Tuesday, September 4, 2007

What Weight to Conquest?



International Law

Selected Writing of

(not written in any of his former
official capacity)

Stephen M. Schwebel

Judge of International Court of Justice

Judge Schwebel has
served on the Court since 15 January 1981. He was Vice-President of the Court
from 1994 to 1997 and has been President since 6 February 1997. A former Deputy
Legal Adviser of the United States Department of State and Burling Professor of
International Law at the School of Advanced International Studies of The John
Hopkins University (Washington), Judge Schwebel is the author of three
books and some 150 articles on problems of international law and organization.


What Weight to Conquest?

Pages 521-526

In his admirable address of
December 9, 1969, on the situation in the Middle East, Secretary of State William
P. Rogers took two positions of particular international legal interest, one
implicit and the other explicit.
[1] Secretary Rogers called upon
the Arab States and Israel to establish "a state of peace ... instead of
the state of belligerency, which has characterized relations for over 20
years." Applying this and other elements of the American approach to the
United Arab Republic and Israel, the Secretary of State suggested that,
"in the context of peace and agreement [between the UAR and Israel] on
specific security safeguards, withdrawal of Israeli forces from Egyptian
territory would be required."

Secretary Rogers accordingly
inferred that, in the absence of such peace and agreement, withdrawal of
Israeli forces from Egyptian territory would not be required. That is to say,
he appeared to uphold the legality of continued Israeli occupation of Arab
territory pending "the establishment of a state of peace between the
parties instead of the state of belligerency.
"[3] In this
Secretary Rogers is on sound ground. That ground may well be based on
appreciation of the fact that Israel's action in 1967 was defensive, and on the
theory that, since the danger in response to which defensive action was taken
remains, occupation - though not annexation - is justified, pending a peace
settlement. But Mr. Rogers's conclusion may be simply a pragmatic judg­ment
(indeed, certain other Permanent Members of the Security Council, which are not
likely to share the foregoing legal perception, are not now pressing for
Israeli withdrawal except as an element of a settlement).

More questionable, however, is
the Secretary of State's explicit conclusion on a key question of the law and
politics of the Middle East dispute: that "any changes in the pre-existing
[1949 armistice] lines should not reflect the weight


of conquest and should be confined to insubstantial
alterations required for mutual security. We do not support expansionism."
Secretary Rogers refer­red approvingly in this regard to the Security Council's
resolution of November 1967, which,

Emphasizing the
inadmissibility of the acquisition of territory by war
[4] and the need to work for a just
and lasting peace in which every State in the area can live in security,

Emphasizing further that all Member States in their acceptance of the
Charter of the United Nations have undertaken a commitment to act in accordance
with Article 2 of the Charter,

Affirms that the fulfillment of Charter principles requires the establishment
of a just and lasting peace in the Middle East which should include the
application of both the following principles:

(i) Withdrawal of Israeli armed
forces from territories occupied in the recent conflict;

Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force; ..."

It is submitted that the
Secretary's conclusion is open to question on two grounds: first, that it fails
to distinguish between aggressive conquest and defensive conquest; second, that
it fails to distinguish between the taking of territory which the prior holder
held lawfully and that which it held unlawfully. These contentions share common

As a general principle of international law, as
that law has been reformed

What Weight to Conquest?

since the League, particularly
by the Charter, it is both vital and correct to say that there shall be no
weight to conquest, that the acquisition of territory by war is inadmissible.
[7] But that principle must be
read in particular cases together with other general principles, among them the
still more general principle of which it is an application, namely, that no legal right shall spring
from a wrong, and the Charter principle that the Members of the United Nations
shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any State. So
read, the distinctions between aggressive conquest and defensive conquest,
between the taking of territory legally held and the taking of territory
illegally held, become no less vital and correct than the central principle

Those distinctions may be summarized as
follows: (a) a State acting in lawful exercise of its right of self-defense may
seize and occupy foreign territory as long as such seizure and occupation are
necessary to its self ­defense; (b) as a condition of its withdrawal from such
territory, that State may require the institution of security measures
reasonably designed to ensure that that territory shall not again be used to
mount a threat or use of force against it of such a nature as to justify
exercise of self-defense; (c) where the prior holder of territory had seized
that territory unlawfully, the State which subsequently takes that territory in
the lawful exercise of self-defense has, against that prior holder, better

The facts of the June 1967 "Six
Day War" demonstrate that Israel reacted defensively against the threat
and use of force against her by her Arab neighbors.
This is indicated by the fact
that Israel responded to Egypt's prior closure of the Straits of Tiran, its
proclamation of a blockade of the Israeli port of Eilat, and the manifest
threat of the UAR's use of force inherent in its massing of troops in Sinai,
coupled with its ejection of UNEF. It is indicated by the fact that, upon
Israeli responsive action against the UAR, Jordan initiated hostilities against
Israel. It is suggested as well by the fact that, despite the most intense
efforts by the Arab States and their supporters, led by the Premier of the
Soviet Union, to gain condemnation of Israel as an aggressor by the hospitable
organs of the United Nations, those efforts were decisively defeated. The conclusion to which these
facts lead is that the Israeli conquest of Arab and Arab-held territory was
defensive rather than aggressive conquest.

facts of the 1948 hostilities between the Arab invaders of Palestine and the nascent State of Israel
further demonstrate that Egypt's seizure of the Gaza Strip, and Jordan's
seizure and subsequent annexation of the West Bank and


the old city of Jerusalem, were
unlawful. Israel was proclaimed to be an independent State within the
boundaries allotted to her by the General Assembly's partition resolution. The Arabs of Palestine and of
neighboring Arab States rejected that resolution.
But that rejection was
no warrant for the invasion by those Arab States of Palestine, whether of
territory allotted to Israel, to the projected, stillborn Arab State or to the
projected, international­ized city of Jerusalem. It was no warrant for attack by
the armed forces of neighboring Arab States upon the Jews of Palestine, whether
they resided within or without Israel. But that attack did justify Israeli defensive measures,
both within and, as necessary, without the boundaries allotted her by the partition
plan (as in the new city of Jerusalem).
It follows that the Egyptian
occupation of Gaza, and the Jordanian annexation of the West Bank and
Jerusalem, could not vest in Egypt and Jordan lawful, indefinite control,
whether as occupying Power or sovereign: ex injuria jus non oritur.

If the
foregoing conclusions that (a) Israeli action in 1967 was defensive and (b)
Arab action in 1948, being aggressive, was inadequate to legalize Egyptian and
Jordanian taking of Palestinian territory, are correct, what follows?

It follows that the application of the
doctrine of according no weight to conquest requires modification in double
measure. In the first place, having regard to the consideration that, as
between Israel, acting defensively in 1948 and 1967, on the one hand, and her
Arab neighbors, acting aggressively in 1948 and 1967, on the other, Israel has
better title in the territory of what was Palestine, including the whole of
than do
Jordan and Egypt (the UAR indeed has, unlike Jordan, not asserted sovereign
title), it follows that
modifications of the 1949 armistice lines among those States within former
Palestinian territory are lawful (if not necessarily desirable), whether those
modifications are, in Secretary Rogers's words, "insubstantial alterations
required for mutual security" or more substantial alterations - such as
recognition of Israeli sovereignty over the whole of Jerusalem.
[8] In the second place, as
regards territory bordering Palestine, and under unquestioned Arab sovereignty
in 1949 and thereafter, such as Sinai and the Golan Heights, it follows not
that no weight shall be given to conquest, but that such weight shall be given
to defensive action as is reasonably required to ensure that such Arab
territory will not again be used for aggressive purposes against Israel. For
example - and this appears to be envisaged both by the Secretary of State's
address and the resolution of the Security Council - free navigation through
the Straits of Tiran shall be effectively guaranteed and demilitarized zones
shall be established.

What Weight to Conquest?

The foregoing analysis accords not only with the terms of the United Nations Charter,
notably Article 2, paragraph 4, and Article 51, but law and practice as they
have developed since the Charter's conclusion. In point of practice, it is
instructive to recall that the Republic of Korea and indeed the United Nations
itself have given considerable weight to conquest in Korea, to the extent of
that substantial territory north of the 38th parallel from which the aggressor
was driven and remains excluded - a territory which, if the full will of the
United Nations had prevailed, would have been much larger (indeed, perhaps the
whole of North Korea). In point of law, pro­visions of the Vienna Convention on
the Law of Treaties are pertinent. Article 52 provides that: "A treaty is void if its
conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of the United
Nations" -
a provision which clearly does not debar conclusion of a
treaty where force has been applied, as in self-defense, in accordance with the
Charter. And Article 75 provides that: "The provisions of the present
Convention are without prejudice to any obligation in relation to a treaty
which may arise for an aggressor State in consequence of measures taken in
conformity with the Charter of the United Nations with reference to that
State's aggression."

The state of the law has
been correctly summarized by Elihu Lauterpacht, who points out that

territorial change cannot
properly take place as a result of the unlawful use of force. But to omit the word
"unlawful" is to change the substantive content of the rule and to
turn an important safeguard of legal principle into an aggressor's charter.

For if force can never be used to effect lawful territory change, then, if
territory has once changed hands as a result of the unlawful use of force, the
illegitimacy of the position thus established is sterilized by the prohibition
upon the use of force to restore the lawful sovereign. This cannot be regarded
as reasonable or correct.[9]

[2] Ibid.

[3] Ibid

[4] The
resolution's use of the word "war" is of interest. The June 1967
hostilities were not marked by a declaration of war. Certain Arab States have
regarded themselves at war with Israel - or, at any rate, in a state of
belligerency - since 1948, a questionable position under the law of the
Charter. In view of the defeat in the United Nations organs of resolutions
holding Israel to have been the aggressor in 1967, presumably the use of the
word "war" was not meant to indicate that Israel's action was not in
exercise of self-defense. It may be added that territory would not in any event
be acquired by war, but, if at all, by the force of treaties of peace.

[5] It should be
noted that the resolution does not specify "all territories" or
"the territories" but "territories." The subparagraph
immediately following is, by way of contrast, more comprehensively cast,
specifying "all claims or states of belligerency."

242 (1967) of November 22, 1967; 62 AJIL 482 (1968). President Johnson, in an address
of September 10, 1968, declared:

We are not the ones to say where other nations should draw
the lines between them that will assure each the greatest security. It is
clear, however, that a return to the situation of June 4, 1967, will not bring
peace. There must be secure and there must be recognized borders ...

At the same time, it
should be equally clear that boundaries cannot and should not reflect the
weight of conquest. Each change must have a reason which each side, in honest
negotiation, can accept as part of a just compromise. (59 Department of State
Bulletin 348 [1968])

[7] See, however, Kelsen (2nd ed. by Tucker), Principles of
International Law (1967), pp. 420-433.

[8] It should be
added that the armistice agreements of 1949 expressly preserved the territorial
claims of all parties and did not purport to establish definitive boundaries
between them.

[9] Elihu Lauterpacht, Jerusalem
and the Holy Places,
Anglo-Israel Association, Pamphlet No. 19
), p. 52.

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