Resolution 2728 on the situation in Gaza is not legally binding. This conclusion is not counterintuitive or surprising. Rather it is the result of a sound understanding of the practice of the Security Council under the Charter. It also flows from the views of the International Court of Justice (ICJ), as articulated in the Namibia and Kosovo Advisory Opinions.
Resolution 2728 and Statements Regarding the Legal Nature of the Resolution
On 25 March 2024, the Security Council adopted resolution 2728, with 14 members voting in favor and the United States abstaining. The resolution “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”. It further “emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip and reiterates its demand for the lifting of all barriers to the provision of humanitarian assistance at scale”.
After the vote, the U.S. permanent representative referred in the Council chamber to “this non-binding resolution”. U.S. State Department Spokesperson Matthew Miller reaffirmed this view later that day, and reiterated this position the following day. Nevertheless, he added “but we do believe it should be respected, that it carries weight, and that it should be implemented, as has always been the – as has always been our belief when it comes to UN Security Council resolutions”.
China’s permanent representative stated after the vote that “Security Council resolutions are binding”. In comments to the press after the adoption of resolution 2728, the permanent representative of Mozambique stated “under the Charter, all Security Council resolutions are binding, and every Member States are under the obligation to implement those resolutions” (at 3:30 of the video). This was later reiterated by the permanent representative of Sierra Leone, who also invoked the Namibia Advisory Opinion (at 4:54). The permanent representative of Malta then stated “I think you have your answer already” when a follow-up question was asked (at 5:38).
Asked about this issue during the daily press briefing by the Office of the Spokesperson for the Secretary-General, Deputy Spokesman Farhan Haq said that “all the resolutions of the Security Council are international law. So, to that extent, they are as binding as international law is”.
As opposed to the impression given in some accounts, the United States is not alone in its position that resolution 2728 is non-binding. In comments to the press, the permanent representative of the Republic of Korea, similarly stated that “maybe legally speaking it’s non-binding because in accordance with the UN Charter, all Security Council decisions must be implemented and legally binding but this resolution did not use the word ‘decide’ and it did not invoke Chapter VII of the Charter… but morally… it reflects the will of the international community so it should be implemented” (at 3:55). After calling for the implementation of the resolution, when asked directly about this matter, the permanent representative of the United Kingdom stated that “this resolution needs to be implemented immediately” but declined to affirm the binding nature of the resolution (at 1:58). Notably, on 8 April 2024, the presidents of Egypt, France and Jordan published a joint opinion piece in the Washington Post, referring to resolution 2728 as “a critical step that must be fully implemented without further delay” and made a “call for the immediate and unconditional implementation”. Yet, nowhere in the piece do they suggest that the resolution imposes a legal obligation on the parties.
The Legal Nature of Security Council Resolutions
Several arguments have been made in support of the proposition that resolution 2728 is legally binding. First, as stated by some permanent representatives above, that all Security Council resolutions are binding; second, that the Council can adopt binding decisions without invoking Chapter VII or acting under its provisions, in accordance with the view of the ICJ in the Namibia Advisory Opinion; and third, that the verb ‘demands’ is inherently binding. These will be addressed in turn.
Are All Security Council Resolutions Binding?
Article 25 of the United Nations (U.N.) Charter states that U.N. members “agree to accept and carry out the decisions of the Security Council”. The Charter mandates the Council to adopt binding decisions, as well as recommendations under Chapters VI, VII and VIII (Sievers and Daws, “The Procedure of the UN Security Council” (4th ed., 2014), pp. 381-382). Thus, it is the decisions of the Council, not resolutions as such, that impose binding obligations (Sievers and Daws, pp. 31-32). Not all resolutions adopted under Chapter VII are binding, as is clear from Article 39, the first provision of Chapter VII (the Council “shall make recommendations, or decide what measures shall be taken”). The view that all Security Council resolutions are binding has no basis in law. Indeed, had all Council resolutions been binding under international law, the ICJ would not have to set out to determine whether Council resolutions invoked before it were binding and, if so, to what extent.
Can the Security Council Adopt Binding Measures Outside of Chapter VII?
As referenced by the permanent representative of Sierra Leone above, as well as in different views expressed in different publications, the ICJ took the view in the Namibia Advisory Opinion that the Council can adopt binding decisions outside of Chapter VII, based on its general powers under Article 25 (para. 113).
This, it should be noted, is hardly a consensus view. Both France (paras. 15-19) and the U.K. (paras. 51-53) rejected the position of the Court outright at the time. The legal significance of the invocation of Chapter VII was discussed in an open debate concerning weapons of mass destruction (WMDs), that preceded the adoption of resolution 1540 (2004) on the acquisition of WMDs by non-state actors, for example. Spain stated in the Council that to make a resolution “unequivocally legally binding”, it should be placed under the framework of Chapter VII (see p. 7). New Zealand added on that occasion that by “placing the draft resolution under Chapter VII”, it will become “more than simply a political statement” (p. 21). Japan said that it is when it acts under Chapter VII, that the Council “assumes a lawmaking function” (p. 28). Brazil, it should be noted, opined that reference to Article 25 was sufficient for these purposes (p. 4). The reliance on Chapter VII to adopt a binding decision was expressed by the United States on the same occasion (p. 17). As noted by Sievers and Daws, there is a “widely held belief… that only resolutions adopted under Chapter VII are binding” (p. 378). As resolution 2728 does not invoke Chapter VII, or refer to it implicitly in any way, for those that maintain this principled view (even if they are not always consistent), it is clearly a non-binding resolution. Thus, the views expressed by the United States and others regarding the non-binding nature of resolution 2728 should not come as a surprise, as ‘differing positions persisted’ (Sievers and Daws, p. 387).
If one accepts the view of the ICJ in the Namibia Advisory Opinion, however, that does not automatically entail that resolution 2728 is binding. To assess how the reasoning of the Court applies to each resolution, one must consider carefully the approach of the Court (Anne Peters in “The Charter of the United Nations” (3rd. ed, 2012), p. 792). As the Council can adopt both decisions and recommendations, the Court took the view that the Security Council can impose obligations outside of Chapter VII does not mean that the Court opined that every resolution adopted by the Council is binding. To the contrary, the general approach of the Court was one of caution: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” (para. 114, emphasis added).
The Court explained how one should assess whether a Council resolution contains binding obligations:
Resolution 2728 and Statements Regarding the Legal Nature of the Resolution
On 25 March 2024, the Security Council adopted resolution 2728, with 14 members voting in favor and the United States abstaining. The resolution “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”. It further “emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip and reiterates its demand for the lifting of all barriers to the provision of humanitarian assistance at scale”.
After the vote, the U.S. permanent representative referred in the Council chamber to “this non-binding resolution”. U.S. State Department Spokesperson Matthew Miller reaffirmed this view later that day, and reiterated this position the following day. Nevertheless, he added “but we do believe it should be respected, that it carries weight, and that it should be implemented, as has always been the – as has always been our belief when it comes to UN Security Council resolutions”.
China’s permanent representative stated after the vote that “Security Council resolutions are binding”. In comments to the press after the adoption of resolution 2728, the permanent representative of Mozambique stated “under the Charter, all Security Council resolutions are binding, and every Member States are under the obligation to implement those resolutions” (at 3:30 of the video). This was later reiterated by the permanent representative of Sierra Leone, who also invoked the Namibia Advisory Opinion (at 4:54). The permanent representative of Malta then stated “I think you have your answer already” when a follow-up question was asked (at 5:38).
Asked about this issue during the daily press briefing by the Office of the Spokesperson for the Secretary-General, Deputy Spokesman Farhan Haq said that “all the resolutions of the Security Council are international law. So, to that extent, they are as binding as international law is”.
As opposed to the impression given in some accounts, the United States is not alone in its position that resolution 2728 is non-binding. In comments to the press, the permanent representative of the Republic of Korea, similarly stated that “maybe legally speaking it’s non-binding because in accordance with the UN Charter, all Security Council decisions must be implemented and legally binding but this resolution did not use the word ‘decide’ and it did not invoke Chapter VII of the Charter… but morally… it reflects the will of the international community so it should be implemented” (at 3:55). After calling for the implementation of the resolution, when asked directly about this matter, the permanent representative of the United Kingdom stated that “this resolution needs to be implemented immediately” but declined to affirm the binding nature of the resolution (at 1:58). Notably, on 8 April 2024, the presidents of Egypt, France and Jordan published a joint opinion piece in the Washington Post, referring to resolution 2728 as “a critical step that must be fully implemented without further delay” and made a “call for the immediate and unconditional implementation”. Yet, nowhere in the piece do they suggest that the resolution imposes a legal obligation on the parties.
The Legal Nature of Security Council Resolutions
Several arguments have been made in support of the proposition that resolution 2728 is legally binding. First, as stated by some permanent representatives above, that all Security Council resolutions are binding; second, that the Council can adopt binding decisions without invoking Chapter VII or acting under its provisions, in accordance with the view of the ICJ in the Namibia Advisory Opinion; and third, that the verb ‘demands’ is inherently binding. These will be addressed in turn.
Are All Security Council Resolutions Binding?
Article 25 of the United Nations (U.N.) Charter states that U.N. members “agree to accept and carry out the decisions of the Security Council”. The Charter mandates the Council to adopt binding decisions, as well as recommendations under Chapters VI, VII and VIII (Sievers and Daws, “The Procedure of the UN Security Council” (4th ed., 2014), pp. 381-382). Thus, it is the decisions of the Council, not resolutions as such, that impose binding obligations (Sievers and Daws, pp. 31-32). Not all resolutions adopted under Chapter VII are binding, as is clear from Article 39, the first provision of Chapter VII (the Council “shall make recommendations, or decide what measures shall be taken”). The view that all Security Council resolutions are binding has no basis in law. Indeed, had all Council resolutions been binding under international law, the ICJ would not have to set out to determine whether Council resolutions invoked before it were binding and, if so, to what extent.
Can the Security Council Adopt Binding Measures Outside of Chapter VII?
As referenced by the permanent representative of Sierra Leone above, as well as in different views expressed in different publications, the ICJ took the view in the Namibia Advisory Opinion that the Council can adopt binding decisions outside of Chapter VII, based on its general powers under Article 25 (para. 113).
This, it should be noted, is hardly a consensus view. Both France (paras. 15-19) and the U.K. (paras. 51-53) rejected the position of the Court outright at the time. The legal significance of the invocation of Chapter VII was discussed in an open debate concerning weapons of mass destruction (WMDs), that preceded the adoption of resolution 1540 (2004) on the acquisition of WMDs by non-state actors, for example. Spain stated in the Council that to make a resolution “unequivocally legally binding”, it should be placed under the framework of Chapter VII (see p. 7). New Zealand added on that occasion that by “placing the draft resolution under Chapter VII”, it will become “more than simply a political statement” (p. 21). Japan said that it is when it acts under Chapter VII, that the Council “assumes a lawmaking function” (p. 28). Brazil, it should be noted, opined that reference to Article 25 was sufficient for these purposes (p. 4). The reliance on Chapter VII to adopt a binding decision was expressed by the United States on the same occasion (p. 17). As noted by Sievers and Daws, there is a “widely held belief… that only resolutions adopted under Chapter VII are binding” (p. 378). As resolution 2728 does not invoke Chapter VII, or refer to it implicitly in any way, for those that maintain this principled view (even if they are not always consistent), it is clearly a non-binding resolution. Thus, the views expressed by the United States and others regarding the non-binding nature of resolution 2728 should not come as a surprise, as ‘differing positions persisted’ (Sievers and Daws, p. 387).
If one accepts the view of the ICJ in the Namibia Advisory Opinion, however, that does not automatically entail that resolution 2728 is binding. To assess how the reasoning of the Court applies to each resolution, one must consider carefully the approach of the Court (Anne Peters in “The Charter of the United Nations” (3rd. ed, 2012), p. 792). As the Council can adopt both decisions and recommendations, the Court took the view that the Security Council can impose obligations outside of Chapter VII does not mean that the Court opined that every resolution adopted by the Council is binding. To the contrary, the general approach of the Court was one of caution: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect” (para. 114, emphasis added).
The Court explained how one should assess whether a Council resolution contains binding obligations:
“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. 114).
In the Kosovo Advisory Opinion, the Court further elaborated on the methodology for interpreting Security Council resolutions:
“While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that other factors be taken into account. Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty… irrespective of whether they played any part in their formulation. The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions” (para. 94).
Thus, the Namibia Advisory Opinion states that the Security Council can adopt binding decisions outside of Chapter VII, having regard to Article 25 of the Charter. Whether it has done so in each instance is a matter of interpretation of the resolution in question. According to the Court, one has to look at ‘all circumstances’ that may assist, including the terms of the resolution itself; statements made by Council members surrounding its adoption; the articles of the Charter invoked in the resolution; references to other resolutions; and the relevant practice of the U.N. organs.
How to Identify a Binding Decision?
In the practice of the Council, as noted by the author elsewhere (Wood and Sthoeger, pp. 35-44, see also Sievers and Daws, pp. 387-393), there are three main elements to look for when assessing whether the Council has made a legally binding decision:
That said, determining whether the Council is imposing legally binding obligations is not simply a matter of ascertaining whether these three elements of ‘best practice’ are present or not in the text under consideration.
Thus, while each of the above indicators will normally be present when the Council is adopting a decision, to determine whether the Council has taken a decision that is mandatory under Article 25, it is necessary to interpret the resolution or series of resolutions in question. The Council has adopted decisions that do not contain all of these elements, and there are several examples to that effect. These are usually the result of political necessities and sensitivities, sometimes referred to as ‘constructive ambiguity’, a necessity for agreement between Council members, allowing for a resolution to pass (Wood and Sthoeger, “The UN Security Council and International Law”, p. 41).
In the current context, there have been, on occasion, resolutions that use the operative verb ‘demands’, not ‘decides’, that Member States have considered binding, including the United States (Wood and Sthoeger, pp. 40-44).
As opposed to resolution 2728, virtually all of these resolutions can be traced back to Chapter VII, even if it is not explicitly invoked. That is likely to do with the fact that disagreement persists on the Council’s ability to adopt binding resolutions outside of Chapter VII, and thus reaching political agreement necessitates such an indication in the text (Sievers and Daws, p. 387). In the same vein, when interpreting the binding force of resolution 1244 (1999) in the Kosovo Advisory Opinion, the ICJ relied on the fact that it was adopted under Chapter VII as evidence of the decisions contained therein (para. 85). What all of these resolutions have in common is that they contain indicators in the text – namely at least some of the elements presented above – to indicate that they contain binding decisions.
Applying the interpretative tools elaborated by the ICJ in the Namibia and Kosovo Advisory Opinions demonstrates the difference between those resolutions and resolution 2728. The difference can be seen when comparing resolution 2728 to resolutions using ‘demands’ which have been cited as analogous to resolution 2728.
One scholar has referred to resolution 678 (1990), which demanded “that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions”. But resolution 678 is hardly comparable. Resolution 678 explicitly referred to Chapter VII; it recalled numerous previous Council resolutions under Chapter VII; and, most importantly, it authorized the use of force against Iraq in the event of non-compliance. None of these elements is found in resolution 2728.
Another scholar referred in a tweet to resolution 1695 (2006), which demanded “that the DPRK suspend all activities related to its ballistic missile programme”. Yet resolution 1695 reaffirmed that the proliferation of weapons of mass destruction (WMDs) “constitutes a threat to international peace and security”, in the language of Article 39 of Charter; it referred to resolution 1540 (2004) adopted under Chapter VII mentioned above; and its other operative paragraphs placed binding requirements on Member States to prevent the transfer of materials and goods to the Democratic Republic of Korea, in relation to its missile and weapons of mass destruction programs. None of these elements is found in resolution 2728.
Another example given is resolution 1696 (2006), which demanded that Iran shall suspend all enrichment-related activities, and is considered binding by many states, including the United States (p. 3). Resolution 1696 refers explicitly to Chapter VII; it also specifically refers to Article 40 within Chapter VII regarding provisional measures; it recalls the primary responsibility of the Council for the maintenance of international peace and security, echoing the language of Article 24 of the Charter; and it expresses the Council’s intention “to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with this resolution”, while noting that an additional decision will be required to adopt such measures. None of these elements is found in resolution 2728.
Resolution 2728 was not expressed to be adopted under Chapter VII, does not recognize a threat to international peace and security or ‘decide’ on anything within the meaning of Article 25. It does not refer to any binding resolutions or any other resolutions under Chapter VII. The only indication that the Council had adopted a decision within the meaning of Article 25 in resolution 2728, was the views expressed by some representatives of Council Members after the adoption of the resolution. The ICJ said that the views of Council Members made at the time of the adoption are relevant to assess its nature, as noted above. It may thus be relevant that the Chinese, Mozambican and Sierra Leonean representatives took the view that resolution 2728 was binding. But it is also impossible to ignore that their main line of reasoning – that all Security Council resolutions are binding – ignores the views of the ICJ, ignores the fact that the Charter refers to Council recommendations as well as decisions, and has no support in law. In addition, other Council members have stated that the resolution is non-binding, including one of its principal drafters.
Is a Demand a Decision?
Several scholars have argued that the term ‘demands’ is inherently a decision of the Council (see also Sievers and Daws, p. 382). One blogpost relies in this context on “the rules on treaty interpretation articulated in the Vienna Convention on the Law of Treaties” (VCLT). But Security Council resolutions are not treaties. In the Kosovo Advisory Opinion, as noted above, the Court explained that the rules on treaty interpretation ‘may provide guidance’ but that the unique nature of Security Council resolutions requires the application of other interpretative tools. The special interpretive tools can even contrast with the rules of treaty interpretation. As an aside, one is unlikely to find the term ‘demand’ as a legal obligation in a treaty, casting doubt on the utility of comparing Council resolutions to treaties in this context.
Another scholar stated that: “It’s hard to understand how anyone could suggest there is any ambiguity or uncertainty of the obligation this creates.” Another scholar rhetorically asks, “what weight should a demand carry, if not that of a legal obligation?” (Notably, after reaching the above conclusion, the same scholar, in the comments to their blogpost, nevertheless commented that “it would be interesting to do a more extensive study on how states and other actors have interpreted the word “demand” over the years”.)
While one can take the view that in English, a demand intuitively sounds like something that is beyond a mere recommendation, it is not normally used as a word importing legal obligation and anyway intuition is not a recognized rule of treaty interpretation. When the ICJ needed to determine if an ‘undertaking’ in a treaty implies a legal obligation, it did not rely on intuition, but rather set out to determine the meaning of the word in accordance with the rules of treaty interpretation. Furthermore, the question is not if the word ‘demand’ is obligatory as such, but rather whether a demand is a ‘decision’ within the meaning of Article 25 of the U.N. Charter, as only the decisions of the Council are binding. In the present context, the term ‘recommendation’ has a special meaning that it may not normally have – being opposed to a decision (see, for example, Article 39 of the Charter).
What can then be said of the word ‘demand’? First, the Council regularly makes ‘demands’ of states and other actors, and with few notable exceptions, some of which are discussed above, these demands are rarely considered to be binding decisions, the violation of which would trigger state responsibility.
Second, the Council often makes ‘demands’ in its presidential statements. While there are differing views as to whether presidential statements may contain binding decisions as a matter of principle, what is undisputed is that states generally do not regard ‘demands’ in presidential statements as legally binding (Security Council Report, “Security Council Action Under Chapter VII: Myths and Realities”, pp. 12-13). Moreover, Council members make demands of states and other actors in press statements, which are not formal documents and cannot impose obligations. Just on 5 April 2024, they “demanded the immediate cessation of hostilities and of any further advances by the M23 and its unconditional withdrawal from all occupied areas” in a press statemen on the Democratic Republic of the Congo.
This practice may not be conclusive in support of the long-held view of the United States that a ‘demand’ is not a ‘decision’ in the meaning of Article 25. But at the very least, these examples demonstrate that the Council and its members do not view a ‘demand’ as inherently imposing an obligation as some have suggested. Such a sweeping assertion cannot be sustained. The reality is quite the opposite.
This is further supported by the practice of the U.N. organs and bodies at large, which make demands on a regular basis. Using language identical to that of the Council, the General Assembly demanded “an immediate humanitarian ceasefire” in Gaza in a resolution adopted on 12 December 2023. The Human Rights Council also demanded a ceasefire in a resolution adopted on 5 April 2024. Since these bodies do not enjoy the decision-making powers of the Council, their rhetoric demonstrates that demands are often made in non-binding contexts, and there is nothing inherently binding about a ‘demand’.
Thus, in the practice of the Council, the vast majority of ‘demands’ are not considered legally binding by states, and the opposite conclusion is the exception, not the rule. That is precisely why states have had to assert the bindingness of a ‘demand’ on the few occasions referred to above. It follows that where the Council has made a ‘demand’ in the meaning of a binding decision under Article 25, this can only be understood from other indications in the text, the context and additional factors, and not on the assumption that all demands of the Council are binding, which is not the case.
One scholar notes that in the Namibia Advisory Opinion, the Court found that, when the Council ‘called upon’ South Africa to withdraw its administration of Namibia, this was binding. And relatedly, that when the Council ‘called upon’ states to refrain from action that is inconsistent with that finding, this too was a binding decision of the Council. Therefore, they argue, 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”. Baseless or not, it is not disputed that in Council practice, calling upon states to do or refrain from something is normally not binding (Sievers and Daws, p. 382). Even if the Court was correct in its analysis of the specific resolutions in the Namibia Advisory Opinion, this would be the exception, not the rule (Wood and Sthoeger, pp. 39-40); it does not entail that anytime the Council calls upon states to act or cease from acting it is imposing a legal obligation; and equally it cannot entail that there is a rule that every demand is binding. As noted above, the Court emphasized that this was a matter of interpretation of a given resolution. Notably, in the Namibia Advisory Opinion, the Court recalled that resolution 269 referred explicitly to Article 25, and resolution 276 referred back to resolution 269 (para. 115). Resolution 276 also used ‘decides’ in some of its other operative clauses. These, for the Court, were indicators that the resolutions contained binding decisions. As noted above, none of these indicators appear in resolution 2728.
It has been argued that the Council must frame a decision on a ceasefire as a demand as a matter of common sense, because “the Security Council does not typically decide that a ceasefire exists – it cannot will a ceasefire into existence through a decision”. Others have followed suit, stating that “indeed, it would be rather absurd if the Council ‘decided upon’ an immediate ceasefire while the hostilities remain ongoing, as if a ceasefire could be magically conjured up if only one utters the word”.
This too, Council practice demonstrates, is not based in fact. Indeed in the context of the conflict in the Middle East, during the 1948 war, the Council decided on an armistice in resolution 62, in the following terms:
How to Identify a Binding Decision?
In the practice of the Council, as noted by the author elsewhere (Wood and Sthoeger, pp. 35-44, see also Sievers and Daws, pp. 387-393), there are three main elements to look for when assessing whether the Council has made a legally binding decision:
- a determination by the Council, under Article 39, of the existence of a threat to the peace, breach of the peace, or act of aggression;
- the invocation of Chapter VII (or specific articles in Chapter VII);
- an indication that the Council has taken a ‘decision’ within the meaning of Article 25. An express reference to Article 25 is not needed or even common, though such reference sometimes appears in lieu of an express reference to Chapter VII; its presence points strongly to an intention to adopt a legally binding decision.
That said, determining whether the Council is imposing legally binding obligations is not simply a matter of ascertaining whether these three elements of ‘best practice’ are present or not in the text under consideration.
Thus, while each of the above indicators will normally be present when the Council is adopting a decision, to determine whether the Council has taken a decision that is mandatory under Article 25, it is necessary to interpret the resolution or series of resolutions in question. The Council has adopted decisions that do not contain all of these elements, and there are several examples to that effect. These are usually the result of political necessities and sensitivities, sometimes referred to as ‘constructive ambiguity’, a necessity for agreement between Council members, allowing for a resolution to pass (Wood and Sthoeger, “The UN Security Council and International Law”, p. 41).
In the current context, there have been, on occasion, resolutions that use the operative verb ‘demands’, not ‘decides’, that Member States have considered binding, including the United States (Wood and Sthoeger, pp. 40-44).
As opposed to resolution 2728, virtually all of these resolutions can be traced back to Chapter VII, even if it is not explicitly invoked. That is likely to do with the fact that disagreement persists on the Council’s ability to adopt binding resolutions outside of Chapter VII, and thus reaching political agreement necessitates such an indication in the text (Sievers and Daws, p. 387). In the same vein, when interpreting the binding force of resolution 1244 (1999) in the Kosovo Advisory Opinion, the ICJ relied on the fact that it was adopted under Chapter VII as evidence of the decisions contained therein (para. 85). What all of these resolutions have in common is that they contain indicators in the text – namely at least some of the elements presented above – to indicate that they contain binding decisions.
Applying the interpretative tools elaborated by the ICJ in the Namibia and Kosovo Advisory Opinions demonstrates the difference between those resolutions and resolution 2728. The difference can be seen when comparing resolution 2728 to resolutions using ‘demands’ which have been cited as analogous to resolution 2728.
One scholar has referred to resolution 678 (1990), which demanded “that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions”. But resolution 678 is hardly comparable. Resolution 678 explicitly referred to Chapter VII; it recalled numerous previous Council resolutions under Chapter VII; and, most importantly, it authorized the use of force against Iraq in the event of non-compliance. None of these elements is found in resolution 2728.
Another scholar referred in a tweet to resolution 1695 (2006), which demanded “that the DPRK suspend all activities related to its ballistic missile programme”. Yet resolution 1695 reaffirmed that the proliferation of weapons of mass destruction (WMDs) “constitutes a threat to international peace and security”, in the language of Article 39 of Charter; it referred to resolution 1540 (2004) adopted under Chapter VII mentioned above; and its other operative paragraphs placed binding requirements on Member States to prevent the transfer of materials and goods to the Democratic Republic of Korea, in relation to its missile and weapons of mass destruction programs. None of these elements is found in resolution 2728.
Another example given is resolution 1696 (2006), which demanded that Iran shall suspend all enrichment-related activities, and is considered binding by many states, including the United States (p. 3). Resolution 1696 refers explicitly to Chapter VII; it also specifically refers to Article 40 within Chapter VII regarding provisional measures; it recalls the primary responsibility of the Council for the maintenance of international peace and security, echoing the language of Article 24 of the Charter; and it expresses the Council’s intention “to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with this resolution”, while noting that an additional decision will be required to adopt such measures. None of these elements is found in resolution 2728.
Resolution 2728 was not expressed to be adopted under Chapter VII, does not recognize a threat to international peace and security or ‘decide’ on anything within the meaning of Article 25. It does not refer to any binding resolutions or any other resolutions under Chapter VII. The only indication that the Council had adopted a decision within the meaning of Article 25 in resolution 2728, was the views expressed by some representatives of Council Members after the adoption of the resolution. The ICJ said that the views of Council Members made at the time of the adoption are relevant to assess its nature, as noted above. It may thus be relevant that the Chinese, Mozambican and Sierra Leonean representatives took the view that resolution 2728 was binding. But it is also impossible to ignore that their main line of reasoning – that all Security Council resolutions are binding – ignores the views of the ICJ, ignores the fact that the Charter refers to Council recommendations as well as decisions, and has no support in law. In addition, other Council members have stated that the resolution is non-binding, including one of its principal drafters.
Is a Demand a Decision?
Several scholars have argued that the term ‘demands’ is inherently a decision of the Council (see also Sievers and Daws, p. 382). One blogpost relies in this context on “the rules on treaty interpretation articulated in the Vienna Convention on the Law of Treaties” (VCLT). But Security Council resolutions are not treaties. In the Kosovo Advisory Opinion, as noted above, the Court explained that the rules on treaty interpretation ‘may provide guidance’ but that the unique nature of Security Council resolutions requires the application of other interpretative tools. The special interpretive tools can even contrast with the rules of treaty interpretation. As an aside, one is unlikely to find the term ‘demand’ as a legal obligation in a treaty, casting doubt on the utility of comparing Council resolutions to treaties in this context.
Another scholar stated that: “It’s hard to understand how anyone could suggest there is any ambiguity or uncertainty of the obligation this creates.” Another scholar rhetorically asks, “what weight should a demand carry, if not that of a legal obligation?” (Notably, after reaching the above conclusion, the same scholar, in the comments to their blogpost, nevertheless commented that “it would be interesting to do a more extensive study on how states and other actors have interpreted the word “demand” over the years”.)
While one can take the view that in English, a demand intuitively sounds like something that is beyond a mere recommendation, it is not normally used as a word importing legal obligation and anyway intuition is not a recognized rule of treaty interpretation. When the ICJ needed to determine if an ‘undertaking’ in a treaty implies a legal obligation, it did not rely on intuition, but rather set out to determine the meaning of the word in accordance with the rules of treaty interpretation. Furthermore, the question is not if the word ‘demand’ is obligatory as such, but rather whether a demand is a ‘decision’ within the meaning of Article 25 of the U.N. Charter, as only the decisions of the Council are binding. In the present context, the term ‘recommendation’ has a special meaning that it may not normally have – being opposed to a decision (see, for example, Article 39 of the Charter).
What can then be said of the word ‘demand’? First, the Council regularly makes ‘demands’ of states and other actors, and with few notable exceptions, some of which are discussed above, these demands are rarely considered to be binding decisions, the violation of which would trigger state responsibility.
Second, the Council often makes ‘demands’ in its presidential statements. While there are differing views as to whether presidential statements may contain binding decisions as a matter of principle, what is undisputed is that states generally do not regard ‘demands’ in presidential statements as legally binding (Security Council Report, “Security Council Action Under Chapter VII: Myths and Realities”, pp. 12-13). Moreover, Council members make demands of states and other actors in press statements, which are not formal documents and cannot impose obligations. Just on 5 April 2024, they “demanded the immediate cessation of hostilities and of any further advances by the M23 and its unconditional withdrawal from all occupied areas” in a press statemen on the Democratic Republic of the Congo.
This practice may not be conclusive in support of the long-held view of the United States that a ‘demand’ is not a ‘decision’ in the meaning of Article 25. But at the very least, these examples demonstrate that the Council and its members do not view a ‘demand’ as inherently imposing an obligation as some have suggested. Such a sweeping assertion cannot be sustained. The reality is quite the opposite.
This is further supported by the practice of the U.N. organs and bodies at large, which make demands on a regular basis. Using language identical to that of the Council, the General Assembly demanded “an immediate humanitarian ceasefire” in Gaza in a resolution adopted on 12 December 2023. The Human Rights Council also demanded a ceasefire in a resolution adopted on 5 April 2024. Since these bodies do not enjoy the decision-making powers of the Council, their rhetoric demonstrates that demands are often made in non-binding contexts, and there is nothing inherently binding about a ‘demand’.
Thus, in the practice of the Council, the vast majority of ‘demands’ are not considered legally binding by states, and the opposite conclusion is the exception, not the rule. That is precisely why states have had to assert the bindingness of a ‘demand’ on the few occasions referred to above. It follows that where the Council has made a ‘demand’ in the meaning of a binding decision under Article 25, this can only be understood from other indications in the text, the context and additional factors, and not on the assumption that all demands of the Council are binding, which is not the case.
One scholar notes that in the Namibia Advisory Opinion, the Court found that, when the Council ‘called upon’ South Africa to withdraw its administration of Namibia, this was binding. And relatedly, that when the Council ‘called upon’ states to refrain from action that is inconsistent with that finding, this too was a binding decision of the Council. Therefore, they argue, 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”. Baseless or not, it is not disputed that in Council practice, calling upon states to do or refrain from something is normally not binding (Sievers and Daws, p. 382). Even if the Court was correct in its analysis of the specific resolutions in the Namibia Advisory Opinion, this would be the exception, not the rule (Wood and Sthoeger, pp. 39-40); it does not entail that anytime the Council calls upon states to act or cease from acting it is imposing a legal obligation; and equally it cannot entail that there is a rule that every demand is binding. As noted above, the Court emphasized that this was a matter of interpretation of a given resolution. Notably, in the Namibia Advisory Opinion, the Court recalled that resolution 269 referred explicitly to Article 25, and resolution 276 referred back to resolution 269 (para. 115). Resolution 276 also used ‘decides’ in some of its other operative clauses. These, for the Court, were indicators that the resolutions contained binding decisions. As noted above, none of these indicators appear in resolution 2728.
It has been argued that the Council must frame a decision on a ceasefire as a demand as a matter of common sense, because “the Security Council does not typically decide that a ceasefire exists – it cannot will a ceasefire into existence through a decision”. Others have followed suit, stating that “indeed, it would be rather absurd if the Council ‘decided upon’ an immediate ceasefire while the hostilities remain ongoing, as if a ceasefire could be magically conjured up if only one utters the word”.
This too, Council practice demonstrates, is not based in fact. Indeed in the context of the conflict in the Middle East, during the 1948 war, the Council decided on an armistice in resolution 62, in the following terms:
“Decides that, in order to eliminate the threat to the peace in Palestine and to facilitate the transition from the present truce to permanent peace in Palestine, an armistice shall be established in all sectors of Palestine;”
Similar language, deciding on a ceasefire, was used in the vetoed draft resolution put forward by Belgium, Germany and Kuwait on the situation in Idlib in 2019:
“1. Decides that all parties shall immediately cease hostilities to avoid a further deterioration of the already catastrophic humanitarian situation in Idlib Governorate, beginning at noon Damascus time on 21 September 2019;”
This was also the case in the 25 February 2022 vetoed draft resolution on Ukraine, where the text read:
“3. Decides that the Russian Federation shall immediately cease its use of force against Ukraine…”
It is thus clear that the Council has and can ‘decide’ on a ceasefire if it so intends.
Conclusion
The practice of the Security Council is such that, as a rule, in the interests of legal certainty, the Council includes certain elements in the text to indicate that it has adopted a binding decision. The Council regularly makes ‘demands’ of states and other actors in its resolutions, presidential statements, and even in its press statements, which are not considered binding by states. On very few occasions, states have taken the view that a binding decision has been adopted that uses the verb ‘demands’. That position could be convincingly based on elements in the text and the circumstances surrounding its adoption. Whether binding decisions are always adopted under Chapter VII as is the view of some states, or may be adopted outside of Chapter VII as is the view of the ICJ, one thing is clear: there is nothing in the text of resolution 2728 or the circumstances of its adoption that indicates that it contains binding decisions. Only if such elements were present, such as a reference to Chapter VII, or even a reference to Article 25 of the UN Charter, a plausible argument could be made as to its binding nature.
That is not to say that resolution 2728 is insignificant. Its significance lies in its political relevance, not its lack of binding force. Unfounded insistence on its binding nature only distracts from its potential political impact.
Conclusion
The practice of the Security Council is such that, as a rule, in the interests of legal certainty, the Council includes certain elements in the text to indicate that it has adopted a binding decision. The Council regularly makes ‘demands’ of states and other actors in its resolutions, presidential statements, and even in its press statements, which are not considered binding by states. On very few occasions, states have taken the view that a binding decision has been adopted that uses the verb ‘demands’. That position could be convincingly based on elements in the text and the circumstances surrounding its adoption. Whether binding decisions are always adopted under Chapter VII as is the view of some states, or may be adopted outside of Chapter VII as is the view of the ICJ, one thing is clear: there is nothing in the text of resolution 2728 or the circumstances of its adoption that indicates that it contains binding decisions. Only if such elements were present, such as a reference to Chapter VII, or even a reference to Article 25 of the UN Charter, a plausible argument could be made as to its binding nature.
That is not to say that resolution 2728 is insignificant. Its significance lies in its political relevance, not its lack of binding force. Unfounded insistence on its binding nature only distracts from its potential political impact.