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The Security Council Resolution of November 22, 1967—Its Legal Nature and Implications

Published online by Cambridge University Press:  12 February 2016

Amos Shapira
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Extract

More than a year has passed since the Security Council unanimously adopted Resolution 242 on November 22, 1967, concerning the “grave situation in the Middle East”. On the basis of this resolution, the Secretary-General of the United Nations designated Ambassador Gunnar Jarring as a Special Representative “to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement…” It is not proposed here to analyze all the political and diplomatic aspects of the Resolution or its practical prospects to bring about peace in the Middle East. Nor is it proposed to advance any particular interpretation of its substantive contents or to assess its merits and shortcomings. The sole purpose of this article is to examine the legal nature and implications of the Resolution within the framework of the United Nations Charter.

Intellectual curiosity and academic research are not the only motivations for this legal inquiry. Sceptics of the political relevance of such “theoretical” inquiry need only obtain the November 24, 1968 issue of Pravda, the mouthpiece of the Communist Party of the Soviet Union.

Type
Articles
Information
Israel Law Review , Volume 4 , Issue 2 , April 1969 , pp. 229 - 241
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1969

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References

1 S.C. Res. 242 (1967). See the original draft in U.N. Doc. S/8247 (1967).

2 The quotation is taken from the Tel Aviv daily Ha'aretz of November 25, 1968.

3 See, e.g., Goodrich, & Hambro, , Charter of the United Nations (2nd ed. 1949) 208–209Google Scholar; Kelsen, , The Law of the United Nations (1950) 95–96, 293Google Scholar; Goodrich & Simons, The United Nations and the Maintenance of International Peace and Security (1955) 614Google Scholar; Bowett, , The Law of International Institutions (1963) 32Google Scholar; Feinberg, , Palestine under the Mandate and the State of Israel (1963) 177 (Heb.).Google Scholar See also the Corfu Channel case, I.C.J. Reports, 1949.

4 SCOR, II, Nos. 51–64, pp. 1126–1547.

5 SCOR, II, Nos. 51–64, ibid, quoted in Sohn, , Cases on United Nations Law (2nd ed., 1967) 332et seq.Google Scholar

6 See Repertory of United Nations Practice, Vol. II at 47.

7 S.C. Res. 95 (1951).

8 See Repertory of United Nations Practice, Vol. II at 47–48.

9 See (1946) Yale L. J. 996–1007.

10 See Higgins, , The Development of International Law through the Political Organs of the United Nations (1963) 79–81.Google Scholar

11 Goodrich & Simons observe that:

“Once the United Nations organ has adopted its recommendation or decision for the settlement or adjustment of a particular dispute or situation, there remains the problem of implementation… The charter does not authorize the use of collective measures to enforce compliance with recommendations of the Security Council or the General Assembly …” Supra n. 3, at 613. See also at 229, 233.

Goodrich states explicitly that:

“…[B]oth the General Assembly and the Security Council lack authority to take legally binding decisions in the realm of peaceful settlement…” The United Nations (1960) 207. See Goodrich & Hambro, supra n. 3, at 255, 260.

12 See the voting at the 1360th meeting of the Security Council on June 14, 1967 (U.N. Doc. S/PV. 1360) and at the 1548th Plenary meeting of the General Assembly on July 4, 1967 (A/PV. 1548). See also the statement of the Israeli representative at the 1618th meeting of the General Assembly on December 4, 1967 (U.N. Doc. A/PV. 1618, at 133), and U.N. Doc. 'S/PV. 1373, at 117.

13 U.N. Doc. S/PV. 1379, at 6.

14 Mr. Goldberg (United States):

“We were guided throughout by certain axioms of negotiation, axioms which stemmed in part from the unanimous view that the Council should act under Chapter VI of the Charter.” (U.N. Doc. S/PV. 1377, at 33.) Mr. Borch (Denmark):

“At the conclusion of the recent negotiations among the non-permanent members of the Council there was agreement, at least on three points…mentioned before in this discussion…namely, that at this stage we are operating under Chapter VI of the Charter, that a Special Representative of the United Nations ought to proceed to the area and that guidelines should be given for the work of that special representative.” (U.N. Doc. S/PV. 1373, at 146.)

Mr. Ignatieff (Canada):

“Secondly, there seems to be a more general acceptance than ever before that Council action at this time has to be within the framework of Chapter VI of the Charter, a framework which enables us to seek agreement on a diplomatic initiative designed to open the way to a peaceful settlement.” (U.N. Doc. S/PV. 1377, at 46.) See, as well, the remarks of Mr. Abedo of Nigeria at the Council's meeting on Nov. 9, 1967 (U.N. Doc. S/PV. 1373, at 82).

15 See Wright, , “Legal Aspects of the Middle East Situation” (1969) 33 Law & Contemp. Prob. 5, 31CrossRefGoogle Scholar; Rosenne, , “Directions for a Middle East Settlement—Some Underlying Legal Problems” (1968) 33 Law & Contemp. Prob. 44, 57.CrossRefGoogle Scholar

16 See Kelsen, supra n. 3, at 439–40, 788.

17 See Goodrich & Simons, supra n. 3, at 346; Bowett, supra n. 3, at 35–36.

18 See Goodrich & Simons, supra n. 3, at 384.

19 See Goodrich & Hambro, supra n. 3, at 275; Charter of the United Nations, Report to the President on the Results of the San Francisco Conference, Department of State, to the President on the Results of the San Francisco Conference, Department of State, pub. 2349, Conference Series 71, p. 92.

20 See Bowett, supra n. 3, at 36; Goodrich & Simons, supra n. 3, at 372, 386–87.

21 See Kelsen, supra n. 3, at 438, 740, 742.

On several past occasions the Council has reacted in the following, inter alia, ways to varying degrees of non-compliance with provisional measures taken by it under Article 40: 1) it has “reminded” the parties and “reaffirmed” earlier resolutions calling for compliance with provisional measures; 2) it has “called upon” the parties to comply not only with earlier resolutions, but also with additional measures deemed by it necessary or desirable for meeting any changes in the situation; 3) it has “mentioned” possible further action on its part under Chapter VII without, however, citing any specific Article under which it might take such action in the event of failure by the parties to comply with the measures it adopted. The Council has rejected certain proposals for the institution of enforcement measures, whether such proposals explicitly cited a specific Article of Chapter VII or not. See Repertory of United Nations Practice, Vol. II, nn. 81–84 at 377.