policies are directly related to human rights, and especially to indigenous
communities and forcible displacement.
Given the diverse cultural and legal traditions embraced in different regions
and countries globally, we will, firstly, outline the lowest common denominator
of standards of zoning and planning. In the following sections, we will show
how Israel fails to meet them.9 Nevertheless, what this Working Paper shows,
above all, is that Israel’s failure to meeting the lowest democratic and legal
standards stems not from a mere procedural fault, but rather from an inherent
ideological drive. In other words, the consistency and persistence in which
basic legal, ethical and logical zoning and planning standards are violated in
all parts of Mandate Palestine, over a stretch of history almost seven decades
long, manifests an unmistakable deliberate pattern of an ideology that aims
at Palestinian transfer from their ancestral homeland.
Legality
European jurisprudence identifies legality as one of the principles to be
adopted when making decisions, in order to avoid exercise of arbitrary
action. This means every decision must be made in accordance with the law.
Planning, to the extent that it involves the exercise of power, is subject to
the law. No official can make a decision which affects the legal rights and
interests or liberties of a person unless such decision is authorized by law.
Even the widest ranging discretion must be exercised consistently with the
scope and purpose of the law under which it is exercised. This applies to
decisions affecting property rights generally.
Laws and regulations may specify matters which have to be taken into
account or disregarded when the decision is made. They may, in the field
of planning, include requirements for public notification, consultation
and consideration of public objections or submissions. However wide the
decision-making power, it will always be a requirement that the decision is
only made in furtherance of the purposes of the law and by reference only
to those considerations which are relevant to those purposes and not for
collateral purposes.10
Proportionality
We define the principle of proportionality by linking it to the principle of
legality, especially when it comes to the exercise of public powers and when
9 Council of Europe, “The Margin of Appreciation.”
10 Justice Robert French AC, “Property, Planning and Human Rights”; See also Stephen Berrisford, “Why
It´s Difficult to Change Planning Laws in African Countries?”
10
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