UN Security Council Resolution 446


Question :

UN Security Council Resolution 446 states that the Israeli settlements in the occupied territories are illegal. The problem with this Resolution, is that it bases this on Article 49 of the 4th Geneva Conventions, which only speaks about the forcible transfer of its population to occupied territories. It is therefore no wonder that this resolution was issued when Jimmy Carter was president. The only question I have on this is: International law is international law. Doesn’t Israel have to abide by this resolution despite the probability that it is biased against Israel?

Answer :

The authority of the Security Council is established by the UN Charter. The Security Council has the authority under Chapter VII of the UN Charter to pass binding resolutions requiring action by member states as well as permitting actions (like military strikes) by states that would otherwise be illegal. The Security Council also has the authority under Chapter VI to make non-binding recommendations. The Security Council indicates that it intends a resolution to be binding by invoking Chapter VII in the resolution; otherwise , the resolution is non-binding and under authority of Chapter VI. Resolution 446 is adopted under authority of Chapter VI and therefore is not binding. Incidentally, even if it had been adopted by authority of Chapter VII, it might very well have been invalid anyway as the Security Council does not have judicial authority to make judicial resolutions of legal disputes, and the resolution was therefore probably ultra vires.

Security Council resolutions do not create international law. They may, under certain circumstances create binding legal obligations, but Resolution 446 is not one of those cases.