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The Ability of the Palestinian Legal System to Secure Adequate Standards of Living: Reform or the Failure of State Duty

Published online by Cambridge University Press:  20 March 2013

Mutaz M. QAFISHEH
Mutaz M. QAFISHEH*
Affiliation:
Hebron University, Palestinemutazq@hebron.edu
Rights & Permissions [Opens in a new window]

Abstract

In parallel with its efforts to become a full member of the United Nations (UN) and its specialized agencies, Palestine needs to take the implications of joining such organizations in earnest. Admission to the UN, in addition to encompassing rights for states, simultaneously entails duties on the part of the state. One duty is to respect, protect, and fulfil human rights for those living under Palestine's jurisdiction. This paper assesses the ability of the applicable legislation in Palestine to secure adequate standards of living by focusing on three rights: food, housing, and health. Many of the laws relating to these rights date back to the Turkish, British, Jordanian, and Egyptian eras. With a few exceptions, Palestine has so far enacted executive orders to activate these rights based on older laws. Nothing prevents Palestine from modernizing its nutrition, habitation, and medical care systems and joining the community of welfare states.

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Type
Articles
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Asian Journal of International Law , Volume 3 , Issue 2 , July 2013, pp. 393 - 412
Copyright
Copyright © Asian Journal of International Law 2013 

In the contemporary international order, states have an obligation consisting of three dimensions—to respect, protect, and fulfil—for the realization of economic and social rights. While “respect” can be passively realized, namely through non-intervention in people's economic and social activity, “protection” requires taking proactive measures to ensure the removal of obstacles and to facilitate the enjoyment of such rights. “Fulfilment” involves the direct provision of governmental services and materials through, for example, adequate food sources for the hungry, shelter for the homeless, medical care, and education. It is generally agreed that legislation is one tool for the state to ensure the respect, protection, and fulfilment of these rights.Footnote 1

It might be relevant, in the light of Palestine's recent initiative aimed at securing membership of the United Nations, to start thinking of the obligations of this projected state towards the people under its jurisdiction and vis-à-vis the international community. By joining the UN, Palestine would be provided with a set of rights under various branches of international law. It could become a member of regional and global organizations and courts, a party to treaties, establish fully-fledged diplomatic relations, enter into alliances, issue passports, and protect its citizens abroad.

Palestinian officials and scholars tend to be excited about the prospect of such rights.Footnote 2 However, what has been absent thus far is a discussion of Palestine's new obligations if granted membership of the UN, specifically with regard to the state duty of securing adequate standards of living for the people under its competence, as required by the International Covenant on Economic and Social Rights (ICESCR) of 1966.Footnote 3

This paper examines Palestine's ability to secure adequate standards of living for the people under its jurisdiction based on the ICESCR by focusing on selected obligations arising from that Covenant.Footnote 4 Article 26(1) of the ICESCR provides that the “present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies”. Palestine's admission, as a state, to the membership of the UN Educational, Scientific, and Cultural Organization (UNESCO), a UN specialized agency,Footnote 5 has opened up the possibility for Palestine to accede to the ICESCR.Footnote 6

The rights to food, housing, and health together form the “right to adequate standards of living”,Footnote 7 recognized in Article 25 of the Universal Declaration of Human Rights (UDHR).Footnote 8 While Article 11 addresses the rights to food and housing, the ICESCR dedicates Article 12 to the right to health. The following three sections provide an overview as to how current Palestinian legislation has sought to respect, protect, and fulfil the right to an adequate standard of living.

I. The Right to Food

The right to food is the core provision of Article 11 of the ICESCR.Footnote 9 Article 11 requires states to recognize this right and to adopt measures towards its realization. As the UN Committee on Economic, Social and Cultural Rights (CESCR) noted in its General Comment No. 12 of 12 May 1999,Footnote 10 the “human right to adequate food is of crucial importance for the enjoyment of all rights”.Footnote 11 According to the CESCR, the right to adequate food, like a number of other human rights, encompasses three levels of obligations on states: “to respect”, “to protect”, and “to fulfil”.Footnote 12 While respecting the right to food is merely a passive obligation (i.e. to refrain from taking measures that prevent access to food sources),Footnote 13 the obligations to protect that right and to fulfil it on behalf of the most vulnerable people require proactive actions, including the adoption of relevant legislation.Footnote 14 This section provides an assessment as to how the right to adequate food is being protected and fulfilled, as shown by the applicable legislation in the Palestinian territory.

A series of legislative instruments aiming to protect the quality of food is currently in force in Palestine. First, the Food Control Ordinance No. 4 of 1942,Footnote 15 enacted during British rule, is applicable in both Gaza and the West Bank. It vests the government with the power to monitor the price of basic food items, to fix maximum prices for certain products, and to prevent the monopoly of any party over basic goods. The Palestinian government reserves the jurisdiction to issue permits for importing or exporting food, to inspect places producing or selling food, to review or confiscate documentation thereof, and to sanction those who violate the food control instructions.

Second, the Merchandise Marks Ordinance of 1929,Footnote 16 applicable in the Gaza Strip, and the Merchandise Marks Law No. 19 of 1952,Footnote 17 applicable in the West Bank, punish any person who changes the names of products, trademarks, business names, ingredients, or the date of expiry of any product, including food items, with the aim of preventing forgery or fraud.

Third, the Public Health Law No. 20 of 2004Footnote 18 assigns to the Ministry of Health, inter alia, the mandate to issue permits for food-related professions and industries, to monitor places used for locally produced food, to check imported items at the borders, and to issue regulations relating to food safety.Footnote 19 Food producers are under an obligation to provide the Ministry with information on food ingredients, means of preservation, means of distribution, and samples of products.Footnote 20 The Public Health Law further prohibits the distribution of harmful food, such as expired or polluted goods,Footnote 21 and gives the Ministry the right to destroy such products.Footnote 22

Fourth, Palestinian Standards Law No. 6 of 2000Footnote 23 established the Palestinian Standards Institution, which is a correspondent (observer) member of the International Organization for Standardization, to accredit and ensure the quality of industrial products, including food, based on scientific health and environmental criteria, with the aim of protecting consumers.

Fifth, Consumer Protection Law No. 21 of 2005Footnote 24 offers detailed measures to protect consumer health and to protect consumers from falling victim to fraud or exploitation.Footnote 25 It ensures transparency in economic transactions that affect consumers.

Lastly, Agriculture Law No. 2 of 2003,Footnote 26 which relates to key sources of food such as plants, livestock, and fish, protects local agricultural products and supports those working in the agricultural sector.Footnote 27

This survey of applicable laws, in addition to a series of executive orders that monitor food products,Footnote 28 shows that local legislation in Palestine has endeavoured to protect a number of aspects relating to the right to food, with particular emphasis on the quality of food, consumer health,Footnote 29 meeting certain environmental standards,Footnote 30 and empowering buyers to make informed food choices.Footnote 31 This may in turn be regarded as a step towards compliance with international standards, which require states to protect the right to adequate food sources for every person under their control.Footnote 32

For the CESCR, the obligation to fulfil the right to food means that the state must proactively engage in activities that facilitate and strengthen people's access to and utilization of food resources. The CESCR emphasizes that:

Whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to provide that right directly. This obligation also applies for persons who are victims of natural or other disasters.Footnote 33

Palestine has enacted a number of laws designed to aid those who are unable to secure adequate sources of living, including food. Such support targets certain marginalized groups, including orphans,Footnote 34 people with disabilities,Footnote 35 the poor,Footnote 36 dependants whose head of family is unable to provide,Footnote 37 prisoners,Footnote 38 liberated prisoners,Footnote 39 unemployed persons,Footnote 40 families of those killed, injured, or imprisoned by the occupying forces, and persons whose homes are demolished.Footnote 41 These enactments do not, of course, exclusively relate to the right to food; they are associated with various economic difficulties affecting marginalized groups. Most of these enactments are applied on an ad hoc basis (i.e. not systematically or in a sustainable manner). They are mainly administered by the Ministry of Social Affairs on the basis of humanitarian considerations (i.e. as a matter of charity and not as a matter of right), and often rely on funds derived from external donors.Footnote 42

Given the vagaries and unpredictability of such ad hoc support, and in order to conform to Article 11 of the ICESCR, Palestine should:

Consider the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right to food. The framework law should include provisions on its purpose; the targets or goals to be achieved and the time frame to be set for the achievement of those targets; the means whereby the purpose could be achieved described in broad terms, in particular the intended collaboration with civil society and the private sector and with international organizations; institutional responsibility for the process; and the national mechanisms for its monitoring.Footnote 43

In this respect, Palestine may learn from the experiences of other countries that have attempted to adopt such a framework law.Footnote 44 Palestine also needs to ensure that it maintains sovereignty over its natural resources, including food, based on the right of the Palestinian people to self-determination.Footnote 45 Palestine can use the “right to food” approach to strengthen its overall “food sovereignty”.Footnote 46 “Food sovereignty” has been interpreted as “ensuring that a collective of persons has the authority to formulate and implement policies relating to food production and food trade”.Footnote 47 As has been correctly pointed out by Hans Morten Haugen, “the right to food [approach] is both more precise, has stronger support among states, and is on a much higher level with regard to legally binding obligations compared to the food sovereignty concept”.Footnote 48

II. The Right to Housing

The right to adequate housing encompasses more than simply a roof over one's head. There are a number of requirements that together constitute an adequate standard of living.Footnote 49 The right to housing “also implies measures such as subsidies, tax exemptions, loans, and the provision of material on favourable terms”.Footnote 50 In its General Comment No. 4 of 13 December 1991,Footnote 51 the CESCR enumerates seven requirements that states must satisfy in order to realize the right to adequate housing. These are: (1) legal security of tenure; (2) availability of services, materials, facilities, and infrastructure; (3) affordability; (4) habitability; (5) accessibility; (6) location; and (7) cultural adequacy.Footnote 52

Recognizing its significance, Article 23 of the 2003 Amended Palestinian Basic Law of 2003,Footnote 53 the current constitution in Palestine, endorses the right to housing by stating that “every citizen shall have the right to proper housing”. Specifically, the Palestinian National Authority is obligated to “secure housing for those who are without shelter”.Footnote 54 In concrete terms, while the applicable legislation in Palestine satisfies some of the above-mentioned requirements indicated by the CESCR, others require further legislative action. For example, the question of “legal security of tenure”, which “takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, and occupation of land or property”,Footnote 55 is discharged by a number of laws such as the Land Code,Footnote 56 the Landlords and Tenants Law,Footnote 57 and the Ownership of Floors, Apartments, and Shops Law.Footnote 58 These laws together form the guaranteed right to property and enable people to own, transfer, lease, sell, and grant their property.Footnote 59 The legislation does not allow eviction from, or confiscation of, property except for public purposes after taking a series of administrative and judicial measures and with equitable compensation.Footnote 60

The task of ensuring the availability of services and infrastructure is assigned to various ministries, including the ministries of Education, Health, Economy, Finance, Public Works and Housing, and Social Affairs. Pursuant to Local Government Law No. 1 of 1997, municipalities are vested with the mandate to provide various components of services and infrastructure, such as water, electricity, sanitation, hygiene, roads, and construction licensing.Footnote 61 Certain administrative decisions facilitate the purchase and construction of houses at discounted prices for needy segments of the community.Footnote 62 Other executive orders lay the foundation for emergency shelters for victims of war, and for those affected by natural disasters.Footnote 63

Yet full compliance with Article 11 of the ICESCR requires further efforts from Palestinian authorities which might be beyond the capacity of even the most economically advanced states,Footnote 64 let alone a “state” that is still at the stage of emergence, like Palestine.Footnote 65 The reference in Article 11(1) of the ICESCR to “the essential importance of international co-operation” is of particular relevance to the effective exercise of the right to housing. Such co-operation might be achieved through housing projects offered by international organizations (e.g. the UN Human Settlements Programme and UN Habitat) or individual states, particularly as the question of Palestine's self-determination is a global issue that the international community is obliged to resolve. Issues such as refugee displacement outside their original places of residence, confiscation of land by Israel, the construction of Israeli settlements in the West Bank, the ongoing displacement of inhabitants from their places of residence and eviction from their houses (notably near settlements and the separation wall), and the demolition of houses, result in violations of various aspects of the right to housing as defined by the ICESCR.Footnote 66 The following extract from the statement of Raquel Rolnik, the UN Special Rapporteur on Adequate Housing, during her 2012 visit to Palestine and Israel only underlines the urgency of this matter:

I received repeated complaints regarding lack of housing, threats of demolitions and evictions, overcrowding, the disproportional number of demolitions affecting Palestinian communities side by side with the accelerated development of predominantly Jewish settlements … In East Jerusalem and the areas of the West Bank under Israeli military control, policies adopted by Israel restrict Palestinians from building legally through various means … The number of permits issued is grossly disproportional to housing needs leading many Palestinians to build without obtaining a permit. As a result, numerous Palestinians homes or extensions to these are considered illegal so that the inhabitants are subjected to eviction orders and the demolition of their houses … At the same time … settlements, built in violation of international law, have led to a decrease in the amount of land and resources available to Palestinians. The situation is even worse in Gaza … I met persons who were living in substandard conditions and families who had had their homes demolished by Israeli military operations.Footnote 67

If such actions by Israel that inhibit the housing advancement in Palestine are removed, housing can accordingly be improved and reach a greater number of Palestinians in need. Hence:

The international community of States remains duty bound to intervene to protect the Palestinian community, their homes and lands from further destruction and to ensure that the occupying Power is held to account for breaches of humanitarian law and other treaty obligations so as to ensure restitution of the Palestinian's human right to housing, including their public and private lands and other natural resources.Footnote 68

Palestine would nevertheless continue to be responsible for formulating policies directed towards the realization of the right to adequate housing, including adopting a national housing strategy,Footnote 69 approaching international donors, placing the question of housing on its list of priorities, reforming existing legislation, and enacting new statutes that contribute to the full crystallization of that right for people in need.Footnote 70 As Article 2(1) of the ICESCR stipulates, states need to undertake steps to achieve the realization of the rights recognized in the ICESCR by “all appropriate means, including particularly the adoption of legislative measures”. Indeed, “the role of formal legislative and administrative measures should not be underestimated in this context”,Footnote 71 particularly as the deficiency in Palestine relates to the state of legislation and official polices, rather than to a deficit in the availability of housing or the ability to build homes. Accordingly, legislation is the starting point for reform in this respect.

III. The Right to Health

In its General Comment No. 14 of 11 August 2000,Footnote 72 the CESCR notes that “the right to health embraces a wide range of socioeconomic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment”.Footnote 73 To evaluate Palestine's compliance with the right to health standards set out in Article 12 of the ICESCR, it is informative to review pieces of Palestinian legislation relating to these areas of service.Footnote 74

A. The Right to Maternal, Child, and Reproductive Health

“The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child”Footnote 75 is addressed in a number of Palestinian laws. The Palestinian Child Law No. 7 of 15 August 2004 prescribes a wide range of provisions aiming to protect and improve the health of children. The law obliges the Ministry of Health to issue a “Health Card” to every child for the purpose of regular health checks.Footnote 76 Vaccinations for children are made free of charge.Footnote 77 The law instructs spouses to conduct medical checks before marriage to ensure the non-transmission of diseases to children.Footnote 78 It incorporates rules on the protection of children from pollution, on the use of the media for public awareness to prevent transmittable diseases, the promotion of school health,Footnote 79 and action against the use of tobacco, alcohol, and drugs by minors.Footnote 80 The Regulation on Governmental Health Insurance No. 113 of 9 August 2004Footnote 81 makes medical treatment of children under the age of three free of charge, regardless of whether the child is insured.Footnote 82

Other laws add specific measures concerning maternal and infant health.Footnote 83 The Public Health Law offers free vaccination to pregnant women, provides for child prophylactic vaccination, compels parents or legal guardians to comply with governmental vaccination programmes, and provides for penalties in the event of non-compliance.Footnote 84 When the law permitted abortion for the purpose of protecting the life of the pregnant woman, it required the woman's approval and that the abortion take place at a health institution under the supervision of two specialized physicians.Footnote 85 The Anti-Smoking Law No. 25 of 2005Footnote 86 prohibits the consumption of tobacco in schools, kindergarten, nursery terraces, and playgrounds, and the importing or selling of cigarette-like toys.Footnote 87 The regulations pertaining to the transportation law comprise rules on the safety of children while travelling in motor vehicles, such as the compulsory use of seat belts and child seats.Footnote 88 The 2004 Regulation of the Licensing of the Radio, Television, Satellite, and Wireless StationsFootnote 89 prohibits media outlets from publishing or broadcasting any material that contains photos, stories, or news harmful to children's physical or mental health.Footnote 90 The Midwifery, Motherhood, and Childhood Care Occupation Law of 1959Footnote 91 protects women during child delivery. Mothers, after giving birth, are provided with three years of free primary medical care by the Childhood and Motherhood Care Centers run by the Ministry of Health.Footnote 92 Labour Law No. 7 of 2000Footnote 93 grants the right to maternity leave for ten weeks,Footnote 94 to a breastfeeding break for an hour a day for one year following delivery,Footnote 95 and the right to special leave without pay for one year.Footnote 96

Rules on various aspects of children's health can be similarly adduced from the criminal law, which severely punishes crimes against children, such as rape, sexual harassment, abandonment, and failure to provide food, housing, shelter, or clothing.Footnote 97 The Palestinian government provides several legislative instruments that contain rules relevant to child protection, including: the juvenile justice law (e.g. sociopsychological treatment and prohibitions to torture);Footnote 98 the prisons law (e.g. the separation of children from adults and rehabilitation programmes);Footnote 99 the personal status laws (e.g. minimum age of marriage, alimony, shelter, and clothing for children);Footnote 100 and the regulations applicable to alternative families for certain children.Footnote 101 Thus, the above discussion exemplifies how applicable legislation in Palestine endeavours to adhere to international standards relating to a child's right to health.Footnote 102

B. The Right to a Healthy and Hygienic Workplace Environment

As affirmed by the CESCR, “The improvement of all aspects of environmental and industrial hygiene” (Article 12(2.b) of the ICESCR) requires: (1) preventive measures against occupational accidents and diseases; (2) an adequate supply of potable water, public hygiene, and sanitation; (3) a reduction of the population's exposure to harmful substances such as radiation, harmful chemicals, or other detrimental environmental conditions; and (4) action to discourage the abuse of alcohol, tobacco, and drugs.Footnote 103 The Palestinian government has sought to address these four requirements through the enactment of a series of domestic legislation.

First, several chapters of the 2000 Labour Law are dedicated to ensuring safe and healthy working conditions.Footnote 104 These chapters include: “occupational safety and hygiene”; “child labour”; “working women”; and “work injuries and occupational diseases”. Pursuant to Article 90 of the Labour Law, a series of safety measures have been adopted by the Executive, including the requirement to maintain first-aid kits in the workplace,Footnote 105 the conduct of regular medical checks for workers,Footnote 106 and the implementation of safety measures for workers especially vulnerable to occupational hazards (e.g. construction workers,Footnote 107 workers dealing with hazardous chemical materials,Footnote 108 workers in gas or petroleum stations,Footnote 109 and workers employed in locations where there are radioactive materials,Footnote 110 massive noise,Footnote 111 light,Footnote 112 or heatFootnote 113). In line with the International Labour Organization (ILO) Convention concerning the Minimum Age for Admission to Employment of 1973,Footnote 114 Article 93 of the Labour Law forbids the recruitment of children under fifteen years of age for employment.Footnote 115 Article 95 of the Labour Law also outlaws the hiring of children for harmful jobs and for work at night or in remote areas.Footnote 116 It imposes reduced working hours and more holidays for children, and instructs employers to conduct compulsory medical examinations for juveniles before they start work.Footnote 117 By virtue of the Labour Law, employers are obliged to post acceptable practices on child labour in the workplace.Footnote 118 These domestic labour rules conform to a number of relevant ILO child standards.Footnote 119 Furthermore, the Labour Law bans the recruiting of females for harmful jobs, prohibits pregnant women from working extra hours, and prevents women from working at night unless absolutely necessaryFootnote 120 (e.g. in hospitals, airports, or the media).Footnote 121 Lastly, the Labour Law guarantees health insurance and compensation for workers who suffer work-related injuries and occupational diseases.Footnote 122

The supply of potable water, public hygiene, and basic sanitation are the responsibility of municipalities under the Local Government Law.Footnote 123 Towns and Villages Planning and Buildings Law No. 79 of 1966Footnote 124 provides rules on planning for a suitable water supply and sanitation for any building as a prerequisite for obtaining a construction licence.Footnote 125 The Environment Law, which prescribes specific penalties in cases of non-compliance, deals with protection against hazardous garbage,Footnote 126 includes standards on potable water,Footnote 127 lays grounds for the sanitation system,Footnote 128 and implements measures preventing the pollution of seawater.Footnote 129 Water Law No. 3 of 2002Footnote 130 elaborates on the mandate of the Water Authority, which includes inspectors to monitor water resources to prevent pollution and to regulate the use of potable water and the use of water for commercial, industrial, and agricultural purposes. The Agriculture Law sets out instructions for the utilization of non-potable water for agriculture,Footnote 131 forbids using waste water for irrigation,Footnote 132 and criminalizes those who pollute water resources.Footnote 133 It offers concrete measures to ensure healthy animal and fish products.Footnote 134 The Public Health Law requires the Ministry of Health to protect inhabitants from garbage, sewage, and chemical and industrial toxins.Footnote 135 It also implements rules that protect wells, springs, rivers, and beaches from pollution.Footnote 136 These legislative enactments likewise contribute to the prevention and reduction of the population's exposure to harmful substances.

The Palestinian government has also attempted to improve the health of its citizens by discouraging the abuse of alcohol, tobacco, and drugs. Specifically, numerous laws address the use alcohol, tobacco, and drugs including: the Child Law,Footnote 137 the Public Health Law,Footnote 138 the Anti-Smoking Law, the Intoxicating Liquors Law,Footnote 139 anti-drugs rules,Footnote 140 and various stipulations of the penal codes.Footnote 141

C. The Right to Prevention, Treatment, and Control of Diseases

Pursuant to Article 12(2(c)) of the ICESCR, states are required to address the prevention, treatment, and control of diseases. In Palestine, a number of pieces of legislation relating to disease control have been enacted throughout the twentieth century, starting with the Regulations on Prohibition of the Spreading of Contagious Diseases in All Schools of 1913,Footnote 142 which is still currently enforced in the West Bank and Gaza.Footnote 143 Subsequent legislative developments continued under the British mandate,Footnote 144 the Egyptian administration in Gaza,Footnote 145 Jordanian rule in the West Bank,Footnote 146 Israeli occupation,Footnote 147 and also under Palestinian self-rule.Footnote 148

A number of laws from past periods relating to the control of diseases are still enforceable, while others were subsequently replaced. The 2004 Public Health Law sets rules on the prevention of contagious diseases, including the obligation of inhabitants within Palestine's jurisdiction to notify governmental authorities about rapidly spreading diseases, the collection of data and statistics, the placing of people with contagious illnesses under quarantine, the monitoring of transport, the conduct of medical checks for travellers, animal farms, workplaces, and food products, and action against sources of disease, such as garbage, sewage, industrial toxins, chemicals, or radiation.Footnote 149 The 2004 Child Law incorporates measures to protect children from disease by means of compulsory vaccination and free medical care.Footnote 150 The 2003 Agriculture Law incorporates various rules aimed at protecting inhabitants under Palestinian jurisdiction against diseases that might be spread through animals, plants, or food products. It vests the Ministry of Agriculture with the power to fight such diseases.Footnote 151 Moreover, as previously noted, the 2000 Labour Law provides protective measures against contagious diseases in the workplace and against occupational accidents.

Executive orders introduced additional stipulations to protect the health of inhabitants under Palestinian jurisdiction. Such orders include the Decision on the List of Risks of Work Injuries, Career Diseases, Grave Accidents;Footnote 152 the Decision on the Preventive List of Work Hazards and Career Diseases;Footnote 153 Instructions on the Protection of Workers in Gas and Petroleum Materials;Footnote 154 the Regulation of Poultry Incubators;Footnote 155 Instructions on the Protection of Food Materials from Radiation Contamination;Footnote 156 the Regulation on First Aid Medication in Installations;Footnote 157 and the Regulation on Agriculture Quarantine.Footnote 158

The foregoing indicates that Palestine embraces an established system of disease control comparable to that of neighbouring countries as its legislation stems from the various powers that ruled Palestine: Turkey, Britain, Jordan, Egypt, and Israel. The Palestinian legislature has built on these historical laws and modernized them in such a way as to meet the international standards enshrined in Article 12(2(c)) of the ICESCR.

D. The Right to Adequate Health Facilities, Goods, and Services

The right to adequate health facilities, goods, and services has been addressed in Palestine through the regulation of health institutions, hospitals, clinics, the medical professions, medicine, and health insurance providers. To these ends, the 2004 Public Health Law is instrumental. The law directs the Ministry of Health to guarantee “the health needs of citizens” through an equitable geographical distribution of governmental (public) hospitals, clinics, and pharmacies throughout the country.Footnote 159 The Public Health Law prescribes numerous requirements for private hospitals, medical centres, and clinics, with specific regard to licensing, the qualifications of personnel, and the control of service prices, and also creates additional inspection mechanisms.Footnote 160 The law also requires those working in the “medical professions” (e.g. human medicine, dentistry, or pharmacy) or the “auxiliary medical professions” (e.g. nursing, diagnostic radiology, medical laboratories, vision and hearing screening, midwifery, anaesthesia, or physical therapy)Footnote 161 to be licensed by both the Ministry of Health and the relevant professional associations.Footnote 162 It outlaws the distribution or selling of any medicine that has not been registered at, and endorsed by, the Ministry of Health, based on a unified “medical constitution”.Footnote 163

The Public Health Law is supplemented by other laws and executive acts relating to the health sector. Examples of such laws include the Pharmacists Ordinance of 1921,Footnote 164 the Pharmacists Dealing in Drugs and Poisons Law of 1927,Footnote 165 the Medical Practitioners Ordinance No. 58 of 1947,Footnote 166 the Dentists Ordinance No. 1 of 1945,Footnote 167 the Medical Doctors Association Law No. 14 of 1954,Footnote 168 the Dental Association Law No. 11 of 1956,Footnote 169 the Pharmaceutical Association Law No. 10 of 1957,Footnote 170 and the Veterinary Surgeons Law No. 7 of 1960.Footnote 171 Examples of executive legislation include regulations on governmental health insurance, on cases of illness uncovered by governmental insurance,Footnote 172 and on reducing the fees for licensing health care institutions.Footnote 173

This discussion reveals that the applicable legislation in Palestine generally meets the standards required to respect and protect the right to health. What remains to be fully realized, however, is the fulfilment of this right by providing health services to the most vulnerable groups, particularly the poor, who are not in a position to afford expensive medical treatment for serious illnesses or chronic diseases.Footnote 174 Palestine needs to update its laws not only to adhere to international human rights law but also to reflect new scientific developments. Specifically, it needs to modernize its laws for the medical profession and pharmaceutical industry, to create protections for those infected with HIV/AIDS,Footnote 175 to provide a health insurance system that supports those unable to afford medical treatment, to place a greater emphasis on mental health,Footnote 176 and to create greater public awareness of best overall health practices.

Observing the successful implementation of modernized public health laws in other states can serve as a helpful guide to the Palestinian government, especially with regard to any efforts to enhance its own laws. First, India established a mechanism by which the right to health can be adjudicated: “The substantive recognition of the right to health as essential to living with human dignity has allowed the Indian judiciary to directly address human suffering by guaranteeing the social entitlements and conditions necessary for good health.”Footnote 177 For example, the Indian Supreme Court interpreted the constitutional right to life by requiring the state “to remove legal impediments imposed on doctors and hospitals for providing emergency medical aid”.Footnote 178 Second, under Sweden's health care law, the Swedish government is obligated “to ensure an equitable distribution of health care” to all of its citizens,Footnote 179 regardless of a person's “financial means”.Footnote 180 Lastly, in the Netherlands, “the health insurance contributions are income related … [and thus] [c]itizens can … choose among various health insurance policies”.Footnote 181 Despite the limited scope of the aforementioned health care laws, the common feature of each indicates that the right to health establishes a concrete obligation which governments should discharge.Footnote 182

Health issues in Palestine could be covered by framework legislation, preferably by a law adopted by parliament, which can be formulated pursuant to the framework proposed by the CESCR.Footnote 183 As outlined by the CESCR in its General Comment No. 14, this legislation should be derived from a national strategy “to ensure to all the enjoyment of the right to health … and the formulation of policies and corresponding right to health indicators and … identify the resources available to attain defined objectives, as well as the most cost-effective way of using those resources”.Footnote 184 The Plan of Action of the National Steering Committee for the Reform and Development of the Health Sector and System of Health Care, endorsed by the Palestinian Council of Ministers Decision No. 6 of 2006,Footnote 185 constitutes a step towards the realization of the framework legislation. Such a plan requires follow-up aimed at formulating a concrete legislative framework that translates these policies into a binding instrument.

IV. Conclusion

The accession of Palestine to international treaties and its membership of international organizations would be the beginning of a long journey towards domestic compliance with international human rights standards. Nevertheless, Palestine is broadly qualified in terms of its basic legislative structure to become a party to the ICESCR. It generally respects the rights to food, housing, and health, as nothing in its legal system precludes individuals from enjoying such rights. Its legislation generally protects the three rights through basic enactments that facilitate the exercise and preservation of such rights. However, the fulfilment of these rights through the direct provision of governmental services is often hindered, as Palestine lacks the necessary institutional infrastructure to guarantee an ongoing flow of services.Footnote 186 Despite its shortcomings, the current legislative structure in Palestine can be deemed to be aligned with notions of progressive realization as stipulated by Article 2(1) of the ICESCR; specifically to take measures “to the maximum of its available resources”.Footnote 187

A significant portion of Palestinian laws relating to the rights to food, housing, and health date back to the Turkish, British, Jordanian, and Egyptian eras. With a few exceptions, Palestinian authorities have mostly enacted executive acts relating to these rights based on older laws. However, Palestine is not legally restrained from modernizing its legal system relating to these sectors. Executive decisions are often issued on an ad hoc basis and relate to particular cases, or they sometimes effectively lapse shortly after their issuance. Such enactments, despite embodying substantive rules, can easily be revoked by the issuing party, unlike parliamentary law, which is subject to adequate deliberation and cannot be rapidly changed.

International standards are constantly evolving. For each of the three rights discussed above, at least one UN Special Rapporteur and international organization has been created.Footnote 188 For the right to food, standards have been promulgated by both the UN Special Rapporteur on the Right to Food, and by the Food and Agriculture Organization. Whereas the Special Rapporteur on the Right to Adequate Housing monitors state compliance as part of human rights law, the UN Habitat is the agency that sets social and environmental standards for human settlement. Similarly, the work of the Special Rapporteur on the Right to Health is being crystallized by the precise standards developed by the World Health Organization.Footnote 189

Being party to the ICESCR, and a member of such corresponding institutions, requires unequivocal policies that convert declarations into deeds; legislation is a point of departure from which any state should start. To be in compliance with both the growing responsibilities of UN members and the heightened standards of international law, Palestine should, without delay, commence reforming its legal system in the light of the current standards of international law. The time has come to prove that those residing in Palestine deserve to live in a place where dignity and universal standards are not distant goals, but guarantees within domestic reach.

Footnotes

*

PhD Geneva. Professor of International Law, Legal Clinic Director, Hebron University, Palestine.

1. MULER, Amrei, “Limitations to and Derogations from Economic, Social and Cultural Rights” (2009) 9 Human Rights Law Review 557

PIOVESAN, Flavia, “Social, Economic and Cultural Rights and Civil and Political Rights” (2004) 1 International Journal on Human Rights 21

ADDO, Michael K., “The Justiciability of Economic, Social and Cultural Rights” (1988) 14 Commonwealth Law Bulletin 1425

2. Mutaz QAFISHEH, ed., Membership of Palestine in the United Nations: Legal and Political Implications (Newcastle: Cambridge Scholars Publishing, forthcoming 2013)

3. International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976) [ICESCR].

4. Ibid.

5. UNESCO, Manual of the General Conference (Paris: UNESCO, 2002)

6. “General Conference Admits Palestine as UNESCO Member State” UNESCO Media Services (31 October 2011), online: UNESCO Media Services 〈http://www.unesco.org/new/en/media-services/single-view/news/general_conference_admits_palestine_as_unesco_member_state/〉.

7. JAYAWICKRAMA, Nihal, The Judicial Application of Human Rights Law: National, Regional, and International Jurisprudence (Cambridge: Cambridge University Press, 2002) at 869−880

8. Universal Declaration of Human Rights adopted by the UN General Assembly on 10 December 1948; UN Doc. A/811 (1948) [UDHR].

9. GOLAY, Christophe, Right to Food and Access to Justice (Brussels: Bruylant, 2011)

Ying, CHEN, “The Right to Food” (2010) 12 European Journal of Law Reform 158

NIADA, Laura, “Hunger and International Law: The Far-Reaching Scope of the Human Right to Food” (2006) 22 Connecticut Journal of International Law 13

COHEN, Marc J. and BROWN, Mary Ashby, “Access to Justice and the Right to Adequate Food: Implementing Millennium Development Goal One” (2005) 6 Sustainable Development Law and Policy 54

Anthony Paul KEARNS III, “The Right to Food Exists via Customary International Law” (1998) 22 Suffolk Transnational Law Review 223

EIDE, Asbjorn, OSHAUG, Arne, and EIDE, Wenche Barth, “The Food Security and the Right to Food in International Law and Development” (1991) 1 Transnational Law and Contemporary Problems 415

10. CESCR General Comment No. 12: The Right to Adequate Food, UN Doc. E/C.12/1999/5 (1999).

11. Ibid., para. 1.

12. Ibid., para. 15.

13. Ibid.

14. UN Food and Agricultural Organization, Constitutional and Legal Protection of the Right to Food Around the World (Rome: FAO, 2011)

15. Palestine Gazette, Supplement 1, No. 1178, 19 March 1942, at 5.

16. DRAYTON, Robert Harry, ed., The Laws of Palestine in Force on the 31st Day of December 1933 (London: Waterlow and Sons, 1934) at 1039

17. Jordan Official Gazette No. 486, 17 January 1953, at 486.

18. Palestine Gazette No. 54, 23 April 2004, at 14 (citing Public Health Law No. 20 of 2004) [Public Health Law No. 20].

19. Ibid., art. 2.

20. Ibid., art. 16.

21. Ibid., arts. 19, 20.

22. Ibid., art. 27.

23. Palestine Gazette No. 36, 19 March 2001, at 63.

24. Palestine Gazette No. 63, 27 April 2006, at 29.

25. MATEU, Nuria Amarilla, “Future Liability for Defects in Information Provided in Food Health Claims Begins with the Right to Information on Food Health” (2007) 4 European Food and Feed Law Review 223

26. Palestine Gazette No. 47, 30 October 2003, at 23.

27. See further Decree-Law on the Repression of Fraud and Adulteration No. 11 of 10 June 1966, Palestine Gazette, Special Edition, 10 August 1966, at 3; Marketing Agricultural and Animal Products Law No. 88 of 21 September 1966, Jordan Official Gazette No. 1956, 16 October 1966, at 2079; Natural Resources Law No. 1 of 24 January 1999, Palestine Gazette No. 28, 13 March 1999, at 10; Environment Law No. 7 of 28 December 1999, Palestine Gazette No. 32, 29 February 2000, at 38.

28. Regulations of Food Inspection and Limitation of Prices No. 33 of 10 August 1959, Jordan Official Gazette No. 1439, 1 September 1959, at 769; Decision of the Minister of Supply on Frozen Meat No. 3 of 3 July 1999, Palestine Gazette No. 31, 13 December 1999, at 41; Ministerial Decree on the Analysis Samples of Food Materials and Chemical Products No. 1 of 25 September 2002, Palestine Gazette No. 44, 31 March 2002, at 82; Ministerial Decree on Food Materials and Commodities No. 1 of 23 March 2003, Palestine Gazette No. 45, 24 May 2003, at 83; Decision of the Minister of Agriculture No. 1 of 28 August 2004 on the Registration and Types of Permitted Agricultural Blights Herbicides, Palestine Gazette No. 52, 18 January 2005, at 302; and Decision of the Minister of Economy No. 6 of 5 May 2010 on the Price of Bread, Palestine Gazette No. 88, 15 December 2010, at 144.

29. Mateu, supra note 25

30. COOK, Kate, “The Right to Food and the Environment” (2010) 12 Environmental Law Review 1

DUMAS, Graham Frederick, “A Greener Revolution: Using the Right to Food as a Political Weapon against Climate Change” (2010) 43 New York University Journal of International Law and Politics 107

31. Friant-PERROT, Marine and RIHOUEY, Lise, “Failure of Conciliation Talks on the Use of Animal Cloning for Food: The Consumer's Right to Make Informed Food Choices” (2011) European Journal of Risk Regulation 414

GANESH, Aravind R., “The Right to Food and Buyer Power” (2010) 11 German Law Journal 1190

ORIOLA, Taiwo A., “Consumer Dilemmas: The Right to Know, Safety, Ethics, and Policy of Genetically Modified Food” (2002) Singapore Journal of Legal Studies 514

32. HOWARD-HASSMAN, Rhoda E., “Faminogenesis: State Policies that Undermine the Right to Food” (2011) 29 Netherlands Quarterly of Human Rights 560

NIERENBERG, Lily Endean, “Reconciling the Right to Food and Trade Liberalization: Developing Country Opportunities” (2011) 20 Minnesota Journal of International Law 619

KONG, Karen, “The Right to Food for All: A Right-Based Approach to Hunger and Social Inequality” (2009) 32 Suffolk Transnational Law Review 525

33. CESCR, supra note 10 at para. 15.

34. Law on the Administration and Development of Orphans’ Properties Institution No. 14 of 28 September 2005, Palestine Gazette No. 60, 9 November 2005, at 22.

35. Rights of People with Disabilities Law No. 4 of 9 August 1999, Palestine Gazette No. 30, 10 October 1999, at 36. This law includes the following social rights for the benefit of people with disabilities: rehabilitation programmes at low or no cost (art. 5); exemption from taxes, customs, and fees (art. 6); free health care (art. 10); and requiring that buildings and policies be designed in such a way as to meet the needs of persons with special needs (arts. 12−17). See also Decision of the Council of Ministers No. 50 of 23 May 2006 on the Establishment of the Disabled Fund for Lending and Employment at the Ministry of Social Affairs, Palestine Gazette No. 68, 7 March 2007, at 97.

36. Law Concerning the Ministry of Social Affairs No. 14 of 23 February 1956, Jordan Official Gazette No. 1265, 17 March 1956, at 1367, art. 4; Decision of the Council of Ministers No. 96 of 10 September 2007 on the Exemption of Children of Poor Families and Children of Unemployed Persons from School Fees, Palestine Gazette No. 77, 9 October 2008, at 156; and Decision of the Council of Ministers No. 206 of 4 December 2004 on the Establishment of the Committee of the Administration of Aid to Citizens in Need, Palestine Gazette No. 54, 23 April 2005, at 138.

37. Law of Alimony Fund No. 6 of 26 April 2005, Palestine Gazette No. 55, 27 June 2005, at 10.

38. Decision of the Council of Ministers No. 21 of 28 June 2010 on Securing the Needs of Prisoners in Israeli Custody, Palestine Gazette No. 90, 30 March 2011, at 98; and Regulation No. 23 of 28 June 2010 on Prisoners’ Salary, Palestine Gazette No. 90, 30 March 2011, at 103.

39. Decision of the Council of Ministers No. 19 of 4 January 2010 on the Exemption of Liberated Prisoners from School and University Tuition, Fees of Health Insurance and Rehabilitation Programmes, Palestine Gazette No. 90, 30 March 2011, at 93.

40. Decision of the Council of Ministers No. 157 of 6 September 2005 on Remunerations for the Aid of Unemployment and Temporary Employment, Palestine Gazette No. 64, 31 May 2006, at 306; and Presidential Decree concerning the Establishment of the Fund for Employment and Social Protection for Workers No. 9 of 20 May 2003, Palestine Gazette No. 46, 16 August 2003, at 17.

41. Decision of the Council of Ministers No. 127 of 18 September 2006 on Compensation for Demolished Houses, Palestine Gazette No. 69, 27 April 2007, at 192 [Decision 2006].

42. HOSPES, Otto, “Overcoming Barriers to the Implementation of the Right to Food” (2008) European Food and Feed Law Review 246

NARULA, Smita, “The Right to Food: Holding Global Actors Accountable under International Law” (2006) 44 Columbia Journal of Transnational Law 691

43. CESCR, supra note 10 at para. 29 (emphasis in the original).

44. GOLAY, Christophe and BUSCHI, Michaela, The Right to Food and Global Strategic Frameworks (Rome: FAO, 2012)

ZIEGLER, Jean, GOLAY, Christophe, MAHON, Claire, and WAY, Sally-Anne, The Fight for the Right to Food: Lessons Learned (London: Palgrave Macmillan, 2011)

PILLAY, Sukanya, “India Sinking: Threats to the Right of Food, Food Security and Development in an Era of Economic Growth” (2009) 27 Windsor Yearbook of Access to Justice 127

45. See e.g. Permanent Sovereignty of the Palestinian People in the Occupied Palestinian Territory, Including East Jerusalem, and of the Arab Population in the occupied Syrian Golan over Their Natural Resources, UN GA Res. 66/225 (2012).

46. HAUGEN, Hans Morten, “Food Sovereignty—An Appropriate Approach to Ensure the Right to Food” (2009) 78 Nordic Journal of International Law 263 at 266

47. Ibid., at 263.

48. Ibid.

49. KARDOS, Gabor, “The Internationally Recognized Right to Housing: Implications and (Some) Applications” (2010) 7 Miskolc Journal of International Law 24

WOLF, Ralph, “Participation in the Right of Access to Adequate Housing” (2007) 14 Tulsa Journal of Comparative and International Law 269

KABIR, Abul Hasnat Monjurul, “Development and Human Rights: Litigating the Right to Adequate Housing” (2002) 3 Asia-Pacific Journal on Human Rights and the Law 97

50. Herman von HEBEL, “The Implementation of the Right to Housing in Article 11 of the U.N. Covenant on Economic, Social and Cultural Rights” (1987) 20 Newsletter 26 at 27

51. CESCR General Comment No. 4: The Right to Adequate Housing, UN Doc. E/1992/23 (1991) [CESCR No. 4].

52. Ibid., para. 8.

53. Palestine Gazette, Special Edition, 19 March 2004, at 5.

54. Cf. Michelle KELLY-LOUW, “The Right of Access to Adequate Housing” (2007) 15 Juta's Business Law 35 (“the right to housing in the constitution of South Africa”).

55. CESCR No. 4, supra note 51, at para. 8.

56. Aref RAMADAN, ed., Completion of Laws: Ottoman Laws Valid in Arab States Detached from the Ottoman Government, vol. 3 (Beirut: Science Press, 1928) at 7

Drayton, supra note 16 at 1001

57. No. 62 of 6 April 1953, Jordan Official Gazette No. 1140, 16 April 1953, at 661. This law strictly limits the eviction of tenants to cases such as non-payment of rent or inflicting damage on the property. In the absence of one of these grounds, the tenant may remain in the rented property indefinitely. This approach in the law may affect the right of owners to obtain equitable reimbursement of the actual value of the rent and could discourage investment in this sector. For this reason, the law ought to be replaced with a view to striking a balance between the rights of landholders and tenants.

58. No. 1 of 6 January 1996, Palestine Gazette No. 11, 11 February 1996, at 22.

59. HOPKINS, Cf. Nicholas and LAURIE, Emma, “Housing or Property—The Dynamics of Housing Policy and Property Principles in the Right to Buy” (2006) 26 Legal Studies 65

60. Land Acquisition for Public Purposes Ordinance No. 24 of 10 December 1943, Palestine Gazette No. 1305, 1 December 1943, at 50; and Land Acquisition for Public Schemes Law No. 2 of 18 December 1952, Jordan Official Gazette No. 1130, 1 January 1953, at 433.

61. Palestine Gazette No. 20, 29 November 1997, at 5.

62. Housing Cooperative Societies Regulation No. 42 of 27 September 1959, Jordan Official Gazette No. 1447, 17 October 1959, at 881; Decision on the Allocation of State Lands for Housing Cooperative Societies No. 45 of 2 April 1997, Palestine Gazette No. 17, 30 April 1997, at 47; Decision of the Minister of Public Works and Housing No. 1 of 19 February 2004 on the Regulation of Selling and Leasing of Real Estates Owned by the Ministry, Palestine Gazette No. 49, 17 June 2004, at 223; and Decision of the Minister of Public Works and Housing No. 1 of 9 April 2012 on the Regulation of Selling of Houses in the Ministry's Housing Projects, Palestine Gazette No. 96, 10 June 2012, at 67.

63. BARBER, Cf. Rebecca J., “Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law” (2008) 20 International Journal of Refugee Law 432

64. OLDS, Kyra, “The Role of Courts in Making the Right to Housing a Reality Throughout Europe: Lessons from France and the Netherlands” (2011) 28 Wisconsin International Law Journal 170

FARRELL, James, “The Road Home: Australians’ Right to Adequate Housing” (2009) 34 Alternative Law Journal 227

65. OTUBU, Cf. Akintunde, “Fundamental Right to Property and Right to Housing in Nigeria: A Discourse” (2011) Acta Universitatis Danubius Juridica 25

MUBANGIZI, John C., “Protecting Human Rights Amidst Poverty and Inequality: The South African Post-Apartheid Experience on the Right of Access to Housing” (2008) 2 African Journal of Legal Studies 130

CHENWI, Lilian, “Putting Flesh on the Skeleton: South African Judicial Enforcement on the Right to Adequate Housing of Those Subject to Evictions” (2008) 8 Human Rights Law Review 105

RAND, Jordan, “A Fundamental Human Right: Expanding Access to Affordable Housing for Latin America's Low and Middle-Income Families” (2007) 13 Law and Business Review of the Americas 945

JOSEPH, Sarah, “The Right to Housing, Discrimination, and the Roma in Slovakia” (2005) 5 Human Rights Law Review 347

66. Report of the UN Special Rapporteur on Adequate Housing: Visit to Occupied Palestinian Territories, UN Doc. E/CN.4/2003/5 (2002), paras. 79−80 [UN Special Rapporteur].

67. “Israel's Policies Violate Right to Housing and Need Urgent Revision—UN Independent Rights Expert” Office of the High Commissioner for Human Rights Press Release (13 February 2012), online: Office of the High Commissioner 〈http://www.ohchr.org〉.

68. UN Special Rapporteur, supra note 66 at para. 83.

69. CESCR No. 4, supra note 51 at para. 12.

70. Ibid., paras. 13, 14, 19.

71. Ibid., paras. 15, 17.

72. CESCR General Comment No. 14: The Right to the Highest Attaiable Standard of Health, UN Doc. E/C.12/2000/4 (2000) [CESCR No. 14].

73. KAPINDU, Redson Edward, “Poverty Reduction Strategies and the Right to Health and Housing: The Malawian and Ugandan Experiences” (2006) 6 African Human Rights Law Journal 493

74. MEIER, Benjamin Mason, “Global Health Governance and the Contentious Politics of Human Rights: Mainstreaming the Right to Health for Public Health Advancement” (2010) 46 Stanford Journal of International Law 1

ROBINSON, W. Courtland, “The Right to Health and Basic Services” (2010) 41 Studies in Transnational Legal Policy 207

YAMIN, Alicia Ely, “The Right to Health: Assessing How Far the Discourse Has Evolved Internationally and Within the United States” (2010) 104 American Society of International Law Proceedings 14

ZAIDI, Sarah, “Millennium Development Goal 6 and the Right to Health: Conflictual or Complementary” (2010) 12 International Journal on Human Rights 123

GEVERS, Sjef, “The Right to Health Care” (2004) 11 European Journal of Health Law 29

CHIRWA, Danwood, “The Right to Health in International Law: Its Implications for the Obligations of State and Non-State Actors in Ensuring Access to Essential Medicine” (2003) 19 South African Journal on Human Rights 54

FRIESEN, Tamara, “The Right to Health Care” (2001) 9 Health Law Journal 205

HENDRIKS, Aart, “The Right to Health” (1994) 1 European Journal of Health Law 187

75. ICESCR, supra note 3 at art. 12(2)(a).

76. The Palestinian Child Law of 2004, Palestine Gazette No. 52, 18 January 2005, at 13, art. 23(2) (directs the Minister of Health to issue a regulation that specifies the form and content of this card. The regulation has not been enacted so far).

77. Ibid., art. 22(2).

78. Ibid., art. 24.

79. Ibid., art. 26.

80. Ibid., art. 27.

81. Palestine Gazette No. 52, 18 January 2005, at 263.

82. Ibid., art. 6(A).

83. JOHNSON, L.S., “Right to Maternal Health Care: Developing International Human Rights Law to Prevent Maternal Mortality” (2010) 11 University of Botswana Law Journal 39

84. Public Health Law No. 20, supra note 18, arts. 4−8 (child health rights), and arts. 80 and 81 (penalties for those who break the law).

85. SIFRIS, Cf. Ronli, “Restrictive Regulation of Abortion and the Right to Health” (2010) 18 Medical Law Review 185

86. Palestine Gazette No. 68, 7 March 2007, at 10.

87. Chuan-feng, Cf. WU, “State Responsibility for Tobacco Control: The Right to Health Perspective”(2008) 3 Asian Journal of WTO and International Health Law and Policy 379

88. Regulation No. 393 of 13 September 2005 on Transportation Law No. 5 of 2000, Palestine Gazette No. 66, 22 July 2006, at 45, arts. 226, 246.

89. Palestine Gazette No. 54, 23 April 2005, at 90.

90. Regulation of the Licensing of the Radio, Television, Satellite, and Wireless Stations of 2004, art. 12(iv.5). Also Instructions of the Quality of the Environment Authority on the Protection of Food from Radiation Contamination of 7 April 2003, Palestine Gazette No. 45, 24 May 2003, at 113.

91. Jordan Official Gazette No. 1413, 14 February 1959, at 173.

92. Decision of the Council of Ministers No. 113 of 9 August 2004 on the Regulation of the Public Health Insurance, Palestine Gazette No. 52, 18 January 2005, at 263, Annex 2.

93. Palestine Gazette No. 39, 25 November 2001, at 7.

94. Ibid., art. 103. This period is below the international standard of a minimum of fourteen weeks as provided in the Convention Concerning the Revision of the Maternity Protection Convention (Revised), 1952 (ILO Convention No. 183), 15 June 2000, 88th ILC session (entered into force 7 February 2002), art. 4(1).

95. Palestine Gazette No. 39, supra note 93, art. 104.

96. Ibid., art. 105.

97. Penal Code Ordinance No. 74, 14 December 1936, Palestine Gazette, Supplement 1, No. 652, 14 December 1936, at 399 (e.g. arts. 165, 167, 184−88, 226−29, 253, 260 (Gaza Strip)); Penal Code No. 16, 10 April 1960, Jordan Official Gazette No. 1487, 1 May 1960, at 374 (e.g. arts. 279, 287−91, 298, 305, 314, 331 (West Bank)).

98. QAFISHEH, Mutaz, “Juvenile Justice System in Palestine: Current Situation and Reform Prospects” (2011) 25 International Journal for Law, Policy, and the Family 365

99. BARNES, Cf. Joelle, “Not Too Great Expectations: Considering the Right to Health Care in Prisons and Its Constitutional Implementation” (2009) 22 South African Journal of Criminal Justice 39

100. Family Law (Order No. 303), 10 February 1954, Palestine Gazette (Gaza Strip), No. 35, 15 June 1954, at 869; Personal Status Law No. 61, 1 December 1976, Jordan Official Gazette No. 2668, 1 December 1976, at 2756; Personal Status and Endowments of the Arab Anglican Community Law, 1954 (a scanned copy of this law is available at the Palestinian Legal and Judicial System “Al-Muqtafi”, Institute of Law, Birzeit University, Palestine; no publisher or publication date); and Code of Cannon Law, 25 January 1983 (London: Collins Liturgical Publishers, 1983).

101. Alternative Families Regulations No. 70, 20 July 1963, Jordan Official Gazette No. 1704, 15 August 1963, at 1053.

102. KENNEDY, Cf. Charlene and COVELL, Katherine, “Violating the Rights of the Child Through Inadequate Sexual Health Education” (2009) 17 International Journal of Children's Rights 143

JONSSON, Urban, “An Approach to Assess and Analyze the Health and Nutrition Situation of Children in the Perspective of the Convention on the Rights of the Child” (1997) 5 International Journal of Children's Rights 367

FOX, Sanford J. and YOUNG, Diony, “International Protection of Children's Right to Health: The Medical Screening of Newborns” (1991) 11 Boston College Third World Law Journal 1

103. CESCR No. 14, supra note 72 at para. 15.

104. See generally Labour Law of 2000, supra note 93.

105. Regulations on First Aid Medication in Work Installations No. 17 of 22 December 2003, Palestine Gazette No. 49, 17 June 2004, at 163.

106. Decision of the Council of Ministers No. 24 of 22 December 2004 on Regular Medical Examination, Palestine Gazette No. 49, 17 June 2004, at 191.

107. Instructions of the Minister of Labour No. 1 of 20 February 2005 on the Precautions to Protect Workers in Construction and Engineering Structures, Palestine Gazette No. 55, 27 June 2005, at 214. These instructions correspond to the standards laid down in the Convention Concerning Safety and Health in Construction (ILO Convention No. 167), 20 June 1988, 75th ILC session (entered into force 11 January 1991).

108. Instructions of the Minister of Labour No. 2 of 20 February 2005 on the Safety Standards and Levels of Harmful Chemicals and Dusts Permitted at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 231. Cf. Convention Concerning Safety in the use of Chemicals at Work (ILO Convention No. 170), 25 June 1990, 77th ILC session (entered into force 4 November 1993).

109. Instructions of the Minister of Labour No. 7 of 20 February 2005 on the Protection of Workers in Gas and Petroleum Materials, Palestine Gazette No. 55, 27 June 2005, at 254. Cf. Convention Concerning the Protection of Workers against Occupational Hazards in the Working Environment Due to Air Pollution, Noise, and Vibration (ILO Convention No. 148), 20 June 1977, 63rd ILC session (entered into force 11 July 1979); and Convention Concerning Safety in the Use of Asbestos (ILC Convention No. 162), 24 June 1986, 72nd ILC session (entered into force 16 June 1989).

110. Instructions of the Minister of Labour No. 3 of 20 February 2005 on the Annual Permitted Dose for Workers in Ionic X-Ray, Palestine Gazette No. 55, 27 June 2005, at 244. Cf. Convention Concerning the Protection of Workers against Ionizing Radiations (ILO Convention No. 115), 22 June 1960, 44th ILC session (entered into force 17 June 1962).

111. Instructions by the Minister of Labour No. 4 of 20 February 2005 on the Safe Levels of the Extremity of Noise at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 247.

112. Instructions of the Minister of Labour No. 5 of 20 February 2005 on the Safe Levels of the Brightness of Light at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 249.

113. Instructions of the Minister of Labour No. 6 of 20 February 2005 on the Safe Levels of Temperatures at Workplaces, Palestine Gazette No. 55, 27 June 2005, at 251.

114. Convention Concerning the Minimum Age for Admission to Employment of 26 June 1973 (ILO Convention No. 138), (entered into force 19 June 1976), art. 2(3).

115. Labour Law, supra note 93, art. 93.

116. Ibid., art. 95.

117. Ibid., arts. 96, 98.

118. Ibid., art. 94.

119. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention No. 182), 17 June 1999, 87th ILC session (entered into force 19 November 2000); Convention Concerning Medical Examination for Fitness for Employment in Industry of Children and Young Persons (ILO Convention No. 77), 9 October 1946, 29th ILC session (entered into force 29 December 1950); Convention Concerning Medical Examination of Children and Young Persons for Fitness for Employment in Non-Industrial Occupations (ILO Convention No. 78), 9 October 1946, 29th ILC session (entered into force 29 December 1950); Convention Concerning the Restriction of Night Work of Children and Young Persons in Non-Industrial Occupations (ILO Convention No. 79), 9 October 1946, 29th ILC session (entered into force 29 December 1950); and Convention Concerning the Night Work of Young Persons Employed in Industry (ILO Convention No. 90), 10 July 1948, 31st ILC session (entered into force 12 June 1951).

120. Regulations on First Aid Medication in Work Installations No. 17, supra note 105 at art. 101. Cf. Convention Concerning Employment of Women during the Night (ILO Convention No. 4), 28 November 1919, 1st ILC session (entered into force 13 June 1921).

121. Decision Concerning the Work of Women Overnight, Council of Ministers No. 14, 22 December 2003, Palestine Gazette No. 49, 17 June 2004, at 152.

122. Labour Law, supra note 93, arts. 116−28.

123. Local Government Law, art. 15(A)(items 3, 5, 8, 9, 19, 23, 24).

124. Jordan Official Gazette No. 1952, 25 September 1966, at 1921 (citing Towns and Villages Planning and Buildings Law No. 79 of 1966).

125. Ibid., arts. 14−15, 19, 43, 48, 52, 60, 67.

126. The Environment Law, supra note 27, art. 13.

127. Ibid., art. 28.

128. Ibid., arts. 29−30.

129. Ibid., arts. 37−38.

130. Palestine Gazette No. 43, 5 September 2002, at 5 (citing Water Law No. 3 of 2002).

131. Agriculture Law, supra note 26, art. 54.

132. Ibid., art. 55.

133. Ibid., art. 65.

134. Ibid., arts. 67−76.

135. Public Health Law, supra note 18, art. 42.

136. Ibid., art. 45.

137. The Child Law, supra note 76, art. 27.

138. Public Health Law, supra note 18, art. 44.

139. No. 15 of 23 December 1952, Jordan Official Gazette No. 1131, 17 January 1953, at 460. See also Food Control (Alcoholic Liquors—Restriction of Manufacture) Order, 18 September 1943, Palestine Gazette, Supplement 2, No. 1290, 23 September 1943, at 1087.

140. Dangerous Drugs Rules, 12 September 1936, Palestine Gazette, Supplement 2, No. 635, 1 October 1936, at 1392; Order on Dangerous Drugs (West Bank) No. 558 of 16 February 1975, Proclamations, Orders and Appointments (Israeli Occupation, West Bank), No. 34, 24 December 1975, at 1355; and Presidential Decree No. 3 on the Establishment of the High Committee for the Prevention of Illegal Drugs and Mental Inebriations, 24 June 1999, Palestine Gazette No. 62, 25 March 2006, at 119.

141. Penal Code of 1936, arts. 15, 101, 234; Penal Code of 1960, arts. 390−2.

142. Ramadan, supra note 56 at 380.

143. Regulation of Contagious and Infectious Diseases of 13 April 1914, Ramadan, supra note 56 at 397.

144. Accidents and Occupational Diseases Notification Ordinance of 12 May 1945, Palestine Gazette, Supplement 1, No. 1409, 13 May 1945, at 93.

145. Order Relating to Notification of Deaths and Births as well as Vaccination and Diseases No. 33 of 25 July 1948, Palestine Gazette No. 2, 31 March 1950, at 54.

146. Decision of the Council of Ministers on the Plan of Action for the Control of Prevalent Ocular Diseases of 15 October 1961, Jordan Official Gazette No. 1581, 16 November 1961, at 1513.

147. Proclamation on the Public Health (Contagious Diseases) of 4 November 1984, Proclamations, Orders and Appointments (Israeli Occupation, Gaza Strip) No. 74, 15 October 1986, at 7933.

148. Examples from the Palestinian Authority-enacted legislation will follow in this section.

149. Public Health Law, supra note 18, arts. 9−45.

150. Child Law, supra note 76, arts. 24−28, 45−47.

151. The Agriculture Law, supra note 26, arts. 2(3), 45−7. Also Regulation on Licensing the Construction of Animal Yards, 10 July 2003, Palestine Gazette No. 44, 31 March 2003, at 225; and Council of Ministers Decision No. 243 on Fish Protection, 20 October 2005, Palestine Gazette No. 64, 31 May 2006, at 425.

152. Council of Ministers No. 47 of 22 March 2004, Palestine Gazette No. 52, 18 January 2005, at 123.

153. Ibid., at 144.

154. See Instructions of the Minister of Labour No. 7, supra note 109.

155. Council of Ministers Decision No. 380 of 26 December 2005, Palestine Gazette No. 65, 14 June 2006, at 428, art. 13.

156. Quality of Environment Authority of 7 April 2003, Palestine Gazette No. 45, 24 May 2003, at 113.

157. Regulations on First Aid Medication in Work Installations No. 17, supra note 105.

158. Council of Ministers No. 18 of 29 September 2008, Palestine Gazette No. 81, 9 May 2009, at 67.

159. Public Health Law, supra note 18, art. 46.

160. Ibid., arts. 46−57.

161. Ibid., art. 1.

162. Ibid., arts. 62−4.

163. Ibid., arts. 65−72.

164. Drayton, supra note 16 at 1286.

165. Jordan Official Gazette No. 168, 15 October 1927, at 49 (West Bank).

166. Palestine Gazette, Supplement 1, No. 1637, 30 December 1947, at 404.

167. Palestine Gazette, Supplement 1, No. 1395, 8 March 1945, at 1.

168. Jordan Official Gazette No. 1179, 17 April 1954, at 322.

169. Jordan Official Gazette No. 1265, 17 March 1956, at 1359.

170. Jordan Official Gazette No. 1323, 17 March 1957, at 283.

171. Jordan Official Gazette No. 1476, 16 March 1960, at 154.

172. Decision of the Council of Ministers No. 89 of 10 September 2007; Palestine Gazette No. 77 of 9 September 2008, at 148.

173. Decision of the Council of Ministers No. 46 of 23 July 2007; Palestine Gazette No. 73, 13 September 2007, at 139.

174. CESCR No. 14, supra note 72 at paras. 33, 50−2.

175. GUTTMACHER, Sally, “HIV Infection: Individual Rights v. Disease Control” (1990) 17 Journal of Law and Society 66

176. Ramadan, supra note 56 at 289

177. SHAH, Sheetal B., “Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health in India” (1999) 32 Vanderbilt Journal of Transnational Law 435 at 485

178. Ibid., at 477.

179. WESTERHALL, Lotta, “The Right to Health Care in Sweden” (1996) 3 European Journal of Health Law 163 at 163

180. Ibid., at 164.

181. EXTER, Andre Den and HERMANS, Bert, “Constitutional Rights to Health Care: The Consequences of Placing Limits on the Right to Health Care in Several Western and Eastern European Countries” (1998) 5 European Journal of Health Law 261 at 271

182. SELLIN, Jennifer, “Justiciablity of the Right to Health—Access to Medicines—The South African and Indian Experience” (2009) 2 Erasmus Law Review 445

MURIU, Daniel Wanjau, “The Imperial-Emancipatory Paradox of International Human Rights: How Useful is the Right to Health in Sub-Saharan Africa?” (2007) 9 International Community Law Review 387

183. CESCR No. 14, supra note 72 at paras 53−4.

184. Ibid., para. 53.

185. Palestine Gazette No. 65, 14 June 2006, at 522.

186. HUNT, Paul, “Taking Economic, Social and Cultural Rights Seriously” (2006) 31 Alternative Law Journal 120

187. Hebel, supra note 50 at 27

188. ALSTON, Philip, “The United Nations’ Specialized Agencies and Implementation of the International Covenant on Economic, Social, and Cultural Rights” (1979) 18 Columbia Journal of Transnational Law 79

189. LAMBERTSON, Heidi L., “Swatting a Bug Without a Flyswatter: Minimizing the Impact of Disease Control on Individual Liberty Under the Revised International Health Regulations” (2006) 25 Penn State International Law Review 531

* PhD Geneva. Professor of International Law, Legal Clinic Director, Hebron University, Palestine.