Guy Goodwin-Gill, a lawyer who wrote an opinion opposing the Israeli security fence for the International Court of Justice in 2004 now writes a legal opinion challenging the PLO statehood bid.
One of the central issues at stake is that UN recognition of a Palestinian state would lead to the creation of a state that does not represent Palestinian rights:
But states which are imposed, top-down, or which are crated 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.The complete text of Goodwin-Gill's opinion can be found online.
...As I understand the present proposal, the state of Palestine may replace the PLO as the representative of the people of Palestine at the United Nations. But we need to ask, what is the legitimate basis for such representation? I am not saying that it cannot be done, for of course it can. But only that I do not see the hallmarks of democratic, representative and accountable statehood – something in turn which depends on an exercise of the popular will. Shouldn't this come first?
This is more than just a political, legal or philosophical point. As Steven Rosen points out, the fact is that the proposed Palestinian state is in political/legal chaos:
First, it will have two rival presidents pursuing incompatible policies. Mahmoud Abbas is presenting himself as the president of the Palestine that is pressing the claim in the U.N. General Assembly, but he is not considered to be the president anymore by Hamas, the largest political party in the putative state. And Hamas has Palestine's own laws on its side in this dispute. Abbas was elected in 2005 to serve until January 2009, so his term has expired. In 2009, he unilaterally extended his term for another year until January 2010 (an extension that also has expired), but that extension did not adhere to Article 65 of the Palestinian constitution, the Basic Law. Hamas, which controls a majority in the now defunct Palestinian Legislative Council (PLC), opposed the extension. According to Article 65 of the Basic Law, the legally empowered president of Palestine, since January 2009, has been PLC Speaker Abdel Aziz Dweik, a deputy representing Hamas. Palestine's ruling party, Hamas, considers Dweik, not Abbas, to be the legal president of Palestine, and it has a strong case.And now the UN is going to voluntarily stroll into this mess and declare it a state?
Second, the Palestine that the General Assembly will recognize also will have two rival prime ministers pursuing incompatible policies. Hamas denies that Abbas has the authority to appoint Salam Fayyad as prime minister, because Abbas is not legally the president of Palestine under Article 65 and because Fayyad has not been empowered as prime minister by the Palestinian Legislative Council as required by Article 66 of the Basic Law. Neither his first appointment, on June 15, 2007, nor his reappointment on May 19, 2009, was confirmed by the PLC as required. Hamas, which controls the majority in the PLC, considers the legal prime minister of the Palestinian Authority to continue to be Ismail Haniyeh, a senior political leader of Hamas. Haniyeh was empowered by the PLC to be prime minister of Palestine in February 2006. Abbas dismissed Haniyeh from the office on June 14, 2007, after the Gaza coup, but Haniyeh counters that this decree violated articles 45, 78, and 83 and that he continues to exercise prime ministerial authority under Article 83. The PLC also continues to recognize Haniyeh's authority as prime minister. Here again, Hamas has the law on its side.
From what both Goodwin-Gill and Rosen write, it is clear that the standard for statehood is low indeed.
But then again, when it comes to the Palestinian Arabs, the bar has always been set low.
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