40 No. 73 JUSTICE The most significant document among the Oslo Accords is the September 28, 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (“the Oslo II Agreement”),4 in which the PLO explicitly agreed that the Palestinian Authority and the Palestinian National Council would not have criminal jurisdiction over Israeli nationals.5 The United States, Russia, the European Union, Egypt, Jordan and Norway formally witnessed the Oslo II Agreement. Israel and the PLO, together with the United States and the Russian Federation, submitted the Oslo II Agreement to the Secretary General of the United Nations, and requested it be made an official record of the General Assembly and the Security Council.6 Both Israel and the PLO had the legal capacity in 1993 and 1995 to enter into binding international agreements such as the Oslo Accords. Israel could enter a binding international agreement in its capacity as a State. The PLO, which was not a state, had gained acceptance globally as a national liberation movement as of 1993, and as such could be deemed a “partial subject of international law” with the legal capacity to sign binding international agreements.7 Although the Oslo Accords cannot be characterized as a “treaty” between States pursuant to Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties, the Accords are nevertheless binding on both Israel and Palestine under international law. Article 3 of the Vienna Convention on the Law of Treaties anticipated situations such as the Oslo Accords, in which international agreements might not rise to the level of a treaty but should still be viewed as legally binding on the parties. Article 3 provides: The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.8 The language of Article 3 applies directly to the Oslo Accords. The Accords were “international agreements concluded between States and other subjects of international law,” such as Israel and the PLO. Thus, the Accords are infused with legal force and are subject to the rules of the Vienna Convention and the rules of international law. The most important such rule can be found in Article 26 of the Vienna Convention, embodying the customary international law principle of pacta sunt servanda: “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” Therefore, under Article 3 of the Vienna Convention, the principle of pacta sunt servanda applies to the Oslo Accords. The binding effect of the Oslo Accords has been recognized by international law scholars. For example, 4. UNGA A/51/889, UNSC S/1997/357, Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Sept. 28, 1995) (hereafter: the “Oslo II Agreement”). 5. Article I.2 of the Oslo II Agreement provides that “the term ‘Council’ throughout this Agreement shall, pending the inauguration of the Council, be construed as meaning the Palestinian Authority.” As discussed infra, the 1995 Interim Agreement deprives the Council, and therefore also the Palestinian Authority, of criminal jurisdiction over Israeli nationals. 6. Letter dated Dec. 27, 1995 from the Permanent Representatives of the Russian Federation and the United States of America to the United Nations addressed to the Secretary-General; Letter dated Dec. 28, 1995 from the Permanent Representative of Israel to the United Nations addressed to the Secretary-General; Letter dated Dec. 19, 1995 from the Permanent Observer of Palestine to the United Nations addressed to the Secretary-General, available at https://www.un.org/unispal/document/autoinsert-185434/ 7. Peter Malanczuk, “Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law,” 7(4) EUR. J. INT’L L. 485, 489 (1996); see also Geoffrey R. Watson, THE OSLO ACCORDS: INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN PEACE AGREEMENTS 101-02 (Oxford Univ. Press, 2000); see also Robbie Sabel, INTERNATIONAL LAW AND THE ARAB-ISRAELI CONFLICT 272-75 (Cambridge Univ. Press, 2022) (“both Israel and the PLO intended the [Oslo Accords] to be a binding legal instrument.”). 8. Vienna Convention on the Law of Treaties, Art. 3(a), May 23, 1969, 1155 U.N.T.S. 331.
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