Domestic human rights adjudication in the shadow of international law : the status of human rights conventions in Israel
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Israel law review, Vol. 50, no. 3, November 2017, p. 331-388
The quarter-century anniversary of Israel’s ratification of the major U.N. human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. The study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The current study identifies a minor shift in the scope of the Israeli Supreme Court’s reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court’s relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication, following the treaties’ ratification. At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only as a support to its interpretation of the Israeli constitutional law, as it did before the ratification. The paper critically evaluates this practice. While international human rights law should not be domestically binding, due to its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimize a human right infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, as well as the legislature and the government, are required to critically engage with the non-binding norms set by the ratified U.N. human rights treaties.