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

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

Beyond the ‘sham’ critique and the narrative of humanitarianism: A rejoinder to Jochen von Bernstorff

Abstract We are very grateful to Professor von Bernstorff for taking the trouble to read and comment on our article,1 which is a segment of a larger research project. His feedback will be invaluable in taking this project successfully to its next stage. While we could not address each and every aspect of his critique, the following response addresses four elements: the assertion that we argued that international humanitarian law (IHL) is merely a sham; his description of our historical approach as focused on the domestic; the ramifications of our historical analysis for future interpretation of IHL; and the challenge of one’s Vorverständnis to historical research.</jats:p

The WHO - Destined to Fail?: Political Cooperation and the COVID-19 Pandemic

AbstractIn this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.</jats:p

Sovereignty and the Politics of Property

The debate whether property is a limit on or the product of sovereignty envisages a tension between “the individual owner” and “the state.” But “the state” is not more than the aggregate of individuals who define theirs and others’ property rights through the state’s political process. The underlying tension between property and sovereignty is thus the tension between the economic market and the political market. Owners and others compete simultaneously at both levels to define, protect or improve the value of property. There are two ways to compete in the political marketplace: by engaging in either “high visibility politics” or “low visibility politics.” Diffuse owners rely on high visibility politics promoted by agents such as political parties or trade unions and on elections, referenda and the like, whereas smaller groups of owners prefer the low politics of capturing lawmakers and state executives. When economic markets became global at the end of the Cold War, so did the political markets: property rights increasingly became defined by international agreements, by decisions of international organizations, and by the exercise of “low politics” in foreign, weaker states. The global political markets were dominated by the executive branches of a handful of relatively strong states that, in turn, were responsive to the “low politics” of special interests. The high transaction costs of cooperation among diffuse owners inhibited the parallel rise of “high politics” at the global level. The skewed global political market for property continues to favor special interests, but there are budding attempts to reclaim the space for “high politics” by national regulators and courts. Current negotiations over the so-called “Mega Regional” agreements between the United States and its trading partners will, if successful, nip these buds as they render certain property rights almost immune to the subsequent challenges of high politics.European Research Council (Advanced Grant ID: 323323

Embracing the tension between national and international human rights law: The case for discordant parity

Individual human rights are secured by both constitutional law and international law. The coexistence of constitutional and international law norms is inevitably a source of conflict: which (if any) provision should have the upper hand? This article argues that the conviction that one system is superior to the other is false. Instead, we embrace competition between constitutional and international norms, what we call the “discordant parity hypothesis.” To establish the discordant parity hypothesis, we explore the arguments for the internationalists’ and for constitutionalists’ positions. The overriding power of international law is based on the importance of the state’s publicly recognized duty to protect individual rights. The overriding power of constitutional law stems from its promise to individuals of being the masters of their destiny. Both claims are compelling and we embrace their equal standing and the inevitably resulting conflict. The constant tensions between international norms and state norms are ideally suited to ensure individual liberty.European Research Council Advanced Grant (Grant ID: 323323

The One-State as a Demand of International Law: Jus Cogens

This article provides the initial contours of an argument that uses International Law to challenge the validity of Israeli apartheid. It challenges the conventional discourse of legal debates on Israel’s actions and bordersand seeks to link the illegalities of these actions to the validity of an inbuilt Israeli apartheid. The argument also connects the deontological doctrine of peremptory norms of International Law (jus cogens), the right of self-determination and the International Crime of Apartheid to the doctrine of state recognition. It applies these to the State of Israel and the vision of a single democratic state in historic Palestine

Activism and Legitimation in Israel's Jurisprudence of Occupation

Colonial law need not exclude the colonized in order to subordinate them, and ‘activist’ courts can advance the effect of subordination no less than ‘passive’ courts. As a case study, this article examines the jurisprudential legacy of the Israeli Supreme Court in the context of the prolonged Israeli occupation of Palestine. Applying insights from legal realist, law and society, and critical legal studies scholarship, the article questions the utility of using the activist and passive labels. It illustrates how the Israeli activist court, through multiple legal and discursive moves, has advanced and legitimated the colonization of Palestine; that the court is aware of its role; and that arguments that focus on the court’s informal role do not mitigate this legitimating effect. Unlike other scholars, the article shows that the Israeli court’s role—by extending the power of judicial review to the military’s actions in the occupied areas—is neither novel nor unique or benevolent, as the British colonization of India and the US colonization of Puerto Rico show