How Netanyahu legitimized the Palestinian UN bid

While Israel was right to argue that the Palestinian UN bid was a violation of the Oslo Accords, its reaction to it gives the Palestinian move legitimacy. Israel’s unilateral response of building new settlement housing indeed put the two moves on an equal footing, therefore acknowledging that settlement construction had been, all along, a unilateral measure violating the Oslo Accords.

The 1995 Interim Agreement on the West Bank and the Gaza Strip, part of the Oslo Accords, made clear that unilateral steps taken by either Israel or the then newly created Palestinian Authority would be a violation of the parties’ understanding. Article 31, paragraph 7 thus states that “neither side shall 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.”

When the Palestinian Authority applied for full UN membership in September 2011, for full UNESCO membership a month later, and for ‘non-member observer state’ at the UN last week, the Israeli government forcefully opposed the moves.  One of its argument was that the unilateral move was a breach of the Oslo Accords. As a result, Prime Minister Netanyahu warned that the UN bid would spark unilateral Israeli measures in response and, Foreign Minister Lieberman added, Israel would no longer consider itself bound by the Oslo Accords.

In fact, Israel was absolutely right to argue that the Palestinian application for UN membership was a breach of the 1995 agreement. By changing the status of the Palestinian territories in international organizations such as the United Nations or UNESCO, Palestinian Authority Chairman Mahmoud Abbas was clearly violating the agreement. However, a look at the Israeli reaction suggests that the Palestinian move was legitimate – as regards to the Oslo Accords.

In the past, Israel had always argued that the construction of homes for Israelis in the West Bank was not one of those steps which could “change the status” of the Palestinian territories. For Israel, building in the West Bank was therefore not a breach of the Oslo Accords.  But the succession of events before and after the Palestinian UN bid shows the opposite. Israel first threatened of “similar unilateral steps” if the Palestinian Authority went ahead with the UN application.  Less than 24 hours after the General Assembly vote, Israel allowed the construction of 3,000 new housing units in East Jerusalem and the West Bank. Though Lieberman denied a relation between the two events, it is clear that the unilateral retaliatory steps Israel had warned of were these settlement constructions. The Netanyahu government therefore showed, by its words before the vote and its actions after it, that settlement construction is, just like Palestinian UN bids, a unilateral step that breaches Article 31, paragraph 7 of the 1995 Interim Agreement and therefore violates the Oslo Accords.

This also means that the Palestinian move was, from the perspective of these accords, legitimate: as is the case for any bilateral contract, agreement or treaty, one party breaching certain provisions allows the other party to disregard these provisions – or possibly to disregard the whole agreement. By first violating article 31 paragraph 7 with settlement construction, Israel gave legitimacy to equally unilateral steps by the Palestinians, such as applying for UN membership. Netanyahu’s response, by showing that settlement building was a violation of the Oslo Accords, retroactively legitimized the Palestinian bid.

The political argument – that the UN bids create a more confrontational stance between Israel and the Palestinian Authority and is therefore counterproductive to the reaching of a negotiated solution –  used by opponents to the move may have been valid, though this remains to be seen. But the legal argument certainly wasn’t. A legitimate legal point against Palestinian membership would have emphasized that “Palestine” simply does not fulfill the internationally recognized requirements to be a state. But this was barely mentioned by Israel. The one legal argument that was put forward and repeated over and over again – that the Palestinian move is a violation of the Oslo accords – was just invalidated by Netanyahu’s own response to it.

This is significant for two reasons. First, and most importantly, Israel’s own words and deeds validated the long-denied argument that construction of settlements in the West Bank is a breach of the Oslo Accords. Second, as it established that Israel was the first to violate its agreement obligations, it legitimized Palestinian Authority unilateral actions at the UN, at least looking at it through the lens of the Oslo Accords.

About the Author
Raphael Mimoun is a student at the Fletcher School of Law and Diplomacy, at Tufts University.