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The old/new unilateral threat
ByALAN BAKER
October 26, 2010 22:52
Palestinian threats show either ignorance of or contempt for the UN system.
The Jerusalem Post

Abbas UN 311. (photo credit:Bloomberg)

We are witnessing a very curious negotiating process when both sides declare they want to advance negotiations, but each places obstacles – both figurative and real – in the way of genuine advancement. Such obstacles, which seem to have stalemated the negotiations, include demands for a settlement freeze and a demand for recognition of Israel as a Jewish state.

Without discussing the merits of, or justification for, these respective demands – and I have gone on record in The Jerusalem Post claiming that both demands could be sidestepped by the pragmatic drafting of a “code of conduct” (“The negotiating process – where do we go from here? A proposal for a tree-climber’s code of conduct,” October 13) – we now seem to be witnessing an old/new development in the Palestinian negotiating technique, in the form of daily threats by negotiators.



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These threats are: to unilaterally declare a state (Prime Minister Salam Fayyad) or alternatively to declare the Oslo Accords void, “to go to Washington to recognize a Palestinian state on 1967 borders. If that doesn’t work, we’ll go to the UN Security Council and ask Washington not to veto.

If Washington vetoes, then the Palestinians will take their case to the UN General Assembly” (statement by Muhammad Shatayeh to The Washington Post, October 22).

This is not the first time in the present negotiating phase that the Palestinians have tried to use the “negotiating technique” of threats. At the recent Sharm e-Sheikh conference, PA President Mahmoud Abbas and chief negotiator Saeb Erekat threatened to walk out if Prime Minister Binyamin Netanyahu did not renew the settlement freeze.

Now, with talks deadlocked practically before they had a chance to begin, we are witnessing this new spate of threats to act independently, through enlisting the UN Security Council, the Americans and Europeans in an attempt to bypass Israel and impose a settlement based on the “1967 borders.”

THERE ARE several legal and practical flaws in these threats. Any unilateral declaration of a state outside the agreedupon negotiating process would undermine the very basis of the Oslo Accords and the framework established by them. This framework would include the legal basis for the existence of the PA, its leaders, institutions and jurisdiction. As such, and being an action intended to, and resulting in the alteration of the status of the territory, it would also be a violation of Article 31 of the 1995 Israeli-Palestinian Interim Agreement, grounds for voiding the agreement, and would open the door to potential Israeli unilateral action vis-a-vis the status of the territory.

Despite attempts to draw a parallel with regard to Israel’s settlement activity, no such parallel can be drawn, since the parties never agreed in the Oslo Accords (or anywhere else) to a settlement freeze, and such a requirement has never become an impediment in previous rounds of negotiation.

Furthermore, the legal arrangements between individual Israeli residents of the territories and the government authority administering real estate preclude changing the status of the land. Thus settlement activity does not violate Article 31 in that it does not alter the status of the territory, which remains subject to permanent-status negotiations.

Since the US (president Bill Clinton), the EU, Egypt (President Hosni Mubarak), Jordan (the late King Hussein) and others are signatories as witnesses to the Interim Agreement, they may not act to recognize such a unilaterally declared Palestinian state set up outside the negotiating process and contrary to the agreement they encouraged, accompanied and signed.

Voiding the Oslo Accords would bring about a legal vacuum that could result in considerable chaos, throwing the area into immense instability and threatening to cast it into uncontrolled violence. None of the interested parties, the PA especially, would want this, and each has everything to gain by maintaining the status quo of the Oslo framework – with all its faults.

Similarly, the UN Security Council would be faced with a genuine dilemma if asked to adopt a resolution declaring a Palestinian state within the “1967 borders.”

The very basis for all the peace treaties and other agreements between Egypt, Jordan, the Palestinians and Israel are the 1967 UN Security Council Resolution 242 and the 1973 Resolution 338, which reaffirmed the need to negotiate Resolution 242 and achieve peace.

These resolutions do not refer to “1967 borders.”

In fact, there are no such borders, but armistice and cease-fire lines that have never been acknowledged to be borders. In fact, during previous phases of the negotiations, the notion of Israel’s return to the 1967 lines was never assumed to be a given element. While there was some reference to using them as a guiding factor in determining real, recognized and secure borders between a future Palestinian state and the State of Israel, nothing more than that figured in the negotiations.

DETERMINING BORDERS is an essential component in interstate relations. The principles of peaceful coexistence and bon-voisinage, whether pursuant to the Charter of the United Nations, or the precedents of the peace treaties between Israel and Egypt and Jordan respectively, determine the necessity for mutual recognition of a common border.

The Palestinian threat to organize an emergency UN General Assembly session to adopt a “uniting for peace” resolution in the event that the Security Council fails to oblige, shows either ignorance of or contempt for the UN system. Any such resolution, which would probably be sponsored by the usual “paragons of international virtue,” such as Iran, Syria, Cuba, South Africa, the Muslim states and even Russia, would doubtless be adopted by an automatic majority, but being a General Assembly resolution, would have no legal significance other than to bolster the Palestinian ego and add another futile resolution to the long list of futile UN resolutions.

The current deadlocked negotiation is too serious a situation to have it dragged into a “threat game” and to oblige the international community to suffer from an irresponsible and ill-advised set of actions the results of which no one can foresee.

Any way one looks at it, it will neither advance the cause of peace nor enhance mutual confidence and respect between the Palestinians and Israelis. How can anyone expect the two sides to return to bona fide peace negotiations over such a chasm of mistrust? The Palestinians cannot blatantly expect the organized international community to dance according to their irresponsible fiddle, in utter contempt of accepted norms and practices of bona fide negotiation. They should get their act together.

The writer served as legal adviser of the Foreign Ministry and ambassador to Canada. He was actively involved in the peace negotiations with the Palestinians and Arab states. He is presently a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co.
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