-2-

on ourselves. Bob Hope helps us to do that better than almost any man I know. He keeps us from taking ourselves too seriously.

In a world where we have plenty to disagree about, we need things that we can agree upon. I think we can all agree that Bob's humor, his joy and laughter represent something universal in the human spirit.

I am, therefore, delighted to be a part of this evening's tribute to my friend, Bob Hope.

May 14, 1976

Dear Dr. Kissinger,

Greetings from Virginia. I am here currently appearing in the musical "My Fair Lady" at the Mosby Dinner Theatre in Leesburg, Virginia. I would be honored if you and your wife and children could attend. I still remember how delightful they were when they visited the set of "Family Affair". The play runs until May thirtieth. It's a smaller production than the one on Broadway, but as much, if not more than enthusiastic!

The last time we met was at the ex-President's home in San Clemente. Many roads have been travelled since then!

I do hope you will be able to attend. I look forward to your response.
My best wishes to you.

BOX 1318/LEESBURG PIKE/LEESBURG, VA. 22075/703-777-8766/LOCAL 471-4481

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# UNITED NATIONS PEACEKEEPING AND HOST STATE CONSENT

By Jack Israel Garvey *

## THE CASE AGAINST WITHDRAWAL

In the evolution of United Nations peacekeeping, the United Nations Emergency Force, which was created in 1956 and withdrawn from the Middle East in 1967, is of special importance. The UNEF is now the archetype for peacekeeping based on the "consent" of the state on whose territory a United Nations force is stationed; and this concept of consent has become the central characteristic of United Nations peacekeeping. It has been the heart of the peacekeeping capacity that has devolved on the General Assembly acting through its "Uniting for Peace" procedure, and it has been a primary element in the legal and political foundation of peacekeeping forces authorized on the basis of Security Council resolutions.¹

The concept of consent was critical to the determination to withdraw the UNEF. It was indeed pointed to as the essential basis for the withdrawal. While the immediate international reaction to the determination to withdraw reflected a pervasive sense that such co-operation of the United Nations in the acceleration of crisis was somehow a mistake, initial criticism was for the most part forced to yield to the one matter of legal principle that was asserted as the central premise for the withdrawal—that the basis for the presence of UNEF on the territory of the U.A.R. was the consent of the U.A.R.; the U.A.R. had withdrawn that consent; ergo, the force was required to withdraw. Or as U Thant himself phrased the determination,

> ... it ... has seemed fully clear to me that since United Arab Republic consent was withdrawn it was incumbent on the Secretary-General to give orders for the withdrawal of the Force. The consent of the host country is a basic principle which has applied to all United Nations peace-keeping operations.²

Then, on May 26, 1967, in a letter to the *New York Times*,³ Mr. Ernest A. Gross⁴ helped to make an open question of all that had been so confidently

* Member of the Illinois Bar; A.B., 1964, J.D., 1968, Harvard University. The author wishes to thank Professor Abram Chayes, Judge Hubert L. Will, and Professor Milton Katz for their critical assistance in the preparation of this article.

¹ Examples of the latter implementation are the Congo and Cyprus operations; and in confirmation of the importance of the concept of consent even where Security Council authorization is involved, the International Court of Justice in its Advisory Opinion on Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151, focused on "consent" as a critical factor on the basis of which the Congo Force was characterized by the Court as not involving "enforcement action" under Ch. VII of the Charter.

² United Nations Emergency Force, Special Report by the Secretary-General, U.N. Doc. A/6669, p. 9, May 18, 1967.

³ New York Times, May 26, 1967, 1:3.

⁴ A former deputy U. S. Representative to the United Nations.

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asserted and assumed. He revealed that the late Secretary General Dag Hammarskjöld had prepared a private aide-mémoire on August 5, 1957, which stated Hammarskjöld's interpretation of the understanding that had been reached with President Nasser for the stationing of UNEF. Gross subsequently sent a copy of the aide-mémoire to the American Society of International Law for publication,⁵ and on June 19 the *mémoire* was published in the *New York Times*. U Thant's immediate reaction was a letter also published in the *New York Times*.⁶ He related that he had been aware of the Memorandum and its content, but found no reason for a decision other than immediate compliance with the Egyptian request.

This first response stated in summary form contentions which the Secretary General was later to expand and elaborate. In the ensuing weeks, U Thant formulated an extensive statement of justification for the decision to withdraw the UNEF.⁷ The justification was expressed primarily as legal argument. Its essential thrust was to state the case for the position that, once Egypt requested withdrawal of the peacekeeping force, the law of peacekeeping left no persuasive alternative to submission to the request.

The Hammarskjöld Memorandum itself focuses on the period of heated negotiation that immediately preceded the stationing of UNEF on U.A.R. soil. It relates that the arrival of the major part of the Force was held up and threatened to be canceled until the Government of the U.A.R. and the Secretary General came to an understanding on what was the import of U.A.R. consent. This last-minute negotiation culminated in the "Good Faith Accord" which the General Assembly later approved as the basis for the UNEF presence in Egypt. The key points in the accord were:

1. The Government of Egypt declares that, when exercising its sovereign rights on any matter concerning the presence and functioning of UNEF, it will be guided, in good faith, by its acceptance of General Assembly resolution 1000 (ES-I) of 5 November 1956.

2. The United Nations takes note of this declaration of the Government of Egypt and declares that the activities of UNEF will be guided, in good faith, by the task established for the Force in the aforementioned resolutions (resolutions 997, 1000, 1001 (ES-I); in particular, the United Nations, understanding this to correspond to the wishes of the Government of Egypt, reaffirms its willingness to maintain UNEF until its task is completed.⁸

⁵ 6 Int. Legal Materials 581 (1967).

⁶ New York Times, June 20, 1967, 17: 2-7.

⁷ The Secretariat's justification for its action includes the following documents: Report of the Secretary-General on the Withdrawal of the United Nations Emergency Force, U.N. Doc. A/6730/Add. 3, June 26, 1967; General Assembly, 22nd Sess., Official Records, United Nations Emergency Force, Special Report by the Secretary-General, U.N. Doc. A/6669, May 18, 1967; Security Council, Official Records, Report by the Secretary-General, Doc. 7896, May 19, 1967; and Report by the Secretary-General, U.N. Doc. S/7906, May 26, 1967; General Assembly, 22nd Sess., Official Records, UNEF, Special Report of the Secretary-General, Doc. A/6669/Add. 2, June 19, 1967; and UNEF, Report of the Secretary-General, Doc. A/6672, July 17, 1967.

⁸ General Assembly, 11th Sess., Official Records, Annexes, Agenda item 66, U.N. Doc. A/3375, Annex.

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As Hammarskjöld recounts the negotiations that produced this agreement, the Egyptian Government had demanded that future withdrawal of Egyptian consent would result in automatic withdrawal of UNEF. Hammarskjöld responded, not by denying the Egyptian "right," but he saw the need for "the limitation of Egypt's sovereign right in the interest of political balance and stability in the UNEF operation."⁹ He argued that the basis for this limitation was

> ... the fact that Egypt has spontaneously endorsed the General Assembly resolution of 5 November and by endorsing that resolution had consented to the presence of the UNEF for certain tasks. They could thus not ask the UNEF to withdraw before the completion of the tasks without running up against their own acceptance of the resolution on the Force and its tasks.¹⁰

Hammarskjöld quoted himself as saying in a personal message to the Egyptian Foreign Minister:

> If arrangements would break down on this issue (withdrawal only on completion of the tasks), I could not avoid going to the General Assembly (with the conflict which had developed between us on this question of principle) putting it to their judgment to decide what could or could not be accepted as an understanding. This situation would be a most embarrassing one for all but I would fear the political repercussions, as obviously very few would find it reasonable that recognition of your freedom of action should mean that you, after having permitted the Force to come, might ask it to withdraw at a time when the very reasons which had previously prompted you to accept were still obviously valid.¹¹

Hammarskjöld relates that Egypt then gave the go-ahead for the stationing of UNEF, and he regarded this as constituting acceptance of the position he had just communicated, i.e., that a request for withdrawal would be "dependent upon the completion of the task—a question which in the United Nations, obviously would have to be submitted to interpretation by the General Assembly."¹²

But this did not settle the matter. President Nasser was extremely reluctant to accept the limitation on his freedom of action represented by the Good Faith Accord. Hammarskjöld concludes the Memorandum by relating that a final discussion with Nasser was required, a discussion for seven hours which left no doubt in Hammarskjöld's mind that Nasser well understood the implications of the Good Faith Accord. Hammarskjöld recalls the episode:

> I felt obliged, in the course of the discussion, to threaten three times, that unless an agreement of this type was made, I would have to propose the immediate withdrawal of the troops. If any proof would be necessary for how the text of the agreement was judged by President Nasser, this last mentioned fact tells the story.¹³

⁹ 6 Int. Legal Materials 595 (1967).

¹⁰ *Ibid.* 595.

¹¹ *Ibid.* 599.

¹² *Ibid.* 600.

¹³ *Ibid.* 602.

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The relationship of United Nations authorization and host state consent is the critical matter raised by the Hammarskjöld Memorandum and U Thant's response; U Thant's response is founded on a key legal argument which specifically concerns this relationship. The argument proceeds as follows: The Good Faith Accord was agreed upon in mid-November, 1956, and relates only to the task of the Force as declared up to that point in time, i.e., the Good Faith Accord specifically refers to Resolution 1000 (ES-I) of November 5, 1956, which stated the task of UNEF to be "to secure and supervise the cessation of hostilities in accordance with all the terms of General Assembly Resolution 997 (ES-I) of 2 November 1956."¹⁴ Resolution 997 in turn urged all parties in the 1956 war to cease fire, halt the further introduction of military forces and arms, and to withdraw behind the armistice lines and observe the armistice agreements. It was only later, in Resolution 1125, February 2, 1957, that the General Assembly authorized the buffer force that was to exist for ten years until its withdrawal in 1967. Resolution 1125 states:

> ... the scrupulous maintenance of the Armistice Agreement requires the placing of the United Nations Emergency Force on the Egyptian-Israeli armistice demarcation line and the implementation of other measures as proposed in the Secretary-General's report.¹⁵

U Thant argues that because there was nothing in the nature of a Good Faith Accord on this latter task defined in Resolution 1125, the Hammarskjöld interpretation could not be projected to the UNEF that existed as an armistice-maintaining force in 1967. In his discussion the Secretary General regards this point as conclusively demonstrating the legal requirement of UNEF withdrawal at the request of Egypt, regardless of how the Good Faith Accord is interpreted.

It is significant that sometimes when making this argument U Thant speaks only of that portion of the original mandate which mentioned securing and supervising the cessation of hostilities; and he omits the phrase "in accordance with all the terms of resolution 997 (ES-I)."¹⁶ The omission is significant because the scope of Resolution 997 supports a broader conception of the task than the mere cessation of the immediate conflict. Resolution 997 contained two provisions relevant to the functions for UNEF. In the first the General Assembly urged

> ... that all parties now involved in hostilities in the area agree to an immediate cease-fire and, as part thereof, halt the movement of military forces and arms into the area.¹⁷

But the second provision had a broader scope. It stated that the General Assembly

¹⁴ General Assembly, Official Records, Res. 1000 (ES-I), 565th plenary meeting, Nov. 5, 1956.

¹⁵ General Assembly, Official Records, Res. 1125 (XI), 652nd plenary meeting, Feb. 2, 1957 (U.N. Doc. A/3512).

¹⁶ See, e.g., U Thant's comments in his letter to the New York Times, June 20, 1967, p. 19. Reprinted in 6 Int. Legal Materials 603.

¹⁷ General Assembly, Official Records, Res. 997 (ES-I), 562nd plenary meeting, Nov. 2, 1956.

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Urges the parties to the Armistice Agreements promptly to withdraw all forces behind the armistice lines, to desist from raids across the armistice lines into neighboring territory, and to observe scrupulously the provisions of the armistice agreements.¹⁸

The question thus becomes whether the UNEF as it existed in 1967 properly fits within these terms of the original mandate. While U Thant maintains that Resolution 997 related only to the immediate situation at the time and cites Dag Hammarskjöld's statement that "the Assembly intends that the Force should be of a temporary nature, the length of its assignment being determined by the needs arising out of the present conflict,"¹⁹ the fact remains that Resolution 997 left an open perspective on the future.²⁰ And surely the quoted comment by Dag Hammarskjöld does not foreclose the view that the tasks as described in the November 5 resolution provided a basis for the UNEF in 1967. What is a "temporary" force? Six months? Ten years? Certainly "the needs arising out of the present conflict" could be seen to entail a force of more than a decade's duration.

However, the view that the earlier resolutions provided a basis for the later UNEF does perhaps seem incorrect in its suggestion of a certain redundancy. For if the earlier resolutions provided a sufficient basis for the later UNEF, why was there need for further authorization via the resolution of February 2, 1957?

In reflecting on this, we begin to see the distinctive nature of an institutional mechanism like UNEF. First, one ought to consider the way Dag Hammarskjöld himself conceived the establishment of UNEF's functions. It is clear that he contemplated continuity in the rôle of the Force. In his *Summary Study* of the Force, which articulated essential principles and which was written in late 1958 after the adoption of all the resolutions we have been discussing, he wrote:

> UNEF was brought into being to meet a particular situation in which a United Nations force could be interposed between regular, national military forces which were subject to a cease-fire agreed to by the op-

¹⁸ *Ibid.*

¹⁹ General Assembly, 11th Sess., Official Records, First Special Sess., Annexes, Agenda item 5, U.N. Doc. A/3302, par. 8, Nov. 6, 1956, as cited in U.N. Doc. A/6730/Add. 3, p. 24.

²⁰ In his recently published volume, The UN and the Middle East Crisis, 1967, Professor A. Lall has similarly understood the early resolutions. He has written that the final amendment of Res. 1000 "was to bring within the terms of Egypt's acceptance of Resolution 1000 (ES-I) such matters as scrupulous observance of the provisions of the Armistice Agreement and refraining from introducing military goods into the area of hostilities. There is no time limit on these obligations, and their strict meaning would entail restraint by Egypt from deploying concentrations of forces close to the Israeli border in the Sinai and elsewhere. A corresponding obligation rests on Israel. [Citing Art. VII, pars. 4 and 5, of the Egyptian-Israeli General Armistice Agreement of Feb. 24, 1949.] Egypt's obligation may be regarded as somewhat greater because it voted for Resolution 997 and signified its acceptance of Resolution 1000 (ES-I)." ["Signified" by telegraphing its acceptance to the Secretary General on Nov. 5, 1956, after abstaining in the vote. See U.N. Doc. A/3295 (1956).] A. Lall, The UN and the Middle East Crisis, 1967, pp. 16-17 (1968).

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posing parties. UNEF has continued to function along the "dividing line" between the national forces. It follows that in UNEF there has never been any need for rights and responsibilities other than those necessary for such an interposed force under cease-fire conditions.²¹

But though the rôle of UNEF was not essentially changed, its mode of im-
plementation had to be changed as the nations concerned acted, the situ-
ation altered, and different needs and possibilities became apparent. It
was for this reason that Hammarskjöld saw that the General Assembly au-
thorization should take a general and vague form, particularly at the begin-
ning of an operation. He wrote in the *Summary Study*:

> In view of the impossibility of determining beforehand the specific form of a United Nations presence of the type considered in this report, which would be necessary to meet adequately the requirements of a given situation, a broad decision by the General Assembly should attempt to do no more than endorse certain basic principles and rules which would provide an adaptable framework for later operations that might be found necessary.²²

So U Thant's insistence on a very specific meaning for the early resolutions belies the truth that the planners of UNEF looked to the need for future settlement.²³ The early authorization of the Force was vague because no one at that time could be certain what UNEF's functions might be, and there was certainly no specific consensus over what the General Assembly wanted it to be. Specific agreement was a practical and political impossibility.

Besides, in the operation of a military or para-military force like UNEF,
the legislating body necessarily delegates an extremely broad power of
decision to the executive because the highly uncertain but extreme needs
involved require great immediacy and responsiveness of direction and deci-
sion. Consequently, the relationship of the "legislative body" and the "ex-
ecutive arm" is often ambiguous as to who is the leader and who is the led.
Typically, the "executive" will exercise an initiative and then return to the
authorizing body for affirmation and validation of decision and action. So
it was that Resolution 1125 reflected a significant development in the rôle
of the Force for which the Secretary General found an explicit statement
of General Assembly approval to be useful. Not unlike the recent Gulf of
Tonkin Resolution in the United States, the legislative affirmation became
a foundation upon which the executive could later defend its initiatives. In
this regard, then, the reason for obtaining the resolution of February 2,
1957, was not that the task it authorized could not be fit under the terms

²¹ Report of the Secretary-General: United Nations Emergency Force, Summary Study of the experience derived from the establishment and operation of the Force, U.N. Doc. A/3943, p. 60, Oct. 9, 1958.

²² *Ibid.* 63.

²³ That such was the way Dag Hammarskjöld himself conceived the problem is reflected in another instance by his statement that "it is further clear that the General Assembly, in its resolution of 5 November 1956, by the reference to its resolution of 2 November, had wished to reserve for itself the full determination of the tasks of this emergency force, and of the legal basis on which it must function in fulfillment of its mission." U.N. Doc. A/3302, p. 4, Nov. 6, 1956.

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of the November 5 and November 2 resolutions of 1956. Rather, the reason was the utility to the Secretariat in having a more current and definite political consensus and mandate to back it up.

A back-up of this nature may even in time become crucial to the success of a peacekeeping effort. In the operation of international institutions, just as in national and local governments, the less exact the legislative mandate within which an administrator works, the greater the burden of responsibility, and the more he and his office will be held responsible for consequences. A broad and vague mandate provides little defense when resistance and resentment are aroused. In the context of United Nations activity, it is for the Secretary General to balance initiative and responsibility; and where useful and possible he must try to obtain specific backing to support and save the efforts of the Secretariat. This is the art of his office. In the case of UNEF, the General Assembly debates well reflect the uncertainty of the original mandate—uncertainty on which disaffection and disagreement could have thrived. So as the force was developed and international support for a long-term stationing appeared, that support was embodied in Resolution 1125 of February 2, 1957.

Confirming the view that the reference in the Good Faith Accord to the initial resolutions nevertheless made the Accord applicable to the later UNEF is the fact that Egypt never found it necessary to again formally consent to the later stipulation of the task in the resolution of February 2, 1957. This was the case even though Dag Hammarskjöld, at the origination of UNEF, had expressed the opinion that an extension of UNEF's activity might require such additional agreement;²⁴ and in particular, some early and ambiguous remarks by Hammarskjöld can be read to mean that he thought a formal consent would be required for the stationing of the mature UNEF in Gaza and at Sharm-el-Sheikh.²⁵ But whatever the earlier opinion, it is clear that neither Hammarskjöld nor Egypt found a formal consent to be necessary to the resolution of February 2 nor to stationing the UNEF in Gaza and at Sharm-el-Sheikh. Indeed, the fact is that Egypt even abstained on the vote for the resolution of February 2.

Finally, if the Good Faith Accord is read as the only consent by Egypt and consent only to the tasks authorized in the initial Resolution 997; and if, as U Thant has maintained, the February 2 resolution (1125) is not to be regarded as falling within the terms of Resolution 997, then it follows

²⁴ Hammarskjöld had said that "the question which is not yet fully clarified is how far in the practical cases under consideration the duties of the Force go, and how far, therefore, certain arrangements for the Force are covered or not by the consent given by Egypt as qualified by its assurance of interpretation in good faith of the basic decisions of the General Assembly." General Assembly, 11th Sess., Official Records, 649th plenary meeting (Feb. 1, 1957), Vols. II-III, p. 1040.

²⁵ A statement to this effect by the Secretary General was that "the stationing of the Force at Sharm-el-Sheikh, under such terms as those mentioned in the question posed by Israel, would require Egyptian consent." U.N. Doc. A/3527, par. 5, Feb. 11, 1957. But it must be noted that the Secretary General was replying to an Israeli request for guarantees of freedom of navigation, and the Secretary General had always maintained that the deployment of UNEF could not result in any change of the *status juris*, and that any such change could be settled only by consent of the disputing parties.

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that the stationing of UNEF on the Armistice Line was always illegal, since
it was not within the consent of the host state. This conclusion is obviously
unacceptable. In the end, the fundamental argument presented by U
Thant confounds itself.

There was, accordingly, really no significant reason for insisting that the
Good Faith Accord was relevant only to the resolutions and circumstances
before the resolution of February 2. The legal basis for a United Nations
force is characteristically part of a process of evolution whereby practical
realities, political possibilities, and legal development interact, each expos-
ing the limits and room for growth of the other. The Secretary General's
understanding that the authorization for UNEF developed in discreet jumps
comported poorly with this natural process of development.

But there is another more fundamental respect in which the position
maintained by the Secretariat after the withdrawal contravenes the Ham-
marskjöld Memorandum and the official documentation relevant to the legal
basis for UNEF. To think of the Good Faith Accord as the ultimate basis
for any limitation on a unilateral right of Egypt to require withdrawal is
to misunderstand the rationale of the Accord. Dag Hammarskjöld said in
the Memorandum:

> My starting point in the consideration of this last mentioned problem—the limitation of Egypt’s sovereign right in the interest of political balance and stability in the UNEF operation—was the fact that Egypt had spontaneously endorsed the General Assembly resolution of 5 November and by endorsing that resolution had consented to the presence of UNEF for certain tasks. They could thus not ask the UNEF to withdraw before the completion of the tasks without running up against their own acceptance of the resolution on the force and its tasks.²⁶

Hammarskjöld's point was that Egypt's consent involved a legal obli-
gation independent of the Good Faith Accord. This was basically that
Egypt's consent to the General Assembly resolutions constituted one side
of a bilateral agreement on the stationing of the Force for the completion
of its tasks. The commitment to a good-faith interpretation of the tasks
and the lack of any condition for unilateral termination of the Force left
bilateral negotiation as the only means precedent to valid termination.

The Good Faith Accord was intended by Hammarskjöld to reflect Egypt's acceptance of this interpretation of the legal import of Egyptian consent to the General Assembly resolutions; and the Good Faith Accord is perfectly consistent with this interpretation. The Accord states the commitment—completion of the task—and reflects its bilateral nature when, in stipulating the United Nations obligation to interpret the tasks in good faith, it says: "understanding this to correspond to the wishes of the Government of Egypt."²⁷

This, then, was another basic element in a legal position of resistance to
the unilateral demand of Egypt in 1967. The bilateral agreement consti-
tuted by General Assembly resolution and host state consent could be re-
garded as applicable to the stationing of any United Nations force that

²⁶ 6 Int. Legal Materials 595.

²⁷ U.N. Doc. A/3375, Annex.

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involved host state acquiescence in General Assembly authorization at any point in time; so that in the case of UNEF, the Good Faith Accord's specification of the earlier resolutions did not thereby limit the legal obligations involved. Although the Good Faith Accord was occasioned by the original statement of the tasks in Resolutions 1000 and 997 of November, 1956, Egyptian acquiescence in action pursuant to the later Assembly resolution of February 2, 1957 (1125), similarly bound Egypt to a good-faith negotiation of whether the conditions for a withdrawal had been established, i.e., whether the tasks specified on February 2 had been completed. Another Good Faith Accord was not needed to support the later authorization because it was then understood how host state consent to a General Assembly resolution specifying tasks was to be interpreted. This is indeed conclusively confirmed by Hammarskjöld's report pursuant to Resolution 1125 wherein he stated his understanding of Resolution 1125 and noted its relation to the Good Faith Accord. He wrote:

> The Secretary-General has understood the General Assembly to see in resolution II [1125] a formal undertaking with respect to measures to be effected upon withdrawal, in the light of which resolution I [1124] should be implemented without delay. This is particularly so, since the United Nations Force is deployed in the region with an assurance from the Government of Egypt that the Government, when exercising its sovereign rights on any matter concerning the presence and functioning of UNEF, will be guided in good faith by its acceptance of the basic General Assembly resolution of 5 November 1956 concerning the Force and its functions.²⁸

Now, admittedly, the Hammarskjöld Memorandum leads to some confusion on the question of how the Egyptian obligation was being constituted. Hammarskjöld at one and the same time says that Egypt was obligated not to withdraw her consent until the tasks had been completed, but that "Egypt constitutionally had an undisputed right to request the withdrawal of the troops, even if initial consent had been given."²⁹

The only way to make sense of this is to view it as saying that a sovereign Power can ultimately secure withdrawal of the force because she cannot be forced to do otherwise, but that nevertheless the legal obligation of a good-faith determination of the completion of the tasks remains. The reason for obtaining Egyptian agreement to the Good Faith Accord was to tie Egypt in a public statement to the Hammarskjöld interpretation of the legal import of Egyptian consent to a General Assembly resolution authorizing the Force for the completion of certain tasks. The language of the Good Faith Accord was dictated by the political implications of this agreement. Hammarskjöld recognized that Egypt could not publicly agree to a flat statement qualifying her sovereignty. He wrote: "put in this naked form, ... the problem could never have been settled."³⁰ The formula of a "good faith interpretation of the tasks of the force" was thus used as a way

²⁸ Report of the Secretary-General in pursuance of the Resolution of the General Assembly of 2 February 1957, U.N. Doc. A/2527, p. 5, par. 14, Feb. 11, 1957.

²⁹ 6 Int. Legal Materials 596.

³⁰ *Ibid.* 600.

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to represent the understanding and yet avoid an unacceptable embarrass-
ment to the host.

Not only is it clear that Dag Hammarskjöld's interpretation of the import of Egyptian consent is supportable as a legal construction, but it appears in the early General Assembly debates on the Force that there was similar substantive understanding of the arrangement with Egypt.³¹ At least there is categorical statement of the notion that there was to be serious limitation of Egyptian freedom of action with regard to withdrawal. For instance, Lester Pearson, the one individual other than Dag Hammarskjöld who was most prominent in the conception and planning of UNEF, said in the early debates:

> ... the Force is to remain in the area until its task is completed, and that would surely be for the determination of the United Nations itself.³²

There were, besides, legal arguments outside United Nations documents which could have been used to back up resistance to Egypt's demand. One such argument was the reliance notion put forward by Secretary of State Dulles in a press conference in 1957 when he said:

> ... once the consent has been given, then I think a good argument can be made that the consent cannot be arbitrarily withdrawn, frustrating the original project, because other people change their positions in reliance on the original consent, forces are set in motion, a chain of events has occurred. And we would question, certainly, whether Egypt has the right arbitrarily to alter and change a consent once given until the purpose of that consent has been accomplished.³³

Furthermore, the Hammarskjöld interpretation is affirmed more generally by United Nations policy. In accordance with the necessary intendment of the United Nations Charter, a basic principle invoked in the establishment of UNEF, and for that matter in the establishment of all United Nations consent forces, has been that a United Nations force should be used to serve only the common interest of nations in securing and maintaining peace, and never merely the policy of a national government or faction.³⁴ A withdrawal undertaken contrary to Hammarskjöld's interpretation, solely at the whim or fiat of the host, would obviously violate this principle.

³¹ General Assembly, 11th Sess., Official Records, 639th, 641st, 645th, 660th plenary meetings. See statements by New Zealand, France, Israel, and the Soviet Union.

³² General Assembly, 11th Sess., Official Records, 592nd meeting, Nov. 23, 1956, p. 268.

³³ 36 Dept. of State Bulletin 597 (1957).

³⁴ The principle is reflected in an early report on UNEF where Hammarskjöld stated: "It follows from its terms of reference that there is no intent in the establishment of the force to influence the military balance in the present conflict and, thereby, the political balance affecting efforts to settle the conflict." U.N. Doc. A/3302, p. 4, par. 8, Nov. 6, 1956. Or again it appears in another report where he said that the use of the consent force "... must ... be impartial, in the sense that it does not serve as a means to force settlement in the interest of one party, of political conflicts or legal issues recognized as controversial." U.N. Doc. A/3512, p. 2, par. 56, Jan. 24, 1957.

251

But surviving all the argument in favor of the understanding set forth in the Hammarskjöld Memorandum is one primary element in Secretary General U Thant's response to the Memorandum. The Secretary General has insisted that the Memorandum is merely a record of private reflection and the position it represents is therefore inconsequential because the same position was never specifically endorsed by an organ of the United Nations nor the Secretary General acting in his official capacity. For instance, U Thant stated in his Summary Report on the withdrawal:

> There is no official United Nations document on the basis of which any case could be made that there was any limitation on the authority of the Government of Egypt to rescind that consent at its pleasure, or which would indicate that the United Arab Republic had in any way surrendered its right to ask for and obtain at any time, the removal of UNEF from its territory.³⁵

But even apart from what has already been discussed, a review of the basic documents in the background of UNEF reveals specific evidence to the contrary. Particularly, Dag Hammarskjöld's Summary Study of UNEF is of course "official," and in spirit and word it contravenes the above conclusion. At paragraph 158, Hammarskjöld explicated what the Good Faith Accord was intended to mean. He wrote:

> 158. The consequence of such a bilateral declaration is that, were either side to act unilaterally in refusing continued presence or deciding on withdrawal and were the other side to find that such action was contrary to a good faith interpretation of the purposes of the operation, an exchange of views would be called for towards harmonizing the positions. This does not imply any infringement on the sovereign right of the host government, nor any restriction on the right of the United Nations to decide on termination of its own operation whenever it might see fit to do so. But it does mean a mutual recognition of the fact that the operation, being based on collaboration between the host Government and the United Nations, should be carried on in forms natural to such collaboration, and especially so with regard to the questions of presence and maintenance.³⁶

The obligation constituted by the Good Faith Accord was thus spelled out, just as it was pointedly referred to elsewhere in the official documentation.³⁷

³⁵ U.N. Doc. A/6730/Add. 3, p. 15, June 26, 1967.

³⁶ It should be noted that this statement was made at the end of 1958, well after all the resolutions establishing UNEF were voted by the General Assembly, including Res. 1125. Here, then, is also another confirmation that the Good Faith Accord was the legal heart of the mature as well as the infant UNEF. See also pp. 245-247 above.

³⁷ From the beginning, similar official understanding of binding obligation appears. On Nov. 7, 1956, Dag Hammarskjöld stated: "I have been asked for an interpretation of what I have said about the length of the assignment of the Force being determined by the need arising out of the present conflict. I am sure the Members will appreciate that, in the still unclear situation, it would be premature for me to say how the needs might develop after the end of the immediate crisis. However, the Force being under the ultimate authority of the General Assembly, I think that the point need not give rise to worries." General Assembly, 11th Sess., Official Records, 567th plenary meeting, p. 115, Nov. 7, 1956. And as late as 1959, there appears another significant instance when the Secretary General officially declared in the General Assembly that he

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But finally, what must above all be recognized is that the greatest strength of the Hammarskjöld interpretation lies in its understanding of the concept of consent. For consent is at the same time a very provocative and a very ambiguous notion. We naturally tend to conceive it in personal psychological terms, as an expression of a state of mind. As used in the context of the establishment of a peacekeeping force, however, and as it was used in the case of UNEF, consent represents a different and more comprehensive reality. The term is used metaphorically. UNEF was not established just on the basis of the formal unilateral statement of consent by Egypt; rather, Egypt's consent represented part of a multinational political arrangement founded on the availability of UNEF as a buffer: That is, the invading states in the 1956 conflict—Israel, the United Kingdom and France —agreed to withdraw their forces on the basis of the establishment of UNEF, and this was of fundamental importance to the adjustment represented by Egypt's formal agreement, so much so that at one point there was even talk of also obtaining a formal agreement of Israel, France and the United Kingdom for putting UNEF on Egyptian territory.⁸⁸ Thus, the reality was that the agreement of the invading Powers to withdraw was in effect the consideration, the *quid pro quo* for Egypt's "consent." Similarly, as the long-term presence of the force became the *prima facie* indication and condition of a political-military stabilization in the Middle East, "consent" reflected continuing political adjustment based on the availability of UNEF as a neutral buffer. In this sense, the Hammarskjöld interpretation is uniquely true to the fundamental political realities underlying the establishment of UNEF and its subsequent development.

## THE PROCEDURE ENVISIONED

The question then is, how would Hammarskjöld's understanding of the arrangement with Egypt have operated in the context of the Middle East crisis as it developed in the summer of 1967. Indeed, much of U Thant's justification for the decision to withdraw is devoted to the pragmatics of the situation; and a fundamental theme of his discussion is that in 1967 the

regarded Egypt's freedom of action as qualified. Referring to the thesis that use of military force other than under Ch. VII of the Charter requires the consent of the state on which the U.N. force is to operate, he said: "however, I fully agree that if this were the whole story, the situation would be most unsatisfactory. In practice the consent obviously must be qualified in such a way as to provide a reasonable basis for the operation of the United Nations Force. This is exactly the reason why, in November 1956, an arrangement was agreed upon with the Government of Egypt, according to which the Government of Egypt declared that when exercising its sovereign rights on any Emergency Force, it would be guided by its acceptance of the General Assembly resolution (1000 ES-1) of 5 November 1956." General Assembly, Official Records, 649th meeting, Feb. 1, 1959, pp. 1039-1040, par. 111.

⁸⁸ Canada, in fact, tabled a proposal to this effect. Moreover, the General Assembly effectively recognized the political fact by its statement in the founding resolution of UNEF that the plan in 1956 was "for the setting up with the consent of the *Nations concerned, of an emergency United Nations Force*." General Assembly Res. 998 (ES-I), U.N. Doc. A/3354, Nov. 4, 1956. Emphasis added.

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Secretariat was confronted with a stark and overwhelming political reality which allowed no practical alternative to withdrawal.

It is essential here to recognize exactly what the application of Hammarkjöld's interpretation of the Good Faith Accord would involve. The response to a host state's demand for withdrawal would be an insistence that withdrawal could be legally secured only by the process of negotiation and bilateral adjustment embodied in the Good Faith Accord. The insistence *would not be* that withdrawal could not be secured. The insistence *would be* that the host state was legally obligated to work through an established procedure of negotiation. And it should be noted that, although in the case of UNEF there was very strong legal support for the Hammarkjöld position, resistance would not have depended on whether the Hammarkjöld position was necessarily right and conclusive as a matter of law, but only on the fact that a persuasive legal position could have been stated.

It is likely there would have been one very natural but very important result of this resistance by the Secretariat to precipitous action by any of the parties. Resistance will entail delay; and in the crisis-charged atmosphere occasioned by the host state's request for withdrawal, peacekeeping will naturally benefit from delay, from avoidance of the serious military and political dislocation that will inevitably arise if the peacekeeping force is withdrawn while the situation of its stationing remains highly dangerous. Moreover, delay means more than simply avoidance of untoward results. There is also the very important positive aspect. Delay means space for talk and letting off steam, for exchange of opinion, and for efforts at settlement.

Even before negotiation, delay can be extremely helpful simply by giving the political decision-makers an opportunity to appreciate the enormity of the consequences which may result from premature withdrawal of a peacekeeping force. The withdrawal of UNEF provides a particularly apt illustration of this latter opportunity. It was known to all concerned that Israel had, since the 1956 war, repeatedly emphasized the critical importance to her of freedom of navigation in the Gulf of Aqaba, critical for her economy in general and especially critical for the development of the southern part of the country. She had gone so far as to officially state that any interference with freedom of navigation in the Gulf would be regarded as an act of war.³⁹ Also, it was foreseeable that, in the event of a UNEF withdrawal, Egypt would find herself in the position of having Israel-bound ships pass before the gun positions Egypt herself had controlled before they were seized in the war of 1956. Egypt remained in a declared state of belligerency. So coming into possession of Sharm-el-Sheikh, she could

³⁹ The Israeli delegate said in the General Assembly: "Interference by armed force, with ships of Israel flag exercising free and innocent passage in the Gulf of Aqaba and through the Straits of Tiran, will be regarded by Israel as an attack entitling it to exercise its inherent right of self-defense under Article 51 of the United Nations Charter and to take all such measures as are necessary to ensure the free and innocent passage of its ships in the Gulf and in the Straits." General Assembly, 11th Sess., Official Records, 666th plenary meeting, p. 1276, March 1, 1957.

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hardly have been expected to fail to exercise the "belligerent right" to for-
bid passage of Israeli vessels, a "right" to which Egypt had committed
prestige through her own propaganda for years. Certainly, then, the out-
break of major hostilities on the heels of a UNEF withdrawal was predict-
able. The point is, that if there had been more time, enough for this sort of
projection to impress itself on interested parties,⁴⁰ there might well have
been established conditions for developments other than the June war.

The Good Faith Accord as interpreted by Dag Hammarskjöld shows that the value of delay and related negotiation was expressly contemplated by the founders of UNEF. But quite beyond the general language of the Good Faith Accord, the related documentary background of UNEF outlines a fairly definite procedural structure which embraces the value of delay and was intended as an instrument by which peace might be maintained in the event of host state demand for withdrawal.

It should first be noted that the procedure does not include recourse to
international adjudication. The simplest and most significant reason for
this would seem to be that the demand for withdrawal brings with it crisis,
and in a situation of international crisis it is not to be expected that the
host state or other interested parties would be willing to wait for judicial
determinations. There is too much that can be lost too soon. Events will
move with the rapid pace of political and military decision. In the crisis
situation, therefore, adjudication is an artificial process just because it is
removed from the locus of political decision. This reason for the inade-
quacy of adjudication indicates that the greatest hope for peacekeeping in
this situation—what in fact was projected in the planning for UNEF—is a
procedure congruent with political decision, a procedure for pacific settle-
ment that can grow and move naturally with the crisis, retarding its move-
ment and providing the framework for working towards some new political
and institutional arrangement to overcome the dislocation which the re-
quest for withdrawal of a peacekeeping force represents.

If we look to the procedure building naturally from the political context,
the first effort to achieve the needed arrangement would naturally fall to
the office of the Secretary General. This would be consistent with the fact
that throughout the planning and implementation of UNEF, it had always
been for the Secretary General to make the primary efforts and initial de-
terminations.⁴¹ And specifically with respect to the demand for with-

⁴⁰ It was, in fact, reported of the blockade of the Strait of Tiran: "Israeli leaders now agree that war, from that moment, seemed inevitable." New York Times, July 10, 1967 14:1.

⁴¹ For example, in the United Nations’ initial response to the 1956 war, the Secretary General was entrusted with arranging for a cease-fire and the withdrawal of military forces. Res. 997 (ES-I), 999 (ES-I), and 1123 (XI). The General Assembly then asked the Secretary General to submit a plan for the creation of UNEF. Res. 999 (ES-I), General Assembly, 11th Sess., Official Records, 1st Emergency Special Sess., Supp. No. I (U.N. Doc. A/3354), p. 2. He subsequently submitted two reports which were approved by the General Assembly as the basic plan for the Force. First Report, General Assembly, 11th Sess., Official Records, Agenda item 5, U.N. Doc. S/3289; Second Report, *ibid.*, Doc. A/3302. In the later implementation of UNEF the General

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drawal, the Secretary General is in a particularly good position to resist the demand of the host and direct the dispute to processes of negotiation. For instance, it would have been perfectly appropriate for the Secretary General to have argued after the request for the withdrawal of UNEF that his own authority in the matter had to be clarified before he could agree; he would thus have been sponsoring an examination of the nature of the obligation represented by the Good Faith Accord, and providing an opportunity to raise the question of whether the host was obligated to negotiate the question of withdrawal.

It is clear that Dag Hammarskjöld regarded the legal framework embodied in the Good Faith Accord as the foundation for efforts to achieve political settlement. As he related in the Memorandum,⁴² he told Egypt repeatedly that projected future negotiation between the parties would focus on the question of "completion of the tasks"; and that disagreement on this question, if unresolved between the host and the United Nations Executive, would be brought before the General Assembly.

In later commentary on the procedure envisioned, Hammarskjöld put less emphasis on the directness with which a disagreement would be brought before the General Assembly and introduced a substantial modification. In February of 1957, in response to an Israeli inquiry about any future withdrawal of UNEF from Sharm-el-Sheikh, he suggested:

> ... an indicated procedure would be for the Secretary-General to inform the Advisory Committee on the United Nations Emergency Force, which would determine whether the matter would be brought to the attention of the Assembly.⁴³

The "Advisory Committee" was a body established directly by the terms of one of the early resolutions establishing UNEF.⁴⁴ It was originally made up of one representative each from Brazil, Canada, Ceylon, Colombia, India, Norway and Pakistan. It was chaired by the Secretary General and,

Assembly delegated to the Secretary General the primary responsibility for the administration of the Force, Res. 1000 (ES-I), 1001 (ES-I), while the General Assembly itself remained only in the background for review and approval of the actions taken and decisions made by the Secretary General in interpreting his broad mandate. A particularly good example of the Secretary General's primary position is that the agreements with countries contributing contingents—agreements of critical importance—were concluded under the authority of the Secretary General. The same is true of the Agreement on the presence and functioning of UNEF in Egypt and the subsequent Agreement on the status of UNEF in Egypt. Report of the Secretary-General on Basic Points for the Presence and Functioning in Egypt of the United Nations Emergency Force, U.N. Docs. A/3375, Nov. 20, 1956, and 5 ST/SGB/UNEF. 1 Reg. 15. Perhaps the best example of all is the Good Faith Accord itself, which was drawn up at the initiative of the Secretary General and was the agreement that the parties regarded as the critical basis for the existence of the Force on Egyptian soil.

⁴² See p. 243 above.

⁴³ Memorandum of important points in the discussion between the Representative of Israel and the Secretary-General on 25 February, 1957, U.N. Doc. A/3563, Annex, p. 1, Feb. 26, 1957, General Assembly, 11th Sess., Official Records, Annexes, Vols. II-III, Agenda item 66, p. 11.

⁴⁴ General Assembly, Official Records, Res. 1001, 567th plenary meeting, Nov. 7, 1956.

["256", "THE AMERICAN JOURNAL OF INTERNATIONAL LAW", "[Vol. 64]", "as its title indicates, it was authorized to assist in the planning and opera-\ntion of the UNEF. But the Committee was given one power beyond the\nlimits of its name. This was the power to request the convening of the\nGeneral Assembly when the Committee had a matter of sufficient urgency\nand importance to report for General Assembly consideration.", "Little is publicly known of the history of the Advisory Committee. Meet-\nings were private and reports were not released. About all that can be\nsaid with much assurance is that the authority to convene the General As-\nsembly was never invoked, but that the Committee was used in its ad-\nvisory capacity for consultations with the Secretary General. However, in\na brief description of the Advisory Committee in his Summary Report on\nUNEF, Dag Hammarskjöld in effect instructed how the Committee was in-\ntended to be used.⁴⁵ He stated that the Committee was to be an instru-\nment for elevating a dispute to the level of international political repre-\nsentation with a quick and sure facility, while preserving the ultimate au-\nthority of the Secretary General. Thus, the Committee could be used to\nshield the Secretary General from the kind of political flak that would\nnecessarily develop if the United Nations Executive resisted a host state\ndemand. At the same time, the Secretary General's initiative was to be\npreserved by means of his commanding position in the Committee.", "The plan apparently was for the Committee to be a kind of halfway\nhouse between the diplomatic response of the Secretary General at the\ntime of the initial host state request, and the ultimate presentation of the\nquestion before the primary authorizing body, the General Assembly. As\ntime passed after the request for withdrawal, the political procedure and\nthe political base for United Nations efforts to provide a settlement for\nmaintenance of the peace would be broadened. As time passed and the\npressure and volatility of the situation increased, responsibility could be\nmoved out of the lonely hands of the Secretary General.", "The Good Faith Accord was to be the formal legal basis for the working\nout of this result through its subtle and imaginative provision of a frame-\nwork as well as a foundation for negotiation and settlement. There is a\nparticularly striking aspect of this. The Accord incorporates what is in\neffect a mechanism of legal sanction that helps to contain the dispute and", "⁴⁵ Hammarskjöld wrote: "In the case of UNEF, the General Assembly decided to organize an Advisory Committee under the chairmanship of the Secretary-General, to assist the operation. In practice, this arrangement has proved highly useful. In principle, it should be accepted as a precedent for the future. Extensive operations with serious political implications, regarding which, for practical reasons, executive authority would need to be delegated to the Secretary-General, require close collaboration with authorized representatives of the General Assembly. However, it would be undesirable for this collaboration to be given such a form as to lead to divided responsibilities or to diminished efficiency in the operation. The method chosen by the General Assembly in the case of UNEF seems to be the most appropriate one if such risks are to be avoided. The Committee is fully informed by the Secretary-General and his associates. There is a free exchange of views in closed meetings where advice can be sought and given. But ultimate decisions rest with the Secretary-General as the executive in charge of carrying out the operation. Dissenting views are not registered by vote, but are put on record in the proceedings of the Committee." U.N. Doc. A/3943, p. 71, Oct. 9, 1958."]

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induce negotiations. The possibility that the dispute may reach the stage of General Assembly consideration presents to the host the risk that the Assembly's decision will involve the imputation of bad faith to the host. Because the host state will want to avoid that consequence, the risk of a multinational declaration of this nature serves to motivate the host to negotiate; and the threat that the host state might have to confront an adverse public judgment by other nations can encourage institutional adjustment. The result is to provide a "sanction" which compensates for the lack of physical enforcement of the peacekeeping presence.

## THE VISION LOST

It is recounted in the Secretary General's reports that the initial request for UNEF's withdrawal was received on May 16, 1967, when the Commander of UNEF received a message from the Chief of Staff of the United Arab Republic Armed forces stating:

> To your information, I gave my instructions to all UAR Armed Forces to be ready for action against Israel the moment it might carry out any aggressive action against any Arab country. Due to these instructions our troops are already concentrated in Sinai on our eastern borders. For the sake of complete security [sic] of all UN troops which install OPs along our borders, I request that you issue your orders to withdraw these troops immediately. I have given my instructions to our Commander of the eastern zone concerning this subject. Inform back the fulfillment of this request. Yours, Farik Awal: [M. Fawzy] COS of UAR Armed Forces.⁴⁶

It is also recounted that not quite three hours later the Secretary General officially responded by stating his position to the Egyptian Government that:

> If it was the intention of the government of the United Arab Republic to withdraw the consent which it gave in 1956 for the stationing of UNEF on the territory of the United Arab Republic and in Gaza it was, of course, entitled to do so.

> A request by the United Arab Republic authorities for a temporary withdrawal of UNEF from the Armistice Demarcation Line and the International Frontier, or from any parts of them, would be considered by the Secretary-General as tantamount to a request for the complete withdrawal of UNEF from Gaza and Sinai, since this would reduce UNEF to ineffectiveness.⁴⁷

This is the basic position that was repeated the next day in an aide-mémoire presented to the Permanent Representative of the United Arab Republic. It is the same position which U Thant maintained throughout the withdrawal and maintained in his subsequent defense of his actions. It tells a great deal about how the United Nations handling of the demand for withdrawal departed from the procedure envisioned by the founders of UNEF.

⁴⁶ U.N. Doc. A/6730, par. 6, subpar. 3a.

⁴⁷ U.N. Doc. A/6730, at subpar. 3(c), or as summarized by U Thant in U.N. Doc. A/6669, p. 5.

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First, the very stringency of the Secretary General's statement was of the utmost significance in the actual handling of the demand for withdrawal. This is illustrated by an account of the events leading up to the withdrawal which has gained much currency,⁴⁸ but which for our purposes, we can just as well regard as hypothetical.

The story is that at the time of the initial request, Egypt was expecting an Israeli attack on Syria, and was moving her forces up to the Armistice Line to deter Israel or to put herself in position to come to Syria's aid. This is explained as the reason for the Egyptian request to the UNEF Commander. It is said that Egypt meant only to ask for some movement and partial withdrawal of the United Nations Force (perhaps a reason why the initial request came only through a message in the field and not through the proper channels for a formal request for withdrawal). In any event, the point made is that Egypt had no intention in its initial request to ask for the complete withdrawal of UNEF;⁴⁹ but that when confronted with the Secretary General's early announced position that there must be total withdrawal or none at all, Egypt proceeded to officially request total withdrawal. The story thus supports the notion that U Thant helped push Egypt to take the stand she did.

However uncertain we may be about the motivation of Egypt's early actions and statements, the point made by the above report is nevertheless valid. For given the fact that the Secretary General himself was uncertain what the initial Egyptian request meant—as the Secretary General's own report makes clear⁵⁰—there was a real possibility at the time that his position would force Egypt's hand. Before there was even a communication from the Egyptian Government through the proper official channels, the

⁴⁸ See, e.g., James Reston in the New York Times, June 5, 1967, 1: 5. Yost, "How the Arab-Israeli War Began," 46 Foreign Affairs 313-314 (1968). Both Reston and Yost refer to information received from "highly placed Egyptian sources." It is notable that U Thant and also Ralph Bunche have paid the story the respect of a public reply. See New York Times, June 11, 1967, IV, 13: 1-2. Moreover, this version of the events is supported by public statements made by President Nasser at the time of the withdrawal. See May 25 speech by President Nasser on the blockade of Aqaba. New York Times, May 26, 1967, 16: 2-5. President Nasser is also reported to have confirmed it recently in a private interview. See The Chicago Sun-Times, April 24, 1969, p. 44: 1-6.

⁴⁹ For a convincing elaboration and investigation of the suggestion that the UAR's original intention was not the total withdrawal of UNEF, see Nabil Elaraby, "United Nations Peacekeeping by Consent: A Case Study of the Withdrawal of the United Nations Emergency Force," 1 New York University Journal of International Law & Politics 171-173 (1968).

⁵⁰ The Secretary General has recounted his understanding as follows: "The exact intent of General Fawzy's letter needed clarification. If it meant the temporary withdrawal of UNEF troops from the line or from parts of it, it would be unacceptable because the purpose of the United Nations Forces in Gaza and Sinai is to prevent a recurrence of fighting and it cannot be asked to stand aside in order to enable the two sides to resume fighting. If it was intended to mean a general withdrawal of UNEF from Gaza and Sinai, the communication should have been addressed to the Secretary-General from the Government of the United Arab Republic and not to the Commander of UNEF from the Chief of Staff of the Armed Forces of the United Arab Republic." U.N. Doc. A/6730, p. 4.

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Secretary General framed the question of withdrawal in the stark terms of "all or nothing," completely foreclosing the possibility of any results other than no movement of UNEF at all, or a complete withdrawal. The issue here is not the wisdom or unwisdom of the Secretary General's position that a partial withdrawal of UNEF would be worse than no UNEF at all. The point here is that the rigidity of the United Nations' position as stated—the insistence that UNEF either did or did not have a basis in consent of the host—foreclosed the possibility of any face-saving accommodation which could have alleviated Egypt's immediate concern, whatever that may have been, yet preserved UNEF's fulfillment of its rôle substantially intact.

What is illustrated by these facts is an insensitivity to the political background of the legal terms involved. The Secretariat acted like a court deciding a point of law, instead of using the law as an adjunct of diplomacy. That is, the failure was essentially the failure to conceive the law of the matter beyond the formal rule, beyond the strict "either-or" terms—either consent or no consent, either UNEF withdraws or stays. This rigid presentation of the question precluded use of the procedural framework that Dag Hammarskjöld had planned. Instead of the use of the position of the Secretary General to bring to bear the diplomatic processes and the procedures to work towards relieving the tension; instead of siphoning off pressure through delay and accommodation, pressure was reinforced through the rigid application of a legal formalism.

If diplomatic processes had been given a chance to work towards relieving the tension, Egypt might in good time have moved back. Even presuming the facts as stated in the Secretary General's reports, there is no question that this was a solid possibility. But the official United Nations position was presented as a challenge to Egypt. U Thant categorically stated that position only three hours after the informal request. On the next day, moreover, he repeated his legal conclusion to the United Arab Republic Government, and added:

> If, therefore, the orders to the troops of the United Arab Republic . . . are maintained, the Secretary-General will have no choice but to order the withdrawal of UNEF from Gaza and Sinai as expeditiously as possible.⁸¹

It was by thus challenging Egypt that the official United Nations position practically eliminated the possibility of any Egyptian concession. For Egypt to have taken back her request in the face of the Secretary General's declaration would have been a public admission that the protection afforded by the United Nations buffer force was more important to Egypt than the safety of her Arab brothers. In addition, it should be pointed out that the Egyptian formal request for withdrawal and the Egyptian notice that "an appeal for reconsideration of the withdrawal decision would encounter a firm rebuff and would be considered as an attempt to impose UNEF as an 'army of occupation'"—these two statements of Egyptian intent on which the Secretary General relies so heavily in his justification of the decision

⁸¹ U.N. Doc. A/6669, p. 6.

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to withdraw⁵²—came only *after* the Secretary General had communicated what was in effect an ultimatum to Egypt on May 16 and 17. In sum, there is strong basis for thinking that Egyptian intransigence was at least in part manufactured unwittingly in the United Nations Secretariat.

The position stated by the Secretary General presents another critical issue of policy. Was it in actual fact likely that the result of a partial withdrawal would have been to reduce UNEF to ineffectiveness? Or, as the Secretary General argued specifically in response to the “hypothetical” re-counted above,

> It has been alleged in some quarters that the United Arab Republic first requested only the withdrawal of UNEF from the [armistice demarcation] Line and not from United Arab Republic territory. In a practical sense, this is an academic point, since UNEF, if it was not stationed actually on the Line would have had no useful function anyway.⁵³

The Secretary General's position on this question implies a conception of UNEF's function which in a very significant way is similar to his rigid formulation of the legal question. Again, the picture is in absolute terms that preclude the possibilities of diplomatic and institutional adjustment. For it is at least true that a partial withdrawal would have left the Force immediately available if the performance of its functions again became possible by virtue of negotiation and political settlement. Total withdrawal left the Force not even on the fringe of the void that was being created. It should also be noted that, though the Secretary General's reports emphasize that the total withdrawal of UNEF was required to assure the safety of the UNEF troops, the volatility of the situation would seem to suggest that the effort should have been to avoid withdrawing UNEF so quickly, thereby increasing the danger before any political provision had been achieved or even attempted. The announcement and the beginning of UNEF's total withdrawal obviously increased the threat to the Force to the extent that the Force had helped to keep the peace, and insofar as the action of withdrawal of UNEF exacerbated the crisis. The substantial casualties which were actually suffered by UNEF while withdrawal was in process and UNEF found itself caught in the June war suggest that the course of action followed by the Secretariat was not the safest even so far as the UNEF contingents were concerned.⁵⁴

Further considering the danger to UNEF and the general necessity for depression of the crisis, it is also of fundamental importance that the possibility of pacific adjustment was inevitably decreased by the lack of immediate availability of the Force. Not having the Force at the scene meant that an element of great usefulness had been taken out of the calculus within which any diplomatic effort would have to work. In this sense,

⁵² See, e.g., U.N. Doc. A/6730/Add. 3, p. 7.

⁵³ Press Release EMF/449, June 3, 1967, 6 Int. Legal Materials 584 (1967).

⁵⁴ Fourteen Indians and one Brazilian were killed and sixteen Indians and one Brazilian were wounded when an Israeli aircraft strafed a UNEF convoy on June 5, by a mine explosion, and by artillery and mortar fire that fell on camps in which UNEF personnel were concentrated, including UNEF headquarters in Gaza town. U.N. Doc. A/6730/Add. 2, p. 4.

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declaring that the force would not be useful, and thereby dissolving it, con-
stituted a self-fulfilling prophecy.

In U Thant's final and most comprehensive report on the withdrawal, he responded more fully to the question of the utility of the force and in effect defined the concept of UNEF's function and operation that determined how the request for withdrawal was handled. In this final report the Secretary General pointed to the insubstantiality of UNEF's political base and its resulting military weakness as a pervasive element in support of his general position. He wrote:

> A partial explanation of the misunderstanding about the withdrawal of UNEF is an evident failure to appreciate the essentially fragile nature of the basis for UNEF's operation throughout its existence. UNEF in functioning depended completely on the voluntary cooperation of the host Government. Its basis of existence was the willingness of the Governments to provide contingents to serve under an international command and at a minimum of cost to the United Nations. It was a symbolic force, small in size, with only 3,400 men, of whom 1,800 were available to police a line of 295 miles at the time of its withdrawal. It was equipped with light weapons only. It had no mandate of any kind to open fire except in the last resort in self-defense. It had no formal mandate to exercise any authority in the area in which it was stationed.⁵⁵

It is not the accuracy of this description which is faulty, but rather its emphasis and focus. The fundamental strength of UNEF was never in its military power, and the wiser of the architects of UNEF did not intend it to be. The essential strength of UNEF was its presence as a multinational representative, both in terms of the troop contingents of which it was composed and in terms of the international mandate under which it worked. This representative and symbolic capacity, not military might, must certainly constitute the primary power of any peacekeeping force dependent upon the concurrence of a host state. The mistaken emphasis of the above description is one reflection of how the decision to withdraw UNEF was devoid of sensitivity to its symbolic and representative rôle.

This insensitivity is particularly relevant to the question of partial with-
d withdrawal. A partial withdrawal might well have been one way to have pre-
served the "effectiveness" of UNEF in terms of its symbolic function. In
particular, the Secretary General's report speaks of the United Nations pres-
ence at Sharm-el-Sheikh as being "rendered ineffective" by the presence
of Egyptian troops. But the fact that Egyptian troops had partially moved
in did not destroy the quasi-international status of the area until the Secre-
tary General agreed to a general withdrawal. As long as United Nations
troops were still there and the withdrawal was not settled at the highest
level, President Nasser was not in a position to announce the blockade of
the Gulf of Aqaba. But as mentioned previously,⁵⁶ with the United Nations
Force pledged to leave, it was not only that Nasser could announce the
blockade, but in a sense he had to announce the blockade. We can still
wonder whether or not Egypt wanted this state of affairs to develop. The

⁵⁵ U.N. Doc. A/6730/Add. 3, p. 32.

⁵⁶ Pp. 253–254 above.

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point is, that an insensitivity to how UNEF was built to function within the legal and procedural framework of a consent force helped to establish the immediate situation from which a war developed.⁵⁷

In this regard, perhaps most important is that UNEF worked in general as a buffer because any national military action against UNEF, and thereby against the multinational presence, was bound to occur only at great political cost to the actor. Therefore, the relevant question presented by the Egyptian demand was not whether UNEF could have withstood an Egyptian attack or would have been destroyed as an incidental casualty of an Egyptian attack on Israel. The question was whether, considering the political consequences, Egypt would have been willing to forcibly remove UNEF or attack Israel in a manner fatal to UNEF.

Here one begins to appreciate how really precipitate the withdrawal of UNEF was. First, the facts nowhere indicate that Egypt was putting UNEF in immediate danger. The most that one can find is what was described as the firing of two artillery "ranging rounds" between two United Nations camps⁵⁸—probably not an extraordinary occurrence in the Middle East in that period, surely not the stuff of certain conflict. More generally and more important, it is not correct to conclude that, if the Secretary General had followed the procedure outlined officially and unofficially by Dag Hammarskjöld, he would have been taking the potentially explosive position that UNEF would stay regardless of the Egyptian demand. The Secretary General would have been asking only for negotiation and a determination of rights and authority, and thereby would have been providing the international community with an opportunity to establish a new instrument of adjustment for healing the political-military dislocation. The kind of resistance involved—recourse to a determination of legal rights, duties and authority—is directed to avoiding the antagonism of the host state or a physical dislocation with respect to which the host would feel the necessity to act. This kind of resistance, whether combined with a partial withdrawal or no withdrawal at all, would have negated any Egyptian charge that UNEF was becoming an "army of occupation." Egypt would have been assured that UNEF would depart if and when Egypt would be willing to assume the burden of denouncing the multilateral agreement embodied in the Good Faith Accord and thereby admitting bad faith.

⁵⁷ In a letter to the New York Times on June 11, 1967, Ralph Buncke wrote:

"The reason for the Secretary-General's position that UNEF could not accept an order from one part of the line and remain on another part was that to do this would in fact make UNEF a party to the resumption of war by opening the door to a direct military confrontation between Israel and the United Arab Republic. Once the United Arab Republic decided to move its troops to any part of the line, which they could have done at any time during the last ten years, UNEF's presence ceased to have any useful function." New York Times, June 11, 1967, IV, 13: 2. But of course a total withdrawal instead of a partial withdrawal did not make UNEF any less "a party to the resumption of war by opening the door to a direct military confrontation." The Secretariat did not recognize that in a situation like that at Sharm-el-Sheikh, partial withdrawal might have been one way to avoid the confrontation.

⁵⁸ U.N. Doc. A/6730/Add. 3, p. 6.

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263

Another important aspect of the political reality confronting the Secretary General after the demand for withdrawal relates to the consent of Members of the United Nations to contribute contingents to the Force. And this consent, like the consent of the host, also represents the multinational adjustment that makes the original United Nations presence possible and also affects the utility of a peacekeeping force. For when the host state starts objecting to the presence of a United Nations force, a natural political consequence is characteristically threats of withdrawal from nations contributing contingents. This has been the experience through the entire history of peacekeeping operations, and such was the case in the Middle East. U Thant reported a disaffection of contributing states as another reason why withdrawal was necessary. In his Summary Report he wrote:

> Quite apart from its position in the United Arab Republic, the request of that Government for UNEF's withdrawal automatically set off a disintegration of the Force, since two of the Governments providing contingents quickly let the Secretary-General know that their contingents would be withdrawn, and there can be little doubt that other such notifications would not have been slow in coming if friction had been generated through an unwillingness to comply with the request for withdrawal.⁵⁹

In considering the significance of this argument, it is once again revealing to note the relevant documentary background, which in this regard was the agreement of the United Nations with each contributing state for the provision of each state's contingent.⁶⁰ Not unlike the other documents involved in the background of UNEF, these agreements did not fail to include consideration of future withdrawal. Each agreement declared:

> The effective functioning of the United Nations Emergency Force requires that some continuity of service of units with the Force be ensured in order that the UNEF Commander may be in a position to plan his operations with knowledge of what units will be available. I should therefore, appreciate your assurance that the national contingent provided by your Government will not be withdrawn without adequate prior notification to the Secretary-General so as to avoid the impairment of the ability of the Force to discharge its functions. Likewise, should circumstances render the service of your national contingent with the Force no longer necessary, the Secretary-General undertakes to consult

⁵⁹ U.N. Doc. A/6730/Add. 3, p. 18, par. 50.

⁶⁰ The legal basis for the presence of the participating states was constituted by ex-changes of letters. The Secretary General sent an identical letter to each contributing state, and the replies of the contributing states together with the Secretary General's letters were regarded as constituting agreements for provision of the contingents. The agreements were registered with the United Nations under Art. 102 of the Charter and were to remain in force until the departure of the contingents from Egypt. For the text of the Secretary General's letter, see U.N. Doc. A/3943, Annex I. For the replies, see 274 U.N. Treaty Series 199, No. 3966 (Brazil); ibid. 41, No. 3957 (Canada); ibid. 81, No 3959 (Denmark); 271 ibid. 135, No. 3913 (Finland); 274 ibid. 233, No. 3968 (India); 271 ibid. 223, No. 3917 (Norway); 271 ibid. 187, No. 3914 (Sweden); 277 ibid. 191, No. 4006 (Yugoslavia); Colombia and Indonesia sent no reply, and later withdrew their contingents.

264

[Vol. 64]

with your Government and to give adequate prior notification concerning its withdrawal.⁶¹

Thus, here too, in the requirement for adequate notification, we see a technique for delay that might have been used in conjunction with the general structure that was elsewhere outlined for response to a request for withdrawal.

In addition to this legal condition for notification, an element of flexibility for the Secretary General was added by means of the principles followed in securing national contingents for the establishment of the Force. The plan had been to avoid the possibility that a threat to withdraw or actual withdrawal by one state would seriously undermine the Force. A basic principle, therefore, was to have a number of national contingents of similar size.⁶² Also, an effort was made to insulate the Force politically. This was done by attempting to obtain national contingents from states of a variety of political complexions, and also by excluding participation of permanent members of the Security Council and states that, for geographical or other reasons, might have a special interest.⁶³

The response of the governments supplying contingents, after the formalized Egyptian request for the UNEF withdrawal, corresponded to the expectations inherent in the plan just described. Yugoslavia and India, the contributing states most sympathetic to Egypt, told the Secretary General that they would withdraw. But other contributing states made no such statements, and in fact, the opinion was expressed that immediate withdrawal was inappropriate.⁶⁴

Instead of emphasizing the fact that two of the states announced they would withdraw, it would seem the Secretary General should have emphasized that some did not find withdrawal necessary or desirable. Such emphasis might have aided an effort to maintain the Force. Moreover, should not the Secretary General have reminded the two which had announced their intention to withdraw of their obligation of adequate notice? U Thant stated that he could expect the other contributing states to announce their intentions to withdraw. But it was not at all certain that the others would quickly do so. In any case, should not the Secretary General at least have waited and possibly benefited from delay? And did not the expectation that UNEF would quickly collapse ignore a principle upon which UNEF was established—that neither one nor even two contributors should be able to undermine the force?

No answers were provided to these questions. The concept of consent was again divorced from the context of political adjustment.

Though concluding that immediate withdrawal was required, the Secretary General did to some extent follow the procedure which was outlined in the documentary background of UNEF. The demand for withdrawal

⁶¹ Secretary-General, Summary Study of UNEF, U.N. Doc. A/3943, Annex 1, p. 3, par. 8. Emphasis added.

⁶² U.N. Doc. A/3943, par. 50, p. 23.

⁶³ *Ibid*., pars. 6, 16, 34.

⁶⁴ U.N. Doc. A/6730/Add. 3, p. 5.

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265

was brought to the stage of Advisory Committee consideration. Of the Committee's deliberation, it is reported that one view expressed was

> ... that the United Arab Republic's demand for the immediate withdrawal of UNEF from United Arab Republic territory was not acceptable and that the ultimate responsibility for the decision to withdraw rested with the United Nations acting through the Security Council or the General Assembly. The holder of this view therefore urged further discussion with the Government of the United Arab Republic as well as with other Governments involved.⁶⁵

But this view did not dominate the meeting. Once again the two governments informed the Secretary General that they would withdraw their contingents when Egypt's request was made public. And it is clear that no member of the Advisory Committee proposed that the General Assembly be convened.

It should be remembered here, however, that the rationale for the establishment of the Advisory Committee as an institutional mechanism included the principle of preservation of the Secretary General's capacity for initiative and leadership.⁶⁶ If there was good reason to request a convening of the General Assembly, the suggestion for a request should probably have come from the Secretary General. For the same reason, the Secretary General's negative position undoubtedly discouraged any efforts in this direction.

It is also relevant that it was never intended that the Advisory Committee should have a veto over action the Secretary General considered necessary; but rather it was intended that the Advisory Committee would play a facilitative rôle by giving the Secretary General an opportunity to achieve formal political backing outside the General Assembly, and also would help by giving him definite representative indications of just how far he might go. It can be gleaned from the report of the meeting that, although there was a lack of initiative towards bringing the question to the General Assembly, there was no majority trying to oppose a policy of negotiation and/or referral to the General Assembly, and that, in fact, there was even pronounced opinion in support of making diplomatic and political efforts. But the Secretary General neither seized the positive initiative nor the available positive support for the seeking of a settlement. Instead there was reiteration of the dismal conclusion that there had to be a total withdrawal. The report on the Advisory Committee's consideration concludes:

> ... it was understood that the Secretary-General had no alternative other than to comply with the United Arab Republic's demand, although some representatives felt the Secretary-General should previously clarify with the Government the meaning in its request that withdrawal should take place "as soon as possible."⁶⁷

It should, though, be noted how "some representatives" first wanted a clarification of the phrase "as soon as possible"—that even as the determination

⁶⁵ *Ibid.*, p. 8, pars. 2, 3.

⁶⁷ U.N. Doc. A/6730/Add. 3, p. 8.

⁶⁶ See p. 256, note 45.

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to withdraw was being confirmed, some were asking for more time to explore the possibility of creative political decision.

The final step in the procedure outlined—bringing the question to the General Assembly—was never taken. However, U Thant in his reports did address himself to the question of the practicality of a submission to the General Assembly. His argument on this question is in direct contradiction to the procedural concept that we have seen revealed in Dag Hammarskjöld's discussions. U Thant wrote:

> As a practical matter, there would be little point in any case in taking such an issue to the General Assembly unless there would be reasonable certainty that that body could be expected expeditiously to reach a substantive decision.⁶⁸

The contrary idea which we have emphasized is that the very process of bringing the issue to the General Assembly might help to create the conditions for a settlement. A quick substantive decision has no value in itself, and may be the very last thing one wants when delay may be so valuable.

Besides an approach to the General Assembly, there was another basic procedural possibility. This possibility was outside the particular structure outlined in the Hammarskjöld Memorandum and in the related United Nations documentation. The Secretary General could have made an effort to utilize the Security Council by going so far as to operate under Article 99 of the Charter, which empowers him to bring a situation before the Security Council if he is willing to characterize it as a "matter which in his opinion may threaten the maintenance of international peace and security."

It is true that on May 19 the Secretary General submitted a report to the Security Council describing the Middle East situation as "extremely menacing." But he never did ask for Security Council action and, most important, this submission of May 19 was only after he had publicly conceded the withdrawal without ever having raised the question of a necessary authorization by either the Security Council or the General Assembly.

Such reference to the Security Council is only one example of the procedural alternatives available. For we should not make the mistake of seeing the basic scheme of peacekeeping as in any sense a rigid and necessary rulebook for action. For instance, as has been suggested, the Secretary General might have begun his effort for delay and consultation by insisting on a clarification of his own authority in the matter. This is just the sort of tactic that could have been helpful in the case of UNEF. It embodies the same values of delay, deceleration of crisis, and provision for negotiation as the basic procedural scheme and is essentially part of it.

In sum, rigid formulae were the antithesis of what was needed. Law and legal procedures might well have made an invaluable contribution to peacekeeping. But without the necessary initiative and leadership, the flexible framework established for deceleration of crisis and solution of the problems of military and political adjustment was sure to be wasted.

⁶⁸ *Ibid.*, p. 15, par. 41.

267

THE FUTURE

If the concept of consent had been understood as was intended in the
creation and development of UNEF and projected for future peacekeeping
operations, the Good Faith Accord would have been the central foundation
for saving efforts by the Secretariat. Dag Hammarskjöld had clearly noted
this constitutional significance of the Accord. He wrote:

The fact that a United Nations operation of the type envisaged requires
the consent of the Government on whose territory it takes place creates
a problem, as it is normally difficult for the United Nations to engage
in such an operation without guarantees against unilateral actions by
the host Government which might put the United Nations in a ques-
tionable position, either administratively or in relation to contributing
Governments.

The formula [i.e., the Good Faith Accord] employed in relation to the
Government of Egypt for UNEF seems, in the light of experience, to
provide an adequate solution to this problem.⁶⁹

In the case of the request for the withdrawal of UNEF, we never found
out if the Good Faith Accord was an "adequate solution" because it was
never used to solve anything. Nevertheless, the plan for UNEF has shown
the Good Faith Accord to provide a well-adapted scheme for keeping the
peace. For one thing, this was evidenced by the language of the Accord—
sufficiently definite to represent the bilateral obligation, but indefinite
enough to avoid embarrassment and offense to the host state. Dag Ham-
marskjöld particularly took note of this value and projected it to future
operations, remarking:

> It is unlikely that any Government in the future would be willing to go beyond the declaration of the Government of Egypt with regard to UNEF. Nor, in my view, should the United Nations commit itself beyond the point established for UNEF in relation to the Government of Egypt. In these circumstances, I consider it reasonable to regard the formula mentioned . . . above [the Good Faith Accord] as a valid basis for future arrangements of a similar kind.⁷⁰

Furthermore, the plan for UNEF has shown how the Accord in conjunction
with the presence of a military force impels negotiations, can retard crisis,
offer opportunities for political settlement, and move the parties once again
to speak the language and purposes of the Charter, thereby introducing a
broader vision of the needs of peace.

The inoffensive as well as utilitarian nature of the Accord is of utmost
importance for the future of peacekeeping. For as the legal basis for the
presence of a United Nations force makes it more difficult for the host state
to eventually rid itself of the force, the likelihood of initial acceptance by
the host decreases. This is the basic problem of utility. The Good Faith
Accord responds to this problem by achieving a fine balance. It provides
an opportunity to contain and alleviate a crisis induced by unilateral action

⁶⁹ U.N. Doc. A/3943, p. 63.

⁷⁰ *Ibid*., p. 64.

268

[Vol. 64]

of the host, yet it also recognizes an ultimate right of the host to require withdrawal. Of course, the ambiguous addition of Security Council authorization, as in the peacekeeping operations in Cyprus and in the Congo, may alter this balance. But the Accord can still give the arrangement the flexible quality that the parties to the agreement on establishment will naturally desire. Room remains to overcome the reluctance of a host state to accept an alien force outside its direct control.

However, the handling of the request for withdrawal in the case of the UNEF paradoxically presented the future of peacekeeping with a problem opposite to that of the reluctance of a host state initially to accept the presence of a force. In the case of UNEF, dissolution of the Force was made too easy rather than too difficult. A crippling precedent was established. Because the procedure for negotiation that grows out of the Good Faith Accord was disregarded, it will be more difficult in the future to secure the recognition and utilization of that procedure. Although one would hope that in the future establishment of a peacekeeping force the United Nations Secretariat will try to secure insofar as possible the host's recognition of an obligation to negotiate, one must remember Dag Hammarskjöld's conviction that a host state could not be expected to go further than the language of the Good Faith Accord. Thus the legacy of the performance by the United Nations in the case of the withdrawal of UNEF was not only the facilitation of a war but also the creation of a damaging precedent for future peacekeeping.

Perhaps the motivation of the Secretary General was the thought that by quickly handing Egypt an ultimatum, by threatening her with total withdrawal and a consequent confrontation with Israel, Egypt could be pressured to rescind her request. On the basis of Arab self-respect and vain-gloriousness alone, one can doubt the wisdom of this assumption, though perhaps it can be understood as a mistake of strategy. But what compounded the mistake and finally has done most to make it a burden on the future is the elaborate argument which the Secretariat has offered in justification. The Secretary General's reports now stand as ready and official foundation for the obliteration by a host state of a future Good Faith Accord to negotiate, and a strong argument for the same kind of result that followed Egypt's request for withdrawal.

Nevertheless, there is good reason to hope that the scheme that had been planned for UNEF can be redeemed for further peacekeeping operations. U Thant's rejection of the Hammarskjöld interpretation should not be regarded as having "overruled" that interpretation, even though the rejection enhanced the legal position of a host state demanding withdrawal. The future of peacekeeping depends on understanding that, in peacekeeping, "consent" does not mean simply the static psychological event of individual agreement; that, as the history of UNEF demonstrates, the term is used metaphorically to encompass ongoing political and institutional arrangements. Accordingly, the metaphor must not be allowed to overwhelm the reality as it was in the abrupt withdrawal of UNEF. It must be recognized that because a peacekeeping force is the condition for a political ar-

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269

rangement, when the host state takes unilateral action such as a request for withdrawal, the various national interests involved are activated, and peacekeeping requires a new adjustment of these interests.

The strength of the Good Faith Accord appears in its natural responsiveness to this need, its openness to the demands of politics and its provision for negotiation. It allows response to be made with great flexibility and little offense. There is thus reason for confidence in its use. A lesson of the UNEF withdrawal is that hope instead of gloom in the application of the techniques of peacekeeping is the realistic stance to be taken.

The hope begins by conceiving the law of peacekeeping as procedural provision for the working out of a political-military crisis. Conceived this way, the law makes an invaluable contribution to peacekeeping. But regarded merely as a body of rules, results are likely to be as disheartening in future peacekeeping as they were in the Middle East. In an intensely political and fast-moving dispute, vision must not be limited by the simplistic picture of a dispute building its way to resolution in a court. The challenge to the peace must not be regarded merely in terms of legal dialectic. Indeed, we have seen that even the very generality of language which so often seems vacuous in traditional international law and supports the common cynicism about the contribution of international law to peace, this very same generality becomes crucial to successful United Nations peacekeeping via an institutional mechanism. In dealing with the institutional mechanism, generality becomes flexibility, vagueness becomes political viability, and diplomacy is thereby enriched. This does not mean an abdication of law. Rules of law are still relevantly conceived and applied. But the only necessary rule and the key rule must be that the dynamism of the politics be matched by a dynamic view of the application of the law and its procedures. Peacekeeping is betrayed when the possibilities of human choice are forgotten or denied. The law can be the instrument of negation. Or it can be the foundation of peace. This is the ultimate lesson of the withdrawal of the United Nations Emergency Force. This is the enduring choice.

[LC]

# THE MIDDLE EAST PROBLEM

By *Quincy Wright* *

The Security Council resolution of November 22, 1967,¹ seems to provide for a satisfactory solution of the Middle East controversy, and it is difficult to see how there can be a satisfactory settlement except on the basis of the principles on which that resolution is based. The preamble of that resolution states three fundamental principles.

*First* is "the inadmissibility of the acquisition of territory by war."² This principle goes beyond the principle "no fruits of aggression." It says there shall be no territorial fruits from war, using the latter term in the material sense of a considerable use of armed force. Its application, therefore, does not depend on determining who was the "aggressor" in the 1967 hostilities, a difficult question to answer.³ There can be no doubt that, whether or not Israel was the aggressor, its occupations of territory were achieved by the use of armed force. This principle is well established. It is inherent in the rules of customary international law defining "military occupation" and permitting acquisition of occupied territory only by annexation following generally recognized "completed conquest" or cession by the former sovereign.⁴ It was accepted in the form "no title by conquest" as a principle of American international law by most of the members of the Pan American Conference of 1890 reaffirmed in the Buenos Aires Declaration of 1936, the Lima Declaration of 1938 and the Bogotá Charter of the O.A.S. of 1948.⁵ It was assumed in President Wilson's Fourteen Points and generally applied in the peace settlements of World War I which required plebiscites to justify territorial transfers. It was assumed by the League of Nations as a necessary implication of the Covenant's guarantee of the territorial integrity of all Members, and was particularly insisted upon by the United States in the Stimson Doctrine refusing to recognize any Japanese acquisitions by its invasion and occupation of Manchuria. Secretary Stimson considered it an implication of the Kellogg-Briand Pact of 1928 to which the United States,

* Of the Board of Editors.

¹ 62 A.J.I.L. 482 (1968).

² Reaffirmed in Security Council Res. 252 (May 21, 1968). See also Muhammud H. El Farra, Permanent Representative of Jordan to the U.N., "The Role of the U.N. vis-à-vis the Palestine Question," 33 Law and Contemporary Problems 68 ff. (Winter, 1968), and Cherif Bassiouni, "Some Legal Aspects of the Arab-Israeli Conflict," 14 The Arab World (Nos. 10-11) 44 (Arab Information Center, N.Y., 1967).

³ This difficulty exists whether one takes, as the test for determining aggression, priority in initiating hostilities, refusal to accept or observe provisional measures proposed by the U.N. (Art. 40), or manifest unwillingness to accept fair and effective procedures to settle the dispute. See Q. Wright, "Legal Aspects of the Middle East Situation," 33 Law and Contemporary Problems 26 ff. (Winter, 1968); idem, "The Concept of Aggression in International Law," 29 A.J.I.L. 373 ff. (July, 1935); "The Prevention of Aggression," 50 A.J.I.L. 514, 526 ff. (July, 1956).

⁴ Charles G. Fenwick, International Law 426, 681 ff. (4th ed., N.Y., 1965).

⁵ 1 Moore, Digest of International Law 292; 7 *ibid*. 318; 5 Whiteman, Digest of International Law 880-881; 119 U.N. Treaty Series 3 (1948).

270

BERNARD GARVEY
1618 Willow Road
Apt. 402
Palo Alto, CA 94304

December 24, 1973

Dr. Henry A. Kissinger
Secretary of State
c/o U. S. State Department
Washington, D.C.

Dear Sir:

In any other country than ours it would be unthinkable for anyone of my
stature to address myself to you in the manner outlined.

It is still most presumptious of me to do this. However, realizing the
arduous and most laudable achievements by you in pursuit of creating a more
workable relationship between the nations and particularly the major powers,
that actually touch the life of every human being on this planet, I have
this urge as an adopted citizen of our beloved country to perhaps contribute
some iota of help in this direction.

I have always been a great reader of history and I just came across the
enclosed book on Russia covering the period from 1917-1964 which in my esti-
mation is the most concise and definitive historic interpretation of the era
covered. It is my hope that you may find time to read it. In your present
labors it may turn out to be useful in your diplomatic dealings. I myself
was born in the City of Pinsk, Russia and came to this country just after
the Bolshevik Revolution. I still speak Russian and am an avid reader of
all the greats of Russian literature. I have a son who was a student at
Harvard and attended your classes when you were teaching there. He remains
a great admirer of yours. He also helped Professor Chase of Harvard to
write a book on International Law. It is therefore that I'm also including

SECSTATE W2H

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COL 1800 25TH
ARO. JOSE GUADALUPE HERNANDEZ GARZA
INTERNATIONAL POLICY OF THE MOST POWERFUL COUNTRY IN THE WORLD
TY AND ABILITY OF THE STATESMAN THAT HAS GIVEN BIRTH TO THE
YOUR 25TH BIRTHDAY THAN TO EXPRESS MY ADMIRATION FOR THE CAPACI
I DONT THINK THERE IS A BETTER WAY OF CONGRATULATING YOU ON
WASHINGTON DC

STATES OF AMERICA 1600 PENNSYLVANIA AVE
DR HEMERY A KISSINGER SECRETARY OF STATE OF THE UNITED
REYNOLDA TAMPAXEX 44 S7 1327

UMM CO MEMX 044
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SECSTATE W2H

Do

INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES
THE GRADUATE INSTITUTE OF INTERNATIONAL STUDIES

PERSONAL

The Hon. Dr. Henry KISSINGER
Secretary of State
c/o Grand Hotel Dolder
ZURICH

Geneva, September 1st, 1976

Dear Henry,

It was a great pleasure to see you again on the occasion of
your excellent Alastair Buchan Memorial Lecture and the
subsequent dinner at the Savoy. I very much appreciate your
kind consideration of my letter in which I proposed the creation
of an International Energy Institute and which I briefly
discussed with you at this meeting in London. In the meantime
I have received a reply from Mr. Daniel Hickey.

I apologize for writing you again as I am fully aware that at
the present moment you must have other, more pressing things
in mind. I can claim, however, two good excuses for doing it:
first, you are honouring my native town Zurich by your visit,
and while no doubt an interesting and lovely town I am the first
to know that its more mondaine attractions are hardly so time-
consuming as not to leave you - perhaps and hopefully - just
a few minutes to read a letter from one of its citizens.

The second reason is more serious. I am writing you to reiterate
an invitation which the Director of the European Management Forum
Dr. John Nicholls, extended to you in his letter of May 31st.
It is an invitation to deliver a major plenary speech at the
Forum's Seventh Symposium in Davos in early February 1977. I
consider this convention of some four to five hundred leading
European managers to be one of the major annual events in the
European business world. As you will see from the programme en-
closed the list of speakers is quite impressive. It includes,
amongst others, the Belgian and the Swedish Prime Minister,
Mr. Witteveen of the IMF, Otto von Habsburg and Cardinal König
- as good and wide-ranging a mix as there can be. But besides
that I am convinced that, given the present political climate
in Europe, a speech by you on European-American Relations (as
suggested in Dr. Nicholl's letter) would not only most timely

./...

but highly necessary and desirable. I can think of nobody who
could do it better and who has as important an impact on my
fellow Europeans than you.

I do not know in what capacity you would then be able to speak
(always provided that you can accept _en principe_) but I might
point out that besides the attractions of Davos the best possible
conditions would be offered to you.

I therefore sincerely hope that you can give this invitation
favourable consideration and that we will have the great
pleasure of welcoming you in this country again.

With every good wish for a successful mission in Zurich and
looking forward to hearing from you, I am with best regards.

Enclosure

PS I am sending a copy of this letter to your office in
Washington.

mutual black network

World Center Building, 918 16th Street, N.W., Washington, D.C. 20006 • (202) 785-6300

Thom Gatewood
Executive Vice President

November 17, 1975

The Honorable Henry Alfred Kissinger
Secretary of State
Washington, D. C. 20520

Dear Dr. Kissinger:

As an executive in the field of broadcast communication, the pulse
of the national and international news makes up 100% of my workday...
particularly the issues which affect the lives of Black people in
America.

The Mutual Black Network, the oldest and most extensive Black News
and Special Programming operation in the country, has reported
several vital stories thus far in 1975. We have reported stories
concerned with tension erupting from busing Boston school children,
sky-rocketing percentages of Black unemployment, longer welfare lines,
and inflated food and gasoline prices, just to highlight a few.

An increasing number of negative news items affecting the lives of
Black people seems to have become more and more prevalent as 1975
comes to a close. Negative news is like a cancer raging out of
control...it must not be allowed to continue its decadent growth.

In a continuing effort to bring total awareness and positive thinking
to the Black community, the Mutual Black Network has been bringing
Black College Football to cities and towns on a nationwide basis each
weekend this Fall since our September 6th opener from the Superdome
in New Orleans.

But providing entertaining football games is not enough. Black
people, old and young, need heroes to respect and admire. Just
knowing that success can be a reality for Blacks and not just a far-
fetched dream or promise is the "shot of adrenalin" Black folks need
to ward off the cancer of negativism. And that is exactly why we
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ago. This clearly shows that hard work and determination can ulti-
mately lead to success.

A service of Mutual Reports, Inc., a subsidiary of the Mutual Broadcasting System, Inc.

November 17, 1975

Page 2

On Wednesday December 10, 1975, the Mutual Black Network will unveil this year's Black College All-American Team at our Third Annual Awards Dinner. I would like to take this opportunity to personally invite you to attend and be a member of our dias. Your presence would not only be an inspiration to the athletes and guests attending the Awards Ceremony but also to millions of Black people all over the country.

The Awards Dinner will be held at the Washington Hilton Hotel in the Grand Ballroom West. The reception begins at 6:30 P.M. and dinner will be served at 7:30 P.M.

Please give us what our Black communities need, your support.

The future is now,

TG/pb

With Extreme Pleasure
THE BUICK MOTOR DIVISION

and the
MUTUAL BLACK NETWORK
CORDIALLY INVITE YOU
TO THE 3RD ANNUAL AWARDS DINNER

for the
1975 BLACK COLLEGE ALL-AMERICAN TEAM

and the
1975 BLACK COLLEGE OFFENSIVE
AND DEFENSIVE PLAYERS OF THE YEAR

Wednesday, December 10, 1975

WASHINGTON HILTON HOTEL

1919 Connecticut Avenue, N.W.
Grand Ballroom — West

Cocktails 6:30 P.M. Dinner & Presentation 7:30 P.M.

R.S.V.P.

Informal Dress

JOHN GAVIN

August 14, 1974

The Honorable Henry Kissinger
Secretary of State
The White House
Washington, D.C. 20510

Dear Henry:

It was so good to see you again, with your family, after our last SEESAW performance in Washington. We were delighted particularly to meet your bride. She is remarkably charming and attractive. Your children are also delightful, and Cristina, Maria and I hope we will have the opportunity of seeing you all again in the near future.

We were in Washington during "interesting times" and with the current situation, you continue to be very much in our thoughts. We send you our best wishes for continued success.

As we agreed, I'm sending this letter with the informal salutation, "Dear Henry" rather than a "Dear Mr. Secretary" in the hopes that it will reach you.