John Bellinger Explains How To Make a UN Security Resolution Legally Binding

Many commentators, including a lot of international lawyers and scholars, have scrutinized the (as yet unnumbered) UN Security Council resolution worked out between the US and Russia and among the P-5 members of the Council regarding Syria and chemical weapons.  My quick take when the draft resolution was released on Thursday night is here at Opinio Juris; Jack Goldsmith comments at Lawfare and the Heritage Foundation’s Brett Schaefer and Baker Spring comment at National Review.  One important question on everyone’s minds, however, is whether, and in what sense, the resolution is a legally “binding” one, an order of the Security Council that under the Charter requires compliance – legally binding on Syria, the government and the warring parties there.  Is this merely a recommendation or is it a legally binding order of the Council?

Many readers will shrug and think this is not actually of any importance, being merely – so to speak – the flotsam and jetsam of UN legal processes floating on the currents of realist waters where matters are genuinely determined.  One can be a realist and still acknowledge, however, that the legal forms are not always and necessarily supervenient on international politics; they both reflect perceptions of legitimacy and help shape them, and they don’t have to be “determinative” in some strong sense to be relevant and important. Given that the law has some independent weight here, the forms of legal signaling matter.  Former State Department Legal Adviser John Bellinger explains what they are in this informative post at Lawfare:

There is no agreed form of words to make UNSCRs legally binding and, over the last sixty years, the Security Council has been inconsistent in its practice.  In recent years, many international law experts (including many government lawyers for the P-5 members of the Security Council) have agreed that, to ensure absolute clarity that a resolution is legally binding, the resolution should contain three elements:

  • A determination or finding that there is a “threat to international peace and security”
  • A statement, usually in the last preambular paragraph, that the Council is “Acting under Chapter VII” of the UN Charter
  • Use of the verb “Decides” in any operative paragraphs intended to be binding.

But these three elements are not absolutely necessary, and not all recent resolutions intended (at least by the United States) to be legally binding have contained all three elements … In general, the absence of one of the “best practice” elements means that one or more of the P-5 members has resisted inclusion of an element in order to retain constructive ambiguity regarding the effect of the resolution.

The Syria resolution contains two of the three elements, Bellinger says, noting that certain parts of it are clearly binding. The Security Council “specifically ‘decides’ in operative paragraphs that the Syrian government and any party in Syria shall not produce, use, acquire or store chemical weapons; that Syria shall comply with UN weapons inspectors; that the Security Council will review Syria’s compliance; and that the Council will impose ‘measures under Chapter VII’ in the event of non-compliance.” This legally binds Syria, and commits the Security Council to “measures.”

The problem, of course, Bellinger concludes, is that if Syria does not comply, it is unlikely that the measures authorized by the Council will include authorization to use force.

(I discuss symbolic politics in US-UN relations, in my 2012 book Living With the UN.  The institutional UN was all but an orphan enterprise as a topic for policy or academic analysis when the book appeared, however, and it was difficult to get any attention to it. Even I wasn’t sure why I cared so much to explain the relationship between the UN’s collective security system through the Security Council and US exceptionalism in the use of force.  It seems to me, at least, that the book has finally found the moment when it matters, though I can’t say it is exactly flying off the shelves at Amazon.)

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