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The Middle East Problem

Published online by Cambridge University Press:  28 March 2017

Extract

The Security Council resolution of November 22, 1967, seems to provide for a satisfactory solution of the Middle East controversy, and it is difficult to see how there can be a satisfactory settlement except on the basis of the principles on which that resolution is based. The preamble of that resolution states three fundamental principles.

Type
Research Article
Copyright
Copyright © American Society of International Law 1970

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References

1 62 A.J.I.L. 482 (1968).

2 Reaffirmed in Security Council Res. 252 (May 21, 1968). See also Muhammud H. El Farra, Permanent Representative of Jordan to the U.N., “The Role of the U.N. vis-avis the Palestine Question,” 33 Law and Contemporary Problems 68 ff. (Winter, 1968), and Cherif Bassiouni, “Some Legal Aspects of the Arab-Israeli Conflict,” 14 The Arab World (Nos. 10-11) 44 (Arab Information Center, N.Y., 1967).

3 This difficulty exists whether one takes, as the test for determining aggression, priority in initiating hostilities, refusal to accept or observe provisional measures proposed by the U.N. (Art. 40), or manifest unwillingness to accept fair and effective procedures to settle the dispute. See Q. Wright, “Legal Aspects of the Middle East Situation,” 33 Law and Contemporary Problems 26 ff. (Winter, 1968); idem, “The Concept of Aggression in International Law,” 29 A.J.I.L. 373 ff. (July, 1935); “The Prevention of Aggression,” 50 A.J.I.L. 514, 526 ff. (July, 1956).

4 Fenwick, Charles G., International Law 426, 681 ff. (4th ed., N.Y., 1965).

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5 1 Moore, Digest of International Law 292; 7 ibid.318; 5 Whiteman, Digest of International Law 880-881; 119 U.N. Treaty Series 3 (1948).

6 Wright, Q., “The Stimson Note of January 7, 1932,26 A.J.I.L. 342 ff. (1932).

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7 General Progress Report of U.N. Conciliation Commission for Palestine, 5 U.N. General Assembly, Official Records, Supp. 18, pp. 3-4, 19-21, U.N. Doc. A/1367, Rev. 1 (1950), and Third Progress Report, U.N. C.C.P., 4 General Assembly, Official Records, Vol. II, Doc. A/927 (1949).

8 Wright, “Legal Aspects of the Middle East Situation,” note 3 above, pp. 13-15.

9 The U.N. insisted on withdrawal to the boundaries before hostilities began in the Kashmir (1948, 1965) and Korean (1950) situations. In the debate on the cease-fire resolution of June 6, 1967, the Soviet Union, France, India, the Arab states and others demanded immediate withdrawal from occupied territories, but the United States insisted that withdrawal must be contingent on Arab renunciation of belligerency and opening the waterways to Israeli shipping. U.N. Doc. S/PV.1358 (1967); Wright, loc. cit.note 3 above, pp. 24, 25.

10 For statistics indicating bias in news and editorials in the U. S. Press during May and June, 1967, see Michael W. Sullivan, in 14 The Arab World (note 2 above), p. 59 ff.

11 By taking suitable means to prevent states from gaining advantages from resorts to force, states not only observe their legal obligation but serve the general purpose of the U.N. “to save succeeding generations from the scourge of war.” (Preamble.) Such action assists the technological developments which have tended to make resorts to military force useless as an instrument of foreign policy. Appraisal of over forty instances of hostilities which have occurred since World War II (see Q. Wright, A Study of War 1518 ff. (Chicago, 1965)) suggests that, although peoples seeking self-determination from colonial or other domination have sometimes utilized force successfully, states have been less successful in such utilization than in earlier periods of history and have usually preferred other methods for implementing foreign policies such as diplomacy, propaganda, resort to the U.N., technical assistance, or “non-military intervention” not likely to involve them in hostilities (see Q. Wright, in Karl W. Deutsch and Stanley Hoffmann (eds.), The Relevance of International Law 5 ff. (Cambridge, Mass., 1963)). They have feared that under present technological conditions hostilities may escalate into suicidal nuclear war, or may lead to destructive stalemate or the quagmire of guerrilla hostilities. A state initiating hostilities against another state seems to have gained what it wanted, at least temporarily, in only five instances during this period (Soviet invasions of Hungary, 1956, and Czechoslovakia, 1948 and 1967; Indian invasion of Portuguese Goa, 1962, and Chinese invasion of India, 1962). A few other instances of international hostilities were inconclusive. Israel occupied Arab territory in 1948 and 1967 but it is uncertain which side initiated the hostilities. China invaded Tibet in 1959 but may have had title to it before. Most of the hostilities since World War II were civil or colonial, sometimes leading to foreign intervention, and the insurgents were usually successful (Wright, “Peace-keeping operations of the U.N.,” 7 International Studies 174 ff. (Indian School of International Studies (Oct. 1965)). Arnold Toynbee has suggested that the few states which have always gained the objectives which they sought in their wars, especially Israel and the United States, are less aware of the disutility of war as an effective instrument of policy than states which have often been defeated. (Experiences, pp. 231-233 (Oxford University Press, 1969).)

12 The United States and the Soviet Union have been continuously negotiating since February, 1968, on the issues. The United States seems to have supported the Israeli position and the Soviet Union the Arab position on the interpretation of the Security Council resolution of November, 1967, in regard to Israeli withdrawal from occupied territory, but the ten points communicated to Egypt by Secretary of State William P. Rogers on Oct. 28, 1969, reported in the Washington Post, Dec. 10, 1969 (p. A 14), appear to have moved toward the Arab position. In his speech on Dec. 9, 1969, he denied any essential change in the United States position but affirmed the U. S. policy of implementing the Security Council resolution. (See comment by A. D. Home, Washington Post, Dec. 25, 1969, p. A 15.) The apparent rejection of the ten-point proposal by Egypt, Israel, and the Soviet Union, and the failure of the Arab summit meeting in Morocco in December, 1969, to reach agreement on policy toward Israel indicates a possible relaxation of the deadlock. (See comments by A. D. Home, cited above, and Washington Post, Dec. 24, 1969, p. 1; Rowland Evans and Robert Novak, ibid., Dec. 25, 1969, p. A 23.)

13 Art. 2(4).

14 Art. 51.

15 Art. 2(5). See also Arts. 25, 39, 42, 43, 45, 48.

16 Wright, Q., “United States Intervention in Lebanon,53 A.J.I.L. 112 ff. (1959); idem, “International Law and Civil Strife,” 1959 Proceedings, American Society of International Law 145 ff.; The Role of International Law in the Elimination of War 49 ff. (Manchester University Press, 1961).

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17 Art. 51.

18 Art. 2(5).

19 Wright, he. cit.note 3 above, p. 16; idem, “The Outlawry of War and the Law of War,” 47 A.J.I.L. 365 ff. (July, 1953); “The New Law of War and Neutrality,” 6 Netherlands International Law Review 412 ff. (Special issue, July, 1959).

20 “The Security Council… . 1. Affirmsthat the fulfilment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict; (ii) Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;“

21 For Egypt's acceptance, see letter of March 19, 1968, from Mohamed El Kony, permanent representative of the U.A.R. (Egypt) to the U.N., to Secretary General U Thant, quoting statement by Egyptian Minister of Foreign Affairs, March 13, 1968 (U.N. Doc. S/8479, A/7074), and “Annual Report of Secretary General U Thant, 1967” (U.N. Doc. A/7201, Add. 1, par. 50). In a letter of Oct. 2, 1968, replying to my inquiry, Nabil Elaraby, First Secretary to the Permanent Mission of the U.A.R. to the United Nations, wrote: “Jordan and the U.A.R. have declared several times their acceptance and complete readiness to discharge their obligations under that resolution.” A. D. Home states that Egypt and Jordan but not Syria had accepted the resolution (Washington Post, Dec. 25, 1969, p. A 15). This writer, while attending the conference on the Middle East crisis at Duke University in March, 1968, was informed by Arab diplomats that Lebanon had also accepted the resolution.

22 See statement by representative of this Organization to the Special Committee of the General Assembly in December, 1968. 6 U.N. Monthly Chronicle 83-84 (Jan. 1969). A report from Palestine by Alfred Friendly in the Washington Post, Nov. 22, 1969, and a comment by Rowland Evans and Robert Novak, ibid., Nov. 20, 1969, give evidence of increasing anxiety by the Israeli as the influence of this organization develops, not only in the Arab governments, but also among the refugees and other Arabs in the occupied territories and in Israel.

23 Efforts are made to justify this interpretation by the Security Council's rejection of a draft resolution which would have made immediate withdrawal from all occupied territories more explicit. See Security Council Meeting, June 12, 1967, Doc. S/PV. 1360, and Shabtai Rosenne, “Direction for Middle East Settlement,” 33 Law and Contemporary Problems 60 (Winter, 1968); see also note 9 above. The International Court has held that preliminary material needs to be consulted for treaty interpretation only when the text is not clear on its face. (Interpretation of the 1919 Convention concerning Employment of Women during the Night, P.C.I.J., Ser. A/B No. 50, Advisory Opinion, 1932.) See also Fenwick, International Law 536 (4th ed.); William Tung, International Law in an Organizing World 350 (New York, 1968). This is especially true of multilateral lawmaking treaties which resemble statutes more than contracts. Q. Wright, “The Interpretation of Multilateral Treaties,” 23 A.J.I.L. 94 ff. (1929).

24 Note 12 above.

25 Everyman's United Nations 124 ff. (8th ed., 1968).

26 The justification for this withdrawal is discussed in the report of the Secretary General to the Security Council (U.N. Docs. S/7896, May 19, 1967, and S/7906, May 26, 1967) and to the General Assembly (U.N. Doc. A/6730/Add. 3, June 26, 1967). See also Q. Wright, loc. cit.note 3 above, p. 23; and J. I. Garvey, above, p. 241 et seq.

27 This is implied by Israel's refusal to withdraw from occupied territories until permanent boundaries are accepted in treaties negotiated with each of its Arab neighbours.

28 Note 22 above.

29 Note 8 above.

30 Notes 7 and 8 above.

31 Wright, Q., “The Mosul Dispute,20 A.J.I.L. 263 ff. (1926).

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32 Idem, “The Tacna Arica Dispute,” 10 Minnesota Law Review 28 ff. (1925).

33 Part 2 of the resolution of Nov. 22, 1967, provides: “The Security Council … . 2. Affirms furtherthe necessity: (a) For guaranteeing freedom of navigation through international waterways in the area; (b) For achieving a just settlement of the refugee problem; (c) For guaranteeing the territorial inviolability and political independence of every state in the area, through measures including the establishment of demilitarized zones;“

34 Wright, Q., “Intervention, 1956,51 A.J.I.L. 261-272 (1957); idem, loc. cit.note 3 above, p. 20.

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35 Ibid.p. 22.

36 Security Council Res. 237, June 14, 1967, U.N. Security Council, 22nd Sess., Official Records, 1361st meeting; 62 A.J.I.L. 305 (1968); General Assembly Res. 2252, July 4, 1967, General Assembly, 5th Emergency Spec. Sess., Official Records, Supp. 1; 62 A.J.I.L. 305 (1968). See also George Tomeh, Syrian Permanent Representative to the U.N., “Legal Status of Arab Refugees,” 33 Law and Contemporary Problems 110 ff. (Winter, 1968).

37 Res. 194, Dec. 11, 1948, U.N. General Assembly, 3rd Sess., Official Records, Rev. 21, 23, U.N. Doc. A/810; and Res. 303, Dec. 4, 1949, U.N. General Assembly, 4th Sess., Official Records, Rev. 25, U.N. Doc. A/1251. See also Shepard Jones, “The Status of Jerusalem,” 33 Law and Contemporary Problems 169 ff. (Winter, 1968).

38 U.N. General Assembly, Res. 2253, 2254, 5th Emergency Spec. Sess., Official Records, Supp. 1, p. 4, U.N. Doc. A/6798 (1967); 62 A.J.I.L. 307 (1968).

39 Such an arrangement, distinguishing territorial sovereignty vested in Israel and functional sovereignty administered by an international commission has been proposed by Elihu Lauterpacht, Jerusalem and the Holy Places (London, October, 1968).

40 3 Israel's Oriental Problem 4-5, 7-8 (No. 1, 1967). See also Amos Perlmutter, 48 Commentary 14 ff. (Sept., 1969).

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