John Quigley Critique of Goodwin-Gill Legal Opinion on Palestine Statehood Bid

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Aug 31, 2011 Palestine-Israel
[Image from book cover of John Quigley.] [Image from book cover of John Quigley.]

John Quigley Critique of Goodwin-Gill Legal Opinion on Palestine Statehood Bid

By : Jadaliyya Reports

[The following critique by John Quigley was issued on August 28, 2011, in response to a legal opinion by Guy S. Goodwin-Gill on the Palestine statehood bid at the United Nations.]

To:        Interested parties
From:   John Quigley
Re:       Legal Opinion of Guy S. Goodwin-Gill on the representation issue
Date:   August 28, 2011
 
The Goodwin-Gill legal opinion provides no sound basis for not pursuing any of the initiatives contemplated for Autumn 2011 at the United Nations.
 
Para. 1: G-G says that he has been asked for an opinion not about UN membership but about the possibility of gaining recognition and observer-state status via appropriate resolutions that could be adopted by the UN General Assembly. That scope means that the opinion does not relate to the question of seeking UN membership, or to consequences that might flow from gaining UN membership. The opinion thus does not purport to have any relevance to the issue of UN membership. In particular, G-G is not giving an opinion on the issue of whether UN membership might hold advantages, and how the situation of UN membership would compare with the current situation as regards ability to promote the rights and interests of the Palestinian people.
 
The paragraphs on the “constitutional issue” (paras. 4 to 8) dealing with the status of the PA are not relevant to the issue the representation of Palestine at the international level. G-G is correct as to how the PA was constituted, but he does not explain any significance for representation of Palestine at the UN. By using the term “constitutional issue,” G-G inadvertently undermines his own argument. It is precisely a “constitutional,” namely an internal, issue for Palestine as to how and in what way the rights and interests of the diaspora will be ensured. It is not an issue at the international level. Institutional mechanisms to ensure a voice for the refugees need to be maintained, whether that is by their being nationals of Palestine or some other mechanism. But that is an internal matter of governance.
 
Para. 8: G-G is suggesting that what is being done now is against the PLO. But it was the PLO that decided (1988 declaration of statehood) to constitute itself as the government of the State of Palestine, making clear that all Palestinians would be represented by it and that status as a state of the international community was being declared. The implication was that Palestine would function fully as a state, including as a member of the UN. The determination made at the time by the PLO was that for there to be any real protection for Palestinians there needed to be a state, even if in borders less than those of mandate Palestine. The PLO could not forever remain a national liberation organization. The statehood initiative thus is not an idea devised by the PA, rather the PLO project of 1988 is being pursued.
 
Para. 9: Here G-G says, incorrectly in my view, that Palestine is not a state. He seems to think that state under occupation is not a state. He ignores the widespread recognition of Palestine by other states. He ignores the practice of UN main bodies that treat Palestine as a state. He thinks that even if Palestine becomes a state observer (here again reflecting the fact that the G-G opinion does not purport to deal with UN membership) it will not really be a state. What he is saying in this paragraph is that becoming a state observer gains little but risks the representation of the refugees. An upgrade to state observer status – if that alternative is pursued -- would solidify the present international understanding that Palestine is a state. (It would make it very difficult for the ICC prosecutor to say that the international community is uncertain on the statehood of Palestine.)
 
Para. 10: G-G says the diaspora would lose its representation at the UN. I think it matters little to other states at the UN whether it is the PLO or the State of Palestine that pushes for respect of the rights of the Palestinian diaspora. G-G says this would be contrary to the will of the General Assembly. To pose the issue in this way is pointless. The GA accepted the PLO as the representative of the Palestinian people because that was what the organized Palestinian community was asking it to do. If it is now the State of Palestine that fulfills that role, the GA will accept that just as easily. It is not as if some violation of the will of the GA is occurring.
 
Paras. 11 to 17: Similarly, the GA is not going to try to impose on the Palestinian people who it is that represents them. The GA accepted the PLO in the 1980s. In 1988 the PLO constituted itself as the government of the Palestine State. The GA is not going to be concerned over this.
 
G-G writes as if the Government of Palestine will not be recognized at the international level as having legal capacity to promote the rights and interests of the Palestinian diaspora. This omission is the fundamental flaw in his document. He ignores the role that the Palestine State can play as promoter of the interests and rights of the Palestinian people, whether diaspora Palestinians are or are not nationals of the Palestine State. Palestine (like any other state in the world) has a “legal interest” (see Articles on Responsibility of States for Internationally Wrongful Acts, art. 48) in protecting individuals from violation of their rights. Palestine can pursue international remedies, or raise the issue at the diplomatic level in its capacity as a state of the world.

The concern of many is whether it will in fact do so, or whether it will promote the interests of those in the territory (WB/G) to the detriment of the interests of those outside. That is a matter of internal governance for Palestine, but not one that is relevant to representation of Palestine at the international level. To date, while there may be cause for concern, there is also indication that the interests of the diaspora will be promoted (Chairman Arafat did not cave on the issue of repatriation at Camp David 2000, despite pressure to do so.) The diaspora is not shy about making its voice heard. But again, this is an internal matter that does not relate to what status Palestine has at the international level. A Palestine State, particularly one that is a member of the UN, is better positioned to promote the rights and interests of the diaspora than is true of the PLO or PA. A Palestine State will be interacting with other states on a myriad of issues. It will do favors for other states. It can demand favors in return from other states. A Palestine state can pursue the prosecution at the ICC of Israeli officials for war crimes such as settlements in occupied territory, thereby putting pressure on Israel on an issue that has been the principal obstacle to a peace settlement. Palestine will have leverage that is presently lacking.
 
The G-G opinion is limited to the issue of enhancement to state observer status, but even in this limited scope it makes no valid arguments. Nothing in it should be considered an impediment to pursuit of the contemplated initiatives at the UN.


[Click here to read the original legal opinion by Guy S. Goodwin-Gill.]
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Jadaliyya Reports By :
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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