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An Emerging Constitutionalism in Israel/Palestine?
Abstract
Through most of the Oslo peace process, a particular vision of the two-state solution dominated efforts to bring an end to the Palestinian-Israeli conflict - one premised not only on partition of land, but also on separation of peoples ("Us Here, Them There," as a 1992 Israeli Labor Party campaign slogan put it). Since the collapse of U.S. efforts to facilitate the conclusion of a "permanent status agreement" between Israel and the Palestine Liberation Organization, that vision has been the target of increasing challenges on ideological and practical grounds. One alternative that is commanding significant attention in European, American, Israeli, and Palestinian policy circles is the idea of establishing a Palestinian-Israeli confederation. A striking feature of this model is that it implies a shift not only in the kinds of arrangements that would be implemented by the parties on the ground (most notably a Schengen-style open border between the two confederated sovereign states), but also in the types of legal instruments needed to effectuate and regulate the new reality: treaties, certainly - but also constitutions. Moreover, in contrast to the Oslo framework's exclusive preoccupation with regulating Palestinian government and governance (a preoccupation echoed in most subsequent diplomatic initiatives), confederal models dedicate similar attention to Israel's government and governance and, more broadly, to the need to harmonize the two constitutional orders. This paper traces this shift and considers its implications with respect to process design. Drawing on experience elsewhere, the paper identifies potential means of coordinating international conflict resolution and internal constitutional transformation processes in the context of the formation of a Palestinian-Israeli confederation. The paper also identifies the kinds of challenges that must be overcome if such an enterprise is to be successful.
Discipline
Law
Geographic Area
Palestine
Sub Area
Arab-Israeli Conflict