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Journal of Palestine Studies Volume 4, 1974 - Issue 1
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ARTICLES

The Territorial Question and the October War

Ibrahim F. I. Shihata Ibrahim F.I. Shihata is Legal Adviser of the Kuwait Fund for Arab Economic Development, and Professor of International Law at Ain-Shams University in Cairo.
Pages 43-54 | Published online: 04 Feb 2021

  • Occupied Jordanian territory and the Gaza Strip are excluded from discussion only because of their irrelevance to the topic of this essay.
  • The shaky arguments presented in L.M. Bloomfield, Egypt, Israel and the Gulf of Aqaba in International Law (Toronto, 1957), and reproduced in J. Stone, The Middle East Under Cease Fire (Sydney, 1967), p. 13 and in Y.Z. Blum, Secure Boundaries and Middle East Peace (Jerusalem, 1971), p. 8, disputing the long established Egyptian title over Sinai, were wisely not quoted by responsible Israeli officials.
  • See, e.g., Israel's statement, dated April 2, 1969, on its conception of secure and recognized boundaries in answer to Question No. 5 submitted by the UN Secretary General's Special Representative, Ambassador Jarring, in UN Doc. S/10070, Annex 1, p. 6; and its statement dated February 26, 1971 in response to Ambassador Jarring's proposal of withdrawal of Israeli forces beyond the international boundaries of Egypt in UN Doc. S/10070, Add. 2, p. 4. See also Blum, op. cit., pp. 63–70.
  • See Lord McNair, Legal Effects of War (3rd ed., London, 1958), p. 320, where this doctrine is described as “the most important principle of law incident to belligerent occupation.” See also Castren, The Present Law of War and Neutrality (Helsinki, 1954), pp. 215–16; Debbasch, L'Occupation Militaire (1962), p. 10.
  • See the first principle in the UN General Assembly Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States, GAOR, 25th sess., Suppl. No. 28 (A/8028), Resolution No. 2625, October 24,1970. See also, e.g., I. Brownlie, International Law and the Use of Force by States (Oxford, 1963), pp. 410–23; R.Y. Jennings, The Acquisition of Territory in International Law (Manchester, 1963); Garner, “Non-Recognition of Illegal Territorial Annexation and Claims to Sovereignty,” American Journal of International Law XXX (1936), pp. 679–88. For international documents establishing the principle, see M. Whiteman, Digest of International Law (Washington, 1965), Vol. V, pp. 847-965.
  • For a discussion and refutation of other minor arguments such as alleged “acquisitive prescription” or “general recognition” see Q. Wright, The Middle East-. Prospects for Peace (New York, 1969) pp. 22–23. The argument that international practice knows precedents for annexation of territories for the purpose of guaranteeing the security of certain states, presented in particular by Blum, op. cit., pp. 24–45, simply ignores the development of international law under the UN system.
  • See, e.g., R. Higgins, “The June War, the UN and Legal Background,” Journal of Contemporary History III (1968), p. 271; Stone, No Peace-No War in the Middle East (Sydney, 1969), pp. 39–40; Elihu Lauterpacht, Jerusalem and the Holy Places, Anglo-Israeli Association, Pamphlet No. 19 (London, 1968), p. 46; S. Schwebel, “What Weight to Conquest?” American Journal of International Law LXIV, 2 (April 1970), pp. 344–47, Shapira, “The Six Day War and the Right of Self Defence,” Israel Law Review VI, 1 (January 1971), pp. 65–80; Martin, Le Conflit Israélo-Arabe (1973), pp. 153–170.
  • Martin, op. cit, p. 165; Y. Dinstein, “The Legal Issues of Para-War and Peace in the Middle East,” St. John's Law Review, XLIV (1969-70), p. 466.
  • Schwebel, op. cit., p. 346. For the refutation of the doctrine of anticipatory self-defence, see Oppenheim, International Law, Vol. II (H. Latterpacht, ed., 7th ed., 1952), p. 156; Kelsen, The Law of the United Nations (New York, 1950), pp. 269, 787–89; Jessup, A Modern Law of Nations (New York, 1948), pp. 65–68; I. Brownlie, op. cit., p. 278; Brownlie, “The Use of Force in Self Defence,” British Yearbook of International Law XXVIII (1961), pp. 232–47. Compare Schwebel, “Aggression, Intervention and Self-Defence in Modern International Law,” Recueil des Cours II (1972), pp. 413, 478–83. See also an early insistence, on another occasion, by Israel's representative to the UN on the argument that self-defence presupposes an actual armed attack, in UN Security Council, Official Records, 6th Year, 551st Meeting, p. 10.
  • Dinstein, op. cit., pp. 466,468-70.
  • Schwebel, note 9 above, pp. 345–46.
  • E. Lauterpacht, op. cit., p. 52, Martin, op. cit., p. 263. And see Meyrowitz, Le Principe de l'Egalité des Belligérants devant le Droit de la Guerre (Paris, 1970), pp. 296 ff.
  • For these developments see Report of the Secretary-General [of the UN] Presented Pursuant to Security Council Resolution 331 (1973), April 20, 1973, in UN Doc. S/10929 dated May 10, 1973.
  • See Report by the Secretary-General of the United Nations on the Question of Defining Aggression submitted to the General Assembly pursuant to its Resolution 599 (VI), January 21, 1952, in GAOR, 7th Sess., Annex, Agenda Item 54, UN Doc. A/2211, October 3, 1952, pp. 1786. And see M. Whiteman, op. cit., pp. 719–873; Wright, “The Concept of Aggression in International Law,” American Journal of International Law XXIX, 3 (July 1935), p. 873.
  • Wright, “Legal Aspects of the Middle East Situation,” op. cit., p. 27.
  • Wright, ibid., p. 24. See also, Falk, “Quincy Wright on Legal Tests of Aggressive War,” American Journal of International Law LXVI, 3 (July 1972), pp. 560, 566. See also R. Jennings, op. cit., pp. 52–67.
  • See Security Council Res. No. 242, November 22, 1967, UN Security Council Official Records, 22nd Year, Resolutions and Decisions, p. 8.
  • See UNGA Res. 2628 (XXV), November 4, 1970, GAOR, 24th Sess., Suppl. No. 28 (A/8028), p. 5; Res. 2799 (XXVI), December 13, 1971, ibid., 26th Sess., Suppl. No. 29 (A/ 8429), p. 82; Res. 2949 (XXVII), December 8, 1972, ibid., 27th Sess., A/4548, Part I, p. 24. In the three above resolutions the illegality of occupation is properly considered a corollary of the illegality of annexation, as “the acquisition of territories by force is inadmissible and…. consequently territories thus occupied must be restored.”
  • See UN Security Council Res. 252, May 21, 1968, UN Security Council Official Records, 23rd Year, Resolutions and Decisions, pp. 8–12; Res. 267, July 3, 1969, ibid., 24th Year, p. 4; Res. 271 dated September 15, 1969, ibid., p. 5; Res. 298 dated September 25, 1971, ibid., 26th year, p. 6.
  • UNGA Res. 2625 (XXV), October 24, 1970, GAOR, 25th Sess., Supp. No. 28, pp. 122–24 (A/8028).
  • UNGA Res. 2734 (XXV) dated December 16, 1970, ibid., pp. 22–24.
  • Referred to in note 19 above.
  • See the General Armistice Agreement between Israel and Egypt, February 24, 1949 (Article IV [3]), 42 UNTS 251; between Israel and Lebanon, March 23, 1949, ibid., p. 287; between Israel and Jordan, April 3, 1949 (Article II [2]), ibid., p. 303; and between Israel and Syria, July 20, 1949 (Article II [2]), ibid., p. 327.
  • Blum, op. cit., p. 23. See also Martin, op. cit., pp. 280–81.
  • See, e.g., statements of Israel's Permanent Representative to the UN before the Security Council during the discussion of Israel's complaint concerning passage through the Suez Canal, UN Security Council Official Records, 6th Year, 549th Meeting, pp. 2–7 (July 23, 1951). See also generally Feinberg, The Legality of a State of War after Cessation of Hostilities (Jerusalem, 1961), p. 36.
  • Resolution 181 (II), November 29, 1947, GAOR, 2nd Sess., Resolutions, UN Doc. A/519, pp. 31–50.
  • Wright, “The Middle East Problem,” op. cit., pp. 270, 277.
  • See, e.g., UN Doc. A/AC. 24/SR, pp. 45–48, 50–51 (May 5, 1949), as well as the earlier and more explicit statements of Israeli representatives in UN, GAOR (1948), Pt. 1,1st Comm., pp. 640–43, 644–45, 832, 840–42.
  • See, UN, GAOR, Ad-hoc Political Committee, Annex, vol. II, UN Doc. A/927, June 21, 1949, pp. 5, 8–9.
  • Ibid.
  • Ibid., Suppl. 18, UN Doc. A/1367/Rev. 1 (1950), pp. 3–4, 19–21.
  • Res. No. 242 dated November 22, 1967, UN Doc. S/PV 1382, p. 36; UN Security Council Official Records, 22nd Year, Resolutions and Decisions, p. 8.
  • E.g., Blum, op.cit., p. 63; Dinstein, op.cit., p. 447; Shapira, op.cit., pp. 235, 236; Rosenne, “Directions for a Middle East Settlement — Some Underlying Legal Problems,” Law and Contemporary Problems XXX.III (1968), pp. 44, 57; Lapidoth, “La Résolution du Conseil de Sécurité en date du 22 Novembre 1967 au sujet du Moyen Orient,” Revue Générale du Droit International Public LXXIV (1970), pp. 289, 292–94.
  • S/Res./338 adopted by the Council in its 1747th Session, October 21/22, 1973. Paragraph 2 reads: “[The Security Council] calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council Resolution 242 in all of its parts.”
  • E.g., Blum, op. cit., pp. 72–79; Lapidoth, op. cit, pp. 300–301; Rosenne, op.cit., p. 60. See also Stone, “The November Resolution and the Middle East Peace: Pitfall or Guide Post?” The University of Toledo Law Review (A Collection of Essays in Honor of Joseph L. Kunz) (1970); E.V. Rostow, “Legal Aspects of the Search for Peace in the Middle East,” Proceedings of the American Society of International Law LXIV, 4 (September 1970), pp. 64, 69.
  • See, e.g., the French text: “Retrait des forces armées israéliennes des territoires occupés lors du recent conflit”; and the Spanish text “Retiro des las fuerzas armadas israelis de los territorios que ocuparon durente el reciento conflicto.” Since the English text does not mean partial withdrawal, there is no room for the argument that in case of conflict between the texts in different languages the one which was submitted to the vote prevails, or for the argument advanced by Martin, op. cit., p. 256, that partial withdrawal is the common meaning in all texts.
  • See Resolutions referred to in note 18 above.
  • For a detailed account see Lall, The UN and the Middle East Crisis, 1967 (New York, 1968), pp. 230–73.
  • Text of Address of Mr. William Rogers, December 9, 1968, US Mission to the UN, Press Release 371, December 9, 1969; New York Times, December 11, 1969. Mr. Rogers indicated that only “insubstantial alterations” may be introduced to ensure mutual security. Such alterations would be based, however, on the acceptance of the parties, not merely on the language of the Security Council Resolution. See also, Wright, “Legal Aspects of the Middle East Situation,” op. cit., p. 24; Wright, “The Middle East Problem,” op. cit., pp. 274–76; Falk, “The Beirut Raid and the International Law of Retaliation,” American Journal of International Law LXIII, 3 (July 1963), pp. 415, 435.
  • Wright, “The Middle Eastern Crisis,” Proceedings of the American Society of International Law (September 1970), pp. 71, 78.
  • The history of Resolution 242 further confirms this truth. The phrase “secure and recognized boundaries” was taken in the British draft from the earlier US draft submitted to the Security Council on November 7, 1967 (UN Doc. S/8229). Security in boundaries was envisaged by the sponsors of the latter draft as a condition in the arrangements to be adopted, not in the geographic location, as is evident in the draft resolution submitted by the US on June 20, 1967 to the General Assembly (UN Doc. A/L 520). According to the last draft the proposed settlement was thus to include “recognized boundaries and other arrangements that will give them security against terror, destruction and war” (emphasis added).
  • See, e.g., Blum, op. cit., p. 84; Rosenne, op. cit., p. 59; Lapidoth, op. cit., pp. 295–96.
  • See Resolutions referred to in notes 18, 20, 21, above.
  • Resolution 2628 (XXV) : Resolution 2799 (XXVI) and Resolution 2949 (XXVII) referred to in note 18 above.
  • Compare Article 52 of the Vienna Convention on the Law of Treaties opened for signature from May 23, 1969 until November 30, 1969 (UN Doc., A/CONF. 39/27, May 23, 1969). And see Oppenheim, International Law, op. cit., Vol. I, pp. 891-92; McNair, The Law of Treaties, op.cit., pp. 213–17; H. Lauterpacht, Recognition in International Law (Cambridge, 1947), pp. 426, 429.
  • Compare Article 53 of the Vienna Convention, supra. And see McNair, op. cit., pp. 21317; Brownlie, Principles of Public International Law (Oxford, 1966), pp. 417–18; Verdross, “Jus Dispositivum and Jus Cogens in International Law,” American Journal of International Law LX, 1 (January 1966), pp. 55, 60.
  • See in particular Article 2 (4) of the UN Charter and Principle 1 of the above mentioned Declaration, Res. No. 2625 (XXV), Annex.
  • See Aide-Mémoire Presented to Ambassador Jarring by the United Arab Republic (now the Arab Republic of Egypt) on 15 February 1971, UN Doc. S/10929, Annex III, pp. 1–2.
  • See Aide-Mémoire Presented to Israel and the United Arab Republic by Ambassador Jarring on 8 February 1971, ibid., Annex II, pp. 1–2.
  • See Communication Presented to Ambassador Jarring by Israel on 26 February 1971, ibid., Annex IV, pp. 1–2. In item 4 of that communication it is bluntly stated that “Israel will not withdraw to the pre-5 June 1967 lines.”
  • See, e.g., Lillich, “Forcible Self-Help under International Law,” Naval War College Review XXII (1970), p. 56, where he refers also to a lecture given by Professor McDougal in 1968 in which he came to the conclusion that “in the absence of collective machinery to protect people against attack and deprivation … the principle of major purposes requires an interpretation which would honour self-help against a prior unlawfulness,” ibid., p. 65.
  • That is, a reading which considers a continued forcible occupation following an armed intervention a prolonged “armed attack” under Article 51 of the Charter.
  • Using the above argument in what is submitted to be the wrong context, Professor Lauterpacht adds: “For if force can never be used to effect lawful territorial change, then, if territory has once changed hands as a result of an unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign.” E. Lauterpacht, Jerusalem and the Holy Places, op. cit., p. 52.

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