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1 ulasan:

Hakimi Abdul Jabar berkata...

© Hakimi bin Abdul Jabar, Malaysia, 13.12.2017, All Rights Reserved.

UNSCR 242 (1967) & UNSCR 2334 (2016) - The Inadmissibility of the Acquisition of Territory by Force

The second preambular reference in UNSCR 242 clearly states that :

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

On 23 December 2016, the UN Security Council passed UN Resolution 2334 included the relevant first principle cited in the preamble and it reads as follows:

"Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force."

Is it inadmissible to acquire territories by force?

The principle of the inadmissibility of the acquisition of territories by force is embodied in UNSC Resolution 242 passed on 22 November 1967 in the aftermath of the Six Day War. Chapter VI of the UN Charter calls on member states to settle their disputes by peaceful methods (inquiries, negotiations, mediation, conciliation, arbitration, judicial settlement, etc.) rather than war. In cases of failure to reach agreement, the issue must be referred to the Security Council. Chapter VI allows any state or consortium of states to bring a resolution before the UN Security Council. Note that Chapter VI only allows the UN to pass resolutions that are recommendations; resolutions that are passed, do not bind the member states engaged in a dispute. This is unlike resolutions passed under Chapter VII which are deemed obligatory. Resolutions under Chapter VI are commendatory, particularly since the UN has no enforcement mechanism.

If territories are acquired in a defensive war, not through intentional conquest, why is it inadmissible to hold onto such territories, particularly if the territory is largely being held both for defensive reasons and as bargaining chips in a future peace negotiation? The inadmissibility is directly tied to efforts to settle populations on that territory as distinct from acquiring those territories? What is the definition of acquisition of a territory by a state?

Further, since the Six Day War, Israel concluded two peace agreements, one with Egypt in which Israel gave back all territory captured as part of a full peace agreement. The other was with Jordan, a country which had walked away from any responsibility for the territory it had captured and annexed in the 1948 war. Article 2, paragraph 5 of the UN Charter requires states to refrain from using force “against the territorial integrity or political independence of any state.” Such a clause is only possibly applicable to the Golan Heights which Israel captured from Syria in 1967 and subsequently annexed. However, the bone of contention driving Res. 2334 is the West Bank, including East Jerusalem, captured in the 1967 war and claimed, not by an existing state, but by an aspiring Palestinian state.

Lastly, UNSCR 2334 lucidly states that the status of the Occupied Palestinian Territory includes that of East Jerusalem in its condemnation paragraph :

"Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,".

© Hakimi bin Abdul Jabar, Malaysia, 13.12.2017, All Rights Reserved.

Opinion written as a practising member of the Malaysian and KL Bars, Friend/Member of SUARAM, Member of Bersatu (PPBM) & Pakatan Harapan & individual member of the International Law Association (ILA)