What will Palestinian statehood mean?
A recent legal opinion suggests that the Palestinian statehood initiative fails to address several critical questions.
Abdel Razzaq Takriti
The recent release of an authoritative legal opinion highlighting certain unexpected, unintended, and serious political and legal dangers in the September initiative, has created useful popular discussion and public debate. opinion assesses the implications arising if the Palestine Liberation Organisation (PLO) replaces itself by the State of Palestine as the sole legitimate representative of the Palestinian people at the UN.
The opinion was authored by Professor Guy Goodwin-Gill, perhaps the world’s foremost authority on international refugee law, and commissioned by his colleague at Oxford University, Karma Nabulsi. It appears to have been discussed with the relevant political figures within the PLO leadership, and its constituent parties and movements. A few individuals, including PLO Executive Committee members, have responded to the issues raised in this expert legal opinion. However, the main questions have still not been addressed by the PLO, and it is important to raise them again for the sake of an honest public debate on a matter of such critical concern to all Palestinians.
The main thrust of the Goodwin-Gill memorandum, that replacing the PLO at the UN with the state will undermine the political and legal position of the Palestinian people – especially the rights to return and to self-determination – remain unaddressed. What is suggested, however, is that the PLO’s status will not be harmed if this happens, although the issue has not yet been responded to in detail or explained in any manner.
One explanation has been that the PLO will remain the overall representative of the Palestinian people, and it is even suggested (without any evidence) that the PLO’s legal status will be advanced by this initiative, without saying how. But this does not address the key issue at hand: if the state becomes the representative of the Palestinian people at the United Nations, the status and role of the PLO is, without doubt, radically altered.
One Palestinian representative
Some suggest that the PLO’s status will not be harmed because the PLO itself will be submitting the resolution to the United Nations. Unfortunately, this argument is entirely irrelevant; the problem was never about who will submit the resolution, the PLO or the PA, but instead concerns what exactly the PLO will do when it goes to the General Assembly. What are the dangers if the PLO submits a resolution that removes the PLO from its seat at the UN as the sole legitimate representative of the Palestinian people, and substitutes itself for the as-yet-unachieved State of Palestine? To clarify further: there is only one seat at the UN. Either the PLO holds it, or the state does. There cannot be two representatives of the Palestinian people at the UN.
This is where the problem can be seen clearly. The United Nations is where a people’s legal representation sits. It is recognised 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 (and, in addition, a state that does not even exist), 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 recognise 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 not a mere technical issue; it is a critical one with both political and legal ramifications of a serious nature, and which is rehearsed fully in the Goodwin-Gill Opinion. Most damaging is that this initiative (as currently formulated) 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 (undemocratic though it is) as equal members of the Palestinian body politic under a single political 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 Palestinian refugees outside of it will be completely lost if the PLO is substituted by the State of Palestine.
Unlike the State of Palestine, the PLO does not derive its sovereign status from a territorial claim, but from the claim to popular sovereignty and as sole representative of an entire people. As such, its competencies are not limited by borders, and can encompass the Palestinian shatat [diaspora] in its entirety. This cannot be said for the State of Palestine, whose sovereign claim is severely limited and bound by the 1967 Occupied Palestinian Territories (OPTs), the vast majority of which it does not even control. What the Goodwin-Gill Memorandum confirms is that unless the UN seat continues to be held by the PLO, more than half of the Palestinian people will face the threat of disenfranchisement.
Another response was authored by an American lawyer who claims to have been the originator of this Palestinian UN state initiative, as well as the earlier initiative in 1988. It is suggested that the Palestinian Declaration of Independence contains legal and constitutional technicalities ensuring the PLO’s position will not be prejudiced by the September initiative at the UN. In particular, he notes that the PLO Executive Committee was set up in 1988 as the Provisional Government of the State of Palestine and that all Palestinians, regardless of their place of residence, were declared to be citizens of this state.
Once again, this response misses the point. After 1988 the PLO was indeed designated as “Palestine” within the UN system, but this was a courtesy title only, and does not change the PLO’s status at the UN. The real point is that a new, parallel system of governance has been formed in the OPTs since the Oslo accords in form of the Palestinian Authority and the Palestinian Legislative Council, and it is clamed this will form the basis of the Palestinian State.
This parallel governance structure (limited in its institutional governance capacity to the OPT) is currently morphing, under the guise of the State of Palestine, into a parallel representative structure that is prepared to seize the PLO’s seat at the UN in September. More worrying is that some PLO leaders, entrusted by the Palestinian people with the preservation of this most important of all national structures, seem to be willing to go along with this scenario, and even encourage it, by imagining that this State will represent all Palestinians.
It is worth recalling that the 1988 Declaration of Independence did not pose a threat to the status of the PLO as the sole legitimate representative of the Palestinian people at the UN, or anywhere else. If the PLO cedes its seat to the State of Palestine in September, it completely alters its status, becoming a subsidiary body to the state, without internationally-recognised representative capacities.
The Palestinians will then have two representatives, the state at the UN for those under the PA, and the PLO for Palestinians outside the borders of 1967 occupied Palestine. It also creates two tiers of Palestinians: one with certain core rights, and the majority who lose their ability to advocate for them. It would not matter if Palestinian refugees are declared to be citizens of the State of Palestine (which does not exist yet in fact), for such a state is territorially bound within an undetermined territory contained within the 1967 boundaries. Those refugees that come from 1948 areas will be left with even greater disenfranchisement and a serious representational crisis that affects their rights to return to their homes and to self-determination.
These question of PLO representation cannot be taken lightly or dismissed flippantly, nor should the Palestinian people themselves be treated with contempt about these serious matters, and without taking into account institutional and governance developments since the 1980s. Indeed, the Palestinian leadership has a responsibility to take seriously, and engage with, the legal advice of leading international legal authorities. Concrete answers are still needed to the following questions:
Why is there a need for the PLO or PA to make a new request for membership/observer status in the UN, given that the PLO already has UN observer status and could negotiate an upgrade of its status without a new request for membership/observer status?
What are the advantages of such a new request for membership/observer status in terms of UN recognition of the territory of the state? How is the request for recognition of the territory of the state as that of June 4, 1967 formulated in the September initiative? Is it undetermined as in 1988? Or is any language on the state’s territory and borders planned at all?
Why have there been efforts to discuss a constitution of the state that is being proposed to become the UN representative of the Palestinian people? If the state were to be governed by the PLO, then it should be subject to the PLO constitution. However, existing draft constitutions of the PA state assert that it will be a sovereign state, and not a subsidiary of the PLO.
Who will elect the parliament and government of the state that would be the UN representative: the people in the OPTs? Or all the Palestinian people? It has been said that all Palestinians can become citizens of the state, including the Palestinians in the shatat. What will the state do so that all citizens can exercise their right to participate in its public affairs?
Some members of the leadership have questioned the wisdom of discussing such fundamental political and legal questions of the Palestinian people at this particular juncture in time. They suggest that this is not the time to publicly put doubts on the content of the September initiative, especially given its enemies.
Yet it is far more dangerous to go ahead with ill-thought-out political initiatives which do not take into account such crucial legal concerns that remain – until now – unanswered; questions that were raised in a spirit of concern and public interest. In any case, the sole purpose and function of the PLO is to represent and serve its people, and to advance their rights. Closed-door discussions have, in the past, created problems, confusion, anxiety, and legitimate concerns. These national matters affect every single Palestinian in immediate and serious ways, and also affects our rights as a people collectively. Therefore we must debate and discuss these issues of our popular sovereignty and representation as a people – together, and in good faith.
Dr Abdel Razzaq Takriti is a political historian at St Edmund Hall, University of Oxford. He is active with Palestinian campaigns for democratic popular representation.