by Stephen Lendman
Earlier articles discussed it, accessed through the following links:
http://sjlendman.blogspot.com/2011/04/palestinian-statehood-and-other.html
http://sjlendman.blogspot.com/2011/04/declaring-independent-palestinian-state.html
They explain that in 1987, Law Professor Francis Boyle was Palestinian Liberation Organization (PLO) legal advisor in drafting its 1988 Declaration of Independence.
In the late 1980s, he was asked, “Why should the PLO crate an independent state?” He responded, saying:
If you don’t, “you will forfeit the moral right to lead your people.”
The second link discusses his “CREATE THE STATE OF PALESTINE” Memorandum of Law, describing characteristics for world community recognition. Palestine easily qualifies for statehood and full de jure UN membership.
Delay is neither wise nor right for all Palestinians who deserve it. The time to act is now, no matter how Israel and/or America will contest.
A recent article also said the following, repeated below to explain what’s important to understand:
(1) Last March, Israel told UN Security Council members and other prominent EU countries it will act unilaterally if the General Assembly grants Palestine de jure membership in September inside 1967 borders, 22% of historic Palestine.
(2) If granted, Israel will likely deny recognition, continuing its illegal occupation, this time against a sovereign country. Moreover, expect it to accelerate West Bank/East Jerusalem land seizures, isolating Palestinians on smaller portions of worthless scrub land.
(3) While rhetorically favoring Palestinian statehood, Obama categorically rejects PA officials seeking it unilaterally. Instead, he wants Israel to decide its terms, size, locations and timetable. In other words, he supports Israeli veto power over Palestinian rights, including sovereignty. It’s an unacceptable/illegal condition under international law.
In a White House statement, he also “emphasized that a vote at the United Nations will never create an independent Palestinian state” even though defying a two-thirds majority General Assembly affirmation is illegal.
Despite his and congressional opposition, Washington earlier provisionally recognized Palestine as an independent nation. According to UN Charter Article 80(1), it can’t reverse its position by vetoing a Security Council (SC) resolution calling for Palestine’s UN admission.
Any veto is illegal, subject to further SC action under the Charter’s Chapter VI. Ultimately, the SC only recommends admissions. The General Assembly affirms them by a two-thirds majority. At this time, enough support exists to get it.
Moreover, UN Charter Article 80(1) and others empower the General Assembly to recognize Palestinian statehood and take all necessary measures to end Israel’s illegal occupation. If sovereignty is granted, it’s more than ever essential to do so, holding Israel fully accountable for not complying.
Up to now, however, Washington’s threatened Security Council veto prevented de jure membership, despite its illegality under international law and its pledge not to do so against any state seeking UN membership.
In fact, the General Assembly has sole authority to admit new members, not the Security Council. If Washington uses its veto as threatened, the GA can circumvent it under the 1950 Uniting for Peace Resolution.
Legal Opinion Believing UN Statehood Threatens Palestinian Rights
On August 24, Ma’an News said:
“The Palestinian team responsible for preparing the United Nations initiative in September (got) an independent legal opinion (warning about) risks involved with its plan to join the UN.”
It claims transferring PLO representation to a newly established statehood “will terminate” its legal status held since 1975 as “the sole legitimate” Palestinian representative.
It says doing so will remove an “institution” able to represent “the inalienable rights” of all Palestinians, including diaspora/refugee ones, adding that they’ll be “disenfranchise(d),” unable to return home.
Oxford University Professor of Public International Law Guy Goodwin-Gill prepared the opinion. Ma’an News said it claims that the General Assembly can’t create an “actual state” under occupation, so debate should focus on whether the Security Council or General Assembly “should be asked to grant” observer status only. In fact, it already has it.
At issue now is full statehood recognition and UN membership. Only the General Assembly can grant it, not the Security Council as explained above.
Yet Goodwin-Gill believes “dramatic legal implications” for Palestinian rights aren’t considered if the PLO loses its status, including:
(1) Palestinian National Charter constitutional issues, as well as others relating to the PLO and its entities.
(2) Whether “the State of Palestine (can) effectively take on the role and responsibilities of the PLO in the UN.”
(3) Also issues of “popular representation.”
His document says the PLO-established Palestinian Authority (PA) “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.”
Moreover, the PA “is a subsidiary body, competent only to exercise those powers conferred on it by the Palestinian National Council. By definition, it does not have the capacity to assume greater powers.”
In addition, it can’t “dissolve” its parent body or claim independence from the PNC or PLO. Also, the PLO and PNC 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.”
Goodwin-Gill expressed special concern for Palestinian refugees, represented by the PLO through the PNC.
“They constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their (UN) representation….it will not only prejudice their entitlement to equal representation….but also their ability to (air) their views, to participate in matters of national governance, including the formation and political identity of the State, and to exercise their right of return.”
Former PLO representative/now Oxford University Professor Karma Nabulsi also expressed concerns, saying:
“Without question, no Palestinian will accept losing such core rights for such a limited diplomatic initiative in September. First, we will hot have liberated territory, (and by) losing the PLO as the sole legitimate (UN) representative….our people immediately lose our claims as refugees to be part of our official representation, recognized by the world.”
She added that knowing the legal dangers should lead to an initiative that “will protect the status of the PLO” and rights of all Palestinians.
The PLO represents them all, not selective parts only. It also established the PA. Changes in who represents Palestinians “require an expression of the popular will and international recognition.”
Assuring new rights gained in September loses no current ones is crucial she and Goodwin-Gill believe.
Supporters of Palestinian rights surely agree, including Professor Francis Boyle.
An international law/human rights law expert, his important book, “Palestine, Palestinians and International Law,” covers a wealth of information, including the relevant legal history since 1987.
In an email to this writer after reading the Ma’an News article, he said:
“I have not read (Goodwin-Gill’s) memo itself. But from (the Ma’an News) report, unfortunately, this lawyer is not aware of all the safeguards I built into the 15 November 1988 Palestinian Declaration of Independence to make sure that his doomsday scenario does not materialize.”
In other words, despite Goodwin-Gill’s good intentions, his fears are ill-founded as long as the PA’s September bid includes all legal protections Boyle provided for them 23 years earlier.
That said, it’s vital they proceed as planned. All Palestinians deserve what they’ve been long denied, and with enough support can get it.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour/.
