Hilal Elver and Richard Falk
[Prefatory Note: This jointly written post was previously published in Truthout on January 20, 2016 in slightly modified form, and with the title “Will Countries Follow Through on the Climate Pledges Made in Paris?” Our title here tries to broaden the scope of inquiry to encompass the problems with the agreement that extend beyond fulfilling the pledges. We focus especially on the insufficiency of the pledges given the goals with respect to average earth temperature, how to address climate change in a manner sensitive to the concerns of climate justice, especially the harm being imposed by global warming on various categories of vulnerable people.]
It is time to move on from the aura of good feelings of accomplishment created by the Paris Climate Change Conference of last December, and begin asking some hard questions. Above all we need to assess whether an agreement that consists of voluntary pledges that gained the participation of every country on the planet is workable and sufficient, and whether its contribution to slowing global warming should be celebrated or lamented at this stage.
Does the agreement really provide a realistic hope that the international community is going to regulate adequately human caused (anthropogenic) climate change? Or, should the Paris Agreement be dismissed as a ‘fraud’ as James Hansen, the renowned climate scientist turned activist, advises? Is every one of the 195 signatories at Paris genuinely committed to and capable of upholding the agreement? Are their pledges realistic and appropriate? The answers to such questions vary depends on who is giving the answers. Fossil fuel (oil, gas, coal) producer countries, along with most energy companies, are not happy with the agreement as it strongly anticipates shifts to renewables that threaten to eliminate fossil fuels altogether by the end of the century. At the same time, clean energy companies (wind, solar, and even nuclear) are understandably enthusiastic, expecting a surge in governmental and market support for their technologies and dramatic increases in demand for their products.
It is strange that the agreement never explicitly mentions that ‘fossil fuels, or coal and oil are going to be phased out.’ Yet everyone in Paris realized that fossil fuels were the elephant in the room. Drafters of the Paris Agreement were crafty enough not to use provocative language, while still sending clear signals to energy investors that the future belongs to the renewables. We should appreciate the fact that developing countries will continue to rely on traditional energy resources for a long time, and take into account the reality that the developed world has been relying on fossil fuels without restriction since the industrial revolution. It is not fair to insist that developing countries stop using fossil fuels because it is bad for the climate, without these richer countries shouldering the financial burden of the costly switch to clean energy, which would impose burdens on their development and poverty reduction plans. Ideally, this kind of transfer payment would be financed by a tax on transnational financial transactions, hedge fund profits, or international airline flights, but this seems highly unlikely to happen so long as the neoliberal ideologues of global capital continue to pull most of the strings that determine economic policy. The Paris Agreement is suspiciously silent about how such transfer payments will be financed, leaving it to individual states to decide.
Although the agreement lowered the threshold of tolerable warming by half a degree centigrade (from 2 to 1.5 degrees Celsius), the means to reach the goal is far from adequate. Even in the unlikely event that every country keeps its promises, the average earth temperature will rise at least 3 degrees Celsius by the end of the century, and this will cause havoc in many parts of the planet. With this in mind, skepticism about the Paris outcome seems justified. The existence of this wide gap between the predicted average temperature rise expected by a consensus among climate scientists and the insufficiency of even full compliance with the Paris targets is a core dispiriting reality. There is a reset feature contained in the agreement that would allows parties to make an upward adjustment in their emissions commitments that would be more in keeping with what the scientific consensus on global warming. But how likely is this to happen? As with other aspects of the agreement this possibility is voluntary and vague, and so its value in enhancing the climate ambition of governments will depend on their increased dedication to ensuring a prudent future for the planet and upon the degree to which civil society pressures makes such action seem politically expedient as well as socially responsible.
Reducing Emissions Voluntarily
The climate change regime has a unique structure to differentiate responsibilities among the developing and developed parties by taking account of the needs and situation of developing countries, and assesses the historic responsibility of developed countries to explain the imposition of unequal obligations. CO2 stays in the atmosphere for centuries and accumulates over time, making activities in developed countries responsible for current levels of global warming. Despite this, the Paris Agreement avoids mentioning ‘historical responsibility’ as this would be ‘a red flag’ that might agitate the Republican-controlled United States Congress, and maybe make some other governments as well so nervous as to repudiate the entire Paris arrangement. Excluding any reference to historical responsibilities was definitely a psychological victory for developed countries, but whether it also has substantive relevance only time will tell.
These richer countries led by the United States also achieved some big victories that were substantive as well as symbolic. They succeeded in weakening the ‘loss and damage’ principle, which was intended to make the developed countries financially responsible for addressing some of the adverse impacts that developing countries are experiencing due to climate change. Financial responsibility to repair the damage caused by extreme weather events could be extremely expensive. Such damage could be particularly catastrophic for acutely vulnerable low-lying coastal countries and several small island states. Their economic viability and even physical survival is at grave risk in the near future.
Without doubt, the biggest, and most disturbing, diplomatic success at Paris for the developed countries was to make the agreement formally voluntary in all of its aspects. Even the central pledges (‘Intended Nationally Determined Contributions’ or INDCs ) of countries with respect to reductions in greenhouse gas emissions (GHG) are presented as voluntary. The language of the agreement is worded in ways that allow multiple interpretations, and its behavioral consequences are uncertain at this stage even if we grant good faith participation by all governments. Parts of the agreement are inflected with a tone of Orwellian doublespeak apparently intended to disguise any differences between agreeing to do something and not being obliged to do what was agreed upon.
There are many reasons why this feature of the Paris approach is most troublesome. Its presence mainly reflects America’s diplomatic muscle exerting a downward pressure on the negotiating process that produced a kind of linguistic race to the bottom. The Obama presidency if it were acting on its own would definitely be supportive of a stronger commitment process. It is rather the intimidating expectation that any international agreement of this magnitude would be considered as a treaty if it imposed financial and behavioral responsibilities in obligatory language and included dispute settlement procedures. Such an approach would constitutionally required the agreement to be submitted to the U.S. Senate for ratification by a two-thirds vote, which would be unobtainable, meaning that the treaty would die in the legislative chamber, and likely that kind of more robust Paris undertaking would quickly become irrelevant. It should also be noted that several pivotal developing countries, including Brazil, China, and India also favored this kind of voluntary framing of national commitments, and seemed content to let America do most of the dirty work of watering down the language of what was agreed upon.
The good news is that the agreement will make all national commitments transparent, reviewable, and even expandable. The pledges do not become operative until 2020, and then starting in 2025, after each interval of five years, there will be a review of performances with respect to the fulfillment of pledges and an opportunity to reset the earlier emissions reductions commitment. If a signatory fails to live up to its pledge, it is presumed that it will be asked for an explanation. Will it then face any negative consequences? The preliminary unnerving answer is that ‘none at all’ are likely to follow– at least nothing is prescribed. At most, a process of ‘naming and shaming’ may be forthcoming that could conceivably tarnish the reputation of a state that inexcusably fails to meet its pledge. Of course, if such a non-complying state is the victim of extreme weather events or is in the midst of war, civil strife, or economic crisis, its disappointing performance will be overlooked. Even when the excuses for failing to meet the pledges are not credible, the etiquette of diplomacy makes most states reluctant to be critical of one another in public spaces unless the target of criticism happens to be an adversary.
Parallels with Human Rights Commitments
The coming struggle for climate compliance will no doubt resemble the long story of success and failure associated with the Universal Declaration of Human Rights (1950), perhaps the most influential ‘voluntary’ set of commitments ever made. The very reliance on the word ‘declaration’ was meant to reassure governments that states were not any way obligated to uphold what was set forth as ‘rights’ in the text. When the UDHR was drafted and approved after World War II there was little expectation that the standards set would be met in practice, but what was created, and proved surprisingly effective, was a normative architecture that bestowed on the human rights community in civil society a powerful tool for the exertion of pressure that did create compliance incentives outside the international instrument itself. It turned out that most governments, although not all, cared sufficiently about their international reputations that they bent policy to satisfy many of the demands of human rights NGOs. In their turn the NGOs were discreet and deferential, doing their best to avoid embarrassing a government if it cooperated in ending an abusive pattern and appeared to be acting in good faith.
We believe the Paris Agreement creates a similar tool that can be used to great advantage by civil society. At this point it is far from clear whether a soft law, or voluntarism of this character even if effective within its term will prove nearly sufficient to curtail the menace of global warming. As with human rights the prospects for implementation will depend on whether NGOs and social activists exert sufficient pressure where it is most needed. We cannot be too hopeful about this. Climate activism varies greatly from country to country, and sometimes where needed most, it is absent or weak. But, there are also some positive developments. It is encouraging that the climate movement is becoming transnational and will be able to highlight the failure of some governments to make INDCs at appropriate levels and to offer criticisms of those that inexcusably fail to fulfill their pledges. If such activism is effective, it will also encourage governments and international institutions to be more vigilant with respect to their own implementation efforts, inducing ‘virtuous circles’ of compliant behavior, and even reset pledges that increase emission reductions.
Settling for a voluntary framework was the biggest departure from the approach taken by the Kyoto Protocol, the earlier climate change regime that had also been greeted with great fanfare when negotiated in 1997. In some respects the comparison is misleading. At Kyoto only developed countries were made responsible for greenhouse gas emission reductions. As a result the US and several other important countries gave this one-sidedness as their reason for refusing to adhere to the emissions reduction agreement. Therefore, Kyoto was virtually stillborn, engaging a group of countries that were responsible for only 12% of global emissions, and making almost no impact on the dangerous continuing overall buildup of GHGs despite the positive attention the agreement initially received in environmental circles.
From this point of view, the Paris Agreement is very different from Kyoto. As mentioned it makes all commitments voluntary, but participation is extended to all countries, rich or poor, developed or developing. ‘Differentiated responsibilities’ as imposing concrete duties on developed countries and leaving developing countries free to act as they wish has been replaced by a state-by-state approach in which each government indicates what it is prepared to do to cut emissions. Countries make these promises based on national assessments of their specific capabilities and circumstances. It will be important to examine objectively whether some countries submit unreasonably low INDC pledges, as well as to monitor whether the promises made are being kept in good faith.
The Paris approach is also reminiscent of the relationship between the UN and its predecessor organization, the League of Nations. The League had treated all countries as having an equal sovereign status, while the UN deferred to geopolitical realities by giving the five winners after World War II a right of veto and permanent membership in the Security Council. In effect, ‘a Faustian bargain’ was struck in which universality of participation was achieved at the price of giving geopolitical actors the discretion to disobey the Charter whenever their interests or those of their friends so dictated and to make respect for the authority of the UN essentially voluntary. Paris makes an equivalent tradeoff. In exchange for getting all states to participate, the content of what was agreed upon is seriously compromised, and prospects for compliance diminished, leaving the underlying challenge inadequately addressed.
This is not just a conceptual issue. The grossly different material circumstances of states, together with their great disparities in vulnerability and capacity to withstand climate change damage, makes it more problematic to achieve the collective good of climate stability. In this context, the free rider problem seems seriously to weaken incentives to comply, with countries standing to gain if others act conscientiously while they do less than is expected, either by making their INDC unreasonably small or by cheating and falling short. This vital concern is nowhere addressed in the Paris Agreement, and awaits future efforts to set standards, create a stronger sense of collective responsibility, and establish responses in the event of non-compliance. It is to be hoped that civil society will be especially vigilant in assessing whether the free rider aspects of the Paris Agreement are undermining compliance and the raising of the commitment level by important emitter countries.
In sum, the United States government, at least the White House, most Democrats, and the majority of citizens, are pleased for the present about what emerged from Paris. After all the agreement embodies the American-led insistence on a voluntary approach that is long on rhetoric while being short on commitments, yet rhetorically responsive to the asserted urgency of curtailing global warming. The large American delegation provided influential leadership on drafting issues before and during the conference using its good offices to foster a constructive atmosphere of compromise and accommodation among the assembled governmental representatives. Even the energy companies were not too disappointed. They succeeded in avoiding being openly targeted in the agreement. Beyond this, they were given enough adjustment time to accommodate major changes in the way energy was supplied.
Delays and Abstractions
Parties are not asked to start fulfilling their emission pledges until 2020. That is when the Paris agreement goes into effect. After this there is another five-year period until assessments of performances are made. This gives energy companies ample time to bring petroleum resources under their control to market and at the same time, making large investments in clean energy technology to ensure future returns on capital for their shareholders. Taking an even longer view, these companies have until the end of the century to become clean technology suppliers, and will be benefitted in the process by government subsidies and a downward trend in production costs for renewables.
Transparency and monitoring for the fulfillment of the INDC s are important. China was reluctant, at first, to accept even this limited form of oversight, but in the end went along. It appears that its cooperative posture was induced by Obama’s skillful courtship. The United States shared with China the informal status of being dual leader in the shaping of a voluntary approach the broad contours of which had been agreed upon even before the Paris conference began. China seemed satisfied with the agreement, apparently relishing its own prominent role, and in the end promising to make a large financial contribution to Green Fund established to support the adaptation efforts of developing countries. China is also looking forward to selling their cheap and efficient solar technology around the world. At the same time the severity of China’s domestic air pollution problem reached emergency levels during the conference, making urban pollution in the country an urgent priority. The direct link between China’s polluted cities and reducing carbon emissions for the sake of climate change undoubtedly also encouraged Chinese support of the Paris proceedings. At the same time, it is important to understand that polluted cities are distinct from the sort of atmospheric blockage that GHG emissions have caused. In effect, the global warming dangers could be just as great or even greater than at present, while the cities of the world enjoyed healthy and clean air.
It may seem strange that climate change negotiations often seem to be more about finance, development, and energy policies than about preventing global warming. If you were in the great halls and back rooms where governments were trying to overcome their disagreements, you might well conclude that the conference was about money not emissions. There was a tug of war involving decisions about how much assistance a particular country will receive, and which countries would accept responsibility for contributing specific amounts of funds.
There are also voiceless communities that were essentially unrepresented in Paris, including one billion persons struggling with extreme poverty and hunger, 350 million indigenous people that constitute ‘nations’ that often exist as captive communities within sovereign states, and the plight of future generations faced with the prospects of rising temperatures and sea levels. Only states that were members of the UN participate directly with voice and vote in international lawmaking conferences. A recent Oxfam report on Extreme Carbon Inequality confirms that the poorest half of the global population of about 3.5 billion are responsible for only around 10% of total global emissions attributed to individual consumption, yet live disproportionately in the countries that are suffering most from climate change.
For those at these margins, the concern is less about the abstractions of money, than the concrete issues of daily subsistence, quality of life, and even survival. Human rights activists were conscious of the plight of those excluded from real representation at Paris, and did manage to insinuate these social concerns in the text of the agreement, but only in its Preamble (rather than among the operational articles). Mention in the Preamble gives civil society activists ‘a hook’ with which to raise such issues of climate justice, and provides an ethical context that is relevant to future interpretations of what was agreed upon if issues are brought before an adjudicating institution.
The Paris Agreement is awkwardly abstract and indefinite about how it will fund its central undertaking to limit global warming. There is an estimated need for $16 trillion over the next 15 years if the average global increase in temperature is to be kept under 1.5 C. The developed world has so far agreed to mobilize $100 billion per year by 2020 to cover both the costs of emission reductions and to defray the adaptation expenses of measures adopted by developing countries to adjust to rising temperatures. This pledge is as voluntary as it gets, and doesn’t even take effect until 2025. One consequence is that any loss or damage experienced will not provide the victim society with any entitled basis of recovery assistance. It must rely on charity and the efficacy of its begging bowl. Judging from past experience the financial goals set are highly unlikely ever to be reached. From all that we know from the past there has been created a dangerous shortfall between what will be needed and what has been pledged, and thus the financial dimension of the Paris Agreement is as susceptible to disappointment as is the emissions dimension.
What Can We Expect Post-Paris?
After this closer scrutiny of the Paris outcome we need to ask ourselves ‘what can we reasonably expect from post-Paris?’ With the coolness of retrospective eyes, the Paris Agreement failed to ensure that the necessary concrete steps will be taken to avoid future climate change harms, yet still pretended to the world that finally the challenge of climate change had been successfully met by the collective energies of multilateral diplomacy under UN auspices. This could have the debilitating effect of complacency, leading many to think that Paris overcame the challenge of climate change, that was what the cheering at the end of the conference was about.
At the same time, there are some bright silver linings. The outcome in Paris did bear witness to a consensus among governments that strong collective action was needed to reduce carbon emissions in coming years to avoid catastrophe. Furthermore, the experiment of making the agreement an evolutionary process, with opportunities for correction every five years, does enable a heightening of commitments if public pressures about climate change grow in the future as the planet continues to warm.
Beyond this, the very obvious shortcomings of the Paris Agreement should encourage vigilant and militant transnational activism, and hopefully give rise to a robust climate justice movement that could exert a benign influence by inducing countries to revise their emission pledges upward at the periodic reset five year intervals, which start at 2025, and to spread burdens equitably. To confine issues of human rights and climate justice to the Preamble of the Paris Agreement, and to exclude considerations of equity and food security altogether is to reinforce the misleading impression that addressing climate change effectively is only a matter of climate science and economics. In our view, without adding climate justice to the policy equation, unacceptable climate suffering will accompany even good faith efforts to slow down further overheating of the planet. In this respect, the woeful saga of desperate waves of refugees perishing at sea or clinging for life in overcrowded boats is a telling metaphor of an inhumane world order, and a warning of worse to come as pressures mount to leave overheated and impoverished societies.
Now that the Paris Agreement exists, our attention needs to shift to whether countries are fulfilling their pledges and what can be done to make up for the deficiencies in this supposedly historic approach to climate change. It is particularly opportune to focus on the reset opportunity for closing the gap between what was agreed upon in Paris and what climate experts agree is needed. This would seem to be a logical next step. What has become crystal clear is that our human future will depend more than ever on the transnational mobilization of civil society in support of both sufficient emission reductions and climate justice. Governments unless pushed hard lack the political will to do what is needed to ensure a sustainable and just future for the peoples of the planet, and we need to remember that will be pushed in regressive directions by well financed lobbies and special interest groups.
Global Justice in the 21st Century 
The Complex Problematics of Palestinian Representation
30 Jan[Prefatory Note: This post is a much modified and enlarged version of an article published on January 1, 2016 in Middle East Eye. It attempts to address the current quandary that arises from the collapse of Oslo diplomacy and the seeming continuing encroachment of Israel on the territories long believed to provide the Palestinian people with a sovereign state of their own. Such a prospect, now unattainable for both practical and political reasons, contemplated a Palestinian state that would enclose a territory that was 22% of historic Palestine, or less than half of what the 1947 UN partition plan envisioned. For this forthcoming compromise to have become non-negotiable is clear evidence that Israel is in the process of adopting a unilateral solution that is based on the priority of its biblical claims and ethnic origin narrative to the whole of historic Palestine, referred to as Judea and Samaria plus Jerusalem in internal Israeli discourse. In effect, the Palestine right of self-determination is being unconditionally denied, and the Palestinian people given several unpalatable choices with respect to their future.]
While serving as UN Special Rapporteur for Occupied Palestine, especially in my early years between 2008 and 2010, I fully expected to encounter defamatory opposition from Israel and ultra-Zionist, but what surprised me at the time were various efforts of the Palestinian Authority (PA) to undermine my role at the Human Rights Council in Geneva. Its representatives exerted various pressures to encourage my resignation, and made unexpected moves to challenge my reports, especially if they described the actuality of Hamas exercising governing authority in Gaza. At the time I had the impression that the PA was far more concerned with this struggle internal to the Palestinian movement than mounting serious criticism of the abusive features of the occupation. As I was trying my best on behalf of the UN to report honestly on Israeli violations of Palestinian rights under international humanitarian law and human rights treaties, I was puzzled at first, and then began to wonder whether the Palestinian people were being adequately represented on the global stage.
This issue of representation has been rendered acute partly due to Israeli policies of fragmenting the Palestinian people, and then complaining that they have no partner with whom to make peace. Fragmentation indirectly subverts the right of self-determination by rendering ambiguous or unsatisfactory the nature of the self, that is, the people that is entitled to benefit from the right. The emphasis on this interplay between ‘self’ and ‘peoples’ arises from the authoritative language of Article I of the two human rights covenants that both make ‘self-determination’ the most fundamental of rights, which encompasses the others, and confers that right on ‘peoples’ rather than ‘states’ or ‘governments.’
The Palestinians are far from being the only people that is subjugated in ways that deny the ‘self’ the benefit of adequate representation. Consider the plight of the Kurdish people, or should it by now be ‘peoples,’ that can be traced back to the fragmentation imposed on Kurds by the manner in which colonial ambition reconfigured the political communities that has formerly been part of the Ottoman Empire in the ‘peace diplomacy’ that followed World War I. It is the notorious Sykes-Picot framework that was imposed on the region, and significantly responsible for the present turmoil that can be understood as a series of interrelated struggles by subjugated minorities to establish more natural political communities that protect their identities and their rights.
Jurists and politicians can spend endless hours debating whether the claimant of rights is indeed a people from the perspective of international human rights law. Many remember Golda Meir’s famous taunt, ‘Who are the Palestinians?’ There are many unrepresented peoples in the world that are marginalized in various settings, and none more regrettably than the 350 million so-called ‘indigenous peoples,’ victims of brutal dispossession, ethnic cleansing, genocide, and a variety of oppressive forms of subjugation. A truly humane world order would find ways to address historic grievances, while acknowledging that the past cannot be recreated or the present undone. There needs to be some good faith effort to reconcile the pastness of the past with overcoming the suffering being endured in the present. It is this process of reconciliation that Edward Said others articulated as the path to a sustainable peace for Jews and Palestinians.
Whatever the historic narrative that questions the emergence of Israel, as of the 21st century both practical and normative considerations converge on the quest for the dual realization of self-determination for Jews and Palestinians. Note that Zionism is a political project that was embraced by the Jewish people but it is not necessarily a reflection of self-determination for Jews if it encroaches on an equivalent Palestinian right. There is room for compromise, but only on the basis of accepting claims of equality, and refusing to treat the ‘settlements’ as part of the pastness of the past or to regard Palestinian refugees living in camps within and outside of Palestine as enjoying an inferior right of return or repatriation to that conferred on the Jewish people. Reasoning along this line makes it seem diversionary to continue the pursuit of a two-state solution, but this is a matter for the two peoples to decide by themselves if the right of self-determination is to be respected. And this prescribed course of action returns us to the issues surrounding the legitimacy and authenticity of representation. Until this issue is resolved a peace process is problematic if the goal is a sustainable and just peace.
Representation at the UN
Among the many obstacles facing the Palestinian people is the absence of any clear line of representation or even widely respected political leadership, at least since the death of Yasir Arafat in 2004. From the perspective of the United Nations, as well as inter-governmental diplomacy, this issue of Palestinian representation is treated as a non-problem. The UN accepts the Palestinian Liberation Organization (PLO) as the sole legitimate representative of the Palestinian people, although the reality of Palestinian governance to the PA since the Oslo diplomacy was initiated in 1993. A similar split between legal formalism and effective authority exists in international diplomacy although most of the 130 governments have extended diplomatic recognition to the PLO, rather than Palestine, despite its increasingly marginal role in the formation of national and international Palestinian policy in recent years. Ever since the General Assembly accorded recognition to Palestinian statehood in 2012 the question of representation has been settled in favor of the UN within the framework of the UN (UNGA Res. 67/19, 29 Nov. 2012).
This distinction between the PA and PLO is obscure for almost all commentators on the Israel/Palestine struggle, yet it has important implications for diplomacy and the scope and scale of Palestinian representation. The PA, headed by Mahmoud Abbas, is basically preoccupied with the West Bank and its own political relevance, and has seemed perversely aligned with Israel with respect to the fate of Gaza and even the 5-7 million Palestinian refugees worldwide. In contrast, the PLO, at least in conception and until the Oslo diplomacy took over, also in practice, conceived of its role to be the representation of Palestinians of a variety of political persuasions, as well as whether living under occupation or as refugees and exiles, that is, as a people dispossessed rather that a territory oppressively occupied.
The Oslo Diplomatic Fiasco
Among the flaws of Oslo was its affirmation of the delusion that a sustainable peace could be achieved simply by negotiating an end to the occupation of the West Bank, and maybe Gaza and East Jerusalem. The territorial remnant that was left after the Israeli withdrawal would then be viewed Palestine as a semi-sovereign state within these arbitrary borders. This ‘two-state’ international consensus even after its PLO endorsement in 1988 and regional incentives provided to Israel by the Arab Initiative of 2002 was, despite this, effectively killed by a combination of Israeli diplomatic rejectionism and its relentless.
The Israeli rejection of the two state option, which from a Palestinian perspective was at most a minimalist version of peace, was made manifest over the last 25 years by increasing the inhabitants of the settlement gulag, establishing at great expense an infrastructure of settler only roads, and through the construction of an unlawful separation wall deep in occupied Palestine. Yet the 20+ years of negotiation within this framework served Israel well as does the lingering illusion that the only viable settlement is still a rendering of the two-state solution. Sustaining this illusion also helps the United States, and Europe, and perhaps most of all the PA by keeping its international status credible. It allowed Israel the protective cover it needed to continue annexing, building, and cleansing until a point of practical irreversibility was reached some years ago. These defiant actions on the ground undermined effectively the two state mantra without suffering the slightest adverse consequence. This enabled the United States, especially, but also Europe, to sustain the international illusion of ‘a peace process’ while the realities on the ground were making ‘peace’ a dirty word of deceit. It has become a ‘zombie solution,’ where the proposal outlives its viability, and serves purposes other than what it claims.
Most of all, this Oslo charade made the PA seem like it was a genuine interim state-building stage preceding existential statehood. In a situation without modern precedent, the PA achieved a weak form of de jure statehood via diplomatic maneuvers and General Assembly partial recognition under circumstances that lacked the most essential attributes of de facto statehood. Usually the situation is reversed, with the realities of statehood serving as a precondition to its diplomatic and legal acknowledgement. Israel played along with this Palestinian game by denouncing such PA moves as outside the agreed Oslo plan of statehood to be achieved only through negotiations between the parties. Of course, Israel had its own reasons for opposing even the establishment of such a ghost Palestinian state as the Likud and rightest leadership were inalterably opposed to any formal acceptance of Palestinian statehood even if not interfering with Israel’s actual behavior and ambitions.
Interrogating the Palestinian Authority
Yet there are additional reasons to question PA representation of the Palestinian people in the present situation. Perhaps, the most fundamental of all is the degree to which the PA has accepted the role of providing security in accord with Israeli policy within those parts of the West Bank under its authority, which includes the main cities. It is thus hardly surprising that Ramallah suppresses many nonviolent resistance activities of the Palestinians, including demonstrations in support of the beleaguered people of Gaza. As well, the PA zealously apprehends those militant Palestinians alleged to be supporting Hamas or Islamic Jihad, and is accused of torturing many of those detained in its prisons often without charges. The PA has also consistently leaned toward the Israeli side whenever issues involving Gaza have arisen since the Hamas takeover of administrative governance from Fatah in 2007. Perhaps, the high point of this collaborationist behavior was the PA effort to defer consideration of the Goldstone Report detailing evidence of Israeli criminality in the course of its 2008-09 attack (Operation Cast Lead) on Gaza; such a move was widely and accurately perceived as helping Israel and the United States to bury these extremely damaging international findings that confirmed the widespread belief, already substantiated by a series of NGO reports, that Israel was guilty of serious war crimes.
There have been several failed efforts by the PA and Hamas to form a unity government, which would improve the quality of Palestinian representation, but would not overcome all of its shortcomings. These efforts have faltered both because of the distrust and disagreement between these two dominant political tendencies in occupied Palestine, but also because of intense hostile reactions by Washington and Tel Aviv, responding punitively and tightening still further their grip on the PA, relying on its classification of Hamas as ‘a terrorist organization’ that thus making it categorically ineligible to represent the Palestinian people. Everyone on the Palestinian side agrees verbally that unity is indispensable to advance Palestinian prospects, but when it comes to action and implementation there is a disabling show of ambivalence on both sides. The PA, and its leadership, seems reluctant to give up its international status as sole legitimate representative and Hamas is hesitant to join forces with the PA given the difference in its outlook and identity. Since 2009 there have been no elections that would lend grassroots legitimacy, at least in the West Bank, to the PA claims relating to representation.
What Should be Done
In the end, there is reason to question whether PA status as representing the Palestinian people in all international venues deserve the respect that they now enjoy. It is a rather complex and difficult situation that should be contextualize in relation to the Israeli strategy of fragmentation, one purpose of which is a deliberate effort at keeping the Palestinian people from having coherent and credible representation, and then contending disingenuously that Israel has ‘no partner’ for peace negotiations when in fact it is the Palestinian people that have no genuine partner in Tel Aviv as the Israeli leadership has made abundantly clear that it will never allow a viable and truly sovereign Palestinian state to be established.
Among diaspora Palestinians I believe there is an increasing appreciation that neither the PA nor Hamas are capable of such representation, and that greater legitimacy attaches either to the demands of Palestinian civil society that underlie the BDS Campaign or are associated with the person of imprisoned Marwan Barghouti or to Mustafa Barghouti who is the moderate, secular, and democratic leader of the Palestinian National Initiative situated in the West Bank. What these less familiar forms of representation offer, in addition to uncompromised leaders, is a program to achieve a sustainable peace that is faithful to the aspirations of the whole of the Palestinian people and is not compromised by donor funding, Israeli controls, collaborationist postures, and geopolitical priorities. It takes seriously the responsibility to represent the Palestininian people in ways that extend to the Palestinian refugees and to the Palestinian minority of 1.6 million living in Israel as well as to those living under occupation since 1967.
Overall, the picture is not black and white. The PA, partly realizing that they had been duped by the Oslo process and that Israel will never allow a viable state of Palestine to emerge, have resorted to a more assertive diplomatic positions in the last few years, including an effort, bitterly resisted by Israel to make allegations of criminality following from their controversial decision to become a party to the International Criminal Court. Also, it is important that the Palestinian chair at the UN not be empty, and there is no present internationally acceptable alternative to PA representation. Perhaps, an eyes wide open acceptance of the present situation is the best present Palestinian option, although the approach taken to representation is in the end up to the Palestinians. It is an aspect of the right of self-determination, which as earlier argued is the foundation for all other human rights. At the very least, given the dismal record of diplomacy over the course of the last several decades, the adequacy of present representation of the Palestinian people deserves critical scrutiny, especially by Palestinians themselves.
Two final observations are in order. First, it may be useful to distinguish what might be called ‘Westphalian representation’ from ‘populist representation.’ Westphalian representation is the outcome of intergovernmental diplomacy and controls access to international venues, including the UN. Populist representation may or may not reinforce Westphalian representation, and is based on the outlook of civil society if taking the form of a consensus. At present, there is some tension between these two ways of conceiving of representation. There is also the issue raised by the exclusion of Hamas from the operation of Westphalian representation despite its exercise of governmental control over a significant portion of the Palestinian territorial reality.
Secondly, it is relevant to appreciate that the PA seems to be pursuing a ‘two state’ solution by unilateral initiative rather through negotiations and the consent of Israel. Its state-building initiatives in the West Bank combined with its diplomatic statehood initiatives seem designed to generate a sort of ‘state’ that enjoys a certain international status even though the reality of subjugation under apartheid administrative structures remains the experience of the Palestinian people who continue to live with the ordeal of a quasi-permanent occupation.
Tags: diplomatic representation, Hamas, Oslo diplomacy, Palestinian Authority, Palestinian Statehood, politics of fragmentation, representation, Two State Solution, Westphalian Representation