Preface to First Edition
This report is published as part of a series of reports under the Economic, Social and Cultural Rights Initiative of LAW – the Palestinian Society for the Protection of Human Rights and the Environment.
The right to work, is a right set out in the Universal Declaration of Human Rights, which marked its 50th anniversary in 1998. In the International Covenants that gave force to the Universal Declaration, the right to work falls under economic, social and cultural rights covenant. The separation arose, not because there is any meaningful difference between the ESCR Covenant and that of Civil and Political Rights, but as a result of negotiations when drawing up the treaty. However, the division has developed in epic proportions, during the twentieth century, as civil and political rights moved to the centre of international and domestic discourse and may have become the principal stated goal of strategic policy, while economic, social and cultural rights remain the less-regarded twin.
International declarations, most significantly the 1993 Vienna Declaration, emphasised that human rights are interrelated, interdependent and indivisible and that, in practice, States should not be picking and choosing between rights. However, it remains the case that civil and political rights have precedence over economic, social and cultural rights in many respects.
This is due to an unwillingness of States to recognise the rights, or a belief that they involve large-scale expenditures, or have a political slant, or that they are quite simply not of the same nature as civil and political rights.
This has been evident in practice: whereas, civil and political violations are deemed worthy of serious and coordinated international attention, economic, social or cultural rights violations are viewed less seriously. Again, apologists have justified inaction on ESC rights in numerous ways but the result is the same: the person killed by a handgun is more serious than the person killed by poverty.
In all fairness, though there is a gap between the rights, there is also a gap between what decision-makers say about human rights and what decision-makers do. In the fifty years since the Universal Declaration, there has been significant standard-setting in human rights and corollary protection mechanisms, and even instances of actions against violating states, but it would be incorrect to state there is a global human rights policy that is effectively and uniformly applied.
One of the reasons for this inconsistency is that States are selective in the response and action they undertake. They balance national interests with human rights goals when deciding upon responses to gross systematic violations.
When meaningful action is undertaken, the target of these actions tend to be weaker States that are perhaps viewed as unorthodox – the present favourite unorthodox traits are Islamicism and perhaps Communism as a distant second. In both instances, States will point to civil and political rights violations to justify their interventions, even where other motives of national interest actually drive the action.
These arguments explain the selectivity in States’ responses to human rights violations. This selectivity tends to incense and confound victims of atrocities, when they see their own egregious situations are passed over, while others of less intensity or shorter tenure result in a mobilisation of the international community.
This partially explains why Israel has successively perpetrated serious human rights violations without an effective response from the international community. Israel’s abusive record, though consisting of systematic economic, social and cultural rights violations, tends to elicit greatest response when there are civil and political rights violations. In addition, Israel is an important economic, political and military power, States feel they have little interest in taking affirmative action to protect human rights, particularly when there are repercussions that affect their own interests.
During 1998, discussions of human rights and Israeli violations were very present: the years celebrated the 50th anniversary of the Universal Declaration of Human Rights at the same time as the 50th anniversary of the establishment of the State of Israel and, the 50th year of the Nakba. In the Nakba, thousands of Palestinians were killed and hundreds of thousands of Palestinians removed from their homes in Palestine to make way for Jewish colonisation. A process that would now be described as ethnic cleansing and would, the two arguments above notwithstanding, would be deserving of international intervention.
During 1998, for the first time, Israel came under scrutiny be the Committee on Economic, Social and Cultural Rights. The expert committee, created to examine States’ fulfilment and violation of the obligations of the International Covenant, severely criticised Israel for its violations against the Palestinian population living on both sides of the Green Line.
One other event took hold during the period of 1998, the UN General Assembly pressed the High Contracting Parties of the Fourth Geneva Convention to act upon their obligations to ensure Israel’s respect of the Convention. At the time of publication, High Contracting Parties had undertaken no measures of enforcement and neither had they called a conference, as proposed by the UN General Assembly, for this purpose. Nonetheless, the principal issue that had elicited the strong condemnation from the States’ Parties of the UN, were also economic, social and cultural rights violations, i.e. the removal of Palestinians and the establishment of Israeli settlements.
The Israeli Government led by Prime Minister Netanyahu set out in 1996 as one of its guiding principles the establishment of Jewish settlements in the West Bank and Gaza Strip, as well as in the Negev and Galilee. The irony is that Israel sees no division between the occupied territories and recognised Israeli territory; their large Palestinian populations provoke Israel’s selection of these areas and give them significance only arising from the Zionist mission of establishing Jewish colonies across Palestine. This mission is the same as that in the late 19th century, in 1948 and in 1967: it is directed towards the removal of the resident Palestinian population to make way for Jewish colonisation.
This is an endeavour that violates the Fourth Geneva Convention and should automatically involve consideration of measures of enforcement by High Contracting Parties. The UN General Assembly and the Fourth Geneva Convention, therefore, provides a suitable means to guarantee respect of these human rights where the human rights machinery is patently unable to secure the necessary respect. Fortuitously, in this instance, there are political considerations that have encouraged States to be driven to consideration of action. It remains to be seen whether there will be any meaningful intervention by State Parties of the Geneva Convention.
The appearance of Palestinian migrant workers is linked to the Zionist colonialist endeavour, they were and continue to be the cheap labour for Jewish-Israeli development. Their existence is evidence of colonialist economic policies within a post-colonialist era. The economic relationships in Palestine, as elsewhere in the developing world, are defined by a distortion in the power balance secured by political, military and economic dominance.
This work shares in this understanding of Israeli colonialist economics. However, it takes a legal perspective and draws conclusions incumbent in human rights law of responsibility, culpability and liability, creating an obligation on the wrongdoer for redress, including restitution. The argument is that Israel must return Palestinians to the position they would have been had Israeli military force not intervened in their economic, social and cultural development. This is a bold argument, but justified in our opinion by law, precedent and developing practice. By raising these arguments, it is hoped that the discourse on what is and is not acceptable in economic, social, cultural and related policy is re-examined and decision-makers and those that influence opinion embrace legal maxims about conduct and responsibility for violations.
This argument is just as relevant in other parts of the world where colonialist pursuits have been undertaken against or in disregard of the wishes of indigenous population. In this respect, this examination offers a case study in application of law to human rights violations.
Consequently, the approach of the authors has been to employ economic, social, political and other disciplinary analysis in the factual and legal examination of human rights. This is problematic as information can be contradictory and affirmative conclusions on approaches and policy are dependant on the point of view of the analyst. A number of views are apparent from the material analysed.
The view is that Israel operates colonialist policy in relation to workers and the Occupied Territories is aptly represented in this paper. This view draws on material that emphasises Israeli control.
A centrist view recognises the abuses of power, perhaps even accepts colonialist economic policy is at work or would, at least, recognise that there is discrimination of wages and employment. This group would hesitate to state that Israel has undertaken anything unlawful and may point to benefits to Palestinian workers and to increases in the Palestinian economy to support this opinion.
The third opinion would accept the Israeli Government position that the Occupied Territories are territory without sovereignty or with inconclusive sovereignty and anything provided to Palestinians, such as work, has been of mutual benefit or has solely benefited the Palestinian population. As evidence they would point to improvements in social and economic conditions, particularly by making unfavourable comparisons with previous Jordanian and Egyptian rule.
The legal approach criticises Israel for colonialist policies and refutes the power of an occupier to reduce the capacity of the indigenous populations to pursue its own development by making use of occupied resources. The abuse of power is crucial and it is irrelevant that the occupied population has obtained some secondary or improved benefit because, in this case, this is neither provable nor changes the fact that individuals and peoples are to be free from domination and consequent exploitation. The serious violations of dignity, particularly the wholesale extermination, removal or exploitation of peoples, are illegal. The law ignores the secondary and usually incidental benefits arising from these violations.
Just a note on terminology, economic, social and cultural rights tends to be described in this long-hand form or as ESC rights or ESCR. The phrase “human rights” is tended to be reserved for the benefit of civil and political rights. The authors, adopting the Vienna formula, view the rights as indivisible, inter-related and interdependent, as this is the only construction that can be accurate under human rights jurisprudence. The definitions between ESCR and civil and political rights are not insuperable barriers but are mere separations to make the work of practitioners and beneficiaries in analysing and understanding the texts simpler. The authors, thereby, reject any preference given to one right or sets of rights over another as legally incorrect and choose to use the phrase human rights in its true construction, except on occasion, where it is necessary to distinguish rights, for the reader’s ease, a distinction is made.
It is true that the term ‘human rights’ is more associated with civil and political rights and this may reflect Government apprehensions about economic, social and cultural rights. In defence, the authors argue that the one-fifth of the world’s population suffering from acute economic, social and cultural rights violations and the 40 million that die of hunger each year would not make such a preference. As human rights are innate, it must be the case that their opinions override the willingness of States to accede to the full recognition of these fundamental rights.
Each section here proceeds with the legal provisions that require respect of economic, social and cultural rights. Again, a range of instruments are used to describe this, particularly general principles and customary international law, human rights law, the Fourth Geneva Convention and the International Labour Organisation conventions. These should assist the reader in understanding the obligations, analysis and conclusions.
The legal discussions have been made accessible and have sought to avoid detailed discussions of jurisprudence, except where the arguments are necessary for those lawyers that may choose to rely on the arguments. These are few, and the general reader, indeed, the specialist from other disciplines, will find the text on the whole readable and we hope enlightening. We have also sought to avoid the turgidity of legal writings and have discussed the issues in, we hope, an interesting and informative way. A final point on writing style, both authors have sought to use technical terms from other disciplines accurately and, at least, consistently – economic terms, in particular, have been used. We hope that any improper usage does not distract the reader.
The authors would like to would like to offer their thanks to the Palestinian General Federation of Trade Unions, the Democracy and Workers Rights Centre, and special thanks go to Hanna Zohar, Harriet Lewis and Jason Myers of Kav La’Oved. Thanks also go to Saed El-Zain for his research assistance and to Dr Laetitia Bucaille for her analysis and support. A significant debt of gratitude is owed to Nina Sovich, an investigative journalist with a mindful of sources, information and analysis, her assistance was invaluable. Additional thanks must go to the staff at LAW for their support, assistance and publication. A special debt of gratitude goes to Khader Shkirat, for his boundless energy and commitment to the project. Numerous other people contributed to the project, in particular those that have examined economic, social and cultural rights and the economic relationship between Israel and the Occupied Palestinian Territories.
Finally, any errors are entirely the responsibility of the authors. The process of writing may have contributed to this; with the authors preparing different sections and difficulties increased by distance, opportunity for discussion and constraints of time arising from the pressing schedules common in human rights practice. The authors’ apologise for these and any differences in style that may be apparent, and were unintentionally overlooked. Nonetheless, we would hope that the reader finds the discussions interesting and is encouraged to contribute their own thoughts and opinions on economic, social and cultural rights.
Mervat Rishmawi and Rhys Johnson Jerusalem, 1 May 1999
Preface to Second Edition
The second edition has involved major development in some areas. In particular, there has been further analysis of the economic situation, including the recent changes in Israeli Government, and in the legal developments in relations to employment conditions particularly of those working in Israel and in Israeli settlements.
There has also been some movement on the efforts to ensure Israel’s respect of the Fourth Geneva Convention. The High Contracting Parties met on 15 July 1999 in Geneva with the intention of discussing measures of enforcement. The negotiations that preceded the conference, from which all but High Contracting Parties were excluded, decided the outcome of the conference itself. The result was that the conference met briefly, in closed session, and agreed a resolution before adjourning:
This statement reflects the common understanding reached by the participating High Contracting Parties to the Conference…
The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory.
Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.
Human rights groups expressed their disappointment and objection to the failure to agree measures and to conduct proceedings openly and in the spirit of the humanitarian issues at stake.
The “improved atmosphere in the Middle East” refers to the election of an Israeli Government with a greater pronounced commitment to the peace process. The new Government has proposed some changes in human rights practice: in the context of political negotiations, appears committed to the safe passage routes between the West Bank and Gaza Strip, but this excludes Jerusalem. There has been a release of political prisoners and, due to a High Court ruling that the General Security Services were engaging in torture, a reported change in interrogation practices. Ministers, including the Prime Minister, have indicated changes in Jerusalem residency revocation policy, in settlement and house demolition.
On workers, there has been no obvious change in numbers of workers or transit of goods. The practice of the Netanyahu Government for improved economic movement, both Palestinian workers and goods, has continued. As there have not been significant changes in the underlying system of movement, the discussion on closure is still relevant. Although political and economic analysts and other commentators may take the view this information is dated, from a legal perspective, these policies continue to be current until examined and found not to be violations or deserving of redress. In any case, as the control on movement remain in place, there is no certainty that restrictions will not be imposed at some future date.
On the fundamental questions of Palestinian self-determination, these will be decided in the proposed accelerated final status talks. It is, however, unlikely that all Palestinian land will be transferred or that full sovereignty will be granted. Additionally, compensation and restitution appear not to be on the agenda.
In addition to those already thanked, we are grateful to Uda Walker for her meticulous editing and Harriet Lewis at Kav La’Oved and Yezekhel Lein at B’Tselem for their assistance in the research.
Any errors in this edition are entirely my responsibility. I hope the reader can bear with these and still find the discussions interesting.
Rhys Johnson Jerusalem, 1 October 1999
The economics of occupation has been one of the key aspects of the Palestinian-Israeli conflict. Although the conflict has tended to be focused on land and people, as reflected in the final status issues of Jerusalem, refugees, borders; the inter-play between Palestinians and Israelis has also been viewed through economic relations. Characteristic of this is Peres’ “New Middle East”, in which the global economy would drive the Palestinians and Israelis in economic intercourse, thereby ameliorating conflict through mutual gain. It was this vision that drove Israel in its bid with the Palestinians for peace culminating in the Oslo. The importance of these economic issues is not merely an academic or policy-makers exercise, they have a practical consideration and the individual worker, the worker’s household and the wider community Palestinian community all depend on good economic policy.
The economic relations between Palestinians and Israelis have not been balanced. These have tended to favour the first world economy of Israel, which has held military dominion over the Occupied Territories, at the expense of the Palestinian economy. Palestinians have been unable to produce goods that compete domestically or internationally with those of Israel. Only in the agricultural sector, where the quality of the product is indiscernible to the consumer, can there be anything close to fair competition. But trade restraints and structural impediments imposed through Israeli military rule have benefited heavily subsidised Israeli agriculture.
The Israeli control has taken three forms. Firstly, it has impeded through the maintenance of conflict a situation that impedes the inflow of capital, thereby cutting Palestinians off from much needed aid to facilitate development. Secondly, Israel controls the means of production, through licensing and controls, and natural resources to fuel production, through confiscation, structural and usage restrictions. The third aspect of Israel policy involves the development of restraints on trade and movement, particularly outflows, of capital, goods and persons.
The first two aspects controlling inward investment and indigenous development led to under-employment of the workforce, encouraging migrancy, the last aspect permitted the flow of the migrant labour force but only to the extent required by the Israeli economy. Migrancy is therefore a result of enforced weaknesses in the Palestinian economy.
As a result of these policies, the migrant workforce buttresses the entire Occupied Territories’ economy and this is the Palestinian economy’s dependency on Israel. The figures confirm this: without work in Israel 100,000 would be unemployed with a loss of income of an estimated US $135 million.
The importance of the situation of workers in Israel has a dual significance. The worker pays for goods and services for the household and so it has immediate importance to the worker’s family. At the same time, by spending money, the worker contributes to the development of the entire economy in the Occupied Territories; the importer, shopkeeper and countless other Palestinian rely on the worker’s spending for their income. Workers, therefore, underscore the economy’s weakness and they continue to fuel Palestinian dependency on Israel. For this reason, the situation of workers, particularly since the Oslo period, has been used as the yardstick for economic stability in the Occupied Palestinian Territories.
Thus, any examination of workers has to be viewed in its socio-economic and political context: the conditions that have forced migratory labour and economic dependence of the Occupied Territories rest on the conditions that have affected Palestinian development, namely the Israeli occupation.
Israeli military control has resulted in economic, social and cultural rights violations in the Occupied Palestinian Territories of the West Bank, including Jerusalem, and Gaza Strip. Palestinians have little option but to provide cheap labour to the first world economy of Israel. Palestinians workers give a strategic influence in the economic, political and security relationship between Israel and the persons living under occupation and Israel exploits them in these respects. The contention being made here is that unlike free market relationships in, for example, the Economic Union, Israel has used and continues to use its control over Palestinian land, secured by military force, to distort relations to its own purposes. Considerations of Palestinian development are almost entirely ignored, save for some small scale development. Israel’s characterisation of the Palestinian workforce as a migratory labour force, which can lawfully be subject to restriction at will is incorrect.
The authors examine the causes of migrancy and the conditions of employment to describe human rights violations that arise from the original violation of colonial expansion. The conclusion is that Israel adopts unlawful colonialist policies, these deny the rights of Palestinians to control and benefit from their own resources, labour and markets and have instead been directed towards Israel. Likewise Palestinians workers have no rights over their own labour, the conditions are decided by Israel for its own purposes. These illegal actions involve responsibility, culpability and liability: Israel is obliged to compensate Palestinians for the actual and potential losses incurred as a result of these illegal acts.
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