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  • 21 Aug, 2019

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Resolution 338
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.

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 to mean American or Soviet rather than UN auspices. This third clause helped to establish the framework for the Geneva Conference of 1973.

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.

The ceasefire was breached soon after the resolution was adopted by the Security Council, with both sides blaming the other. 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.

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.

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. 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.

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.

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

Arab–Israeli peace diplomacy and treaties

See also

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) [1]
  7. ^ Einhorn, Talia, "The Status of Palestine/Land of Israel and Its Settlement Under Public International Law" in Nativ Online No.1 Dec. (2003) [2]
  8. ^ Kattan, Victor, Israel, Hezbollah, and the use and abuse of self-defence in international law (2006) [3]
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