Publications

Publications

  • Perpetuating Democratic Peace: Procedural Justice in Peace Negotiations
  • Myriam Feinberg, Sovereignty in the Age of Global Terrorism: The Role of International Organisations, Brill, 2016

    Myriam Feinberg’s new book analyzes the role of international organizations in adopting counterterrorism measures after 9/11 and the impact of these measures on the sovereignty of their Member States.

  • National Courts and Interpretive Approaches to International Law: The Case Against Convergence

    Olga Frishman and Eyal Benvenisti

    Published in: The Interpretation of International Law by Domestic Courts (Helmut Philipp Aust & Georg Nolte eds., Oxford University Press 2016)

  • “The Earth Belongs to Mankind in General:” On the Duty of States to Take the Interests of Foreigners into Account (in Hebrew)

    Eyal Benvenisti

  • Robot Warfare and the Problem of Bound Discretion (in Hebrew)

    Eliav Lieblich and Eyal Benvenisti

    Forthcoming in TAU Law Review – Iyuney Mishpat (2016), posted on ssrn

    Here is the abstract:

    Under the laws of armed conflict, targeting decisions are subject to the requirement to exercise constant discretion. This requirement is all the more stronger in the context of asymmetric warfare, when the use of force constitutes the exercise of public authority vis-à-vis individuals subjected to state power. Autonomous weapons systems (AWS) are based on pre-programmed algorithms. The pre-programmed algorithm binds the discretion of the human operators of the AWS. Hence the deployment of AWS, without constant human involvement in targeting decisions, is per se arbitrary and incompatible with the requirements of international humanitarian law and human rights law. We submit that our analysis provides a more satisfying explanation for the intuitive resentment toward AWS that is addressed in the otherwise rather circular debate about the morality and lawfulness of AWS.

  • Letting Lotus Bloom
  • Sovereignty as Trusteeship for Humanity — Historical Antecedents and Their Impact on International Law

    Volume 16(2) of Theoretical Inquiries in Law (2015) carries the papers presented of the June 2014 conference

  • Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders

    Eyal Benvenisti

    Appeared in: 107 American Journal of International Law 295 (2013)

    The concept of sovereignty crystallized at a time when distances were large and self-sufficiency was the aspiration. Sovereignty coincided with notions of democracy, under the assumption of a perfect fit between the scope of sovereign authority and the affected stakeholders. This traditional view of sovereignty yields inefficient, inequitable and undemocratic consequences. This Article argues that in a densely populated and deeply integrated world, sovereignty should be conceptualized as a trusteeship not only toward a state’s own citizens, but also toward humanity at large.

  • R. Neethu, Sovereign trusteeship and multilateral protection of intellectual property rights

    TRIPS established a minimum standard of intellectual property rights to be adopted by the member states along with an obligation that mandates mutual recognition of domestic laws which offer the minimum standards of protection. The evolution of this regime has led to concerns over sovereign discretion in matters of domestic importance such as health, food security and education. In the current framework of IP legal pluralism, States must possess an active regulatory discretion, particularly in ensuing that exclusive monopoly rights are not pursued at the cost of its citizens in matters relating to essential needs of their life. In doing so, States must also give due respect to the concerns of global welfare

    Published in Journal of Intellectual Property Law & Practice, 2014

  • Shai Dothan, Reputation and Judicial Tactics (Cambridge University Press, 2014)

    Shai Dothan’s new book argues that national and international courts seek to enhance their reputations through the strategic exercise of judicial power. Courts often cannot enforce their judgments and must rely on reputational sanctions to ensure compliance. One way to do this is for courts to improve their reputation for generating compliance with their judgments. When the court’s reputation is increased, parties will be expected to comply with its judgments, and the reputational sanction on a party that fails to comply will be higher. This strategy allows national and international courts, which cannot enforce their judgments against states and executives, to improve the likelihood that their judgments will be complied with over time. This book describes the judicial tactics that courts use to shape their judgments in ways that maximize their reputational gains.

    978110703113502-1

    Dr. Shai Dothan is a senior researcher with the GlobalTrust Project at Tel Aviv University and an adjunct professor in the faculty of law at the Hebrew University of Jerusalem.

  • Democratizing Courts: How National and International Courts are Promoting Democracy in an Era of Global Governance

    Eyal Benvenisti and George W. Downs

    Appeared in 46 NYU J Int’l L & Politics 742 (2014)

    In this Article we argue that democratic failures at both the national and the international level can be best addressed through greater interaction and coordination between national courts and international tribunals. Such cooperation promises to enhance democracy at both levels by helping to ensure that decisionmakers take account of the interests of a greater proportion of the relevant
    stakeholders and that the outcomes are therefore better informed and more balanced. We further argue that “democracy” in this context must also be understood as providing a voice to foreigners, who are often excluded from domestic and global decisionmaking processes.

  • Published: Eyal Benvenisti, The Law of Global Governance (2014)

    image book cover

     

    The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law — international, regional, domestic, formal or soft — should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations of global institutions to ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analysing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.

    Book order form

    On this book:

    Editor’s Book Choices by Jan Klabbers

  • The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings

    Doreen Lustig and Eyal Benvenisti

    Appeared in 15 Theoretical Inquiries in Law 125 (2014)

    In this Article we revisit John Stuart Mill’s critique of the idea of governance by a Good Despot to problematize the contemporary exercise of authority and influence by multinational companies, especially in foreign countries. We redefine the problem of privatization by shifting attention to the democracy losses associated with the privatized decision-making process. This allows us to offer a critical assessment of the potentials and limitations of contemporary attempts to solve the acute problem of democratic deficit associated with privatization.

Working Paper Series