Provisional borders or provisional deferment?

Netanyahu and Abbas can continue to defer the issue of permanent borders but that doesn’t make it go away. At some point soon, both parties will be forced to iron out border complexities, including those in East Jerusalem and the settlements.

By ROBBIE SABEL
Israel Pal flag (do not publish again) (photo credit: Avi Katz)
Israel Pal flag (do not publish again)
(photo credit: Avi Katz)
Recognizing a Palestinian state within provisional borders raises a number of intriguing political and legal issues. The proposal has international credentials since it was included in one of the stages of the performance-based Middle East roadmap proposed by the Quartet and approved by the UN Security Council.
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Legally it is feasible, as supported by a landmark decision in 1969 involving a case between Germany and Denmark where the International Court of Justice ruled that, "There is no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not." The fact that there is a dispute as to the borders of a state does not mean that it cannot be recognized as a state. Israel, in 1948, unilaterally declared its independence without defining its borders but nevertheless received immediate recognition from the United States and the Soviet Union.
The 1988 PLO declaration of independence was rightly regarded internationally as an empty political gesture, but now the situation in the West Bank is radically different. The state infrastructure set up by Palestinian Authority Prime Minister Salam Fayyad means that a Palestinian state would have an effective government - a prerequisite for receiving international recognition.
The very fact of Israeli recognition of a Palestinian state, albeit with provisional borders, might serve to defuse the international concern over the dispute. Instead of being presented as a situation of a homeless people under foreign military occupation, the issue is transformed into a minor border dispute between two neighboring states. The paraphernalia of a state, including a national flag and anthem, the signing of treaties and joining the United Nations, could well serve as a catharsis for the emotions and nationalism of the Palestinians, hopefully enabling calm and rational border negotiations with its neighbor, Israel.
It is tempting for Israel to call for temporary borders, particularly since the Palestinians have shown no signs of being willing to realistically negotiate a politically feasible permanent border. However, doing so will involve overcoming what appear to be insurmountable obstacles: Firstly, the Palestinians are wary of any reference to temporary borders, fearing that “nothing is as permanent as the temporary” and that after being recognized as a state, they would be left alone to negotiate border issues with Israel.
The call to return to the 1967 border has become the Palestinian mantra. Such a demand entails that the whole of East Jerusalem be included in the Palestinian state, including Jewish suburbs like Gilo, Ramot, French Hill and Ramat Eshkol. Although the Palestinians are aware that no Israeli government would ever conceivably agree to such an outcome, the international support for the 1967 lines serves to further discourage them from entering into any realistic border negotiations.
Whether Israel and the Palestinians like it or not, the delimitation of the permanent border between them is the heart of the dispute. Once a border is defined then the question of the legitimacy of settlements becomes irrelevant; any settlement on the Israel side of the border is Israeli and settlers outside the border will be living in a Palestinian state. In the Oslo agreements, approved by the Knesset, Israel agreed to negotiate the issue of Jerusalem and therefore future border negotiations would necessarily encompass the capital's borders also.
Both sides are attempting to shirk the inevitable. Israel has insisted that issues of security must be settled before negotiating a permanent border. While it is an understandable position, at some stage the parties will have to sit down and negotiate a permanent boundary. They will also be forced to discuss the thornier issues that both sides have been trying to avoid, including East Jerusalem and the question of which settlements will be on the Israeli side of the border. And there is no reason to assume that such negotiations will become easier further down the line.
By the nature of their profession, politicians attempt to defer the necessity of making painful decisions. But of course, these decisions cannot be avoided forever. The time may have come for both Prime Minister Binyamin Netanyahu and PA leader Mahmoud Abbas to tell their people that the difficult and painful permanent border negotiations can no longer be deferred.
The writer teaches international law at Hebrew University and is a former legal adviser to the Foreign Ministry.