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.

 

 

 

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