How Binding are the UN Resolutions?: Interpretative Issues and Recommendations

By Kashni Taneja, she is a penultimate year student at Rajiv Gandhi National University of Law, Punjab, & has a keen interest in business and international law.

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Introduction: Background of UNSC resolution 2736

Earlier last year, on June 13, the UNSC passed  Resolution 2736 demanding that the Rapid Support Forces (RSF), a Sudanese paramilitary group, halt the siege of El Fasher, the capital of North Darfur state, and calling for an immediate halt to the fighting and de-escalation in and around El Fasher. It called for the protection and safe movement of civilians, the implementation of the Jeddah Declaration, which aims to establish a framework for the protection of civilians in Sudan, and swift humanitarian aid access, including reopening the Adre border. The resolution emphasises respecting international law, protecting civilian facilities, and preventing external interference. This resolution is crucial because without these measures, the world could face one of the largest displacement crises and a severe risk of widespread hunger. So far, the conflict has already led to the deaths of 15,000 people and exposed many to sexual and ethnic violence. This crisis is Sudan is one of the most serious humanitarian crises today and, needs urgent action. But is the Resolution that lays down instructions and measures to end this conflict even binding? This resolution was passed with an affirmative vote of 14 members of the UNSC, Russia chose to abstain. However, whether such decisions are binding on member states depends on the interpretation of such a resolution.

Binding Nature of UNSC Resolution: Chapter VI vs. Chapter VII

While Russia thinks that this resolution is “at odds with the reality on the ground” and is a sovereign affair of the authorities in charge and thinks of it is an overstepping of the UNSC while exercising its power,.other countries like the United States, United Kingdom, Switzerland, and Malta believe that the resolution could not come at a more appropriate moment, and the resolution does send a very strong message to the RSF to end the siege of El Fasher. As noted, several countries have proposed interpretations regarding this resolution, yet none can assert that it has a legally binding nature. Resolutions under Article 25 of the UN Charter are considered legally binding. Notably, no treaty exists equivalent to the VCLT that would specifically govern the interpretation of Security Council Resolutions. Therefore, interpreting such resolutions requires reliance on other sources of international law.

A key precedent here is the 1971 Namibia Advisory Opinion by the ICJ, which offers guidance on this issue. According to this Opinion, determining whether a Security Council resolution is binding under Article 25 of the UN Charter depends on several factors: the specific article or chapter under which it was adopted, the language of the resolution, and the other relevant circumstances around its passage. However, despite these guidelines, considerable ambiguity remains. But as a preliminary matter, many scholars regard Chapter VI resolutions as non-binding, and even the few who regard them as binding strictly limit the same to 'rare' cases. Furthermore, UNSC resolutions, even those under Chapter VII, are ‘presumed’ not to impose legal obligations on states, and only clear, explicit, and definitive expressions of imposition of legal obligations can be understood to have a binding effect. But the dominant general notion lies that the resolutions under chapter VI are rarely binding, and those under Chapter VII are almost always binding.

The above considerations can mainly be corroborated based on the language used in the articles of such chapters. Under Chapter VI of the charter, Article 33 uses the phrase 'calls upon’ which is considered not to be binding per se, but reaffirms the already set obligations. Further, articles 36 and 37 also use the word ‘recommends’, which  too is considered to be non-binding in nature. On the contrary, though, under Chapter VI, Article 34 is considered to have a binding nature. In the Namibia case, Resolution 269 specifically referenced Article 25, which is one of the reasons it was deemed to impose a binding obligation. This case illustrates how specific references to binding articles can clarify a resolution's legal force.

Analysing the Language:

In terms of the resolution’s language, the UNSC employs specific words and phrases that help interpret its intent, thereby indicating whether the resolution is intended to be binding or non-binding. Though there is no comprehensive empirical description of what a word/phrase indicates, a pattern can be figured out over the years of the Security Council passing thousands of resolutions. The same can broadly be put under three categories, i.e., emotive, instructive, and modifier. Firstly, emotive language, as the term suggests, reflects the Security Council's collective sentiment regarding a situation. Whether they express concern, grief, condemnation, or shock, these words carry a hierarchy that indicates the severity of the situation. Additionally, instructive language reveals the level of authority the Security Council asserts over a particular matter, playing a pivotal role in determining whether the resolution is binding. Such terms include "decides," "calls upon," "urges," and "demands." However, the challenge lies in the fact that there is no universally agreed interpretation of the authority each term carries. While it is generally accepted that "demands" ranks higher in authority than "urges," words such as "calls upon," "warns," and "requests" remain part of the grey area in this context. Finally there are modifiers, which are used to highlight the severity of a situation, they are used adjacent to the emotive words, words such as strongly, solely and  highly fall into this category. All these words, when taken together help in determining the intent which the SC had while passing of the resolution. As in the present case the words used are “demands”, “calls”, “urges”, “encourages” and “requests” which lean towards the situation being grave enough and the intent of the UNSC being more than just passing a recommendary guidelines.

Furthermore, to interpret a resolution, it is essential to consider the broader context and background surrounding its adoption. This includes examining any prior agreements relevant to the resolution’s passage, as well as the underlying object and purpose of both the agreement and the resolution itself. Statements made by the involved parties, if applicable, also play a crucial role in the interpretation. Additionally, supplementary materials, such as the travaux préparatoires and presidential statements, can be closely analysed to aid in understanding the resolution's intended meaning.

Analysing resolution 2736:

When analysing resolution 2736, various comments and suggestions on language and on the content of the resolution drafted by the UK were invited, which indicate the intention of the countries on this particular resolution. During negotiations, several suggestions from Russia, the "A3 Plus One" (Algeria, Mozambique, Sierra Leone, and Guyana), and China were incorporated, while others were not. Accepted suggestions included Russia's emphasis on coordinating humanitarian aid with the Sudanese authorities and revised language on civilian protection, shifting from a monitoring mechanism to a request for the Secretary-General’s recommendations in consultation with Sudanese and regional stakeholders. Russia and China’s request to replace “Sudanese authorities” with “Sudanese government” was not accepted, and Russia’s call to limit cross-border humanitarian access to preserve national sovereignty was also not fully accommodated. Additionally, the proposal from Russia and the A3 Plus One to expand the resolution’s scope beyond El Fasher to include other conflict areas was declined, with the UK maintaining the resolution’s specific focus. The final draft thus reflected a balance between humanitarian objectives and respect for Sudan’s sovereignty.

The final resolution included key provisions on civilian protection, safe passage, and the withdrawal of fighters threatening civilians, incorporating France’s suggestion to enable withdrawals for agricultural activities. The Secretary-General was tasked with reporting on the resolution’s implementation in regular updates. The US proposed language to reopen the Adre border crossing for humanitarian aid, but this was not included due to concerns from Russia and China over sovereignty. The resolution also focused on UN cooperation for humanitarian aid, with language reflecting concerns from Russia and China regarding the role of the Sudanese authorities in coordinating aid.

The intention of the SC can also be gathered from the kind of suggestions being accepted and those that are rejected. Here in the present case, the resolution seems to lean towards diplomatic measure rather than strict implementational measures. In broad terms, the resolution relies on voluntary compliance rather than legally obligatory commitments in an effort to promote political and humanitarian pressure. The resolution might use the word “demands” for de-escalation or ceasefire, but fails to have a deadline for the same despite some countries suggesting its inclusion in the resolution to make it legally binding. Also, there is no provision for sanctions in case of non-conformity with the resolution. All this reflects the lack of an enforcement mechanism, eventually resulting in no legal action in case of breach of resolution. While the resolution uses language that typically suggests binding intent, such as “demands,” and is passed under Chapter VII, it lacks the substantive context to make it genuinely enforceable.

Contextual and Historical Comparison:

The analysis regarding this resolution can be corroborated by 2 previous UNSC resolutions. Firstly, Resolution 47, which deals with the conflict between India and Pakistan regarding the territory of Jammu and Kashmir. This particular resolution was passed under Chapter VI and was still considered to have a binding nature. The resolution was a comprehensive one, but mainly aimed at directing demilitarisation and conducting a plebiscite for the people of Kashmir to choose between India and Pakistan. This resolution can be considered as binding because the distinction between a "recommendation" and a "decision" has less bearing on the UNSC Resolutions, therefore they can still be regarded as legally binding. The resolution has a required effect if it contains a determination, such as encouraging peace or settling disputes through a referendum. The resolution's provisions are mandatory since it seeks to end the conflict and bring about peace. Similarly, UNSC resolution 1325, despite being under chapter VI, imposes binding obligations over states in the international domain in order to promote and protect the rights and dignity of women and children in times of conflict.

Remedy and Conclusion:

Hence, coming to the initial question: what makes ascertaining the binding value of a resolution so imperative? The UNSC being a holistic body with the capacity to undertake all legislative, executive, and judicial functions, and if the resolutions of such a council come without any mechanism to determine its binding value or without any consequences of not following them, the cost could perhaps be as big as world peace and security. This can, consequently, make us question the legitimacy of the powers of the UNSC, and having a definitive structure to interpret the resolution would not only work as a powerful tool for the UNSC but also foster greater trust and certainty among the nation states.

The solution or perhaps the mechanism to determine the enforceability can be twofold: first, those that can be worked out within the existing framework, and second, those that propose the incorporation of some new structures which will be used to ascertain the enforceability. For the former one, one effective approach can be the application of the principles of the VCLT, specifically articles 31 and 32, as also suggested in the Kosovo Advisory Opinion. These articles lay down the guidelines for the interpretation of international agreements and could be used to comprehend the intention behind the passing of the UNSC resolutions, offering a more standard method for the determination of the binding nature of a resolution.

Furthermore, another approach can be building a database with annotations for certain specific phrases and language that the UNSC incorporates in its resolutions, referring to such a database would lessen the uncertainties that come along with a resolution. Along with this, a panel of experts can be set which would act as the interpretive wing of the UNSC to offer authoritative interpretations and statements with respect to the resolutions passed. Another new framework can be incorporated, which can perform a periodic review of the resolutions to assess them in the light of the current and evolving scenarios, promoting their concurring relevance and clarity for a more comprehensive resolution of the situation. Lastly, codification of rules of interpretation for a resolution by the International Law Commission (ILC) would work as a silver bullet, as it will be a formal, standardised approach to address all the issues revolving around the interpretation and further implementation of a resolution. Hence, these measures, if adopted, would enhance the powers of the UNSC by making the resolutions more authoritative than they are in the present times and ensuring that they contribute effectively in upholding world peace and security.