On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.
This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.
The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.
But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).
Effect of non-binding Resolutions
That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.
This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…