10 The Incorporation of International Law into the Palestinian Domestic Legal System: Analysis and Perspectives

in The Asian Yearbook of Human Rights and Humanitarian Law
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Abstract

The article aims at analyzing the ongoing process of incorporating international law into the Palestinian law. The research stems from the effects of the atypical nature of the process, since there aren’t explicit references in the Palestinian statutes of automatic permanent or ad hoc adaptation mechanisms, nor to the standing of international standards as domestic laws. In recent years, Palestinian law evolved significantly and seemed to be functional in the perspective of establishing a legally constituted state. A key role in this process has been played by the United Nations that recognized Palestine as an observer non-member state. This political measure positively influenced the controversial recognition of Palestine as a state, while in 2014 enhanced the Palestinian authorities’ willingness to ratify fifty-five international conventions related to the protection of human rights and international humanitarian law. In order to finalize the ratification process, Palestinian authorities have encouraged the interplay between international law and domestic law. This strengthened all institutions working in the justice-related field as well as provided Palestinians with the right to enjoy their fundamental rights. In addition, a recent evolution that occurred in the Palestinian constitutional tradition, the establishment of the first Supreme Constitutional Court in Palestine, drew the need to adapt the internal legislation – above all the rules regulating the treatment of detainees – to the international conventions ratified. Nevertheless, the analysis converges on the controversial effects of the relationship between domestic and international law because of the sui generis constitutional tradition in Palestine, where the role of Con­stitution shall be performed by the Basic Law. However, Basic Law doesn’t provide for adaptation mechanisms, while the Ministry of Justice, the Council of Ministers and the President’s Office, which are respectively a technical and two political bodies, play the legislative function instead of the Parliament itself.


The Asian Yearbook of Human Rights and Humanitarian Law

Volume 2, 2018 - Islamic Law and its Implementation in Asia and the Middle East

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