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

On 12 June 1015, the FIFA Executive Committee appointed former South African government minister Tokyo Sexwale to lead a monitoring committee to oversee issues related to the development of football in Palestine, and alleged interferences, by Israel, with such development. This committee was established on the basis of the decision by the 65^th FIFA Congress in May 2015 after the Palestine Football Association had withdrawn its proposal to have the Israel Football Association suspended from FIFA. While this development has largely been overshadowed by the recent developments concerning alleged instances of corruption involving FIFA officials, and the ensuing announcement by the current FIFA’s President, Sepp Blatter, to resign from his position, it sheds light on the international law underpinnings of decisions made by FIFA when it comes to the status of contested territories in which a given national soccer association is based. What is more, it demonstrates how, over the years, the practice of FIFA has changed in light of developments of international law and what impact international law has when it comes to the current dispute FIFA is confronted with.

Membership in FIFA

During its early years, the FIFA Statute had simply provided that the organization consisted of “the Associations recognized by FIFA as the Associations controlling Association Football in their respective countries, provided that only one Association be recognized in each country” (see FIFA Handbook, 1st ed. 1927, p. 15; see also H. Homburg, FIFA and the ‘Chinese question’ 1954 – 1980: an Exercise of Statutes, Historical Social Research 2006, p. 69 et seq. (71)). Since 1937, FIFA had however already admitted “associations in a colony or dominion” which could then opt for directly joining FIFA whenever the “national football association of the mother country” [sic!] had signaled its consent (ibid., p. 71), thus being implicit evidence of the limited international personality of such dependent territories at the time. In the same vein, the FIFA 1937 Statutes had also provided that “[f]or countries placed under the protectorate of another country, the same principles as for dominions for colonies will be in force.” (ibid.).

As of today, Membership in FIFA is governed by its ‘Regulations Governing the Admission of Associations to FIFA’, Principle 1 of which currently provides that “[a]ny association that is seeking admission to FIFA must put forward an application that contains detailed information on its organisation, its sporting infrastructure and its territory”. Accordingly, each and every membership organization must provide data on the underlying scope ratione loci of its sphere of activities, which in case of territories, the status of which under international law is subject to dispute, might prove difficult. At the same time, Principle 3, para. 1, lit. a) thereof, dealing with the ‘Contents of application’, provides, apart from formalities, that any application for membership must include “[d]ocuments that show that the applicant represents a country in accordance with article 10 of the FIFA Statutes.” Art. 10 FIFA Statutes in turn, dealing with the admission of nationals soccer associations to FIFA, provides in its para. 1 that “[s]ubject to par. 5 and par. 6 below, only one Association shall be recognised in each Country”. For historical reasons, para 5 then provides that “[e]ach of the four British Associations [i.e. England, Scotland, Wales and Northern Ireland] is recognised as a separate Member of FIFA”, which thereby by the same token e contrario shows that these regions would otherwise not qualify as ‘countries’ for FIFA purposes. What is more is that Art. 10 para. 6 FIA Statute further provides that “[a]n Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.” It is in light of these statutory provisions that football associations from ‘territories’ as divergent as Aruba, the British Virgin Islands, ‘Chinese Taipei’, Hong Kong, the Faroe Islands, as well as New Caledonia, are as of today all members of FIFA, the lack of statehood of the respective underlying ‘territory’ notwithstanding.

Finally, when territories had been illegally annexed in the past, as has inter alia been the case of Austria 1938, or the Baltic States in 1940, their membership in FIFA was considered to have lapsed respectively. As a matter of fact, after the Austrian national soccer team had qualified for the 1938 FIFA World Cup finals just before Austria was soon thereafter annexed by Germany, FIFA was notified that the Austrian football association had been abolished, resulting in Austria’s ensuing ‘withdrawal’ from the 1938 World Cup.

It is also worth noting that after 1945 the soccer association of the Saar territory applied for FIFA membership in 1950, i.e. before the Saar later joined (West) Germany in 1953, and while the Saar was still under French control. It did so claiming that it constitutes a football “association based in a country which is recognised by the United Nations as an independent State”, as the respective formula in the then applicable FIFA Statute had required. The application by the Saar football association was accepted by FIFA on June 22, 1950. Accordingly, the Saar football association thus became a FIFA member of its own right, and it did so even three months before the German Football Association (DFB) could resume its pre-World War II membership rights, and indeed two years before the East German football association was accepted as representing a ‘territory’ of its own. It is striking how this development resembles a development within the Council of Europe. Somewhat in parallel, the Saar territory had become an associate member of the Council of Europe (and soon thereafter, and indeed prior to West Germany, also a contracting party of the ECHR) as early as 1950. (see most recently on this question A. Zimmermann, Bringing Kosovo within the Reach of the European Convention on Human Rights: Disentangling the Convention and the Status-Issue, in: S. Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde – 60 Jahre Europäische Menschenrechtskonvention (2013), p. 219 et seq.)

Later, the formula requiring that a football association ought to be based in “a country which is recognised by the United Nations as an independent State” was replaced in the FIFA Statute, as it applied until 2012, by a formula defining “the expression ‘country’ [as] refer[ing] to an independent state recognised by the international community.” It was thus subject to this later formula that, on May 6, 2008, i.e. three month after Kosovo’s unilateral declaration of independence, the Kosovar Football Association applied for FIFA membership. Yet, in October 2008 the said application was discussed at the FIFA Congress, and rejected, as it was deemed to not comply with Art. 10 of the then applicable FIFA Statute, namely that only, as just mentioned, an association originating in an independent state recognized by the international community may be admitted into FIFA. Currently therefore, the FIFA Executive Committee has merely authorized FIFA members to play matches against the Football Federation of Kosovo (FFK) as foreseen in Art. 83 FIFA Statute, provided that teams of the FFK may not display national symbols or play national anthems.

Finally, as to Palestine, it is worth noting that the ‘Palestinian Football Association’ was admitted to FIFA as early as in 1998, i.e. well before Palestine was granted observer State status within the United Nations in 2012. Thus, by necessary implication, it seems that, already by then, the relevant FIFA organs had taken it for granted that under the then applicable FIFA rules the Palestinian Football Association was representing ‘a country recognised as an independent state by the international community’.