CONFIDENTIAL

M E M O R A N D U M

To: Prime Minister Salam Fayyad

Cc: Dr. Dr. Khouloud Daibes Dr. Hassan Abu Libdeh

From: Negotiations Support Unit

Subject: “New 7 Wonders of Nature” Proposal for the Dead Sea

Date: 1 July30 June 2009

The purpose of this memo is to advise on the legal and permanent status implications of Palestinian participation in the nomination of the Dead Sea as one of the “New 7 Wonders of Nature”.

Facts

As we understand it, the New7Wonders Foundation (Foundation), a private initiative, has invited the PNA, along with and Israel, to support the nomination of the Dead Sea as a candidate to become one of the ‘New 7 Wonders of Nature’. To the best of our knowledge, the Dead Sea can not qualify as a nominee unless the PNA, Jordan and Israel all support the nomination through the establishment of an Official Steering Committee by each of the three parties. However, we have been unable to rule out the possibility that the Foundation will go ahead with the nomination of the Dead Sea even if the PNA does not support it

Both Jordan and Israel have already supported the nomination through the establishment of their respective Official Steering Committees. Israel initially appointed the Megillot (Dead Sea) Regional Council as its point of contact. The jurisdictional area of the Megillot Regional Council incorporates at least 6 settlements and the occupied Palestinian territory around the Dead Sea. Media reportsThe Foundation has suggested through a third party that Israel has since designated the Israeli Ministry of Tourism as itsthe point of contact, and that the contract between the foundation and the Israeli Ministry of Tourism would be signed on July 1, 2009, though we are unable to independently confirm that.

According to the standard form contract that each of the Official Steering Committees is expected to enter into with the Foundation, a proposed copy of which we have obtainedhas been forwarded to us, the OSC would be required to facilitate and participate in certain

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Palestine may: (i) decline to participate or; (ii) potentially participate by submitting an application, either: (a) unilaterally or; (b) through a joint application with Israel and Jordan.

Risks of Participation

• The primary legal risk would be to open the door to acquiescence (i.e., consent or waiver of objection) arguments in future negotiations, arbitration or litigation.1 Palestinian N7WN participation could be used by Israel or Jordan (or both) to Palestine’s detriment because Israel or Jordan could later argue that such participation evidences Palestinian acquiescence to: (a) the current military occupation, including Israel’s unilateral declaration of the Jordan Valley and Dead Sea areas as “closed military zones” and; (b) de facto Israeli and Jordanian control over, and exploitation of, the Dead Sea. The risk is not insignificant. As mentioned above, several news stories in the past 24 hours, together with independent information supplied from the Ministry of Tourism and Antiquities, confirm that Israel initially designated Megillot Dead Sea Regional Council (MDSRC) to represent Israel in its participation in N7WN. It would be decidedly against Palestinian interests to participate in N7WN where Israel has designated its N7WN participation to MDSRC, an entity ideologically antithetical to Palestinian rights and interests. Even if the media reports are true about Israel instead designating the Ministry of Tourism as the point of contact, that Israel contemplated such a pivotal role for the settlement regional council at all provides a reasonable reason to believe that Israel intends on to involveing the regional council and the settlements around the Dead Sea in N7WN events. In other circumstances, obtaining written assurances that no prejudice would result from Palestine’s participation might suffice to protect Palestine’s interests.2 On the egregious facts at hand, such an approach would be ill-advised.

• Our understanding is that the PLO’s and the PNA’s policy since the Gaza offensive has been to limit contact with the Israeli government. Palestinian engagement in discussions with Israel over its proposed joint application to the N7WN would contravene this policy.

1 As an over-riding general principle, it remains imperative for to avoid any conduct or relationship that could prejudice Palestinians’ desired final status outcome in future negotiations with Israel. With respect to the N7WN invitation, because Palestine will likely in future negotiate Dead Sea boundary and resource issues with Jordan, any conduct or relationship that could prejudice such boundary negotiations with Jordan must also be borne in mind and avoided. 2 If a trilateral (or bilateral) application to N7WN were contemplated, at a minimum Palestine would want to obtain an explicit written assurance (preferably in the form of a formal statement) from Israel and Jordan that Palestinian participation in N7WN shall have no effect whatsoever on Palestinian final status negotiations with Israel or any future negotiations with any other party. In addition to the unacceptable settlement organization participation already noted, it is also apparent that the 7 July deadline raises calls into question the feasibity of securing the required assurance. Although the risk of acquiescence arguments would be less in a unilateral application scenario, Palestine would want to submit with its N7WN application a covering letter that clearly states that nothing in Palestine’s application or participation should be construed to imply acquiescence to the current political-military status quo and shall have no effect whatsoever on Palestinian final status negotiations with Israel or any other future negotiations with any other party.

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o Moreover, a joint application with Israel to N7WN may serve to legitimize PM Netanyahu’s ‘economic peace’ agenda, as well as to improve the Israeli government’s standing with Israeli ‘moderates’ and the international community. Arguably, such coordinated participation would provide PM Netanyahu’s government with undeserved positive publicity and thereby fortify its resistance to engaging in negotiations on the core substantive final status issues.

o It is unclear to what extent Palestinians stand to benefit by promoting the Dead Sea via N7WN (or any other commercial or promotional vehicle, for that matter) at the present time. Where, as now, Palestine is effectively excluded from meaningful access, control or use of the Dead Sea, only Israel and Jordan stand to increase their exploitation of the Dead Sea area and resources on the basis of positive publicity that N7WN may generate.3 Additionally, a review of the agreement N7WN would require from Palestine if it were to participate makes clear that Palestine would be unable to reap most of the potential benefits of N7WN participation except at Israel’s mercy.4 Israel through the Joint Tourism Subcommittee has been requesting Palestinian cooperation on the marketing and promotion of the Holy Land which has been rejected by the Palestinian side. The Palestinian rejection has been made conditional on the Israeli cooperation isn solving the outstanding tourism issues5 between PA and Israel. Indeed, it is apparent that Palestinian participation in N7WN may only serve to entrench Israel’s and Jordan’s long-term domination of the Dead Sea and its resources.

Merits of Participation

• Palestinian participation in the N7WN project would lend credence to Palestinian claims to the Dead Sea and its resources, and by extension, to broader Palestinian self- determination and national claims. Conversely, if the nomination goes ahead without Palestine’s participation, this could be detrimental to Palestinian political/legal claims to the Dead Sea and its resources, and by extension, to broader Palestinian self- determination and national claims. In this sense, Palestine’s participation in N7WN could be desirable, subject to the considerations set forth below:

• A trilateral application would hold the potential to leverage Israel’s and Jordan’s expressed interest in N7WN as an entrée to secure their recognition of the legitimacy of Palestine’s Dead Sea resource and borders claims. The World Bank led negotiations on the Red Sea Dead Sea Canal Feasibility Study provide one example where Palestine was able to extract tangible riparian and other rights recognition that

3 Anecdotally, the Jordanian ruins at Petra apparently doubled its tourist traffic volume after winning a similar 2007 competition organized by the same company. 4 See clauses 4, 5 and 8 of the annexed proposed contract from N7WN. 5 Tourism issues include, movement of the tourism professionals, movement of tourist between the and Israel and within the West Bank, and the Palestinian development of Area C of the West Bank including the Dead Sea Area.

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had not otherwise been forthcoming.6 However, given the apparent 7 July deadline for submission of a Palestinian application to N7WN, it is unlikely to be feasible to conclude what would likely be protracted trilateral negotiations for such recognition.

• Alternatively, Palestine’s unilateral participation would provide evidence of high- profile international recognition of Palestine’s claims to the Dead Sea and its resources. Moreover, if Palestinian participation in N7WN is not contested by Israel, this participation would further bolster Palestine’s territorial and resource claims over the Dead Sea and, by implication, Palestine’s wider national aspirations. On the other hand, recognition of Palestine’s claims by N7WN, a private entity, are arguably outweighed by the economic detriments and political risks set forth above.

Recommendation

Reframe the terms of the debate and dDecline to participate as necessary:

The organizers of N7WN have been unclear, if not altogether evasiveslippery, about whether Palestine’s participation in the competition is a prerequisite to the Dead Sea proceeding to the next phase of the competition. Presumably this approach is an attempt to coerce Palestine to participate, whether or not such partricipation is in Palestine’s interest. Moreover, it would appear to be bald pursuit of N7WN’s own commercial, or worse, political and financial interests in tandem with Israel and/or Jordan. Moreover, we have some questions arise as to the integrity of N7WN in that they claimed to have contacted the Ministry of Tourism and Antiquities in March 2009 to solicit Palestine’s participation but no such inquiry was ever received and subsequent inquiries from N7WN were directed only to third parties. Because the first media coverage delving into the issue of Palestine’s participation (28 June 2009 Reuters story attached) has grossly miscast reality by glossing over Palestine’s occupied status, it is imperative to recast the terms of what we predict will be more media coverage and to soundly dispense with any notion that Palestine is ‘the problem’.

We suggest a two-stage approach. First, and immediately, a very simple letter should be sent by the PNA to Nadja Rahal at N7WN, The purpose of this letter is to “throws the ball back into their court” and we suggest that it will read as follows:

Dear Ms. Rahal,

It has become apparent through media reports, among other things, that there may be some question in your organization as to Palestine’s legal status under international law. Accordingly, I write seekingto elicit a written statement of confirmation from your organization that its your organization’s positon onposition regarding the Palestine’s legal status of the occupied Palestinian territory (oPt) is consistent with

6 Palestine recently used World Bank led negotiations on the Red Sea Dead Sea Canal Feasibility Study not only to achieve an equal footing between the parties, but also to negotiate Israel’s and Jordan’s full recognition of Palestinian riparian rights in the Jordan River basin, among other benefits. Israel’s recognition of Palestine’s riparian status had eluded Palestine in first-track negotiations dating as far back as the 1993 Oslo Agreement.

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the view of the overwhelming majority of the international community – that it is under foreign military occupation since 1967. as a nation under military occupation.

The reason we seek this confirmation is because, as you are doubtless aware, know, Lest there be any confusion, Palestine has been under Israeli military occupation since 1967 and continues to be. This assessment of Palestine’s legal status commands the overwhelming and clear international consensus. this status of occupied territory imposes

Palestine’s legal status as a nation under Israeli military occupation implies clear legal responsibilities onfor third parties that seek to engage in commercial activity that could, or is likely to, prejudice the economic interests of Palestinians or that would aid, abet or otherwise provide support, whether material or political, to states, entities or persons that act in contravention of international law in occupied Palestine. The Part of the Dead Sea lies within is part of occupied Palestine.

Please respond in writing by not later than Friday, July 3, 2009 setting forth your organization’s position with respect to the legal status of the occupied Palestinian territory.

The objective of this demand is to force N7WN to set forth its position in writing – for potential use against N7WN later - and to suggest to N7WN that it may wish reconsider its inclusion of the Dead Sea in N7WN on its own accord. We believe that this may be possible to accomplish with the insinuation that N7WN may incur third party liability and, at a minimum, garner highly damaging publicity by going forward with a not taking a clear position. We believe that leaking the above letter to the Jordanian media may also force the Jordanians to withdraw their participation.

If N7WN does not respond by July 3 or if N7WN’s response is other than a voluntary withrdrawal of the Dead Sea from the competition, Palestine should distribute the above letter to the media together with a media brief explaining Palestine’s position. On balanceAdditionally , the Ministry of Tourism and Antiquities should immediately decline N7WN’s participation request by letter and set forth to N7WN Palestine’s reasons for declining in writing, This letter should be distributed to the media simultaneously.

Should it be necessary, Palestine’s second The letter to N7WN should: (1) acknowledge that the Dead Sea holds historic, cultural and religious significance for humanity; (2) assert that Palestinians have been denied both physical access and access to natural resources under the Israeli military occupation regime; (3) emphasize that this state of affairs has prevented Palestinians from utilizing their rightful share of trans-boundary water resources and that this result has significantly harmed the economic growth and well-being of Palestinians in general; (4) explain that this reality prevents Palestinians from exploiting the Dead Sea for the purposes of tourism, industry, and leisure, while the people of Israel and Jordan, and international tourists freely avail themselves of such exploitation, and; (5) conclude with the observation that Palestine would have been pleased to participate in N7WN had it been able negotiate an acceptable agreement with Israel to provide for Palestinian access, development

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The NSU is ready to assist in drafting the covering any required second letter to the Foundation or other needed Palestinian responses. The points for one possible letter, as set forth above, provide what we believe should be the talking points that Palestine should adopt.

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