When Does a Court Systematically Deviate from its Own Principles? The Adjudication by the Israel Supreme Court of House Demolitions in the Occupied Palestinian Territories

2015 ◽  
Vol 28 (1) ◽  
pp. 31-47
Author(s):  
GUY HARPAZ
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Loss Aversion ◽  
Judicial Review ◽  
Security Threats ◽  
Public International Law ◽  
The Public ◽  
Palestinian Territories ◽  
Omission Bias

AbstractThe judiciary’s counter-majoritarian role in the realm of national security is of paramount importance. By and large the Israel Supreme Court has taken cognizance of this truism and has imposed significant procedural and substantive restrictions on the Israeli military authorities, relying more and more on public international law. Yet when faced with house demolition measures, it has adopted a different stance, preferring to conduct a judicial review which is devoid of any meaningful scrutiny of the measures according to international law. The article attempts to ascertain the reasons for the Court's different judicial position, by advancing, inter alia, legal, historical, socio-political, and personal reasons, reasons relating to the nature of the petitioners, as well as those pertaining to the intertwined concepts of status quo bias, omission bias, and loss aversion. The findings of the case study may be relevant to other courts, in other countries. When faced with deterrent measures that are employed at times of severe security threats and that are strongly supported by the political establishment and by the public, courts may find it difficult to perform a counter-majoritarian role and to abide by their own judicial doctrines and principles.

Being Unfaithful to One's Own Principles: The Israeli Supreme Court and House Demolitions in the Occupied Palestinian Territories

2014 ◽  
Vol 47 (3) ◽  
pp. 401-431 ◽  
Author(s):  
Guy Harpaz
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
International Crime ◽  
Public International Law ◽  
Palestinian Territories ◽  
Critical Scholarship ◽  
House Demolition ◽  
Israeli Supreme Court ◽  
Critical Writings

The practice of house demolition in the Occupied Palestinian Territories (‘the Territories’) pursued by Israel for the purpose of deterring potential terrorist activities (as opposed to planning or operational purposes) has attracted voluminous literature, most of which is critical. Scholarship postulates that the practice is immoral and ineffective, that it is contrary to Jewish morals and international law, and that it may amount to an international crime. Some of the critical writings focus on the practice of the Israel Defence Forces; others concentrate on the failure of the Israeli Parliament to curb the practice, while others examine the practice in its wider context, namely the Israeli–Palestinian conflict. This article focuses on the regulation of the practice by the Israeli Supreme Court (‘the Court’). This theme has already been examined by numerous scholars including, in particular, Kretzmer and Simon, who found that the Court's jurisprudence is contrary to public international law and its reasoning is unpersuasive. This article aims to add to the existing scholarly corpus by using a different prism. It contrasts the Court's house demolition jurisprudence with its own jurisprudence in comparable areas in which it is called upon to resolve tensions between security and human rights in the Territories, postulating that in handling house demolition measures the Court is unfaithful to its own jurisprudence. Building upon these findings, the article distils the manifestations of that unfaithfulness and its negative repercussions in normative, coherence and legitimacy terms. It concludes with the call that when the issue of house demolition is brought back before the Court, it should apply the same approach, spirit, techniques and benchmarks that it has employed in analogous areas of law.

The Squire Law Library at Cambridge: the Historical Development and Current Status of the International Law Collections

2017 ◽  
Vol 17 (2) ◽  
pp. 78-91 ◽  
Author(s):  
Lesley Dingle
Keyword(s):  
International Law ◽  
Historical Development ◽  
Detailed Account ◽  
Current Status ◽  
Public International Law ◽  
The Public ◽  
The Subject ◽  
Law Library

AbstractIn this paper Lesley Dingle provides a detailed account of the historical development of the public international law collections at the Squire Law Library in Cambridge. She explains the close involvement of the academic lawyers and the librarians, past and present, in developing an important collection which reflects the significance of the subject at Cambridge's Faculty of Law. Finally, she brings things up-to-date by detailing the extent of the electronic provision which benefits the modern scholar in this discipline.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

scholarly journals Recognition in international law: The case of Kosovo and Metohija

2015 ◽  
pp. 289-306
Author(s):  
Tijana Surlan
Keyword(s):  
International Law ◽  
Constitutive Theory ◽  
Sovereign State ◽  
Public International Law ◽  
The Public ◽  
The North ◽  
Official Position ◽  
The Status ◽  
North Part ◽  
The Eu

Recognition is an instrument of the public international law founded in the classical international law. Still, it preserves its main characteristics formed in the period when states dominated as the only legal persons in international community. Nevertheless, the instrument of recognition is today as vibrant as ever. As long as it does not have a uniform legal definition and means of application, it leaves room to be applied to very specific cases. In this paper, the instrument of recognition is elaborated from two aspects - theoretical and practical. First (theoretical) part of the paper presents main characteristics of the notion of recognition, as presented in main international law theories - declaratory and constitutive theory. Other part of the paper is focused on the recognition in the case of Kosovo. Within this part, main constitutive elements of state are elaborated, with special attention to Kosovo as self-proclaimed state. Conclusion is that Kosovo does not fulfill main constitutive elements of state. It is not an independent and sovereign state. It is in the status of internationalized entity, with four international missions on the field with competencies in the major fields of state authority - police, judiciary system, prosecution system, army, human rights, etc. Main normative framework for the status of Kosovo is still the UN Resolution 1244. It is also the legal ground for international missions, confirming non-independent status of Kosovo. States that recognized Kosovo despite this deficiency promote the constitutive theory of recognition, while states not recognizing Kosovo promote declaratory theory. Brussels Agreement, signed by representatives of Serbia and Kosovo under the auspices of the EU, has also been elaborated through the notion of recognition - (1) whether it represents recognition; (2) from the perspective of consequences it provokes in relations between Belgrade and Pristina. Official position of Serbian Government is clear - Serbia does not recognize Kosovo as an independent and sovereign state. On the other hand, subject matter of Brussels Agreement creates new means of improvement for Kosovo authorities in the north part of Kosovo. Thus, Serbian position regarding the recognition is twofold - it does not recognize Kosovo in foro externo, and it completes its competences in foro domestico. What has been underlined through the paper and confirmed in the conclusion is that there is not a recognition which has the power to create a state and there is not a non-recognition which has the power to annul a state.

scholarly journals THE APPEARANCE OF THE PENAL INTERNATIONAL LAW AS A BRANCH OF THE PUBLIC INTERNATIONAL LAW

2014 ◽  
Vol 8 (1) ◽  
pp. 122-126
Author(s):  
Daniel Ştefan Paraschiv ◽  
Elena Paraschiv
Keyword(s):  
International Relations ◽  
International Law ◽  
Human Values ◽  
Public International Law ◽  
The Public ◽  
Peace And Security ◽  
The Law

From the oldest times, there appeared certain norms of penal international law meantto prevent the committing of serious offenses, as well as for sanctioning them. This distinctbranch of the public international law is called upon to protect - by sanctioning personsguilty of committing serious offenses - peace and security of the whole humanity, thedevelopment in conformity with the norms of the law and moral of the international relations,the existence and perenniality of fundamental human values.

Omnipotence and the Law: A Psychoanalytically Oriented Analysis

1988 ◽  
Vol 16 (3) ◽  
pp. 421-458
Author(s):  
C. G. Schoenfeld
Keyword(s):  
International Law ◽  
Judicial Review ◽  
Court Decisions ◽  
The Unconscious ◽  
The Public ◽  
Legal Studies ◽  
Dred Scott ◽  
The Status ◽  
The Law ◽  
Infants And Young Children

This article seeks to illuminate the effect of unconscious infantile omnipotence fantasies upon the law and some of its major officials. First, psychoanalytic discoveries about the omnipotence ideas of infants and young children are detailed, and an attempt is made to relate these ideas to the current overestimation of the status and effectiveness of international law. Then the possible relationship between such infantile notions and today's incredible litigiousness is discussed. Considered next in the light of infantile omnipotence beliefs is a series of landmark Supreme Court decisions since 1793—including the disastrous Dred Scott decision that helped to precipitate the Civil War. One of the possibilities raised is that the acceptance of the antimajoritarian concept of “judicial review” reflects the displacement of unconscious omnipotence fantasies from parents onto judges. Discussed next is the implicit logic of currently popular (but clearly unsound) Critical Legal Studies doctrines that, in effect, assign “omnipotence” both to judges and to the law they are presumably free to manipulate in the service of political goals. Finally, an attempt is made to understand why the public tends to ascribe “omnipotence” to judges and prosecutors and why the unconscious omnipotence notions of judges, prosecutors, and policemen are likely to affect their own official behavior.

Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law

1982 ◽  
Vol 76 (2) ◽  
pp. 280-320 ◽  
Author(s):  
Harold G. Maier
Keyword(s):  
International Law ◽  
Private International Law ◽  
Human Beings ◽  
Public And Private ◽  
Public International Law ◽  
The Public ◽  
Nation States ◽  
International Legal System ◽  
Extraterritorial Jurisdiction ◽  
International Systems

Historically, public international law and private international law have been treated as two different legal systems that function more or less independently. Public international law regulates activity among human beings operating in groups called, nation-states, while private international law regulates the activities of smaller subgroups or of individuals as they interact with each other. Since the public international legal system coordinates the interaction of collective human interests through decentralized mechanisms and private international law coordinates the interaction of individual or subgroup interests primarily through centralized mechanisms, these coordinating functions are usually carried out in different forums, each appropriate to the task. The differences between the processes by which sanctions for violation of community norms are applied in the two systems and the differences in the nature of the units making up the communities that establish those norms tend to obscure the fact that both the public and the private international systems coordinate human behavior, and that thus the values that inform both systems must necessarily be the same.

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