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Published online by Cambridge University Press: 04 July 2014
Jean Monnet Lecturer, Faculty of Law and Department of International Relations, the Hebrew University of Jerusalem.
I am grateful for the useful comments of Margit Cohn, Barak Medina, Gilad Noam, Beni Rubin, Robbie Sabel, Yuval Shany, and the anonymous referee. Additionally I thank the student editors for their work on the note. Comments to [email protected] are welcome.
1 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed 28 September 1995, 36 ILM 557 (1997) [hereinafter the Interim Agreement].
2 See Article IV(3) of the Legal Annex of the Interim Agreement, Id.
3 The Law of Implementation, 1996, S.H. 34.
4 According to Article 11 of the Interim Agreement, supra note 1, the Territories were divided into three different categories: in the first the PA was granted full civil and security responsibility (Area A); in the second the PA was merely granted civil responsibility (Area B); and in the third Israel retains both civil and security responsibility (Area C).
5 The proceedings were directed against the State of Israel as well, but such proceedings fall outside of the scope of this note.
6 CA (Jer) 4049/02 Agudat Moreshet Elon Moreh v. the State of Israel [April 23, 2006] (not yet published) [hereinafter the Agudat Moreshet case].
7 See HCJ 393/82 Almasualiah v. the Commander of the IDF Forces in the West Bank [1983] IsrSC 37(4) 785; see also Military Government in the Territories Administered by Israel 1967-1980: The Legal Aspects (Shamgar, Meir ed., 1982)Google Scholar.
8 The Agudat Moreshet case, supra note 6, at para. 8; See also Shaw, Malcolm, International Law 222 (5th ed. 2003)CrossRefGoogle Scholar: “While Palestinian Statehood has clearly not been accepted by the international community, the Palestinian Authority can be regarded as possessing some form of limited international personality.”
9 The Agudat Moreshet case, supra note 6, at para. 8.
10 Id. at paras. 9-10.
11 For analysis see Benvenisti, Eyal, The Status of the Palestinian Authority, in The Arab-Israeli Accords: Legal Perspectives 47 (Corton, E. & Mattat, C. eds., 1996)Google Scholar; Blum, Yehudah L., From Camp David to Oslo, 28 Isr. L. Rev 211, 211–213 (1994)CrossRefGoogle Scholar, Watson, Geoffrey, The Oslo Accords—International Law and the Israeli-Palestinian Peace Agreement (2000)CrossRefGoogle Scholar; Shehadeh, Raja, From Occupation to Interim Accords, Israel and the Palestinian Territories (1997)Google Scholar; Crawford, James, Israel (1948-1949) and Palestine (1998-1999): Two Studies in the Creation of States, in The Reality of International Law: Essays in Honour of Ian Brownlie, 95 (Brownlie, I., Goodwin-Gil, G., & Talmon, S. eds., 1999)Google Scholar; Thomas, K. Reece, Non-Recognition Personality and Capacity: The Palestinian Liberation Organization and the Palestinian Authority in English Law, 29 Anglo-Am. L. Rev. 228 (2000)Google Scholar; New Political Entities in Public and Private International Law with Special Reference to the Palestinian Entity (Shapiro, A. & Tabory, M. eds., 1999)Google Scholar.
12 I.e., there is no coercion between equals—under which rule courts of one country will not sit in judgment on the acts of government of another done in its own territory, out of mutual respect for the independence of sovereign states.
Underhill v. Hernandez, 168 U.S. 250 (1897):
Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its territory. Redress of grievances by reason of such acts must be obtained through the means open to… sovereign powers as between themselves.
13 Agudat Moreshet case, supra note 6, at para. 12.
14 Id.
15 Id.
16 Id. para. 19.
17 Id. at para. 9.
18 Id. at para. 10.
19 Id.
20 But see infra note 50.
21 As to the manifestation of that move in the Israeli front, see Mautner, Menachem, The Decline of Formalism and the Rise of Values in Israeli Law (1993)Google Scholar [in Hebrew]. As to the manifestation of that move on the international front, see the analysis in PLA 7092/94 Her Majesty the Queen in the Right of Canada v. Sheldon Adelson [1997] IsrSC 52(1) 625 [hereinafter the Adelson case]. An English translation of the case is available at http://elyonl.court.gov.il/files_eng/94/920/070/a01/94070920.a01.htm (last visited March 26, 2007).
22 The Adelson case, id.
23 Id. at 652-653.
24 Victory Transport v. Comisaria General de Abastecimientos y Transportes, 336 F. 2nd 354 (1964).
25 [1977] WLR 356, 374-6.
26 CC (Jer) 2538/00 Irena Litvack Norwich v. the Palestinian Authority [April 28, 2003] (not yet published). This Judgment is subject to appeal to the Israeli Supreme Court, see FH 4060/03 The Palestinian Authority v. Eliyahu Dyan.
27 Norwich v. the Palestinian Authority, supra note 26, at paras. 64-65 of Judge Drori's minority opinion; 1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19.
28 Fassberg, Celia Wasserstein, Public Council Report for Preparing the Law of Foreign States' Immunity 7 (2005)Google Scholar [in Hebrew]. This report was published by the Ministry of Justice and the Ministry of Foreign Affairs.
29 In the Adelson case, supra note 21, President Barak wondered whether the whole subject 2005 state's immunity should be regulated by primary legal arrangement (supra note 21, at 650). In reaction to the Judgment, a public council was established by the Ministry of Justice and the Ministry of Foreign Affairs in order to draft a bill in which the immunity of foreign states would be clearly defined. Finally, the Public Council drafted the Bill on Foreign States' Immunity [hereinafter the Bill]. Until the present date, the Bill has not been adopted into Israeli legislation.
30 Article 2(b) of the Bill, id.
31 Malanczuk, P., Akehurst'a Modern Introduction to International Law 127–128 (7th ed. 1997)Google Scholar; Shaw, supra note 8, at 655.
32 See Annex Three of the Interim Agreement, supra note 1.
33 Norwich v. the Palestinian Authority, supra note 26, at paras. 73-78 of Justice Drori's minority opinion.
34 Issues such as Jerusalem, the Jewish settlements, army installations, refugees, as well as numerous administrative and judicial competencies were not transferred to the PA, see Norwich v. the Palestinian Authority, supra note 26, at paras 79-86 of Judge Drori's minority opinion. See also e.g., Sections 10(4), 12and 13(2)(b)(8)of Annex 2 of the Interim Agreement, supra note 1 which reserves significant competencies relating to security to the State of Israel; Section 7 of Annex 4 to the Interim Agreement which reserves to Israel certain judicial competencies in the area of criminal law.
35 Norwich v. the Palestinian Authority, supra note 26, at paras. 85-91 of Judge Drori's minority opinion; see Article IX(a) of the Interim Agreement, supra note 1. See also Singer, J., Aspects of Foreign Relations under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and Gaza, 28 Isr. L. Rev. 268, 296 (1994)Google Scholar:
Israel in its Agreement with the PLO, agreed to relinquish authority over limited aspects of foreign relations relating to the Gaza Strip and the West Bank, mainly in the area of foreign trade and economic assistance…Consistent with international practice regarding autonomies, these are only exceptions, whereas the general rule is that the Palestinian Authority lacks the authority to conduct foreign relations. These arrangements, therefore, are indicative of the intention of the parties to establish autonomy, and not an independent entity…
On the other hand, Sabel argues that that although the PA does not hold dejure competencies in international relations, de facto it does hold such competencies; see Sabel, Robbie, International Law 38 (2003)Google Scholar [in Hebrew].
36 For analysis see Singer, supra note 35, at 269-273. See also Shaw, Malcolm, “Territorial Administration and Territorial Sovereignty,” a paper presented at Sovereignty, Supremacy, Subsidiarity: The Shifting Allocation of Authority in International Law, An International Conference, Hebrew University, Jerusalem, June 21, 2006, at 12 Google Scholar: In principle Israel remains an occupying power and retains its international powers and responsibilities. Those powers and responsibilities transferred to the PA may be seen as an exercise in delegation and the creation of an autonomous zone coupled with self-imposed constraints upon Israeli action.
37 Based on the Revised Disengagement Plan, approved by the Israeli Cabinet on the June 6, 2004, Israel evacuated the Gaza Strip (together with four settlements in the West Bank). See http://www.pmo.gov.il/PMOEng/Communication/DisengagementPlan/displan060604.htm. Consequently, there is no longer any permanent presence of Israeli security forces in the Strip. The disengagement clearly strengthens the effective control of the PA over the Gaza Strip and as such it may support the findings of Judge Okon. See, e.g., The Court of Judea and Samaria MA 3831/06 The Army Prosecutor v. Ahmad Aton and others [September 12, 2006] (not yet published). Since the Israeli withdrawal from the Strip, it may be said that at least in regard to the Strip, the PA may be seen as getting very close to a status of a state. MA 3249/06 The Military Prosecutor v. Basam Ahmad Mussa and others [September 25, 2006] PD”Z 33,404. This case's results did not interfere with previous findings. On the other hand, the Disengagement Plan itself stipulates that “the State of Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in the Gaza air space, and will continue to exercise security activity in the sea off the coast of the Gaza Strip.” In fact, a Report submitted to the Commission on Human Rights, by Special Rapporteur John Dugard, stipulates that the Gaza Strip remains an occupied Territory despite the Disengagement, see para. 9 of A/60/271, August 18, 2005.
38 The Agudat Moreshet case, supra note 6, at para. 11.
39 See, e.g., Morgan Guaranty Trust, Company of New York v. Republic of Palau, 924 F. d 1237 (2nd Cir. 1991) 2; the Estates of Yaron Ungar and Efrat Ungar and Others v. the Palestinian Authority and Others, 153 F. Supp. 2nd 76 (D.R.I. 2001); Steel Ltd. v. the Government of the Marshall Islands, [1981] 2 Marinee N.Z.L.R.
40 The Norwich case, supra note 26, at para. 11 of the majority judgment.
41 CC 92134/02 (TA) The State of Israel v. Marwan Ben Hatib Barghouti, [December 12, 2003] (preliminary issues) (not yet published).
42 CC 1158/02 (TA) The State of Israel v. Marwan Ben Hatib Barghouti, [May 20, 2004] (not yet published) at para. 2.
43 HCJ 7052/03 Adalah—The Legal Center for Arabs Minority Rights in Israel v. the Minister of Interior [May 14, 2006] (not yet published).
44 Id. at para. 3 of Justice Cheshin's judgment.
45 Id. at para. 12 of Justice Cheshin's judgment.
46 Id. at para. 9 of Justice Cheshin's judgment.
47 Id. at para. 11 of Justice Cheshin's judgment.
48 Id. at para. 10 of Justice Grunis's judgment and paragraph 3 of Justice Naor's judgment.
49 Id. at para. 21 of President Barak's judgment.
50 See the European Convention on State Immunity, Basle, 16 V. 1972 ETS 74; United Nations Convention on Jurisdictional Immunities of States and their Property (adopted by the General Assembly, 16 December 2004)—not yet in force.
51 See para. 61 of the majority in Adsani v. United Kingdom (2001) 34 E.H.R.R. 273.
52 Bouzari v. Iran 2002 Ont. Sup. C.J. Lexis 701.
53 Greek Citizens v. Federal Republic of Germany (2003) 42 ILM 1030.
54 Jones and others v. the Kingdom of Saudi Arabia and others Session 2005-06 [2006] UKHL 26 on appeal from [2004] EWCA Civ 1394, June 14, 2006. See also Lord Wilberforce in I Congreso del Partido [1983] 1 AC 244, 272.
55 Fox, H., The Law of State Immunity (2004), 525 Google Scholar. Compare with Bantekas, I., State Responsibility in Private Civil Action 92/4 American Journal of International Law 765 (1998)CrossRefGoogle Scholar; Caplan, L.M., State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97/4 Am. J. Int'l L. 741 (2003)CrossRefGoogle Scholar.
56 The Norwich case, supra note 26, at para. 40 of Judge Drori's minority opinion.
57 Foreign Sovereignty Immunity Act, 1976 28 U.S.C.1330; Antiterrorism and Effective Death Penalty Act, 1996, 28 U.S.C. § 735; Altmann v. the Republic of Austria 142 F. Supp. 2d 1187; Ungar v. PA, supra note 40.
58 Ferrini v. the Federal Republic of Germany Judgment nw 5044, 11 March 2004 Supreme Court Rivista di Diritto Onternazine Vol. 84 Nw 2, 2004, 539.
59 Para. 54 of Adsani v. United Kingdom, (2001) 34 E.H.R.R. 273.