The first question about the ability to make a formal treaty is the issue of sovereignty.  International law stipulates that only Sovereign States can make Treaties.  The question of what makes a Nation/State Sovereign is based on the Treaty of Westphalia, ratified in 1648 (Sidebar: When people seem amazed that OFICL is advocating legal action against the United States on a Treaty ratified in 1924, the Treaty of Westphalia is a great example of Treaty longevity). 

A sovereign is a supreme lawmaking authority and that gives it the ability to enter into Treaties.  It’s no secret that the Palestinian Authority fails the test for Sovereignty. 

For these reasons, some people call the "Road Map  agreement between the Sovereign State of Israel and the Palestinian Authority a contract, and the debate has been so heated, and so broadly discussed, that Professor Anthony Aust (an expert in Treaty Law) has addressed this issue in the second edition of "Modern Treaty Law and Practice  (a).  The wording of the first paragraph of this "Agreement," uses common contract terminology "Performance Based." 

With the concept of Perfomance Based being understood, where there is a contract or agreement, there is also a concept of  pacta sunt servanda (pacts must be respected).

There must be a supreme agreement between states that is beyond question or reproach, where two or more willing parties assume obligations between themselves, and a party to either that fails to live up to their obligations, can be held liable under International law in Court. 

True Treaties are the very best we have within International Law and are the "Supreme Law of the Land  in more than one democracy, including the United States.  They are enforceable in International Courts, and in some Domestic Courts.

International law requires ratification as expressed in the 1969 Vienna Convention on the Law of Treaties.  This can also be found on page #63 of the United Nations Treaty Handbook (c).  Prior to the 1969 Vienna, this was "Customary International Law (b). Most International Law is Customary Law, because formal International Legislation is a modern concept. As time progresses, much of Customary Law is being written into written International Law.

Treaties have always been difficult to pass, and not the least of the difficulties has been the ratification process.  In the United States, and elsewhere, the ratification process can lead to "pork barrel politics"(d) and complications in the timely approval of the Treaty. The end result of this was a move to non-treaty agreements that did not require ratification (e).

The Congressional and  Executive Agreement or the Memorandum of Understanding (M.O.U.)has been the answer to the pressing issues of the complex world in which we live. 

The Congressional - Executive Agreement is usually created by the Executive (President or Prime Minister) and submitted to the Legislature for a simple majority vote, rather than the more difficult two-thirds (2/3) vote required for treaty ratification. 

The downhill slide begins here…..

Some Facts:  Professor Tim Wu of Columbia Law School wrote in the Virginia Law Review (f) that in the fifty years from 1789 to 1839 the United States entered into 87 Treaties or a little less than two per year.  Of those, 60 (69%) of those were true treaties, and thus ratified.. In the fifty years from 1939 to 1989 the U.S. entered into 12,400 agreements, or about 250 per year.  Of those 11, 689, (94%) were not true treaties, thus non-ratified.

Memorandums of Understanding

Non-treaty agreements can also take the form of the Memorandums of Understanding (MOU). This has been codified into the U.N. and is found on page #61 of the U.N. Treaty Handbook. As Anthony Aust points out (g) the MOU is not legally binding and compliance is simply voluntary on the part of all parties.

Executive Agreements

Executive Agreements are little more than Contracts. The Executive Branch-Presidents, Kings, Queens, Prime Ministers, and many other heads of State can execute contracts between themselves or with others as they do daily.

Conclusions

Q: "I will note that as a matter of Israeli constitutional law, it is not at all clear that Knesset approval is required for any international contract or treaty.

A:  This is the moment when I would love to open the Constitution of the State of Israel. Unfortunately, we don’t have a Constitution, but we do have Constitutional Law (Constitutional Law is not necessarily tied to a form document called a Constitution).

Nevertheless, if the State of Israel as a sovereign nation wants to enter into an enforceable Treaty with another sovereign nation, the Knesset must ratify that Treaty.  That is what is required for a binding International agreement, under the Vienna Convention on the Laws of Treaties.

Israel has failed to ratify the Vienna Convention; However, since the Vienna Convention was the codification of the customary International laws as to Treaties, Israel must follow the Convention to obtain the benefits of entering into binding Internationally enforceable agreements with other Nations. If Israel has failed to ratify a treaty then it is not a binding agreement under International Law.

The Road Map is not a Treaty, and as you review the other possibilities we have discussed herein it seems evident that this is a Contract.  The "Performance Based  tells us that the P.A. is required to "Perform  (do something) and of course this is spelled out in detail.

The facts seem abundantly clear that the Palestinian Authority did not perform any of its obligations under the agreement.  Further, the Agreement set forth specific end dates for the required Performance items, and the P.A. did not meet any of these dates.  I don’t believe that there is a Judge anywhere that would rule that this agreement was valid past the 2005 date for the final status agreement. 

Long before the 2005 expiration, there was to be the elusive "Peace and Security,  that we all dream of.  In the end the Road Map never got off the ground because the Palestinian Authority refused to crack down on terror.

Even without Peace and Security if there had been due diligence on the part of the P.A., you might find a Judge that would extend the time limits for a year or two, because the Agreement lacks a specific termination clause.  However, the P.A. did such a great job of doing absolutely nothing they agreed to do, that I don’t believe there was any reason for concern on that point.  

OFICL maintains that the Roadmap to peace has expired.

Memorandum of Understanding, or M.O.U.

The term Memorandum of Understanding (M.O.D.) is often used to denote a less formal international instrument than a typical treaty or international agreement. It often sets out operational arrangements under a framework international agreement. It is also used for the regulation of technical or detailed matters. An M.O.U. typically consists of a single instrument and is entered into among States and/or international organizations. The United Nations usually concludes M.O.Us http://M.O.Us with Member States in order to organize its peacekeeping operations or to arrange United Nations conferences. The United Nations also concludes M.O.Us http://M.O.Us regarding cooperation with other international organizations. The United Nations considers M.O.Us http://M.O.Us to be binding and registers them if submitted by a party or if the United Nations is a party.  Source: UN Treaty Manual

(a): [During the armed conflict with Arab states in 1967, Israeli forces occupied all the territories, which had constituted Palestine under the Mandate, including the West Bank and East Jerusalem (from Jordan); as well as the Gaza Strip (from Egypt), the land territory of which was relinquished by Israel to the Palestine Authority in 2005; and the Golan Heights (from Syria). Israel does not claim sovereignty over the territories so occupied, which are in military occupation subject to the limitations of The Hague Regulations 1907 (Section III)  and the Fourth Geneva Convention.

In November 1988, the Palestine National Council, the Parliamentary Assembly of the Palestine Liberation Organization, declared a State of Palestine, which claims the occupied territories. Since 1993, a number of bilateral instruments between Israel and the Palestine Liberation Organization have been concluded which cannot be regarded as treaties, the terminology ‘the two sides  being employed. In 1994 a nascent Palestinian Government was established, the Palestinian Authority.

Given that the Palestine Authority lacks control over so much of the territory it claims, Palestine has not yet succeeded in being generally recognized as a state, although several Arab states recognize Palestine and have concluded treaties with it. Palestine has not been admitted as a Member of the United Nations, but does have enhanced permanent observer status.]

(b) [Pork Barrel Politics is a term used to indicate the "horse trading  that takes place when the Executive Branch wants or needs something from the Legislative Branch of the Government.  You want me to vote for Ratification of that treaty? Great I need a new Army Base or a new Boeing Aircraft factory in my home City of Amarillo Texas, where my constituents live and work.]

I [ Ratification, Acceptance & Approval

Ratification, acceptance and approval all refer to the act undertaken on the international plane, whereby a State establishes its consent to be bound by a treaty. Ratification, acceptance, and approval all require two steps:

1) The execution of an instrument of ratification, acceptance or approval by the Head of State, Head of Government or Minister for Foreign Affairs, expressing the intent of the State to be bound by the relevant treaty; and

2) For multilateral treaties, the deposit of the instrument with the depositary; and for bilateral treaties, the exchange of the instruments between parties.

The instrument of ratification, acceptance or approval must comply with certain international legal requirements (see section 3.3.5 and annex 4).
Ratification, acceptance or approval at the international level indicates to the international community a State’s commitment to undertake the obligations under a treaty. This should not be confused with the act of ratification at the national level, which a State may be required to undertake in accordance with its own constitutional provisions, before it consents to be bound internationally. Ratification at the national level is inadequate to establish the State’s consent to be bound at the international level.

See articles 2(l)(b), 11, 14 and 16 of the Vienna Convention 1969.

Registration, in the context of treaty law and practice, refers to the function of the Secretariat of the United Nations in effecting the registration of treaties and international agreements under Article 102 of the Charter a/the United Nations (see section 5).

A reservation is a statement made by a State by which it purports to exclude or alter the legal effect of certain provisions of a treaty in their application to that State. A reservation may enable a State to participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in. States can make reservations to a treaty…. ]

(d)  [Customary international law are those aspects of international law that derive from custom. Coupled with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. For example, laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. The vast majority of the world’s governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it.

The Statute of the International Court of Justice acknowledges the existence of customary international law in Article 38(1)(b), incorporated into the United Nations Charter by Article 92: "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply...international custom, as evidence of a general practice accepted as law.  Source:<http://en.wikipedia.org/wiki/Customary_international_law>]

(e) To further complicate the issue there has been a considerable increase in the number and complexity of the International Agreements in the areas of commerce (Fair Trade Agreements) and Environmental Treaties that are extremely complex in their details and require complex administrative law in order to function properly.

(f) In the U.S. A true Treaty is one that complies with article 2 (II) of the Constitution with 2/3 of the Senate in favor.

(g) Modern Treaty Law and Practice 2nd Edition by Anthony Aust page #80.

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