Palestine v. Israel: 1:0? Palestine, Israel and FIFA: What Are the Laws of the Game? Part II

This is Part II of a two-part post. See Part I here.

Suspension of membership

A second category of FIFA membership issues related to international law relates to possible suspension of membership. Under Art. 14 FIFA Statute, it is the FIFA Congress that is responsible for suspending a member association, such suspension requiring a three-quarter majority of the Members present and eligible to vote. In case of a positive vote on such suspension, other FIFA member associations may for the duration of the suspension no longer entertain sporting contacts with the suspended member.

Although not constituting a suspension in the technical sense, it is worth noting that after World War II even after the German Football Association (DFB) had been refounded, it took until 1950 that its full FIFA membership rights were reinstated at the 1950 Bruxelles FIFA congress.

The first time suspension from FIFA stricto senso came up was in the 1950s vis-à-vis South Africa after a FIFA emergency committee had found in 1955 that the South African Football Association (SAFA), representing only white minority football clubs, did not constitute a national association within the meaning of relevant FIFA rules. It thereby somewhat foreshadowed the practice of the Credentials Committee of the United Nations General Assembly, which, as is well-known, ever since 1974 had considered that representatives of the white minority regime in South Africa could not represent South Africa for United Nations purposes. On 26 September 1961, at the annual FIFA conference, the South African football association was then formally suspended from FIFA, which suspension was however lifted in January 1963, albeit only for a short time. Soon thereafter, namely in 1964, and given the increased representation from African and Asian soccer associations within FIFA, the suspension of South Africa’s football association’s membership was re-imposed before South Africa was then, in 1976, formally expelled from FIFA. Finally, the South African association was re-admitted in July 1992 in the wake of the fundamental political changes then taking place in South Africa. This demonstrates how the policy of FIFA and its member associations was, if not influenced, by then at least parallel to, the concurrent development of modern international law related to the prohibition of racial discrimination.

Yet another development leading to the suspension of a national football association occurred during the Yugoslav crisis after the Security Council had, acting under Chapter VII, adopted resolution 757 (1992), and had thereby “[d]ecide[d] that all States shall (…) [t]ake the necessary steps to prevent the participation in sporting events on their territory of persons or groups representing the Federal Republic of Yugoslavia (Serbia and Montenegro)” (see para. 8 lit. b) of the text). While the resolution was only addressed to States, FIFA (as well as UEFA in parallel) reacted by way of a decision of its Emergency Committee and suspended FIFA (as well as UEFA) membership of the national soccer association of the Federal Republic of Yugoslavia (Serbia and Montenegro). It is worth noting in passing that this led Denmark (which would have otherwise not qualified for the 1992 European Championship) not only to replace ‘Yugoslavia’ and thus participate in the 1992 European competition, but also to actually win it. Another anomaly consisted in the fact that a team from the ‘Commonwealth of Independent States’ participated in the said competition, the Soviet Union having qualified, while the claim, by the Russian Federation to be identical with the defunct Soviet Union had by then not yet been generally acknowledged.

Ever since, national football associations had solely been suspended from FIFA because of impermissible governmental influences, as prohibited by Art. 13 para. 1 lit i) FIFA Statute, which requires that national football associations “manage their affairs independently and ensure that their own affairs are not influenced by any third parties”.

On 19 March 2015, however, the Palestinian Football Association submitted a motion to have the Israel Football Association suspended until, inter alia, “[t]he Israel Football Association, or Israeli authorities, submit written guarantees to FIFA that it will respect the FIFA statutes by recognizing that the Palestine Football Association is the sole governing body responsible for organizing and supervising football in all of its forms in the territory of Palestine”, that Israeli clubs, located in Israeli settlements in occupied Palestinian territories in the West Bank (cf. on this question the ICJ’s 2004 Advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep 136) are banned from playing football in competitions organized by FIFA, since “they are located in the internationally-recognized territory of Palestine” (para. 1.2)), and until a guarantee is given that “the Israel F[ootball] A[ssociation] shall fully recognize that the Palestine F[ootball] A[ssociation] is entitled to enjoy (…) [t]he right of movement of football people and goods into, out of, and within Palestine including East Jerusalem”, as well as “[t]he right of the PFA [Palestine Football Association] to develop football infrastructure and facilities in the territory of Palestine including East Jerusalem” (para. 1.3), lit. i) and ii)).

As is well-known, this motion was withdrawn at the last FIFA Congress once it had become obvious that it would not receive the necessary majority of 3/4 of FIFA members present and voting. At the same time, however, the FIFA Congress adopted a decision to set up a committee to monitor developments in Palestinian-Israeli soccer relations.

Territorial reach of national football associations and the legal status of clubs in occupied territory

Under Art. 10 para. 1 FIFA Statute, subject to the specific situation of the four British football associations, as well as those in dependent territories, “only one Association shall be recognised in each Country”. What is more is that under Art. 84 FIFA Statute “Associations, Leagues or Clubs that are affiliated to a Member may only join another Member or take part in competitions on that Member’s territory under exceptional circumstances”, and that, besides, “[i]n each case, authorisation must be given by both Members, the respective Confederation(s) and by FIFA.” This rule, obviously, is in line with the general concept of territoriality, as being one of the pillars of international law, namely that a State may not, unless specifically permitted to do so, exercise rights on the territory of another State.

It was only quite recently that a situation covered by Art. 84 FIFA Statute had arisen with regard to Crimea. After the Russian annexation of Crimea three clubs from Crimea, formerly affiliated with the Football Federation of Ukraine, joined the Russian Professional Football League after approval from the Russian Football Union without however such move previously having been approved by either FIFA, UEFA or the Football Federation of Ukraine. By way of reaction, UEFA on 22 August 2014 decided “that any football matches played by Crimean clubs organised under the auspices of the Russian Football Union will not be recognised by UEFA until further notice”, and, on 4 December 2014, further decided to prohibit Crimean clubs to play in competitions organised by the Russian Football Union as from 1 January 2015 and for the region to be considered as a ‘special zone’ for football purposes until further notice. While FIFA (unlike UEFA) in turn did not yet render a formal decision on the matter, its Secretary General informed the Football Union of Russia by letter dated 5 June 2014 that “it would appear that FUR [Football Union of Russia] intends to affiliate associations and clubs that may already be affiliated to the Football Association of Ukraine, in which case art. 84 of the FIFA Statutes would seem to be applicable”. He accordingly “strongly recommend[ed] that the FUR [Football Union of Russia] General Assembly does not affiliate the associations and clubs concerned until the legal and factual situation has been clarified and the relevant authorisations under art. 84 of the FIFA Statutes, if applicable, have been granted.”

When it comes to the Palestinian-Israeli situation, it ought to be noted that the official FIFA website notes the Israeli Football Association as being affiliated with FIFA since 1929 when the football association of mandatory Palestine was accepted to FIFA. As to the geographical reach of the Israeli Football Association, it should be recalled that five clubs from Israeli settlements located in the West Bank play in Israeli leagues. After, as previously mentioned, the Palestinian Football Association had withdrawn its motion to suspend the Israeli Football Association during the last FIFA Congress, FIFA decided to set up a monitoring committee to oversee issues affecting the development of football in Palestine. While the exact scope of the amended proposal, as orally presented and then adopted with 163:9:37 votes by the FIFA Congress, is somewhat shrouded in mystery given the circumstances of its adoption when FIFA was at the same time facing a massive corruption scandal involving some of its high-ranking officials, it at least inter alia provides that “[p]layers and football officials both within and outside the borders of the occupied State of Palestine, have been systematically restricted from their right to free movement (…).” In adopting this amended proposal to set up a committee to monitor the freedom of movement of Palestinian players and officials ‘both within and outside the borders of the occupied State of Palestine’, FIFA has thus shared the position, previously taken by UNESCO, as well as by the United Nations General Assembly that ‘Palestine’ qualifies as a State under international law. What is more is that FIFA has thereby also confirmed that the territory of the country the Palestinian Football Association is representing under Art. 10 FIFA Statute is subject to belligerent occupation. It then seems to logically follow, however, from this finding made by FIFA that Israeli soccer clubs from Israeli settlements located ‘within the borders of the occupied State of Palestine’ are subject to both, Art. 83 para. 2, FIFA Statute which provides that “Members and their Clubs may not play on the territory of another Member without the latter’s approval”, as well as to Art. 84 FIFA Statute, i.e. may not, as said provision provides, participate in competitions organized by the Israeli Football Association (just as, as previously mentioned, teams from Crimea ought not to participate in competitions organized by the Football Union of Russia), unless permission is granted as provided for in Art. 84 FIFA Statute.

Outlook

While there might is a certain value in not politicizing sports, there can be no doubt that organizations such as FIFA should not only abide by rules of domestic law to the extent applicable, but should also, although not formally bound by international law norms as such, attempt to abide at least by the fundamental underpinnings of the international legal order.

As this overview has shown, over the years, FIFA, as well as its statutory rules, have indeed followed the development of international law, be it in the field of membership, statehood, suspension of membership in case of violations of fundamental human rights in the territory of a national football association, or finally when to comes to the status of clubs in occupied territories. It remains to be seen how the committee set up by FIFA to monitor the situation of the Palestinian Football Association defines its own mandate, and whether it will make a change on the ground. By the end of the day, the litmus test for FIFA and UEFA might eventually arise whenever a club from either Crimea or an Israeli club from occupied Palestinian territory were to ever qualify for an international competition, and whether FIFA and UEFA would then also consider itself to be bound by the prohibition to recognize the underlying situation as legal. Accordingly, one might be tempted to say, were the situation on the ground not be so serious, that it seems that for purposes of FIFA, too, the Palestinian-Israeli match moves into overtime.