CAN THE PALESTINIANS UNILATERALLY
DECLARE A PALESTINIAN STATE
IN MAY 1999?
Some legal aspects
Introduction
Recent statements by Palestinian leaders have suggested that the Israeli-Palestinian agreements permit the unilateral establishment of a Palestinian state at the end of the interim period. This is simply not the case. Not only are such statements unfounded but, attempting as they do to prejudice the outcome of the negotiations on the final status of the West Bank and the Gaza Strip, they are themselves a violation of the agreements.
As regards the establishment of a Palestinian state within the context of the Israeli-Palestinian agreements, the following points should be noted:
The interim arrangements establish an autonomy, not a state
The Declaration of Principles (DOP), which sets out the framework of the Israeli-Palestinian negotiations, provides that powers and responsibilities in specified spheres will be transferred to the Palestinian side for a transitional period of up to five years. In accordance with these arrangements, Israel and the Palestinians entered into a series of agreements which resulted in the transfer of powers and responsibilities to the elected Palestinian Council.
The powers and responsibilities transferred to the Council are not those of a state. The Palestinian Council has no authority in the sphere of foreign relations, one of the classic criteria of statehood, and Israel retains extensive security responsibilities throughout the areas transferred to the Palestinian side. Additionally, the transfer of powers and responsibilities to the Council is clearly stated to be for a limited period of up to five years, and not indefinitely.
The permanent status negotiations - all options are left open
As regards the status of the Palestinian entity at the end of the interim period, the DOP provided that negotiations on permanent status issues would commence "as soon as possible, but not later than the third year of the interim period" (Article V.4).
The Wye River Memorandum which was signed on 23 October 1998 also refers to the issue of the permanent status negotiations. Article IV of the Memorandum reads as follows:
"The two sides will immediately resume permanent status negotiations on an accelerated basis and will make a determined effort to achieve the mutual goal of reaching an agreement by May 4, 1999. The negotiations will be continuous and without interruption. The U.S. has expressed its willingness to facilitate these negotiations."
The prior agreements already made it clear that, pending the outcome of the final status negotiations, all options are to remain open. Thus the DOP (Article V.4) provides that "the outcome of the permanent status negotiations should not be prejudiced or preempted by agreements reached for the interim period" while the Interim Agreement (Article I.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."
Accordingly, both sides approach the final status negotiating table with a clean slate: The Palestinian position concerning Israeli settlements, for example, is not to be prejudiced by the fact that the Interim Agreement contains no prohibition on the building of settlements during the interim period, while Israel, for its part, may assert territorial claims notwithstanding the fact that areas have been transferred to Palestinian jurisdiction for the duration of the interim period.
The relevant UN resolutions do not envisage the establishment of a Palestinian state
While, as noted, the Israeli-Palestinian agreements leave the outcome of the permanent status negotiations open, some guidance is given by Article I of the DOP. Entitled: 'Aim of the Negotiations', the Article provides that the goal of the talks is to establish an elected Palestinian Council for the transitional period, "leading to a permanent settlement based on Security Council resolution 242 and 338".
The reference to United Nations Security Council resolutions 242 and 338 as the basis of the permanent settlement is significant, for while these set out a number of principles to be applied in the 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.
The agreements expressly prohibit any attempt to change the status of the territories
Pending the outcome of the permanent status negotiations, neither side is permitted to engage in any attempt to change the legal status of the West Bank and the Gaza Strip. This is provided explicitly in Article XXI.7 of the Interim Agreement which states:
"Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations".
This undertaking was restated in the recently agreed the Wye Memorandum in Article V, as follows:
"Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate or take steps that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement."
This provision, it should be noted, prohibits not only the taking of steps to change the status of the territories, but also the initiation of such steps. Accordingly, statements by the Palestinian leadership, declaring its intention to declare a state, as well as other Palestinian initiatives, such as the attempt to acquire the standing of a member state in international organisations, are a violation of this provision. For its part, Israel is similarly prohibited from attempting to change the status of the territories, for example by annexation.
The obligation not to change the status of the territories unilaterally is not limited to the transitional period
It has been suggested that, if the two sides fail to reach agreement on the permanent status issues by the end of the transitional period, then the Palestinian side is "released" from its obligation not to change the status of the territories and is free to declare a state. There is no basis for this suggestion. In fact the Israeli- Palestinian agreements make it quite clear that the contrary is the case:
The obligation not to change the status of the West Bank and the Gaza Strip unilaterally is not limited to the transitional period. Rather, the obligation continues "pending the outcome of the permanent status negotiations". Accordingly, the obligation continues in force binding the two parties, even following the end of the transitional period. It is true that the DOP and Interim Agreement provide that the elected Council is to be established for a period of up to five years, and that the question of whether the Council retains any powers and responsibilities at the conclusion of this period, if permanent status negotiations have not been concluded, is not addressed. But, under the agreements, the obligation not to change the status of the territories is not an obligation of the Council but of the PLO, and as such, even if the status of the Council is questionable, there can be no doubt that it continues to bind the PLO.
It should also be noted that the obligation not to change the status of the territories obligates both sides - Israel and the PLO. Were the obligation to be terminated it would "free" not one but both sides, and Israel would have the same right to change the status of the territories as the Palestinians.
Conclusion
Statements by Palestinian leaders indicating that the Israeli- Palestinian agreements permit the unilateral establishment of a Palestinian state at the conclusion of the interim period are unfounded. To the contrary, the agreements contain an explicit prohibition on any attempt to change the status of the West Bank and the Gaza Strip - a prohibition which is not limited to the duration of the transitional period.
The agreements provide that there is only one way in which the difficult permanent status issues are to be addressed - by direct face to face negotiations. In these negotiations all options are left open, though it should be noted that the UN resolutions cited by the agreements as the basis for the final settlement make no mention of the establishment of a Palestinian state.
Finally, declarations of intent to establish a Palestinian state unilaterally represent a clear attempt to prejudice the outcome of the negotiations on the final status of the West Bank and the Gaza Strip, and as such are themselves a violation of the Israeli-Palestinian agreements.