Volume 7, Issue 2 - Borders and Human Rights; Guest Editors: Ronit Donyets-Kedar and Tally Kritzman-Amir

One of the most complex and uncertain areas of international legal doctrine concerns how to deal with the aspiration of a people to achieve self-determination through the establishment of a new state and the related claim to a specific territory over which statehood is to be exercised. Recently, when the General Assembly of the United Nations referred to the International Court of Justice the question of the legality of the declaration of independence by Kosovar Albanians, the Court was given an opportunity to clarify and develop the law on external self-determination. Instead, the Court answered extremely narrowly, confining its analysis to the legality of the act of declaration without determining any consideration of international legal norms applicable to the act of secession that was being proposed. This article intends to fill the gap left by the ICJ’s decision: first by critiquing the inadequacy and tensions visible in the existing doctrine and second by examining how recent developments in international law may allow for a more normatively coherent approach to the problem.

There is considerable concern that climate change will displace many people in developing countries from their homes. This article examines whether developed countries are morally obligated to assist people displaced by climate change in developing countries. The article argues that there may not be a moral duty to assist climate change migrants as a category. Nonetheless, developed countries may have duties to assist vulnerable people elsewhere and may be obligated to assist climate change migrants along with other vulnerable people. In addition, there likely is a duty to assist a particular subset of climate change migrants, specifically the citizens of small island countries existentially threatened by climate change. The article concludes by assessing the implications of its moral analysis for the focus of law and policy. Instead of developing new treaties to assist climate change migrants as a number of academics and practitioners have recently proposed, law and policy should be concerned with assisting migrants at risk generally, and/or the citizens of small island countries existentially threatened by climate change.

This article begins to undertake a human rights analysis of the increasing number of migrants who die annually while trying to cross the borders of Europe in an irregular manner. Over the past 20 years, border policies increasingly focus on (pro-active, extraterritorial, privatized, and securitized) border management instead of on classical (reactive, territorial, and public) border control. On the basis of existing data, it seems plausible to assume that the increasing migrant mortality is an unintended side-effect of this shift from control to management. The article argues that it is possible to collect data, which are more reliable than those presently available, and presents data from a pilot project carried out on Sicily in November 2011. Presuming better data can be collected; two diverging human rights approaches are developed – a conventional approach holding that European states are not accountable under human rights law for these side-effects and a functional approach holding that human rights law does impose obligations on European states in this context. On all four doctrinal issues which are relevant to the problem (jurisdiction, positive obligations, standing, and collective state responsibility), these diverging approaches lead to diverging doctrinal positions. A choice between the two approaches implies not only legal but also moral, ethical, and political choices.

This article analyzes the way in which the Israeli military exercises control over life in Gaza by regulating who and what may enter or leave. Using primary source documents obtained via the Freedom of Information Act proceedings, the article details a military bureaucracy that micro-manages requests to move people and goods through Gaza’s crossings. For example, the transfer of chickpea paste requires approval from a senior military official holding the rank of major general, and soldiers evaluate the quality of care offered to an orphan by his or her surviving parent, as a condition of authorizing the child’s passage to his parent’s home. The article discusses the effects of such control on the lives of those inside Gaza, including their exercise of rights and their social and economic choices. It then explores the motivations behind the restrictions, relying on statements and actions by Israeli officials. The article extends the current literature on deliberately nonrational bureaucracies in the context of rule by a foreign power by showing how the Israeli military bureaucracy maintains some functions of control over the local population in Gaza, despite its withdrawal and dismantling of its military government. It concludes by noting that the effects of the travel restrictions and their purpose are relevant to the normative debate over their legitimacy and suggests areas for further research.