In August 2011, I drafted an opinion on certain legal questions regarding the issue of "popular representation", so far as they might arise in the context of the push for the state of Palestine to be admitted to membership of the United Nations (to see the updated document click here). 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 link between statehood, UN membership and representation of the people of Palestine.
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 develops in the years ahead.
Having long since recognised the right to self-determination of all Palestinians, the international community evidently has a legal and political interest in who effectively represents it in the UN. This does not mean 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.
Who represents the state – in a society configured by principles of sovereignty and non-intervention – 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 governments of other states.
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 all Palestinians. The general assembly has repeatedly stressed that "the Palestinian people is the principal party to the question of Palestine" 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. In practice, states commonly emerge and are accepted during ongoing conflict, or during the chaotic aftermath of state-building. 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 past 15 to 20 years, both states and international organisations 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.
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 1966 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 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 recognising 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.
In recent years, numerous international, regional and non-governmental organisations 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. Is there any reason why, in the case of Palestine, any of this should wait? Can mechanisms not be devised and put in place which would ensure the most free participation of the people of Palestine in determining their future system of governance and, in the 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 the count. The international community and the UN have responsibilities here, and considerable experience also in building and strengthening capacity.
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, in my view, democracy requires representative institutions and the mechanisms to allow their functioning and change. In appropriate circumstances, their realisation can be a joint, co-operative effort, but neither individual participation nor assent can be taken for granted, any more 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 organisations 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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