E/1990/6/Add.32

page 53

UNITED
NATIONS / E
Economic and Social
Council / Distr.
GENERAL
E/1990/6/Add.32
16 October 2001
Original: ENGLISH

Substantive session of 2002

implementation of the international covenant on

economic, social and cultural rights

Second periodic reports submitted by States parties under

articles 16 and 17 of the Covenant

Addendum

Israel*

[3 August 2001]

* The initial report submitted by the Government of Israel was considered by the CommitteeonEconomic, Social and Cultural Rights at its nineteenth session in 1998 (see E/C.12/1998/SR.31-33 and concluding observations E/C.12/1/Add.27, additional information submitted by the Government of Israel (E/1989/5/Add.14) was considered by the Committee at its twenty-sixth (extraordinary) session in 2001).

GE.01-45134 (E) 191201

CONTENTS

Paragraphs Page

Introduction 1 - 8 3

Article 1 9 4

Article 2 10 - 66 4

Article 3 67 - 92 23

Article 6 93 - 164 29

Article 7 165 - 184 49

Article 8 185 - 204 57

Article 9 205 - 239 63

Article 10 240 - 278 71

Article 11 279 - 392 77

Article 12 393 - 428 116

Article 13 429 - 504 124

Article 15 505 - 541 166

Introduction

1.  Israel ratified the International Covenant on Economic, Social and Cultural Rights (hereafter- the Covenant) in August 1991. The Covenant entered into force with respect to Israel on 3 January 1992. The following is the second periodic report submitted by Israel pursuant to articles 16-17 of the Covenant and of the guidelines issued by the Committee on Economic, Social and Cultural Rights.

2.  The present report presents information pertaining to changes that have occurred since the initial report submitted by Israel in November 1997 (hereafter - the initial report). This information relies on the same sources that were used for the initial report. This report follows the initial report’s editing. It reflects all data available as of August 2000.

3.  Mr. Michael Atlan, Adv., has prepared the report with the help of Mr. Guy Lurie, on behalf of the Ministry of Labour and Social Affairs and under the supervision of the Ministry of Justice and the Ministry of Foreign Affairs.

4.  Annexed to the report are recent specialized publications and legal texts, including a comprehensive and updated version of all labour laws in Israel (annex I).*

Applicability of the Covenant to the West Bank and the Gaza Strip

5.  In its concluding observations on Israel’s initial report, the Committee questioned Israel’s position regarding the applicability of the Covenant to the West Bank and the Gaza Strip. Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction. This position is based on the well-established distinction between human rights and humanitarian law under international law. Accordingly, in Israel’s view, the Committee’s mandate cannot relate to events in the West Bank and the Gaza Strip, inasmuch as they are part and parcel of the context of armed conflict as distinct from a relationship of human rights.

6.  Furthermore, pursuant to the Israeli-Palestinian Interim Agreement of 1995,[1] and the consequent documentation and undertakings of the Palestine Liberation Organization,[2] the overwhelming majority of powers and responsibilities in all civil spheres (including economic, social and cultural), as well as a variety of security issues, have been transferred to the Palestinian Council, which in any event is directly responsible and accountable visàvis the entire Palestinian population of the West Bank and the Gaza Strip with regard to such issues. Inlight of this changing reality, and the jurisdiction of the Palestinian Council in these areas, Israel cannot be internationally responsible for ensuring the rights under the Covenant in these areas.

* Texts of the annexes can be consulted in the files of the secretariat.

7.  The fact that the Palestinian Council does not represent a State, does not, in itself, preclude its responsibility in the sphere of human rights protection. In fact, this is also evident under articleXIX of the Israeli-Palestinian Interim Agreement on the West Bank and the GazaStrip, according to which the Palestinians have taken it upon themselves to exercise their powers and responsibilities “with due regard to internationally accepted norms and principles ofhuman rights and the rule of law”. Similarly, under article II (c) (4) of the Wye River Memorandum, the Palestinian Police is obliged “to exercise its powers and responsibilities with due regard to internationally accepted norms of human rights and the rule of law, and be guided by the need to protect the public, respect human dignity and avoid harassment”.

8.  In this respect, it should be noted that without prejudice to its basic position, Israel has been willing - and, in fact, has done so in the context of its oral presentation of its initial periodic report - to cooperate with the Committee and provide relevant information to the extent possible, with regard to the exercise of those powers and responsibilities, which according to the agreements reached with the Palestinians, continue to be exercised by Israel in the West Bank and the Gaza Strip.

Article 1 of the Covenant: self-determination

9.  No change has occurred on this subject since Israel’s initial report.

Article 2 - general principles: State responsibility, non-discrimination

and international cooperation

1. State responsibility

10.  Economic, social and cultural rights continue to be widely recognized in Israel, whether directly by law, regulations or case law, or indirectly by administrative programmes.

11.  The trend of legalization of welfare in Israel, described in the initial report, has continued since then. The two best examples are the Equal Rights for People with Disabilities Law, 1998 (the English translation is provided in annex II;* additional discussion on this Law is included below under this report on article 2); the Infants at Risk Law, 2000 (there is still no English translation available at present; see further on this law under article 10).

Economic, social and cultural rights as constitutional rights

12.  Israel’s draft Basic Law: Social Rights, which was reported in Israel’s initial report, is no longer pending in the Knesset. The future of such legislation is still not clear. However, the rights protected by the Covenant are now part of the ongoing public debate and appear in regular curricula of law faculties. Moreover, the economic, social and cultural rights are more and more recognized as constitutional rights in the jurisprudence of Israel’s Supreme Court. We would

like to point out two basic approaches to this matter.

* Texts of the annexes can be consulted in the file of the secretariat.

13.  The first is an interpretative approach. In the initial report, mention was made that JusticeAharonBarak, the Supreme Court President, had given his opinion in academic writings that the “right to decent conditions of living” should be construed as being included in the BasicLaw: Human Dignity and Liberty (Barak, 1994, pp.416-417). It was also stated that no case on this subject had yet been brought before the Supreme Court. This interpretative approach is now apparent in a few recent judicial decisions, even though there is still no binding precedent supporting it.

14.  In a recent judgement, delivered on 19 March 2001 by the Supreme Court in the case of Gamzov.Ishayahu (REC 4905/98) the Court used the said approach for the purpose of interpreting the Enforcement of Judgments Law - 1967. This law grants discretionary power to spread alimony payments when necessary due to “special reasons”. The court ruled that these “special reasons” include protecting the “hard core” of the right to a minimal standard of living, the right to adequate food and the right to proper health care of both the debtor and the holder of the right to alimony. The court added (holding with the said “interpretive approach”) that the “hard core” of these rights is protected by the Basic Law: Human Dignity and Liberty.

15.  In a National Labour Court Case (1997/4-265) Hassid v. The National Insurance Institute(NII), the National Labour Court adjudicated a homeless person’s claim of entitlement to income benefits from the NII, despite his inability to support the application with details of his address, which are necessary to verify the authenticity of the application. The Court interpreted the Basic Law: Human Dignity and Liberty as encompassing within its scope of protection a commitment on the part of the State to ensure a minimum standard of living, and held that the Income Support Law must be read in light of this Basic Law. The Court thus ruled that the NIIwrongfully rejected the plaintiff’s application and ordered it to reprocess the application, notwithstanding the incompleteness of the information.

16.  In C.A. 3275/98, Welfare Officer, the City of Holon v. Anonymous, the Tel Aviv DistrictCourt reviewed a request by the social services for an Order to perform an operation on a two-year-old girl. Her mother, a Moldavian citizen, who left Israel shortly after giving birth to the girl, had deserted the girl. The Court held that by accepting the Convention on the Rights of the Child, the State took upon itself the obligation to provide children with the highest attainable level of health, and ordered that a medical procedure necessary to improve the girl’s quality of life be performed regardless of her nationality.

17.  A second approach recognizes economic, social and cultural rights as autonomous constitutional values. This path was taken in a decision issued in 1998 (H.C.450/97), Tnuffah, Manpower Services and Maintenance Ltd. v. Ministry of Labour and Social Affairs, in which the Supreme Court upheld the constitutionality of legislation requiring manpower contractors to deposit with the Ministry of Labour and Social Services a bank guaranty to ensure the fulfilment of their obligations visàvis their employees. The Court held that while this requirement places limits on the freedom of occupation, such a restriction is necessary and appropriate. In the words of the President of the Court, Justice Aharon Barak (at para. 12):

Defending workers’ rights is a proper purpose; guaranteeing workers’ social security is a proper purpose; observance of a statutory legal framework to protect workers is a proper purpose. Indeed, protection of workers’ rights is of fundamental social importance in our society. For constitutional purposes it is a “proper purpose”. The respondents have been correct to observe that there is a vital public need in regulating the business of manpower contractors and defending the interests of a particularly weak sector of employees.

18.  Justice Dorner, went on, in the same case, to call for judicial restraint while protecting the rights to property and freedom of occupation, whenever this has to be balanced against the protection of basic workers’ social rights. She added:

… [We] are dealing with social legislation intended to protect workers. In regard to such legislation, the Court must exercise extreme caution not to harm workers’ rights in order to satisfy individual rights such as freedom of occupation and the right to property.

19.  Such duality of approaches is clearly manifested in the wording of Judge ElishevahBarak, currently Deputy President of the National Labour Court. She had already written in a decision issued in 1996, while sitting as a Regional Labour Court Judge, that:

The right to work is also one of the basic human rights and as long as the State of Israel has no Basic Law: Social Rights, one should hold these individual rights as included in human dignity… This right derives from the notion that human dignity presupposes a minimal human existence… The right is, in my opinion, included in the term “human dignity” in Basic Law: Human Dignity and Liberty, because even though this is a social right, it is a social right of the individual, and not of the public. This right also derives from Basic Law: Freedom of Occupation. This right includes not only the right not to live in the street and not to starve. Human dignity is also impaired when one is forced to inaction, even if one is not starving while earning wages.

(Taba 54/3-289 Dr. Orly Peret v. Dr. Amitzur Farkash)

20.  Additional and more specific judicial decisions of this nature can be found in subsequent parts of this report.

21.  Lastly, mention should be made of a new section added to the Equal Rights for Women Law, 1951 (sect.6), in an amendment enacted in April 2000, according to which: “Any woman and man has the equal right to an existence in human dignity, including equality at work, in education, health, housing, environmental protection and social welfare.”

22.  This provision clearly assumes the existence of social rights in general, and of the right to decent living conditions in particular, even though it directly prescribes only a norm of equality.

2. Non-discrimination

23.  A detailed account of recent application of the non-discrimination principle is given in each chapter of this report. There are mentioned here only issues of general and broad implications. Special attention has been given to the Committee’s concerns and observations inits concluding observations on Israel’s initial report.

Israel and the law of return

24.  In its concluding observations on Israel’s initial periodic report, the Committee expressed its concern (paragraph 13 of the concluding observations):