Introduction
On December 23, 2016, the UN Security Council adopted Resolution 2334 by a vote of 14-0, with the United States abstaining. Originally drafted by Egypt, the resolution came to a vote following a joint motion by Malaysia, New Zealand, Senegal, and Venezuela. Resolution 2334 addresses both activities “altering the demographic composition, character and status of the Palestinian Territory” and “acts of violence against civilians, including acts of terror.”
Contents and Context
In their final form, some of the operative provisions of Resolution 2334 employ unequivocal language. The resolution “[r]eaffirms” that Israeli settlement activity since the Six-Day War of 1967 “has no legal validity and constitutes a flagrant violation under international law.” Similarly, it “[r]eiterates its demand that Israel immediately and completely cease all settlement activities,” and “[u]nderlines that it will not recognize any changes to the 4 June 1967 lines” other than those reached through negotiation.
Resolution 2334 draws on four principal sources of law. First, it reaffirms “the inadmissibility of the acquisition of territory by force” according to the UN Charter.Footnote 1 Second, it reaffirms Israel's responsibilities under the Fourth Geneva Convention. Third, it recalls the 2004 Wall advisory opinion of the International Court of Justice (ICJ).Footnote 2 Fourth, it reaffirms prior relevant Security Council resolutions from 1967 through 2008.
Such resolutions include Resolution 1515 (2003), which endorsed obligations placed on Israel and the Palestinian Authority under the 2003 Quartet Roadmap.Footnote 3 These also include the most recent resolutions focused on Israeli settlements—Resolutions 446 (1979) and 465 (1980)—which articulated the legal invalidity of settlement activities as reiterated in Resolution 2334. In terms of aim, this affirmation is consistent with the Committee on the Elimination of Racial Discrimination's 2012 call for Israel's “eradication of all policies and practices of racial segregation and apartheid . . . which severely and disproportionately affect the Palestinian population.”Footnote 4
Indeed, much of the phrasing utilized in Resolution 2334 borrows from prior resolutions, including the importance of “secure and recognized borders” and the status of settlements as a “major obstacle” to realizing a two-state solution. Yet other terminology in Resolution 2334 appears to lack clear precedent in adopted Security Council resolutions, such as its reference to activities that are “entrenching a one-State reality” and its endorsement of “the principle of land for peace.”Footnote 5 Moreover, the omission of terrorism and other forms of violence against civilians in the Security Council's prior attempt to address Israeli settlement activities—Draft Resolution S/2011/24 (2011), vetoed by the United States—suggests that the adoption of Resolution 2334 was conditioned on express reference to this issue. Resolution 2334 also appears to echo the Security Council's universal call for the prevention and suppression of terrorism in Resolution 1373 (2001).
In this context, it is worth comparing Resolution 2334 and the oldest resolution it expressly reaffirms. Adopted in the wake of the Six-Day War, Resolution 242 (1967) affirmed that peace in the Middle East should include respect for the right of every regional state “to live in peace within secure and recognized boundaries.” While Resolution 2334 states that the Security Council reaffirms Resolution 242 in this regard, it takes more specific form by explicitly prescribing boundaries (i.e., through reference to “4 June 1967 lines”). This reference could be seen to transcend the terms of the parties’ negotiated agreements, such as the 1993 Oslo Accords’ reference to “a permanent [Palestinian] settlement based on Security Council Resolutions 242 (1967) and 338 (1973).”Footnote 6
Nevertheless, this would appear to be a semantic development, rather than a substantive one. While Resolution 242's call for Israeli withdrawal “from territories occupied” was arguably ambiguous as to the scope of withdrawal, the French text is perhaps more illuminating. Its reference to withdrawal “des territoires occupés” (rather than from “de territoires occupés”) more clearly indicates that the resolution endorsed withdrawal from all territories occupied during the Six-Day War.Footnote 7 Regardless, Resolution 2334's call for all parties to continue negotiations on “all final status issues”—which under the Oslo Accords may encompass “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest”Footnote 8 —suggests that the Security Council does not purport to prejudge the legal status of any disputed land.
Legal Character
Related to the question of whether Resolution 2334's endorsement of the pre-1967 “Green Line” is compatible with the terms of the resolutions it expressly affirms is the fact that it was adopted pursuant to Chapter VI of the UN Charter. Unlike Chapter VII, Chapter VI envisions the Security Council as a dispute settlement facilitator. Chapter VI is somewhat unclear in circumscribing the scope of the Security Council's determinative powers in instances where—as with Resolution 2334—the Security Council is seized of the matter without the disputing parties’ agreement.Footnote 9
Yet the scope of UN members’ obligations to comply with Security Council decisions under the Charter is not strictly limited to resolutions adopted pursuant to Chapter VII powers.Footnote 10 While the ICJ confirmed in its 2010 Kosovo advisory opinion that a resolution expressly adopted pursuant to Chapter VII “clearly imposes international legal obligations,”Footnote 11 it had also found in its 1971 Namibia advisory opinion that resolutions adopted pursuant to Chapter VI must be analyzed “having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.”Footnote 12 In particular, the Court found in that earlier matter that operative provisions of Resolution 276 (1970) were binding on UN members irrespective of the use of arguably nonimperative phrases such as “[c]alls upon all States.”Footnote 13
While the Security Council employs similar language in parts of Resolution 2334, it also “[r]eiterates its demand that Israel immediately and completely cease all settlement activities.” It had previously referred to “demands” in relation to compliance with legal obligations, such as in Resolutions 687 (1991) (concerning Iraq's repayment of its foreign debt) and 1696 (2006) (concerning Iran's suspension of nuclear enrichment activities). The Security Council's adoption of this robust language regarding measures that it had only “call[ed] upon” Israel to implement in Resolutions 446 and 465 may be viewed in light of the ICJ's intervening opinion in Wall, in which the Court found that Israeli settlement activities had contravened international law.
Consequences for International Relations
Resolution 2334 utilizes certain terminologies that bear mention as regards the recognition of sovereignty. It avers the continued existence of “Palestinian Authority Security Forces,” irrespective of the General Assembly's 2012 recognition of the state of Palestine.Footnote 14 More narrowly, it recognizes the occupation of a defined “Palestinian Territory,” whereas previous adopted Security Council resolutions referred to a collection of Palestinian “territories.” Its reiteration of a vision of peace “within secure and recognized borders” may be seen to recall the role of this principle within General Assembly Resolution 2625 (XXV).Footnote 15
Resolution 2334 also “[c]alls upon all States … to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”Footnote 16 This recalls the ICJ's finding in Wall that “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.”Footnote 17 The resolution does not clarify whether its call implies an existing customary obligation arising from the serious breach of a peremptory norm, as codified in the Articles on State Responsibility.Footnote 18 Viewing Resolution 2334 through the lens of self-determination would seem to compel this conclusion. Regardless, the resolution could be used to justify third-state trade policies that distinguish imported Israeli products from those originating in occupied territory.
Conclusion
While Resolution 2334 is notable for its forceful language and concern for both settlement activities and terrorist acts, its legal utility remains to be seen. Following Palestinian accession to the Rome Statute, the International Criminal Court (ICC) in 2015 instituted a preliminary examination of alleged crimes committed in relation to “the situation in Palestine.”Footnote 19 To the extent that the ICC takes into account Resolution 2334 (or the related findings of a withdrawn 2017 UN report),Footnote 20 the resolution's condemnation of the “transfer of Israeli settlers” and evocation of the Fourth Geneva Convention may raise questions as to the potential criminal implications of settlement activities in the West Bank and East Jerusalem.Footnote 21
* This text was reproduced and reformatted from the text available at the United Nations website (visited May 1, 2017), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2334(2016).
Resolution 2334 (2016)
Adopted by the Security Council at its 7853rd meeting, on 23 December 2016
The Security Council,
Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),
Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,
Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,
Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,
Recalling also the obligation under the Quartet roadmap for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons,
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction,
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,
Stressing that the status quo is not sustainable and that significant steps, consistent with the transition contemplated by prior agreements, are urgently needed in order to (i) stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality, and (ii) to create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground,
1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;
6. Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and calls for compliance with obligations under international law for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism;
7. Calls upon both parties to act on the basis of international law, including international humanitarian law, and their previous agreements and obligations, to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace;
8. Calls upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process and within the time frame specified by the Quartet in its statement of 21 September 2010;
9. Urges in this regard the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation;
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement;
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;
12. Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution;
13. Decides to remain seized of the matter.
