There is a general consensus that the resolution is only recommendatory since it was passed under Chapter VI of the UN charter, but studying the nature of the resolution proves otherwise.
On December 23, 2016, the United Nations Security Council (UNSC) adopted Resolution 2334 terming, inter alia, Israel’s establishment of settlements in the Palestinian territory, occupied since 1967, including East Jerusalem, a flagrant violation of international law. Despite the contradictory emotions associated with the resolution, there is general consensus that since it was adopted under Chapter VI of the UN Charter, the resolution is non-binding and only recommendatory. However, this logic is incorrect and Resolution 2334, though adopted under Chapter VI, binds the international community in light of Article 25 of the UN Charter and the International Court of Justice’s (ICJ) judgments interpreting the article.
UNSC Resolution 2334
The UNSC is a principle organ of the UN whose primary function is the maintenance of international peace and security as stated in Article 24 of the UN Charter. This is a power conferred on the UNSC by the member states of the UN and member nations are obligated to comply with its decisions. Since the term ‘resolution’ does not find a mention in the charter, UN practice has been to employ either ‘decisions’ or ‘recommendations’, the former being binding in nature and the latter non-binding. All UNSC resolutions have a preamble and an operative part. The preamble of Resolution 2334 reaffirms Israel’s obligation to abide by international laws, specifically, the Fourth Geneva Convention, 1949. The resolution also condemns Israeli measures that have been aimed at altering the demographic composition of the Palestinian Authority since 1967. The operative part of the resolution is divided into 13 paragraphs and is addressed primarily to Israel. Palestine is addressed too, but to a lesser extent and implicitly. Additionally, paragraph 5 of the Operative Resolution instructs all states to distinguish between Israeli territory acquired prior to and post 1967 in all their relevant dealings with Israel.
Article 25 of the UN Charter
Article 25 of the UN Charter, which obliges member states to comply with decisions of the UNSC, is fundamental for understanding the binding nature of UNSC resolutions. The Article states as follows:
“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
While Article 25 comes under Chapter V – which addresses the Security Council’s composition, functions and powers – the international law community has generally believed that UN member states are only obligated to obey resolutions which invoke Article 25 if the resolution in question operates under Chapter VII of the charter. Notably, Chapter VII resolutions are coercive enforcement measures which are employed if there is a breach of peace or acts of aggression by a state. Since Resolution 2334 is a Chapter VI resolution, by this logic member states are not obligated to put it into effect. From this perspective, Chapter VI resolutions are viewed only as the UNSC’s efforts to direct the concerned parties towards a peaceful settlement without wider international intervention.
However, this idea of demarcating Chapters VI and VII was unequivocally rejected in 1971 by the ICJ in the Namibia case, which clarified that the charter does not have a provision which states that Article 25 only applies to enforcement measures taken under Chapter VII. It also makes clear that the obligation to concur with the UNSC’s resolutions ought to apply to all the decisions made by the body in accordance with the charter. Furthermore, since Article 25, along with Articles 24 and 26, deals with the functions and powers of the UNSC under Chapter V not VII, there is no logic in tying Article 25-related obligations to Chapter VII actions. Thus, the only limit on the applicability of Article 25 obligations is the adoption of the UNSC Resolution in accordance with the UN Charter – which is not contested by either of the parties in the case of Resolution 2334.
The Namibia case and its logic was reiterated by the ICJ in the Palestinian wall case of 2004 wherein Israel was found to be in contravention of numerous UNSC resolutions none of which emanated through the channel of Chapter VII. Thus one can come to a conclusion that there exists no principle in international law which excludes the operation of Article 25 obligations on the part of UN member states on the sole ground that a UNSC resolution arose from Chapter VI and not Chapter VII.
General rules for reading a UNSC resolution
Unlike the interpretation of treaties which are governed by the Vienna Convention on the Law of Treaties (VCLT) 1969, the interpretation of UNSC resolutions has always been subjected to policy oriented interpretations. This is chiefly due to the political nature of resolutions in contrast to the more legalistic treaties.
In the Namibia case, the ICJ clarified that interpreting a UNSC resolution requires understanding the intent of the body, which can be gathered from three factors –the language used in the resolution, the discussions leading to the adoption of the resolution and the charter provisions invoked.
- Language Employed: The language employed in a resolution may be strong or weak depending on the words used. ‘Decides,’ ‘declare,’ ‘calls’ and calls upon’ are regarded as strong words and paragraphs 5,6,7 and 8 of Resolution 2334 use the words “calls” and “calls upon” which sufficiently indicate the strength of the document despite paragraph 9 using the word “urge” which is considered relatively weak.
- Prior Discussions: The preamble of Resolution 2334 reaffirms the applicability of ten prior resolutions namely 242 (1967), 338 (1973), 446 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003) and 1850 (2008). The ICJ, in the nuclear weapons case, stated that a series of resolutions on a subject may show the gradual evolution of an opino juris necessary for the creation of a new rule.
- Reference to charter provisions: Though Resolution 2334 makes no direct reference to a particular charter provision, the preamble unmistakably states that it is guided by the principles of the UN Charter in making the Resolution amidst the strong brooding presence of peace and security evident in the contextual reading of the Resolution.
Additionally, a fourth factor not mentioned in the Namibia judgment – a call for all state parties to distinguish between the pre and post-1967 territories in relevant dealings with Israel – amount to an international call to action based on the resolution.
In light of these ICJ cases, especially Namibia, it is clear that Resolution 2334 does not cease to be a binding resolution merely on the grounds that it falls under Chapter VI. Furthermore, the three pronged test laid down in the case, as tested on Resolution 2334, indicates that the resolution was intended to be binding for all member states. The fact that there is an international call to action under paragraph 9 is proof of the fact that it has the flavour of a Chapter VII resolution and is not limited to Israel and Palestine. Thus, the import of the resolution is truly revolutionary and promises broader ramifications.
Abraham Joseph is a Ph.D. candidate in International Criminal Law from NLSIU, Bangalore and an Assistant Professor in Ansal School of Law, Ansal University, Gurgaon.