The Peculiar Nature of Agreements Concluded Under the Auspices of the United Nations

The remedies of an aggrieved State in the event of a breach of an armistice, ceasefire, or other agreement for the suspension of hostilities will be discussed later in these lectures. It suffices to recall for present purposes that Article 40 of the Hague Regulations of 1907, forming part of customary international law, provides that “Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately”.[1] This can no longer be said to be a rule of general application because the United Nations Charter and actions taken thereunder place many contemporary agreements for the suspension of hostilities beyond the reach of the parties, so that denunciation or resumption of hostilities would be unlawful.

In the typical case, the Security Council calls upon the parties to cease hostilities or to conclude a cease-fire. The Security Council does not normally identify what its particular source of authority is under the Charter—under what article or whether under Chapter VI or Chapter VII. A colleague has sagaciously called the operative portion of the Charter to be in most cases “Chapter VI 1/2”, under which the Security Council calls upon the parties to a dispute to take certain action. Two examples will suffice, both drawn from the relations between the Arab States and Israel.

The General Armistice Agreements between Israel and the Arab States were concluded in response to a Security Council resolution of 16 November 1948. Acting—explicitly on this occasion—under Article 39 of the Charter, the Security Council—

“Decides that, in order to eliminate the threat to the peace in Palestine and to facilitate the transition from the present truce to permanent peace in Palestine, an armistice shall be established in all sectors of Palestine;”[2]

The parties were called upon to seek agreement. This they did in the Armistice Agreements, which recited that they were concluded in response to the Security Council resolution, which was not the only one calling upon these States to cease hostilities and to take steps toward peace in Palestine.[3]

With the renewed conflict of 1973, the Security Council, as it had on many occasions in the past, called upon all the parties “to cease all firing and terminate all military activity immediately”.[4] Pursuant to the two resolutions of October 1973, Egypt and Israel signed an agreement implementing the resolutions, in which they stated that “Egypt and Israel agree to observe scrupulously the cease-fire called for by the United Nations Security Council”.[5] The particular significance of an arrangement of this sort is that the parties are actually not, in the exercise of their own wills, freely arriving at a cease-fire, but are responding to an order from the Security Council.[6] So far as the cease-fire itself was concerned, the agreement added nothing to what was already the obligation of the parties laid down by the Security Council. If they were by mutual agreement to denounce the agreement giving effect to the cease-fire, that would not alter their obligation; they would still be bound to cease hostilities. It is for the Security Council to determine how long the cease-fire will last and what further obligations the parties must perform.

The situation is somewhat different with respect to the Armistice Agreements, because these were concluded through negotiations by the parties and go very substantially beyond the simple duty imposed on them by the resolution of the Security Council. But the Agreements were negotiated under a United Nations

Chairman and responded to an order that the Security Council grounded in Article 40 of the Charter on provisional measures.

On a wider basis, the contemporary agreements on the suspension of hostilities reflect the fundamental changes that have been effected in international law by the United Nations Charter. The threat or use of force against the territorial integrity or political independence of a State has been made unlawful, and the Security Council has been vested with the power to call for an end to the use offorce in the particular case. Thus the conclusion of an agreement for the suspension of hostilities reflects not so much a free decision by the parties that they will cease to exercise a right or a privilege to employ force as an acceptance by them of the obligations of the Charter not to resort to the use of force. This consideration is valid whether or not the agreement is concluded under the auspices of the United Nations.

This is not to deny that there will be cases in which an agreement for the suspension of hostilities will in itself be in violation of international law, notably in the case in which an agreement is forced upon a party through the use of military power, thus vitiating the agreement on the ground that it was secured through duress, in violation of Article 52 of the Vienna Convention on the Law of Treaties. This article provides that—

“A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”[7]

This is, ofcourse, on the assumption that the agreement in question is indeed a treaty rather than a simple agreement between two contending armed forces; in the latter case, the law applicable to treaties in the strict sense would seem to apply by analogy.

In those cases in which the Security Council has spoken and has called upon the parties to enter into a cease-fire or has simply called for a cease-fire, which is confirmed by an agreement to the effect between the belligerents, the cease-fire is but an implementation of an order or a norm laid down by the Security Council and in that sense has no life of its own. In terms of the law of treaties again:

“The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present [Vienna] Convention [on the Law of Treaties] or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.”[8]

That independent obligation is incorporated in the Charter of the United Nations.

The parties may admittedly spell out the details of their cessation of hostilities, their disengagements, and their relations while hostilities are suspended. These arrangements they are free to change or renegotiate by mutual agreement, as are any parties to agreements; there is an express stipulation to this effect in the General Armistice Agreements between the Arab States and Israel.[9]

It is to the participation of the United Nations that one can probably attribute the long-lasting character of the General Armistice Agreements despite the periodic outbreaks of war, which, in an earlier era, would have marked the termination of the agreements and the restoration of a state of hostilities, which could be brought to an end only by a new agreement. But this is a matter to which we must turn again when we consider the question of violation of agreements for the suspension of hostilities.

  • [1] As cited note 2, supra.
  • [2] Resolution 62 (1948), Security Council Official Records, Third Year, Resolutions and Decisions,1948, p. 29, UN Doc. S/INF/2/Rev. 1 (III) (1964).
  • [3] Resolution 62 (1948) had been preceded by 20 other resolutions on the Palestine Question.
  • [4] Resolutions 338 (1973), 22 Oct. 1973, and339 (1973), 23 Oct. 1973, Security Council OfficialRecords, 28th Year, Resolution and Decisions, 1973, pp. 10 and 11, UN Doc. S/INF/29 (1974).
  • [5] Agreement regarding the implementation of United Nations Security Council resolutions 338(1973) and 339 (1973), done 11 Nov. 1973, Security Council Official Records, 28th Year, Supplementfor October, November and December 1973, p. 98 (1974). The Agreement between Egypt and Israel which was initialled on 1 Sep. 1975, Department of StateBulletin, Vol. 73 (1975), p. 466, recited that “They are determined to reach a final and just peacesettlement by means of negotiations called for by Security Council resolution 338, this Agreement being asignificant step towards that end”.
  • [6] See Bastid, op. cit., supra, note 9 at p. 23; Rosenne, Israel’s Armistice Agreements with the ArabStates (1951), p. 28.
  • [7] As cited note 59, supra. 2 Art. 43.
  • [8] 124 Egyptian-Israeli General Armistice Agreement, signed at Rhodes, 24 Feb. 1949, Art. 12, para. 3,
  • [9] UNTS, Vol. 42, p. 251 at p. 268.
 
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