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Abstract
In this paper I will examine the law’s relationship to the Question of Palestine through three themes. First, there exists a striking incongruency between the volume of law regarding the Question of Palestine and the lack of legal regulation regarding the reality of Palestine. Nearly any layperson can list several UN resolutions regarding Palestine that have had little or no material impact. Moreover, other bodies of applicable international law from human rights to laws of war are inept when it comes to regulating Israel’s behavior or protecting Palestinians. Examining the relationship between law and power through Palestine, it becomes clear that the law’s efficacy is contingent on the military, economic, political, and moral balance of power. Not only has the law had a varying and sometimes negligible impact, it has also been used strategically to advance Israel’s national interests. Second, even while the law is seemingly doing very little to regulate Israel’s behavior, legal discourse is shaping Palestinian politics. For example, consider how the passage of UNSC Resolution 242 (1967) steadily shifted the Question of Palestine from a colonial situation to a state building one. Although this shift was not immediate and was initially met with resistance from the PLO, it ultimately came to redefine the Question of Palestine by the late 1980s. Similarly, the adoption of the 2005 BDS Call which based its demands on human rights and international law, catalyzed a shift in understanding the Question of Palestine within a rights-based framework. This shift was both beneficial for its democratizing capacity in enabling a universal discourse, and counterproductive in that it threatened to depoliticize the Question of Palestine all together. Finally, taking a closer look at the administration of Israeli law and the Palestinian experience of law demonstrates how hyper-legality and lawlessness can and do co-exist. Due to the settler colonial nature of Israel, the lack of a constitutional order that includes Palestinians and the administration of martial law, which is exceptional by definition, Palestinians are subject to legal micromanagement without the attendant benefits of due process, knowledge of the law, or reliance upon its terms. After framing the relationship between law and the question of Palestine through these different themes, I discuss whether the law itself is merely a political and social fiction.
Discipline
Law
Geographic Area
All Middle East
Israel
Palestine
Sub Area
None