THE UN Security Council Resolution 2803 passed on Nov 17 on Gaza has some noticeable features from the standpoint of international law. Let us take up at least a few.
Firstly, it does not mention the UN Charter’s provision under which it is adopted, and this is a deviation from the practice in vogue in the UNSC wherein resolutions mention in their respective preambles the legal provision under which they are enabled. However, when one examines the substance of Resolution 2803, it seems to be in the nature of conferring a mandate on separately negotiated “regional and collective arrangements” by member states of the Middle East, Turkiye, Pakistan, and of course, the US — the lead driver in initiating and pushing through this particular ‘regional arrangement’. All this is actually closer to the mandate under Chapter VIII of the Charter — to be more specific, under Article 52 of the said chapter.
So what difference does this make? After all, President Donald Trump and the US administration have received the much-needed mandate from the UN. There was no veto by China or Russia. All OIC states, including Pakistan, have agreed, and those in the UNSC have voted favourably. Clearly, the first and foremost motivation of all Muslim states — and rightly so — was to secure legally what was possible and achievable politically a halt to any further genocide plans and killing of Palestinians.
However, if the resolution is to be taken as being passed under Chapter VIII titled ‘Regional Arrangements’, then it is submitted that the regional arrangements of neighbouring countries can now have a life of their own. Let’s explain this. A regional arrangement of the sort being authorised by the present resolution will be constrained to seek authorisation from the UNSC itself for any enforcement action (read: military action) due to the requirements of Article 53 of the UN Charter. However, what if due to any reason, such as Israeli action or Hamas’s defiance, or for that matter if President Trump is no longer in office, the process at the UNSC is stalled? That’s when the independent mandate of any existing regional arrangement is resurrected as envisioned under Article 52 of the Charter.
It is striking that Resolution 2803 in its annexed plan assures that ‘Israel will not occupy or annex Gaza’.
It is striking that Resolution 2803 in its annexed plan assures in paragraph 16 that “Israel will not occupy or annex Gaza”. This is an important statement from the sponsors of regional arrangements and is now reflected as a collective position with the consent of Israel. This adds legal clarity and reinforces the most important principle of modern statecraft that the occupation of a territory under international law cannot legitimise title. The entire regional arrangement or a series of them, including measures to create a board of peace and international stabilisation force (ISF), will eventually lead to the gradual withdrawal of the Israeli Defence Forces from Gaza territory.
One may ask if the resolution contains a roadmap leading to a two-state solution. It does, but not so explicitly as one would want. That process is tied to the reform programme of the Palestinian Authority and the advancement of Gaza’s redevelopment plan. It is then that the issue of “Palestinian self-determination and statehood” will be taken up.
Though the regional arrangement under Resolution 2803 is a sort of a detour from the chain of dozens of resolutions on the two-state solution by the UNSC, 2803 does not defy the resolutions and the plans contained in them per se, and instead, notes their existence in the preamble. In other words, this resolution sets up a regional arrangement, sponsored and led by the US, as a parallel regime, arguably also calling for a solution under Chapter VI of the Charter relating to the ‘Pacific Settlement of Disputes’. But it cannot be interpreted in any way as to render ineffective the previous proposals for two-state solutions already adopted by UNSC resolutions, including 242 and 1397 among several others.
The setting up of the ISF mandate under Resolution 2803 is also unique because it will be installed with the consent of both Israel and Egypt. It is initially for two years, but the period is extendable. It is to “use all necessary measures to carry out its mandate consistent with international law including international humanitarian law [emphasis added]”. As things move forward, one foresees a tense moment amongst ISF commanders debating the limits or extent of the mandate, particularly if there are incidents such as defiance by Hamas or Israeli bombing. It must be known clearly that when the ISF is in place, Israel’s ‘right’ to use force in an area of ISF mandate is forfeited. That will actually increase manifold the responsibility of the ISF to maintain security and peace in the region.
The plan annexed to Resolution 2803 makes a very interesting mention of what is referred to as “interfaith dialogue” to “try and change mindsets and narratives of Palestinians and Israelis”. As we know, the Palestinian narrative is primarily drawn from the modern international law principle of self-determination and the right to resist occupation as recognised by the UN itself all along. On the other hand, the Israeli narrative is based, inter alia, on an ancient biblical covenant of the promised land as a justification for a ‘Greater Israel’.
It will be interesting to see how the US, through interfaith dialogue, is able to make Israel understand that notwithstanding which religion dominated which area in the past or which nation was allowed permission to enter or use land resources, it is now the UN Charter that can override religious or cultural narratives as the prevailing law today to determine mutual relations, the legitimate means of adding to existing territories and to ensure respect for state boundaries.
The writer is a former caretaker federal law minister.
Published in Dawn, November 21st, 2025
