The Consistency of the Applicable Legislation in Palestine with International Law: The Two Human Rights Covenants

Abstract

After its establishment, the State of Palestine would have, like any State, a set of rights under various branches of international law. It could become member of international courts, international organizations, party to treaties, establish full-fledged diplomatic relations, enter into alliances, enact its nationality law, issue passports and protect its citizens abroad. Palestinian officials and scholars trend to be excited to talk about such rights. What is absent so far, however, is the discussion on the obligations of the State in its international relations. This study comes as an attempt to fill in one aspect of this gap by focusing on the obligations arising from the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted by the United Nations (UN) General Assembly on 16 December 1966.

By becoming party to the two Covenants, Palestine would gain further legitimacy bases that do not exist at present. Palestine would appear as a State that respects human rights and as a ‘peace-loving’ at the global level, especially since the two Covenants and their protocols, along with the Universal Declaration of Human Rights of 10 December 1948, form the ‘International Bill of Human Rights’. This would, in turn, strengthen the Palestinian position when Palestine pursues its application to the full UN membership. As a State party, Palestine can, through nominating experts in the committees established based on such treaties influence international law and policy and prove the existence of Palestine as an independent State, officially, as part of such committees’ processes. Palestine, like any other State, cannot be represented at the committees, or treaty-based bodies, without being party to such treaties.

In fact, joining the two Covenants entails an automatic accession to two international organizations, independent in every sense of the word: the first organization is the Human Rights Committee (HRC) and the second organization is the Committee on Economic, Social and Cultural Rights (CESCR). These bodies are the most important committees in the UN human rights system. Their decisions or recommendations are binding to the UN, its agencies and to State parties, offering advocacy tools for international and local non-governmental organizations.

Despite the rights that would be gained, joining the Covenants poses duties on the State vis-à-vis individuals living under Palestine’s jurisdiction and the international community, particularly in relation to State parties to such treaties. For example, joining the ICCPR would pose an obligation to comply with the procedures set forth by Article 4 of the Covenant regarding the state of emergency. The ICCPR itself will make it a duty for Palestine to amend its legislation and policies relating to detention and imprisonment, torture and freedom of opinion and expression, freedom of association and the right to protest, not as determined by Palestinian legislator, but rather in accordance with the provisions of the ICCPR. It would be for individuals, according to the Covenants’ protocols, to exercise the right to lodge complaints against the Palestinian authorities to the UN treaty-bodies. Palestine will also need to employ qualified technical staff capable of preparing the government reports to be submitted to the said bodies and be able to discuss non-governmental reports that would provide alternative reports to those governmental reports.

With the assumption that Palestine is willing to become party to the ICCPR and ICESCR, the present study would explore Palestine’s obligations under the provisions of these Covenants, particularly with regard to the applicable legislation in the Gaza Strip and the West Bank, territory of the projected State. It would evaluate such legislation and suggest a set of measures that should be carried out by Palestinian authorities to bring domestic legislation in conformity with these two instruments.

The study deals with the substantive articles of the Covenants. Articles relating to procedural aspects of the Covenants such as the signing, accession or ratification processes, reporting guidelines, committees’ mandate, reservation requirements, complaints mechanism, are excluded from the scope of this study. It is beyond the purpose of the study to tackle the role of the Palestinian institutions, policies, administrative or procedural obligations of Palestine under the Covenants. When certain provisions are common to both Covenants, for instance the right to self-determination and women’s rights, we would discuss the relevant legislation in Part I of the study; this explains why Part I is longer than Part II.

Treaty-bodies jurisprudence, notably general comments, would be referred to when relevant. Certain treaty bodies’ concluding observations would be cited to clarify some relevant points. Extra sources would be used to reflect the subsequent developments of human rights law. For example, once Article 7 of the ICCPR is being studied, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, would be referred to as appropriate. When we revise Articles 6 and 7 of the ICESCR that relate to the right to work, international labour treaties would be explored. Various child rights would be likewise analyzed in light of the Convention on the Rights of the Child of 20 November 1989.

The study is divided into two parts: the first will be designated for the Palestinian obligations under the ICCPR and the second for the ICESCR. Each part will include sections following the sequence of division introduced in the matching Covenant’s article(s). Under each section/article(s), the relevant legislation applicable in Palestine would be collected and evaluated. Then reform measures would be introduced. Legislation that conforms to the covenants would be briefly highlighted.