|
The three-line United Nations Security Council Resolution 338, adopted on October 22, 1973, called for a ceasefire in the Yom Kippur War in accordance with a joint proposal by the United States and the Soviet Union. The resolution stipulated a cease fire to take effect within 12 hours of the adoption of the resolution. The "appropriate auspices" was interpreted to mean American or Soviet rather than UN auspices. This third clause helped to establish the framework for the Geneva Conference (1973) held in December 1973. The resolution was passed at the 1747th UNSC meeting by 14 votes to none, with one member, the People's Republic of China, not participating in the vote. The fighting continued despite the terms called for by the resolution, brought Resolution 339 which resulted in a cease fire. The resolution states: ==Binding or non-binding issue== The alleged importance of resolution 338 in the Arab-Israeli conflict supposedly stems from the word "decides" in clause 3 which is held to make resolution 242 binding. However the decision in clause 3 does not relate to resolution 242, but rather to the need to begin negotiations on a just and durable peace in the Middle East that led to the Geneva Conference which Syria did not attend. The argument continues; Article 25 of the United Nations Charter says that UN members "agree to accept and carry out the decisions of the Security Council". It is generally accepted that Security Council resolutions adopted according to Chapter VII of the UN Charter in the exercise of its primary responsibility for the maintenance of international peace in accordance with the UN Charter are binding upon the member states.〔Higgins, Rosalyn, ''The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter?'', in 21 ''Int’l & Comp. L.Q.'' 286 1972 pp. 270-66, pp. 285-6〕〔"Legal Consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970)" in ''() I.C.J. Reports'' pp. 4-345, pp 52-53〕 Scholars applying this doctrine on the resolution assert that the use of the word "decide" makes it a "decision" of the Council, thus invoking the binding nature of article 25.〔Rostow, Eugene V. ''The Illegality of the Arab Attack on Israel of October 6, 1973''. The American Journal of International law, 69(2), 1975, pp. 272 - 289.〕 The legal force added to Resolution 242 by this resolution is the reason for the otherwise puzzling fact that SC 242 and the otherwise seemingly superfluous and superannuated Resolution 338 are always referred to together in legal documents relating to the conflict. The more obvious need for the use of Resolution 338 is that it requires all parties to cease fire and states when that should occur, without which Resolution 242 can't be accomplished. Some scholars have advanced the position that the resolution was passed as a non-binding Chapter VI recommendation.〔Adler, Gerald M., ''Israel and Iraq: United Nations Double Standards – UN Charter Article 25 and Chapters VI and VII'' (2003) ()〕〔Einhorn, Talia, "The Status of Palestine/Land of Israel and Its Settlement Under Public International Law" in ''Nativ Online'' No.1 Dec. (2003) ()〕 Other commentators assert that it probably was passed as a binding Chapter VII resolution.〔Kattan, Victor,''Israel, Hezbollah, and the use and abuse of self-defence in international law'' (2006) ()〕 The resolution contains reference to neither Chapter VI nor Chapter VII. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「United Nations Security Council Resolution 338」の詳細全文を読む スポンサード リンク
|