Really Binding? Security Council Resolution 2728 (2024) and Non-State Actors

There has been controversy, including on this blog, over whether the UN Security Council resolution 2728 (2024) on the Palestinian question is legally binding or not. It seems to me that while Eran Sthoeger places much emphasis on whether the Council resolution can be traced back to Chapter VII, Eirik Bjorge regards the use of the operative word “demands” in the resolution as a critical element. The former rejects the binding force of the resolution, and the latter affirms it. Unfortunately, both scholars missed a key issue with regard to the binding nature of the resolution: whether the said resolution can bind non-State actors.

Resolution 2728 provides the following in the first operative paragraph:

(1) Demands an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire, and also demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs, and further demands that the parties comply with their obligations under international law in relation to all persons they detain;

‘[A]ll parties’ here necessarily includes a significant non-State actor in this conflict, Hamas. I agree with Bjorge in that the Council’s use of the term ‘demands’ as the operative word, coupled with the statements of Council members in support of the resolution’s binding force, gives a strong indication that the first operative paragraph is legally binding. However, this is about the Council’s intention. The question of whether the Council has the legal power to bind non-State actors is a different matter.

The Security Council’s ‘Demands’ Towards Non-State Actors

The Security Council’s power to bind non-State actors is a long-standing issue among scholars since Article 25 of the UN Charter provides, ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. Non-State actors are not UN members, so the question of whether, to what extent, and why the Council resolutions can bind non-State actors must be addressed.

The cases of the Council’s ‘demands’ towards non-State actors are not rare at all. Operative paragraph 2 of resolution 1267 (1999) on Afghanistan demanded that the Taliban turn over Usama bin Laden, and its operative paragraph 14 made it clear that this demand created ‘the obligation’ for the Taliban. Resolution 1127 (1997) on Angola demanded that UNITA implement its obligations under the Lusaka Protocol. Resolution 1244 (1999) on Kosovo demanded that the KLA and other armed Kosovo Albanian groups end immediately all offensive actions. Resolution 2178 (2014) even made a demand on ‘all foreign terrorist fighters’ to cease all terrorist acts. More recently, resolution 2677 (2023) demanded that South Sudan’s leaders implement a permanent ceasefire.

The ICJ Kosovo Advisory Opinion considered resolution 1244 in detail, but it only stated, ‘it has not been uncommon for the Security Council to make demands on actors other than United Nations Member States and inter-governmental organizations’ (para.116). The Opinion did not provide a clear answer to the present issue. However, the accumulation of the Council practice is so evident, and UN member States seem to have accepted this practice. Thus, it is now firmly admitted by scholars that the Council can make binding orders on non-State actors, such as armed groups and individuals (E De Wet, ‘Introduction to Chapter VII’ in The Charter of the United Nations: A Commentary (4th edn, 2024) pp.1621-1622; FW Dahmane, ‘Les mesures prises par le Conseil de Sécurité contre les entités non-étatiques’ (1999) p.244).

The legal basis under the UN Charter of the Council’s binding order on non-State actors is not a difficult issue, especially when it comes to a ceasefire order, such as the first operative paragraph of resolution 2728. Article 40 of the UN Charter provides that the Council may issue provisional measures upon ‘the parties concerned’, not upon UN members. This wording is broad enough to include non-State actors.

Why Council Resolutions Can Bind Non-State Actors That Do Not Give Consent to the UN Charter

Apart from the legal basis under the UN Charter, the question of why non-State actors that do not give consent to the UN Charter can be bound by Council resolutions is not an easy one. The first possible—and somewhat bold—explanation is that the UN Charter is now the constitution of the international community and thus endows the Council with a comprehensive authority to bind non-State actors. (B Fassbender, The United Nations Charter as the Constitution of the International Community (2009) pp.148-150; A Peters, ‘Article 25’ in The Charter of the United Nations: A Commentary (4th edn, 2024) p.1077). Nevertheless, I am not bold enough to join the position that the use of the constituent power of ‘the Peoples of the United Nations’ as provided in the Charter preamble has resulted in the UN Charter as a constitutional form (Fassbender, p.94). Whereas ‘We the People’ in the US Constitution is singular, ‘We the Peoples’ in the UN Charter is plural. This indicates that the Charter is an intergovernmental treaty rather than the constitution of the international community.

The second possible explanation is a much more traditional one: a consent-based approach of international law. According to this approach, non-State actors under the jurisdiction of UN member States are bound by the UN Charter through the ratification of the UN Charter by those States. Put differently, non-State actors are bound by the Council’s decision via the consent of UN member States (LS Borlini, ‘The Security Council and Non-State Domestic Actors’ (2021), p. 531; Dahmane, op.cit.). This explanation does not contain a leap in imagination and is also very consistent with the wording of Article 25 of the UN Charter, which provides that it is UN members that accept Council decisions.

However, this is not the end of the discussion as far as resolution 2728 is concerned. A vexing issue still remains. That is, under which State’s jurisdiction does Hamas exist? If the Gaza Strip is a part of the territory of the State of Palestine whose accession to the UN was vetoed by the US at the Council’s 9609th meeting, no jurisdiction of any UN member States cover the Strip. It might be asserted that such jurisdiction is being exercised by Israel, a UN member State. According to the ICJ Advisory Opinion on the Occupied Palestinian Territory, even after Israel’s withdrawal of its military presence from the Gaza Strip in 2005, Israel still remains the occupying power with the obligations under the law of occupation in the Strip (para.94). Yet the Opinion found that ‘the continued presence of Israel in the Occupied Palestinian Territory is illegal’ (para.266). It is absurd to argue that the illegal presence could be the basis of the binding force of the Council resolution.

The last possible basis of the binding force of resolution 2728 is the customary international law theory (S Talmon, ‘Article 2 (6)’ in The Charter of the United Nations: A Commentary (4th edn, 2024) p.419). According to this, the UN Charter provisions establishing a system of collective security have given rise to norms of customary international law, on the basis of which the Council may impose binding orders even on non-UN member States. If so, it might be opined that Hamas could also be bound by the Council order via the jurisdiction of the State of Palestine that could be bound by the Council order based on the customary international law.

While the intended value of this theory is understandable, in my view, the customary international law theory is untenable. Switzerland abandoned its restrictive policy of neutrality and started full participation in UN sanctions since 1990 before its accession to the UN in 2002. Nevertheless, as Talmon himself has mentioned, the Federal Council of Switzerland insisted that this was done not because Switzerland was legally obliged to do so, but autonomously and voluntarily (MC Krafft et al., ‘Switzerland’ in National Implementation of United Nations Sanctions (2004)). Given the small number of non-UN member States, this practice demonstrates a lack of general practice leading to the formation of the above-mentioned customary international law.

Conclusion

In conclusion, what can be said of the binding force of resolution 2728 is a perplexing one. The Council intended to bind ‘all parties’, but it lacks the power to do so. The resolution is binding only on State actors, not on non-State actors in States that are not members of the UN. In other words, it is binding on Israel, not on Hamas. The resolution has an asymmetric character in this sense. To say that resolution 2728 is binding or not binding is not correct. This is why I cannot agree with either Sthoeger or Bjorge.

Resolution 2728 is politically and legally very important but has the troublesome character, as shown in this post. This is politically and legally undesirable. The following resolution 2735 (2024) only ‘calls upon’ Hamas to accept the new ceasefire proposal of 31 May. The operative word ‘calls upon’ has generally had a recommendary nature (N Krisch, ‘Introduction to Chapter VII’ in The Charter of the United Nations: A Commentary (3th edn, 2012) p.1265), so this choice of word is better than that of resolution 2728. The Council is expected to adopt another ceasefire resolution in the near future. It must fully account for legal difficulties surrounding its competence under the UN Charter.