No Peace Without Rights: Why International Law Matters

Author:Richard Falk
Pages:31-48
No Peace Without Rights: Why International Law Matters
Richard Falk
I. THE TWO-STATE CONSENSUS: NO LONGER VIABLE, NEVER
DESIRABLE .............................................................................................. 31
II. ISRAELI CONTEMPT FOR LAW AND PALESTINIAN RIGHTS ...................... 39
III. THE PALESTINIAN CHALLEN GE .............................................................. 43
IV. THE TWO-STATE CONSENSUS IS NOW AN OBSTACLE TO
SUSTAINABLE PEACE .............................................................................. 45
V. WHY INTERNAT IONAL LAW DOES MATTER............................................. 46
I. THE TWO-STATE CONSENSUS: NO LONGER VIABLE, NEVER
DESIRABLE
The viewpoint I am defending is that a sustainable and equitable peace
arrangement between Israelis and Palestinian s depends on the recognition of
the respective rights of both parties. Some may dism iss such an assertion as
a solemn piety, but actually it implies a radical cri ticism of every initiative
that has been put forward as part of “a peace process.” The several notable
efforts to find a solution have steadfastly refused to make any reference to
the relevance of international law or the rights of the parties: the O slo Peace
Process of the 1990s,1 the Camp David 2 approach in the waning months of
the Clinton Presidency,2 the Roadmap of the Quartet,3 the stillborn
Annapolis initiative in 2007,4 and since Obama entered the White House, a
somewhat shrill periodic call to the parties to resume direct negotiations as
1 Declaration of Principles on Interim Self-Government Arrangements, Isr.P.L.O., (Sep. 13,
1993), available at http://www.unhcr.org/refw orld/docid/3de5e96e4.html.
2 William J. Clinton, Ehud Barak & Yasser Arafat, Trilateral Statement on the Middle East
Peace Summit at Camp David, Israel Ministry of Foreign Affairs (July 25, 2000), available at
http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2000/7/Trilateral%20Statement%20on%20th
e%20Middle%20East%20Peace%20Summ.
3 U.N. Secretary General, A Performance-Based Roadmap to a Permanent Two-State So lution to
the Israeli-Palestinian Conflict, S.C. Res 529, U.N. Doc. S/2003/529 (May 7, 2003), available at
http://unispal.un.org/unispal.nsf/fdc5376a7a0587a4852570d000708f4b/6129b9c832fe59ab85256d
43004d87fa?OpenDocument.
4 Press Release, The White House, Office of the Press Secretary, Joint Understanding Read by
President Bush at Annapolis Conference (Nov. 27, 2007), available at http://georgewbush-
whitehouse.archives.gov/news/releases/2007/11/20071127.html (the 2007 Annapolis initiative
was designed to be the capstone of the Bush presidency).
TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS [Vol. 21:31
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the only available means by which to achieve a resolution of the conflict. 5
Israel and United States have rem ained unyielding in their opposition to the
initiative of the Palestinian Authority to see k recognition of its claim of
statehood from the U.N. General Assembly in September 2011, which is
premised on the alleged interference recognition would have with direct
negotiations.6
This recurrent peace process has, over the course of several decades,
failed to move the parties any closer to peace. Nonetheless, it continues
without qualification to be the preferred mode of conflict resolution that the
international interlocutors assertively r ecommend to Israel and the
Palestinian Authoritya position with whic h Israel agrees. As recently as
September 23, 2011, the Quartetconsisting of the United States, the
European Union, Russia, and the United Nationsreiterated its view tha t
such negotiations provided the only credible approach to resolving the
conflict.7 Official representatives of the quartet have not yet issued any
public acknowledgement of the disappointing past results, the flawed
character of the negotiating framework, or why the outcome of new
negotiations should be any more encouraging than those of the past.
Apart from a genuine international commitment to ending the conflict,
this approach, which is based on direct negotiations, amounts to a recipe for
continued frustration and gridlock if the objective is to secure a sustainable
peace that is fair to both sides. Past approaches r elied on an asymmetrical
bargaining process that was weighted h eavily in favor of Israel. Its
presupposed objective was to shape an agreement based on the two-state
consensus, which can be traced back to the outcome of the Six Day War in
1967, when Israel took control of the West Bank, East Jerusalem, and the
Gaza Strip.8 But the e nvisioned Palestinian state at that time was pre mised
on the view that Israel would withdraw completely from the territory it
occupied as a result of its military victory, leaving open the possibility of
minor border adjustments for security reasons. The territory occupied by
Israel in 1967 represents only 22 percent of historic Palestine, and less than
half of the land offered to the Palestinians in the rejected U.N. partition plan
5 See, e.g. , Julianna Goldman, Obama Calls for Israel-Palestine Talks on 1967 Borders,
BLOOMBERG, May 19, 2011, available at http://www.bloomberg.com/news/2011-05-19/obama-
says-israeli-palestinian-peace-negotiations-more-urgent-than-ever -.html; Barack Obama Calls
on UN to Support Middle East Peace Talks, GUARDIAN (UK), Sept. 23, 2010,
http://www.guardian.co.uk/world/2010/sep/23/barack-obam a-middle-east-peace.
6 See Helene Cooper, Obama Says Palestinians Are Using Wrong Forum, N.Y. TIMES, Sep. 21,
2011, http://www.nytimes.com/2011/09/22/world/obama-united-nations-speech.html; Israeli PM
Says Palestine UN Bid ‘Will Fail’, AL JAZEERA (Sep. 18, 2011), http://english.aljazeera.net/news/
middleeast/2011/09/201191816583436163.html.
7 See U.N. Secretary-Genera l, Statement by Middle East Quartet, SG/2178 (Sep. 23, 2011),
available at http://unispal.un.org/unispal.nsf/fdc5376a7a0587a4852570d000708f4b/5b0d91439
ced286f852579140072337b?OpenDocument.
8 Ian Black, Six Days of War, 40 Years of Failu re, GUARDIAN (UK), June 4, 2007,
http://www.guardian.co.uk/world/2007/jun/05/israel1.

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