Academic journal article Chicago Journal of International Law

Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal

Academic journal article Chicago Journal of International Law

Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal

Article excerpt

Table of Contents

I. Introduction.............................................................................................................129

II. Parallel Language as an Interpretive Tool.........................................................132

III. Evidence from Prior and Subsequent Security Council Resolution Withdrawal Provisions.......134

A. Pre-1967 Territorial Withdrawal Provisions............135

B. Post-1967 Territorial Withdrawal Resolutions...........136

IV. "Inadmissibility of the Acquisition of Territory"........138

A. The Work of the International Law Commission.........141

B. The Relevance of Post-War Border Changes...........144

C. The Views of Publicists Pre-1967.........146

D. Drafting the Declaration on Friendly Relations, 1966-1970.........147

V. Conclusion..........149

I. Introduction

United Nations Security Council Resolution 242,' passed in November 1967 in the wake of the Six-Day War, is widely regarded as among the most important of all the Council's measures.2 It remains the foundation of the U.N.'s approach to the Arab-Israeli conflict.3 The resolution famously calls for the "[withdrawal of Israel armed forces from territories occupied in the recent conflict." The meaning of this provision has been contested ever since.4

One interpretation holds that Resolution 242 requires a complete Israeli withdrawal from all the territories that came under its control during the Six-Day War. This is consistent with, but not mandated by, a straightforward reading of the language and the French text.5 Proponents of the broad interpretation of the resolution also point to the preamble's reference to the "inadmissibility of the acquisition of territory in war" as corroborating their position.6

Yet the drafting history of the provision tells a different story. The British and U.S. diplomats involved in framing the resolution specifically omitted a "the" before "territories" to leave the extent of the required withdrawal open for future negotiations between Israel and its neighbors.7 Indeed, over several months of deliberations in the Council, the U.K. and U.S. rejected attempts by the Arab-aligned nations to explicitly require withdrawal from "all" or "the" territories.8 The Western states insisted that it would be both unreasonable and unrealistic to require a complete Israeli withdrawal to the 1949 Armistice Lines, which would also entail a complete Israeli abandonment of Jerusalem's holy sites.

The stakes of the "the" debate are high. Resolution 242 is variously cited as both supporting and negating Israeli territorial claims to the Golan Heights and the West Bank.9 Others see it as establishing the general principle that future borders will be based on negotiations, not dogmatic adherence to the 1949 Armistice Lines.10 According to one reading, Israel has been flouting a Security Resolution for nearly five decades. According to the other, Israel has already complied-by relinquishing well over 90% of territory it occupied (the entire Sinai Peninsula, all of Gaza, parts of the West Bank, and small parts of the Golan).11 And so the debate has gone back and forth, with much heat but little new light in the past four decades.

Moreover, as of this writing, significant efforts by the European Union, and potentially the U.S., are aimed at passing a new Security Council resolution "updating" Resolution 242.12 Whether such a resolution merely restates the territorial conclusions of its predecessor or aggressively takes away Israeli entitlements under the compromise of 1967-giving what the U.N. conceded to Israel then to the Arabs today-depends on what was really decided in 1967. If Resolution 242 required a full withdrawal, then a "new peace architecture," 13 even one that would spell out Israel's complete withdrawal from the West Bank in great detail, would not change the fundamental territorial parameters established by the Council in 1967. …

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