excerpts from a draft of a forthcoming law journal article:
As recently outlined by Nathan Thrall in the New York Review of Books, a Security Council resolution recommending parameters for an Israeli-Palestinian peace agreement, whatever its impasse-breaking potential, poses a dilemma for the Palestinian side. While international law is "one of the only realms in which they once held some advantage," that advantage is strictly theoretical insofar as “the price of gaining American backing for international law would be that the US will have it rewritten in Israel’s favor” in the following ways:
Settlements that existing Security Council resolutions call to dismantle would gain legitimacy as parts of a potential land swap. European and UN Security Council calls for a just and agreed solution to the refugee problem would be transformed into a strongly implied denial of a Palestinian right of return. And, for the first time in a Security Council resolution, the international community would offer some sort of recognition of Israel as a Jewish state, which the Quartet had previously refused to do.
A few thoughts on this matter.
First, a parameters resolution would not “become” law in the sense of displacing general international law. The Security Council must conform with international law when acting under Chapter VI. Under article 1(1) of the Charter, the Council must exercise its responsibility under Chapter VI for the pacific settlement of disputes “in conformity with the principles of justice and international law,” while it is not so limited in discharging its responsibility under Chapter VII for preventing and removing threats to international peace and security. Only when acting under Chapter VII can the Council “alter legal obligations by fiat.” Even then, the ICJ has only provisionally recognized the Council’s authority under Chapter VII to violate general international law.
While Resolution 242 was also adopted under Chapter VI, it is considered binding by virtue of its eventual acceptance by all relevant parties. But despite its central role in Middle East peacemaking for half a century, Resolution 242 cannot be said to have changed the law in the sense of displacing general international law. The terms of the resolution that were subsequently incorporated into Arab-Israeli peace agreements either reflected general international law (freedom of navigation through international watercourses) or were interpreted by the parties in a manner consistent with international law (complete withdrawal to internationally-recognized boundaries).
Further, there is rule of construction against interpreting Council resolutions as lex specialis that displaces general international law. As Sean Murphy has observed, “in circumstances where the Council’s resolution is ambiguous or open-textured, it seems likely that the special rules of the resolution are meant to be applying general international law rather than modifying, overruling or setting aside that law.”
Thus, Resolution 1244 (1999) effected sweeping limitations on Serbia's exercise of sovereignty over Kosovo, denying Serbia the right to exercise its military and police powers in the territory and establishing an international administration with provisional self-governing institutions. Arguably, the Council had thereby “‘entered the field’” sufficiently so as to displace the relevant rules of general international law. Yet the ICJ rather asserted that Resolution 1244 should be “understood and applied” against the background of general international law regarding the lawfulness of declarations of independence. Because, the Court found, general international law does not prohibit unilateral declarations of independence, had the Council meant in Resolution 1244 to prohibit the Kosovar Albanians from declaring independence, it would have made that restriction explicit.
However, a resolution accepting land swaps would, in practical if not legal terms, be seen to interpret or amend Resolution 242 in Israel’s favor. While a Chapter VI resolution cannot displace general international law, arguably its effect in this instance would be to interpret (or amend) Resolution 242’s withdrawal and termination-of-belligerency provisions in light of a dispute, real or invented, expressed in prior negotiations regarding the application of these principles in the Palestinian context. Understood this way, recognition of land swaps would to some degree legitimize the Israeli position that these provisions of Resolution 242 apply differently to the occupied Palestinian territory than to the recognized states in the region at the time of 242’s adoption, such that implementation of the resolution through Israel’s peace treaties with Egypt and Jordan are nonprecedential with regard to Palestine.
Also, Palestine's inability to realize the theoretical advantage of bargaining positions aligned with international law is not simply attributable to US dominance of the peace process. The Security Council, too, has not insisted on fidelity to international law in its peacemaking efforts, even with respect to legal norms as elemental as the prohibition on the acquisition of territory by force. While that prohibition is widely recognized as a preemptory norm (ius cogens), that status and the legal consequences thereof have not factored into the Security Council’s actions.
For example, in responding to intercommunal violence in Cyprus in 1963-64, the Council considered Article IV of the 1960 Treaty of Guarantee, wherein the United Kingdom, Greece and Turkey each reserved the unilateral right to use force to restore Cyprus’ independence, sovereignty and security. Cyprus alone asserted that Article IV violated ius cogens and thus that the Treaty was void ab initio. States supporting the Cypriot position argued only that Article IV was unlawful as a matter of general international law, with some states, including the United States and the United Kingdom, signaling their continued endorsement of the Treaty. The Council ultimately adopted Resolution 186 (1964), which references the Treaty without declaring it a violation of article 2(4) of the Charter or general international law, let alone a ius cogens violation.
The Council arguably ratified the acquisition of territory by force in Bosnia-Herzegovina by endorsing the Dayton Peace Accords in Resolution 1031 (1993). And in Resolution 1023 (1998), the Council endorsed monitoring agreements which the Federal Republic of Yugoslavia (FRY) concluded with the OSCE and NATO, respectively, after NATO mobilized for military action against the FRY without Council authorization. This threat of unlawful force would otherwise have constituted coercion and would, under Article 52 of the Vienna Convention on the Law of Treaties, have voided the agreements. The Council has thus endorsed territorial settlements imposed through the threat or use of force, notwithstanding Article 2(4) of the Charter and its supposedly preemptory character.
A sober assessment of the trade-offs involved in the parameters resolution thus requires a honest appraisal of the Council's commitment in peacemaking efforts to give effect to the prohibition on the acquisition of territory by force.