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Israel: New Basic Law on Requirements for Approval of Territorial Concessions

(May 22, 2014) On March 12, 2014, the Knesset (Israel’s parliament) passed a new basic law. Basic Law: Referendum is the twelfth basic law currently in force in the country. (Basic Law: Referendum [in Hebrew], SEFER HA-HUKIM No. 2443, at 400 (5774-2014), available at the Ministry of Justice website.) Basic laws are adopted by the Knesset with the objective that they be incorporated into a future constitution of the State of Israel. (For information on the significance and hierarchical weight of basic laws in the Israeli legal system, see Basic Laws – Introduction, The Knesset website (last visited May 20, 2014).)

Basic Law: Referendum establishes preconditions for the approval of government decisions to sign or ratify any agreement, or implement by any other means, a plan for the cessation of application of the law, jurisdiction, and administration of the State of Israel in areas previously subject to those powers. To be approved, governmental decisions authorizing such actions must be supported by a special majority of 80 out of 120 Knesset members or be approved in a public referendum. (Basic Law: Referendum, § 1.) To further strengthen the status of the Basic Law and minimize the possibility of its future revocation, Basic Law: Referendum expressly provides that “[n]otwithstanding the provision of any other law, this Law cannot be varied, suspended, or made subject to conditions by emergency regulations.” (Id. § 4.)

Basic Law: Referendum recognizes the eligibility of any person otherwise eligible on the day of a referendum to participate in elections to the Knesset to participate in a referendum on territorial concession. Eligibility requirements to take part in elections, under Basic Law: The Knesset, are Israeli citizenship and attainment of the age of majority (18). (Basic Law: The Knesset – 1958, § 5, The Knesset website.)

According to explanatory notes on the Basic Law: Referendum draft bill, the objective of the new legislation was to establish in a basic law the requirements that already existed in an ordinary law on procedures “for the ratification of political agreements or governmental unilateral decisions” on cessation of application of Israeli sovereignty. (Basic Law: Referendum, Bill No. 794, 5773-2013, The Knesset website (last visited May 20, 2014).)

Basic Law: Referendum strengthens the status of these requirements by setting a high bar for compliance and by shielding the requirements from revocation based on emergency powers. It does not generally affect, however, the procedures for the conduct of referenda as established under the Law and Administration Ordinance (Voiding Extension of Law, Adjudication and Administration) (Amendment), 5770-2010. (Text in Hebrew, The Knesset website; see also Ruth Levush, âÂÂÂ?ÂÂÂ? Israel: Subjecting Land Concessions in Peace Negotiations to Public Referendum, GLOBAL LEGAL MONITOR (Nov. 23, 2010).)