New Security Council Resolution Draft Text on Syria

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.

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.

Article 41

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.

Article 42

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.

Update on Syria and Goings on at the UN

I was listening to NPR this morning and just laughed out loud when I heard US ambassador to the UN Samantha Power criticizing Russia for holding the Security Council “hostage” and preventing Council action on Syria. Here are her remarks in a WSJ piece:

“The U.S. ambassador said to “stand back would endanger not only international peace and security but the very international system that we have working these decades to build.” She said that for Russia as Syria’s “patron,” to block agreement on the council went against the “spirit” of the U.N. charter.”

Yes, that must be really frustrating for the US to have to deal with another permanent member of the Security Council, who appears willing to protect a state under its patronage from any and all Security Council action against it. I mean, Ambassador Power is completely right, here. That does fly in the face of the UN Charter system and is an abuse of the veto prerogative given to permanent members of the Security Council under the Charter.  It’s a good thing the US never does anything like that. Here are a few links that in no way demonstrate the hypocrisy of the US position. Here, here, here, here.

Whatever. Everyone knows that politics is no place to find principle and consistency.

WRT the substance of what has been going on re Syria, I’ve kind of been waiting like everyone else has to see in more detail what the Russian proposed, and American agreed-to-in-principle deal for disarming Syria will look like. As I said previously, I’m certainly for the idea in theory, but I’m still pessimistic about it being carried through to completion.

From a legal perspective, I’m concerned that, maybe without really even noticing it, we’ve switched legal paradigms now for dealing with what was originally a grave violation of the law of armed conflict – the use of chemical weapons. In the immediate aftermath of this event, I supported a limited use of force against Syrian military targets in order to send a clear message of the unacceptability of this violation of a longstanding norm of international law.

Now with the new Russian disarmament plan, we seem to be moving away from the original idea of punishing and deterring use of CW, which I see rooted essentially in the law of armed conflict and to a lesser extent international use of force law WRT the response, to more of an arms control law paradigm of compelling Syria to sign the CWC, and work with OPCW and/or UN inspectors to verifiably disarm Syria’s CW stockpile.

As many commentators have already noted, the machinery of arms control law has never been used in quite this way in the past – i.e. as a response to an unlawful use of WMD, inside a continuing war zone. Typically, the machinery of arms control law has been used in a more preventative way, to ensure that WMD are not used in the future. I certainly understand that there is some overlap here with the idea of deterring Syria from using WMD in the future. But I don’t think the overlap is complete. Deterrence and prevention are not the same thing. You deter someone from doing something by convincing them that the cost of doing that thing exceeds its benefits. This is what I think president Obama’s credible and continuing threat of the use of force against Syrian military targets has accomplished. I really see the disarmament process through the machinery of arms control law in this case, as being rather tangential, and essentially epiphenomenal.  It is serving the role of a secondary sign of evidence that Assad has gotten the message, and will agree to make whatever public gestures are required of him, to avoid the actualization of that threat.

The disarmament process in and of itself would never be able to give full assurance that Assad would not be able to hide CW, or reconstitute his CW program, in order to allow his further use of CW. So again, I don’t see the use of arms control law machinery in this case as the independent variable producing confidence that he will not use CW again. This role, I think, has been and must continue to be played by the credible US threat of force, in a limited but effective way, to punish any future uses.

So in all, I think the diplomatic process and the use by Syria of the CWC/OPCW process for declaring and disarming itself of CW is a good thing. I’m still pessimistic, though, that the process will be followed through to successful completion under the circumstances in Syria. If it does, it would be a case of first instance for a state in such a situation.  But I actually think that the most important element of the response to Syria’s CW use – deterrence – has already been accomplished through President Obama’s credible threat of the use of force. And for that reason, I hope that the promise of action in the event of future CW use remains in place.

Just briefly on the wrangling going on between the US and Russia regarding the structure and content of a potential Security Council resolution on Syrian disarmament, I think all international lawyers who work in the security area are struck by the déjà vu of the 2003 wrangling that ultimately produced UNSC Resolution 1441. My mentor professor Michael Byers wrote a great article on that process and its result, which you can see here. I also wrote about it at length in chapter 7 of my 2009 book.

I think the takeaway from this revisitation at the moment is that Russia learned its lesson through the unfortunate experience of Resolution 1441, and its subsequent use by the US as a justification for war in Iraq, about having any ambiguity in UNSCRs regarding use of force authorization. I expect they will stand pretty strong on the wording this time to make sure no such ambiguity exists this time around.

New Syria Chemical Weapons Removal Proposal

Like everyone else, I’m following the news about the Russian proposal for Syrian chemical weapons to be surrendered to international inspectors, and removed from Syrian territory.  The narrative of how this came about, including Kerry’s gaffe turned diplomatic opportunity, makes for diverting reading. Whatever its provenance, it does seem to have come at an opportune moment for President Obama, providing him a welcome escape out of his self-imposed predicament of an imminent “no” vote from Congress on his plan for missile strikes on Syria.

I’m still listening to the idea as its being spun out by – whoever is spinning it. And in theory it sounds like a fine idea. But color me a pessimist at the moment that this would in reality do any more than to provide President Obama a face-saving exit, at least in the short term, from his political mess, and give Assad a way to neutralize the threat of US military force while requiring only that he play along with an international inspection and removal operation that will take years to complete, and that would never be able to provide any real assurance that he won’t have more chemical weapons readily available to him if he wants them.

This CNN article, referencing the experience of inspectors in Iraq and noting the challenges facing the implementation of this idea in Syria, pretty well expresses my view at this point.

On Asking for Forgiveness Instead of Permission

I agree completely with this new post by Peter Spiro over at Opinio Juris, in which he argues:

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

In fact I wrote much the same thing in a comment to one of my posts here on ACL last week:

As for whether Assad is behind the CW attacks, I have no more information than anyone else does. But a number of compelling factors in this case to me are the following. First, it does seem that there are some pretty damning intercepts showing Syrian army involvement. Second, while this may have been an elaborate hoax, my read of Obama over the past year has been a real reluctance to get involved in Syria. If the intelligence is good enough to bring him grudgingly to the conclusion that Assad or at least the Syrian army is responsible, that is persuasive contextual evidence to me. Third, and this is what exasperates me at the moment, all we’re talking about here is one or two days of cruise missile strikes. This is not even in the ballpark of being analogous to the invasion of Iraq in 2003. No one, and I mean no one, questions that the Syrian government has long possessed chemical weapons. They have now been used and there appears to be compelling evidence that the Syrian military is responsible. Sending a message that this is unacceptable through a limited use of force seems appropriate to me.

That being said, I almost wish now that Obama would drop the idea, because its now become such a huge talkshop issue. I think its been blown way out of proportion in terms of its implications and the whys and wherefores of it, and that now Congress is involved its just going to be an excruciatingly annoying political football.

If Obama was going to do it, he should have just done it a week ago. The domestic wrangling that’s now going to happen will have no bearing on the international legality of the strike. Its almost farcical now to be debating this in Congress as if it were a decision comparable to the Iraq 2003 decision. And all the old Iraq demons are being brought out in the process. To be clear, as I’ve said before, no one opposed the 2003 Iraq intervention more vehemently and consistently than me. But the current Syria issue shouldn’t even be mentioned in the same breath with it. And now that it is being so mentioned, I do almost wish it would be abandoned.

I’ve also noticed, since the administration has started trying to sell the idea to Congress, that there has been substantial “mission creep” in how the scope of the action is being described. When I was voicing my support for it early on, I understood it, and I think everyone understood it, to be a proposal for perhaps 48 hours of cruise missile strikes and perhaps some limited bombing, on Syrian military targets for the express and exclusive purpose of responding to the regime’s use of chemical weapons.

Now I hear administration officials talking about the strikes as not only sending a message about chemical weapons use, but also shifting the strategic balance in the Syrian civil war towards the rebels. And the timeframe and scope of the strikes themselves seems now to be a lot more open ended and indeterminate, with the only assurance of agreed limits appearing to be the “no boots on the ground” pledge.  I definitely don’t support a US military strike in Syria that is purposed in getting the US substantively involved in Syria’s civil war and shifting the strategic balance towards the rebels. And as I argued in a comment to one of David Fidler’s posts last week, the scope of a military action is itself material, in my view, to the analysis of its legality under international law.  As I said there:

This is a great post, David, and represents well the legal difficulties of this situation. I wrote a piece about Kosovo in 2001, and have dramatically changed my view of the humanitarian intervention issue since that time. I still doubt that there is a formally established right of humanitarian intervention in customary law. But at the same time, I have a hard time condemning small scale uses of international force when circumstances seem to warrant them, as in the present case. For me, its the limited nature of the use of force that makes the legal problems seem manageable. I think that as the nature of a military intervention expands and becomes more serious and sustained, so the legal problems do and should multiply. As you know, in the pre-Charter era, a distinction was often made in custom between “war” and “uses of force short of war.” The UN Charter is often said to have done away with that distinction, but it is sometimes argued, and I have alot of sympathy for this argument, that there are times when justifiable military force falling below a certain threshold of intensity and duration, will legally fall below the prohibited standard in Article 2(4). To me, limited and targeted air strikes in answer to a use of chemical weapons by a government against civilians persuasively falls into that category.

I think, unfortunately, that the idea of a US military strike on Syria has morphed substantially from where it began a week ago, and that the version of the idea now being sold to Congress is something that I don’t think is either justifiable under international law, or prudent for the US to undertake. I think, as Peter Spiro says, that if Obama was going to do this thing, he should have done it last weekend unannounced, in a limited, targeted manner, with the express purpose of sending a message to the Assad regime that chemical weapons use would not be tolerated. I think Obama would have weathered any domestic and international criticism that may have been forthcoming, because everyone would at an essential level have understood why he did it, even if they didn’t agree with the specific action he took.  But the situation now is, I think, perfectly described by Shakespeare in Julius Caesar when he says, through Brutus:

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

The tide has now receded.

CNN Report on Threatened Iranian Retaliation for Syria Strike

I call bullshit on this right now.

UPDATE: New Iranian statement denying this report here.