United Nations Security Council Resolution 338 - Binding or Non-binding Issue

Binding or Non-binding Issue

The alleged importance of resolution 338 in the Arab-Israeli conflict supposedly stems from the word "decides" in clause 3 which is held to make resolution 242 binding. However the decision in clause 3 does not relate to resolution 242, but rather to the need to begin negotiations on a just and durable peace in the Middle East that led to the Geneva Conference which Syria did not attend.

The argument continues; Article 25 of the United Nations Charter says that UN members "agree to accept and carry out the decisions of the Security Council". It is generally accepted that Security Council resolutions adopted in the exercise of its primary responsibility for the maintenance of international peace in accordance with the UN Charter are binding upon the member states.

Scholars applying this doctrine on the resolution assert that the use of the word "decide" makes it a "decision" of the Council, thus invoking the binding nature of article 25. The legal force added to Resolution 242 by this resolution is the reason for the otherwise puzzling fact that SC 242 and the otherwise seemingly superfluous and superannuated Resolution 338 are always referred to together in legal documents relating to the conflict.

The more obvious need for the use of Resolution 338 is that it requires all parties to cease fire and states when that should occur, without which Resolution 242 can't be accomplished.

Some scholars have advanced the position that the resolution was passed as a non-binding Chapter VI recommendation. Other commentators assert that it probably was passed as a binding Chapter VII resolution. The resolution contains reference to neither Chapter VI nor Chapter VII.