¹ For comparative studies see, eg, Shany, Yuval, ‘How Supreme is the Supreme Law of the Land? A Comparative Analysis of the Influence of International Human Rights Conventions upon the Interpretation of Constitutional Texts by Domestic Courts’ (2006) 31 Brooklyn Journal of International Law 341 Google Scholar; Sloss, David, ‘Treaty Enforcement in Domestic Courts: A Comparative Analysis’ in Sloss, David (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge University Press 2009) 1 Google Scholar; Nollkaemper, André, National Courts and the International Rule of Law (Oxford University Press 2011)Google Scholar; Shelton, Dinah (ed), International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (Oxford University Press 2011)Google Scholar.

² Even this premise is subject to debate. For an argument that human beings are becoming the primary international legal persons and that even ‘ordinary’ international rights, and not only ‘human’ (or ‘fundamental’) rights, flow directly from international law, see Peters, Anne, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge University Press 2016)Google Scholar.

³ Benvenisti, Eyal, ‘The Influence of International Human Rights Law on the Israeli Legal System: Present and Future’ (1994) 28 Israel Law Review 136 CrossRefGoogle Scholar.

⁴ Kretzmer, David, ‘Fifty Years of Supreme Court Jurisprudence in Human Rights’ (1999) 5 Mishpat Umimshal [Law and Government in Israel] 297, 335Google Scholar (in Hebrew) (arguing that it is time to couple the two human rights revolutions into one, and rule that a norm is constitutionally valid only if it is compatible with both domestic constitutional law and international human rights law); Ben-Naftali, Orna and Shany, Yuval, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003) 37 Israel Law Review 17 Google Scholar; Shany, Yuval, ‘Social, Economic and Cultural Rights in International Law: What Use Can the Israeli Courts Make of Them’ in Rabin, Yoram and Shany, Yuval (eds), Economic, Social and Cultural Rights in Israel (Ramot 2004) 297, 333–45Google Scholar (in Hebrew); Barak-Erez, Daphne, ‘The International Law of Human Rights and Constitutional Law: A Case Study of an Expanding Dialogue’ (2004) 2 International Journal of Constitutional Law 611 Google Scholar. See also Lapidoth, Ruth, ‘International Law within the Israeli Legal System’ (1990) 24 Israel Law Review 451 Google Scholar; Hirsch, Moshe (ed), The Treaty-Making Power in Israel: A Critical Appraisal and Proposed Reform (The Leonard Davis Institute of International Relations 2008)Google Scholar (in Hebrew); Zilbershats, Yaffa, ‘The Adoption of International Law into Israeli Law: The Real is Ideal’ (1996) 25 Israel Yearbook on Human Rights 243 Google Scholar.

⁵ Benvenisti (n 3) 144.

⁶ Simmons, Beth A, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge University Press 2009) 296–306 Google Scholar.

⁷ ibid 304. For a discussion see n 72 and accompanying text.

⁸ Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV).

⁹ Benvenisti (n 3) 144.

¹⁰ For a comparative study on the status of international law in constitutions see Tom Ginsburg, Svitlana Chernykh and Zachary Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ [2008] University of Illinois Law Review 201.

¹¹ eg CrimA 5/51 Steinberg v Attorney General 1951 PD 5, 1061 Google Scholar, para 5 (Justice Zussman): ‘It is possible that international law obliges the state, but since this law does not deal with the relations between the state and its citizens but rather with its relations with other states, the obligation is imposed only for the benefit of other states, whereas the citizen is not bestowed with any right to demand fulfilling such obligation. Moreover, the courts of this country derive their judicial power from the laws of the state rather than from the international legal system. Thus, a person who is charged for violating the law of the state cannot find a defense in international law, as the courts rule on the relations between individuals and the state based exclusively on domestic laws’ (in Hebrew).

¹² This norm was first established in Emergency Regulations, December 1948 (Israel). The Regulations were later replaced by the Absentees’ Property Law, 1950 (Israel).

¹³ CA 25/55 The Custodian of the Property of Absentees v Samara 1956 PD 10, 1825, 1829Google Scholar (Justice Berenzon): ‘[T]he treaty is not a law that our courts will refer to or give an effect whatsoever. The rights that the treaty confers and the obligations it imposes are rights and duties of the state parties to the agreement … Such an agreement is not justiciable in domestic courts, unless enacted and became a law. … The persons affected by the treaty do not gain any right based on it’.

¹⁴ eg CA 65/67 Kurtz v Kirschen 1967 PD 21(2) 20 Google Scholar, para 5 (Justice Cohn): ‘[a treaty-based norm is not domestically binding] if it is in contradiction with a domestic law’ (in Hebrew); CrimA 131/67 Kamiar v State of Israel 1968 PD 22(2) 85, 112Google Scholar (Justice Landau): ‘when domestic law contradicts a norm of international law, the Court is obliged to give preference to domestic law’ (in Hebrew).

¹⁵ eg HCJ 419/83 Doron v Foreign Currency Commissioner 1984 PD 38(2) 323, 333Google Scholar: ‘treaty provisions … are not part of the law applicable in Israel, but norms that apply only in the international sphere’ (in Hebrew); HCJ 7146/12 Adam v The Knesset ILDC 2078 (IL 2013), para 7 (Justice Arbel), http://elyon1.court.gov.il/files/12/460/071/b24/12071460.b24.htm; AdminA 4204/13 State of Israel v Solo (27 July 2014), para 5 (Justice Hendel) (for the purpose of domestic administrative law, treaty provisions do not restrict the discretion of officer holders in implementing their power according to domestic legislation), http://elyon1.court.gov.il/files/13/040/042/z08/13042040.z08.htm; HCJ 2587/04 Buchris v Tax Officer Hadera (unpublished, 23 June 2005), para 14, http://elyon1.court.gov.il/files/04/870/025/A05/04025870.a05.htm. Accordingly, the Court ruled that the requirement to officially publish laws does not apply to treaties, as they are not legally binding domestically. See also CA 580/82 Insurance Corporation of Ireland Ltd v State of Israel 1987 PD 41(2) 309 Google Scholar.

¹⁶ Steinberg v Attorney General (n 11).

¹⁷ According to Basic Law: The President of the State, 1964 (Israel), the President, whose powers are mostly ceremonial, is empowered to ‘sign such conventions with foreign states as have been ratified by the Knesset’ (art 11(a)(5)) (translated by the Knesset). One may interpret this provision as inferring that the power to ratify treaties is bestowed on the Knesset. However, in Kamiar (n 14) 113, the Court ruled that in the absence of explicit provisions on this matter in Basic Law: the Knesset and Basic Law: the Government, the above norm refers only to a subset (which is still empty) of the conventions that Israel signed which the Knesset chose to ratify. This norm does not determine the allocation of powers between the legislative and the executive branches. At the time of this ruling hundreds of treaties had already been ratified by the government, and the Court was thus bound by the custom that had formed.

¹⁸ This doctrine is subject to two qualifications. First, the practice is that the government is required to inform the Knesset about its intent to ratify a treaty. Second, according to the probably binding constitutional convention, treaties that include a provision about disengagement from territories under Israeli control, such as the peace agreements with Egypt (1979) and Jordan (1994), are subject to the Knesset's approval: see, eg, Hirsch (n 4); Zilbershats (n 4).

¹⁹ HCJ 785/87 Affo v Commander of IDF Forces in the West Bank 1988 PD 42(2) 1 Google Scholar, para 6 (Justice Shamgar), http://elyon1.court.gov.il/files_eng/87/850/007/Z01/87007850.z01.htm.

²⁰ See, eg, Hirsch (n 4); Zilbershats (n 4).

²¹ HCJ 279/51 Amsterdam v Minister of Finance 1952 PD 6, 945, 965Google Scholar (Justice Agranat) (in Hebrew).

²² CrimA 336/61 Eichmann v Attorney General 1962 PD 16, 2033Google Scholar, 2041, http://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Israel/Eichmann_Appeals_Judgement_29-5-1962.pdf.

²³ Motion 41/49 Shimshon Ltd v Attorney General 1950 PD 4, 143, 146Google Scholar (Justice Dunkelblum).

²⁴ eg Eichmann (n 22) 2041.

²⁵ eg HCJ 73/53 Kol Ha'am Company Ltd v Minister of the Interior 1953 PD 7, 871, 884Google Scholar, http://elyon1.court.gov.il/files_eng/53/730/000/Z01/53000730.z01.htm.

²⁶ For a discussion on the domestic status of customary international law see also, eg, RCA 7092/94 Her Majesty the Queen in Right of Canada v Edelson 1997 PD 51(1) 625 Google Scholar.

²⁷ International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

²⁸ HCJ 103/67 American-European Beth-El Mission v Minister of Social Security 1967 PD 21(2) 325, 333Google Scholar. Justice Cohn presented a similar view, again in a concurring opinion, regarding the Convention Relating to the Status of Stateless Persons ((entered into force 6 June 1960) 360 UNTS 117), in Kurtz v Kirschen (n 14) 26–27: ‘The Israeli legislature did not find it necessary to give Article 12 [of the ICCPR] the status of binding law by enacting it. This is understandable: It is a provision that all nations agreed to, [and] it represents a norm of customary international law’ (in Hebrew). See also HCJ 4542/02 Kav LaOved Workers’ Hotline v Government of Israel 2006 PD 61(1) 346 Google Scholar, http://versa.cardozo.yu.edu/opinions/kav-laoved-worker%E2%80%99s-hotline-v-government-israel.

²⁹ American-European Beth-El Mission, ibid 329.

³⁰ eg CA 2266/93 X v Y 1995 PD 49(1) 221, para 4Google Scholar (Chief Justice Shamgar): ‘The appellant [mother] argues that the [family court's] decision prohibiting her from providing the children religious education unjustifiably infringes the children's religious freedom … She bases her argument on Article 14 of the Convention on the Rights of the Child. … [The argument] that parents and children are entitled to religious freedom is valid regardless of the Convention. … Religious freedom is a fundamental principle of our legal system. It was set in the Declaration of Independence and in the Court's extensive rulings’ (in Hebrew).

³¹ eg Kamiar (n 14) 103–11, in which the decision that the government's ratification of a treaty is valid at the domestic level was based on the Court's finding that such a ratification is recognised as valid according to customary international law.

³² An example is CrimA 174/54 Stampfer v Attorney General 1955 PD 5, para 4Google Scholar, in which the Court ruled that the government may impose criminal liability on activities taken on board ships sailing under its flag, based on customary international law.

³³ Eichmann (n 22) 2060: ‘The crimes established in the Law of 1950, which we have grouped under the inclusive heading “Crimes against Humanity”, must be seen today as acts that have always been forbidden by customary international law. … This being so, the enactment of the Law was not, from the point of view of international law, a legislative act that conflicted with the principle nulla poena or the operation of which was retroactive, but rather one by which the Knesset gave effect to international law and its objectives’.

³⁴ For a critical discussion see, eg, Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (SUNY Press 2002)Google Scholar.

³⁵ eg Cohen, Amichai, ‘Administering the Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories’ (2005) 38 Israel Law Review 24 Google Scholar; Kretzmer, ibid; Barak-Erez (n 4) 618–23.

³⁶ eg Affo (n 19) para 5; HCJ 253/88 Sajadiya v Minister of Defense 1988 PD 42(3) 801, para 6Google Scholar (Justice Shamgar).

³⁷ Implementing this position did not require resolving the formal status of the Geneva Convention, given the Israeli government's statement that it will de facto, without recognising the treaty to be domestically binding, comply with its ‘humanitarian provisions’: Shamgar, Meir, ‘The Observance of International Law in the Administered Territories’ (1971) 1 Israel Yearbook on Human Rights 262 Google Scholar. See also, eg, HCJ 769/02 The Public Committee against Torture in Israel v The Government of Israel 2006 PD 62(1) 507, para 20Google Scholar, http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.htm; HCJ 8091/14 Center for the Defense of the Individual v Minister of Defense (31 December 2014), http://elyon1.court.gov.il/files/14/910/080/t03/14080910.t03.htm.

³⁸ eg HCJ 3799/02 Adalah, The Legal Center for Arab Minority Rights in Israel v GOC Central Command 2005 PD 60(3) 67 Google Scholar, http://elyon1.court.gov.il/files_eng/02/990/037/A32/02037990.a32.htm; HCJ 7015/02 Ajuri v IDF Commander in the West Bank 2002 PD 56(6) 352 Google Scholar, http://elyon1.court.gov.il/files_eng/02/150/070/A15/02070150.a15.htm.

³⁹ Sajadiya (n 36) 812–16.

⁴⁰ Eichmann (n 22) 2041.

⁴¹ Sajadiya (n 36) 815–16.

⁴² Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461.

⁴³ Affo (n 19) 39. See also HCJ 1661/05 Gaza Coast Local Council v The Knesset 2005 PD 59(2) 481 Google Scholar, para 55; HCJ 256/01 Rabah v Jerusalem Municipal Court 2002 PD 56(2) 930 Google Scholar, para 6.

⁴⁴ Eichmann (n 22) 2041–48.

⁴⁵ Murray v The Charming Betsy 6 US 64 (1804) 118: ‘[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country’.

⁴⁶ Amsterdam (n 21) 966.

⁴⁷ Samara (n 13) 1831.

⁴⁸ eg Kamiar (n 14) 113; Kurtz (n 14) 26; Eichmann (n 22) 2050; Adam (n 15) para 7 (Justice Arbel); CA 9656/08 State of Israel v Saidi ILDC 2101 (IL 2008) [2010], para 27 (Justice Hayut), http://elyon1.court.gov.il/files/08/560/096/v19/08096560.v19.htm; Solo (n 15) para 2 (Justice Hayut).

⁴⁹ American-European Beth-El Mission (n 28). For a similar approach – referring to treaty-based law to support the Court's ruling that the state action is valid – see, eg, CA 501/81 Attorney General v X 1982 PD 35(4) 430, 433Google Scholar.

⁵⁰ eg Kol Ha'am (n 25); HCJ 337/81 Miterany v Minister of Transportation 1983 PD 37(3) 337 Google Scholar; HCJ 680/88 Schnitzer v The Chief Military Censor 1989 PD 42(4) 617 Google Scholar, http://elyon1.court.gov.il/files_eng/88/800/006/Z01/88006800.z01.htm.

⁵¹ eg Benvenisti, Eyal, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159 Google Scholar.

⁵² See, eg, the cases cited in n 38.

⁵³ In one case, Justice Levy left this possibility undecided: Kav LaOved (n 28) paras 35–37. Justice Levy noted that the International Covenant on Economic, Social and Cultural Rights ((entered into force 3 January 1976) 993 UNTS 3) (ICESCR) and the ICCPR (n 27) ‘have not been adopted in Israeli internal law by means of legislation. Prima facie, therefore, they do not create any obligation in this sphere. But it is possible that obligations in these conventions have taken on a customary character … and that they therefore constitute “a part of Israeli law, subject to any Israeli legislation that stipulates a conflicting provision”. … But since the petitioners did not focus their arguments on international law … we shall not make any firm determination on this issue … Whatever the position is, everyone agrees that by virtue of the “presumption of conformity” of Israeli internal law to the provisions of international law, we are required to interpret legislation – like a power given to a government authority – in a manner that is consistent with the provisions of international law’. See also HCJ 3239/02 Marab v IDF Commander in the West Bank 2003 PD 57(2) 349, para 27Google Scholar, http://elyon1.court.gov.il/files_eng/02/390/032/A04/02032390.a04.htm.

⁵⁴ CA 593/81 Ashdod Cars Factory Ltd v Chizik 1987 PD 41(3) 169 Google Scholar, paras 18–19 (mentioning that the right to strike is recognised by the ICESCR, as well as by other international treaties and domestic constitutions).

⁵⁵ ICCPR (n 27); ICESCR (n 53); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85 (CAT); International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 195 (CERD); Convention on the Elimination of All Forms of Discrimination Against Women (entered into force 3 September 1981) 1249 UNTS 13 (CEDAW); Convention on the Rights of the Child (entered into force 2 September 1990) 1577 UNTS 3 (CRC); Convention on the Rights of Persons with Disabilities, UNGA Res 61/106 (2007), 24 January 2007, UN Doc A/RES/61/106.

In addition, during the 1950s Israel ratified other conventions, which in parts concerned human rights: Convention on the Prevention of the Crime of Genocide (entered into force 12 January 1951) 78 UNTS 277 (ratified by Israel in 1950); Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85, Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135, GC IV (n 8) (all ratified by Israel in 1951); Convention relating to the Status of Refugees (entered into force 22 April 1954) 189 UNTS 137 (ratified by Israel in 1954); Convention on the Political Rights of Women, UNGA Res 640 (1952), 20 December 1952, UN Doc A/RES/640 (1952) (entered into force in 1954); Convention to Suppress the Slave Trade and Slavery (entered into force 9 March 1927) 60 LNTS 235 (Slavery Convention) (ratified by Israel in 1955); Convention on the Nationality of Married Women (entered into force 11 August 1958) 309 UNTS 65 (ratified by Israel in 1957); Convention relating to the Status of Stateless Persons (n 28) (ratified in 1960).

⁵⁶ Among these, amendments to several laws relating to children, following ratification of the CRC (for instance, Amendment No 14 (2009) to the Youth Law (Judging, Punishment and Treatment Methods) (2008)). See Amichai Cohen, Tal Filberg and Yuval Shany, ‘The Effect of International Human Rights Law on the Legislation in Israel’ 9 Hukim (forthcoming) (in Hebrew).

⁵⁷ The Court has mentioned the CERD only twice, in both cases very briefly, in support of the argument that fighting incitement to racism is important: ElecA 1/88 Neiman v Chairman of the Central Election Committee 1988 PD 42(4) 177 Google Scholar, para 12; HCJ 399/85 Kahana v Israel Broadcasting Authority 1987 PD 41(3) 255 Google Scholar, para 28.

⁵⁸ eg American-European Beth-El Mission (n 28) 329; X v Y (n 30).

⁵⁹ ICCPR (n 27) art 2(2).

⁶⁰ ibid art 2(3)(a)–(b).

⁶¹ Simmons (n 6) 125–55.

⁶² cf Weiler, Joseph HH and Lustig, Doreen, ‘A Good Place in the Middle: The Israeli Constitutional Revolution from a Global and Comparative Perspective’ (2016) 38 Iyuney Mishpat [Tel Aviv University Law Review] 419 Google Scholar (in Hebrew).

⁶³ Posner, Eric A, ‘Some Skeptical Comments on Beth Simmons's Mobilizing for Human Rights’ (2012) 44 NYU Journal of International Law and Politics 819, 827–28Google Scholar.

⁶⁴ Dan Meridor, interview with the author, March 2017.

⁶⁵ CA 6821/93 Bank Ha'Mizrahi Ltd v Migdal 1995 PD 49(4) 221 Google Scholar.

⁶⁶ For a discussion see, eg, Shinar, Adam, ‘Accidental Constitutionalism: The Political Foundations and Implications of Israeli Constitution Making’ in Galligan, Dennis and Versteeg, Mila (eds), The Social and Political Foundations of Constitutions (Cambridge University Press 2012) 207 Google Scholar.

⁶⁷ Weiler and Lustig (n 62) 477–80.

⁶⁸ Bank Ha'Mizrahi (n 65) 352 (in Hebrew).

⁶⁹ Empirical studies of other legal systems in which the treaties are not binding reveal conflicting evidence: see, eg, Sandholtz, Wayne, ‘How Domestic Courts Use International Law’ (2015) 38 Fordham International Law Journal 595 Google Scholar; Waters, Melissa A, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628 Google Scholar. For an evaluation of the actual impact of ratifying the human rights treaties compare Simmons (n 6), which argues for a positive impact, with Posner (n 63), and Hathaway, Oona A, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935 Google Scholar, which questions such an impact.

⁷⁰ Most references to the CRC were made in cases dealing with disputes over child custody and adoption. While the number of cases here is relatively high, the CRC was mentioned merely as one of a long list of sources supporting the well-established doctrine that the overarching principle in resolving these disputes is the child's best interest: see, eg, AddCA 7015/94 Attorney General v X 1995 PD 50(1) 48 Google Scholar, paras 11 (Justice Dorner), 15 (Justice Cheshin). For a discussion see Morag, Tamar, ‘The Jurisprudence after Israel's Ratification of the Convention on the Rights of the Child: A New Era?’ (2006) 22 HaMishpat [College of Management Law Journal] 21 Google Scholar (in Hebrew).

⁷¹ The total number of decisions is lower than the sum of these numbers, as in several instances the Court quoted more than one treaty. The numbers refer to citations of the treaties in the Court's reasoning, excluding citations mentioned only in the summary of the parties’ arguments but not in the Court's own reasoning. The count was carried out through the Nevo repository, which consists of all decisions of the Supreme Court during the relevant period.

⁷² HCJ 5100/94 Public Committee Against Torture in Israel v State of Israel 1999 PD 53(4) 817Google Scholar, para 23 (Chief Justice Barak), http://elyon1.court.gov.il/files_eng/94/000/051/a09/94051000.a09.htm.

⁷³ See sources at n 37.

⁷⁴ eg, regarding the Convention relating to the Status of Refugees (n 55), Saidi (n 48) para 27; HCJ 5190/94 Al-Tai v Minister of the Interior 1995 PD 49(3) 843 Google Scholar.

⁷⁵ HCJ 1554/95 Gilat Friends v Minister of Education and Culture 1996 PD 50(3) 2 Google Scholar, para 38.

⁷⁶ HCJ 3071/05 Louzon v Government of Israel 2008 PD 63(1) 1 Google Scholar, para 11 (Chief Justice Beinisch), http://elyon1.court.gov.il/files_eng/05/710/030/n12/05030710.n12.htm.

⁷⁷ HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v Ministry of Education 2002 PD 56(5) 834 Google Scholar, para 6 (Justice Dorner): ‘Petitioners did not claim that the law should be annulled because it violates the right to human dignity. Their claim was rather that the law should be interpreted and applied in light of the right to education. Indeed, the basic right to education, as established by statute, our case law, and international law, is of independent validity, and has no necessary connection to the right to human dignity prescribed by the Basic Law: Human Dignity and Liberty’, http://elyon1.court.gov.il/files_eng/00/990/025/L12/00025990.l12.htm.

⁷⁸ eg HCJ 5373/08 Abu-Labda v Minister of Education (unpublished, 6 February 2011), para 25 (Justice Procaccia): ‘Israel has expressed its deep commitment to fulfilling the right to education by joining international declarations, and by the obligations it took upon itself in international covenants … [ICESCR and CRC]’, http://elyon1.court.gov.il/files/08/730/053/r07/08053730.r07.htm (in Hebrew). See also ibid para 32 (Justice Procaccia) and para 4 (Justice Danziger). On referring to these treaties to support judicial protection of the right to education see also HCJ 4805/07 The Center for Jewish Pluralism v Ministry of Education 2008 PD 62(4) 571 Google Scholar, para 52; HCJ 7974/04 X v Minister of Health (unpublished, 21 April 2005), para 13, http://elyon1.court.gov.il/files/04/740/079/10O/04079740.10o.htm. In another case the Court noted that Israeli law, which requires the government to publicly finance education in school until 12th grade, goes beyond the requirement set in the ICESCR: HCJ 7351/03 Rishon LeZion Parents Association v Minister of Education, Culture and Sports (unpublished, 18 July 2005), para 6 (Justice Beinisch), http://elyon1.court.gov.il/files/03/510/073/N11/03073510.n11.htm.

⁷⁹ CA 9535/06 Abu-Masa'ad v Water Commissioner (unpublished, 5 June 2011), paras 25–29 (Justice Procaccia), pointing out that the Court's interpretation that the human right to dignity, protected by the Basic Law, covers the right of access to drinking water, is compatible with the state's obligations under the ICESCR, http://elyon1.court.gov.il/files/06/350/095/r07/06095350.r07.htm.

⁸⁰ Kav LaOved (n 28) paras 35–37 (Justice Levy). The Court noted that ‘it is possible that obligations in [the ICESCR and ICCPR] have taken on a customary character … and that they therefore constitute “a part of Israeli law, subject to any Israeli legislation that stipulates a conflicting provision”… Whatever the position is, everyone agrees that by virtue of the “presumption of conformity” of Israeli internal law to the provisions of international law, we are required to interpret legislation – like a power given to a government authority – in a manner that is consistent with the provisions of international law. … It follows that the power of the Minister of the Interior “to determine conditions for giving a visa or a residence permit” is limited and restricted, inter alia, by the right given to every person “to earn his living by means of work that he chooses, or obtains, freely”, by the right given to every individual to enjoy “just and fair work conditions”, [protected according to the ICESCR] and by the principle of non-discrimination between workers who are citizens and workers from foreign countries, which is enshrined in the Convention concerning Migration for Employment’.

⁸¹ eg HCJ 1892/14 Association for Civil Rights in Israel v Minister of Homeland Security (unpublished, 13 June 2017), paras 49–52 (Vice-Chief Justice Rubinstein), regarding the minimum standard of living of prisoners, http://elyon1.court.gov.il/files/14/920/018/T28/14018920.T28.htm.

⁸² HCJ 10662/04 Hassan v National Insurance Institute 2012 PD 65(1) 782 Google Scholar, paras 39, 51 (Chief Justice Beinisch), http://elyon1.court.gov.il/files_eng/04/620/106/n44/04106620.n44.pdf.

⁸³ For instance, HCJ 6973/03 Marciano v Minister of Finance 2003 PD 58(2) 270 Google Scholar (regarding a positive obligation to provide free education); HCJ 5631/01 Akim Israel v Minister of Social Security 2003 PD 58(1) 936 Google Scholar; HCJ 1437/02 The Association for Civil Rights in Israel v Minister of Homeland Security 2004 PD 58(2) 746 Google Scholar (enforcing the right of detainees to counselling).

⁸⁴ An additional, indirect manifestation of the same approach is the policy of translating Supreme Court decisions into English. Until recently, the decision was made by the Court and anecdotal evidence might then be produced which suggested that the translated cases are biased towards decisions that are compatible with international standards. Partially in response to this concern, an independent translation project (the Versa project) was launched by the Cardozo Law School, in which cases for translation are selected by a panel of academic scholars: Cardozo Law School, ‘Versa’, http://versa.cardozo.yu.edu.

⁸⁵ Barak, Aharon, Human Dignity: The Constitutional Right and Its Daughter Rights (Nevo 2014) 610 Google Scholar (in Hebrew).

⁸⁶ HCJ 366/03 Commitment to Peace and Social Justice Society v Minister of Finance 2005 PD 60(3) 464 Google Scholar, http://elyon1.court.gov.il/files_eng/03/660/003/a39/03003660.a39.htm.

⁸⁷ ibid para 1 (Justice Levy): ‘The human right to live with dignity is not enshrined merely in our internal law. It is also recognized in international law, where it is defined as a right to ‘a proper standard of living’ [according to] Article 11(1) of the ICESCR, to which Israel became a party on 3 October 1991’.

⁸⁸ HCJ 3752/10 Rubinstein v The Knesset (unpublished, 17 September 2014), paras 29, 40, 79 (dissenting opinion of Justice Arbel), http://elyon1.court.gov.il/files/10/520/037/B19/10037520.B19.htm.

⁸⁹ eg HCJ 5108/04 Abu-Guda v Minister of Education 2004 PD 59(2) 241 Google Scholar (denying a petition to require the government to provide kindergartens in Bedouin ‘unrecognised’ villages).

⁹⁰ Adam (n 15) was resolved unanimously. Justice Arbel, writing for the Court, referred in some detail to both treaties (and also to precedents of the European Court of Justice and other comparative law sources) in support of the position that general deterrence is not a proper purpose for detaining an asylum seeker (para 7). In HCJ 7385/13 Eitan, Immigration Policy to Israel v Government of Israel ILDC 2233 (IL 2014) [2014]), Justice Vogleman, writing for the majority, referred to both treaties (paras 33–34, 37), suggesting that ‘although the Treaty was incorporated into Israeli law, it is relevant in domestic law, given the canon of interpretation that domestic legislation is presumed to be compatible with the norms to which Israel is internationally obliged’ (para 33) (in Hebrew). The dissent did not mention any of the sources of international human rights law. Finally, in HCJ 8665/14 Dasta v The Knesset (unpublished, 11 August 2015), http://elyon1.court.gov.il/files/14/650/086/C15/14086650.C15.htm, Chief Justice Naor, writing for the majority, quoted quite extensively from both treaties to justify the decision that several provisions of the new law are invalid (paras 44, 45, 82, 99), and also to support the position that other provisions are lawful (paras 68–71). Here, too, the dissent did not mention any of the international human rights law sources.

⁹¹ eg Saidi (n 48) para 27; Al-Tai (n 74).

⁹² Marab (n 53) paras 27, 41–42.

⁹³ ibid para 26.

⁹⁴ Internment of Unlawful Combatants Law, 2002 (Israel); HCJ 6659/06 X v State of Israel 2008 PD 62(4) 329 Google Scholar, para 41, http://elyon1.court.gov.il/Files_ENG/06/590/066/n04/06066590.n04.htm. See also HCJ 1890/03 Bethlehem Municipality v State of Israel, Ministry of Defence 2005 PD 59(4) 736, para 15, http://elyon1.court.gov.il/files_eng/03/900/018/N24/03018900.n24.htm, in which the Court referred to the ICCPR to justify its ruling regarding a measure that infringed freedom of movement in order to protect religious freedom.

⁹⁵ For a discussion see, eg, ‘Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier’ (2008) 38 Israel Law Review Google Scholar.

⁹⁶ HCJ 2056/04 Beit Sourik Village Council v Government of Israel 2004 58(5) PD 807 Google Scholar, http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.htm.

⁹⁷ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, 102–13. For a similar approach see Ben-Naftali and Shany (n 4). In contrast, Aeyal Gross has argued that applying international human rights law might in fact result in less protection to persons subject to occupation: Gross, Aeyal, ‘Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation’ (2007) 18 European Journal of International Law 1 Google Scholar.

⁹⁸ HCJ 7957/04 Mara'abe v Prime Minister of Israel 2005 PD 60(2) 477 Google Scholar, para 27, http://elyon1.court.gov.il/Files_ENG/04/570/079/A14/04079570.A14.pdf. Chief Justice Barak stated: ‘Can the rights of the protected residents be anchored in the international conventions on human rights, the central of which is the [ICCPR], to which Israel is party? … The [ICJ] determined, in its Advisory Opinion, that these conventions apply in an area under belligerent occupation. When this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions. … We shall adopt a similar approach. … We shall assume – without deciding the matter – that the international conventions on human rights apply in the area’.

⁹⁹ ibid paras 69–72.

¹⁰⁰ For a similar approach – referring to international human rights law based on the assumption that it applies in the Occupied Territories, without resolving the matter – see, eg, HCJ 13/86 Shahin v Commander of the IDF in Judea and Samaria 1987 PD 41(1) 197 Google Scholar, paras 2–10; HCJ 9961/03 Center for the Defense of the Individual v Government of Israel (unpublished, 5 April 2011), paras 21–22, http://elyon1.court.gov.il/files/03/610/099/n37/03099610.n37.htm.

¹⁰¹ eg HCJ 6026/94 Nazaal v IDF Commander in Judea and Samaria 1994 PD 48(5) 338 Google Scholar; HCJ 8084/02 Abasi v GOC Home Front Command 2003 PD 57(2) 55 Google Scholar; Center for the Defense of the Individual (n 37).

¹⁰² For a discussion see, eg, Harpaz, Guy, ‘Being Unfaithful to One's Own Principles: The Israeli Supreme Court and House Demolitions in the Occupied Palestinian Territories’ (2014) 47 Israel Law Review 401, 416–22Google Scholar.

¹⁰³ eg HCJ 7220/15 Aliwa v Commander of the IDF in the West Bank (unpublished, 1 December 2015), para. 7 (dissenting opinion of Justice Mazuz).

¹⁰⁴ eg Shany (n 1); Schwartz, Osnat Grady, ‘International Law and National Courts: Between Mutual Empowerment and Mutual Weakening’ (2015) 23 Cardozo Journal of International and Comparative Law 587 Google Scholar; Cohen, Amichai, ‘Domestic Courts and Sovereignty’ in Broude, Tomer and Shany, Yuval (eds), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Hart 2008) 265 Google Scholar.

¹⁰⁵ Benvenisti, Eyal and Downs, George, ‘Democratizing Courts: How National and International Courts Promote Democracy in an Era of Global Governance’ (2014) 46 NYU Journal of International Law and Politics 741, 743–44Google Scholar. See also Benvenisti, Eyal, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241 Google Scholar; Kalb, Johanna, ‘The Judicial Role in New Democracies: A Strategic Account of Comparative Citation’ (2013) 38 Yale Journal of International Law 423 Google Scholar (the prevalence of comparative citation among the courts in transitional democracies is explained by strategic behaviour that aims to legitimate the judiciary and protect the democratic processes); Chang, Wen-Chen and Yeh, Jiunn-Rong, ‘Internationalization of Constitutional Law’ in Rosenfeld, Michel and Sajó, András (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 1165 Google Scholar.

¹⁰⁶ Schwartz, Osnat Grady, ‘International Law in Domestic Judges’ Decisions: The Relationship Between Broad Role-Perception and a Strong Internationalist Inclination’ (2011) 34 Iyunei Mishpat [Tel Aviv University Law Review] 475 Google Scholar (in Hebrew).

¹⁰⁷ For a discussion see Klein, Eckart and Kretzmer, David, ‘The UN Human Rights Committee: The General Comments – The Evolution of an Autonomous Monitoring Instrument’ (2015) 58 German Yearbook of International Law 189 Google Scholar; see also Buergenthal, Thomas, ‘The UN Human Rights Committee’ (2001) 5 Max Planck Yearbook of United Nations Law 341 Google Scholar.

¹⁰⁸ Mara'abe (n 98) para 69.

¹⁰⁹ ibid para 2 (Justice Cheshin).

¹¹⁰ Benvenisti and Downs (n 105) 744; see also Benvenisti (n 105).

¹¹¹ For a general discussion of this interaction see Cohen, Amichai, ‘Strategies of Domestic Justice: Domestic Courts’ Response to International Criticism’ in Stern, Yedidia (ed), My Justice, Your Justice: Inter-Cultural Justice (Israel Democracy Institute 2010) 483 Google Scholar (in Hebrew).

¹¹² eg Barak Medina and Asor Watzman, ‘The Constitutional Revolution or Human Rights Revolution? The Constitutional Basis of “Institutional” Norms’ Iyunei Mishpat [Tel Aviv University Law Review] (forthcoming) (in Hebrew); Barak Medina, Judicial Independence and the Choice between Rules and Standards in Human Rights Law (manuscript); cf Huq, Aziz Z and Michaels, Jon D, ‘The Cycles of Separation-of-Powers Jurisprudence’ (2016) 126 Yale Law Journal 346 Google Scholar.

¹¹³ cf Eyal Benvenisti, Implications of Considerations of Security and Foreign Relations on the Application of Treaties in Israeli Law (1992) 21 Mishpatim [Hebrew University Law Review] 221 (in Hebrew); Barak-Erez (n 4) 631.

¹¹⁴ While bias is evident mostly in the UN Human Rights Council, many in Israel associate other bodies, such as the Human Rights Committee, with the prejudice of the Council, and discredit them all: see, eg, Association for Civil Rights in Israel v Minister of Homeland Security (n 81) para 50 (Vice-Chief Justice Rubinstein).

¹¹⁵ For an argument that this concern was realised in India, see Rajamani, Lavanya, ‘International Law and the Constitutional Schema’ in Choudhry, Sujit, Khosla, Madhav and Mehta, Pratap Bhanu (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016) 143 Google Scholar. Rajamani argues that the Supreme Court's extensive internalisation of international law, developing ‘domestic rights jurisprudence in dialogue with international law’, is viewed by many as a process of ‘wresting power from Parliament, … vulnerable … to the charge that it is democracy denying’ (ibid 144).

¹¹⁶ eg Balkin, Jack, Living Originalism (Harvard University Press 2011) 64–73 Google Scholar; Fallon, Richard H Jr, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787 Google Scholar.

¹¹⁷ eg Gavison, Ruth, ‘What Belongs in a Constitution?’ (2002) 13 Constitutional Political Economy 89 Google Scholar; Choudry, Sujit (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press 2008)Google Scholar; Lerner, Hanna, Making Constitutions in Deeply Divided Societies (Cambridge University Press 2011)Google Scholar.

¹¹⁸ cf Balkin (n 116) 97.

¹¹⁹ ibid 62. Habermas, too, emphasised the idea that legitimation is an ongoing social process: Habermas, Jürgen, Communication and the Evolution of Society (Thomas McCarthy tr, Beacon Press 1979) 178 Google Scholar. For a discussion of legitimacy in the international sphere see, eg, Franck, Thomas M, The Power of Legitimacy among Nations (Oxford University Press 1990)Google Scholar.

¹²⁰ Raz, Joseph, The Morality of Freedom (1986) 181 Google Scholar; see also Harel, Alon, Why Law Matters (Oxford University Press 2014) 13–48 Google Scholar.

¹²¹ The Court explicitly recognised the essential role of democratic legitimacy in HCJ 142/89 LAOR Movement v Speaker of the Knesset 1990 PD 44(3) 529, para 30Google Scholar (Justice Barak): ‘In principle, it is possible that a court in a democratic society would declare invalid a law that violates the fundamental principles of the system, even if these principles are not enumerated in an entrenched Constitution. … [However], according to our sociologically and legally accepted perception, the Court does not take for itself this power … We developed this position given the sociological elements of our democracy. … Given this popular perception, … it is improper for us to deviate from our legal and political tradition and recognize the Court's power to declare a law unconstitutional. … The prevailing popular convention is that such a principled decision [of awarding the Court the power to employ judicial review of legislation] should be made … by the people and their representatives’ (in Hebrew).

¹²² Bank Ha'Mizrahi (n 65). For a discussion see, eg, Shinar (n 66).

¹²³ Basic Law: Human Dignity and Liberty (1992), arts 8 and 1 (emphasis added).

¹²⁴ Barak, Aharon, The Judge in a Democracy (Princeton University Press 2006)Google Scholar.

¹²⁵ Accordingly, scholars who support giving a greater formal role to international human rights law in Israel call for a formal incorporation of the covenants, through legislation: eg Lapidoth, Ruth, Ben-Naftali, Orna and Shany, Yuval, ‘The Duty to Incorporate Human Rights Treaties into Israeli Law’ (2004) 1 Concord Research Center Position Paper Google Scholar (in Hebrew).

¹²⁶ eg Medina, Barak, Human Rights Law in Israel (Sacher Institute for Legislative Research and Comparative Law 2016)Google Scholar (in Hebrew).

¹²⁷ Lapidoth (n 4).

¹²⁸ Benvenisti (n 3) 141–43.

¹²⁹ Shany (n 1); see also Barak-Erez (n 4) 614.

¹³⁰ Benvenisti and Downs (n 105) 742. This depiction is common among scholars in the field known as ‘public choice theory’: see, eg, Mashaw, Jerry L, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (Yale University Press 1997) 15–29, 37–40 Google Scholar; Bobbio, Norberto, The Future of Democracy: A Defence of the Rules of the Game (Roger Griffin tr, Polity Press 1987) 1–24 Google Scholar. For a critical evaluation of the literature, see Croley, Steven, ‘Interest Groups and Public Choice’ in Farber, Daniel A and O'Connell, Anne Joseph (eds), Research Handbook on Public Choice and Public Law (Edward Elgar 2010) 49 Google Scholar.

¹³¹ Benvenisti (n 105). A similar argument has been offered to explain the decision of the new democracies in Eastern Europe to join the UN human rights treaties: see, eg, Moravcsik, Andrew, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217 Google Scholar.

¹³² See nn 28, 53 and accompanying text. See also Shany (n 4) 342–43; Klein, David F, ‘A Theory for the Application of Customary International Law of Human Rights by Domestic Courts’ (1988) 13 Yale Journal of International Law 332, 337–42Google Scholar.

¹³³ See nn 21–22 and accompanying text.

¹³⁴ eg Kübler, Friedrich, ‘How Much Freedom for Racist Speech? Transnational Aspects of a Conflict of Human Rights’ (1998) 27 Hofstra Law Review 335 Google Scholar; Fox, Gregory H and Nolte, Georg, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal 1 Google Scholar; Rosenfeld, Michel, ‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ (2003) 24 Cardozo Law Review 1523 Google Scholar; Kahn, Robert A, ‘Why Do Europeans Ban Hate Speech? A Debate between Karl Loewenstein and Robert Post’ (2013) 41 Hofstra Law Review 545 Google Scholar.

¹³⁵ eg Fredman, Sandra, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008)Google Scholar.

¹³⁶ eg Galeotti, Anna Elisabetta, Toleration as Recognition (Cambridge University Press 2002)Google Scholar.

¹³⁷ eg Elkins, Zachary, Ginsburg, Tom and Simmons, Beth, ‘Getting to Rights: Treaty Ratification, Constitutional Convergence and Human Rights Practice’ (2013) 54 Harvard International Law Journal 61 Google Scholar.

¹³⁸ Regarding the ICJ see, eg, Shany, Yuval, ‘Toward a General Margin of Appreciation Doctrine’ (2005) 16 European Journal of International Law 907 Google Scholar; Yuval Shany, ‘All Roads Lead to Strasbourg? Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee’ Journal of International Dispute Settlement (forthcoming); Legg, Andrew, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press 2012)Google Scholar. For the role of this doctrine in the European Court of Human Rights (ECtHR) see, eg, ECtHR, Handyside v United Kingdom, App no 5493/72, 7 December 1976. Compare, for instance, the conflicting decisions in ECtHR, S.A.S. v France, App no. 43835/11, 1 July 2014 and ECtHR, Lautsi v Italy, App no 30814/06, 18 March 2011.

¹³⁹ eg Jacobsohn, Gary J, Constitutional Identity (Harvard University Press 2010)Google Scholar.

¹⁴⁰ eg Restatement of the Law (Third) of Foreign Relations Law of the United States (1987), s 702.

¹⁴¹ See nn 21–43 and accompanying text.

¹⁴² eg Hadfield, Gillian K and Macedo, Stephen, ‘Rational Reasonableness: Toward a Positive Theory of Public Reason’ (2012) 6 Law and Ethics of Human Rights 7 Google Scholar.

¹⁴³ Benvenisti (n 3) 144–45.

¹⁴⁴ It should be noted that most scholars, including Benvenisti, do not argue for a constitutional status for the treaties, but only for ‘the enforceability of treaty-based human rights against the government’, recognising the power of the legislature to authorise the government to act in contradiction to the treaties (Benvenisti (n 3) 146). This suggestion is subject to the same concerns of the democratic deficit discussed above, as determining the content of the duty to protect human rights is subject to reasonable disagreement even when applied only to the government.

¹⁴⁵ Shany (n 1); Waters (n 69) (suggesting that international human rights law is incorporated through a variety of interpretive incorporation techniques); Weiler and Lustig (n 62). Benvenisti and Harel went a step further by calling for maintaining a ‘persistent tension and conflict’ between domestic and international human rights laws, arguing that intentionally avoiding a principled ranking of the two systems would better protect human rights: Benvenisti, Eyal and Harel, Alon, ‘Embracing the Tension between National and International Human Rights Law: The Case for Discordant Parity’ (2017) 15 International Journal of Constitutional Law 36 Google Scholar.

¹⁴⁶ The main reservations are the following: Israel made a reservation to art 4 of the ICCPR, referring to measures of arrest and detention required by the state of emergency, and to art 34, referring to the implementation of religious law in issues of marriage and divorce.

¹⁴⁷ See nn 108–109 and accompanying text.

¹⁴⁸ An example of a clause implementing this approach is s 39(1) of the Constitution of the Republic of South Africa, 1996: ‘When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law’. Another example is art 51(c) of the Constitution of India, 1949, included in Part IV of the Constitution, which identifies the Directive Principles of State Policy, intended not to be enforceable by the court, which directs the state to ‘endeavor to … foster respect for international law and treaty obligations’.

¹⁴⁹ eg Breyer, Stephen, The Court and the World: American Law and the New Global Realities (Vintage 2015)Google Scholar; Rosenfeld and Sajó (n 105); Jackson, Vicki C, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’ (2005) 119 Harvard Law Review 109 Google Scholar. See also Waldron, Jeremy, ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts (Yale University Press 2012)Google Scholar; Posner, Eric A and Sunstein, Cass R, ‘The Law of Other States’ (2006) 59 Stanford Law Review 131 Google Scholar.

¹⁵⁰ cf Benvenisti (n 105).

¹⁵¹ eg Benvenisti and Downs (n 105).

¹⁵² CrimA 4596/98 X v The State of Israel PD 54(1) 2000 145Google Scholar, para 28, http://elyon1.court.gov.il/files_eng/98/960/045/N02/98045960.n02.htm.