SYMPOSIUM on REVISITING Israel'S SETTLEMENTS the MISSING ARGUMENT: The ARTICLE THAT CHANGED the COURSE of HISTORY?

In July 1967, one month after Israel's occupation of the West Bank, Gaza Strip, Sinai Peninsula, and Golan Heights, Israel's Military Advocate General (MAG), Colonel Meir Shamgar, appeared before a Knesset committee to discuss the Israel Defense Forces (IDF)’s duties in the areas under its control. Col. Shamgar had led the MAG Corps in the preparations in the event that a future war would find the army occupying beyond Israel's borders. Col. Shamgar began his presentation by stating: In terms of the legal background, our point of departure is that we have to respect both the fundamental pursuits of the State of Israel as its military forces begin to control an area that has been liberated by the IDF, and the rules of public international law that apply to the actions of any military in control of an area that was, until its entry, subject to the sovereignty of a foreign political entity.The guiding rules in this realm are the rules of public international law, which are reflected in The Hague Regulations of 1907 … and in the … Fourth Geneva Convention on the Protection of Civilians in Times of War.</jats:p

Are there any inherently public functions for international law?

In “Are There ‘Inherently Sovereign Functions’ in International Law?”, Frédéric Mégret provides a deeply insightful reflection on “the essence of the state” from the point of view of international law, outlining a theory about the inherently sovereign functions in international law. He carefully identifies existing norms of international law that articulate certain public functions to be performed solely by the state rather than delegating them to private actors. Mégret offers functional and intrinsic rationales, suggesting that individuals have a right to benefit from certain public functions exercised by state authority, such as legislation and adjudication, what perhaps could be termed “the human right to the state.” In this essay, I suggest that it is indeed possible to derive such demands from the requirements of stable and sustainable governance that are embedded in the concept of sovereign responsibility, as well as from the rights associated with democracy and self-determination. I further argue that Mégret's inquiry can and must be extended also to explore the other side of the coin: the role of international law in facilitating (and possibly limiting) the delegation of public authority to unaccountable international organizations and other global governance bodies.</jats:p

Exit and Voice in the Age of Globalization

The globalization of commerce provides ever-growing opportunities for producers, employers, and service providers to shop the globe for more amenable jurisdictions. While they enjoy a race to the top, an international race to the bottom, spawned by decreasing relocation costs, threatens to compromise the achievements of the welfare state and lower standards of consumer protection. National governments, weakened by competition that entails leaner budgets, find it increasingly difficult to cooperate in the appropriation of crucial shared natural resources, seriously endangering these assets while damaging the environment. Not only does the growing global competition create both efficiency losses and social-welfare problems, it also challenges principles of democracy and self-determination. As competition constrains nations\u27 available choices, individuals have fewer opportunities to play a meaningful role in shaping their lives through the national collective decisionmaking process. Largely pessimistic analyses of these collective action challenges have been dominated by the Westphalian paradigm- a model of international relations that views global conflicts solely in terms of the 200-some sovereign states that constitute the global arena. The paradigm operates on the still-prevailing premise that nation-states are unitary actors engaging in international competition.1 Even those writers who are themselves aware of the diverse domestic forces that actually shape national policies stop short of identifying the deficiencies - both descriptive and normative - of the Westphalian paradigm. This Article argues that the Westphalian paradigm is inadequate: by focusing exclusively on interstate relations, it obfuscates the crucial role played by competing domestic interest groups in the international arena. This Article advocates a different paradigm - the transnational conflict paradigm - that better explains various collective action failures and points the way toward mechanisms that might correct these problems. At its core lies the observation that states are not monolithic entities; and that many of the pervasive conflicts of interest are in fact more internal than external, stemming from the heterogeneity within, rather than among, states. Indeed, the transnational conflict paradigm shows how domestic interest groups often cooperate with similarly situated foreign interest groups in order to impose externalities on rival domestic groups. The better-organized, and hence more politically effective, domestic interest groups - usually producers, employers, and service suppliers - cooperate with similar interests in different states to exploit less-organized groups such as consumers, employees, and environmentally vulnerable citizens. Thus, the transnational conflict paradigm attributes many global collective action failures to conflicts among warring domestic groups rather than international competition among states

The Margin of Appreciation, subsidiarity and global challenges to democracy

Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and, therefore, any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should, therefore, be secondary confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this essay is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime

The International Law of Prolonged Sieges and Blockades: Gaza as a Case Study

In 2007, after Hamas’ takeover of the Gaza Strip, the area was subjected to an Israeli land siege, complemented in 2009 by a sea blockade. Since then, the already-dire living conditions in the Strip have declined consistently and the area’s dependence on external aid has grown. Yet, there is no end in sight for either the siege or the blockade, or – by extension – for the inhumane circumstances of the Strip’s population. This essay examines the duties of a military power in imposing what is effectively a years-long confinement of people and outlines a general argument for expanding the obligations of a party that imposes a prolonged siege or blockade. I consider these obligations in light of three potentially relevant legal frameworks: the law of occupation; international humanitarian law; and human rights law. In this essay, I argue that, although Gaza is no longer occupied, Israel, in exercising prolonged siege and blockade, must respect a set of obligations that encompass much more than simply not starving the besieged population or not cutting off their water supply. Paying attention only to the basic, biological needs of the besieged population ignores their human dignity because it reduces – in the eyes of the blockader – human existence to the intake of food and water. The essay concludes that the law should be interpreted as demanding that the besieger respect a wider scope of rights – including, among others, the right to enter and exit the besieged area – and, while it may limit such rights, such limitations must be compatible with the requirements of proportionality, taking into account the human toll caused by the extraordinary yet long-term situation

War is Governance: Explaining the Logic of the Laws of War From a Principal-Agent Perspective

What is the purpose of the international law on armed conflict, and why would opponents bent on destroying each other’s capabilities commit to and obey rules designed to limit their choice of targets, weapons, and tactics? Traditionally, answers to this question have been offered on the one hand by moralists who regard the law as being inspired by morality and on the other by realists who explain this branch of law on the basis of reciprocity. Neither side’s answers withstand close scrutiny. In this Article, we develop an alternative explanation that is based on the principal–agent model of domestic governance. We pry open the black box of “the state” and examine the complex interaction between the civilian and military apparatuses seething beneath them veil of sovereignty. Our point of departure is that military conflicts raise significant intrastate conflicts of interest that result from the delegation of authority to engage in combat: between civil society and elected officials, between elected officials and military commanders, and within the military chain of command. We submit that the most effective way to reduce domestic agency costs prevalent in war is by relying on external resources to monitor and discipline the agents. Even though it may be costly, and reciprocity is not assured, principals who worry that agency slack may harm them or their nation’s interests are likely to prefer that international norms regulate warfare. The Article expounds the theory and uses it to explain the evolution of the law and its specific doctrines, and it outlines the normative implications of this new understanding of the purpose of the law. Ultimately, our analysis suggests that as a practical matter, international law enhances the ability of states to amass huge armies because it lowers the costs of controlling them. Therefore, although at times compliance with the law may prove costly in the short run, in the long run states with massive armies are its greatest beneficiaries