Wednesday, April 27, 2011

Is Egypt-Israel Peace Treaty in Danger?

The New York Times has an interesting report about an opinion poll conducted by Pew in Egypt:
... a majority of Egyptians, 54 percent, want to annul the 1979 peace treaty with Israel that has been a cornerstone of Egyptian foreign policy and the region’s stability. The finding squares with the overwhelming anecdotal evidence that Egyptians feel Israel has not lived up to its commitments in its treatment of the Palestinians. But more than a third of respondents, 36 percent, favored keeping the treaty, and the poll did not ask the more controversial question of whether Egyptians wanted to sacrifice the three decades of peace they have enjoyed along the border.
Mr. Saleh of the Muslim Brotherhood, however, said he supported maintaining the treaty.
“There is a difference between the people’s feelings toward Israel and their political assessment,” he said “Those who want to maintain the treaty are motivated by Egypt’s interest. It is not because they accept Israel.” 
I analyzed the treaty in in my article in the Buffalo Law Review some years ago. Here's an extract (excluding footnotes):
The agreement was signed in 1979 by President Sadat and Prime Minister Begin under the active encouragement of President Carter in Washington, D.C. The preamble recites that the parties are "convinced of the urgent necessity of the establishment of a just, comprehensive and lasting peace in the Middle East ... ."  They agreed to terminate the war between them, and Israel agreed to withdraw its troops and civilians from the Sinai behind the international boundary between Egypt and mandated Palestine, allowing Egypt to exercise sovereign power over the Sinai. The parties agreed to establish their permanent boundary in accordance with an agreed-to map,  [*449]  leaving aside the position of the Gaza Strip. Both sides agreed to respect the inviolability of each other's territorial sovereignty. The parties emphasized the applicability of the UN Charter and other principles of international law and committed to resolve disputes between them in a peaceful manner. Given the familiar accusations of proxy wars, article III, paragraph 2 commits the parties to ensure that acts or threats of belligerency, hostility, or violence do not originate from and are not committed from within its territory, or by any forces subject to its control or by any other forces stationed on its territory, against the population, citizens or property of the other Party. Each Party also undertakes to refrain from organizing, instigating, inciting, assisting or participating in acts or threats of belligerency, hostility, subversion or violence against the other Party, anywhere, and undertakes to ensure that perpetrators of such acts are brought to justice.
Recognizing that distrust can undermine the agreement, the two sides agreed to the stationing of United Nations personnel in agreed-upon areas with the understanding that neither party was to request their withdrawal. Under the agreement, these personnel were  [*450]  not to be removed unless the removal was to be approved by the U.N. Security Council. This provided the delegation element, at least in relation to the high obligation to ensure that there are no acts of military aggression. Given that this was the most important obligation under the agreement, it was perhaps sufficient to provide for delegation with regard to that obligation.
In order to promote trust and facilitate implementation, the agreement also provided for the creation of a joint commission. This commission is to meet at least once every month and is responsible for coordination, problem resolution, assisting the U.N. forces, organizing the demarcation of the international boundary, supervising the handover of installations in the Sinai to Egypt, making arrangements for the return of the bodies of fallen soldiers, organizing the setting up of entry points and their operation, and the discussion of other matters placed before it by the parties.  This joint commission is an example of medium delegation - while it provides for some precise responsibilities, the absence of any teeth means that it cannot be considered an exemplar of high delegation.
A slightly higher example of hard legalization (in its delegation aspect) is the conferment of responsibility upon the United States to conduct aerial surveillance during the withdrawal operations. This immediately provides a neutral verification and enforcement machinery and strengthens the relevant obligations.
The trust issue surfaces again in article VI when the parties are obligated to fulfill their obligations under the treaty in good faith, an extremely important provision given the fact that the principle of good faith comes with a certain circumjacence of legal principles that can be enforced. The parties are also required to abjure from entering into  [*451]  other treaty obligations that may run counter to this agreement.  Article V gave Israeli ships and cargoes destined for Israel the right of unimpeded passage through the Suez Canal in a non-discriminatory manner. These provisions are high on obligation, but are low on precision and delegation.
The protocol attached to the Treaty fleshes out some of the commitments. It provides a time frame of three years from the date of the agreement for Israel to complete the withdrawal of its forces, with interim withdrawal to be completed in nine months.  Recognizing the complexity of  [*452]  the withdrawal process and the potential for miscommunication and possible recriminations, the protocol provides for the creation of a joint commission to supervise and coordinate the withdrawal.  After the completion of the work of the joint commission and its dissolution, "a liaison system is intended to provide an effective method to assess progress in the implementation of obligations ... [and] to prevent situations resulting from errors or misinterpretation on the part of either Party."  [*453]  The protocol also establishes a detailed aerial and naval military regime that divides up the area into zones and delineates allowed activity by both sides to their respective zones. This protocol exhibits high obligation, precision, and delegation, and once again demonstrates the virtues of legalization in the context of high-conflict states where trust is at a premium.

The full article is available here

A rational calculation is likely to militate against abrogating the agreement. The Pew poll illustrates the gap between popular perceptions about international agreements and more hard headed assessments of the relevant tradeoffs.