Israel is debating whether to impose another 90-day construction freeze in Judea and Samaria in exchange for promises by US President Barack Obama, including a promise to veto a Security Council resolution recognizing a Palestinian state based on pre-1967 lines. Would such an agreement be binding under US law? On Obama? On his successor? Would US support for a Palestinian state violate an existing agreement?

Several weeks ago it was reported that to induce PA President Mahmoud Abbas to return to negotiations, Obama offered “to formally endorse a Palestinian state based on the borders [sic] of Israel before the 1967 Middle East war” (“Risks and Advantages in US Effort in Middle East,” New York Times, October 6). Leaving aside why Abbas needs to be induced to return to negotiations intended to culminate in the creation of a Palestinian state (for the first time in history), such a promise would breach an agreement between the US and Israel entered into on April 14, 2004, by an exchange of letters between president George W. Bush and prime minister Ariel Sharon.

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US SUPPORT, or failure to oppose, a Security Council resolution for a Palestinian state based on the pre-1967 lines (these were armistice lines, not borders) would also be inconsistent with US policy going back to 1967, when the Security Council adopted Resolution 242. Famously, that resolution’s reference to territories, not “all the” territories, or even “the” territories, at the insistence of the US, over the objections of Syria and other Arab states, was intended to ensure that Israel would not be required to give up all the territory it had captured .

The letter from Sharon states:

“I attach for your review the main principles of the Disengagement Plan... According to this plan, the State of Israel intends to relocate military installations and Israeli villages and towns in the Gaza Strip, as well as other military installations and a small number of villages in Samaria.

The letter from Bush states:

“We welcome the disengagement plan you have prepared... The United States appreciates the risks such an undertaking represents. I therefore want to reassure you on several points...

“Third... In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final-status negotiations will be a full and complete return to the armistice lines of 1949... It is realistic to expect that any finalstatus agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.”

The letters were both dated the same day. In carefully drafted language, they listed a series of commitments by Israel and the US, respectively.

A reading of the letters leaves no doubt that they were intended to memorialize an agreement between the US and Israel. A concurrent resolution, adopted June 22, 2004, states that Congress “strongly endorse[s] the principles articulated by President Bush in his letter dated April 14, 2004, to Israeli Prime Minister Ariel Sharon...”

Israel implemented the disengagement at great human and material cost. All the Jewish communities in Gaza were destroyed. Thousands of Jews were forcibly removed from the towns and villages they had built and in which they had lived and worked for many years, some all their lives. Many still have no permanent homes or jobs.

Obama’s offer “to formally endorse a Palestinian state based on the borders of Israel before the 1967 Middle East war,” if in fact made, is thus clearly inconsistent with president Bush’s “reassure[ing]” Sharon that “in light of new realities on the ground, including already existing major Israeli population centers... it is realistic to expect that any final-status agreement will... reflect these realities.”

Although the US Constitution only provides for treaties ratified by the president with the advice and consent of two thirds of the Senate, executive agreements have been used since the beginning of the United States, and most agreements between the US and other countries today are by executive agreement rather than by treaty.

In two cases decided over 70 years ago, the US Supreme Court held that executive agreements are constitutional, and that, like treaties, they supersede inconsistent state law. Those cases involved an exchange of letters between president Franklin Delano Roosevelt and Maxim Litvinov, the people’s commissar for foreign affairs of the Soviet Union, in which the US agreed to recognize the Soviet Union and the Soviet Union assigned its claims against US nationals to the US.

More recently, the Supreme Court held constitutional an executive agreement in which Iran agreed to free US embassy personnel it had taken hostage and the US agreed to dissolve a freeze on Iranian assets and nullify attachments against such assets, including those based on judgments by US courts. The Supreme Court has even ruled that the term treaty in a statute applied to executive agreements as well.

While there is, of course, no way Israel, or any other country, can compel the US to honor its treaty commitments, the US has generally done so. If Obama fails to honor agreements made by his predecessor, it would not only tarnish the US reputation internationally, it would seriously impair America’s ability to negotiate future agreements, as other states would wonder whether any US commitments they received in return for concessions would be honored.

The writer is a professor of international law at the Benjamin N. Cardozo School of Law, and served as counselor on international law in the US Department of State, Office of the Legal Adviser.

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