Yuval Shany

Living in Denial: The Application of Human Rights in the Occupied Territories

Are human rights norms applicable to occupied territories in general, and to the West Bank and the Gaza Strip in particular? The article examines the controversy that had arisen between Israel and the UN treaty monitoring bodies in relation to this question and critically analyzes Israels three objections to such applicability: 1) the mutual exclusivity of humanitarian regime and human rights regime in occupied territories, the former being thus the only applicable law; 2) a restrictive interpretation of the jurisdictional provisions treaties; and 3) the lack of effective control in some of the territories. The article posits that the universal object and purpose of human rights treaties, which inform the proper interpretation of their jurisdictional clauses, require their applicability in all territories subject to the effective control of the state parties, as well as to other extra-territorial exercises of government power directly affecting individuals. Consequently, international human rights law and international humanitarian law apply in occupied territories in parallel and not to the exclusion of one another. This position is confirmed by extensive practice of the international human rights monitoring bodies, the International Court of Justice (ICJ), and by some decisions of the Israeli Supreme Court. In conclusion, the paper posits that Israels refusal to apply the six principal human rights treaties to which it is party to the Occupied Territories is incompatible with its international law obligations and proceeds to propose modalities for the co-application of both human rights and humanitarian law in occupied territories.

The competing jurisdictions of international courts and tribunals

INTRODUCTION PART I OVERLAPS BETWEEN THE JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 1. What Constitutes Competing Proceedings? 2. Delineation of Jurisdictional Overlaps: Theory and Practice PART II LEGAL AND POLICY ISSUES CONCERNING THE COMPETITION BETWEEN THE JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS 3. Jurisdictional Competition in View of the Systematic Nature of International Courts and Tribunals 4. Jurisdiction-Regulating Norms Governing Competition Involving Domestic Courts: Should They be Introduced into International Law? PART III THE REGULATION OF COMPETITION BETWEEN JURISDICTIONS OF INTERNATIONAL COURTS AND TRIBUNALS: LEX LATA AND LEX FERENDA 5. Competition-Regulating Norms found in Instruments Governing the Jurisdiction of International Courts and Tribunals 6. Jurisdiction-Regulating Norms, Derived From Sources Other than Treaties, as Applied by International Courts and Tribunals 7. Possibilities for Future Improvement Conclusions Table of Authorities Index

Assessing the effectiveness of International Courts: a goal-based approach

During the last twenty years, the world has experienced a sharp rise in the number of international courts and tribunals, and a correlative expansion of their jurisdictions. These occurrences have dramatically affected and will continue to affect the fields of international law and international relations. The creation and operation of international judicial bodies that are capable of enforcing international commitments, interpreting international treaties, and settling international conflicts have facilitated the growth of international legal norms and cooperative regimes governing important areas of international law and politics, such as economic relations, human rights, and armed conflicts. International courts — understood in this article as independent judicial bodies created by international instruments and invested with the authority to apply international law to specific cases brought before them — have thus become important actors as well as policy instruments in the hands of international lawmakers. Such courts serve, in some respects, as the lynchpin of a new, rule-based international order, which increasingly displaces or purports to displace the previous power-based international order.

Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement

The present note seeks to analyse, in brief, the conflicting positions on the legal status of the Gaza Strip in the aftermath of the withdrawal of the IDF in 2005. In doing so, it strives to identify the relevant legal conditions governing the beginning and end of occupation and to apply them to the situation in Gaza. The note argues that the three pronged test for the existence of occupation set out in the 1948 Hostages case (which was reaffirmed, inter alia, by the Israeli Supreme Court in the 1983 Tsemel case) should be applied - actual presence of hostile forces in the territory; their potential to exercise effective powers of government in the area; and the inability of the legitimate government of the area to exercise its sovereign authority over the territory. The recent decision of the International Court of Justice (ICJ) in Armed Activities in Congo represents a regrettable departure from the traditional understanding of the conditions of occupation, which has undesirable policy implications. Application of the three aforementioned tests to the situation in Gaza might produce mixed results: Although Israeli forces have left Gaza, some legal theories might downplay the significance of their lack of physical presence on the ground; in addition, it seems that Israel still exercises some control over Gaza in parallel with the Palestinian Authority (PA). The note argues that in order to identify the ultimate power of government in Gaza one should engage in a comparative analysis of the degree of effective control exercised by the two competing sources of authority. This comparative analysis suggests after the Israeli disengagement, the PA is better situated than Israel to exercise most powers of government in the Gaza Strip and that, as a result, it is difficult to continue and regard Israel as the occupying power in Gaza under the traditional law of occupation.

The Israeli Supreme Court and the Incremental Expansion of the Scope of Discretion Under Belligerent Occupation Law

On December 29, 2009, the Israeli Supreme Court, sitting as the High Court of Justice, delivered its judgment in Abu Safiyav. The Minister of Defense, annulling an order issued by an Israeli Military Commander, which completely barred Palestinians from travelling on Route 443, a major road in the West Bank. This note criticizes the Abu Safiya judgment as indicative, notwithstanding its specific outcome, of the Supreme Court’s ongoing willingness to expand the ratione materiae and ratione personae of occupation law and to allow the military authorities to protect the interests of Israelis in the West Bank, even at the expense of the stronger rights conferred upon the local Palestinian population by the lex specialis — the laws of belligerent occupation.

Assessing the effectiveness of international courts

PART I: THE GOAL-BASED APPROACH PART II: APPLICATION OF THE GOAL-BASED APPROACH TO JUDICIAL FUNCTIONS AND FEATURES PART III: APPLICATION OF THE GOAL-BASED APPROACH TO SPECIFIC COURTS

Capacities and Inadequacies: A Look at the Two Separation Barrier Cases

Comparison between the two decisions of the International Court of Justice and the Israeli Supreme Court on the legality of Israels West Bank controversial separation barrier illustrates some of the inherent differences between national and international legal proceedings. The note critically assesses these differences and advocates a more comity based framework of cooperation between national and international courts. Specifically, the note argues that the fact-gathering and fact-analysis process demonstrated in the Hague Advisory Opinion is problematic, as were the Courts refusal to show any deference to the Israeli authorities and empathy towards the Israeli public. These deficiencies reduce the persuasiveness of the Opinion and render its acceptance by Israel less likely. At the same time, the failure of the Israeli Supreme Court to address the link between the route of the barrier and the alleged illegality of the settlement detracts from the normative value of the judgment and highlight the political constrains in which domestic courts operate. As a result, resort to a comity-based framework in which the national and international courts strive to draw upon each others institutional advantages in the fields of fact-finding, compliance-pull and international law expertise would have been beneficial.

Regulating jurisdictional relations between national and international courts

Introduction I. Doctrinal Implications of Increased Jurisdictional Interaction II. The Internationalization of the National III. The Need for Regulation PART I: COMPETING PARADIGMS FOR DELINEATING THE RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS 1. Categorizing Vertical and Horizontal Jurisdictional Interaction 1.1 Stating the Obvious: Regulated Interactions between National and International Courts 1.2 Uncharted Territory: Unregulated Interactions between National and International Courts 2. Conceptualizing the Relations between National and International Courts 2.1 Tradtional Objections to Regulation: Dualism and Hierarchy 2.2 Alternative Relationship Theories 3. The Fragmentation of International Law 3.1 Fragmentation and Jurisdictional Interaction 3.2 Disintegrationism and Integrationism in Practice 3.3 Analogies to the National/International Relationship II: REGULATING RELATIONS BETWEEN NATIONAL AND INTERNATIONAL COURTS 4. The Feasibility of Regulation: Do National and International Proceedings Overlap? 4.1 Non-Hierarchical Context 4.2 Applicability of International Jurisdiction-regulating Rules 4.3 Conditions of Jurisdictional Competition 4.4 Interim Conclusions 5. Application of Jurisdictional-regulating Norms 5.1 Choice of Forum Rules 5.2 Multiple Proceedings 5.3 Interim Conclusions 6. Flexible Jurisdiction-regulating Rules 6.1 Comity 6.2 Abus de droit 6.3 Interim Conclusions Conclusions

Contract Claims v. Treaty Claims: Mapping Conflicts Between ICSID Decisions on Multi-Sourced Investment Claims

Three recent ICSID cases - Vivendi, SGS v. Pakistan, and SGS v. Philippines - have exposed some of the more difficult theoretical and practical uncertainties underlying modern international investment law. Specifically, the trilogy of cases reveals inconsistent approaches by international arbitrators to delineating the relationship between the contract claims and treaty claims. The note maps the legal questions raised by the surveyed decisions and discusses the various integrationist and disintegrationist methodologies arbitrators employ in order to regulate the interplay between contract and treaty claims. In addition, it tries to link the debate on the relations between contract claims and treaty claims to other debates on the relations between overlapping legal regimes taking place in the world of international investment law and in other areas of international law. Finally, it offers some pragmatic tools - the principles of judicial comity and abus de droit - capable of alleviating some of the tensions between contract and treaty claims.

Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts

The purpose of the present article is to critically evaluate the contemporary international law obligation to investigate military conduct in times of conflict and to identify relevant normative trends. In a nutshell, we argue that the traditional focus on the Geneva grave breaches regime in the context of military investigations is misplaced. The duty to investigate is far broader – encompassing the alleged violation of many other norms of IHL and IHRL.