A Paradox of Peacemaking: How Fayyad's Unilateral Statehood Plan
Undermines the Legal Foundations of Israeli-Palestinian Diplomacy

Alan Baker

• Palestinian Prime Minister Salam Fayyad published a plan in August 2009 to unilaterally declare statehood after a two-year state-building process. The Fayyad plan involves numerous governance components that already exist within the various frameworks composing the Oslo Accords, which already enable the Palestinians to develop their state-building capabilities within the peace process, and not necessarily as a unilateral initiative outside the process.
• The only valid legal framework between the Israelis and the Palestinians remains the 1995 Interim Agreement, which represents the source of authority for the existence of the Palestinian governance and its component institutions. The Interim Agreement established that: "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."
• In November 2009, Palestinian chief negotiator Saeb Erekat publicly confirmed discussions with UN Secretary General Ban Ki-moon and EU policy chief Javier Solana who reportedly expressed support for a UN Security Council resolution calling for a Palestinian state along the 1967 lines with East Jerusalem as its capital, which is the stated goal of the Fayyad plan.
• The Fayyad plan contains elements regarding Jerusalem, borders, and economic aspects that are part and parcel of the established final-status negotiation process and, if dealt with unilaterally, would undermine the process and violate the solemn commitments entered into by the Palestinians.
• Any unilateral action that undermines the existing Oslo interim framework could jeopardize the peace process and remove the basis for the existence of the Palestinian Authority. However, were the Fayyad plan to be adapted and integrated within a resumed negotiating process, on the basis of the extensive infrastructure that already exists in the Oslo Accords, then this plan could serve as a constructive starting point for any new round of negotiations.

Introduction

For almost two years we have been witnessing a complex series of discussions, pronouncements, United Nations speeches, and high-level visits between Washington and European capitals and Jerusalem - all surrounding the questions of whether, how, and if the two sides - Israel and the Palestinians - are able and willing to revert back into a negotiating mode with a view to reach the sought-after peace between them.

Preconditions aside - whether it be the Palestinian demand for a freeze of Israeli settlement activity, or the Israeli demand for Palestinian recognition of the Jewish character of the State of Israel - it may reasonably be assumed that sooner or later, perhaps bolstered by guarantees and promises of support from various international parties, a return to the negotiating mode will indeed materialize.

The scene is indeed being set by the Palestinians for a strong and even dramatic point of entry into either bilateral negotiations or perhaps a sharp diplomatic turn toward a unilateral strategy for Palestinian statehood. Recent dramatic statements by Palestinian Chairman (Ra'ees) Mahmoud Abbas,¹ evidently aimed chiefly toward the U.S. administration, declaring his intention not to seek re-election in light of the lack of progress in the negotiation process, are one indication.

Add to this a statement made by the head of the Palestinian Negotiation Department Saeb Erekat to the Palestinian newspaper Al-Ayyam on November 14 confirming recent discussions and expressions of support from UN Secretary General Ban Ki-moon and the EU's top diplomat Javier Solana for a Security Council resolution acknowledging a Palestinian state along the 1967 lines with its capital in East Jerusalem. Senior PA Central Committee member Mohammed Dahlan also told the Israeli daily Yediot Ahronot on November 11 of the PA's intention to seek UN Security Council support for a unilaterally declared Palestinian state.

Much of the stepped-up Palestinian activity seeking support  in the international area is anchored in Palestinian Prime Minister Salam Fayyad's August 2009 publication of his plan to unilaterally establish a Palestinian state after a two-year, state-building process - with or without Israeli cooperation.²

The Fayyad Plan

While such a plan would appear at first sight to be interesting and even a refreshing change from the routinely expressed Palestinian rhetoric of threats, complaints, and belligerency, one cannot ignore the undertone prevalent throughout the Fayyad plan of unilateral action outside the bilateral negotiating framework. It appears that this plan is being presented in the form of an ultimatum. If Israel does not accede to Palestinian demands within the negotiating process, then the Palestinians will act unilaterally outside the negotiating framework. The Fayyad plan takes some of the central issues - including aspects of the Jerusalem issue such as the airport at Atarot, and the issue of the 1967 lines - and intends to unilaterally declare a Palestinian state along the 1967 lines, and gain international support through Security Council recognition.

This is couched in pragmatic and businesslike language aimed at the political leadership of the European Union and further afield.

But dramatic gestures apart, diplomacy - even between Israelis and Palestinians - cannot proceed through unilateral gestures or threats, straying beyond the legal context or framework to which both sides are committed. Logically speaking, any attempt to move forward toward some kind of peaceful relationship between Israelis and Palestinians can only be premised on a process of dialogue and mutual acceptance, through a bona fide negotiation process within a viable and acceptable framework.

While the Fayyad plan contains components that could clearly be part and parcel of a renewed negotiating process, the fact that the plan is couched throughout in terms of an ultimatum runs counter to the very concept of a negotiation process, and as such cannot be acceptable - not to Israel and not to the other international partners to the negotiating process and signatories to the various agreements between Israel and the Palestinians.

Media reports that the Fayyad plan contains an unpublished addendum,³ according to which a unilateral declaration of a Palestinian state along the 1967 lines will be presented to the Security Council and supported by European states and possibly by the United States, only adds an additional element of threat, confusion, and lack of trust.

The Oslo Accords - The Only Valid Framework

The only valid and legally binding framework that has governed, and continues to govern, the relationship between Israel and the Palestinians is still the Israeli-Palestinian Interim Agreement (1995), with its related documents, commonly termed the "Oslo Accords," that envelopes all the other agreements and arrangements between the two sides and incorporates within its terms UN Security Council Resolution 242 (1967), which set the basic terms for comprehensive peace in the area.⁴

The complex Interim Agreement constitutes the constitutional basis for the very existence and structure of the Palestinian Authority and its governance in the territories. It gives the chairman (ra'ees) and the governing structures of the PA - the Palestinian Council, the Executive Committee, the Police, and all the other institutions - their sole raison d'etre.⁵

This framework has, during various phases of negotiations and ongoing diplomacy since 1995, been somewhat re-adapted and re-modelled, principally through the "Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict" (April 2003),⁶ and the Annapolis Joint Understanding on Negotiations (November 2007).⁷ Such re-adaptations have attempted to skip or alter the time-sequences, and jump-start many of the processes inherent in the framework. But the Interim Agreement remains very much valid and provides, together with the guiding principles and timetable laid down in the Roadmap,⁸ the only viable and valid basis for resuming negotiations.⁹

Thus, when Salam Fayyad refers in his plan to a "proactive state-building process that will include the development and building of infrastructure, establishing strong state institutions capable of providing equitably and effectively, for the needs of our citizens," harnessing natural energy sources and water, and improving housing, education and agriculture¹⁰ - all these components are built into the already existent structure set out and available in the "Oslo Accords," with their appurtenant documentation.

State-Building Components of the Oslo Accords

In this context, two important and often forgotten joint documents from 1993 already provide, to a large extent, a viable scenario for many elements of Fayyad's plan. The Protocol on Israeli-Palestinian Cooperation in Economic and Development Programs and Protocol on Israeli-Palestinian Cooperation Concerning Regional Development Programs (September 1993)¹¹ established joint organs to enable cooperation in economic development including such spheres as water resources and equitable utilization, development of electricity and other fields of energy, exploitation of oil and gas for industrial purposes, and development of petrochemical industrial facilities.

These protocols - much heralded by their authors Shimon Peres and Yasser Arafat - set up programs for cooperation in finance, international investment, and establishment of a Palestinian Development Bank. Additional provisions deal with transportation and communication, establishing a Gaza seaport, construction of roads, railways, and communication lines, trade promotion programs including local, regional, and inter-regional trade, free trade zones, and industrial research and development projects. Similarly, environment protection, media and labor relations, social rehabilitation, housing and construction, human resources, and regional tourism are covered by these protocols.

The Interim Agreement (1995) itself provides additional and detailed platforms for the very state-building and governance that Salam Fayyad envisages in his plan. These are set out in considerable detail in Protocol III concerning Civil Affairs,¹² Protocol V on Economic Relations,¹³ and in the interesting and relatively unused Protocol VI concerning Israeli-Palestinian Cooperation Programs.¹⁴

Particularly relevant perhaps is the preambular paragraph of Protocol V on Economic Relations which states:

This protocol lays the groundwork for strengthening the economic base of the Palestinian side and for exercising its right of economic decision-making in accordance with its own development plan and priorities. The two parties recognize each other's economic ties with other markets and the need to create a better economic environment for their peoples and individuals.

The contents of the protocol - all part of a binding agreement entered into in Paris by the PLO on behalf of the Palestinian people and the Government of Israel - covers such subjects as taxation, monetary and financial issues, labor, agriculture, industry, tourism, and insurance issues - all intended to provide the Palestinian Authority with the criteria and substantive platforms for its own economic development and governance.

Protocol VI on Israeli-Palestinian Cooperation Programs adds further components for advancing Palestinian economic, industrial, and entrepreneurial development, including:

• developing the infrastructure and a strong base for the Palestinian economy;
• strengthening the bases for independent and institutional economic decision-making processes within the Palestinian side;
• supporting the establishment of the Palestinian Standards and Specifications Institute, export institute, etc.;
• working together to promote social development and foster the rise of Palestinian standards of living; and
• reducing the disparity in the level of the respective economic development of the two sides.
• Increasing Palestinian industrial output through, inter alia, the promotion of a program of industrial parks or zones in accordance with an agreed concept and in cooperation with all relevant institutions;
• Attracting the international business sector and in particular multinational firms.
• In the field of agriculture, establishing channels for the exchange of information on farming methods, irrigation, water and soil treatment, herbicides, pesticides, etc.;
• cooperation and coordination in the field of plant protection and veterinary diseases;
• joint efforts to combat desertification and encourage the development of agricultural projects in arid and semi-arid areas.

Additional items covered by this protocol include environment, energy, transportation infrastructure, tourism, science, culture, and sports.

The Roadmap

The Roadmap¹⁵ lays great stress on the need to build Palestinian governance as an integral part of its preparations for the statehood that is envisaged to result during the later stages set out in the Roadmap. Hence, in its opening paragraphs, this document predicates any two-state solution, inter alia, on the Palestinian people having:

a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty.¹⁶

The Roadmap goes on to lay down, as part of its first phase, a program for "Palestinian Institution Building" which includes a specific reference to the newly-created office of "Interim Prime Minister."

Final Status Issues and the Incompatibility of the Fayyad Plan

In light of the extensive infrastructure for state-building and governance built into the various agreements and documentation that comprise the framework for the peace process between Israel and the Palestinians, it would appear to be logical and propitious that Salam Fayyad's plan be integrated into any resumed final status negotiating process - clearly not as a unilateral measure intended to replace that process, but as part and parcel of the process itself.

However, several components of Fayyad's plan, intended by him to be unilaterally determined,¹⁷ would appear to raise serious questions of compatibility with the final status negotiating issues, as agreed upon between the parties:

• Fayyad's aim to predetermine the borders by unilaterally dictating a return by Israel to the June 4, 1967, lines, which contravenes the call in UN Security Council Resolution 242 for "secure and recognized boundaries" to be negotiated, would also directly counter the agreements by the parties in the 1993 Declaration of Principles,¹⁸ as well as Article XXXI of the Interim Agreement.¹⁹
• Fayyad calls for massive Palestinian development in Area C - an area in which the Palestinian Authority exercises civil powers and responsibilities as well as functional jurisdiction under the umbrella of overall Israeli security and civil administration - the fate of which is intended by the Interim Agreement to be negotiated in the permanent status negotiations.²⁰
• Fayyad intends to "take control of Kalandia airport" which is located within the municipal boundaries of Jerusalem and is an integral component of the permanent status issue of Jerusalem. In this context, the economic potential of turning the Jerusalem Airport at Kalandia/Atarot in northern Jerusalem into a jointly-run international airport serving the tourism/pilgrimage industry of the Jerusalem area has figured in informal discussions between Israeli and Palestinian officials as an example of the huge economic potential inherent in a peaceful and profitable relationship between Palestinians and Israelis in the general context of solving the Jerusalem issue to the mutual benefit of all sides.
• Fayyad's intention to build water installation projects near Tulkarem and Kalkilya, while ambitious, cannot be dealt with unilaterally, as water knows no borders and could be potentially harmful to Israel's water rights. Any such determination regarding water projects would of necessity have to be discussed in the permanent status negotiation as part of the overall bilateral water issue, as set out in the Oslo Accords and specifically agreed in Annex III, Article 40 (Water and Sewage) of the Interim Agreement.²¹

Implications of a Unilateral Declaration of Statehood

To unilaterally dictate and underwrite these delicate and central issues, as Fayyad seems to be proposing, is to poke a finger in the eye of the negotiating process.

More importantly, to act unilaterally outside the process could gravely undermine the framework itself and prejudice Salam Fayyad's own status, as well as the constitutional integrity of the Palestinian Authority. In this context, any unilateral declaration of a Palestinian state could set off a series of reactions - whether legal or political - that might create substantive, structural damage to the peace process.

As I pointed out in an article in the Jerusalem Post immediately after publication of Fayyad's plan,²² the Interim Agreement established in its Final Clauses (Article XXXI) a strict equation to deal with serious unilateral actions by either side:

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.²³

Clearly this vital provision places a reciprocal and parallel obligation on each of the parties - the Palestinians and Israel - not to unilaterally alter the status of the territories until such change is mutually agreed upon. The intention of the parties during the negotiations was clear - the Palestinian side will not declare a unilateral state, and the Israelis will not declare annexation of the territories - all intended to ensure that any such serious structural activity would only be the result of a bilateral process.

To open up and violate such an integral provision of the agreement that serves as the foundation for the existence and functioning of the Palestinian Authority could open up the agreement and place in jeopardy its continued validity and, in so doing, potentially unravel the source of authority of the Palestinian Authority, as well as the delicate premise on which it is based.²⁴

Since the states of the European Union, the Russian Federation, the U.S., Egypt, and Norway are signatories to the Interim Agreement as witnesses, and since the agreements have been welcomed and approved by the United Nations, it would appear to be unrealistic for European countries, the U.S., the United Nations itself or responsible members of the Security Council would act in a manner that violates their commitments to ensure due implementation of the documents signed by the Palestinians and the Israelis.

Conclusion

In conclusion, when considering in a calculated manner the implications of the Fayyad plan, one can assume that the plan, if implemented unilaterally, could potentially threaten the very existence and legal basis upon which the Palestinian Authority is built and from which it draws its legality and constitutional rights. It is unlikely that the responsible members of the international community, who have placed their signatures on the Oslo system of agreements, will so glibly turn their backs on this system.

On the other hand, were the Fayyad plan to be adapted and integrated as a negotiating instrument within a resumed negotiating process, on the basis of the extensive infrastructure that already exists in the Oslo Accords for Palestinian state-building and preparations for good governance, then there is every likelihood that this plan will be taken very seriously by all parties concerned and serve as a constructive starting point for any new round of negotiations.

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Notes

1. See announcement by Abbas of November 5, 2009, of his intention not to stand for re-election.

2. Salam Fayyad, "Ending the Occupation, Establishing the State," Program of the Thirteenth Government, August 2009. See also Ha'aretz, August 25, 2009.

3. See Ha'aretz, November 8, 2009.

4. See http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/UN+Security+Council+Resolution +242.htm.

5. See http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm.

6. See http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Performance-Based+Roadmap+to+a+Permanent+Two-Sta.htm.

7. See http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Joint+Understanding+on+Negotiations+27-Nov-2007.htm.

8. The Roadmap (see note 6 above), while not a signed agreement between the parties, received UN Security Council endorsement in UNSC Resolution 1515 of November 19, 2003, and is accompanied by a list of substantive reservations by each party.

9. Interestingly enough, one of the elements of the Palestinian leadership that does not appear in the Interim Agreement is the Office of the Prime Minister, i.e., Salam Fayyad's own function, which was not foreseen. See article III of the Interim Agreement which deals with the structure of the Palestinian Council, and article V which refers in subparagraph 4 (b) and (c) to the appointment of members of the Executive Authority and others, but makes no mention of a "prime minister" as such. The post was created with Israeli concurrence in March 2003 immediately prior to the publication of the Roadmap, when Abbas was appointed prime minister under the presidency of Yasser Arafat. Neither he nor his successors as prime minister have ever been elected to this post.

10. See footnote 2 above.

11. See Annexes III and IV to the Declaration of Principles on Interim Self-Government Arrangements, September 1993, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm.

12. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT+-+Annex+III.htm.

13. This document was initially negotiated and drafted in Paris in April 1994 and later incorporated into the Interim Agreement as Annex V. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT+-+Annex+V.htm.

14. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT+-+Annex+VI.htm.

15. See note 6 above.

16. See Roadmap, note 6, 2nd paragraph.

17. See note 2, at page 35.

18. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Principles.htm. See Article V on Permanent Status Negotiations and, specifically, paragraph 3, according to which: "It is understood that these negotiations shall cover remaining issues including Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors and other issues of common interest."

19. See above, note 5.

20. See Interim Agreement, (note 5 above) - Article XI (Land), paragraphs 2(c) and 3(c), Annex III (note 11 above), article IV (Special Provisions concerning Area C).

21. See note 12.

22. Alan Baker, "De facto deliberations - Is Fayad's plan for a Palestinian state within two years viable or does it undermine the very basis for the existence of the PA?" Jerusalem Post, August 27, 2009.

23. See above, note 5, Article XXXI, sub-paragraph 7.

24. While some commentators have raised the issue of a potential fundamental breach of a treaty pursuant to international treaty law, the question has been raised as to whether the Oslo Accords between the sovereign state of Israel and the non-state entity - the PLO - may indeed be defined as an international treaty. Inasmuch as it is not an agreement between two subjects of international law, it does not fall within the international law definition of a treaty, but in light of its international character, its acceptance by the international community, and the counter-signatures by world leaders, the Oslo Accords have attained a sui generis status of their own, the nature of which will be defined by history.

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Alan Baker is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is presently a partner in the law firm of Moshe, Bloomfield, Kobu, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords.