Title: Executive Lawmaking in Compliance of International Treaty
Abstract: Treaty obligations, including any obligation imposed by the Security Council under the United Nations Charter, are not automatically a part of Singapore law. In response to September 11, Singapore was therefore required to devise a flexible legal mechanism by which further and better domestic legal standards could be set in a timely fashion should the Security Council so require. The United Nations Act is that mechanism. A principal difficulty is that, in its drafting language, the Act is not confined to Security Council decisions to combat terrorism. Instead, whenever the Security Council of the United Nations calls upon the Government to apply any measure to give effect to any decision of the Council taken under Article 41 of the United Nations Charter, the Minister may, if he considers it necessary or expedient, issue regulations under the Act in order to apply those measures. In addition, Article 41 in itself is a potentially far-reaching provision. It authorises any measure short of armed force which the Council may consider appropriate in the face of a threat to the peace, breach of the peace or act of aggression. The Act therefore raises domestic questions about the extent and scope of the Minister's powers, about whether the courts may review the Minister's decisions, and if so what standard(s) of review may be applied by the courts. At common law in Singapore, even where the Minister characterises his decision as one involving national security, that characterisation may be challenged on grounds of legal irrationality. Furthermore, on the proper construction of this Act, the Minister's decisions, it would seem, must also be based on the existence, and proper construction, of a binding Security Council obligation. Yet whether a Security Council resolution imposes binding legal obligations can sometimes present mixed legal and foreign policy questions. This may be reason enough for the courts in Singapore to exercise restraint when called upon to review the Minister's decisions taken under the Act.
Publication Year: 2003
Publication Date: 2003-12-08
Language: en
Type: article
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