New paper: "Resolution 242 Revisited"

|The Volokh Conspiracy |

My short new research paper, Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal, is now available on SSRN. It is forthcoming in the Chicago Journal of International Law (vol. 16), but is still a working paper, so comments, corrections and the like are particularly appreciated.

Here is the abstract:

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 ever. But it's meaning is also the most debated. The resolution famously called for "Withdrawal of Israel armed forces from territories occupied in the recent conflict." The meaning of this provision—in particular, the extent of the required withdrawal—has been contested ever since.

This article presents new evidence on the resolution's meaning—an issue that has gained new relevance amidst current diplomatic efforts for a Security Council resolution that could effectively supersede 242. The article does not engage all the myriad disputes and questions about the resolution, nor aim at a comprehensive evaluation of it. Rather, it adds two important but previously unappreciated dimensions that bear on how 242 should be read.

First, the article examines the meaning of 242's withdrawal provision by comparing it to all other such territorial withdrawal demands issued by the Security Council. It finds that the language of242 differs notably from the other 18 distinct territorial withdrawal demands, all of which explicitly require a complete withdraw from the territory in question. An examination of these resolutions supports the view that 242's unusual wording was a meaningful and substantive drafting choice.

Second, the article examines contemporaneous understandings in the United Nations about the rules concerning territorial. Discussions in the International Law Commission, involving the leading international law jurists of the post-WWII era, demonstrates that it was generally agreed that the U.N. Charter introduced a new prohibition on territorial changes as a result of war, a principle referred to in the preamble of 242. Yet the same discussions also make clear that this rule was understood to have significant limitations and exceptions.

Understanding what 242 does and does not require is particularly relevant now, given efforts afoot to pass a new Security Council resolution that would effectively displace 242, and attempt to undo the balance that 242 took between the competing Israeli and Arab interests. (The timing of the paper is quite coincidental, I have been mulling these materials for some time, and the Palestinians did not coordinate their Security Council initiative with me.)