“This is another funny term from Political Sciences,” I told myself when I began writing this article. After all, no one of the humanly recognized sovereign entities can decide that the sun would rise on the west tomorrow. In theological terms, the only possible sovereign is God. Yet, to make this text clearer, I adopted the definitions used in Political Sciences texts and the media.
A short definition of the term says that sovereignty is the right to exercise the highest authority by the law within a specific territory. The key point is the exclusivity of jurisdiction; when a decision is made by a sovereign entity, it cannot generally be overruled by any other authority.
The current notions of state sovereignty were defined in the Treaty of Westphalia of 1648, and include territorial integrity, border inviolability, and supremacy of the state rather than the Church; the sovereign is the supreme lawmaking authority. Another important change occurred by the end of the 18th Century, when the American Constitution of 1787 and the French Revolution of 1789 shifted the possession of sovereignty from the king to the people. However, how can such a power be recognized?
There are two parameters that allow recognizing the existence of sovereignty: internal and external. Internal sovereignty refers to the relations between the sovereign and its own subjects; it deals with the question: by what right does the sovereign exercise authority over its subjects? In the past, the most common answer was by divine right, nowadays a social contract (like a Constitution) is the norm. External sovereignty concerns the relationship between sovereigns. Foreign governments recognize the sovereignty of a state over a territory and its denizens, or not. This parameter is not exact; in the near past the Republic of China and the People’s Republic of China claimed sovereignty over the same territory. Different countries adopted different answers on the issue.
This fluidity in the definition of external sovereignty shows that the internal sovereignty is more important and is – de facto – the defining quality of sovereignty. A state can exist without external sovereignty, but it would fail without internal one. Sovereignty may be recognized even when the sovereign possesses no territory or its territory is under occupation by another sovereign. It happened to the Holy See during the annexation of the Papal States by Italy in 1870 and the signing of the Lateran Treaties in 1929, when it was recognized as sovereign and was granted the Vatican City. After it lost Malta to Napoleon, the Sovereign Military Order of Malta rules only over two properties in Rome, but is widely recognized and even is an observer at the UN. Occupied European countries during WWII were still recognized as sovereign. Even under these strained condition, these entities kept their sovereignty because their subjects recognized it and fought for it. If having lose the people’s support during the occupation period, they would have been effectively terminated, as it did happen with many political entities during human history; under this test, the sovereignty awarded by the people had been proved as being more stable than the one relying on a king. The last disappears more easily, especially if the king and his heirs are killed in a war against other sovereign. Thus, the key issue while testing sovereignty is its support by the people comprising it.
In modern states – those defined by popularly invested sovereignty – the acquisition of sovereignty by the state is defined by a social contract, often based on a single document – called constitution – which is ratified by the people and later expanded into laws by a legislative body. This is the case with countries defined as democracies; the UK doesn’t have a constitution but it did replace it with a legal tradition spanning many centuries. Thus, the people are the source of all political power. Benjamin Franklin expressed the concept when he wrote, “In free governments the rulers are the servants and the people their superiors and sovereigns.” Thomas Jefferson – in a similar statement – said in 1799: “The whole body of the nation is the sovereign legislative, judiciary, and executive power for itself” (both quotations from http://etext.virginia.edu/jefferson/quotations/jeff0300.htm).
On November 29, 1947, Resolution 181 of the UN General Assembly decided to divide Palestine between Jews and Palestinians and became the base of the external recognition of the State of Israel by other sovereign entities. On May 15, 1948, Israel’s Declaration of Independence was issued by a small group of people – lead by David Ben-Gurion – who did not get popular consent for that. The declaration was never ratified by popular vote, though it was recognized by several other states. The new state never issued a social contract. Israel has no constitution, and thus never ratified one. That means the State of Israel never got its people’s consent to be a sovereign entity – in other words, a state. The recent Base Laws legislated by the Knesset – the Israeli Parliament – are a fig leaf. The state claims they are the base for a future Constitution, but they do not cover key issues like human rights, are subject to arbitrary changes due to special needs of the coalition governments and – most important of all – were never ratified by the people. In a secondary issue, the entity doesn’t have a defined territory; there are neither internal nor external resolutions awarding the Stateof Israel a well defined territory. A problem deriving from the last is: Who are the sovereign’s subjects? Again, the State of Israel fails to fulfill the basic requisits to become a sovereign entity.
Under these circumstances, the external recognition of Israel is baseless; the recognition of other sovereigns – especially those defining themselves as democracies – of a non-ratified entity which has obviously not been invested by God contradicts their own social contracts and thus would not stand a serious test. The internal recognition of Israel is not an issue since it has never been ratified by its subjects. State propaganda over the local and international media cannot change the simple fact that the State of Israel is not a sovereign entity.
Is Israel Sovereign? (II): On Laws and the UN
In the first part of this series I analyzed the facts that brought into existence the State of Israel. The inevitable conclusion was that the State of Israel is not sovereign because it lacks a social contract with its citizens. The last were never asked to agree, there was never neither a referendum nor a popular vote on the issue. David Ben Gurion didn’t have popular mandate to declare Israel’s independence on May 14, 1948.
Israel’s Independence Declaration was printed in a very elegant fashion; but it has no legal value. Even its declarative value is questionable: it expresses only the opinion of those who signed it. They didn’t have the people’s mandate to do that and completely ignored the human rights issue, mainly because of Ben Gurion’s assessment that they needed the Orthodox Jews support for making a stable coalition government. However, the main reason it is void of value, is that the state itself denies it. In the eyes of the State of Israel authorities, one of the problems of the declaration is that it promises: “freedom, justice and peace,” and “complete social and national equal rights to all its citizens without difference of religion, race or gender,” “securing freedom of religion, conscience, language, education and culture, will keep the Holy Places of all religions and will be faithful to the United Nations..” These are very uncomfortable promises. Until now, all the Israeli governments were based upon coalitions that included political parties that couldn’t agree to some of these promises. The main problems were imposed always by the Ultra Orthodox Jewish parties like Agudat Israel and Shas. Avoiding the problem, the Knesset – the Israeli Parliament – claims the declaration is neither a law nor an ordinary legal document. The Israeli Supreme Court ruled that the declaration contained just guiding principles, that it is not a constitutional law. Nowadays, Knesset laws are enforced even if they are inconsistent with the principles in the Declaration of Independence. Placed in an uncomfortable position on the international arena, the Knesset legislated two basic laws – defined as base for a future constitution – namely the Human Dignity and Liberty and Freedom of Occupation ones – stating that “fundamental human rights in Israel will be honored.” However, these laws fail to give an exact definition.
Another landmine – in the eyes of the Israeli authorities – in the independence declaration is the claim that Israel will be faithful to the UN principles; this is another reason for the formal institutions of the State of Israel to declare it void of legal value. On 29 November 1947, the United Nations General Assembly adopted Resolution 181 on the partition of Palestine into a Palestinian State, a Jewish one and special areas – like Jerusalem – under the direct administration of the UN. An overlooked part of that decision was a formal minority rights protection system. The protection was to be enforced by the UN and the International Court of Justice. Thus twice in the declaration, Israel promises to be nice to the minorities; once explicitly by promising equality and second implicitly by promising to be faithful to the UN, which promised protection to those minorities. Subsequently, Israel claimed these minority rights were constitutionally embodied as the fundamental law of the state of Israel through the Declaration of the Establishment of the State of Israel, and various letters addressed to the Secretary General. These assurances were the base for the General Assembly Resolution 273 (III) Admission of Israel to membership in the United Nations, from May 11, 1949. Reality was very different. One irregularity – the lack of formal constitution, or any other type of social contract – gave birth to another.
The Law of Return gives automatic and immediate citizenship to every Jew arriving at Israel. A Jew is defined in that law as a person born Jew (with a Jewish mother or maternal grandmother), with a Jewish ancestry (with a Jewish father or grandfather) or a convert to Orthodox Judaism (Reform and Conservative converts are recognized only if performed outside the State of Israel, Messianic Jews are rejected). The base for this racist law is what is known as “jus sanguinis” in Latin, namely the “Blood Law” which was used in ancient times to attribute citizenship on the base of family relations. However, the Law of Return denies citizenship to Jews that have converted out of their free will. Did their blood change during the conversion process? Later, the law was amended to include non-Jews relatives of Jews, but it never recognized the Right of Return of other ancestral denizens of the land that were expelled during the wars: the Palestinians. For them, “jus sanguinis” does not exist. Again, that is despite the earlier promises of equality. In a related type of discrimination, the Arab citizens of the State of Israel were under military government until 1966, while the Jewish were not. An important point to keep in mind is that the Israeli citizens – regardless their ethnic background and religion – were never allowed to say their word. This discriminating principle was never put to democratic test. Due to its importance to the nature of the Israeli society, it should have been.
The Law of Return gives citizenship to Jews arriving at Israel. However, an intrinsic flaw accompanies it: “Who is a Jew.” “If your mother was, or..” are the arguments presented by that law to answer the question. But they have created only a recursive trap; the same question would apply to the testifier of one’s “Jewishness,” ad infinitum. Who would testify for King David’s mother? The Chief Rabbinate of Israel, which is part of the Israeli Ministry of Religious Affairs and is controlled by the Ultra Orthodox Jewish parties, has been the authority deciding on “Who is a Jew” until now due to coalitional considerations, but this is a questionable practice. Non-Orthodox religious Jews do not accept it, because the ultra-Orthodox refuse to recognize their conversions. The Israeli Supreme Court ruled in 2005 that conversions performed by the last outside Israel must be recognized, but those inside Israel not.
What? Is one’s religion dependant on geographical issues? Absurd as it seems, eleven of the most respected judges in Israel claimed that one’s conscience on the issue is irrelevant; your religion may be defined by your trajectory upon earth. They claimed that and are still considered wise; moreover, a whole country abides by this rule.
The Citizenship and Entry into Israel Law from 2003 places age restrictions for the automatic granting of Israeli citizenship and residency permits to spouses of Israeli citizens, such that spouses who are inhabitants of the West Bank and Gaza Strip are ineligible. The United Nations Committee on the Elimination of Racial Discrimination unanimously approved a resolution stating that this law violated an international human rights treaty against racism on the grounds that the law is discriminatory because it disproportionately affects Israeli Arabs since Israeli Arabs are far more likely to have spouses from the West Bank and Gaza Strip than other Israeli citizens.
Yet, Israel continues to claim it is a democratic country securing the rights of minorities..Again, Israel just ignores its own commitments towards its citizens and the international community.
If speaking about the Law of Return, then the parallel Palestinians right must be assessed. This Right of Return was defined by the UN General Assembly Resolution 194. Article 11 of that resolution states:“Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.” Judging by the results, it seems that Israel’s Independence Declaration promise to be faithful to the UN does not include this type of resolutions. This right has been since then ratified several times. The United Nations General Assembly Resolution 3236, from 1974 recognizes the Palestinian people’s right to self determination, makes the contacts between the United Nations and the Palestine Liberation Organization official and added the “Question of Palestine” to the UN Agenda. It states that it: “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return;” Again, Israel just ignores its own commitments towards its citizens and the international community. If that was not enough, the Universal Declaration of Human Rights claims that: “Everyone has the right to leave any country, including his own, and to return to his country.” Again, Israel just ignores it. “No one shall be arbitrarily deprived of the right to enter his own country,” says the International Covenant on Civil and Political Rights. Again, Israel just ignores it. Simply, the Palestinians are not Jews and thus are not recognized by the Law of Return. In my article “Is Quoting the Talmud Anti-Semitic?” I commented on the Orthodox Jews claim that non-Jews have no property rights:
The Talmud teaches in Baba Bathra, Folio 54b, that non-Jews have no property rights. Their possessions are “like unclaimed land in the desert.” The passage appears on page 222 of the Soncino edition: “Rab Judah said in the name of Samuel: The property of a heathen is on the same footing as desert land; whoever first occupies it acquires ownership.” Doesn’t the occupation of Palestine appear now in a new light?
On the other hand, Israel accepted massive numbers of non-Jews during various Aliyah waves. The most remarkable one was during the 1990’s when over a million people entered from the former USSR to Israel under the protection of the Law of Return. Orthodox sources claimed that well over a hundred thousand of them were Christians seeking to leave their former Communist. I have enjoyed underground Christmas meals with some of them; underground because openly celebrating the Prince of Peace is forbidden in Israel. In another impossible angle of the Israeli reality, settlers in the West Bank live next to Palestinians. I have visited both. The Palestinians are void of citizenship, cannot move freely and cannot even marry their beloved ones if these are Israeli citizens (one case reached in 2006 the Supreme Court and the sublime and wise judges rejected the marriage). The settlers are outside the territory of the State of Israel, yet they enjoy all the regular rights of an Israeli citizen. In my exile location, I cannot vote for the Israeli Parliament because it is not within Israel; yet, the settlers can vote and marry whatever they want. Discrimination and racism hiding under claims of democracy and equality.
Israel plays a double game. Towards its citizens it claims the Declaration of Independence is not a binding document, but to the UN it states otherwise. The State of Israel is faithful neither to the UN nor to its citizens. The promise in the Declaration to create a Constitution for the new state is ignored. In addition to the arguments presented in the article “Is Israel Sovereign?” claiming that Israel failed to fulfill the basic requirements for achieving sovereignty, we see here how it purposely failed the external requirements towards the UN – the provider of external recognition – and failed even its proposed social contract towards its citizens; “proposed” because it was never properly ratified and because Israel does not have a constitution even now. If these irregularities were all the existing problems, many would be tempted to say: “let it be, there are more serious things in life than an illegally founded country.” However, as it has been shown, the list of violations goes on and on. Israel openly breaks the condition upon which it was recognized as sovereign by the UN, and has not been awarded sovereignty by its own citizens, through a social contract. Hence, Israel cannot be considered a sovereign entity. Such a situation opens the possibility for an international force to enforce human rights in the area. Technically, the State of Israel cannot object to that because it does not exist as a legal sovereign entity. The international community and the UN should also adopt a clear policy for such rogue states; until now we see enforcement on some cases (Iraq) or apathy on others (Pol Pot’s Cambodia). Decency calls for letting people free to choose their own future. I call the UN to enforce democracy on the territories under the control of the State of Israel. We deserve a better future.
Is Israel Sovereign? (III): On Borders and Citizens
On the first two articles of this series, I analyzed Israel’s sovereignty mainly from the angles of internal and external sovereignty recognition. However, there are more angles to the issue.
One of the characteristics of sovereignty is territory, though it is not an essential one as shown in the first article of this series. However, the vast majority of what we call “sovereign entities” (again see the first article for a clarification of that) do have a territory, even if a small one as the Holy See and the Order of Malta do. If we are talking of territory, then implicitly we are doing so also of borders. What is the situation of Israel’s borders? These were basically established by the British Mandate of 1922 and were based on the Sykes-Picot agreement of 1916; which divided the Ottoman Empire territories in the Middle East between the UK and France. However, things did change since then. The borders with Egypt and Jordan have been formalized in the peace agreements with these countries in 1979 and 1994 respectively. They gave up the West Bank and the Gaza Strip, creating so an undefined border between Israel and Palestine (the last being represented by the Palestinian Authority). The border with Lebanon was based on the 1949 Armistice Agreement, though Israel had several times ignited tensions along an area known as Shabaa Farms on the former border between Lebanon and Syria. In year 2000, the UN defined what is known the Blue Line as the IDF retreat border 0 this is different from the Green Line, the 1949 Armistice Agreement line. In this respect, there is some ambiguity also along this border.
The borders with Syria are not settled, Israel still occupies the Golan Heights. It even annexed them unilaterally in 1981. No Israeli decision defines its own borders. Israel has no Constitution, so the borders cannot be defined there. There is no other formal government or general referendum decision concerning the country’s borders. That is exceptional and must have some repercusions on other areas of life. Unluckily, it didn’t demand an Herculean effort from my side to find the result of that.
In the second article of this series, I commented about “Who is a Jew?,” an important issue in a country giving automatic and immediate citizenship to any Jew arriving at it. However, what does the last argument mean? How can you arrive at an entity with no recognized or defined borders?
“Who is a Jew?” is a key issue in modern Israel. However, no less important is asking: “Who is a citizen?” I was tempted here to elaborate on the topics presented on the first articles of the series, but going into legalistic terms would make the point less clear than giving a few examples of the sins committed on a daily base by the State of Israel toward many people, some of them recognized by the state as citizens and some not. “Who is a citizen?” has no clear answer in Israel. Only citizens within the State of Israel are allowed to vote for the parliament. But the state has no defined borders, so what is a legal vote? Woops, let’s not talk about that openly on the Israeli media. A settler living in the West Bank is even by the State of Israel definition outside the state borders. Yet, he is allowed to vote and gets social benefits; at the same time, another Israeli citizen living in Egypt or Greece or the US does not have these benefits. A mystery. A Palestinian Arab with Israeli citizenship living in Jaffa cannot marry a Palestinian Arab from Jenin in the West Bank. Marriage is a very basic human right, though not in the eyes of the Israeli Supreme Court. A geographical mystery. A Jew that converted to Christianity and marries a Christian woman in a church wouldn’t get his marriage recognize. His bastard sons would not enjoy the social benefits normal children in the country enjoy. Unless he marries outside Israel and returns with the happy bride. Another mystery, though I admit the judges are smarter than lesser humans. No normal human can even follow the logic of such a decision. The truth is that I have no wish to solve these mysteries. Israel must adopt international standards of law and a constitution as it promised the UN in exchange for the recognition of its sovereignty. Otherwise, having broken the UN resolution and having failed to sign a social contract with its citizens, IT HAS NO RIGHT TO EXIST AS A SOVEREIGN COUNTRY.