What's the strategy here?

Photographer: Andrew Burton/Getty Images

Palestinians Tear Up Treaty and Destroy Reputation

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Palestinian leader Mahmoud Abbas told the United Nations General Assembly on Wednesday that the Palestinian Authority no longer considers itself bound by the Oslo Accords signed with Israel in 1993. Although he didn't specify the details, there is a legal theory that would entitle one party to withdraw from a treaty: a material breach by the other side.

Whether Israel in fact has breached the Oslo Accords will no doubt be subject to debate. But regardless of whether Abbas has grounds for the withdrawal, he’s making a long-term strategic mistake. Now and in the future, Israelis skeptical of peace will be able to say that Palestinian leadership can't be trusted to make a treaty and stick with it.

The text of the Oslo Accords doesn't say that either side can unilaterally withdraw. But the international law principles are discussed in the Vienna Convention on the Law of Treaties from 1969. In general, the Vienna Convention says that a party can’t unilaterally withdraw or denounce a treaty.

But Article 60 says that “a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.”

Presumably, Abbas’s theory is that Israel has breached the treaty. What breach he has in mind isn't immediately clear. In the speech, he mentioned that Israel continues settlement construction and that it had not released a fourth installment of Palestinian prisoners. The international community treats Israeli settlements as violations of international law, although Israel denies this. The specific prisoner exchanges aren't mentioned in the accord.

In a Huffington Post essay published Tuesday, Abbas referred to the “illegal annexation wall,” a description of Israel's security barrier/wall that has indeed been condemned as illegal by the International Court of Justice. That decision didn't mention Oslo, however. It could conceivably be argued that in building the wall, Israel breached its obligations under the accords. Israel would say that it hasn't, and its supreme court has upheld the wall as permissible under international law.

Abbas also wrote that “Israel has failed to negotiate in good faith while entrenching its illegal occupation.” The Oslo Accord does commit both sides to negotiate, which might be taken to imply a responsibility to negotiate in good faith. It would, naturally, be a matter of opinion whether Israel is negotiating in bad faith, and the Israeli government would no doubt deny it.

But even if Abbas were to get the better of his argument that Israel has breached the accord in the court of public opinion, he’s taking a serious strategic risk in no longer recognizing the treaty.

Many Israelis who oppose peace with the Palestinians are certain to argue that Abbas is proving that no Palestinian government can be trusted to keep its international obligations. Worse, that argument is likely to have resonance among moderate Israelis who would be willing to consider a peace treaty in the right circumstances.

After all, if the Palestinian Authority can simply announce that it thinks Israel has breached the Oslo Accords and that they’re no longer binding, what would stop a future Palestinian government from doing the same with respect to any future peace treaty?

In the real world of international relations, the possibility that a party can declare the other side has breached is always there. Countries sign treaties anyway because everyone understands the cost to the reputation of a party that withdraws unjustifiably.

Abbas is now taking on that reputational cost in a major way. He must know this -- and must therefore believe that the gains to his domestic legitimacy among Palestinians are worth the cost, which he personally is unlikely to take on board in his lifetime. Speculation that Abbas will step down is a constant feature of Palestinian politics, but it seems at least possible that Abbas wants to retire from office with the Oslo Accords definitively repudiated and Palestinian-Israeli security cooperation more or less ended.

There's a further twist to Abbas’s use of the UN General Assembly as a platform to withdraw from a treaty. One of the grounds for Palestine's inclusion as a “non-member observer state” in the UN, as opposed to an “observer entity,” has certainly been the statelike forms of sovereignty exercised by the Palestinian Authority under the Oslo Accords. In his speech, Abbas disclaimed precisely those same forms of control, asserting that Israel must now “assume fully all its responsibility as an occupying power.” In other words, acting as a head of state, Abbas called for the dismantling of his state’s only exercise of state sovereignty. If that comes to pass, a Palestinian state may be further away, not closer.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net