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Journal of Islamic State Practice in International Law

ISSN 1742-4941

Jour

Journal of Islamic State Practices


in International Law

Volume 9 Number 1 Summer 2013

101
Published by Electronicpublications.Org Ltd
N M Adiong – Nation-State in IR and Islam

Nation-State in IR and Islam

Nassef Manabiland Adiong

The elemental subject of this study is the concept of ‘nation-state’ but


delimited within the bounds of two disciplines, i.e. International
Relations (IR) and Islamic Studies (IS), particularly Political Islam and
Jurisprudence. This is in part of the author’s aim of contributing to the
evolving literature on the relation between IR and religion in the 21st
century. The defining problem lies in the vagueness of interpretations
and understanding on the conceptualization of nation-state in those
mentioned disciplines, while subsequently reaching a ‘via media’ of
understanding. To ameliorate our focal understanding, the proponent
selected two frameworks: 1) a selective mainstream theoretical IR
survey, i.e. Liberalism, Realism, and Social Constructivism, and 2)
Islamic jurisprudential and political understanding of nation-state. It
will humbly try to examine, analyze, and decipher the origin, idea, and
operationalization of nation-state in IR and IS by the usage of
Comparative Analytical Method (CAM). Three data analytical or
coding stages under CAM will be operationalized: the first stage is
setting the Textual Codes via alpha-numerical representation next is
processing the Arithmetical Codes and the last step is determining the
Categorical Codes. Through these CAM codes, the inferential chart of
‘compare and contrast’ will compose the result of data analysis. Thus,
allowing us to categorically pinpoint inferences of similarities and
differences, and further it through the use of analytical induction, which
is, inducing it to specific facts or imperative details. In generalization,
there were foreseen differences and/or similarities on the notions of
level of analysis, sovereignty, citizenship, and territoriality.

1. Introduction
This initiative is a deliberated mental effort of contemplating whether there is an
Islamic impact in today’s praxis of international relations, i.e. the trends, events, and
related dominions (directly or not) influenced by the practices, actions or movements
in the international community or arena. One way to look at it is to specifically
consider one element that has had a significant role in conceiving international
relations as an academic discipline, whereby debates (major and minor) and
discourses (mainstream and periphery) were centered upon that element.


He is the founder of the International Relations and Islamic Studies (IR-IS) Research Cohort. He may
be contact via his website at <www.nassef-m-adiong.com>.

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The element of Nation-State played a prominent part in conceptualizing international


theories (including International Relations, International Law, and Philosophy),
particularly on the political spectrum, and has been, and will always be, a contentious
issue, particularly on its complex characterizations and its relations with other
elements, i.e., system, structure, agency, actor, society, civilization, etc.

Nation-State is a kind of polity or political unit of analysis. It comprised the elements


of authority (form of government), nationality (large number of people called
citizens), territoriality (juridical set of legal boundaries), and sovereignty (supreme or
final authority of a political entity over its own affairs and is recognized externally)1.
Moreover, it is a modern entity (mostly secular in nature) that evolved from
Greek/Italian city-states, Roman’s res publika (public affairs) to the Western nation-
state system, which was conceived by European political elites and commonly
attributed by some political/social scientists as a product of the Peace of Westphalia in
1648.

In spite of that understanding, Western scholars (orientalists) oftentimes and


consciously overlook the contributions of Asian or Middle Eastern scholars,
particularly Islamicists (those who passionately study Islam and its civilizations based
on different bodies of knowledge), to the literature on the study of the nation-state.
The Prophet Muhammad, subsequent members of ulama (scholars), and jurists, have
also contributed to the conception and evolution of the nation-state phenomenon.

2. Tracing the Significance of the Research Problem


The idea will primarily focus on the vagueness of interpretations and understanding
on the conceptualization of nation-state in both disciplines: International Relations
(IR) and Islamic Studies (IS),2 and how a via media (middle way) of linkage of
understanding may be reached. The primal research inquiries are how the nation-state
originated, was conceptualized, and operationalized in IR and Islamic Studies. While

1
Thomas Diez, Ingvild Bode and Aleksandra Fernandes da Costa, Key Concepts in International
Relations (SAGE Publications 2011) 215
2
Kindly please be reminded that the proponent will abbreviate ‘Islamic Studies’ into ‘IS’, which will
be used all throughout the essay. It is for abbreviation purpose only, same as with ‘International
Relations’ into ‘IR’.

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N M Adiong – Nation-State in IR and Islam

the secondary (supporting) query is what the similarities and differences of IR’s and
IS’s understanding on the conceptualization of nation-state are so as to locate a
probable via media of understanding.

The proponent hopes to discover an area or element that will show a profound and
explicit relation between Islam and IR by studying the significant role and meaning of
nation-state. Thus, in comparing the concept of nation-state in both disciplines, the
author may lead to the discovery of their probable mutuality or reciprocity with
support of the method (which will be further elaborated at the methodological
section). The null hypothesis is the opposite of it, i.e. it will not help him provide
answers to the posited statement of the problem.

This idea is particularly concerned with contributing to the expanding (and


exclusively extant) literature and significantly emerging sub-discipline in the form of
relations between ‘Religion’ and ‘International Relations’. How religion interacts with
IR and vice-versa, especially on the current waves of religious movements affecting
the behaviour of nation-states and their relations with one another. An imperative
example is the 9/11 event that changed the relations of mostly Western countries (US
and Europe, geographically speaking) and Muslim-dominated countries (Arab
nations, Iran, Turkey, Indonesia, Pakistan, Malaysia, among others).

The scope of the research only dwells on three entities: 1) Nation-State, 2)


International Relations, and 3) Islamic Studies. It is delimited by the relevance of time
period (meaning the data and instrumentation that will be included, analysed, and
examined are works of contemporary scholars, authors, and commentaries that have
similar research interests, written aspects that are relevant to the study, and relatively
related points of view). So, this is not purely objectively done (caveat), but is
intersubjectively (pertains to sets of similarities, views, consensus, and partially
shared divergences on meanings subject of previous contention by scholars)
constructed instead.

Islamic Studies is explained (in conjunction with the study) as within the parallels or
equation of Islamic views on politics, governance, leadership, and to some extent

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foreign relations experiences. Islamic philosophy has been excluded and only political
Islam and jurisprudence will be concentrated on.

3. Contemplating the Theoretical Framework(s)


There is one observation which may help in the progress of the study. That is,
observing the nation-state by incorporating two distinct frameworks in a demarcated
theoretical phenomenon. Selected mainstream theories of International Relations and
Islamic politics and jurisprudence are the focus of its theoretical and conceptual
frameworks.

Realism, Liberalism, and Social Constructivism are the selected theories on the part of
International Relations. Concepts such as ummah, dar al-Islam, dar al-Harb, dar al-
Ahd, etc., which are within the tenets of political and jurisprudential Islamic views
will be utilized on the part of Islamic Studies. The suggested independent variables
are International Relations and Islamic Studies, while the dependent variable is
nation-state. It hopes to straighten the line connecting these variables.

4. Seeking and Modifying Methodology for Appropriation


A preliminary exploratory research (which means it is for the purpose of formulating
hypotheses worth testing and complementing the tools used at Comparative Analysis
Method) will help create an efficacy of research design and data collection for the
purpose of reviews.

To ameliorate our focal understanding on a specific operational method, the


proponent selected ‘Comparative Analysis Method (CAM)’ put forward by 3Barney
G. Glaser, A.L. Strauss, and J. Corbin. While theirs is called ‘Constant Comparative
Method (CCM)’ under the grounded theory -- mine was a renovation of their method
which I named CAM. The CCM is a method for analysing data in order to develop a
grounded theory. The goal of grounded theory is to develop a theory that emerges
from and is therefore connected to the reality that the theory is developed to explain.

3
BG Glaser and AL Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research
(Aldine De Gruyter 1967)

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N M Adiong – Nation-State in IR and Islam

CAM does not concern itself with extrapolating previous theories and comparing
them with current theories so as to develop a grounded theory. It instead removes the
use of constancy by making it a presentation of two variables and compares them
appropriately. CCM uses a parallel vertical approach of comparing the past to present,
while CAM uses a parallel horizontal manner, regardless of periodicity, historicity, or
element of time. CAM involves coding, the process of going through the data ‘with a
fine-toothed comb’ looking for themes, ideas, and categories.4 Three data analytical or
coding stages under CAM will be operationalized: the first stage is the Textual
Coding, next is the Arithmetical Coding, and the last step is the Categorical Coding.

Through these CAM codes, the inferential chart of ‘compare and contrast’ will
compose the result of the data analysis; thus allowing us to categorically pinpoint
inferences of similarities and differences, and further it through the use of analytical
induction, which is inducing specific facts or imperative details. The generalization or
probable outcome of this study is to humbly locate areas of via media (middle way)
between perceived extreme poles on the concept of nation-state in IR and IS.

5. Analysis of Nation-State in International Relations


In this section, the proponent will first discuss the interpretation or description of a
particular IR theory about nation-state, and followed by their characterizations and
selected events to manifest how it was operationalized. It will briefly tackle
Liberalism, Realism, and then Social Constructivism subsequently.

5.1 Origin and Idea of Nation-State in International Relations


The liberal5 tradition conceived nation-state as not unitary actor or main actor in the
international system. It emphasized the significance of interdependence between
states under the presumptive conclusion of ‘power of reason’ that would result to a
harmonious cooperation with positive outcomes or gains as the key feature of

4
AL Strauss and J. Corbin, Basics of Qualitative Research: Grounded Theory Procedures and
Techniques (Sage Publications 1990)
5
For more information regarding liberalism, please refer to few magnum opus of the following
thinkers: Grotius’ On the Law of War and Peace: Three books (1625), Locke’s A Letter Concerning
Toleration (1689), Kant’s Perpetual Peace (1795), Angell’s The Great Illusion (1933), Wilson’s The
Fourteen Points (1918), Mitrany’s A Working Peace System (1943), and Haas’ Beyond the Nation State
(1964).

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international relations. Thus, concepts like interdependence and world society suggest
that in the contemporary world the boundaries between states are becoming
increasingly permeable. Daddow commented that ‘the unifying theme across all these
writers is that progress is possible via ‘modernization’ – of economies, of technology,
of human morality, and of communication within and between states. 6 Thinkers and
figures such as ‘Erasmus, Hugo Grotius, John Locke, Adam Smith, Immanuel Kant,
Jeremy Bentham, Abraham Lincoln,’7 Norman Angell, Woodrow Wilson, David
Mitrany, Ernst B. Hass, and among others have immensely contributed to the
academic and practical richness of liberalism.

Realists8 have very different take on the interpretation of nation-state, although they
(realists and liberalists) both started to have considered it as a central ‘sovereign’
actor in an anarchical international system, but ended up in differing various terms of
understanding.9 Thomas Hobbes argued that ‘nation-states are ruled by sovereign
governments that have the absolute authority and credible power to protect them from
both internal disorders and foreign enemies and threats’ thus ‘sovereign states are not
willing to give up their independence for the sake of any global security guarantee’.10

Thucydides, whom most realists referred to, states that ‘in order to survive and
prosper, states of all sizes had to adapt to the reality they found themselves in and
conduct themselves accordingly to stay safe’.11 In addition, realists compared nation-
states to individuals in a society which are unified and purposive as a rational actor.

6
Oliver Daddow, International Relations Theory (SAGE Publications 2009) 70
7
ibid 69.
8
For more information regarding realism, please refer to few magnum opus of the following thinkers:
Carr’s The Twenty Years' Crisis': 1919-1939 (1939, 2nd ed. in 1945), Morgenthau’s Politics Among
Nations: The Struggle for Power and Peace (1948, 7th ed. in 2005), Waltz’s Theory of International
Politics (1979), Mearsheimer’s The Tragedy of Great Power Politics (2001), and Gilpin’s Global
Political Economy: Understanding the International Economic Order (2001).
9
cf Daddow 81.
10
R. Jackson and G. Sørensen, Introduction to International Relations: Theories and Approaches
(Oxford University Press 2007) 65-66
11
cf Daddow 84.

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They believed that nation-states are motivated by a drive for power and pursuit of
national interest, thus, the aggressive intent, combined with the lack of world
authority or government means that conflict is an ever-present reality of international
relations. Realists also noted that international organizations or institutions can be
efficient if backed up or supported by nation-states that allied themselves based on the
premise that they will advanced their interests and positively gain from it. Prominent
authors such as E.H. Carr and Hans Morgenthau have immensely developed realism.

Social constructivists12 contested the positivist approach and assumptions in how to


‘do’ IR theory in 1980s.13 One of the pioneers in conceiving IR theory based on social
constructivism is Alexander Wendt. He wanted “to give identities and interests more
of a say in the explanation for state behavior and the outcomes that result from the
interaction between states in the international arena.”14 Moreover, these (interests and
identities) are not given to nation-states but are constructed by themselves on the basis
of learning from the past experience, the experience of present actions, and
expectations about the future.

With regard to the state capabilities, nation-state calculations are based on more than
the assessment of absolute or relative capabilities of other nation-states. For the
concept of anarchy, he viewed that it is authored by nation-states and therefore a
social construct.15 Overall, nation-states are also theoretically construct where
collective identities and interests are not pre-given and denote ideational structures,
i.e. the medium by which nation-states understand and evaluate the behavior of other
nation-states.

5.2 Operationalization of Nation-State in International Relations

12
For more information regarding contructivism, please refer to few magnum opus of the following
thinkers: Alexander Wendt’s “Anarchy is What States Make of It: the Social Construction of Power
Politics" (1992) and Social Theory of International Politics (1999), Nicholas Onuf’s “Constructivism:
A User's Manual" in Kubálková, et al. (eds.), International Relations in a Constructed World (M.E.
Sharpe 1998), and Peter J. Katzenstein’s A World of Regions: Asia and Europe in the American
Imperium (2005).
13
cf Daddow 114.
14
ibid 116.
15
ibid 117.

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Woodrow Wilson’s Fourteen Point which initiated the establishment of League of


Nations through the Paris Peace Conference in 1919 is a prime example of practicing
the theory of liberalism. The application of this theory was also manifested via the
creation of the United Nations (UN) after the Second World War and regional or
continental organizations such as European Union (EU), Association of Southeast
Asian Nations (ASEAN), Gulf Cooperating Council (GCC), North Atlantic Treaty
Organization (NATO), Organization of Islamic Cooperation (OIC), African Union
(AU), Union of South American Nations (USAN), Shanghai Cooperation
Organization (SCO), Asia-Pacific Economic Cooperation (APEC), Amnesty
International, Greenpeace, McDonalds, General Motors, and among others. Thus, it
literally points the importance of international organizations, non-governmental
organizations, and multinational corporations as key players in the process and
regulation of an anarchic international system. This does not mean that they entirely
ruled out nation-states, but considered as one of the actors or units of analysis.

The manifestations of applying realism in explaining international events can be seen


through the following examples: the rise and actions of the Axis powers (Germany,
Italy, and Japan) in World War II, the Great Depression (1929-39) and financial crisis
(2007-present) in the United States have greatly affected the economies of many
nation-states in the world, Arab-Israeli wars, and among others. The Middle East
region was an operational specimen for realists as their logical assumptions were
realized and materialized. Wars between states have immensely contributed to further
the research agenda of realists in conceptualizing the international relations of the
Middle East. The driving factors that spearheaded the invasion of Kuwait by Iraq
were intricately embedded on its interests to survive for which they need the oil
wealth to compensate their casualties after their 8-year war against Iran. The Arab-
Israeli wars in 1948, 1967, 1982, and current aggression by Israel bestowed against its
neighbors were interpreted as pursuing the primacy of power and interest of Israel in
an anarchical nature of the politics in the region.

Transtate/irredentist ideas were the ingredients for social constructivism: Arabism v.


Islamism, conservative v. radical Arabism, and even Zionist-religious v. Zionist
Israeli were the debatable extremities confined within this theory. In Syria, the rise of

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N M Adiong – Nation-State in IR and Islam

the Ba’ath and the advocacy of Arabism over nationalism or Islamism have led to the
definition of nation-state as an Arab republic without reference to the Islamic
character. In Jordan, the severing of ties with the West Bank in 1989 signaled a
further detachment of the Palestinian component of the Jordanian identity. The
meaning of Israel’s Jewishness has been hotly contested in Israel’s internal and
external debates. Iraq’s identity, always a part of the Arabist-statist debate, now has
the amplified dimension of subnational debate. Iran, which witnessed a genuine
revolution in the ascendance of the Islamic regime, has been the subject of internal
and external debates. And Egypt, which had led the pan-Arab movement in the 1950s
and 1960s, was the first to abandon it in the 1970s, much to the shock of many
Egyptians and Arabs.

6. Analysis of Nation-State in Islamic Studies


This is not an exhaustive undertaking on the Islamic interpretation of nation-state, but
rather an introductory manifestation from selected literature as referenced below. The
proponent has still to add accounts of Hassan al-Banna, Syed Qtub, Ayatollah
Khomeini, etc. Thus, it was purposely prepared as introductory piece only.

6.1 Origin and Idea of Nation-State in Islamic Studies


Islamicists regard nation-state as an equivalent of dawlah (country) under the
guidance of the concept of ummah (community of believers of Islam). There are two
approaches related to the emergence of dawlah in Islamic history.16 The first approach
was the post-Hijrah period (the migration or escape from persecution of the Prophet
and his followers from Mecca to Madinah in 622 CE) where Madinah under the
tutelage of the Prophet carried all functions of a state structure and the
institutionalization of political power. The second one claims that the Madinan society
is based not on state structure but on a community structure because the Prophet was
merely a religious leader and not a political one.

Hijrah is viewed as a great event in the history of Islamic civilization because it is the
beginning of strengthening a more consolidated community of believers of one God.

16
Ahmet Davutoglu, Alternative Paradigms: The Impact of Islamic and Western Weltanschauungs on
Political Theory (University Press of America 1994) 191

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It is a stage of the Prophet's political life in which he displayed outstanding diplomatic


skills and prudence that enabled him to unite all tribes, ethnicities, religious
communities (Jews and Christians) in Madinah into a single political polity through
the establishment of a constitution or charter (Al-Kitab or Al-Sahifa), which is agreed
by all parties to provide mutual support especially in times of war (collective
security), equal socio-political recognition, and economic solidarity.

Ummah is considered as the basic unit of analysis. According to Ayubi, the ummah is
given an ‘ideological’ definition by the jurists: its universal function is the
propagation of the divine message (da’wa). The Islamic nation-state is not, therefore,
an autocracy or a theocracy, but rather a nomocracy (government based on the rule of
law).17 In addition, the term ummah al-muslimah (Muslim community) has more
significance than the earlier term ummah al-muslimin (community constituting
Muslims). The ummah al-muslimah logically includes the ummah al-muslimin, but the
latter would not necessarily be the ummah. The ummah signifies that in addition to
each member’s being a Muslim, and thus obedient to God, the community qua
community must also be submissive to God.18

6.2 Operationalization of Nation-State in Islamic Studies


The most striking antecedent of early Islamic history is the composition of the
Madinah Charter.19 It modified a state of solitary enmity to a harmonious condition of
living together, i.e. mutually exclusive and symbiotically beneficial. The Madinah
Charter defined a new political membership and status which destroyed traditional
tribal membership in Arab society.20 Contrary to ethnic origin, Jus soli (place of
birth), or Jus sanguinis (nationality of his/her parents) as the criterion for citizenship
in a secular nation-state system, Islamic political understanding presupposes a
voluntary acceptance of a Muslim community through a socio-political identification
dependent on a unilateral declaration before two witnesses: (1) to the unity of Allâh

17
Nazih Ayubi, Political Islam: Religion and Politics in the Arab World (Routledge 1991) 22
18
cf Davutoglu 182-183.
19
Ibn Isḥāq, The life of Muhammad (Translated by Alfred Guillaume, Oxford University Press 1955)
231-233
20
cf Davutoglu 192.

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N M Adiong – Nation-State in IR and Islam

and (2) the prophetic function of Muhammad to become a bona fide member of the
ummah.21

According to Hassan22, every human being has the right to become a Muslim
regardless of gender, race, color of the skin, or language as accorded in the Qur’ânic
verse (49:10) stating “believers are but a single brotherhood…” and (49:13) “…And
we made you into nations and tribes, that you may recognize each other.” It
emphasized that all regional and tribal distinctions are merely of a geographical
nature.

‘People of the Book’ (ahl al-kitab) or resident non-Muslims mainly Jews and
Christians (dhimmis), who accept the political sovereignty and patronage of the
Muslim state as the realization of the political power of the ummah and have the
autonomy to pursue their own lifestyles within a pluralistic legal structure,23 are also
bound to the community by the same concept of loyalty. They are accorded their
freedom of belief, security of life and possessions, and usually exemption from
military service, in return for paying a sort of ‘poll tax’ or jizya.24 In addition, other
non-Muslim religious minorities also formed an integral (social and economic) part of
the Islamic nation-state particularly during the Ottoman regime.

Islamic nation-state system25 is divided into Dâr al-Islam (the House of Islam, where
Muslims rule), Dâr al-Ḫarb (the House of War, comprising the rest of the world), and
Dâr al-‘Ahd (the House of Truce) or Dâr al-Sulh (the House of Covenant) which
indicate those states that have peaceful agreements with an Islamic state from those
that do not. However, many Hanafi scholars insisted that there were only two
divisions because if the inhabitants of a territory had concluded a treaty of peace it

21
ibid 184.
22
Farooq Hassan, The Concept of State and Law in Islam (University Press of America 1981) 40
23
cf Davutoglu 186.
24
cf Ayubi 23
25
cf Davutoglu 179.

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became a part of Dâr al-Islam automatically.26 Dâr (place) has been applied to the
Islamic juristic scheme together with its dimension of political authority and power.
Ibn ‘Abidin defines dâr as “the country under the government of a Muslim or non-
Muslim” while al-Jassâs refer it to political power and hegemony.27

Another evolutionary characteristic was the three stages of semantic transformation of


the concept of dawlah.28 In the first stage, the word was used to mean a change of
political power or the victory of one dynasty over another. The second stage was used
for the ultimate political authority and structure rather than to mean political change.
The last stage occurred after the political supremacy of the Western international
system based on individual nation-states. The concept of dawlah has been used as the
translation of “nation-state” in several Muslim languages during the last stage.

Consequently, the main function of a nation-state in juridical Islamic writings is


ideological: an expression of a militant ‘cultural mission’ that is religious in character
and universal in orientation.29 Furthermore, Islamic nation-state in reality emphasizes
cultural cohesion which is significant than societal fraternity; it defines morality and
does not give importance to any private and/or public ethical domains, and in which
rejects any forms of physical borders or ethnical boundaries. Simply, it
philosophically aims and encompasses the whole universe or entire cosmos.

7. The CAM Analysis of Nation-State in International Relations and Islamic


Studies
Presentations of coding stages from textual, arithmetical, to categorical are shown. As
it was explained in the section of “utilizing an appropriate methodology,” the
mechanics of these codes were to emphasized analytical induction of textual
development to induced specific facts or imperative details.

26
ibid 187.
27
Ahmed Özel, İslâm Hukukunda Milletlerarası Münâsebetler ve Ülke Kavramı (The Concept of
Islamic Law, International Relations, and Country) (Marifet 1982) 69
28
cf Davutoglu 191.
29
cf Ayubi 23.

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N M Adiong – Nation-State in IR and Islam

Moreover, it will categorically pinpointing inferences of similarities and/or


differences at the same time (where coding stage takes place), which will be presented
as a separate table of comparison of categorical codes as concluding remark(s).

Legends: A = Analysis; OI = Origin/Idea; L = Liberalism; R = Realism; C = Constructivism;


Is = Islamic Studies; 1...2...3... = represent the citations of a phrase or sentence which will be
arithmetically added during the Arithmetical Coding stage to avoid redundancy upon categorizing
them under the Categorical Coding stage.

7.1 The CAM Analysis of the Origin and Idea of Nation-State in International
Relations and Islamic Studies
Table 1: CAM Analysis of Origin and Ideas of Nation-State
Textual International Textual Islamic
Codes Relations Codes Studies
A(OI)L1  not unitary actor or main actor in the A(OI)Is1  equivalent of dawlah
international system (country)
A(OI)L2  interdependence between states A(OI)Is2  under the guidance of the
A(OI)L3  uses power of reason concept of ummah
A(OI)L4  result to a harmonious cooperation with (community of believers
positive outcomes or gains of Islam)
A(OI)L5  boundaries between states are A(OI)Is3  post-Hijrah period (the
becoming increasingly permeable migration or escape from
A(OI)L6  progress is possible via ‘modernization’ persecution of the
– of economies, of technology, of Prophet and his followers
human morality, and of communication from Mecca to Madinah
within and between states in 622 CE) where
A(OI)LR  central ‘sovereign’ actor in an Madinah under the
anarchical international system tutelage of the Prophet
A(OI)R1  ruled by sovereign governments that carried all functions of a
have the absolute authority state structure and the
A(OI)R2  credible power to protect them from A(OI)Is4 institutionalization of
both internal disorders and foreign political power
enemies and threats  the Madinan society is
A(OI)R3  not willing to give up their based not on state
independence for the sake of any global structure but on a
security guarantee community structure
A(OI)R4  adapt to the reality they found A(OI)Is5 because the Prophet was
themselves in and conduct themselves merely a religious leader

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Journal of Islamic State Practice in International Law

accordingly to stay safe and not a political one


A(OI)R5  unified and purposive as a rational actor  Hijrah is viewed as a
A(OI)R6  motivated by a drive for power great event in the history
A(OI)R7  pursuit of national interest of Islamic civilization
A(OI)R8  the aggressive intent, combined with because it is the
the lack of world authority or beginning of
government means that conflict is an strengthening a more
ever-present reality consolidated community
A(OI)R9  international organizations or of believers of one God
institutions can be efficient if backed up A(OI)Is6 ... enabled him to unite
or supported by nation-states all tribes, ethnicities,
A(OI)R1  advanced their interests and positively religious communities
0 gain (Jews and Christians) in
A(OI)C1  give identities and interests more of a Madinah into a single
say in the explanation for state behavior political polity
and the outcomes that result from the  establishment of a
interaction between states in the constitution or charter
international arena (Al-Kitab or Al-Sahifa),
A(OI)C2  these (interests and identities) are not A(OI)Is7 which is agreed by all
given to nation-states but are parties to provide mutual
constructed by themselves on the basis A(OI)Is8 support especially in
of learning from the past experience, times of war (collective
the experience of present actions, and security), equal socio-
expectations about the future political recognition, and
A(OI)C3  With regard to the state capabilities, economic solidarity
nation-state calculations are based on A(OI)Is9  Ummah is considered as
more than the assessment of absolute or the basic unit of analysis
relative capabilities of other nation-  the ummah is given an
A(OI)C4 states ‘ideological’ definition
 For the concept of anarchy, he viewed A(OI)Is10 by the jurists: its
that it is authored by nation-states and universal function is the
A(OI)C5 therefore a social construct propagation of the divine
 denote ideational structures, i.e. the message (da’wa)
medium by which nation-states  not, therefore, an
understand and evaluate the behavior of autocracy or a theocracy,
other nation-states but rather a nomocracy
(government based on the
rule of law)
 The ummah signifies that
in addition to each

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N M Adiong – Nation-State in IR and Islam

member’s being a
Muslim, and thus
obedient to God, the
community qua
community must also be
submissive to God.
Arithmetical Codes of International Relations Arithmetical Codes of Islamic Studies
 A(OI)L1 + A(OI)LR = A(OI)L1LR  A(OI)Is1
 A(OI)L2 + A(OI)L4 = A(OI)L6  A(OI)Is2 + A(OI)Is4 + A(OI)Is5
 A(OI)L3 + A(OI)R5 = A(OI)LR8 = A(OI)Is11
 A(OI)L5 + A(OI)L6 = A(OI)L11  A(OI)Is3 + A(OI)Is9 = A(OI)Is12
 A(OI)R1 + A(OI)R3 = A(OI)R4  A(OI)Is6
 A(OI)R2 + A(OI)R4 + A(OI)R8 = A(OI)R14  A(OI)Is7
 A(OI)R6 + A(OI)C3 = A(OI)RC9  A(OI)Is8
 A(OI)R7 + A(OI)R10 + A(OI)C1 =  A(OI)Is10
A(OI)RC18
 A(OI)R9
 A(OI)C2 + A(OI)C4 + A(OI)C5 = A(OI)C11
Categorical International Categorical Islamic
Codes Relations Codes Studies
A(OI)L1LR  Level of Analysis* A(OI)Is1  Equivalent
A(OI)L6  Cooperative Mechanism A(OI)Is11 nomenclature
A(OI)LR8  Rationality A(OI)Is12  Community[of
A(OI)L11  Modernization and Territoriality A(OI)Is6 Believers]
A(OI)R4  Sovereignty and Authority* A(OI)Is7  Authority*
A(OI)R14  Securitization Framework A(OI)Is8  Constitution
A(OI)RC9  Influence A(OI)Is10  Level of
A(OI)RC18  Interests Analysis*
A(OI)R9  Role of Non-State Actors (e.g.  Role of
A(OI)C11 International Organizations) Community
 Constructed Ideational Structures  Submission to the
Will of God
(Sovereignty)*
*Underlined words demonstrate clear similar notions of concepts between IR and IS.
However, it all depends on the interpretation or understanding of that category or
terminology under the categorical codes.

It is quite apparent that the first factor in tracing the comparison or contrast of the
concept of nation-state in both bodies of knowledge (IR and IS) is on the notion of

116
Journal of Islamic State Practice in International Law

‘level of analysis’. The nation-state is the unit of analysis for the IR, while the
Ummah is for the IS. However, if you are going to deeply analyse the context, the
Ummah is considered as an imagined space of community where people believe they
are part of that space. In the modern context, nation-state is also considered as an
imagined community where people think and feel they are affiliated within the
boundary of that community. Thus, nation-state and Ummah are similar at a certain
degree of understanding, while interpreted in various ways.

Secondly, the notion on sovereignty lies a fundamental difference between them. In


IR, it is the government elected/appointed by the citizenry that has the utmost will of
authority over its jurisdiction, where their sovereignty is recognized and respected by
other sovereign nation-states and international organizations. Thus, bestowing them
legitimacy and accorded rights in the international community. In IS, it is their God
that has the sovereign power, where all believers are subjects and considered part and
parcel of the whole Ummah (societal) system. Consequently the last clear explicit
comparison is that the government has the authority in IR’s nation-state interpretation,
while God has the sole authority in IS’s nation-state interpretation.

Legends: A = Analysis; OP = Operationalization; L = Liberalism; R = Realism;


C = Constructivism; Is = Islamic Studies; 1...2...3... = represent the citations of a phrase or
sentence which will be arithmetically added during the Arithmetical Coding stage to avoid
redundancy upon categorizing them under the Categorical Coding stage.

7.2 The CAM Analysis of the Operationalization of Nation-State in International


Relations and Islamic Studies
Table 2: CAM Analysis of Operationalization of Nation-State
Textual International Textual Islamic
Codes Relations Codes Studies
A(OP)L1  Woodrow Wilson’s Fourteen A(OP)Is1  composition of the Madinah
Point which initiated the Charter
establishment of League of A(OP)Is2  the Madinah Charter defined a
Nations through the Paris Peace new political membership and
A(OP)L2 Conference in 1919 status which destroyed
 creation of the United Nations traditional tribal membership
(UN) after the Second World War A(OP)Is3  a socio-political identification

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N M Adiong – Nation-State in IR and Islam

A(OP)L3 and regional or continental dependent on a unilateral


organizations declaration before two
 it literally points the importance of witnesses: (1) to the unity of
international organizations, non- Allâh and (2) the prophetic
governmental organizations, and function of Muhammad to
multinational corporations as key become a bona fide member of
A(OP)R1 players in the process and the Ummah
regulation of an anarchic A(OP)Is4  It emphasized that all regional
international system and tribal distinctions are
 the rise and actions of the Axis merely of a geographical
powers (Germany, Italy, and nature.
A(OP)R2 Japan) in World War II, the Great A(OP)Is5  resident non-Muslims mainly
Depression (1929-39) and Jews and Christians - have the
financial crisis (2007-present) in autonomy to pursue their own
A(OP)C1 the United States lifestyles within a pluralistic
 Wars between states have legal structure
immensely contributed to further A(OP)Is6  Dâr al-Islam (the House of
the research agenda (Arab-Israeli Islam, where Muslims rule)
wars) vs. Dar al-Harb (the House of
 Transtate/irredentist ideas: War, comprising the rest of
Arabism v. Islamism, conservative the world) vs. Dâr al-‘Ahd
v. radical Arabism, and even (the House of Truce) or Dâr
Zionist-religious v. Zionist Israeli al-Sulh (the House of
A(OP)Is7 Covenant)
 the main function of a nation-
state in juridical Islamic
writings is ideological: an
expression of a militant
‘cultural mission’ that is
religious in character and
universal in orientation
Arithmetical Codes of International Relations Arithmetical Codes of Islamic Studies
 A(OP)L1 + A(OP)L2 + A(OP)L3 =  A(OP)Is1 + A(OP)Is2 + A(OP)Is3 +
A(OP)L6 A(OP)Is4 = A(OP)Is10
 A(OP)R1  A(OP)Is5
 A(OP)R2  A(OP)Is6
 A(OP)C1  A(OP)Is7
Categorical International Categorical Islamic
Codes Relations Codes Studies
A(OP)L6  Establishment of non-state A(OP)Is10  Structure of

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Journal of Islamic State Practice in International Law

A(OP)R1 actors Political Process


A(OP)R2  Wars A(OP)Is5  Toleration and
A(OP)C1  Economic Crisis A(OP)Is6 Plurality
 Ideological Conflicts*  Muslim and
A(OP)Is7 non-Muslim
Regimes
 Ideological in
Nature*
*Underlined words demonstrate clear similar notions of concepts between IR and IS.
However, it all depends on the interpretation or understanding of that category or
terminology under the categorical codes.

The operationalization of constructivism to the nation-state is primarily influenced by


idea, ideology, or set of ideas. These ideas are embedded within the construction of
the nation-state. The inhabitants or people who believed they belong to that nation-
state are the ones who formulate, describe, and define what constitutes the characters,
elements, and compositions of it. The juridical understanding of an Islamic nation-
state is purely ideological, where there is a strong emphasis on the essence of
religiosity, cultural, and the claim of being universal.

8. Conclusions and Recommendations


There are stark differences between the interpretations of IS and IR on the conception
of the nation-state. Selected categorical claims under the selective coding stage
include citizenship or membership, limits of boundaries or territoriality, the
jurisdiction of the authority, and the sovereignty issue. For categorical claim of
citizenship, the political prism of IR is based on nationality of parents or birthplace of
an individual, while in IS, it is the individual’s affinity with Islam regardless of racial
or geographical orientations that define his/her citizenship.

For the categorical claim of territoriality, IR respects or is subdued to international


treaties and agreements, and sometimes via domestic referendum of the citizenry,
while IS is finite as long as there are presences of Muslims. In addition, IS submits to
juridical divisions of ‘dar’. For the jurisdiction of authority, IR’s interpretation
depends on the style of leadership or form of government, whether totalitarian,
dictatorship, monarchical, or democratic.

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N M Adiong – Nation-State in IR and Islam

In IS, there are different variations or descriptions laid by scholars, particularly


Sunni’s and Shia’s different political schools of thought, and Sufi’s philosophical
description of a leader. The sovereignty issue is primarily a contestation between the
people and recognition from other nation-states and God. Consequently, as of this
moment, the researcher has not found any clear elements for reaching a via media or
middle way in their (IR and IS) understandings of nation-state.

References:

Ayubi N, Political Islam: Religion and Politics in the Arab World (Routledge 1991)

Daddow O, International Relations Theory (SAGE Publications 2009)

Davutoglu A, Alternative Paradigms: The Impact of Islamic and Western


Weltanschauungs on Political Theory (University Press of America 1994)

Diez T, Bode I and Costa AFd, Key Concepts in International Relations (SAGE
Publications 2011)

Glaser BG and Strauss AL, The Discovery of Grounded Theory: Strategies for
Qualitative Research (Aldine De Gruyter 1967)

Hassan F, The Concept of State and Law in Islam (University Press of America 1981)

Ibn Isḥāq, The life of Muhammad (Translated by Alfred Guillaume, Oxford University
Press 1955)

Jackson R and Sørensen G, Introduction to International Relations: Theories and


Approaches (Oxford University Press 2007)

Özel A, İslâm Hukukunda Milletlerarası Münâsebetler ve Ülke Kavramı (The


Concept of Islamic Law, International Relations, and Country) (Marifet 1982)

Strauss A and Corbin J, Basics of Qualitative Research: Grounded Theory


Procedures and Techniques (Sage Publications 1990)

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Journal of Islamic State Practices in International Law

The Interplay between International Human Rights and Labour Rights in


Palestine

Mutaz Qafisheh

Palestine has long way to bring its legal system in conformity with
international labour standards. The lack of respect of such standards,
as the special law with regard to the human right to work, might
hinder the effective compliance with that right as embedded in the
Covenant on Economic, Social and Cultural Rights, whose labour
provisions form the general law. The legislative readiness of Palestine
to become full member of the International Labour Organization is
doubtful. Should it be interested to join the Organization, Palestine is
called upon to undertake systematic reform to upgrade its legislation,
policies and institutions in line with international labour law.

1. Introduction
While the International Covenant on Economic, Social and Cultural Rights, 1 which
was adopted by the United Nations (UN) General Assembly on 16 December 1966,2
sets the framework on the right to work and social security; labour standards of the
International Labour Organization (ILO) elaborate on these rights and give concrete
measures for application. Both the Covenant and the labour standards offer global
rules that cannot be materialized except by the adoption of policies and corresponding
legislative instruments that translate such rules into a binding domestic law.


Professor of International Law and Legal Clinic Director, Hebron University, Palestine. He holds a
PhD in International Law, Graduate Institute of International and Development Studies, Geneva. He is
a practising international lawyer. He has formerly worked as Human Rights Officer, UN Human Rights
Office in Geneva, Beirut and Ramallah; Regional Director, Penal Reform International, Middle East
and North Africa, Amman; Director, Security Sector Reform, Birzeit University; Director, Legal
Education, Palestinian Law Schools; Legal Advisor, Palestinian Parliament; Co-Founder, Human
Rights Programme, Al-Quds-Bard Honors College, Jerusalem and New York. His twenty-five studies
include: Palestine Membership in the United Nations: Legal and Practical Implications (Newcastle:
Cambridge Scholars, 2013); The International Law Foundations of Palestinian Nationality (Leiden and
Boston: Brill, 2008); ‘Article 1D: Definition of the Term ‘Refugee,’’ in A. Zimmermann, ed., The 1951
Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford:
University Press, 2011); ‘The Dilemma of Legislative Reform in Line with International Standards on
Gender Equality in the Islamic World: The Case of Palestine’, International Journal for Legislative
Drafting and Law Reform (London 2013); ‘The International Status of National Human Rights
Institutions: A Comparison with NGOs’, Nordic Journal of Human Rights (University of Oslo, 2013).
1
933 United Nations Treaty Series (UNTS) 3 (1977). Hereinafter referred to as ‘ICESCR’ or ‘the
Covenant’.
2
Hereinafter referred to as ‘ICESCR’ or ‘the Covenant’.

0
N. M. Adiong – Nation-State in IR and Islam

This article explores how Palestine has dealt with these two regimes of international
law despite the fact that it is not yet a full member of the ILO, nor is it party to the
Covenant. Such discussion might shed light on the readiness of Palestine to join
certain international organizations after its recognition by the UN General Assembly
as a non-member State by Resolution 67/19 of 29 November 2012. In particular,
examining the consistency of the Palestinian legal system with the ICESCR clarifies
part of the obligations that would face this country after accessing the Covenant;
article 26(1) of the ICESCR provides that the ‘present Covenant is open for signature
by any State Member of the United Nations or member of any of its specialized
agencies . . .’. With the membership of Palestine, as a State, in the United Nations
Educational, Scientific and Cultural Organization (UNESCO), a UN specialized
agency,3 on 31 October 2011;4 the possibility for Palestine of becoming party to the
Covenant and to be internationally responsible towards its people based on that
instrument is now beyond any doubt. The paper is based mainly on international
conventions and on the applicable legislation in Palestine; it is not concerned with the
literature in this field as it is directed towards achieving practical legislative reform.

2. Right to Work
The right to work has been addressed in two articles of the ICESCR. While article 6
put an obligation on States to recognize the right to work as a matter of principle,
article 7 introduced specific sub-rights arising from that right.

Palestinian legislation recognized the right to work as a matter of principle in article


25 of the Amended Palestinian Basic Law of 18 March 2003:5 ‘1. Every citizen shall
have the right to work, which is a duty and honor. The Palestinian National Authority
shall strive to provide work for any individual capable of performing it. 2. Work

3
Agreement between the United Nations and the United Nations Educational, Scientific and Cultural
Organization, Approved by the General Conference on 6 December 1946 and by the General Assembly
of the United Nations on 14 December 1946; UNESCO, Manual of the General Conference (Paris:
UNESCO, 2002), 147, art 1. This article stated: ‘The United Nations recognizes the United Nations
Educational, Scientific and Cultural Organization (UNESCO) as a specialized agency responsible for
taking such action as may be appropriate under its basic instrument for the accomplishment of the
purposes set forth therein’ (emphases supplied).
4
UNESCOPRESS, General Conference admits Palestine as UNESCO Member State, 31 October
2011.
5
Palestine Gazette, Special Edition, 19 March 2004, 5. Hereinafter referred to as ‘Basic Law’.

1
Journal of Islamic State Practices in International Law

relations shall be organized in a manner that guarantees justice to all and provides
workers with welfare, security, and health and social benefits. 3. Organization of
unions is a right that shall be regulated by the law. 4. The right to conduct a strike
shall be exercised within the limits of the law.’6 Specific rules on the right to work are
advanced by the Labour Law No. 7 of 30 April 2000.7 Article 2 of this law reaffirmed
the said article of the Basic Law by stipulating that ‘work is a right for each citizen
who is capable thereof. The National Authority shall provide work on the basis of
equal opportunities and without any kind of discrimination whatsoever’.

While conforming to article 6(1) of the Covenant, these two provisions confined the
right to work to citizens. This might contradict a clause in the said paragraph that
termed work is a human right that should be enjoyed by citizens and noncitizens alike.
Yet the Palestinian government, pursuant to article 14 of the labour law, regulated the
work of aliens via Regulation on the Work Licenses to Non-Palestinians of 22 March
2004.8 Henceforth, aliens should acquire work permit from the Ministry of Labour.
The Ministry can grant or withhold permits upon its absolute discretion.9 Permits may
be granted if the alien’s work does not compete with Palestinian workforce and if
there is a real need for that worker.10 The Ministry may take its decision subject to the
principle of reciprocity.11 Work permits can be issued for a maximum term of one
year, renewable subject to a new approval by both the Ministry and the employer.12
Permits might be denied without assessing reasons.13

6
cf David Riesman, ‘The American Constitution and International Labour Legislation’ (1941)
44 International Labour Review 123; Ferruccio Pergolesi, ‘The Place of Labour in the Constitution of
the Italian Republic’ (1950) 61 International Labour Review 118; Martin Brassey, ‘Labour Relations
under the New Constitution’ (1994) 10 South African Journal on Human Rights 179; Rodney Brazier,
‘New Labour, New Constitution’ (1998) 49 Northern Ireland Legal Quarterly 1; Ron McCallum, ‘The
Australian Constitution and the Shaping of Our Federal and State Labour Laws’ (2005) 10 Deakin Law
Review 460; Harry Arthurs, ‘Labour and the Real Constitution’ (2007) 48 Cahiers de Droit 43.
7
Palestine Gazette No. 39, 25 November 2001, 7.
8
Palestine Gazette No. 52, 18 January 2005, 118.
9
Art 1.
10
Art 2(1).
11
Art 2(2).
12
Art 5.
13
Art 4(3).

2
N. M. Adiong – Nation-State in IR and Islam

These rules might lead to the loss of work by noncitizens without legitimate reasons
and thus abuse worker’s rights by employers, violating that human right as enshrined
in article 6(1) of the ICESCR. Should it wish to remove any doubts on the compliance
of its labour law with the latter stipulation of the Covenant, the Palestinian legislator
is invited to adopt equitable rights for all persons working in Palestine without
discrimination based on nationality or reciprocity.14

Article 3(2), of the labour law excludes ‘domestic workers and those in similar
situations’ from the scope of this law’s application. This paragraph added that the
Minister of Labour shall regulate the status of such workers by issuing a regulation.
Thirteen years on, this regulation has not yet been issued, leaving domestic workers
without legal protection. The gap in regulating the status of domestic workers in
Palestine is similar to the legislation of other Middle East countries, such as Lebanon.
This gap has been considered as a violation to the right to work by, for example, the
UN Committee on the Elimination of All Forms of Discrimination Against Women:15
‘The Committee expresses concern that article 7 of the [Lebanese] Labour Law [that]
excludes domestic workers from its scope of application thereby depriving them of a
range of critical labour protections and making them vulnerable to all forms of
exploitation’.16 The Committee recommended that Lebanon should ‘speedily enact the
draft law regulating the employment of domestic workers’.17 The same

14
On the work of foreigners in general, see William Oualid, ‘The Occupational Distribution and the
Status of Foreign Workers in France’ (1929) 20 International Labour Review 161; Sudargo Guatama
and Robert Hornick, ‘The Employment of Foreigners in Indonesia’ (1987) 29 Malaya Law Review
337; Elmar Honekopp, ‘Non-Germans on the German Labour Market’ (2003) 5 European Journal of
Migration and Law 69; Paul Schoukens and Danny Pieters, ‘Illegal Labour Migrants and Access to
Social Protection’ (2004) 6 European Journal of Social Security 229; Gaye Yildiz, ‘Foreign Workers in
Turkey, Their Rights and Obligations Regulated in Turkish Labour Law’ (2007) 9 European Journal of
Migration and Law 207; K Calitz, ‘Globalisation, the Development of Constitutionalism and the
Individual Employee’ (2007) 10 Potchefstroom Electronic Law Journal 1; Dawn Norton, ‘In Transit:
The Position of Illegal Foreign Workers and Emerging Labour Law Jurisprudence’ (2009) 30
Industrial Law Journal 66.
15
Concluding comments of the Committee on the Elimination of Discrimination against Women:
Lebanon: UN Doc. CEDAW/C/LBN/CO/3, 8 April 2008.
16
ibid, para 30.
17
ibid, para 31. It is to be noted the present author has engaged with ILO in the development of the
draft law relating to the rights of domestic workers in Lebanon in the years 2006-2008, during his work
as Human Rights Officer at the UN Office of the High Commissioner for Human Rights in Beirut.

3
Journal of Islamic State Practices in International Law

recommendation, mutatis mutandis, applies to Palestinian labour law. In the opinion


of the present writer, until the adoption of a special protection regime for domestic
workers, domestic workers should benefit from the labour law at the same footing of
all other workers. This conclusion is based on the logic that labour law constitutes the
general law that fills in the gap in the cases of lack of special law that is supposed to
establish a more favorable legislative protection for this group of workers.

The 2000 Labour Law can be modified by the mere removal of its article 3(2) to bring
domestic workers to that law’s proper. The goal might alternatively be achieved by
enacting the regulation referred to in the same paragraph. This regulation should give
domestic workers all the rights enjoyed by ordinary workers as set out in the labour
law in addition to, probably, particular protection measures for domestic workers.18 At
this point, Palestine would approach the boundaries of the recent Convention
concerning Decent Work for Domestic Workers of 16 June 2011.19

Regarding the mechanisms of protection for workers, as indicated in article 6(2) of the
Covenant, the labour law adopted a set of techniques. It considered its labour
guarantees as minimum rights that cannot be derogated. In cases of derogation by
contracts or internal regulations of any installation, the law prevails in favor of the
worker.20 The law created ‘Employment Policy Committee’, composed of workers,
employers and the government. The Committee is vested with the mandate to

18
ILO, ‘Employment and Conditions of Domestic Workers in Private Households: An ILO Survey’
(1970) 102 International Labour Review 391; Paul Benjamin, ‘The Contract of Employment and
Domestic Workers’ (1980) 1 Industrial Law Journal 187; Elize Delport, ‘The Legal Position of
Domestic Workers: A Comparative Perspective’ (1992) 25 Comparative and International Law
Journal of Southern Africa 181; Alexandra Myers and Jamila Badat, ‘The Employment Position of
Domestic Workers’ (1994) 2 Juta’s Business Law 125; Khaled Beydoun, ‘The Trafficking of Ethiopian
Domestic Workers into Lebanon: Navigating through a Novel Passage of the International Maid Trade’
(2006) Berkeley Journal of International Law 1045; Antoinette Vlieger, ‘Sharia on Domestic Workers:
Legal Pluralism and Strategic Maneuvering in Saudi Arabia and the Emirates’ (2010) 12 Journal of
Islamic Law & Culture 166; N Neetha and Rajni Palriwala, ‘The Absence of State Law: Domestic
Workers in India’ (2011) 23 Canadian Journal of Women and the Law 97; Martha Chen, ‘Recognizing
Domestic Workers, Regulating Domestic Work: Conceptual Measurement, and Regulatory Challenges’
(2011) 23 Canadian Journal of Women and the Law 167; Manuela Tomei, ‘Decent Work for Domestic
Workers: Reflections on Recent Approaches to Tackle Informality’ (2011) 23 Canadian Journal of
Women and the Law 185.
19
ILO No. 189.
20
Art 6.

4
N. M. Adiong – Nation-State in IR and Islam

supervise the law’s proper implementation.21 The law established governmental


‘labour offices’ in various districts to assist, free of charge, workers in finding jobs by
acting as intermediary between employers and jobs seekers.22 It established a
ministerial committee23 to conduct systematic statistics on working forces and
unemployment.24

The law assigned additional rights to workers. It exempted workers cases from court
fees.25 The law obliged each employer to provide the labour office on monthly basis
with detailed information relating to workers status and any vacant positions.26
Installations are obliged to hire at least 5% of workers with disabilities.27 Workers
may prove labour contracts with all means of proof, with or without written
documents.28 The law protects workers against arbitrary dismissal,29 adopted
foundations for collective bargaining,30 and deemed workers financial credits as a
right of lien.31 Strike was recognized with specific procedures and timeline.32 Specific
penalties are introduced to ensure effective implementation of these rules.33

21
Art 7 of the Labour Law. The Labour Policies Committee has been established by the Decision of the
Council of Ministers No. 4 of 17 August 2003, Palestine Gazette No. 49, 17 June 2004, 77. This
decision is a local implementation of the Convention concerning Labour Administration: Role,
Functions and Organisation of 26 June 1978 (ILO No. 150).
22
Arts 8, and 10-12.
23
Decision of the Council of Ministers No. 16 of 24 February 2004 concerning the Rules of Procedure
of the Committee on Unemployment, Palestine Gazette No. 49, 17 June 2004, 220.
24
Art 9. cf Convention concerning Labour Statistics of 25 June 1985 (ILO No. 160).
25
Art 4.
26
Art 12. This can be considered as a form of local application of the Convention concerning
Vocational Rehabilitation and Employment (Disabled Persons) of 20 June 1983 (ILO No. 159).
27
Art 13.
28
Arts 24 and 28.
29
Arts 39-48. cf Convention concerning Termination of Employment at the Initiative of the Employer
of 22 June 1982 (ILO No. 158).
30
Arts 49-53. It seems, given their similar language and substance, that these articles have been drafted
based on the Convention concerning the Application of the Principles of the Right to Organise and to
Bargain Collectively of 1 July 1949 (ILO No. 98); and the Convention concerning the Promotion of
Collective Bargaining of 8 June 1981 (ILO No. 154).
31
Art 85. This article is an application to the Convention concerning the Protection of Workers’ Claims
in the event of the Insolvency of their Employer of 23 June 1992 (ILO No. 173).

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Journal of Islamic State Practices in International Law

Vocational and technical training is regulated by the law ‘to guide workers towards
available work and training opportunities that suit their skills, preferences and
capabilities’ and ‘to produce workers for the development needs, enabling them to
acquire sustainable skills’.34 The law assigned the Ministry of Labour with the role to
formulate vocational training polices in coordination with other ministries to train
youth for market-oriented careers.35 Foundations for vocational training centres,
which are directly run by the Ministry or by private employers, are set. 36 A regulation
was issued whereby procedures to enroll candidates in vocational and technical
programs have been formulated, including conditions of enrolment, application
procedures, and the rights of trainees.37 A licensing system for private employers to
conduct vocational training under the Ministry’s supervision has been put in place.38
The existence of such vocational and technical system brings Palestine to the remits
of article 6(2) of the Covenant that requires States to adopt ‘technical and vocational
guidance and training programmes, policies and techniques’.39

32
Arts 66-67.
33
Arts 131-138.
34
Art 18.
35
Arts 19-20.
36
Art 22.
37
Decision of the Council of Ministers No. 169 of 12 July 2004 concerning the Regulation of
Vocational Instructions and Training, Palestine Gazette No. 53, 28 February 2005, 286.
38
Decision of the Council of Ministers No. 168 of 12 July 2004 concerning the Regulation of the
Conditions and Procedures of the Licensing of Private Vocational Training Institutions, Palestine
Gazette No. 53, 28 February 2005, 283.
39
cf Convention concerning Vocational Guidance and Vocational Training in the Development of
Human Resources of 23 June 1973 (ILO No. 142). For details, see F Billon, ‘Psychological and Human
Aspects of Vocational Training’ (1949) 59 International Labour Review 485; E Rossignol, ‘The
Vocational Training of Adults’ (1957) 76 International Labour Review 325; Erwin Jeangros, ‘Reform
of Vocational Training in Switzerland’ (1959) 80 International Labour Review 373; Gabriel Ducray,
‘Vocational Training Today: The Changing Relationship between Training and Employment’ (1979)
International Labour Review 265; Francoise Caillods, ‘Converging Trends Amidst Diversity in
Vocational Training Systems’ (1994) 133 International Labour Review 241; Martin Carnoy,
‘Efficiency and Equity in Vocational Education and Training Policies’ (1994) 133 International
Labour Review 221; Mark Freedland, ‘Vocational Training in EC Law and Policy - Education,
Employment or Welfare’ (1996) 25 Industrial Law Journal 110; Gisella Gori, ‘External Relations in
Community Education and Vocational Training Policies’ (1998) 5 Maastricht Journal of European and
Comparative Law 25.

6
N. M. Adiong – Nation-State in IR and Islam

Working hours are limited to forty-five a week.40 In ‘hard or dangerous jobs’41 or for
night work,42 working time is reduced one hour per day.43 Workers are given the right
to get one hour of rest each working day and should not work five consecutive hours
without a break.44 Workers may agree with employers on overtime that should not
exceed twelve hours a week;45 with 50% payment as compensation for the added
time.46 Workers have the right to rest at least twenty-four consecutive hours a week.47

Various types of leave have been regulated. Workers have the right to get paid annual
holiday from two to three weeks,48 depending on the difficulty of work;49 paid
national and religious holidays,50 one paid week of ‘educational leave’,51 two paid

40
Labour law of 2000, art 68. This provision is below the standard adopted by the Convention
concerning the Reduction of Hours of Work to Forty a Week of 22 June 1935 (ILO No. 47).
41
The hard and dangerous works were listed in the Decision of the Minister of Labour No. 3 of 6 May
2004 on Works of Reduced Daily Working Hours, Palestine Gazette No. 54, 23 April 2005, 147.
42
The night was defined in art 1 of the labour law: ‘A period of consecutive twelve hours which
compulsorily include the period between eight post meridiem until six ante meridiem’. It is to be noted
that this definition is more favourable to workers than international standards which defines ‘night’ as
‘a period of at least eleven consecutive hours, including the interval between ten o’clock in the evening
and five o’clock in the morning’. See, among other conventions, art 3(3) of the Convention concerning
Employment of Women during the Night of 28 November 1919 (ILO No. 6).
43
Art 69. cf Convention Limiting the Hours of Work in Industrial Undertakings to Eight in the Day
and Forty-eight in the Week of 28 November 1919 (ILO No. 1).
44
Art 70.
45
This is below the eight extra hours fixed in the Convention Limiting the Hours of Work in Industrial
Undertakings to Eight in the Day and Forty-eight in the Week of 28 June 1930 (ILO No. 30).
46
Art 71.
47
Arts 72-73. This provision is taken from art 2(1) of the Convention concerning the Application of the
Weekly Rest in Industrial Undertakings of 17 November 1921 (ILO No. 14); and art 6(1) of the
Convention concerning Weekly Rest in Commerce and Offices of 26 June 1957 (ILO No. 106).
48
Art 74.
49
The two weeks holiday is below the minimum three-week holiday fixed by art 3(3) of the
Convention concerning Annual Holidays with Pay (Revised) of 24 June 1970 (ILO No. 132).
50
Art 75. These holidays were fixed by the Decision of the Council of Ministers No. 16 of 22
December 2003 concerning the Regulation of the Determination of the Paid Religious and Official
Holidays, Palestine Gazette No. 49, 17 June 2004, 161.
51
Art 76. cf Convention concerning Paid Educational Leave of 24 June 1974 (ILO No. 140);
Convention concerning Occupational Health Services of 22 June 1985 (ILO No. 161); Convention
concerning the Promotional Framework for Occupational Safety and Health of 15 June 2006 (ILO No.
187).

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weeks as ‘pilgrimage holiday’,52 fully-paid sick leave for fourteen days and another
half-paid fourteen days a year,53 and incidental leave.54 Women have the right of
maternity leave for ten-weeks,55 breast-feeding break for an hour a day for one year
following the delivery,56 and the right of special leave without pay for one year.57

Such stipulations go in line with article 7(6) of the Covenant that accords workers the
rights to rest, ‘leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays’.

As to the safe and healthy working conditions, the Palestinian labour law dedicated
four sections/chapters entitled ‘occupational safety and hygiene’, ‘child labour’,
‘working women’, and ‘work injuries and occupational diseases’.

Pursuant to article 90 of the labour law, a series of safety measures have been adopted
by executive orders. These measures relate to installing first medical aid kits in
workplaces,58 conducting regular medical checks for workers,59 taking safety
precautions for the construction workers,60 workers in chemical materials,61 working

52
Art 77.
53
Art 79.
54
Art 78.
55
Art 103. This period is below international standards of minimum fourteen weeks according to art
4(1) of the Convention concerning the Revision of the Maternity Protection Convention (Revised),
1952, of 15 June 2000 (ILO No. 183).
56
Art 104.
57
Art 105.
58
Regulations concerning First Aid Medication in Work Installations No. 17 of 22 December 2003,
Palestine Gazette No. 49, 17 June 2004, 163.
59
Decision of the Council of Ministers No. 24 of 22 December 2004 concerning the Regular Medical
Examination, Palestine Gazette No. 49, 17 June 2004, 191.
60
Instructions of the Minister of Labour No. 1 of 20 February 2005 on the Precautions to Protect
Workers in Construction and Engineering Structures, Palestine Gazette No. 55, 27 June 2005, 214.
These instructions correspond to the standards of the Convention concerning Safety and Health in
Construction of 20 June 1988 (ILO No. 167).
61
Instructions of the Minister of Labour No. 2 of 20 February 2005 on the Safety Standards and Levels
of Harmful Chemicals and Dusts Permitted at Workplaces, Palestine Gazette No. 55, 27 June 2005,

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in places that include radioactive materials,62 or in places that comprise massive


noise,63 light,64 heat,65 and working in gas or petroleum stations.66

In line with the Palestinian Child Law No. 7 of 15 August 2004, 67 and the ILO
Convention concerning Minimum Age for Admission to Employment of 26 June
1973,68 article 93 of the labour law forbids the recruitment children under the fifteen
years of age.69 It outlaws hiring children against harmful jobs, work at night,70 or in
remote areas.71 While adopting reduced working hours and more holidays for kids,72

231. cf Convention concerning Safety in the use of Chemicals at Work of 25 June 1990 (ILO No.
1990).
62
Instructions of the Minister of Labour No. 3 of 20 February 2005 on the Annual Permitted Doze for
Workers in Ionic X-Ray, Palestine Gazette No. 55, 27 June 2005, 244. cf Convention concerning the
Protection of Workers against Ionizing Radiations of 22 June 1960 (ILO No. 115).
63
Instructions by the Minister of Labour No. 4 of 20 February 2005 on the Safe Levels the Extremity
of Noise at Workplaces, Palestine Gazette No. 55, 27 June 2005, 247.
64
Instructions of the Minister of Labour No. 5 of 20 February 2005 on the Safe Levels of the
Brightness of Light at Workplaces, Palestine Gazette No. 55, 27 June 2005, 249.
65
Instructions of the Minister of Labour No. 6 of 20 February 2005 on the Safe Levels of Temperatures
at Workplaces, Palestine Gazette No. 55, 27 June 2005, 251.
66
Instructions of the Minister of Labour No. 7 of 20 February 2005 on the Protection of Workers in
Gas and Petroleum Materials, Palestine Gazette No. 55, 27 June 2005, 254. cf Convention concerning
the Protection of Workers against Occupational Hazards in the Working Environment Due to Air
Pollution, Noise and Vibration 20 June 1977 (ILO No. 148); Convention concerning Safety in the Use
of Asbestos of 24 June 1986 (ILO No. 162).
67
Palestine Gazette No. 52, 18 January 2005, 13, art 4.
68
ILO No. 138, art 2(3).
69
cf Richard Anker, ‘The Economics of Child Labour: A Framework for Measurement’ (2000)
139 International Labour Review 257; Yoshie Noguchi, ‘ILO Convention No. 182 on the Worst Forms
of Child Labour and the Convention on the Rights of the Child’ (2002) 10 International Journal of
Children’s Rights 355; Kadriye Bakirci, ‘Child Labour and Legislation in Turkey’ (2002)
10 International Journal of Children’s Rights 55; Joost Kooijmans, ‘The ILO and Its Work against
Child Labour: The Normative Framework and Recent Progress’ (2007) 14 Tilburg Law Review 31;
Jessica Selby, ‘Ending Abusive and Exploitative Child Labour through International Law and Practical
Action’ (2008) 15 Australian International Law Journal (2008); Yoshie Noguchi, ‘20 Years of the
Convention on the Rights of the Child and International Action against Child Labour’ (2010)
18 International Journal of Children’s Rights 515; Nehaluddin Ahmad, ‘Child Labour: Ground
Realities of Indian Labour Laws’ (2011) 37 Commonwealth Law Bulletin 61.
70
cf ILO Convention No. 6.
71
Art 95.
72
Art 96.

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Journal of Islamic State Practices in International Law

the law instructs employers to conduct compulsory medical examinations for


juveniles before start working.73 Employers should post the rules on child labour in
workplaces.74 These rules conform to a number of relevant ILO child standards.75

In addition to maternity leave and breastfeeding, as discussed above, the labour law
incorporated considerable rules for the protection of working women:76 prohibiting
discrimination between men and women with regard to work;77 banning the
recruitment of females in harmful jobs; forbidding employers to task pregnant women
to perform extra working hours; and preventing women from working at night except
when necessary,78 like working in hospitals, airports or the media.79

Lastly, the law provided detailed guarantees, including health insurance and
compensation, for workers against work-related injuries and occupational diseases.80

73
Art 98.
74
Art 94.
75
Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst
Forms of Child Labour of 17 June 1999 (ILO No. 182); Convention concerning Medical Examination
for Fitness for Employment in Industry of Children and Young Persons of 9 October 1946 (ILO No.
77); Convention concerning Medical Examination of Children and Young Persons for Fitness for
Employment in Non-Industrial Occupations of 9 October 1946 (ILO No. 78); Convention concerning
the Restriction of Night Work of Children and Young Persons in Non-Industrial Occupations of 9
October 1946 (ILO No. 79); Convention concerning the Night Work of Young Persons Employed in
Industry of 10 July 1948 (ILO No. 90).
76
See Terry Polson, ‘The Rights of Working Women: An International Perspective’ (1974) 14 Virginia
Journal of International Law 729; Eliane Vogel, ‘Some Suggestions for the Advancement of Working
Women’ (1975) 112 International Labour Review 29; Marie-Claire Seguret, ‘Women and Working
Conditions: Prospects for Improvement’ (1983) 122 International Labour Review 295; Lance Compa,
‘International Labor Standards and Instruments of Recourse for Working Women’ (1992) 17 Yale
Journal of International Law 151; Theresa Amato, ‘Women at Work, Rights at Risk-Toward the
Empowerment of Working Women’ (1992) 17 Yale Journal of International Law 139; Ramni Taneja,
‘Sexual Harassment of Working Women’ (1997) 22 International Legal Practitioner 136;
Judith Martin, ‘Bringing a Critical Gender Lens to Work-Family Balance Issues in the Workplace’
(2004) 67 Saskatchewan Law Review 507; Lucy Williams, ‘The Legal Construction of Poverty:
Gender, Work, and the Social Contracts’ (2011) 22 Stellenbosch Law Review 463; Narjes Mehdizadeh,
‘Gender and Reconciliation of Work and Family in Iran’ (2011) 150 International Labour Review 405.
77
Art 100.
78
Art 101. cf Convention concerning Employment of Women during the Night of 28 November 1919
(ILO No. 4).
79
Decision of the Council of Ministers No. 14 of 22 December 2003 concerning the Work of Women
Overnight, Palestine Gazette No. 49, 17 June 2004, 152.
80
Arts 116-128.

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Subjecting the foregoing measures to penalties in case of noncompliance implies the


significance that the law attaches to the enforcement of labour standards.81

From this review of the labour law and its executive measures, one may conclude that
the Palestinian labour system conforms to article 7(b) of the Covenant relating to ‘safe
and healthy working conditions’. This, in turn, brings Palestine to an effective
compliance with the Convention concerning Occupational Safety and Health
Convention and the Working Environment of 22 June 198182 and the Convention
concerning the Prevention of Major Industrial Accidents of 22 June 1993.83

Minimum wage for workers has been has been dealt with in article 89 of the labour
law which states that the ‘salary of the worker may not be less than the minimum limit
which is legally fixed’.84 The noncompliance with this article has lasted for thirteen
years since the adoption of the labour law due to the fact that fixing the minimum
wage has been assigned to the ‘Committee of Wages’, which is composed of
representatives from the government, workers and employers.85 The Committee was
supposed to propose the minimum wage for workers to be adopted by the Council of
Ministers.86 While the Committee itself has been formed,87 the decision of fixing the

81
Arts 134 and 136.
82
ILO No. 155.
83
ILO No. 174.
84
cf Theodor Brauer, ‘The Minimum Wage’ (1925) 11 International Labour Review 682; Gerald Starr,
‘Minimum Wage Fixing: International Experience with Alternative Roles’ (1981) 120 International
Labour Review 545; Simon Deakin and Frank Wilkinson, ‘The Law and Economics of the Minimum
Wage’ (1992) 19 Journal of Law and Society 379; Deryck Beyleveld and Charlotte Villiers, ‘A General
Right to a Minimum Wage in English Law: An Argument from Generic Consistency’ (1997) 17 Legal
Studies 234; Paul Skidmore, ‘Enforcing the Minimum Wage’ (1999) 26 Journal of Law and Society
427; Joel Butler, ‘Minimum Wage Laws and Wage Regulation: Do Changes to a Minimum Wage
Affect Employment Levels’ (2006) 29 University of New South Wales Law Journal 181; Haroon
Bhorat, Ravi Kanbur and Natasha Mayet, ‘Minimum Wage Violation in South Africa’ (2012) 151
International Labour Review 277.
85
Labour Law of 2000, art 86.
86
Art 87(2).
87
Decision of the Council of Ministers No. 46 of 22 March 2004 concerning the Formation of the
Committee of Wages, Palestine Gazette No. 52, 18 January 2005, 120.

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wage has been delayed.88 The lack of such wage had led to the exploitation and for
treating workers differently for the same job, contrary to article 6 of the Covenant that
gives the right for everyone to enjoy ‘[f]air wages and equal remuneration for work of
equal value without distinction of any kind’.89 On 7 October 2012, however, the
Committee of Wages fixed the minimum wage at 1450 New Israel Shekels (about 400
United States Dollars) was finally fixed after long negotiations process between the
representatives of workers and employers;90 this minimum wage was started as of 1
January 2013.91 This adoption might pave the way for Palestine to become party to
the Convention concerning Minimum Wage Fixing, with Special Reference to
Developing Countries of 22 June 1970.92

As discrimination against women in workplaces, particularly with regard to the lower


salaries for comparing with men, does exist in Palestine; the legislator should adopt
measures to ensure equality between sexes.93 Such measures may include, first,
introducing specific provision on the equal wages between men women, not leaving
the rule subject to the general wording of article 100 of the law on the general
equality; and, secondly, the law should punish gender discrimination regarding wages
with appropriate penalty, such as high fines or even imprisonment, with retroactively
compensation for the woman who suffers from such discrimination for the entire
period in which she serves the employer. By adopting such legislative measures,
Palestine would accord to article 7(a)(i) of the Covenant that requires, in part, that
‘women being guaranteed conditions of work not inferior to those enjoyed by men,
with equal pay for equal work’. That would facilitate the compliance with the ILO
Convention concerning Discrimination in Respect of Employment and Occupation of

88
It is to be noted that art 57 of the labour law gave the possibility of fixing minimum wages through
agreement that can be reached between workers and employers via collective bargaining.
89
Art 6(a)(i).
90
General Union of Palestine Workers’ Associations, Press Release, Nablus, 8 October 2012.
91
Maan News, The Minimum Wage is Finally Set after Long Process, Bethlehem, 9 October 2013.
92
ILO No. 131.
93
‘Report on the Elimination of Discrimination against Working Women [in Palestine]’, Al-Ayyam,
No. 5476, 12 April 2011, 20.

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25 June 195894 and, more specifically, the Equal Remuneration Convention of 29 June
1951.95

The labour law established an inspection mechanism affiliated with the Ministry of
Labour, called ‘Labour Inspection Commission’, with the task of ensuring compliance
with labour rules.96 The commission has been vested with police power and is given
the competence to receive complaints and to conduct investigations.97 It may enter
workplaces, interview workers, request or open files and records, and test materials
used by workers to ensure compliance with health standards, and remove unhealthy
objects from places of work.98 Anyone who resists the labour inspectors is punishable
by the removal of the contravention as well as with a fine.99

The law does not guarantee the effective performance of inspectors, however. It does
not require, for example, hiring specific number of inspectors to meet the actual
working forces existing in each district. Nor it stipulated specific qualifications for
inspectors rather than ‘proper academic and professional qualifications’.100 One
expects that the numbers, qualifications and the rules of procedure of inspectors
would be materialized by enacting bylaws, but the Ministry has not issued such
bylaws as the law requires.101 And, unlike a number of its other provisions, the labour
law does not set any penalties to ensure compliance with the stipulations relating to
labour inspection mechanism.

Hence the efficiency of the labour inspectors is doubtful. One would even doubt the
actual respect for a number of other standards enumerated in the labour law itself and

94
ILO No. 111.
95
ILO No. 100.
96
Art 107.
97
Art 110.
98
Art 111.
99
Art 135.
100
Art 107(1).
101
In art 111(4) and art 115.

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Journal of Islamic State Practices in International Law

in articles 6-7 of the Covenant. It is recommended that the bylaws of the inspection
mechanism are enacted. Such by-laws should contain specific qualifications of
inspectors; provide basis for hiring a number of inspectors proportionate to labour
forces existing in each district; and adopting measures and penalties against the
inspectors themselves in cases of non-compliance with the inspection processes.
Palestine would then satisfy the rules set forth in the Convention concerning Labour
Inspection in Industry and Commerce of 11 July 1947. 102 This Convention requires
that the labour inspectors to be ‘duly qualified technical experts and specialists,
including specialists in medicine, engineering, electricity and chemistry’ (article 9);
that to the ‘number of labour inspectors shall be sufficient to secure the effective
discharge of the duties of the inspectorate’ (article 10); and that the labour inspectors
should be furnished with ‘local offices, suitably equipped in accordance with the
requirements of the service, and accessible to all persons concerned’, ‘the transport
facilities necessary for the performance’, and ‘to reimburse to labour inspectors any
travelling and incidental expenses which may be necessary for the performance of
their duties’ (article 11).103

In order to be fully consistent with international labour standards, Palestine needs to


adopt further rules, such as the protection against unemployment,104 social security
(e.g. old-age benefit and invalidity benefit),105 compulsory health insurance,106
protection for specific groups of workers, including workers in fishing sector,107

102
ILO No. 81.
103
For more details, see W Symons, ‘Some Problems of Labour Inspection in European Countries’
(1953) 68 International Labour Review 47; Thomas Graham, ‘Some Problems of Labour Inspection in
Underdeveloped Countries’ (1954) 69 International Labour Review 547; David Weil, ‘A Strategic
Approach to Labour Inspection’ (2008) 147 International Labour Review 349; Roberto Pires,
‘Promoting Sustainable Compliance: Styles of Labour Inspection and Compliance Outcomes in Brazil’
(2008) 147 International Labour Review 199; Razvan Popescu, ‘Current Issues Regarding Labour
Inspection’ (2012) ACTA Universitatis Danubius Juridica 101.
104
Convention concerning Employment Promotion and Protection against Unemployment of 21 June
1988 (ILO No. 168).
105
Convention concerning Minimum Standards of Social Security of 28 June 1952 (ILO No. 102).
106
Convention concerning Medical Care and Sickness Benefits 25 June 1969 (ILO No. 130).
107
Convention concerning Work in the Fishing Sector of 14 June 2007 (ILO No. 188).

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seafarers,108 agriculture workers,109 dock works,110 nursing personnel,111 hotel and


restaurant workers,112 migrant workers,113 home work.114 The lack of specific
regularization regarding these workers might lead to the non-applicability of labour
law for some of working sectors and, as a result, to the noncompliance of the
Palestinian law with the labour rights enshrined in articles 6 and 7 of the Covenant.

For the purpose of the right to work under the Covenant, however, the foregoing
Palestinian standards would suffice. After joining the Covenant, the Committee on
Economic, Social and Cultural Rights (CESCR) would be in a position to assess the
scope of Palestine’s legal development in the field of labour rights and recommend, in
its concluding observations, relevant actions to be taken by Palestine and international
organizations, particularly the ILO, to provide technical support in this field.

Article 8(3) of the Covenant relates to labour unions. Assuming that it would be
interested in becoming a party to the Convention concerning Freedom of Association
and Protection of the Right to Organize of 9 July 1948,115 which is mentioned in the
said paragraph 3, Palestine would be obliged to give particular rights for associations
of labour unions in accordance with the Convention. Palestine should give workers
and employers ‘the right to establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without previous

108
Convention concerning Minimum Standards in Merchant Ships of 19 October 1976 (ILO No. 147).
109
There are a number of conventions relating to agriculture, including: Convention concerning
Workmen’s Compensation in Agriculture of 12 November 1921 (ILO No. 12); Convention concerning
Labour Inspection in Agriculture of 25 June 1969 (ILO No. 129); Convention concerning Safety and
Health in Agriculture of 21 June 2001 (ILO No. 184).
110
Convention concerning the Social Repercussions of New Methods of Cargo Handling in Docks of
25 June 1973 (ILO No. 137).
111
Convention concerning Employment and Conditions of Work and Life of Nursing Personnel of 21
June 1977 (ILO No. 149).
112
Convention concerning Working Conditions in Hotels, Restaurants and similar Establishments of 25
June 1991 (ILO No. 172).
113
Convention concerning Migration for Employment of 10 July 1949 (ILO No. 97).
114
Convention concerning Home Work of 20 June 1996 (ILO No. 177).
115
ILO No. 87.

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authorisation’.116 ‘Workers’ and employers’ organisations shall not be liable to be


dissolved or suspended by administrative authority’.117 Nothing in the labour law
prevents workers’ or employers’ associations to form unions. Article 53(3) of the
labour law that deals with collective bargaining between union of employers
associations and union of workers associations implies that workers or employers may
establish unions.

The labour law defined the term ‘association’ as ‘any professional organization in
accordance with the law of unions’.118 This law of unions has not been enacted yet.
Article 8(3) of the Covenant is most suitably linked to this to-be-enacted ‘law of
unions’. If the Palestinian legislator would be interested to conform to global human
rights and labour standards, unions may not be subjected to the general restrictions of
the law of associations.119 Unions should be ruled in accordance with the said 1948
Convention that does not allow any authority to intervene in the affairs of labour
unions, including the no need to obtain governmental permissions for unions
operations and the inability of the authorities to restrict or dissolve such unions.

It should be finally noted that the Palestinian Labour Law of 2000 has repealed the
Jordanian Labour Law No. 21 of 14 May 1960 that has been applicable in the West
Bank.120 The latter law included detailed provisions on the workers and employers
unions.121 As just noted, the 2000 law came silent regarding such unions. It only
referred to a law that has not been adopted yet. This left labour unions without clear
regulation, a step backward in comparison with the over forty-year older Jordanian
law. In the Gaza Strip, however, labour unions are regulated by the Labour Unions
Order No. 331 of 24 October 1954,122 which has been enacted under the Egyptian

116
Convention concerning Freedom of Association and Protection of the Right to Organize, art 2.
117
ibid, art 4.
118
Art 1.
119
Law No. 1 concerning Charitable Associations and Civil Society Organizations of 16 January 2000,
Palestine Gazette No. 32, 29 February 2000, 71.
120
Jordan Official Gazette No. 1491, 21 May 1960, 511.
121
Arts 68-89.
122
Palestine Gazette No. 41, 15 November 1954, 1039.

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rule. This law is still applicable in Gaza as its provisions were not included in the
Gazan Labour Law No. 16 of 14 November 1964123 that has been applicable under
Egyptian administration. The 1954 law escaped being repealed by the 2000 law that
revoked the said Gazan labour law. This situation led to different applicable rules on
labour unions in Gaza and the West Bank.124 Such odd situation should be changed by
adopting a modern law on labour unions based on the aforesaid 1948 ILO
Convention.

3. Social Security
Article 9 of the ICESCR relates to social security. Its reads: ‘The States Parties to the
present Covenant recognize the right of everyone to social security, including social
insurance’. In this connection, article 22 of the 2003 Palestinian Basic Law provided
that: ‘1. Social, health, disability and retirement insurance shall be regulated by law.
Maintaining the welfare of families of martyrs, prisoners of war, the injured and the
disabled is a duty that shall be regulated by law. The National Authority shall
guarantee these persons education, health and social insurance’.125

The most relevant legislation to social security in Palestine relates retirement. This
legislation includes: General Retirement Law No. 7 of 26 April 2005, 126 the Law of

123
Palestine Gazette, 15 December 1964, 1859.
124
On the recent juridical division between the Gaza Strip and the West Bank, see Mutaz Qafisheh,
‘Legislative Drafting in Transitional States: The Case of Palestine’, International Journal for
Legislative Drafting and Law Reform, London, 2013 (forthcoming).
125
See in general Marius Oliver and Linda van Rensbug, ‘Protection and Enforcement of the Right to
Social Security’ (2000) 4 Law, Democracy and Development 87; Eml Strydom, ‘Essential Social
Security Law’ (2002) Journal of South African Law 841; Tamara Walsh, ‘Breaching the Right to
Social Security’ (2003) 12 Griffith Law Review 43; Bent Greve, ‘When is Choice Possible in Social
Security’ (2003) 5 European Journal of Social Security 323; Wouter van Ginneken, ‘Extending Social
Security: Policies for Developing Countries’ (2003) 142 International Labour Review 277;
Adriette Dekker and Shani Cronje, ‘Can Social Security Play a Role in Black Economic
Empowerment’ (2005) 17 South African Mercantile Law Journal 19; Neville Harris, ‘Complexity, Law
and Social Security in the United Kingdom’ (2006) 8 European Journal of Social Security 145;
Klaus Kapuy, ‘Social Security and the European Convention on Human Rights: How an Odd Couple
Has Become Presentable’ (2007) 9 European Journal of Social Security 221; Maria Korda and Frans
Pennings, ‘The Legal Character of International Social Security Standards’ (2008) 10 European
Journal of Social Security 131; George Katrougalos, ‘Constitutional Limitations of Social Security
Privatisation: A Human Rights Approach’ (2010) European Journal of Social Security 16; L Mpedi,
‘The Evolving Relationships between Labour Law and Social Security’ (2012) Acta Juridica 270.
126
Palestine Gazette No. 55, 27 June 2005, 16.

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Insurance and Pensions of the Palestinian Security Forces No. 16 of 28 December


2004.127 These two laws cover public servants with compulsory retirement benefits.
The Palestinian Parliament attempted to pass a new law that introduces social security
benefits to private sector workers by adopting the Social Insurances Law No. 3 of 19
October 2003.128 This instrument incorporated particular insurances for the workers in
the non-governmental sector equivalent to public employees, including benefits for
disabilities resulting from work incidents, old-age, natural disabilities and death.
However, this law was subsequently repealed by the Decree-Law No. 6 of the
Palestinian President on 23 August 2007,129 leaving private sector workers without
social security benefits. Yet the Council of Ministers, in the absence of the
Parliament, enacted Regulations No. 16 of 9 August 2010 whereby the Council
extended the benefits of the General Retirement Law to workers in non-governmental
and private sectors.130

The applicable law in Palestine gives the retirement rights to the female widow of the
man who dies, as a general rule. Women cannot pass retirement rights to their widow
husbands. This rule is drawn from a number of legislation relating to retirement.
Article 36 of the said Law of Insurance and Pensions of the Palestinian Security
Forces of 2004 provides that the ‘persons entitled to pension . . . shall be 1. The
widow [in Arabic ‘armalah’, meaning ‘female widow’] or widows of the beneficiary .
. .’. Similar provisions can be found in article 32 of the 2005 General Retirement Law
and the Regulation relating to the Retirement of Lawyers No. 1 of 1 January 1998. 131
Such rules imply that women are the dependent on men and that the man who works,
not the woman. This goes against the reality which proves that about 20% of the
workforce in Palestine is composed of women.132 It denies women from their

127
Palestine Gazette No. 53, 28 February 2005, 94.
128
Palestine Gazette No. 48, 29 January 2004, 7.
129
Palestine Gazette No. 73, 13 September 2007, 21.
130
Decision of the Council of Ministers concerning the Benefit of the Employees of Local Councils,
Civil Society Institutions, Private Sector, Employees and Members of Professional Institutions from the
General Retirement Law, Palestine Gazette No. 89, 1 January 2011, 63.
131
Palestine Gazette No. 25, 24 September 1998, 58.
132
Palestinian Central Bureau of Statistics, Survey of Workforces in Palestine (Ramallah, 2012), 24.

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retirement rights despite the fact that women are obliged to pay retirement dues at the
same footing with men. Such provisions should be changed to guarantee the equality
between men and women with regard to retirement rights and obligations in order for
Palestine to be consistent with human rights and labour standards elaborated herein.

Other pieces of legislation relating to social security do operate in Palestine. These


include, inter alia, the support by the State to the following marginalized categories:
orphans,133 people with disabilities,134 the poor,135 alimony for dependants whose
head of family is unable to provide,136 prisoners,137 liberated prisoners from Israeli
jails,138 unemployed persons,139 families of those killed, injured or imprisoned by the
Israeli occupying forces and persons whose homes are demolished by Israel.140

133
Law on the Administration and Development of Orphans’ Properties Institution No. 14 of 28
September 2005, Palestine Gazette No. 60, 9 November 2005, 22.
134
Rights of People with Disabilities Law No. 4 of 9 August 1999, Palestine Gazette No. 30, 10
October 1999, 36. This law includes the following social rights for the benefit of handicapped people:
rehabilitation programmes at low or no cost (art 5), exemption from taxes, customs and fees (art 6),
free health care (art 10), and requiring buildings and policies to meet the needs of persons with special
needs (arts 12-17). See also Decision of the Council of Ministers No. 50 of 23 May 2006 on the
Establishment of the Disabled Fund for Lending and Employment at the Ministry of Social Affairs,
Palestine Gazette No. 68, 7 March 2007, 97.
135
Law concerning the Ministry of Social Affairs No. 14 of 23 February 1956, Jordan Official Gazette
No. 1265, 17 March 1956, 1367, art 4; Decision of the Council of Ministers No. 96 of 10 September
2007 concerning the Exemption of Children of Poor Families and Children of Unemployed Persons
from School Fees, Palestine Gazette No. 77, 9 October 2008, 156; Decision of the Council of
Ministers No. 206 of 4 December 2004 concerning the Establishment of the Committee of the
Administration of Aids to Citizens in Need, Palestine Gazette No. 54, 23 April 2005, 138.
136
Law of Alimony Fund No. 6 of 26 April 2005, Palestine Gazette No. 55, 27 June 2005, 10.
137
Decision of the Council of Ministers No. 21 of 28 June 2010 on Securing the Needs of Prisoners in
Israeli Custody, Palestine Gazette No. 90, 30 March 2011, 98; Regulations No. 23 of 28 June 2010
concerning the Prisoners Salary, Palestine Gazette No. 90, 30 March 2011, 103.
138
Decision of the Council of Ministers No. 19 of 4 January 2010 concerning the Exemption of
Liberated Prisoners from School and University Tuition, Fees of Health Insurance and Rehabilitation
Programmes, Palestine Gazette No. 90, 30 March 2011, 93.
139
Decision of the Council of Ministers No. 157 of 6 September 2005 concerning the Remunerations
for the Aid of Unemployment and Temporary Employment, Palestine Gazette No. 64, 31 May 2006,
306; Presidential Decree concerning the Establishment of the Fund for Employment and Social
Protection for Workers No. 9 of 20 May 2003, Palestine Gazette No. 46, 16 August 2003, 17.
140
Decision of the Council of Ministers No. 127 of 18 September 2006 concerning the Compensation
for Demolished Houses, Palestine Gazette No. 69, 27 April 2007, 192.

19
Journal of Islamic State Practices in International Law

From the above survey in the applicable legislation one may conclude that Palestine
complies with article 9 of the Covenant. Local legislation is not only trying to meet
global standards, for instance regarding pensions and social assistance to disabled
persons; it is also apt to the particular social challenges resulting from the Israeli
occupation of the Palestinian territory, as legislation lays foundations for assisting
families of persons killed by Israel and those whose homes are demolished.

Yet many of the legislative instruments on the issues mentioned above are of
executive nature and operate on ad hoc basis. Unlike parliamentary law that get
thorough discussion as part of the legislative process, executive orders might cease to
exist or be withdrawn by the individual will of the issuing official. Such legislation is
ought to be systematically regularized to ensure ongoing benefits to the lives of those
impacted. Palestinian legislation could adopt more effective measures that ensure
social benefits as in the case of developed countries, such as the benefits for old
people, unemployed, sick, homeless, refugees, mothers, widows, and orphans. The
Palestinian legislator is called upon to reactivate the 2003 Social Insurances Law.
Each State develops its social security according to its policies and economic abilities.
Although more can be done, it can be generally said that Palestinian legislation has
adopted at least the minimum standards relating to social security that meet the
already minimal requirements of the ICESCR concerning social security.

4. Conclusion
While Palestinian legislation generally satisfies the obligations relating to the right to
work and social security under the International Covenant on Economic, Social and
Cultural Rights, Palestine has still long way to go in order to bring its legal system in
conformity with international labour standards. The lack of respect to labour
standards, as the special law (lex specialis) with regard to the right to work, might
hinder the effective compliance with that right as embedded in the Covenant which
forms the general human rights law (lex generalis) in this respect. Given the
prevailing state of affairs, it is safe to conclude that the technical readiness of
Palestine to become a full member of the International Labour Organization is
doubtful. Should it be interested in joining the ILO as a full member and replacing the
current observer status, Palestine is called upon to undertake systematic reform

20
N. M. Adiong – Nation-State in IR and Islam

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