Published in July 2018.
This module is a resource for lecturers
Regional and national approaches
Regional organizations also play an integral role in multilateral counter-terrorism cooperative efforts (United Nations, General Assembly, 2006, A/RES/60/288, para. 3(d)), including for the realization of the UN Strategy's goals. These are examined in Module 5. Such regional instruments and outputs can take the form of binding regional anti-terrorism conventions (and, in some cases, regional customary international law), as well as (non-)binding resolutions, codes of conduct, guidance, and jurisprudence.
Ultimately, though regional and international organizations and related legal frameworks play an important role in counter-terrorism efforts, States remain the principal actors including in terms of implementing and enforcing these principles. It is on their territory that terrorist related activities occur and must be responded too, and decisions are made regarding adherence to international agreed legal standards and principles.
In addition to national constitutional rights which guarantee fundamental human rights, democratic and rule of law protections, many States have ratified, and therefore are States parties to, at least some of the international treaties relevant to counter-terrorism responses, including the universal conventions against terrorism as well as international human rights, international humanitarian, and international refugee law treaties. The effect of ratification is to create binding obligations for States, requiring them to incorporate these obligations within their national legal frameworks.
Legislative incorporation principle
One specific issue worthy of note here, which has posed some significant challenges to the effective implementation and enforcement of the international legal framework underpinning the UN CT Strategy, relates to the 'principle of incorporation'. This relates to how international treaty instruments are incorporated within the national legal systems of State parties.
Monist and dualist systems
Following the ratification of international treaties, States must proceed with their legislative incorporation based on a comprehensive review of their existing national law to ensure the effective implementation of the treaty obligations. For example, article 4 of the International Convention for the Suppression of the Financing of Terrorism 1999 (Treaty Series, vol. 2178, p. 197) states that:
Each State party shall adopt such measures as may be necessary:
(a) To establish as criminal offences under its domestic law the offences as set forth in article 2;
(b) To make those offences punishable by appropriate penalties which take into account the grave nature of the offences.
The process of becoming party to an international treaty or convention involves both an international and a domestic component. The international component consists of a formal procedure dictated by the terms of the agreement and governed by the principles of international law. An analysis of legislation is normally the first step to becoming a party to an international treaty instrument. That enables the Government and the legislature to anticipate the changes to their legal system that will be required as a result of membership of an international treaty or compliance with international standards.
Some States, because of domestic law or as a matter of policy, will not adopt a treaty until legislation is in place that permits the fulfilment of all its international obligations. The treaty has no domestic application until implemented by a domestic law. This is often referred to as the 'dualist tradition', in which international law and domestic law are considered two separate systems. Legislation is required to introduce the international obligation into the domestic legal order.
In other countries - those that follow the 'monist tradition' - once a treaty is ratified, it is automatically incorporated into domestic law. Under that system, some, if not most, of the provisions of the treaty become self-executing. However, even in those countries, legislation is often required to provide non-self-executing elements essential to the implementation of the treaty. The clearest example of this relates to the criminalization of various forms of conduct as required by the global instruments against terrorism. None of those instruments specifies penalties for the offences in question. Domestic legislation is thus required.
Many legal systems adopt a mixed approach. In the legal systems in the common law tradition, for instance, often rules of customary international law are regarded, in principle, as forming part of the common law. Treaties on the other hand must be incorporated by act of parliament.
As long as all the elements of the various offences set forth in the treaties are introduced into the criminal legislation of States parties, there is no single correct approach to complying with the criminalization aspects of the universal counter-terrorism instruments; each State's criminal policies and legal traditions dictate how and where to make the necessary changes. Similarly, the drafting style can vary depending on the choice of each implementing State. A classical divide is the one between civil law and common law countries.
The following is a non-exhaustive list of issues that different countries may handle in different manners, without prejudice to their overall compliance with international requirements:
- Special counter-terrorism laws or penal codes: some countries enact special laws and others prefer to amend their penal code to close any gaps between existing laws and the requirements of particular treaties.
- The place of definitions: some countries need to explicitly incorporate all the definitions contained in the treaties. Other countries have a less rigid approach and, once the required offences are incorporated, criminal justice officers can go back to the text of the convention when doubt arises as to the meaning of a certain term.
- 'Thematic' headings: each universal convention or protocol covers a set of criminal conducts that do not automatically or easily fit under one single chapter or section of a State's penal code. This is the case with the offences set forth in the International Convention for the Suppression of Acts of Nuclear Terrorism 2005 (Treaty Series , vol. 2445, p. 89); owing to the cross-cutting nature of the topics covered, one State may find it convenient to incorporate them under a section dealing in general with weapons of mass destruction, whereas another State may decide that some of the conducts described in the Convention belong to a section dealing with environmental crimes.
Whatever the drafting style followed and the position of the various offences, it remains crucial for each State to link those offences with the other treaty-based requirements, such as the jurisdictional provisions including, notably, the aut dedere aut judicare principle (see Module 4).
Particular challenges have arisen here in relation to national constitutions, where their requirements are in conflict with treaty obligations. Traditionally, national constitutions are regarded as being the gatekeepers in terms of the implementation of other obligations including those arising under international law. As such, they often provide the interpretative lens through which treaty obligations are interpreted, e.g. by national courts. Since the requirements of national constitutions, which vary between States, will generally be regarded as prevailing over any other incompatible obligations, even those of a treaty instrument to which the State is a party, this can result in a dilution of the nature and reach of the treaty obligations from what was originally envisaged at the time of its adoption. Generally, when a perceived conflict arises, the approach of the courts is not to strike it down, but instead to interpret it as best they can through the constitutional interpretative lens. A related issue is that it can be difficult for States to operationalise e.g. United Nations resolutions, such as Security Council Resolution 1373 (2001) which required States to criminalise terrorist financing within their domestic legal systems.
Other challenges and differences can arise regarding the implementation of certain terrorist crimes between common law and civil/continental law systems (see Module 4).
Each State must opt for what it considers to be the most appropriate implementation mechanism of treaty obligations. With respect to the universal instruments against terrorism, the legal framework can be established by one of the following means: (1) a comprehensive review of national criminal law and its relevant provisions, followed by amending legislation; (2) the inclusion in a State's criminal law of a special section of its criminal code, which may be especially suited to States intending to undertake broader reforms to their criminal law; or (3) the adoption of an autonomous law containing all the elements required by universal conventions. The resulting national legislation also forms an integral element of the overall international legal framework governing counter-terrorism responses.
Effective criminalization of various acts associated with terrorist activities is a prerequisite to intervention by the criminal justice system. Criminalization is not only a legal obligation for States parties to the various instruments against terrorism, but also a prerequisite for effective international cooperation. In practice, a number of challenges commonly exist, some of which are considered in more detail in other Modules. These can range from inconsistent national definitions of terrorism hindering rather than facilitating international cooperation; to only partial implementation of treaty obligations within national legislation, thereby creating gaps in rights and procedures provided for by the treaty instruments; and, as with any international obligation, weak implementation and enforcement of treaty obligations even when provided for in national legislation (see further Tañada et al v. Angara et al, 1997).
Implementation and enforcement challenges
One other issue to briefly note here, which is not unique to counter-terrorism measures, relates to ongoing challenges associated with the effective implementation and subsequent enforcement of international obligations by States. Even though States must voluntarily consent to being bound by the obligations of particular treaties to which they are States parties, and are bound by the principle of pacta sunt servanda to perform their treaty obligations in good faith under article 24 of the 1969 Vienna Convention on the Law of Treaties, State practice can on occasion fall short in terms of compliance with such obligations. The same is true of obligations arising under customary international law.
One of the reasons for this is that limited effective enforcement mechanisms exist within regional and international legal systems, which are often dependent upon political and diplomatic approaches to encourage rather than force compliance. One consequence of special concern is that it can pave the way for State impunity in relation to any violations perpetrated in the context of counter-terrorism responses or else deny victims of terrorist acts of their appropriate and legitimate remedies.