From Hijackings to Right-Wing Extremism: The Drivers of New Zealand’s Counter-terrorism Legislation 1977 – 2020

Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021

The role of the United Nations in the development of an international CT framework

The United Nations (UN) has over time carved itself a central role in the development of an international counterterrorism (CT) regime. Between the rise in popularity of air hijackings in the 1960s and the new millennium, the United Nations General Assembly (UNGA) developed a series of conventions that addressed specific terrorist offending. These conventions called on signatories to suppress certain terrorist acts, to criminalise such offending in domestic legislation, and to provide the means to prosecute or extradite terrorists.1 During UN CT negotiations in the 1970s, the definition of terrorism emerged as the key polarising issue, as states were divided on who could “use force without being described as a terrorist.”2 To date, no definition has been internationally agreed upon and key multilateral agreements, such as the Comprehensive Convention on International Terrorism, remain unresolved.

Following 9/11, the United Nations Security Council (UNSC) issued a series of binding decisions under Chapter Seven of the UN Charter. Chapter Seven empowers the UNSC to act with respect to “threats to the peace, breach of the peace, or acts of aggression”, where they can “make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security.”3 These resolutions differed from earlier approaches, as they obliged all UN member states to prevent and prosecute terrorism by virtue of the state’s signatory to the UN Charter. The UNSC has subsequently built a framework through these decisions, where states, international organisations and non-state actors have reinforcing roles.4 However, in pursuing a “pervasive and top-down law-making” approach, the UNSC straddles the line between being an active implementer of international law and overstepping into states’ domestic legislative processes.5 The key constitutional concern relates to whether binding Chapter Seven resolutions intrude on state sovereignty, as while states agreed to be bound by decisions of the UNSC when becoming a party to the UN Charter, “it could hardly have been intended” that the UNSC would hold such influence on states’ treaty-making processes and the implementation of domestic CT legislation.6

With respect to the definition of terrorism following 9/11, the UNSC has sidestepped the issue; no resolution has attempted to define it. Instead, the UNSC has strived to set international norms, pressing member states to implement domestic legal frameworks with offences that ensure that individuals or groups that finance, plan, prepare or perpetrate terrorist acts are brought to justice.7 To satisfy these UNSC resolutions, states have had to develop their own definitions of a terrorist act. UNSC resolution 1373 (adopted in the wake of 9/11) is of particular importance as it required states to report on the steps taken to progress these obligations after 90 days of its adoption. The first tranche of domestic CT law changes in several countries was consequently rapid, reactive and rushed.