Palestine, Statehood and the Challenges of Representation

Palestine, Statehood and the Challenges of Representation

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

Self-determination and the United Nations

Though it opens with the resounding words, ‘We the Peoples of the United Nations…’, the UN Charter remains, of course, the constitutional basis for an international organization of States, and it is States which are its members and directly represented, rather than the people or peoples who stand behind them.

At the 1945 San Francisco Conference, some delegates did in fact speak of self-determination as necessarily reflecting the free and genuine expression of the will of the people, although any talk then of a ‘right’ to representative or democratic government would have been premature.

 But the idea that the right to govern is intrinsically linked to representation persists. Article 21(3) of the Universal Declaration of Human Rights, adopted three years later, declares in all simplicity that, ‘The will of the people shall be the basis of the authority of government…’

Some thirty years ago, the noted international lawyer, Antonio Cassese, who died just last month, remarked that the exercise of self-determination implies the freedom of the people to choose their model of internal and external governance, and that in turn requires opportunity and, among others, effective protection of related freedoms of association and speech.[2]

But who are the people,how are they to be empowered, and how are their rights to be made real and effective? In the case of Palestine, the people of Palestine have been clearly identified by the General Assembly as ‘the principal party’ to the processes of peace and self-determination,[3] just as the Palestine Liberation Organisation has also been recognized as the sole representative of the people.

The exercise of the right to self-determination being so closely linked to the issue of representation, this in turn opens up a raft of issues touching on the political rights of individuals, of the people.[4]

Professor James Crawford, giving his inaugural lecture at the University of Cambridge in March 1993,[5] referred to Article 1 of the 1966 Civil and Political Rights Covenant and suggested that,

‘self-determination is a continuing matter, not a once-for-all constitution of the state. In addition to its familiar role in the decolonization process, Article 1 can be read as affirming the self-direction of each society, and thus as affirming the principle of democracy at the collective level.’ (emphasis added)

I would go further, and add that the collective right of peoples must necessarily be exercised through the choices made by individuals – which takes us back to facilitation and to making rights real and effective.

An inherent aspect of the principle of self-determination today is clearly representative and democratic government, and there is an essential link between the State (for example, as a member of the United Nations), and the people it claims to represent. The best evidence of that link – representative government – is through elections based on the enfranchisement of the people at large.[6]

This is not to say that free and fair elections are the hallmark of democracy, only that they are necessary conditions – but very necessary conditions.

 Democracy and international law 

But what has international law got to do with democracy? This debate was certainly given another kick-start by UN Secretary-General Boutros Boutros-Ghali in the 1990s;[7] it may have tailed off institutionally since then, but it is certainly back in the frame now, with the financial crisis and the resurgence of popular movements against authoritarian and non-accountable governments.

Since Boutros-Ghali put democracy centre-field in his proposals for peace, development and international organization, the General Assembly, the Commission on Human Rights, the Human Rights Council, and the Human Rights Committee have each played a role in keeping the democratic imperative in focus. And at the regional level, too, the radical idea that intervention is acceptable in support of democratically elected governments has gained traction in Africa and Latin America, while the UN itself has continued to provide electoral assistance to new and restored democracies.

For its part, the Human Rights Committee has confirmed the link between elections and representative democracy, noting that it is implicit in Article 25 of the 1966 International Covenant on Civil and Political Rights that representatives who exercise governmental power are accountable through the electoral process for their exercise of that power.[8]

But still, in a society configured by principles of sovereignty and non-intervention, who represents the State has long been seen as beyond the reach of international law.

Professor Crawford rightly remarked in his inaugural lecture eighteen years ago that, traditionally, international law imposes ‘no requirement that the government of State, to be a government, should have been democratically elected or even that it should have the general support of its people’. ‘Effective government’ and independence from others were what mattered, together with acceptance or recognition by the governments of other States.

‘Statehood’ still remains the necessary qualification for membership of most international organizations, and in the UN context, the political process of acceptance and admission as a State is by decision of the General Assembly on the recommendation of the Security Council (Article 4 of the UN Charter).

An additional twist in the overall picture, however, is provided by the law and practice of recognition of States and governments. At one ideal level, this might just be a matter of declaring the facts – a State exists – but historically other States have often also included a discretionary element in their practice. Beyond the appreciation or assessment of the facts, recognition has been employed to express their willingness or not to enter into normal diplomatic relations with the new State on the block, or with a new government which has established effective authority over all or part of the territory of an already existing State.

That discretionary element, that open door, has certainly allowed the intrusion of other ‘non-legal’ criteria into the practice; sometimes, they have reflected blatant political self-interest, but at other and more recent times, that discretion has also been used to accommodate issues of wider, international concern – human rights, good governance, democratic legitimacy, the rule of law.

There is thus an uneasy connection, moderated and muddied by politics, between statehood, eligibility for UN membership, self-determination, and emerging notions of democratic entitlement, particularly at the point of international representation. 

Palestine and self-determination

 The UN affirmed the right of the people of Palestine to self-determination in the 1970s, and thereafter began to treat Palestine as more or less equivalent to a Member State. In 1988, for example, following the Palestinian Declaration of Independence, the General Assembly voted to use the word ‘Palestine’,[9] rather than ‘PLO’, and later it gave Palestine the right to participate in a wide variety of UN agenda items, not just those related to itself.[10]

The Palestinian claim to self-determination, of course, is indisputable today, endorsed not only by the United Nations (the General Assembly, the Security Council, the International Court of Justice), but also by Member States, including Israel.

For the people of Palestine, self-determination, representation and related issues come together in a telling way, for those displaced since 1948 and their descendants constitute more than half of the people of Palestine. In repeatedly stressing that, ‘the Palestinian people is the principal party to the question of Palestine…’,[11] the General Assembly has never drawn any distinctions on the basis of place of residence. It is thus the people of Palestine, as a whole, who possess the inalienable rights to self-determination, national independence and sovereignty, and the right to return to their homes and property from which they have been displaced and uprooted.[12]

In the practice of the UN, therefore, neither the Palestinian people nor the right to self-determination is territorially limited to the space currently referred to as the Occupied Palestinian Territory. It may be challenging to identify ‘the people’ in this context, at least pending a viable and effective system of registration for the purposes of voting or referendum, but the intent of successive General Assembly resolutions has been clearly to include both Palestinians in the Occupied Palestinian Territory, and those who remain displaced in other countries.

Palestine and representation

As already mentioned, the PLO is accepted by the United Nations and by the international community of States[13], including Israel, as the sole representative of the Palestinian people.[14]

In this representative capacity, both inside and outside the United Nations, the PLO’s mandate encompasses the totality of issues arising from the continuing displacement of Palestinians and the struggle for self-determination, including, among others, the questions of return and compensation highlighted in UNGA resolution 194 (III), and the question of national boundaries, which is implicit in SC resolution 242. These, necessarily, are matters for the Palestinian people as a whole.

How do these issues – which I would argue are matters of legal concern to the international community – sit within the political context of the present bid for UN membership? Could the Palestinian Liberation Organization be replaced, substituted within the United Nations, by the State of Palestine as the legitimate representative of the Palestinian people?

Anything can happen institutionally, of course, although it is telling that in presenting the 23 September application for UN membership, Mahmoud Abbas signed off as ‘President of the State of Palestine…’ and as ‘Chairman of the Executive Committee of the Palestine Liberation Organization…’

Among others, ‘representation’ 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, it brings in 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, it invites a close focus on the will of the people.

The move to enhance the Palestinian presence in the United Nations through ‘statehood’ carries the risk of fragmentation and disenfranchisement (and I emphasize risk, not certainty) – where the State represents (some or all of) the people within the UN and the PLO represents (some or all of) the people outside the UN. Such a division of representation would run counter to the status quo and to the original intent of the international community in recognizing the PLO. The challenge is to maintain unity in these unique circumstances.

Would that be achieved by having the PLO as the representative of the State in the UN? It might well do, if the appropriate form of words and the right institutional guarantees could be found. The bottom line, however, remains the will of the people.

The constitutional issues – a few brief words

 Following the Oslo Accords of 1993, the PLO, with the subsequent endorsement of the Palestinian National Council, established the Palestinian Authority as a short-term, administrative entity charged with the limited governance of those areas of the West Bank and Gaza which were placed under Palestinian responsibility. Its mandate, originally five years, was extended in 1998. The Palestinian Authority thus has limited legislative and executive competence, limited territorial jurisdiction, and limited personal jurisdiction over Palestinians not present in the areas for which it has been accorded responsibility.

 Within the constitutional structure of the PLO and the governance of the Occupied Palestinian Territory, therefore, the Palestinian Authority is a subsidiary body, competent only to exercise those powers conferred on it by the Palestinian National Council. By definition, and applying basic public law principles, it does not have the capacity to assume greater powers, to ‘dissolve’ its parent body, or otherwise to establish itself independently of the Palestinian National Council and the PLO. Moreover, it is the PLO and the Palestinian National Council which derive their legitimacy from the fact that they represent all sectors of the displaced Palestinian people, no matter where they presently live or have refuge.[15]

Representation and international law

The possibility of reconfiguring the self-determination unit by substitution, and without the consent of the people behind the competent institutions, raises the ‘external’ question of its consistency, not only with the long-standing acceptance of the PLO as the sole, legitimate representative of the Palestinian people, but also with what can be argued to be the essential democratic underpinnings for a settlement.

As Ruvi Ziegler, a doctoral student at Oxford, reminded me the other day, the General Assembly’s 1947 plans for a future independent Arab State were premised, among others, on elections to a constituent assembly to be ‘conducted on democratic lines’, and on voting to be open to those, including women, aged eighteen or over. The Constituent Assembly, in turn, was to draft a democratic constitution, establishing ‘a legislative body elected by universal suffrage and by secret ballot on the basis of proportional representation, and an executive body responsible to the legislature…’[16]

In many ways, this is still a strikingly modern agenda, so what then are the options and constraints? The basic principle, in my view, is that only the people of Palestine should now determine who will represent them in the UN. Any change in who represents the people or a part of the people, therefore, requires an expression of the popular will and international recognition equivalent to that given in the past by the General Assembly and the Arab League. And in the absence of that expression of popular will and international recognition, we will likely be faced with yet another crisis of legitimacy, going to the roots of the self-determination issue.

What might this mean in practice? I can do little more than highlight the challenges, rather than provide the answers.

The move to enhance the Palestinian presence in the United Nations through ‘statehood’ carries with it, as we see, the risk of fragmentation. It cannot be ignored that the majority of Palestinians are refugees living outside of Palestine, and that 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.

Democracy, it has been said, presupposes a ‘genuine partnership between men and women’, ‘free political competition’, and ‘open, free and non-discriminatory participation by the people, exercised in accordance with the rule of law, in both letter and spirit’.[17] In David Beetham’s words, ‘representative’ means ‘reflecting the most important characteristics of the electorate, in the matter of geographical distribution, political opinion, and social composition’, while political equality means that, ‘everyone counts for one’.[18]

The right of the Palestinian people to self-determination has been clearly recognized as a matter of international law.[19] The peaceful and effective exercise of this right in accordance with the UN Charter has further been recognized as requiring the representation of the Palestinian people at large in the work of the United Nations.

Is there any reason why, in the case of Palestine, any of this should wait? The challenge for the people of Palestine and for those who speak for them today is probably unique in the perspective of ‘State-building’ and democratic development. It is to move consciously and openly from internationally accepted institutional representation, into the traditional State model, but without losing the legitimacy that comes from the voice of the people – to a model, therefore, in which all Palestinians continue to be represented, and are seen to be represented, in and through the UN.

Obviously, the situation in the West Bank and Gaza and among the diaspora is different from much of what has gone before. Can mechanisms not be devised and put in place which would ensure the most free and ample participation of the people of Palestine in determining their future system of governance and, in the immediate and short term, the nature and composition of their representation at the international level?

Why should the people not be registered, for example? Voting by refugees and the displaced is nothing new; both the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Inter-Parliamentary Union (IPU), as well as host States, have contributed in the past to the processes of registration, balloting, and the count. I have argued above that, in the particular case of the people of Palestine, the question of representation is to be considered a matter of international legal concern; but the reverse of the coin is that the international community of States and the United Nations also have responsibilities here, and an opportunity to apply their considerable experience in building and strengthening capacity.

Already, there is coming into place an extraordinary initiative for registration, which may finally allow Palestinians at large to make known their views.[20] It needs the widest and fullest international support, if it is to play its essential role in allowing the voice of the people to be heard.

International law may not yet make democratic representative government a condition of statehood, or even a condition of membership of the United Nations (regional organizations are another matter). But the character of government and representation is increasingly a matter of international concern and inquiry, while the people also increasingly embed their claims and their right to accountable government not only in local principles and precepts, but also in the rules and standards endorsed internationally.

Traditionally, a State for the purposes of international law presupposes territory, population, government and the capacity to enter into international relations. But we have moved beyond that, particularly where representation in the UN is concerned. Today’s world expects more – that a State should be representative of the people for whom it speaks and directly accountable to them. One way to establish representative democracy is by elections, though elections also should meet certain international standards. But States which are imposed, top-down, or which are created without an exercise of the popular will are, by definition, not representative. And as recent events remind us, the lack of representative and accountable government is a sure-fire recipe for disaster.