G.W. Bush and Sharon 311 AP.
(photo credit: AP)
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
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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.
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...”
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
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.
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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