ANALYSIS: How UN Resolutions Matter

By | 2023

NEW YORK, February 10 (C-Fam) It is often said that UN resolutions are not binding on sovereign states and therefore they are unimportant. U.S. diplomats at the United Nations know this not to be true.

U.S. diplomats deliver a standard reservation upon the adoption of any UN resolution they do not agree with, saying that the resolution “does not alter the current state of conventional or customary international law.” They also repeat this same reservation every year as a blanket reservation on all UN resolutions of the General Assembly and the Economic and Social Council, just for good measure.

The implication of the U.S. reservation is that UN resolutions can in fact become binding over time under what is called “customary international law.” A high level U.S. diplomat admitted as much to activists in the gallery of the General Assembly last year.

According to this legal theory, if almost all countries act consistently under the belief that they have an international obligation to act, then a binding international norm can be discerned under customary international law. Customary international law is just as binding as international obligations contained in treaties.

According to the International Law Commission, the conduct of states in connection with any UN process can be evidence of new binding international obligations.

The Commission broadly endorsed the view that any “acts by States related to the negotiation, adoption and implementation of resolutions, decisions and other acts adopted within international organizations or at intergovernmental conferences, whatever their designation and whether or not they are legally binding.”

Moreover, the implementation of UN resolutions by UN agencies also has a role in defining the obligations under customary international law.

Progressive Western countries act in a way consistent with this theory when they want to promote controversial social policies, including on issues like abortion and homosexual/trans issues.

They insist that once certain terms, such as “sexual and reproductive health” or “intersecting forms of discrimination,” are adopted in a UN resolution, UN member states can never object to that language again. They do this knowing full well that the continued adoption of those terms, and the implementation of those terms by UN agencies as including abortion and homosexual/trans rights, can over time develop into full-fledged binding obligations under customary international law.

At the same time, many Western diplomats falsely perpetuate the misconception that UN resolutions are not binding in the backroom deals to get UN resolutions adopted. This has allowed many controversial social policies in UN resolutions that would be politically unacceptable or even illegal in most countries in the world.

Fortunately, there is evidence that more and more traditional countries are becoming wise to this and are fighting to keep controversial language from coming into UN resolutions and objecting to its adoption. So much so, that the UN Secretary-General, Antonio Guterres, often complains of the “pushback” on abortion and homosexual/trans issues from traditional countries at the UN.

The only way for a country to shield itself from an emerging obligation under customary international law is to object to it repeatedly and consistently, under what is called the “persistent objector” rule. Failure to react against bad language in UN resolutions at any point will be considered as consent to the development of new norms under customary international law.

The General Assembly, the Economic and Social Council, and myriad other inter-governmental UN bodies adopt over 400 resolutions every year. Even if they are not binding on states, they are binding on UN agencies and entities and have very real programmatic and legal implications, most notably, they can contribute to the development of customary international law. Thinking about UN resolutions in this way should make governments more concerned about making UN resolutions reflect the political realities in their countries and be more vocal about what they believe are their obligations.

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