Guy Goodwin Gill
Jurist (Opinion)
September 8, 2011 - 12:00am

In August 2011, I drafted an opinion on certain legal questions put to me regarding the issue of "popular representation," so far as they might arise in the context of the push to have the State of Palestine admitted as a member of the UN. The opinion provoked considerable comment, including by those who admitted to not having read it, but the overall result appears to have been a stimulating debate about the linkages between statehood, UN membership and representation of the people of Palestine. As I am not able to deal individually with the numerous questions and requests for further comment, the following paragraphs are my personal attempt to put some of the issues into the wider context of democratic accountability.

A central issue is whether the "democratic representation" of states involves any questions of international law. Here, we are very much on the threshold of normative progress, and the question of Palestine presents certain unique dimensions; how they are dealt with may in turn contribute to how the law in general develops in the years ahead.

The long-standing international recognition of the rights of all Palestinians alters the traditionalist position which would otherwise draw a distinction between the internationally accepted representatives of the state and those, the people, for whom they claim to speak and to act. This qualification has implications, not so much for the acceptance of the State of Palestine as such (for states in their practice can modify the rules if they want), as for the forms by which the rights of Palestinians are to be further and better protected through statehood in international organizations.

Having long since recognized the right to self-determination of all Palestinians, the international community evidently has a legal and political interest in who effectively represents them in the UN. This does not mean that it has a right to impose any particular system of government or representation on the State of Palestine as it moves towards UN membership. Rather, it has a valid interest in looking for evidence of connection between representation and an exercise of the popular will.

For the avoidance of doubt, this interpretation of a long and rich history does not in any way alter the criteria for UN membership. It is more an attempt to outline one of those somewhat inchoate legal interests, not uncommon in the international legal system, where only the foundations and some of the structure of rights are presently in place.

Moreover, that interest of the international community of states is accompanied by responsibilities to assist in building national capacity in pursuit of good governance and democratization, as seen in General Assembly resolutions 64/12 [PDF] and 64/155 [PDF]. This is not just a matter of allowing voices to be heard, therefore, but of translating voices into representation and political action.

Self-determination and the UN

Though it opens with the resounding words, "We the Peoples of the United Nations," the UN Charter remains, of course, the constitutional basis for an international organization of states, and it is states which are its members and directly represented, rather than the people or peoples who stand behind them. This is unexceptional, reflecting the traditional position in international law, where the principal subjects are states. Who represents the state—in a society configured by principles of sovereignty and nonintervention—was long seen as beyond the reach of international law. "Effective government" and independence from others were what mattered, together with acceptance or recognition by the governments of other states.

The Charter locates the principle of self-determination squarely within the UN's purposes, but how that should translate into practice was never prescribed. "Statehood" thus remains the necessary qualification for membership of most international organizations, and in the UN context, the political process of acceptance and admission as a state is by decision of the General Assembly on the recommendation of the Security Council.

An additional twist in the overall picture, however, is provided by the law and practice of recognition. Ideally, this might just be a matter of declaring the facts—a state exists—but historically other states have often also included a discretionary element in their practice, reflecting their willingness or not to enter into normal diplomatic relations with the new state on the block, or with a new government which has established effective authority over all or part of the territory of an already existing state.

Within this mix of law, fact and politics, UN membership counts for a lot, but it cannot answer all the questions. During times of intense political divide, such as the Cold War, states were denied UN membership, whether or not they met the formal requirements of Article 4 of the Charter, while in less contested times, even entities falling short of the criteria of statehood have been admitted. There is thus an uneasy connection, moderated by politics, between statehood, eligibility for UN membership, and self-determination, particularly at the point of representation at the international level.

For the people of Palestine, these issues come together in a telling way, for those displaced since 1948 and their descendants constitute more than half of the people of Palestine. The General Assembly has repeatedly stressed that "the Palestinian people is the principal party to the question of Palestine," for example, in resolutions 3210 (XXIX) [PDF], 3236 (XXIX) [PDF] and 3375 (XXX) [PDF]; and on no occasion has it drawn any distinctions on the basis of place of residence. It is thus the people of Palestine, as a whole, who possess the right to return and the right to self-determination.

Historically, these have been among the critical constituent elements in the movement for liberation. Given the obstacles faced by the people—not the least being exile and a divided land—it is hardly surprising that the modalities for achieving democratic, representative and accountable government in a future state and in the interests of all Palestinians have either been sidelined by momentarily greater concerns, or left pending for later, in some imagined period to come of calm transition and reflection. Nor is this exceptional. In practice, states commonly emerge and are accepted during ongoing conflict, or during the chaotic aftermath of state-building. At such times, often only the distant promise of elections can be offered to a people whose struggle for national liberation seems best achieved for now by the international recognition of their state. What is different in the Palestinian case, however, is the emphasis given both to return and to self-determination.

In addition, things move on, and international law is no different. Over the last 15 to 20 years, both states and international organizations have started to review assumptions about sovereignty, and to ask whether the right to represent a state internationally should perhaps be contingent on a clear link to a valid expression of the will of the people. Even at the 1945 San Francisco Conference, some delegates spoke of self-determination as necessarily reflecting the free and genuine expression of the will of the people, even if any talk then of a "right" to representative or democratic government would have been premature. But the idea itself persists. Article 21(3) of the Universal Declaration of Human Rights, adopted just three years later, declares that, "The will of the people shall be the basis of the authority of government." Some 30 years ago, the noted international lawyer, Antonio Cassese, remarked that the exercise of self-determination implies the freedom of the people to choose their model of internal and external governance, and that in turn requires opportunity and, among others, effective protection of related freedoms of association and speech. In the 1980s, it was still doubted whether international law, in a positive, normative sense, had anything to say about representative, let alone democratic government, and even today election observation and UN electoral activities remain sensitive issues.

UN Secretary-General Boutros Boutros-Ghali nevertheless gave impetus to the democracy debate as an element integral to three position papers put out in the 1990s—An Agenda for Peace, An Agenda for Development, and An Agenda for Democratization. The General Assembly, the Commission on Human Rights, the Human Rights Council, and the Human Rights Committee have likewise maintained a focus on the democratic imperative. In related developments, the idea that intervention is acceptable in support of democratically elected governments has gained traction in Africa and Latin America, while the UN itself has continued to provide electoral assistance to new and restored democracies. As UN Secretary-General Kofi Annan noted presciently in 2003, "just as the price of exclusion is often violence, the benefit of political inclusion is a much better prospect of stability."

For its part, the Human Rights Committee has confirmed the link between elections and representative democracy, noting that it is implicit in Article 25 of the International Covenant on Civil and Political Rights that representatives who exercise governmental power are accountable through the electoral process for their exercise of that power.

The move to enhance the Palestinian presence in the UN through "statehood" nevertheless carries the risk of fragmentation—where the state represents the people within the UN and the Palestine Liberation Organization (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.

Would that be achieved by having the PLO as the representative of the state in the UN? It might well do, if the appropriate form of words could be found. The bottom line, however, remains the will of the people, and any substantive change in the present institutional arrangements for representation calls for approval through an expression of the popular will, followed by international recognition equivalent to that given to date, for example, by the General Assembly and the Arab League.

Elections and the Will of the People

In recent years, numerous international, regional and non-governmental organizations have striven to flesh out what it means, as a matter of international law, to require of states that they follow the path of free and fair elections. Although different perceptions remain, it is increasingly accepted that popular participation is necessarily linked to rights—the right to be recognized as a person at law and hence to be registered and enabled to vote, the right of universal suffrage, the right to associate for political purposes, to establish political parties, to freedom of expression, to the secret ballot, and to a transparent and verifiable ballot count, among others.

Is there any reason why, in the case of Palestine, any of this should wait? The challenge for the people of Palestine and for those who speak for them today is probably unique in the perspective of "state-building" and democratic development. It is to move consciously and openly from internationally accepted institutional representation into the traditional state model, but without losing the legitimacy that comes from the voice of the people—to a model, therefore, in which all Palestinians continue to be represented, and are seen to be represented, in and through the UN.

Obviously, the situation in the West Bank and Gaza and among the diaspora is different from much of what has come before. Can mechanisms not be devised and put in place which would ensure the most free and ample participation of the people of Palestine in determining their future system of governance and, in the immediate and short term, the nature and composition of their representation at the international level?

The goal of elections and democratic reform has long been on the PLO agenda. Is this not the time—the very best of times—to take that almost unprecedented step for a people on the threshold of UN membership, namely, to seek and to heed the will of the people?

Why should the people not be registered, for example? Voting by refugees and the displaced is nothing new; both the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Inter-Parliamentary Union (IPU), as well as host states, have contributed in the past to the processes of registration, balloting and counting. As noted above, the international community and the UN have responsibilities here, and considerable experience also in building and strengthening capacity.

The Democratic Imperative

The IPU's 1997 Universal Declaration on Democracy underlines that democracy presupposes a "genuine partnership between men and women," "free political competition," and "open, free and non-discriminatory participation by the people, exercised in accordance with the rule of law, in both letter and spirit." In David Beetham's words, "representative" means "reflecting the most important characteristics of the electorate, in the matter of geographical distribution, political opinion, and social composition," while political equality means that, "everyone counts for one."

As the drive for Palestinian statehood gathers momentum, understandably given the intransigence of certain parties and the obstacles repeatedly placed in the way of progress, that one important question still raises its head: Who will represent the people of and in the state? Of what value, democratically, are historical declarations of intent? Or assertions of present authority? Or the status quo? People's expectations of government have moved on and democracy requires representative institutions and the mechanisms to allow their functioning and change. In appropriate circumstances, their realization can be a joint, cooperative effort, but neither individual participation nor assent can be taken for granted, anymore than accountability to the people.

International law does not yet make democratic representative government a condition of statehood or even a condition of membership of the UN (regional organizations are another matter). But the character of government and representation is increasingly a matter of international concern and inquiry, while the people also increasingly embed their claims and their right to accountable government not only in local principles and precepts, but also in the rules and standards endorsed internationally.


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