[The following critique by John Quigley was issued on August 28, 2011, in response to a legal opinion by Guy S. Goodwin-Gill on the Palestine statehood bid at the United Nations.]
To: Interested parties
From: John Quigley
Re: Legal Opinion of Guy S. Goodwin-Gill on the representation issue
Date: August 28, 2011
The Goodwin-Gill legal opinion provides no sound basis for not pursuing any of the initiatives contemplated for Autumn 2011 at the United Nations.
Para. 1: G-G says that he has been asked for an opinion not about UN membership but about the possibility of gaining recognition and observer-state status via appropriate resolutions that could be adopted by the UN General Assembly. That scope means that the opinion does not relate to the question of seeking UN membership, or to consequences that might flow from gaining UN membership. The opinion thus does not purport to have any relevance to the issue of UN membership. In particular, G-G is not giving an opinion on the issue of whether UN membership might hold advantages, and how the situation of UN membership would compare with the current situation as regards ability to promote the rights and interests of the Palestinian people.
The paragraphs on the “constitutional issue” (paras. 4 to 8) dealing with the status of the PA are not relevant to the issue the representation of Palestine at the international level. G-G is correct as to how the PA was constituted, but he does not explain any significance for representation of Palestine at the UN. By using the term “constitutional issue,” G-G inadvertently undermines his own argument. It is precisely a “constitutional,” namely an internal, issue for Palestine as to how and in what way the rights and interests of the diaspora will be ensured. It is not an issue at the international level. Institutional mechanisms to ensure a voice for the refugees need to be maintained, whether that is by their being nationals of Palestine or some other mechanism. But that is an internal matter of governance.
Para. 8: G-G is suggesting that what is being done now is against the PLO. But it was the PLO that decided (1988 declaration of statehood) to constitute itself as the government of the State of Palestine, making clear that all Palestinians would be represented by it and that status as a state of the international community was being declared. The implication was that Palestine would function fully as a state, including as a member of the UN. The determination made at the time by the PLO was that for there to be any real protection for Palestinians there needed to be a state, even if in borders less than those of mandate Palestine. The PLO could not forever remain a national liberation organization. The statehood initiative thus is not an idea devised by the PA, rather the PLO project of 1988 is being pursued.
Para. 9: Here G-G says, incorrectly in my view, that Palestine is not a state. He seems to think that state under occupation is not a state. He ignores the widespread recognition of Palestine by other states. He ignores the practice of UN main bodies that treat Palestine as a state. He thinks that even if Palestine becomes a state observer (here again reflecting the fact that the G-G opinion does not purport to deal with UN membership) it will not really be a state. What he is saying in this paragraph is that becoming a state observer gains little but risks the representation of the refugees. An upgrade to state observer status – if that alternative is pursued -- would solidify the present international understanding that Palestine is a state. (It would make it very difficult for the ICC prosecutor to say that the international community is uncertain on the statehood of Palestine.)
Para. 10: G-G says the diaspora would lose its representation at the UN. I think it matters little to other states at the UN whether it is the PLO or the State of Palestine that pushes for respect of the rights of the Palestinian diaspora. G-G says this would be contrary to the will of the General Assembly. To pose the issue in this way is pointless. The GA accepted the PLO as the representative of the Palestinian people because that was what the organized Palestinian community was asking it to do. If it is now the State of Palestine that fulfills that role, the GA will accept that just as easily. It is not as if some violation of the will of the GA is occurring.
Paras. 11 to 17: Similarly, the GA is not going to try to impose on the Palestinian people who it is that represents them. The GA accepted the PLO in the 1980s. In 1988 the PLO constituted itself as the government of the Palestine State. The GA is not going to be concerned over this.
G-G writes as if the Government of Palestine will not be recognized at the international level as having legal capacity to promote the rights and interests of the Palestinian diaspora. This omission is the fundamental flaw in his document. He ignores the role that the Palestine State can play as promoter of the interests and rights of the Palestinian people, whether diaspora Palestinians are or are not nationals of the Palestine State. Palestine (like any other state in the world) has a “legal interest” (see Articles on Responsibility of States for Internationally Wrongful Acts, art. 48) in protecting individuals from violation of their rights. Palestine can pursue international remedies, or raise the issue at the diplomatic level in its capacity as a state of the world.
The concern of many is whether it will in fact do so, or whether it will promote the interests of those in the territory (WB/G) to the detriment of the interests of those outside. That is a matter of internal governance for Palestine, but not one that is relevant to representation of Palestine at the international level. To date, while there may be cause for concern, there is also indication that the interests of the diaspora will be promoted (Chairman Arafat did not cave on the issue of repatriation at Camp David 2000, despite pressure to do so.) The diaspora is not shy about making its voice heard. But again, this is an internal matter that does not relate to what status Palestine has at the international level. A Palestine State, particularly one that is a member of the UN, is better positioned to promote the rights and interests of the diaspora than is true of the PLO or PA. A Palestine State will be interacting with other states on a myriad of issues. It will do favors for other states. It can demand favors in return from other states. A Palestine state can pursue the prosecution at the ICC of Israeli officials for war crimes such as settlements in occupied territory, thereby 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.
The G-G opinion is limited to the issue of enhancement to state observer status, but even in this limited scope it makes no valid arguments. Nothing in it should be considered an impediment to pursuit of the contemplated initiatives at the UN.
[Click here to read the original legal opinion by Guy S. Goodwin-Gill.]