Palestinian deception and the unwarranted trust of the West: The case of Palestinian accession to international conventions
By Alan Baker
In a highly publicized ceremony on 1 April 2014, and pursuant to a unanimous decision by the Palestinian leadership, Palestinian Authority President and PLO head Mahmoud Abbas signed letters addressed to the United Nations and to the governments of Switzerland and the Netherlands, requesting that "the State of Palestine" be granted accession to 15 international conventions and treaties.
The official website of the PLO justified this action by citing "a right which Palestine gained following its upgrade to observer state status by the UN General Assembly in November 2012" – a right the realization of which it claims to have postponed as part of the arrangements negotiated with U.S. Secretary of State John Kerry for returning to the negotiating table. These arrangements included an Israeli commitment to release Palestinian prisoners and a reciprocal Palestinian commitment to postpone its "right" to accede to international instruments.
In light of the evident lack of progress in the negotiations and consequent attempts by Secretary Kerry to engineer their continuation beyond the nine-month period initially envisaged for their completion, Israel delayed the release of the fourth and final batch of Palestinian prisoners pending agreement to continue negotiations.
However, in the midst of the discussions to extend the negotiations, the Palestinian leadership decided to act unilaterally and to activate what they consider to be their "right" to accede to international conventions, following the upgrade of their status in the UN to a non-member observer state, claiming also that such conventions are "vital to continued Palestinian institution building, good governance and the upholding of human rights."
This was evidently in realization of a pre-determined, long-term strategy document circulated in March 2014 by their chief negotiator, Saeb Erekat, in which he set forth the steps the Palestinian Authority must take to achieve the goal of applying Palestinian sovereignty to the territories demarcated by the 1967 lines, including
Pursuant to the request by Mahmoud Abbas, both the UN and the Swiss government hurried to accept the Palestinian request. In a statement issued by the UN spokesman on April 10, 2014:
"The secretary general has ascertained that the instruments received were in due and proper form before accepting them for deposit." In keeping with procedure, all member states had been informed.
Similarly, on the same day, the Swiss Federal Council issued a formal notification to the governments of states parties to the Geneva Conventions of the fact that the Palestinian accession "took effect on 2 April 2014."
This action by the Palestinian leadership, taken in the name of both the "State of Palestine" and the PLO (the Palestinian umbrella organization), and the consequent, hurried acceptance of the Palestinian applications by the United Nations and by the Swiss government, raise serious questions both regarding the flawed perception as to the very existence and legal status of a sovereign state of "Palestine" in the international community, as well as to the issue of the potential implications of what are, in effect, serious violations of the 1995-9 Oslo Accords and of the very integrity of the international law of treaties.
It is perhaps logical to assume and to expect that the depositories of those international conventions to which the Palestinian leadership addressed its requests for accession – specifically the United Nations and the governments of Switzerland and the Netherlands – if acting in accordance with their legal and moral duties pursuant to international treaty law and practice, would have indeed determined in no uncertain terms that the requests by the Palestinian leadership for accession to the conventions fail to meet the requirements of international law.
Similarly, one might assume that the depositories would not have permitted themselves to fall for this deception, or to be manipulated by political or ideological pressures or by economic or energy-related interests, all of which would damage the integrity of international law and custom.
The reasons for this are as follows:
A State of Palestine Does Not Exist
Despite the commonly-held perception relied upon by the Palestinian leadership and evidently prevalent in the international community, the 29 November 2012 UN General Assembly resolution 67/19 upgrading the status of the Palestinian representation in the UN to that of a non-member observer state did not establish a state, and therefore did not grant statehood to the Palestinians.
The United Nations – whether the General Assembly or the Security Council – does not have the power to grant statehood. It only has the prerogative to invite existing states to apply for UN membership and to consider if such states fulfill the criteria for membership as set out in the UN Charter.
By all accepted international legal and customary criteria, no sovereign Palestinian state exists. Such statehood can be achieved only in accordance with the accepted international law criteria of a permanent population, a defined territory, government and the capacity to enter into relations with the other states.
Clearly, despite the illusions disseminated by the Palestinian leadership and bought into by the international community, the Palestinians are not yet in any position to indicate a defined territory, which is still subject both to an open conflict with the Hamas terror organization ruling the Gaza Strip, and is still an agreed-upon negotiating issue between the PLO and Israel. Nor can the Palestinian Authority leadership claim to represent the population of the Gaza Strip, which openly rejects its authority and jurisdiction as well as the presidential status and representative authority of Mahmoud Abbas himself. By the same token, the Palestinian leadership cannot thus indicate to the international community any clear and stable form of governance, and any capacity to take upon itself and to observe international obligations, or to represent itself as a "peace-loving state."
Pending fulfillment of these criteria, it should be clear that the Palestinians cannot represent themselves vis-à-vis the international community as a sovereign state imbued with the capacity to accede to international conventions, especially when such conventions specifically condition signature and accession to them to states only.
In 2011 the UN Security Council rejected a Palestinian request for membership, citing disagreements between the Council members on whether "Palestine" fulfills the requirements set forth in the UN Charter for membership of the organization, which requirements include being a peace-loving state, accepting the obligations of the U.N. Charter, and a commitment and capability to carry out those obligations.
Thus, the very basic premise cited by the Palestinians as justification for their claim to accede to international conventions would appear to be fundamentally flawed and to constitute a gross misrepresentation and over-estimation of their international status and prerogatives.
Violation of the Integrity of International Treaty Law
International treaty law, as set out in the Vienna Convention on the Law of Treaties,10 calls for accession to treaties by states, whether members of the UN, Specialized Agencies or parties to the ICJ statute. The clear assumption is that the term "states" means genuine states that exercise the qualities and capabilities of statehood and sovereignty, and not entities, artificially termed "states," that do not exercise such qualities and capabilities.
All 15 conventions listed in the Palestinian requests for accession, including the Geneva Conventions, require that only states be permitted to accede. By rushing to accept the Palestinian accession requests, knowing that there exists no genuine Palestinian state, the depositories are in fact both misleading themselves and the international community as a whole and undermining the very integrity of international treaty law and creating dangerous precedents.
Serious Violations of the Oslo Accords
The act of requesting accession to international conventions constitutes a clear violation of Palestinian obligations pursuant to Article IX of the Israeli-Palestinian Interim Agreement on the
West Bank and the Gaza Strip of 28 September 1995, which sets out the agreed-upon powers and responsibilities of the Palestinian Council.
In this provision the Palestinians agreed and undertook not to exercise powers and responsibilities in the sphere of foreign relations, and to restrict agreements with states or international organizations solely to those serving "the benefit of the Council." Such agreements are defined in the Interim Agreement as economic agreements, agreements with donor countries for the provision of assistance to the Council, agreements for the purpose of implementing regional development plans, and cultural, scientific and educational agreements.
In a similar vein, the Palestinian leadership is violating another central obligation set out in Article XXXI(7) according to which they agreed 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."
These violations of the Oslo Accords place the integrity of the accords into serious question. The fact that the international community appears to be playing along with these Palestinian violations runs counter to the fact that those same Oslo Accords were counter-signed by leading figures in the international community, including the Presidents of the U.S. and Egypt, the King of Jordan, and representatives of the EU, Russian Federation and the Kingdom of Norway, all of whom solemnly signed the agreement as witnesses. The agreement was also endorsed by the United Nations.
In view of the above, the question may well be asked whether the "peace process," that has for so many years been an integral part of the international narrative regarding the Arab-Israel dispute, can now continue in its present format when both the Palestinian leadership and the international community, through the UN and the Swiss government, have, to all intents and purposes – in accepting the Palestinian request to accede to international treaties – undermined it, and predetermined the very central issues that were to have been negotiated between the parties, i.e., the final status.
Practical Consequences of Accession to International Conventions
Accession to international conventions by the Palestinians, even before they can claim to be a genuine state, raises some interesting issues with which the international community, as represented by the UN, Switzerland and the Netherlands, will have to cope after accepting Palestinian accession to international treaties:
Derailing the Peace Process
The enthusiasm with which the international community appears to encourage and pamper the Palestinians, and to play along with their attempt to accede to international conventions, under the flawed illusion that there exists a sovereign state of Palestine, will only serve to encourage the Palestinian leadership in its refusal to return to a negotiating mode in order to reach a final status agreement with Israel, solving all the relevant and outstanding issues that can be solved only through negotiation.
As such, the Palestinian leadership assumes that the international community will go along with any Palestinian demand, thereby obviating any need for negotiation and agreement.
This international pampering of the Palestinians, and utter ignoring of international law and solemn commitments, as well as the massive prejudgment of issues that should remain on the negotiating table, in effect signals a serious turning point in the peace process and raises the question whether there is any hope for progress in its present format.
Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel's Ministry of Foreign Affairs and as Israel's ambassador to Canada.