United Nations Security Council Resolution 338

Last updated

UN Security Council
Resolution 338
Yom Kippur War map.svg
Territorial changes during the Yom Kippur War
Date22 October 1973
Meeting no.1,747
CodeS/RES/338 (Document)
SubjectCease-Fire in the Middle East
Voting summary
  • 14 voted for
  • None voted against
  • 1 abstained
ResultApproved
Security Council composition
Permanent members
Non-permanent members
  337 Lists of resolutions 339  

United Nations Security Council Resolution 338 was a three-line resolution adopted by the UN Security Council on 22 October 1973, which called for a ceasefire in the Yom Kippur War in accordance with a joint proposal by the United States and the Soviet Union. It was passed at the 1747th Security Council meeting by 14 votes to none, with China abstaining.

Contents

The resolution stipulated that the ceasefire should take effect within 12 hours of the adoption of the resolution; that Security Council Resolution 242 be implemented "in all its parts"; and for negotiations to start between Israel and the Arab states. Fighting continued despite the passing of Resolution 338, and the Security Council passed Resolution 339 soon after. Resolution 340 was passed on 25 October, ending the war.

The resolution

Resolution 338 read:

The Security Council

  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. 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. 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.

The "appropriate auspices" was interpreted[ by whom? ] to mean American or Soviet rather than UN auspices. This third clause helped to establish the framework for the Geneva Conference of 1973.[ citation needed ]

Adoption

The resolution was brought before the Security Council on 22 October. It was passed the same day with the US, UK, France, Soviet Union, Australia, Austria, Guinea, India, Indonesia, Peru, Kenya, Yugoslavia, Sudan and Panama all voting to approve the resolution, and China abstaining.

Failure

US Secretary of State Henry Kissinger hinted to Israeli Prime Minister Golda Meir that he would not object to an Israeli offensive during the night before the ceasefire came into effect. [1]

The ceasefire was breached soon after the resolution was adopted by the Security Council, with both sides blaming the other. [2] Scud missiles were fired at Israeli forces, and Israeli forces continued pushing south.

Binding or non-binding issue

The alleged importance of Resolution 338 in the Arab–Israeli conflict supposedly stems from the word "decides" in the third clause, which is held to make Resolution 242 binding. However, the decision in the third clause does not relate to Resolution 242, but rather to the need to begin negotiations on a just and durable peace in the Middle East that led to the Geneva Conference of 1973, which Syria did not attend.[ citation needed ]

The argument continues; Article 25 of the United Nations Charter says that UN members "agree to accept and carry out the decisions of the Security Council". It is generally accepted that Security Council resolutions adopted according to Chapter VII of the UN Charter in the exercise of its primary responsibility for the maintenance of international peace in accordance with the UN Charter are binding upon the member states. [3] [4]

Scholars applying this doctrine on the resolution assert that the use of the word "decide" makes it a "decision" of the Council, thus invoking the binding nature of article 25. [5] The legal force added to Resolution 242 by this resolution is the reason for the otherwise puzzling fact that SC 242 and the otherwise seemingly superfluous and superannuated Resolution 338 are always referred to together in legal documents relating to the conflict.[ citation needed ]

The more obvious need for the use of Resolution 338 is that it requires all parties to cease fire and states when that should occur, without which Resolution 242 can't be accomplished.[ citation needed ]

Some scholars have advanced the position that the resolution was passed as a non-binding Chapter VI recommendation. [6] [7] Other commentators assert that it probably was passed as a binding Chapter VII resolution. [8] The resolution contains reference to neither Chapter VI nor Chapter VII.

Arab–Israeli peace diplomacy and treaties

See also

Related Research Articles

<span class="mw-page-title-main">United Nations Security Council Resolution 242</span> 1967 resolution on withdrawal of Israel and recognition of boundaries

United Nations Security Council Resolution 242 (S/RES/242) was adopted unanimously by the UN Security Council on November 22, 1967, in the aftermath of the Six-Day War. It was adopted under Chapter VI of the UN Charter. The resolution was sponsored by British ambassador Lord Caradon and was one of five drafts under consideration.

<span class="mw-page-title-main">United Nations Security Council resolution</span> UN resolution adopted by the 15 members of the Security Council

A United Nations Security Council resolution (UNSCR) is a United Nations resolution adopted by the Security Council (UNSC), the United Nations (UN) 15-member body charged with "primary responsibility for the maintenance of international peace and security".

<span class="mw-page-title-main">United Nations Security Council Resolution 478</span> United Nations condemnation of Israels attempted annexation of Jerusalem

United Nations Security Council Resolution 478, adopted on 20 August 1980, is the last of seven UNSC resolutions condemning Israel's annexation of East Jerusalem. UNSC res 478 notes Israel's non-compliance with United Nations Security Council Resolution 476 and condemned Israel's 1980 Jerusalem Law which declared Jerusalem to be Israel's "complete and united" capital, as a violation of international law. The resolution states that the council will not recognize this law, and calls on member states to accept the decision of the council. This resolution also calls upon member states to withdraw their diplomatic missions from the city. The UNSC resolutions followed two General Assembly resolutions regarding Israel's actions in East Jerusalem.

<span class="mw-page-title-main">Ceasefire</span> Temporary agreement to stop a war

A ceasefire, also spelled cease fire, is a stoppage of a war in which each side agrees with the other to suspend aggressive actions, often due to mediation by a third party. Ceasefires may be between state actors or involve non-state actors.

The Khartoum Resolution of 1 September 1967 was issued at the conclusion of the 1967 Arab League summit, which was convened in Khartoum, the capital of Sudan, in the wake of the Six-Day War. The resolution is famous for containing what became known as the "Three Noes" or "The Three Noes of Khartoum".

The International law bearing on issues of Arab–Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, resulting in several disputes between a number of Arab countries and Israel.

<span class="mw-page-title-main">United Nations resolution</span> Formal text adopted by a United Nations body

A United Nations resolution is a formal text adopted by a United Nations (UN) body. Although any UN body can issue resolutions, in practice most resolutions are issued by the Security Council or the General Assembly, in the form of United Nations Security Council resolutions and United Nations General Assembly resolutions, respectively.

The Rogers Plan was a framework proposed by United States Secretary of State William P. Rogers to achieve an end to belligerence in the Arab–Israeli conflict following the Six-Day War and the continuing War of Attrition.

The Jarring Mission refers to efforts undertaken by Gunnar Jarring to achieve a peaceful settlement of the conflict between Israel and its Arab neighbors after the Six-Day War in 1967.

Chapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security".

The Geneva Conference of 1973 was an attempt to negotiate a solution to the Arab–Israeli conflict as envisioned in United Nations Security Council Resolution 338 following the called-for cease-fire to end the Yom Kippur War. After considerable "shuttle diplomacy" negotiations by Henry Kissinger, the conference opened on 21 December 1973 under the auspices of the United Nations Secretary General, with the United States and the USSR as co-chairmen. The foreign ministers of Egypt, Jordan and Israel were in attendance. The table with Syria's nameplate remained unoccupied, although Syria had indicated possible future participation. Each foreign minister spoke, mainly directed to their domestic audiences rather than to each other. Kissinger articulated his step-by-step strategy and stated that the goal of the conference was peace; the immediate need was to strengthen the cease-fire by accomplishing a disengagement of forces as the "essential first step" toward implementation of UN 242. The meeting was then adjourned.

<span class="mw-page-title-main">United Nations Security Council Resolution 339</span> 1973 UN Security Council resolution calling for a ceasefire in the Yom Kippur War

United Nations Security Council Resolution 339 was adopted on 23 October 1973 in order to bring a ceasefire in the Yom Kippur War where Resolution 338 two days before had failed.

The Lusaka Ceasefire Agreement attempted to end the Second Congo War through a ceasefire, release of prisoners of war, and the deployment of an international peacekeeping force under the auspices of the United Nations. The heads of state of Angola, the Democratic Republic of the Congo, Namibia, Rwanda, Uganda, Zambia, and Zimbabwe signed the agreement in Lusaka, Zambia on July 10, 1999.

Chapter VI of the United Nations Charter deals with peaceful settlement of disputes. It requires countries with disputes that could lead to war to first of all try to seek solutions through peaceful methods such as "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." If these methods of alternative dispute resolution fail, then they must refer it to the UN Security Council. Under Article 35, any country is allowed to bring a dispute to the attention of the UN Security Council or the General Assembly. This chapter authorizes the Security Council to issue recommendations but does not give it power to make binding resolutions; those provisions are contained in Chapter VII. Chapter VI is analogous to Articles 13-15 of the Covenant of the League of Nations which provide for arbitration and for submission of matters to the Council that are not submitted to arbitration. United Nations Security Council Resolution 47 and United Nations Security Council Resolution 242 are two examples of Chapter VI resolutions which remain unimplemented.

Constructive ambiguity is a term generally credited to Henry Kissinger, said to be the foremost exponent of the negotiating tactic it designates. It refers to the deliberate use of ambiguous language on a sensitive issue in order to advance some political purpose. Constructive ambiguity is often disparaged as fudging. It might be employed in a negotiation, both to disguise an inability to resolve a contentious issue on which the parties remain far apart and to do so in a manner that enables each to claim obtaining some concession on it.

<span class="mw-page-title-main">United Nations Security Council Resolution 1860</span> United Nations resolution approved in 2009

United Nations Security Council Resolution 1860, adopted on January 8, 2009, after recalling resolutions 242 (1967), 338 (1973), 1397 (2002), 1515 (2003) and 1850 (2008) on the Israeli–Palestinian conflict, the Council called for an immediate ceasefire in the Gaza War following 13 days of fighting between Israel and Hamas.

<span class="mw-page-title-main">United Nations General Assembly Resolution 43/176</span>

The United Nations General Assembly Resolution 43/176 of 15 December 1988 was a resolution in which the General Assembly called for the convening of an International Peace Conference on the Middle East, under the auspices of the United Nations. The resolution is titled "43/176. Question of Palestine". The peace conference was proposed in the framework of international politics.

<span class="mw-page-title-main">Israeli occupation of the Golan Heights</span> International legal status of the plateau near the Israel–Syria border

The Golan Heights are a rocky plateau in the Levant region of Western Asia that was captured by Israel from Syria in the 1967 Six-Day War. The international community, with the exception of Israel and the United States, considers the Golan Heights to be Syrian territory held by Israel under military occupation. Following the war, Syria dismissed any negotiations with Israel as part of the Khartoum Resolution.

References

  1. "22 October Memorandum of Conversation between Meir and Kissinger" (PDF). Retrieved 28 March 2010.
  2. William Burr, ed. (7 October 2003). "The October War and U.S. Policy". nsarchive2.gwu.edu. The Collapse of the Ceasefire. Retrieved 10 March 2023.
  3. Higgins, Rosalyn, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter?, in 21 Int'l & Comp. L.Q. 286 1972 pp. 270–266, pp. 285–286
  4. "Legal Consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970)" in [1971] I.C.J. Reports pp. 4–345, pp 52–53
  5. Rostow, Eugene V. "The Illegality of the Arab Attack on Israel of October 6, 1973." The American Journal of International law, 69(2), 1975, pp. 272–289.
  6. Adler, Gerald M., Israel and Iraq: United Nations Double Standards – UN Charter Article 25 and Chapters VI and VII (2003)
  7. Einhorn, Talia, "The Status of Palestine/Land of Israel and Its Settlement Under Public International Law" in Nativ Online No.1 Dec. (2003)
  8. Kattan, Victor, Israel, Hezbollah, and the use and abuse of self-defence in international law (2006)