The European Union: Challenges for Israeli Diplomacy
Tamas Berzi

In Britain, France, and Germany have expressed an interest in obtaining a united European Union position on the recognition of a Palestinian state based on the 1967 lines, with a provision for land swaps. Should the Palestinians proceed with their plan to seek a UN General Assembly resolution stating that the Palestinian Authority constitutes a state and its borders should be based on the 1967 lines, the question of how the European Union will vote will be critical.
„h According to the Treaty of Lisbon, which came into force on December 1, 2009, the European Union is to define and implement a common foreign and security policy. However, in practice, the EU often find it difficult to act in a unified way.
„h On the Middle East, the European Union faces major difficulties in achieving consensus, as European countries are often split in their voting at the UN. Looking at recent European voting records at the UN, Italy, Germany, the Netherlands, the Czech Republic, Hungary, Poland, and Slovakia are the countries most likely to support Israel¡¦s positions.
„h The Israel-Palestinian Interim Agreement of 1995, which stated 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,¡¨ was witnessed by the European Union. Thus, any European move in support of a unilateral declaration of Palestinian statehood would be a violation of those commitments.
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Britain, France, and Germany have expressed an interest in obtaining a united European Union position on the recognition of a Palestinian state based on the 1967 lines, with a provision for land swaps. Should the Palestinians proceed with their plan to seek a UN General Assembly resolution stating that the Palestinian Authority constitutes a state and its borders should be based on the 1967 lines, the question of how the European Union will vote will be critical. Past experience has shown that the Palestinian representatives will seek a ¡§qualitative majority¡¨ at the UN, based on the EU and major Western powers, and will not be satisfied with an ¡§automatic majority¡¨ of Third World countries based on the Non-Aligned Movement alone.
Voting Patterns Show No EU Consensus on the Middle East
According to the Treaty of Lisbon,1 which came into force on December 1, 2009, the European Union is to define and implement a common foreign and security policy (CFSP).2 The EU strives for consensus on all matters and the member states try to coordinate all foreign policy issues. However, in practice, the EU often faces difficulties in acting in a unified way. For example, EU consensus has not been achieved in the case of Kosovo¡¦s declaration of statehood, since Spain, Romania, and Greece have yet to accept the independence of Kosovo.
On the Middle East, the European Union faces major difficulties in achieving consensus, as European countries are often split in their voting at the United Nations. For example, on October 16, 2009, the UN Human Rights Council adopted a resolution to refer the report of the Goldstone Fact-Finding Mission¡¦s report to the General Assembly.3 The Human Rights Council has 47 members elected for a three-year period, so not all EU member states are eligible to vote. Nevertheless, Hungary, Italy, Netherlands, and Slovakia voted against, while Belgium and Slovenia abstained.
On November 5, 2009, the UN General Assembly adopted a resolution on the Goldstone report, titled ¡§Credible, Independent Investigations into Alleged War Crimes in Gaza.¡¨4 Of the 27 EU members, 5 were in favor (Cyprus, Ireland, Malta, Portugal, and Slovenia), 7 were against (Czech Republic, Germany, Hungary, Italy, Netherlands, Poland, and Slovakia), and 15 abstained (Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Greece, Latvia, Lithuania, Luxembourg, Romania, Spain, Sweden, and United Kingdom).
On February 26, 2010, the General Assembly voted to request a further report on the Gaza investigations. This time, 16 EU members voted in favor and 11 abstained.5
The Human Rights Council adopted a resolution on June 2, 2010, after Israel¡¦s interception of the Gaza flotilla. The resolution was titled ¡§The Grave Attacks by Israeli Forces Against the Humanitarian Boat Convoy.¡¨6 It condemned Israel in the strongest terms and established a fact-finding mission. Slovenia voted in favor, Italy and Netherlands voted against, and Belgium, France, Hungary, Slovakia, and the United Kingdom abstained.
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On September 29, 2010, when the report of the fact-finding mission was adopted, all European Union members abstained.7
While not a member of the UN Human Rights Council, Germany took a particularly hostile position on the Gaza flotilla. On July 2, 2010, the Bundestag approved a resolution which called for an international investigation and condemned Israeli actions, suggesting that Israeli soldiers acted disproportionately.8 The resolution was supported by all the parties in the German Parliament.
What Israel Should Be Telling the EU
While according to the Treaty of Lisbon, EU foreign policy issues are to be decided in most cases by unanimity, in the case of a lack of consensus, each member state will continue to adopt its own positions. At the same time, Israel has three main messages to convey to European countries.
First, looking at recent European voting records at the UN, Italy, Germany, the Netherlands, the Czech Republic, Hungary, Poland, and Slovakia are the countries most likely to support Israel¡¦s positions. In light of Judge Richard Goldstone¡¦s retraction of the accusation that Israel intentionally targeted civilians in Gaza as a matter of policy,9 those countries that objected to the Goldstone report should be applauded for taking the moral high ground and for identifying the report for what it was, a political weapon aimed at denying Israel¡¦s right to protect its citizens.
Second, as former Israel Foreign Ministry legal advisor Alan Baker has pointed out,10 the Israel-Palestinian Interim Agreement of 1995, which stated 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,¡¨ was witnessed by the European Union. Thus, any European move in support of a unilateral declaration of Palestinian statehood would be a violation of those commitments. It should be emphasized to European Union member states that violating agreements they had signed as witnesses would jeopardize their future role in the peace process, and would have other diplomatic implications as well. Who would want to have the European Union witness agreements in the future if it didn¡¦t live up to its word? If the European Union wants to move the peace process forward, there is no other solution than calling on the sides to sit at the negotiating table and discuss all unresolved issues bilaterally. Promisingly, German Chancellor Angela Merkel declared in early April 2011, during a visit by Israeli Prime Minister Benjamin Netanyahu, that Germany will not support a unilaterally declared Palestinian state.11
Third, a recent speech by British Foreign Secretary William Hague at Chatham House regarding the 1967 lines indicates that the three major European powers (Britain, France, and Germany) want to move in a direction that would prejudge the outcome of negotiations:
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The UK, France and Germany have set out our views on what those principles should be: two states for two peoples based on 1967 borders with equivalent land swaps, security arrangements that protect Israel whilst respecting Palestinian sovereignty by ending the Occupation, a fair realistic and agreed solution for refugees, and Jerusalem as the capital of both states.
We are calling on the United States and the Quartet to set out clear principles on this basis as soon as possible and on both sides to resume negotiations to address final status issues. There has been talk about whether interim solutions will suffice. But I don¡¦t believe they will be sufficient. Final status issues have to be resolved.12
Since there can be no substitute for a bilateral agreement, any such references that predetermine the outcome of negotiations are highly counterproductive to peace efforts. Such statements result in a hardening of Palestinian positions and make the existing gaps between the two sides even wider. If Germany is serious in its objection to unilateral moves, then it should equally object to this reference as well. A position like this could have an impact similar to the mistake of the Obama administration in 2009 that called for a total freeze on Israeli construction across the 1967 lines, as Mahmoud Abbas and the Palestinian leadership subsequently refused to accept anything less than what the U.S. had called for.
Politically, it is very difficult to break a consensus in the European Union when Germany, France, and the United Kingdom are in agreement. However, it is very important to point out the serious implications of their position. Germany¡¦s position, as the most populous country with the largest economy, and a traditional supporter of Israel, is key. It is equally important to convey these arguments to other friendly countries such as Italy, the Czech Republic, Hungary, Poland, and the Netherlands, since their objection could prevent the European Union from taking such a counterproductive step.
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Notes
1. The Treaty of Lisbon, which came into force on December 1, 2009, amended the two treaties which comprise the constitutional basis of the European Union: the Treaty on European Union (TEU) signed in Maastricht in 1992, and the Treaty of Rome which established the European Community, signed in 1957. As part of this process, the Treaty of Rome was renamed the Treaty on the Functioning of the European Union (TFEU).
In order to define whether the member states or the European Union is eligible to legislate, the TEU distinguishes between three types of authority:
a.) Exclusive authority (Art. 3)
There are certain areas, like the customs union or the monetary policy for member states whose currency is the euro, where only the Union may legislate and adopt legally binding acts, the member states able to do so only if so empowered by the Union or for the implementation of Union acts.
b.) Shared authority (Art. 4)
In certain areas, including internal commerce, environmental protection, consumer protection, transportation, etc., the member states can exercise their authority to the extent that the Union has not exercised its authority. In
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the fields of research, technological development, space research, economic development, and humanitarian aid, the exercise of authority by the Union shall not result in member states being prevented from exercising theirs.
c.) Supporting authority (Art. 6)
In certain areas and under the conditions laid down in the treaties, the Union shall have authority to carry out actions to support, coordinate or supplement the actions of the member states, without thereby superseding their authority in these areas: health care, industry, culture, tourism, education, professional training, youth and sport, civil defense, and administrative cooperation.
Source: Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (2010/C 83/01), Official Journal of the European Union, Volume 53, 30 March 2010.
2. The definition and implementation of a common EU foreign and security policy (CFSP) is a shared authority, but is subject to specific rules and procedures (Art. 24). The CFSP does not affect the existing legal frameworks, responsibilities, and powers of each member state in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries, or participation in international organizations, including a member state¡¦s membership in the UN Security Council. The provisions covering the CFSP do not give new powers to the European Commission to initiate decisions, nor do they increase the role of the European Parliament (Protocol 9). The CFSP is to be defined and implemented by the European Council and the Council (Art. 24).
The European Council, which consists of the heads of state or government of the member states, together with its president and the President of the European Commission, defines the general political direction and priorities (Art. 15), identifies the Union¡¦s strategic interests, and defines and determines the objectives and general guidelines for the common foreign and security policy (Art. 26). The post of the President was established by the treaty and is currently held by Herman Van Rompuy, who also chairs the European Council. The European Council meets twice every six months and its decisions are made by consensus (Art. 15).
The Council is the main decision-making body of the European Union, where the ministers of the member states meet. Depending on the issue on the agenda, each country is represented by the minister responsible for that subject. The Foreign Affairs Council consists of the foreign ministers of each member state, who may cast the vote of their government (Art. 16). Where the international situation requires operational action by the Union, the Council adopts the necessary decisions and specifies its objectives, scope, the means to be made available to the Union, their duration, if necessary, and the conditions for their implementation. Decisions commit the member states in the positions they adopt and in the conduct of their activity (Art. 28).
The common foreign and security policy has to be defined and implemented by the Council acting unanimously, except for certain exceptions, when the Council acts by qualified majority voting (QMV):
„h When adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union¡¦s strategic interests and objectives, as referred to in Article 22(1).
„h When adopting a decision defining a Union action or position on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative.
„h When adopting any decision implementing a decision defining a Union action or position.
„h When appointing a special representative in accordance with Article 33 (Art. 31).
The Treaty of Lisbon introduced only one new element according to which the Council may act by QMV if an action or proposal is presented by the High Representative of the Union for Foreign Affairs and Security Policy ¡§following a specific request from the European Council¡¨ (where consensus is necessarily). The other exceptions were already introduced in previous treaties and concerned only cases where decisions have already been taken and the Council decision relates to its implementation.
There is, of course, always the political aspect of decision-making in the European Union. The TEU calls on member states to define and pursue common policies and actions, and to work for a high degree of cooperation in all fields of international relations (Art. 21), as well as to achieve an ever-increasing degree of convergence of member state actions (Art. 23). Thus, to break a European consensus can be very costly politically. Therefore, generally, if there is agreement on certain issues among France, Germany, and the United Kingdom, it is unlikely that smaller, less powerful countries would go against their will.
The Foreign Affairs Council meetings are chaired by the High Representative of the Union for Foreign Affairs and Security Policy (Art. 18), who is appointed by the European Council. The position is currently held by Catherine
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Ashton. Before the treaty came into force, the rotating Council Presidency, held by a member state for six months, was responsible. The High Representative conducts the Union¡¦s common foreign and security policy, contributes to the development of that policy, and carries out foreign policy as mandated by the Council. When there is consensus among member states, the High Representative can speak for the European Union. The High Representative is also one of the vice-presidents of the Commission, which is supposed to create more consistency and coordination of the European Union¡¦s external actions. Before the treaty came into force, there were two separate positions: the European Commission had a commissioner for external relations, and since the 1997 Amsterdam Treaty there has been a High Representative for Common Foreign and Security Policy.
The work of the High Representative is supported by the newly established European External Action Service, which works in cooperation with the diplomatic services of the member states and comprises officials from relevant departments of the General Secretariat of the Council and of the Commission, as well as staff seconded from national diplomatic services of the member states (Art. 27). The already existing European Commission delegations around the world became European Union delegations under the authority of the High Representative and are now part of the EEAS structure. EU delegations are to work in close cooperation with the diplomatic services of the member states. They are to play a supporting role with regard to diplomatic and consular protection of Union citizens in third countries (Council of the European Union website, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/111301.pdf). In third countries and at international organizations, the Union delegations now represent the European Union and not the rotating presidency (TFEU, Art. 221).
3. http://daccess-dds-ny.un.org/doc/RESOLUTION/LTD/G09/168/07/PDF/G0916807.pdf?OpenElement
4. http://www.un.org/News/Press/docs/2009/ga10883.doc.htm
5. In favor: Austria, Belgium, Cyprus, Denmark, Estonia, Finland, France, Greece, Ireland, Luxembourg, Malta, Portugal, Slovenia, Spain, Sweden, and the United Kingdom.
Abstain: Bulgaria, Czech Republic, Germany, Hungary, Italy, Latvia, Lithuania, Netherlands, Poland, Romania, and Slovakia.
6. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/145/34/PDF/G1014534.pdf?OpenElement
7. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/166/05/PDF/G1016605.pdf?OpenElement
8. ¡§Ereignisse um die Gaza-Flottille aufklaren - Lage der Menschen in Gaza verbessern - Nahost-Friedensprozess unterstutzen,¡¨ Deutscher Bundestag, Drucksache 17/2328, 30 June 2010, *German+, http://www.fdp-fraktion.de/files/253/1702328_1_.pdf.
9. Richard Goldstone, ¡§Reconsidering the Goldstone Report on Israel and War Crimes,¡¨ Washington Post, April 1, 2010. http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html
10. Alan Baker, ¡§A Paradox of Peacemaking: How Fayyad's Unilateral Statehood Plan Undermines the Legal Foundations of Israeli-Palestinian Diplomacy,¡¨ Jerusalem Viewpoints, No. 574, Jerusalem Center for Public Affairs, November-December 2009. http://www.jcpa.org/JCPA/Templates/ShowPage.asp?DBID=1&LNGID=1&TMID=111&FID=443&PID=0&IID=3185
11. ¡§Merkel will not recognize unilaterally-declared Palestinian state,¡¨ Deutsche-Welle, April 7, 2011. http://www.dw-world.de/dw/article/0,,14974756,00.html
12. ¡§Sixty years of British-Israeli diplomatic relations,¡¨ Foreign and Commonwealth Office, March 30, 2011. http://www.fco.gov.uk/en/news/latest-news/?view=Speech&id=576275682
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Tamas Berzi holds an MA in International Relations from Corvinus University, Budapest, Hungary, and an MA in Political Sciences from the Hebrew University of Jerusalem. He Is Coordinator of the Israel Advocacy project at the Jerusalem Center for Public