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Robert P. Barnidge, Jr., Self-Determination, Statehood, and the Law of Negotiation: The Case of Palestine

Filed under: Israel, Palestinians
Publication: Jewish Political Studies Review

Jewish Political Studies Review
Volume 28, Numbers 1–2

Robert P. Barnidge, Jr., Self-Determination, Statehood, and the Law of Negotiation: The Case of Palestine. Oxford and Portland, Oregon: Hart Publishing, 2016. 238 + xx pp. ISBN 978-1-84946-812-1

This is an erudite and carefully researched work by an expert in international law addressing a neglected aspect of the Israeli-Palestinian conflict. While technical in places, it is nonetheless possible for the educated layperson to follow the author’s central argument. That argument focuses on the legal duty of both Israel and the PLO to abide by their mutual commitment since 1993 to make a good faith effort to settle their differences by means of negotiation. The author suggests that the Palestinians since at least 2011 have violated this legal duty by refusing to negotiate without preconditions.

The book might be described as a history of the Arab-Israeli conflict from the point of view of international law, from the Balfour Declaration of 1917 to 2012. After an introductory first chapter, Chapter Two traces the history of the British Mandate for Palestine in the interwar years, making the point that “any distinct national identity for Palestinian Arabs qua Palestinian Arabs was, at best, in statu nascendi at the time” (33). Chapter Three treats the War of 1948 and its aftermath up to 1973. Barnidge stresses the utter refusal of the Arab leadership in 1947-48 to accept any non-violent means of resolving the conflict with the Zionist movement over Palestine. It was the refusal of the Arab states to make peace with Israel that ensured that Israel would have no permanent borders but only impermanent armistice lines after 1949 (44-5). The international community tried repeatedly to broker peaceful compromises only to be rebuffed at every turn by the Arab refusal to recognize or negotiate or make peace with Israel, a refusal that the Arab League reiterated in its famous “three no’s” at its Khartoum meeting in the aftermath of the Six Days War in 1967 (67). After trying mediation and conciliation in various modes, the U.N. Security Council for the first time “entrenched negotiation as the imperative means of dispute settlement for the Israeli-Arab dispute,” by means of Resolution 338, passed on October 22, 1973 in response to the Yom Kippur War (74), a key turning point that is the focus of Chapter 4. As usual, Israel was open to such negotiations, while the Arabs were not, at least until Egypt’s Anwar Sadat did his famous about-face in 1977. While the Israeli-Egyptian peace process called for efforts by Israel to satisfy “the legitimate rights of the Palestinian people” by talks with “the representatives of the Palestinian people” (89), this was not to be. “The viscerally negative reaction from within Palestinian civil society … challenged the organic project of Palestinian self-administration that Egypt and Israel had sought, in one form or another, to usher into being” (93).

By 1988 the PLO was, for the first time, prepared to accord some measure of recognition to Israel, albeit in highly equivocal terms (94-99), but the real turning point came with the Madrid Peace Conference of 1991 and, most decisively, the September 1993 Oslo agreement. PLO Chairman Arafat agreed finally to recognize Israel and to settle all permanent status issues through negotiation, renouncing the use of terrorism and “other acts of violence” (105). “The two sides agreed to negotiate the final status of the territories, Jerusalem, security, settlements, refugees, and other issues of common concern during permanent status negotiations…” (107). The Oslo “Declaration of Principles inaugurated a legal relationship that both parties intended to be governed by international law” (109). Both parties, however, reserved their right to press their respective claims regarding outstanding issues in the negotiations (111). Thus, “the Declaration of Principles is neutral with respect to whether Israel or the PLO has sovereign title to the territories,” i.e. the West Bank, East Jerusalem, and the Gaza Strip (112). Moreover, the Oslo accords did not (yet) grant sovereign status to “Palestine” as a state (144-5).

In Chapter Five, Barnidge lays out the international law of negotiation as a means of dispute settlement. Central to this body of law is the principle that “negotiation must be conducted in good faith” (123). A party that agrees to enter a process of negotiation but fails to negotiate in good faith is guilty of a legal wrong and may be subjected to countermeasures to induce its compliance (130). In Chapter Six, Barnidge examines the Palestinian effort to seek membership in the United Nations as a member state (in 2011) and, having failed in that effort, as a non-member observer state (in 2012). President Abbas’ address to the UN General Assembly on Sept. 23, 2011 implicitly denied any Jewish connection to the land of Israel (157) and insisted on a “right of return” for Palestinian “refugees” that would threaten Israel’s survival as a Jewish state (159-60). Statements by top Palestinian leaders around this time denounced the Israeli “occupation” but dated its beginning to 1948, not 1967 (159, 163). All of this cast serious doubt on whether PLO leaders really were interested in abiding by the promises made in 1993 to recognize Israel and negotiate in good faith. Efforts by the “Quartet” to re-start negotiations in late 2011 met with Palestinian rejection: Israel expressed its willingness to negotiate without preconditions, while the Palestinians refused (164). The PLO insisted that its applications to join the UN did not contradict or substitute for negotiations. “Yet,” Barnidge observes, “it is difficult to see how this might be the case given that the PLO was, by its own admission and also in practice, refusing to negotiate with Israel in any meaningful sense” (168). The key Palestinian precondition for negotiations was that Israel end all settlement activities, but settlements were one of the outstanding issues that both parties had agreed would be resolved by negotiation, so the Palestinians were clearly in breach of their obligations under international law (171).

Since 1988, Palestinians have repeatedly sought to tarnish Israel’s standing by accusing it of violating international law. Barnidge’s excellent book shows that Israel’s defenders are not entirely without resources as they seek to counter these attacks.