As the Security Council considers Palestine's application for full membership of the United Nations, Palestinian lawyers, jurists and legal scholars have signed a joint statement expressing concern over the bid's implications for Palestinians' rights.
The recent initiative of the Palestinian leadership at the UN has far reaching legal implications on all segments of the Palestinian people in historic Palestine and in the shatat (Diaspora). These implications are significant on several levels, in particular constitutional and representational matters, and their connection to international aspects of recognition and sovereignty.
Driven by our commitment to the Palestinian cause, the inalienable rights of the Palestinian people as well as universal human rights in general, our national and professional responsibility as lawyers, jurists and legal scholars, and finally by our concern in both preserving and furthering Palestinian historic achievements in the arena of international law, we the undersigned affirm the following:
1. The Palestinians are one people in historic Palestine and in the shatat (Diaspora). The Palestinian people have inalienable rights, most important of which are the right of return of Palestinian refugees to their homes and lands from which they were forcibly displaced; the right to self determination; in addition to the right to national independence and sovereignty. As such, the Palestinian people constitute a single body. Their rights are indivisible and pertain to the body politic as a whole. The United Nations General Assembly has stressed, in numerous resolutions that, ‘the Palestinian people is the principal party to the question of Palestine...’ including resolutions 3210 (XXIX), 14 October 1974, 3236 (XXIX), 22 November 1974, and 3375 (XXX), 10 November 1975. In all its resolutions, the United Nations does not draw distinctions amongst Palestinians on the basis of place of residence. Accordingly, the Palestinian people as a whole possess the right to return and the right to self-determination.
2. The Palestinian people as a whole is represented by the PLO, both inside and outside the UN. The UN and the Arab League recognise the PLO as the sole legitimate representative of the Palestinian people. In accordance with UNGA Resolution 3237 of 1974, the PLO was accorded Observer Status within the United Nations. In 1998, and in accordance with UNGA resolution 52/250, Palestine gained “additional rights and privileges of participation in the sessions and work of the General Assembly and the international conferences convened under the auspices of the Assembly or other organs of the United Nations, as well as in United Nations conferences.”
3. In its resolution 43/177 the UNGA acknowledged “the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988” and it decided that “effective as of 15 December 1988, the designation "Palestine" should be used in place of the designation "Palestine Liberation Organization" in the United Nations system, without prejudice to the observer status and functions of the Palestine Liberation Organization within the United Nations system...” Significantly, this ensured that the status of the PLO as the sole legitimate representative of the Palestinian people was preserved and reaffirmed by the UN.
4. In the UN Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, it is stated that: “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.” This right to self-determination is the basis of the PLO’s claim to be the sole legitimate representative of the Palestinian people. And although it does not currently exert sovereignty in the form of possessing supreme, independent authority over the land of Palestine, the PLO derives its legitimacy from its people in historic Palestine and in exile. Its mandate is therefore not territorially restricted.
As the international legal authority Prof. Guy Goodwin-Gill notes, “the PLO’s mandate thus encompasses the totality of issues arising from the continuing displacement of Palestinians and the struggle for self-determination – this includes, 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, irrespective of their present place of residence.”
5. We are concerned that any potential move to alter the status of the PLO as the sole legitimate representative of the Palestinian people at the UN may have negative implications on the legal position of the Palestinian people, in particular on the representation of their indivisible and collective rights. We concur with the opinion of Professor Guy Goodwin-Gill, which states that such a move carries “the risk of fragmentation – where the State represents the people within the UN and the PLO represents 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.” In particular , we are concerned that such fragmentation would affect the international representation of Palestinian refugees who constitute more than half of the Palestinian people.
6. The Palestinians’ inalienable rights, especially of return and self- determination are solidly enshrined in international law, regardless of the nature of Palestinian representation at the UN. As well as being a collective right, the right of return is an individual right that cannot be alienated or surrendered. But without the PLO as their sole legitimate representative at the UN, Palestinian refugees in particular, a part of the whole, will effectively lose the ability to claim those rights. A right may exist in law but it is meaningless to people unless it can be claimed. If the PLO’s status at the UN is removed from its UN seat, this will both undermine and weaken the fight for the right of return and of self determination, rather than strengthen it.
7. Furthermore, substitution of the PLO representation at the UN might effectively mean that Palestinian refugees would not have a direct link to their representative at the UN. No political body, other than the PLO, would have the necessary competencies or mandate to represent them.
8. We further concur with Professor Goodwin-Gill that “[U]ntil 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.”
9. Within the Palestinian arena, there are legitimate fears that the current initiative will bring about a change (intended or not) to the status of the PLO as the sole legitimate representative of the Palestinian people at the UN. Besides its negative legal implications, such a move brings forth various constitutional problems. According to the Article 7(a) of the Fundamental Law of the PLO: “the Palestine National Council is the highest authority of the Palestinian Liberation Organisation, and it is the body that draws the policy of the PLO and its plans and programs.” Moreover, Article 5 of the Fundamental Law states that the PNC is to be directly elected by the Palestinian people. The electoral system, issued on 17 July 1965, states that “Every Palestinian has the right to vote in PNC elections if he/she is 18 years old, if his/her name has been recorded in the final electoral registers, if he/she is of sound mind, and has not been convicted of a crime against national honour.”
10. Considering that direct elections to the PNC are yet to be held, the broad popular mandate required for such a major restructuring of the governance and representative status of the PLO cannot be secured at the moment. Constitutionally, and in accordance with the Fundamental Law of the PLO, it is beyond the mandate of the PLO Executive Committee or Central Council to undertake such a radical alteration to the status and role of the Organisation, which has been long held, and which has been achieved and consolidated as a result of several decades of struggle and national sacrifice.
11. It is our opinion that, constitutionally, the status of the PLO as the sole legitimate representative of the Palestinian people at the UN cannot be lawfully altered, or replaced with another body, the State of Palestine, without wide popular consensus achieved by broad deliberation, reflected in the convening of a new Palestine National Council that is directly elected by the Palestinian people regardless of their place of residence. International recognition should be sought in support of this, and as a consequence of the popular will of the people.
12. Based on these concerns and doubts, we demand the following:
a. That all diplomatic initiatives, including the UN initiative in September, should preserve the status of the PLO as the sole legitimate representative in the UN, and to protect and consolidate the inalienable rights of the Palestinian people, mainly the right of return to the lands from which the refugees were displaced in 1948;
b. That the PLO Executive Committee provide assurances to this effect;
c. The demand for immediate and direct elections to the Palestine National Council, so all Palestinians- regardless of their place of residence- can vote. This will form the democratic foundation for setting the national political programme, and activate representative PLO institutions in order to preserve, consolidate, and strengthen the effective legal representation of the Palestinian people as a whole.
Dr Anis Fawzi al-Qasem, Legal Advisor to the Palestinian Delegation at the Madrid and Washington Negotiations
Dr. Anis Mustafa al-Qasem, Legal Advisor to the Palestine National Council, Secretary General of the International Organisation for the Elimination of all Forms of Racial Discrimination
Basheer al-Khairi, Former Member of the PLO Executive Committee
Ribhi Qatamesh, Secretary of the Palestinian Bar Association
Professor George Bisharat, Professor of Law, Hastings College of the Law, University of California
Mary Nazzal-Bataineh, Chair of the Board of Trustees of the Palestine Legal Aid Fund
Professor Mohammad Yousef Olwan, Professor of Law, Amman, Jordan
Reem al-Botmeh, Assistant Editor, Palestine Yearbook of International Law
Professor Mohammad Khalil al-Mousa, Assistant Professor of International Law, Bahrain University
Professor Samera Esmeir, University of California, Berkeley
Professor Nadera Shalhoub-Kevorkian, Faculty of Law, Hebrew University, Jerusalem
Dr. Lena al-Malak, Legal Consultant
Nimer Sultany, Harvard University Law School
Noura Eriekat, Adjunct Assistant Professor, Georgetown University
Jamil Dakwar, Esq. (USA)
Leen al-Khayat, Attorney
Hania Sabaawi, Attorney
Marwan Dalal, Attorney
Mazen al-Masri, Osgoode Hall Law School, York University