Are the Press Reports of the Security Council’s Draft Syria Resolution Accurate? How weak or strong is it?

After weeks of diplomatic wrangling, the permanent members of the Security Council emerged last night with a compromise draft resolution on chemical weapons in Syria. The key part of the draft resolution is its penultimate paragraph, which alone sets out the conditions for enforcement. It is also the most puzzling provision. It states that the Security 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.”

As Reuters reports:

“A major sticking point had been Russia’s opposition to writing the resolution under Chapter 7 of the U.N. charter, which covers the council’s authority to enforce its decisions with measures such as sanctions or military force.

The compromise draft resolution, obtained by Reuters, makes the measure legally binding, but provides for no means of automatic enforcement as the United States, Britain and France originally wanted.”

Reuters’ account is a standard version of what the press is currently reporting, but is it accurate? Does the resolution create “legally binding” obligations on Syria or any other state? Does the resolution provide “no means of automatic enforcement”?

I. Whether the draft resolution creates “legally binding” obligations on member states

The resolution may not create a binding legal obligation on member states. To be sure, the resolution uses the critical language “decides” in calling on Syria to destroy its chemical weapons arsenal (e.g., article 4), and in calling on member states to take actions in accord with the resolution (e.g., article 20). But none of these “decisions” themselves are arguably under Chapter VII of the UN Charter. Indeed, the only reference to Chapter VII is the penultimate paragraph’s promise of a future resolution by the Security Council in case of noncompliance. It would have been much clearer — and would have reduced the opportunities for strategic behavior on the part of Syria and other states — if the Resolution itself were clearly issued under Chapter VII. There are indeed plenty of resolutions from which the drafters could have plucked the requisite language. The Council, when it has the political support to do so, uses the following boilerplate text: “Acting under Chapter VII of the Charter of the United Nations …” – and then goes on to state its “decisions.” (see Resolution on Libya in 2011; see Resolutions dealing with Iraq’s weapons of mass destruction over the course of the 1990s).

This raises two important questions. First, does the Security Council have general powers elsewhere –e.g., under articles 24 and 25 of the UN Charter — to adopt binding decisions without having to invoke Chapter VII? Second, when the Council exercises its Chapter VII powers, is it essential for the Council to make that authority explicit? An in-depth and exceptionally well-documented analysis by the nongovernmental organization Security Council Report addresses these questions. That said, the draft Resolution could have done a better job of not even raising these more difficult legal issues.

II. Whether the resolution provides “no means of automatic enforcement”

It is questionable whether the press reports are accurate that the draft text provides “no means of automatic enforcement.” The penultimate paragraph is an oddity. It appears to be a decision of the Council to bind its future self. How “self-enforcing” that decision could be is questionable, especially with the likes of Russia in the mix. But the draft provision is not trivial. At least as an informal legal norm and part of institutional practice, it can place greater political pressure on members of the Security Council to adopt some form of forcible action in the event of a future breach by any of the parties in Syria.

And it is not the only time the Council has “bound” its future self. For example, Resolution 1441 in the run up to the Iraq War, stated that the Council. “Decides to convene immediately upon receipt of a report … in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.” And that resolution was weak tea (committing to “convene immediately … in order to consider” compliance measures) compared to the draft Syria Resolution. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.