New Security Council Resolution Draft Text on SyriaPosted: September 27, 2013
Well we now finally have the language that is likely to be approved by the UN Security Council today and adopted as a Security Council resolution. You can see the text here, as reported by Reuters.
In many ways, this resolution is similar to UNSC Resolution 687 adopted by the Council after the first Gulf War, and instituting the regime for disarming Iraq of its nuclear, chemical, and biological weapons stockpiles.
There are of course a number of differences, one being that this new Syria draft resolution is in response to an actual use of chemical weapons, and focuses almost exclusively on chemical weapons disarmament.
In terms of the legal aspects of the new Syrian draft resolution, it noticeably is not adopted under the Council’s Chapter VII powers. When the Council acts under Chapter VII, it will always say this explicitly right before the operative paragraphs begin. But what does this mean?
There is a common misunderstanding in media reporting that UNSC resolutions adopted under the Council’s Chapter VII authority are legally binding, whereas resolutions not adopted under Chapter VII authority are not legally binding. This is an incorrect understanding. And the new Syrian draft resolution makes this quite clear when it correctly says “Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions.” So if this resolution is adopted by the Council, it will be legally binding on all U.N. member states, including Syria.
The significance of the Council specifying in a resolution that it is acting under its Chapter VII authority is not in the bindingness of such a resolution, but in the fact that, having invoked its Chapter VII authority, the Council is then able to exercise a greater range of powers than if it is not acting under its Chapter VII authority. In particular, Articles 41 & 42 Chapter VII of the Charter specify both non-forceful and forceful measures which can be authorized by the Council, after the Council has determined the existence of a threat to international peace and security under Article 39.
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Note again that Chapter VII includes both non-forceful and forceful measures to deal with a threat to international peace and security. This is an important fact for understanding what was reportedly the most sensitive and contentious part of the draft resolution during negotiations between the US and Russia – the closing section on compliance. The draft resolution states that the Council:
Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter.
Reportedly, one of the major hangups in negotiations over the draft resolution’s language between the US and Russia was whether the resolution would either explicitly or implicitly authorize the use of force in the event of noncooperation or noncompliance by Syria. In my reading, the Russian view seems to have very much won the day in the present text.
Not only does the text not invoke the Council’s Chapter VII powers for acting in this resolution itself, but in the excerpted section on compliance, it only says that in the event of noncompliance, the Council will act to impose measures under Chapter VII. These could be any number of a range of measures, from diplomatic censure, to economic or financial sanctions, up to and including military force. But importantly there could be no argument, in my view, based on this text that noncompliance on the part of Syria automatically triggers a right on the part of the US or any other state to legally use military force against Syria. This, it will be recalled, was a key element of the US/UK legal argument for the legality of the 2003 Iraq war – i.e. that UNSC Resolution 1441 did contain such an “automaticity” of authorization of force (See Chapter 7 of my 2009 book for a full narrative on this).
So overall, I read this draft resolution as effectively imposing a legally binding disarmament regime on Syria, and adding further weight to Syria’s obligations of compliance with OPCW and UN inspectors. But it does not change the legal dynamics of the argument concerning a potential use of military force against Syria by the US or any other country. On that subject, we are still where we were yesterday.
I do stand by this conclusion, although I also want to note something I found interesting about this draft resolution. In both the preliminary and operative paragraphs, the text states in at least two places that the Council determines that the use of chemical weapons, in Syria or anywhere else, “constitutes a threat to international peace and security.” And it also recognizes in the preliminary paragraphs that chemical weapons were used in Syria.
I find it a bit strange that the Council would use the “trigger” language for its Chapter VII authority pursuant to Article 39 of Chapter VII, but then not explicitly state that it is acting under Chapter VII, as it always explicitly does. I don’t remember ever seeing this particular combination of aspects before in a Security Council resolution. Can others find examples of this, or is this a case of first instance?
It does raise a query in my mind of whether the US negotiators wanted to get this language, amounting to a determination of a threat to international peace and security, into the resolution, even if they couldn’t get an explicit acknowledgement of the Council acting under Chapter VII into the text. Could this be laying the ground work for some future argument by the US that the Council was indeed acting under Chapter VII here, even though it doesn’t say it is? I don’t know. That would be a very significant deviation from normal Council procedure of explicitly stating when it is acting under Chapter VII. But from the experience of viewing the competing interpretations of Resolution 1441 in 2003, and the fairly clear attempts by both sides in that debate to insert language into the resolution supporting their respective positions on the future legality of the use of force (see Byers’ paper on this), this is at least something to be aware of.