Legal and Constitutional Considerations and the Question of Consent for the Stationing of u.N.E.F. On United Arab Republic Territory

52. Legal and constitutional considerations were, of course, of great importance in determining the Secretary General's actions in relation to the request of the Government of the United Arab Republic for the withdrawal of U.N.E.F. Here again, a chronology of the relevant actions in 1956 and 1957 may be helpful.

53. 4 November 1956. The General Assembly, at its first emergency special session, in Resolution 998 (ES-I) requested 'the Secretary General to submit to it within 48 hours a plan for the setting up, with the consent of the nations concerned, of an emergency international United Nations Force to secure and supervise the cessation of hostilities...'

54. 5 November 1956. The General Assembly, in its Resolution 1000 (ES-I), established a United Nations Command for an emergency international force, and, inter alia, invited the Secretary General 'to take such administrative measures as may be necessary for the prompt execution of the actions envisaged in the present resolution.'

55. 7 November 1956. The General Assembly, by its Resolution 1001 (ES-I), inter alia, approved the guiding principles for the organization and functioning of the emergency international United Nations Force and authorized the Secretary General 'to take all other necessary administrative and executive action'.

56. 10 November 1956. Arrival of advance elements of U.N.E.F. at staging area in Naples.

57. 8-12 November 1956. Negotiations between Secretary General Hammarskjold and the Government of Egypt on entry of U.N.E.F. into Egypt.

58. 12 November 1956. Agreement on U.N.E.F. entry into Egypt announced and then postponed, pending clarification, until 14 November.

59. 15 November 1956. Arrival of advance elements of U.N.E.F. in Abu Suweir, Egypt.

60. 16 November to 18 November 1956. Negotiations between Secretary General Hammarskjold and President Nasser in Cairo on the presence and functioning of U.N.E.F. in Egypt and cooperation with Egyptian authorities, and conclusion of an 'aide-mémoire on the basis for the presence and functioning of U.N.E.F. in Egypt' (the so-called 'good faith accord'). (Ibid., Document A-3375, annex.)

61. 24 January 1957. The Secretary General in a report to the General Assembly (ibid., Document A-3512) suggested that the force should have units stationed on both sides of the armistice demarcation line and that certain measures should be taken in relation to Sharm el-Sheikh. On 2 February 1947, the General Assembly, by its Resolution 1125 (XI), noted with appreciation the Secretary General's report and considered that 'after full withdrawal of Israel from the Sharm el-Sheikh and Gaza areas, the scrupulous maintenance of the armistice agreement required the placing of the United Nations Emergency Force on the Egyptian-Israel armistice demarcation line and the implementation of other measures as proposed in the Secretary General's report, with due regard to the considerations set out therein with a view to assist in achieving situations conducive to the maintenance of peaceful conditions in the area.'

62. 7 March 1957. Arrival of U.N.E.F. in Gaza.

63. 8 March 1957. Arrival of U.N.E.F. elements at Sharrn el-Sheikh.

64. In general terms the consent of the host country to the presence of peacekeeping machinery is a basic prerequisite of all the United Nations peace-keeping operations. The question has been raised whether the United Arab Republic had the right to request unilaterally the withdrawal 'as soon as possible' of U.N.E.F. from its territory or whether there were limitations on its rights in this respect. An examination of the records of the first emergency special session and the eleventh session of the General Assembly is relevant to this question.

65. It is clear that the General Assembly and the Secretary General from the very beginning recognized, and in fact emphasized, the need for Egyptian consent in order that U.N.E.F. be stationed or operate on Egyptian territory. Thus, the initial Resolution 998 (ES-I) of 4 November 1956 requested the Secretary General to submit a plan for the setting up of an emergency force, 'with the consent of the nations concerned'. The 'nations concerned' obviously included Egypt (now the United Arab Republic), the three countries (France, Israel and the United Kingdom) whose armies were on Egyptian soil and the states contributing contingents to the force.

66. The Secretary General, in his report to the General Assembly of 6 November 1956, stated, inter alia:

'9. Functioning, as it would, on the basis of a decision reached under the terms of the Resolution 337 (V) "Uniting for Peace", the force, if established, would be limited in its operations to the extent that consent of the parties concerned is required under generally recognized international law. While the General Assembly is enabled to establish the force with the consent of those parties which contribute units to the force, it could not request the force to be stationed or operate on the territory of a given country without the consent of the Government of that country.' (Ibid., First Emergency Special Session, Annexes, agenda item 5, Document A/3302, para. 9.)

67. He noted that the foregoing did not exclude the possibility that the Security Council could use such a force within the wider margins provided under Chapter VII of the United Nations Charter. He pointed out, however, that it would not be necessary to elaborate this point further, since no use of the force under Chapter VII, with the rights in relation to member states that this would entail, had been envisaged.

68. The General Assembly in its Resolution 1001 (ES-I) of 7 November 1956 expressed its approval of the guiding principles for the organization and functioning of the emergency international United Nations Force as expounded in paragraphs 6 to 9 of the Secretary General's report. This included the principle of consent embodied in paragraph 9.

69. The need for Egypt's consent was also stated as a condition or 'understanding' by some of the-states offering to contribute contingents to the force.

70. It was thus a basic legal principle arising from the nature of the force, and clearly understood by all concerned, that the consent of Egypt was a prerequisite to the stationing of U.N.E.F. on Egyptian territory, and it was a practical necessity as well in acquiring contingents for the force.