Elliott Abrams

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Abrams gives his take on U.S. foreign policy, with special focus on the Middle East and democracy and human rights issues.

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Whose Brilliant Idea Was That UN Vote?

by Elliott Abrams
August 24, 2011

For years the Palestinian leadership has taken legal advice from a law professor at Oxford University, Guy Goodwin-Gill. But now it seems that they forgot to consult him before demanding a UN vote on Palestinian statehood. In a recent legal brief for the leadership, the good professor demolishes the arguments for UN recognition.

As reported in the Palestinian media, the brief argues that a UN decision to recognize Palestinian statehood replaces the PLO with the Palestinian Authority, and this would have what the article calls “dramatic legal implications:”

First of all, the prospect of substituting the PLO with the State of Palestine raises “constitutional” problems in that they engage the Palestinian National Charter and the organization and entities which make up the PLO, according to the brief. Second is “the question of the ‘capacity’ of the State of Palestine effectively to take on the role and responsibilities of the PLO in the UN; and thirdly, the question of popular representation,” the opinion says.

Part of the problem is that the 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….”  The thing is, 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.”

Then there’s the impact on Palestinians not living in the West Bank or Gaza and whom the PA does not govern:

They constitute more than half of the people of Palestine, and if they are ‘disenfranchised’ and lose their representation in the UN, it will not only prejudice their entitlement to equal representation … but also their ability to vocalise their views, to participate in matters of national governance, including the formation and political identity of the State, and to exercise the right of return,” the brief is reported to say.

The good professor does not add an issue that arises here in Washington. Right now the PLO has an office here, but why should it be permitted to remain open after the UN vote? Every six months a presidential waiver is required to allow it to remain here, due to the long involvement of the PLO under Arafat in terrorism. Would that waiver henceforth be permitted, or be exercised? But if the PLO office is closed, would the United States accredit an embassy for the State of Palestine? Obviously not, as it would be the American position that there is no State of Palestine, not yet anyway. So how about a Palestinian Authority office? Well, but if the PA is dissolved when “Palestine” is recognized by the UN……

President Abbas, call your lawyer. Too late for that? Call your UN representative and ask him how to extract you from this mess.

 

Post a Comment 10 Comments

  • Posted by mrzee

    A Palestinian Authority office in Washington would be a violation of the Oslo Accords which gives the PLO jurisdiction over foreign relations. The PA is limited to domestic issues.

  • Posted by Andrew

    If the General Assembly (regardless of their authority) recognizes the Palestinian Authority as a state within the pre-1967 borders, does that mean they are recognizing Israel within the pre-1967 borders? Or would that be an endorsement that they get AT LEAST the pre-1967 borders, and possibly more?

  • Posted by Elliott Abrams

    From Elliott Abrams: AT LEAST, I am sorry to say.

  • Posted by Office for Israeli Constitutional Law

    Since when does a UN General Assembly resolution have any legal effect?

    Not only does such a UN resolution violate the agreements between Israel and the Palestinian Authority, but it violates Article 80 of the UN Charter, which recognized the rights guaranteed and protected under the Mandate for Palestine.

    Those rights, include the prohibition against partitioning or ceding any Jewish National territory (Mandate for Palestine Article 5) and the right of Jewish settlement on all the territories mapped for the Mandate (ibid.article 6). The boundaries were mapped according to the 1920 Franco-British Boundary Convention.

    International Law states rights do not expire with treaties or the legal instrument which created or recognized the rights (Nice example stated in Article 70(1)b of the 1969 Vienna Convention on the law of treaties.

    The UN is obligated to recognize and protect those rights. Under a legal principle called estoppel, they may not adopt a policy that violates rights or legally binding policy that had been previously been adopted.

    And…no, the 1947 Partition Plan was not a law, it was a General Assembly Resolution, rejected immediately by the Arabs. It also violated Article 80 of the UN Charter. There is no doubt the Mandate for Palestine, which recognized Palestine as exclusively under Jewish National sovereignty, was an in force Legal instrument at the time.

  • Posted by James

    Problem is that the “international community” via the UN and possibly this US administration will bend over backwards to excuse Palestinian stupidity, trampling over long-established laws and norms if need be. The Palestinians have come to rely on this, at our mutual expense.

  • Posted by Perplexed

    Please explain the relationship between the PLO, the PA, Fatah and Hamas as far as this UN vote is concerned. As I understand it Fatah and Hamas have recently signed an alliance. I take it that any PA/ Palestinian proto-state cannot include Hamas as their charter is in breach of the charter of the United Nations. Where then does that leave Gaza? Provisions of the UN Charter also obligate their members to resolve disputes peacefully. Surely the PA has to undertake no violence by it’s citizens against a neighbouring UN member state and more importantly, the voting member countries have to be satisfied that any new member has the capacity to do this otherwise the voting members are in breach of their own charter.
    It’s all very puzzling why this is not a non-starter?

  • Posted by Hershel Barg

    Mr. Abrams,

    I’m wondering if my memory serves me correctly. Several months ago didn’t I read an article of yours advocating that Israel should recognize a Palestinian state?

    Please either correct me, or clarify.

    Thank you very much.

    Hershel Barg

  • Posted by Elliott Abrams

    From Elliott Abrams: Perplexed has a right to be perplexed, for the relationship between the PLO, PA, Fatah, and Hamas is complex.
    The PLO is, according to the UN, the “sole legitimate representative of the Palestinian people.” Fatah and Hamas are just Palestinian groups: in my view, at this juncture Fatah is a failing political party and Hamas is a successful terrorist group. The leadership of the PLO and Fatah are one and the same; the PA has certain civil authorities delegated to it by the PA under the Oslo Accords. If the UNGA calls Palestine a state, it is unclear what’s left of Oslo and of the PLO and PA. That State of Palestine may “include” Hamas in its borders, but one would hope their status would be as criminals. If “Palestine” includes Hamas in its government and Hamas remains committed to its Charter, Israel will rightly question whether Palestine seeks peace with its neighbor or perpetual war.
    As to the UN, scores of its members are in violation of the Charter and always have been. Remember, one founder of the UN was Stalin’s USSR.

  • Posted by Elliott Abrams

    From Elliott Abrams:
    That’s right, in an article in April in The Weekly Standard. It seemed to me that Israel agreed that the ultimate goal is separation from the `Palestinians, who would be in their own state, and that Israel had made the UN vote more important than it needed to be, and therefore that saying “the vote does not matter, fine, you’re a state, nothing changes” was an option. This was before the unity deal with Hamas, however.

  • Posted by Matt

    In a very real sense this proposal presents the UN with its “Ethiopia” moment. If it rises to the occasion and votes the Palestinian effort down, then they will have to return to the table and negotiate seriously. If the UNGA votes yes, there will be no further negotiations and the region’s problems will lead the world into a world war.

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