UN Security Council Resolution 2728 on Immediate Ceasefire in Gaza: Legally Binding or Non-Binding?

Upon the adoption of the United Nations Security Council (UN SC) Resolution 2728 (2024) (see full text reported here - the official version will be uploaded here soon) demanding 'an immediate ceasefire' during Ramadan, Linda Thomas-Greenberg, US's Permanent representative to the UN, abstained in the official vote, but stated that the US "support some of the critical objectives in this non-binding resolution" [emphasis mine]. Mathew Miller (US spox) repeatedly claimed that the resolution passed "is a non-binding resolution", without averring why. When pressed by reporters, he accepted that this was just "our interpretation".

The only hint of a justification came from a representative from the South Korean delegation, who, during a press briefing by the Represented of Mozambique on behalf of the Elected 10 Group, questioned the legal enforceability of the Resolution since it failed to explicitly use the word 'decide' or 'decision' and did not refer to Chapter VII of the UN Charter.

The Representative of South Korea said:

"Maybe legally speaking it's non-binding, because in accordance with the UN Charter, all Security Council decisions must be implemented...[unclear]... leaglly binding, but this Resolution did not use the word 'decide' and it did not invoke Chapter VII of the Charter, so legally speaking it may not be legally binding, but morally, as I said in my statement this reflects the consesnsu of the international community, so it should be implemented."

During the statement, other representatives of the Elected 10 Group could be seen trying to hide their questioning looks about what was being said, conferring with each other in what was evidently preparation for a sharp correction by the Representative of Mozambique in rebuttal, who duly returned to the Mic to emphasise, with a raised finger:

"All United Nations Security Council Resolutions are binding and mandatory. I have been a member of the International Law Commission for 15 years, and President, and I know what I am saying, okay?"

This view was supported by another Representative of the Elected 10 Group - also a legal practitioner - who cited the ICJ's 1971 Namibia Advisory Opinion, before the Representative of Mozambique fielded another question about the binding nature of the Resolution for lack of reference to Chapter VII of the UN Charter. The Representative of Mozambique responded by inviting pressers to "have some international law with me".

In short, it is well established that the Security Council can adopt legally binding resolutions. Art. 25 of the UN Charter states that:

“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

The operative term here is 'decision'. If the Resolution uses only indicative or ambiguous language without intending any obligations thereby, merely recommending or advising action, clearly no legal obligation is intended and, therefore, none arise. However, the term 'decision' is not necessary to confer legal obligations, neither is it necessary for legal validity, as was claimed by the Representative for South Korea.

The International Court of Justice was crystal clear in its 1971 Advisory Opinion on Namibia that resolutions can be legally binding even if not explicitly adopted under Chapter VII of the UN Charter:

“It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council.” [Para 113]

It is therefore clear that Art. 25 of the UN Charter applies to all resolutions adopted by the UN Security Council, not only those taken under Chapter VII of the UN Charter. In the same 1971 Advisory Opinion, the ICJ clarified that:

“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]

In this context, it would be inconsequential for the resolution to take a 'decision' on implementing a ceasefire, as that lies within the power of the parties to a conflict. Instead, the Security Council adopted a resolution whose language is not advisory, but instructive and imperative and clearly demanded action and compliance with the resolution:

"The Security Council [...] 1. Demands an immediate ceasefire" and "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;"

As a result, it should be clear that Resolution 2728 is legally binding, and that UN Member States have an obligation to ensure that it is observed and complied with, to the extent that even where the resolution may conflict with other treaty obligations, the obligations under the UN Charter (in this context the UN SC Resolution), would take precedence (see Art. 103, UN Charter).

More precisely, the Resolution is legally binding on all UN Member States, including upon Israel for an immediate ceasefire, and also upon all other actors, including Hamas, for the release of all hostages, and upon all parties to comply with their obligations under international law in relation to all persons they detain, including those detained by Israel without charge or fair trial.

The significance of this Resolution is not to be underestimated: there were, for the first time on the issue of an immediate ceasefire in Gaza, no vetoes on the text of this Resolution, only one abstention.