Security Council Resolution on Syria is Final but Russia Begins Chipping Away

On Friday, I posted an analysis of the draft Security Council Resolution on Syria questioning the strength and scope of its legal obligations. The United Nations has now released the final text and summary of statements by delegations explaining their individual votes. The Russian statement is important for two reasons. First, Foreign Minister Sergey Lavrov revealed his country’s strategy for the next round: raise the threshold of proof required for any claim that Syria has violated the terms of the Resolution. According to the summary transcript, Lavrov stated: “Violations must be 100 per cent proven.” An exaggeration, of course, but an indication of the existing gulf between Russia and the United States in finding a just end to the crisis.

Second, Lavrov took a swing at the legal strength of the Resolution. He reminded the world: “the text had not been passed under the Charter’s Chapter VII.” And, his counterparts from the United States (Secretary of State Kerry) and the United Kingdom (Foreign Secretary Hague) of course did not directly counter this characterization. As a consequence, commentators who wrote that the text is not “explicitly a Chapter VII Resolution,” now have to contend with a record that suggests it is not implicitly a Chapter VII Resolution either.

Indeed, a similarly disappointing analogue in recent Security Council practice is Resolution 1695 (2006) which called for the termination of North Korea’s weapons program. In his otherwise excellent commentary on the Syria text on Saturday, John Bellinger (who was the State Department’s Legal Adviser in 2006) cites the North Korea Resolution as an example of binding legal obligations despite the lack of an explicit invocation of Chapter VII authority. The historical and legal record is unfortunately more complicated.

Indeed, the North Korean Resolution shows the problems with this sort of diplomatic compromise that leaves in its wake a legally weak and ambiguous text. Like the Syria Resolution, the unanimous North Korea Resolution—in order to avoid a Russian and Chinese veto—dropped the boilerplate language that the Security Council was “Acting under Chapter VII of the Charter of the United Nations.” And the legal value of the resolution has ever since remained in doubt—despite the US argument that it nevertheless imposed legal obligations on North Korea. Indeed, in the run up to the North Korea vote, Ambassador John Bolton had asserted the opposite. As the New York Times reported at the time:

Mr. Bolton had insisted throughout the week that the resolution had to be adopted under Chapter VII to be binding, but on Friday night he shifted ground and said that it was mandatory that all Security Council resolutions be followed, regardless of whether the Chapter VII language were included.

Subsequent legal analyses of the strength of the North Korean resolution are further cause for concern. After an exceptionally thorough analysis of the text, an article by Professor Eric Yong-Joong Lee in the Fordham International Law Journal concludes that “Resolution 1695 does not create substantial binding force towards North Korea.” And an essay published in the Stanford Law Review (by Alexander Benard and Paul J. Leaf), concluded that as a result of the concessions to Russia and China, “[t]he resolution’s demands and requirements had become toothless” and “little more than a polite invitation for Pyongyang to cease missile and WMD development” (see also a nuanced analysis by Professor Sakai Hironobu in the Asian Yearbook of International Law, pp. 114-116).

The Syria Resolution, to be sure, has strengths that the Korean Resolution lacked—such as the inclusion of important terms (“decides”) and references to a threat to international peace and security. Nevertheless, whether either resolution provides the legal force that its US architects imagined is a different story. It is a story, in the case of Syria, that has gotten off to an inauspicious start. 

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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.