1. Introduction
Ceasefires are by no means a new concept within the international community and were traditionally used to denote an agreed temporary halt to armed hostilities so that each of the belligerent parties suspended their aggressive actions.Footnote 1 Yet although the term ‘ceasefire’ was employed in the pre-UN Charter era, during this period it ‘had no legal meaning, and was instead a military order given by a superior to troops under his command to stop shooting’.Footnote 2 However, since its founding in 1945, the United Nations Security Council (UNSC) has adopted dozens of resolutions with the aim of bringing about an immediate cessation of armed hostilities between two, or occasionally more, belligerent parties and in both international and non-international armed conflicts.Footnote 3 While this particular function of the UNSC is not mentioned expressly within the Charter itself, its competence to adopt measures of such a nature has often been asserted and can arguably be seen as one that has developed through the practice of the Council.Footnote 4 As a consequence of this development it has been said that ‘warring parties no longer exercise exclusive competence over matters that affect international peace and security. Since the U.N. Charter came into force in October 1945, they are no longer fully sui juris, answerable only to themselves’.Footnote 5 Today, as the situation regarding Syria in 2011 demonstrates,Footnote 6 the expectation is clearly for this body, as opposed to any other organ of the UN or regional organization, to take action in order to bring about a ceasefire.Footnote 7
Although such a function is arguably within the jurisdiction of the UNSC as part of its responsibility for the maintenance of international peace and security,Footnote 8 its positioning within the UN Charter and the legal nature of the resolutions in which the ceasefires are contained have remained to a large extent unclear. This lack of clarity has manifested itself mainly in the issue whether the adoption of a ceasefire by the UNSC represents a mere hortatory call for such a cessation or whether it imposes a legally binding obligation upon one or both of the belligerent parties.Footnote 9 The UN Charter does not directly aid the answering of this question, merely providing – without further explanation – that ‘decisions’ of the Council are binding.Footnote 10 Yet, if one is to look outside the textual confines of this document and more broadly at the text of the Council's ceasefire resolutions themselves – and, for example, whether they merely ‘call upon’ the parties to cease their fire or whether they ‘demand’ that they do – as well as at the pronouncements of relevant actors as an aid in interpreting its provisions on this issue,Footnote 11 it becomes clear that there has been a large degree of disagreement and confusion, especially amongst states and scholars.
Of course, it might be tempting to ignore this confusion and simply be grateful that the only universal body with responsibility for international peace and security has come to what could perhaps be seen as a political agreement with the aim of ceasing armed hostilities.Footnote 12 Yet, with the possibility at least for the adoption of such a legally binding resolution, important questions are raised, not only in regard to the particular conflict and determining what the legal obligations upon the belligerent parties concerned are, but also for the legal nature, relevance, and continuing authority of resolutions of the UNSC which are adopted with the aim of achieving peace. Indeed, given that the UNSC is ordained with primary responsibility for the maintenance of international peace and security, the need for clarity as to the nature of resolutions emanating from this important organ – and, in particular, the meaning of the language employed within them – would appear vital to the international rule of law and, ultimately, to the maintenance of international peace and security.
While most scholarly comment on the lack of clarity of the Council's ceasefire resolutions came during the Cold War, or very soon after the end of it,Footnote 13 given that in the post-Cold War era this body is now able to operate to a much greater extent it is perhaps a pertinent time for a fresh assessment of the legal nature of UNSC ceasefire resolutions in contemporary international society.Footnote 14 Furthermore, when we talk of their ‘contemporary’ nature possibly the most distinguishing feature is that more often than not these parties are not two states, but instead a state and a non-state actor. For example, in Resolution 1860 (2009) the parties under focus were Israel and the non-state entity Hamas, and, more recently, in Resolution 2042 (2012) the parties concerned were the Syrian authorities and the opposition fighters. In all such examples a non-state entity has to comply to make the ceasefire effective; to claim otherwise would be a reductio ad absurdum. Yet urging them to comply and obliging them to comply are two different objectives (although while the intended effects may be different, the actual effects may not be).
This article seeks in section 2 to examine the contemporary methodologies for determining the legal nature of UNSC ceasefire resolutions. In particular, it examines what could be described as the three main approaches to interpretation in this respect; the ‘Charter’ approach, the ‘general textual’ approach, and the ‘fully contextual’ approach. Section 3 then moves on to examine their legal nature in the context of non-state actors, in particular the contemporary prevalence of non-international armed conflicts and the legal basis for the UNSC to issue binding obligations in regard to such actors. Section 4 draws some conclusions, not only in light of the above two sections, but also through an assessment of whether one can observe a correlation between the nature of the ceasefire issued and any enforcement measures ultimately imposed by the Council. In the absence of such a correlation, however, the need for clarity is highlighted with suggested means as to how to achieve it.
2. Problems in determining the ‘legal’ nature of unsc ceasefire resolutions
Determining the legal nature and effect of any UNSC resolution is primarily an exercise in interpretation.Footnote 15 Prior to setting about this task one needs to know the applicable rules and tools available.Footnote 16 However, there is no treaty which provides a framework of analysis or points of guidance in interpreting UNSC resolutions, like the role that the Vienna Convention on the Law of Treaties (1969) (VCLT) plays in connection with interpreting treaties.Footnote 17 No such framework or points of guidance have been agreed upon by the UNSC itselfFootnote 18 and the International Court of Justice (ICJ) has not provided anything substantial in the way of jurisprudence in this respect.Footnote 19 Furthermore, there is little direct work from the scholarly community regarding the determination of the binding nature of UNSC resolutions.Footnote 20 There is, therefore, no definitive way of determining their legal nature and little of direct textual relevance to assist us in more specifically determining the legal nature of UNSC ceasefire resolutions.
Given the lacuna in directly relevant sources to offer guidance – and in an attempt to discern some sort of doctrinaire consistency – Articles 31–3 of the VCLT have been utilized by some scholars as a guide in interpreting UNSC resolutions.Footnote 21 Additionally, and perhaps of most relevance in determining whether a UNSC resolution is legally binding, the ICJ, in a well-known passage from its Namibia advisory opinion, stated 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. In view of the nature of the powers of Article 25, the question is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provision invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.Footnote 22
While there are various reasons why these two sources may not be directly employed in interpreting UNSC ceasefire resolutions,Footnote 23 they do lend support to what could be described as the three main approaches to the determination of the issue under focus: the ‘Charter’ approach, the ‘general textual’ approach, and the ‘fully contextual’ approach.
2.1. The ‘Charter’ approach to interpretation
In utilizing the ‘Charter’ approach in determining the legal nature of UNSC ceasefires we are to revert back to the UN Charter as the instrument in which the Council gains its authority to act.Footnote 24 In this respect, the Charter says surprisingly little on this particular organ's powers to adopt legally binding measures; only that under Article 25 ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’.Footnote 25 But this raises the somewhat perennial question as to when it can be said that the UNSC has adopted such a ‘decision’. There is no elaboration or further guidance in either Article 25 or the UN Charter as a whole, and neither do the travaux préparatoires provide any conclusive illumination.Footnote 26
In terms of form, there is nothing in the Charter to distinguish resolutions from presidential statements, or indeed any other method of the UNSC publishing its collective voice. In fact, the UN Charter does not mention resolutions at all, with reference being made just to ‘decisions’ on ‘procedural’ and ‘other’ matters.Footnote 27 Nonetheless, subsequent practice of the UNSC has given rise to an operational understanding that it is formally adopted resolutions of the Council which may be of a directly legally binding nature. If in light of a presidential statement requesting a ceasefire a state party declares that it will implement it, as was witnessed with the Assad regime in respect of the Annan peace plan in the Syrian conflict,Footnote 28 this may potentially have binding force upon the party concerned, but this would be as a result of the binding force of any unilateral statement made by the state concerned as opposed to through the presidential statement itself.Footnote 29
However, in terms of substance, in determining whether, and if so which, UNSC ceasefire resolutions are legally binding upon the belligerent parties to a conflict, the issue of whether a particular chapter or provision of the Charter has been invoked in the particular resolution would appear to be the first port of call under the Charter approach to interpretation. Indeed, this element in determining the legally binding nature of UNSC resolutions was expressly mentioned in the Namibia advisory opinion, where, as noted above, it was stated by the ICJ that the question was to be determined by having regard to, inter alia, ‘the Charter provision to be invoked’.Footnote 30 As such, if we are to accept that the adoption of a ceasefire falls within the powers of the UNSC under its primary responsibility for the maintenance of international peace and security, we could say that if a ceasefire was contained in a resolution that was expressly stated to be a ‘decision’ under ‘Article 25’ then this would prima facie be legally binding. However, this is a rather hypothetical proposition as such an express invocation of Article 25 is extremely rare.Footnote 31 Instead, the main debate under the Charter approach has been whether binding decisions in the sense of Article 25 are restricted to resolutions which have been adopted under a particular chapter of the Charter, in particular Chapter VI or VII.Footnote 32
2.1.1. Chapter VI or Chapter VII?
No mention is made of Article 25, which is located in Chapter V of the Charter, in either Chapter VI or Chapter VII, and neither is Chapter VI or VII mentioned in Article 25. Of course, it might be a fair assumption that if Article 25 exclusively applies to those resolutions adopted under a particular chapter it would be located in the chapter itself or,Footnote 33 alternatively, for this exclusive applicability to be specifically stated in Article 25. However, a distinction is often made between resolutions adopted under Chapter VI of the Charter regarding the ‘Pacific Settlement of Disputes’, which are generally considered to be non-binding,Footnote 34 and those adopted under Chapter VII in regard to ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, which are considered to be binding. This stems predominantly from the fact that the language of Chapter VI is not generally of a decisive nature, but is rather primarily about situations in which the UNSC might ‘call upon the parties to settle their dispute’ through peaceful means or,Footnote 35 failing that, to recommend appropriate measures to bring about such a result.Footnote 36
However, this exclusive applicability has been dismissed by many.Footnote 37 Indeed, it could be argued that whether a decision of the UNSC is binding depends not upon whether it has been adopted under Chapter VI or under Chapter VII – or indeed any other chapter or provision of the Charter – but rather upon whether the decision is necessary for the UNSC to take under its general responsibility for the maintenance of international peace and security.Footnote 38 Yet, while in theory it is conceivable that a binding decision as to a ceasefire could be adopted under Chapter VI, this particular chapter is in any case concerned with the settling of disputes that are yet to constitute a threat to the peace and, as such, under which any adoption of a ceasefire would seem misplaced, not to mention premature.Footnote 39 Indeed, given that ceasefires are issued in the midst of an armed conflict the threshold for Chapter VII to be invoked will have implicitly been met, making Chapter VI redundant. This is arguably why Chapter VI has never been invoked, at least expressly, by the Council in a ceasefire resolution. By contrast, while the UNSC has not evinced a consistent practice in this respect, Chapter VII has often, and particularly recently, been expressly invoked as the chapter under which a ceasefire resolution has been adopted.Footnote 40
However, even if a ceasefire resolution is expressly adopted under Chapter VII this is not conclusive as to its binding nature. Indeed, Article 39, as the ‘gateway’ to Chapter VII, provides that:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security [emphasis added].
If we are to read this provision directly in light of Article 25 then it is logical to conclude that only the ‘decisions’ referred to have binding effect. Indeed, the clear distinction between a ‘recommendation’ and a ‘decision’ would appear to indicate that resolutions adopted under Chapter VII containing any sort of recommendation are not decisions and thus not binding, providing fuel to the argument that not all Chapter VII resolutions are necessarily legally binding. It is therefore logical to conclude that if the UNSC merely ‘recommends’ a ceasefire, whether adopted under Chapter VI or VII, this is not legally binding upon the parties.Footnote 41
It remains the case, however, that on the basis of Article 39 binding ‘decisions’ appear to be those adopted under Article 41 or 42. Yet the question consequently arises whether either of these provisions would be an appropriate basis for the adoption of a ceasefire resolution.
2.1.2. Articles 41 and 42
Article 41 of the UN Charter provides that ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’ (emphasis added). To put this differently, after the UNSC has both decided that non-forceful measures under Article 41 are necessary and what form these are to take, rather than taking the action itself it instead requires them to be enacted by member states.Footnote 42 Indeed, the type of measure expressly envisioned as being taken in Article 41 ‘may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’. By definition, the implementation of these measures, for example the severance of diplomatic relations, will need to be undertaken by the member states. To put this into context, the adoption of a ceasefire fits within the paradigm of this provision with respect to the implementation of the measures envisaged as, while it is the UNSC that takes the decision that a ceasefire is necessary, it is the parties to the conflict that must ultimately implement it.
Although at first it may appear that the adoption of a ceasefire is not in line with the type of measures expressly envisioned in Article 41, the inclusion within this provision of the qualification ‘may include’ of course leaves it somewhat open what measures may be taken under it. However, it could be questioned whether a call for a ceasefire can plausibly fit within the realm of intended action under this provision. First, these measures are apparently punitive in nature, while the adoption of a ceasefire does not often lay blame on a particular party. Furthermore, Article 41 appears to envisage imposing legal obligations upon the general membership of the organization by ‘call[ing] upon the Members of the United Nations’ to apply the measures (emphasis added). By contrast, ceasefire resolutions are directed towards the parties involved in the conflict, not the UN's membership at large.
Nevertheless, given that under this provision the Council may ‘decide’ upon the measures to be taken and then ‘call upon’ the members of the UN to apply them, we must conclude that a ‘call’ made in this context is legally binding upon the members of the UN. This is particularly significant when it is considered that this is the language very often employed by the UNSC in its ceasefire resolutions.Footnote 43 For example, although not expressly adopted under Article 41, both Resolutions 1860 (2009) and 2042 (2012) witness the UNSC ‘calling upon’ the respective parties to cease their fire.Footnote 44 However, and rather confusingly, Resolution 1970 (2011), which was adopted in connection with the conflict in Libya, was expressly adopted under Article 41 but then proceeded to use more decisive language in ‘demanding’ a ceasefire, giving rise to accusations that the Council is inconsistent in both its use of the Charter provisions and language.Footnote 45
Article 42 of the Charter, on the other hand, does not employ the language of ‘decide’ or ‘call upon’. However, this provision is not suitable for the adoption of a ceasefire resolution as it is concerned with the taking of positive forcible action.Footnote 46 Furthermore, Chapter VII largely envisages the UNSC possessing a sort of standing army of its own to call upon if necessary,Footnote 47 so when Article 42 states that ‘it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’ (emphasis added) it is the UNSC that it is referring to. As such, under this provision, and in contrast to Article 41, it is the UNSC that decides that forcible measures are necessary and it is the organ itself which is to take them. Consequently, the UNSC has, in adopting its ceasefire resolutions, never expressly claimed to be acting under Article 42, although it may be of some relevance to the question in this article as the measures envisioned may be resorted to if the belligerent parties do not cease their armed hostilities when requested to do so, something which will be returned to below.Footnote 48
2.1.3. Article 40
At least up until relatively recently, when the Council invoked a particular Chapter VII provision to act under when adopting a ceasefire resolution it often chose Article 40 to do so.Footnote 49 In a search for the legal nature of UNSC ceasefire resolutions this is of some significance as this provision is concerned with the adoption of ‘provisional measures’ to be taken as a prelude to the adoption of any ‘decisions’ under Article 39 which, as discussed above, are specifically tied to action under Articles 41 and 42. Indeed, Article 40 provides:
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures [emphasis added].
As such, unless we are to consider the ‘decisions’ of Article 25 to be different to the ‘decisions’ of Article 39, then under the Charter approach to interpretation ceasefires adopted under Article 40 would not appear to be binding. Nevertheless, if we are to look at things from a ratione personae perspective then this is perhaps the most relevant provision in Chapter VII in connection with ceasefires as it concerns calls for compliance that are expressly aimed at the belligerent parties themselves. Indeed, in connection with ceasefires this provision does, in a sense, indicate that before the UNSC draws in other member states to carry out particular measures in connection with the specific situation, it will first ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable’. These could, of course, include a ceasefire.Footnote 50 Furthermore, the fact that this provision notes that these measures ‘shall be without prejudice to the rights, claims, or position of the parties concerned’ is particularly compatible with the adoption of ceasefires, which simply aim to cease hostilities as opposed to apportioning blame.
It is interesting to note that in terms of whether ceasefire resolutions adopted under this provision are legally binding Morris – rather equivocally – states that ‘[t]he Security Council may take a more decisive step by calling for a cease-fire as a provisional measure under Article 40, which although part of Chapter VII, may not be binding’.Footnote 51 In this respect, it may be of significance that on the occasions when Article 40 has been invoked the expression of the ceasefire has taken an obligatory tone by the UNSC ‘ordering’ or ‘demanding’ one, instead of using the more hortatory language of Article 40 in ‘calling upon’ the parties to cease their fire. Indeed, although the ceasefires in Resolutions 54 (1948) and 598 (1987), in connection with the conflicts in the Middle East and the Gulf respectively, were expressly adopted under Article 40, they were also expressly stated to be ‘orders’ and ‘demands’,Footnote 52 perhaps giving rise to the argument that they were intended by the Council to be legally binding upon the parties concerned.Footnote 53
Even if one is not inclined to accept the argument that ceasefire resolutions adopted under this provision are legally binding, it is perhaps of significance that the provision expressly states that the UNSC will ‘duly take account of failure to comply with such provisional measures’. White and Saul have made the argument in the context of Chapter VI resolutions that even if only a recommendation is adopted the UNSC can then enforce it under Chapter VII, thereby making it, in effect, legally binding.Footnote 54 This argument can be made even more plausibly in the context of the enforcement of measures adopted under Article 40 given the positioning of the provision in Chapter VII, thus preventing the need for any ‘obscure transitions’ by the Council between Chapters VI and VII.Footnote 55
2.1.4. The ‘implied powers’ of the Security Council
While the above sections have sought to locate a specific chapter or provision within the UN Charter within which to place ceasefire resolutions in an attempt to discern their legal nature and hence whether they are, or potentially can be, legally binding, there is also the possibility that the UNSC acts on certain occasions upon the basis of ‘implied powers’, or, as Schachter has put it, ‘on a liberal construction of its authority derived from its general powers to maintain and restore international peace and security’.Footnote 56
The taking of action by the UNSC under the ‘implied powers’ doctrine has notable judicial and scholarly support and is perhaps a particularly relevant basis if – as is so often the case – the UNSC does not allude to a specific provision of the Charter upon the adoption of a ceasefire resolution.Footnote 57 In fact, it has been argued that in a broader context the Council ‘has virtually never found it necessary to specify a “legal base” for its decisions’ but instead ‘situates itself within an international tradition in which the scope and allocation of powers are achieved with a broader brush’.Footnote 58 In this respect, the ICJ in the Reparations advisory opinion was clear that the Charter should be given an ‘effective’ interpretation so that ‘the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential for the performance of its duties’.Footnote 59
However, the reference here by the ICJ to powers being inferred by ‘necessary implication’ alludes to a central limit upon the scope of any implied powers in that they should respect both the breadth and scope of the powers of the respective organ as well as that of other organs.Footnote 60 While the Charter does not expressly provide the UNSC with the power to adopt ceasefires, whether or not of a legally binding nature, given the Council's primary responsibility for the maintenance of international peace and security it is perhaps uncontroversial that such a power is to be implied and, furthermore, that resolutions containing such a perceived necessary measure are ‘decisions’ for the purposes of Article 25 of the Charter.
Yet a criticism of this basis might be that the wider membership of the UN ‘is unlikely to accept the Council's decisions unless they can ultimately be defended by reference to powers delegated to it’.Footnote 61 For those unsatisfied with what may be seen as a legal basis detached from the Charter more flesh of a specific nature has on occasion been added to its often perceived bare bones. For example, the ICJ in the Namibia advisory opinion expressly held that the implicit legal basis for UNSC Resolution 276 (1970) was Article 24 of the Charter as the aims of the resolution fell within the UNSC's general responsibility for the maintenance of international peace and security.Footnote 62 Indeed,
Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case. The reference in paragraph 2 of this Article to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1 . . . the Members of the United Nations have conferred upon the Security Council powers commensurate with its responsibility for the maintenance of peace and security.Footnote 63
Furthermore, and of importance in discerning whether resolutions adopted upon this basis can be legally binding per se upon the states concerned, this was held by the Court to be a decision in the context of Article 25.Footnote 64
Building upon this, Article 48(1) of the UN Charter provides that:
The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
This provision is perhaps of significance in the context of the ‘implied powers’ doctrine for two reasons. First, and in connection with what was discussed in the above section, it determines that such action can be carried out by ‘some’ as opposed to ‘all’ of the members of the UN. As such, this is compatible with the nature of ceasefires as being legally binding only upon the belligerent parties. Second, and most importantly, rather than tying ‘decisions’ of the UNSC directly to Articles 41 and 42, it instead ties them to the UNSC's primary responsibility ‘for the maintenance of international peace and security’ more generally. As a consequence, rather than having to be adopted under either Article 41 or 42 to be considered a decision, a legally binding ceasefire could be implicitly adopted through the general implied powers of the UNSC in the realm of the maintenance of international peace and security.
2.1.5. Conclusion
The discussion in this section on the Charter approach to determining the legal nature of UNSC ceasefire resolutions in a sense confuses two issues, as while these are bases within the Charter for the UNSC to adopt ceasefire resolutions – and furthermore those that are potentially ‘decisions’ and as such legally binding – it does presuppose that the UNSC is clear in stating the particular provision under which it is acting and/or that it is adopting a ‘decision’. As has become clear throughout this section, however, the UNSC is far from consistent in invoking the chapter or provision under which it is acting or in expressly claiming to be taking a ‘decision’ when adopting ceasefires.Footnote 65 Consequently, we have a double problem which renders the Charter approach fine in theory but unreliable in practice; the Charter is not clear under which chapter or provision a legally binding resolution can be adopted, and when issuing ceasefires the UNSC is also often silent, or at best inconsistent, as to which chapter or provision it is acting under. A further problem is that even when invoking Chapter VII in a resolution, it is not always invoked in the same place: sometimes it is at the start, prefacing all the other operational paragraphs and thus clearly applicable to the whole resolution; at other times it is invoked only within a specific operational paragraph.Footnote 66 In this respect, if Chapter VII is mentioned only in a paragraph on sanctions can we also assume that the ceasefire paragraph in the resolution is also adopted under Chapter VII?
If we are to assess the legal nature and effect of a UNSC ceasefire resolution through the Charter provisions invoked, this frequent silence and lack of consistency is problematic. As such, while this section has attempted to survey the Charter for a location under which a UNSC ceasefire resolution might fall, and thus determine the outcome of whether it is legally binding, given the silence and confusion on the behalf of the Council, very little can be said with any certainty. Instead, on a textual level, perhaps more can be discerned about the legal nature of a UNSC ceasefire resolution by looking at the particular terminology employed, and how ‘decisive’ it appears to be, rather than under which provision of the Charter it was invoked.
2.2. The ‘general textual’ approach to interpretation
Given the unclear result provided by the ‘Charter’ approach, and in drawing upon the ‘general rule’ of interpretation in the VCLT and the Namibia advisory opinion's primary assertion that ‘[t]he language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect’,Footnote 67 some specifically use the language employed in UNSC resolutions in determining their legal nature, something already alluded to in the above section.Footnote 68 It may, as such, be of greatest significance in determining whether a ceasefire is legally binding upon the belligerent parties whether the Council has employed authoritative or mandatory language in addressing them. This emphasis is stated in unequivocal terms by Yoram Dinstein, who asserts that:
As long as the Council is merely calling for a cease-fire, its resolution has the hallmark of a non-binding recommendation. The parties are then given an opportunity to craft a cease-fire agreement of their choosing. But if they fail to reach an agreement, the Council may be driven in time to ordain a cease-fire.Footnote 69
Indeed, the UNSC may ultimately use ‘unequivocal language’ to ‘order belligerents to cease fire’.Footnote 70 Alternatively, according to Dinstein, if the reference to a ceasefire in a resolution of the UNSC is a ‘non-mandatory exhortation’, perhaps as the UNSC included in Resolution 2042 (2012) when it merely ‘called for a ceasefire in Syria’, then ‘the resolution may be ignored with impunity’.Footnote 71 Therefore, while a ‘call for’ action by the UNSC can be seen as equivocal language, an ‘order’ would be seen as unequivocally legally binding.Footnote 72 The sequence of resolutions adopted by the Council during the Iran–Iraq war of the 1980s provides a particularly good example of this. Indeed the ordinary meaning of the words employed in the sequence of these resolutions gives rise to the impression that the parties were not obliged to adhere to the ‘call’ in Resolutions 479 (1980), 514 (1982), 522 (1982), and 582 (1986), but as soon as the UNSC subsequently ‘demanded’ an immediate one in Resolution 598 (1987) they were obliged to do just that, although fighting only came to an end over a year later in August 1988.
Yet, such a straightforward ordinary reading of terms, while attractive in its simplicity, is also somewhat deceptive, as the UNSC is a political organ and, as such, unlike with treaties, most of the language used in UNSC resolutions is not necessarily intended to create rights and obligations binding on states but is instead of a political nature.Footnote 73 In addition, ‘there is no institutional mechanism to ensure that resolutions are well drafted’,Footnote 74 which means that ‘[i]nconsistencies in the use of terms and ungrammatical constructions are not uncommon’,Footnote 75 resulting in UNSC resolutions that ‘are frequently not clear, simple, concise or unambiguous’.Footnote 76 However, as Michael Wood, former chief legal adviser to the UK's Foreign and Commonwealth Office, points out, this is perhaps of no surprise as ‘[t]hey are often drafted by non-lawyers, in haste, under considerable political pressure, and with a view to securing unanimity within the Council’.Footnote 77 Indeed, this ‘often leads to deliberate ambiguity and the addition of superfluous material (presumably thought at the time to be harmless)’.Footnote 78 Therefore, ‘[i]n general, less importance should attach to the minutiae of language’.Footnote 79
Furthermore, the UNSC has shown something of a propensity – in order to secure the necessary consensus for the adoption of a textFootnote 80 – to provide an operational meaning to what are otherwise straightforward terms. This can be seen most clearly in the Council's practice of ‘authorising’ states to use ‘all necessary means’,Footnote 81 a formula which is now fully understood to equate to the granting of permission to the authorized states to use armed force.Footnote 82 The possibility for the provision of such a ‘special meaning’ is clearly provided for in the VCLT. Indeed, Article 31(4) states that ‘[a] special meaning shall be given to a term if it is established that the parties so intended’.Footnote 83 Such a special meaning could, of course, be provided at the time of the treaty's – or in this case UNSC resolutions – adoption, or subsequently, either through a ‘subsequent agreement between the parties regarding the interpretation of [it] or the application of its provisions’Footnote 84 or alternatively – and perhaps more likely – through ‘subsequent practice in the application of [it] which establishes the agreement of the parties regarding its interpretation’.Footnote 85 Upon this basis, either a mere ‘call’ or a more weighty ‘demand’ for a ceasefire in a resolution of the UNSC could give rise to binding legal obligations if either discussions leading to the adoption of the particular resolution, past practice regarding the chosen language, or subsequent practice under the wording of the particular resolution demonstrates that this is the collective intention of the Council.
However, while such an understanding regarding the phrase ‘all necessary means’ has been clearly established in the practice of the Council, no such understanding is apparent in connection with the terminology used in ceasefire resolutions. Instead, the practice of the UNSC seems to give rise to something of a ‘semantic tangle’.Footnote 86 This tangle is evident both from a textual reading but also, and perhaps most importantly, from the expressed intention of the parties upon the adoption of a resolution containing particular terminology. For example, in the very first ceasefire resolution in the practice of the Council in connection with the conflict between the Netherlands and Indonesia during 1947–50,Footnote 87 the Council issued a ‘call’ for a ceasefire which was in subsequent resolutions confusingly described as both an ‘order’ and a ‘recommendation’.Footnote 88 Although not necessarily as a consequence of this ambiguity, the conflict nevertheless continued for over three years after this initial ‘call’.
As another example of this tangle, the UNSC ‘called upon’ the parties fighting in the Arab–Israeli War of 1973 to cease their fire in Resolution 338 (1973).Footnote 89 Interestingly, the Council made clear that this was to take effect ‘no later than 12 hours after the moment of the adoption of this decision’ (emphasis added). The Council then went on to ‘confirm . . . its decision on an immediate cessation of all kinds of firing and of all military action’ in the very next resolution.Footnote 90 So the simple ‘call’ was stated at the time of its adoption and subsequently to be a decision, regardless of the fact that it was not expressly adopted under any provision of the UN CharterFootnote 91 and only used the more hortatory ‘call upon’ language. As such, it could be argued that given the continuation of hostilities the parties were in breach of their obligations under Article 25 of the UN Charter. Indeed, the UNSC then in Resolution 340 (1973) ‘noted with regret the reported repeated violations of the cease-fire in non-compliance with Resolutions 338 (1973) and 339 (1973)’Footnote 92 and went on to ‘demand that an immediate and complete ceasefire be observed’,Footnote 93 with fighting eventually coming to an end two days later. While, as noted above, this ambiguity could be put down to poor drafting the ultimate result was that the legal obligations flowing from these resolutions were not clear.
Of perhaps greater significance is that disagreement has been clearly visible in the statements of states upon the adoption of a particular resolution. While discerning the intention of the parties as to the correct meaning of included terminology through preparatory materials is merely a ‘supplementary means of interpretation’ in the VCLT,Footnote 94 it is of vital importance in the context of UNSC resolutions given the often (intentional) ambiguity in the choice of terminology or for the use of special meanings or operational understandings of terms.Footnote 95 However, examining the meeting reports of the UNSC at the time of the adoption of the UNSC resolutions only appears to add to the ambiguity on the meaning of chosen language in ceasefire resolutions. This can be seen, for example, in the disagreement in the chamber of the UNSC over the binding nature of the ‘call for’ a ceasefire that was issued in Resolution 1860 (2009) in the context of the Gaza conflict of 2008–9. During the meeting where the resolution was adopted there was agreement on the fact that there must ultimately be a cessation of the violence occurring in Gaza. The US, for example, stated that ‘our goals must be the stabilization and normalization of Gaza through the implementation of a durable and fully respected ceasefire’.Footnote 96 However, the issue of how immediate the cessation of armed hostilities should be was more unclear. Whilst many thought that it should be ‘immediate’ there were also those who thought that that resolution was merely a ‘step’,Footnote 97 ‘contribution’,Footnote 98 ‘promotion’,Footnote 99 or ‘encouragement’Footnote 100 towards this and that it would ‘pave the way’Footnote 101 to a ceasefire being realized.
Furthermore, the ceasefire was described in many different ways. For example, some called it a ‘decision’,Footnote 102 others called it a ‘formal decision’,Footnote 103 while some described it as a ‘formal call’Footnote 104 and others a ‘strong appeal’.Footnote 105 Regardless of how it was depicted by the Council members, none of the member states expressly claimed that it was not legally binding or that it was merely a recommendation, although the transcripts of the meeting give rise to the impression that there was a feeling amongst many that this was the case. Indeed, some bemoaned the fact that stronger wording was not used, which is perhaps indicative of the feeling by these states that on this occasion the adopted resolution was not legally binding.Footnote 106
Nevertheless, certain members of the UNSC were adamant that it was legally binding with serious consequences to follow if it was not adhered to. Indeed, the representative for Costa Rica stressed that
It is appropriate now to underscore the legally binding nature of this resolution. Compliance by all parties to the conflict is mandatory. The parties must understand clearly that failure to comply could, and should, entail serious consequences.Footnote 107
In a fairly contradictory manner, however, Costa Rica also went on to say that ‘[t]oday, after much apprehension and travail, the Council has adopted a resolution which, while not having received all the necessary political support, has tremendous moral force’.Footnote 108 Palestine, perhaps not surprisingly, also was of the view that what was to be adopted by the UNSC was a ‘binding-resolution calling for an immediate ceasefire’.Footnote 109 While not commenting directly upon its binding nature, Mexico nonetheless was adamant that the resolution ‘was negotiated through intensive consultations in the expectation that its provisions would be applied immediately on the ground’.Footnote 110 Some states stressed that it must be heeded and respected,Footnote 111 others simply urged respect for it,Footnote 112 whilst some simply expressed a hope that the parties would abide by it and that the resolution would be implemented.Footnote 113 Nevertheless, other states, including Israel itself, were not of the opinion that it contained legally binding obligations, including on Hamas, a non-state actor.Footnote 114
2.3. The ‘fully contextual’ approach to interpretation
Given that the law remains unclear over the issue as to the legal nature and effect of UNSC ceasefire resolutions and that the UNSC has persisted with its ambiguous use of Charter provisions and language, it perhaps remains that in determining the legal nature of UNSC ceasefire resolutions we are left with what Rosalyn Higgins has described as the ‘fully contextual approach’.Footnote 115 That is, there is not a single approach which provides a definitive conclusion as to a ceasefire resolution's legal nature, but rather that there are a host of relevant factors that must be considered, and these – and the emphasis placed upon them – will vary depending upon the context of the particular crisis. These factors might include, for example, the Charter positioning of the resolution (i.e., whether or not it was placed in Chapter VII); the general text of the resolution and whether it employs ‘calls’ or ‘demands’; whether enforcement measures have been imposed or threatened, and in this respect the prior involvement of the UNSC or the UN more generally in the particular conflict and any determinations as to a threat to or breach of the peace; the aims and purposes of the resolution expressed within its preamble; and ultimately any signs that the resolution, and in this case the ceasefire contained within it, was intended to be legally binding and, if so, upon whom. Along these lines Michael Wood has pointed out that ‘the great majority [of UNSC resolutions] deal with a particular situation or dispute’.Footnote 116 In such cases, and as a result of their political grounding, in interpreting the resolution ‘it is necessary to have as full a knowledge as possible of the political background and of the whole of the Council's involvement, both prior to and after the adoption of the resolution under consideration’.Footnote 117 This, of course, broadens the scope of the enquiry away from solely examining the text of a resolution.
However, simply claiming that the legal nature of a UNSC ceasefire resolution depends upon the results of the interpreter's engagement in a fully contextual inquiry again leads to an unsatisfactory result. Indeed, without a definitive point of reference, this not only fully contextual but also fully subjective approach leaves it open for each individual interpreter, whether that be a member of the UNSC, a judge, an international lawyer, or, of course, a party involved in an armed conflict, to focus upon the element of the context of the adoption of the resolution which most favourably advances its position. For example, while there was near universal support for Resolution 1860 (2009) it was also clear from the statements made by the member states of the UNSC upon its adoption that different states focused upon different parts of the context in supporting it.
Costa Rica, which as noted above was adamant that the resolution was of a ‘legally binding nature’,Footnote 118 appeared to make such a claim on the basis that ‘failure to comply could, and should, entail serious consequences’Footnote 119 and expressed a ‘hope that the Council will also be consistent with the decision it has taken today and that it will use its authority in order to ensure respect for that decision’.Footnote 120 On the other hand, Vietnam appeared to question the legally binding nature of the resolution by expressing its disappointment that the resolution was not adopted ‘with more clear-cut language, providing for an immediate ceasefire and an immediate withdrawal of Israeli forces from Gaza’.Footnote 121 Similarly, Burkina Faso felt ‘that the message could have been more clearly articulated’.Footnote 122
This approach also enables different interpreters to focus on the activities of a particular party to the conflict in determining upon whom it is binding. While the United States was clear that the goal must be ‘the implementation of a durable and fully respected ceasefire and an end to all terrorist activities’, Resolution 1860 (2009) was nonetheless only considered to be ‘a step towards’ achieving this goal, with emphasis placed upon Hamas for beginning the crisis and with express recognition of Israel's right of self-defence. There was thus clear recognition that the ceasefire was intended as being directed towards Hamas and would not be binding upon Israel should it be provoked again.Footnote 123 By direct contrast, it appeared from Libya's statement that ‘Israeli aggression’ was what the resolution was a response to so that ‘the important and urgent thing now is to implement the provisions of the present resolution in such a way as to put an end to the Israeli massacre in Gaza and to halt the Israeli destruction machine’.Footnote 124 Similarly, while Palestine was adamant that the resolution was ‘binding’ so that Israel must put an end to its ‘aggression’,Footnote 125 Israel was equally adamant that it had ‘no choice but to act in self-defence’ given the ‘eight years of continuous rocket attacks by the Hamas terrorist organization, Hamas’ refusal to extend the period of calm and its smuggling of weapons during that period’.Footnote 126 Indeed, responsibility for the hostilities – and thus the intended target for the ceasefire – was claimed to lie squarely with Hamas given its terrorist activities. The problem this position raises, of course, is whether non-state actors can be bound in the first place by ceasefire resolutions, an issue which is addressed next.
3. UN Security Council ceasefires and non-state actors
3.1. The UNSC, ceasefire resolutions, and the contemporary prevalence of non-international armed conflicts
All the problems discussed earlier take on an extra layer of complexity when applied to non-international armed conflicts, and specifically with regard to the actions of armed groups. Decades of devastating conflicts involving armed groups across the African continent, as well as conflicts in Latin America and elsewhere, and more recently during some of the ‘Arab Spring’, only serve to reflect what has become increasingly obvious over recent decades – we cannot speak of international security without addressing the ever-increasing effect of non-state actors on domestic and international affairs.Footnote 127
It almost goes without saying that public international law, and especially the areas of law concerned with armed conflict and use of force, were originally envisaged as covering the sphere of international affairs and use of force between states, rather than internal violence. It is equally clear that in reality, however, non-international armed conflicts have, at times, been far more prevalent and devastating than those between states.
The practice of the UNSC demonstrates that it has not been oblivious to this state of affairs, and it has frequently been home to debates and resolutions on non-international conflicts. The conflicts addressed by the Council range from the CongoFootnote 128 and AngolaFootnote 129 conflicts in the 1960s, through to the former Yugoslavia,Footnote 130 Rwanda,Footnote 131 Angola again,Footnote 132 and SomaliaFootnote 133 in the 1990s, and, since the turn of the century, Burundi,Footnote 134 Sudan,Footnote 135 Côte d'Ivoire,Footnote 136 Libya,Footnote 137 and most recently Syria.Footnote 138 Notably, the Council has also taken the step of determining internal armed conflicts as threats to international peace and security.Footnote 139 For example, Resolution 864 (1993) finds the Council ‘[d]etermining that, as a result of UNITA's military actions, the situation in Angola constitutes a threat to international peace and security’.Footnote 140 Such a determination consequently allows for the Council in the same resolution to proceed to act under Chapter VII of the UN Charter.Footnote 141 There is solid ground for viewing such situations as threats to international peace and security considering the often inevitable harmful effect, at the very least on neighbouring countries, caused by such conflicts.Footnote 142 Many – if not most – of the above-mentioned conflicts did at one point spill across borders and affect other states through the movement of armed groups or the flow of substantial numbers of refugees. Instability can be contagious, and this is recognized by the UNSC's attention to internal situations. One could also argue that the involvement of the Council in internal conflicts, even if these have no overt effect on other states, is supported by the UN commitment to protection of human rights and, potentially, by the elusive but endlessly discussed ‘responsibility to protect’.Footnote 143 For the current purpose it is, however, sufficient to demonstrate that the UNSC has, for many decades now, considered internal situations in light of Article 39, and thus as falling within the parameters discussed above for potentially binding ceasefire resolutions.
Ceasefires are, naturally, a frequent component in UNSC resolutions on situations of conflict, and this is equally true for non-international conflicts. Non-state actors occupy a peculiar position in the international legal framework on the use of force. Armed groups do not benefit from the rules granting states a legitimate claim to resort to force;Footnote 144 conversely, states are not as restricted in their resort to force against armed groups domestically, as they are with regard to force against other states.Footnote 145 One matter does, however, appear certain: whether or not they can ever resort to force, and regardless of the state's actions during internal conflicts, the UNSC clearly takes it upon itself to attempt to make the armed groups lay down their weapons. There is no shortage of examples of ceasefire resolutions which address not only states but also non-state actors.Footnote 146 As with the difficulties of interpretation presented earlier, here too the language is mixed: ‘appealing’ for a ceasefire in the Congo;Footnote 147 ‘strongly urging’ one in Somalia;Footnote 148 and ‘demanding’ ceasefires in Rwanda,Footnote 149 Kosovo,Footnote 150 Côte d'IvoireFootnote 151 and Libya.Footnote 152 Equally, while some of the resolutions explicitly invoked Chapter VII of the Charter, this was far from a uniform approach, and it is not always easy to discern whether there is an implicit recognition of the underlying Charter provisions.Footnote 153 In that respect, all the debates and potential approaches for a solution as discussed earlier will apply to these resolutions. For now, however, let us assume that the earlier problems have been clarified, and we know how to recognize which resolutions are binding upon member states. The difficulty is that despite any such clarification, non-international armed conflicts will present us with further complexities. By definition, non-international armed conflicts will contain at least one party which is a non-state actor. The question then arises as to the legal powers and effects of UNSC ceasefire resolutions aimed at conflicts involving armed groups.
While the UN is not concerned exclusively with its members – a matter which will be returned to shortly – its primary remit is with regard to member states. But armed groups are not, of course, member states. In fact, there is a double problem: they are not members, and neither are they states.Footnote 154 Accordingly, it is not an entirely obvious assumption that UNSC resolutions can legally bind armed groups in complying with a ceasefire. The Council does, nonetheless, appear to consider its resolutions as binding upon armed groups and concurrently addresses both the states and non-state actors engaged in conflict.Footnote 155 Indeed, it would be hard to imagine otherwise: If the UNSC resolutions were only addressing states, then calls for a ceasefire in a non-international armed conflict would be an exercise in futility. It would also be blatantly one-sided and biased against states, by requiring the state forces to cease fighting, while not addressing the violence from the non-state actor. The principle of effectiveness (ut res magis valeat quam pereat) leads to the common-sense conclusion that resolutions on non-international armed conflict are designed to cover the armed groups as well as the state involved.
As an example of the practice of the Council clearly demonstrating a belief that it is capable of issuing obligations binding upon non-state actors, Resolution 918 (1994) ‘[d]emand[ed] that all parties to the conflict immediately cease hostilities, agree to a cease-fire, and bring an end to the mindless violence and carnage engulfing Rwanda’.Footnote 156 In Resolution 1244 (1999), the Council ‘[d]emand[ed] that the KLA and other armed Kosovo Albanian groups end immediately all offensive actions and comply with the requirements for demilitarization’.Footnote 157 Likewise, in Resolution 1633 (2005) on Côte d'Ivoire, the Council ‘demand[ed] that all Ivorian parties refrain from any use of force and violence’.Footnote 158 The formulation of language used by the Council leaves little room for doubt that it directs its language not only at states, but also at the armed groups themselves. Moreover, the Council appears to be acting under the assumption that it is issuing binding obligations and expects them to be complied with.Footnote 159
3.2. The legal basis for issuing binding resolutions to non-state actors
The space occupied by non-state actors within international law is a topic of much debate. Whether they might have international legal personality, and what form of it, are not entirely settled questions. There is, for example, a question over the possibility of non-state actors having obligations under international human rights law.Footnote 160 Nonetheless, one of the areas of law in which there is the strongest case for demonstrating a form of international legal personality (even if limited), is in the law of armed conflict (international humanitarian law). This body of law contains clear obligations and duties addressed to all parties to a conflict, international and non-international; since at least one of the parties in a non-international armed conflict will be a non-state actor, it is clear that international law is capable of directly addressing armed groups.Footnote 161 The notion of armed-group obligations under international humanitarian law has received specific attention, and various legal theories have been advanced over the years for the binding quality of these rules on non-state actors.Footnote 162 One of the arguments used to explain the legal binding of rebels is that they are bound as a result of being nationals of a state that is party to the instrument.Footnote 163 This line of reasoning was used to explain the basis for binding rebels with regard to Common Article 3 as well as Additional Protocol II of the Geneva Conventions. This approach has been criticized, since, in the words of Cassese, it is ‘based on a misconception of the relationship between international and domestic law’, leaving the armed group bound by the domestic law, while ‘what is at stake in the present case is not whether rebels are subjects of domestic law, but their legal standing in international law – their status vis-à-vis both the lawful Government and third States and the international community at large’.Footnote 164 This criticism has been responded to,Footnote 165 but perhaps the greater obstacle relates to the practical utility of this approach, as it requires eliciting a favourable response from rebel groups by informing them that they are bound by the obligations and laws taken on by the same government whom they are trying to overthrow.Footnote 166 Customary international law may be an additional avenue for binding non-state actors, although the use of customary international law to bind non-state actors who have no part in the formation of the law raises certain challenges.Footnote 167 It should also be noted that while the law may place obligations on individuals (e.g., prohibition of and criminal responsibility for war crimes), there is a separate need to demonstrate that it may bind the group as such.Footnote 168 In the context of UNSC ceasefire resolutions, this would present a similar challenge, as it is assumed that the language of the resolutions is directed at the parties to the conflict – the states and groups themselves – rather than individual participants.
These ongoing debates in the area of international humanitarian law provide for theories which might be applied to obligations imposed by the UNSC under the UN Charter, but their approach under the Charter would also present many of the same weaknesses and challenges. Moreover, these arguments cannot be symmetrically transposed to the sphere of UNSC resolutions, as they centre around questions of obligations created through both treaty law and customary international law, while the UNSC resolutions themselves (as opposed to the UN Charter and obligations therein) are a precise fit for the description of neither treaty obligations nor customary law.
In the earlier analysis the focus was upon the determination of the binding (or not) nature of a resolution for the states concerned. This was predicated on the assumption – well-grounded in the CharterFootnote 169 – that the UNSC has the power to obligate member states, and thus the primary question was how to determine whether it was doing so in a particular resolution.Footnote 170 That same presumption may, however, need to be questioned when faced with resolutions aimed at obligating non-state actors. In other words, before we arrive at the junction of determining whether a particular resolution creates a binding obligation, we must first be assured that the Council has the power to issue binding obligations directed at non-state actors. This brings us back to the earlier observation that in addition to the ‘non-stateness’ of the armed groups, there is also the fact that they are non-members of the UN. Assuming that armed groups can have some form of international legal personality, this question then encompasses some of the same challenges arising with respect to the creation of binding obligations for non-member states.Footnote 171 The issue at hand is whether the UN Charter empowers the UNSC to create obligations for non-members. The practice of the Council includes examples of addressing obligations towards all states, not only members.Footnote 172 The power to do so has been the subject of debate, for example, in the analysis of the ICJ in the Namibia advisory opinion.Footnote 173 While opinion on this matter is divided with regard to non-member states,Footnote 174 if accepting that the UNSC can create obligations for non-member states even absent state consent, there should be little reason not to use the same approach in order to assert the possibility of binding obligations directed at armed groups.
Under the law of treaties, when examining treaty obligations for third parties there is usually a need to establish the intention of the drafters to create such obligations, and that the third parties expressly accept the obligations and in writing.Footnote 175 The intention for the Charter, and through it the UNSC, to create obligations for non-members might be drawn from Article 2(6) of the Charter: ‘The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.’ This provision opens the door for the possibility of the UN attempting to control the behaviour of non-members, although it does not in fact speak of direct obligations upon the non-members themselves.Footnote 176 One possibility in this regard is to consider these same principles mentioned in Article 2(6) as reflecting customary international law, in which case they would already be binding upon non-member states.Footnote 177 Notwithstanding such an interpretation, it must be recalled that it relies on customary international law prohibitions on the resort to force, which are formulated in the context of inter-state force and not designed for regulating force by non-state actors, which was, at least at the time, envisaged as a matter of domestic law. If these are not pre-existing obligations, then returning to the approach mentioned earlier of searching for intent and consent, we may also find ourselves facing an obstacle of not having the element of consent by the non-state actors to be bound by such obligations. The answer to this may be found in the acceptance that, despite the oft-assumed presumption of its necessity, international law has evolved in such a way as to allow for creation of obligations even without consent. While consent traditionally plays a key role, certain approaches to the formation of customary international law, the existence of jus cogens rules, obligations for new states, as well as powers given to the UN to act against the wishes of individual states, all contribute to the argument that obligations can, in certain circumstances, arise without consent being given.Footnote 178 If this is the case with regard to states, then it should be all the more so when it comes to non-state actors who possess a more limited form of international legal personality, and whereby the concerns of infringing upon state sovereignty are absent.Footnote 179
In any case, and as is the practical outcome with regard to obligations under international humanitarian law, there seems to be an assumption by international bodies ranging from the UNSC and over to international tribunals, that armed groups are bound by these obligations.Footnote 180 The ICJ appears to take the view that UNSC resolutions can be intended to create binding obligations on armed groups.Footnote 181 Despite the lack of a unanimously convincing theory, it is clear that international bodies proceed to act on the basis of armed groups being bound by international law, and the UNSC is no exception.Footnote 182 The imposition of obligations in this context might be most plausibly explained by the implied powers doctrine.Footnote 183 In virtually all matters raised above, while legal theories exist to support such obligations, none are free of controversy. They do all share, however, the possibility of corresponding interpretations that would allow for the UNSC to issue binding ceasefire obligations directed at non-state actors. Insofar as it is necessary in order to maintain international peace and security, the power to make demands upon – and indeed obligate – non-state actors party to an armed conflict is vital for the UNSC to effectively fulfil its primary function. So long as they are not clearly ultra vires, the favoured interpretation should be that which allows the Council to advance the principles for which it was created.Footnote 184
4. Conclusion
There is clearly a considerable challenge to finding a single and agreed approach able to provide a solution for determining the legal nature of UNSC ceasefire resolutions. A final effort to overcome this obstacle might perhaps be aided via the practice of the UNSC in relation to the effect of non-compliance with a ceasefire, something which is of greatest practical concern both to international lawyers and especially to the parties themselves. As mentioned above, immediate cessation of hostilities does not appear to be a common response to a ceasefire resolution. In fact, even non-immediate responses – but within a reasonable period of time – are likely to be an exception. It is impossible to ascertain a determinative correlation between the perceived ‘strength’ of the ceasefire resolution, and the response of the parties. Although in some cases stronger language might be perceived as having brought about a reaction from the parties to the conflict, which earlier resolutions did not,Footnote 185 ceasefires have also followed resolutions that both ‘called upon’ and ‘demanded’.Footnote 186 Often, it was clearer that ceasefires did not immediately follow the resolution, regardless of the language used.Footnote 187 Faced with continued hostilities, the Council has considerable powers to impose coercive measures such as sanctions or even the use of force.Footnote 188 This raises the possibility of trying to infer some tentative conclusions on the binding nature of ceasefire resolutions by assessing the correlation between the language of the ceasefire resolutions, the reference (or not) to Chapter VII of the Charter, and the imposition of enforcement measures on either or both of the belligerent parties as a result of non-compliance. Indeed, if it is those ceasefire resolutions that appear, according to the earlier analysis, to possess a binding nature that are also those that are accompanied by enforcement measures for non-compliance, this could be seen as further support for their binding nature.Footnote 189
It is of little surprise, however, that an examination of the UNSC's use of such powers in response to non-compliance with ceasefires does not paint a picture of perfect consistency. Indeed, the response of the Council in the many conflicts referenced throughout this analysisFootnote 190 ranges from no sanctions, to different types of sanctions and embargoes, and on to the authorization of force, with an apparent difference also in the Council's actions in this regard when comparing international and non-international armed conflicts.Footnote 191 Furthermore, while in some cases it may appear that the sanctions are imposed, at least in part, as a result of non-compliance,Footnote 192 sanctions have also been imposed early on, without waiting for the results of a ceasefire demand.Footnote 193
Consequently, one should be wary of concluding that enforcement measures are necessarily imposed as a result of non-compliance with the ceasefire. Indeed, as things stand, any correlation cannot be taken as proving that the latter is a result of the former or even proving its binding nature. As a result, it is probably more correct to say that both the formulation of the ceasefire resolutions and the imposition of enforcement measures are independent results of the overall circumstances and context of the case, including the nature of the violence and the political alignment in the Council.
The practice of the Council with regard to enforcement measures linked to ceasefires does not therefore present a solution to the interpretative challenges as presented earlier. As things stand, whether employing the ‘Charter’, ‘textual’, or ‘fully contextual’ approaches, there will always be a struggle to discern a consistent pattern or unearth an interpretative method to provide clarity as to the binding nature of UNSC ceasefire resolutions. This result should not, however, render the initial question irrelevant. First, whether or not a ceasefire creates a binding obligation is a matter which may carry weight in other forums, such as the ICJ, in determinations as to whether international law has been violated. Second, and most importantly, the inconsistency in the linkage between ceasefire resolutions and enforcement measures might be seen as another reason to work towards greater clarity, rather than disregard the debate altogether. Indeed, clarity in meaning of UNSC ceasefire resolutions is important in the context of the rule of law and the maintenance of international peace and security, both generally and in specific cases.
While it is easy to be over-critical of the UNSC on its lack of clarity, given the decentralized and auto-interpretive nature of the international legal system in general, the lack of any universally agreed or understood methodology in this respect is not unique, or entirely unexpected. Indeed, considering the political nature of the UNSC and its mode of operation, some may despair of expecting clarity and consistency in its practice. Yet, if members of the UNSC desire their ceasefire resolutions to have greater impact, such clarity must be sought by all those who engage in the process and hope for an effective outcome. Although perhaps an unlikely event, such clarity could be achieved first and foremost by the Council expressly clarifying the situation, for example, in a presidential statement. Furthermore, while we can witness this ambiguity also in other areas of UNSC practice, the establishment of common understandings in the practice of the UNSC, as highlighted above, is possible.Footnote 194 The development of an operational understanding founded on an element of consistency in practice and self-clarification by the Council could perhaps serve as the most feasible solution. Indeed, the practice of employing the language of ‘demand’, for example, could be developed into such an understanding. However, given the urgency of ceasefires in nearly all of the situations in which they are adopted, as well as the effects that this would have on developing a common understanding, it is not just clear meanings which should be seen as an urgently needed development, but also clear consequences if not adhered to. In this respect, and given that the primary concern for the belligerent parties is arguably the possibility or prevention of sanctions or other coercive measures, if greater consistency can be developed in the linkage between ostensibly binding ceasefire resolutions and the imposition of enforcement measures, for example, there would not only be greater clarity on the law, but also greater prospects that warring parties would heed the call to lay down their arms. Until that time, and as highlighted in the case of Syria, any sort of peace will be more a result of the will of the parties than of the will of the Council.
