S-0865-0002-26-00001 Expanded Number S-0865-0002-26-00001 Title Items-in-Peace-keeping operations - Middle East - Ambassador Gunnar Jarring's Mission to the Middle East as Special Representative of the Secretary-General Date Created 2211111967 Record Type Archival Item Container S-0865-0002: Peace-Keeping Operations Files of the Secretary-General: U Thant - Middle East Print Name of Person Submit Image SgaueoSignature of PersonesnSbi Submit --------------------------- "<1' Ck" -Th . Cs .CtA.&u - - CC.- v4 I - 1ý S NI fýaT44 AliEN 4 if fleet PC A I £2 A [CC i'¾ C4 'SW A' - "CCC' S Stc -p -, -A C if ,,.C' :1. C* . 1' UNITED NATIONS NATIONS UNIES INTEROFFICE MEMORANDUM MEMORANDUM INTERIEUR TO: U Tta~nt r,,nDATE: 22 November 1967 A: ~The Secretary-General)vvý1ýREEENE THROUGH:A S/C DE.- FR~OM: C . A. Stavropoulos DE: The Legal Counsel SUBJ ECT-- OBJET: Terms of Reference of the- Sertr Gnrls Representative for the Middle East 1. At your req~uest I am submitting herewith a preliminary analysis of the terms of reference of the Secretary-Generalts Representative for the Middle East. In this memorandum I am confining my comments to two important issues: (1) the functions of the Special Representative, and (2) the meaning of the term "States concerned". I have not in the present paper attempted. to analyze the "provisions and principles" in the resolu- tion which ý-provide the framework within which the Special Representative will operate. Functions of the Special Reoresentative 2. Security Council resolution 81/242?, adopted on 22 November 1967, in paragraph 3 "Reuet the Secretary-General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and. assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution." 3. Tlhe term "Special Representative" was used in the resolution rather than such terms as "~mediator"l and "good offices" which have more or less well-established meanings in general international law and in United Nations practice. A brief analysis of these two concepts may, however, be desirable in order to provide a background for the examination of the functions of the Special Representative. 4. Lauterpacht's Seventh Edition (1952) of Opperiheimts International Law, Volume II, Section 9, page 10, states the position in general inter- national law as follows: - 2- "A theoretical distinction exists between good offices and .mediation. The difference between them is that, whereas good offices consist in various kinds of action tending to call negotiations between the conflicting states into existence, mediation consists in direct conduct of negotia- tions between the parties at issue on the basis of proposals made by the mediator. However, diplomatic practice and treaties do not always distinguish between good offices and mediation." 5. United Nations practice supports the right of the mediator to submit proposals. In some instances the mediator has been expressly requested to make suggestions, while in others though not expressly requested he has done so. For example, General Assembly resolution 186(S-2) of 14 May 1948 appointed a tIN mediator in Palestine whose functions included the use of his good offices to promote a peaceful settlement but notwithstand- ing the absence of an express reference to a right to make proposals, the mediator exercised such a right without objection being taken thereto* idke- wise, the Security Council resolutions 39(1948), 47(1948) and 51(1948) Which established the United Nations mission for India and Pakistan although they mentioned "good offices" and "mediation" did not expressly authorize the making of suggestions or proposals but nonetheless the mission did in fact submit formal proposals to the Governments of India and Pakistan. Also in the case of the mediator on Cyprus (Resolution 186(1964))recommendations were made by the mediator to the parties, although in this case this action of the mediator was subject to strong exception by one of the States concerned. 6. It therefore seems that under both general international law and United Nations practice, a mediator has an inherent right to submit proposals and suggestions to the parties whilst "good offices" consists of action tending to call negotiations into existence although the latter may be regarded as only a stage in the process of mediation. With reference to this last point, the Security Council Committee of Good Offices on the Indonesian question on occasion made suggestions informally to the parties without objection being taken to this procedure. 7. The Security Council in choosing to authorize the Secretax~y-Generalg in Security Council resolutiontS/2472, to designate a Special Representative appears to have sought to avoid use of both the description "mediator" and the term "good offices" in order to achieve maximum flexibility in the scope and function of the Secretaz7-General' s Representative within the confines of the directions given in paragraph 3 of the resolution.,* 8, Such an intent would be in accord with the views expressed by representatives of Member States in the Security Council as to the means and courses of action open to the Special Rersnaie Such views indi- cate that there was wide agreement that the resolution should include *In this connexion it cannot be concluded from the debates in the Security Council that the resolution precludes the use by the Special Representative of such of the traditional techniques encompassed by the terms '!iiediation" or "good offices", as he deems suitable and useful, .w3 - clearly stated provisions and principles which should provide the framework within which the Special Representative should work and govern any agreement between the parties, but at the same time, the Representative should be left the maximum freedom to choose the methods which he should employ to promote agreement. It should be noted that in introducing the United Kingdom draft resolution which was subsequently adopted unanimouslzy, the representative of the United Kingdom stated: "As to the third operative paragraph, I have said before that I consider that the United N~ations Special Representative should be free to decide himself the exact means and methods by which he pursues his endeavours in contact with the states concerned both to promote agree- ment and to assist efforts to achieve a peaceful and accepted and final settlement*" ,9. Although it is considered that the Special Representative has a wide freedom of choice as to the methods he should employ in performing his functions, it is necessary to refer to the text of paragraph 3 of the resolu- tion in order to determine those functions. a* He is to function in the Middle East* b. He is to establish and maintain contacts with "the States concerned"t (see section dealing with "States concerned" infra) a. He is to promote agreement which in the context means he is actively to pursue an agreement between the parties and which could lead to the making of proposals as appropriate (see paragraph 7 suPra ) d. He is to assist efforts, which means that he is to aid the parties in their owni efforts "to reach a peaceful and accepted settlement",g i~e. a peaceful settlement agreed to by the parties. The one restriction on the Special Representative is that he must perform the above functions within the requirements of the provisions and principles stated in Security Council resolution §/242. Finally, although there is no express provision to that effect, the implication of paragraph 4 of Security Council resolution 11/242 is that the Special Representative must repert to the Secretary-General as soon as possible in order that the Secretary-General may himself cemply with the request that he report to the Security Council. The meaning of the term "~the States concerned" 10. In respect of the function of the Special Representative, referred to at paragraph 9(b) above, the following should be noted: -4- 11. The concept clearly includes Israel and those countries from whose territories Israel troops are to be withdrawn (Dyria, UAR and Jordan). It must also be taken to include those countries which actually participated in the fighting during the recent conflictt In order to avoid a dispute as to this question, it would perhaps be preferable to refrain from listing such States.* In this connexion it should be noted that the Secretary-General in his letter dated 13 June 1967, in reply to a letter dated 12 June 1967' from the Acting Permanent Representative of Israel (both published in document S/7985), the Secretary-General stated that a. the text of Security Council resolution 233 was sent on 6 June 1967 to the Foreign Ministers of Israel,9 Jordan, Syria and the UAR since according to official information then available, only these States were actually involved in the hostilities. On 7 Julie 1967, resolution 234 was communicated to the Foreign Ministers of those States; b. the texts of Security Council cease-fire resolutions 233 and 234, were sent on 7 June 1967 to the Foreign Minister of Iraq "1since a statement of the Foreign Minister of Israel had indicated that Iraq was also participating in the fighting"'; c. the texts of these two resolutions were communicated on the same day to the Foreign Ministers of IKuwait, Saudi Arabia and Sudan,, following consultations with the Permanent Representative of those countries; do the texts of both resolutions were sent with a note verbale to the Permanent Missions of Algeria, Lebanon, Libya, Mauritania, Morocco, Tanisia and Yemen. 12. As regards Lebanon,, although no hostilities occurred between that country and Israel, and although no Lebanese territory is occupied, it is the Israeli view*that the Israel-Lebanon Armistice Agreement is no longer valid with the result that, in fact., no official contact between the two countries is now possible.