Environmental pleas and international law

By SOLON SOLOMON
June 29, 2013 22:29

The Samaria and Judea environmental protection associations’ petition to the Environmental Protection Ministry and the Ministry of Justice has an urgent character.

3 minute read.



Gilad Erdan visits a factory in Kiryat Malachi

Minister Gilad Erdan 370. (photo credit: SHARON UDASIN)

The Samaria and Judea environmental protection associations’ petition to the Environmental Protection Ministry and the Ministry of Justice has an urgent character, and is important and interesting in that it comes in a highly political context. Right-wing parties and their supporters have long argued for the annexation of Israeli settlements.

Only yesterday, Economy and Trade Minister Naftali Bennett repeated these claims. No wonder the Left sees in this petition an indirect effort at de facto annexation through the application of Israeli law.

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Yet there are pure-hearted and agonizing elements in the settlers’ plea. Indeed, environmental hazards have long been on their agenda, and were raised also with the former environmental protection minister, Gilad Erdan, who lent a sympathetic ear. As such, they can not be easily dismissed as mere populist maneuvers. The challenge they pose to legal scholars and policy makers alike is how Israel can actually ensure environmental protection for these people without circumventing the dictates of international law, which do not allow for the extension of Israeli law to the West Bank.

There are two ways to deal with the issue. One is based on Israel’s responsibilities toward these people and the other on Israel’s responsibility toward the territory it militarily occupies.

Settlers are Israeli citizens. As such they are subject to Israeli law in issues of criminal or civil jurisdiction.

On a personal basis and irrespective of where they reside, Israeli citizens have rights according to Israeli law, but equally they have obligations.

Environmental legislation is a source of such obligation.

These must be respected by Israeli citizens or Israeli legal entities operating in the West Bank. As such, it isn’t that Israeli law is extended to the West Bank, but that, in essence, Israelis residing there are still bound by its dictates. Dov Henin, chair of the Knesset social-environmental caucus, implied this when he stated that the settlers themselves are under obligation to behave in an environment-friendly way.

The other way to impose environmental standards in the West Bank in accordance with international law is by relating to the law of occupation legal framework, in essence The Hague Regulations and the Fourth Geneva Convention.

Article 43 of the Hague Regulations states that the occupying power has the duty to restore and ensure public order and safety. This order and safety stipulation must be seen as pertaining also to settlers, but strictly speaking only relates to their physical protection as long as they reside there. It can be argued, however, that this physical protection is jeopardized once poor environmental standards actually lower these people’s life expectancy. Thus, environmental safety becomes in essence personal safety and enters the realm of article 43.

Moreover, according to article 56 of the Fourth Geneva Convention, Israel must maintain public health and hygiene in the territory it occupies.

Outside the law of occupation framework, other international legal documents also substantiate this claim. Thus, for example, article 25 of the Universal Declaration of Human Rights holds that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.

Here it has to be noted that Israeli environmental legislation can be introduced in the West Bank also through the notion of transformative occupation, according to which the occupying power can introduce to the occupied territory legislation that upgrades human rights protection, including environmental cognizance.

Yet, this road poses some hurdles. Any Israeli legislation would have to be introduced to the entire occupied territory, including areas A and B where Palestinians enjoy self-governance. As such, it would require their consent. Perhaps after Yair Lapid’s recent meeting with the Palestinian Finance Minister, environmental issues are the next field where a potential Israeli-Palestinian dialogue can be promoted.

The author is a former member of the Knesset legal department, in charge of international and constitutional issues.


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