(UPDATED) Serious questions on Palestine UN bid raised in legal opinion

This article originally appeared on Mondoweiss.

Israeli Defense Minister Ehud Barak has called the Palestinian Authority’s (PA) bid for United Nations recognition of a state of Palestine next month a diplomatic “tsunami.”  The United States has threatened to cut off aid to the PA if they proceed with the UN gambit.  But more importantly, a legal opinion submitted to the Palestine Liberation Organization (PLO) from the other side of the debate over the UN bid has raised serious and alarming questions about the PA’s plans.

The opinion, written by a law professor who was on the team that successfully challenged Israel’s separation barrier at the International Court of Justice, tackles the issues of Palestinian self-determination and the right of return.  Guy Goodwin Gill, the author of the opinion, recently told Al Jazeera English that he doubts that Palestinian refugees would “be enfranchised through the creation of a state.”  Senior PLO member Hanan Ashrawi has dismissed the concerns raised by Gill.

Excerpts from Goodwin Gill’s legal opinion read:

I am advised that one possibility being debated involves the replacement of the Palestinian Liberation Organization (PLO) and its ‘substitution’, within the United Nations, by the State of Palestine as the legitimate representative of the Palestinian people. In my view, this raises, first, what I will call ‘constitutional’ problems (in that they engage the Palestinian National Charter and the organization and entities which make up the PLO); secondly, 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…

Until such a 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, with serious implications for Palestinians at large, particularly as concerns the popular representation of those not currently present in the Occupied Palestinian Territory.  The significant link between the Palestinian National Council and the diaspora has been noted above in paragraph 4. 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, contrary to the will of the General Assembly, 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.
In my opinion, current moves to secure recognition of statehood do not appear to reflect fully the role of the Palestinian people as a principal party in the resolution of the situation in the Middle East.

The interests of the Palestinian people are at risk of prejudice and fragmentation, unless steps are taken to ensure and maintain their representation through the Palestinian Liberation Organization, until such time as there is in place a State competent and fully able to assume these responsibilities towards the people at large.

The legal concerns raised in the opinion further reflect the skepticism of many Palestinians about the UN bid, as a piece by Mohammed Rabah Suliman in the Electronic Intifada recently pointed out.

Ali Abunimah also recently enunciated these concerns:

The Western-backed Palestinian Authority’s (PA) effort to seek UN recognition of “statehood” unilaterally, without consulting the Palestinian people from which the PA has absolutely no mandate, has raised fears among Palestinians that the move could actually harm Palestinian rights.

If the UN votes to admit the “State of Palestine,” it is likely that the unelected representatives of the Palestinian Authority would be seated in the General Assembly instead of the Palestine Liberation Organization (PLO), which currently holds the Palestine observer seat at the UN..

This would be a severe blow to the potential for realizing Palestinian rights in the long run through international bodies: whereas the PLO ostensibly represents all Palestinians, the PA “state” would only represent its “citizens” – residents of the West Bank and Gaza Strip.

Of course in reality this “state” would not represent anyone since it would have absolutely no control of the territory on which it purports to exist and its “government” – what is now the Palestinian Authority – would remain subject to the blackmail and pressure of its financiers and external political sponsors.

As September approaches, these concerns become ever more pressing.

UPDATE:  It’s only fair to link to some expert legal opinion that doesn’t agree with Goodwin-Gill’s.  Francis Boyle, who advised the Palestinian leadership on their 1988 Declaration of Independence, says that Goodwin-Gill’s opinion is “based on many erroneous assumption.”  The full piece is at CounterPunch.

Meanwhile, Ma’an News Agency has published four other opinions on the PA’s UN bid.  Some of them agree with Goodwin-Gill, others oppose.  It’s worth reading.

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