Milanovic is correct in diagnosing most of the reasons for this unhappy state of affairs: The debate over the extraterritorial application of human rights is mired up in a Koskenniemic tension between an ideal (the universality of human rights) and political reality (the principle of effectiveness, which militates against normative overreach). In fact, one can identify a parallel tension at play between the need to ensure effective protection of human rights  (e.g., through eliminating legal ‘black holes’) and the continued commitment to territoriality as an organizing principle of the international legal order, notwithstanding the tenuous connections between borders and human welfare.  A third tension, further complicating the debate on the extraterritoriality of human rights obligations, which Milanovic addresses on a number of occasions, involves the institutional relationship of courts to governments, or law to politics. While the extraterritorial projection of state power is not a new phenomenon in itself, regulating it through legal norms and, even more so, by courts applying international legal norms is a relatively novel development. It is therefore not surprising that courts often treat extraterritoriality as a preliminary jurisdictional question (which Milanovic rightly criticizes as a category error) – jurisdiction to adjudicate being a principal tool that courts employ in order to avoid politically undesirable decisions.

In any event, I agree with Milanovic that judges resent the idea that states should have a free hand to engage in atrocious conduct outside their borders against foreign nationals (and a fortiori against their own nationals). At the same time, the same judges are reluctant to impose on governments (especially their own governments, in the case of national judges, and governments operating in multi-national settings, in the case of international judges) onerous human rights obligations that may complicate what are already difficult international interventions (such as the British occupation of Southern Iraq or the NATO intervention in Serbia in connection with the Kosovo crisis). So, courts try to delineate state obligations in a way that would encompass some, but not too many, extraterritorial exercises of state power, and Milanovic is correct in observing that such a balancing exercise can almost never be based on a coherent application of principles. If a spatial theory of responsibility (effective control over territory) is selected, one is confronted with scenarios involving control over ever-decreasing spaces (a city, a neighborhood, a house, a basement, etc.), which cannot be rationally distinguished from one another. If one adopts a personal theory of responsibility (control over persons by state agents), then again one faces insoluble problems of delineation (e.g., the Al Skeini House of Lords’ unconvincing distinctions between the killing of a person held in UK custody and killings committed by UK forces of five other persons on the streets of Basrah or in their house).

 Milanovic’s book not only exposes the arbitrariness and, outright irrelevance of some of the attempts made by courts to draw bright lines (e.g., Bankovic’s much criticized – and now officially debunked – espace juridique  theory, the legality of the powers exercised by the foreign state or the nationality of the victims); it also offers a new model for delineation of jurisdiction – distinguishing between negative obligations (that apply regardless of jurisdiction, all over the world) and positive obligations (that apply only in territories subject to the state’s effective control). This new model can be couched, more or less, in the language of most human rights treaties, and may be supported by policy considerations: It certainly represents a more principled approach to delineating jurisdiction the than almost all of the existing case law; it also offers a reasonable fit between state capabilities and their human rights responsibilities.

 Still, I fear that, at the end of the day, Milanovic’s own model is also exposed to criticisms of arbitrariness and sub-optimal coverage (and to his credit, he does acknowledge that his model is not foolproof). Most significantly, the distinction Milanovic offers between negative and positive obligations cuts against the increased acceptance of the interdependence (and moral equivalence) of these obligations, and accentuates the already problematic distinction between public and private that permeates international law in general, and human rights law in particular.

 Take, for example, the Herbicide case between Ecuador and Colombia pending between the ICJ. Milanovic suggests that application of his model would lead to the following outcome (assuming that the facts are as argued by Ecuador):

“Colombia would be responsible for violating the rights of Ecuadorian residents adversely affected by its spraying operations, as the operation was conduct [sic] by its own agents or on its own behalf. Colombia would not, however, have the same obligation under human rights treaties with regard to pollution or herbicides used by purely private actors operating within its territory and having effects in Ecuador”. (p. 218)

 But why shouldn’t Colombia protect foreigners from harm caused by private actors situated inside its territory? Certainly, from a victim-protection perspective, individuals should be protected from harm, regardless of whether the harm originates from private and public actors. This basic insight has led, in fact, in the last few decades to the development of doctrines of positive obligations of states under human rights law. Furthermore, in an era where the public/private dividing line becomes more obscure than ever before, putting too much normative reliance on such a distinction could generate serious practical problems and uncertainties. (Would the US, for example, be responsible under Milanovic’s model for not preventing acts undertaken by Backwater Security employees in post-occupation Iraq?). But even from an effectiveness point of view, the distinction offered by Milanovic is not convincing. If Colombia is capable of preventing cross-border harm caused by private Colombian citizens operating inside its territory, then why should it be released from the duty to protect adversely affected foreign individuals? In other words, if Colombia can and must prevent air pollution caused by private actors to individuals inside Colombia, it can also be expected to act when the same private actors, still located inside its territory, harm individuals situated in a neighboring country. Milanovic’s insistence on the location of the victims, and not on the location of the harmful activity as the decisive criteria for application appears, in the circumstances of the case, to be as arbitrary as some of the other distinctions found in the case law he himself criticizes.

 In the same vein, the distinction Milanovic offers between “prophylactic and procedural obligations” attendant to negative obligations (which are mostly second order obligations arising when first order obligations may have breached), such as the duty to investigate deaths caused by state agents, on the one hand, and other positive obligations, such as the duty to protect individuals from other individuals or investigate deaths caused by private actors, on the other hand, cannot be supported from neither a universalist or effectiveness point of view. If states can prevent and investigate both public and private acts of murder (which may have occurred in the same crime scene), why should we require them to comply with positive obligations only with respect to some acts of murder (official murders)?

 At the root of things lie, I think, two parts of the legacy of Bankovic, which Milanovic does not fully reject. First, there remains what I consider to be the most problematic aspect of Bankovic ­– the refusal to allow for partial application of the European Convention. To recall, the ECtHR in Bankovic rejected the notion that the Convention can be “divided and tailored in accordance with the particular circumstances of the extra-territorial act in question”. Milanovic’s position on this aspect of Bankovic is not fully coherent. While his proposal to distinguish between the application of negative and positive obligations implicitly rejects the notion of indivisibility of obligations, he does seem to accept that, for the sake of legal clarity, positive obligations should not be cut up and divided; he therefore insists on effective spatial control as a prerequisite for applying all positive obligations. But this solution is not fully satisfactory either:  If human rights treaties can be divided on the basis of the nature of the obligation, why cannot they be divided on the basis of the content of the obligations, as well? And, more fundamentally, what overriding policy considerations support indivisibility – that is, releasing states from obligations they can carry out, just because there are other obligations, which they cannot fulfill?

In fact, I find it hard to reconcile the notions of indivisibility and extraterritoriality: In a world where governance is still mostly territory-based, the very move to extraterritorial application of governmental power entails a paradigmatic shift in governmental operations, and – by implications – a change in the practical ability of governments to fully implement human rights treaties. Arguably, even in the prototype case for extraterritorial application of human rights law – situations of occupation – not all human rights obligations are relevant or can be realistically applied. For example, it is hard to see how the right to vote for one’s government representatives can be implemented in occupied territories; moreover, some social and economic rights entailing the reorganization of the economy (e.g., introduction of social security or minimum wage) are either impractical or legally impermissible in many, if not all occupation situations. But even if in occupation-like situations there is a strong presumption of full applicability, the farther we move away from occupation situations to smaller units of control, or to other forms of control (personal control or indirect control à la Ilascu, or shared control à la Behrami), the less tenable is the ‘all or nothing’ approach advocated by Bankovic.  And, in fact, much of the case law analyzed by Milanovic – the trial in absentia cases, the passport issuance cases, the extra-territorial search cases etc., cannot be reconciled with the concept of indivisibility. This is because the states whose conduct was reviewed in those cases were hardly in a position to afford the individuals in question all of the protections specified in the human rights treaties to which they are parties. It thus seems to me that considerations of the universal ideal, as well as of effectiveness (in both senses – i.e., that governments shouldn’t be required to provide what they cannot deliver and that human rights should be effectively protected), militate in favor of a flexible or functional approach to jurisdiction: A state should be obliged to protect the human rights of those it is in a position to protect, to the extent that is in a position to do so (subject to limitations I will immediately elaborate on).

Here we come to the second problematic legacy of Bankovic (which Milanovic implicitly accepts, as far as positive obligations are concerned) – the idea that we should be careful not to opt for a “cause and effect” notion of jurisdiction. Indeed, if any state act, which violates a human right, brings the victim harmed by the act within the state’s jurisdiction, jurisdiction becomes a meaningless constraint on the scope of application of human rights law. Although this is a forceful interpretive argument against the over-dilution of jurisdictional conditions, it does not negate, in my view, the introduction of flexible criteria for application that go beyond the existing case law, but do not slide into nothingness – no jurisdictional criteria at all.

First, like Milanovic, I believe that the key aspect of jurisdiction – as the term is used for the purposes of determining the applicability of human rights obligations – is not the actual exercise of rights, but the potential (or functional capacity) to apply them. From this point of view, negative and positive rights do differ, but only for evidentiary purposes:  A violation of a negative obligations shows that jurisdiction had existed (i.e., there has been a capacity to harm), whereas for positive obligations such a proof is found not in their violation but in their actual implementation (i.e., actual protection underscore the capacity to protect). So, in a Bankovic type situation, it is not the act of bombing the TV station in Belgrade which brought the individuals found there under the jurisdiction of the bombing states, but rather the designation of the TV station as a target of attack or, alternatively, the locking in of the fighter planes’ bomb-sights on the target – creating thereby conditions in which a the violation of article 2 of the European Convention could take place. The act of bombing merely illustrated the capacity to exercise power over the victims. At the same time, there was no duty in a Bankovic kind of situation to protect the other rights of the individuals in the TV station, because there was clearly no capacity to do so. So, the individuals in the TV station fell under the jurisdiction of the bombing states for a short period of time only, and with regard to one substantive ECHR right – the right to life (article 2).

Still, I concede that a test of potential or functional capacity to apply some or all of the obligations found in human rights treaties may be too broad a notion of jurisdiction, which may lead indeed, as suggested by Milanovic, to untenable outcomes – primarily, to the imposition of obligations which would be politically unacceptable to states (e.g., an obligation on the US to feed the starving population of North Korea). Milanovic is right in cautioning us against formulating legal standards that deviate too far from our legal (and moral?) intuitions about what states should do (as opposed to what they can do). Still, instead of Milanovic’s model (no limits on negative obligations + positive obligations in areas under effective control), I would opt for a single concept of jurisdiction, applicable both to negative and positive obligations, which centers on the strength of the governmental power that is being applied or can be applied vis-à-vis the individuals in question– a position that I believe find support in the text of HRC General Comment 31 which states: “ State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party” (para. 10).

So how can one distinguish between exercises of power that entail applicability and those that do not? In a piece I have co-written with Orna Ben-Naftali some eight years ago, we suggested that an extraterritorial projection of power by a state would qualify as encompassing affected individuals within its jurisdiction if the potential impact of the act or policy in question is direct, significant and foreseeable. This standard, whose contents were informed by ‘points of contact’ analysis originating in private international law, is designed to strike a balance between the universality ideal and the reasonable expectations of states as to the legal implications of their action. Note that this proposed test lead to somewhat different outcomes than those deriving from Milanovic’s model: Although our test applies most clearly to situations involving actual or planned governmental acts (negative obligations), it may also cover positive obligations – failures to act which are potentially tantamount to acts in their directness of causation, significant impact and foreseeability (e.g., toleration of private cross-boundary harm in the Colombia/Ecuador case). At the same time, the test we proposed releases states from the indirect harms that may be caused by some of their public actions (e.g., emissions of government factories leading, in the long run, to global warming).

A second restraining notion that I propose for understanding jurisdiction, which is particularly relevant for positive obligations, involves the concept of special power relations (or relative advantage in implementing human rights standards). The general standard that appears to emerge from the case law discussed by Milanovic is that states ought to implement human rights obligations in those situations in which they have a special relationship to the individuals in question that render those states particularly well situated to protect them. Such a relationship may be founded either on strong factual power relations (e.g., effective control over the territory in which the individual resides or physical control over the person), or on a special legal relationship, which generates strong expectations that a particular state would extend its protection over certain individuals. Hence, contrary to Milanovic, I think that the flagship state is particularly well situated to protect the individuals on board its vessels, at least when they sail on the high seas; hence, the state should be legally required to do apply those human rights protections it is able to afford such individuals. In the same vein, the UK should protect the rights of its military personnel in Iraq because it is particularly well situated to do so given its exclusive legal jurisdiction over them.  At the same time, no special factual or legal power relationship exists between the US and the population of North Korea, which would justify holding the former responsible for the human rights of the latter.

Of course, the application of human rights under both of the proposed standards (intensity of potential impact and special power relationship) need not be exclusive – more than one state may impact a certain individual or have a special relationship of power with her (especially, if we allow cutting and dividing human rights treaties).  Furthermore, as Milanovic repeatedly notes throughout his book, having jurisdiction over a certain situation does not entail an absolute obligation to implement the human rights held by the relevant individuals – only a relative obligation to do so. So, Colombia’s duty to prevent cross-boundary harm caused by private citizens or the UK’s duty to investigate inter-Iraqi violence in Basra are only due diligence obligations – no more and no less.

The recent ECtHR Grand Chamber judgment in Al Skeini – issued after the book went to print – provides us with a good opportunity to test the model advocated by Milanovic, and to examine how the alternative tests he and I propose could relate to the most recent statement of the extraterritorial application of the ECHR (found mainly in paragraphs 133-142 of the judgment). Significantly, the Al Skeini judgment internalizes a number of Milanovic’s criticisms of Bankovic (most importantly, it rejects the espace juridique theory), and goes some way in its treatment of the concept of jurisdiction in the direction to which Milanovic points in his book.

First, the Court restates past instances in which control over persons was found to entail the extraterritorial application of the European Convention– exercise of diplomatic or consular authority, exercise of public powers by agreement of the host government and physical power and control over individuals (or ships). Significantly, the Court explicitly reverses Bankovic’s ‘all or nothing’ approach – as far as it is relevant to personal control cases, and states that:

“It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare Banković, cited above, § 75)”. (para. 137)

To my mind, all of these cases are indeed instances of intense potential impact or special power relationship, which should have indeed led to the full application of the relevant Convention provisions. (Note that Milanovic ‘s model would apply only negative obligations in these circumstances).

The Court then addresses jurisdiction based on control over territory. Here it accepts the notion of effective control as the basis for full applicability of the Convention (in line with Milanovic’s spatial model). Note, however, that the Court appears to reaffirm there its 2004 Ilascu judgment, implying that a state’s effective control over foreign territory will be determined inter alia in light of “the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region” (para. 138). This flexible approach to what constitutes effective control also sits well, I believe, with the intense potential impact and special power relationship standards for applicability I have identified earlier.

Finally, in applying the existing legal standards to the facts of the case, the Court reaches the unambiguous conclusion:

It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention (para. 149).

 It is interesting to note that the Court does not explicitly base its decision in this dispositive paragraph on the occupation of Basra by Coalition forces (although this fact is mentioned elsewhere in the judgment) – and the legal obligations (and special legal power relations) that ensue from this state of affairs. It does, instead, emphasize that the UK substituted the authority of the local Iraqi government. In other words, it found that the UK was both capable and particularly well situated to assume the responsibilities of governance vis-à-vis the population of Basra, including the obligations to protect their human rights. On this, Milanovic and I (and the ECtHR) appear to be in full agreement.

 In sum, Milanovic has provided us with an excellent, thought provoking and original book. I fully agree with his analysis of the shortcomings that can be found in the existing case law – bad cases do indeed make bad law. At the same time, I only partly agree with his prescription for a reinterpretation of human rights law – which goes some of the way, but not all of the way towards accommodating principle and politics. This disagreement does not detract, however, from my deep appreciation of the work. So, while bad cases make bad law, they sometime generate (very) good law books.

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

The Report of the “international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.

Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.

Legal Framework

It seems as if the main legal framework applied by the fact-finding mission to assess the lawfulness of the Israeli interception operation is the law governing naval blockades. This is certainly consistent with the main legal justification presented by Israel for the interception operation. What is less clear, however, is the interplay between this legal framework and the occupied status of Gaza, which the Report never bothers to explain. Note, that Israel has claimed a right to impose a naval blockade in connection with ongoing hostilities between Israel and the Hamas-controlled Gaza; but, significantly, Israel has also claimed in parallel that the occupation of the Gaza Strip has ended with the withdrawal of Israeli forces from the area in 2005.

The relationship between these two legal assertions is important: An occupier does not need to invoke the institution of naval blockade in order to bar access by foreign vessels into the occupied territory it controls (the imposition of a naval blockade may, however, allow the blockading party to enforce some access restrictions outside the territorial sea of the occupied area; at the same time, the imposition of the blockade is generally subject to more restrictive conditions than those attendant to the occupier’s general power to control access to the occupied area). More importantly, states do not need to resort to a naval blockade of a territory they effectively control . The Report assumes that Israel remains the occupier in Gaza and thus in effective control thereof (an assertion which is, at least, controversial given Israel’s inability to make its authority present inside the Gaza Strip). It does not explain, however, the legal basis upon which the flotilla was entitled to seek to access Gaza in the first place, if indeed the area is still under occupation; nor does it explain how the right of the occupier to control access to the occupied area affects the proportionality of a blockade it introduces.

To be sure, the First Additional Protocol of 1977 does require occupiers to admit humanitarian consignments into the occupied territory under certain conditions (article 69); but the Report never discusses this legal standard; nor does it discuss the right of private parties to “self-enforce” the duty to introduce consignments into occupied territories against the occupier, in breach of the latter’s entitlement to insist on inspecting and regulating the delivery of the said consignments.

Another basic problem with the legal framework canvassed by the fact-finding mission pertains to the application of the Fourth Geneva Convention and human rights law to the events surrounding the interception of the flotilla. Now, even if we were to assume that the laws of occupation apply to the Gaza Strip (as the fact finding mission did), these laws cannot apply on the high seas – that is, outside the territorial seas of the occupied area (at no stage did the flotilla ships enter Gaza’s waters – i.e., enter the occupied territory). While it may be argued that those passengers holding the nationality of countries not having normal diplomatic representation at Israel “who found themselves” in its hands in the course of an armed conflict (occurring outside the occupied territory) should nonetheless be deemed ‘protected persons’ pursuant to article 4 of the Geneva Convention, few if any of the victims of the Israeli military operation appear to have met this legal criteria (the nine passengers killed in the operation all held the nationality of states having diplomatic relations with Israel). Again, the Report is completely silent on this important point of law and fails to explain the application of the Fourth Geneva Convention to the interception operation.

The question of the applicability of human rights law to the interception operation also receives a ‘light treatment’ from the fact finding mission. The interception occurred in international waters on board non-Israeli ships. I would certainly agree that once resistance on the flotilla ships has ended and Israeli troops took full and effective control over them, the conditions for application of article 2(1) of the ICCPR have been met. However, a key question in this regard is whether the Covenant applied in the interim stage – between the commencement of the interception and the completion of the take-over – the period of time in which the most serious violations found by the fact finding mission have occurred. There is little in the case law of international human rights bodies – especially in the case law of the European Court of Human Rights dealing with extra-territorial military operations (which applies analogous legal standards to those appearing in the ICCPR)– that supports the liberal construction of the jurisdictional provisions of human rights treaties proposed by the fact finding mission.  Furthermore, no legal analysis is offered by the fact finding mission on this point. The Report simply makes a laconic reference to General Comment 31 of the Human Rights Committee, which affirms that individuals subject to the “power” of a contracting state are protected by the Covenant; but it does not delineate the beginning and end of such power relationships. Note, the question at hand is hardly technical in nature, as it is precisely the very existence or absence of effective control, which facilitates the application of the protections specified in the Covenant and determines their scope of application. A state cannot be expected to fully implement human rights standards in situations it does not yet control.

Application of legal standards

The next stage in the fact finding mission’s analysis involves the application of the legal standards it identified to the interception operation. A key legal finding reached by the fact-finding mission in this respect has been that the blockade was disproportional and thus unlawful. The crux of the analysis offered by fact finding mission is found in paragraph 53 of the Report:

The Mission is satisfied that the blockade was inflicting disproportionate damage upon the civilian population in the Gaza strip and as such the interception could not be justified and therefore has to be considered illegal.

Two conspicuous elements are missing, however, from the fact finding mission’s analysis on this point. First, no weight whatsoever is given to Israel’s security concerns or military necessity claims that have led to the imposition of the blockade. Instead, the mission takes the view that the very existence of a humanitarian crisis in Gaza justifies the nullification of the blockade regardless of its consequences for Israel (e.g., an increased risk of weapon smuggling and the introduction of militants into the Gaza Strip). Para. 261 of the Report contains an explicit statement to this effect:

The Mission has come to the firm conclusion that a humanitarian crisis existed on the 31 May 2010 in Gaza. The preponderance of evidence from impeccable sources is far too overwhelming to come to a contrary opinion. Any denial that this is so cannot be supported on any rational grounds. One of the consequences flowing from this is that for this reason alone the blockade is unlawful and cannot be sustained in law. This is so regardless of the grounds on which it is sought to justify the legality of the blockade.

However, Para. 103 of the San Remo Manual – never mentioned in the Flotilla Report – appears to contradict this very legal position, as it clearly contemplates a lawful blockade with dire humanitarian implications:

If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

In other words, the San Remo Manual supports the proposition that even in the face of a humanitarian crisis in the blockaded area, the blockade is not unlawful per se (and would be subject to proportionality analysis). In addition, Para. 103 acknowledges the right of the blockading party to insist even in such dramatic circumstances on searching humanitarian vessels and on regulating the delivery of supplies to the under-supplied area – precisely the two requirements imposed by Israel in the present case. So, a humanitarian crisis could limit the blockading force’s options and prevent it from denying the introduction of humanitarian supplies into the area in question, but it does not totally negate its ability to impose a naval blockade, to inspect the cargo and to regulate the method of supply.

Second, the analysis employed by fact-finding mission does not distinguish the naval blockade from the broader restrictions on the introduction of goods into the Gaza Strip imposed by Israel and Egypt (incidentally, the latter’s legal responsibility for the situation in Gaza is never considered in the Report). Instead, the Report views the naval blockade and the broader closure regime as components in a single disproportional policy. It may be the case – and the present author subscribes to this view – that the overall closure or siege imposed on Gaza by Israel and Egypt may be unlawful: whereas Israel is entitled to impose import restrictions as a form of legitimate economic sanctions in response to rocket attacks on its territory originating from Gaza, the extent of the sanctions imposed and their duration raises to my mind serious proportionality concerns. Still, I believe that the naval blockade can and should be analyzed separately from the general closure or siege, as there may unique security justifications for imposing a naval blockade – thus preventing the importation of uninspected goods into the Gaza from the sea – which would not support restrictions on importation of inspected goods through land crossings. The attribution of the humanitarian crisis in Gaza to the naval blockade is particularly odd, given the fact finding mission’s acknowledgement that Gaza lacks any port facilities. Thus, in terms of proportionality analysis – the humanitarian implications of the naval blockade are much more negligible than those caused by the land siege – since only land routes constitute a meaningful life-line for Gaza that can serve for the introduction of humanitarian supplies in significant quantities.

The analysis performed with regard to the question of proportionality is troubling at another level as well: The fact-finding mission accepted that Israel offered to the flotilla organizers to divert the cargo it carried to the Israeli port of Ashdod, and has undertaken that it would be transferred there from, after inspection, into Gaza. As a result, the mission found that the dominant goal of the flotilla was political, not humanitarian in nature. Under these circumstances, it is unclear why the interception of this particular flotilla has been disproportional – arguably, Israel’s offer to facilitate the supply of the goods on board the flotilla ships struck a reasonable balance between its security concerns (insistence on inspection) and the humanitarian interests of Gaza’s residents (delivery of the supplies to Gaza). Perhaps, the mission was of the view that Israel’s general closure policy colors in illegality every act taken in its context; but, this is not generally the approach taken by laws of armed conflict, which tends to analyze separately the proportionality of every specific measure taken by the parties to the conflict.

After reaching the conclusion that the naval blockade is deemed unlawful as such, the fact finding mission asserted that that only vessels effectively contributing to the enemy’s war effort or posing an imminent threat may be intercepted (citing in this regard paragraphs 67 and 147 of the San Remo Manual). This is, however, also a dubious legal proposition: Para. 67 of the San Remo Manual discusses an attack on a neutral ship – and does not deal at all with the right of interception. While Para. 147 does deal with the right of capture (which may follow a refusal to submit the vessel in question to search), it should be read in light of 118-121 of the San Remo Manual that govern the prior-in-time right to visit and search neutral vessels. The key legal tests under these legal provisions is not whether the vessel in question actively participates in hostilities, but whether it violates a blockade or, alternatively, if there exists a reasonable suspicion that it carries contraband goods. This standard represents a much lower legal threshold for justifying interception than the one identified by the fact finding mission, and even if we were to accept that the blockade is null and void, it is at least arguable that some of the cargo on board the flotilla ships fell under the definition of suspected contraband (this was the case, in particular, with the cement carried, since cement is a dual-use object that could be used for constructing military fortification; Israel offered to allow the entry of the cement in question into Gaza under international supervision guaranteeing its non-military use).

Conclusion

Fact finding exercises, such as that undertaken in the Flotilla Report, fulfill an increasingly important role in international life, and in the work of human rights bodies. Still, in the absence of formal enforcement mechanisms, the impact of fact finding reports depend to a large extent on their perceived legitimacy. As Thomas Franck noted, legitimacy may depend on procedural fairness (and drawing definite conclusion on the basis of one party’s version of events stretches this concepts to a considerable degree); but it may also depend on the perceived professionalism of relevant adjudicative body.

The sloppy legal analysis offered in the Flotilla Report with respect to the right to intercept the flotilla is thus regrettable: It suffers from inconsistencies (failing to explain the relationship between the blockade and the occupation), loose tests for application of legal standards (extending beyond acceptable boundaries the scope of application of the international humanitarian law and human rights law) and is characterized by the application of legal standards to the facts of the case in a manner that appears to be under-explained, selective and  unconvincing. Such an unsatisfactory legal effort detracts from the credibility of the fact finding mission’s conclusions on factual matters, such as on the application of excessive force by the Israeli soldiers who raided the Mavi Marmara or the maltreatment of the flotilla passengers inside Israel. It also raises the question of whether human rights bodies are well qualified to address issues whose legality is heavily dependent on other bodies of law, in particular – the laws of armed conflict.

Ultimately, one cannot avoid feeling that the Flotilla Report rendered Israel’s prior concerns about the tendentiousness of the fact-finding process a self-fulfilling prophecy. Such a disappointing outcome is unlikely to encourage states like Israel to cooperate with future fact-finding missions sponsored by the Human Rights Council, nor to comply with any recommendations the process may entail.

In particular, Helfer is right in noting that regional courts should not be lumped together as a single category for all purposes:

“Many studies of international adjudication appear to assume either that the legal and political dynamics of global or European courts will apply to tribunals in other regions, or that lesser known courts in Africa, Latin America, and Eurasia have done little to merit the attention of scholars.  A growing body of evidence suggests, however, that both assumptions are unwarranted.”

 Indeed, the recent ASIL article by Alter and Helfer focusing on the Andean Court of Justice is an excellent illustration of the unique nature of some regional courts and of the unpredictable way in which their work and impact develops over time.

 Still, I would defend the following position: While the effectiveness of different courts varies dramatically across regions due to the background “legal and political dynamics” that influence their work, the goals set for regional courts upon their establishment tend to converge. This happens, to a large extent, as a result of the “copycat” motivation that leads law-makers to “implant” models of successful legal institutions across regions and regimes. So, for example, the perceived success of the ECHR, has led to the creation of the comparably structured I/A CHR and fledgling African Court of Human Rights (now part of the African Court of Justice and Human Rights). Although the three courts encounter very different legal and political problems and have widely divergent records of achievement (meaning that the “implant” has been sometimes rejected), they appear to share, as a result of their derivation from a common “prototype”, a strong commitment to promoting respect for human rights and to holding member states accountable. Hence, the I/A CHR and the ACHR, like the ECHR, are illustrative of the new ethoi of international courts – enforcing norms and building an international rule of law.

In the same way, regional economic courts in Europe, Africa and Latin America, all modeled to some degree or other after the ECJ, seem to share a commitment to the smooth functioning of the economic regime in which they operate, and to maintaining the equilibrium between the member states’ rights and obligations. Of course, such courts sometimes succeed, sometimes fail and sometime partly succeed and partly fail. The “rule of law islands” identified by Alter and Helfer are indeed a fascinating phenomenon, which I intend to study further in my future work on the effectiveness of international adjudication (I am currently coordinating a study group on the topic of international judicial effectiveness). But for the purposes of my EJIL article, I was less interested in the actual emergence of islands and more in navigating the sea – describing the new directions in which the ship of international dispute resolution sails. These new courses differ from the traditional “dispute settlement”/”war prevention” ethos, which the first generation of international courts espoused.

 Another interesting development which Helfer notes, and which I fail to discuss in the article, is the emergence of new hybrid international courts (not in the conventional “criminal” courts sense of the word). The ECOWAS, East African and Caribbean Courts mentioned by Helfer all represent an interesting extension of economic integration courts into the field of human rights. The establishment of the aforementioned African Court of Justice and Human Rights and the ECJ’s Kadi decision suggest that we may be witnessing a new trend that represents a move away from specialization, fragmentation and “self-containment” of regional economic courts towards a more generalist or inter-subject judicial approach on their part. This move, which merits further study, may actually strengthen the image and ethos of international courts as “international rule of law” institutions, whose role and influence exceeds that of the regime in which they operate.

 Finally, Helfer is correct in noting my ambivalence towards the less-than-consensual adjudication of sensitive and politically-charged disputes before international courts, such as the ICJ. Most probably, such ambivalence on my part represents a clash between my realistic and utopian impulses. So, the realistic answer I would give to the question of whether the ICJ is expected to offer a meaningful contribution to the resolution of violent conflicts, such as the Russia-Georgia conflict, is most probably not; and I would give an even stronger negative answer to the question whether the ICJ should generate unreal expectations about its dispute-resolution capabilities in such circumstances. But acknowledging the Court’s limits does not imply that it should avoid altogether handling such cases (that is, when a plausible jurisdictional basis exists; I am not suggesting that this was the case in Georgia v. Russia). In a way, the Court’s disappointing track record in addressing high-political conflicts has lowered expectations from the Court to such a degree that, by now, it can only positively surprise us: By providing some normative guidance, a certain measure of accountability and a “focal point” for international debate, the judicial process may offer an incremental progress towards extending the notion of the international rule of law into the high politic realms of international relations. We are not there yet; and it would be counter-productive to maintain that we presently are there. Still, I would maintain that slowly pushing the envelope in that direction is desirable, if not imperative.         

Professor Yuval Shany is the Hersch Lauterpacht Chair in Public International Law, Faculty of Law, Hebrew University of Jerusalem. His latest EJIL article, summarised in this post, is available here. His publications include The Competing Jurisdictions of International Courts and Tribunals (OUP, 2003) and Regulating the Jurisdictional Interactions Between International and National Courts (OUP, 2007).

The article assesses some of the theoretical and practical implications arising out of some recent changes in the field of international disputes settlement: the rise in the number of international courts, the expansion of their jurisdictional powers, their increased invocation by state and non-state parties and the growing inclination of national courts to apply international law. Arguably, these cumulative developments herald a qualitative change in the configuration of the field of international dispute settlement. Whereas international law had been applied in the past by judicial bodies on relatively few occasions, the operation of the new international judiciary has been much more “routinized”, and nowadays increasingly resembles the operation of national courts (and, in the same vein, the application of international law by national and international courts increasingly resembles the application of national law by national courts). At a deeper level, one may claim that the operation of the new international judiciary is governed by new ethoi (international norm-advancement and the maintenance of co-operative international arrangements), which is different from the traditional ethos of international courts (conflict resolution).

The second part of the article discusses some of the “blind spots” of the present judicial institutional landscape: a) Jurisdictional gaps – the new courts have been concentrated in a relatively limited number of areas of international relations, mostly appertaining to the protection of basic human rights, some economic relations, and maritime interests. Many other areas of international life of critical importance (such as politically-charged conflicts before international courts relating to war and terror) largely remain outside the compulsory jurisdiction of any international court. What is more, the personal jurisdiction of the new international judiciary is less than universal, and sometimes those very states that are most likely to become involved in conflicts falling under the jurisdiction of the new courts tend to withhold their consent to jurisdiction; b) Enforcement gaps – the increase in the jurisdictional reach of international courts has not been met with a comparable increase in their enforcement capabilities, which would enable courts to effectively carry out their missions. While this may be less of a problem in the economic sphere, (where cooperative regimes typically generate their own incentives to comply), it appears to be a serious obstacle to the smooth functioning of international courts in fields such as criminal law.

 While national courts can, in theory, fill some of these remaining jurisdictional and enforcement gaps, their ability to actually do so remains unclear. Perhaps the combined effect of a more robust ICJ, and more international law-minded national courts, could go some way towards closing the existing gaps in international jurisdictional coverage and enforcement.

 The third and last part of the article addresses in brief some concerns that the emergence of the new institutional judiciary may actually exacerbate: a) coordination problems – the uncoordinated manner in which the new international courts were created, and the specialized character of their jurisdictional structures, generates potential jurisdictional conflicts and introduces tensions that threaten the coherence of the international legal system as a whole; b) effectiveness and perceived legitimacy  – the judicialization of dispute settlement may not always produce better outcomes for the relevant stakeholders, particularly where some of the parties deem the applicable norms to constitute an inadequate basis for a just and comprehensive settlement (without some adjustments). Moreover, one may wonder whether the investment of considerable political and financial resources on the part of the international community in establishing new international courts always represents the most cost-efficient investment of resources.

 The expansion of international courts and international jurisdiction without seriously addressing problems related to their jurisdictional limits, enforcement powers, jurisdictional and normative relations with other bodies, effectiveness and perceived legitimacy may result in a political and legal backlash that would, over time, complicate the mission of international courts. Hence, one of the key challenges in the 21st century for the international judiciary (and the international community on whose behalf it operates) will be to develop legal doctrines, best-practices, and institutional safeguards to address such concerns.