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Legal opinion challenges PLO statehood bid : Palestinians risk losing their rights under the new bid, as representation is called into question, legal expert says.
Guy Goodwin Gill
25 Aug 2011
A legal opinion highlighting the challenges and risks facing the Palestinian people in their quest for statehood has been obtained by Al Jazeera, in the lead up to the Palestinian Liberation Organisation`s bid at the United Nations in September.
The opinion, written by Guy Goodwin-Gill, a professor of public international law at Oxford University and a member of the legal team representing Jordan`s government in `The Wall` case against Israel at the International Court of Justice in 2004, tackles the issues of Palestinian rights, representation, and the right of return, which may all be seriously affected by the outcome of the bid.
Al Jazeera`s Nour Samaha conducted an interview with Professor Goodwin-Gill to get a clearer picture of the dangers the Palestinian people may potentially face with the bid. His entire legal judgment on the problems with the current Palestinian bid for statehood can be accessed here.
How will the transfer of representation from the Palestinian Liberation Organisation (PLO) to a state terminate/lose the authority to represent the Palestinian people?
What we have here, it seems to me, is a moment in which certain matters have just not been thought through. Historically, the PLO has been the sole, legitimate representative of the Palestinian people, internationally and within the United Nations [UN]. Now it is to be the state. Who, though, is the state, and what are the democratic links between those who will represent the state in the UN and the people of Palestine? An abstract entity – a state – is proposed, but where are the people?
Why would the creation of a state not represent Palestinian rights?
Traditionally, a state for the purposes of international law presupposes territory, population, government and the capacity to enter into international relations. But we have moved beyond that, particularly where representation in the UN is concerned. Today`s world expects more – that a state should be representative of the people for whom it speaks and directly accountable to them.
One way to establish representative democracy is by elections, though elections also should meet certain international standards. But states which are imposed, top-down, or which are crated without an exercise of the popular will are, by definition, not representative. And as recent events remind us, the lack of representative and accountable government is a sure-fire recipe for disaster.
If the `state of Palestine` is meant to replace the `PLO`, does this not just mean a transfer of authorities from one to the other? Similar to an official name-change?
As I understand the present proposal, the state of Palestine may replace the PLO as the representative of the people of Palestine at the United Nations. But we need to ask, what is the legitimate basis for such representation? I am not saying that it cannot be done, for of course it can. But only that I do not see the hallmarks of democratic, representative and accountable statehood – something in turn which depends on an exercise of the popular will. Shouldn`t this come first?
How does the idea of Palestine statehood affect the role of the Palestinian National Council, and the Palestinian National Charter?
These are internal constitutional matters on which I am not competent to judge, but which again would seem to engage the will of the people.
You tackle three specific issues; constitutional, statehood, and representation. Starting on the issue of constitutional, you are saying the Palestinian Authority (PA) is a subsidiary body, formed by the PLO, as an administrative entity, and that `it does not have the capacity to assume greater powers, to ‘dissolve’ its parent body, or otherwise establish itself independently of the Palestinian National Council and the PLO`. What does this mean, both for the quest for statehood, and subsequently for the Palestinians if statehood is granted?
On the legal standing and capacity of the Palestinian Authority, I was applying non-controversial legal principles regarding the powers and competence of subsidiary bodies. Does the PA have the power to move the issue of statehood ahead, and if so, what are the origins and parameters of that power? Have the people of Palestine, through their representative - the PLO - granted such power? I recognise that there is an urgent, pressing need for statehood, particularly in the face of the intransigence of other parties, but I am also concerned that the essentials of modern statehood – democracy, representative government and accountability – may be sidelined, if not sacrificed, perhaps to the long-term disadvantage of the people at large.
One issue here is that the majority of Palestinians are refugees living outside of historic Palestine, and they have an equal claim to be represented, particularly given the recognition of their rights in General Assembly resolution 194 (III), among others. It is not clear that they will be enfranchised through the creation of a state, in which case the PLO must continue to speak for their rights in the UN until they are implemented.
With regards to statehood, you say that as an observer state in the UN, Palestine would `fall short of meeting the internationally agreed criteria of statehood`, which would have serious implications for Palestinians at large, especially for the diaspora. How so?
What concerns me is that insufficient attention has been given so far to representation of the Palestinian people at large – that is, to the diaspora also, for whom both self-determination and the right of return are basic human rights and crucial elements in national identity.
With regards to representation, you state that the `PLO`s mandate thus encompasses the totality of issues arising from the continuing displacement of Palestinians and the struggle for self-determination – this includes, among others, the questions of return and compensation`. In what way will the creation of a state challenge this?
I`m afraid I will end up repeating myself – the question is, whether a state will in fact be truly representative of the popular will of all the people of Palestine, or whether the change in representation will in fact undermine their ability to claim their rights.
Who has your opinion been presented to, and when were they made aware of the issues you highlighted?
I understand that the Opinion has been given to all relevant officials of the PLO and party leaderships concerned with the diplomatic initiative on statehood. Obviously, such a decision to change the form of representation in the United Nations so dramatically is a matter which concerns all the Palestinian people. For this reason, I am happy that Al Jazeera are publishing it in full, as this will allow the proper and extensive discussion and debate which these issues require.
Guy Goodwin Gill is a professor of public international law at Oxford University. His full legal opinion can be accessed here.
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