Rights do not depend on representation
Does the Palestinian UN bid threaten refugee rights?
Ma’an news agency
BETHLEHEM As the leadership in Ramallah prepares to approach the UN for membership in September, it is also fighting back charges that its initiative is shortsighted and even a threat to Palestinian refugees.
Last week Ma’an published for the first time findings by an international law expert that the gambit could alter the PLO’s status as the sole representative of the Palestinian people. The legal opinion, by Guy Goodwin-Gill of Oxford University, argued that the Diaspora could be left disenfranchised if this happened.
Now Goodwin-Gill’s legal opinion is the focus of debate, with a number of experts arguing that it is too limited in scope to judge the UN initiative. Ma’an asked four more international law scholars to weigh in.
Shawan Jabareen, director of Palestinian human rights group Al-Haq
Goodwin-Gill raises serious questions, and his opinion was submitted in good faith taking into account Palestinian interests in a professional way. However, we believe the concerns he raised have been exaggerated and misunderstood. This opinion is one of many, and others argue that UN membership is not a threat to anyone.
Our reading is that refugee rights will not be damaged because they are rights in spite of the institution representing the Palestinian people at the UN. Palestine will continue to represent the rights of the Palestinians, including the right of return and self-determination, the latter only being possible alongside the return.
For the refugees, the PLO will continue functioning as the official representative of the Palestinian people in the Diaspora. Even at the UN, it is the PLO itself which is submitting the request that a state called Palestine be allowed to have membership.
The initiative raises some concerns, and they must be considered. But we cannot exaggerate the risks. The real concern is from a political side: Do our leaders possess the will to uphold our rights? These rights are not negotiable. So, we must push the leaders to stand behind our rights. International law must be the basis.
Abdel Razzaq Takriti, activist and political historian at Oxford University
The United Nations is where a people’s legal representation sits. It is recognized by the international system within the United Nations. So the simple act of replacing the PLO as the representative of the Palestinian people with a state removes the claims of the PLO to sovereign status as the sole legitimate representative of the Palestinian people.
This cannot be in dispute, for this is what is being proposed now. It does not matter if the Arab League or any other groupings of states recognize and deal with us as the “State of Palestine”. Nor does it matter that, out of courtesy protocol, we have been given the name, or “designation” of the State of Palestine by the UN. The PLO is still the sole representative of the Palestinian people at the UN, and this is where it mattered, and this is what is now being proposed to be changed at the UN.
This is far from being a mere technical issue, but a critical one with both political and legal ramifications of a serious nature, and which is rehearsed fully in the opinion.
Most damaging is that this initiative changes our ability as a people to represent the totality of our inalienable rights. Through the PLO and its seat at the UN, the majority of Palestinians, who actually live outside the West Bank and Gaza, now have representation as equal members of the body politic under a single structure, and which was achieved by a previous generation in 1974 after enormous sacrifices. This principle, of the political equality of Palestinians inside Palestine with the refugees outside, will be completely lost if the PLO is substituted by the State of Palestine.
Francis Boyle, advisor to the PLO and professor of international law
The opinion is based upon erroneous assumptions. Rather than disenfranchising the Diaspora, when a Palestinian state is declared in September, every Palestinian living in the world will have the right to become a citizen of a UN member state.
In 1988, the Palestinian Declaration of Independence was approved by the Palestinian National Council representing all Palestinians. The executive committee of the PLO was next set up as the Provisional Government for the State of Palestine. In addition, the Declaration of Independence also provides that all Palestinians living around the world automatically become citizens of the State of Palestine.
The executive committee of the PLO in its capacity as the provisional government will continue to represent the interests of all Palestinians around the world when Palestine becomes a state. No one will be disenfranchised. The PLO will not lose its status.
All of their rights have been protected and will be protected by Palestine becoming a member state of the United Nations, including the right of return.
In the memo I originally did for President Arafat and the PLO back in 1988, I explained how we could obtain UN membership. All of the advice that I gave to Arafat and the PLO in 1987 to 1989 was originally premised on the assumption that someday we would apply for UN membership. That day has come. Please move forward.
John Quigley, author and professor of international and comparative law
The initiative is no threat to the Palestinians, and it will only improve their standing. This is because as a matter of international law, states must ensure that human rights are not being violated.
If Palestine were to become a member state it would be interacting with other states, and this is a much stronger position. It can pursue remedies at the diplomatic level in its capacity as a state. It will do favors for other states. It can demand favors in return. It can also pursue prosecutions of Israeli officials for war crimes, such as settlements, 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.
This is all missing from the Goodwin-Gill opinion because he was not asked to deal with it, just the issue of an upgrade. His opinion does not relate to UN membership, and does not purport to have any relevance to the issue of UN membership.
Rather than posing a threat to the refugees, the refugees will in fact be in a much stronger position. Legally, while people might leave states, if the refugees are nationals then the state cannot refuse to allow nationals to return. It is safe to assume that Israel will use this as a pretext to argue that the refugees can only return to their new state, but they will always find a reason not to allow the refugees to return.
Goodwin-Gill and others in civil society also view the bid as a threat to the PLO, but this too is exaggerated. It was the PLO that decided in 1988 to constitute itself as the government of the State of Palestine, making clear that all Palestinians would be represented by it. The General Assembly accepted the PLO as the sole representative of the Palestinian people. That is what it was asked to do at the time, and that is what it is likely to do in September if asked to accept Palestine as a state.