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DE KWESTIE VAN DE STAAT PALESTINA - 2
Bijgaand artikel sluit aan bij de door het NPK op 3 augustus ingenomen positie, zoals opgenomen in How Palestinian Authority’s UN "statehood" bid endangers Palestinian rights (Ali Abunimah 8-8-2011).
UN statehood bid 'threatens Palestinian rights' Ma'an 30-8-2011
En Badil
The Palestinian team responsible for preparing the United Nations initiative in September has been given an independent legal opinion that warns of risks involved with its plan to join the UN. An initiative to transfer the Palestinians' representation from the PLO to a state will terminate the legal status held by the PLO in the UN since 1975 that it is the sole legitimate representative of the Palestinian people, according to the document.
Crucially, there will no longer be an institution that can represent the inalienable rights of the entire Palestinian people in the UN and related international institutions, according to the brief.
Representation for the right to self-determination will be gravely affected, as it is a right of all Palestinians, both inside and outside the homeland, the opinion says. A change in status would severely disenfranchise the right of refugees to return to their homes and properties from which they were displaced.
The seven-page opinion (*), obtained by Ma'an, was submitted to the Palestinian side by Guy Goodwin-Gill, a professor of public international law at Oxford University and a member of the team that won the 2004 non-binding judgement by the International Court of Justice that the route of Israel's wall was illegal.
The Palestinian team, headed by Saeb Erekat, has been preparing an initiative to replace the PLO at the UN, substituting it with the State of Palestine as the representative of the Palestinian people.
An actual state cannot be created in September, as Israel's occupation continues, so the debate is focused on whether membership should be requested from the Security Council or if the General Assembly should be asked to grant recognition of a state as an "observer," a status that conveys less than full UN membership.
Yet, almost no considerations have been made in terms of the dramatic legal implications for Palestinian rights which this legal brief says will occur should the PLO lose its status.
The brief is to "flag the matters requiring attention" so that a substantial amount of people who have interests in, for example, the right of return, are not "accidentally disenfranchised."
First of all, the prospect of substituting the PLO with the State of Palestine raises "constitutional" problems in that they engage the Palestinian National Charter and the organization and entities which make up the PLO, according to the brief. Second is "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 opinion says.
The Palestinian Authority, which was established by the PLO as a short-term, administrative entity, "has limited legislative and executive competence, limited territorial jurisdiction, and limited personal jurisdiction over Palestinians not present in the areas for which it has been accorded responsibility," the brief points out.
It notes that the PA "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."
The PA cannot "dissolve" its parent body or establish itself independently of the PNC and the PLO, the report also says. Moreover, it is the PLO and the PNC 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."
Particularly crucial are the potential implications for Palestinians in the Diaspora. The majority of Palestinians are refugees, and all of them are represented by the PLO through the PNC.
"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 ... 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 legal briefing says.
Karma Nabulsi, a former PLO representative and now a professor at Oxford University, says she is familiar with the document. Palestinian officials have also seen the legal opinion, she says.
"Without question, no Palestinian will accept losing such core rights for such a limited diplomatic initiative in September," she says. "First, we will not have liberated territory upon which to establish a State. But in losing the PLO as the sole legitimate representative at the UN, our people immediately lose our claims as refugees to be part of our official representation, recognized by the world.
"This is an urgent and critical issue for our whole people. We must ensure our representatives advance our rights in international forum, not weaken or endanger them. Of course now that the legal dangers have been raised so fully, I am confident the initiative will protect the status of the PLO as sole legitimate representative in the UN in order to advance the rights" of the Palestinian people.
Nabulsi says Goodwin-Gill opinion has defined and clarified the "red lines" in legal terms.
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"The PLO is the representative of the people, not just a part of the people; the PLO is the architect and creator of the Palestinian Authority; that any change in who represents the people or a part of the people requires an expression of the popular will and international recognition," she explained.
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"Neither the Palestinian Authority nor the PLO can alter the role and structure of the PLO without the agreement of the entire Palestinian people. In any case, the PLO and the Palestinian people were not aware that by losing the PLO as representative at the UN, it would create such legal dangers. Now they are."
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She concluded: "Obviously, we need clarity from the PLO on this critical issue, and it is important that the Palestinian public everywhere, especially the refugees in the [Diaspora], are given concrete reassurances that representation of their core rights -- on both representation and right of return -- will remain untouched in September."
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Legal opinion challenges PLO statehood bid, Guy Goodwin Gill 25-8-2011
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.
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