The Narrative of Human Rights in Palestine: A Constitutional Debate (Forthcoming)

Human Rights in Palestine are part of the official narrative, and they have become an essential component of the Basic Law (hereafter BL), which operates as the de facto constitution of the Palestinian Authority (hereafter PA). The PA has clearly expressed its commitment to Human Rights by ratifying a large number of human rights treaties without reservation. The Palestinian Supreme Constitutional Court (hereafter SCC) is also required to consider Human Rights when reviewing the constitutionality of laws and bylaws. But the PA has not adopted the measures that are required to incorporate international treaties into the domestic legal system, and this is why an adjudicating Palestinian judge will not refer to international treaties as one of his/her legal sources. Far from resolving this situation, the SCC’s attempts to accommodate international treaties in the Palestinian legal system have only produced further confusion. An additional paradox arises from the fact that Human Rights violations are increasing in Palestine. This is by no means an isolated trend – in a global era of constitutionalism, many countries are discovering that the entrenchment of Human Rights in the constitutional text does not guarantee their enforcement by state authorities. In these circumstances, constitutionalism does not appear to extend beyond the document. In this paper we present the Palestinian case as one such example. We highlight the fact that the Palestinian SCC has yet to attain the legal and political significance of constitutional courts across the world and suggest that its ability to enforce Human Rights in the domestic legal system remains limited. We then demonstrate this by providing a review of the cases it has engaged. We conclude that the SCC’s role in this respect (and others) remains limited and reflect that the hopes invested in it have yet to be fully realized.

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Majdoubeh, Saja and Asem Khalil. The Narrative of Human Rights in Palestine: A Constitutional Debate. Windsor Yearbook of Access to Justice (Special Number on Palestine). Forthcoming.

Click here to download the PDF version (coming soon).

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