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Bad Puns Aside, What’s Wrong with the Law of the Sea?

In Ben Kurland on August 17, 2012 at 3:22 pm

Thanks to recent Senate action, ratification of the U.N. Convention on the Law of the Sea (UNCLOS) is being discussed again. Senator John Kerry (D-MA), the chairman of the committee, recently convened several hearings regarding UNCLOS (6/28/12, 6/14/12, 6/14/12, 5/23/12) suggesting that it could come to a vote in the near future. Prospects, however, seemingly died when Senators Rob Portman (R-OH) and Kelly Ayotte(R-NH) announced their opposition giving nay-says enough votes (now at 34) to block the two-thirds majority necessary to pass a bill in the Senate.

Puns abounded. Politico called UNCLOS “Sunk” and Foreign Affairs published an article declaring the U.S. an “Outlaw of the Sea”. Opponents had already been referring to it as the Law Of the Sea Treaty, or “LOST”. Darlene Casella even joked that it, “could have been dreamed up by Blackbeard” and that “The Jolly Roger should fly over the Law of the Sea Treaty” because “It is theft of the high seas.”

It is understandable. Political commentators are known for having a weak sense of humor when it comes to puns and a sea-based headline would seemingly be hard to avoid. Jokes aside though, the blockage of UNCLOS in the Senate speaks of a worrying trend in U.S. politics, namely a dismissal or denial of the current international field as it stands.

What about this treaty is so disconcerting? The United Nations Convention of the Law of the Sea is a thirty year old attempt to define the rights and responsibilities of nations regarding the world’s oceans. It was signed in 1982, came into effect in 1994, and to date has 162 parties. President Bill Clinton signed the treaty in 1994 but Senate has yet to ratify it. All-in-all, it acts as the framework upon which the international community can resolve disputes and conduct relations on over 70% of the earth’s surface.

Opposition, however, is often hyperbolic and intensely scornful. In general it relies on arguments that UNCLOS represents an invasion of U.S. sovereignty. Peter Roff, for example, claims that, “In reality the Law of the Sea Treaty is one more step towards a system of global governance under which U.S. sovereignty would be subordinated to an international system managed by an unelected, self-perpetuating form of bureaucratic aristocracy that cares little for democratic traditions.” Phyllis Schlafly claims that the treaty would “subordinat[e] U.S. sovereignty, plus seven-tenths of the world’s surface area, to another entangling global bureaucracy”. Plus, to add good measure to the fear mongering, internationalist plot, Donald Rumsfeld, in his testimony to the Foreign Relations Committee, claimed that UNCLOS is no more than a “sweeping power grab that could prove to be the largest mechanism for the worldwide redistribution of wealth in human history” and John Bolton and Dan Blumenthal warned that ratifying the treaty could “encourage Sino-American strife” and ultimately allow China to block the U.S. from naval and intelligence operations in the South China Sea. Within this rather simple piece of international groundwork, critics have seemingly found a far right gold mine of criticism: an internationalist plot to subordinate Americans to a socialist agenda that will allow China to overtake the United States.

It is scary to think that this is the tenor to which a section of the U.S. will respond to any piece of international agreement. It is not only a worrying trend of isolationism and denial of reality, it is simply wrong. National Security Network has already put together an outstanding “myth vs. fact” regarding the claims of the opposition of the UNCLOS. Namely, it exposes that much of the vitriol is baseless. Claims, for example, that ratification would constrain the United States or its Navy is combated by the fact that Secretary of State Hillary Clinton, Secretary of Defense Leon Panetta, and a host of other top U.S. brass all support ratification. Lest you think this is a partisan affair, so do five former Secretary of States all of which served under Republican Presidents including Henry Kissenger (Nixon), George Shultz (Reagan), James Baker III (George H.W. Bush), Colin Powell (George W. Bush), and Condoleezza Rice (George W. Bush). The Navy has been pushing for ratification for decades because it would give them a codified basis to traverse the world, guarding the shipping lanes and providing the assistance that makes them a global force.

This is not the only treaty that has come up against claims of violation of the United States’ sovereignty. What is worrying is that these claims seemingly have traction. After all, 31 of the 34 Senators who promised to block ratification did so in a letter circulated by Jim Inhofe (R-OK) in which the most biting intellectual and pragmatic criticism of the treaty was that were concerned that, “United States sovereignty could be subjugated in many areas to a supranational government that is chartered by the United Nations under the 1982 Convention.” As the Thomas Wright pointed out in his article for Foreign Affairs, however, most of the concerns of the Senators were addressed in the 1994 rewrite. As he suggests, “as written, UNCLOS would actually increase the United States’ economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman’s worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA [International Seabed Authority], others will be able to shape it to their own liking and to the United States’ disadvantage.” And do not worry about the socialist plot lurking around the corner. Claims that the ISA is really just a social front are combated, as Wright points out, by the fact that “during the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty.”

So opposition may be misguided, but why then is this a worrying trend in U.S. politics? It is because the ever present automatic opposition to international multilateralism represents a strong misunderstanding of what it means to live in today’s global world. Since the end of the Second World War, the United States has been a leading member in constructing a liberal (in the classical sense) international order built on a rules-based system that benefits the establishment of an international free market. Backtracking on the order that established the current international regime would bring the United States back to the harmful position of isolationism. If the U.S. wants to recover from the current economic woes the answer is not to hide behind convenient calls of sovereignty but to recognize the global nature of the modern economy and establish international policy that maximizes American competitiveness abroad. The U.S. can do this, for example, by ensuring a legal basis for free passage through the straits of Hormuz, providing a framework for negotiating territorial disputes, and, as Marvin E. Odum, President of Shell Oil pointed out, “the Convention establishes a process through which Parties to the treaty can establish internationally-recognized claims over the resources in their extended continental shelf. Without this high degree of legal certainty, any future claims to oil and gas resources of the extended shelf would be vulnerable to legal challenge or subject to dispute.”

What opponents do not seem to realize is that the United States does not own the sea. Yes, The U.S. has the strongest Navy and are miles ahead of other national competitors. The treaty, as Leon Panetta and the other testifying military personnel suggested would strengthen that position by codifying customary law on free navigation of the open seas. Codification is an important step because it helps develop pre-established guidelines for action taking it from nebulous customary law to actual words on paper. It makes little sense to establish and construct an international order that benefits The U.S.’s liberal ideals if it fails to abide by them especially in an area as uncontroversial as maritime law. By the very definition of sovereignty, asserting U.S. sovereignty does not cover the entire globe. Quite simply, you do not get to claim sovereignty to do whatever you want based merely on perceived power. This is especially important because of the assumed lessons taught us previously about presuming American supremacy. The U.S. leads by example, not by exception, even if the U.S. is exceptional.

This has important consequences. Take, for example, the brewing territorial disputes in the South China Sea. By encouraging multilateral discussions based on prior established ground rules, the world can hopefully avoid armed confrontation as rising powers try to delineate previously contested borders. As Thomas Wight writes in Foreign Affairs, “The United States should not take sides in other countries’ disputes, but it can and must insist upon a strong regional framework to ensure that a rising China does not destabilize the status quo.”

As the five former Secretaries of State wrote, “The continuing delay of U.S. accession to the convention compromises our nation’s authority to exercise our sovereign interest, jeopardizes our national and economic security, and limits our leadership role in international ocean policy…” This addresses perhaps the most coherent of claims against ratification of the UNCLOS. As Portman and Ayotte wrote in their letter of opposition, “the terms of the treaty are not only expansive, but often ill-defined.” This is true and many of their concerns on particular items within the treaty are valid. But like all laws, there is a development process. Laws develop as they are implemented, clarified, applied, amended, revoked, vetoed and voted upon. And, as Sec. Panetta pointed out, “If we are not at the table, then who will defend our interests?” After all, the United States would not want to seem lost at sea on this issue.

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So Sue Me: Kiobel v. Royal Dutch Shell and the Implications of Reparations

In Ben Kurland on March 2, 2012 at 4:36 pm

There is a long standing debate in human rights law as to the effectiveness of enforcement mechanisms. As many point out, international regimes often have very few means at their disposal to back up the law and actually get the bad guys. Effectiveness itself can be considered a loaded term academically because it can contain several notions of what it means to be effective. It depends on whether your goal is punishing offenders, truth and reconsolidation, or the restructuring of a broken system.

There is a significant avenue of effectiveness that is undergoing serious development: reparations. This means the ability for human rights victims to actually receive compensation of damages for their loses. For example, within the International Criminal Court’s (ICC) founding document, the Rome Statute, article 75 states, “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.” This manifested itself in the Trust Fund for Victims which aims to bring reparations and general assistance to victims of crimes under the ICC’s jurisdiction.

While Human Rights law is often seen as belonging to the realm of international institutions, like the ICC, there is an interesting parallel under development in domestic courts and specifically the United States. Last Tuesday, the United States Supreme Court heard the case Kiobel v. Royal Dutch Shell. Kiobel is Esther Kiobel, the wife of one of the “Ogoni Nine” who were executed by hanging in 1995 along with Nigerian environmental and indigenous rights activist Ken Saro-Wiwa. She is suing Royal Dutch Shell, on behalf of a group of similar Nigerian nationals, alleging that the company aided and abetted the Nigerian government in the torture and extrajudicial killing of their relatives. This case has intense implications for U.S. domestic human rights law and involves serious questions about the development of human rights law in general.

The legal question of significance in this case is whether corporations are liable for torts committed in the violation of international law. This is a packed question so I will break it down.

At the crux of the argument is the Alien Tort Statue (ATS) (28 U.S.C. § 1350). Adopted in 1789, it has perplexed legal scholars and judges since for the mere fact that its sweeping impactions are only matched by its ambiguity. It is one line long and reads, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  There are several interesting pieces to this minute statute. Under its auspicious, aliens (non-U.S. citizens not extra-terrestrials) are allowed to file civil suits in the U.S. for violations of the “law of nations”. The statute neither defines who can be sued nor does it elaborate on what counts as a “violation of the law of nations”.

Under this statute in 1980, the Court of Appeals for the 2nd Circuit decided in Filártiga v. Peña-Irala that a national of Paraguay could sue another national of Paraguay for an act of torture committed in Paraguay in U.S. civil court. Filártiga was the family of seventeen-year-old Joelito Filártiga who sued Américo Norberto Peña-Irala, the then Inspector General of Police in Asunción, for Joelito’s kidnap, torture, and murder in 1976. The court found that it had subject matter jurisdiction (i.e. the right to hear the case) because, “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” [Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)]

This was a case between individuals, however. No international or domestic court has found that a corporation can be held accountable for human rights violations. Individuals within corporations can be found liable, but not the corporations themselves. As even the Nuremburg judgment states, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The majority opinion of the Court of Appeals for the 2nd Circuit which originally dismissed Kiobel’s suit even cited this line as a reason why they could find that, “the principle of individual liability for violations of international law has been limited to natural persons — not “juridical” persons such as corporations — because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.”

Where is the catch? As many will remember from the public outcry, the Supreme Court recently found in the Citizens United v. Federal Election Commission (No. 08-205) that corporations are individuals enough to receive the protection of the First Amendment when it comes to campaign financing. Now the question at hand seems to be: if corporations are individual enough to have the protection of free speech, are they individual enough to be sued for human rights violations? If so, they will then be liable, under the ATS, for civil litigation by aliens for crimes committed abroad.

The reason this is so important for international law as a whole is because U.S. Courts are effective and do have the means to enforce their decisions where international courts fall short. For example, the Court of Appeals for the 9th Circuit found that the estate of ex-Filipino dictator Ferdinand Marcos was liable for acts of torture, summary execution, and disappearances that were committed by his order or with his knowledge in Hilao v. Estate of Marcos (No. 95-16779). Why is this case especially important? The victims in the case actually got checks in the mail. So, if the Supreme Court finds in favor of Kiobel it would significantly expose large corporations to civil litigation and most of all the recovery of damages.

The debate goes both ways. Those arguing that corporations should be liable emphasize that it is important that these companies be held responsible for their actions. As Professor Oona A. Hathaway of Yale University points out, “there is usually no recourse available in the country where the abuses took place, often because the government participated.” As Susan Farbstein and Tyler Giannini of Harvard Law School claim, “In the defendant’s view, even a corporation that decided to establish a torture center to assist a dictatorship, or began trading slaves for profit, could not be held liable.” For proponents, human rights abuses are not isolated to individuals but often corporations either cooperate or commit violations themselves. It is important than in the interest of stopping such violations and recovering damages that there is an effective court mechanism to litigate such abuses.

On the other hand some, in the words of the Cato Institute’s Ilya Shapiro, argue, “Congress never gave U.S. courts the power to entertain lawsuits alleging corporate malfeasance involving foreign actors abroad.” The Constitution gives Congress the power to determine the extent of the Court’s jurisdiction. Allowing the Court to expand its own jurisdiction, according to Shapiro, would amount to a “democracy gap” which would be particularly problematic in such cases because, “foreign affairs…are appropriately the province of the political branches.” In the classical sense, international law is the realm of states with each state deciding by contract (treaty) which rules it would submit to in the international system. This according to Shapiro is the proper understanding of “the law of nations” as it would have been defined at the adoption of the ATS in 1789. International Human Rights law which represented an extension of international law to the protection of the individual rather than the state did not develop until the aftermath of World War II. Simply put, “the law of nations” did not apply to corporations in Congressional thought circa 1789. There is also the argument that allowing such lawsuits would lead to a huge influx of cases essentially cramming the U.S. judicial system. Just look at the backlog of the European Court of Human Rights.

Now, I do not really have the legal background to call this case strictly on its merits. I also do not want to engage in guessing at the individual tenor of each justice and which way they may vote. Although, after observing the justices during oral arguments Tuesday, Lyle Denniston of the SCOTUSblog.org seemed to draw a particularly pessimistic outlook if you are in favor of corporate liability saying, “a majority of the Justices looked notably unconvinced.” As but a lowly Masters student in International Relations I can merely comment on the implications this case has on international relations and leave the law aside.

First of all, if the court were to side with Kiobel, it would significantly increase corporate liability globally. Corporations are the big jackpot when it comes to civil suits because often times they are the ones with the coffers to pay up. If an avenue of litigation were to be made available in a court with the means to effectively award damages, like the United States, it would be a huge victory for those seeking reparations for human rights violations. Companies would in fact have to be more vigilant of their practices abroad especially in weak states or states that participate in human rights violations where they would formerly have been effectively immune. The argument that allowing such cases would cause huge backlogs is also fairly weak. These sort of large class action law suits are not easily put together. It requires a lot of time, money, and effort which frankly not many can coordinate. Also take into account that most cases get solved out of court in settlements and rarely see an actual trial. The incentives to settle will still remain the same.

A decision for Kiobel would present several challenges to the foreign policy of the United States. While the Federal government did submit an amicus brief on behalf of Kiobel, there can be little doubt that such law suits would severely limit the federal government’s ability to operate in such situations. This could either be good or bad considering your view of the role of politics in law. The fact remains is that allowing foreign nationals to bring such suits in domestic courts can be seen as a violation of another country’s sovereignty. The practice of comity dictates that states are supposed to respect each other’s laws, judicial decisions, and institutions. Allowing such law suits without a mechanism like the ICC’s “unwilling or unable” restriction would certainly be a violation of comity (according to article 17 of the Rome Statute the Court cannot accept a case unless “the State is unwilling or unable genuinely to carry out the investigation or prosecution”). As Justice Stephen G. Breyer pointed out during oral arguments, “there is no United States Supreme Court of the World.”

So, where does that leave us in the end of the analysis? Like most cases, the Supreme Court will most likely try to decide somewhere in the middle on this case; neither granting full immunity to companies nor placing itself as the Supreme Court of the world. What form these restrictions will take I do not know. I am not a lawyer and even if I was I cannot read minds let alone nine of them. In the end I can only suggest that the court establish corporate liability but create legal stipulations as to the types of crimes that can be brought and the level of material connection to the United States needed to justify jurisdiction. If such provisions are met, the world may have a new effective way to recover damages for human rights victims.

-Ben Kurland

Welcome to the Post-9/11 Era

In Ben Kurland on January 9, 2012 at 5:40 pm

Much has been made over America’s military role in the world in the past decade as a result of the attacks on the Twin Towers. Surely the wars spawned by the attacks have defined the past decade both tactically and strategically. It saw the rebirth of counter insurgency, a new understanding of intervention, and an all-around reexamination of the role of war in modern society. It seems more ink has been spilled over the simple numbers 9 and 11 than I care to create an analogy for. Call the era what you may (the 9/11 era, the era of American interventionism, etc.) the simple fact is that the 2000s made much ado of American military might.

Last Thursday, however, President Obama travelled to the Pentagon to jointly announce with Defense Secretary Leon Panetta a new outlook for the American military in the 21st century. The report, called Sustaining U.S. Global Leadership: Priorities for 21stCentury Defense, says many things but the most notable and the point most noted by news media and politicians alike is that the U.S. will seek to reduce in military budget over the course of the next decade. Military spending could be cut by as much as $450 billion over the next decade. Additionally, automatic budget cuts of $500 billion are called for after Congress’ Joint Budget Committee failed to come to an agreement in November (although they will probably find a loop hole).

We still do not know exactly where the cuts will come from but there are safe bets conventional troop numbers will be effected as well as speculation surrounding nuclear forces, R&D, health and benefits, or as the President outlined, “As we look beyond the wars in Iraq and Afghanistan – and the end of long-term, nation-building with large military footprints – we’ll be able to ensure our security with smaller conventional ground forces. We’ll continue to get rid of outdated Cold War-era systems so that we can invest in the capabilities we need for the future, including intelligence, surveillance and reconnaissance; counterterrorism; countering weapons of mass destruction; and the ability to operate in environments where adversaries try to deny us access.”

There are several elements to this statement that indicate what I have suggested in the title of this article, namely that we are now entering the beginning stages of the post-9/11 era. What we saw after 9/11 was a surge in the willingness to commit large numbers of forces to spots around the world perceived to be in accordance with our liberal values of spreading democracy, freedom, etc. Troop numbers and the size of the army and marines surged especially after the adoption of COIN theory in both Iraq and Afghanistan. This was in line with the tenets of COIN which called for large numbers of soldiers to commit to countering a hard to find and wily enemy.

We are moving away from this thinking, however. With budgetary concerns being brought to the foremost in the American politic, it seems even the military will have to do its part in reducing costs. What this means is that the United States’ “big footprint” tactics which also happen to be quite expensive will probably fall by the wayside. Whether or not COIN turns out to work in Afghanistan or not, more likely than not we have seen the United States employ it unilateral for the last time for at least the short run.

So, what will take its place? What will the post-9/11 era in US military strategy look like? It may actually look more familiar than you think. Speaking speculatively, I think you will see the adoption in effect (if not in name) of two doctrines that proceeded the attacks on 9/11; namely the Powell and Rumsfeld doctrines.

First is the Powell Doctrine or simply that the United States will only commit forces under strictly defined parameters after having answered several vital questions like “is there a vital national interest at stake?”, “have all non-lethal alternatives been exhausted?”, and “do we have broad international support?” There are more questions but you can get the gist from these few. The re-adoption of this mind-set is already underway. It is a direct genesis of having committed American forces too deeply and at too much expense to too many wars with too little support. Do not misunderstand me; the United States’ military will maintain a far advantage over any other military in the world. Even with tsuch being the case, it simply will not commit to the same level of exertion as was seen in Iraq and Afghanistan. Frankly, this might not be a bad thing. If I may place it in a dual choice; the U.S. military will do better to fight smarter in the short-run rather than harder.

This leads me to my second principle, the Rumsfeld Doctrine. This may be quite shocking for those familiar with Donald Rumsfeld, the now mostly disgraced former Secretary of Defense who over saw much of the early mismanagement of the two wars that have brought the United States to this crossroad. What I am emphasizing, however, is not the need to mismanage future engagements (as a matter of fact I will make the bold statement that the United States should try to avoid such follies) but instead highlight some of Rumsfeld’s practical, pre-9/11 ideas. Namely, that the United States should commit to a highly mobile, technologically advanced force relying more on air support assisting a small, nimble ground force. In other words, the United States slims down, speeds up, and gets smart. We have seen a variation of this in the implementation and proliferation of drones. They are technologically advanced, highly integrated, relatively cheap, and mobile alternative to large scale, ground intensive troop deployments. They go places ground soldiers cannot, see things ground soldiers cannot, and can be lethal where ground soldiers cannot. Not to mention that they do not risk lives where the army does.

So, what does this have to say about the post-9/11 era? Ceteris paribus, the United States should reconsider these two approaches as a way to control costs while still meeting the challenges of a new era.

Is it time to repeal the Jackson-Vanik Amendment?

In Ben Kurland on January 4, 2012 at 12:10 am

Yes.

On December 16th at its Ministerial Conference in Geneva, the World Trade Organization (WTO) formally accepted Russia’s bid for accession after its initial application 18 years ago. The WTO is the world’s largest rules-based trade organization that sets out to liberalize trade policy of its members and provide a dispute resolution mechanism that, believe it or not, is quite effective. Russia is the world’s 11th largest economy by GDP. What does this marriage mean? It means that Russia will have to begin liberalizing its trade policy, open up its markets to foreign goods, and remove restrictive tariffs. Russian Economic Development and Trade Minister Elvira Nabiullina, for example, called the deal a win-win situation and estimated that WTO accession could benefit Russian industry to the tune of 2 billion U.S. dollars a year from the removal of barriers to Russian goods. At the same time, the international community wins because the lowering of trade tariff allows for better access by foreign imports in the Russian market allowing for increased sales and beneficial competition.

For a good, short summary of how compliance will affect Russian imports you can look here.

Where is the sticking point? For the United States, it is the Jackson-Vanik Amendment. Passed in 1974, the amendment prevents the United States from extending Most Favored Nation (MFN) status to any country that restricts freedom of emigration. It was aimed at the USSR which the United States believed was violating the rights of its Jewish population to emigrate through a “diploma tax.”

So, what’s the big deal? The problem is that since Jackson-Vanik is still on the books, it represents a violation of WTO rules. If the US does not graduate Russia from Jackson-Vanik and offer Russia Permanent Normal Trade Relations (PNTR), it would mean that Russia does not have to extend to the US all of its WTO commitments. This hurts US exports by putting them at a disadvantage in an increasingly open market. It is also worth mentioning that the exit fees levied on Jewish emigrants was lifted in 1991 when the USSR collapsed and became the Russian Federation. Jackson-Vanik is like one of those joke laws you can read about online that may or may not be true… you never know. The only problem is that it is real and has the potential to harm the US export sector.

Oh No, Not Another Blog Post on the Arab-Israeli Conflict

In Ben Kurland on December 27, 2011 at 11:53 pm

The other day I attended a discussion with the Palestinian General Delegate (Ambassador) to the UK, Professor Manuel Hassassian hosted by the International Affairs society at my University. The most disappointing part of the entire two hour rhetorical lecture was the tone of utter hopelessness buried deep in every point Prof. Hassassian made.

To my best attempt at a summation of his point, he claimed the Palestinian side of the conflict has engaged the UN to ask for recognition because of the Israeli side’s complete lack of compromise. He asserted that the US is biased and therefore worth disgracing at the UN. Then he readily admitted the need to re-approach both the actors he sought to embarrass in order to come to a final agreement.

It is my opinion that the failures of the current peace process are not the negotiating points currently on the table. These points are able to be overcome and outlines for agreements exist. In my opinion the failures are threefold and lie with the elite political actors on both sides: 1. neither side is willing to admit their own failures in the peace process, 2. both sides engage in demonization of the other side and blames the other side for the failure to come to an agreement, and 3. neither side is actually ready to actually compromise on any of the necessary issues.

Just take a look at the speeches made by Palestinian President Mahmoud Abbas and Israeli Prime Minister Benjamin Netanyahu at the UN when Mr. Abbas formally requested Palestinian statehood on September 23, 2011. I’ve put some quotes from each representative into the table below relating to the three failures I mentioned before. Both speeches are full of examples; I have only pulled out a few. Keep in mind, however, that both politicians are savvy enough to know their audience and change their rhetoric accordingly. You can still see a trend though.

Mahmoud Abbas Benjamin Netanyahu
1. neither side is willing to admit their own failures in the peace process “Over the past year we did not leave a door to be knocked or channel to be tested or path to be taken and we did not ignore any formal or informal party of influence and stature to be addressed. We positively considered the various ideas and proposals and initiatives presented from many countries and parties.” “…people say to me constantly: Just make a sweeping offer, and everything will work out. You know, there’s only one problem with that theory. We’ve tried it and it hasn’t worked.”
2. both sides engage in demonization of the other side and blames the other side for the failure to come to an agreement “But all of these sincere efforts and endeavors undertaken by international parties were repeatedly wrecked by the positions of the Israeli government, which quickly dashed the hopes raised by the launch of negotiations last September.” “The core issue here is that the Israeli government refuses to commit to terms of reference for the negotiations…” “The truth is that so far the Palestinians have refused to negotiate. The truth is that Israel wants peace with a Palestinian state, but the Palestinians want a state without peace. And the truth is you shouldn’t let that happen.”
3. Neither side is actually ready to actually compromise on any of the issues necessary. For the sake of this section, however, you have to remember that both sides are in front of the international community, they would never admit to not being ready to make concessions. You can see the hesitation, however, in the preconditions they put on returning to the negotiating table. Abbas only briefly mentions returning to negotiations once and even so with qualifications, saying, “Here, I declare that the Palestine Liberation Organization is ready to return immediately to the negotiating table on the basis of the adopted terms of reference based on international legitimacy and a complete cessation of settlement activities.” “It is neither possible, nor practical, nor acceptable to return to conducting business as usual…. It is futile to go into negotiations without clear parameters and in the absence of credibility and a specific timetable. Negotiations will be meaningless as long as the occupation army on the ground continues to entrench its occupation. “All these potential cracks in Israel’s security have to be sealed in a peace agreement before a Palestinian state is declared, not afterwards, because if you leave it afterwards, they won’t be sealed. And these problems will explode in our face and explode the peace.”

So what is my point? Merely that neither side is willing to establish a peace building process. Both are happy developing their own narratives which drive each side farther and farther apart. I mean to demonize neither side and, if the history of replies to blog posts about this conflict are any indication, I could very well be attacked as being both anti-Israel and anti-Palestinian. I am neither. I am merely recognizing an impasse when I see one.