Palestinian declaration of statehood and May 4, 1999: frequently asked questions

Palestinian declaration of statehood and May 4, 1999: frequently asked questions

Communicated by the Israeli Ministry of Foreign Affairs, April 26, 1999

What is the significance of the date May 4, 1999?

The Oslo accords are based on the principle that there will be a transitional
period leading to a final settlement. During this period Israel and the Palestinians
will implement interim arrangements and, at the same time, conduct
negotiations on the permanent status arrangements to be implemented at the
end of the transitional period.

In the Declaration of Principles the parties stated their intention of
concluding permanent status negotiations after a transitional period of
five years.

However this was expressed not as a fixed deadline but as an ‘aim’ of
the negotiations (later, in the Wye Memorandum the parties termed it a ‘mutual
goal’).

Article V of the Declaration of Principles provided that this transitional
period would begin upon the Israeli withdrawal from the Gaza Strip and the
Jericho Area. This withdrawal took place on May 4, 1994. Accordingly the
transitional period was intended to continue until May 4, 1999.

* * * * *

Will there be a legal vacuum after this date?

No. If the two sides do not succeed in concluding the permanent status
negotiations by the ta rget date of May 4, 1999, the interim arrangements
will continue until these negotiations have been concluded. It is for this
reason that the Interim Agreement contains a date for its entry into force,
but no date for its conclusion.

This reflects the understanding of the parties that the Oslo process is not
a temporary and reversible experiment. To the contrary, as the parties
affirmed in the preamble of the Interim Agreement:

The peace process and the new era that it has created, as well as the new
relationship established between the two parties, are irreversible.

If this were not the case, and the intention was that in the absence of
agreement on May 4, 1999 the Oslo arrangements would expire, the result
would not be the creation of a legal vacuum.

Rather all powers and responsibilities would revert to the Israeli military
government, which under Article I of the Interim Agreement retains the
residuary jurisdiction.

It was indeed the hope of the parties to reach agreement by May 4, 1999.

However this was an aspiration, not a mandate to jettison everything
achieved after that date. For this reason, as noted above, the date is
described in the Israel-PLO agreements as an ‘aim’ or ‘mutual goal’ and not
a fixed deadline.

That the intention of the parties was not to gamble all the agreed arrangements
on the conclusion of negotiations by May 4, 1999 was recently acknowledged
by Herbert Hansell, former legal adviser of the US State Department who
observed:

“… it is difficult to believe that the parties could have intended
that the entire legal structure they so laboriously established would self-destruct
on May 4… the interpretation that the Oslo agreement terminate seems so at
odds with the language of the accords, and with the spirit of the extended legal
regime the parties have constructed, that no interruption in the performance of
the Oslo agreements could be based on that interpretation.”

This approach reflects not only the language and logic of the accords, but
also the practice of the two sides to date. Where, in the course of
implementing the Oslo accords, the two sides have been unable to reach
agreement by the specified deadlines, the arrangements in force have
continued to apply until the negotiations on the new arrangements have been
concluded.

Thus, for example, pending the conclusion of the Gaza-Jericho
Agreement in 1994 and the Hebron Protocol in 1997, both of which were
concluded some months after their envisaged target dates, the existing
arrangements continued in force until the negotiations were successfully
concluded.

* * * * *

Can the Palestinians declare a state unilaterally after May 4,
1999?

The answer is emphatically no. As noted above, the Interim
Agreement, which prohibits unilateral attempts to change the status of the
territories, does not expire on May 4, 1999 but continues in force until
superseded by agreed permanent status arrangements.

In fact, for the avoidance of any doubt in this context, the Interim
Agreement does not link the prohibition to a specific date but rather prohibits
the initiation or taking of:

“any step that will change the status of the West Bank and the Gaza
Strip pending the outcome of the permanent status negotiations.” (Article XXXI.7)

Additionally, it should be recalled that the Palestinian undertaking not to
declare a state unilaterally is enshrined in documents which are independent of
the Interim Agreement and unrelated to the transitional period.

Thus, in his letter to Prime Minister Rabin dated September 9,
1993, Chairman Arafat undertook that

“all outstanding issues relating to
permanent status will be resolved through negotiations”.

Finally, it should be stressed that the Palestinians, after refusing Israel’s
repeated invitations to negotiate a permanent status agreement, cannot be
permitted to rely on the absence of such an agreement to justify a unilateral
declaration of statehood.

* * * * *

What would be the legal effect of a unilateral Palestinian
declaration of statehood?

International law has established a number of criteria for the existence of
a state: effective and independent governmental control, possession of
defined territory; the capacity to freely engage in foreign relations; and
control over a permanent population.

In order to be recognized as a state, an entity must satisfy all four
criteria; the Palestinian entity, however, cannot actually be said to
satisfy any of them:

Palestinian governmental control is far from independent – it is partial,
temporary, and reliant on Israeli assistance and cooperation;

the territory is not defined – it is non-contiguous and indeterminate – nor
do the Palestinians hold sovereign title to it;

the interim agreements explicitly prohibit the exercise of foreign relations
by the Palestinian Council;

and its control over its population is neither independent or
comprehensive.

Additionally, over recent years new additional criteria have been
established by the international community for recognition as a state.
These include the principle that a state cannot arise as a result of
illegality.

It follows that, even if the Palestinian entity were to satisfy
the criteria for statehood, the unlawfulness of a unilateral declaration of
statehood would invalidate any Palestinian claim to recognition.

Accordingly, however decisively phrased, a declaration of statehood could
not have the effect of bringing a state into being. Moreover the conferral
of recognition on such an entity by a state would, under international law,
itself be an unlawful and invalid act.

* * * * *

What would be the practical effect of a unilateral Palestinian
declaration of statehood?

A Palestinian unilateral declaration of statehood is more than simply an
unlawful act.

It is a rejection of the two fundamental principles of the peace process:
the need to accommodate the legitimate rights of both sides, and the
recognition that this accommodation can only be achieved through negotiation.

It would thus undermine the only framework that has proved capable of
bringing about genuine changes in the situation of the Palestinian people – to
the extent that today over 97% of the Palestinians of the West Bank, and all
the Palestinians of the Gaza Strip live under Palestinian, not Israeli, rule.

A Palestinian rejection of this framework in an attempt to establish the final
status of the territories on a unilateral basis would also inevitably force Israel to
take corresponding unilateral measures to protect its own position, and would
ultimately frustrate the possibility of achieving a durable and lasting negotiated
settlement.

* * * * *

Does the peace process mandate the eventual establishment of a
Palestinian state?

As regards the status of the Palestinian entity to be established at the end of
the interim period, the Israel-PLO agreements make it clear that this is a subject
for negotiations between the two sides. Pending the outcome of these
permanent status negotiations, all options are to remain open.

The Declaration of Principles (Article V.4) provides that:

“the outcome the permanent status negotiations should not be
prejudiced or preempted by agreements reached for the interim
period”

while the Interim Agreement (Article XXXI.6) adds:

“Neither party shall be deemed, by virtue of having entered into
this Agreement, to have renounced or waived any of its existing rights claims or
positions”.

While the Israeli-Palestinian agreements leave the outcome of the permanent
status negations open, some guidance is given by Article I of the Declaration of
Principles. Entitled ‘Aim of the Negotiations’, the Article provides that the goal
of the talks is to establish interim arrangements

“leading to a permanent settlement based on Security Council
Resolutions 242 and 338”.

The reference to these United Nations resolutions is significant, for while
they set out a number of principles to be applied in the final settlement,
including the termination of states of belligerence and the right of every state in
the area to live in peace within secure and recognized boundaries, no reference
is made to the need to establish a new, Palestinian state.

Both sides approach the final status negotiating table with a clean slate. Beyond
the general principles set out in UN resolutions 242 and 338, all options remain
open.

* * * * *

What should the international community do?

The outstanding issues of the Israeli-Palestinian negotiations cannot be resolved
unilaterally. The Oslo process, and UN resolutions 242 and 338, provide that
bilateral negotiations are the only way of reaching a just and lasting peace.

And in practice, it is only face to face negotiations that have proved
themselves capable of creating genuine changes on the ground and bringing the
Palestinians closer to their aspirations.

The responsibility of the international community, therefore, is clear.

It must refuse to recognize any unilateral attempt to change the status of
the West Bank and the Gaza Strip. It must call on the Palestinian side to comply
with its obligations under the continuing interim arrangements. And it must urge
the Palestinian leadership to return to the negotiating table.

This is not just its legal obligation; it is also the only way to reach a
genuine and lasting peace.