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Print This PageDoes the Palestinian Authority Enjoy Sovereign Immunity?
A federal district court in Washington has ruled that the answer is no. In Biton v. Palestinian Interim Self-Government Authority, the court ruled that it had jurisdiction over the Palestinian Authority, and that recent developments do not confer sovereign immunity on defendant. The defendant argued that:
We recognize that the court previously has held that [D]efendants are collaterally estopped from arguing that Palestine is a “foreign state” for purposes of the ATA. New developments, namely an Israeli court’s recognition that the [Palestinian Authority] is entitled to immunity and the Israeli withdrawal from the Gaza Strip, provide a basis for revisiting the [PA's] immunity from suit. If the court concludes that the [PA] is not a “foreign state,” then the [PA] should be treated as a political subdivision of Israel and found to have immunity on that basis.
The court rejected this argument:
The Disengagement Plan has not allowed the PA [Palestinian Authority] to exercise effective authority anywhere in the West Bank today. And it has no governmental control at all over any territory or population in the Gaza Strip and has suffered only a continuing deterioration of its control from 2005 (when the Disengagement Plan was implemented) to the coup by Hamas in June 2007. Third, the decision by an Israeli district court in Elon Moreh does not constitute a clear change in controlling law, which can in some circumstances negate the application of collateral estoppel. Defendants’ final claim, that the PA must be a political subdivision of the State of Israel if it is not a sovereign entity, is also without merit. The argument has been rejected by the Israeli government and the Israeli Supreme Court.
It’s an interesting question. It essentially introduces questions of statehood that we teach in public international law courses. At what point is a governing authority of a territory sufficiently recognized as a state for it to enjoy immunity? If the Palestinian Authority is not a state why not? And if it is not a state what is it? The more comical (but nonetheless interesting) variation to this question is if the Palestinian Authority is not a state, is it an instrumentality of the state of Israel?
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http://opiniojuris.org/2007/09/28/does-the-palestinian-authority-enjoy-sovereign-immunity/
3 Responses
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There seems to be two typographical errors in the decision citing the statute at 18 USC 2833 on page 2; for the reader the appropriate statute I could find is the Anti-Terrorism Act at 18 USC 2333, which states in 18 USC 2333(a):
And the definition of terrorism cited at page 4 at 18 USC 2333 should be at 18 USC 2331(c).
Though perhaps I am wrong as I am using publicly available sources which may not be the most up to date, but in case people wanted to look for them the text should be the same.
The decision skips over the Montevideo Convention standards (which in article 1 requires a state have (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states) specifically relying on collateral estoppel of previous decisions in Knox v. Palestine Liberation Organization, 306 F. Supp.2d 424 (S.D.N.Y 2004) and Ungar v. Palestinian Authority 315 F. Supp.2d 164 (D.R.I. 2004) which did consider those standards and rejected the defendants’ arguments as well as holding alternatively that since the Executive Branch did not recognize those entities as states that they were not entitled to immunity.
The Palestinian Authority seems to be trying to find a court that will re-open the question given the “changing nature” of their status under Israeli law and thus perhaps international law so they can claim the benefit of 18 USC 2337 which prevents an action under 18 USC 2333 from being used against a foreign state. This court rejects their claim of statehood even by suggesting that the PA’s inability to hold the Gaza strip is proof that they are not in effective control of their terrority and thus not a state.
As for your question, Professor Alford, it would seem from page 5 of the opinion the Israelis have rejected that interpretation.
at 2:21 pm EST Non liquet
Does any know what law firms or organizations were involved in this case, either as counsel or amici?
at 11:11 am EST David
Yes. David J. Strachman of McIntyre, Tate, Lynch &Holt in Providence, Rhode Island represents the plaintiffs. Maher Hanania and Richard Hibey of Miller &Chevalier in Washington, D.C. represent the defendants.
at 11:47 am EST Roger Alford