As I have read commentary on the recently adopted resolution by the U.N. Security Council (Resolution 2334) addressing Israeli settlements in the occupied territories, I’ve noticed a number of commentators who appear to assume that, since this resolution was not explicitly adopted in exercise of the Council’s Chapter VII powers, therefore all of its operative provisions are per se legally non-binding. Orde Kittrie, writing over at Lawfare, seems to make this assumption clear when he writes:
“Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity.”
I thought this would be a good opportunity to write briefly to clarify that the legal obligation for U.N. Charter states parties to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not contingent upon the Council’s acting in exercise of its Chapter VII powers. Any decision of the Security Council is legally binding upon all U.N. member states, whether or not the text of the resolution explicitly references Chapter VII.
Rather, the key question for determining whether a particular provision of a Security Council resolution is legally binding on member states (i.e. whether the provision is a “decision” of the Security Council), including the specific addressee of the resolution, is whether the Council has chosen to use words within the provision indicating its intent to create a legally binding obligation.