International human rights law has struggled to define a standard for determining the extraterritorial applicability of its norms that would reconcile the ethos of universal entitlement, on the one hand, with the centrality of borders in delineating state powers and responsibilities under international law, on the other hand. The case law of the UN Human Rights Committee and the European Court of Human Rights favors barring states from engaging in conduct outside their borders that would be impermissible if undertaken inside (...) their borders. Still, attempts to demarcate the precise scope of extraterritorial application through allusion to degrees of control over individuals or areas, or by the nature of the obligation itself – have led to unsatisfactory, if not arbitrary results. This article opines a move to functionalism as the basis for extraterritorial applicability – requiring states to protect IHRL in situations they can do so. Under this approach, which takes universality seriously, borders lose much their normative significance. I suggest limiting the functional approach to extraterritorial applicability in accordance with two key notions: the intensity of power relations – factual relations of power entailing direct, significant and foreseeable potential impact – should result in the application of IHRL obligations; or, alternatively, special legal relations – relations of power that put the state in a unique legal position to afford IHRL protection would also justify the imposition of extraterritorial obligations. (shrink)

Around the world, many liberal democracies are facing in recent years serious challenges and threats emanating inter alia from the rise of political populism. Such challenges and threats are feeding an almost existential discourse about the crisis of democracy, and recent legal and political developments in Israel aimed at weakening the power of the Supreme Court and other rule of law institutions have also been described in such terms. This Article primarily intends to explore the relevance of the discourse surrounding (...) the decline of liberal democracy, and its possible relevance for Israeli democracy, by examining the principal similarities and differences between specific legislative and administrative measures recently taken or contemplated in Israel and in two Central European states: Poland and Hungary. We focus on three sets of illiberal measures adopted or contemplated in Hungary, Poland, and Israel: (i) measures directed at limiting the power of the judiciary; (ii) measures intended to restrict the operation of civil society organizations; and (iii) measures directed at curbing dissent to governmental policies and at influencing the discourse in the media and academia. Although Israeli democratic institutions still retain much of their independence and vitality, we nonetheless find some degree of similarity between measures taken or contemplated by Hungary, Poland, and Israel, despite the many differences between their legal systems, historical contexts, political cultures, and the distinct stages of backsliding they seem to experience. (shrink)

In “The Blessing of Departure—Exchange of Populated Territories The Lieberman Plan as anExercise in Demographic Transformation,” Prof. Timothy Waters offers a strong endorsement of the right of ethnic majorities within a state to redefine their state's boundaries in ways consistent with the majority's right to self-determination and to opt out of a political union with minority groups, regardless of the latter's' political preferences. Applied to the Israeli context, Waters concludes that parts of the Lieberman Plan—a plan advocating the redrawing of (...) Israel borders, inter alia, in ways which exclude some areas populated by Israeli citizens belonging to the Arab-Palestinian minority —does not run afoul of international law . This short response challenges two points that are central to Waters’s analysis. First, that the right to self-determination of peoples—in particular, the right to external self-determination —is subject to temporal or contextual limitations. The right is fully applicable only in exceptional and formative moments in the life of a nation—e.g., during the formation of a new polity or the collapse of an existing political arrangement , and when states systematically fail to respect the basic interest of some of the groups that comprise its populace—i.e., in response to extraordinary situations of groups exclusion or oppression. Second, even if Waters is correct and an ongoing right to self-determination—including, a right to secede from existing states—is available to ethnic groups comprising diverse national societies, the invocation of such a right must necessarily be limited by other positive rules of international law designed to protect group and individual interests. Specifically, Waters’s concept of self-determination as a right of a preliminary nature, that overrides other human rights , is debatable. (shrink)