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Treaty-Making Power: Approval of the Israel-Egypt “Philadelphi Accord” by the Knesset

Published online by Cambridge University Press:  04 July 2014

Moshe Hirsch
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Israel Law Review , Volume 39 , Issue 3 , Winter 2006 , pp. 229 - 237
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Arnold Brecht Chair in European Law, Faculty of Law and Department of International Relations, the Hebrew University of Jerusalem. Thanks to Ruth Lapidoth who contributed valuable comments on earlier draft and to Yehuda Herbest for excellent research assistance.

References

1 See The Cabinet Resolution Regarding the Disengagement Plan, 6 June 2004, available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents /Revised+Disengagement+Plan+6-June-2004.htm (last visited September 9, 2006).

2 Article 3.1 of the Disengagement Plan provides that “the State of Israel will evacuate the Gaza Strip, including all existing Israeli towns and villages, and will redeploy outside the Strip. This will not include military deployment in the area of the border between the Gaza Strip and Egypt (‘the Philadelphi Route’) as detailed below.”

3 See, e.g., Benn, Aluf, Egypt, Israel Nearing Deal on Philadelphi Troop Deployment, Haarete, July 4, 2005 4/7/2005, available at http://www.haaretz.com/hasen/objects/pages/Print ArticleEn.jhtml?itemNo=595316 (last visited September 9, 2006)Google Scholar.

4 The Philadelphi Accord, Article 1.

5 Id. at Article 2.

6 Id. at Article 3.

7 Id. at Article 3.

8 Treaty of Peace (Egypt/Israel), 26 March 1979, 18 I. L. M. 362 (1979).

9 The Philadelphi Accord further stipulates that the Egyptian force will be supported by aerial and naval elements with their crews, and it will replace the Egyptian civil police force currently deployed in the area (Philadelphi Accord, supra note 4, at Article 7). The specific details regarding the weapons, infrastructure and equipment at the disposal of the force are listed in Articles 8-9, 13-25 of the Accord. The Multinational Force and Observers (MFO), which monitors the implementation of the 1979 Peace Treaty, shall monitor the deployment of the Egyptian force and supervise the implementations of the deployment in accordance with this accord (Id. at Article 10). One year following the force's deployment (and at the end of every consecutive year thereafter), the parties will assess the need for the force deployment. Any decision regarding the future deployment, downsizing or withdrawal of the force shall be mutually agreed by the parties (Id. at Article 12).

10 As discussed below, according to the practice developed by Israeli governments, treaties of major importance are presented to and approved by the Knesset.

11 See eg., CrA 131/67 Kamiar v. The State of Israel [1968] IsrSC 22(2) 85, 97, HCJ 785/87 Afu v. The IDF Commander of the West Bank [1988] IsrSC 42(2) 4, 39, for English translation, see 29 I. L. M. 139 (1990), Rubinstein, Amnon & Medina, Barak, The Constitutional Law of the State of Israel 915–916 (6th ed 2005) [in Hebrew]Google Scholar.

12 Lapidoth, Ruth, National Treaty Law and Practice Israel, in National Treaty Law and Practice 385, 386 (Hollis, Duncan B., Blackeslee, Merritt R., & Ederington, L. Benjamin eds., 2005)Google Scholar.

13 Id. at 388.

14 Under Article 6(a) of these Regulations:

[i]f the item proposed for the agenda of the Government is the ratification of an international treaty, the subject will be included in the agenda if the Prime Minister so decides and after ten copies of the treaty have been sent by the office of the proposing Minister to the Secretariat of the Knesset for a period of two weeks for the information of the Members of the Knesset, unless, in the proposing Minister's opinion and with the approval of the Ministers of Foreign Affairs and of Justice, reasons of urgency or secrecy prevent such transmission….

As cited in Lapidoth, supra note 12, at 388-389.

15 Id. at 386, 389.

16 Id. at 389.

17 Shetreet, Shimon, The Role of the Knesset in Treaty-Making, 36 HaPraklit 349 (1985) [in Hebrew]Google Scholar; Rubinstein & Medina, supra note 11, at 918-919.

18 HCJ 5934/95 Dov Shilansky, Deputy Knesset Speaker v. The Prime Minister et al. [September 27, 1995] (unpublished); HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) P.D 55.

19 See supra note 8, Article II(1)c. to Annex I of the Peace Treaty provides as follows: “(2) Only the United Nations forces and Egyptian civil police will be stationed in Zone C. (3) The Egyptian civil police armed with light weapons will perform normal police functions within this Zone“.

Protocol Concerning Israeli Withdrawal and Security Arrangements, available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israel-Egypt+Peace+Treaty htm (last visited September 10, 2006).

20 Israel, Egypt Close to Philadelphi Deal, Jerusalem Post, July 4, 2005, available at http://www.unitedjerusalem.org/index2 asp'id=607920&Date=7/4/2005 (last visited September 10, 2006)Google Scholar.

21 Gilbert, Nina, PM Seeks Knesset OK for Egyptian Forces on Sinai-Gaza Border, Jerusalem Post, July 11, 2005, Gideon Alon, Excellent Agreement or Tragic Move?, HAARETZ, September 14, 2005, at B3 [in Hebrew]Google Scholar

22 Israel, Egypt Close to Philadelphi Deal, supra note 20.

23 Adv. M. Frenkel-Shor, Legal Opinion of April 12, 2005, Article 8(a) (copy on file with the Author).

24 Id. at Article 9.

25 Advocate-General M. Mazuz, Legal Opinion of July 6, 2005, Article 6 (copy on file with the Author).

26 Id. at Article 10.

27 Id. at Article 12.

28 Of these sixteen treaties, eleven were discussed by the Knesset either before or after the approval, and five were not presented to the Knesset. Mazuz, supra note 25, at Article 13.

29 Id. at Article 14.

30 Id. at Article 14.

31 Id. at Article 18.

32 Id. at Article 20.

33 Id. at Article 21.

34 Id. at Article 22.

35 Id. at Article 26.

36 The Prime Minister's statement added that: “The Prime Minister said that he would do this even though Attorney-General Menachem Mazuz has determined no substantive change in the peace treaty with Egypt is involved and that, therefore, the aforementioned agreement need not be submitted for Knesset approval.” “Statement by PM Sharon Regarding the Agreement with Egypt on the Prevention of Smuggling in the Philadelphi Corridor Area,” (copy on file with the Author); See also Ministry of Foreign Affairs, Deployment of Egyptian Forces on Philadelphi to Be Submitted to Knesset for Approval, July 12, 2005, available at http://www.mfa.gov.il/MFA/Archive/Israel+Line/2005/Israel+Line+12-Jul-2005.htm (last visited September 9, 2006).

37 Cabinet Communique, 28 Aug 2005, Paragraph 5, available at http://www.mfa.gov.il/MFA/Government/Communiques/2005/Cabinet+Communique+28-Aug-2005.htm#egypt (last visited September 9, 2006).

38 For a protocol of the discussion in the Knesset, see http://www.knesset.gov.il/plenum/data/101398205.doc [in Hebrew] (last visited September 9, 2006).

39 Kamiar v. The State of Israel, supra note 11.

40 On the position of the current Attorney General, see Mazuz, supra note 25, at Article 14; on the position of the former Attorney General, Michael Ben Yair, see Lapidoth, supra note 12, at 389.

41 Frenkel-Shor, supra note 24, at Article 9.

42 See, e.g., Lapidoth, supra note 12; Shetreet, supra note 17; Rubinstein & Medina, supra note 11, at 918-919.

43 See, e.g., CA5/51 Steinberg v. The Attorney General [1951] IsrSC 5 1061. For a detailed analysis of Israel's jurisprudence on the application of international rules in the Israeli legal system, see Lapidoth, Ruth, International Law within the Israel Legal System, 24 Isr.L.Rev. 451 (1990)CrossRefGoogle Scholar.

44 See, e.g., CA 22/55 The Custodian of Absentee Property v. Samarah et al. [1956] IsrSC 10 1825; Afu v. The IDF Commander of the West Bank, supra note 11. See also Lapidoth, id. at 459.

Where Israeli legislation is open to alternative interpretations, domestic courts apply the “presumption of compatibility” between Israeli and international law, and prefer the interpretation that is consistent with the state's obligations under international law (both treaty and customary law). See, e.g., CA 6182/98 Sheinbein v. The Attorney General [1999] IsrSC 53(1) 625; CFH 7048/97 John Doe et al v. The Minister of Defense [2000] IsrSC 53(1) 721 at 742-743, 768; CA 11196/02 Michael Frudenthal v. The State of Israel [2003] IsrSC 57(6) 40.

45 Afu v. The IDF Commander of the West Bank, supra note 11, at 158-159. For a criticism of this reasoning, see Lapidoth, supra note 43, at 480-484.

46 See Hollis, Duncan B., A Comparative Approach to Treaty Law and Practice, in National Treaty Law and Practice 1, 24 (Hollis, Duncan B., Blackeslee, Merritt R., & Ederington, L. Benjamin eds., 2005)Google Scholar.

47 Australia and International Treaty Making Information Kit, Paragraph 4 7, available at http://www.austlii.edu.au/au/other/dfat/reports/infokit.html.

48 Brouwer, Jan G., National Treaty Law and Practice of the Netherlands, in National Treaty Law and Practice 483, 489 (Hollis, Duncan B., Blackeslee, Merritt R., & Ederington, L. Benjamin eds., 2005)Google Scholar.

49 Wildhaber, Luzius, Scheidegger, Adrian & Schnizel, Marc D., National Treaty Law and Practice Switzerland, in National Treaty Law and Practice 627, 648 (Hollis, Duncan B., Blackeslee, Merritt R., & Ederington, L. Benjamin eds., 2005)Google Scholar.

50 Dalton, Robert E., National Treaty Law and Practice United States, in National Treaty Law and Practice 765, 785 (Hollis, Duncan B., Blackeslee, Merritt R., & Ederington, L. Benjamin eds., 2005)Google Scholar.