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"Eyal Benvenisti"
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Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders
We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.
Journal Article
Community interests across international law
This book explores the extent to which contemporary international law expects states to take into account the interests of others - namely third states or their citizens - when they form and implement their policies, negotiate agreements, and generally conduct their relations with other states. It systematically considers the various manifestations of what has been described as 'community interests' in many areas regulated by international law and observes how the law has evolved from a legal system based on more or less specific consent and aimed at promoting particular interests of states, to one that is more generally oriented towards collectively protecting common interests and values. Through essays by experts in the field, this book explores topics such as the sources of international law and the institutional aspects of developing the law and covers a range of areas within the law.
Book
The WHO—Destined to Fail?
In 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.
Journal Article
The birth and life of the definition of military objectives
The forgotten story of the birth and life of the definition of 'military objectives' is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West German law professor and former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention- grounded in an imagined history of the linear progress of humanity- that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.
Journal Article
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.
Journal Article
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.
Journal Article
The Empire's New Clothes: Political Economy and the Fragmentation of International Law
The decades following the end of the Cold War have witnessed the growing proliferation of international regulatory institutions with overlapping jurisdictions and ambiguous boundaries. Practicing jurists have expressed concern about the effects of this increased fragmentation of international law, but for the most part international legal theorists have tended to dismiss such concerns as unwarranted. Indeed, many regard the resulting competition for influence among institutions as a generative, market-like pluralism that has produced more progress toward integration and democratization than could ever have been achieved through more formal means. In this Article we argue that the problem of fragmentation is more serious than is commonly assumed because it operates to sabotage the evolution of a more democratic and egalitarian international regulatory system and to undermine the reputation of international law for integrity. It is also more resistant to reform. Powerful states labor to maintain and even actively promote fragmentation because it enables them to preserve their dominance in an era in which hierarchy is increasingly viewed as illegitimate, and to opportunistically break the rules without seriously jeopardizing the system they have created. Fragmentation accomplishes this in three ways. First, by creating institutions along narrow, functionalist lines and restricting the scope of multilateral agreements, it limits the opportunities for weaker actors to build the cross-issue coalitions that could potentially increase their bargaining power and influence. Second, the ambiguous boundaries and overlapping authority created by fragmentation dramatically increase the transaction costs that international legal bodies must incur in trying to reintegrate or rationalize the resulting legal order. Third, by suggesting the absence of design and obscuring the role of intentionality, fragmentation frees powerful states from having to assume responsibility for the shortcomings of a global legal system that they themselves have played the major role in creating. The result is a regulatory order that reflects the interests of the powerful that they alone can alter.
Journal Article
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.
eBook
THE MISSING ARGUMENT
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.
Journal Article