Pitfalls of applying international law to the peace process

While international law must be part of negotiations, it can also hinder them. Stalemates in future Arab-Israel talks can be avoided if the parties do not get hung up on legal principles.

United Nations AP 298.88 (photo credit: Associated Press)
United Nations AP 298.88
(photo credit: Associated Press)
International law is an essential element of international negotiations. The usual aim is to reach an agreement that obligates the negotiators by way of a binding international treaty. This is true of the peace process with the Palestinians and of any future negotiations with the Syrians.
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The rules of international law determine whether a future understanding or agreement will be considered binding by delineating substantive conditions for classifying the parties’ commitment. Interestingly, official documents play little part in such a definition. Laymen are often surprised to learn that an exchange of letters or diplomatic notes can constitute an international agreement that is no less binding than the leather-bound documents with red seals and ribbons to which foreign ministers so love to annex their signatures. However, in certain cases the use of international law has its pitfalls may even play a negative role.
Not only is the end result subject to the scrutiny of international law, the entire process of negotiations also involves legal craftsmanship. Legal terms carry with them the history of how they have been interpreted in the past. Legal precedents often play a very useful role: During the negotiations of the 1979 peace treaty with Egypt, the parties incorporated chunks of text from the UN Charter and from UN Security Council Resolution 242 to make accepting the terms more palatable. For this reason the 1994 peace treaty with Jordan copied the Israel-Egypt treaty almost word for word.
In most negotiations there is a desire to garner third party support for the positions put forth by the parties involved. Even when the third party may have political sympathy for one side’s position, it’s important that the party supports a stance that is legally sound. Neutral and disinterested states, kibitzing on negotiations, will find it easier to support a claim that they consider to be legal and that sets a positive precedent. Roger Fisher, emeritus professor of law at Harvard Law School, correctly asserts that "legitimacy and lawful authority are key components of political power."
In the case of the Arab-Israel peace process, the use of international law has often led to one or both sides being overly concerned with questions of principle rather than try to reach a pragmatic compromise. For example, the Palestinian insistence on the recognition of refugees’ "right" of return mitigates the prospect of reaching a pragmatic solution. Cyclical disputes over the Temple Mount’s sovereignty make it difficult for the parties to try and reach a practical formula on a division of governmental functions on the Mount. This phenomenon is aggravated by the fact that many Palestinian lawyers view UN General Assembly resolutions as reflecting international law. According to this view, when the UN General Assembly approves a resolution by a large majority and reconfirms it year after year, the Assembly acts as a quasi-legislative body reflecting the international community views of what constitutes international law.
The counterview, held by most Western international lawyers, is that UN General Assembly resolutions do not create international law, and that furthermore the drafters of the UN Charter knowingly refrained from granting the Assembly such power. As French international law professor Prosper Weil stated: “Neither is there any warrant for considering that by dint of repetition, non-normative resolutions can be transmuted into positive law through a sort of incantatory effect."
Good legal drafting avoids the use of ambiguous language. Ambiguity often defers or postpones issues, and may even exacerbate a problem that could have been solved during actual negotiations. However, there are times when the only way out of an impasse is by employing the use of “constructive ambiguity.” While UN Security Council Resolution 242 calls for future boundaries to be "secure and recognized,” it deliberately refrains from defining them. This ambiguity might be what enabled all parties to accept the resolution and turn it into the corner stone of the peace process.
As always, future negotiations will require the input of internationallaw, but negotiators must be wary of its limits and pitfalls. Insistingon the enunciations of legal principles and demanding the use ofunambiguous terminology may be counterproductive.
Thewriter teaches international law at the Hebrew University and is theformer legal adviser to the Ministry of Foreign Affairs.