Friday, 26 August 2011 16:50 Written by Kenneth Manusama

The Palestine Liberation Organization (PLO), which has observer status at the United Nations (UN) is widely expected to apply for membership to the UN when the UN General Assembly convenes in September. This latest move in the never ending saga between Israel and the Palestinian people puts a lot of political pressure on all States to take a position on the issue. As such, it can be regarded as a smart political move. As always, however, the legal side of the question may present a way out for those States that do not want to recognize a Palestinian State just yet. Al Jazeera English published a (short) legal opinion by British law professor Guy Goodwin-Gill that foresees a fundamental legal problem with the Palestinian legal claim.

The legal principle of the right to self-determination for peoples lies at the heart of any claim to statehood, and that it is for the people to determine its status, as well as certain objective criteria including the presence of territory, a population and an effective government. One could argue that the Palestinian circumstances fail to meet the first and third of these criteria. Goodwin-Gill adds another problem, although he presents it rather confusingly, and altogether not convincingly. The Palestinian diaspora constitutes half of the Palestinian people. The UN has recognized the right of the Palestinian people to self-determination, and that the PLO is the sole representative of the entire Palestinian people. According to Goodwin-Gill, a Palestinian state proclaimed in the Palestinian territories would disenfranchise the Palestinian diaspora and that the proclaimed state would, therefore, not be representative of the entire Palestinian people. Substituting the PLO for the State of Palestine would leave half of the Palestinian people unrepresented in the world.

One could argue that a referendum should be held among the entire Palestinian people before independence can be proclaimed. However, Goodwin-Gill’s opinion omits the fact the PLO already proclaimed an independent State in 1988 on the basis of the borders before the war of 1967. Moreover, that state has already been recognized by over 100 countries (out of almost 200 countries in the world), and it is claimed that the remaining issue is the determination of the border between Israel and Palestine. UN membership would be the ultimate recognition of Palestine and put its status as an independent State beyond doubt. Many states withhold their recognition because they fear that such recognition would be an obstacle to the peace process between Israel and Palestine. For all intents and purposes, the question of complete or partial representation of the Palestinian people seems to be irrelevant therefore.

The birth of a new state in international law and international relations is often a curious mix of objective legal criteria, political recognition and the reality of international life. As such, it is political art and not legal science that will determine whether a new state is in existence and is capable of acting like a state. A comparison can be made with, for instance, Taiwan, which is not a recognized state or a UN member for political purposes although it displays all the characteristics of a fully independent State. Conversely, a Palestinian state, although not displaying all these characteristics, could nevertheless be recognized as a State for political purposes and therefore admitted as a member of the United Nations. The core question is, and remains, in the context of the widely shared desire for a two-state solution, whether UN membership will accelerate the peace process or not.