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VI. Two Additional
Legal Arguments Against Israel’s Policy of Closure
In addition to
international humanitarian law, as discussed by Professor Cotler in the
preceding sections, other doctrines of law can be marshaled against
Israel’s closure policy. We now introduce two arguments based on two legal
doctrines common in legal systems throughout the world, and utilized in
international law. The first argument contends that according to the
doctrine of equitable estoppel, as a result of its long-term policy
allowing Palestinian workers to enter Israel for work, Israel should be
prohibited from suddenly revoking that access. The second argument holds
that under the doctrine of eminent domain, Israel should be required to
give just compensation to Palestinian workers from whom it has taken their
property-like right to work.
Equitable
Estoppel and the Israeli Closure
The doctrine
of equitable estoppel is a wide-ranging doctrine which applies to
situations where one party, through words or actions, has caused another
party to act in a certain way. The first party is subsequently prevented
(estopped) from acting in a manner contrary to his first words or actions.
As one American legal encyclopedia describes it, estoppel means “one who
by his deed or conduct has induced another to act in a particular manner
will not be permitted to adopt an inconsistent position, attitude or
course of conduct and thereby cause loss or injury to such other.”
For instance,
Mrs. A indicates through words or actions to Mr. B that she (A) intends to
buy a large number of items from him (B) if he should manufacture them.
Even if there had been no legal contract formed, A would be prevented from
refusing to buy those items if B relied on her words or actions and made
the items. Under normal circumstances if no contract had been formed, A
would be under no obligation to buy B’s items. But in unique situations
where one party causes the other to take or to fail to take certain
actions, courts intervene under estoppel to prevent the deceptive party
from “changing its tune”. Estoppel by conduct is a particular type of
equitable estoppel which arises where “a party has been induced by the
conduct of another to do, or forbear doing, something he would not have,
or would have, done but for such conduct.”
To use the
doctrine of estoppel by conduct, a number of elements must, therefore, be
shown: 1) conduct by one party which causes, 2) a second party to do or
forbear doing something which 3) damages in some way the second party.
This doctrine
can logically be applied to the relationship between Israel and
Palestinian workers from the Occupied Territories. Israel through its
policy from 1967 until the commencement of the Oslo process of allowing
Palestinians to enter Israel to fill a vital niche in the labor market and
thereby support their families, created a belief among Palestinians that
they would be free to enter Israel for work. Palestinians relied, to their
detriment, on the Israeli policy which minimized the existence of the
green line; Israel through its conduct and statements caused Palestinians
to rely on jobs in Israel rather than finding work within the Territories
or elsewhere. Furthermore, Israel prevented the formation of an
independent economy in the West Bank and Gaza Strip, creating a situation
of economic interdependence between Palestinian regions and Israel proper.
All the
elements of equitable estoppel by conduct are, therefore, present. Conduct
by one party: Israel’s allowance of Palestinian workers into Israel proper
over the course of thirty years and its policies which hindered the
development of industry within Palestinian areas. Second party doing or
forbearing from doing: Palestinian workers, relying on Israel’s policies,
concentrated their efforts on cultivating work in Israel and not in the
Occupied Territories. Harm to the second party: Palestinian workers find
themselves wholly dependent on the Israeli market for employment
opportunities. Because these elements are present, Israel should be
prevented from now acting in a way which contradicts its earlier actions.
That means the closure should be eliminated or limited to rare and
extenuating circumstances.
The use of
Estoppel in public international law is not uncommon. For instance,
Estoppel has been recognized as a “general principle of international law
by civilized nations.”
Estoppel in
international law “has been invoked…with an emphasis on good faith and
equitable conduct coupled with a lively awareness of the dangers of
adopting inconsistent attitudes at different times.”
Israel’s
abrupt change in policy after 30 years must be categorized as “an
inconsistent attitude at different times” and a lack of “good faith and
equitable conduct.” One formulation of estoppel in the international arena
describes a situation where:
A state that
has by its declaration and conduct maintained a position which is
manifestly contrary to the right it then claims with respect to another
state is precluded from claiming that right.
In the case of
the closure, Israel should be precluded from claiming the right to close
the territories because that right is manifestly contrary to the position
it has previously taken vis a vis Palestinian workers’ access to jobs in
Israel.
Israel
justifies the closure as necessary for national security, a justification
which is powerful in international law, yet it is not without limits, as
pointed out in section V by Professor Cotler. Additionally the security
justification appears to be more pretext than reality. As Nabil Sha’ath,
Palestinian Minister of Development claimed in response to the most recent
hermetic closure in early March, Israel has never arrested a Palestinian
with a valid work permit on suspicion of attempted terrorist activity.
One Israeli
commentator described the true motivations of Israel’s various security
forces:
The police
always support closures because their success is measured by the attacks
that do not take place. What do they care if hunger and despair engulf the
territories, or if Israeli contractors and farmers are left without
workers? The senior military echelons have a better understanding of the
long-term effects of the closure, but they also tend to speak in
short-range terms. The more sober branches of the defense establishment,
the GSS and the office of the coordinator of government activities in
Judea, Samaria and the Gaza Strip, doubt the wisdom of imposing closures.
The statement
that closures are necessary, or even helpful, to Israeli national security
is therefore a disputed matter even among the Israeli security
establishment.
Eminent Domain
and the Israeli Closure
Even if
national security is accepted as a legitimate justification for the
closure, Israel’s closure policy can still be said to be illegal under the
doctrine of eminent domain. It is generally accepted that states have the
right to expropriate private property for various public uses, under the
legal principle known as “eminent domain.” Such expropriation under
eminent domain is referred to as a governmental “taking” of property.
Takings occur in various circumstances, including:
When the
government forces a private landowner to accommodate unwanted physical
intrusions not necessary for the health and safety of occupants, regulates
property so intensely as to substantially destroy its value or imposes
burdens unreasonably on the property of a small group of people for the
benefit of society at large.
One common
thread between these situations is that the government, for some general
public interest, makes the property of private actors unusable for that
private actor. For a taking to be lawful, the state must compensate the
owner of the property: “As a basic premise the concept of ‘just
compensation’ means that a property owner…has the right to receive its
fair market value as a damage award.”
What is the
connection of property takings to the Israeli closure preventing
Palestinian workers from reaching jobs in Israel? Palestinian workers’
right to work under international human rights law can be described as a
property interest. The State of Israel recognizes the right to work in its
legal system. This means not that the State must provide each inhabitant
with a job, but rather that the state will not unduly prevent anyone from
finding employment. Categorizing the right to work as a property interest
may run counter to traditional notions of property as tract of land or an
item of personal property. Yet, property has been redefined by legal
scholars in light of the changing nature of society whereby property no
longer served its traditional function.
The function
of property, under this conception, is “to confer power on the individual
– power to control one’s own life and to provide for one’s own survival.”
According to
this view traditional property is
"being
replaced by non-traditional interests, such as governmental benefits,
which represent the individual’s share in a society where value derives
from relationships with organizations more than it derives from separate
ownership of lawn and other assets. Accordingly, these non-traditional,
relational interests should be treated as “new property.”
Palestinian
laborers’ “relational interests” with their employers in the State of
Israel are their sources of power to control their lives and provide for
their survival and the survival of their families. By fracturing those
interests, in closing the West Bank and Gaza Strip and facilitating the
replacement of Palestinian workers with foreign laborers, the Israeli
government has expropriated Palestinian workers’ property. Under eminent
domain, Israel can justifiably take Palestinian workers’ property
interests, so long as it provides just compensation in exchange. To date,
however, the closure remains an illegal taking, for Israel has paid no
compensation for the Palestinian loss of the right to work.
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