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Review 2017-2018 - Volume 56

The Implied Powers Doctrine in the Fight against Chemical Weapons in Syria: Any Useful Purpose?
RANA MOUSTAFA ESSAWY^*
Teaching Assistant, International Law Department, Faculty of Law, Alexandria University, Egypt, PhD candidate at the same faculty and an LLM student in the Specialized Masters of International Law, ULB, Belgium

Table of Contents

Introductory Section: An Overview of the Implied Powers Doctrine and its Salience in the Law of Treaties

Scope of applications
Limitations of application

The Failure of the Security Council against the Use of Chemical Weapons
An Implied Power to Use Force in the Absence of Authorization from the Security Council?

The Use of Force: A Necessity?
The UN Charter Provisions: An Obstacle?

The Unilateral Use of Force: Is it Prohibited?
Reviving the Uniting for Peace Resolution against chemical weapons

Conclusion

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On 7 April 2017, the US launched a military strike on a Syrian airbase. The Assad regime in Syria was believed to have used this airbase to launch helicopters to conduct the chemical attacks that took place in Khan Shaykhun, located in southern rural Idleb, on 4 April 2017. Although the US, the UK, and France had previously issued threats to use force against the Assad regime in 2013 following several chemical attacks that also affected civilians, the April 2017 US strike happened to be the first actual military attack against the Assad regime since the unfolding of the Syrian crisis.

The military strike of the US drew different reactions from different States. Some States expressly supported the strike, ¹ whereas others expressly condemned the strike, terming it a violation of international

^* I would like to thank Professor Olivier Corten and Professor Anne Lagerwall for their comments during the defence of my LLM thesis; this paper is an updated version of my thesis. I would also like to thank Professor Pierre Klein for his remarks during my tenure as a visiting researcher at the ULB. I would like to thank my father, my mother, and my husband for their support and encouragement. Last but not least, I would also like to thank my friend Robin for his comments and for editing several drafts of this article. All errors and omissions remain the author's alone. Back
¹ whereas others expressly condemned the strike, terming it a violation of international http://www.bbc.com/news/uk-39524685 ; unless indicated otherwise, all the URLs cited were last accessed on 14 June 2017; ‘Statement by the Prime Minister of Canada on U.S. strikes in Syria’, 7 April 2017, http://pm.gc.ca/eng/news/2017/04/07/statement-prime-minister-canada-us-strikes-syria and ‘No: 107, 7 April 2017, Press Release Regarding the US’ Military Operation Targeting the Syrian Regime’s Shayrat Airbase in Homs’, 7 April 2017, http://http://www.mfa.gov.tr/no_107_-7-april-2017_-press-release-regarding-the-us_-military-operation-targeting-the-syrian-regime_s-shayrat-airbase-in-homs.en.mfa. It was reported as well that the Gulf Cooperation Council supported US military strikes: ‘GCC Supports US Strikes on Military Targets in Syria’, 7 April 2017, http://www.spa.gov.sa/viewstory.php?lang=en&newsid=1612834. Back

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law. ² Several other States reasoned that the military action was an understandable response to the Assad regime’s repeated use of chemical weapons but they also highlighted the importance of finding a political solution to the Syrian crisis. ³

Although it is regarded that the US administration failed to provide a legal justification for the strike, ⁴ it is noticeable that President Donald Trump pointed out the following in his statement: “Years of previous attempts changing Assad’s behavior have all failed, and failed very dramatically”. ⁵ US Ambassador Nikki Haley also highlighted the failure to take any action against chemical attacks on two occasions: in the aftermath of the chemical attack in Khan Shaykhun ⁶ and in her official statement about the US military strike on the Syrian airbase in April 2017. ⁷ These statements suggest that the US is convinced of the justifiability of its military strike given the UN Security Council’s failure to counter the prolonged use of chemical weapons in Syria.

The justifications offered by the US bring to mind the UK’s stance on humanitarian intervention in the context of international law, which was presented following several chemical weapons attacks in Syria in 2013. ⁸ One of the conditions justifying humanitarian intervention in the form of military force is the deadlock of the Security Council, which the United Kingdom believed to be fulfilled due to the repeated use of veto by Russia.

Although this paper attempts, inter alia, to examine the legality of the April 2017 US military strike, it does not intend to do so by examining whether the strike is legal and justifiable as an exercise of the right of humanitarian intervention. Instead, the legality of this strike shall be assessed in the context of the doctrine of implied powers. Specifically, the author intends to examine whether the provisions of the UN Charter allow the US to legally justify its military strike as an exercise of an implied power, given the Security Council’s failure to maintain peace and security in the case of Syria.

Concluding that the UN Charter does not recognize such an implied power, which in turn renders the April 2017 US military strike illegal, the author turns to examine whether similar military strikes in the future can be considered legal if they are authorized by the General Assembly. This is also done by examining whether the UN Charter implicitly confers the General Assembly with the power to authorize military action against Syria.

As this paper examines the legality and justifiability of the April 2017 US military strike and future military strikes authorized by the General Assembly from the perspective of the implied powers doctrine, the author

² ‘Foreign Ministry statement on US military action in Syria on April 7, 2017’, 7 April 2017, http://www.mid.ru/en/web/guest/maps/us/-/asset_publisher/unVXBbj4Z6e8/content/id/2717798 and ‘Iran’s Ambassador and Permanent Representative to the United Nations (UN) Gholamali Khoshroo Condemned US Missile Attack in Syria, Saying Such an Irresponsible Measure will Result in Reinforcing Terrorism in the Region’, 8 April 2017, http://en.mfa.ir/index.aspx?fkeyid=&siteid=3&pageid=1997&newsview=448612. Back
³ ‘Syria – American Strikes – Joint communiqué issued by Mr. François Hollande, President of the Republic, and Mrs. Angela Merkel, Chancellor of Germany’, 7 April 2017, http://franceintheus.org/spip.php?article8066. See also ‘Declaration by the High Representative on behalf of the EU on the US strike in Syria’, 7 April 2017, http://www.consilium.europa.eu/en/press/press-releases/2017/04/07-hr-declaration-us-strike-syria/. Back
⁴ See R. Goodman, ‘What do Top Legal Experts Say About the Syria Strikes?’, 7 April 2017, http://www.justsecurity.org/39712/top-legal-experts-syria-strikes/. Back
⁵ ‘Statement by President Trump on Syria’, 6 April 2017, http://www.whitehouse.gov/the-press-office/2017/04/06/statement-president-trump-syria. Back
⁶ ‘Ambassador Nikki Haley on the chemical weapons attacks in Idlib, Syria’, 5 April 2017, http://usun.state.gov/highlights/7746. Back
⁷ ‘Remarks at a UN Security Council Meeting on the Situation in Syria’, 7 April 2017, http://usun.state.gov/remarks/7755. Back
⁸ ‘Policy Paper: Chemical weapons use by Syrian Regime: UK government legal position’, 29 August 2013, http://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version. Back

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finds it necessary to provide, in an introductory section, an overview of the doctrine and its salience in the context of international treaties. This introductory section also throws light on the fact that the doctrine can be claimed not only by international organizations, but also by States. Afterwards, the author assesses in Section 2 the US argument regarding the Security Council’s failure to maintain peace and security in the case of Syria, since this was the main reason for its decision to initiate a military action without any authorization from the Council. Finally, Section 3 assesses whether the UN Charter provides for an implied power to use force without an authorization from the Security Council.

I. Introductory Section: An Overview of the Implied Powers Doctrine and its Salience in the Law of Treaties

This section illustrates the applicability of the implied powers doctrine to international organizations and States (1) and also examines the limitations of this doctrine (2).

1. Scope of application

This paper uses the definition of implied powers provided by the Dictionnaire de droit international public as:

Pouvoir ou droit revendiqué par un état partie à un traité ou par une organisation internationale crée par un traité, qui n’étant pas expressément énoncés dans le traité, y sont sous-entendus parce qu’ils s’avèrent nécessaires à la réalisation des buts ou à l’exercice des fonctions expressément prévus. ⁹

The implied powers doctrine has gained so much attention in the field of international organizations. This is understandable since “international organizations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them”. ¹⁰ Consequently, the application of the implied powers doctrine is widely supported at the international level in order to enable international organizations to address and cope with changing circumstances in the international life that were not anticipated by its founders. ¹¹

On the other hand, States are endowed with “the totality of international rights and duties recognized by international law”. ¹² Accordingly, a number of jurists consider the implied powers doctrine to be

⁹ J. Salmon (ed.), Dictionnaire de droit international public (Brussels, Bruylant, 2001), p. 859. Back
¹⁰ ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict Advisory Opinion, 8 July 1996, I.C.J. Rep. 1996, p. 79, § 25. Back
¹¹ ICJ, Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, 11 April 1949, I.C.J. Rep. 1949 and ICJ, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion, 13 July 1954, I.C.J. Rep. 1954, pp. 57–58. See also B. Rouyer-Hameray, Compétences implicites des organisations internationals (Paris, Librairie générale de droit et de jurisprudence, 1962); M. Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’, Vol. 44 B.Y.I.L. 1970, pp. 111–155; ILC Special Rapporteur D. Gonzalez, Second Report on relations between States and international organizations (second part of the topic), UN Doc. A/CN.4/391 and Add.1 (part 2), 1985, pp. 107–113; K. Skubiszewski, ‘Implied Powers of International Organizations’, in Y. Dinstein (ed.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Netherlands, Martinus Nijhoff, 1989), pp. 855–868; J. Klabbers, An Introduction to International Institutional Law (Cambridge, Cambridge University Press, 2009, 2nd ed.), pp. 53–73; V. Engstrom, Understanding Powers of International Organizations (Turku, Åbo Akademi University Press, 2009); H. G. Schermers & N. M. Blokker, International Institutional Law: Unity within Diversity (Boston, Martinus Nijhoff, 2011, 5th ed.) pp. 180–189 and cf F. Seyersted, Objective International Personality of Intergovernmental Organizations (Copenhagen, Krohns Bogtrykkeri, 1963). Back
¹² Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, supra note 11, p. 180. Back

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inapplicable to interstate relations. ¹³ The author, however, disagrees with this suggestion for the following reasons.

The phrase “the totality of rights and duties” seems to revive the dictum of the so-called “residual principle” set forth in the Lotus case, according to which States have the freedom to act so long as they do not carry out acts prohibited by international law. ¹⁴ In other words, States do not have to provide a legal basis for actions that are not prohibited by international law.

Without engaging in the debate between the proponents of this principle (i.e., the pure fact approach) and its opponents (i.e., the legal approach), ¹⁵ the author finds it sufficiently necessary to examine the application of this principle for deciding whether it discards the applicability of the implied powers doctrine in interstate relations.

By reviewing the Lotus case and analysing the decision rendered by the Permanent Court of International Justice (PCIJ), it can be argued that the PCIJ conceived that the “residual principle” pertains to matters related to the authority of a State within its own territory. Thus, as long as Turkey was exercising jurisdiction within its territory and as long as it carried out actions which are not prohibited by international law, it retained its freedom of action. ¹⁶

A contrario, a State cannot claim the freedom to act outside its territory, and it shall provide a legal basis for its action, especially when its action conflicts with the rights of another State. ¹⁷ The PCIJ’s declaration strengthens this interpretation:

Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international law. ¹⁸

Furthermore, the International Court of Justice (ICJ) does not rely on the “residual principle” to address instances where a State exercises powers outside its territory. Instead, the ICJ generally relies on international law to ascertain the validity of the right in question. ¹⁹ The Anglo-Norwegian Fisheries case, however, is cited as one case where the ICJ applied the residual principle outside the territory of a State, given the way in which the dispositive was framed. ²⁰ Nevertheless, the author believes otherwise. The

¹³ For example, Rouyer-Hameray, supra note 11, p. 11: “Le problème [des compétences implicites] ne se pose autrement en droit international. On admet classiquement que, dans l’ordre international, les Etats sont souverains, qu’ils sont seuls titulaires des compétences internationales”. See also Rama-Montaldo, supra note 11, pp. 111–155. Back
¹⁴ PCIJ, The Case of the S.S. “Lotus” (France v. Turkey), 7 September 1927, P.C.I.J. 1927 Ser. A No. 10, pp. 18–19. Back
¹⁵ See on this topic: M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge, Cambridge University Press, 1989) pp. 224–302 and James Crawford, Chance, Order, Change: The Course of International Law (Leiden, Martinus Nijhoff, 2014) pp. 70–89. Back
¹⁶ The Case of the S.S. “Lotus”, supra note 14, p. 19, where the Court stated that: “It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law” (emphasis added). See also Sir G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: General Principles and Sources of Law’, Vol. 30 B.Y.I.L. 1953, p. 17. Back
¹⁷ See A. Von Bogdandy & M. Rau, ‘Lotus’, in R. Wolfrum (ed.), The Max Planck Encyclopedia of International Law (Oxford, Oxford University Press, 2012, Vol. VI), p. 949 and Koskenniemi, supra note 15, p. 223. Back
¹⁸ The Case of the S.S. “Lotus”, supra note 14, pp. 18–19. Back
¹⁹ See for example: ICJ, Corfu Channel Case (UK v. Albania), 9 April 1949, I.C.J. Rep. 1949; ICJ, Asylum Case (Colombia v. Peru), 20 November 1950, I.C.J. Rep. 1950 and ICJ, Case Concerning Right of Passage over Indian Territory (Merits), 12 April 1960, I.C.J. Rep. 1960. Back
²⁰ ICJ, Fisheries Case (UK v. Norway), 18 December 1951, I.C.J. Rep. 1951, p. 143 where the Court stated that: “…the base-lines fixed by the said Decree in application of this method are not contrary to international law…”. See Koskenniemi, supra note 15, p. 222. Back

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power to delimit territorial waters was not disputed; in fact, the power to do so was regarded as the prerogative of the coastal State. Thus, it can be said that the ICJ viewed delimitation as an act conducted by the State within its territory. This signifies that a State has the freedom to delimit its territorial waters so long as the delimitation is not contrary to rules and principles of international law that govern questions of delimitation. In fact, as per the ICJ’s statement: “although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends on international law”. ²¹

Given these examples, the author believes that every State is obliged to provide a legal basis for the actions it undertakes outside its territory; a State cannot claim the freedom to act in the absence of a prohibitive rule. In other words, the absence of a prohibitive rule in an international treaty does not mean that a State’s action is legal; on the contrary, it makes it necessary for a State to provide a legal basis for its action, one of which is to claim that an alleged right arises by necessary implication out of a treaty. ²²

Given the fact that implied powers are deduced through the application of the “necessary implication technique”, ²³ it is difficult to argue that the implied powers doctrine is salient only in the context of international organizations; it appears to be applicable to interstate relations also. In the Asylum case, Colombia invoked that its right to unilaterally ascertain the nature of the offence committed by the asylum seeker aros by necessary implication out of the Havana Convention (1928) as being essential to the asylum institution established by that convention. ²⁴ In addition, in the Right of Passage case, Portugal made use of the necessary implication technique to claim the right of passage for its military forces through Indian territory as a necessary corollary of its sovereignty. ²⁵

²¹ Id., p.132. Back
²² Kolb defines the “necessary implication technique” as: “La technique d’implication consiste en la déduction de règles opérationnelles à partir de normes-buts, de principes généraux ou d’autre normes opérationnelles….Tout argument dans lequel l’interprète produit une chaine d’argumentation comme celle qui suit < si le droit ou pouvoir ou si le but ‘x’ est établi, il faut assumer qu’un autre droit ou pouvoir ‘y’ est nécessairement également concédé > est une implication du type qui nous intéresse ici”: R. Kolb, Interprétation et création du droit international (Brussels, Editions Bruylant/Editions de l’Université de Bruxelles, 2006), p. 601. See on the necessary implication technique: Lord McNair, The Law of Treaties (Oxford, Clarendon Press, 1961), pp. 436–457; Special Rapporteur Sir H. Waldock, Third report on the law of treaties, UN Doc. A/CN.4/167 and Add. 1–3, 1964, p. 61; Special Rapporteur Mr. G. G. Fitzmaurice, Fourth report on the law of treaties’, UN Doc. A/CN.4/120, 1959, pp. 46–47, pp. 70–74; G. Verdirame, The UN and Human Rights: Who Guards the Guardians? (Cambridge, Cambridge University Press, 2011), pp. 79–82; R. Gardiner, Treaty Interpretation (Oxford, Oxford University Press, 2008), p. 145; J. G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester, Manchester University Press, 1995), pp. 75–81; A. Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000), pp. 201–202; U. Linderfalk, On the Interpretation of Treaties (Netherlands, Dordrecht-Springer, 2007), p. 289 and J. Hogg, ‘The International Court: The Rules of Treaty Interpretation’, Vol. 43 Minnesota Law Review 1959, pp. 409–441. Cf J. Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Oxon, Routledge, 2010), p. 102. Back
²³ This is evidenced in the legal reasoning of the ICJ in advisory opinions where it applied the implied powers doctrine. See ICJ, Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, supra note 11, p. 182; ICJ, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion, supra note 11, p. 57; ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, supra note 10, p. 79, § 25. Back
²⁴ Mémoire présenté au nom du gouvernement de la République de Colombie: ICJ, Asylum Case (Colombia v. Peru), 10 January 1950, pp. 29–30, § 28: “Pour le Gouvernement de Colombie, le droit à la qualification de la nature du délit aux fins de l’asile de la part de l’État sous la protection duquel s’est placé le réfugié est inhérent à cette institution, de telle sorte que l’asile, sans le droit auquel nous faisons allusion, deviendrait inefficace pour atteindre le but de la sécurité juridique du réfugié”. Back
²⁵ ICJ pleadings, Case Concerning the Right of Passage over Indian Territory (Portugal v. India), Vol. I, 22 December 1955, p. 6. See also dissenting opinion of Judge Fernandes, ICJ, Case Concerning the Right of Passage over Indian Territory, 12 April 1960, I.C.J. Rep. 1960, pp. 136–137: “The doctrine of implied powers contained in a general power by virtue of the purpose of the latter, was approved by the Court in the case concerning Reparation for Injuries Suffered in the Service of the United Nations… That is what Portugal asks: recognition of a right which, if not expressly laid down in a written rule, is conferred upon it by necessary implication by the fact of recognition of its sovereignty over the enclaves, as being essential to the exercise of that sovereignty”. Back

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What is more, in the Case Concerning the Rights of Nationals of the United States in Morocco, the ICJ examined whether the US’s right to consular jurisdiction in the French zone could be necessarily implied in the Convention of Madrid and the Act of Algeciras. ²⁶ The ICJ also applied the necessary implication technique in interstate relations in the Case Concerning Navigational and Related rights (Costa Rica v. Nicaragua). It concluded that the right of the inhabitants of the Costa Rican bank to navigate on the river arose by necessary implication out of the 1858 Treaty. ²⁷

Taking the above into consideration, States and international organizations can claim an implied power as long as certain limitations are observed, which shall be briefly examined in the proceeding subsection.

2. Limitations of application

First, powers cannot be implied in a treaty unless they are necessary for achieving its object and purpose. The necessity does not mean that a power is indispensable; instead as Lauterpacht mentions, it refers to “something more than important but less than indispensably requisite”. ²⁸ This approach was upheld in the Case Concerning Reparation for Injuries ²⁹ and in the Case Concerning the Effect of Awards. ³⁰ In both these instances, the ICJ did not examine whether the power in question was absolutely imperative.

Furthermore, in the Asylum case, in response to Colombia’s claim that the right of unilateral qualification of the offence was implied in the Havana Convention on Asylum of 1928, the ICJ stated that: “This institution [asylum institution] would perhaps be more effective if a rule of unilateral and definitive qualification were applied. But such a rule is not essential to the exercise of asylum”. ³¹

This suggests that the threshold that determines the necessity of powers, as far as the ICJ’s jurisprudence is concerned, is not so high as to require a claimed implied power to be indispensable for the treaty’s effectiveness; neither is it so low that it accepts the validity of a claimed power only if that power seems desirable to the treaty’s object and purpose.

Additionally, powers cannot be implied if they contradict express provisions of the treaty. However, ascertaining whether a certain power is in conflict with an express provision depends on the interpretation

²⁶ ICJ, Case Concerning Rights of Nationals of the United States of America in Morocco, 27 August 1952, I.C.J. Rep. 1952, p. 198: “Neither the articles to which reference has been made above nor any other provisions of the Act of Algeciras purport to establish consular jurisdiction or to confirm the rights or privileges of the regime of Capitulations which were then in existence. The question, therefore, is whether the establishment or confirmation of such jurisdiction or privileges can be based upon the implied intentions of the parties to the Act as indicated by its provisions. An interpretation, by implication from the provisions of the Act, establishing or confirming consular jurisdiction would involve a transformation of the then existing treaty rights of most of the twelve Powers into new and autonomous rights based upon the Act. It would change treaty rights of the Powers, some of them terminable at short notice, e.g., those of the United States which were terminable by twelve months’ notice, into rights enjoyable for an unlimited period by the Powers and incapable of being terminated or modified by Morocco. Neither the preparatory work nor the Preamble gives the least indication of any such intention. The Court finds itself unable to imply so fundamental a change in the character of the then existing treaty rights as would be involved in the acceptance of this contention”. Back
²⁷ ICJ, Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 13 July 2009, I.C.J. Rep. 2009, p. 246, § 77: “In this regard, the Court is of the opinion that there is reason to take into account the provisions of the Treaty as a whole, especially those fixing the boundary between the two States, in order to draw, if need be, certain necessary implications. In other words, even if no provision expressly guaranteeing a right of non-commercial navigation to the inhabitants of the Costa Rican bank can be found in the Treaty, the question must be asked whether such a right does not flow from other provisions with a different purpose, but of which it may, to a certain extent, be the necessary consequence”. Back
²⁸ E. Lauterpacht, The Development of the Law of International Organization by the Decisions of International Tribunals’ (Leiden, Brill, 1976, Vol. 152), p. 430. See also D. Akande, ‘The competence of international organizations and the advisory opinion of the International Court of Justice’, 9 E.J.I.L. 1998, pp. 444–445 and Hogg, supra note 22, p. 435. Cf Linderfalk, supra note 22, p. 292. Back
²⁹ Reparation for Injuries Suffered in the Service of the United Nations Advisory Opinion, supra note 11, pp. 181–184. Back
³⁰ Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion, supra note 11, pp. 56–58. Back
³¹ Asylum Case (Colombia v. Peru), supra note 19, p. 275. Back

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of the express provision. ³² In this context, it is important to elaborate on the effects of the presence of express powers and implied powers in the same domain.

This paper argues that an implied power can be invoked even in the presence of an express power, as long as the two powers are compatible with each other. ³³ This view is generally accepted by the international community. ³⁴ The acceptance of the implied power of the Security Council to authorize States to use force despite the presence of Article 43 of the UN Charter, which empowers the Security Council to take military action through armed forces made available to it in accordance with agreements concluded with all member States, is an example in this regard. ³⁵

The ICJ seems also to uphold implied powers in the presence of express powers. Most notably, the ICJ, in its Advisory Opinion Concerning the Continued Presence of South Africa in Namibia, has stated that: “The reference in paragraph 2 of this Article [Article 24 UN Charter] to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1”. ³⁶

In sum, an implied power can be claimed by a State party to a treaty or by an international organization established by a specific treaty as long as this power is necessary for the attainment of the treaty’s object and purpose and is not in contradiction with any of its express provisions.

Thus, to claim that an implied power to use force without authorization from the Security Council arises by necessary implication out of the UN Charter , two conditions must be fulfilled: (i) the power to use force must be necessary to achieve the UN’s goals and (ii) the use of force by States, either unilaterally or under the authority of the General Assembly, must not contradict the provisions of the Charter. However, prior to examining whether those conditions are fulfilled, the following section examines whether the Security Council has in fact failed in its fight against chemical weapons in Syria, as it is commonly alleged that its failure to do so justifies bypassing the Security Council.

II. The Failure of the Security Council against the Use of Chemical Weapons

As mentioned earlier, the US seeks to justify its military strike on a Syrian airbase by arguing that the United Nations has failed to counter the continued use of chemical weapons in Syria. In this context, it is pertinent to ask the following questions: how does one assess whether the Security Council has really failed in its fight against chemical weapons? And does Russia’s exercise of its vetoing powers bring about a deadlock in the Security Council?

³² V. Engström, ‘Implied Powers of International Organizations: On the Character of a Legal Doctrine’, Vol. 14 Finnish Yearbook of International Law 2003, p. 149; J. Gold, Interpretation: The IMF and International Law (London, Kluwer Law International, 1996), p. 45. Back
³³ Engström, supra note 32, p. 147. Back
³⁴ Cf dissenting opinion of Judge Moreno Quintana, Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter) Advisory Opinion, 20 July 1962, I.C.J Rep. 1962, p. 245, where he stated that: “An implied power should be invoked when explicit powers provide for the eventualities under consideration”. See also dissenting opinion of Judge Hackworth, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Advisory Opinion, supra note 11, p. 80. Back
³⁵ See 2005 World Summit Outcome, UNGA Res. 60/1, 24 October 2005, § 79 where States “reaffirmed the authority of the Security Council to mandate coercive action to maintain and restore international peace and security”. See also N. Blokker, ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and the Willing”’, Vol. 11 No. 3 E.J.I.L. 2000, pp. 541–568. Back
³⁶ ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, 21 June 1971, I.C.J. Rep. 1971, § 110. See also Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter) Advisory Opinion, supra note 34, p. 167 where the Court stated that: “it cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded”. Back

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That the Security Council may be impeded from carrying out its responsibilities, given a permanent member’s use of veto, was first addressed in the Uniting for Peace (UFP) Resolution 377 A (V), which states that: “where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security the General Assembly shall consider the matter immediately”. ³⁷

Those who opposed this resolution argued that a permanent member’s use of veto power is an exercise of a right provided for in the UN Charter, and therefore the veto does not prevent the Security Council from fulfilling its responsibilities. ³⁸ F. A. Vallat, a proponent of this view, precisely clarified his position and stated the following:

The mere exercise of the veto does not in itself seem to be a very good ground for claiming that the Council has ceased to deal with the matter. A change of approach or of circumstances may lead to changes in voting of delegations. Therefore, it is always possible that the Council, having failed to adopt a resolution at one meeting, may do so at a later meeting. ³⁹

Although Vallat’s opinion is valid, it must be pointed out that, in some cases, the exercise of veto may bring about a deadlock within the Security Council that would prevent the Council from maintaining international peace and security. This particularly occurs when the veto is repeatedly exercised to block all the measures proposed to counter a particular threat or breach of international peace and security, which in turn prevents the Security Council from fulfilling its responsibilities. This view is strengthened by the fact that the Security Council has a duty to act whenever a threat or breach of peace occurs.

As per Article 24 of the UN Charter, member States have conferred on the Security Council “the primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”. ⁴⁰ The Article also states that: “In discharging these duties, the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII and XII”. ⁴¹ What, then, are these duties which, if the Security Council does not fulfil, shall amount to its failure in carrying out its responsibility?

It is uncontested that the Security Council has the discretionary power to decide what constitutes a threat to or breach of international peace and security ⁴² , and that it also has the freedom to choose the means and measures to address the threats. ⁴³ Therefore, it cannot be argued that the Security Council has the duty to

³⁷ See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 9 July 2004, I.C.J. Rep. 2004, §§ 30–31. Back
³⁸ For example: see Statements made by the Union of Soviet Socialist Republics in GAOR 5th Plenary Meeting 301, UN Doc. A/PV.301, 2 November 1950 and the statement made by Byelorussian Soviet Socialist Republic in GAOR 5th Plenary Meeting 300, UN Doc. A/PV.300. See also L. D. Johnson, ‘“Uniting for Peace”: Does it still serve any useful purpose?’, 15 July 2014, http://www.asil.org/blogs/%E2%80%9Cuniting-peace%E2%80%9D-does-it-still-serve-any-useful-purpose; P. Webb, ‘Deadlock or Restraint? The Security Council Veto and Use of force in Syria’, Vol. 19 J.C.S.L. 2014, pp. 471–488; J. Cot & A. Pellet, La Charte des Nations Unies: Commentaire article par article (Paris, Economica, 1985), p. 460; A. Roberts, ‘Legality vs. Legitimacy: Can Uses of Force be Illegal but Justified?’, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1518290, p. 186 and D. H. Joyner, ‘The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm’, Vol. 13 No. 3 E.J.I.L. 2002, p. 608. Cf J. Andrassy, ‘Uniting for Peace’, Vol. 50 A.J.I.L. 1956, pp. 563–582 and see also M. S. McDougal & R. N. Gardner, ‘The Veto and the Charter: An Interpretation for Survival’, in M. S. McDougal et al (eds.), Studies in World Public Order (Dordrecht, Martinus Nijhoff, 1987), p. 757 stating that: “An interpretation designed to promote the major purpose of the United Nations need not maintain, in oblivion to fact, that the Council is exercising the functions assigned to it when a veto by a permanent member prevents it from doing so”. Back
³⁹ F. A. Vallat, ‘The General Assembly and the Security Council of the United Nations’, Vol. 29 B.Y.I.L. 1956, p. 82. Back
⁴⁰ (emphasis added). Back
⁴¹ (emphasis added). Back
⁴² Article 39 of the UN Charter. Back
⁴³ This is illustrated by a literal reading of Chapters VI and VII which stipulate that the Security Council “may decide”, “may take such action”, “may recommend”. See also Report of the Secretary General, Responsibility to protect: timely and decisive response, UN Doc. A/66/874-S/2012/578, 25 July 2012, § 54. Back

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introduce a subject matter into the agenda or characterize a particular situation as a threat to international peace and security. Neither does it have the duty to adopt a particular course of action. As a result, the argument that the repeated use of veto in those situations against addressing a particular matter or taking a specific action leads to the failure of the Security Council to fulfil its responsibilities appears indefensible. ⁴⁴ In this context, it is pertinent to identify the specific duties and responsibilities of the Security Council which are mentioned in Article 24.

This paper argues that the Security Council has the duty to initiate action against a particular situation after ascertaining whether the situation constitutes a threat to international peace and security. In other words, if the Council determines that a particular situation is a threat to or a breach of international peace and security, but fails to agree on any measure to address the situation, one may argue that the Security Council has not accomplished its duty to act and thus failed to carry out its responsibility. This interpretation is evidently warranted by the imperative text in Article 39 of the UN Charter: “The Security Council…shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. ⁴⁵ It is worth noting how Article 39 uses the word “shall” – unlike Articles 40, 41 and 42 which use the word “may” – which emphasizes that the Security Council has a duty to act whenever a threat to or breach of peace is determined. Claiming otherwise would render the difference in expressions used meaningless, violating the principle of effectiveness in interpretation.

In sum, this paper argues that it is not the use of the veto per se that leads to a conclusion of the Security Council’s failure to exercise its function, but rather it is the cumulative effect of the use of veto in a particular situation which brings about a deadlock in the Council as if it has “ceased to deal” with such a situation within the meaning of Article 12(2) of the UN Charter. ⁴⁶ Most notably, this situation prevailed during the Cold War period and was the main reason for the adoption of the Uniting for Peace Resolution.

The author believes that the situation in the Security Council with regards to chemical weapons in Syria is indistinguishable from the aforementioned situation during the Cold War. It is undeniable that the Security Council has taken a number of measures to counter the use of chemical weapons in Syria. However, in the following paragraphs, the paper argues that a deadlock has occurred in the Council despite these measures.

The Security Council adopted two resolutions—Resolution 2118 (2013) and Resolution 2209 (2015) – which condemned the use of chemical weapons and threatened that measures under Chapter 7 would be imposed on non-compliant States. The Council also adopted Resolution 2235 (2015), which involved the establishment of the Organisation for the Prohibition of Chemical Weapons (OPCW)-UN Joint Investigation Mission (JIM) with the mandate of identifying individuals, entities, groups or governments responsible for the use of chemical weapons in Syria. In 2016, the JIM issued two reports, which suggested the involvement of the Assad regime and ISIS in chemical attacks in Syria. ⁴⁷

Despite these measures, allegations of widespread use of chemical weapons in Syria continued. As a result, a number of States presented a draft resolution aimed at imposing sanctions against those responsible for the chemical attacks in Syria, as mentioned in the JIM report: the Assad regime and ISIS. The draft

⁴⁴ Webb, supra note 38, pp. 476–479; K. Creutz, ‘Can the Law Help? Debating Security Council inaction on Syria’, 24 September 2015, http://www.fiia.fi/en/publication/531/can_the_law_help/, pp. 7–10 and S. Mohamed, ‘Omissions, Acts, and the Security Council’s (in)Actions in Syria’, Vol. 31 Berkley International Law Journal 2013, pp. 419–423. Back
⁴⁵ (emphasis added). Back
⁴⁶ See Andrassy, supra note 38, p. 569, where he stated that: “‘Exercising functions’ does not depend exclusively upon the formality that a question be included in, or deleted from, the agenda of the Security Council. In addition, it must be ascertained whether the Council is actually dealing with the question”. Back
⁴⁷ UNSC Res. 738, 24 August 2016 and UNSC Res. 888, 21 October 2016. Back

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resolution also sought to establish a committee to identify others involved in chemical attacks in Syria. ⁴⁸ Russia and China exercised their veto power to prevent the enactment of this resolution. Their primary argument was that the findings of the JIM were flawed and based on weak evidence; no further actions could be taken upon them. ⁴⁹

It can be argued that this incident represented the early stages of the precipitation of a deadlock within the Security Council in the context of chemical weapons. This view is further strengthened by the following events. The Security Council gathered in the aftermath of the alleged chemical attack in Khan Shaykhun to discuss the adoption of a resolution to condemn the alleged chemical attack and place certain obligations on the Syrian regime. The obligations were aimed at facilitating the OPCW-fact-finding mission (FFM) in its investigation carried out to determine whether a chemical attack had in fact occurred in Khan Shaykhun. They were also intended to aid the JIM in identifying those responsible for the attacks. ⁵⁰ The draft resolution was not adopted, as Russia once again exercised its veto and argued that supporting the resolution would amount to supporting the US’s “illegitimate” military strike. Russia also argued that the resolution was based on results that were determined before any investigation had been carried out (an indication of bias). ⁵¹

Indeed, Russia specified that it did not mind carrying out further investigations in the aftermath of the Khan Shaykhun attack; yet it continued to condemn the aforementioned draft resolution. As a result, no investigation was conducted in the aftermath of the Khan Shaykhun attack. It is worth noting that Russia stressed also the need for an impartial investigation, and demanded that all pieces of evidence be submitted to the Council for consideration. It is likely that Russia’s demands were intended as a means to prevent further measures, given its tendency to repeatedly question the methods used to gather evidence and the validity of the evidence as well.

In light of the aforementioned, the author finds that Russia’s position forces the Security Council to run in circles, and prevents it from fulfilling its duty to act in the context of chemical weapons. Indeed, Russia will exercise its right of veto whenever the Security Council is prepared to adopt a specific measure in response to an investigation carried out by the FFM or in response to any report issued by the JIM. It is likely to do so by claiming that the evidence was dubious and unreliable. In addition, Russia blocked all draft resolutions aimed at referring the Syrian situation to the ICC. ⁵² A change in Russia’s position does not seem likely, especially since it has acknowledged Syria’s claims that the latter has stopped the operation of all its chemical weapons facilities; the OPCW reports, however, maintain otherwise. ⁵³ Therefore, it is

⁴⁸ Albania, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, New Zealand, Norway, Poland, Portugal, Qatar, Romania, Saudi Arabia, Slovakia, Spain, Sweden, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution, S/2017/172, 28 February 2017. Back
⁴⁹ S/PV.7893, 28 February 2017, pp. 6–10. Back
⁵⁰ France, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution S/2017/315, 12 April 2017. Back
⁵¹ S/PV.7922, 12 April 2017, pp.6–8. Back
⁵² A draft resolution for referring the situation in Syria to the International Criminal Court was previously vetoed by Russia and China; see S/PV.7180, 22 May 2014. See also Albania, Andorra, Australia, Austria, Belgium, Botswana, Bulgaria, Canada, Central African Republic, Chile, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Jordan, Latvia, Libya, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Monaco, Montenegro, Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Samoa, San Marino, Saudi Arabia, Senegal, Serbia, Seychelles, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution, S/2014/348, 22 May 2014. Back
⁵³ See ‘Statement by Ambassador Kenneth D. Ward, United States Delegation to the Executive Council of the Organization for the Prohibition of Chemical Weapons EC-M-54’, 13 April 2017, http://www.opcw.org/fileadmin/OPCW/EC/M-54/en/United_States_ECM54_Statement.pdf, pp. 2–3. Back

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unreasonable to expect Russia to offer support to investigations that aim to hold the Assad regime accountable for the chemical attacks in Syria.

It can therefore be said that Russia’s approach has prevented the Security Council from taking any further action to address the continued use of chemical weapons in Syria. In short, the Security Council has failed to fulfil its duty to act.

Concluding on the failure of the Security Council in facing the use of chemical weapons in Syria, the following section examines the legality of military strikes carried out against Syria under the implied powers doctrine; specifically, it addresses the instances where attacks were conducted without authorization from the Security Council.

III. An Implied Power to Use Force in the Absence of Authorization from the Security Council?

As mentioned earlier, the right to use force against Syria, given its repeated use of chemical weapons, in the absence of authorization from the Security Council, could be regarded as an exercise of implied power on the basis of the following two conditions: first, the use of force must be considered a necessary power for the maintenance of international peace and security; and second, the use of force must not contradict provisions of the UN Charter. In this section, the author assesses both of these conditions by analysing the alleged necessity for the use of force as such in the fight against chemical weapons (1). The section also examines whether provisions of the UN Charter pose obstacles for States to claim and exercise the power to use force, either unilaterally or under the authorization of the General Assembly (2).

1. The Use of Force: A Necessity? ⁵⁴

Whether it is a necessity to employ military force against Syria has been debated since 2013, when the UK, ⁵⁵ the US, ⁵⁶ and France ⁵⁷ threatened to use force against Syria following the chemical attack that took place on 21 August 2013. The necessity to use force to address and deter the use of chemical weapons was laid down in the report entitled ‘Chemical weapons use by Syrian regime: UK government legal position’, which states that:

Previous attempts by the UK and its international partners to secure a resolution of this conflict, end its associated humanitarian suffering and prevent the use of chemical weapons through meaningful action by the Security Council have been blocked over the last two years. If action in the Security Council is blocked again, no practicable alternative would remain to the use of force to deter and degrade the capacity for the use of chemical weapons by the Syrian Regime.

In these circumstances and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike targets with the aim of deterring and disrupting further such attacks would be necessary and proportionate and thus legally justifiable. ⁵⁸

Australia, Canada, France, Italy, Japan, the Republic of Korea, Saudi Arabia, Spain, Turkey, the United Kingdom, and the United States issued a joint statement at the Group of 20 (G20) Leaders’ Meeting held in Saint Petersburg, Russia:

Signatories have consistently supported a strong UN Security Council Resolution, given the Security Council’s responsibilities to lead the international response, but recognize that the Council remains paralyzed as it has been for two

⁵⁴ It shall be emphasized that the author does not intend here to tackle necessity as one of the circumstances precluding wrongfulness that justify the use of force. See more on this topic: O. Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford, Hart Publishing, 2012), pp. 198–248. Back
⁵⁵ ‘Policy Paper: Chemical weapons use by Syrian Regime: UK government legal position’, supra note 8. Back
⁵⁶ ‘Statement by the President on Syria’, 31 August 2013, http://www.whitehouse.gov/the-press-office/2013/08/31/statement-president-syria. Back
⁵⁷ ‘Government Declaration and Debate at the National Assembly and Senate-Speech by Laurent Fabius at the Senate’, 5 September 2013, http://franceintheus.org/spip.php?article4867. Back
⁵⁸ ‘Policy Paper: Chemical weapons use by Syrian Regime: UK government legal position’, supra note 8. Back

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and a half years. The world cannot wait for endless failed processes that can only lead to increased suffering in Syria and regional instability. We support efforts undertaken by the United States and other countries to reinforce the prohibition on the use of chemical weapons. ⁵⁹

In addition, 33 more States have signed this statement, which explicitly supports the actions taken by the US. ⁶⁰ On the other hand, Russia ⁶¹ has opposed military intervention in Syria, and it continues to question whether the Assad regime was really involved in the chemical attacks. Similarly, Brazil, ⁶² China, ⁶³ Egypt, ⁶⁴ Ecuador, ⁶⁵ Ireland, ⁶⁶ Jordan, ⁶⁷ Pakistan, ⁶⁸ and Vietnam ⁶⁹ have expressly opposed military intervention in Syria. They argue that the only possible solution to the Syrian situation is always a political, not a military one.

Yet another group of States did not support or condemn threats of military intervention by the US and the UK; they did, however, support investigations carried out under the auspices of the UN. A large number of European Union countries hold this view. ⁷⁰ At this juncture, it is important to recall these arguments and efforts in order to assess the necessity of using force against the use of chemical weapons in Syria.

In 2013, threats to use force issued against Syria were abandoned due to diplomatic discussions between Russia and the US, which not only resulted in Syria’s accession to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical

⁵⁹ "Joint Statement on Syria", 6 September, 2013, http://www.whitehouse.gov/the-press-office/2013/09/06/joint-statement-syria. Back
⁶⁰ ‘Statement of Additional Countries in Support of September 6 Joint Statement on Syria’, http://www.whitehouse.gov/the-press-office/2013/09/10/statement-additional-countries-support-september-6-joint-statement-syria. Back
⁶¹ 'President Putin in an Interview to Channel One and Associated Press news agency’, 4 September 2013,
http://www.eng.kremlin.ru/transcripts/5935. Back
⁶² ‘Attack in Syria’, 23 August 2013, http://www.itamaraty.gov.br/en/press-releases/8018-attack-in-syria. Back
⁶³ ‘Wang Yi: China Calls for Political Solutions to Syria Issue, and Welcomes Russia and the U.S. to Reach Framework Agreement on Syria's Chemical Weapons Issue’, 15 September 2013,
http://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/xybfs_663590/gjlb_663594/2888_663776/2890_663780/t1077765.shtml. Back
⁶⁴ ‘Egyptian Minister of Foreign Affairs’ Statement on the Developments in Syria’, 29 August 2013,
http://www.mfa.gov.eg/english/embassies/egyptian_embassy_bolivia/mediacenter/pages/NewsDetails.aspx?Source=6781921f-3993-444a-859e-ee26ce851de8&newsID=ea905c30-093a-4972-8f11-e5a3e901d1c1. Back
⁶⁵ ‘Ecuador rejects the possibility of armed aggression against Syria’, http://www.cancilleria.gob.ec/ecuador-rejects-the-possibility-of-armed-aggression-against-syria/. Back
⁶⁶ ‘Statement by the Tánaiste on Syria’, 28 August 2013,
http://www.dfa.ie/news-and-media/press-releases/press-release-archive/2013/august/statement-on-syria/. See also ‘Tánaiste’s address to Joint Committee on Foreign Affairs and Trade, on Syria’, 18 September 2013, http://www.dfa.ie/news-and-media/speeches/speeches-archive/2013/september/joint-committee-on-foreign-affairs-on-syria/. Back
⁶⁷ Ministry of Foreign Affairs and Expatriates, http://www.mfa.gov.jo/ar/الاخبار /الاخبار / القائمةالرئيسية /tabid/159/Articled/336/-336.aspx, last accessed 25 July 2016. Back
⁶⁸ ‘Record of the Press Briefing by Spokesman on 29th August 2013’, 29 August 2013, http://www.mofa.gov.pk/pr-details.php?mm=MTM5Mg. Back
⁶⁹ ‘Remarks by Foreign Ministry Spokesman Luong Thanh Nghi on Syria’s situation’,
https://www.mofa.gov.vn/en/tt_baochi/pbnfn/ns130904232638, last accessed 30 July 2015. Back
⁷⁰ See ‘Remarks by EU High Representative Catherine Ashton, following the informal meeting of EU Foreign Ministers, Vilnius’, 7 September 2013, http://eeas.europa.eu/statements/docs/2013/130907_01_en.pdf, last accessed 30/7/2016, where it was stipulated that: “The EU underscores at the same time the need to move forward with addressing the Syrian crisis through the UN process. We note the on-going UN investigation on the 21st of August attack and further investigations on other chemical weapons attacks carried out in this conflict. It hopes a preliminary report of this first investigation can be released as soon as possible and welcomes President Hollande’s statement to wait for this report before any further action. The EU urges the UN Security Council to unite in its efforts to prevent any further chemical attack. To that effect, it encourages the UNSC to fulfill its responsibilities and take all initiatives to achieve this goal. The EU and its member States intend to play a full and active part in that context”. Back

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Weapons Convention), but also laid the framework to phase out Syria’s chemical weapons inventory in order to eventually destroy its weapons in a speedy and safe manner. The Security Council endorsed this development in its Resolution 2118 (2013), which further threatened that non-compliance, including unauthorized transfer of chemical weapons or any use of chemical weapons by anyone in Syria, would necessitate the imposition of Chapter 7 measures of the UN Charter.

Since then, the Security Council has been briefed on a monthly basis regarding the progress of the destruction and elimination of Syria’s chemical weapons. Although 92,5% of the declared stockpile of chemical weapons in Syria was reported to be destroyed by April 2014, ⁷¹ it was alleged that the Assad regime continued to use chemical weapons in the country. The allegation was raised by the Syrian coalition in a letter to the Security Council. ⁷² In addition, France claimed that it possessed information, but not undisputable proof, about the Assad regime’s use of toxic gases against opposition targets. ⁷³ The US also claimed that it had gathered information that indicates that toxic gases had been used, and it was examining allegations that the Assad regime was responsible for these attacks. ⁷⁴ Concerns were also raised about the truth and validity of Syria’s original declaration regarding its chemical weapons production facilities, which was submitted to the OPCW Declaration Assessment Team. ⁷⁵ At the same time, the Syrian Government argued that the opposition was responsible for the use of chemical weapons in the country. ⁷⁶

On 10 September 2014, the OPCW-FFM stated that it had gathered compelling evidence that chlorine bombs were repeatedly used and that they were delivered by helicopters. ⁷⁷ These allegations were confirmed in its report which was brought to the attention of the Security Council. ⁷⁸ Although the report did not attribute blame, members of the Security Council were divided in their assessment of the OPCW-FFM’s work. The US, the UK, and France expressed concerns as the information gathered by the FFM pointed to the Assad regime’s involvement; the regime was the only entity that possessed an aerial capacity in Syria. ⁷⁹ Russia, on the other hand, questioned the validity of the evidence and stated the following:

…any further activity of the OPCW fact-finding mission should be based on professionalism, objectivity and impartiality. Any conclusions on the facts related to the use of chemical weapons should be based on sound proof…We wish to once again state categorically that we do not accept the possible use of sanctions under Chapter VII of the Charter of the United Nations without an attempt to confirm any allegations based on proof. ⁸⁰

This difference of opinion led to the adoption of Resolution 2209 (2015), which was declaratory in nature. The resolution merely condemned the use of chlorine as a chemical weapon and stated that non-compliance with Resolution 2209 and Resolution 2118 would make it necessary for the Security Council to impose Chapter 7 measures.

⁷¹ S/2014/300, 25 April 2014. Back
⁷² S/2014/285, 17 April 2014. See also the Human Rights Watch report claiming the responsibility of the Assad regime for the use of chemical weapons, 13 May 2014, http://www.hrw.org/news/2014/05/13/syria-strong-evidence-government-used-chemicals-weapon. Back
⁷³ ‘Hollande: “L’Etat ne paie pas de rançons”’, 20 April 2014, Back
⁷⁴ http://m.state.gov/md225020.htm#SYRIA, last accessed 30 July 2016. Back
⁷⁵ ‘Remarks at the Security Council Stakeout following consultations on Syria’, http://usun.state.gov/remarks/6142, last accessed 30 July 2016. Back
⁷⁶ A/68/846-S/2014/271, 14 April 2014. Back
⁷⁷ ‘OPCW Fact Finding mission: “Compelling Confirmation” that chlorine gas used as weapon in Syria’, 10 September 2014, http://www.opcw.org/news/article/opcw-fact-finding-mission-compelling-confirmation-that-chlorine-gas-used-as-weapon-in-syria/. Back
⁷⁸ S/2014/955, 30 December 2014. Back
⁷⁹ S/PV.7401, 6 March 2015, pp. 3–5. Back
⁸⁰ Id., p. 3. Back

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Allegations of the use of chemical weapons persisted despite these measures. ⁸¹ The US expressed its concern at the growing number of reports and allegations against the Assad regime, and declared that it would take further steps to address the repeated use of chemical weapons in Syria. ⁸²

In August 2015, following months of negotiations, the Security Council unanimously adopted Resolution 2235, which pertained to the establishment and operation of the OPCW-UN JIM with the mandate of identifying individuals, entities, groups or governments responsible for the use of chemical weapons in Syria. The Security Council also reiterated that it would impose Chapter 7 measures in case of non-compliance with previously adopted resolutions.

In the meeting which led to the adoption of this resolution, members of the Security Council welcomed the resolution with the hope of holding those responsible for the attacks accountable and for discouraging the future use of chemical weapons. They also expressed their willingness to rely on the results of the JIM for formulating further measures. ⁸³ Hope and reliance on the results of the JIM were also expressed outside the hall of the Security Council. ⁸⁴

In August 2016, the JIM announced that it had gathered more information that pointed to the involvement of both the Government of Syria and ISIS, ⁸⁵ at the time when the OPCW issued another report that stated that one Syrian chemical weapon production facility was yet to be destroyed. The latter also announced that the main focus of the OPCW mission would be directed toward addressing gaps and discrepancies in Syria’s original declarations of its chemical weapons production facilities and inventory. ⁸⁶

In October 2016, the JIM issued another report in which it confirmed that the Assad regime was responsible for the use of chemical weapons in three other incidents. ISIS was also found to be responsible for another chemical attack. ⁸⁷ In parallel, the OPCW monthly reports did not vary in content. ⁸⁸

Despite the aforementioned steps, more allegations were leveled against Syria for repeated use of chemical weapons, and this drove a number of States to present a draft resolution aimed at imposing sanctions against those responsible for the use of chemical weapons as per the JIM reports. However, Russia exercised its vetoing power to block the resolution. Russia also blocked a resolution in the aftermath of the Khan Shaykhun chemical attack.

On the basis of the points discussed above, it can be said that measures adopted have not served to deter the use of chemical weapons in Syria or protect civilians from chemical attacks. Other measures to hold

⁸¹ ‘Syria: Chemical used in Idlib Attacks’, 13 April 2015, http://www.hrw.org/news/2015/04/13/syria-chemicals-used-idlib-attacks. Back
⁸² ‘Allegations of Chemical weapons use in Sarmin, Syria’, http://m.state.gov/md239510.htm, last accessed 15 July 2016. Back
⁸³ S/PV.7501, 7 August 2015. Back
⁸⁴ See Draft resolution :Bahrain, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Jordan, Kuwait, Luxembourg, Malta, Micronesia (Federated States of), Morocco, Qatar, Saudi Arabia, Slovenia, Spain, Sweden, Turkey, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America and Yemen, A/C.3/70/L.47, 2 November 2015, deploring the Assad regime’s continued use of chemical weapons and demanding its compliance with Security Council resolutions, also supporting the adoption of Resolution 2235, p. 4, 8. See also Alya Ahmed Al-Thani, Letter dated 11 August 2015 from the Permanent Representative of Qatar to the United Nations addressed to the President of the Security Council, S/2015/617, 11 August 2015, transmitting a letter from the representative of the National Coalition of Syrian Revolution and Opposition Forces in which reliance was expressed on the JIM to take further measures against any use of chemical weapons. Back
⁸⁵ S/2016/738, 24 August 2016. Back
⁸⁶ S/2016/748, 29 August 2016. Back
⁸⁷ S/2016/888, 21 October 2016. Back
⁸⁸ S/2017/175, 27 February 2017. Back

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those responsible for the attacks accountable are also no longer available, as any referral to the International Criminal Court through the Security Council is likely to be opposed by Russia and China. ⁸⁹

In sum, it can be said that non-enforcement measures have not effectively deterred the use of chemical weapons in Syria. As a result, the use of force (aiming to end the use of such weapons) is deemed necessary to prevent future use of chemical weapons and to enforce the resolutions discussed above. Since the author lacks military training, it is hard to recommend a precise military strategy to prevent the use of chemical weapons in Syria. It is also hard to ascertain to what extent the April 2017 US military strike resembles the type of necessary military action to preclude any future use of chemical weapons. However, it has been reported that the Government of Syria has conducted sarin attacks using warplanes, which were launched from the air base attacked by the American forces. ⁹⁰ This calls into question the efficacy of the American strikes. ⁹¹ On the other hand, one may still envisage the enforcement of a no-fly zone as a necessary measure to reduce the incidence of chemical attacks and protect civilians in Syria.

Concluding that the use of force is necessary to preclude the use of chemical weapons in Syria, the next section deals with the following question: to what extent do provisions of the UN Charter impede the adoption of measures to use force in the absence of the Security Council’s authorization?

2. The UN Charter Provisions: An Obstacle?

First, this section seeks to ascertain whether the UN Charter prohibits States from using force unilaterally, especially in the event of a deadlock within the Security Council (A). Second, it examines whether the UN Charter prohibits States from using force in Syria if authorized by the General Assembly (B).

A. The Unilateral Use of Force: Is it Prohibited?

In this context, it is necessary to examine an essential principle of the UN system, namely Article 2(4), which prohibits the use of force. This analysis is necessary to decide whether the UN Charter recognizes an implied power for States to use force in the event of a deadlock within the Security Council.

This Article states that: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.”

It is argued that there is a lacuna in the UN Charter: it does not envisage the possibility of deadlock within the Security Council. In other words, Article 2(4), according to this point of view, does not prohibit or permit the use of force in this situation. ⁹² Therefore, an exercise of implied power to use force against Syria does not contravene any express provision in the UN Charter.

⁸⁹ A draft resolution for referring the situation in Syria to the International Criminal Court was previously vetoed by Russia and China; see S/PV.7180, 22 May 2014. See also Albania, Andorra, Australia, Austria, Belgium, Botswana, Bulgaria, Canada, Central African Republic, Chile, Côte d’Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Jordan, Latvia, Libya, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Monaco, Montenegro, Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Samoa, San Marino, Saudi Arabia, Senegal, Serbia, Seychelles, Slovakia, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland and United States of America: draft resolution, S/2014/348, 22 May 2014. Back
⁹⁰ ‘As Warplanes return to scene of sarin attack, Trump defends missile launch’, 9 April 2017, http://www.theguardian.com/world/2017/apr/08/syria-khan-sheikun-sarin-attack-strike-trump-views-unclear. Back
⁹¹ M. Milanovic, ‘Illegal but Legitimate?’, 10 April 2017, http://www.ejiltalk.org/illegal-but-legitimate/. Back
⁹² J. Mertus, ‘Reconsidering the Legality of Humanitarian Intervention: Lessons from Kosovo’, Vol. 41 No. 5 William & Mary Law Review (2000), http://scholarship.law.wm.edu/wmlr/vol41/iss5/7, pp. 1775–1778; W. M. Reisman, ‘Criteria for the Lawful Use of Force in International Law’, 1985, http://digitalcommons.law.yale.edu/fss_papers/739, pp. 278–279. Back

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As mentioned earlier, the UK seems to hold a similar stance; in the aftermath of the 2013 chemical attack, the UK made the following declaration:

If action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disturbing the future use of chemical weapons by the Syrian regime… ⁹³

This argument, however, is flawed. This paper argues that Article 2(4) absolutely prohibits the use of force in international relations. The Article lays down the terms of the prohibition in very broad terms and does not take into consideration the functioning of the UN machinery at any given time. Considering the refusal to uphold the proposal presented by a French delegate during the negotiations for the establishment of the UN strengthens the view. The French proposal stated that: “Should the Security Council not succeed in reaching a decision, the members of the organization reserve to themselves the right to act as they may consider necessary in the interest of peace, right and justice”. ⁹⁴ Therefore, the UN Charter lacks a similar provision to that of the League of Nations which stipulated that:

If the Council fails to reach a report which is unanimously agreed to by members thereof, other than representatives of one or more of the parties to the dispute, the members reserve to themselves the right to take such action as they shall consider necessary for maintenance of right and justice. ⁹⁵

Considering the ICJ’s statement in the Nicaragua case also strengthens this view; the ICJ stated the following: “The principle of non-use of force…may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security or to the facilities or armed contingents to be provided under Article 43 of the Charter”. ⁹⁶

The ICJ also ruled out an argument according to which the prohibition of force was conditioned upon the functioning of the UN, in its judgment in the Case Concerning the Corfu Channel. In response to the UK’s view that the use of force was legal because it was necessary to ensure that the evidence was not taken by the other party and thus facilitated the task of the Court, the ICJ declared the following:

The Court cannot accept such line of defence. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. ⁹⁷

The Cold War does not seem to have impacted and changed this interpretation. ⁹⁸ To the best of the author’s knowledge, the UN’s inability to guarantee collective security was invoked once during this period: by Israel as a justification for the use of force in the Entebbe incident in 1976, when it argued that Article 2(4) should be interpreted to allow a limited use of force when the machinery envisaged by the UN Charter is ineffective in the situation. ⁹⁹ Yet this argument was rejected by members of the Security Council. ¹⁰⁰

⁹³ ‘Policy Paper: Chemical weapons use by Syrian Regime: UK government legal position’, supra note 8. Back
⁹⁴ UNCIO, Vol. III, p. 385. Back
⁹⁵ Covenant of the League of Nations, Article 15(7). Back
⁹⁶ ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Merits), 27 June 1986, I.C.J Rep. 1986, p. 100. Back
⁹⁷ ICJ, Corfu Channel Case, supra note 19, p. 35. Back
⁹⁸ N. Krisch, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq and the Security Council’, http://www.mpil.de/files/pdf2/mpunyb_krisch_3.pdf, p.88. See also L. Henkin, ‘The Reports on the Death of Article 2(4) Are Greatly Exaggerated’, 65 A.J.I.L. 1971, pp. 544–548. Back
⁹⁹ S/PV.1942, 13 July 1976. Israel quoted D. P. O’Connell in International Law (London, Stevens, 1970, 2nd ed.) who in turn stated that: “Article 2(4) of the UN Charter should be interpreted…not to prohibit a use of force which is limited in intentions and effects to the protection of a State’s own integrity and its nationals’ vital interests, when the machinery envisaged by the UN Charter is ineffective in the situation”. Back
¹⁰⁰ S/PV.1940, 12 July 1976. See also C. Gray, International Law and the Use of Force (Oxford, Oxford University Press, 2000), pp. 24–26. Back

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A similar argument was made to justify NATO’s intervention in Kosovo in 1999; a number of States justified this action by citing the failure of the Security Council to take any further action. ¹⁰¹ Although the Security Council did not condemn NATO’s action, this could not be seen as a challenge to the generally accepted interpretation of Article 2(4) for the following reasons.

First, some States considered NATO’s action a “flagrant violation” of Article 2(4). ¹⁰² In addition, a closer look at some of the justifications offered in support of NATO’s action reveals that the States did not challenge the interpretation of Article 2(4), preferring instead to stress the exceptionality of the situation they were facing. ¹⁰³ Other States argued that condemning NATO’s action would amount to supporting the former Yugoslavia’s violation of human rights. ¹⁰⁴ Their non-condemnation, therefore, cannot be interpreted as an acceptance of the legality of military intervention. Consequently, it cannot be argued that there has been subsequent practice challenging the absolute prohibition on the use of force; the absolute prohibition on the use of force remained undisputed. ¹⁰⁵

Similarly, States’ reactions to threats issued by the US, the UK and France in 2013 negate the claim that the Syrian situation affords the opportunity to challenge the absolute prohibition of force. First, certain States, including Russia, China, South Africa, and Egypt, have expressly objected to the use of force in Syria. While other States have not condemned or supported the use of force in Syria without the Security Council’s approval, it is unreasonable to infer that this silence is in favour of the legality of the use of force given the controversy of opinions in this context.

Additionally, the joint statement expressing support toward the efforts by the US and other countries to reinforce the prohibition on the use of chemical weapons ¹⁰⁶ is too vague to claim that the States believed in the legality of a military intervention in Syria in the absence of the Security Council’s authorization. First, it is very likely that the support expressed for the efforts by the US points to the diplomatic negotiations that took place at the time in order to compel Syria to ratify the Chemical Weapons Convention, as these negotiations were in the spotlight. Even if one considers that their support for the US’s efforts was meant to refer to the threats to use force, by analysing that statement the author believes that – quoting Corten’s words – “it cannot be affirmed with certainty that they consider they are dealing with existing law”; ¹⁰⁷ their statement seems more de lege ferenda. Taking all these points into consideration, one can argue that the Syrian situation in 2013 did not alter the generally accepted interpretation of article 2(4) as laying down an absolute prohibition of force.

In sum, it can be argued that an implied power of the States to use force outside the framework of the UN is contrary to Article 2(4) and thus does not exist. This is all the more confirmed by having regard to the main rationale for establishing the UN, which is to prevent going back to a time when States unilaterally

¹⁰¹ See notably Slovenia, S/PV.3988, 24 March 1999, pp. 7,19; Netherlands, id., p. 8; United Kingdom, id., pp. 11–12. Back
¹⁰² Notably Russia, UNSC S/PV.3989, 26 March 1999, p. 5; China, id., p. 9; Belarus, id., p. 12; Cuba, id., pp. 12–14; India, id., p. 15. Back
¹⁰³ See declaration of Germany, A/54/PV.8, 22 September 1999, p.12; Belgium declaration, A/54/PV.14, 25 September 1999, pp.17. Cf Netherlands, S/PV.4011, 10 June 1999, p. 12, stating that: “We sincerely hope that the few delegations which have maintained that the North Atlantic Treaty Organization (NATO) airstrikes against the Federal Republic of Yugoslavia were a violation of the United Nations Charter will one day begin to realize that the Charter is not the only source of international law”. Back
¹⁰⁴ Canada, UNSC S/PV.3989, supra note 102, p. 3; Bahrain, id., p. 9. For an analysis of the view of States expressed during and since the Kosovo crisis see A. Cassese, ‘A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’, Vol. 10 No. 4 E.J.I.L. 1999, pp. 791–799. Back
¹⁰⁵ See Vienna Convention on the Law of Treaties, Article 31(3)(b) which provides that: “Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into account for the purpose of interpreting the treaty”. Back
¹⁰⁶ Supra note 59. Back
¹⁰⁷ Corten, supra note 54, p. 515. Back

17 decided to use force in the interest of the international community. ¹⁰⁸ Hence, it can also be argued that the American military strike, which was not authorized by the UN, is essentially illegal.

Nevertheless, one can still question whether the implied powers doctrine plays any role in allowing States to use force in the fight against chemical weapons in Syria. This brings to mind the question of whether the General Assembly has the implied power to adopt military measures, a question which is tackled in the following subsection.

B. Reviving the Uniting for Peace Resolution against chemical weapons

This section examines whether the military strike conducted by the United States would be legal if it had been authorized by the UN General Assembly. In order to do so, it is necessary to examine whether the General Assembly has the power to authorize a military strike against Syria in the first place.

To this end, it is essential to verify whether this implied power contradicts any express provision in the Charter, in particular Article 11. This Article is believed to play a significant role in preventing the General Assembly from exercising an implied power to authorize the use of force.

Article 11(2), states that:

The General Assembly may discuss any question relating to the maintenance of international peace and security….and except as provided in article 12, may make recommendations with regard to any such questions. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion. ¹⁰⁹

Article 11 has drawn a lot of controversy among jurists. While some argue that the term “action” refers to military measures, which would disallow the General Assembly from recommending the use of force, ¹¹⁰ others argue that the term refers only to mandatory decisions. As per the second view, the General Assembly can authorize States to use force; however, the General Assembly’s authorization can only be in the form of recommendation. ¹¹¹

Similarly, States, too, interpret the term “action” in different, and often controversial, manners. Debates regarding the correct interpretation of this term reached high points during the enactment of Resolution 377 A (V) (the Uniting for Peace Resolution), ¹¹² during other debates regarding the efforts to finance the UN Emergency Force in Egypt (established in 1956), and during the UN Operation in the Congo (established in 1960). ¹¹³ Consequently, the author rejects the possibility of claiming the presence of any subsequent practice in the application of the Charter that establishes the agreement between the parties regarding the interpretation of article 11(2).

With regards to the ICJ, the Court has addressed this problem surrounding Article 11(2) in the Certain Expenses advisory opinion, stating that:

The word ‘action’ must mean such action as is solely within the province of the Security Council…The ‘action’ which is solely within the province of the Security Council is that which is indicated by the title of Chapter VII of the Charter,

¹⁰⁸ V. Gowlland-Debbas, ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’, Vol. 11 No. 2 E.J.I.L. 2000, p. 374 and Krisch, supra note 98, p. 87. Back
¹⁰⁹ (emphasis added). Back
¹¹⁰ Corten, supra note 54, pp. 329–336 and Malcolm N. Shaw, International law (Cambridge, Cambridge University Press, 2003, 5th ed.), p.1153. Back
¹¹¹ Andrassy, supra note 38, pp. 563–582; Vallat, supra note 39, pp. 63–104 and K. Hailbronner & E. Klein, ‘Article 10’, in B. Simma et al (eds), The Charter of the United Nations: A Commentary (Oxford, Oxford University Press, 1994), pp. 227–233. Back
¹¹² See A/C.1/SR.354, 9 October 1950; A/C.1/SR.357, 10 October 1950; A/C.1/SR.358, 11 October 1950. Back
¹¹³ ICJ, Certain Expenses of the United Nations Advisory Opinion, supra note 36, mémoires, plaidoiries et documents. See also the Oral Statements held from 14 to 21 May and on 20 July 1962, id. Back

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namely ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’…Accordingly, the last sentence of Article 11, paragraph 2, has no application where the necessary action is not enforcement action. ¹¹⁴

This paper agrees with the ICJ’s stance that the term “action” is to be interpreted as those types of actions adopted by the Security Council under Chapter 7 of the UN Charter, but it does not agree with its stance that Article 11(2) signifies the Security Council’s prerogative to take such action. Article 11(2) is a procedural provision that aims to regulate the General Assembly’s response to questions related to the maintenance of international peace and security. Thus, Article 11(2) shall be understood in the following manner: if a question is brought before the General Assembly, it is permitted to make any recommendation without being required to refer the situation to the Security Council, yet if action under Chapter VII is necessary, the General Assembly is obligated to initiate a referral to the Security Council. However, in this context, nothing signifies the Security Council’s prerogative to recommend or take measures under Chapter 7. Interpreting Article 11(2) as highlighting the Security Council’s exclusive power to adopt measures under Chapter 7 amounts to reading into a treaty what it does not expressly or by implication contain; it is hard to imagine that referral remains required even when the Security Council fails to fulfil its duty to act.

The above interpretation is further strengthened by Article 24, which emphasizes that the responsibility conferred on the Security Council is “primary”, not exclusive. ¹¹⁵ The interpretation is also consistent with the terms detailed in Article 1, which state that the maintenance of international peace and security is one of the main objectives of the “UN”, not just the Security Council. ¹¹⁶ Furthermore, this interpretation prevents the UN Charter from becoming a dead letter. It is also rightly stated that: “no provision of the Charter would allow the conclusion that the responsibility of the organization as a whole is ended in case of inability or unwillingness of the Council to take prompt and effective action”. ¹¹⁷

What is more, practice has shown that the General Assembly, the main interpreter of its own powers, ¹¹⁸ has recommended preventive and enforcement measures not involving the use of force, which are also the types of measures adopted under Chapter 7. ¹¹⁹ Therefore, since the Charter itself does not make a distinction between enforcement measures involving the use of force on one side and enforcement measures that do not involve the use of force, it is difficult to argue that the Charter prevents the General Assembly from recommending measures involving the use of force. ¹²⁰

Nonetheless, it has been argued that although practice favours the General Assembly’s power to adopt measures not involving the use of force, this does not mean that it is empowered to adopt measures involving the use of force (it rather shows the opposite). This is strengthened by the fact that the General

¹¹⁴ Certain expenses of the United Nations Advisory Opinion, supra note 36, p. 165. Back
¹¹⁵ Id., p. 163 and ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, supra note 37, § 26. Back
¹¹⁶ See Written Statement of Canada, Certain Expenses of the United Nations Advisory Opinion, supra note 36, p. 217, mémoires, plaidoiries et documents, where it stated that: “To maintain or restore the peace by use of force if necessary is a function conferred by the Charter upon the Organization as a collective body…”. Back
¹¹⁷ Andrassy, supra note 38, p. 574. Back
¹¹⁸ The power of each organ to interpret its own functions and powers has been agreed upon in the 1945 San Francisco Conference; see Report of the Rapporteur of Committee IV/2, UNCIO, Vol. XIII, pp. 709–710, where it was stated that: “each organ will interpret such parts of the Charter as are applicable to its particular functions. The Process is inherent in the functioning of anybody which operates under an instrument defining its functions and powers...”. See also ICJ, Certain Expenses of the United Nations Advisory Opinion, supra note 36, p. 168. Back
¹¹⁹ See for example A/Res/ES-6/2, 14 January 1980, calling for the immediate, unconditional and total withdrawal of foreign troops from Afghanistan. See also A/Res/ES -7/2, 29 July 1980 through A/RES/ES-7/9, 24 September 1982. See also A/RES/1761(XVII), 6 November 1962, where the General Assembly requested member States to take certain measures to put an end to the policies of Apartheid of the Government of South Africa among which is the breaking off of diplomatic relations, boycotting all South African goods and also refusing landing and passage facilities to all aircraft belonging to the Government of South Africa. Back
¹²⁰ Andrassy, supra note 38, p. 567. Back

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Assembly has never adopted the use of force, indicating its belief that it lacks this power. ¹²¹ It is also argued that almost all resolutions adopted by the General Assembly focus on the Security Council’s role in initiating collective action when necessary, and do not mention the General Assembly. ¹²² Moreover, in the recent debates concerning the working methods of the Security Council, calls were raised to reform the use of veto power, given the deteriorating situation in Syria and the Security Council’s inaction. While many States expressed their support for France’s proposal, which called for voluntary restraints on the use of veto in cases of mass atrocities, ¹²³ no State claimed that the General Assembly had the power to take any action in the event veto is exercised. This may indicate the lack of an implied power of that organ to authorize any use of force. These incidents are argued to indicate an agreement between member States that the General Assembly lacks an implied power to authorize measures involving the use of force.

However, it still cannot be stated with absolute certainty that the aforementioned incidents reflect an agreement among States that the General Assembly cannot claim the implied power to authorize the use of force against the use of chemical weapons in Syria. The focus on the role of the Security Council in the domain of collective security lies in the fact that it is conferred with the “primary” responsibility for the maintenance of international peace and security, yet this does not signify that it is the actor exclusively tasked with the power to achieve these ends. Most texts merely reiterate the classical formula provided for in Article 24 of the UN Charter, including France’s call for voluntary restraints on the use of veto. ¹²⁴ What is more, the “primary” responsibility of the Security Council was stressed in the preamble of the Uniting for Peace Resolution 377 A (V). Consequently, such a practice is normal, and does not prove acceptance among all members that the General Assembly is entirely barred from claiming the power to authorize the use of force.

Regarding the argument concerning the absence of a recommendation to use force adopted by the General Assembly as indicative of its lack of power, it would suffice to reiterate what the PCIJ has previously stipulated in its advisory opinion concerning the competence of the Danube Commission:

Since neither the Report of the Special Committee nor any document or declaration before the Court mentions facts relating to the exercise of this right of intervention, the Court is unable to state what the situation on this point was in fact before the war. The absence, however, of findings of pertinent facts of record in respect to this specific point does not suffice to prove that such a right, which is a necessarily corollary to the duties of the European Commission, does not exist. ¹²⁵

A secondary role for the General Assembly is not ruled out by the Chemical Weapons Convention, which foresees a role not only for the Security Council but also for the General Assembly. It provides that:

¹²¹ Corten, supra note 54, pp. 329–333. Back
¹²² Id. See notably 2005 World Summit Outcome, UNGA Res. 60/1, 24 October 2005, § 80 and § 139; The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 24 October, 1970; The Definition of Aggression, UNGA Res. 3314 (XXIX), 14 December 1974; Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, UNGA Res. 42/22, 18 November 1987, §27 and Declaration on the Strengthening of International Security, UNGA Res. 25/2734, 16 December 1970. See also Report of the High-level Panel on Threats, Challenges and Change, A more secure world: Our shared responsibility, A/59/565, 2 December 2004, §§ 193–198. Cf ‘Report of the International Commission on intervention and State Sovereignty, The Responsibility to Protect’, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf, §§ 6.29–6.39, where a role was envisaged for the GA in case of failure of Security Council to act. Back
¹²³ See A/68/PV.5, 24 September 2013. See also ‘African Representation, Future of Veto Power, Intergovernmental Process Figure Prominently in General Assembly Annual Debate on Security Council Reform’, 30 October 2015, http://www.un.org/press/en/2015/ga11715.doc.htm. Back
¹²⁴ See ‘Political statement on the suspension of the veto in case of mass atrocities’, http://www.franceonu.org/IMG/pdf/2015_08_07_veto_political_declaration_en.pdf. Back
¹²⁵ PCIJ, Jurisdiction of the European Commission of the Danube between Galatz and Braila, 8 December 1927, PCIJ series B, p.67 (emphasis added). Back

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The Conference shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and the United Nations Security Council. ¹²⁶

Taking all of the above into consideration, it can be argued that the General Assembly, much like the Security Council, has the power to adopt measures involving the use of force. The General Assembly shall exercise this power in accordance with Article 12 when the Security Council fails to fulfil its functions. As mentioned earlier, the Council can be said to have failed to fulfill its functions not only when it removes a matter from its agenda, but also when it is faced with a deadlock as explained in Section 2. This assures the absence of an overlap of functions and powers between the Security Council and the General Assembly with regards to matters related to the maintenance of international peace and security.

However, how can the General Assembly exercise the power to take action involving the use of force? Does the General Assembly have the power to authorize its members to use force? The power to grant authorization is not envisaged in the UN Charter. However, it is generally accepted that the Security Council has an implied power to authorize States to use force as a necessary corollary of its responsibility for the maintenance of international peace and security. ¹²⁷ Similarly, it could be argued that the General Assembly has the implied power to authorize the use of force when necessary for the fulfilment of its secondary responsibility related to the maintenance of international peace and security. At this juncture, it is important to ask the following question: does the recommendatory character of the resolutions adopted by the General Assembly preclude it from authorizing States to use force? In other words, is the General Assembly barred from providing authorizations because the UN Charter only acknowledges expressly the recommendatory character of its resolutions (in international peace and security), as distinguished from the binding character of resolutions adopted by the Security Council?

To answer the above question, one must examine the nature of authorizations. An authorization to take a specific action does not hold the addressees under any obligation; rather, they have the liberty to decide. They may even opt not to perform the authorized action. Therefore, one may argue that, prima facie, the General Assembly is not barred from providing authorizations, as they do not create binding obligations; they are more like recommendations. However M. D. Öberg argues that: “an authorizing effect upon one person corresponds to a ‘correlative’ binding effect upon one or several other persons, the content of which is to accommodate that right.” ¹²⁸ Recommendations, therefore, cannot have an authorizing effect. This paper, however, does not agree with this interpretation.

As per Hohfeld’s classification of rights, upon which Öberg based his conclusions, a right, in the strictest sense, necessarily implies a corresponding duty. On the other hand, a privilege is the “negation of a duty”, which does not have any duty as its correlative but rather a series of “no-rights”. ¹²⁹ Applying this classification to authorizations reveals that the right to take a specific action on the basis of an authorization cannot be described as a right in the strictest sense. Instead, it is more accurate to consider it a privilege, since authorizations normally allow for an action which is not allowed; an authorization to use force is the negation of the duty not to use force. Therefore, in this scenario, the right to use force on the basis of an authorization can be best described as a privilege. Hohfeld also states the following:

…such a privilege or liberty to deal with others at will might very conceivably exist without any peculiar concomitant rights against ‘third parties’ as regards certain kinds of interference. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the “no-rights” of “third parties”. ¹³⁰

¹²⁶ CWC, Article XII (4). Back
¹²⁷ See Blokker, supra note 35, pp. 547–552. Back
¹²⁸ M. D. Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, Vol. 16 E.J.I.L. 2005, pp. 886–888. Back
¹²⁹ W. N. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, Vol. 23 Yale Law Journal 1913, pp. 28–44. Back
¹³⁰ Id., p. 36. Back

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Hence, privileges based on authorizations do not have any binding correlative duty.

Taking all the above into consideration, one may argue that authorizations are similar to recommendations, since they do not create any obligations. Therefore, claiming that the General Assembly has the implied power to issue authorizations to use force does not contradict or vary those expressed powers conferred upon this organ.

One final aspect remains: is it legal for States to use force on the basis of the General Assembly’s authorization? In other words, do authorizations to use force adopted by the General Assembly legalize the use of force by States? While the legalizing effect of recommendations adopted by the General Assembly continues to be debated, ¹³¹ it may not be necessary to tackle this topic, as it suffices to say that it has been argued in this paper that the General Assembly has the power to use force, much like the Security Council; consequently it has the power to delegate that right to member States. Moreover, the use of force under the authority of the United Nations is not prohibited under Article 2(4) of the UN Charter. The main object of this provision is “to replace a rationale of unilateral use of force by mechanisms instigating collective security”, ¹³² and as previously mentioned, it provides for an absolute prohibition on the use of force outside the framework of the UN system. A contrario, the use of force by States on the basis of an authorization from the UN, regardless of the authorizing organ, is not prohibited by this provision. ¹³³

In light of the above, this paper argues that any future military strike aimed at eradicating the use of chemicals weapons would be legal if it is authorized by the General Assembly.

IV. Conclusion

This paper concludes that the military strike conducted by the US on the Syrian airbase in April 2017 was illegal, as the UN Charter provisions do not recognize an implied right for States to use force unilaterally, even in the case of the Security Council’s failure to act.

On the other hand, this paper also argues that that the General Assembly has the implied power to authorize States to use force when necessary. In other words, it shows that States can legally conduct military strikes against chemical weapons if authorized to do so by the General Assembly. Yet one may argue that it is the political will of the dominant powers that prevents States from approaching the General Assembly for authorization.

More research is yet needed to ascertain whether it was legal for Russia in the first place to have legally exercised its right of veto in the context of the use of chemical weapons in Syria.

Prima facie, it is possible to answer in the affirmative, as the five permanent members of the Security Council have the right to use their veto.

Nevertheless, it is worth noting that the international community has unanimously condemned the use of chemical weapons in Syria, terming it a violation of international law. The use of chemical weapons in

¹³¹ See on this topic: S. Talmon, ‘The Legalizing and Legitimizing Function of UN General Assembly Resolutions’, 18 July 2014, https://www.asil.org/blogs/legalizing-and-legitimizing-function-un-general-assembly-resolutions and Y. Dinstein, War, Aggression and Self-Defence (Cambridge, Cambridge Univeristy Press, 2005, 4th ed.), p. 317, cited in Corten, supra note 54, p. 330. Cf Schermers & Blokker, supra note 11, pp. 778–779; separate opinion of Judge Lauterpacht, ICJ, Voting Procedure on Questions Related to Reports and Petitions Concerning the Territory of South-West Africa Advisory Opinion, 7 June 1955, I.C.J. Rep. 1955, p. 115; dissenting opinion of Judge Gros, ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), supra note 36, p. 339, § 33 and A. Pellet, ‘La formation du droit international dans le cadre des Nations Unies’, Vol. 6 E.J.I.L. 1995, pp. 416–417. Back
¹³² Corten, supra note 54, p. 500. Back
¹³³ Cf Johnson, supra note 38. Back

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Syria is also characterised as a war crime and a crime against humanity. ¹³⁴ Does this mean that the Syrian situation has given rise to a norm that prohibits the use of chemical weapons from which no derogation can be made, irrespective of the reason behind the use of chemical weapons? If one answers in the affirmative, to what extent, then, can Russia exercise its veto power to block a resolution aimed at enforcing a peremptory norm?

As per France’s proposal, permanent members shall voluntarily abstain from exercising their veto power in the event of mass atrocities. In other words, there may be a moral obligation to refrain from exercising the veto in such cases. The following question deserves to be researched in detail: does the prohibition against the use of chemical weapons, if considered a jus cogens norm, convert this moral obligation into a legal one?

¹³⁴ See as an example: ‘Statement by the UNASUR Council of Heads of State and Government on the Situation in the Syrian Arab Republic, 3 September 2013, http://www.itamaraty.gov.br/en/press-releases/5333-statement-by-the-unasur-council-of-heads-of-state-and-government-on-the-situation-in-the-syrian-arab-republic. Back

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