Right to national self-determination in the constitutional law of Israel

Krotov Andrei Vladislavovich ORCID: 0000-0001-5812-8339 Doctor of Law ANO VO Nizhny Novgorod Institute (branch) of Moscow University for the Humanities and Economics 603074, Russia, Nizhny Novgorod, Sormovskoe highway, 20 pravonnov@yandex.ru Other publications by this author

1. Introduction

The Yalta-Potsdam system of international relations that developed after world war II, the creation of the United Nations (UN), whose Charter proclaims the principle of respect for the equal rights and self-determination of peoples, the provisions of the universal Declaration of human rights, at the international level, we have established the right of peoples to self-determination, guaranteed the implementation and protection of their rights the existence and identity of national minorities, which has led to a significant expansion of both the number of national States, unrecognized States, and Autonomous entities within States. Chairman of the constitutional court of the Russian Federation V. D. Zorkin notes: « If at the beginning of the XX century there were 50 national States, at the beginning of this century - 250. And this process, apparently, has not been completed... If we seriously expect that humanity can develop towards a voluntary Union of sovereign and equal Nations, then we must also recognize that this prospect implies an increasing degree of freedom of Nations and peoples in choosing their state identity; ^[1] .

A unique example of the realization of the right to national self-determination, the result of the international community's understanding of the consequences of the Second world war, the subsequent process of global redistribution of the world, is the creation in 1948 of the state of Israel as the national state of the Jewish people, which was based on powerful migration flows of the population (Jews) from the territory of Europe.

The common language (Hebrew), religion (Judaism), cultural ties (Jewish culture as a symbiosis of religious and secular traditions), and the ideas of Zionism were United and became the basis of the modern state of Israel, including the foundations of the current system of national law.

Today, Israel is the only country created for people, most of whom lived outside of it, and both the creation of the state of Israel and its current development are associated with a number of wars, Palestinian and Arab-Israeli (national) conflicts, according to the UN publication; Question about Palestine and The United Nations,in particular notes: «S and for more than fifty years, no issue has attracted as much international attention as the question of Palestine...despite active and diverse efforts in this area, the Palestinian issue still remains unresolved and still requires the urgent attention of the international community; ^[2] "the Palestinian question" is essentially the problem of national self-determination of one of the ethnic groups (national minority) living in the territory of modern Israel.

Historical features of the creation of the state of Israel, the specifics of its national, cultural, territorial content, being in a state of war (formal or informal) with a number of States since its creation (for example, Syria. At the official level in Israel, Iran, Lebanon, Iraq, Saudi Arabia, and Yemen (the Maghreb countries) are recognized as enemy States.these are the reasons for the adoption in 2018 of the rather controversial content of the Basic law of Israel, "Israel - the national state of the Jewish people", which secured the right to national self-determination in Israel exclusively for the titular nation-Jews, the study of which is devoted to this work.

2. Creation of the state of Israel as a result of the realization of the right to national self-determination of Jews

Jews, as a stable ethnic group, are a unique public education, developing on the basis of blood relations (forefathers and foremothers of the Jewish people (Abraham, Isaac, Jacob), the 12 tribes of Israel, etc.), an ethnic group that as an independent organic entity, it is not reduced to a set of individuals, which is especially clearly confirmed by the history of the Jewish people, while such an entity exists through the mental and spiritual life of individuals, which in many ways prevent the assimilation of the nation (for example, such prominent representatives of the Jewish nation as Moshe Ben Maimon Rambam, Theodor Herzl, Chaim Weizmann, David Ben-Gurion, and others).

In this context, we note that the question of belonging to a certain ethnic group is not a right of free choice (as was mistakenly believed in the Austro-Marxist understanding, where nationality is the result of a certain choice that every citizen has the right to make when reaching a certain age. This concept, which is largely based on Lenin's theory of Nations, is accepted, for example, in Russian legislation (as in a number of countries belonging to the post-socialist legal family). Every person belongs to a certain ethnic group from birth, being immersed in a certain society with a characteristic culture, religion, language (l Athenian word natio comes from the verb nascor («be born») and means «birth, origin»). German researcher K. Huebner ^{[3, c .111]} he writes that the identification of a person with a certain nation is fate, and it does not matter in which state the person was born-mono-national or multi-national.

The specificity of the Jews as an ethnic group seems to us that having emerged as a certain tribe, in the future the Jews, as an ethnic community with its own language (Hebrew), common religious rituals (Judaism), territory (ancient Israel), transformed around the Tenth century BC into a nation ( common territory, government institutions, religion and culture, close economic links – is one of the state of Israel (Kingdom of Israel), then with the collapse of the Kingdom of Israel and education in its place a Roman province (6 ad), and followed in the years 132-136 failed attempt to restore the state of Israel (Bar Kochba revolt), Jews (the ethnic group as a human population connected by a shared history, culture, sense of solidarity ) has not ceased to exist and were not fully assimilated for almost two thousand years (despite such periods of assimilation (including forced), as Hellenization, Christianization), during the specified period the purpose of the Jews was the maintenance of ethnic identity, which in the end largely was the possibility of creating in the twentieth century, the modern state of Israel within the boundaries of the (mostly) of the ancient state of Israel ( XI century BC) (After the suppression of the Bar Kokhba revolt by the Roman Emperor Hadrian in 135 ad, the territory of Judea was renamed "Syria Palestine", and the name Palestine was assigned to this territory during the British mandate (1922-1948).

At the end of world war II, the territory of Palestine was administered by the United Kingdom of great Britain and Northern Ireland under a mandate received in 1922 from the League of Nations. It was also the responsibility of the mandate state to resolve the issue of establishing a national education for the Jewish people in Palestine (in November 1917, in the Balfour Declaration; (The Balfour Declaration is a personal letter from the British foreign Secretary, A. J. Balfour, to the Vice-President of the British Zionist Federation, L. W. Rothschild, dated November 2, 1917, on the official letterhead of the British foreign office) the British government has declared that it is he supported the creation of a national home for the Jewish people in Palestine, with the implication that no action should be taken that could violate the civil and religious rights of existing non-Jewish communities in Palestine).

At the Potsdam conference in summer 1945, the fifth President Truman announced support of emigration more than 100 thousand Jewish refugees to Palestine, initiating their actions to accelerate the process of resolution the question of the establishment of the state of Israel, with the result that in the summer of 1946, a project was developed for the partition of Palestine called «Morrison—Grady » plan, which proposed to create an Arab-Jewish Confederation, Jerusalem in turn was to receive the status of an international territory. However this project has not found its support both in the UK and abroad in As a result, on October 4, 1946, us President Truman made a speech in which he supported the project of reviving the national Jewish hearth in Palestine with the subsequent creation of an independent state on its basis.

In February 1947 the British government decided to take up the Palestinian question for consideration by the newly established United Nations. The majority of the members of the special Commission created by the United Nations (UNSCOP) in 1947 recommended that Palestine be divided into an Arab and Jewish state with a special international status for the city of Jerusalem under the administration of The United Nations. These three entities were supposed to be linked in an economic Union.

N at its second regular session, on 29 November 1947, after an intensive two-month debate, the General Assembly adopted resolution 181 (II) approving, with minor modifications, the partition Plan based on economic Union as proposed by the majority of the members of the Special Commission on Palestine, it was suggested that the constituent assemblies of each (Jewish and Arab) state develop their own democratic Constitution, which includes I the right to exercise fundamental human rights and freedoms, freedom of religion, language, speech and the press, entities, assemblies and unions. There was also a requirement that the interim government of each of the newly created States submit a Declaration to the UN, the terms of Which are recognized as the basic law of the state, and no law, binding decree or government action has greater force than the provisions of the Declaration in the UN Resolution 181 (II) it is noted that the provisions of the Declaration should contain articles prohibiting discrimination in relation to the population on the basis of race, religion, language or gender, which enshrine the obligation to respect the personal status of members of various minorities ( In the preamble of the UN resolution of 11.05.1949 on the admission of Israel to the United Nations, the requirements for Israel's compliance with UN General Assembly resolutions 181 (II) and 194 (III) were highlighted) (The Declaration of independence of Israel of may 14, 1948, which coincided with the date of the Declaration of independence of the state of Israel, as a member of the UN, the state of Israel was recognized on may 11, 1949).

3. Features of formation and development of the right to national self-determination in the constitutional law of Israel

After the creation of the state of Israel (as a result of the external aspect of the right to national self-determination), the right of peoples to freely determine their place in the international community of States ^{[4, c . 108]}), the government faced a difficult task: to form the legislation of the Jewish state, to create Central institutions of power (financial, judicial and other), which was difficult given the subsequent war of independence of Israel (1947-1948), the heterogeneity of the population of the state ( the reason for this is the existence of a fateful relationship of repatriates with the cultural customs of the countries of origin, which leaves an imprint on the human being and leads to the presence of various ethnic mixes), as a result, the creation of the national Constitution of Israel was initiated only in 1958. The basic law - the Knesset (the Israeli Parliament) (some authors (for example, C. Klein ( Klein With.) among the reasons for the current lack of a codified written Constitution in Israel are: the protracted for many years and actually lasted for a number of years since the emergence of Israel's war with Arab countries that oppose Israel clearly establish their territory, to define its borders and other that require resolution and retention of the text of the Constitution matters; current ambiguous nature of its political system and the General goals of the state requiring its indispensable anchoring in the Constitution; the impact of legal doctrines of great Britain, in which no formal, written Constitution etc.).

We believe that it is necessary as the reasons for the current absence of the Constitution of Israel (in the completed version), it should also be noted that there is no unified approach to determining the legal force of UN resolutions, With regard to UN General Assembly resolutions (including resolution No. 181), there are three main points of view in the international legal literature: 1) resolutions are recommendations of international organizations, or at least some of them are legally binding for States; 2) resolutions have only political and moral significance; 3) resolutions contain some legal element, although they are not legally binding , p ^{[5 , p. 104]}, we believe that the UN General Assembly Resolution no. 181 of 29.11.1947, at least in terms of the acceptance by the state of Israel of obligations to respect and protect human rights and freedoms, should be considered binding, which follows from both the content of international law and the Declaration of Independence of Israel, the conditions for Israel's admission to the UN, etc., these conclusions are confirmed by the position of the Supreme court of Israel, as E. E. Zadvoryansky writes.-legal issues: First, sources of law other than laws (Declaration of independence, international conventions, «spirit of laws ») they also have constitutional legitimacy; second, the idea of rights and freedoms is the Central idea of Israeli constitutional law; and third, the Supreme court should play an active role in promoting constitutional and legal values. A fundamental feature of the constitutional development of Israel is the priority of the idea of constitutional and legal protection of the political, social and moral values of liberal democracy; ^{[6, p. 14]}. ( The provisions of the Declaration of independence of Israel have been repeatedly used in the practice of the Supreme court of Israel as a source of law, for example, in decision of 25.07.2002 in the case of Adalla V. municipality of tel Aviv-Jaffa ( Adalla v . Tel Aviv Jaffa Municipality ) and others ) .

In the period 1958-2018 years, the Israeli Parliament adopted the following main laws: Land Fund of Israel, the President, the government, the State economy, the Army, Jerusalem capital of Israel, the Judiciary, the State controller, Freedom of occupation, Dignity and human freedom, Referendum, Israel is the national state of the Jewish people, these laws in their systematic correlation with the decisions of the Supreme court of Israel today are the basis of non-codified written Constitution of Israel, whose creation is not yet complete.

The consolidation of Israel's status as a national state was achieved it is stated in article 1. 1 of the Basic law of Israel "human Dignity and Freedom"(adopted by the Parliament (Knesset) on March 17, 1992), which States that the state of Israel is a Jewish and democratic state, which implies the interpretation of Israel as a national state, with the titular nation - the Jews.

The reference to the Jewish character of the state is related to its interpretation as having been created initially with a special purpose - to create a "refuge for Jews", but this did not mean (at least, de jure) until the adoption of the basic law in 2018 «Israel – the national state of the Jewish people») derogation of the rights of national minorities living on the territory of Israel (article 1 of the Basic law of 17.03.1992 directly stipulates the following: "Basic human rights in Israel are based on the recognition of the importance of a person, the sanctity of his life and his inherent freedom, and are observed in the spirit of the principles of the Declaration of independence of Israel,in accordance with the principles set forth in the text of the Declaration of independence of Israel ( מְגִלַּת הָעַצְמָאוּת ) of may 14, 1948: "the State of Israel will realize full social and political equality of all its citizens without distinction of religion, race or gender. It will ensure freedom of religion and conscience, the right to use one's native language, and the right to education and culture. It will protect the Holy places of all religions and will be true to the principles of the Charter of The United Nations), as th. Herzl (the founder of the Zionist ideology), laying the Foundation for the future Constitution of the Jewish state: "everyone is free in their faith or disbelief, as well as in their nationality. And if it happens that people who profess a different faith and belong to a different nationality live among us, they will enjoy full protection and equality with us. We have learned tolerance in Europe; ^{[7, c .99]} .

While securing the exclusive right to national self-determination only for Jews, the norms of the Basic law "Israel" contain the following: "Eretz-Israel (the Country of Israel) is the historical homeland of the Jewish people, in which the State of Israel was created. The state of Israel is the national state of the Jewish people, in which they exercise their natural, cultural, religious and historical right to self-determination. The exercise of the right to national self determination in the State of Israel belongs exclusively to the Jewish people » (article 1), «Hebrew is the official language. The Arabic language enjoys a special status in the state; the regulation of the use of the Arabic language in public institutions and when addressing them will be regulated by law. This does not detract from the actual status of the Arabic language prior to the entry into force of this Basic law » (article 4), « the State will take care of ensuring the safety of Jews, as well as citizens of the state who are in trouble and in captivity because of their Jewish origin or citizenship. The state will act in the Diaspora to preserve the connection between the state and the Jews. The state will act to preserve the cultural, historical and religious heritage of the Jewish people among the Jews of the Diaspora » (article 6), «Independence Day - the day of the state official national holiday. Memorial day for fallen soldiers of Israel and Memorial day for victims of the Holocaust and Heroism - days of state official days of remembrance » (V. 9), « Sabbath and Jewish holidays and memorial days are regular public rest days; non-Jews are entitled to rest days on their holidays; details regarding this will be established by law (article 10 ).

The adoption of the Basic law of July 19, 2018 « Israel – the national state of the Jewish people », initiated a new round of controversy in Israeli society regarding the rights of national minorities in Israel, m tion in Israeli society in relation to the content specified the basic law is divided.

Assaf Melah ^[8] , speaking in support of The basic law « Israel – the national state of the Jewish people», in particular, he writes that the national state strengthens the relationship between the individual, society, and the state.the creation of the state as a national state is directly related to the will of citizens who independently determine the political structure of the state. Criticizing the assessment of the Palestinians as an independent ethnic group, he notes that although the name Palestine is ancient, it is an administrative name for a certain territory (as a result of the suppression of the Bar-Kokhba revolt by the Romans), accordingly, the population calling itself Palestinians is not an ethnic group (does not have a special culture or religion) and cannot claim national self-determination; Dr. Yakov Ben Shemesh he believes that the reason for the hegemony of Jews in Israel is the Jewish-Palestinian conflict, which threatens the physical existence of Jews as a certain ethnic group , which accordingly justifies the exclusive role of the Jews in the state.

In turn, critics of the law (letter Of the Association for civil rights in Israel to members of the Knesset dated 15.07.2018 ^[9] prepared for the second and third debate of the bill in Parliament) note that its wording contains serious violations of human rights, for example, the rights of the Arab minority, which makes up about 20% of the country's citizens, violate the principle of legal equality, as one of the pillars of democracy, and serve to spread racial discrimination against ethnic minorities. Securing exclusively the right to self-determination of the Jewish people implies, among other things, restricting the collective and individual rights of non-religious citizens, non-Jews, women, and LGBT representatives, and interpreting their status as second-class citizens.

When discussing the bill in the Israeli Parliament ^[10], during the second and third reading, its provisions were criticized by representatives of various political parties, for example, according to representatives of the party "Yesh Atid", "Meretz", in fact, the proposed bill turns Israel into a theocratic state, serves to divide society, conduct the policy of apartheid, note that today the political differences associated with the adoption of the law The basic law "Israel" is still relevant, a number of parties that participated in the repeated (second) elections to the Israeli Parliament (Knesset) in September 2019, attracted votes by promising to repeal the controversial law (for example, the Meretz party).

The scientific literature notes that The basic law « Israel – the national state of the Jewish people » solves three tasks: « First, it legislates the violation of the rights of Arab citizens of Israel that has already taken place - first of all, to build houses and live in the territory controlled by Israel.second, this semi-constitutional law has fixed the lack of opportunities for Palestinians from the West Bank, East Jerusalem and the Gaza strip to join the ranks of 21% of Arab citizens of Israel by obtaining Israeli citizenship under one pretext or another.; - this is a reserve for the future, a kind of "insurance" in conditions when in Israel itself it has not yet been possible to reach a consensus on the principle of solving the Palestinian-Israeli conflict ^{[11, p. 55-56]} , we believe this opinion is only partially true, the Basic law «Israel – the national state of the Jewish people» it did not lead (at least for today) to a change in the practice of the Supreme court of Israel, and it has no direct relation to the territories that were ceded to Israel as a result of a number of wars.

Acceptance According to the basic law, "Israel" is the national state of the Jewish people, which in our opinion is most closely connected with the necessity of the state of Israel. ensuring support for the actions of the state by the majority of the population, who share the ideas of Zionism, the traditions of Judaism (to varying degrees, penetrating into the life of every Israeli), the special role of the national Constitution, which not only performs traditional (Western world) as a means of preventing arbitrary action by the authorities, protection from the tyranny of the state, but is largely an ideological document with the nationalist emphasis in the mono-ethnic state.

In modern Israel it is important to build the unity of the dominant state ethnic group (Jews), who must constantly be ready to fight for the existence of the nation-state, not only with external but also with internal enemies (which, in the understanding of the Israeli establishment, means fighting with a national minority, mainly Arab and Palestinian populations, as noted by T. V. Nosenko: “the Arabs do not assimiliate among the Jewish majority, and very different from it in origin, language, religion, national peculiarities. With the overall growth of the Arab population, the strengthening of the trends of its "Islamization"is regarded by Israeli analysts and political figures as a great danger in the long term for the preservation of the Jewish character of the state and for its very existence ^{[12, p. 51]} ) .

An important role in the adoption in 2018 The basic law "Israel" is the national state of the Jewish people, and representatives of religious parties in the Parliament of Israel, lobbying for ideas of extreme ethnonationalism.

Thus, in our opinion, the reasons for securing the right to national self-determination exclusively for Jews in the Israeli Constitution are as follows:

1) recognition as the state ideology of Zionism, in which Israel is considered as a state whose purpose of existence is to form a "refuge"for Jews (in Israel).

2) increasing the influence of religious parties (representing the interests of followers of Judaism) in the Parliament of Israel.

3) the need to unite the dominant ethnic group (Jews) in the country in order to counter external and internal threats and the formation of a concomitant ideology, enshrined in the text of the basic law (the ideological role of the Constitution is updated)

Was it possible to unite the titular nation, to protect the character (mono-ethnic) and territorial integrity of the state by other methods?

The answer to this question, in our opinion, is affirmative, for example, you may :

- to fix in the text of the Constitution of Israel the status of Israel as a unitary state;

- establish a constitutional ban on the exercise of the right to national self-determination of national minorities through territorial separation;

- to fix the right to religious, cultural and ethnic pluralism in the text of the Constitution;

- to fix the right to national self-determination in the Constitution in the form of territorial and corporate autonomy;

- to develop the self-identification of citizens not by dividing them into ethnic groups and then supporting the dominant (Jews), but by recognizing themselves as citizens of Israel as a common consolidated group (regardless of ethnic characteristics ), with the formation of appropriate common ideological messages;

- to build a system of dialogues between different ethnic groups, including among Jews (as a group that includes various subspecies), based on the principle of equal dialogue.

4. Conclusion

Formulation in the text of the national Constitution the special role of a certain ethnic group ( in this instance Jews) is not an innovation in world practice, but, as a rule, modern constitutions also prohibit discrimination against national minorities is guaranteed. ABA for the development of various cultures and traditions, languages (for example, Constitution of the Republic of Croatia of 22.12.1990) (of course, the right to national self-determination is not absolute, in this case, we support the position of the judges of the constitutional court of Latvia, who in in the decision of the Latvian constitutional court of 23 April 2019 in case no. 2018-12-01, it was noted that the exercise of the right to national self-determination (of minorities) should not undermine the unity of the nation, serve as a hindrance to the further socialization of representatives of national minorities), we believe, that the provisions of the Basic law "Israel" violate a number of provisions of international instruments ratified by Israel: the universal Declaration of human rights; the international Convention on the elimination of all forms of racial discrimination; the international Covenant on civil and political rights; the international Covenant on economic, social and cultural rights; the Convention on the rights of the child, UN General Assembly Resolution no. 181 (II) of 29 November 1947, there are grounds for asserting a violation of the provisions of the Declaration of independence of Israel, the existence of contradictions between the Basic laws of Israel.

It is possible to draw a conclusion about the existence of a number of contradictions between the provisions of the basic law; Israel – the national state of the Jewish people» and the practice of the Supreme court of Israel.

In its decisions, the Supreme court of Israel has repeatedly confirmed the existence of the right to national self-determination of national minorities, for example, in a decision dated 25.07.2002. Adalla V. tel Aviv Municipality – Jaffa ( Adalla v . Tel Aviv Jaffa Municipality ) the court stated that a national minority has the right to freedom of language, especially in a place of compact residence (as follows, among other things, from the content of the Declaration of independence of Israel), in the case of kaadan V. Israel ( Ka ’ adan v . Israel ) from 08.03.2000 The Supreme court stated that in Israel, Jews and non-Jews are citizens with equal rights and duties. the principle of legal equality does not allow the state to make distinctions between its citizens based on religion or nationality.

Today's regulations basic law « Israel – the national state of the Jewish people » from 19.07.2018 were used in a number of decisions of the Supreme court of Israel, for example, in the decision of 21.01.2019 in the case (Gad): Grant Yvon V. Fidam select ( Fidamselect ( איוון ( גד ) גריב גראנט נגד The Supreme court of Israel, rejecting the applicant's complaint to refuse to accept the appeal to the court in English, indicated with reference to article 4 basic law « Israel – the national state of the Jewish people», a 1922 Ordinance and the law of law and government of 1948 that English is not the official language of Israel; in the decision of November 14, 2018 in the case of Moshe giorno V. the State of Israel ( ( משה גיורנו נגד מדינת ישראל , The Supreme court rejected an appeal to extradite an Israeli citizen to the United States, stating, among other arguments, that positions Basic law « Israel – the national state of the Jewish people» they do not imply a ban on the extradition of Israeli citizens.

F the special rights of Jews as a titular nation in the text of the Constitution of Israel is essentially a consolidation of the existing model of social relations and is supported by the majority of the Jewish population of the country.

However, the democratic procedure for the adoption of the basic law "Israel" has led to an undemocratic result, where both the interests of national minorities living on the territory of Israel and the heterogeneity of the Jewish population of the country itself are ignored.

The Israeli Parliament, taking the basic act of 19.07.2018 G. “Israel – national state of the Jewish people”, did not act only in the absence of legitimacy (meaning contradiction with international documents), but without the consent of the various strata of the population, which in turn leads to transfer support activities of the state with consensual forms of power on repressive methods, there is a leveling one of the main functions of a modern Constitution - agreement between the members of the society, the resolution of the existing contradictions between the majority and the minority.

By agreeing to the presence of vital necessity in the consolidation of Israel's population, in our opinion, should be guided not by the ideas of the twentieth century on the formation of ethnic (Jewish) monotony in Israel, respectively, the construction of pronounced mono-ethnic state, which has lost on its relevance today (and as time has shown, utopian), and to consider Israel as a society on ethnic pluralism, Association of members of the society should be under a new ideological slogans, necessarily implies a requirement to maintain ethnic equality, which does not contradict the national character of the state.