PA would breach Oslo if it declared a state unilaterally, but so what?

Essentially, the analysis proves what we should know: Agreements are paper worth only as much the guarantees behind them are worth. If Israel wants to prevent a unilateral declaration of a Palestinian state, it must make clear that such a declaration would result in physical termination of the Palestinian Authority and return to the status quo ante that existed before 1992.

Analysis: PA would breach Oslo if it declared a state unilaterally

Nov. 9, 2009
Dan Izenberg , THE JERUSALEM POST

From a practical point of view, the question of whether or not the Palestinian Authority can declare "Palestine" an independent state is more political than legal.

It is clear from the provisions of the 1995 Oslo Interim Agreement that the Palestinian Authority would be perpetrating a material breach of the treaty by declaring an independent state.

According to Article 23 of the internationally recognized accord, "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."

Therefore, a unilateral declaration of independence by the PA would constitute a clear and serious violation of the agreement.

According to attorney Allen Baker, a former legal adviser to the Foreign Ministry, on the basis of that breach, Israel could declare the entire agreement void.

Baker added that the 1995 accord not only determined the administrative and security arrangements in all of the West Bank according to areas A, B and C, but is also the source of authority for the PA itself.

Palestinian Prime Minister Salaam Fayad's program not only declares that a Palestinian state will be established in 2011, but also says its borders will be those of June 4, 1967, in other words, it will include all of the West Bank and east Jerusalem.

In the plan, entitled "Palestine: Ending the Occupation, Establishing the State," Fayyad wrote, "This [proposal] is the path to the creation of the independent state of Palestine on the Palestinian territory occupied in 1967, with East Jerusalem as its capital."

Hebrew University Professor Emeritus Ruth Lapidot told The Jerusalem Post that according to the Vienna Convention on the Law of Treaties, no state can abrogate a bilateral treaty unless it declares that the other partner is guilty of a "material breach" of the agreement.

Although the PA is not a state, the same principle should apply to it.

So far, the PA has not accused Israel of any material breach. Nevertheless, when he introduced his proposal to building up the Palestinian institutions for the establishment of an independent state, Fayad reportedly added that Oslo had been signed 16 years earlier, yet there was still no end to the Israeli "occupation."

And pointing to the more than 100 settlements in the West Bank, which he said were built in violation of international law, Fayad added, "Look who's talking about unilateralism."

Lapidot explained that there was no international body or institution that recognized states. Individual countries did so according to their own national considerations.

There are, indeed, four conditions that an entity should fulfill in order to be regarded as a state. It must have a population, a territory, an effective government and it must be able to conduct relations with other countries.

But each country determines for itself whether the criteria have been met. Lapidot estimated that the PA would have no trouble finding countries to recognize Palestine as a state, despite the constraints of the Oslo Accord.

The experts with whom the Post spoke on Sunday agreed, however, that the most important question for Israel is whether the US would do so.

Dan Diker, a foreign policy analyst at the Jerusalem Center for Public Affairs, said he was worried that the American administration is heading in that direction and is ready to abandon the peace negotiations which have been stalled since Prime Minister Binyamin Netanyahu came to power.

But Baker said he was not overly concerned that this would happen because the US, along with Russia, Norway, Egypt and the European Union, co-signed the Oslo Accord. Baker said he found it difficult to believe that any of them would be prepared to support a material breach of the treaty by the PA and recognize a Palestinian state.

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