Agenda of Israeli-Palestinian Negotiations on Permanent Status

The Reut Institute offers an alternative agenda for Permanent Status Negotiations between Israel and the Palestinians, based on an a typology relevant to the current reality.

Acknowledgments

For their comments and contributions to this paper, the Reut Institute would like to thank:

  • Adv. Gilead Sher – Bureau Chief and Policy Coordinator of the PM of Israel; Former co-chief negotiator (1999-01)
  • Moty Cristal – Conflict Analyst; Deputy Head of the Negotiation Management Center in the PM Office (1999-01);
  • Udi Eiran – Assistant Foreign Policy Advisor to PM Barak (1999-00)

Scope

This paper focuses on the issue of the agenda of Israeli-Palestinian negotiations on Permanent Status (hereinafter “the agenda”).

Generically, an agenda is based on a typology of the issues that are the subject of the negotiations. Typology is defined as “study, analysis or classification based on types or categories”1.

Typology of issues and subsequent agenda for negotiations represent one area in the wider academic sphere that deals with structural aspects of negotiations. Other related areas include the design of the process or of decision-making mechanisms. However, the impact of typology on the outcome of negotiations seems to be a relatively unexhausted academic domain2.

This paper is a Policy Product of the Re'ut Institute. Its purpose is to create a debate around the agenda and typology of issues of Israeli-Palestinian negotiation. It argues that such a debate is valuable as a different agenda may impact the outcome of the negotiation process, and may be used for enhancing the prospects of reaching a stable Permanent Status.

Background of Existing Agenda

The Typology of Issues for Israeli-Palestinian negotiations refers to classification and clustering of issues that comprise the relationship between the parties, hence creating the agenda of negotiations. The agenda than impacts the structure and mandate of the working-groups established to address these issues. For example, at the 2000 Camp David Summit (7/00) the agenda and corresponding working groups were: Territory (and border regime), Settlements, Refugees, Security, Jerusalem, Water, Economics and Civic Affairs. 3

The current typology may be seen as an outcome of a “mindset” created following the 1948 conflict. Its origins may be found in the agenda of the Lausanne Conciliation Commission (5/49). This agenda comprised of the issues of territories, refugees and the status of Jerusalem, which were perceived as the key issues for the resolution of the Israeli-Arab conflict. This typology was endorsed and expanded by United Nations Security Council Resolutions 242 and 338 (11/67, 10/73 respectively), 1978 Camp David Accords (9/78), the Madrid Peace Conference (10/91), the Oslo Process leading up to the Taba Talks (9/93-1/01), as well as by non-governmental efforts such as the Geneva Initiative (10/03).

This typology was shaped in an era where several implicit assumptions prevailed. Over time, these assumptions have consolidated into a mindset4. This assumptions may be framed as follows:

  • An Israeli-Arab Conflict rather than an Israeli-Palestinian Conflict – The parties to the 1948 War were Arab States and the Palestinian population in Mandatory Palestine, on the one hand, and the State of Israel, on the other. The participants in the Lausanne Conference (5/49) were primarily Arab states and Israel;

  • No Palestinian Statehood – There was no agreement on a legitimate accepted Palestinians leadership that had the mandate to negotiate Palestinian statehood on behalf of the Palestinian people;

  • State-to-State Negotiation – The premise of the existing typology was that the conflict would be resolved through a symmetric state-to-state between Israel and Arab States, primarily Egypt and Jordan;

  • Backward-facing – This typology seems to have been framed primarily by the issues that were the reason for and the outcome of the 1948 conflict i.e. territory, refugees and Jerusalem. It is focused on “solving” the past rather than “shaping” the future.

Over time, a relevancy gap5 has developed between the aforementioned mindset and reality:

  • An Israeli-Palestinian Conflict rather than an Israeli-Arab Conflict – Today, different from 1948-49, the subject of negotiation is the Israeli-Palestinian conflict while Israel has peace accords with Egypt and Jordan;

  • Toward Palestinian Statehood – In the Rabat Summit (10/74) Arab states recognized the PLO as the sole legitimate representative of the Palestinian people. In 1993 Israel recognized the PLO as well. In negotiations of 1999-01, Palestinian Statehood was a central issue on the agenda of bilateral negotiations;

  • A-symmetric Negotiations – De facto, the negotiations between Israel and the Palestinians are a-symmetric in nature as the State of Israel negotiates with the non-state entity of the PLO on the creation of a future Palestinian State;

  • From Backward-Facing to Forward-Facing – During negotiations on the Permanent Status Agreement, the forward-facing issues associated with creating a stable two-state solution were addressed within the confines of the existing typology, which was in the mindset of resolving past grievances rather than “shaping” the future.

Negotiation challenges

In complex, multi-issue negotiations, in which multiple working groups negotiate simultaneously, the management challenge of a chief-negotiator is to reach a systemically optimal set of trade-offs and balance of interests.

However, it may be inevitable that group members tend to focus on reaching intra-group agreements. This tendency, which stems from psychological and bureaucratic reasons, hinders the capacity of the chief-negotiator to see the systemic nature of issues and reach an optimal outcome.

Furthermore, bureaucratic structures and other institutional arrangements, as well as informal institutional behavior such as norms and mindsets, tend to “stick” beyond their original intent or usefulness and become self reinforcing mechanisms.6 Stickiness locks-in existing arrangements, creates rigidity, limits possibilities of institutional reform, and constrains creativity.

Hence, as typology of issues predetermines the division of labor among working groups of the negotiations, it may have significant impact on the outcome of negotiations.

There is a linkage between the challenges of management of inter-group trade-offs, on the one hand, and the number of working groups and bureaucratic agencies involved, on the other.

The Current Typlogy Diagram7 represents an example of the current typology. For example, the Jerusalem working group may tend to “trade” between itself on intra-group issues (solid arrows) such as municipal issues or religious sites instead of inter-group issues (dashed arrows).

Alternative Agenda based on a Model of Future State-to-State Relations

This paper presents an alternative agenda for Israeli-Palestinian negotiations. It argues that the organizing concept for the agenda should be future relations between Israel and a future Palestinian State rather than past grievances.

An analysis of future relations between Israel and the future Palestinian State in Permanent Status reveals that state-to-state relations can be framed around four “clusters”:

  • Historic Issues – In Permanent Status, after the Agreement on Permanent Status has been signed, a primary challenge will be to implement the provisions relating to the issues that were the subject of the historic conflict such as Jerusalem or refugees;

  • Intrusive Issues – this cluster includes issues where Israel and Palestine will intrude into each others’ sovereign space. For example, whereas the “safe passage” may constitute a Palestinian intrusion into Israel, the usage of the Palestinian airspace may constitute an Israeli one;

  • Movement and Personal Security Issues – This cluster will include agreements and understandings regarding the war on terror, movement of persons, services and goods and law enforcement;

  • Conventional Issues – this cluster contains ordinary state-to-state relations governed by internationally accepted norms and procedures, as well as by normal state-to-state agreements. Examples include postal relations, telecom, diplomatic exchanges etc.

Each of these clusters may be characterized by a different logic. For example, the conventional issues may need constant day-to-day adaptation. Alternatively, the agreements pertaining to the historic issues may be more static and difficult to change.

An agenda that is forward-looking may be framed around the four aforementioned clusters. In other words, the agenda for the negotiations may consist of the following (see annex for further details):

  • Conventional Issues – this topic may cover most of the issues presently under the topic of Civic Affairs, as well as issues such as the municipal arrangements in the Jerusalem Area;

  • Intrusive Issues – this topic may cover all intrusions of Israel and Palestine into each other’s sovereign space including, for example, safe passage (traditionally under the topic of “territory”), the usage of Palestinian airspace by Israel and de-militarization of Palestine (under “security”), Israeli clearance of Palestinian revenues and Palestinian access to the Israeli labor market (under “economics”) and desalination site (under “water”);

  • Historic Issues – this topic may cover the establishment of the Palestinian State and the realization of the Palestinian right of self-determination; borders and division of sovereignty including in Jerusalem and regarding water rights; rights of access to and worship in holy sites; and the refugee issue;

  • Movement and Personal Security Issues – this topic may cover the fight against terrorism including hot pursuit (traditionally under “security”); law enforcement; arrangements for movement through the entry and exit points to Israel and the Palestinian entity; the Israeli-Palestinian border regime; and special arrangements in the Holy Basin (under “Jerusalem”), special roads (under “territory”) and holy sites.

As the New Typology Diagram demonstrates, the tendency to “close” within the working group is leveraged to achieve a different systemic outcome, balanced around the topics identified within the framework of a forward-facing model focused on future state-to-state relations. For example, within the intrusive issues, Israeli intrusion into Palestinian sovereign airspace and the Palestinian safe passage which is an intrusion into Israeli sovereign territory can be linked to create a balance of interests, which may lend itself to greater stability.

This new agenda has several different characteristics:

  • Forward-facing – The new agenda may shift the focus toward creating stable future arrangements rather than "solving" past grievances;

  • Less of the “all-or-nothing dynamics” – The new agenda may decrease the all-or-nothing dynamics embedded in the existing agenda. It provides for a space for progress on issues pertaining to future state-to-state relations parallel to negotiations on the historic issues. The traditional typology made the former a captive of the latter. Hence, the new agenda decreases the legal and declaratory significance of issues such Finality of Claims or End of Conflict;

  • Bureaucratic implications – The new agenda may require restructuring of existing bureaucratic structures on the part of Israel, as well as on the Palestinian side. At the same time, this realignment establishes the institutional and bureaucratic foundations for state-to-state relations in Permanent Status.

Implications

This initial analysis indicates that a shift of the agenda of negotiations may not only be good for Israel but also to the prospects of a stable two-state solution in Permanent Status.

However, a revisit of the agenda may encounter opposition by the Palestinian side, by the international community, and even in Israel. Furthermore, a different agenda will mandate a new bureaucratic realignment that may require political capital of the Top Executive.

Therefore, an Israeli decision to embrace a new agenda for the negotiations with the Palestinians on Permanent Status has strategic, as well as diplomatic and political fallout that needs to be taken into account.

Summary

This paper calls for a debate around the current typology. It argues that past decade may have rendered it irrelevant to the challenges of creating a stable two-state solution.

This paper suggests considering a typology that is framed around challenges of future state-to-state relations rather than on the past grievances and that such typology may lead to different and possibly improved outcomes.



2 See: Watkins M., “Negotiating in a Complex World”, Negotiation Journal, July 1999, 245-270.Watkins M., “Strategic Simplification: Towards a Theory of Modular Design in Negotiations”, Negotiation Journal, Vol. 8 (1), 2003, 149-167.Zartman William, (1994) International Multilateral Negotiations: Approaches to the management of Complexity, San Francisco, CA: Jossey-Bass, 1994.
3 Sher, Gilad, Just Beyond Reach, The Israeli-Palestinian Peace Negotiations 1999-2001: A Testimony, Tel Aviv: Miskal (2001) P. 168, 161 (in Hebrew).
4 The concept of “mindset” refers to an organizing logic used to analyze and prioritize information. It is used in the context of the concept of “Fundamental Surprise” (defined by Dr. Zvi Lanir).
5 The concept “Relevancy Gap” refers to an acute gap between the current “mindset” or perception of the world and the actual reality. It is used in the context of the concept of Fundamental Surprise (defined by Dr. Zvi Lanir).
6 This phenomenon exists across many fields. In international Relations see: G. John Ikenberry, Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars, Princeton: Princeton University Press: 2000. Regarding the European welfare state see: Paul Pierson (Ed.) The New Politics of the Welfare State, Oxford: Oxford University Press, 2001
7 Adopted from Mnooking, Peppet and Tulumello, Beyond Winning, Cambridge Massachusetts: The Belknap Press of Harvard University (2000) P. 312