International Law

The Surprisingly Broad Scope of UN Security Council 1973: Not Just a No-Fly Zone, at Least So Long as Gaddafi Is On Offense

By Robert Chesney
Thursday, March 17, 2011, 11:01 PM

Anthony Arend (Georgetown) has the text of UNSCR 1973, which among other things authorizes a no-fly zone for Libya (and possibly more, though it explicitly does not authorize any "occupation" forces).  Here are some of the key passages in relation to military force, along with a bit commentary from me after each:

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council

- commentary: This authorizes whatever force is needed to "protect civilians and civilian populated areas," not just to impose a no-fly zone.  Only the introduction of a "foreign occupation force" is excluded. Of course, just what counts as sufficiently related to protection of civilians is subject to debate.  But in any event, this authority certainly would extend to the use of air power against ground forces advancing on Benghazi, to give the most pressing example.  And to be clear, it does not actually exclude the use of ground forces; it only excludes "occupation forces," which is not co-extensive with ground forces in general (much of the media coverage seems to be skipping over this nuance, implying that only air power has been authorized).  On the other hand, the express linkage to protection of civilians likely will come to seem a more significant restraint in the event that there is a military intervention to stave off the collapse of Benghazi and the rebel forces then resume their offensive in an effort to conquer Gaddafi-held territory. 

8. Authorizes Member States that have notified the Secretary-General and the Secretary-General of the League of Arab States, acting nationally or through regional organizations or arrangements, to take all necessary measures to enforce compliance with the ban on flights imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation with the League of Arab States to coordinate closely with the Secretary General on the measures they are taking to implement this ban, including by establishing an appropriate mechanism for implementing the provisions of paragraphs 6 and 7 above,

- commentary: This, of course, authorizes the use of force in support of a no-fly zone throughout Libya (paragraph 6 covers the full geographic scope of the country), sparing states any need to explain how any particular no-fly zone enforcment action relates to protection of civilians. 

There is more, including more explicit authority to stop ships on the high seas in the course of enforcing the arms embargo.   Interestingly, at least the BBC account of UNSCR 1973 suggests that it was the Obama Administration that pushed for the relatively expansive authority it contains:

A draft UN resolution tabled by the UK, France and Lebanon on Tuesday proposed a ban on all flights in Libya, authorised member states to enforce it and called on them to participate in it.

But on Thursday the US, which had been cool on the effectiveness of a no-fly zone, said the UN should go further and a new strongly-worded draft resolution was put forward calling for "all necessary measures short of an occupation force" to protect civilians under threat of attack from the Gaddafi regime.

In any event, the legal debate from a US perspective now moves on to constitutional separation of powers questions, assuming the Administration does intend to participate in any uses of force in Libya under color of UNSCR 1973.  Specifically, as anticipated by Jack here, the question becomes whether the Administration must obtain some form of explicit authorization from Congress in order to act in accordance with UNSCR 1973.  On that front, this piece from Josh Rogin at The Cable is worth reading.  After noting Senator Lugar's statement to the effect that the Administration should not use force in Libya absent a Declaration of War, Rogin quotes Senator Graham as stating:

"They have my authorization. You can't have 535 commander in chiefs," Graham said. "I would like to have a vote in the floor when we get back saying they did the right thing. But that shouldn't restrict the president from taking timely action."

With Gaddafi's forces advancing on Benghazi, and with Gaddafi apparently promising "no mercy" to the rebels, this situation seems likely to develop quickly.  In the meantime, check out Peter Feaver's insightful commentary on the political and policy aspects of the situation.