In Law, Things Are What They Are and Not What They are Said to Be

Paulina Astroza

5 mins - 5 de Abril de 2024, 07:00

I was very surprised to read the article by the New York correspondent of El País, María Antonia Sánchez Vallejo, in which she reported on the interpretation given by the United States to Resolution 2728 adopted by the UN Security Council on the ceasefire in Gaza, in which the United States abstained. As the sources mentioned in the article stated, the United States is now calling the Security Council’s decision “a non-binding proposal”. This was stated by the US ambassador to the UN, the White House National Security Council spokesperson and the State Department spokesperson. Unusual, to say the least.

In order to understand why several international law specialists and several states have publicly expressed their opposition to this US interpretation of the legal scope of Resolution 2728, we have to start by explaining the most basic thing that is taught in any international law course in every university in the world.

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The sources of international law, i.e. where internationally enforceable rights and obligations emanate, are mainly to be found in Article 38 of the Statute of the International Court of Justice: treaties, custom, general principles of law, doctrine, judicial decisions and equity. Today, there is no doubt that there are other sources in contemporary international law that have arisen after the Statute, including international law. This source relates to the decisions or mandates adopted by international organisations.

In order to understand this, we must point out that international intergovernmental organisations (in which States are members) issue so-called “resolutions”, which can be “recommendations” or “decisions”. The latter, by producing binding legal effect for the member states of the international organisation, are sources of international law.

In the case of the Security Council, there are the resolutions that refer to procedural aspects and those that refer to other matters. These other matters, the most important ones, are those that have to do with international peace and security. To adopt a resolution, either of the two we have mentioned, at least nine votes of the 15 members of the Security Council are required. In the case of non-procedural matters, it is also required that none of the permanent states exercise their right of veto. It is sufficient that one of the so-called P5 (the United States, France, the United Kingdom, Russia and China) vote against, and the resolution cannot be adopted even if there are 14 votes in favour. These “privileges” (permanent membership and veto) come from the agreements reached by Roosevelt, Churchill and Stalin at the Yalta Conference in 1945. In order to be able to modify these in the Charter ... the P5 have a veto! Since it is all about power, obviously every time there has been an attempt to make progress on this (there have been several proposals), it is trapped by the will of the P5.

However, when the US abstained, it knew full well that it was not supporting the resolution, but neither was it preventing it. An example of this is when Barack Obama, days before leaving office, also abstained on a resolution adopted 14-0 condemning Jewish settler settlements in occupied Palestinian territories as illegal. The same vote was taken on the recent resolution 2728. Another example is China’s abstention when the Security Council authorised the use of force against Iraq when it invaded Kuwait.

Although Article 27 of the UN Charter states that “Decisions of the Security Council on all other questions shall be made by an affirmative vote of nine members, including the affirmative votes of all the permanent members”, following the USSR’s “empty chair” in 1950, on the occasion of the vote on an interposition force between the two warring Koreas, the UN General Assembly interpreted this article to mean that abstention does NOT amount to a veto. The P5 wishing to veto must attend the respective session and vote against.

In contrast, the UN General Assembly, as a rule, has only recommendatory power. Its resolutions have no binding legal effect, although politically they can be very important, especially when they are adopted overwhelmingly in one direction, as is the case with the condemnation of the US embargo against Cuba.

Article 25 of the UN Charter is clear: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. Its resolutions are binding not only on Council members (even non-P5 members who voted against it), but on all UN member states.

The ceasefire issue is a matter of international peace and security. There is no doubt about that. It falls under Chapter VII of the Charter, which is entitled “Action in the event of threats to the peace, breaches of the peace or acts of aggression”. If not, why has the US itself vetoed resolutions on the Gaza ceasefire three times? Why have Russia and China also vetoed other draft resolutions on the same subject? Because they know that, if adopted, it is a DECISION binding on all member states. How to compel a state to comply with such a mandate is another matter, but that is the subject of another column. “Legacies” such as the one we have observed on the part of the US are a bad precedent that, sooner or later, may come back to haunt them.   
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