The Volokh Conspiracy
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My new article, "Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal" has just been published in volume 16 of the Chicago Journal of International Law, and is available here. 242 may be the Security Council's most famous resolution, yet amazingly, there are entire veins of evidence about its meaning that have remained untapped.
The article happens, fortuitously, to be quite relevant to the drama that will likely unfold in the Security Council this fall. So let me say a few words here about what the evidence developed in the paper suggests about these developments. (When I began working on the article last year, I did not know anything about a potential new Council resolution.)
One thing the paper makes clear is that Res. 242 represented a territorial compromise, with accommodations to Arab and Israel positions. The French resolution—which mandates a withdrawal to the 1949 Armistice Lines—would specifically undo the parts of that compromise that were in Israel's favor, and essentially "reverse" 242, replacing it with the resolution demanded by the U.S.S.R and Arab states in 1967. If the U.S. allows this to happen, it would be a fundamental reversal of 50 years of Middle East diplomacy.
Here is that abstract:
United Nations Security Council Resolution 242, passed in the wake of the Six-Day
War in 1967, is one of the body's most famous decisions. The resolution called for
"[w]ithdrawal 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 Resolution 242's meaning, adding two important but previously unexamined lines of evidence that bear on its interpretation.
It compares the resolution's withdrawal provision to all other such territorial demands issued by the Security Council. The marked difference that emerges between Resolution 242's wording and that of all other such resolutions suggests the former was a meaningful and substantive drafting choice. The Article then sheds further light on the preamble's reference to the "inadmissibility" of conquest by examining original understandings of the U.N. Charter. International jurists of the post-World War II era believed the Charter prohibited territorial changes as a result of war but only with significant limitations and exceptions. The new evidence presented here supports the view that Resolution 242 contemplates only a partial Israeli withdrawal. This understanding is particularly relevant to current suggestions to "update" Resolution 242 by a new Security Council resolution.
"Reversing" Security Council resolutions, especially ones that have become fundamental or architectonic to international relations and diplomacy, may have high collateral costs for the Council. It is similar to reversing Supreme Court precedents: it threatens to reduce the credibility of the body's decisions going forward. The lesson the French resolution would teach the international community is that if one does not like compromises embodied in Security Council resolutions, simply ignore them and wait for the political winds to shift and bring a different resolution.