In response, Alan Baker -- a director at the Jerusalem Center for Public Affairs and a former Legal Adviser to Israel's Foreign Ministry -- writes The Palestinian UN Upgrade: Setting Things Straight
The summary of Baker's article makes the following points:
- The UN upgrade resolution has neither created a Palestinian state, nor did it grant any kind of statehood to the Palestinians. General Assembly resolutions, including the Palestinian upgrade resolution, can neither determine nor dictate international law or practice.
- The areas of Gaza and the West Bank (Judea and Samaria) have never been determined in any legal document or agreement to be sovereign Palestinian areas. Both Israel and the Palestinians entertain claims over the areas in dispute
- After the Palestinian upgrade resolution, neither the status of Israel in the territories, nor that of the Palestinians, has changed in any way. The new claim voiced by the Palestinian leadership that Israel became, overnight, an occupant of Palestinian sovereign territory is without any basis.
- None of the agreements signed between Israel and the Palestinians contain any limitation on building in the areas under their respective jurisdiction. The attempt by the Palestinian leadership to isolate the settlements issue and to turn it into a precondition for further negotiation undermines any chance of a return to viable negotiations.
- The International Criminal Court (ICC) is not obliged to follow the recommendations of the UN General Assembly. The ICC has attempted, up to the present, to avoid having its independent juridical character politicized or otherwise compromised.
- Futile attempts to initiate criminal charges against Israel and its leaders do not portend any willingness on the Palestinians’ part to create the ambience of mutual trust and confidence necessary for a resumption of sincere and genuine negotiations.
The fact is that the areas of both Gaza and of Judea and Samaria -- the accepted name until 1948, when Jordan illegally captured the area that became known as the West Bank -- have never been determined in any legal document or agreement to be sovereign Palestinian areas. Instead, all UN Security Council resolutions that address the issue of Palestinian sovereignty have called for a negotiated settlement, and for good reason:
Both Israel and the Palestinians entertain claims over the areas in dispute, the Palestinians basing their claims on long-time residence and the right to self-determination, and Israel basing itself on long-standing historic and indigenous claims, including the chain of documents originating in the 1917 Balfour Declaration, through the League of Nations British Mandate, and the UN Charter. However, notwithstanding these claims, both sides have committed themselves in the 1993-5 Oslo Accords to negotiate between them the permanent status of the areas. [emphasis added]Or at least they both did until after refusing to accept Netanyahu's multiple invitations to sit and talk, Abbas violated the Oslo Accords by going to the UN to unilaterally have the member status of "Palestine" changed.
On the flip side of the proposed negotiations is the status of Israeli settlements, which
From the start of the peace-process negotiations, it was agreed between the parties, and accepted by the international community in witnessing and endorsing the Oslo Accords, that the issue of settlements would be one of several issues to be negotiated in the permanent status negotiations. None of the agreements signed between the parties contain any limitation on building by the parties in the areas under their respective jurisdiction.Read the whole thing.
The attempt by the Palestinian leadership to isolate the settlements issue and to turn it into a precondition for further negotiation, as well as threats to initiate action regarding settlements in the International Criminal Court, undermine and prejudice any chance of a return to viable negotiations. [emphasis added]
Whether Abbas will return to the negotiating table is far from clear. Considering the willingness of so many members of the United Nations to aid and abet Abbas in violating the Oslo Accords and avoid the very negotiations they claim to support -- it seems unlikely that anything can move Abbas in that direction.
But that does not change the need to have a basic understanding of the most basic issues at stake.
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