A Few Thoughts on Resolution 2118 (2013)

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The official final text of Security Council resolution 2118 (2013) on Syria is now available, as is the full proces-verbal of the Council’s discussion after the adoption of the resolution (text available here; ODS search strangely still showing it as under embargo; S/PV.7038). The main points of the resolution have of course received much attention from the press, and there is also commentary by John Bellinger on Lawfare and Ryan Goodman on Just Security, here and here). There are a couple of features of the resolution that I find particularly interesting.

First, there’s the fact that in its last preambular paragraph the Council unanimously endorsed the view that all Council decisions, and not just Chapter VII resolutions, are legally binding. This was of course due to careful diplomacy between the US and Russia, with the former wanting a legally binding instrument and the latter refusing to agree to a Chapter VII resolution. The compromise between the two is reflected in the preambular paragraph when the Council is ‘underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions’ and then in a number of operative paragraphs which use the verb ‘decides’ to impose legally binding obligations.

In other words, while decisions under Chapter VII are legally binding (even though resolutions under this chapter will frequently include non-binding recommendations as well), they are not the only decisions with binding force. This is I think the first time that the Council so openly adopted this view, which was endorsed before it by the ICJ in the 1971 Namibia advisory opinion. Doctrinally of course the issue was not settled and continued to be debated; for an overview see John Bellinger’s post as well as this excellent report linked to by Ryan. But now the matter does seem to be finally settled, with the ICJ’s interpretation of the Charter garnering unanimous support of the Council.

The PV of the meeting, at which many delegations stressed the legally binding nature of the resolution, only supports the resolution’s text. I think Ryan is wrong when he argues that Russian Foreign Minister Lavrov ‘took a swing at the legal strength of the Resolution’ when he stated that it was not passed under Chapter VII. As I see it, Russia is in full agreement with the US and the UK that the resolution did create binding obligations – this is at least implicit in his following statement on p. 4 of the PV:

Particular responsibility lies with those who back and sponsor the opposition; they have to ensure that chemical weapons do not fall into the hands of extremists. We draw attention to the fact that the resolution contains requirements set by the Security Council that apply to all countries, especially Syria’s neighbours. They must report to the Council any attempts by non-State actors to obtain chemical weapons. It would be even more unacceptable for them to support such attempts. All similar cases will be immediately considered by the Security Council with the objective of taking the necessary measures. (emphasis mine)
What Chapter VII brings to the table is not necessarily the binding nature of the measures enacted, but telling us what the measures can substantively be under the Charter, e.g. the authorization to use force. And this is what the Russians are (rightly) concerned about; they don’t want there to be any plausible argument that the Council has implicitly authorized force, and this is what they achieved. But that does not mean that they do not consider the decisions made within the resolution, e.g. for Syria not to use chemical weapons, to cooperate with the OPCW, etc., to be non-legally binding.

The second striking thing about the resolution is its determination in the first operative paragraph ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security.’ In other words, any use of chemical weapons by anyone anywhere is ipso facto a threat of international peace and security, and justifies the Council’s intervention. The Council has previously made such determinations only rarely, as e.g. in resolution 1368 (2001) in which it found that any act of international terrorism was a threat to international peace and security.

Also of note is op. para. 19, in which the Council ‘demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately.’ Note how the demand is addressed to non-state actors directly and is very precise in scope; this of course raises the issue whether the Council can create legally binding obligations for non-state actors, and whether it has done so in this particular instance (cf. the ICJ’s Kosovo advisory opinion). The Council buttressed this ‘demand’ (but not a ‘decision’?) by deciding in op. para. 20 that ‘all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic.’

Finally, the Council’s decision in op. para. 21 to impose Chapter VII measures in case of non-compliance is also I think a novelty – although it clearly wouldn’t prevent a veto regarding the adoption of a further resolution, it would render that veto even more politically suspect.

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Dan Joyner says

October 1, 2013

Hi Marko,
If you'll permit me a little bit of trolling, I posted a piece on the new Syrian resolution on my blog a few days ago at: http://armscontrollaw.com/2013/09/27/new-security-council-resolution-draft-text-on-syria/

André de Hoogh says

October 1, 2013

Hey Marko, Just adding a few points.
To start with, the language the Council uses has varied over time. Acting under Chapter VII has been consistently used over a long period of time and in the more recent past, but was absent in (very) early practice. Cf. Resolutions 82 (Korea) and 232 (Rhodesia).
However, the application of Chapter VII is thought to be contingent upon a determination of a threat to the peace, breach of the peace or act of aggression. As Resolution 2118 does employ this language, the Russian minister in asserting that it was not passed under Chapter VII misses the mark, since clearly article 39 of the Charter is being applied and this, quite obviously, is the opening article of Chapter VII.
As such, the present text does not support the Namibia position, since this would have to be predicated upon the view that the decision was not adopted ‘under’ Chapter VII, as clearly it is. The ICJ in Namibia was not merely confronted with the lack of ‘Acting under Chapter VII’, but also with the absence of a determination of a threat to the peace (which only came with Resolution 418 in 1977).
More worrying than the absence of 'Acting under Chapter VII' in this resolution, is the fact that the Council has been employing loose language when it comes to making determinations under article 39 of the Charter. Thus Resolutions 1373 and 1540 only 'affirm' or 'reaffirm' that certain acts constitute a threat to international peace and security (terrorism, proliferation of WMDs), and Resolution 1929 (and others before) are only 'mindful’ of the Council's primary responsibility (Iran). Context in these cases does clarify that the Council is invoking its Chapter VII powers (including, at times, direct reference to article 41), but this turn from Charter language and indeed Charter requirement is to be deplored.
Another worrying development (starting with Resolutions 1373 and 1540) is the tendency to issue determinations in the abstract. Here this occurs in paragraph 1 where any use of chemical weapons anywhere in the world is determined to be a threat to international peace. But can it be asserted that the Tokyo Sarin attack (1995) and the anthrax attacks in the US (2001) constitute a threat to 'international' peace, when there is no outside involvement in such acts? Coupled to the ‘law-making’ designs of Resolutions 1373 and 1540, the Council could well become the modern-day sovereign, combining legislative, (quasi-)judicial and executive powers.