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Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation of the Withdrawal Phrase with Reference to the Conflict Between Israel and the Palestinians

Published online by Cambridge University Press:  17 January 2008

John McHugo
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Extract

In the Six Day War in June 1967, East Jerusalem, the West Bank and the Gaza Strip came under Israeli military occupation, as well as the Sinai Peninsula and the Golan Heights. On 22 November that year, the UN Security Council unanimously passed Resolution 242, which it was hoped would provide a route to a permanent peace. It seems clear that Resolution 242 now has binding force1 and that it is accepted by all parties today that Resolution 242 sets out the principles which must be applied in order to reach a settlement. The Resolution is recited in the preambles to the Oslo Accords.2 This means that, in addition, it is binding on Israel and the PLO by agreement.3

Type
Articles
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 851 - 881
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 Security Council Resolution 338 ‘calls upon’ the parties to implement Resolution 242 using language generally considered to have a mandatory character. See also VIII below.

2 See in particular letter from Chairman Arafat to Prime Minister Rabin, 9 Sept 1993; Declaration of Principles on Interim Self-Government Agreements, 9 Sept 1993, Art 1; Preamble to Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 Sept 1995.

3 For a succinct discussion of this question, see Watson, , ‘The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements’ (Oxford: Oxford University Press, 2000), at 31–4.CrossRefGoogle Scholar

4 See the website of the Israeli Ministry of Foreign Affairs, where material is deliberately posted with the intention of convincing the reader that Resolution 242 was never intended to lead to a return of ‘all’ the territories: <http://www.israel.mfa.gov>.

5 For just two examples, see letter from Oliver Kamm to the London The Times, 28 Oct 2000 and letter from Milton Polton to the International Herald Tribune of 7 Dec 2000.

6 See Rostow's address ‘The Intent of UNSC Resolution 242: The View of Non-regional actors’ in ‘UN Security Council Resolution 242 The Building B lock of Peacemaking’, at 4–20 and in particular at p17: ‘Since UNSC 242 calls on Israel to withdraw only from territories occupied in the course of the Six Day War—that is, not from all the territories or even from the territories it occupied in the course of the war—and since most of the boundaries in question are no more than armistice lines specifically designated as not being political boundaries, it is hard to believe that professional diplomats can seriously claim in 1992 that UNSC 242 requires Israel to return to the 1967 Armistice Lines. This Arab position is particularly bizarre applied to the West Bank and the Gaza Strip where, under the Mandate and Article 80 of the UN Charter, the Jewish people still have an incontestably valid claim to make close settlements on the land.’

7 Mr Michael Stewart, Secretary of State for Foreign and Commonwealth Affairs, in reply to a question in Parliament, 9 Dec, 1969: ‘As I have explained before, there is a reference, in the vital United Nations Security Council Resolution, both to withdrawal from territories and to secure and recognised boundaries. As I have told the House previously, we believe that these two things should be read concurrently and that the omission of the word ‘all’ before the word ‘territories’ is deliberate.’ Hansard, Fifth Series, Vol 793, p 261.

8 See Gold, Dore, ‘From “Occupied Territories” to “Disputed Territories”’, in Jerusalem Viewpoints, no 470, 3 Shvat 5762/16 01 2002Google Scholar.

9 S/8247.

10 Gerson, , Israel, the West Bank and International Law (London, Frank Cass, 1978), 76.Google Scholar

11 Ibid, 104 n 179.

12 United Nations Security Council Official Record (‘UNSCOR’), 1382nd Meeting, paras 93–4.

13 Arts 31 and 32 have been used by previous interpreters of the resolution, such as Professor Quincy Wright in ‘The Middle East problem’, 64 American Journal of International Law (1970), at 270 et seq. The text of Arts 31 and 32 is as follows: Article 31:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relationship between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

14 See Schwebel, , ‘May preparatory work be used to correct rather than to “confirm” the meaning of a treaty provision?’, in Theory of International Law on the threshold of the 21st Century, Essays in Honour of Krzustof Skubiszewski, ed. Makarczyk, J. (Kluwer Law, The Hague, 1996), at 546.Google Scholar

15 It will be noted below that we have inspected the file of the British Mission to the UN now catalogued as FO 961/24 and made available under the Thirty Year Rule. This contains much valuable information about the evolution of Lord Caradon's draft. However, the file (and the series in which it is located) stop tantalisingly on the eve of the introduction of the Resolution into the Council. We do not claim that our search into the available British Archives is comprehensive, or that an entirely comprehensive search is possible Much relevant material will have inevitiably been lost.

16 Wood, Michael C, ‘The Interpretation of Security Council Resolution 242’, Max Planck Yearbook of United Nations Law [1998],.89.Google Scholar

17 See Jennings, and Watts, , ‘Oppenheim's International Law’, 9th edn (Harlow, Longman, 1992), 699Google Scholar where Brownlie's International Law and the Use of Force by States is quoted with approval on this point. The prohibition extends to any unilateral attempt to acquire sovereignty over territory occupied in a war of self-defence. On this point, see Oppenheim, op cit, at 703–5 and nn 7 and 8. See also Korman, , The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford: Oxford University Press, 1996), 203–14.Google Scholar

18 A glance at the text of the Resolution as a whole will show that Watson's point about ‘should’ is a non-point. ‘Should’ governs the various components of the Secure and Recognised Boundaries Phrase in exactly the same way. Would Watson suggest that ‘termination of all states of belligerency’ ‘should’ be (but need not necessarily be) an ingredient of a final settlement?

19 Watson, G, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreement’ (Oxford: Oxford University Press, 2000), 31.CrossRefGoogle Scholar

20 Peace Treaty between Israel and Egypt, 26 Mar 1979; Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, 26 Oct 1994.

21 Gerson, op cit, 76.

22 Korman, op cit, 211–12.

23 Ibid, 212.

24 See Elaraby, Nabil in UN Security Council Resolution 242: The Building Block of Peacemaking (Washington DC: Washington Institute, 1993), at 42Google Scholar: ‘With respect to UNSC's reference to “secure and recognised boundaries”, I would like to stress that the withdrawal clause is clear. It does not mean “new” secure and recognised borders, but secure and recognised “existing” borders. The second part in the resolution refers to “termination of the state of belligerency”, and that is addressed to every single party—both to Israel and the Arab countries. They can all live within secure and recognised boundaries. It has nothing to do with withdrawal; if it did, the resolution would have said so.’ He also added, referring to the Withdrawal Phrase: ‘The myth created on the flimsy and fallacious argument of the so-called definite article should really be dismissed by now.’ Ibid., p.44

25 Hansard, Fifth Series, vol. 793, 261.

26 UNSCOR, 1382nd Meeting, paras 58–61

27 UNSCOR, 1382nd Meeting, para 64.

28 UNSCOR, 1381st Meeting, para 20, quoting from the Official Records of the General Assembly, Plenary Meetings, 1567th meeting, para 91.

29 UNSCOR, 1381st Meeting, para 21.

30 Ibid 1381st meeting, paras 31–7. Cf. 1379th Meeting, paras 11 and 12.

31 UNSCOR, 1382nd Meeting, para 50, quoting from the Official Records of the General Assembly, 1529th Meeting, para 15.

32 UNSCOR, 1382nd meeting, paras 52–3.

33 Ibid, para 56.

34 Ibid, para 189.

35 Ibid, para 76.

36 Ibid, paras 139–41.

37 Ibid, para 33.

38 Ibid, para 37.

39 Ibid, paras 110–11.

40 Shabtai Rosenne, in an article which is trumpeted from the Israeli Government's website, draws attention to the French delegate's view that the meanings of the French and English texts were identical on the question of withdrawal. What Rosenne chooses to ignore is the possibility that the phrase ‘withdrawal from territories occupied in the recent conflict’ might be interpreted in the manner set out by us in this Article. He assumes that the words indicate a requirement for a partial withdrawal, but makes no attempt to justify this view. The contradiction inherent in his position is plain from the unsatisfactory gymnastics into which he is forced in a vain attempt to give coherence to it. He is led to speculate as to why there is no word equivalent to ‘some’ in the French text, and comes within a whisker of admitting that both the English and the French texts are incompatible with an interpretation that only a partial withdrawal is intended: ‘[I]t is said that the indefinite quality of the English and Russian versions [of the Withdrawal Phrase]—which was a matter of political determinism—ought to be met by the introduction of a word such as ‘certains’ into the French version (and its equivalent in the Spanish). But in such a context, ‘certains’ would need some equivalent in English, for instance some, a word which does not appear in the English text and which, moreover, it is unlikely that a draftsman with any command of the English language from either side of the Atlantic would have willingly or wittingly inserted.’ See Rosenne, Shabtai, ‘On Multi-lingual Interpretation’, Israel Law Review, vol 6, 1971 at p 361Google Scholar. There are, of course, forms of wording which would have achieved his objective: ‘partial withdrawal’, ‘selected withdrawals’ or ‘withdrawals appropriate to establish secure and recognised boundaries’ would have been possibilities. But the whole point is that they would never have been accepted by the Security Council.

41 UNSCOR, 1382nd Meeting, paras 118–19. Translated from the Russian.

42 Ibid, para 128.

43 UNSCROR, 1382nd Meeting, para 127.

44 Israel Law Review, vol 6, 1971, paras 161–4. Translated from the Spanish.

45 It might be noted that Mr Borch, the Danish delegate stated that the Resolution ‘does take into account all the essential interests of the parties involved’ (UNSCOR, 1382nd Meeting, para 178). Mr Ignatieff, the Canadian delegate, stated that the ‘resolution just adopted does, in our view, meet the essential positions of both sides, taking into account the various ideas which emerged from consultation among non-permanent members of the Council, as well as with the States in the area.’ Ibid, para 132. These statements are surely incompatible with a belief that the Resolution entitles Israel to retain parts of the territories unilaterally. The Japanese delegation prepared its own draft, which never reached the floor of the Council, but which used the words ‘withdrawal of Israel's armed force from the territories occupied as a result of the recent conflict and determination of the permanent national borders between Israel and the state concerned’. This is similarly incompatible with such a belief.

46 See Goldberg, , ‘United Nations Security Council Resolution 242 and the prospects for peace in the Middle East’, Columbia Journal of Transnational Law, Vol. 12, No. 2, 1973, p 191.Google Scholar

47 1382nd Meeting, para. 186. We consider below the relevant passage in the draft American resolution and note that this did not propose a licence for Israel to acquire territory taken during the fighting in 1967. Eban writes ‘The United States … had made clear through President Johnson that changes in the previous lines should not “reflect the weight of military conquests.” (It was only later under the Nixon administration that the U.S. became accustomed to recommending the formula “minor changes”)’. (Eban, Personal Witness, p 458.) As is the case with the statements of the Canadian, Danish, and Japanese, the absence of specific comment by Goldberg on the text of the Withdrawal Phrase cannot be taken as a tacit disagreement with the broadly congruent views of the delegates who interpreted the wording from the floor of the Council.

48 Ibid, para 112.

49 Ibid, para 173

50 S/8235.

51 S/8227.

52 S/8253.

53 Lall, , The UN and the Middle East Crisis, 1967 (New York and London: Columbia University Press), 1968), 260.Google Scholar

54 Ibid, 257.

55 See Bailey, , The Making of Resolution 242 (Dordrecht/Boston Lancaster: Martinus Nijhoff, 1985), 153–4.Google Scholar

56 Thus, the Latin American text contained the wording: ‘The General Assembly … declares that the validity of the occupation or acquisition of territories brought about by such means should not be recognised’, The Afro-Asian text contained: ‘Occupation or acquisition of territory by military conquest is inadmissible under the Charter of the United Nations.’ The Soviet text contained: ‘the principle that the seizure of territories as a result of war is inadmissible.’

57 Telegram No 3078, UK Mission in New York to Foreign Office, 7 Nov 1967. FO 961/24.

58 S/8229.

59 This was also the view of Goldberg. When he elaborated the text to the Security Council, he stated that withdrawal was ‘on a par with the other essentials listed in the same paragraph.’ See UNSCOR, 1377th Meeting, para 63.

60 See the judgment of the ICJ in the ‘Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)’, Jurisdiction and Admissibility Phase, ICJ Reports (1995) at para 41 where the Court held that the change of wording between an earlier draft for some minutes (‘the Doha Minutes’) and the final agreed and signed text did not necessarily imply a change in the meaning of the wording: ‘The Court is unable to see why the abandonment of a form of wording corresponding to the interpretation given by Qatar to the Doha Minutes should imply that they must be interpreted in accordance with Bahrain's thesis.’

61 Telegram No 3078, UK Mission in New York to Foreign Office, 7 November 1967. FO 961/24.

62 He added, ‘Israel will not reconstruct that map at any time or in any circumstances.’ See ‘Comment by Foreign Minister of Israel’ and Telegram 3164, UK Mission in New York to Foreign Office, 12 Nov 1967. FO 961/24.

63 See ‘Comments on the U.K. draft resolution made by US, Canadian, and Danish representatives on 14 November’, FO 961/24.

64 Eban took a major part in the discussions of the evolving text of Resolution 242 and contributed substantially to its development, most notably with regard to the wording of the Secure and Recognised Boundaries Phrase as well as the ‘deletion’ of ‘all’ and ‘the’. In his ‘Abba Eban: An Autobiography’ (London: Weidenfeld & Nicholson, 1977)Google Scholar and ‘Personal Witness: Israel through my eyes’ (New York: Putnam, 1992)Google Scholar, he gives accounts of his recollections of the negotiations in and around the Security Council debates. He makes no mention whatsoever of his unsuccessful attempt to delete ‘in the recent conflict’. Whether this was a deliberate decision not to bring it to the reader's attention or through a lapse of memory must be a matter for speculation. He does, however, mention the addition of the preambular reference to ‘the principle that there should be no acquisition of territory by war’, and suggests in his autobiography that it had to be inserted ‘to get a majority’ (Autobiography: 451). In ‘Personal Witness’, he states that the wording was inserted ‘in deference to Latin American pressure’ and that ‘Since Argentina and Brazil were necessary for the vote, they had to be accommodated’. He also adds that Caradon had ‘his own reasons’ for strengthening the language. The Latin Americans would, of course, have had in mind the principle of colonial uti possidetis which was adopted in Latin America on independence in the nineteenth Century and which abolished the doctrine of title by conquest in the region. This may have been mentioned to Eban by Caradon, but Eban does not inform his readers that the abolition of the principle of title by conquest had spread beyond Latin America to the rest of the World. He betrays what seems to be a cynical attitude to this particular part of the wording: ‘Since the territories of most states have been decisively influenced by wars, [the inadmissibility of the acquisition of territory by war] seems a somewhat insincere proposition’ (Personal Witness, 457).

65 Thirlway, , ‘The Law and Procedure of the International Court of Justice 1960–89’, BYIL (1996), pp.29Google Scholar et seq. Quoted in Wood, op cit, 85–6.

66 Wood, op. cit., 95.

67 Ibid, 89.

68 Ibid, 86–7.

69 Bailey, and Daws, , The Procedure of the UN Security Council (Oxford: Oxford University Press?, 1998), 270–1CrossRefGoogle Scholar. The authors also draw attention to some interesting shifts in the views of some members of the United Nations as to whether resolutions under Chapter VI are binding.

70 See nn 1 and 2 above.

71 Wood, op cit, 95.

72 The preamble also recites Resolutions 242 and 338.

73 Watson, op cit, 24.

74 See ‘Peace Treaty between Israel and Egypt’, 26 Mar 1979, Art 2; ‘Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan’, 26 Oct 1994, Art 3.

75 E Lauterpacht, ‘Jerusalem and the Holy Places’, Anglo-Israel Pamphlet No 19, London 1968, 41–2.

76 On this point, see Wright, Quincy, ‘The Middle East Problem’, 64 American Journal of International Law (1970), at 271Google Scholar: ‘The extension of Israel's occupation beyond the original UN grant as a result of the Arab-Israeli hostilities of 1948–9 and the armistices negotiated in 1949 are justified as temporary measures to end the hostilities. The principle of no acquisition of territory by war should, if strictly applied, require the cease fire lines to be at the frontiers before hostilities began, thus preventing military occupations as well as acquisitions by force, but the overriding responsibility of the United Nations to stop hostilities justified the acceptance of the armistices as temporary cease fire lines to be soon superseded by permanent boundaries established by peaceful means.’

77 See, eg, Dore Gold, op cit.

78 See Egypt-Israel Armistice Agreement, 24 Feb 1949, Art.4; General Armistice Agreement between Israel and Jordan, 3 Apr 1949, Art 6.