Progress Report on Territory Negotiations

29 October 2008

Overview:

Since technical committees were activated in February 2008, the Territory Committee has held a total of 10 face-to-face meetings, including one review meeting headed by Dr. Erakat and Mr. Udi Dekel. In addition, the Committee conducted four joint field visits to various parts of the West Bank.  At the same time, the Plenary Committee has taken up the issue of Territory on at least six occasions, three of which were with the participation of Territory Committee members (committee head plus one NSU advisor).  The issue has also been addressed in several tri-lateral meetings convened by Secretary Rice.

Agenda:

No agreement was ever reached on a common agenda for the Territory Committee, mainly due to the protracted discussions and absence of agreement on the terms of reference (1967 line, 1:1 swaps, etc.). Moreover, the issue of an agreed agenda for the committee was not explicitly tabled until the last meeting (Sep. 8^th), after it had become impossible to proceed any further.  At that time, the Israeli side tried to move the discussion away from the actual border by proposing instead that we focus on the other ancillary issues related to territory, as delineated in the Palestinian draft FAPS (e.g., border demarcation, maritime boundaries, evacuation modalities, private property, settlement assets/infrastructures), to which the Israelis added the issue of “holy sites”.  However, the Palestinian side did not view this as a constructive or practical way to proceed, while insisting that the best way forward was to agree on the borders first.

Achievements:

Very little progress has been made at the technical committee level thus far, mainly due to the Israeli side’s refusal to work on the basis of the 1967 line and its insistence on a piecemeal and partial approach to borders/territory (e.g., by attempting to exclude the Jerusalem area, the Jordan Valley, etc.), as well as practical problems arising from the lack of agreement on certain fundamental issues at the political level. 

Nevertheless, there have been some achievements made on the issue of Territory overall, at both the technical and political levels, as summarized below.  (A more detailed description of Palestinian and Israeli positions/arguments communicated thus far is attached in the table below).

1. At the political level (Plenary/Leadership), most of the fundamental principles and basic terms of reference regarding territory/borders have now largely been established (with U.S. backing):
   • 1967 Line (baseline):  Though they will not say so explicitly or publicly, the Israeli side has accepted Secretary Rice’s formula that Territory negotiations are to deal with all areas occupied in 1967, including East Jerusalem (although there remains disagreement on the No-Mans-Lands, which both sides have indicated in one way or another a willingness to split equally). It remains to be seen what practical impact this tacit acceptance of the 1967 baseline by Israeli political-level negotiators will have on the Territory Committee at the technical level.
   • Landswaps:  After initially resisting the idea, the Israeli technical team eventually agreed to discuss the issue of landswaps (or at least some form of territorial compensation), but only after Livni agreed to the principle at the political level. (It should be noted that Israel had already accepted the principle of landswaps inprevious rounds of negotiations.) Nevertheless, the Israelis have not yet agreed to a 1:1 exchange in size or quality.
   • Territorial Link:  The Israelis have agreed to the creation of a territorial link between Gaza and the West Bank, but have not yet accepted Palestinian sovereignty over the link or proposed a formula for the status of the link. In addition, they argue that the area encompassed by the link should be accounted for in the landswaps.

1. Modest achievements were also made at the technical level (Territory Committee), mostly related to process:
   • Presenting Proposals/Maps:  Each side has presented maps of its respective territorial proposals to the other side.
     • The Palestinian Territory team presented a map to their technical committee counterparts, as well as to the Plenary Committee, proposing a swap of 120 km² (1.9% of the total area of the West Bank and Gaza Strip), and showing areas to be swapped on both sides of the 1967 line. 
     • The Israeli side presented a map of Olmert’s original “7.3%” proposal[1] (albeit only a part one, as it excluded Jerusalem and other areas, and did not identify lands to be swapped from Israel) in the Territory Committee.
     • Olmert has since shown, but did not give, Abu Mazen a revised “6.8%” map[2], which the Israeli side has not yet presented at the technical committee level despite our request that they do so. Furthermore, the Israeli team made clear that latter proposal is to be considered as part of a “package” deal covering all permanent status issues and not a stand-alone proposal on borders.
   • Joint Field Visits:  The two sides conducted four joint field visits to different parts of the West Bank, including Ariel (including Bet Aryeh-Barqan), Gush Etzion, Ma’ale Adumim and the Latrun area.
   •  Identifying Interests & Criteria:  The process of presenting map proposals and conducting joint field visits allowed the two sides to identify and better explain their respective territorial interests, as well as their specific swap criteria. While there was never any formal agreement either on a common set of criteria or on the basic parameters of possible landswaps, the Israeli side did express at least rhetorical support for certain key principles, albeit unofficially and somewhat equivocally (indeed, Israeli proposals often directly contravened their stated criteria), including that:
     • No Palestinians are to be included in the swap (while for Palestinians, this meant on either side of the 1967, the Israelis continued to raise the prospect of including Palestinian citizens of Israel).
     • No Palestinians are to be displaced or relocated; only Israeli settlers will be relocated. (Although, during a joint visit to Ma’ale Adumim, the Israeli side was non-committal as to what would happen to the bedouin who found themselves on the Israeli side of the border).
     • The term “contiguity” refers to territorial contiguity, not “transportation contiguity”. (However, this was clearly not reflected in Israeli proposals).
   • Informing the Political Track:  Despite having little agreement on how to engage or what to engage on, the fact that the Territory Committee continued to engage anyway allowed it to isolate certain key issues that required political guidance and accentuated the need for such guidance, as well as to help inform those decisions. For example, the work of the Technical Committee helped to focus on the need for a decision by the leadership on the baseline of 1967. Similarly, the Technical Committee’s focus on objective criteria has helped focus even the political discussion on territory on interests, and not just numbers and percentages.

Main Problems:

The Territory Committee has been faced with a number of significant problems, in terms of both substance and process.

1. From the outset, the Israeli side has steadfastly refused to accept the basic terms of reference for territory negotiations, namely the 1967 line as the only legitimate baseline.  While this has been remedied somewhat by Secretary Rice’s formula (see above), the fact the Israelis refuse to accept this principle explicitly suggests that they may not view themselves to be bound by it in the future, particularly once a new administration is in place in Washington.   This is significant not just for territory, but for other permanent status issues as well (e.g., the basis for compensation for the illegal acts of occupation will be the 1967 line, and not the agreed final border). 

1. While the Israeli side did eventually agree to some sort of landswap, there remain fundamental and substantial gaps between the two sides with regard to the nature of the swap.  For example:
   • The Israeli side has not yet accepted the principle of a 1:1 swap, equal in both size and value.  Moreover, while the Israeli side could argue that they came close to 1:1 in terms of size, they have never addressed the issue of value.
   • Whereas Palestinians are prepared to accommodate certain Israeli settlements only on an individual basis, the Israelis continue to push for annexing all the major settlement “blocs”, along with all of the settlements inside Israeli municipal Jerusalem, more or less in their entirety. The most problematic of these in terms of Palestinian interests are Ariel, Giv’at Zeev andMa’ale Adumim “blocs”, along with Har Homa and Efrat settlements.
   • The fact that Secretary Rice has expressly supported Israeli demands for the most harmful of these, Ariel and Ma’ale Adumim, is also very problematic (though it is not clear whether Rice has acquiesced to them as “blocs”, as the Israelis intend, or as individual settlements).

1. In terms of approach, the Israelis have consistently pushed for a piecemeal and partial approach to territory, which, of course, increases the likelihood of fragmentation between the issues. In particular:
   • They rejected the notion of dealing with the entire border as a whole, insisting instead on excluding Jerusalem from the discussion (and hence, from the swap calculation, percentages, etc.) and on delaying discussion of the Jordan Valley until after security arrangements are agreed.
   • Similarly, they have pushed for agreement on certain areas or parts of the border in isolation of the rest, or in a sequential manner. For example, the Israeli side has repeatedly suggested that we agree on and finalize the border around Gush Etzion “bloc” before moving on to other parts of the West Bank.
   • The Israeli piecemeal approach applies not only to geography but thematically as well.  For example, in our most recent meeting (8 Sep.), having reached a deadlock on the border itself, the Israelis proposed that we turn our attention to the ancillary issues instead (demarcation, maritime boundaries, evacuation modalities, private property, etc.).

Issues Requiring Political Decision:

In terms of future/additional Territory negotiations, it is important for the technical team to understand the range of flexibility and/or options that the leadership envisions with regard to Territory negotiations. In particular:

1. Do the current operating assumptions remain valid, namely that: (a) Palestinians cannot reasonably offer more than 1.9%, and (b) Ariel, Giv’at Zeev, Ma’ale Adumim, Har Homa and Efrat are red line settlements?

1. If yes to 1(a), would the leadership consider other possible permutations of the 1.9% map (e.g., by increasing the number of settlers to be annexed while staying within the 1.9% ceiling)?

1. If yes to 1(b), would the leadership consider the possibility of allowing an extended evacuation period for any or all of the five red-line settlements, as a way of making their evacuation more acceptable to Israel? 

1. At what point should the technical committee take up the ancillary issues related to territory (border demarcation, maritime boundaries, evacuation modalities, private property, settlement assets/infrastructures), and in what order should they be addressed?

Recommendations:

Given the lack of significant progress and the various problems described above, we believe the Territory Committee should continue to meet, however only as needed and based on progress made at the political level.  Any decision to accelerate the technical committee discussions artificially is likely to (falsely) raise expectations and increase the likelihood of fragmentation, partial agreements, bridging proposals, and other negative outcomes. In particular, with regard to the Territory Committee, we recommend the following:

1. The leadership should continue to insist on explicit agreement by Israel on the 1967 line as the baseline, as well as on 1:1 swaps and on the status of the territorial link.

1. The leadership should continue to insist that territory negotiations proceed on the basis of comprehensive proposals that address the entire border, including the Jerusalem area, and that identify swap areas on both sides of the 1967 line.

1. The Territory Committee should not agree to meet until the Israeli side agrees to present their latest map proposal (i.e., Olmert’s “6.8%” map), including Jerusalem and swap areas on both sides, in sufficient detail.

1. Notwithstanding, the Territory Committee should proceed on the basis of an agreed agenda, which should be developed in consultation with the political leadership.

1. More generally, the Territory Committee should not agree to discussancillary issues (demarcation, maritime, evacuation modalities, etc.) until after there is agreement on the actual border and landswaps.

1. If there is a need to demonstrate engagement at the technical level, it might be more constructive to explore each side’s thinking/interests on territorial issues in greater depth, for example by organizing additional field visits to potential swap areas in the West Bank or in Israel.