¹ See, for instance, on reprisals: Bowett, D., “Reprisals Involving Recourse to Armed Force” (1972) 66 Am.J.I.L. no. 1, pp. 1–36Google Scholar; Falk, Richard A., “The Beirut Raid and the International Law of Retaliation” (1969) 63 Am.J.I.L. no. 3, pp. 415–443Google Scholar; Blum, Y. Z., “The Beirut Raid and the International Double Standard: A Reply to Professor Richard A. Falk” (1970) 64 Am.J.I.L. no. 1, pp. 73–105Google Scholar; Falk, Richard A., “Reply to Professor Stone” (1970) 64 Am.J.I.L. no. 1, pp. 162–163Google Scholar; Martin, P.M., Le conflit israélo-arabe, Recherches sur l'emploi de la force en droit international public positif (Paris, 1973) 177–227.Google Scholar

² The expression “Arab States” used in this article means, in the first place, Israel's four neighbouring States with whom armistice agreements were signed in 1949: Egypt, Lebanon, Jordan and Syria. Obviously, everything said in the article applies to Egypt only until the entry into force of the Egyptian-Israeli Peace Treaty (25 April, 1979), signed by Egypt after the historic visit of President Anwar Al-Sadat in Jerusalem. As to the other Arab States, Professor Moore defined their status as follows: “the other Arab States not bordering on Israel, including Saudi Arabia, Algeria, Lybia, Iraq, Kuwait and The Sudan, arc to a greater or lesser extent also belligerents in the conflict”. See Moore, J. N., “The Arab-Israeli Conflict and the Obligation to Pursue Peaceful Settlement of International Disputes” in Moore, J. N., ed., The Arab-Israeli Conflict, Vol. II: Readings” (Princeton, 1974) 751.Google Scholar It is interesting in this context to note that, when the Security Council adopted its cease-fire resolutions after the outbreak of the Six Day War, Kuwait, which did not take part in the military hostilities, informed the UN Secretary-General that “it would not observe nor adhere to [them]”. See Yearbook of the United Nations, 1967 (New York, 1969) 178.

³ Backward to War, Forward to Peace (Ministry for Foreign Affairs, Information Division, Jerusalem, 1969) 10.

⁴ Ibid., at 15.

⁵ (1973, November) UN Monthly Chronicle 40–41.

⁶ UN Doc. A/PV. 2388, 29 October 1975, p. 16.

⁷ Thierry, Hubert, “L'accord israélo-égyptien du 4 septembre 1975 et les nouvelles responsabilités des Etats-Unis et des Nations Unies au Moyen-Orient” in Annuaire Français de Droit International, 1975 (Paris, 1976) n. 10 at 50.Google Scholar The translation into English of excerpts from studies in French—here and in the rest of the article—is by the author.

⁸ Yearbook of the United Nations, 1973 (New York, 1976) 213.

⁹ Yearbook of the United Nations, 1967 (New York, 1969) 183–190.

¹⁰ It might be noted that there have been cases in which the Security Council ordered a limited cease-fire. For instance, in its resolution of 29 May 1948 it called for the “cessation of all acts of armed force for a period of four weeks” (Yearbook of the United Nations, 1947–1948 (New York, 1949) 427) and in the Resolution of 7 July 1948, the Security Council addressed “an urgent appeal to the interested parties to accept in principle the prolongation of the truce for such period as may be decided upon in consultation with the Mediator” (ibid., at 434). But even in instances such as these, it certainly does not follow that the involved parties may renew hostilities on the expiry of the period fixed in the resolution. Professor Wengler rightly points out that “to pretend that the two parties may legitimately resort to war as soon as the cease-fire expires, would render the prohibition of the use of force illusory”. See Wengler, W., “L'interdiction de recourir à la force, Problèmes et tendances” in Revue Belge de Droit International (Bruxelles, 1971) n. 19 at 407.Google Scholar

¹¹ Baxter, R., “Armistices and other Forms of Suspension of Hostilities” in Recueil des Cours de l'Académie de Droit International (hereinafter quoted as R.A.D.I.) 1976–1 (Leyde, 1977) 383.Google Scholar

¹² Manin, Ph., “L'O.N.U. et la guerre du Moyen-Orient” in Annuaire Français de Droit International, 1973 (Paris, 1974) 542–543.Google Scholar

¹³ On 18 May 1973, i.e., a few months before the Yom Kippur War, the UN Secretary-General submitted to the Security Council a comprehensive report on the situation in the Middle East since June 1967 in which he reported, inter alia, that “major incidents … have disrupted the cease-fire” and that “the most serious breakdown of the cease-fire was never considered by the Council. The breakdown concerned the fighting between the Israeli and United Arab Republic forces from early 1969 until 7 August 1970 …” (UN Doc. S/10929, 18 May 1973, p. 11). This breakdown, of course, refers to what is generally known as the “war of attrition”, and the Secretary-General ended the chapter of his report dealing with the “status of the cease-fire” in the following words: “so long as … [a just and accepted] settlement is not in sight, the cease-fire will remain precarious and unstable” (ibid.). From this it may be inferred that the cease-fire order was regarded by the Secretary-General as valid, albeit “precarious and unstable.”

¹⁴ UN Doc. A/9190, 6 October 1973, p. 1.

¹⁵ Heikal, Mohamed, The Road to Ramadan (London, 1975) 29.Google Scholar

¹⁶ Ibid.

¹⁷ The fact that Egypt found it necessary to fabricate the story of Israel's aggression shows that it was not fully convinced that its claim to be entitled to wage war for the recovery of the territories would be generally accepted. But it may be that it resorted to this stratagem ex abundante cautela. In any event, in the discussions which took place in the Security Council during the Yom Kippur War, a number of States—especially the Arab States, the Third World States, the U.S.S.R. and China—did not hesitate to support the thesis that Egypt and Syria had a right to utilize the military option. The representative of the U.S.S.R., for instance, declared that “the Arab States were fully entitled to fight in order to liberate their occupied territories ((1973, November) UN Monthly Chronicle 20) and that “they were exercising their right to self-defence” (ibid., at 23). See on the Yom Kippur War E. Rostow, V., “The Illegality of the Arab Attack on Israel of October 6, 1973” (1975) 69 Am.J.I.L. no. 2, pp. 272–289.Google Scholar

¹⁸ Kelsen, H., The Law of the United Nations. A Critical Analysis of its Fundamental Problems (London, 1950) 270.Google Scholar

¹⁹ Ibid., n. 7 at 170. Kelsen recalls in this context the fact that the San Francisco Conference rejected the proposal made by the delegate of France that “should the Council not succeed in reaching a decision, the Members of the Organization reserve to themselves the right to act as they may consider necessary in the interest of peace, right and justice” (ibid., at 170).

²⁰ In his study The Acquisition of Territory in International Law, Professor Jennings refers, inter alia, to the question as to a situation in which “a State claims legal title to territory actually in the possession of another State, and proceeds to use force in order to recover its possession”. He stresses that “if in fact [the demanding State's] claim is justified, that is to say if it docs indeed have the legal title to the sovereignty, then it would seem that this is not an employment of force contrary to the provisions of Article 2 (4) of the Charter”. Jennings explains his conclusion as follows: “It cannot be force used against the territorial integrity or political independence of another State because the actor State is merely occupying its own territory. The matter is one within its domestic jurisdiction” (Jennings, R. Y., The Acquisition of Territory in International Law (Manchester, 1963) 72Google Scholar). Jennings goes on to suggest that before a State “can feel justified in taking forcible action” it must have expressed its readiness to have its claim adjudicated by the International Court of Justice and the adverse party must have refused such adjudication (ibid., at 72–73). This analysis dictated by practical and pragmatic considerations, is legally unfounded and totally inconsistent with the clear content of Article 2(4).

²¹ Aréchaga, Ed. Jiménez de, “International Law in the Past Third of a Century” in R.A.D.I. 1978–1 (Alphen aan den Rijn, 1979) 91, 94.Google Scholar

²² Wengler, op. cit., at 414.

²³ Ibid.

²⁴ Arangio-Ruiz, G., “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations” in R.A.D.I. 1972–111 (Leyde, 1974) 534.Google Scholar

²⁵ Henkin, L., “The Reports of the Death of Article 2(4) are Greatly Exaggerated” (1971) 65 Am.J.I.L. no. 3, p. 544.Google Scholar

²⁶ Jiménez dc Aréchaga, op. cit., at 87.

²⁷ Yearbook of the United Nations, 1970 (New York, 1972) 790.

²⁸ Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States, UN Doc, A/6230, (1966) 38–39; Doc. A/6799 (1967) 12–13, 17; Doc. A/7326 (1968) 28–30, 46–49; Doc. A/7619 (1969) 42, 45–46; Doc. A/8018 (1970) 33, 105–106, 117.

²⁹ UN Doc. A/6799 (1967) 13.

³⁰ Ibid.

³¹ Italics added.

³² Arangio-Ruiz, op. cit., n. 13 at 527.

³³ UN Doc. A/8018 (1970) 117.

³⁴ Ibid., at 120.

³⁵ Yearbook of the United Nations, 1950 (New York, 1951) 213.

³⁶ Šahovič, M., “Codification des principes de droit international des relations amicales et de coopération entre Etats” in R.A.D.I. 1972–III (Leyde, 1974) 306–307Google Scholar; Sohn, L. B., “The Development of the Charter of the United Nations: The Present State” in The Present State of International Law and other Essays (Kluwer, 1973) 52–53.Google Scholar

³⁷ Tunkin, G., “International Law in the International System” in R.A.D.I. 1975–IV (Alphen aan den Rijn, 1978) 150–151.Google Scholar

³⁸ Arangio-Ruiz, op. cit., at 523.

³⁹ Ibid., at 535.

⁴⁰ Mosier, Hermann, “The International Society as a Legal Community” in R.A.D.I. 1974–1V (Leyde, 1976) 285.Google Scholar

⁴¹ Jiménez de Aréchaga, op. cit., n. 167 at 319.

⁴² UN General Assembly, Official Records, Twenty-Fifth Session, Sixth Committee (September-December, 1970) 18.Google Scholar

⁴³ This article does not deal with the armistice agreements of 1949, signed by Israel and its neighbouring States and imposing upon the parties a strict prohibition of the use of force. In his “Introduction to the Annual Report on the Work of the Organization” for the period of 16 June 1966 till 15 June 1967, the UN Secretary-General stressed that “each agreement… contains a provision that it will remain in force ‘until a peaceful settlement between the parties is achieved’… There is no provision in them for unilateral termination of their application. This has been the United Nations position all along and will continue to be the position until a competent organ decides otherwise”. (UN Doc. A/6701 /Add. I (New York, 1967) 6).

During the deliberations in the Security Council on 14 June 1979, the representative of Lebanon asked for the adoption of a resolution that would “revive the 1949… Armistice Agreement which the United Nations continued to consider valid”. In response to this demand, the Security Council reaffirmed in Resolution 450 the validity of the Agreement and called upon the parties to reactivate the Mixed Armistice Commission. See (1979, July) UN Chronicle 9, 11. See also Baxter, op. cit., at 386, 387.

⁴⁴ Yearbook of the United Nations, 1974 (New York, 1977) 846–847.

⁴⁵ Moore, op. cit., at 761 (italics added).

⁴⁶ Ibid. See also Bindschedler, R. L., “La délimitation des compétences des Nations Unies” in R.A.D.I. 1963–1 (Lcyde, 1964) 402.Google Scholar

⁴⁷ Hassouna, H. A., The League of Arab States and Regional Disputes (New York, 1975) 281.Google Scholar

⁴⁸ Thierry, op. cit., n. 10 at 50.

⁴⁹ Shihata, I.F.I., “Destination Embargo of Arab Oil: Its Legality under International Law” (1974) 68 Am.J.I.L. no. 4, pp. 607–608, n. 86.Google Scholar

⁵⁰ Skubiszewski, K., “Use of Force by States. Collective Security. Law of War and Neutrality” in Sørensen, M., ed., Manual of Public International Law (London, 1968) 808.Google Scholar See also Feinberg, N., The Legality of a “State of War” after the Ces sation of Hostilities Under the Charter of the United Nations and the Covenant of the League of Nations (Jerusalem, 1961) 57Google Scholar (also appeared in Feinberg, N., Studies in International Law, With Special Reference to the Arab-Israel Conflict (Jerusalem, 1979) 105.Google Scholar

⁵¹ For a refutation of the legal arguments raised by the Arab States and Arab jurists against the legality of the establishment of the State of Israel and against its right to sovereign and independent statehood, see Feinberg, N., “The Arab-Israel Conflict in International Law. A Critical Analysis of the Colloquium of Arab Jurists in Algiers” in Studies in International Law, With Special Reference to the Arab-Israel Conflict (Jerusalem, 1979) 433–514Google Scholar and idem, “On an Arab Jurist's Approach to Zionism and the State of Israel” ibid., at 514–611.

⁵² After the appointment of Ambassador Gunnar Jarring by the UN Secretary-General as his special representative for the implementation of Resolution 242, Egypt did indeed express its readiness “to enter into a peace agreement with Israel”, but its consent was subject to unwarranted preconditions. See Report of the Secretary-General under Security Council Resolution 331 (1973), UN Doc. S/10929 18 May 1973, p. 32 and Annex III, pp. 2–3.

⁵³ Chaumont, Ch., “Cours général de droit international public” in R.A.D.I. 1970–1 (Leyde, 1971) 409.Google Scholar

⁵⁴ See Lie, Trygve, In the Cause of Peace, Seven Years with the United Nations (New York, 1954) 174.Google Scholar

⁵⁵ Sec Hassouna, op. cit., at 311.

⁵⁶ The same distinction may be found in the definition of aggression adopted by the UN General Assembly in 1974. As opposed to the general practice of avoiding repetition in the drafting of a legal document, the provision regarding “occupation” appears both in the preamble of the resolution and in its operative part. In the seventh prcambular paragraph it was reaffirmed “that the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken … in contravention of the Charter…” (italics added); and Article 3(a) of the operative part stipulates that “the invasion or attack,…or any military occupation, however temporary, resulting from such invasion or attack” shall be qualified as an act of aggression (Yearbook of the United Nations, 1974 (New York, 1977) 846–847). In the Special Committee which drafted the definition, several States wanted to delete the phrase “in contravention of the Charter” from the preambular paragraph, but as Ferencz, B. B. stressed in his extensive work on the drafting of the definition, “it was just that saving clause which made the rest of the provision acceptable to others” (Defining International Aggression. A Documentary History and Analysis (New York, 1975) vol. 2, p. 23Google Scholar). As to Article 3(a), many members of the Committee were opposed to the very mention of “occupation”. They considered it to be absolutely superfluous, since the Article relates to “military occupation … resulting from invasion or attack” and “invasion or attack” had already been condemned in the opening words of the Article as acts of aggression. But this approach was not accepted, and “the language used reflects”, according to Ferencz, “the intensity of the feeling which existed among various members of the Committee, and particularly those whose countries were partly under military occupation” (ibid., at 34). He, obviously, had in mind, in the first place, Egypt and Syria, which were members of the Special Committee, and the other Arab States which were represented in it and supported them.

⁵⁷ UN Doc. A/7326 (1968) 48 (italics added).

⁵⁸ Higgins, R., “The Place of International Law in the Settlement of Disputes by the Security Council” (1970) 64 Am.J.I.L. no. 1, p. 8.Google Scholar

⁵⁹ Wengler, op. cit., at 408–409, 416. Professor Wengler is nevertheless prepared to admit the existence of one instance in which “one may be tempted” to recognize the right to a unilateral action by a State considering itself to be a victim of aggression—namely, “when the legal situation has been clarified… by a binding decision taken by an international judicial organ, in particular by the International Court of Justice”. The refusal to comply with the judgment may provoke coercive measures by the Secuiity Council, according to Chapter VII of the UN Charter or as ultima ratio, by the State in whose favour the judgment was given (ibid., at 416). See also Moore, op. cit., at 761–762.

⁶⁰ Yearbook of the United Nations, 1967 (New York, 1969) 246.

⁶¹ In its Resolutions A/3414 of 5 December 1975 (Yearbook of the United Nations, 1975 (New York, 1978) 240–241); A/31/61 of 9 December 1976 (Yearbook of the United Nations, 1976 (New York, 1979) 246–247); A/32/20 of 25 November 1977 (UN General Assembly, Official Records, Thirty-Second Session, suppl. No. 45 (A/32/45) (New York, 1978) 23–24Google Scholar); and A/33/29 of 7 December, 1978 (Thirty-Third Session, suppl. No. 45 (A/33/45) (New York, 1979) 18), the UN General Assembly affirmed (in the following or similar words) that “a just and lasting peace in the Middle East… cannot be achieved without Israel's withdrawal from all Arab territories occupied since 5 June 1967” (italics added). These resolutions referring to “withdrawal from all Arab territories” are incompatible with Resolution 242 which, as already stated above, required withdrawal from “territories” and not from “the territories” or from “all the territories”. All the above General Assembly resolutions are recommendations, whilst only the Security Council Resolution 242—especially when read together with Resolution 383 of 22 October 1973—is legally binding. Admittedly, the General Assembly cannot be denied the right to recommend arrangements which go further than those ordered by the Security Council, but it had no right to condemn, as it did in the four above mentioned resolutions, “Israel's continued occupation of Arab territories, in violation of the Charter…, the principles of international law and repeated resolutions of the United Nations”. This condemnation is incompatible with Resolution 242. No provision therein lays down that the withdrawal must precede the implementation of the other principles formulated in the Resolution. However, this notwithstanding, the Arab States subjected their readiness to discuss the other peace arrangements to a prior commitment by Israel to total withdrawal.

It may be of interest to note that according to the Soviet doctrine of international law, a State which has been attacked, and which has won a war waged in self-defence, has the right to demand part of the territory of the aggressor in order to secure itself against renewal of aggression. True, the Soviet jurists base this right of the victim of aggression not on the fact that the territory has been conquered, but on the responsibility the aggressor must bear for his aggression. Prof. G. Tunkin did not even hesitate to define that principle as a “progressive principle”, whose purpose is to strengthen international peace. See Tunkin, G., The Theory of International Law (Moscow, 1970, in Russian) 465–470.Google Scholar See also Tunkin, G., ed., International Law, Textbook (Moscow, 1974, in Russian) 258Google Scholar; Martin, op. cit., at 261–264. For criticism of the Soviet doctrine sec Chaumont, op. cit., at 453–454.

⁶² Yearbook of the United Nations, 1972 (New York, 1975) 11–12 (italics added).

⁶³ UN General Assembly, Official Records, Twenty-Seventh Session, Plenary Meeting, 28 September 1972, p. 14.Google Scholar

⁶⁴ Ibid., at 9.

⁶⁵ Ibid., at 15.

⁶⁶ The question how to ensure that international organs respect and observe the law has occupied the attention of many scholars of international law, and the Institute of International Law has debated it extensively. See Annuaire de l'Institut de Droit International, 1952–1 (Bâle, 1952) 224–360; 1957–1 (Bâle, 1957) 5–33; and 1957–II, pp. 274–318, 488. See also Institut de Droit International, Livre du centenaire, 1873–1973 (Bâle, 1973) 269–275, 375–391; Conforti, B., “Le rôle de l'accord dans le système des Nations Unies” in R.A.D.I. 1974–II (Leyde, 1975) 209–288.Google Scholar

⁶⁷ Yearbook of the United Nations, 1974 (New York, 1977) 226–227 (italics added). In 1975 the UN General Assembly adopted a resolution on the “Situation in the Middle East” and in the second preambular paragraph therein it relied upon “those principles of international law which… consider any military occupation, however temporary,… as an act of aggression” (Yearbook of the United Nations, 1975 (New York, 1978) 241–242) (italics added). The phrase “any military occupation” is inconsistent with the definition of aggression adopted by the General Assembly a year previously (see supra n. 56). While according to that definition, aggression constitutes, inter alia, “any military occupation … resulting from … invasion or attack”, the resolution of 1975 refers to “any military occupation” without any reservation.

⁶⁸ International Court of Justice, Reports (1949) 35.

⁶⁹ See UN General Assembly, Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in International Relations, Doc. A/33/41 (1978) 7; Doc. A/34/41 (1979) 18, 58.

⁷⁰ Franck, Th. M., “Who Killed Article 2(4) or Changing Norms Governing the Use of Force” (1970) 64 Am.J.I.L. no. 5, pp. 809–828.Google Scholar See reply to Franck's article: L. Henkin, op. cit., at 544–548.