26 Aug The Pro-Palestinian Case Against Palestinian Statehood
This legal opinion by Oxford prof Guy Goodwin-Gill has been drawing some attention in recent days. It argues that the planned campaign to establish a Palestinian state this fall at the United Nations has a number of policy and legal pitfalls that could work against the interests of most Palestinians. Here is an excerpt from an interview with Al-Jazeera:
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.
I’m not sure I buy Goodwin-Gill’s definition of “modern statehood” as requiring “democracy, representative government, and accountability.” But he does raise a fascinating problem and challenge for the Palestinian statehood movement. What will happen to the Palestinian diaspora after the PLO is replaced by a Palestinian state?
As I understand the conclusion of this opinion, Professor Goodwin equates self-determination with a popular referendum on the question of statehood. First, it seems strange this opinion makes no mention of the 1988 Palestinian Declaration of Independence. Whatever the weight of the declaration, the declaration should be addressed in any opinion on the statehood question. Regardless, the PA or PLO is not seeking another declaration of independent statehood, but a full-membership into the U.N. as a member state. So, Professor Goodwin seems to get it wrong when he questions whether the PA “has the power to move the issue of statehood ahead?” primarily because the PA is not making motions for statehood per se, only membership to the U.N. and the PA has the authority to conduct foreign affairs. The PLO is/was not the only liberation organization denoted to be the “sole legitimate representative” of a people by the U.N. For instance, SWAPO in Namibia and PAIGC in Guinea Bissou (which declared an independent state before winning a war of independence) negotiated, or unilaterally determined the fate of people, without a popular referendum or plebiscite. Additionally, the Kosovo People’s Assembly that declared independence from Serbia did not have the support… Read more »
The interview fails to address in length the most significant legal issue, in my eyes, brought about in Goodwin-Gill’s written opinion. That is what Goodwin-Gill refers to as the “statehood issue”: “Until such 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.” This new-found state will be speaking in two different voices. One voice is that of Abbas and the PLO in the West Bank and the other is that of Hamas in Gaza. The latter organization still does not recognize past international agreements with Israel; it still does not accept the International community’s prerequisites set by the quartet; it still refuses to allow the red cross to visit Gilad Shalit in violation of the Geneva Conventions; and it still fires rockets on civilian population in the south of Israel in violation of basic international humanitarian laws. So… Read more »
I notice that Goodwin-Gill’s opinion frequently refers to UN General Assembly resolutions. Are these considered to be international law?
The Professor talks about elections and representation of the Palestinians etc. The UN established its presence in Kosovo in order to help the administration. It has had presence in elections before, no reason why this time too, after statehood popular elections be held till which point the UN or any other body be given the responsibility to govern. could this possibly lead to neo-colonialism? maybe. But that would have to be countered on its own merits. He then mentions the problems with the diaspora and their lack of voice. Professor since when did all parties within a country get to voice their respective opinions either internationally or domestically? but that’s beside the point. you mention “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.” whether a state is truly representative of the popular will of the people is not a criteria either under international law or relations to determine statehood. The fear that a change in representation might undermine the people’s ability to claim their rights is not reason enough for… Read more »
Perhaps too much emphasis is placed on the existence of democratic institutions and representative government to satisfy the existence of statehood – desirable for statehood, perhaps, but surely not an essential legal criteria.
Is the diaspora and right to return really an issue when the Palestinian Declaration of Independence accorded automatic citizenship to all Palestinians in a future state of Palestine?