John Quigley, international law professor, on Palestine — in Palestine

John Quigley, renowned legal scholar and professor of international law who has written several books on the Question of Palestine — and who believes that the state of Palestine already exists, based in the Palestine Liberation Organization’s 1988 Declaration of Independence — is in Ramallah for a few days.

He will be speaking at a conference at Bir Zeit University this [Tuesday] morning [co-sponsored by the Bir Zeit University Institute of Law + the Konrad Adenauer Stiftung] on “The Quest for Palestine Statehood: Legal, Political and Economic Implications”.

At an appearance at the [Quaker] Friends Meeting House in Ramallah [arranged by the independent Palestinian human rights organization Al-Haq] on Monday night, Quigley said that the Palestinian right to statehood existed before or prior to — and without reference to — the UN General Assembly’s Resolution 181 [adopted 29 November 1947], but he noted that the PLO relied upon Resolution 181 as the basis for their claim to statehood in 1988.

Asked [by Sam Bahour, who was in the audience] if UNGA Resolution 181 is legal, if it had a legal foundation, Quigley replied that it was adopted as a recommendation, as a suggestion to 2 parties, as a proposal to the two parities, to deal with the situation by partition, with economic union and respect for the rights of everyone. [The situation = Britain announced after the Second World War that it wanted to get out of its responsibility for the Mandate of Palestine that it acquired from the League of Nations after the First World War].

So, Quigley continued, this UNGA Resolution 181 was viewed very clearly as a recommendation, but because it was rejected by Arab countries, the major powers a few months later put it aside.

Quigley then suggested that what gave UNGA Resolution 181 legality, or legitimacy [he avoided specifying the term] was the PLO’s acceptance of it, over 40 years later, as the basis for the Palestinian Declaration of Independence in 1988.

In terms of the unfulfilled Palestinian right of Self-Determination, Quigley said that it would have been better supported if the PLO had not, in 1988, confined its territorial claim to the West Bank and Gaza — it could have, at that time, called for Self-Determination in much larger territory.

However, he said, having made the determination in 1988 that they would establish their independent state within the borders / armistice lines that existed before the June 1967 war, it would be very difficult [if not impossible] for the Palestinians to go back on this now.

He did note that Israel became UN member in 1949 without specific mention of territory [or borders]; Israel’s subsequent occupation of territory in 1948 [after the departure of British forces] beyond the delimitation proposed in the UNGA resolution’s 1947 partition plan, has “never been dealt with in any way”.

It is very hard to argue that Jewish settlers in the West Bank have a right or claim to territory there on the basis of Self-Determination — especially, he said, since the International Criminal Court has now solidified the position of the Geneva Conventions, and also of customary international law [including the Hague Convention of 1907, which Israel does accept], that establishing settlements under a military occupation is a war crime.

The real problem, Quigley added, is that it will be very difficult for the Palestinians to gain jurisdiction over Israel in in international fora, because Israel opts out from the jurisdiction of the International Court of Justice in every international human rights treaty except the Genocide Convention.

In contrast to the positions held by some in the audience in Ramllah, Quigley said that the PLO’s “UN bid” — its filing of an application for full membership on 23 September — will enhance its ability to represent Palestinian interests.

If anything, Quigley said, Palestinian statehood enhances representation for the Palestinian diaspora. He argued that some Palestinian complaints [including the fears of diaspora about their lack of representation] with regard to the recently-submitted “UN bid” are “internal questions”.

Just because there hasn’t been a very effective effort made in the past to implement the rights of those outside, doesn’t mean that they still won’t be in the future, Quigley noted. “All I’m saying is that Palestine as a state will be in a stronger [and better] position to do so”, though it remains to be seen what will happen.

He also noted that there doesn’t seem to be any indication of an attempt to abandon the Palestinian right of “repatriation”.

And, he said, Palestinian complaints that there should have been greater consultation before making the UN bid is also an internal Palestinian matter, while “at an international level, a state representing a population that acquiesces in its control — even if it doesn’t like what that state does — is capable of taking such actions”.

The legal opinions of Oxford Professor Guy Goodwin Gil are “a bit hard to follow, for me”, Quigley said, as Goodwin Gil doesn’t think Palestine is a state [contrary to the position Professor Quigley has held for years], and wouldn’t be — even if that status is accepted by the UN General Assembly”… By contrast, Professor Quigley said he believed that “the Government of Palestine has every right to represent and present those issues [human rights obligations] in whatever fora are available… It is recognized that states have a right to make complaints and seek reparations”.

But, Quigley noted, this memo “was exaggerated a bit … to mean that statehood is a bad idea — which Goodwin Gil didn’t say … his concern was that the PLO might be abandoned … and Self-Determination would then become a problem”. But, Quigley said, “Mahmoud Abbas in the UN was quite clear that the PLO would continue its representation of all Palestinians, including those outside”


UPDATE: One of Professor Quigley’s most distinctive positions is that Palestine is a state, already.

How does he come to this conclusion?

He explained it, both at the event at the Friends’ Meeting House last night, and again today in the conference at Bir Zeit University on “The Quest for Palestine Statehood”:

After the First World War, he said, there was a rather contradictory approach:

(1) On the one had, it was recognized [in the Covenant of the League of Nations, he specified] that the peoples of the Arab territories in the former Ottoman Empire had the right to Self-Determination — that is, there was acceptance of the peoplehood of the inhabitants of those Arab territories, and of their right to Self-Determination, yet
(2) on the other hand, the major powers were looking out for their own interests.

The Balfour Declaration [issued during the First World War] was adopted out of consideration of British interests at that time. After the war, in 1923, the British Cabinet entered into a [secret, internal] program of reassessing whether or not to stick with the Balfour Declaration, which they decided, after a serious study, wasn’t going to work. This was discovered only years later, when the documents were finally made public. But, he said, the British government was afraid that if it went back on the Balfour Declartion, they might risk being relieved of the Palestine Mandate which had been given to them at their insistence. So, the British continued to give reports about how it was establishing a Jewish National Home and also at the same time protecting the right of all inhabitants of Palestine.

[Quigley noted in the Bir Zeit Conference today that “the Balfour Declaration was very much contradictory to Self-Determination”, though “the actors at that time [including, Quigley noted, Palestinian lawyer Henry Cattan, and British Mandatory official Norman Bentwich] considered Palestine a state”. .

Quigley said that Iraq, Syria and Palestine were three entities which — though under separate mandates after the First World War issued by the international organization of the time, the Geneva-based League of Nations — were considered States. “This may seem odd, if you don’t have complete control [or sovereignty]”. But, he said, the precedent for this situation existed in international law, and was the “Protectorate” regime.

What is necessary, Professor Quigley said, is “that there be no other entity that claims sovereignty”, he argued.

And, he said, there were no other claims on Palestine [that is, he said, there were and still are are no other claims — at least not officially, on the West Bank, and on Gaza — except for Israel’s unilateral annexation of the Old City of East Jerusalem and nearby areas of the West Bank which it agglomerated in the weeks after the June 1967 and re-named the “Greater Jerusalem Municipal Area”, a move which UN member states subsequently declared in numerous resolutions, both in the UN General Assembly and in the UN Security Council, as “null and void”].

Other evidence that Palestine was considered a state, Quigley added, included these facts:
(A) the Permanent Court of International Justice, which had been set up by the League of Nations, determined a claim in Justice that “Palestine was a successor state to the Turkish empire in the State of Palestine [like Syria, like Iraq, in their respective territories]; and
(B) in 1932, the British government wanted to change its tariff law to exempt goods coming in from Palestine [so as not to disadvantage Palestinian goods, Quigley explained]. But, there was a slight legal problem, he said: Britain at the time had a number of Most Favored State Treaties already with other states. “The question turned on the status of Palestine — was it a state, or was it so connected to Britain [that it was part of Britain]. The British Government decided to ask the U.S., in secret correspondence that was made public some years later. The U.S. response was: Palestine is a state, so if you give Palestine zero tax status, we too will claim zero tax status”. Quigley added that Britain also asked Italy and France, who also replied [in 1932] that they considered Palestine a state, and if Palestine was given zero tariffs then they would also claim the same zero tax status; and
(C) Palestinian nationality was considered separate from Britain, based on the statehood of Palestine: and
(D) after World War Two, Egypt administered Gaza on the basis that it was Palestine, and maintained Palestine law which was published in the Palestine Gazette because “it was the territory of Palestine. In the West Bank, the situation was somewhat different — the territory was incorporated by decision of the National Assembly of Jordan at the time — but this was considered, Quigley explained, “provisional upon the resolution of the ‘just case of Palestine’ “.

Furthermore, Quigley told the audience at the Friends Meeting House in Ramallah, in 1945, at the time when the League of Nations was formally dissolved and the United Nations came into being, UN member states pledged in the UN Charter to establish / continue the rights that existed under the League of Nations –which included the right of the population of Palestine to Self-Determination.

And, when Britain announced [in 1946] that it was going to abandon the mandate, the Palestinian representatives at the UN said that if that’s going to happen, then there should be a Palestinian state.

Instead, Quigley noted, the UN General Assembly-appointed Committee came up with the idea of partition — even though the League of Nations Mandates were supposed to end with the independence of the territories under mandate.

Quigley explained that he believed that the UN General Assembly was seeing the Palestine Question in conjunction with the Question of displaced Jews in Europe, and Palestinian interests were being subordinated to those of displaced Jews in Europe — which, he said, “to my mind is why UNGA Resolution 181 is written as it is”.

And, he said, when the Jewish fighters took over territory beyond the partition plan, “the UN did not react — why? Because it [Resolution 181] had been rejected by the Arab sides. And the U.S., which had been the major backer of Resolution 181, they abandoned it and decided it would be good to do something else. The U.S., in April and May of 1948, developed a detailed plan for Trusteeship. But, the organized Jewish community decided to declare a state in Palestine, and got the U.S. [President Truman, who was then engaged in an election campaign] on their side … to the great consternation of the U.S. Secretary of State and State Department, which was at that time heavily involved in trying to go to Trusteeship over Palestine”.

[In 1967, Israel did not declare sovereignty over Gaza and most of the West Bank territory it acquired by war — leaving room for a Palestinian claim, Quigley said — though Israel did, about three weeks after the June war ended, declare sovereignty over some areas which it then called the “Greater Jerusalem Municipality”.]

Quigley’s argument then jumps to the PLO decision [ratified by the Palestine National Council] in 1988 to constitute itself as a government for the State of Palestine.

At the Bir Zeit Conference today, Quigley noted that the PLO Declaration of Independence in 1988, and its decision taken in the same session that the PLO Executive Committee would serve as the Provisional Government of Palestine, refers back to the 1923 Treaty of Lausanne [which made it possible for the British Mandate over Palestine go into effect]. In the 1988 statement, Quigley said, “the PLO said that it was not creating new state — but instead was creating itself [or, its Executive Committee] as the potential government of Palestine”.

Subsequently, Quigley added, “in the practice of the UN, though not as a formal matter but instead for practical purpose, Palestine has been treated as a state in the UN General Assembly and in the UN Security Council”.

At the Friends Meeting House in Ramallah last night, Quigley noted that after the PLO’s 1988 Declaration, the UN General Assembly then adopted a resolution welcoming that decision, with the explicit idea the the PLO was the representative of the Palestinian people — presumably, Quigley said, with the idea of eventual statehood being accepted by the UN.

“The premise of the Declaration was based heavily on Self-Determination and Statehood”, Quigley noted, and the PLO “through the 1980s tried to find a way through international law” to reach statehood.

But, Quigley said, the U.S. opposed the idea that Self-Determination and Statehood should be at the center of the move. Instead, he noted, in 1991, the U.S. took the lead in promoting the concept of bilateral negotiations — which took legal considerations out of the picture and left it up to negotiations between the two parties, who definitely are not on a par”.

So, “since those negotiations are not based on any legal concept”, Quigley said, “nothing would go ahead unless Israel would agree to stop constructing settlements — so now we have a situation where negotiations are serving as a cover for settlement construction … [Then], in the Oslo Process starting in 1993, no obstacles were placed on the construction of settlements. So by 2011, there is now very little prospect of a negotiated settlement because of that issue.”


John Quigley is a Professor at Ohio State University, and author of. among other things, these specifically-relevant books:
The Case for Palestine: An International Law Perspective (Duke University Press, 2005);
The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, 2010); and
• ‘Self-determination in the Palestine Context’, in International Law and the Israeli-Palestinian Conflict (Routledge, 2011).

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