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The Illegality of the Arab Attack on Israel of October 6, 1973

Published online by Cambridge University Press:  28 March 2017

Eugene V. Rostow
Eugene V. Rostow*
Affiliation:
Law and Public Affairs, Yale University
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Extract

In part II of his article, Destination Embargo of Arab Oil: Its Legality under International Law, Mr. Ibrahim F. I. Shihata defends the legality of the armed attack on Israel launched by many Arab states, with Soviet assistance, on October 6, 1973. “Egypt and Syria,” he writes, “as the states vested with sovereignty, but illegally deprived of actual control, over territories occupied by Israel were … entitled to seek redress for the protection of their territorial integrity. Under the UN system they were probably under the obligation to resort first to peaceful methods. This they have done in vain for more than six years. Egypt, in particular, expressed officially its readiness to enter into a peace agreement with Israel containing all the obligations provided for in Security Council Resolution 242 (1967) as broadly elaborated by the Special Representative of the UN Secretary-General, Ambassador Jarring. In response, Israel defiantly insisted on territorial expansion.” Under these circumstances, he argues, both Egypt and Syria (which had never accepted any version of Security Council Resolution 242 or given any assurances to Ambassador Jarring) had an inherent right of self-help under customary international law, or of self-defense under “a broad reading” of Article 51 of the Charter, in what he asserts was no more than an attempt to recover those territories by force.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 2 , April 1975 , pp. 272 - 289
Copyright
Copyright © American Society of International Law 1975

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References

1 68 AJIL 591, 598-608 (1974), hereafter cited as Shihata.

2 Shihata, 607. It is important to note that Mr. Shihata correctly bases his argument on the only possible legal ground for his claim, the law of Article 51, and the relation between Article 51 and Article 2(4). He does not invoke the theories which seek to justify the international use of force in behalf of “Wars of National Liberation.” Thus Mr. Shihata does not contend that the Arab armed attack of October 6, 1973, was justified in order to vindicate an alleged right of the Arab inhabitants of Palestine to use force internationally in behalf of their claims of self-determination, or pursuant to resolutions of the Arab League viewed as a regional arrangement under Chapter VIII of the Charter. Such arguments would justify the international use of force to destroy a state, and are incompatible with Article 2(4) of the Charter, its most fundamental principle, which assures each state protection against the threat or use of force against its territorial integrity or political independence, “or in any other manner inconsistent with the Purposes of the United Nations.” The theory of such “Wars of National Liberation” has been consistently rejected by every authoritative process of international decisionmaking on many occasions since 1945.

The argument for a right to wage war internationally in behalf of the right of peoples to self-determination under Article 1(2) of the Charter was made by Yasir Arafat in his speech before the General Assembly on November 13, 1974. Mr. Arafat asserted that the Palestine Mandate and all the decisions and other resolutions of the Security Council flowing from it are null and void, and that the existence of Israel in parts of the territory of the Palestine Mandate is therefore a deprivation of the rights of the Palestinian people to self-determination—a standing “armed attack” against those “rights.” For this reason, he claimed a right to use force internationally to achieve a single unified state in the entire territory of Palestine. (In international law and international relations, the word “Palestine” can only mean the territory of the Palestine Mandate, which remained under British Administration until the end of the League, and the establishment of Transjordan and Israel as separate states.) New York Times, Nov. 14, 1974, at 22-23. On the status of these contentions in international law, see Rostow, , Book Review, 82 Yale L. J. 829, 842-55 (1973)Google Scholar; Wright, Q. and Khadduri, M., The Palestine Conflict in International Law, in Khadduri, M., ed., Major Middle Eastern Problems in International Law 25-26 (1972)Google Scholar: “The recognition of a distinctive people, whether within a colony or the home territory of a state, or scattered throughout the world, is inconsistent with the rights of the state within whose territory they live. Such recognition involves political and legal change but, in accord with the Charter, must not involve the use of force by outside states.” The General Assembly resolution defining aggression (UN Doc. A/RES 3314 (XXIX), Dec. 14, 1974) fully accepts the view that rights of self-determination can be vindicated only by methods which are in conformity with the Charter. Art. 7, Art. 3(f) and (g) For full text, see Official Documents section, infra p. 480.

3 Shihata, 607-08. Mr. Shihata makes two inconsistent arguments on this point: (1) that the continued occupation by Israel of the territories it conquered in 1967 (in the course of exercising its own right of self-defense) is an “armed attack” for purposes of Article 51; and (2) that Article 51 is not in any event relevant, since Egypt and Syria should be deemed to have a right to use force to regain those territories, as an essential aspect of their right to territorial integrity. “Without such a right,” Mr. Shihata says, “state jurisdiction, let alone sovereignty, would be nothing but a sham.” Id., at 608.

I am unable to detect the difference between Mr. Shihata’s two arguments in the perspective of the Charter, which authorizes states to use force internationally by their own unilateral decision only in cases of individual or collective self-defense, or in circumstances which do not constitute a breach of Article 2 (4), i.e., humanitarian interventions, and interventions to assist a state in repressing a rebellion, an attempt at secession, or a rebellion supported from abroad. The Biafran case is the paradigm of the latter class: there Soviet, British, and Egyptian assistance to Nigeria was treated as obviously lawful, while any attempt to assist the Biafrans, asserting their “right” of national self-determination as a people, was treated as a violation of Article 2 (4). See Rostow, supra, note 2. Thus each of Mr. Shihata’s alternative arguments turns on the legality of Israel’s presence in the disputed territory as the occupying power.

4 On the history of the Caroline episode, see 2 Moore, J. B., Digest of International Law 409-14 (1906)Google Scholar; 11 Whiteman, M., Digest of International Law 211-36 (1968)Google Scholar; for the Alabama arbitration, Papers Relating to The Treaty of Washington (1872-1873) 5 vols.; Corfu Channel Case, [1949] ICJ Rep. 4. See Brownlie, I., International Law and the Use of Force by States Ch. 12-13 (1963)CrossRefGoogle Scholar; Bowett, D. W., Self-Defence in International Law (1958)Google Scholar; McDougal, M. and Feliciano, F., Law and Minimum World Public Order ch. 2-3 (1961)Google Scholar.

5 See infra, p. 283 et seq.

6 Between November, 1967, and January 20, 1969, Egypt refused every proposal for a negotiating procedure that might permit the parties to carry out Resolution 242. Those involving Ambassador Jarring are reported by the Secretary-General on the activities of the Special Representatives to the Middle East, UN Doc. S/10070, Jan. 4, 1971, Security Council Official Records (SCOR), Supp. for January, February, and March, 1971, at 18 (1972) [hereafter referred to as the Secretary-General’s Report]. There were many others. In the fall of 1968, the United States offered to support the terms Egypt professed to want as the price for peace, the return of the whole of the Sinai in accordance with an agreed timetable. The offer was rejected by the Egyptian Foreign Minister at the time, Mahmoud Riad. I am satisfied that the Egyptian official position on making peace, save for the abortive Jarring proposal of February 8, 1971, on which Mr. Shihata relies (discussed infra, at p. 285), remained the same until October 6, 1973.

7 The texts of the two resolutions are as follows:

Resolution 242 (1967)

The Security Council,

Expressing its continuing concern with the grave situation in the Middle East,

Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,

  • 1.

    1. Affirms that the fulfillment 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)

      (i) Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

    • (ii)

      (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;

  • 2.

    2. Affirms further the necessity

    • (a)

      (a) For guaranteeing freedom of navigation through international waterways in the area;

    • (b)

      (b) For achieving a just settlement of the refugee problem;

    • (c)

      (c) For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;

  • 3.

    3. Requests the Secretary-General to designate 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 in accordance with the provisions and principles in this resolution;

  • 4.

    4. Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.

Resolution 338 (1973)

The Security Council,

  • 1.

    1. Calls upon all parties to the present fighting to cease all firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this decision, in the positions they now occupy;

  • 2.

    2. Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts;

  • 3.

    3. Decides that, immediately and concurrently with the cease-fire, negotiations shall start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East.

That the “just and durable peace” required by Resolution 338 is to be negotiated in accordance with the princples and provisions of Resolution 242, see Secretary of State Kissinger, Statement before the Geneva Conference, Dec. 21, 1973, 70 Dept. State Bull. 21, 23 (1974); News Conference of Nov. 21, 1973, 69 Dept. State Bull. 701, 709 (1973).

8 See Rostow, , Legal Aspects of the Search for Peace in the Middle East [1970] Proc. ASIL, 64 AJIL (No. 4 ) 64;Google Scholar Book Review, 67 AJIL 808, 809 (1973)Google Scholar; America, Europe, and the Middle East, 57 Commentary 40, 52-54 (1974)Google Scholar; Lall, , The UN and the Middle East Crisis, 1967, ch. 13-15 (1968)Google Scholar; Rafael, G., UN Resolution 242: A Common Denominator, The New Middle East (June, 1973) 26 Google Scholar; Stone, J., No Peace—No War in the Middle East (1969)Google Scholar; The Cease Fire of 1967: The Legal Framework, 3 The Bridge 3 (Sydney, Australia, October, 1967)Google Scholar; The “November Resolution” and Middle East Peace: Pitfall or Guidepost, 3 Toledo L. Rev. 43 (1971)Google Scholar.

The late Professor Quincy Wright also ignored this feature of Resolution 242 in his writing on the subject. See Wright, , The Middle Eastern Crisis [1970] Proc. ASIL, 64 AJIL (No. 4) 71, 73, 78-87 Google Scholar, and Wright and Khadduri, supra, note 2, 27-36.

9 Shihata, 599.

10 GA Res. 2625, 25 UN GAOR SUPP. 28, at 122, UN Doc. A/8082 (1970). See Rusk, , The 25th UN General Assembly and the Use of Force, Symposium, Legal Regulation of the Use of Force, 2 Georgia J. Int. and Comp. Law 19, 25 (Supp. 1, 1972)Google Scholar: “The Declaration on Friendly Relations appears to say that, whatever the issues between the parties in the divided states, in Kashmir, the Middle East or other places where demarcation and armistice lines are not settled international boundaries, those issues are not to be settled by the threat or use of force.” The Declaration on Friendly Relations is reaffirmed in the resolution defining aggression, supra, note 2, which characterizes military occupation as illegal only when undertaken “in contravention of the Charter,” i.e., when it is not justified under Article 51, or by the Security Council.

11 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, supra note 10, at 123. One should add that under Article 2(4) of the Charter, and the customary international law which is its matrix, the duty of states is broader than that stated in the Declaration: it is one of nearly absolute responsibility for the international use of force from its territory. See note 4, supra.

Articles 3(f) and (g) of the General Assembly’s resolution defining aggression, supra, note 2, characterize such illegal uses of force as “aggression” if the Security Council finds them to be of sufficient gravity.

12 Martin, P. M., Le Conflit Israelo-Arabe, ch. 7 (1973)Google Scholar.

13 E.g., SC Res. 54 (1948), July 15, 1948, para. 8; SC Res. 61 (1948), Nov. 4, 1948; SC Res. 62 (1948), Nov. 16, 1948; SC Doc. S/1152, SCOR, 3rd year Supp. for December, 1948, at 300; SC Res. 73 (1949), Aug. 11, 1949; SC Res. 89 (1950), Nov. 17, 1950; SC Res. 93 (1951), May 18, 1951.

14 S C Res. 95 (1951), Sept. 1, 1951, 10 SCOR, 688th meeting, paras. 98-102, at 20; SC Res. 118 (1956), Oct. 13, 1956, 11 SCOR, 743d meeting, 18. See Wright, Q., Legal Aspects of the Middle East Situation, 33 L. and Contemp. Prob. 5, 20-22 (1968)CrossRefGoogle Scholar; United States Reply to the Arab States Representations concerning the Suez Canal and the Gulf of Aqaba, June 27, 1957, in United States Senate, Committee on Foreign Relations, 91st Cong., 1st Sess., A Select Chronology and Background Documents Relating to the Middle East 179-82 (1st rev. ed., 1969). Professor Khadduri agrees that only the claim of belligerent rights could justify the closing of the Suez Canal or the Strait of Tiran to Israeli shipping—a claim rejected by the Security Council. Closure of the Suez Canal to Israeli Shipping, 33 L. and Contemp. Prob. 147, 154-55 (1968).

15 The text appears in Alexander, Y. and Kittrie, N., Crescent and Star, 427-29 (1973)Google Scholar.

16 The full story of this negotiation and its outcome has not yet been published. One aspect of the understanding was officially disclosed in Rostow, , The Middle East Crisis and Beyond, 59 Dept. State Bull. 41, 45 (1968)Google Scholar:

Egypt’s announcement that it would use force to close the strait had another set of consequences. In 1957 the United States had taken the lead in negotiating the withdrawal of Israeli troops from Sharm-al-Sheikh and the Sinai as a whole. At that time Israel made it clear that if force were used to close the strait, it would regard itself justified in responding with force as an act of self-defense authorized under article 51 of the United Nations Charter. This carefully considered formal statement was noted at the time as part of the process of settlement. The international understanding was that the Strait of Tiran would be kept open as an international waterway. The United Arab Republic, it is true, never took formal responsibility for this understanding, as it refused to recognize Israel or to deal directly with her. But in every other sense Egypt was a party to and beneficiary of this arrangement, through which Israeli withdrawal had been secured.

See also Rostow, , Law, Power, and the Pursuit of Peace 78 (1968)Google Scholar (also officially cleared); Ben-Gurion, D., Israel: A Personal History 522-36 (1971)Google Scholar; Rostow, supra, note 8; Finer, H., Dulles over Suez, ch. 16-18 (1964)Google Scholar; Draper, T., Israel and World Politics: Roots of the Third Arab-Israeli War 19-22 (1968)Google Scholar; Q. Wright, supra, note 8, at 72. The fullest treatment thus far is Rostow, C. N., Diplomatic Patchwork: The United States and the Settlement at Suez, 1956-1957 (unpublished student essay, 1972, on deposit at the Yale University Library)Google Scholar.

17 See Yost, , How the Arab-Israeli War Began, 46 Foreign Affairs 304 (1968)Google Scholar; Safran, N., From War to War, ch. 6 (1969)Google Scholar.

18 56 Dept. State Bull. 949 (1967).

19 Draft resolutions were introduced by India, Mali, and Nigeria, UN Doc. S/8227, Nov. 7; the United States, UN Doc. S/8229, Nov. 7; the United Kingdom, UN Doc. S/8247, Nov. 16; the USSR, UN Doc. S/8253, Nov. 20. The Soviet draft resolution called for die simultaneous (1) withdrawal of Israeli forces to the lines of June 5, 1967, and (2) recognition by all states members of the United Nations in the area that each such state has a right to exist in peace and security under the Charter, and renunciation of all claims inconsistent therewith. 22 SCOR, 1381st meeting, Nov. 20, 1967, at 2. The other drafts were also based on the principle of linking withdrawal and peace.

20 See Goldberg, , United Nations Security Council Resolution 242 and the Prospects for Peace in the Middle East, 12 Colum. J. Transnational L. 187, 192 (1973)Google Scholar:

On the second day of the war, June 7, the U.N. Security Council, with the concurrence of Israel and Egypt (Syria later also agreed), unanimously voted a ceasefire. This cease-fire, however, was not conditioned upon the withdrawal of Israeli armed forces. They were, in effect, to stand in place, pending further developments. In U.N. history, this type of cease-fire is virtually unique. Generally, when a conflict breaks out, it is almost “boiler plate” for the United Nations to adopt a cease-fire resolution embracing withdrawal of the contending forces to the positions they occupied before the conflict.

Ambassador Tomeh, speaking for Syria, criticized the British draft, adopted as Resolution 242, because it provided no time limit for withdrawals, and because it made Israeli withdrawal subject to “conditions amounting to the liquidation of the whole Palestine question.” 22 SCOR, 1382nd meeting, Nov. 22, 1967, at 2. No one disputed his view.

21 22 SCOR, 1379th meeting 2 (1967). Earlier Lord Caradon had stated:

37. The Arab countries insist that we must direct our special attention to the recovery and restoration of their territories. The issue of withdrawal is to them of top priority. The Arabs want not charity but justice. They seek a just settlement to end the long and bitter suffering of the refugees. There is a recognition on all sides that a new, comprehensive, imaginative plan, as we have advocated, to deal with this desperately urgent problem is essential.

38. The Israelis tell us that withdrawal must never be to the old precarious truce. It must be to a permanent peace, to secure boundaries, to a new era of freedom from the use or the threat or the fear of hostility and force.

39. Both are right. The aims of the two sides do not conflict. They converge. They supplement and they support each other. To imagine that one can be secured without the other is a delusion. They are of equal validity and equal necessity. The recent consultations which have been going forward so energetically and continuously strongly reinforce my conviction that we in this Council now have a supreme opportunity to serve the interests of all those concerned. Every day it is more clear what should be done. Every day it is more apparent that we are not dealing with conflicting interests but with complementary interests. Justice and peace are not in conflict; they are inseparable as they are indispensable. One must go hand in hand with the other.

22-SCOR, 1377th meeting 4-5 (1967). See also id., 1381st meeting 4-5.

Ambassador Adebo of Nigeria said that under the resolution withdrawal “should take place in a context in which all the countries in the area, including Israel and all the Arab states, can feel and enjoy a sense of security. We therefore subscribe very heartily to what Lord Caradon said when he stated that the Resolution must be taken as a whole.” Id., 1382nd meeting, 8-9; Ambassador Ruda of Argentina commented that the road towards peace required “mutual concessions . . . this means the withdrawal of troops from the occupied areas on the one hand and the cessation of belligerency on the other . . . [P]eace could not be brought about by withdrawal pure and simple, but . . . such a step must of necessity be accompanied by measures assuring peace and security.” Id., 15-16.

22 62 Dept. State Bull. 218-19 (1970). See also Rostow, supra note 17, at 81:

The essential idea of the President’s statement [closely followed in Security Council Resolution 242] is that the continuation of claims of a right to wage war against Israel have become a burden to world peace. It is therefore a world responsibility, and a responsibility of the parties, to achieve an end to such claims— a condition of peace in the area. It should be a fair and dignified peace reached by the parties, not one imposed by conquest, or by the Great Powers. It should recognize each nation’s right to live, and to live in security. And it should rest on the principle of the territorial integrity and political independence of all the nations of the area.

On the basis of such a peace, the other principal features of the Arab-Israeli controversy should be resolved by the parties through any procedure on which they can agree. Israeli forces should or course withdraw to agreed and secure boundaries, which should replace the fragile armistice lines of 1948 and 1949. Those armistice agreements expressly contemplated boundary adjustments when they were superseded by arrangements of peace.

23 42 UNTS 303, No. 656 (1949) (with Jordan); id., 327, No. 657 (1949) (with Syria); id., 251, No. 654 (1949) (with Egypt); id., 287, No. 655 (1949) with Lebanon.

24 Resolution 181(11) Nov. 29, 1947, GAOR, 2nd Sess. Resolutions, 31-50 (1947).

25 Rostow, America, Europe, and the Middle East, supra note 8, at 50.

26 Shihata, 604.

27 Geobge-Brown, , In My Way at 226-27 (1971, Pelican, ed., 1972)Google Scholar:

This resolution set out in a most carefully .balanced way what the Israelis and the Arabs would have to do to secure both peace in the Middle East and recognition of the State of Israel. I have been pressed many times to spell out exactly what the resolution meant, but I’ve always refused to go farther than what it says. It declares “the inadmissibility of the acquisition of territory by war” and it also affirms the necessity “for guaranteeing the territorial inviolability and political independence of every state in the area.” It calls for “withdrawal of Israeli armed forces from territories occupied in the recent conflict” and also for “termination of all claims or states of belligerency.”

It does not call for Israeli withdrawal from “the” territories recently occupied, nor does it use the word “all”. It would have been impossible to get the resolution through if either of these words had been included, but it does set out the lines on which negotiations for a settlement must take place. Each side must be prepared to give up something: the resolution doesn’t attempt to say precisely what, because that is what negotiations for a peace-treaty must be about. However unpromising it may look, the fact of the matter is that Resolution 242 is the only basis on which negotiations for a peace-treaty can ever be started. It is both interesting and important that, whatever is said by anybody, the one thing on which all parties are agreed is that they still claim to accept Resolution 242.

28 Speech of Sept. 10, 1968, 59 Dept. State Bull. 345, 348 (1968). President Johnson also said: “We are not the ones to say where other nations should draw lines between them that will assure each the greatest security. It is clear, however, that a return to the situation of June 4, 1967, will not bring peace. There must be secure and there must be recognized borders. Some such lines must be agreed to by the neighbors involved as part of the transition from armistice to peace.” See also speech of Secretary of State Rogers, Dec. 9, 1969, 62 Dept. State Bull. 7 (1970). This is still the policy of the United States. Secretary of State Kissinger, News Conference, supra, note 7, at 714-15. See testimony of J. L. Hargrove, Senior Adviser on International Law to the United States Mission to the United Nations, 1967-1970:

The provision of Resolution 242 which bears most directly on the question which you raised. Congressman, is subparagraph (1) of paragraph 1 of the resolution, which envisages “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”

The language “from territories” was regarded at the time of the adoption of the resolution as of high consequence because the proposal put forward by those espousing the Egyptian case was withdrawal from “the territories.” In the somewhat minute debate which frequently characterizes the period before the adoption of a United Nations resolution, the article “the” was regarded of considerable significance because its inclusion would seem to imply withdrawal from all territories which Israel had not occupied prior to the June war, but was at the present time occupying.

Consequently the omission of “the” was intended on our part, as I understood it at the time, and was understood on all sides, to leave open the possibility of modifications in the lines which were occupied as of June 4, 1967, in the final settlement.

Hearings on the Middle East before the Subcomm. of the House Comm. on Foreign Affairs, 92nd Cong., 1st Sess. 187 (1971). See also Blum, Y., Secure Boundaries and Middle East Peace (1971)Google Scholar.

29 22 SCOR, 1382nd meeting, Nov. 22, 1967. at 16. Statements by the Rt. Hon. Michael Stewart, H.C. (5th ser.) 791 Parl. Deb. 844-45 and 793 Parl. Deb. 253, 261 (1969). In the debate on the adoption of Resolution 242 Ambassador DeCarvalho Suva of Brazil remarked that the acceptance of the resolution “does not imply that borderlines cannot be rectified as a result of an agreement freely concluded among the interested states.” 22 SCOR, 1382nd meeting 13 (1969).

30 Shihata, 604, note 70.

31 New York Times, Nov. 21, 1974, at 4, col. 1. Ambassador Berard, the French Representative at the United Nations, had confirmed this view of the French text in the Security Council at the time Resolution 242 was adopted (22 SCOR, 1382nd meeting, Nov. 22, 1967, at 12), when he said that the phrase “des territoires occupés” indisputably corresponds to the English expression “occupied territories.”

32 UN Doc. S/10929, May 18, 1973, at para. 46, Annex II.

Among the many unresolved mysteries of Middle Eastern diplomacy during the last seven years is why Ambassador Jarring never called a conference of the parties, or separate bilateral conferences of Israel with each of the other parties, to carry out the agreement announced by the Secretary-General of the United Nations on August 7, 1970, after the Government of Egypt had agreed to the proposals advanced by Secretary of State Rogers for ending Egypt’s “war of attrition.” Note by the Secretary- General on the Jarring Mission for the information of the Security Council, UN Doc. S/9902, Aug. 7, 1970. Ambassador Jarring had written to the Secretary-General:

The United Arab Republic, Jordan and Israel advise me that they agree:

(A) that having accepted and indicated their willingness to carry out resolution 242 in all its parts, they will designate representatives to discussions to be held under my auspices, according to such procedure and at such places and times as I may recommend, taking into account as appropriate each side’s preference as to method of procedure and previous experience between the parties.

(B) that the purpose of the aforementioned discussions is to reach agreement on the establishment of a just and lasting peace between them based on (1) mutual acknowledgement by t he United Arab Republic, Jordan and Israel of each other’s sovereignty, territorial integrity and political independence, and ( 2 ) Israeli withdrawal from territories occupied in the 1967 conflict, both in accordance with resolution 242.

The Secretary-General correctly characterized the agreement as “an important step forward in the search for peace in the Middle East.”

33 See, Hall, D., Mandates, Dependencies and Trusteeships (1948)Google Scholar; Stoyanovsky, J., The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (1928)Google Scholar; United States Department of State, Division of Near Eastern Affairs, Mandate for Palestine (1927); United States Department of State, Near Eastern Series No. 1, Mandate for Palestine (1931); Zasloff, J., Great Britain and Palestine: A Study of the Problem Before the United Nations (1952)Google Scholar.

34 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 [1970], Advisory Opinion, ICJ Rep. 1971, at 16. See also, Higgins, , The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter? 21 Int. & Comp. L.Q. 270 (1972)Google Scholar. The more controversial aspects of the court’s Namibia judgment do not arise in connection with Security Council Resolution 338, which is addressed to a problem under Article 39, and is therefore binding under Article 25, according to all the authorities.

35 See note 15, supra.

36 Shihata, 606.

37 The documents are conveniently collected in 2 Higgins, R., United Nations Peacekeeping, 1946-1967 at 151-72 (1970)Google Scholar.

38 Id., at 159-60.

39 See Shihata, 601, note 52, and UN Doc. A/RES/3236 (XXIX), Nov. 23, 1974.

40 Rostow, The Role of International Law in International Politics, an address before the Twentieth Anniversary Meeting of the Atlantic Treaty Association, The Hague, June 21, 1974, reprinted in 12 The Atlantic Community Q. 500 (Winter 1974-75).