Binding or Not?

Most experts on international law that Jacobin spoke to agreed that US claims that the resolution is nonbinding — and that, as a result, Israel can freely continue waging war on Gaza and blocking humanitarian aid into the famine-stricken territory — are highly dubious.

“As of now, it does not seem that the United States has a coherent legal argument for its position,” says Adil Haque, professor of law and Judge Jon O. Newman Scholar at Rutgers Law School. “A resolution does not need to use any particular ‘magic words’ to create obligations. Any resolution that uses ‘mandatory language’ creates obligations, and this includes the term ‘demands’ used in the Gaza resolution.”

“Article 25 of the UN Charter provides that UN member countries are obligated to comply with Security Council ‘decisions’ — and Monday’s resolution uses wording that indicates it was a council decision,” says Louis Charbonneau, United Nations director at Human Rights Watch.

According to Tel Aviv University law professor Eliav Lieblich, the Biden administration’s position is “based on a long-standing ambiguity” around which UNSC resolutions are legally binding, where some states argue that only those that explicitly invoke Chapter VII of the UN Charter — that is, the chapter that covers the UN’s enforcement authority — qualify.

“However, this is clearly the minority view today,” he says. It was in 1971 that the International Court of Justice, the UN’s highest court, ruled that resolutions are binding on the basis of carrying out Security Council “decisions,” in a case surrounding South Africa’s occupation of and imposition of apartheid in Namibia. That ruling established, says Lieblich, that when Chapter VII isn’t invoked, it is the language used in a resolution that is the deciding factor.

“Since in this week’s resolution the council ‘demands’ action, it would be hard-pressed to say that it is not binding,” says Lieblich.

Likewise, Heidi Matthews, associate professor at York University’s Osgoode Hall Law School, says that while Monday’s resolution doesn’t explicitly note that it’s been adopted under Chapter VII or use the verb “decides,” as resolutions often do, there are other indications that it is binding. Resolutions are automatically considered Chapter VII measures, she says, if the UNSC determines there is a “threat to the peace, breach of the peace, or act of aggression” and takes action to restore peace.

“Security Council demands for cease-fires imply a threat to the peace and are generally considered to be provisional measures adopted pursuant to Article 40 of the UN Charter (which is part of Chapter VII),” says Matthews. She points to the unanimously adopted resolution that led to the end of the 1967 Six-Day War between Israel and a coalition of Arab states.

The text of that resolution similarly made no mention of Chapter VII but did state that the UNSC “demands” that those involved in the war “should as a first step cease fire and discontinue all military activities.” That language was enough for then US ambassador Arthur J. Goldberg to declare it was the “duty” of the warring parties to “comply fully and promptly” with the resolution and of UN members to use “the full weight of their influence” to make sure it was implemented — and to call for “adequate machinery” to make sure it was enforced, when Israel and Syria ignored the order.

Other experts had already weighed in on the debate shortly after it erupted. The resolution’s “unequivocal and strong” use of the word “demands” makes it qualify as a UNSC decision, wrote Instituto Tecnológico Autónomo de México law professor Hannah Birkenkötter. By contrast, the resolution declared legally binding by the ICJ in 1971 merely “calls upon” the South African government to withdraw from Namibia.

“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,” she wrote.

In other words, the Biden administration is flouting the very system of international law that it has demanded that states like Russia and China abide by. And if it doesn’t feel the need to abide by the very system it created and championed for decades, it’s an open question why any other state will feel the need to do so either.

Not everyone agrees that the resolution is binding. The University of Geneva’s Robert Kolb, who has served as a legal advisor for the Swiss Foreign Affairs Ministry and the International Committee of the Red Cross, says that it “is worded in ambiguous terms,” which means “both lines of argument are possible.” Chimène Keitner, Martin Luther King Jr Professor of Law at the University of California–Davis and former counselor to the State Department, thinks it’s “arguable” if the resolution is binding.

“There is a chicken-and-egg problem with calling for an immediate cease-fire and the unconditional release of all hostages, since it is unlikely that either Israel or Hamas would act unilaterally absent a guarantee of compliance by the other party,” she says.

Others are on the fence. Dr Stefan Talmon, director of the Institute of Public International Law at the University of Bonn, told Jacobin that there is “a good argument” for the resolution’s legally binding nature given the ICJ’s 1971 ruling, but points to certain, seemingly contradictory provisions in the resolution that “also leave room for some doubt,” such as its call for “ongoing diplomatic efforts . . . aimed at reaching a cessation of hostilities” and hostage releases. “Such efforts would not be necessary if the demands for an immediate ceasefire and immediate release of the hostages was legally binding,” he says.

Rule of Rules?

Almost all agreed that, binding or not, the US decision to dismiss the resolution the way it has, as well as to keep the arms flowing to Israel despite the demand for a cease-fire, carries risks, both for itself and for the system of international law underpinning the postwar global order the United States itself largely designed.

“The US stance may also undermine other important resolutions that the US itself championed, including the recent resolution calling for a cease-fire in Sudan,” says Haque. Unlike Monday’s, that resolution only “calls for” a cease-fire and calls on warring parties to let in humanitarian aid. Yet the US statement on its successful adoption did not suggest that abiding by it was optional, and US ambassador Linda Thomas-Greenfield has complained that belligerents have ignored it.

That’s on top of the political costs the United States will suffer from what was meant to be a face-saving measure. “They actually managed to reduce tensions with the other council members by allowing this resolution to pass, even though they’d threatened to veto it just three days earlier,” says Quincy Institute for Responsible Statecraft executive vice president Trita Parsi. “But instead of it being a bit of a kumbaya moment where they could come together, Biden introduces a new area of significant tension and significant US isolation.” (Full disclosure: I am a regular contributor to the Quincy Institute’s blog.)

In fact, a bigger problem for the Biden administration than the opinion of legal experts may be the opinion of its fellow Security Council members, many of whom insisted that they consider the resolution legally binding — or at least, in Germany’s words, “politically binding.” That includes not just states that have an incentive to embarrass Washington, like Russia and China, but also the deputy UN spokesperson as well as countries like Mozambique (whose representative was previously a member and president of the UN’s International Law Commission), Sierra Leone, Algeria, and even allies like France.

“A resolution of the United Nations Security Council is binding internationally and requires all parties concerned to apply it, and in particular Israel, which is responsible for implementing this resolution,” the French ministry for Europe and foreign affairs stated in the wake of the vote.

“Even if it’s not binding in the formal sense, the resolution clearly articulates the expectations by the international community at this stage, so acting contrary to it will result in increased isolation,” says Lieblich.

Maybe more ominously, US dismissals of the resolution are part of a wider pattern that has seen the Biden administration not just stand by as Israeli officials attack the UN but seemingly join in. Yesterday, after UN special rapporteur Francesca Albanese released a report concluding Israel’s actions constituted a genocide, State Department spokesperson Matthew Miller suggested she was an antisemite. Last Saturday, President Joe Biden signed into law a bill defunding UNRWA until March 2025 and cutting off US funding for several other UN agencies. These actions have mirrored the behavior of Israeli officials, who have likewise responded to the UN’s criticism throughout the war with charges of antisemitism, and who have explicitly plotted to weaken UNRWA and push it out of Gaza.

“There is a systematic effort by the United States to undermine the UN and the international law system and replace it with a more ambiguous and self-defined ‘rules based order,’” says Parsi. “As the administration is defending Israel and the Netanyahu government, it is increasingly becoming like the Netanyahu government.”

If it continues down this path, that could have ripple effects beyond the loss of US global standing. “At least with some elements of the Democratic base, it will make it more difficult for the Biden administration to argue it is fundamentally different from the Trump administration,” says Parsi.