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