United in What? Some reflections on the Security Council’s sovereignty rhetoric in the latest Syria resolutions

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The Security Council’s (SC) decision-making process on the renewal of humanitarian assistance for Syria caused a lot of unease amongst observers of the situation. Only a day after the previous aid program had expired, could a new agreement on the delivery of humanitarian aid to the Syrian people be reached. While the debates leading up to the renewal raised plenty of humanitarian concerns, how the SC members addressed Syria’s sovereignty is particularly noteworthy with regard to international law as a whole. It reveals that when the SC members are talking sovereignty, they are talking past each other. The reason for this lies not only in the UN Charter (UNCh), but ultimately also in the concept of sovereignty itself.

  1. A clash of views in the Security Council

Since the first SC mandate for the delivery of cross-border humanitarian aid to Syria in 2014, the decisions to renew the aid program could often only be reached after fierce debates and numerous vetoes (see e.g. here, here and here). A major point of controversy between the members of the SC was whether Syria’s explicit objection to the necessity and the number of cross-border access points for humanitarian aid had to be respected as an expression of its sovereignty. While China and Russia repeatedly upheld the necessity to respect the views of Damascus, the other SC members – across several terms – proposed and voted in favour of resolutions that effectively disregarded Syria’s position. Although not explicitly referring to or disregarding Syria’s sovereignty, the other SC members thus seem to have taken a contrary stand on Syria’s claims of sovereignty and the respect they deserve.

This disagreement is the product not only of the international legal framework but also of a rhetoric that creates argumentative stalemates by taking irreconcilable theoretic positions on the concept of sovereignty.

  1. Purposes v. Principles

Although the SC members did not cite specific rules or principles, their positions relate to different aspects of the UNCh, namely its purposes, Article 1, on the one hand and its principles, Article 2, on the other. The case that Art. 2 UNCh appears to presuppose is that the pursuit of the UN’s purposes is always in line with its principles. Unfortunately, as the example of the latest Syria resolutions shows, this lockstep between purposes and principles can be drawn into question, the question being: Do the purposes or the principles prevail, if they ever compete? When in doubt, what unites the nations?

Article 1(3) UNCh proclaims the solution of international (humanitarian) problems and the promotion of respect for human rights as a purpose of the UN as a whole, which is reflected in the obligations of member states under Art. 55 UNCh. By highlighting the pressing need to support the Syrian population and find a solution for the humanitarian crisis, the SC members apart from China and Russia took a stand for the purposes rather than the principles.

Article 2 UNCh lists the principles of how the purposes must be followed. Several subsections, (1, 2 and 7) emphasize a strong focus on respecting the sovereignty of states. For the SC especially subsection (7) is important, which prohibits the UN to intervene in matters of domestic jurisdiction. Under Art. 2(7) UNCh a SC resolution only trumps the affected state’s sovereignty, when that resolution is issued under Chapter 7, which was never the case for the relevant resolutions here. On the contrary, all previous resolutions reaffirmed the SC’s “strong commitment to the sovereignty, independence, unity and territorial integrity of Syria”. Russia’s and China’s heavy focus on Syria’s sovereignty thus certainly favours the principles.

Interestingly, the highlighted principles all come down to respecting a state’s sovereignty. The question that could also be asked is thus: Does sovereignty or the purposes of the UNCh prevail or what does sovereignty mean in light of the UN’s purposes? As the UNCh itself does not offer much guidance on how to answer this question, a look to legal theory on the concept of sovereignty may help to get a better grip on the problem.

  1. One term, two concepts

Drawing from Koskenniemi’s distinction between a “pure fact” and a legal approach to sovereignty, there are two ways in which sovereignty can be understood.

For one, the content of sovereignty can be seen as an absolute liberty enjoyed qua statehood and as the basis for international law. This understanding sees sovereignty as given, as a “fact” that stands before, above and independent of the law. The position presupposes a “strong state” and understands sovereignty as unlimited freedom. Rules and decisions stating that restrictions of sovereignty must be interpreted restrictively, must not be made by analogy and may not be presumed are reflections of that view.

For another, reactions could also concern the scope of sovereignty from a relative or legal perspective, in the sense that a claim of sovereignty is actually a claim about what the law allows sovereignty to be and thus a claim of legality. A claim of sovereignty would be the same as a claim that a certain behaviour is within the realm of lawfulness. This view understands the scope of sovereignty as not limited, but determined by law (see e.g. PCIJ, Nationality Decrees, p. 24) and understands state power as contextual or contingent.

It is not the goal to evaluate here whether one of the views is right or not, as this is hardly feasible in this format and also difficult given the flaws in both views. The first would essentially leave international law in a state of non-binding nature, while the latter would raise fundamental questions about states’ independence. Yet, they help to unearth an underlying level of disagreement among the SC members or at least show how their rhetoric gives that impression.

  1. A choice between sovereignty and humanitarian aid?

The separation of international law and sovereignty is a motif that runs through Chinese, Russian and Syrian statements like a thread, especially in the statements on draft resolutions S/2019/961 and S/2019/962.

After the Russian representative had laid down the legal parameters for humanitarian assistance, which explicitly call for the consent of the recipient country, he emphasized that the SC members needed to “also [emphasis by author] consider the views of Damascus” and cannot “disregard the position of the recipient country.” The Chinese representative recalled the need to respect the sovereignty of the countries concerned and then turned to the law by holding that “cross-border humanitarian operations should also [emphasis by author] strictly follow international law”. The Syrian representative, when invited to weigh in on the resolutions concerning his country, thanked China and Russia specifically for “safeguarding the principles of international law and the Charter of the United Nations, chief among which is respect for the sovereignty of States and [emphasis by author] the rules governing humanitarian action.”

Russia, China and Syria are not alone with their view, particularly when it comes to the delivery of cross-border humanitarian assistance. Rebecca Barber called it the “conventional view” in February. It is shared e.g. by Akande and Gillard in the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict (paras. 139-145). In the context of Art. 70 AP I to the Geneva Conventions, which regulates the delivery of humanitarian aid, they argue that even in cases where a state illegally withholds its consent to the delivery of humanitarian aid, the requirement of consent cannot simply be overlooked.

On the other end of the spectrum, states in the SC advocated that there was no way around the delivery of humanitarian aid to Syria, despite Syria’s objections. In reaction to the vetoes on draft resolution S/2020/654, the USA representative claimed that the continued resistance by China and Russia could not be “spun into false choices between humanitarian aid, sovereignty and sanctions.” This statement makes sense, if sovereignty is not separate from humanitarian aid or rather the law that governs it, but intertwined with it. The consequence of this view is that only where the law gives weight to the views of a state, its views must be respected. If withholding consent is illegal, then law does not endow a state with sovereignty i.e. a free choice in that matter.

The recent negotiations cement the different views of the SC members in theoretically irreconcilable positions on sovereignty. This fundamental disagreement poses a significant obstacle in the way of the SC’s fulfilling its mandate or the UN’s purposes for that matter.

  1. The paradox of “sovereignty” as an item of international law vocabulary

One big promise of international law is to serve as a common language for states with different interests and beliefs, so that they can set aside differences or at least coexist in a peaceful way. In that vocabulary, “sovereignty” is probably the most important item. It embodies a laissez-faire approach of international law towards states as central actors in a complex and diverse world. Beyond this fundamental understanding, there is, however, not much agreement.

The irony of sovereignty is that it allows for fundamental differences between states, but cannot not be understood differently by them, if they want to have a meaningful conversation in international law. States’ equality in sovereignty is the reason why such conversations become necessary, perhaps even possible in the first place. If there is doubt as to how sovereignty is to be understood, then how can international law be the language, in which peace is supposed to be articulated?

As demonstrated by the example of the SC negotiations above, the understanding of sovereignty matters greatly, as it adds another, yet rarely addressed layer of complexity to an already highly complex set of legal issues. The debates about the delivery of humanitarian assistance to Syria essentially came down to the question where a state remains free to do as it pleases in relations to the UN and to its citizens, which is already a difficult question. But when asked under two mutually exclusive parameters, it becomes unanswerable. That is unless one view subjects itself to the other, which would be exactly the opposite of the compromise and agreement that international law promotes and requires on the basis of sovereign equality.

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André de Hoogh says

November 5, 2020

In this interesting contribution, Maximilian Bertamini suggests that (certain) Security Council resolutions on Syria have not been issued under Chapter 7 (Chapter VII) in the following terms:

“Article 2 UNCh lists the principles of how the purposes must be followed. Several subsections, (1, 2 and 7) emphasize a strong focus on respecting the sovereignty of states. For the SC especially subsection (7) is important, which prohibits the UN to intervene in matters of domestic jurisdiction. Under Art. 2(7) UNCh a SC resolution only trumps the affected state’s sovereignty, when that resolution is issued under Chapter 7, which was never the case for the relevant resolutions here. On the contrary, all previous resolutions reaffirmed the SC’s “strong commitment to the sovereignty, independence, unity and territorial integrity of Syria”. Russia’s and China’s heavy focus on Syria’s sovereignty thus certainly favours the principles.”

The author seems to suggest this in particular in relation to SC Resolution 2165, which is given to us in the first hyperlink of the contribution, but may also be illustrated with reference to the SC resolutions adopted earlier this year (SC Resolution 2504 and SC Resolution 2533). These resolutions do not indeed contain the typical phrase ‘Acting under Chapter VII of the Charter of the United Nations’.

However, interpretation of SC resolutions ought to take into account all of its terms, and not simply the absence of any particular phrase per se. For that reason, as I have pointed out previously (in my comment under Marko Milanovic’s contribution on SC Resolution 2118; EJIL: Talk!, 1 October 2013), one must take into account whether the Council determines a threat to the peace in the resolution concerned.

This the Council does indeed do in the resolutions referenced, as may be shown by quoting SC Resolution 2533: “Determining that the devastating humanitarian situation in Syria continues to constitute a threat to peace and security in the region”. As a determination constitutes an application of the opening provision of Chapter VII, this entails that any resolution that determines one of the threshold situations mentioned in Article 39 Charter to exist is indeed one that has its legal basis in Chapter VII. This is so even when that resolution does not actually reference Chapter VII.

As such, the limitation of Article 2(7), barring the UN to intervene in matters essentially within the domestic jurisdiction of any State, is not applicable. The Security Council decision to allow humanitarian assistance to be provided to people in need in Syria without the consent of the Syrian government therefore qualifies as the application of an enforcement measure under Chapter VII, which is excepted from the prohibition of intervention under the last part of Article 2(7) Charter.

Best,
André de Hoogh