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The Ability of the Palestinian Legal System to Secure Adequate Standards of Living: Reform or the Failure of State Duty

Published online by Cambridge University Press:  20 March 2013

Mutaz M. QAFISHEH
Mutaz M. QAFISHEH*
Affiliation:
Hebron University, [email protected]
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Abstract

In parallel with its efforts to become a full member of the United Nations (UN) and its specialized agencies, Palestine needs to take the implications of joining such organizations in earnest. Admission to the UN, in addition to encompassing rights for states, simultaneously entails duties on the part of the state. One duty is to respect, protect, and fulfil human rights for those living under Palestine's jurisdiction. This paper assesses the ability of the applicable legislation in Palestine to secure adequate standards of living by focusing on three rights: food, housing, and health. Many of the laws relating to these rights date back to the Turkish, British, Jordanian, and Egyptian eras. With a few exceptions, Palestine has so far enacted executive orders to activate these rights based on older laws. Nothing prevents Palestine from modernizing its nutrition, habitation, and medical care systems and joining the community of welfare states.

Type
Articles
Information
Asian Journal of International Law , Volume 3 , Issue 2 , July 2013 , pp. 393 - 412
Copyright
Copyright © Asian Journal of International Law 2013 

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Footnotes

*

PhD Geneva. Professor of International Law, Legal Clinic Director, Hebron University, Palestine.

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106. Decision of the Council of Ministers No. 24 of 22 December 2004 on Regular Medical Examination, Palestine Gazette No. 49, 17 June 2004, at 191.

107. Instructions of the Minister of Labour No. 1 of 20 February 2005 on the Precautions to Protect Workers in Construction and Engineering Structures, Palestine Gazette No. 55, 27 June 2005, at 214. These instructions correspond to the standards laid down in the Convention Concerning Safety and Health in Construction (ILO Convention No. 167), 20 June 1988, 75th ILC session (entered into force 11 January 1991).

108. Instructions of the Minister of Labour No. 2 of 20 February 2005 on the Safety Standards and Levels of Harmful Chemicals and Dusts Permitted at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 231. Cf. Convention Concerning Safety in the use of Chemicals at Work (ILO Convention No. 170), 25 June 1990, 77th ILC session (entered into force 4 November 1993).

109. Instructions of the Minister of Labour No. 7 of 20 February 2005 on the Protection of Workers in Gas and Petroleum Materials, Palestine Gazette No. 55, 27 June 2005, at 254. Cf. Convention Concerning the Protection of Workers against Occupational Hazards in the Working Environment Due to Air Pollution, Noise, and Vibration (ILO Convention No. 148), 20 June 1977, 63rd ILC session (entered into force 11 July 1979); and Convention Concerning Safety in the Use of Asbestos (ILC Convention No. 162), 24 June 1986, 72nd ILC session (entered into force 16 June 1989).

110. Instructions of the Minister of Labour No. 3 of 20 February 2005 on the Annual Permitted Dose for Workers in Ionic X-Ray, Palestine Gazette No. 55, 27 June 2005, at 244. Cf. Convention Concerning the Protection of Workers against Ionizing Radiations (ILO Convention No. 115), 22 June 1960, 44th ILC session (entered into force 17 June 1962).

111. Instructions by the Minister of Labour No. 4 of 20 February 2005 on the Safe Levels of the Extremity of Noise at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 247.

112. Instructions of the Minister of Labour No. 5 of 20 February 2005 on the Safe Levels of the Brightness of Light at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 249.

113. Instructions of the Minister of Labour No. 6 of 20 February 2005 on the Safe Levels of Temperatures at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 251.

114. Convention Concerning the Minimum Age for Admission to Employment of 26 June 1973 (ILO Convention No. 138), (entered into force 19 June 1976), art. 2(3).

115. Labour Law, supra note 93, art. 93.

116. Ibid., art. 95.

117. Ibid., arts. 96, 98.

118. Ibid., art. 94.

119. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention No. 182), 17 June 1999, 87th ILC session (entered into force 19 November 2000); Convention Concerning Medical Examination for Fitness for Employment in Industry of Children and Young Persons (ILO Convention No. 77), 9 October 1946, 29th ILC session (entered into force 29 December 1950); Convention Concerning Medical Examination of Children and Young Persons for Fitness for Employment in Non-Industrial Occupations (ILO Convention No. 78), 9 October 1946, 29th ILC session (entered into force 29 December 1950); Convention Concerning the Restriction of Night Work of Children and Young Persons in Non-Industrial Occupations (ILO Convention No. 79), 9 October 1946, 29th ILC session (entered into force 29 December 1950); and Convention Concerning the Night Work of Young Persons Employed in Industry (ILO Convention No. 90), 10 July 1948, 31st ILC session (entered into force 12 June 1951).

120. Regulations on First Aid Medication in Work Installations No. 17, supra note 105 at art. 101. Cf. Convention Concerning Employment of Women during the Night (ILO Convention No. 4), 28 November 1919, 1st ILC session (entered into force 13 June 1921).

121. Decision Concerning the Work of Women Overnight, Council of Ministers No. 14, 22 December 2003, Palestine Gazette No. 49, 17 June 2004, at 152.

122. Labour Law, supra note 93, arts. 116−28.

123. Local Government Law, art. 15(A)(items 3, 5, 8, 9, 19, 23, 24).

124. Jordan Official Gazette No. 1952, 25 September 1966, at 1921 (citing Towns and Villages Planning and Buildings Law No. 79 of 1966).

125. Ibid., arts. 14−15, 19, 43, 48, 52, 60, 67.

126. The Environment Law, supra note 27, art. 13.

127. Ibid., art. 28.

128. Ibid., arts. 29−30.

129. Ibid., arts. 37−38.

130. Palestine Gazette No. 43, 5 September 2002, at 5 (citing Water Law No. 3 of 2002).

131. Agriculture Law, supra note 26, art. 54.

132. Ibid., art. 55.

133. Ibid., art. 65.

134. Ibid., arts. 67−76.

135. Public Health Law, supra note 18, art. 42.

136. Ibid., art. 45.

137. The Child Law, supra note 76, art. 27.

138. Public Health Law, supra note 18, art. 44.

139. No. 15 of 23 December 1952, Jordan Official Gazette No. 1131, 17 January 1953, at 460. See also Food Control (Alcoholic Liquors—Restriction of Manufacture) Order, 18 September 1943, Palestine Gazette, Supplement 2, No. 1290, 23 September 1943, at 1087.

140. Dangerous Drugs Rules, 12 September 1936, Palestine Gazette, Supplement 2, No. 635, 1 October 1936, at 1392; Order on Dangerous Drugs (West Bank) No. 558 of 16 February 1975, Proclamations, Orders and Appointments (Israeli Occupation, West Bank), No. 34, 24 December 1975, at 1355; and Presidential Decree No. 3 on the Establishment of the High Committee for the Prevention of Illegal Drugs and Mental Inebriations, 24 June 1999, Palestine Gazette No. 62, 25 March 2006, at 119.

141. Penal Code of 1936, arts. 15, 101, 234; Penal Code of 1960, arts. 390−2.

142. Ramadan, supra note 56 at 380.

143. Regulation of Contagious and Infectious Diseases of 13 April 1914, Ramadan, supra note 56 at 397.

144. Accidents and Occupational Diseases Notification Ordinance of 12 May 1945, Palestine Gazette, Supplement 1, No. 1409, 13 May 1945, at 93.

145. Order Relating to Notification of Deaths and Births as well as Vaccination and Diseases No. 33 of 25 July 1948, Palestine Gazette No. 2, 31 March 1950, at 54.

146. Decision of the Council of Ministers on the Plan of Action for the Control of Prevalent Ocular Diseases of 15 October 1961, Jordan Official Gazette No. 1581, 16 November 1961, at 1513.

147. Proclamation on the Public Health (Contagious Diseases) of 4 November 1984, Proclamations, Orders and Appointments (Israeli Occupation, Gaza Strip) No. 74, 15 October 1986, at 7933.

148. Examples from the Palestinian Authority-enacted legislation will follow in this section.

149. Public Health Law, supra note 18, arts. 9−45.

150. Child Law, supra note 76, arts. 24−28, 45−47.

151. The Agriculture Law, supra note 26, arts. 2(3), 45−7. Also Regulation on Licensing the Construction of Animal Yards, 10 July 2003, Palestine Gazette No. 44, 31 March 2003, at 225; and Council of Ministers Decision No. 243 on Fish Protection, 20 October 2005, Palestine Gazette No. 64, 31 May 2006, at 425.

152. Council of Ministers No. 47 of 22 March 2004, Palestine Gazette No. 52, 18 January 2005, at 123.

153. Ibid., at 144.

154. See Instructions of the Minister of Labour No. 7, supra note 109.

155. Council of Ministers Decision No. 380 of 26 December 2005, Palestine Gazette No. 65, 14 June 2006, at 428, art. 13.

156. Quality of Environment Authority of 7 April 2003, Palestine Gazette No. 45, 24 May 2003, at 113.

157. Regulations on First Aid Medication in Work Installations No. 17, supra note 105.

158. Council of Ministers No. 18 of 29 September 2008, Palestine Gazette No. 81, 9 May 2009, at 67.

159. Public Health Law, supra note 18, art. 46.

160. Ibid., arts. 46−57.

161. Ibid., art. 1.

162. Ibid., arts. 62−4.

163. Ibid., arts. 65−72.

164. Drayton, supra note 16 at 1286.

165. Jordan Official Gazette No. 168, 15 October 1927, at 49 (West Bank).

166. Palestine Gazette, Supplement 1, No. 1637, 30 December 1947, at 404.

167. Palestine Gazette, Supplement 1, No. 1395, 8 March 1945, at 1.

168. Jordan Official Gazette No. 1179, 17 April 1954, at 322.

169. Jordan Official Gazette No. 1265, 17 March 1956, at 1359.

170. Jordan Official Gazette No. 1323, 17 March 1957, at 283.

171. Jordan Official Gazette No. 1476, 16 March 1960, at 154.

172. Decision of the Council of Ministers No. 89 of 10 September 2007; Palestine Gazette No. 77 of 9 September 2008, at 148.

173. Decision of the Council of Ministers No. 46 of 23 July 2007; Palestine Gazette No. 73, 13 September 2007, at 139.

174. CESCR No. 14, supra note 72 at paras. 33, 50−2.

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184. Ibid., para. 53.

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