THE AUTHOR
Yoav J. Tenembaum
A Conceptual Framework of Analysis to Interpret United Nations Security Council Resolution 242
United Nations Security Council Resolution 242 [Henceforward referred to either as UN Security Council Resolution 242 or as Resolution 242] is the legal framework for peace between the Arabs and Israelis. It has been so since it was adopted on the 22nd of November, 1967. BY YOAV J. TENEMBAUM
Resolution 242 was adopted in the wake of the Six Day War of June
1967, during which Israel captured the Sinai Peninsula and the Gaza
Strip from Egypt, the West Bank (Judea and Samaria) and East
Jerusalem from Jordan and the Golan Heights from Syria.
Every peace agreement between Israel and its Arab neighbors makes
direct and explicit reference to Resolution 242 as the legal
cornerstone upon which it is based.
The Camp David Accords between Israel and Egypt of September 1978
and the Peace Agreement signed by both countries in March 1979 were
founded on Resolution 242; which was also mentioned as the basis for
the Oslo Accords between Israel and the Palestinian Liberation
Organization (P.L.O.) of September 1993. Resolution 242 was referred
to as the legal basis of the peace agreement which was signed by
Israel and Jordan in October 1994.
Resolution 242 is the only United Nations Security Council
resolution on the pacific resolution of the Arab-Israeli conflict which has been
accepted by both Israel and its Arab neighbors.
Israel, Egypt and Jordan endorsed Resolution 242 already in November 1967. Syria
refused to follow suit until 1973. Following the Yom Kippur War of October 1973,
the Syrians adopted United Nations Security Council Resolution 338, which called
on the warring sides to negotiate peace on the basis of UN Security Council
Resolution 242, thus endorsing it as the basis for peace.
Indeed, UN Security Council Resolution 338 is usually mentioned in official
documents alongside UN Security Council Resolution 242 as the basis for peace
between Israel and its Arab neighbors.
The PLO refused, for many years, to endorse Resolution 242 as it did not make
any explicit reference to the Palestinian Arabs as a separate entity.
To be sure, there is a general reference in Resolution 242 to "achieving a just
settlement of the refugee problem," which may be interpreted as alluding to
Palestinian Arab refugees (as well as to Jewish refugees from Arab countries).
However, apart from that, the Palestinian Arabs as a separate factor in the
conflict are not specifically mentioned in Resolution 242.
Still, as already mentioned, the Oslo Accords between Israel and the PLO were
based on Resolution 242. Thus, the PLO and the Palestinian Authority, which was
established in the wake of the Oslo Accords of September 1993, have recognized
Resolution 242 as a basis for peace.
UN Security Council Resolution 242 was not adopted under Chapter VII of the
United Nations Charter, which would have been unequivocally binding, having been
adopted in the light of a situation deemed to be a "threat to the peace,
breaches of the peace and acts of aggression." Resolution 242 was endorsed under
Chapter VI of the UN charter, which obtains in cases related to the "pacific
resolution of disputes." However, having been adopted by both sides to the
conflict it could be said to be binding, albeit in a consensual, rather than an
enforced, manner.
It should be noted that, although UN Security Council Resolution 242 has been
accepted by both sides to the Arab-Israeli conflict, Israel and its Arab
neighbors have accorded it a different interpretation.
For instance, Resolution 242 calls on Israeli armed forces to withdraw "from
territories occupied in the recent conflict."
The Arab side has consistently argued that Israel was obliged under the terms of
Resolution 242 to withdraw completely to the lines prevailing prior to the
outbreak of the Six Day War of June 1967. In other words, according to this
interpretation, Israel must return to the territorial
status quo ante.
Israel, on the other hand, has contended that Resolution 242 speaks for itself.
Israel is not requested to withdraw from all the territories, but from
"territories." The absence of the article 'the' or of the word 'all' preceding
the term "territories" is not accidental, but a clear allusion to the fact that
the drafters foresaw a withdrawal of Israeli armed forces to an unspecified line
that might be different from the one existing prior to the Six Day War. There
was certainly no obligation to withdraw fully to the boundaries existing before
the War, which, anyway, were Armistice Lines and not final and mutually-agreed
borders.
This particular phrase has been a bone of contention between the two sides,
occupying some brilliant legal minds in an earnest endeavor at persuading the
other of the rightness of its own interpretation.
A further interpretative dispute between the Israelis and the Arabs and their
respective supporters for many a year has been over whether Resolution 242 calls
on Israel to withdraw unilaterally or only in the framework of a peace agreement
with its Arab neighbors.
Indeed, the Arab side and many a political and legal commentator siding with it
have protested that Israel does not implement United Nations resolutions,
alluding in this regard first and foremost to UN Security Council Resolution
242.
According to their line of reasoning, Israel should have withdrawn completely
from the territories it had captured during the Six Day War, in the same manner,
for example, that Iraq was requested to withdraw from Kuwait following the
invasion of the latter by the first in August 1990. Israel has been treated
differently than other countries that violate United Nations resolutions, so it
has been argued.
The counter argument advanced to refute this dwells on the difference between a
United Nations Security Council resolution which requests a country to withdraw
unilaterally, i.e., Iraq with reference to Kuwait, and one that calls on it to
withdraw in the context of a peace agreement, following negotiations between the
warring sides, i.e. Israel as regards the territories it captured during the Six
Day War.
Also, it has been contended, Israel captured those territories in a war of
self-defence against countries calling for its destruction and undertaking
aggressive and illegal actions against it. Iraq invaded Kuwait without being
under any threat of attack by the latter, let alone being menaced with physical
extinction.
There is a legal difference, according to this counter-argument, espoused among
others by the Cambridge University scholar Sir Elihu Lauterpacht, between
unlawful territorial change by an aggressor and lawful territorial change in
response to an aggressor. Of course, the Arab side has contended that Israel was
the aggressor in the Six Day War, and thus any territorial change in its favor
would be ipso facto illegal.
Considering the discrepancies with regard to the correct way to interpret UN
Security Council Resolution 242, a conceptual framework of analysis is proposed
here in order to establish a structured system for its interpretation.
This conceptual framework of analysis is based on the legal classifications and
terms of reference that define the interpretations accorded to the United States
Constitution by legal scholars and Supreme Court judges.
We propose, therefore, to interpret UN Security Council Resolution 242 according
to one or more of the three following conceptual terms:
1. The intentional version [Original Intent],
looking at the intention of those who drafted Resolution 242;
2. The literal version [Textualism], confined to an
analysis of what is written in Resolution 242;
3. The evolutionary version [Living Tree], which
interprets Resolution 242 according to changing circumstances.
According to the intentional version [Original
Intent], one would look for evidence regarding the original intention of those
who drafted Resolution 242, in this case US and British politicians and
diplomats, as the resolution was drafted by both delegations to the UN and
presented to the Security Council by the British. To be sure, there are several
written and oral testimonies of those involved in the drafting of Resolution
242. In this context, one could also follow the background, and the process
leading to, the drafting of Resolution 242.
For example, those who argue that Resolution 242 does not oblige Israel to
withdraw completely from all the territories captured during the Six Day War
would refer to the words of Lord Caradon (Hugh Foot), the British Ambassador to
the United Nations at the time of the drafting of Resolution 242 and one of its
drafters, who subsequently said that the absence of the article "the" or the
word "all" was intentional.
Further, the evidence of then US Ambassador to the United Nations, Arthur
Goldberg, who was involved in the drafting of Resolution 242, that stressed that
it was drafted the way it was on purpose. According to Ambassador Goldberg,
Israel was not requested to withdraw fully to the lines existing prior to the
Six Day War.
The fact that a Soviet-led effort at tabling a resolution calling on Israel to
withdraw completely to the boundaries existing prior to the Six Day War was
rejected by the United States and Britain, which instead put forward what was to
be known as Resolution 242, may prove the existence of a diplomatic-legal
process preceding the adoption of Resolution 242 which validates the
interpretation that the drafters did not intend to call on Israel to withdraw
fully to the lines prevailing before the Six Day War.
The literal version [Textualism] would lead us to
interpret Resolution 242 on the basis of what is written in it. The text itself
and a literal interpretation of it would be of paramount importance in this
context. One would confine oneself to what is written rather than to what might
have been intended to be written.
On the one hand, this might lead to an interpretation according to which Israel
is called to withdraw from territories and not from
all of the territories, nor even from
the territories, captured during the Six Day War.
On the other hand, the French version of Resolution 242 calls on Israel to
withdraw from the territories
("des territories") and not just from territories, captured during the
Six Day War.
Apart from English, French was also an official language at the United Nations
at the time of the drafting of Resolution 242 and therefore the French text
might be deemed to be equally valid to the English version.
In this regard, one would have to delve further into this and ask oneself which
language should take legal precedence in this instance? Which of the two
versions – the English or the French – would have the legal edge, so to speak,
in order to determine which one has more legal weight than the other?
The Arab side and legal scholars adhering to an interpretation whereby Israel
should withdraw completely from the territories captured during the Six Day War
might point out that Resolution 242 emphasizes "the inadmissibility of the
acquisition of territory by war." The capture of any territory by Israel during
the Six Day War could be deemed to be, according to this interpretation,
inadmissible, thus foreclosing any legal right for Israel to retain territory
beyond the lines existing prior to that War.
The Israeli side and legal scholars that find the aforementioned argument to be
questionable, contend that the clause on "the inadmissibility of the acquisition
of territory by war" is a general principle mentioned in the preamble of
Resolution 242 and not in its operative clauses, in which Israel is called to
withdraw "from territories," thus legally allowing a modification of the
pre-existing lines.
Lastly, if an analysis based on the an evolutionary
version [Living Tree] is undertaken, then one would interpret Resolution 242
according to changing circumstances.
For instance, one could argue, on the one hand, that the fact that Israel
withdrew from the Sinai Peninsula in the context of a peace agreement with Egypt
and from parts of the West Bank as part of the Oslo Accord with the PLO that
Resolution 242 has been accepted by both sides as entailing an Israeli
withdrawal in the framework of a mutually-agreed treaty rather than as a result
of a unilaterally binding call for withdrawal.
On the other hand, as a result of the Israeli withdrawal from the entire Sinai
Peninsula, in accordance with the peace agreement between Israel and Egypt of
March 1979, one could contend that a precedent has been established whereby
Israel should withdraw completely to the lines existing prior to the Six Day
War, albeit as a corollary of a peace agreement.
Furthermore, both Israel and the United States have argued that any peace
agreement reached between Israel and the Palestinian Authority should take into
account the changing demographic reality in the West Bank (Judea and Samaria),
let alone in East Jerusalem.
Thus, most of the Israeli inhabitants residing beyond the lines prevailing
previous to the Six Day War would have to remain under Israeli sovereignty in
the case of East Jerusalem or be incorporated within Israeli sovereign territory
in the case of some of the settlements in the West Bank (Judea and Samaria).
This would inevitably entail some modifications in the boundaries from those
existing prior to that War.
In this context, both Israel and the United States have mentioned the
possibility of land swaps to compensate the Palestinian Authority for any loss
of territory, something the Palestinian leadership has not ruled out in
principle.
The examples aforementioned may not have been foreseen by the drafters of UN
Security Council Resolution 242. The text of Resolution 242 does not necessarily
account for the changing circumstances since it was first drafted in November
1967. Thus, an analysis of Resolution 242 that takes into account the changing
demographic, territorial, diplomatic and legal realities would be undertaken as
part of an evolutionary analysis [Living Tree].
The conceptual framework of analysis proposed in this article to interpret UN
Security Council Resolution 242 is aimed at delineating a structured system for
the study and legal interpretation of the most important resolution on
Arab-Israeli peace that has ever been adopted by the United Nations Security
Council. It may serve, as well, as a conceptual framework of analysis to help
interpret other United Nations Security Council resolutions.
About the Author
Dr. Yoav J. Tenembaum is a lecturer at the graduate Diplomacy Program (Political Science Department), Tel Aviv University, Israel.
One of the courses he taught is on Diplomacy and Conflict
Resolution in Modern History, which places much emphasis on the
development of International Law and its application in the
resolution of international conflicts. He also taught on Diplomacy
and International Crises, The Shaping of Foreign Policy and
Decision-Making, and others.
Dr. Tenembaum has lectured widely on various aspects of the
Arab-Israeli dispute, in Israel, South America and Britain. He has
been invited on several occasions to lecture on the subject by the
Centre of International Studies at Cambridge University.
