Guy S. Goodwin-Gill Legal Opinion on Palestinian Statehood Bid

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Aug 31, 2011 Palestine-Israel
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Guy S. Goodwin-Gill Legal Opinion on Palestinian Statehood Bid

By : Jadaliyya Reports

[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

  1. 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.
  2. 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.
  3. 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
     
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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
  9. 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.
  10. 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
  11. 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.
  12. 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]
  13. 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]
  14. 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.
  15. 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.
  16. 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.
  17. 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
  18. 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.
  19. 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.
  20. 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

-----------------------------------

[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.]

 
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Jadaliyya Reports

Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 

[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412