a committee of 18 independent experts who monitor its implementation within national legal systems. By ratifying these treaties, State parties have accompanying obligations to take steps to ensure that everyone within their respective states can enjoy the rights set out in treaty texts.

There are a number of outputs of treaty bodies which can be informative to States regarding how treaty obligations should be implemented and interpreted by them. Such outputs also in turn make up part of the wider body of counter-terrorism norms. One output is the non-binding 'concluding observations' following the review of a State party's periodic report regarding the implementation of its treaty obligations. Though technically only recommendations to the State under review as to how it might improve the implementation of its treaty obligations under review, concluding observations are important. Not only are States expected to make progress in furthering such recommendations, but concluding observations are of wider significance in terms of better understanding how treaty norms should be implemented and enforced by all States parties.

Another source is the consideration by some of these Committees of individual complaints, alleging violations of specific treaty obligations by States, where there is an Optional Protocol to the main treaty instrument permitting this. It is through individual complaints that human rights are given concrete meaning. Although the process is quasi-judicial in nature and decisions on these Communications are not technically binding, they still make up an important body of jurisprudence regarding the interpretation of treaty provisions.

The other outputs considered here are the general comments adopted by Committees regarding the interpretation of, as well as difficulties associated with implementing, treaty provisions. Unlike concluding observations, general comments do not relate to any particular State party. Instead, they highlight and explain key recurring issues of importance, such as the interpretation and enforcement of treaty principles. In doing so, treaty bodies draw upon their experiences across all of their activities to identify common, priority themes. Such outputs are influential despite their technically non-binding nature. Throughout this University Module Series, a number of these treaty body outputs are drawn upon.

Special Procedures of the Human Rights Council

Another important non-binding source are the outputs of the Special Procedures of the Human Rights Council. These procedures entail independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. The system of Special Procedures is a central element of the United Nations human rights machinery and covers all human rights. As of 1 August 2017, there are 44 thematic and 12 country mandates.

With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), Special procedures undertake various activities such as country visits; act on individual cases and concerns of a broader; contribute to the development of international human rights standards; engage in advocacy; provide advice for technical cooperation and so forth. Their tasks are defined in the resolutions creating or extending their mandates.

Of particular significance here, there is a dedicated Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, who is currently Fionnuala Ní Aoláin (since 1 August 2017). As with other Special procedures mandates holders, a regular report (normally annually) is made to the General Assembly and Human Rights Council (United Nations, General Assembly, 2016(c); United Nations, General Assembly, Human Rights Council, 2017(a)). These reports can cover a broad range of human rights issues, such as violations of key human rights instruments in relation to arrest, detention, fair trial, prohibition against torture et al, and erosion of democratic freedoms; identify examples of best practice which may be transferrable to other jurisdictions; and make recommendations regarding how the existing legal framework for counter-terrorism responses might be further strengthened. Although these reports, their findings and recommendations are also not binding on States, nevertheless they are influential including in relation to how States are and should be applying the relevant legal frameworks.

In addition, the work of a number of other Special Rapporteurs and Working Groups is relevant to, and considered throughout, this University Module Series, e.g. the Working Group on Arbitrary Detention, the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Codes of practice, declarations and guidelines

Another important soft law source that informs and facilitates the realization of the UN CT Strategy's objectives are instruments such as guidelines, codes of practice, and standards. A considerable range of such non-binding instruments have been developed which are complementary to binding obligations. Though not of themselves legally binding, they represent agreed principles that should be adhered to by all States and can provide important guidance for law and policy makers, as well as practitioners including the courts.

Relevant instruments for counter-terrorism, a number of which are considered in subsequent topic-specific Modules, include the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (United Nations, General Assembly, 1985(a), A/RES/40/43); Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (United Nations, General Assembly, 1989, A/RES/1989/65); Declaration on the Protection of All Persons from Enforced Disappearance (1992) (United Nations, General Assembly, 1993, A/RES/47/133); and Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (1999) (United Nations, OHCHR, 2004, HR/P/PT/8/Rev.1).

 

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