• The Palestinian leadership has announced its intention to abandon the negotiation process and to unilaterally seek a UN resolution that will impose a solution upon Israel. Facing a possible veto in the Security Council, the Palestinians are aiming to impose a UN resolution through the General Assembly "Uniting for Peace" procedure, which they hope will be supported by the UN member states.

• While such a resolution would not have the authority to alter the legal status of the territories, the negative consequences of such a course of action would nevertheless serve to void the very basis of the peace process. It would undermine the legal existence of the Palestinian Authority and violate commitments by Yasser Arafat to settle all issues by negotiation,

• Such unilateral action outside the negotiation process would constitute a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement, thereby releasing Israel from its reciprocal commitments.

• Such unilateral action would undermine the international community's reliance on Security Council Resolutions 242 and 338 which form the foundation of all the agreements between the parties. It would also place into question the integrity and credibility of any Security Council resolutions or agreements resolving conflicts between states.

• It would render as meaningless the signatures of the major powers as witnesses to previous negotiated agreements. It would also be incompatible with provisions of resolutions and agreements requiring negotiated solutions to the Jerusalem and refugee issues.

Palestinian Leaders Say the Peace Process Is Over

The international community has recently witnessed a series of widely publicized and authoritative declarations voiced by Palestinian leaders, according to which "the current peace process as it has been conducted so far is over" (Palestinian Authority Foreign Minister Riad Malki, March 22, 2011), and "the Palestinian leadership institutions (PLO and Fatah) have decided to submit a request to the UN for recognition of a Palestinian state within the 1967 borders, with its capital in East Jerusalem" (Sa'eb Erekat - AFP, March 20, 2011).

These declarations join an earlier plan by Palestinian Authority Prime Minister Salam Fayyad, announced in August 2009, to unilaterally declare a Palestinian state upon completion of the preparations for Palestinian governing institutions by September 2011.

A "Uniting for Peace" Resolution?

In the face of a probable U.S. veto of any further attempts by the Palestinian observer delegation to the UN to attain a Security Council resolution recognizing a Palestinian state, the Palestinians are aiming to bring about the adoption of a "Uniting for Peace" resolution in the September 2011 session of the UN General Assembly. This resolution would be based on a procedure established in 1950 at the initiative of then-U.S. Secretary of State Dean Acheson in the context of the Korean crisis as a means of overcoming a lack of unanimity among the permanent members of the Security Council which was preventing the Council from fulfilling its duty to maintain international peace in the event of a perceived "threat to the peace, breach of the peace or act of aggression."[1]

In such a case, the General Assembly "shall consider the matter immediately" in an emergency special session with a view to adopting a General Assembly resolution that could recommend collective measures and other possible action to deal with a perceived threat to international peace and security.

Emergency special sessions of the General Assembly have been convened under this procedure in over ten instances, including the Korean crisis (1950-1953), the Suez crisis (1956), Hungary (1956), Congo (1960), Afghanistan (1980), and Namibia (1981). The procedure has frequently been used regarding Middle East issues, as in 1967, 1980-82, and in the 10th emergency Special Session which, at the behest of the Palestinians and Arab states, has in fact been continuously active since 1997 to this very day.

Clearly, the factual and legal situations regarding each case are unique and thus cannot be seen as indicative of the outcome or content of any possible future "Uniting for Peace" resolution. In this light, the legal and political background to any Palestinian attempt to unilaterally declare a state and to have it recognized by the UN is quite different from any previous use of the "Uniting for Peace" procedure.

A General Assembly resolution adopted through the "Uniting for Peace" procedure would not provide the General Assembly with any powers beyond the recommendatory powers that it exercises in any other routine resolution. It would not be a mandatory resolution, but could only recommend collective or individual actions by states. It would not have the power to change the status of the territories, nor, in and of itself, to alter Israel's status vis-á-vis the territories.

Voiding the Oslo Agreements

The projected action by the Palestinians of declaring void the agreed-upon negotiation process, and proceeding to a unilateral process with the approval of the UN, could have a number of very negative consequences for the Palestinians and for the peace process, as well as for the international community.

With respect to the Palestinians:

• The Palestinian action would be a clear violation of the assurance given by Yasser Arafat in the first formal contact between Israel and the Palestinians, in his exchange of letters with Israeli Prime Minister Yitzhak Rabin in 1993, according to which "all outstanding issues relating to permanent status will be resolved through negotiations."[2] By leaving the negotiating table, taking unilateral action, and seeking to have the UN impose an outcome on Israel, the Palestinians are in fact undermining the very basis of the "peace process" and of Arafat's commitment.

• The Palestinian action would be a clear violation of Article XXXI (7) of the 1995 Israeli-Palestinian Interim Agreement by which the parties undertook not to "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."[3] Since there is not yet any outcome to the permanent status negotiations, the Palestinian unilateral action runs directly against this commitment and renders it void, and as such opens up the option for Israel to undertake its own unilateral actions regarding the status of the territories, should Israel consider this to be necessary.

• In generating a fundamental breach of the Interim Agreement, the Palestinians would be responsible for this agreement's demise. Since the agreement serves as the legal basis and source of authority of the Palestinian Authority itself, its institutions, its parliament, courts, the office of its president, the president himself, and all powers and responsibilities, the PA leadership would, in fact, be placing in question the very legitimacy of their own existence, with all that that would imply.

Voiding the Credibility of the International Community

With respect to the peace process and the international community:

• The Palestinian action of seeking to impose a solution through the UN would be incompatible with the terms of Security Council Resolutions 242 (1967) and 338[5] (1973). Resolution 242[4] specifically calls upon the parties to agree upon "secure and recognized boundaries," and thus, by implication, not to impose boundaries outside such an agreed process. Further to this, Resolution 338 calls for "negotiations...between the parties concerned...aimed at establishing a just and durable peace in the Middle East."

• By seeking to bypass these resolutions through action in the UN with the support of the international community, the Palestinians are basically obliging the member states of the UN to remove the foundations from the entire peace process which are based entirely on those two resolutions, as stated in all the agreements and memoranda signed between the parties and witnessed by members of the international community. It is questionable if the members of the international community could agree to be party to an action undermining such central and important Security Council resolutions that they themselves initiated and adopted.

• Bypassing and voiding Resolutions 242 and 338 would also have consequences on the yet-to-be-conducted peace negotiations between Israel and its neighbors Syria and Lebanon, by removing the central factors around which such peace negotiations are intended to take place.

• The precedent that this will create could have serious consequences for the credibility of other Security Council resolutions that determine outcomes of other disputes in the world, and render such resolutions completely voidable at the whim of any group of organizations or states that can recruit a majority in the General Assembly.

• Since the leaders of the U.S., EU, Russia, Norway, Egypt and Jordan are signatories as witnesses to the 1995 Interim Agreement, it may be asked how such states could support a Palestinian action in the UN that is clearly intended to undermine and frustrate that agreement. What value would there be to states and organizations signing as witnesses to important international documents if no credibility, reliability, or integrity are attached to such witnessing?

Impact on Jerusalem

The international community has consistently refused to recognize Israel's right to establish its capital city in Jerusalem pending a negotiated agreement on the status of the city. Hence, diplomatic missions are not located in Jerusalem, Israel's capital. In light of this, one might ask how member states of the UN will be able to support a Palestinian resolution affirming a Palestinian right to establish its capital in Jerusalem.

This would be a clearly one-sided act by the international community in violation of all declarations and commitments directed toward a negotiated settlement regarding Jerusalem. Furthermore, it would undermine the commitment between Jordan and Israel in Article 9 of the Jordan-Israel Peace Treaty, according to which: "In accordance with the Washington Declaration, Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines."[6]

Impact on the Refugee Issue

Similarly, if, as the Palestinians have been intimating, they will seek to include a provision in a "Uniting for Peace" resolution affirming and imposing the right of return of the Palestinian refugees, this would, in fact, conflict with the relevant provision of Resolution 242 calling for "achieving a just settlement of the refugee problem."[7] Assuming that the "refugee problem" refers also to the issue of Jewish refugees resulting from the Middle East crisis, then the unilateral determination regarding Palestinian refugees only would be discriminatory and violate Resolution 242.

It would also violate the relevant undertakings in the Oslo Accords, specifically the 1993 Declaration of Principles on Interim Self-Government Arrangements (Article V(3)) which determines that the final status issues to be negotiated (and not imposed by the UN) "shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest."

Imposing a UN determination regarding the refugee issue would be incompatible with and undermine the agreement between Jordan and Israel in Article 8 of their 1994 bilateral Treaty of Peace, according to which the refugee issue will be dealt with "in negotiations, in a framework to be agreed, bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations."[8]

The potential confusion, disorder, and substantive damage of a Palestinian-motivated UN resolution - to the Palestinians themselves, to the peace-negotiation process, and to the credibility and reliability of the United Nations and international community in general - is likely to be immeasurable. While the beginnings of such a process might be clear, there can be no foreseeing the final outcome and the concomitant consequences.

The question remains whether the members of the UN who are being drawn by the Palestinians into this irresponsible and ill-advised exercise are fully aware of the damage it may cause.  

End  Notes

1. http://www.un.org/en/ga/sessions/emergency.shtml

2. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ Israel-PLO+Recognition+-+Exchange+of+Letters+betwe.htm

3. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ THE+ISRAELI-PALESTINIAN+INTERIM+AGREEMENT.htm

4. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+242.htm

5. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+338.htm

6. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ Israel-Jordan+Peace+Treaty.htm

7. http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/ UN+Security+Council+Resolution+242.htm

8. See note 6 above.
 

Ambassador Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, is former Legal Adviser to Israel's Foreign Ministry and former Ambassador of Israel to Canada. He is a partner in the law firm of Moshe, Bloomfield, Kobo, Baker & Co. He participated in the negotiation and drafting of the various agreements comprising the Oslo Accords. This article appeared April 3, 2011 in Jerusalem Center for Public Affairs (JCPA) Vol. 10, No. 34.

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