Talk:United Nations Security Council Resolution 338

Most important link in the page is broken

Both occurrences of the link to the actual text of the resolution at the UN website, do not work. Anyone know a link that works? —Preceding unsigned comment added by 71.116.84.65 (talk) 08:37, 26 March 2010 (UTC)

Chapter VII ?

The article does not cite any sources for the claim that 338 is a Chapter VII resolution. As far as I know, Chapter VII resolutions must be explictly declared as such (see for example UNSCR 661 which states "Acting under Chapter VII of the Charter of the United Nations,..."). The claim seems like OR to me. a reference is needed.

Article 25 and Chapter VII analysis

This article certainly presents a point of view. It claims connections between this Resolution, Article 25, and Chapter VII without basing it on any references. It presents no alternative point of view.

The point of view expressed is based on a very thin argument. Based on one word in the Resolution ("decides"), it asserts both that this is binding international law under Article 25 and that it falls under Chapter VII.

Article 25 certainly does refer to decisions of the Security Council. It reads, in full,

The Members of the United Nations agree to accept and carry out the decisions of

the Security Council in accordance with the present Charter.[1]

The Security Council frequently refers in its documents to "decisions" such as allowing a representative of a country that is not a SC member to speak.[2][3] Just because the word "decision" is used, Article 25 does not necessarily apply. The International Court of Justice has ruled that resolutions must be interpreted based on their exact and full wording.[4] One word is not definitive.

Still, it has been claimed by reputable authorities that Article 25 does make any SC decision binding under international law.[5][6] This does not, however, address enforcement. If the SC decides to make a recommendation to start negotiations, is there anything that any member of the United Nations that is not a party to the negotiations can do "carry out" making the parties continue negotiations? If the Resolution does not authorize sanctions, can any member of the United Nations lawfully take action?

Since Resolution 338 does not threaten or impose sanctions, it can only be considered to be a recommendation for negotiations. A recommendation cannot be binding, regardless of Article 25. (ibid)

A UN survey of resolutions that invoked Article 25 does not list Resolution 338.[7] A UN Special Committee considered and rejected a proposal to state that all Security Council decisions are binding under Article 25.(ibid) Interpretations of Article 25 have "ranged from the view that... the Council might take various decisions of a binding nature, whether in the exercise of its general or specific functions and powers, to the view that Article 25 governed only those decisions under Chapter VII which did not deal with the substance of a dispute."[8]

The argument regarding Resolution 338 falling under Chapter VII is even thinner. Chapter VI, "Pacific Settlement of Disputes," regards recommendations by the Security Council.[9] Chapter VII, "Action with Respect to Threats to the Peace, Breaches," regards threat or authorization of sanctions (economic or military).[10] Both Chapter VI and Chapter VII refer to the Security Council "decid[ing]" to do something. The existence of the one word "decides" in this Resolution in no way indicates whether Chapter VI or VII applies.

Chapter VII refers to "decid[ing] what measures" shall be taken and "decid[ing] to use force." By contrast, Chapter VI refers to "decid[ing]" whether to apply Article 36 (calling for the SC to "recommend appropriate procedures or methods of adjustment") or whether "to recommend such terms of settlement as it may consider appropriate." Resolution 338 may say that there has been a decision, but it does not decide what measures shall be taken to enforce the decision. It clearly falls under Chapter VI.

What does answer whether VI or VII applies is the word "negotiations" in the Resolution. Chapter VI explicitly calls for "seek[ing] a solution by negotiation." The only reference to negotiations in Chapter VII refers to member nations negotiating to provide military forces to the Security Council in order to enforce sanctions.

Resolution 338 makes absolutely no reference to sanctions. It is not a Chapter VII resolution.[11]

My recommendation would be to have the article mention that an assertion has been made that the resolution is binding under Article 25 and falls under Chapter VII, but that others cite substantial evidence to refute this.

--RichardMathews 18:31, 2 August 2006 (UTC)

This reeks Original Research long way, which your title also suggests; the only source that claims S/RES/338 is non-binding (although he manages to obfuscate his position by asserting that 242 together with 338 "requires" the parties to negotiate forgetting he earlier claimed it was non-binding) is this Adler guy, who claims 338 was passed under Chapter VI but fails to substantiate that claim with any source or any reference. None of the other sources support your position per se; none of them disucesses S/RES/338 and none of them reach a conclusion that's not compatible with the position that 338 is binding.

Let me elaborate a bit, first in general about UNSC resolutions.

ICJ in the Namibia case, concerning UNSC resolutions and Article 25:

It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter ... The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers of Article 25, the question is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provision invoked, and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. ---(1971), I.C.J. Rep. 52-53

Let me quote Rosalyn Higgins, whose merit in the field of international law speaks for itself, writing in light of the Namibia ruling,

The Secretary General had provided a legal opinion which pointed to Article 24 of the Charter, and asserted that the powers of the Council thereunder are not restricted to the specific grants of authority contained in Chapters VI, VII, VIII and XII. The travaux préparatoires also supported this view; all the delegations, speaking for and against the proposition that Members were only obliged to accepts decisions made under the specific powers of Chapters VI, VII, VIII and XII, agreed in recognising that the authority of the Council was not restricted to such specific powers (...) At San Fransisco there had been rejected an amendment which would have bound States only by decisions taken under the specific powers of Chapters VI, VII, VIII and XII. (...) The Court, in dealing with the Security Council Resolutions on Namibia, clearly regarded Chapters VI, VII, VIII and XII as lex specialis while Article 24 contained the lex generalis. Noting that Article 25 was placed not in Chapter VII, but next to Article 24, the Court asserted that resolutions validly adopted under Article 24 were binding on the membership as a whole. This writer believes that a reading of the Charter, its trauvaux and the limited subsequent practice, testify to the correctness of this conclusion. ---Rosalyn Higgins, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter?, 21 Int’l & Comp. L.Q. 286 1972, pp. 285-6

Thus, it is well established that not only Chapter VII resolutions are binding, decisions by the UNSC in discharging its primary duty can also be regarded as such.

(There's also no doctrine in international law that requires an enforcement mechanism for a resolution/decision or a treaty to be binding, as I see you're trying to make a point to that extent.)

Moreover, your list of Chapter VII resolutions, as you claim, is a list of resolutions that, and I quote, "either contain an explicit reference to Chapter VII (“AuC VII” means that the Council is “Acting under Chapter VII”), or that make an explicit determination of a threat to, or breach of the peace, or act of aggression (in accordance with Article 39)." It is by no means an authoritive nor exhaustive list of Chapter VII resolutions, it simply lists the resolutions that fit the criteria set out above, a set of criteria that not necessarily match all Chapter VII resolutions.

Let me turn to more specific sources regarding the binding nature of S/RES/338. For instance Eugene V. Rostow, known for his support for Israel:

This is the ultimate thrust of Resolution 338, a binding decision of the Security Council, with all the power and prestige of the decisions of the International Court of Justice in the Namibia case behind it. "Decisions" of the Security Council, like those for Rhodesia and Namibia, are rare and not lightly voted. Under article 25, they are legally binding on all member states. ---The Illegality of the Arab Attack on Israel of October 6, 1973, by Eugene V. Rostow The American Journal of International Law © 1975, p. 287

An opinion from a pro-palestinian source:

The UN called upon Israel to withdraw from those territories in 1967 by passing resolution 242. In 1973, it reiterated its demand in a binding UN Security Council resolution that was probably passed under Chapter VII of the Charter, judging by the terminology employed in resolution 338 (during the Cold War, the Security Council refrained from distinguishing Chapter VI and VII resolutions. The former empower the Council to address disputes which in its judgment do not threaten international peace, but which, if continued, are likely to endanger international peace. The latter type of resolution permits the Council to take legally binding decisions under Article 25, directing member states to impose sanctions or use force to maintain international peace). [12]

A pro-Israel source:

On 22 October 1973, the UN Security Council passed resolution 338 in response to the outbreak of hostilities (the “Yom Kippur” war) between Israel, Syria and Egypt. This resolution called upon “all parties to the present fighting to cease all firing and terminate all military activity immediately …”

It also called upon the parties concerned "to implement Security Council resolution 242, immediately after the ceasefire, in all its parts". The mandatory language used in operative paragraph 2 would seem to bring it within the scope of Article 25 of the UN Charter, which provides that “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. [13]

Former US President Carter, referring to official US policy:

Let me first review the official position of the United States. From Dwight Eisenhower through the road map of George W. Bush, our policy has been that Israel's borders coincide with those of 1949. The U.S. has consistently stated, since 1967, that U.N. Resolution 242 is binding on Israel as a foreign power that is occupying Palestine territory. [14]

And we can also add judge Al-Khasawneh of the ICJ, who speaks of some binding UNSC resolutions regarding Israel and Palestine, unfortunately without specifying further:

In support of this, one may cite the very large number of resolutions adopted by the Security Council and the General Assembly often unanimously or by overwhelming majorities, including binding decisions of the Council and other resolutions which, while not binding, nevertheless produce legal effects and indicate a constant record of the international community’s opinio juris. [15]

The point is of course, that the binding nature of decisions of the UNSC (even those that fail to explicitly mention Chapter VII) is hardly a controversial point in international law and among scholars in the discipline; it's more than 30 years since the Namibia ruling established this conclusively (not that I depart from their contextual approach). Further, there are plenty of sources that apply this doctrine explicitly to S/RES/338. Apart from the somewhat confusing article of this Adler guy, which makes a claim there's no support for in the resolution (that the Council was acting under Chapter VI), none of your sources refute any of this. If you intend to include Adler's article, make sure you substantiate his claim that the resolution in full was passed under Chapter VI, especially operative paragraph 2. --Cybbe 20:08, 3 August 2006 (UTC)

There are two issues here. IS 338 a binding UNSC resolution, and was it passed under chapter VII. Your position seems to be that if it does not say it was passed under chapter VI, then it was under chapter VII. This is patently false. Chapter VII resolutions are explictly described as such. 338 is not. Isarig 05:24, 4 August 2006 (UTC)

I've think you've got the wrong impression of my position, but I can see why.. The main thrust of my argument is that 338 is binding, not that it was passed under Chapter VII. I haven’t really argued that it was passed under Chapter VII, I don't however, rule it out, as your last claim hardly is established as a fact. In fact, one of my sources explicitly asserts that the practice during the Cold War was not to distinguish between such resolutions, and in any case, your argument could be turned around: some Chapter VI resolutions have also been explicitly described as such. 338 makes no reference to either Chapter VI or Chapter VII, and does not refer to a specific article in the Charter, but it is a ‘’’decision’’’ by the Council (operative paragraph 3, not 2 as I wrote earlier). However, I see that my revert should have removed the reference to Chapter VII, my intention was not to describe it by those words but I simply overlooked it. --Cybbe 17:36, 4 August 2006 (UTC)

The one "source" that alleges that Chapter VII were not labeled as such during the cold war is not merely a "pro-Palestinian" source - it is a source which does not meet WP:RS, being little more than a self-published propaganda site. The very URL you cite takes the extreme partisan position that the current crisis in Lebanon may have been started by an Israeli cross border raid - a posiiton advanced only by Hizbollah and rejected by every other party - including the UN. It refers to th eHizbollah raid as a "border dispute" - when it is nothign of the kind, and disputes Israel's right to retaliate. In short, in is nt a seriosu source to consider in this discussion (and BTW, it does not support its claim wrt to Chapter VII - it merley asserts it.) I am fine with the way the article reads now - havign emoved the refernce to C7. Isarig 12:15, 5 August 2006 (UTC)

I accept that the Rostow reference is adequate to show that the claim that 338 is binding is not original research.

Even if the article as it now stands is not original research, it is certainly a biased claim. Any opposing viewpoint has been erased. I am putting back the contrary argument, with expanded explanations of the references.

--RichardMathews 09:47, 6 August 2006 (UTC)

Let me go through your sources one by one:

[RM]And I will respond to them one-by=one embedded within your comments.

This makes for a very messy reading.. -C

http://untreaty.un.org/cod/repertory/art25/english/rep_supp6_vol3-art25_e_advance.pdf

Irrelevant to the matter at hand, does not discuss res 338 and fails to shed light on when UNSC resolutions are binding. It is merely a partial "Repertory of Practice". In any case, even if it did shed light on article 25, you cannot make a synthesis of your own and put the conclusions in Wikipedia.

[RM]You are requiring evidence of a negative. Obviously, if 338 was not under Article 25, there will never be an article that explicitly says so. It is not UN practise to say, "this resolution is NOT passed under that authority of any of these articles." It is very important to see the official statement of policy by the UN, including the fact that they explicitly rejected numerous interpretations of Article 25 inclusing those that are needed in order to back your position (that all resolutions that are "decisions" are binding).

This falls under Original Resarch, whatever your objections. This study into UN practice only says the UN did not reach an agreement on a General Assembly Recommandation, and is miles away from being relevant to this article. It does not mention 338. -C

http://untreaty.un.org/cod/repertory/art25/english/rep_supp5_vol2-art25_e.pdf

Supports my claim: Of course 338 did not explicitly refer to article 25, but it is nonetheless binding (most UNSC resolutioons do not refer to article 25 explicitly).

[RM]No, it does not support the claim that 338 IS binding. It supports both a claim that it might be binding and that it might not be. It proves from an authoritative source that there is a matter of dispute. The article here should reflect the nature of that dispute rather than making an unsupportable statement of absolute fact.

Where does it mention any dispute surrounding 338? It mentions it might include implicit references to article 25, exactly in line with my position. It does not say anything about it not being binding. -C

http://www.un.org/Depts/dpa/repertoire/72-74_11.pdf

Does not at all discuss the binding or non-binding nature of the resolution.

[RM]You keep reverting to a version that claims both that 338 is binding and that it falls under Chapter VII. This doc explcitly mentions 338 in the context of Chapter VII. As an official UN statement, it is central to the question of whether it is acceptable to make unequivical statements om the nature of 338 as you do.

I dont revert to a version that claims 338 was passed under Chapter VII (I did the first time, more out of error than of choice), but that's another discussion. However, the only brief mention of 338 in this study is in a footnote which contains resolutions that might containt implicit references to article 40. Article 40 can of course be found under Chapter VII. And, this is not an "official UN statement", whatever that is. -C

http://www.acpr.org.il/english-nativ/issue1/einhorn-1.htm

This is published by a think-tank that explicitly state that its goal is to "crystallize a strategic design for the State of Israel. This will be presented to the policy-makers and general public by various means" and that maintains that a "peace which will force Israel to its pre-1967 borders, i.e. losing those territorial assets critically needed for the very existence of the Jewish State will not be but a recipe for war". The not so hard-hitting argument about resolution 338 rests in this paragraph:

Although not expressly mentioned in these resolutions, there is no doubt that they were adopted under Chapter VI of the UN Charter which authorizes the Security Council to make non-binding recommendations for the peaceful settlement of disputes (unlike the Security Council’s powers to adopt binding resolutions and enforcement action under Chapter VII to deal with threats to the peace, breaches of the peace, and acts of aggression, the recent resolutions adopted against Iraq being a case in point).

I doubt she has any proof that the resolution was passed under Chapter VI, it certainly does not state so in the text, and I'm sure she would have presented it if she had.

[RM]Professor Einhorn of the T.M.C. Asser Institute (not from the think-tank you cite) expresses one view. Rostow expresses another. Neither has proof. The important lesson is that this is not a settled matter. To claim that 338 is binding without presenting the alternative viewpoint is clearly biased and unacceptable here.

"Her article on “The Status of Palestine/Land of Israel and its Settlement under Public International Law” was published in Nativ (2003) (in Hebrew) and in Nativ Online (in English)." While she may hold other positons, this article, which is the one relevant to this article, was published by a think-tank.

As I've shown, the practice Rostow refers to in his discussion is an established position, found in both ICJ decisions and the litterature. His claims are have solid backing in both the litterature and the resolution. Einhorn claims the resolution is a Chapter VI resolution (and base her argument on it), this is a claim not supported by any evidence, and without reference to the resolution. Rostow explicitly refers to the language used in the resolution, Einhorn must avoid it at all cost because it simply does not support his view. -C

http://www.pcr.uu.se/publications/UCDP_pub/Chapter%20VII%20Resolutions_050921.pdf

Already discussed, not necessary an exhaustive list of Chapter VII resolutions and irrelevant as to the binding nature of the resolution under article 25.

[RM]Can you present a more authoritative complete list? The list is relevant because you keep reverting to a version that claims that it is undisputably under Chapter VII. This document proves that it is disputed.

I dont, to both your first sentences. There's no such thing as an "authoritive list" of Chapter VII resolutions, this study lists exactly what it says its going to list. It is irrelevant to the position I have advanced, does not discuss article 25, resolution 338, the nature of Chapter VII resolutions or any of these combined. -C

http://domino.un.org/UNISPAL.NSF/84d19f9d311abeeb85256dd5006beab7/f1b8333b93befafc85256c6f005a5192!OpenDocument

He is discussing whether resolution 242 should be the basis point for political discussions. He does not discuss whether it is binding in legal terms at all.

[RM]He does not use the word "binding," but he does indicate that alternative proposals would be legal and wise. This would not be possible unless either 242 is non-binding or if the SC revoked it. There is no indication that revocation was discussed.

He simply does not discuss what you want him too, and there are a thousand other reasons why this is irrelevant. -C

http://www.middle-east-info.org/gateway/unitednations/Israel%20and%20Iraq%20-%20UN%20Double%20Standards.pdf

I've discussed this article earlier: bring some proof the resolutions as a whole was passed under Chapter VI, which is what his arguments rests on (without any references at all, understandably given the circumstances). And, of course, he is still contradicting himself.

[RM]Even if I grant what you say as true, this still shows there is a dispute that should be mentioned in the article here.

We could of course, but then we would have to point out the very factual observations that the res 338 contains no reference to Chapter VI (whereas other UNSC resolutions do) and that none of the two persons that have advanced this position back it up by reference to either the language used in the resolution or other authorative sources. NPOV is not to present all positions as if they are equal in support and strength. -C

The only two sources that could be included in this article are the ones by Adler and Einhorn, which actually "discuss" article 338s binding nature. However, they both rest their case on the alleged Chapter VI nature of the resolution (not that it is a clear cut case that Chapter VI resolutions cannot be binding), none of them providing any proof for this other than "there is no doubt". However, there is much doubt. In any case, drop the original research, i.e. all the UN documents which are irrelevant to this discussion.

--Cybbe 15:14, 6 August 2006 (UTC)

[RM]I believe the UN documents on Article 25 to be the most damning to your claim that 338 is undisputably binding.--RichardMathews 17:17, 6 August 2006 (UTC)

They are irrelevant, they dont discuss 338 at length and mentions it in footnotes that actually support my position. In any case, you're engaging in OR. -C

[RM]Here is yet another alternative proposal for how the critical paragraphs could be worded.

Some argue that Resolution 338 is binding under Article 25 and Chapter VII of the United Nations Charter (ref: Rostow). Others claim it does not fall under those rules (refs: Adler, Einhorn, and Uppsala). The official UN position is that it is unsettled whether or not it falls under these rules (refs: UN Supp 5 on Article 25, UN Supp 6 on Article 25, UN Supp on Chapter VII).

If SC 338 is binding, the legal force it adds to SC 242 could be a reason for the otherwise puzzling fact that SC 242 and the otherwise seemingly superfluous and superannuated SC 338 are often referred to together in legal documents relating to the conflict. By calling on the parties to implement SC 242, any binding nature of SC 338 could cause SC 242 to be binding (ref: Rostow).

--RichardMathews 18:13, 6 August 2006 (UTC)

Your proposal does not reflect the difference of argument (btw. "Uppsala", Swedens fourth largest city, does not claim what you attribute him, neither does Patrik Johansson of the University of Uppsala). You do not show what lie behind their positions. While the positon advanced by Rostow is based upon the wording of the resolution (and its implications in accordance with legal pratice as advanced by the ICJ and legal authoroties such as Higgins), the position of Adler and Einhorn is based on a claim that the resolution was passed under Chapter VI, without any reference at all and without a discussion of the choice of words in the resolution. And Rostow does not mention Chapter VII as far as I could tell. The UN has no position on 338 per your sources (you're wildly engaging in OR by first making your own conclusions out a summary of UN practice and then using this OR for another round of OR by claiming the UN has a position on 338). (Still, the legal organ of the UN, ICJ, which come pretty close on putting forward authoritive statements on legal aspects of the Charter, is what Rostow et al builds their argument on).

To summarize a bit, my position is yet again that only the two articles by Adler and Einhorn are remotely suitable for this article, and if you insist on including them, it should be in a way that show what their position is based upon. The other articles will get you nowhere, any inclusion of conclusions you may draw from them violate the OR policy. I have tried to alter the article; keeping the wildly held position advanced by Rostow, including the position that the resolution was passed under Chapter VI but making it clear that the resolution contains no reference to Chapter VI and that neither of the two scholars substantiate their claim. The POV tag is kept for now (although you may feel free to remove it).

--Cybbe 23:46, 7 August 2006 (UTC)