Issue 52(1) of the Israel Law Review features four articles and two public lectures, as well as a response to a book review published in our previous issue.
The first article in this issue, Pål Wrange's ‘Self-Determination, Occupation and the Authority to Exploit Natural Resources: Trajectories from Four European Judgments on Western Sahara’, was first presented in May 2017 at the international conference entitled ‘50 Years after 1967: Evaluating the Past, Present and Future of the Law of Belligerent Occupation’. This conference was held in Jerusalem jointly by the Minerva Center for Human Rights at the Hebrew University of Jerusalem and Tel Aviv University, the Emile Zola Chair for Human Rights at the College of Management Academic Studies, and the International Committee of the Red Cross Delegation to Israel and the Occupied Territories. The article examines recent case law of the European Union and the United Kingdom relating to Western Sahara. It notes that despite the general view that Western Sahara is under belligerent occupation, none of the court decisions invoked the law of occupation, but were based instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. The article suggests that this law and the law of occupation may be converging in certain respects, in particular as regards long-term occupation.
Three articles in the isssue address human rights perspectives on cyber activity. Daragh Murray and Pete Fussey, in ‘Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law Approach to Bulk Monitoring of Communications Data’, undertake a critical examination of both the potential utility of bulk communications surveillance and the potential human rights-related harm. They argue that calculations of utility and harm can conceal the complex nature of contemporary digital surveillance practices, rendering current approaches to the ‘necessity’ test problematic. The article argues that the distinction between content and communications data should be removed, that analysis of surveillance-related harm must extend beyond privacy implications and incorporate society-wide effects, and that a more nuanced approach to bulk communications data should be developed. The article offers suggestions on how the ‘necessity’ of bulk surveillance measures may be evaluated, with an emphasis on understanding the type of activity that may qualify as ‘serious crime’.
The two other cyber-related contributions emanate from the ‘Cyber Challenges to International Human Rights’ Conference at the Hebrew University of Jerusalem in December 2017, organised by the University's Cyber Security Research Centre. In ‘Half-Hearted Inception, Miserable Existence, and the Untimely Death of the Bloggers’ Register in Russia’, Oleg Soldatov explores Russian Federal Law 97-FZ, commonly referred to as the ‘Bloggers’ Law’. This law required the compulsory registration of all popular bloggers with the country's internet regulatory agency, Roskomnadzor, thereby forcing the disclosure of their real identities. In 2017 the law was repealed and updating of the ‘Bloggers’ Register’ ceased. The article analyses the context and the reasoning behind the introduction of the Bloggers’ Register and assesses its effectiveness, drawing conclusions based on events in the Russian blogosphere during the period 2014–17.
In ‘A Reality of Vulnerability and Dependence: Internet Access as a Human Right’, Ryan Shandler and Daphna Canetti explore various theories that seek to explain how internet access could acquire the status of a human right. These theories include reliance on the forms of freedom of expression protection offered by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, on customary international law, and on the notion that internet access could attain the status of an auxiliary human right. The article examines these theories through the prism of internet dependence and vulnerability. The authors find that auxiliary righthood is the most promising approach, but that additional research is required to substantiate the claims.
This issue also features two public lectures given on different occasions at the Hebrew University of Jerusalem. ‘Judicial Independence, Democracy and Human Rights’ was given in April 2018 by Justice Rosalie Silberman Abella, of the Supreme Court of Canada and member of the Israel Law Review's international advisory board. In this address, among other things, Justice Abella called attention to worrying developments in the relations between the political and judicial branches in Israel.
The other public address is ‘Taking Stock of Three Generations of Research on Treaty Exit’, a masterclass given by Laurence Helfer during the European Society of International Law (ESIL) Research Forum held at the Hebrew University of Jerusalem in February 2018. It discusses the contestation by states of the authority of international organisations, international courts and international agreements, by formally withdrawing from those organisations, courts and agreements. Helfer provides an overview of the literature on exiting, and identifies different phases or generations of scholarship. He concludes by identifying a few unsettled legal issues that scholars might examine in future research.
In the book review section, Daniel Costelloe responds to the review by Alexander Orakhelashvili of his book Legal Consequences of Peremptory Norms in International Law, published in issue 51(3).
Finally, it is our pleasure to conclude this introduction with the announcement that the 2018 Israel Law Review Article Prize has been awarded to Kyo Arai for his article ‘Between Consented and Un-Contested Occupation’, published in issue 51(3). Congratulations, Professor Arai!
