The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Human Rights Watch published a long, graphics-rich report on Sunday denouncing Israeli semi-pro soccer (football) clubs in towns in the West Bank. A few weeks ago, a group of European Parliament members sent a letter along similar lines to FIFA, the international soccer governing body. The parliament members argue the clubs violate international law, and for good measure, the FIFA constitution, and call for the expulsion of the teams, or Israel itself, from world soccer.
These efforts are all part of a broad Palestinian push to pressure Israeli in international forums. The legal arguments raised in these documents are entirely contrived. They contradict longstanding FIFA practice and create a double standard for Israel. And that's just not sporting.
The human rights claims in the Human Rights Watch (HRW) report are tendentious—they assert that the local soccer leagues (all quite small-time) are "making the settlements more sustainable, thus propping up" the system. Most of the communities in question are just a few kilometers from the 1949 Jordanian-Israeli armistice line and would remain in Israel in all the major two-state proposals; their residents typically commute to work in bigger nearby cities. It is laughable to think anyone would leave them if the football league moved a few kilometers down the road. In any case, contrary to the HRW's claims, there is simply no support in international law for prohibiting business in occupied territories, as British and French courts have recently affirmed.
Indeed, Morocco maintains a team, part of its national football federation, in occupied Western Sahara. Yet the HRW completely fails to mention this fact in its report. The human rights abuses in Western Sahara—where the majority of the population are Moroccan settlers and the indigenous population has been heavily displaced—are too vast to recount. No one—including the HRW and the Parliament members—has suggested expelling Morocco on account of its team, based deep in land taken from the Sahrawi.
The football-as-human rights-violation arguments against Israel are tendentious and prove too much. So those campaigning against Israel rely principally on a lawyerly claim about FIFA's rules: The clubs "clearly violate FIFA's statutes, according to which clubs from one member association cannot play on the territory of another member association without its and FIFA's consent," the members claim.
The problem is nothing in the FIFA statutes that equates "territory" with sovereign territory. Indeed, that would be impossible, since many FIFA members are not sovereign states at all. Instead, territory, as is often the case in international texts, means jurisdiction.
This is because the FIFA is not a border demarcation body. That is why FIFA clearly separates any question of sovereign statehood and territory from FIFA membership by not requiring that member federations be recognized states (i.e. Hong Kong, American Samoa, Faroe Islands, Northern Ireland, etc.). The claim that the acceptance of the Palestinian soccer federation into FIFA constituted a recognition of Palestine as a state and a recognition of its maximal border claims is unsupportable. FIFA membership does not imply statehood, nor has FIFA ever taken a position on preexisting border disputes.
Indeed, FIFA practice makes clear that it never gets involved when teams of one federation play on territory that is the subject of sovereign claims by the state of another member. As often happens, Israel's critics attempt to portray it as a unique situation. It is far from it.
For example, British Gibraltar's soccer federation is a member of the international soccer system despite being entirely located on what Spain claims as its sovereign territory. Indeed, Spain protested Gibraltar's membership vigorously on these grounds. Similarly, the Taiwanese (Taipei) federation is recognized—but that hardly means FIFA has decided to reject China's claim to the island.
Member states have territorial disputes. FIFA's recognition of teams has never been understood as taking any position on the status of the territory where the team plays. Indeed, if it does, it would be big trouble for FIFA, and big news. Does this mean FIFA rejects Spain's claim to Gibraltar, or China's to Taiwan, and accepts Morocco's annexation of Western Sahara? No one has ever suggested that any of this is the case. Conversely, the South American regional football association has refused to admit the Falklands Island Football federation, which prevents it from joining FIFA. But this hardly means the Falklands is occupied territory. This probably explains why only 66 MEPs signed the letter when anti-Israel resolutions routinely command vast majorities of the 751-member body.
Moreover, the Palestinian Federation has been a FIFA member for 20 years. When the Palestinian Federation was recognized in 1998, the event barely made news, because everyone understood that it was neither a recognition of Palestinian statehood (this was well before even the nod from the U.N. General Assembly) or a denial of Israeli teams' rights to play where they had been playing. Indeed, the Israelis did not even protest Palestinian membership, as no one had yet invented the spin that the membership had anything to do with settlement teams. The Palestinians also failed to complain until a couple of years ago, when they began to use FIFA as part of their overall effort to "internationalize" their dispute with Israel. (The head of the Palestinian football association, Jibril Rajoub, has been accused of mixing football with celebrations of terrorism.)
The longstanding acceptance of the Israeli teams is further evidence that no one really thinks FIFA rules mean what they are now said to mean.
Much reliance is placed on FIFA not recognizing the teams taken over and reorganized by Russia after its 2014 invasion of Crimea. Of course, in that situation, Russia invaded its neighbor and assimilated its teams. In other words, the teams in question were ones that Russia had actually taken over. Here, no Palestinian team has been taken over by Israel—indeed, every single one of them has been created during Israel's supposed occupation. Nor has Israel invaded and overrun the Palestinian Authority, which was established in 1994—in short, there has been no change in the status quo.
Moreover, FIFA's 2014 action was not its last word. It has since allowed the creation of a separate Crimean federation separate from the Russian one—and the Ukrainian one. Does that mean that FIFA recognizes that the area is no longer part of Ukraine? Hardly. It means that it realizes that the football pitch is not the Peace Palace.