Are UN resolutions legally enforceable?

Oct 31, 2018

Written By Emma Finamore

The United Nations was set up in 1945 to maintain world peace and security, and to foster global co-operation. So how are UN resolutions formulated—and why, particularly in relation to Israel-Palestine, are they proving so difficult to enforce?

Tensions between Israel and Palestine are on the rise at the same time as relations between the United States administration and the United Nations are deteriorating. Both situations raise questions about the power of the UN, which seems increasingly incapable of enforcing the rules it lays down to the international community.

Donald Trump is one world leader who appears to snub the UN and its rulings, seeing it as another hostile competitor to wrangle and cut deals with, rather than as a benevolent force. Late last year, for example, he threatened to withhold “billions” of dollars of US aid from countries voting in favour of a UN resolution rejecting his recognition of Jerusalem as the capital of Israel. Despite the warning, 128 members voted against him and to maintain the longstanding international consensus that the status of Jerusalem (claimed as a capital by both Israel and Palestine) can only be settled as an agreed final issue in a peace deal.

Despite this UN resolution, in May this year the US went ahead and reclassified its Jerusalem consulate as the US embassy in Jerusalem. In June, the US president and the UN seemed at loggerheads again, when member states emphatically rejected the candidate put forward by the US to lead the UN’s migration agency, the International Organisation for Migration (IOM, a position that has been held by an American since the 1960s). Ken Isaacs finished third in the last round of voting, which appeared to be both a response to Donald Trump’s policies on migration as well as a resounding rejection of Isaacs, who had previously tweeted Islamophobic comments and cast doubt on climate-change science.

More recently, the US vetoed a UN Security Council resolution that condemned Israel’s use of force against Palestinian civilians (at least 116 Palestinians have been killed by Israeli forces in Gaza border protests since the end of March, the largest number of killings occurring the day the US moved its embassy to Jerusalem from Tel Aviv), underlining the Trump administration’s differences with the international community over the Israeli-Palestinian issue. Later, a second, US-drafted resolution that blamed Hamas for the violence and upheld Israel’s right to defend itself failed to gain any other country’s support when it was put to vote in the 15-member Security Council. The US Ambassador to the UN Nikki Haley said in a statement: “It’s now completely clear that the UN is hopelessly biased against Israel.”

Over the years, the US has vetoed a number of Security Council resolutions critical of Israel. In December, it vetoed a resolution calling on Donald Trump’s administration to reverse its decision to recognise Jerusalem as Israel’s capital.

But what are these resolutions? And do they ever achieve what they set out to do?

A UN resolution is a formal text adopted by a UN body. In theory, any UN body can issue a resolution, but in practice the Security Council or the General Assembly issues most resolutions. The Security Council is charged with the maintenance of international peace and security, as well as accepting new members to the UN and approving any changes to its UN Charter. It comprises 15 members, five permanent (Russia, the UK, France, China and the US) and ten non-permanent members, elected on a regional basis to serve two- year terms. Permanent members can veto any substantive Security Council resolution, including those on the admission of new member states or candidates for Secretary-General. The General Assembly is the main deliberative, policy-making and representative body of the UN, where all member nations have equal representation.

UN resolutions are rulings or recommendations agreed on by the issuing body. For example, Security Council Resolution 1373, which was adopted unanimously on September 28, 2001, was a counter-terrorism measure passed following the 9/11 terrorist attacks on the US. The resolution was adopted under Chapter VII of the UN Charter, and is therefore binding on all UN member states.

The resolution aimed to hinder terrorist groups in various ways: UN member states were encouraged to share their intelligence on terrorist groups in order to assist in combating international terrorism. The resolution also called on all states to adjust their national laws so that they could ratify all of the existing international conventions on terrorism. It stated that all states should “ensure that terrorist acts are established as serious criminal offences in domestic laws and regulations, and that the seriousness of such acts is duly reflected in sentences served”.

The resolution established the Security Council's Counter Terrorism Committee (CTC) to monitor state compliance with its provisions. It also aimed at restricting immigration law, requiring states to take appropriate measures and checks before granting refugee status to asylum seekers, checking they had not planned, facilitated or participated in terrorist acts. States were also asked to ensure that refugee status wasn’t abused by the “perpetrators, organisers or facilitators of terrorist acts”, and told that claims of political motivation weren’t recognised as grounds for refusing to extradite alleged terrorists.

The issuing body of a UN resolution determines if it is considered binding on member states. Those issued by the Security Council are considered binding. According to Article 25 of the UN Charter, all members of the UN “agree to carry out and accept the decisions of the Security Council in accordance with the present Charter”. General Assembly resolutions are generally considered to be non-binding. Articles 10 and 14 of the UN Charter refer to General Assembly resolutions as “recommendations”, and the International Court of Justice has stressed the recommendatory nature of General Assembly resolutions repeatedly.

In practice, the enforcing of resolutions is less straightforward. Security Council Resolution 2334, for example, was adopted on December 23, 2016. It concerns the Israeli settlements in “Palestinian territories occupied since 1967, including East Jerusalem”. The resolution passed in a 14–0 vote by members of the UN Security Council (UNSC). Four members with UN Security Council veto power—China, France, Russia and the United Kingdom—voted for the resolution, but the US abstained.

The resolution states that Israel's settlement activity constitutes a “flagrant violation” of international law and has “no legal validity”. It demands that Israel stop such activity and fulfil its obligations as an occupying power under the Fourth Geneva Convention.

The text was welcomed by much of the international community in the following days, and Palestine’s representatives said it was an opportunity to end the occupation and establish a Palestinian state to live side by side with the state of Israel on the 1967 line. But Israel retaliated with a series of diplomatic actions against some members of the Security Council, even accusing then-president Barack Obama of having secretly orchestrated the resolution.

This summer saw the sixth quarterly report on implementation of this resolution, covering the period from March 26 to June 12 this year, and it wasn’t glowing. “The need to reverse, or at the very least contain the impact of negative trends—especially illegal settlement activity, violence and incitement—is critical not only to preserve hope for a meaningful return to the negotiating table, but also to prevent the escalation of broader regional tensions,” UN special coordinator for the Middle East Peace Process, Nickolay Mladenov, told the Security Council.

“As detailed in the report, no steps were taken during the reporting period to ‘cease all settlement activities in the occupied Palestinian territory, including East Jerusalem’ as demanded by the resolution.” Mladenov noted that some 3,500 housing units in settlements in what’s known as “Area C” of the occupied West Bank had either been “advanced, approved or tendered” during the period of his report. One-third of those units are in settlements in outlying locations deep inside the West Bank.

Plans for 2,300 units were advanced in the approval process, while 300 units had reached the final approval stage. Tenders had gone out for about 900 units, he said. As in the previous period, no advancements, approvals or tenders were made in occupied East Jerusalem. “I reiterate that all settlement activity is illegal under international law. It continues to undermine the practical prospects for establishing a viable Palestinian state and erodes remaining hopes for peace,” he said.

During the reporting period, Israeli authorities demolished or seized 84 Palestinian-owned structures, resulting in the displacement of 67 people and potentially affected the livelihoods of 4,500 others. Basically, Israel was found to have ignored the resolution to stop building settlements in Palestine. The reporting period was also characterised by high levels of violence, including rocket attacks from Gaza, Mladenov said.

He also reported on the rise in violence in the area: a spike in protests, Israeli security forces killing more Palestinians, while Hamas, Palestinian Islamic Jihadis and other militants engaged in violent and provocative acts. Much of this focussed around the moving of the US embassy from Tel Aviv to Jerusalem. “I want to again reiterate the call of the Secretary-General on all to unequivocally condemn, in the strongest possible terms, all actions that have brought us to this dangerous place and led to the loss of so many lives in Gaza,” Mladenov said.

Another report from Oxfam in 2015 looked at the unanimous adoption of UN Security Council Resolution 2139 at the end of February 2014, which at the time brought much-needed hope for people in Syria and across the Middle East. In it, the Security Council called for an urgent increase in access for humanitarian aid in Syria and demanded that all parties immediately cease attacks against civilians, end arbitrary detention, kidnapping and torture, and lift sieges of populated areas. In July and December 2014, the Council adopted two additional resolutions—2165 and 2191—that authorised UN aid operations to enter Syria from neighbouring countries without requiring the consent of the Syrian government.

Despite the hope of what the resolutions could do, Oxfam found that violence in Syria had intensified, killings had increased, humanitarian access has diminished, and the humanitarian response remained severely and chronically underfunded.

Despite the binding nature of many UN resolutions, the complex nature of international relations—between member states as well as between members and non-members—means that they are often impossible to fully enforce. Where there’s a will, there’s not always a way.

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