Ministry of Foreign Affairs- http://www.mfa.gov.il/mfa/go.asp?MFAH0eei0
1. What is the significance of the date May 4,
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
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
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,
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
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.