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Aspects of Foreign Relations under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and Gaza

Published online by Cambridge University Press:  04 July 2014

Joel Singer
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Extract

In each one of the three main agreements which Israel has concluded to date with the PLO as part of the current peace process, the issue of foreign relations has received special treatment. This reflects the fact that, while the transfer of a number of spheres of authority to the Palestinian autonomous entity has serious practical ramifications, the treatment of the sphere of foreign relations has an added effect on the very nature of the autonomous entity itself, because full capacity to conduct foreign relations is one of the accepted indicia of sovereignty and statehood. Any arrangements reached with regard to the sphere of foreign relations are, therefore, of critical significance.

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Articles
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Israel Law Review , Volume 28 , Issue 2-3: The Peace Process , Spring–Summer 1994 , pp. 268 - 296
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 The three main agreements concluded thus far between Israel and the PLO are as follows:

1. The Declaration of Principles on Interim Self-Government Arrangements, signed at Washington on September 13, 1993 (“the Declaration of Principles”). This agreement sets out a framework for Israeli-Palestinian negotiations during an interim period of five years until the implementation of the outcome of permanent status negotiations between the two parties;

2. The Agreement on the Gaza Strip and the Jericho Area, signed at Cairo on May 4, 1994, (“the Cairo Agreement”). This agreement gives effect to the provisions of the Declaration of Principles dealing with the withdrawal of Israeli military forces from the Gaza Strip and the Jericho Area and the transfer of powers from the Israeli military government and its Civil Administration to a Palestinian Authority established in these areas; and

3. The Agreement on Preparatory Transfer of Powers and Responsibilities, signed at Erez on August 29, 1994 (“the Preparatory Transfer Agreement”). This agreement implements the provisions of the Declaration of Principles requiring a functional transfer of authority from the Israeli authorities to the Palestinians in a number of specific civilian spheres throughout the West Bank.

Each of these Agreements has been published by the Information Division, Israel Ministry of Foreign Affairs. In addition, the Declaration of Principles and the Cairo Agreement have been distributed by the United Nations General Assembly as documents A/48/486-S/26560 (annex) of 11 October 1993 and A/49/180-S/1994/727 (annex) of 20 June 1994 and published in (1993) 32 I.L.M. 1525 and (1994) 33 I.L.M. 622.

2 Framework for Peace in the Middle East agreed at Camp David, September 17, 1978, (1978) 17 International Legal Materials 1466-74; 857 K.A. vol. 25.

3 Convention on the Rights and Duties of States, 1933, (1934) 28 Am J. Int'l L. (supp.) 76Google Scholar.

4 See Dinstein, Yoram, International Law and the State (Schocken, 1971, in Hebrew, ) 98Google Scholar.

5 Under the Federal Constitution of the Swiss Confederation of 1874, for example, alliances and treaties “of a political character” between cantons are prohibited (Article VII), but agreements with foreign nations “on matters of public economy and neighbourship and police relations” are permitted, as long as they do not “contain anything prejudicial to the Confederation or the rights of other Cantons” (Article IX). For the text of the Constitution, see (1929 part II) 131 British and Foreign State Papers 713-740.

6 For the background and content of the Palestinian “Declaration of Independence”, see (1988) 27 International Legal Materials 1660Google Scholar.

7 Klinghoffer v. Achille Lauro, 937 F.2D 44, 47 (2nd Cir., 1991).

8 Ibid.

9 Ibid., at 48.

10 Ibid.

11 Ibid.

12 Hannum, Hurst and Lillich, Richard B., “The Concept of Autonomy in International Law”, (1980) 74 Am J. Int'l L. 858–889, at 872CrossRefGoogle Scholar. Also published in Dinstein, Yoram, ed., Models of Autonomy (Tel Aviv University, 1981) 215–254Google Scholar.

13 Hannum and Lillich, supra n. 12, at 874.

14 Section 16, The Greenland Home Rule Act, Act No. 577 of 29 November 1978. See U.N. Doc E/CN.4/199242 Add. 1 pp. 109-116. See also Isi Foighel, “A Framework for Local Autonomy: The Greenland Case”, in Yoram Dinstein, ed., Models of Autonomy, supra n. 12, at 37.

15 Charter for the Kingdom of the Netherlands, Articles 24 (1), 26 and 27, (1958) 5 Netherlands Int'l L.R. 107-118. The Charter also provides for the appointment of a special representative to participate on behalf of the Netherlands Antilles in deliberations of the Government of the Netherlands in matters of foreign relations affecting the Netherlands Antilles. Where this representative has serious objections to the preliminary opinion of the Government, he may request further deliberations (Charter, Article 12).

16 Cook Islands Constitution Act 1964, Articles 3 and 5; Niue Constitution Act 1974, Articles 3, 7 and 8, quoted in Mautner, Menachem, “West Bank and Gaza: the Case for Associate Statehood”, (1980) 6 Yale Studies in World Public Order 297–360, n. 80Google Scholar.

17 See Hannum and Lillich, supra n. 12, at 875.

18 Ibid.

19 See Lapidoth, Ruth, “Autonomy: Potential and Limitations”, (1994) 1 Int'l J. on Group Rights 269–290CrossRefGoogle Scholar.

20 Although Israel has undertaken to act in accordance with the humanitarian provisions dealing with occupied territory contained in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War on a de facto basis, its official position is that this convention does not apply de jure in the West Bank and the Gaza Strip, because these areas are not “occupied territory” in the meaning of the Convention, since sovereignty in these areas never vested in Jordan and Egypt (see, e.g., the statement of Israel's Ambassador to the United Nations, A/32/PV 47, October 26, 1977). Israel has agreed, however, to defer any discussion of claims to sovereignty until the negotiations on the permanent status of these areas, as provided in Article V of the Declaration of Principles. In this context, the provision contained both in Article XXIII(5) of the Cairo Agreement and in Article XIII(3) of the Preparatory Transfer Agreement is significant: “Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the interim agreement or the permanent status to be conducted pursuant to the Declaration of Principles. 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”.

21 See Singer, Joel, “The Declaration of Principles on Interim Self-Government Arrangements — Some Legal Aspects”, (Winter 1994) 1 Justice (Journal of the International Association of Jewish Lawyers and Jurists) 4–13, at 6Google Scholar.

22 Regulations annexed to the Convention Respecting the Laws and Customs of War on Land, signed at the Hague on October 18, 1907, (1908) 2 Am J. Int'l L. (supp.) 90–117CrossRefGoogle Scholar.

23 Greenspan, Morris, The Modern Law of Land Warfare, (University of California Press, 1959) 223Google Scholar.

24 Von Glahn, Gerhard, The Occupation of Enemy Territory, (University of Minnesota Press, 1957) 97Google Scholar.

25 Meron, Theodor, “Applicability of Multilateral Conventions to Occupied Territories”, (1978) 72 Am J. Int'l L. 542–557, at 649CrossRefGoogle Scholar.

26 Ibid., at 560.

27 Israel signed the Convention on 7 March 1966 and ratified it on 3 January 1979. For the text of the Convention, see 660 U.N.T.S. 195; 26 K.A. 861.

28 The change in the attitude of the Committee became evident in 1987, when it wrote in its report: “Reference was made to the need to obtain some reporting from [the occupied] territories in order to monitor the implementation of the Convention. In that context, it was pointed out that the Committee itself, at an earlier date, had decided that it was not competent to receive any information on the occupied territories as that might imply recognition of the legitimacy of the occupation. Several members expressed the view that the Committee should revise that decision …” [A/42/18, p. 119]

By 1992 the change in the Committee's attitude was complete. Its annual report stated that: “The Committee underlined that… Israel's report needed to encompass the entire population under the jurisdiction of Israel. The report under consideration, which described the situation only within the State of Israel itself, is in that respect incomplete”. [A/46/18, pp. 87-88]

29 Von Glahn, supra n. 24, at 211.

30 The Camp David Agreement referred to the Palestinian autonomous authority as “the self-governing authority” and as “the administrative council” alternately. In their written documents, the three delegations decided to use these two expressions in an abbreviated form, as follows: “the SGA(AC)”.

31 This and subsequent documents referred to below in this section are unpublished materials contained in the files of the Israel Ministry of Foreign Affairs.

32 Prof. Ruth Lapidoth, who was the Legal Adviser to the Israel Ministry of Foreign Affairs during these autonomy negotiations, summed up this point as follows: “It has been more or less agreed that the self-governing authority will have no competence with respect to external security and foreign relations but whereas Israel has held that it must retain these powers, in Egypt's opinion they should be suspended for the duration of the transitional period”. Lapidoth, , “The Peace Process” in Stock-man-Shomron, Israel, ed., Israel, the Middle East and the Great Powers, (Shikmona, 1984) 197, at 203Google Scholar.

33 Paragraph 11 of the Peace Initiative, published in Guide to the Mideast Peace Conference, (AIPAC, 1991) 81, at 82Google Scholar.

34 Article 3 of Annex II of the Declaration of Principles, entitled Protocol on Withdrawal of Israeli Forces from the Gaza Strip and Jericho Area.

35 Under General Assembly resolution 3237 of 22 November 1974, the PLO was invited to participate in the sessions and the work of the General Assembly and all international conferences convened under the auspices of the General Assembly as an observer. This resolution also stated that the PLO should be entitled to participate in the sessions and the work of all international conferences convened under the auspices of other organs of the United Nations. A further General Assembly resolution, 3375 of 10 November 1975, called for the PLO to be invited to participate on an equal footing with other parties in all efforts, deliberations and conferences on the Middle East held under the auspices of the United Nations.

General Assembly resolution 43/177 of 15 December 1988 stated that, as of that date, “the designation ‘Palestine’ should be used in place of the designation ‘Palestine Liberation Organization’ in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization, in conformity with relevant United Nations resolutions and practice”.

It should be noted that the effect of resolution 43/177 was purely terminological and that it was specifically stated to be “without prejudice to [the PLO's] observer status”. The status of the PLO at the United Nations is thus still that laid down in the resolutions passed in 1974 and 1975.

Nothing in the agreements concluded thus far between the PLO and Israel supports any change in the standing of the PLO either within the United Nations or in any other forum. To the contrary, the status of the PLO is intricately bound up with the status of the West Bank and the Gaza Strip. Any assertion by the PLO, therefore, that the status of these areas has changed, and that accordingly the status of the PLO in the United Nations should be changed, would itself be a breach of these agreements. In this regard, in Annex II, Article 6 of the Declaration of Principles, the parties agreed that: “Other than these agreed arrangements, the status of the Gaza Strip and Jericho area will continue to be an integral part of the West Bank and Gaza Strip, and will not be changed in the interim period”. This principle also finds expression in the provision included in the final clauses of both the Cairo Agreement (Article XXIII (6)) and the Preparatory Transfer Agreement (Article III (5)), which states:“The Gaza Strip and the Jericho Area shall continue to be an integral part of the West Bank and the Gaza Strip, and their status shall not be changed for the period of this Agreement. Nothing in this Agreement shall be considered to change this status”. In addition, a similar provision is included in the exchange of letters between Israel and the PLO, dated May 4, 1994, which was concluded in connection with the Cairo Agreement. These letters provide, in paragraph 5: “Neither side shall initiate or take any step that will change the status of the Gaza Strip and the Jericho Area pending the outcome of the permanent status negotiations”. On the observer status of the PLO at the United Nations, see Opinion of the Legal Counsel of the United Nations on the Status of the PLO Office to the United Nations, dated 23 September 1982, reproduced in I.C.J. Pleadings, “Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947”, at 94-97.

36 According to the records of the Israel Ministry of Foreign Affairs, the PLO currently has some form of foreign representation in 88 countries, as follows:

Embassies or full diplomatic missions: Algeria, Angola, Bahrain, Bulgaria, Burundi, Cambodia, Chad, China, Congo, Cuba, Cyprus, Czech Republic, Djibouti, Egypt, Ethiopia, Gabon, Ghana, Guinea-Bissau, Hungary, India, Indonesia, Iraq, Jordan, Kazakhstan, Libya, Malaysia, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Nicaragua, North Korea, Nigeria, Pakistan, Philippines, Poland, Qatar, Romania, Saudi Arabia, Sudan, Tanzania, Tunisia, Turkey, Uganda, Russia, Vietnam, Zambia, Zimbabwe, Yemen. General Delegations: Australia, Belgium, Germany, France, Holland, Italy, Japan, Luxembourg, Portugal, Spain, United Kingdom. Information offices: Argentina, Bolivia, Chile, Finland, Mexico, Panama, Peru, Sweden, United States. Non-resident representatives: Benin, Burkina-Faso, Denmark, Guyana, Mongolia, Vanuatu. Other: Austria, Brazil, Canada, Greece, Kenya, Madagascar, Nigeria, Switzerland, Thailand, Uruguay. As elaborated in n. 35 above, nothing in the Israel-PLO agreements justifies any change in the status of these offices. Moreover, any assertion by the PLO to the contrary would itself be a breach of these agreements.

37 PECDAR, established on October 31, 1993, is the PLO's central institution for managing the process of reconstruction and development in the West Bank and the Gaza Strip during the transitional period. For a description of PECDAR's work and structure, see The International Bank for Reconstruction, Emergency Assistance Program for the Occupied Territories, (World Bank, 1994) 16–18Google Scholar.

38 This provision also has the effect of preventing the opening in the Gaza Strip and the Jericho Area of offices of international organizations. Thus, when, subsequent to the signing of the Declaration of Principles, the Secretary-General of the United Nations initiated the relocation of the headquarters of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) from Vienna to Gaza, Israeli consent was required. Israel agreed to allow this relocation to take place in order to accommodate the requirements of both the Palestinians and of UNRWA. For details concerning the transfer of the UNRWA headquarters to the Gaza Strip, see Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 1 July 1993 - 30 June 1994, G A.O.R. 49th Session, Supplement No. 13 (A/49/132) at p. 6.

39 Israel Ministry of Foreign Affairs internal paper, Foreign Relations, the PLO and the Palestinian Authority: Practical Guidelines for Briefing Foreign Missions in Israel, 14 August 1994.

40 This provision is analogous to the provision contained in Article 36(1) of the Vienna Convention on the Law of Treaties, 1969, which provides that “A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right … and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides”. This convention does not apply to the Cairo Agreement, because Israel is not a party to the Convention and the PLO cannot be a party, since it is not a state. Nonetheless, the principle contained in this Article — that an agreement between two parties can contain provisions for the benefit of a third party — is clearly analogous to the situation envisaged in the Cairo Agreement, whereby the PLO may conclude agreements which are effectively for the benefit of the Palestinian Authority in certain specified fields.

41 In one instance, pursuant to the Cairo Agreement, a PLO official signed an agreement with an international organization adding to his title in the PLO a second title held by him in the Palestinian Authority. Israel insisted that the additional reference to the title in the Palestinian Authority be deleted. Similarly, Israel has insisted that, in agreements concluded between the PLO and third parties, the official signing the agreement on behalf of the PLO not add a title suggesting that this PLO official is also an official of the “State of Palestine”. The assertion that such a state exists is negated by a host of provisions contained in the Declaration of Principles and subsequent Israel-PLO agreements, which establish autonomy, and not a Palestinian state, in the West Bank and the Gaza Strip, deferring the resolution of the final status question to the end of the five-year transitional period (Article V of the Declaration of Principles). Furthermore, Chairman Arafat, who, upon the declaration by the PLO in 1988 of the establishment of the “State of Palestine”, assumed the title “President of Palestine”, undertook to abstain from using this title in paragraph 4 of the exchange of letters dated May 4, 1994, accompanying the Cairo Agreement. This provision reads as follows: “When Chairman Arafat enters the Gaza Strip and the Jericho Area, he will use the title “Chairman (Ra'ees in Arabic) of the Palestinian Authority” or “Chairman of the PLO”, and will not use the title “President of Palestine”. The prohibition on using a title intended to convey an implication of statehood was clearly not meant to be limited to Chairman Arafat, but to extend to all PLO officials”.

42 See supra nn. 35 and 36 and the accompanying text.

43 Israel Ministry of Foreign Affairs internal paper, supra a. 39.

44 Ibid.

45 The “Lateral Roads” means the three roads connecting the Israeli settlements in the Gaza Strip with Israel. Under Article IV(7) of Annex I of the Cairo Agreement, these roads were placed under Israeli security responsibility.

46 Israel Ministry of Foreign Affairs internal paper, supra n. 38.

47 S.H. 1497, 28 December 1994, p. 85. All translations from the Law are unofficial.

48 Ibid., sec 2.

49 Ibid., sec. 6.

50 Sec. 685, Public Law 103-306 - August 23, 1994 (108 Stat. 1656).