UN recognition of Palestine and representing the refugee issue

Posted: August 29, 2011 by Rex Brynen in peace process
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In September the Palestine Liberation Organization is slated to ask the United Nations to recognize Palestinian statehood based on the 1967 borders. The move won’t win Palestine full membership status in the UN, since such a decision can only be made in the Security Council (where any such resolution would almost certainly face a US veto). It won’t bring statehood either, of course, which would require a full Israeli withdrawal from occupied Palestinian territory so that Palestine can exert effective sovereignty. It would, however, be a further expression by the overwhelming majority of the international community that it expects the outcome of any future Israeli-Palestinian peace negotiations to be a two state solution, based on the 1967 lines (plus/minus any territorial swaps).

The campaign to win UNGA recognition faces a number of obstacles. Israel is vehemently opposed, even if Israeli diplomats concede that there is little they can do to thwart a determined Palestinian effort. The Obama Administration is opposed too, and has warned that the move would result in cuts in US aid to the Palestine Authority. Finally, there is criticism from a  very different source: Palestinian refugee advocates who fear that a shift in Palestinian representation at the UN from the PLO to a Palestinian state-in-waiting would weaken representation of refugee interests. According to a recent article in the Guardian:

Millions of Palestinian refugees outside the West Bank and Gaza could lose their representation at the UN if the Palestinian Authority succeeds in winning recognition of its state at the world body, according to a British expert in international law.

Palestinian leaders intend to ask the UN next month to recognise their state and admit it to membership of the 193-country body. The merits of the move – which is vigorously opposed by Israel and the US – have prompted debate within Palestinian circles.

If the bid succeeds, UN representation of the Palestinian people would shift from the global Palestinian Liberation Organisation – currently recognised as the “sole and legitimate representative” of all Palestinians around the world – to the envoy of a state based in the West Bank and Gaza. Millions of Palestinian refugees who live in the diaspora could be “accidentally disenfranchised”, according to a seven-page legal opinion by Guy Goodwin-Gill.

Goodwin-Gill, a professor of international law at Oxford, concludes “the interests of the Palestinian people are at risk of prejudice and fragmentation”. Palestinians in the diaspora risk losing “their entitlement to equal representation … 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.”

The Palestinians’ bid to be accepted as a member state of the UN requires security council approval. The US has already said it will veto such an attempt. The Palestinians are then likely to seek approval in the UN general assembly for enhanced status, which they are likely to win. China, a permanent member of the security council, said on Thursday that it would support the Palestinian bid for statehood.

Since 1974, the PLO has had observer status at the UN, which Goodwin-Gill suggests would be transferred to the state of Palestine if either full member or enhanced status was won.

This is despite the fact that, until a final settlement is reached with Israel on borders and other key issues, “the putative state of Palestine will have no territory over which it exercises effective sovereignty … it will fall short of meeting the internationally agreed criteria of statehood”.

Goodwin-Gill says that his opinion is intended to “identify problems potentially affecting the right of Palestinian people to self-determination… [and] to flag matters requiring attention.” His opinion was commissioned by Karma Nabulsi, a former PLO representative and now an Oxford professor. The document has been submitted to Palestinian officials leading the UN bid, who have acknowledged receipt but made no public comment.

Nabulsi said the opinion clarifies “red lines” in relation to the bid for statehood. “In losing the PLO as the sole legitimate representative at the UN, our people immediately lose our claim as refugees to be part of our official representation, recognised by the world.

Coverage of the issue can also be found at Ma’an News and al-Jazeera, while the full text of Prof. Goodwin-Gill’s legal analysis can be found here.

My own thought on the matter is that critics are focusing too narrowly on legalisms. Certainly the PLO is recognized by the Arab League as the “sole legitimate representative of the Palestinian people,” and it was on this basis that it was admitted to Observer status at the UN in 1974. The PLO is also an organization that embraces (in theory, although much less so in practice) both those Palestinians in Palestine and those in the diaspora. In contrast, the PA merely exists in (and, in better days, was elected in) the West Bank and Gaza.

However, that difference really doesn’t matter to much of the international community. While Goodwin-Gill’s legal analysis argues that “the PLO is accepted by the United Nations and by the international community of States as the sole representative of the Palestinian people” this is, in the real world of international politics, not entirely the case. Indeed, very few states consider that the PLO really speaks for all Palestinians—no one takes it seriously when it raises issues of Palestinians in Israel, for example, and the Jordanians have never fully accepted that the PLO represents Palestinian citizens of Jordan (who comprise by far the largest segment of the diaspora).

The authority and credibility with which the Palestinian delegation at the UN—or, for that matter, the Palestinian leadership—speaks on refugee issues is largely a function of underlying political dynamics. Within the international community there is widespread recognition that the refugee issue needs to be resolved if any future Israeli-Palestinian peace agreement is to be successful. The generally recognized political address for that is pretty much the same, regardless of the label applied.

On top of that, there is no particular reason why a  territorially-based state can’t assert concerns and claims on behalf of non-citzen diaspora populations. Indeed, Israel does it all the time.

One could also quibble with some of the legalisms involved—since the Oslo Agreement (technically) precludes the PA from conducting foreign policy, any future Palestine state-in-waiting delegation to the UN would (technically) operate under the aegis of the PLO. Moreover, it can also be argued that the PA itself is a subsidiary instrument of the PLO. In practice, as argued above, the legal formalisms aren’t all that important—and, indeed, excessive preoccupation with them can come at the cost of appreciating the broader political and diplomatic processes at work.

While there is debate on the Palestinian side as to whether the pursuit of refugee rights and interests might be hampered by winning UNGA recognition of “Palestine,” the Israeli press is currently raising the opposite concern: a headline in yesterday’s Jerusalem Post warns that “UN recognition won’t stop PA demand for right of return…” A notable exception to this pattern is former Israeli refugee negotiator Gidi Grinstein, who back in May came out in favour of recognition of Palestinian statehood on the grounds that it would “diminish the refugee problem by marginalizing UNRWA and limiting refugee status” —a statement that, understandably, has been cited by Palestinian critics of the UN campaign. Gidi doesn’t provide any actual argument as to why this would be the case, and I think he also is too focused on formalisms.

UPDATE

Francis Boyle slams Goodwin-Gill’s legal arguments in his own analysis here. While Goodwin-Gill certainly wins on style (his memo on the issue is written in the appropriate analytical tone, while Boyle gets a bit pointed and has an equally amusing and annoying tendency to constantly aggrandize his past advice to the PLO), I have to say I tend to agree with Boyle on the substance of the matter.

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