May 4, 1999 - Some Frequently Asked Questions

Ministry of Foreign Affairs- http://www.mfa.gov.il/mfa/go.asp?MFAH0eei0

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.