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Israel: Subjecting Land Concessions in Peace Negotiations to Public Referendum

(Nov. 23, 2010) On November 22, 2010, the Knesset (Israel's Parliament) passed the Law and Administration Ordinance (Voiding Extension of Law, Adjudication and Administration) (Amendment), 5770-2010. The amendment provides that the government should not ratify or sign any agreement according to which the State of Israel's law, jurisdiction, and administration would cease to apply in areas previously subjected to those powers unless either the agreement is ratified by a two-thirds majority of Knesset Members or by a regular majority, subject to a majority vote of qualified Israeli voters in a public referendum to be conducted in accordance with provisions in the Law.

Addressing only those areas previously subject to Israel's extension of law, adjudication, and administration, the Law clearly limits the Knesset power to ratify agreements that include land concessions in eastern Jerusalem and the Golan Heights. The Law also appears to be relevant in the context of territorial exchanges that may include transfer of sovereignty over areas within the “green line” (based on the 1949 Armistice Agreements) in return for sovereignty over areas outside of this line. Israel has gained control over eastern Jerusalem, previously administered by Jordan for 19 years, and over the Golan Heights, which it took from Syria in the 1967 Six-Day War. Israel has applied its law and jurisdiction to all parts of Jerusalem and to the Golan Heights based on Basic Law: Jerusalem, Capital of Israel, and the Golan Heights Law, 5742-1981, respectively.

Subjecting governmental agreements involving land concessions and exchanges to a public referendum limits the Knesset's power and has been viewed as a revolution in governance administration in Israel. This major change, however, has been adopted in a regular law and not in a basic law that might have included provisions ensuring it a higher constitutional and normative status. As such, it can be repealed by a regular majority of Knesset Members participating in a vote to repeal it.

It has been suggested that the Law might be subject to a judicial review by the High Court of Justice on the grounds that the introduction of a referendum constitutes a major reform in the law and administration procedures in Israeli law and therefore possibly contradicts the principles enumerated in Basic Law: The Knesset. (Law and Administration Ordinance (Voiding Extension of Law, Adjudication and Administration) (Amendment), 5770-2010, Knesset website, (last visited Nov. 29, 2010); [the text of the approved law is not yet available]; Basic Law: Jerusalem, Capital of Israel, 34 LAWS OF THE STATE OF ISRAEL (LSI) 209 (5740-1980), as amended; The Golan Heights Law, 5742-1981, 36 LSI 7 (5742-1981); Basic Law: The Knesset, 12 LSI 85 (5718-1957/58), as amended; Zeev Segal, Referendum Law: the Legality of Which Is in Doubt, HAARETZ ONLINE (Nov. 23, 2010),; & PM: Referendum Law Is Democratic and Responsible, THE JERUSALEM POST (Nov. 23, 2010),