What’s Actually in the Abraham Accords?

September 27, 2020 3:32 pm

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As a declaration, and similar to other such political declarations of intent such as the Israeli-Palestinian “Declaration of Principles” of Sept. 13, 1993, and the “Israel-Jordan Common Agenda” of Sept. 14, 1993, it is non-binding and declaratory, expressing the joint, bona fide intentions of the two parties to enter into negotiations on a series of bilateral normalization agreements.

The expression “constructive diplomatic and friendly relations” is unclear and does not appear to add substantively to the idea of diplomatic and friendly relations that speak for themselves.

However, in light of experience over the years in the bilateral relationships between Israel, Egypt, and Jordan, the addition of the term “constructive” would appear to convey a message to those and other states of an intention that such relationships will be fuller and more open and active.

The declaration constitutes an independent, sovereign, and reciprocal expression of intent by the parties to open up relations between them. It is not pursuant to and does not emanate from, nor is it dependent on, any United Nations resolution or other documentation regarding the Middle East peace process.

Since a state of war or armed conflict never existed between the parties (the Kingdom of Bahrain evolved as an independent sovereign entity in 1971), no UN ceasefire, armistice, or conflict-solving resolution or requirement has ever been relevant or applicable to the relationship between Israel and Bahrain. There was no need to place the bilateral declaration in any context of such UN resolutions.

However, the declaration does make reference in its second paragraph to the parties’ shared commitment to advance peace and security in the Middle East and to the need to continue efforts “to achieve a just, comprehensive, and enduring resolution of the Israeli-Palestinian conflict.”

The declaration’s third paragraph includes agreement by the parties “to establish diplomatic relations and to promote lasting security, to eschew threats and use of force, and to advance coexistence and a culture of peace.”

The expression “culture of peace” (which also appears in the Israel-UAE agreement) would appear to be based on the internationally accepted concept of a “culture of peace” as defined in various resolutions of the UN General Assembly.

• These resolutions constitute a compilation of basic and universally accepted humanitarian hopes, modes of behavior, and aims for inter-religious, political, and cultural dialogue and cooperation between states and peoples.
• They include, inter alia, elimination of racism and intolerance against women, advancing understanding, tolerance and solidarity among all civilizations, peoples and cultures, recognizing rights of peoples under colonial domination or occupation, and the rights of indigenous peoples, etc.

In the third paragraph of the declaration, the parties agree to open negotiations between them to seek agreements regarding 12 fields of normalization, including investments, flights, tourism, security, energy, technology, and the opening of embassies.

It is clear from the text of the declaration and its provisional nature that it is a non-binding, independent, bilateral, and bona fide expression of intent to enter into definitive agreements in the near future.

“Treaty of Peace, Diplomatic Relations and Full Normalization between the United Arab Emirates and the State of Israel”:

The choice of the term “peace agreement” is significant and unique.

Generally, and as was the case with Israel’s peace treaties with Egypt and Jordan, states that have been in armed conflict and have chosen to terminate the state of war between them do so through a peace treaty. The treaty formally terminates the relationship of armed conflict from the legal, political, and security points of view and opens up a formal relationship of peace, with all that that implies regarding reciprocal recognition of sovereignty, territorial integrity, and independence.

In the context of Israel’s relationships with the UAE and Bahrain, there has never existed a state of war or armed conflict. The UAE and Bahrain evolved as independent sovereign states in 1971. As such, neither were parties to the 1948 Arab League collective declaration of war on the new State of Israel. However, in light of the formal absence of normal relations between Israel and other Arab countries, including the UAE and Bahrain since their establishment, it was evidently considered important and significant, as well as symbolic, to describe the new situation as the creation of a state of peace, with all that that implies.

While diplomatic relations and normalization constitute, by definition, integral and obvious components of any peace relationship, their specific inclusion in the title of the agreement evidently emanates from the difficulties experienced over the years in the peace relationships with Egypt and Jordan, especially in the fields of normalization and diplomatic relations. Legally speaking, this may not, in and of itself, have any legal significance, but it represents a symbolic message to Egypt and Jordan, as well to other Arab states considering establishing peaceful relations with Israel.

The preambular paragraphs of the peace agreement voice familiar, accepted, and standard platitudes regarding the common desire for regional peace, prosperity, economic development, and diplomatic relations. However, they also include in the ninth preambular paragraph a specific and unique reference to the Arab and Jewish common heritage as descendants of Abraham, and the concomitant need “to foster in the Middle East a reality in which Muslims, Jews, Christians and peoples of all faiths, denominations, beliefs and nationalities live in, and are committed to a spirit of coexistence, mutual understanding, and respect.”

Preambular paragraphs nine and 10 refer to efforts to achieve a “just, comprehensive, realistic, and enduring solution” to the Israeli-Palestinian conflict that “meets the legitimate needs and aspirations of both peoples, and to advance comprehensive Middle East peace, stability, and prosperity.”

The use of the term “realistic” in this context is indicative of an acknowledgment by both parties of the need for practical and pragmatic ideas to solve the conflict with the Palestinians, rather than unrealistic claims, empty clichés, and buzzwords.

The establishment of peace, diplomatic relations, and full normalization in Article 1 of the agreement is phrased in similar language to the 1994 Israel-Jordan peace treaty.

• Despite the fact that this article refers to full diplomatic relations as being “hereby established,” this is nevertheless subject to the respective national procedures for ratification and the entry into force of the agreement “as soon as practicable,” as set out in Article 10 of the Agreement.
• The question of how to define “practicable” is clearly subjective and not definitive and could imply possible delays and other problems prior to the entry into force of the agreement.

Critics of the agreement point to the fact that it contains no reference to those UN resolutions dealing with the Middle East peace process, such as Security Council resolutions 242 (1967) or 338 (1973), which served as the basis for the peace treaties with Egypt and Jordan, as well as for the 1978 Camp David agreements and 1993-5 Oslo Accords with the Palestinians.

Such criticism is misplaced and ill-advised.

The reason and logic behind the lack of reference to such resolutions rest in the fact that, unlike with Egypt and Jordan, Bahrain and the UAE have never been in a state of armed conflict with Israel. Hence, there exists no need to move from a legal state of armed conflict and war to a legal state of peace. Since there was no conflict, there was no need to rely on any UN conflict-resolving resolution. Since there exists no common border, there is no need for provisions on withdrawal from territory, agreed border arrangements, and security provisions of the type detailed in the peace treaties with Egypt and Jordan.

Therefore, the parties sufficed, in Article 2, titled “General Principles,” with the standard references to those provisions of the UN Charter and principles of international law governing relations among states, including recognition of sovereignty, the right to live in peace and security, friendly relations of cooperation, and peaceful settlement of disputes. The commitment in Article 3 to exchange ambassadors “as soon as practicable” is a further element that could imply confusion as to when such a central component of the agreement will indeed be implemented.

The provisions regarding the prevention of terror (Article 4) and normalization (Article 5) are drafted as intentions to further develop and negotiate future arrangements in these spheres — again, as soon as practicable. The normalization spheres include finance and investment, civil aviation, visas and consular services, innovation, trade and economic relations, healthcare, science, technology and peaceful uses of outer space, water, energy, maritime arrangements, telecommunications and post, agriculture, legal cooperation, tourism, culture, sport, and more.

These spheres are detailed in the Annex to the agreement and are similar to the list of civil affairs spheres detailed in the Third Annex to the 1995 Israeli-Palestinian Interim Agreement.

Article 6 entails a reciprocal commitment to respect and foster mutual understanding, respect, coexistence, encourage people-to-people programs, interfaith dialogue, prevent incitement, and observe a “culture of peace.” Article 9 is important in that the parties represent that there exist no inconsistencies between their obligations in this agreement and their other treaty obligations. This is especially significant in light of the UAE’s relationship with the Arab League and its member states. An identical provision appears in the peace treaties with Egypt and Jordan. Article 12 regarding registration of the agreement with the UN Secretary-General pursuant to article 102 of the UN Charter is a vital legal provision that enhances the formal nature of the agreement as an international treaty between two independent sovereign states.

Conclusion

The instruments signed in Washington represent a significant symbolic and substantive breakthrough in the relationships between Israel and the Arab world. This will undoubtedly be further developed as the relationships strengthen, and mutual confidence and good faith are enhanced.

It is regretted that critics of this development and the documents signed in Washington prefer to allow partisan views and personal antagonism to color their reasoning, rather than to acknowledge this development on its merits.

Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.

This article was first published by the Jerusalem Center for Public Affairs.