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.
The International Court of Justice made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. There, the Court was considering the juridical implications of provisions of Security Council Resolution 276, which had similarly been adopted with no textual indication that the Council was acting in exercise of its Chapter VII powers. The Court held that:
“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. . . It has also be contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. (Para 113-114)”
Applying this test for determining bindingness, the Court determined that the provisions in operative paragraphs 2 and 5 of Resolution 276 were legally binding on all U.N. member states. This included the determination by the Council in operative paragraph 2 that the presence of South African forces on the territory of Namibia was unlawful, and the Council’s call in operative paragraph 5 for all states to refrain from any dealings with South Africa that were inconsistent with this determination.
The question of which words will indicate the Council’s intent to create binding obligation is one that has been discussed in scholarly literature, though honestly not as much as the topic deserves. I recently engaged in an analysis of this subject in Chapter 6 (Pgs. 195-198) of my book on Iran’s nuclear program.
It is interesting to note in this context that in the Namibia advisory opinion, the Court found to be legally binding a provision (operative paragraph 5) which began with the words “Calls upon all States . . . ” Most scholarly commentary over the succeeding decades (including mine) has, however, categorized “calls upon” language as legally non-binding. So there would appear to be some room for disagreement over which words fall into which category.
Moving from general principles to the particular case of Security Council Resolution 2334, by far most of the resolution’s operative paragraphs do utilize words and phrases such as “calls upon,” “reaffirms,” “underlines,” and “stresses,” which are generally (with the above caveat from the Namibia case) understood not to indicate an intention on the part of the Council to create binding legal obligation for U.N. member states or for the specific addressee of the resolution. There is one exception, however. Operative paragraph 2 states that the Council:
“Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard.”
The word “demand” in this provision sticks out. “Demand” is a word that has been used by the Council to command an addressee to abide by its obligations existing independently in international law. An example of its use in this context is found in operative paragraph 17 of Resolution 687 (1991), in which the Council:
“demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt”
However, the word “demand” has also been used by the Council to create new legally binding obligations for an addressee, in contexts in which there does not exist a relevant obligation elsewhere in international law. The best example of its use in this way is in operative paragraph 2 of Resolution 1696 (2006), wherein the Council:
“Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA;”
So how should we understand the use of the term “demand” in operative paragraph 2 of Resolution 2334? The substance of the demand that the Council makes in this provision is not new. The Security Council has enjoined Israel to discontinue settlement building in the occupied territories on a number of prior occasions, including in operative paragraph 3 of Resolution 446 (1979), and operative paragraph 6 of Resolution 465 (1980). However, in both of these prior examples the injunction was framed with the term “calls upon.” Resolution 2334 is, as far as I can tell, the first time in which the word “demand” has been used by the Council in association with the injunction to discontinue settlement building.
Is this escalation in wording by the Council legally significant? If so in what way? Again, when “demand” has been used by the Council in the past, it has either been to add the Security Council’s own command to an already existing international legal obligation by the addressee, or to create a new legal obligation for the addressee where one does not already exist.
So does Israel have an already existing international legal obligation to discontinue settlement building in the occupied territories, to which the Council is simply adding its own command here? There would seem to be a strong basis for this argument in the determination by the International Court of Justice in its 2004 Wall advisory opinion that, under international humanitarian law, Israel’s settlements in the occupied territories are illegal, with the clear implication that Israel’s international legal responsibility requires their cessation and dismantlement.
So if the Council’s demand in Resolution 2334 is read, as seems most persuasive, as adding the Council’s own command to Israel to abide by its independently existing legal obligations under international humanitarian law, what juridical effect, if any, does the Council’s own demand have?
It could be argued that the Council’s demand acts to create a “topped up” legal obligation, i.e. one that is based on the already existing one (here grounded in international humanitarian law) but which, by operation of the Council’s demand, is additionally made part of the addressee’s U.N. Charter obligations which, pursuant to U.N. Charter Article 103, would prevail over obligations under any other international agreement.
Is that what the Council meant to do in this case? Is that why they changed the injunction from one called for to one demanded?
I’m not sure it’s clear what the Council meant by adding the word “demand” here. But we do know from the Namibia advisory opinion that the words used by the Council in its resolutions do matter for legal analysis. We also know that it is possible for provisions in a Council resolution not textually linked to Chapter VII to be legally binding.
I will refrain from reaching here a conclusion about operative paragraph 2 of Resolution 2334. But I definitely don’t think that one can conclusorily determine that Resolution 2234 does not create, or at least add to the juridical character of, legally binding obligations for Israel.