Upgrading the Sovereign Status of the Palestinian Authority

This concept refers to a process aimed at bestowing attributes of statehood onto the Palestinian Authority, without it reaching de-jure statehood.

Definition

The concept of Upgrading the Sovereign Status of the Palestinian Authority refers to a process aimed at bestowing attributes of statehood onto the Palestinian Authority (hereinafter the PA), without it reaching de-jure statehood, by:

  1. Rescinding the restrictions on the sovereign powers of the PA stipulated in the Interim Agreement (9/95);
  2. Developing the PA's powers and jurisdiction and its status vis-à-vis the international community and Israel.

These measures may be taken either unilaterally or in coordination with the Palestinians or with third parties.

Background: Statehood according to international law

According to international law, an entity’s Accession to Statehood, comprises of two aspects:1

  1. De jure2 – There are two distinct theories as to the nature of statehood recognition: (1) The Declaratory approach: Statehood arises through a political entity meets certain criteria and declares own efforts and circumstances, culminated in a declaration of independence;3 (2) The Constitutive approach: The Act of Recognition4 by existing states acknowledges that a new state has satisfied the criteria for statehood and confers upon it the legal status as a state.
  2. De facto – Statehood, under international law, requires satisfaction of the following criteria5: (a) permanent population; (b) defined territory; (c) government; and (d) capacity to conduct foreign affairs. Membership in the UN is considered the ultimate manifestation of this capacity.6

Sovereign Status of the PA Today

The sovereign status of the PA is approaching that of a Sovereign State (See Status of Palestinian Statehood):

On one hand,

  • It seems that the PA meets the abovementioned criteria set by international law: population (the Palestinian residents of West Bank and Gaza Strip); territory (full responsibility for Area A and civilian responsibility for Area B); significant elements of effective control (such as legislative, executive, judicial and law enforcement authorities); and an elected leadership.7
  • The PLO has already declared Palestinian independence (See Algiers Declaration – 11/88); dozens of states have recognized the Algiers Declaration and treat the PLO and PA as a sovereign state (See State-in-the-Making; Nascent State; De-Jure State).

On the other hand,

  • The Interim Agreement and the Palestinian Constitutional Structure establish substantial restrictions on the PA's effective control (such as control over the external border) and its capacity to conduct foreign relations (See also Status of Palestinian Statehood).8

Political Logic

The rationale behind Upgrading the Political Status of the PA serves Israel’s interests in the following manners:

  1. Preparing for the establishment of a Palestinian State in a Permanent Status Agreement or within the framework of the Second Phase of the Roadmap (See Unilateral Israeli Recognition of a Palestinian State).
  2. Ousting the PLO from the international arena and replacing it with the PA, as a single Palestinian representative (See “Who is the Interlocutor: the PLO or the PA?”).
  3. Balancing the institutional asymmetry between Israel and the PLO, by turning the PA into a state, that would function as Israel's interlocutor to the political process (See Policy Options for Switching the PLO with the PA).

Upgrading Strategies

The key to Upgrading the Sovereign Status of the PA is the rescindment of the restrictions on the PA’s effective control9 and on its capacity to conduct foreign affairs independently10 (See Upgrading the Political Status of the PA).

  • Upgrading the Governing Capacity of the PA -

In order to upgrade the governing capacity of the PA, Israel should rescind the restrictions set by the Interim Agreement. Upgrading the Governing Capacity of the PA includes:

  1. Upgrading the Economic Status of the PA – The “Economic Appendix of the Interim Agreement” (Paris Protocol)11 includes restrictions on the economic independence of the PA. Israel can act to release those restrictions, e.g. lifting the Customs Envelope; issuing Palestinian currency; establishing a central bank; and allowing for economic independence, both monetary (interest rate of the central bank) and fiscal (levying direct and indirect taxes).
  2. Upgrading the Civil Status of the PA – The Interim Agreement includes many restrictions on the civil jurisdiction of the PA.12 The rescindment of these restrictions and further measures taken by Israel to upgrade the civilian status of the PA will strengthen the exclusive effective control of the PA over its territory.
  • Upgrading the Political Status of the PA –

This process should include rescinding the restrictions set by the Interim Agreement on the PA's capacity to conduct foreign affairs, such as the restrictions on membership in international organizations or on the establishment of diplomatic missions of the PA abroad.

Upgrading the Political Status of the PA in Contrast to the Establishing of a Palestinian State

Israel has two strategies to effectuate the establishment of a Palestinian State:

  1. Agreement with the Palestinians concerning a Palestinian State with Provisional Borders under the framework of the Second Phase of the Roadmap or concerning a Palestinian State in permanent borders within the framework of a Permanent Status Agreement.13
  2. Unilateral Recognition – Measures taken by Israel, either unilaterally or in coordination with third parties, to turn the PA into the Palestinian State, without an agreement between Israel and the Palestinians, based on recognizing the PA as a legitimate state according to international law (see Act of Recognition).

It should be emphasized that, by definition, the concept Upgrading the Political Status of the PA does not include transforming the PA to a Palestinian State.

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1 The varying levels of a political entity’s status of statehood, including pre-statehood, statehood and post-statehood realms, are dependent upon effectiveness and attitude of existing states. For further information, see Realms of Statehood.

2 See: Malcolm Shaw. International Law. Cambridge University Press, 2003, p. 368-376.

3 Dajani Omar, “Stalled between Seasons: The International Legal Status of Palestine during the interim period”, Denver Journal of International Law and Policy, Fall 1997, Vol. 26 pp.27-92.

4 The concept Act of Recognition refers to the declaration by which existing states:Formally acknowledge the political status of another entity as a state; andEffectuate the legal consequences of the recognition under international law (See Inherent State Rights and Duties).

5 Montevideo Convention on the Rights and Duties of States, 1933.

6 For example, Taiwan is a “De-Facto State” since it effectively satisfies the criteria for statehood, but lacks de jure sovereignty, as it is not recognized by leading members of the international community. Alternatively, Somalia is a De-Jure State, but has no recognized central government authority, president or national currency.

7 The PA was established under the Gaza-Jericho Agreement (5/94), see Gaza-Jericho Agreement, Article IV – "Structure and Composition of the Palestinian Authority"; V – "Jurisdiction"; VI – "Powers and Responsibilities of the Palestinian Authority"; VII – "Legislative Powers of the Palestinian Authority"; and VIII – "Arrangements for Security and Public Order".

8 The political restrictions on the Palestinian Authority (PA) in the Palestinian Constitutional Structure manifest the preferential status of the PLO compared to the PA:The PLO was the official party to the negotiations with Israel, and it is authorized to sign political agreements with other countries international organizations on behalf of the PA, as determined in the Interim Agreement (see Article 5);The PA is perceived as representing the citizens of the West Bank and Gaza Strip only, while the PLO is perceived as the representative of the entire Palestinian people;The Basic Law, which is the temporary constitution of the PA, states that the PLO is the sole legitimate representative of the Palestinian people and that the future Palestinian state will be under its administration.

9 The Palestinian Constitutional Structure includes an executive, a legislative and a judicial authority. To a great extent, these powers represent effective control. Nevertheless, the Interim Agreement restricts many of the PA's civil powers. The PA governs only 17% of the West Bank and does not have control over the borders, airspace, water, and external security. Area A, in which both civil and security authority was transferred to the Palestinians, is almost completely under the PA's control; In Area B civil authority was transferred to the PA, but Israel maintains military control; Area C is under Israeli control.

10 According to the Gaza-Jericho Agreement (5/94) (Article VI – Powers and Responsibilities, Paragraph 2) and the Interim Agreement (9/95) (Chapter 1 – the Council, Article IX – Powers and Responsibilities of the Council, Paragraph 5; Chapter 3 – Legal Affairs, Article XVII – Jurisdiction, Paragraph 1, Section a):The PA will not have power or responsibility to conduct foreign affairs, including the establishment abroad of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip;The PLO will conduct all negotiations and sign all agreements with other states and international organizations on behalf of the PA.

11 See Interim Agreement, Appendix V, Article IV, “Monetary and Financial Topics.”

12 See Interim Agreement Articles: XI, XII, XIII, XVII; as well as Appendix III “Protocol on Civilian Affairs”; See Article IV “Special Arrangements for Area C.”

13 For examples of provisions of a Permanent Status Agreement that deal with the establishment of a Palestinian State, see:“Article 2 – Relations Between Palestine and the State of Israel”, in Draft Permanent Status Agreement (from the book of Gilad Sher, Just beyond Reach – the Israeli-Palestinian Peace Negotiations of 1999-2001, Yedioth Aharonoth, 2001).Introduction and Article 2 (“Relations between the Parties”) of the Geneva Initiative.