Why Today’s UN Security Council Resolution Demanding an Immediate Ceasefire Is Legally Binding
Today, the Security Council adopted a resolution calling for an immediate ceasefire in Gaza during Ramadan as a first step to a “lasting sustainable ceasefire”. This comes after a months-long impasse and a total of five vetoes on the matter (three vetoes from the United States and two vetoes from China and Russia, with the latest vetoes cast just last week).
Resolution 2728 (2024) (full text here, the official text should be up here within the next few days) was introduced by the ten non-permanent members (E10) under the leadership of Mozambique. It “[d]emands an immediate ceasefire for the month of Ramadan…leading to a lasting sustainable ceasefire”. It also “demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs”. Lastly, and more broadly, the same paragraph demands “that the parties comply with their obligations under international law in relation to all persons they detain”. This is the first time since October 2023 that the Security Council has called for a ceasefire in Gaza. The resolution was adopted with 14 votes in favor. The United States abstained.
Is the resolution legally binding?
Immediately after the resolution had passed, US Spokesperson Matthew Miller stated that “the resolution today is a non-binding resolution”. A similar view was expressed by Linda Thomas-Greenfield, the US Permanent Representative to the United Nations, who stated that the United States fully “support[s] some of the critical objectives in this non-binding resolution” (here, at minute 26:00). In a press meeting held by the E10 afterwards (here, starting at minute 3:00), the South Korean representative questioned the legal validity of the resolution on the basis that it does not contain the word “decide” and was not adopted under Chapter VII. Is there any substance to this claim?
As is well established, the Security Council can adopt legally binding resolutions. Under Article 25 of the UN Charter, the “Members of the United Nations agree to accept and carry out the decisions of the Security Council”. The crucial word of the provision is “decision”: if the Security Council uses hortatory language, such as recommending measures, no legal obligation arises. In addition, the Security Council routinely uses the phrase “acting under Chapter VII” when it e.g. establishes peacekeeping missions or authorizes the use of force. But is this phrase necessary for legal validity, as claimed by the South Korean representative? The answer is in the negative.
It is not necessary to adopt a resolution under Chapter VII for it to be legally binding
It has been established for several decades that resolutions not explicitly adopted under Chapter VII can just as well contain legally binding obligations. The International Court of Justice famously stated in its Namibia Advisory Opinion:
“It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council.” (para. 113)
There is thus both a textual and a systematic argument to be made that Article 25 UN Charter extends to all decisions of the Security Council.
It is not necessary to explicitly use the word “decide” for a resolution to be legally binding
Whether or not a resolution contains a decision is thus to be evaluated based on the text in question, not whether the resolution was adopted under Chapter VII or Chapter VI. The ICJ states: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect.” (Namibia Advisory Opinion, para. 114). Here, the South Korean representative suggests that because the Security Council did not use the word “decides”, there is no legal bindingness. However, the Security Council does not typically decide that a ceasefire exists – it cannot will a ceasefire into existence through a decision. Rather, it uses this language to, e.g., decide to establish a peacekeeping mission or decide to deploy observers. The text of the resolution adopted today is unequivocal and strong: it explicitly demands an immediate ceasefire for the month of Ramadan as well as the immediate and unconditional release of all hostages. There is no uncertainty in the language: what weight should a demand carry, if not that of a legal obligation? To compare, in the abovementioned Namibia Advisory Opinion, the Court found (at para. 115) that inter alia the following requests were legally binding: “Calls upon the Government of South Africa to withdraw its administration from the Territory immediately” (S/Res/269 (1969), para 5) and “Calls upon all States…to refrain from any dealing with the Government of South Africa which are inconsistent with paragraph 2 of the present resolution [declaring the continued presence of South Africa in Namibia illegal]” (S/Res/276 (1970), para 5). It is not clear on which basis there should be a difference between the words “calls upon” and “demands” – if anything, the latter has a stronger connotation.
Resolution 2728 (2024) is legally binding – but for whom?
Security Council Resolution 2728 (2024) is thus legally binding and, in conjunction with Article 103 UN Charter, takes precedence over any other treaty obligation a UN member state might incur. There is no question that the resolution is binding upon all UN member states from the wording of Article 25 (“all members”), which includes the state of Israel. But what about Hamas? Again, the International Court of Justice has made relevant findings. In the Kosovo Advisory Opinion, the Court observed that the Security Council had made requests to specific actors and that it was in a position to do so. It then stated: “When interpreting Security Council resolutions, the Court must establish, on a case-by-case basis, considering all relevant circumstances, for whom the Security Council intended to create binding legal obligations.” (at para. 117). The demand for an immediate ceasefire, and specifically the demand of “the immediate and unconditional release of all hostages” can only be understood as to refer directly to Hamas as well, especially in light of the further calls on “all parties” in the same paragraph.
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In conclusion, the resolution is – despite statements to the contrary – legally binding and creates a legally binding request for an immediate ceasefire during Ramadan and a legally binding request to immediately release all hostages. The obvious elephant in the room is enforcement: who is to enforce the Security Council resolution in the current situation? It ultimately falls to the parties of the conflict to heed the Security Council’s call, and to the Council itself to enforce its requests. Given the experience of the past months, this is no cause for enthusiasm. Yet, the fact that the Council could agree on the text, after five vetoes on the matter, is, perhaps, a shred of hope.
It is worth noting that the same issue with regard to the word „demand“ arose around S/Res/2334 (2016); see eg https://www.ejiltalk.org/legal-bindingness-of-security-council-resolutions-generally-and-resolution-2334-on-the-israeli-settlements-in-particular/
Thanks Ralf, absolutely worth noting – it would be interesting to do a more extensive study on how states and other actors have interpreted the word “demand” over the years. My hunch is that it’s by and large considered legally binding (the post cites some examples where this has been the case), given the literal meaning of the word “demand”, especially as compared to “calls upon” which ICJ found to be legally binding.
Tips on the Choice of Words
The most common and most neutral keyword that is used to begin an operative clause is “Requests.” This is typically used when a resolution asks the Secretary-General to do something.
When a GA resolution includes an operative clause that asks the SC to do something, it must remain polite; hence use of the keyword “Recommends” or “Invites” is desirable.
Sometimes the drafters of a resolution want to begin a clause with a word that contains more emotion. For example, “Calls upon” is stronger than “Requests” and “Urges” is considered to be even stronger. “Demands” expresses the highest level of emotion, but is
rarely used. Ref. : un.org/en/model-united-nations/drafting-resolutions
demand all they want, the Security Council did not adopt any measures to compel either Israel or Hamas to stop fighting or to release hostages. thus, the norm of obedience to the Council certainly comes into play as to comprehension of ‘legally binding’.
The Council for better or worse has rarely been able to enforce its resolutions, ie, make them binding. Parties to conflicts, eg, Russia and Ukraine, Israel and Arab opponents, India and China, Yemeni civil war combatants, regularly ignore the Council. The precedent of ignoring resolutions now has a massive base of precedent. without specific sanctions, resolutions are not binding. No one cares about Namibia anymore.
Greetings:
The hierarchy of legal instruments is also important, and I suggest including them in your argument. Prohibition of hostage-taking is a good example of jus cogese standing at the highest place of the hierarchy. Customary international law also confirms this prohibition. decisions of the SC stand one degree lower than jus cogens norms. An effective interpretation of the hierarchy may suggest that some of the elements in the Res. 2728 are ultra vires.
Let’s explain it a little clearer. In case the advocates of the resolution insist on the legal bindingness of the Res., they should admit the immediate and unconditional release of hostages before the demand for a ceasefire.
One more thing. The Res. 2728 might be legally binding. But it is not valid since it goes against the jus cogence norms. There are more arguments. If you are willing, please contact for a conversation.
Art 51 has supremacy in this case. The UNSC can make legally binding resolutions but only so long as it does not take upon itself powers that it does not have. The UNSC can not strip a member state of its inherrent right to self-defence, and any resolution to that effect would be legally void.
A very well argued post. I wanted to know that the Russian claim about amendment and removal of the word ‘permanent’ was about which part – ‘immediate ceasefire’ or ‘lasting and sustainable ceasefire’?
You need to explain what Chapter 7 says and why it exists. UN actions in Korea, Kuwiat (and perhaps Kosovo) were passed in reference to Chapter 7. The latest UNSCR, was not.
The latest UNSCR is not enforceable. De facto, it is also non-binding.
Israel is being attacked by more than one actor and from within more than one country. Some of these actors are also within Gaza and do not identify as Hamas, a prominent example are the members of Islamic Jihad.
The stated purposes from these non Hamas actors is to support Hamas.
Without the resolution explicitly specifying which actors, would the resolution apply to Hezbollah, Islamic Jihad, Lebanon, Syria, Yemen, Iran etc.?
How is Israel meant to respond to the missiles and attacks if it can’t identify if they are from a member of Hamas or a regular militant?
I raise these questions as your excellent analysis appears to assume the resolution was binding on Israel and Hamas when the current war involves many other actors.
Other comment
The treatment of Security Council resolutions in the domestic law of member states is a separate issue.
International law leaves for each country’s domestic law the mechanisms by which states incorporate international law into their legal systems.
Non-self-executing treaties, while creating binding obligations under international law, require implementing legislation to become effective domestically. In such countries,
Security Council resolutions that are binding as a matter of international law, such as article 41 sanctions resolutions, are generally considered non-self-executing, and therefore considered not binding as a matter of domestic law unless domestic implementing legislation is enacted.
One such country is the United States. See, e.g., Medellin v. Texas, 552 U.S. 491, 509–16 (2008)
http://www.supremecourt.gov/opinions/07pdf/06-984.pdf, in which the Supreme Court ruled that treaties at issue in that case, the Vienna Convention of Consular Relations Optional Protocol, the ICJ statute, and relevant portions of the UN Charter, were non-self-executing and could not be given effect as federal law absent implementing legislation.
See Legal Effect of United Nations Resolutions Under International and Domestic Law, The Law Library of Congress, Global Legal Research Directorate, http://www.law.gov
Hi Dr Birkenkötter,
It appears to me that the crux of your argument (and certainly that of the majority) relies on the Court of Justice’s various rulings. However, several major UN powers such as the US, Russia, and even Israel, don’t recognize the Court. Therefore, do they not retain the power to interpret the Charter as they see fit? Admittedly, the argument the US put forth doesn’t seem to be made in good faith, but it does seem to be accurate. Israel has not declared by treaty that it would submit to the Court’s rulings, only the UN Charter as it understands the Charter to function. Therefore, if it understands the command issued by the Security Council not to be binding under the wording of the Charter it agreed to, then it has the right to refuse, even in bad -or shockingly immoral- taste.
I am asking as a nonexpert. Glad to be corrected if I missed something. Thanks!