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The Practice of Israel in Matters Related to International Law

Published online by Cambridge University Press:  16 February 2016

Becky Cohen
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Extract

A new section dealing with the practice of Israel in matters relating to International Law is being introduced herewith. This section will appear regularly in the Israel Law Review bringing to our readers significant cases as well as developments and trends in this important field of law in Israel. The following survey has been prepared by Ms. B. Cohen under the supervision of Prof. R. Lapidoth and Mr. M. Hirsch of the International Law Department of the Faculty of Law at the Hebrew University. The responsibility for the content is the author's.

Type
International Law
Information
Israel Law Review , Volume 26 , Issue 4 , Autumn 1992 , pp. 559 - 573
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1992

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References

1 Reinhold v. Her Majesty the Queen in Right of Canada, (1991) (iii) P.M. 166.

2 Rina Navot v. South African Airways (1992) N.L.C. 3/213 (not yet published).

3 Cited in Shaw, , International Law, (Cambridge, 3rd ed., 1991) 431Google Scholar.

4 Brownlie, I., Principles of Public International Law, (Oxford, 4th ed., 1990) 332–336Google Scholar.

5 Sansur v. The Greek Consulate General, (1972) 26(ii) P.D. 328. The Sansur case dealt with an order issued to the Consul General to vacate the premises belonging to Sansur on account of unpaid rent. The Court ruled that it did not have jurisdiction, and that any court decision pertaining to the Consulate General would be void; See also Shabbabo v. Haylen, (1953) P.M. 502, at 503; Carmi v. & Dolberg, (1980) (ii) P.M. 265. The Carmi case dealt with a petition to present accounting records with regard to certain sums which were to be transferred to the National Bank of Romania. The principal question dealt with by the court was that of jurisdiction. The court stated that the relevant transaction was of a commercial nature and the doctrine of sovereign immunity was not applicable to the case (the court related to the doctrine of sovereign immunity albeit stating it was an obiter dictum).

6 E.g., the United States, Britain, Switzerland, as well as an inclination in this direction by some Third World countries, such as India (see Hingorani, R.C., Modern International Law, (New York & India, 2nd ed., 1984) 125–127Google Scholar. See also Shaw, International Law, supra n. 3, at 436.

7 Nener, , “The Legal Basis for Diplomatic and Sovereign Immunity” (1973) 29 HaPraklit 49 ffGoogle Scholar., in favour of the absolute doctrine; Y. Moritz, “Diplomatic Immunity in Commercial Disputes”, ibid. 195-196, in favour of the restrictive doctrine.

8 Defined as a “… stable, general and consistent mode of action… which is accepted by the overwhelming majority of those who are active in the said area of the law”. Abu Aita et al. v. Commander of the Judea and Samaria Region et al. (1983) 37(ii) P.D. 197, at 238, 239.

9 Reinhold, supra n. 1, at 174.

10 Ibid.

11 State Immunity Act, 1980, 1981, 1982, 1983, c. 95, sections 6 and 2 as cited in the judgment, p. 175.

12 See Shaw, supra n. 3, at 444-450 for a discussion of these criteria.

13 The criterion accepted in Carmi v. Dolberg, supra n. 5. Here Nathan J. stated that there was no customary law regarding the criteria for differentiating, but none the less used the above criteria in the case before him.

14 Supra n. 2.

15 Statutes of the Republic of South Africa, Railways and Harbours, SS 2-5, South African Transport Services Act, No. 650, (1981), SS 2-5, as cited in the Navot case, p. 2.

16 Weiss v. The German Embassy in Israel, N.L.C. 3/32 (not published).

17 Morris v. The Republic of South Africa (1988/89) 19 P.D.A. 657.

18 Sansur v. The Greece Consulate, supra n. 5, at 328.

19 Carmi v. Dolberg, supra n. 5.

20 See supra nn. 1 and 5.

21 By the State Immunity Act of 1978.

22 Trendex Trading Co. v. Central Bank of Nigeria (1977) as cited in the judgment, at pp. 9-10.

23 Draft Articles on Jurisdictional Immunities of States and their Property (1991) 30 I.L.M. 1568, at 1569.

24 Navot case, supra n. 2, at 8 ff. (mimeographed).

25 Jerusalem District Court, (1989) (iii) P.M. 336.

26 Shwebel, S. M., “What Weight to Conquest” (1970) 64 Am. J. Int'l L. 344, at 346Google Scholar.

27 Lauterpacht, E., Jerusalem and the Holy Places, (1968) 47–48Google Scholar.

28 Blum, Y. Z., “Zion Has Been Redeemed in International Law” (1970) 27 HaPraklit 315, at 320Google Scholar; “Jerusalem is Not Occupied Territory” (1972) 28 HaPraklit 183Google Scholar; and see The Juridical Status of Jerusalem (Jerusalem, 1974) 5Google Scholar.

29 Dinstein, Y., “Zion Shall be Redeemed by International Law” (1971) 27 HaPraklit 5Google Scholar; “Zion Has Not been Redeemed or Actions Not Speeches” (1971) 27 HaPraklit 519, at 521Google Scholar; and an answer to Mr.Dawik, , (1971) 27 HaPraklit 292, at 293Google Scholar.

30 Cattan, H., Jerusalem (New York, 1981) 64Google Scholar; The Palestine Question (London, 1988) 324, at 326Google Scholar; and Palestine and International Law (London, 1973) 71Google Scholar.

31 Mallison, W. T. and Mallison, S. V., The Palestine Problem in International Law and World Order (London, 1986) 197–201, 206, 233Google Scholar; and also “The Status of Jerusalem as a Question of International Law” in Kochler, H., ed., The Legal Aspects of the Palestine Problem (Vienna, 1980) 98, at 110–112Google Scholar.

32 21 L.S.I. 75.

33 Regulation 2064 of the 28th of June 1967, p. 2690.

34 Ben Dov v. Minister of Religious Affairs (1968) 22(i) P.D. 440-442.

35 Chanzales v. The Court of the Orthodox Greek Patriarchate (1969) 23 (i) P.D. 260.

36 Ruidi v. The Military Court of Hebron (1970) 24(ii) P.D. 419.

37 Extradition Law, 1954 (8 L.S.I. 144).

38 Supra n. 25, at 338.

39 Angel and Freedman v. The State of Israel (1980) 34(iii) P.D. 98, at 103.

40 Supra n. 36, at 424.

41 S.H. no. 1355, p. 148. The Law was enacted by the Knesset on 20 May 1991 and came into effect with its publication on 29 May 1991.

42 As yet unpublished (1992).

43 The High Court of Justice has authority, in accordance with section 15(d) of the Basic Law: Judicature (38 L.S.I. 101, at 104) to instruct the abductor to return the child (under “habeas corpus”).

44 At p. 8 of the judgment (mimeographed). This is also a question dealt with at length in the case of Teichner v. Air France (1984) 41(i) P.D. 589, at 634-641. There the issue was whether a law based on a convention should be interpreted according to Israeli or international legal norms.

45 The judge was referring to a commission established in 1989 to exchange views on a uniform application of the Convention.

46 Netanyahu J. referred to previous cases that relate to the broader question of “the child's welfare”: Becher v. Gale (1987) 41(iii) P.D. 706; Avroch v. Avroch (1985) 39(i) P.D. 57; Tzaluck v. Tzaluck (1986) 40(i) P.D. 516.

47 Other International conventions concerning human rights to which Israel is a party include, inter alia: The International Convention on the Elimination of Racial Discrimination, signed by Israel on 7 March 1966, ratified on 3 January 1979; The International Convention against Torture and Other Cruel, Inhuman and Degrading Punishments, signed by Israel on 22 October 1986, ratified on 3 October 1991; The International Convention on the Elimination of all Forms of Discrimination Against Women, signed by Israel on 17 July 1980, ratified on 3 October 1991; The International Covenant on Economic, Social and Cultural Rights, signed by Israel on 19 December 1966, ratified on 3 October 1991; The International Convention on the Rights of the Child, signed by Israel on 3 July 1990, ratified on 3 October 1991.