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Access_open Between a Rock and a Hard Place: Treaty-Based Settlement of Terrorism-Related Disputes in the Era of Active United Nations Security Council Involvement

Journal Erasmus Law Review, Issue 2 2013
Keywords Terrorism, inter-state dispute, international treaties, the United Nations Security Council, the International Court of Justice
Authors Nathanael Tilahun Ali LL.M.
AbstractAuthor's information

    The United Nations Security Council has become a crucial actor in international counterterrorism by not only spurring the taking of preventive and suppressive measures against terrorist individuals and groups, but also by taking actions against states that are said to stand in the way. The Security Council's actions against such states invariably arise from accusations by other states, such as accusations of refusal to extradite suspects of terrorism or responsibility for supporting terrorists. Meanwhile, most such issues of dispute are covered under international treaties relating to terrorism, which provide for political (negotiation) and judicial (arbitration and adjudication) mechanisms of dispute settlement. The Security Council's actions against states in connection with terrorism, therefore, involve (explicit or implicit) factual and legal determinations that affect the legal positions of the disputing states under the applicable international treaties relating to terrorism. The point of departure of this paper is that, in this respect, the Security Council effectively becomes an alternative to the treaty-based dispute-settlement mechanisms. The article centrally contends that the Security Council effectively acts as a more attractive alternative to treaty-based dispute-settlement mechanisms for pursuing terrorism-related (legal) disputes between states, without providing a meaningful platform of disputation that is based on equality of the parties. And the Security Council's relative attractiveness, arising from the discursive and legal superiority its decisions enjoy and the relative convenience and expediency with which those decisions are delivered, entails the rendering of resort to treaty-based dispute-settlement mechanisms of little legal consequence. The point of concern the article aims to highlight is the lack of platform of disputation some states are faced with, trapped between a hostile Security Council that makes determinations and decisions of legal consequence and an unhelpful treaty-based dispute-settlement mechanism.


Nathanael Tilahun Ali LL.M.
PhD Candidate in public international law, Erasmus School of Law. E: ali@law.eur.nl. I would like to thank Prof. Xandra Kramer and Prof. Ellen Hey for their valuable comments on an earlier draft of this article. The usual disclaimer applies.

Elena Alina Ontanu
Both authors are doctoral candidates in the Department of Private International and Comparative Law at the Erasmus School of Law, Erasmus University Rotterdam. The authors wish to thank Prof. Xandra Kramer for her constructive remarks, as well as Laura van Bochove and the peer reviewers for their comments on the first draft of this paper. The usual disclaimer applies.

Ekaterina Pannebakker
Both authors are doctoral candidates in the Department of Private International and Comparative Law at the Erasmus School of Law, Erasmus University Rotterdam. The authors wish to thank Prof. Xandra Kramer for her constructive remarks, as well as Laura van Bochove and the peer reviewers for their comments on the first draft of this paper. The usual disclaimer applies.
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