May 4, 1999 - Some Frequently Asked Questions
1. 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.
2. 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.
3. 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, emphasis added).
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.
4. 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.
5. 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.
6. 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.
7. 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.