‫רענון בנוגע למקורות הדין במשב"ל‬
‫במשפט הבינלאומי ישנם שני סוגי נורמות עיקריים‪ )1( :‬נורמות שמקורן באמנות (ואז הן מחייבות רק את המדינות‬
‫החברות באמנה); ו‪ )2(-‬נורמות מנהגיות אשר מחייבות את כלל המדינות בעולם‪ ,‬מלבד מדינות תהתנגדו להיווצרותו‬
‫של המנהג מיום התגבשותו {מנהג נוצר בהינתן שני תנאים‪ :‬א‪ .‬קיימת פרקטיקה יחסית מקובלת בין מדינות העולם‬
‫בהקשר מסויים‪ ,‬ו‪-‬ב‪ .‬המדינות תופסות את הפרקטיקה האמורה כנורמה משפטית מחייבת}‪ .‬ככלל אין היררכיה בוררה‬
‫בין נורמה מנהגית לנורמה שמקורה באמנה‪.‬‬
‫לפי העמדה המקובלת אימוץ רחב מאוד של אמנה רב‪-‬צדדים‪ ,‬או קיומן של אמנות בילטרליות רבות היוצרות הסדר‬
‫דומה‪ ,‬יכול להוביל להתגבשותו של מנהג‪.‬‬
‫נורמה נוספת שקיימת במשפט הבינלאומי היא הצהרה חד צדדית‪ :‬מדובר במצב בו מדינה מצהירה בפני שאר מדינות‬
‫העולם כי היא תנהג בדרך מסויימת‪ ,‬מרגע שניתנה הצהרה שכזו‪ ,‬הרי שהיא מחייבת את המדינה כאילו היא התחייבה‬
‫באמנה לנהוג באופן שבו היא הצהירה שהיא תנהג‪.‬‬
‫הנרטיב ההיסטורי המקובל כיום בנוגע להתפתחות זכויות מיעוטים במשב"ל‬
‫)‪RITA MANCHANDA, THE NO NONSENSE GUIDE TO MINORITY RIGHTS IN SOUTH ASIA (2009‬‬
‫הנרטיב ההיסטורי המקובל כיום בנוגע להתפתחות דיני זכויות האדם במשב"ל‬
‫ארנה בן‪-‬נפתלי ויובל שני‪ ,‬המשפט הבינלאומי בין מלחמה ושלום‪ ,‬עמ' ‪)2006( 203-204‬‬
– ‫עוד נרטיב על דיני זכויות האדם‬
Alston, Does the Past Matter? On the Origins of Human Rights, 126 Harv. L. Rev. 2043, 2066-68
(2013)
‫מקורות על משטר אמנות המיעוטים של אחרי מלחמת העולם הראשונה‬
H. Rosting, Protection of Minorities by the League of Nations, 17 AJIL 641 (1923)-‫הפניות הוצאו‬
p. 641 - Several of the treaties concluded after the World War contain clauses dealing with the
protection of minorities. This protection is placed under the guarantee of the League of Nations.
…
The history of the protection of minorities, considered from these four points of view and in this
wide acceptation of the term, is really the history of all the most important periods in the
evolution of the world. All that has been attempted in the following pages is to give a
retrospective summary, showing firstly, that the protection of minorities is not an entirely new
question, and secondly, that there is a fundamental difference between the system which was
adopted to protect minorities before the war and that which has now been set up under the
guarantee of the League of Nations.
642-643 - As regards the other group of minorities, namely, persons who are nationals of a
country but differ in race, religion or language from the majority of the other nationals of the
country, it is interesting to note that the question of ethnical minorities did not really arise until
last century, whereas the question of religious minorities is as old as history itself. It is the
history of religious tolerance and of mankind's struggle to obtain liberty of thought which
reaches its culminating point in the Declaration of the Rights of Man at the time of the French
Revolution. The records of this history are abundant and are among the most important
documents in history. Mention need only be made of the Pact of Warsaw, 1573 (Pax inter
Dissidentes de Religione), the Edict of Nantes, 1598, the Peace of Augsburg, 1555, and
theTreaty of Westphalia, 1648. The last named treaty is of special interest. It confirms the
agreements contained in all the previous treaties relating to the settlement of religious disputes
arising out of the Reformation (the Passau Agreement, 1552-the religious Peace of Augsburg,
1555 etc.). In accordance with the terms of the Treaty of Westphalia, all the signatory Powers
undertook to defend each and every clause of this treaty, even by armed force. It is unnecessary
to emphasize the importance of this peace from the point of view of international law. The
principle of joint action and the acceptance of common responsibilities and guarantees which are
contained in this treaty, in many respects evoke comparison with the Covenant of the League of
Nations.
‫ שנקבע באמנות של קונגרס וינה של‬,‫) להסדר‬644 '‫ עד שהוא מגיע (עמ‬,‫ממשיך לסקור אמנות שונות מלאורך המאות‬
‫ נחשב (שלא‬,‫ לאחר פירוק פולין וחלוקתה בין רוסיה ואוסטריה; הסדר זה‬,‫ שהעניק הגנות לבני הלאום הפולני‬,1815
‫ הוא‬,‫ לאחר מכן‬.‫בצדק כי ישנם מוקדמים ממנו) כהסדר הבינלאומי ראשון שהעניק הגנה למיעוטים לאומיים ולא דתיים‬
.)‫ שבהם הוענקו הגנות למיעוטים לאומים או דתיים‬19-‫ממשיך וסוקר אמנות שונות שניתנו לאורך המאה ה‬
p.647 the [post-WWI] minorities treaties, however, differ in form from previous conventions
relating to similar questions. This change of form is a necessary consequence and an essential
part of the new system of international relations inaugurated by the establishment of the League
of Nations. Formerly, the guarantee for provisions of this nature was vested in the Great Powers.
Experience has shown that this arrangement was ineffective in practice, and it was also open to
the criticism that it might give to the Great Powers, either individually or in combination, a right
to interfere in the internal constitution of the states affected, which could be used for purely
political purposes. Under the new system the guarantee is entrusted to the League of Nations.
Furthermore, a clause has been inserted in all the treaties, by virture of which disputes which
may arise in connection with the guarantees in question may be submitted to the Court of
International Justice. In this way, differences which may arise are removed from a political to a
juridical sphere-a fact which should facilitate an impartial decision.
‫עמדת ראש ממשלת צרפת קלימנסו בשאלה האם יש חידוש בהסדר אמנות המיעוטים של אחרי מלחמת העולם‬
:)‫הראשונה (נאמרו בהקשר לאמנה שנחתמה בין המעצמות לבין פולין‬
This treaty does not constitute any fresh departure. It has for long been the established procedure
of the public law of Europe that when a State is created, or when large accessions of territory are
made to an established State, the joint and formal recognition of the Great Powers should be
accompanied by the requirement that such States should, in the form of a binding International
convention undertake to comply with certain principles of Government. In this regard I must
recall for your consideration the fact that it is to the endeavors and sacrifices of the Powers in
whose name I am addressing you that the Polish nation owes the recovery of its independence. It
is by their decision that Polish sovereignty is being restored over the territories in question, and
that the inhabitants of these territories are being incorporated into the Polish nation.... ...There
rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most
permanent and solemn form guarantees for certain essential rights which will afford to the
inhabitants the necessary protection, whatever changes may take place in the internal constitution
of the Polish State. (cited in STEPHEN D. KRASNER, SOVEREIGNTY 92-93 (1999))
LI-ANN THIO, MANAGING BABEL: THE INTERNATIONAL LEGAL PROTECTION OF MINORITIES IN
THE TWENTIETH CENTURY 97-98 (2005(
‫ (שנמצאת בסוף המשפט שאומר שחלק נכבד מהפרקטיקות שפותחו על ידי‬353 ‫סליחה על איכות הצילום – הע"ש‬
‫משטר המיעוטים של חבר הלאומים עדין טבועות במשפט הבינלאומי היום – מפנה בין השאר להחלטת החלוקה מכ"ט‬
‫בנובמבר; לסקירה של אמנות בילטרליות שונות שנחתמו בין מדינות אירופיות שונות להגנה על מיעוטים בשנים‬
Rodolfo De-Nova, The International Protection of National :‫ ראו‬,‫שלאחר מלחמת העולם השניה‬
)Minorities and Human Rights, 11 HOWARD L.J. 275 (1965).
)‫ מסמכים בינלאומיים מרכזים (מי שמעוניין מוזמן לעיין‬-‫המצב כיום‬
UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or
Linguistic Minorities (1992)
UN Declaration on the Rights of Indigenous Peoples (2007)
ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989)
WORLD BANK Operational Policy 4.10 on Indigenous Peoples (2005; Revised 2013)
European Charter for Regional or Minority Languages (1992)
EU Framework Convention for the Protection of National Minorities (1995)
OSCE - Copenhagen Declaration (1990), esp. Paragraphs 30-40
OSCE - Hague Recommendations on Education Rights of National Minorities (1996)
OSCE - Oslo Recommendations on Linguistic Rights of National Minorities (1998)
OSCE - Lund Recommendations on Effective Participation of National Minorities (1999)
OSCE - Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations (2008
OSCE - Ljubljana Guidelines on Integration of Diverse Societies (2012)
Proposed American Declaration on the Rights of Indigenous Peoples (1997)
‫התגובה האירופית לנפילת הגוש הקומוניסטי‬
Thomas D. Grant, Extending Decolonization: How the United Nations Might Have Addressed
Kosovo, 28 GA. J. INT’L & COMP. L. 9, 23-25 (1999) (‫)הפניות הוצאו‬
Very few states have been created since World War II without the consent of a parent state.
Another feature of state practice further illustrating the strength of the rule of territorial integrity
is that a state may permit a community in its territory to become a new state, but lacking
permission, the community must bow to the parent state's right to territorial integrity. Despite
these demands, claims to independent statehood have abounded since World War I. Over one
hundred of these have resulted in the formation of new states. In virtually every case, the advent
of a new state was heralded as a vindication of the principle of self-determination." Thus, it
would seem that the principle of self-determination has taken on legal force. Again, as noted
above, the difficult question is not whether self-determination confers some general right as a
matter of law. The difficult question is what particular right self-determination confers and how
that right can be enforced in practice. In a stable, democratic state that does not practice legal
discrimination and permits its constituent ethnic groups to realize their identity free from legal
impediment, ethnic groups exercise their right to self-determination through their participation in
the governance of the state. … In countries where the self-determination of a minority is in
doubt, one solution may be to amend constitutional instruments so as to reinforce minority rights.
Self-determination may allow a people to experience a certain level of autonomy within the state
they inhabit and to experience legal safeguards when they are a minority in the state. Consider,
for example, Croatia. The EC/EU compelled Croatia to incorporate safeguards into its
constitution to protect a Serb minority. Indeed, minority rights treaties have been a far more
common form of vindication of the self-determination rights of minorities than secession. It is
highly unlikely that a group in such a country may exercise its right to self-determination
through violent revolt or unilateral secession. The right to self-determination is not always a right
to secede.
– ‫יבשת אמריקה‬
Thomas M. Antkowiak, Rights, Resources, and Rhetoric: Indigenous Peoples and the InterAmerican Court, 35 J. INT'L L. 113 (2013)
P. 120: The Inter-American Court, for its part, is the world’s only human rights body to have
issued legally-binding judgments on resource extraction in indigenous territories. In contrast, the
Inter-American Commission and UN mechanisms are only capable of producing
recommendations. The Court stands as a key guardian for indigenous rights in the hemisphere,
especially with the Commission’s mandate under fire. The Court’s judgments are also
noteworthy for their detailed nature, setting out elaborate safeguards and remedies for indigenous
and tribal populations. Although it primarily interprets the American Convention on Human
Rights, the Tribunal’s influence has extended around the globe. In fact, the UN Special
Rapporteur on indigenous rights cites the Inter-American Court as a primary legal authority in
defense of all indigenous communities threatened by commercial projects. The Court’s landmark
case on this topic, the 2007 judgment Saramaka v. Suriname, condemned logging and mining
initiatives on traditional lands. The African Commission on Human and Peoples’ Rights, among
other bodies, has also been deeply influenced by Saramaka and other Court precedents. In June
of 2012, the Court handed down Sarayaku v. Ecuador, its most important decision on extractive
industries and indigenous peoples since Saramaka.
P. 130-133: [James] Anaya sets out core principles that “elaborate upon the requirements of selfdetermination.” Self-determination is not merely a matter of political rights. Rather, it is
comprised of five dimensions: “nondiscrimination, cultural integrity, lands and resources, social
welfare and development, and selfgovernment.” Anaya shows that these five principles have
been emphasized by indigenous peoples and reinforced by international human rights authorities.
All of these norms find support, to greater or lesser extent, in the ILO Convention and the
UNDRIP. With respect to nondiscrimination specifically, Anaya also cites, among other sources,
concluding observations and a general recommendation from the UN Committee on the
limination of Racial Discrimination; these documents condemn pervasive discrimination against
indigenous peoples, which endangers “their culture and their historical identity.”
As mentioned above, the ICCPR’s Article 27 ostensibly protects cultural integrity in the
international legal landscape. Despite the provision’s modest beginnings, the UN Human Rights
Committee (“Human Rights Committee”) has asserted that it in fact requires both negative and
positive state obligations to protect minorities.
Anaya reviews cases where the Committee has applied Article 27 to safeguard the cultural
integrity of indigenous communities. In addition, he refers to global instruments that seek to
protect national minorities. As for the protection of ancestral lands and resources, the InterAmerican system of human rights has taken a leading role. Some of these cases are discussed in
Anaya’s work; several judgments are examined in detail below (see infra Part III). Concerning
his category of “social welfare and development,” Anaya highlights provisions from the
UNDRIP (at that time in draft form) and the ILO Convention that seek to improve the life and
work conditions of indigenous peoples. Finally, “[s]elf-government is the overarching political
dimension” of self-determination, following Anaya’s framework. Self-government consists of
two facets. The first grants indigenous populations governmental autonomy at the community
level, and the second ensures their effective participation within higher levels of state and
national government. As an essential part of self-government, routine consultation with
indigenous communities is increasingly demanded by human rights bodies and other
international institutions, as Anaya shows and as is further considered below.
In many instances Anaya asserts that his self-determination framework is already recognized in
international law; his project aims to furnish the underlying theory for accepted doctrine and
practice. Yet Will Kymlicka has objected that established international law fails to support some
of his claims.72 Given Anaya’s expansive thesis on the beneficiaries of self-determination, for
example, non-indigenous groups would also have strong claims to self-determination under
international law. But Kymlicka points out that this is not the case, alluding to legal instruments
on “stateless nations,” such as the Council of Europe’s Framework Convention for the Protection
of National Minorities. These texts have “avoided any reference to territorial autonomy or
political self-determination.” Similarly, Anaya argues that varied rights and “understandings”
with respect to indigenous peoples have attained the lofty rank of customary international law.
This mandatory category “results from a general and consistent practice of states followed by
them from a sense of legal obligation.” The principle of nondiscrimination has reached this level.
However, at the time of his book’s publication (2004), before even the adoption of the UNDRIP,
various precise aspects of indigenous rights were still developing (albeit rapidly) in the
international sphere. For example, the appealing indigenous right to “social welfare and
development,” particularly at the time, represented more of an emerging norm than a globallybinding right. Thus, Anaya’s account may have overestimated the status of certain indigenous
rights in international law.
Li-Ann Thio, Battling Balkanization: Regional Approaches Towards Minority Protection
Beyond Europe, 43 HARVARD INT’L LAW J. 409 (2002)
‫ישראל – התחייבויות בעת הליך ההקמה‬
UN Secretariat in 1950. E/CN.4/367 Symbol: E/CN.4/367, Date: 7 April 1950
‫כתב המנדט‬
The Palestine Mandate
The Council of the League of Nations:
Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the
provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory
selected by the said Powers the administration of the territory of Palestine, which formerly
belonged to the Turkish Empire, within such boundaries as may be fixed by them; and
Whereas the Principal Allied Powers have also agreed that the Mandatory should be
responsible for putting into effect the declaration originally made on November 2nd, 1917, by
the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the
establishment in Palestine of a national home for the Jewish people, it being clearly understood
that nothing should be done which might prejudice the civil and religious rights of existing nonJewish communities in Palestine, or the rights and political status enjoyed by Jews in any other
country; and
Whereas recognition has thereby been given to the historical connection of the Jewish people
with Palestine and to the grounds for reconstituting their national home in that country; and
Whereas the Principal Allied Powers have selected His Britannic Majesty as the Mandatory
for Palestine; and
Whereas the mandate in respect of Palestine has been formulated in the following terms and
submitted to the Council of the League for approval; and
Whereas His Britannic Majesty has accepted the mandate in respect of Palestine and
undertaken to exercise it on behalf of the League of Nations in conformity with the following
provisions; and
Whereas by the afore-mentioned Article 22 (paragraph 8), it is provided that the degree of
authority, control or administration to be exercised by the Mandatory, not having been
previously agreed upon by the Members of the League, shall be explicitly defined by the Council
of the League Of Nations;
confirming the said Mandate, defines its terms as follows:
ART. 2: The Mandatory shall be responsible for placing the country under such political,
administrative and economic conditions as will secure the establishment of the Jewish national
home, as laid down in the preamble, and the development of self-governing institutions, and also
for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of
race and religion.
ART. 3: The Mandatory shall, so far as circumstances permit, encourage local autonomy.
ART. 6: The Administration of Palestine, while ensuring that the rights and position of other
sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable
conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4,
close settlement by Jews on the land, including State lands and waste lands not required for
public purposes.
ART. 9: The Mandatory shall be responsible for seeing that the judicial system established in
Palestine shall assure to foreigners, as well as to natives, a complete guarantee of their rights.
Respect for the personal status of the various peoples and communities and for their religious
interests shall be fully guaranteed. In particular, the control and administration of Wakfs shall be
exercised in accordance with religious law and the dispositions of the founders.
ART. 13: All responsibility in connection with the Holy Places and religious buildings or sites in
Palestine, including that of preserving existing rights and of securing free access to the Holy
Places, religious buildings and sites and the free exercise of worship, while ensuring the
requirements of public order and decorum, is assumed by the Mandatory, who shall be
responsible solely to the League of Nations in all matters connected herewith, provided that
nothing in this article shall prevent the Mandatory from entering into such arrangements as he
may deem reasonable with the Administration for the purpose of carrying the provisions of this
article into effect; and provided also that nothing in this mandate shall be construed as conferring
upon the Mandatory authority to interfere with the fabric or the management of purely Moslem
sacred shrines, the immunities of which are guaranteed.
ART. 14: A special commission shall be appointed by the Mandatory to study, define and
determine the rights and claims in connection with the Holy Places and the rights and claims
relating to the different religious communities in Palestine. The method of nomination, the
composition and the functions of this Commission shall be submitted to the Council of the
League for its approval, and the Commission shall not be appointed or enter upon its functions
without the approval of the Council.
ART. 15: The Mandatory shall see that complete freedom of conscience and the free exercise of
all forms of worship, subject only to the maintenance of public order and morals, are ensured to
all. No discrimination of any kind shall be made between the inhabitants of Palestine on the
ground of race, religion or language. No person shall be excluded from Palestine on the sole
ground of his religious belief.
The right of each community to maintain its own schools for the education of its own
members in its own language, while conforming to such educational requirements of a general
nature as the Administration may impose, shall not be denied or impaired.
ART. 16: The Mandatory shall be responsible for exercising such supervision over religious or
eleemosynary bodies of all faiths in Palestine as may be required for the maintenance of public
order and good government. Subject to such supervision, no measures shall be taken in Palestine
to obstruct or interfere with the enterprise of such bodies or to discriminate against any
representative or member of them on the ground of his religion or nationality.
ART. 22: English, Arabic and Hebrew shall be the official languages of Palestine. Any
statement or inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew
and any statement or inscription in Hebrew shall be repeated in Arabic.
ART. 23: The Administration of Palestine shall recognise the holy days of the respective
communities in Palestine as legal days of rest for the members of such communities.
ART. 25: In the territories lying between the Jordan and the eastern boundary of Palestine as
ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the
League of Nations, to postpone or withhold application of such provisions of this mandate as he
may consider inapplicable to the existing local conditions, and to make such provision for the
administration of the territories as he may consider suitable to those conditions, provided that no
action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18.
ART. 26: The Mandatory agrees that, if any dispute whatever should arise between the
Mandatory and another member of the League of Nations relating to the interpretation or the
application of the provisions of the mandate, such dispute, if it cannot be settled by negotiation,
shall be submitted to the Permanent Court of International Justice provided for by Article 14 of
the Covenant of the League of Nations.
‫החלטת החלוקה‬
UN General Assembly Resolution 181 (II). Future Government of Palestine
7. The Commission shall instruct the Provisional Councils of Government of both the Arab and
Jewish States, after their formation, to proceed to the establishment of administrative organs of
government, central and local.
8. The Provisional Council of Government of each State shall, within the shortest time possible,
recruit an armed militia from the residents of that State, sufficient in number to maintain internal
order and to prevent frontier clashes.
This armed militia in each State shall, for operational purposes, be under the command of Jewish
or Arab officers resident in that State, but general political and military control, including the
choice of the militia's High Command, shall be exercised by the Commission.
9. The Provisional Council of Government of each State shall, not later than two months after the
withdrawal of the armed forces of the mandatory Power, hold elections to the Constituent
Assembly which shall be conducted on democratic lines.
The election regulations in each State shall be drawn up by the Provisional Council of
Government and approved by the Commission. Qualified voters for each State for this election
shall be persons over eighteen years of age who are: (a) Palestinian citizens residing in that State
and (b) Arabs and Jews residing in the State, although not Palestinian citizens, who, before
voting, have signed a notice of intention to become citizens of such State.
Arabs and Jews residing in the City of Jerusalem who have signed a notice of intention to
become citizens, the Arabs of the Arab State and the Jews of the Jewish State, shall be entitled to
vote in the Arab and Jewish States respectively.
Women may vote and be elected to the Constituent Assemblies.
During the transitional period no Jew shall be permitted to establish residence in the area of the
proposed Arab State, and no Arab shall be permitted to establish residence in the area of the
proposed Jewish State, except by special leave of the Commission.
10. The Constituent Assembly of each State shall draft a democratic constitution for its State and
choose a provisional government to succeed the Provisional Council of Government appointed
by the Commission. The constitutions of the States shall embody chapters 1 and 2 of the
Declaration provided for in section C below and include inter alia provisions for:
(a) Establishing in each State a legislative body elected by universal suffrage and by secret ballot
on the basis of proportional representation, and an executive body responsible to the legislature;
(b) Settling all international disputes in which the State may be involved by peaceful means in
such a manner that international peace and security, and justice, are not endangered;
(c) Accepting the obligation of the State to refrain in its international relations from the threat or
use of force against the territorial integrity of political independence of any State, or in any other
manner
inconsistent
with
the
purposes
of
the
United
Nations;
(d) Guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic
and religious matters and the enjoyment of human rights and fundamental freedoms, including
freedom of religion, language, speech and publication, education, assembly and association;
(e) Preserving freedom of transit and visit for all residents and citizens of the other State in
Palestine and the City of Jerusalem, subject to considerations of national security, provided that
each State shall control residence within its borders.
11. The Commission shall appoint a preparatory economic commission of three members to
make whatever arrangements are possible for economic co-operation, with a view to
establishing, as soon as practicable, the Economic Union and the Joint Economic Board, as
provided in section D below.
C. DECLARATION
A declaration shall be made to the United Nations by the provisional government of each
proposed State before independence. It shall contain inter alia the following clauses:
General Provision
The stipulations contained in the declaration are recognized as fundamental laws of the State and
no law, regulation or official action shall conflict or interfere with these stipulations, nor shall
any law, regulation or official action prevail over them.
Chapter 1
Holy Places, religious buildings and sites
1. Existing rights in respect of Holy Places and religious buildings or sites shall not be denied or
impaired.
2. In so far as Holy Places are concerned, the liberty of access, visit and transit shall be
guaranteed, in conformity with existing rights, to all residents and citizens of the other State and
of the City of Jerusalem, as well as to aliens, without distinction as to nationality, subject to
requirements of national security, public order and decorum.
Similarly, freedom of worship shall be guaranteed in conformity with existing rights, subject to
the maintenance of public order and decorum.
3. Holy Places and religious buildings or sites shall be preserved. No act shall be permitted
which may in any way impair their sacred character. If at any time it appears to the Government
that any particular Holy Place, religious building or site is in need of urgent repair, the
Government may call upon the community or communities concerned to carry out such repair.
The Government may carry it out itself at the expense of the community or communities
concerned if no action is taken within a reasonable time.
4. No taxation shall be levied in respect of any Holy Place, religious building or site which was
exempt from taxation on the date of the creation of the State.
No change in the incidence of such taxation shall be made which would either discriminate
between the owners or occupiers of Holy Places, religious buildings or sites, or would place such
owners or occupiers in a position less favourable in relation to the general incidence of taxation
than existed at the time of the adoption of the Assembly's recommendations.
5. The Governor of the City of Jerusalem shall have the right to determine whether the
provisions of the Constitution of the State in relation to Holy Places, religious buildings and sites
within the borders of the State and the religious rights appertaining thereto, are being properly
applied and respected, and to make decisions on the basis of existing rights in cases of disputes
which may arise between the different religious communities or the rites of a religious
community with respect to such places, buildings and sites. He shall receive full co-operation
and such privileges and immunities as are necessary for the exercise of his functions in the State.
Chapter 2
Religious and Minority Rights
1. Freedom of conscience and the free exercise of all forms of worship, subject only to the
maintenance of public order and morals, shall be ensured to all.
2. No discrimination of any kind shall be made between the inhabitants on the ground of race,
religion, language or sex.
3. All persons within the jurisdiction of the State shall be entitled to equal protection of the laws.
4. The family law and personal status of the various minorities and their religious interests,
including endowments, shall be respected.
5. Except as may be required for the maintenance of public order and good government, no
measure shall be taken to obstruct or interfere with the enterprise of religious or charitable bodies
of all faiths or to discriminate against any representative or member of these bodies on the
ground of his religion or nationality.
6. The State shall ensure adequate primary and secondary education for the Arab and Jewish
minority,
respectively,
in
its
own
language
and
its
cultural
traditions.
The right of each community to maintain its own schools for the education of its own members
in its own language, while conforming to such educational requirements of a general nature as
the State may impose, shall not be denied or impaired. Foreign educational establishments shall
continue their activity on the basis of their existing rights.
7. No restriction shall be imposed on the free use by any citizen of the State of any language in
private intercourse, in commerce, in religion, in the Press or in publications of any kind, or at
public meetings. [The following stipulation shall be added to the declaration concerning the
Jewish State: "In the Jewish State adequate facilities shall be given to Arab-speaking citizens for
the use of their language, either orally or in writing, in the legislature, before the Courts and in
the administration."]
8. No expropriation of land owned by an Arab in the Jewish State [or by a Jew in the Arab State]
shall be allowed except for public purposes. In all cases of expropriation full compensation as
fixed by the Supreme Court shall be paid previous to dispossession.
Chapter 3
Citizenship, international conventions and financial obligations
1. Citizenship. Palestinian citizens residing in Palestine outside the City of Jerusalem, as well as
Arabs and Jews who, not holding Palestinian citizenship, reside in Palestine outside the City of
Jerusalem shall, upon the recognition of independence, become citizens of the State in which
they are resident and enjoy full civil and political rights. Persons over the age of eighteen years
may opt, within one year from the date of recognition of independence of the State in which they
reside, for citizenship of the other State, providing that no Arab residing in the area of the
proposed Arab State shall have the right to opt for citizenship in the proposed Jewish State and
no Jew residing in the proposed Jewish State shall have the right to opt for citizenship in the
proposed Arab State. The exercise of this right of option will be taken to include the wives and
children under eighteen years of age of persons so opting.
Arabs residing in the area of the proposed Jewish State and Jews residing in the area of the
proposed Arab State who have signed a notice of intention to opt for citizenship of the other
State shall be eligible to vote in the elections to the Constituent Assembly of that State, but not in
the elections to the Constituent Assembly of the State in which they reside.
2. International conventions. (a) The State shall be bound by all the international agreements and
conventions, both general and special, to which Palestine has become a party. Subject to any
right of denunciation provided for therein, such agreements and conventions shall be respected
by the State throughout
the period
for which they were concluded.
(b) Any dispute about the applicability and continued validity of international conventions or
treaties signed or adhered to by the mandatory Power on behalf of Palestine shall be referred to
the International Court of Justice in accordance with the provisions of the Statute of the Court.
…
D. ECONOMIC UNION AND TRANSIT
1. The Provisional Council of Government of each State shall enter into an undertaking with
respect to economic union and transit. This undertaking shall be drafted by the commission
provided for in section B, paragraph 1, utilizing to the greatest possible extent the advice and cooperation of representative organizations and bodies from each of the proposed States. It shall
contain provisions to establish the Economic Union of Palestine and provide for other matters of
common interest. If by 1 April 1948 the Provisional Councils of Government have not entered
into the undertaking, the undertaking shall be put into force by the Commission.
…
F. ADMISSION TO MEMBERSHIP IN THE UNITED NATIONS
When the independence of either the Arab or the Jewish State as envisaged in this plan has
become effective and the declaration and undertaking, as envisaged in this plan, have been
signed by either of them, sympathetic consideration should be given to its application for
admission to membership in the United Nations in accordance with Article 4 of the Charter of
the United Nations.
‫חלקים מגילת העצמאות‬
‫‪-29‬בנובמבר ‪ 1947‬קיבלה עצרת האומות המאוחדות החלטה המחייבת הקמת מדינה יהודית בארץ‪-‬ישראל; העצרת‬
‫תבעה מאת תושבי ארץ‪-‬ישראל לאחוז בעצמם בכל הצעדים הנדרשים מצדם הם לביצוע ההחלטה‪ .‬הכרה זו של האומות‬
‫המאוחדות בזכות העם היהודי להקים את מדינתו אינה ניתנת להפקעה ‪ .‬זוהי זכותו הטבעית של העם היהודי להיות ככל‬
‫עם ועם עומד ברשות עצמו במדינתו הריבונית ‪ .‬לפיכך נתכנסנו‪ ,‬אנו חברי מועצת העם‪ ,‬נציגי הישוב העברי והתנועה‬
‫הציונית‪ ,‬ביום סיום המנדט הבריטי על ארץ‪-‬ישראל‪ ,‬ובתוקף זכותנו הטבעית וההיסטורית ועל יסוד החלטת עצרת‬
‫האומות המאוחדות אנו מכריזים בזאת על הקמת מדינה יהודית בארץ ישראל‪ ,‬היא מדינת ישראל ‪ .‬אנו קובעים שהחל‬
‫מרגע סיום המנדט‪ ,‬הלילה‪ ,‬אור ליום שבת ו' אייר תש"ח‪ 15 ,‬במאי ‪ ,1948‬ועד להקמת השלטונות הנבחרים והסדירים‬
‫של המדינה בהתאם לחוקה שתיקבע על‪-‬ידי האספה המכוננת הנבחרת לא יאוחר מ‪ 1-‬באוקטובר ‪ - 1948‬תפעל מועצת‬
‫העם כמועצת מדינה זמנית‪ ,‬ומוסד הביצוע שלה‪ ,‬מנהלת‪-‬העם‪ ,‬יהווה את הממשלה הזמנית של המדינה היהודית‪ ,‬אשר‬
‫תיקרא בשם ישראל ‪ .‬מדינת ישראל תהא פתוחה לעליה יהודית ולקיבוץ גלויות; תשקוד על פיתוח הארץ לטובת כל‬
‫ת ושביה; תהא מושתתה על יסודות החירות‪ ,‬הצדק והשלום לאור חזונם של נביאי ישראל; תקיים שויון זכויות חברתי‬
‫ומדיני גמור לכל אזרחיה בלי הבדל דת‪ ,‬גזע ומין; תבטיח חופש דת‪ ,‬מצפון‪ ,‬לשון‪ ,‬חינוך ותרבות; תשמור על המקומות‬
‫הקדושים של כל הדתות; ותהיה נאמנה לעקרונותיה של מגילת האומות המאוחדות‪ .‬מדינת ישראל תהא מוכנה לשתף‬
‫פעולה עם המוסדות והנציגים של האומות המאוחדות בהגשמת החלטת העצרת מיום ‪ 29‬בנובמבר ‪ 1947‬ותפעל להקמת‬
‫האחדות הכלכלית של ארץ‪-‬ישראל בשלמותה ‪ .‬אנו קוראים לאומות המאוחדות לתת יד לעם היהודי בבנין מדינתו‬
‫ולקבל את מדינת ישראל לתוך משפחת העמים ‪ .‬אנו קוראים ‪ -‬גם בתוך התקפת‪-‬הדמים הנערכת עלינו זה חדשים ‪-‬‬
‫לבני העם הערבי תושבי מדינת ישראל לשמור על שלום וליטול חלקם בבנין המדינה על יסוד אזרחות מלאה ושווה ועל‬
‫יסוד נציגות מתאימה בכל מוסדותיה‪ ,‬הזמניים והקבועים ‪.‬אנו מושיטים יד שלום ושכנות טובה לכל המדינות השכנות‬
‫ועמיהן‪ ,‬וקוראים להם לשיתוף פעולה ועזרה הדדית עם העם העברי העצמאי בארצו‪ .‬מדינת ישראל מוכנה לתרום‬
‫חלקה במאמץ משותף לקידמת המזרח התיכון כולו‪.‬‬
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ
(2004)
48. As regards the request for an advisory opinion now before it, the Court acknowledges that
Israel and Palestine have expressed radically divergent views on the legal consequences of
Israel's construction of the wall, on which the Court has been asked to pronounce. However, as
the Court has itself noted, "Differences of views . . . on legal issues have existed in practically
every advisory proceeding" (…).
49. Furthermore, the Court does not consider that the subject-matter of the General Assembly's
request can be regarded as only a bilateral matter between 1srai:l and Palestine. Given the
powers and responsibilities of the United Nations in questions relating to international peace and
security, it is the Court's view that the construction of the wall must be deemed to be directly of
concern to the United Nations. The responsibility of the United Nations in this matter also has its
origin in the Mandate and the Partition Resolution concerning Palestine (see paragraphs 70 and
71 below). This responsibility has been described by the General Assembly as "a permanent
responsibility towards the question of Palestine until the question is resolved in all its aspects in a
satisfactory manner in accordance with international legitimacy" (General Assembly resolution
571107 of 3 December 2002). …
70. Palestine was part of the Ottoman Empire. At the end of the First World War, a class "A"
Mandate for Palestine was entrusted to Great Britain by the League of Nations, pursuant to
paragraph 4 of Article 22 of the Covenant, which provided that: "Certain communities, formerly
belonging to the Turkish Empire have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to the rendering of administrative
advice and assistance by a Mandatory until such time as they are able to stand alone." The Court
recalls that in its Advisory Opinion on the International Status of South West Africa, speaking of
mandates in general, it observed that "The Mandate was created in the interest of the inhabitants
of the territory, and of humanity in general, as an international institution with an international
object - a sacred trust of civilization." (1. C. J. Reports
1950, p. 132.) The Court also held in this regard that "two principles were considered to be of
paramount importance: the principle of non-annexation and the principle that the well-being and
development of. . . peoples [not yet able: to govern themselves] form[ed] 'a sacred trust of
civilization' " (ihid., p. 13 1). The territorial boundaries of the Mandate for Palestine were laid
down by various instruments, in particular on the eastern border by a British memorandum of 16
September 1922 and an Anglo-Transjordanian Treaty of 20 February 1928.
71. In 1947 the United Kingdom announced its intention to complete evacuation of the mandated
territory by 1 August 1948, subsequently advancing that date to 15 May 1948. In the meantime,
the General Assembly had on 29 November 1947 adopted resolution 181 (II) on the future
government of Palestine, which "Recommends to the United Kingdom . . . and to all other
Members of the United Nations the adoption and implementation . . . of the Plan of Partition" of
the territory, as set forth in the resolution, between two independent States, one Arab, the other
Jewish, as well as the creation of a special international régime for the City of Jerusalem. The
Arab population of Palestine and the Arab States rejected this plan, contending that it was
unbalanced; on 14 May 1948, Israel proclaimed its independence on the strength of the General
Assembly resolution; armed conflict then broke out between Israel and a number of Arab States
and the Plan of Partition was not implemented.
129. In addition to the general guarantees of freedom of movement under Article 12 of the
international Covenant on Civil and Political Rights, account must also be taken of specific
guarantees of access to the Christian, Jewish arid Islamic Holy Places. The status of the Christian
Holy Places in the Ottoman Empire dates far back in time, the latest provisions relating thereto
having been incorporated into Article 62 of the Treaty of Berlin of 13 July 1878. The Mandate
for Palestine given to the British Government on 24 July 1922 included an Article 13, under
which: "Al1 responsibility in connection with the Holy Places and religious buildings or sites in
Palestine including that of preserving existing rights and of securing free access to the Holy
Places, religious buildings and sites and the free exercise of worship, while ensuring the
requirements of public order and decorum, is assumed by the Mandatory . . ." Article 13 further
stated: "nothing in this mandate shall be construed as conferring . . . authority to interfere with
the fabric or the management of purely Moslem sacred shrines, the immunities of which are
guaranteed". In the aftermath of the Second World War, the General Assembly, in adopting
resolution 181 (II) on the future government of Palestine, devoted a11 entire chapter of the Plan
of Partition to the Holy Places, religious buildings and sites. Article 2 of this Chapter provided,
in so far as the Holy Places were concerned : "the liberty of access, visit and transit shall be
guaranteed, in conformity with existing rights, to all residents and citizens [of the Arab State, of
the Jewish State] and of the City of Jerusalem, as well as to aliens, without distinction as to
nationality, subject to requirements of national security, public order and decorum".
Subsequently, in the aftermath of the armed conflict of 1948, the 1949 General Armistice
Agreement between Jordan and Israel provided in Article VI11 for the establishment of a special
committee for "the formulation of agreed plan is and arrangements for such matters as either
Party may submit to it" for the purpose of enlarging the scope of the Agreement and of effecting
improvement in its application. Such matters, on which an agreement of principle had already
been concluded, included "free access to the Holy Places". This commitment concerned mainly
the Holy Places located to the east of the Green Line. However, some Holy Places were located
West of that Line. This was the case of the Room of the Last Supper and the Tomb of David, on
Mount Zion. In signing the General Armistice Agreement, Israel thus undertook, as did Jordan,
to guarantee freedom of access to the Holy Places. The Court considers that this undertaking by
Israel has remained valid for the Holy Places which came under its control in 1967. This
undertaking has further been confirmed by Article 9, paragraph 1, of the 1994 Peace Treaty
between Israel and Jordan, by virtue of which, in more general terms, "Each party will provide
freedom of access to places of religious and historical significance."