Eyal Benvenisti

Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts

Not so long ago the overwhelming majority of courts in democratic countries shared a reluctance to refer to foreign and international law. Their policy was to avoid any application of foreign sources of law that would clash with the position of their domestic governments. Many jurists find recourse to foreign and international law inappropriate. But even the supporters of reference to external sources of law hold this unexplored assumption that reliance on foreign and international law inevitably comes into tension with the value of national sovereignty. Hence, the scholarly debate is framed along the lines of the well-known broader debate on “the countermajoritarian difficulty.” This article questions this assumption of tension. It argues that for courts in most democratic countries—even if not for U.S. courts at present—referring to foreign and international law has become an effective instrument for empoweringthe domestic democratic processes by shielding them from external economic, political, and even legal pressures. Citing international law therefore actually bolsters domestic democratic processes and reclaims national sovereignty from the diverse forces of globalization. Stated differently, most national courts, seeking to maintain the vitality of their national political institutions and to safeguard their own domestic status vis-a-vis the political branches, cannot afford to ignore foreign and international law.

The Origins of the Concept of Belligerent Occupation

The law of occupation imposes two kinds of obligations on an army that seizes control of enemy land during war: the obligation to protect the lives and property of the invaded population and the obligation to respect the sovereign rights of the ousted government. These two principles, which reflect the private and public aspects of the law, stem from unrelated intellectual, social, and political roots. This Essay tracks the parallel yet separate evolution of these two aspects of the law until they merge in the text of the 1899 Hague Regulations. The private aspect, the principle of immunity of private property of enemy nationals, was first raised by Vattel and Rousseau in the second half of the eighteenth century, as an extension of the basic distinction between combatants and non-combatants. The public aspect reflects the crystallization of the idea of sovereignty as a collective claim for exclusive control over territory and nationals, inspired by the ideas of the French Revolution and sustained by the balance of power that emerged in Europe at the time. The Essay traces the development of the notion of belligerent occupation as a regime distinct from conquest and its transformation from an idea into a norm of general international law. This paper is available from the website of the Law and History Review.

The Applicability of Human Rights Conventions to Israel and to the Occupied Territories

The recent ratification of the Convention on the Rights of the Child by the Israeli Government is part of a welcome effort to ratify multilateral conventions dealing with human rights, some of which Israel had signed long ago. In addition to this Convention, the Israeli Government ratified, during the summer of 1991, the 1966 Covenant on Civil and Political Rights, the 1966 Covenant on Economic and Social Rights, the 1979 Convention on the Elimination of Discrimination against Women, and the 1984 Convention Against Torture. On the occasion of the ratification of the Convention on the Rights of the Child, this article discusses the legal implications of the ratification of human rights conventions to the Israeli legal system and to the legal systems in the occupied territories.

The welfare state, globalization, and international law

The Challenge of Migration to the Welfare State.- 1A Comment.- 2 The Costs of International Tax Cooperation.- 3 Globalization, Domestic Politics and the Restructuring of the Welfare State: The Unemployment Insurance Program in Israel.- 4 The Israeli Welfare State: Growing Expectations and Diminishing Returns.- 5 Quod Omnes Tangit: Globalization, Welfare Regimes and Entitlements.- 6 The Search for Core Labor Standards in Liberalized Trade.- 7 The Transformative Weakness of Core Labor Rights in Changing Welfare Regimes.- 7A Comment.- 8 Social Rights Beyond the Traditional Welfare State: International Instruments and the Concept of Individual Entitlements.- 9 The Role of Non-Governmental Organizations in the International Labor Organization.- 10 Welfare and Democracy on a Global Level: The WTO as a Case Study.- lOA Comment.- 11 International Labor Standards and International Trade Law.- 11A Comment.- 12 Enhancing the Role of NGOs in the Global Arena: Towards a New Regime on International Labor Standards.- Appendices.

The impact of international law on international cooperation : theoretical perspectives

1. Introduction Eyal Benvenisti and Moshe Hirsch 2. International law and international relations theory Anne-Marie Slaughter 3. Transformation: alternative pathways to international legalization Kenneth W. Abbott and Duncan Snidal 4. Customary international law as a judicial tool for promoting efficiency Eyal Benvenisti 5. Reputation, cooperation and development George W. Downs and Michael A. Jones 6. Rethinking compliance with international law Edith Brown Weiss 7. Compliance with international norms in the age of globalization: two theoretical perspectives Mosche Hirsch 8. Compliance and non-compliance with international norms in territorial disputes: the Latin American record of arbitrations Arie M. Kacowicz 9. International trade and domestic politics: the domestic sources of international trade agreements and institutions Helen V. Milner 10. Human rights, developing countries and the WTO constraint: the very thing that makes you rich makes me poor? Petros C. Mavroidis 11. Back to court after Shrimp/Turtle: Indias challenge to labor and environmental linkages in the EC generalized system of preferences Robert Howse.

The Influence of International Human Rights Law on the Israeli Legal System: Present and Future.

Since Israels independence, the Supreme Court has been very active in establishing and securing an impressive edifice of human rights. Lacking a written constitution, the Court has based its constitutional jurisprudence on the democratic character of the state. It has developed an “Israeli made” bill of rights, relying on comparative studies, yet with little reference to the standards set in international human rights instruments. Two legal events of the last three years may change the judicial attitude towards international human rights. The first major event was the Israeli governments ratification of important human rights conventions during 1991, first and foremost among them the 1966 Covenant on Civil and Political Rights, which has been named the “International Bill of Rights” (hereinafter: the 1966 Covenant).

The Law of Global Governance

Also available as an e-book The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law — international, regional, domestic, formal or soft — should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations of global institutions to ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analysing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.

Responsibility for the Protection of Human Rights under the Interim Israeli-Palestinian Agreements.

The Israeli-Palestinian Declaration of Principles of September 13, 1993 (the “DOP”), which establishes the framework for the settlement of the conflict between the parties, sets the stage for a gradual transition towards a peace settlement, or the “permanent status” as referred to in the DOP. The interim arrangements outlined in the DOP provide for a step-by-step assumption of responsibilities by Palestinians in the West Bank and the Gaza Strip. The Agreement on the Gaza Strip and the Jericho Area, signed in Cairo on May 4, 1994, prescribes at length the arrangements for the first steps to be taken towards that goal. During the period of the interim arrangements, the Gaza Strip (excluding Israeli settlements and military installations) and the “Jericho Area” are to be administered by a “Palestinian Authority” (PA), a body established under the Cairo Agreement, which is distinct from the PLO.

Prospects for the Increased Independence of International Tribunals

There appears to be a widespread perception, particularly among developing states, that international institutions continue to be disproportionately influenced by a small group of powerful states that played a dominant role in their creation and design. In recent years this has led to a growing acceptance among international legal scholars that the future legitimacy and credibility of international tribunals will be critically tied to the extent to which they are viewed as independent.

Implementing the Law by Impartial Agents: An Exercise in Tort Law and International Law

Lawmakers regularly delegate authority to agents. Such delegation is accompanied by mechanisms that attempt to ensure that the agents adhere to the will of the lawmakers. But these mechanisms are often ineffective or inefficient. Moreover, at times the very imposition of constraints distorts the agents’ incentives and impels them to adopt skewed policies. We suggest that it is possible to reduce such wasteful enforcement costs by delegating authority to certain types of agents who will pursue the lawmaker’s policies without constraints imposed by the lawmaker. In this Article we focus on agents who are impartial — but not indifferent! — and skillful enough to identify the proper course of action. The Article encompasses two main arguments. The normative argument is that when skillful and impartial agents can be identified, it makes sense to delegate to them decision-making powers with only limited constraints. Moreover, in such instances it may be more cost-effective to provide agents with incentives (or design agents, like administrative agencies) to act impartially rather than develop enforcement mechanisms to impose impartiality. The positive argument is that the law — sometimes explicitly and sometimes implicitly — is compatible with our normative argument in various fields. Although our argument is general in scope and applies to many areas of law, in this Article we begin by focusing on tort law and on international law. We distinguish five categories of cases where the law relies on agents and detect in some of them impartial and skillful agents. This analysis demonstrates that, in some of these categories, the law in fact relies on agents with only minimal constraints and that, in other situations, the constraints imposed by the law are counterproductive. Our normative argument thus serves an explanatory role in understanding many legal doctrines and principles, but, at the same time, offers a critical view on other doctrines and principles, which are not compatible with that argument.