CONFIDENTIAL M E M O R A N D U M To: Prime Minister Salam Fayyad Cc: Dr. Saeb Erekat 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 Jordan 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 Prepared by the Negotiations Support Unit of the PLO Negotiations Affairs Department 1 CONFIDENTIAL publicity events at or near the nominee. See, in particular, clauses 4, 5 and 8 of the annexed contract (annexed). 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 Palestinians 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. Prepared by the Negotiations Support Unit of the PLO Negotiations Affairs Department 2 CONFIDENTIAL 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 West Bank and Israel and within the West Bank, and the Palestinian development of Area C of the West Bank including the Dead Sea Area. Prepared by the Negotiations Support Unit of the PLO Negotiations Affairs Department 3 CONFIDENTIAL 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,