Foundations of civil and political rights in Israel and the occupied territories

Thèse de Doctorat , 2001 , 628 Pages , Note: Sehr Gut

Droit - Autres systèmes juridiques, Comparaison de droits

This work intends to show how civil and political rights in Israel and the Occupied Territories are regulated, which normative standards and spiritual sources nourish them, and how written and unwritten principles are applied and interpreted by the Supreme Court of Israel in pursuance of its self-imposed duty to safeguard the individual's rights and freedoms.

The legal system of Israel reflects unresolved conflicts, ambiguities of the state and difficulties connected with the process of nation-building as well as dilemmas concerning the ethnic and cultural identity of the population. From 1517 until 1917 Palestine was ruled by the Turks as part of the Ottoman Empire.

In 1917 British troops conquered the territory and in 1922 the League of Nations granted to Great Britain the Mandate over Palestine. Following the establishment of the state of Israel in Palestine on 14 May 1948 a large number of British mandatory legislation was absorbed into Israel's legal system. This had and still has far-reaching, restrictive implications for the areas of administrative law and the field of human rights and freedoms.

The British mandatory legislation includes security legislation - such as the Defence (Emergency) Regulations, 1945 - which empowers military commanders as well as the entirely executive branch of the government to impose severe restrictions on fundamental rights and freedoms.

Despite the enactment of two basic laws on human rights in 1992 many areas, such as personal freedom, freedom of speech and the right of association and assembly are still regulated mainly by British colonial legislation that was never revoked after the establishment of the state of Israel.

Since 1948 a permanent state of emergency is in force in Israel. This entitles the government to apply the inherited British mandatory security legislation as well as the own, by the Israeli parliament enacted emergency regulations.

Israel's legal system has been built upon the duality of secular and religious law - a concept that was inherited from the Ottoman Millet tradition, first by the British mandatory government and then by the state of Israel.

This study also includes important laws and Supreme Court judgments concerning civil and political rights that relate directly or indirectly to the territories occupied by Israel in the course of the war in June 1967.

Table of Contents

• ACKNOWLEDGMENTS
• ABBREVIATIONS
• GLOSSARY
• PREFACE
• INTRODUCTION
• A. HISTORICAL PERSPECTIVES REGARDING THE RIGHT OF SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE
• 1. INTRODUCTION
• 2. IDEOLOGY AND DOCTRINES OF THE CONCEPT OF POLITICAL ZIONISM
• 3. SOURCES OF THE CONCEPT OF POLITICAL ZIONISM
• 3.1. THE BASLE PROGRAMME - DECLARED IN 1897
• 3.2. THE BALFOUR DECLARATION OF 2 NOVEMBER 1917
• 3.3. THE MANDATE FOR PALESTINE - GRANTED TO GREAT BRITAIN IN 1922
• 3.3.1. General Remarks
• 3.3.2. What is the "Self" of a Nation and Who has the Right to Express its Will?
• 3.3.3. US President Woodrow Wilson's "Fourteen Points", 1919 and The Mandate for Palestine, 1922: Self-Determination For Whom?
• 3.4. THE BILTMORE PROGRAMME - ESTABLISHED IN 1942
• 3.5. THE JERUSALEM PROGRAMME - ESTABLISHED IN 1951
• 3.6. REVISION OF THE JERUSALEM PROGRAMME IN 1968
• 4. ESTABLISHMENT OF "JEWISH NATIONAL INSTITUTIONS" BY THE ZIONIST MOVEMENT
• 4.1. INTRODUCTION
• 4.1.1. The Fundamental Principle of "Inalienability of Land"
• 4.1.2. The Fundamental Principle of "Jewish Labour"
• 4.1.3. The "Jewish National Institutions" and their Significance for the State of Israel
• 4.2. THE WORLD ZIONIST ORGANIZATION (WZO) - ESTABLISHED IN 1897
• 4.3. THE JEWISH AGENCY (JA) - ESTABLISHED FORMALLY IN 1922 - CONSTITUTED IN 1929
• 4.4. THE JEWISH NATIONAL FUND (JNF) - ESTABLISHED IN 1901
• 5. PALESTINIAN ARAB OPPOSITION TO POLITICAL ZIONISM IN THE 1920's AND 1930's: MAJOR EVENTS LEADING TO THE REJECTION BY THE PALESTINIAN ARAB PEOPLE OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947
• 5.1. THE PERIOD FROM 1880 UNTIL 1919
• 5.1.1. The Henry McMahon - Sharif Hussein Correspondence (1915 - 1916)
• 5.1.2. The King-Crane Commission - Established in August 1919
• 5.2. THE DISTURBANCES IN PALESTINE IN THE YEARS 1920, 1921, 1925 AND 1929
• 5.2.1. The Shaw Commission - Established in 1929
• 5.2.2. The Hope Simpson Report - Published in October 1930
• 5.2.3. The Passfield White Paper - Published in October 1930
• 5.2.4. The Ramsay MacDonald Letter - Issued in 1931
• 5.3. THE GENERAL STRIKE IN 1936 AND THE OPEN REBELLION FROM 1936 TO 1939
• 5.3.1. The Royal (Peel) Commission - Established in 1936
• 5.3.2. The MacDonald White Paper - Issued in 1939
• 5.4. THE PERIOD FROM 1940 UNTIL THE ADOPTION OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947
• 5.5. THE PERIOD AFTER THE ADOPTION OF THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 181 (II) OF 29 NOVEMBER 1947 UNTIL THE SIGNMENT OF ARMISTICE AGREEMENTS IN 1949
• 6. SUMMARY AND CONCLUSIONS
• B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW
• 1. INTRODUCTION
• 2. THE ROLE OF THE ISRAELI SUPREME COURT IN THE SPHERE OF CIVIL AND POLITICAL RIGHTS
• 2.1. GENERAL REMARKS
• 2.2. THE INSTITUTIONAL ORGANIZATION OF ISRAEL'S JUDICIAL SYSTEM
• 2.2.1. General/Civil/Regular Courts of Law
• 2.2.2. Tribunals and Authorities Vested with Judicial Powers
• 2.3. THE SUPREME COURT OF ISRAEL
• 2.3.1. The Jurisdiction of the Supreme Court
• 2.3.2. Judicial Activism and Judicial Restraint
• 2.3.3. The Normative Status of Human Rights Case Law
• 2.3.4. Summary and Conclusions
• 3. THE NATURE AND LEGAL STATUS OF THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, 1948
• 3.1. GENERAL REMARKS
• 3.2. SUPREME COURT JURISPRUDENCE
• 3.2.1. The Declaration of the Establishment of the State of Israel - Considered as "Political Instrument"
• 3.2.1.1. Zvi Zeev v. Gubernik (1948)
• 3.2.1.2. El-Karbutli v. Minister of Defence (1948)
• 3.2.2. The Declaration of the Establishment of the State of Israel - Considered as "Instrument of Interpretation"
• 3.2.2.1. Kol Ha'am Company Limited v. Minister of Interior (1953)
• 4. ISRAEL'S OBLIGATION TO ENACT A CONSTITUTION INCLUDING A BILL OF RIGHTS AS REQUESTED BY THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, 1948
• 4.1. THE ELECTIONS TO THE CONSTITUENT ASSEMBLY AND ITS TRANSFORMATION INTO "THE FIRST KNESSET"
• 4.2. THE HARARI RESOLUTION - ADOPTED IN 1950
• 4.3. ARGUMENTS RAISED AGAINST THE ENACTMENT OF A CONSTITUTION INCLUDING A BILL OF RIGHTS
• 4.3.1. General Remarks
• 4.3.2. The View of David Ben Gurion
• 4.3.3. The View of the Religious Parties
• 4.3.4. Other Arguments Raised Against the Enactment of a Constitution including a Bill of Human Rights
• 4.4. THE POWER OF THE KNESSET TO ENACT A CONSTITUTION
• 4.4.1. Background
• 4.4.2. The Opinion of Legal Scholars
• 4.4.2.1. Professor Melville B. Nimmer's Opinion
• 4.4.2.2. Professor Claude Klein's Opinion
• 4.4.2.3. Professor Amnon Rubinstein's Opinion
• 4.4.2.4. Professor Eliahu Likhovski's Opinion
• 4.5. SUMMARY AND CONCLUSIONS
• 5. THE ATTITUDE OF THE ISRAELI SUPREME COURT TOWARDS JUDICIAL REVIEW OF PRIMARY LEGISLATION OF THE KNESSET IN HUMAN RIGHTS CASES
• 5.1. BACKGROUND
• 5.2. INITIAL ARGUMENTS AND REASONS FOR THE OBJECTION TO JUDICIAL REVIEW
• 5.2.1. The Doctrine of Sovereignty of the Israeli Parliament
• 5.2.2. The Principles of Separation of Powers and Democracy
• 5.2.2.1. Leon v. Gubernik (1948)
• 5.2.2.2. Other Decisions and Arguments of the Supreme Court

Objectives and Key Themes

This dissertation examines the foundations of civil and political rights in Israel and the occupied territories. It explores the historical development of these rights, focusing on the right of self-determination for both the Jewish and Palestinian Arab people. The dissertation investigates the role of the Israeli Supreme Court in protecting these rights and analyzes the legal status of the Declaration of the Establishment of the State of Israel, 1948. It also examines the obligation of Israel to enact a constitution including a bill of human rights and the issue of judicial review of primary legislation.

• Historical development of the right of self-determination in the context of Israel and Palestine
• The role of the Israeli Supreme Court in upholding civil and political rights
• The legal status of the Declaration of the Establishment of the State of Israel
• The debate regarding Israel's obligation to enact a constitution including a bill of human rights
• The issue of judicial review of primary legislation in Israel

Chapter Summaries

The first chapter, "A. HISTORICAL PERSPECTIVES REGARDING THE RIGHT OF SELF-DETERMINATION OF THE JEWISH AND THE PALESTINIAN ARAB PEOPLE", delves into the historical context of the right of self-determination in Israel and the occupied territories. It examines the ideology and doctrines of political Zionism, tracing its origins from the Basle Programme of 1897 to the Jerusalem Programme of 1951, and analyzes the establishment of "Jewish National Institutions" by the Zionist movement. The chapter further explores the Palestinian Arab opposition to political Zionism in the 1920s and 1930s, highlighting key events that led to the rejection of the United Nations General Assembly Resolution 181 (II) of 29 November 1947.

The second chapter, "B. ISRAEL'S INITIAL OBLIGATIONS TO ENACT A CONSTITUTION INCLUDING A BILL OF HUMAN RIGHTS AND THE ISSUE OF JUDICIAL REVIEW", shifts the focus to the legal framework of civil and political rights in Israel. It explores the role of the Israeli Supreme Court in protecting these rights, examining the institutional organization of the judicial system, the jurisdiction of the Supreme Court, and the application of judicial activism and restraint. This chapter also delves into the nature and legal status of the Declaration of the Establishment of the State of Israel, 1948, analyzing its significance as a "political instrument" and an "instrument of interpretation" in light of Supreme Court jurisprudence.

Keywords

The primary keywords and focus topics of this dissertation include civil and political rights, right of self-determination, political Zionism, Palestinian Arab opposition, Israeli Supreme Court, judicial review, Declaration of the Establishment of the State of Israel, 1948, and constitution including a bill of human rights.

• Université: University of Vienna
• Note: Sehr Gut
• Auteur: Dr. Yvonne Schmidt (Auteur)
• Année de publication: 2001
• Pages: 628
• N° de catalogue: V87704
• ISBN (ebook): 9783638051736
• ISBN (Livre): 9783638944502
• Langue: anglais
• mots-clé: Foundations, Israel, Occupied Territories, Civil and Political Rights