This issue of the Israel Law Review covers, as usual, a variety of academic works, addressing important substantive questions.
In ‘Unearthing the Problematic Terrain of Prolonged Occupation’ Yutaka Arai-Takahashi explores the travaux préparatoires of key legal instruments on international humanitarian law (IHL) with a view to acquiring crucial insight into the ‘original’ understanding of their drafters as to the provisional nature and the temporal length of occupation. The travaux show that the general premise of the framers was that the legal regime of occupation should be provisional, and that this premise was endorsed by most scholars. Nevertheless, by the time that the 1977 Additional Protocol I was drafted, several instances of protracted occupation already existed. This seems to have led to a decisive shift in the argumentative structure. Nonetheless, the article concludes that the suggestion that nothing under international humanitarian law would forestall an occupying power from engaging in protracted occupation departs from the traditional premise that occupation ought to be merely provisional.
Ramute Remezaite's ‘Challenging the Unconditional: Partial Compliance with ECtHR Judgments in the South Caucasus States’ was first presented at the ESIL Research Forum on International Law in Times of Disorder and Contestation, which took place at the Hebrew University of Jerusalem on 28 February–1 March 2018. The article examines compliance by the South Caucasus states, Armenia, Azerbaijan and Georgia, with judgments of the European Court of Human Rights. This examination is set against a deepening ‘implementation crisis’, in which the obligation of member states of the Council of Europe to abide by the Court's judgments has been increasingly compromised by their selective approach, often resulting in minimal, dilatory or contested compliance, or even refusal to comply. In addition, some of the factors that explain such behaviour may be distinctive of emerging democracies that joined the Council of Europe after the collapse of the Soviet Union, which continue to display various vulnerabilities in the areas of human rights, rule of law and democracy today. This, in turn, has serious implications for the entire European human rights system and its ability to ensure that states’ commitments are duly respected in the longer term.
Antal Berkes's ‘Human Rights Obligations of the Territorial State in the Cyberspace of Areas Outside Its Effective Control’ emanates 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. The article examines the law applicable in situations in which a territorial state ceases to have control over part of its physical territory. That state nonetheless continues to exercise sovereignty in a formal sense over its territory and cyberspace. The article claims that the territorial state, while lacking the effective means to fully control its cyberspace beyond the government-controlled areas, has continuing jurisdiction in law, and is consequently obligated to protect human rights from wrongful acts that originate, occur or have effect in the area outside its effective control. Treaty monitoring bodies have recommended various positive measures that any territorial state is required to take while seeking to restore its sovereignty – including, presumably, ‘internet sovereignty’ – in a separatist region, depending on the means in its power that are feasible in the particular situation.
Finally in this issue, Klaus Beiter analyses Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights. In ‘Where Have All the Scientific and Academic Freedoms Gone? And What is “Adequate for Science”? The Right to Enjoy the Benefits of Scientific Progress and Its Applications’, Beiter warns against construing this provision as entitling states to regulate comprehensively the field of science at the expense of scientific and academic freedom. The article raises four guiding caveats. First, it is crucial to have conceptual clarity concerning and understand the differences between the various rights implicated in scientific research activity. Second, science by its very nature is not susceptible to management. An ‘adequate’ framework for science should therefore limit state intervention and empower the scientific community. Third, regulation has lately adopted a corporatist approach to science in universities and research institutions, which causes harm to scientific research. Finally, the article examines the UNESCO Recommendation on Science and Scientific Researchers of 2017, concluding that the Recommendation fails to address various threats to scientific and academic freedom. Relying throughout on the notion that a science system must be ‘adequate for science’, the article concludes with a set of 22 recommendations on how the right to enjoy the benefits of scientific progress should be construed so as to respect scientific and academic freedom.
We hope you enjoy this issue of the Review!
