How the world can resist the UN Security Council’s rogue colonial mandate in Gaza

In a now infamous moment in television history, former US President Richard Nixon, three years after leaving office in scandal, was asked by interviewer David Frost if the US President could commit illegal acts. Nixon replied: “If the President does it, that means that it is not illegal.” 

With those twelve words, Nixon dismissed the core idea of republican government and the very essence of the rule of law. For Nixon (and far too many today), some people and some institutions are simply above the law. And not only are they not bound by the law that binds the rest of us, but we must follow their orders. Afterall, this is the divine right of kings. 

Almost a half century later, Nixonian ideology is alive and well. 

In the wake of the Security Council adoption of resolution 2803 last month (a resolution that shocked legal analysts and human rights defenders around the globe for its blatantly colonial content, and about which I have written previously) even critics of the resolution have thrown up their hands to declare “oh well, the Security Council adopted it, so now its law.” In other words, to paraphrase Nixon, “if the Security Council does it, that means it is not illegal.” 

Nonsense. 

While the Security Council (UNSC) is an immensely powerful institution, is subject to few checks and balances, and does not answer to judicial review, it is not above the law and has no power to declare the unlawful to be lawful. 

In fact, the UNSC derives all its powers from the UN Charter. It has no other powers. And the UN Charter, as a treaty, is part of international law- it is not above or outside international law. As such, the UNSC must operate within the boundaries of the Charter, and within the boundaries of the broader body of international law. Any actions that it takes outside those boundaries are necessarily unlawful and ultra vires. 

Acts of the Council that are unlawful and ultra vires cannot be said to have the force of law. And, therefore, there can be no legal obligation to cooperate or comply with such acts. Indeed, where such acts are manifestly unlawful, there may be a duty to oppose them. 

Many of the elements of UNSC resolution 2803 are indeed manifestly unlawful, because (1) they conflict with other key provisions of the Charter itself, (2) they violate jus cogens norms of international law with which all states are familiar, and (3) they violate rights and (erga omnes obligations) recently affirmed with great clarity by the International Court of Justice with regard to the very same situation (i.e., the occupied Palestinian territory). These are not breaches in the grey areas. They are obvious, bright-line transgressions of international law. And that clarity brings a special obligation for states (and others), as a minimum, to avoid participation in such breaches. 

Charter limitations on UNSC action

There are at least three constraints on the power of the UNSC. 

The first is the veto, with which permanent members of the Council can control the worst impulse and excesses of fellow P-5 members. In this case, however, three of the five permanent members (US, UK, France) have been directly complicit in the Israeli regime’s colonization, apartheid, occupation, and genocide perpetrated against the Palestinian people. And, shockingly, the other two (Russia and China) simply stepped aside and allowed the US scheme to pass without veto. 

The second set of constraints on the Security Council are the terms of the UN Charter itself, from which the Council derives its mandate. Article 24(2) requires the Council, in discharging its duties, to “act in accordance with the Purposes and Principles of the United Nations.” 

Those purposes and principles are explicitly enumerated in Article 1 of the Charter and include (inter alia) the maintenance of international peace and security (the principal remit of the Security Council) “in conformity with the principles of justice and international law…” Clearly, Resolution 2803 could not be said to be in conformity with justice and international law, particular in the wake of the recent advisory opinion of the International Court of Justice (the highest court of the UN system) specifically elaborating on the requirements of justice and law in the case of Palestine- none of which are respected in the resolution. 

They also include “respect for the principle of equal rights and self-determination of peoples” and “promoting and encouraging respect for human rights.” As I have pointed out previously, Resolution 2803 directly breaches these principles. This despite the fact that the right of the Palestinian people to self-determination has been repeatedly affirmed by the United Nations and by the International Court of Justice. 

And a final Charter limitation, contained in Article 2, imposes an obligation on the UN, its constituent bodies, and its member states , to “fulfill in good faith the obligations assumed by them in accordance with the present Charter.” The explicit breaches contained in the text of Resolution 2803 of these mandatory Charter principles, principles binding on the Security Council and its members, is further evidence of the illegitimate standing of that resolution. 

Jus cogens limitations on Council action

Another key constraint on UNSC action is the Council’s obligation to conform its action to so-called jus cogens and erga omnes rules of international laws. These are the highest (peremptory) rules of international law, universally binding, allowing no exceptions, and imposing obligations on all states and their intergovernmental organizations. 

States (and organizations of States) can never derogate from jus cogens norms of international law (including self-determination, the prohibition of colonialism, the acquisition of territory by force, restrictions on the use of force, certain human rights protections, and others). The purported overriding of several of these rules by the terms of Resolution 2803 is therefore both unlawful and ultra vires. 

Critics of this position will point to Article 25 of the UN Charter, holding that “[m]embers of the United Nations agree to accept and carry out the decisions of the Security Council…” as a treaty obligation binding on all state members. However, what is often overlooked is that Article 25 is qualified by the language “in accordance with the present Charter.” Decisions taken that are not in accordance with other provisions of the Charter, by definition, are ultra vires, and would not meet the test of Article 25. And any legitimate obligations imposed by the Charter could only be those consistent with international law. 

Others will emphasize the Supremacy Clause of the UN Charter, contained in Article 103. That provision holds that “in the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” But Article 103 applies to conflicting treaties. It does not override the jus cogens and erga omnes obligations of states contained in customary international law, many of which are transgressed by Resolution 2803. 

Resisting unjust resolutions 

The conclusion is clear. Resolution 2803 is illegitimate, must be opposed, should enjoy no cooperation from UN member states in its attempted implementation, and should be declared null and void. But those objectives face significant institutional and political hurdles. 

A fundamental flaw in the UN Charter is that it does not provide for formal judicial review of the UNSC. Indeed, a proposal for judicial review of the Council by the ICJ was explicitly rejected during UN Charter negotiations. But this does not mean that the ICJ is powerless in the wake of lawless decisions by a rogue Security Council. 

The ICJ can consider actions taken by the Council both under its contentious jurisdiction and under its power to issue advisory opinions. And it can issue authoritative opinions and decisions on the duties of states in conformity with international law in the wake of such actions. 

Thus, while it cannot overturn a decision of the Council, its findings can help to both discredit (and therefore erode the political authority of) such actions, and to mitigate the harms of such actions by advising states on what international law allows and prohibits as they consider their conduct following such action by the UNSC. It could inform subsequent action in the UNSC by members who wish to comply with their obligations under international law and rectify their earlier legally problematic positions in the Council. 

Other (non-UNSC member) states may use the findings of the Court to justify non-compliance with violative elements of UNSC decisions. And such action by the ICJ could help to deter future rogue action by the Council, as UNSC members seek to avoid legal controversy around Council decisions. 

So too could domestic and regional courts review Council resolutions or their implementation to determine the lawful scope of action by an individual state or regional organization.

Beyond judicial avenues, the UN General Assembly could also act to mitigate the potential harms of UNSC resolutions like 2803. Convening under the Uniting for Peace mechanism, the UNGA, with a two-thirds majority, could adopt a comprehensive resolution to reaffirm the Palestinian right to self-determination and the illegality of any occupation or colonization of their land, adopt measures to hold the Israeli regime accountable, deploy protection for the Palestinian people, and mitigate the worst elements of Resolution 2803. It should do so without delay. 

And the people or the world must mobilize to press individual governments to pledge to reject the lawless provisions of 2803 and to fully implement the findings of the ICJ in Palestine. 

Lex iniusta non est lex. (An unjust law is not law)

The Universal Declaration of Human Rights opens with an axiomatic recognition that “if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

One would have expected the representatives of the fifteen members of the Security Council, purporting to act under UN auspices, to have read the Declaration prior to adopting the shameful resolution of 17 November 2025. The stain of their lawless act will certainly outlast the tenure of every ambassador on the Council. And the damage done to the legitimacy of the Council may ultimately prove fatal. 

But the people are not without recourse in the wake of this massive abuse of power. There are avenues for action- in the courts, in the UN, and in the streets. Popular action can block the implementation of the resolution, hold foreign ministries and ambassadors accountable, reign in the rogue Council, impose costs on US imperial overreach, isolate the Israeli regime, and help to bring about Palestinian liberation. Let the message go out far and wide. Lex iniusta non est lex. This shameful resolution will not stand.