Written by Emma Selin Geren Bang

Abstract

This research article explores the legal implications surrounding United Nations Security Council (UNSC) Resolution 2728, which called for an immediate ceasefire in Gaza during the 9586th meeting on March 25, 2024. The UNSC, as the highest executive body of the UN, holds significant authority in maintaining global peace and security, primarily operating under Chapter VII of the UN Charter. However, the enforceability of its resolutions, including Resolution 2728, has sparked debate, particularly regarding their alignment with international law and the UN Charter. Despite assertions by legal experts and the UN Secretary-General regarding the binding nature of UNSC resolutions under Article 25 of the UN Charter, practical challenges arise in their enforcement. The wording of resolutions, such as the use of “demand” versus “decide,” can lead to divergent interpretations, complicating efforts to ensure compliance. Additionally, disparities between the legal effects of resolutions under international law and domestic law further complicate enforcement efforts. Furthermore, the research highlights the complexities of the UNSC’s decision-making process and the drafting of resolutions, which can hinder effective action. The failure to achieve consensus on Resolution 2728 underscores concerns about the UNSC’s ability to address humanitarian crises and conflicts effectively. While the UN Charter mandates compliance with UNSC resolutions, challenges persist in translating these mandates into effective action. Moving forward, concerted efforts are needed to overcome these challenges and ensure the effective implementation of resolutions aimed at promoting peace and security in conflict-affected regions.

The UN security council voting on resolution 2728 which ‘demands’ a ceasefire in Gaza.EPA-EFE/Sarah Yenesel1

The United Nations Security Council

The United Nations Security Council- the highest executive body of the United Nations- that is in charge of ensuring world peace and security, demanded an immediate Gaza ceasefire between Israel and Hamas during their 9586^th meeting on 25 March 2024.¹ The UNSC is a unique institution, possessing legislative, judicial, and executive powers with minimal legal constraints. Operating primarily under Chapter VII of the UN Charter, it holds broad authority to uphold global peace and security, its decisions are binding on UN members.² Resolution 2728, put forth by the Security Council and presented by Mozambique’s Ambassador, Pero Afonso, was agreed upon by the E-10- the ten elected members of the Council, by a vote of 14 in favour and none against, with one abstention- the United States.³ Before delving into the validity of the binding nature of Resolution 2728, it is essential to understand how resolutions are stipulated in the UN. Regarding the Gaza- conflict, several resolutions were drafted in the General Assembly, where all 192 members engage in negotiations to uphold international peace and security according to the UN Charter VI. Every word in the draft resolutions is scrutinised in pursuit of achieving a resolution where the majority agrees and votes in favour. It is important to recognise that any resolution drafted and adopted by the General Assembly is not legally binding because it lacks the legal force to compel states to comply with its recommendations, unlike the Security Council which can impose sanctions or authorise military action under Chapter VII. The GA can suggest further actions, and if approved by the SC, they become legally enforceable. The SC stands as the singular institution having the authority to impose obligations upon sovereign states within the realm of international law.⁴

Resolution 2728;

i) “demands” an immediate ceasefire for the month of Ramadan, respected by all parties, leading to a lasting sustainable ceasefire as well as ensuring humanitarian access and other humanitarian needs, and further demands that the parties comply with their obligations under international law in relation to all persons they detain,

ii) emphasises the urgent need to expand the flow of humanitarian needs, and further demand for the lifting of all barriers to the provision of humanitarian assistance at scale, in line with international humanitarian law as well as resolutions 2712 (2023) and 2720 (2023)”; and iii) “decides” to remain actively seized of the matter.⁵

Legal Disputes and Diplomatic Tensions

The debate over the legal binding of Resolution 2728 has emerged as the central point of dispute. The United States sparked resentment within the international community, and Israel when it abstained from the resolution presented by the UNSC demanding an immediate ceasefire in Gaza to stop the atrocities performed by the Israeli government, release the hostages, and expand the flow of aid into Gaza. There were 14 votes in favour, none against and one abstention by the United States¹ which had vetoed three previous draft council resolutions on the war in Gaza which would ensure greater humanitarian aid and extended pause in fighting. On March 22, three days before the UNSC 2728 passed, the US for the first time supported a resolution using the term “ceasefire”, despite its abstention.^{6  1} such as objecting to terminology, whereas others believe it was motivated by political considerations aimed at preserving the US’ close relationship with Israel, but also pressure Netanyahu to halt the atrocities. By asserting that the resolution is “non-binding,” the US is shielding Israel, its long-standing ally, from pressure to adhere to demands for an immediate ceasefire and the release of hostages, demands to which Israel has already signalled it will not adhere to.⁷ Nonetheless, the abstention from the UNSC Resolution 2728 indicated a notable shift in its bilateral relations. Tensions between the Biden administration and Israel rose over an Israeli military operation in Rafah, the abstention prompted Netanyahu to cancel a White House visit to discuss alternatives to Israel’s plans to invade Rafah that could cause a significant displacement of Palestinians highlighting increasingly strained relations. While Biden leans towards a more lenient approach in pressuring Israel to cease its actions, Netanyahu shows no intention of halting its military operations.⁶

What does the UN Charter say?

Member states are obligated to adhere to and comply with any mandates issued by the United Nations Security Council, as it stands as the sole legal international institution with the authority to impose such obligations. Legal experts and UN Secretary-General António Guterres assert that all resolutions are legally binding according to Article 25 of the UN Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.³ But, whether the resolution is binding hinges on its alignment with Chapter VII of the UN charter, which empowers the Security Council with the authority to address threats to peace, breaches of the peace and acts of aggression, through soft power or hard power if necessary.⁸ Only the SC can authorise obligations upon the U.N.’s member states, under articles 24 and 25 of the UN Charter.¹ Oscar Schachter ⁹ underlines that the UN Charter creates rights and obligations, relying on its two basic provisions, Articles 1 and 2, to compromise the maintenance of international peace and security.⁹ Thus, if the UNSC decides to carry out actions, all member states are obligated to act under Article 42, thereby, adhering to operations by air, sea, or land forces of UN member states, such as demonstrations, blockades, and other military operations.⁸ Additionally, Chapter VI supports the SC’s foremost duty to maintain international peace and security as outlined in Article 24. This Article asserts that the language of the UN Charter grants the Security Council expansive authority to address various disputes or situations, indicating its broad discretion in safeguarding international peace and security. Hence, it can intervene in cases where there are violations of the right to self-determination or significant human rights abuses, without the need to establish an immediate threat to peace. Furthermore, states involved in a dispute cannot unilaterally or collectively remove the matter from the SC’s jurisdiction, as the Council is fulfilling its primary duty to maintain peace. In situations where there is ambiguity about whether a matter constitutes a dispute or a situation, the SC has the responsibility to determine the appropriate categorisation, involving all its Members in the decision-making process drafted in the General Assembly.

Several representatives of the Security Council, led by Mozambique and Sierra Leone, pointed to case law to support this argument, affirming that the Gaza ceasefire resolution holds binding authority irrespective of the abstention of one of the five permanent (P5) members of the Council, as was the case with the United States. These diplomats underscored that in 1971, the advisory opinion of the International Court of Justice (ICJ) established the legally binding nature of all resolutions passed by the UN Security Council.³ According to Acosta ¹⁰, the legal effect of a UN resolution on a UN member country depends on the nature and language of the resolution. Furthermore, the acts of an international organisation or its organs are legally binding on the members of the organisation only if the organisation’s constitution so provides. Consideration of the provisions in the UN Charter relating to the making of resolutions is thus authorised .¹⁰ However, all member states, including the US, ratified the Charter on 24 October 1945 when the UN. came into force and must comply regardless of their domestic constitution as it is international law. The UN Charter, approved by the ICJ, constitutes that all member-states must comply with every mandate imposed by the Security Council as it is international law. The UNSC is not required to enforce the Charter or international law but to prioritise actions, including coercive measures, to preserve and reinstate peace and security.¹¹

Enforcement Mechanisms

It is clear that any mandate made by the Security Council is binding and members must comply, however, various factors make the enforcement mechanisms and interpretations of text challenging for the enforceability of the resolution. One fundamental aspect to consider is the language employed within UNSC resolutions. Despite the inherently binding nature of the UN Charter, the wording of resolutions can introduce nuances that complicate their enforceability. For instance, the absence of what some deem as “mandatory language” in Resolution 2728 has raised concerns about its enforceability. The resolution demands a ceasefire in Gaza, but the use of “demand” instead of “decide” has led to divergent interpretations, particularly by the United States. The US representative, for instance, has expressed her concerns regarding the wording of the resolution, stating that the use of “mandatory language” was absent and therefore lacked the authority to enforce the resolution. It is important to recognise that the resolution “demands” a ceasefire, which seems straightforward, however, it poses a challenge for the US since it did not “decide” on a ceasefire. ¹² Denying the binding nature of UN Security Council resolutions, undermines not only the Council’s authority but also the broader framework of international law.⁷Adil Haque¹², professor of International Law at Rutgers, has no doubts that the resolution is binding and argues that according to the ICJ, the SC does not have to use the word “decide” to make anything an obligation when international peace and security are threatened. Any resolution that uses “mandatory language” creates obligations.¹Although it may appear as a weak justification for abstaining, the situation is multifaceted. Richard Gowen, former senior official at the U.N., believes that the controversy is due to a substantial difference in interpretations as different states interpret the Charter differently, influenced by diverse socioeconomic, historical, and geopolitical factors. He suggests that the US may interpret the text differently as a result. American jurists might not believe that “demanding” a ceasefire means that it is a mandate, backing Haque’s statement. From the American point of view, the text would have to “decide” on a ceasefire for it to be legally binding.¹²  He stresses that despite it being a small distinction, it has its origins in article 25 of the UN Charter which says that states must accept and carry out “decisions” of the Council, but it does not mention its “demands”.¹³ Hence, Resolution 2728 is non-binding^, according to the US.¹² Moreover, Acosta ¹⁰ emphasises that when the Security Council employs language such as “urges” or “invites” at the beginning of a paragraph instead of “decides,” it likely indicates an exhortatory rather than binding provision, underscoring the significance of wording. The Principal Judicial Authority on the interpretation of Security Council Resolutions (SCRs) is briefly summarised in the ICJs 1971 Namibia Advisory Opinion: The language of the SC should be carefully analysed before conclusions can be made as to its binding effect, relying on Charter 25. Yet, there is no guidance on how it should be interpreted, SCRs may be considered by national courts according to their constitutional processes. Despite the Charter being binding as noted earlier, there are no general rules of application, but there are important studies of particular SCRs done to assess the legal effects of it, but not “how” they should be interpreted.² Wood² offers two more insights. Firstly, because the Council’s documentation is so obscure, it is difficult to pinpoint its exact source. Nonetheless, the most authoritative is probably the publication that bears the symbol S/RES/ immediately following adoption. However, Resolution 2728⁵ is stated as S/RES/2728 indicating that it is authoritative and must be complied with. Second, the resolutions are also distributed in all six official languages used by the SC to conduct its business and are therefore considered genuine reducing the likelihood of misinterpretation. But that does not help if the specific wording used is misinterpreted. There is also no standard procedure for drafting SCRs, nor any institutional mechanism to ensure they are well drafted, and can therefore not be interpreted as domestic laws.²

Why Wording Matters

The research findings highlight a contentious debate surrounding the legal bindingness of Resolution 2728. While legal experts and the UN Secretary-General affirm that all UNSC resolutions are binding under Article 25 of the UN Charter, the complexities of enforcement mechanisms and interpretations of resolution texts pose significant challenges. Factors such as the use of terms like “demand” versus “decide” can lead to diverse interpretations, complicating the assessment of their enforceability. Furthermore, the research underscores the disparity between the legal effect of resolutions under international law and their effect under domestic law. Despite this, as UN members, all states are obligated to adhere to UNSC resolutions as they constitute international law. However, the study reveals vulnerabilities within the international legal framework, suggesting that it may sometimes hinder rather than facilitate its intended objectives. The research also sheds light on the difficulties in the drafting process and language used in resolutions, which can impede the Council’s ability to take effective action. This highlights the challenges of reaching consensus within the Council, particularly in addressing complex global issues. Ultimately, the findings suggest a need for re-evaluation of the enforceability of Security Council resolutions to ensure their effectiveness in promoting global peace and stability in an anarchic international system lacking a universal authority.

Conclusion

While legal experts assert the binding nature of UNSC resolutions, challenges arise in enforcement due to divergent interpretations and complexities in the drafting process. Despite obligations under international law, vulnerabilities in the framework hinder effective action, highlighting the need for reassessment to ensure resolutions promote global peace and stability. How binding UNSC resolutions are  reflect the collective commitment states give to upholding them. This is difficult to do when the UN most influential member, the United States, is eroding the legitimacy of the UNSC while pursuing its own political agenda.

References

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2. Wood MC, The Interpretation of Security Council resolutions. Max Planck Yearbook of United Nations Law. 2017. Accessed May 13, 2024 https://www.mpil.de/files/pdf2/mpunyb_wood_2.pdf
3. United Nations. Peace and Security. Gaza: Security Council passes resolution demanding ‘an immediate ceasefire’ during Ramadan, March 25, 2024. Accessed April 4, 2024, https://news.un.org/en/story/2024/03/1147931
4. United Nations, How decisions are made at the UN [internet]. [place unknown], [publisher unknown] [year of publication unknown] Accessed April 10, 2024 https://www.un.org/en/model-united-nations/how-decisions-are-made-un

5. United Nations Security Council. Resolution 2728 (2024), March 25, 2024. Accessed April 4, 2024 https://documents.un.org/doc/undoc/gen/n24/080/81/pdf/n2408081.pdf?token=eTlnVsdLl5prRfYcuC&fe=true
6. Barron R, What Does the U.N Cease-Fire Resolution Mean for the Israel-Gaza War? United States Insititute of Peace. March 26, 2024. Accessed May 22, 2024 https://www.usip.org/publications/2024/03/what-does-un-cease-fire-resolution-mean-israel-gaza-war
7. Kersten M. The Ceasefire Resolution at the UN Security Council: Why the U.S Position is both Wrong and Harmful. Justice in Conflict. April 3, 2024. Accessed May 22, 2024. https://justiceinconflict.org/2024/04/03/the-ceasefire-resolution-at-the-un-security-council-why-the-u-s-position-is-both-wrong-and-harmful/
8. United Nations Charter, Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression. October 24, 1945. Accessed April 5, 2024 https://www.un.org/en/about-us/un-charter/chapter-7
9. Schachter, O.International Law in Theory and Practice. Leiden, The Netherlands: Brill Nijhoff | Sep 1, 1991. Accessed April 6, 2024.https://doi.org/10.1163/9789004636286
10. Acosta L, Legal Effect of United Nations Resolutions Under International and Domestic Law. Law Library. Accessed April 5, 2024https://tile.loc.gov/storage-services/service/ll/llglrd/2019669646/2019669646.pdf
11. United Nations, Charter of the United Nations and the Statute of the International Court of Justice, San Fransisco, October 24, 1945, Accessed April 7, 2024 https://treaties.un.org/doc/publication/ctc/uncharter.pdf
12. Sánchez-Vallejo MA, US sparks controversy at the UN with claim that Gaza ceasefire resolution is ‘non-binding’ El Pais, New York, March 29, 2024. Accessed April 6, 2024 https://english.elpais.com/usa/2024-03-29/us-sparks-controversy-at-the-un-with-claim-that-gaza-ceasefire-resolution-is-non-binding.html#
13. The United Nations Charter Chapter V: The Security Council (Articles 23-32) Peace and Security October 24, 1945. Accessed April 5, 2024 https://www.un.org/en/about-us/un-charter/chapter-5

Author Biography

Emma Selin Geren Bang is an undergraduate student pursuing a bachelor’s degree in government and international Relations at Griffith University, with an interest in global governance and diplomacy. Through her current internship at the United Nations Association of Australia, Queensland Division (UNAAQ), she has developed a keen interest in the role of international organisations in addressing pressing global challenges like the Gaza conflict. She contributed with a research article investigating the legal enforceability of UN Security Council Resolution 2728, which aimed to halt atrocities during the Gaza war.