[The following legal opinion on the Palestine statehood bid was issued by Guy S. Goodwin-Gill on August 10, 2011.]
Opinion
Re The Palestine Liberation Organization, the future State of Palestine, and the question of popular representation
By Guy S. Goodwin-Gill Senior Research Fellow, All Souls College, Oxford--Barrister
Introduction
- I been asked for my opinion on certain issues relating to popular representation (that is, the representation of the views of the Palestinian people) which may arise incidentally to the current proposal to seek recognition of the State of Palestine and observer status for the State in the United Nations.
- This opinion seeks only to identify problems potentially affecting the right of the Palestinian people to self-determination and the manner by which that right can or may be exercised, due account being taken of the will of the people. The purpose is simply to flag the matters requiring attention, if a substantial proportion of the people (having a particular interest in, among others, the right of return) are not be to be accidentally disenfranchised.
- I am advised that one possibility being debated involves the replacement of the Palestinian Liberation Organization (PLO) and its ‘substitution’, within the United Nations, by the State of Palestine as the legitimate representative of the Palestinian people. In my view, this raises, first, what I will call ‘constitutional’ problems (in that they engage the Palestinian National Charter and the organization and entities which make up the PLO); secondly, the question of the ‘capacity’ of the State of Palestine effectively to take on the role and responsibilities of the PLO in the UN; and thirdly, the question of popular representation.
The ‘constitutional’ issue
- The PLO was established in 1965, bringing together various groups united initially for the purpose of liberating Palestine. Its governing instrument is the Palestine National Charter. The PLO’s nominal legislative body is the Palestinian National Council, which currently comprises some 669 members, of whom some 483 represent the diaspora; since 1996, 40% of the membership has been directly elected. In practice, ‘political power’ resides with the Executive Committee, the eighteen members of which are elected by the Palestinian National Council.
- When the Palestinian National Council is not in session, policy is determined by the Palestinian Central Council, whose 124 members are drawn from the Executive Committee, the Palestinian National Council, and other Palestinian organisations.
- Following the Oslo Accords of 1993, the PLO, with the subsequent endorsement of the Palestinian National Council, established the Palestinian Authority as a short-term, administrative entity charged with the limited governance of those areas of the West Bank and Gaza which were placed under Palestinian responsibility. Its mandate, originally five years, was extended in 1998. The Palestinian Authority thus has limited legislative and executive competence, limited territorial jurisdiction,[1] and limited personal jurisdiction over Palestinians not present in the areas for which it has been accorded responsibility.
- Within the constitutional structure of the PLO and the governance of the Occupied Palestinian Territory, therefore, the Palestinian Authority is a subsidiary body, competent only to exercise those powers conferred on it by the Palestinian National Council. By definition, it does not have the capacity to assume greater powers, to ‘dissolve’ its parent body, or otherwise to establish itself independently of the Palestinian National Council and the PLO. Moreover, it is the PLO and the Palestinian National Council which derive their legitimacy from the fact that they represent all sectors of the displaced Palestinian people, no matter where they presently live or have refuge.
- In addition, the possibility of reconfiguring the self-determination unit by substitution, and without the consent of the competent institutions, raises the ‘external’ question of its consistency with the long-standing acceptance of the PLO, by the UN and the international community at large, as the sole, legitimate representative of the Palestinian people; see further below, paragraphs 11-17.
The ‘statehood’ issue - Until such a time as a final settlement is agreed, the putative State of Palestine will have no territory over which it exercises effective sovereignty, its borders will be indeterminate or disputed, its population, actual and potential, undetermined and many of them continuing to live under occupation or in States of refuge. While it may be an observer State in the United Nations, it will fall short of meeting the internationally agreed criteria of statehood, with serious implications for Palestinians at large, particularly as concerns the popular representation of those not currently present in the Occupied Palestinian Territory.
- The significant link between the Palestinian National Council and the diaspora has been noted above in paragraph 4. They constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their representation in the UN, it will not only prejudice their entitlement to equal representation, contrary to the will of the General Assembly, but also their ability to vocalise their views, to participate in matters of national governance, including the formation and political identity of the State, and to exercise the right of return.
The ‘representation’ issue - A number of elements of international and UN practice must be recalled. First, the United Nations (the General Assembly, the Security Council, the International Court of Justice) and Member States of the UN, including Israel, accept that the Palestinian people are entitled to self-determination.
- The General Assembly has also repeatedly stressed that, ‘the Palestinian people is the principal party to the question of Palestine...’,[2] and that the Palestine Liberation Organization is, ‘the representative of the Palestinian people’.[3]
- Moreover, it is the Palestinian people who possess the inalienable rights to self- determination, national independence and sovereignty, and the right to return to their homes and property from which they have been displaced and uprooted.[4]
- In the practice of the UN, neither the Palestinian people nor the right to self- determination is territorially limited to the space currently referred to as the Occupied Palestinian Territory. Even though it may be challenging to identify ‘the people’ in this context, at least pending a viable and effective system of registration for the purposes of voting or referendum, the intent of successive General Assembly resolutions has been clearly to include both Palestinians in the Occupied Palestinian Territory, and those who remain displaced in other countries.
- Secondly, the PLO is accepted by the United Nations and by the international community of States[5] as the sole representative of the Palestinian people, and in this capacity it has been accepted as an Observer by the UN and its specialized agencies.
- As the sole representative of the Palestinian people, both inside and outside the United Nations, 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 highlighted in UNGA resolution 194 (III), and the question of national boundaries, which is implicit in SC resolution 242. These, necessarily, are matters for the Palestinian people as a whole, irrespective of their present place of residence.
- The exercise of the right to self-determination is closely linked to ‘representation’ and the right of the people to make known their views. Article 21(3) of the 1948 Universal Declaration of Human Rights provides in straightforward language that, ‘The will of the people shall be the basis of the authority of government’. An inherent aspect of the principle of self- determination today is representative and democratic government, and it is increasingly recognized that there is an essential link between the State (for example, as a member of the United Nations), and the people it claims to represent.[6] The best evidence of that link – representative government – is through elections which are based on the enfranchisement of the people at large.
Conclusion - The right of the Palestinian people to self-determination has been clearly recognized as a matter of international law.[7] The peaceful and effective exercise of this right in accordance with the UN Charter has further been recognized as requiring the representation of the Palestinian people in the work of the United Nations.
- In my opinion, current moves to secure recognition of statehood do not appear to reflect fully the role of the Palestinian people as a principal party in the resolution of the situation in the Middle East.
- The interests of the Palestinian people are at risk of prejudice and fragmentation, unless steps are taken to ensure and maintain their representation through the Palestinian Liberation Organization, until such time as there is in place a State competent and fully able to assume these responsibilities towards the people at large.
GUY S. GOODWIN-GILL
BLACKSTONE CHAMBERS
BLACKSTONE HOUSE
TEMPLE, LONDON EC4Y 9BW
10 August 2011
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[1] At present, the Palestinian Authority does not in fact exercise effective government even in some of the areas assigned to it.
[2] UNGA res. 3210 (XXIX), 14 October 1974; UNGA res. 3236 (XXIX), 22 November 1974, §4; UNGA res. 3375 (XXX), 10 November 1975.
[3] UNGA res. 3236 (XXIX), 22 November 1974.
[4] UNGA res. 3237 (XXIX), 22 November 1974.
[5] See, for example, League of Arab States, Seventh Arab League Summit, Rabat, Morocco, ‘Resolution on Palestine’, 28 October 1974, §2, affirming the PLO as, ‘the sole legitimate representative of the Palestinian people’.
[6] Note also the reference to a government representing ‘the whole people’ in UNGA res. 2625 (XXV), 24 October 1970, ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’.
[7] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 118.
[Click here for a response to this legal opinion by John Quigley.]