Over the years, the Security Council has on several occasions dealt with humanitarian assistance issues. However, it is Security Council Resolution 2165(2014), related to the situation in Syria, that has brought the role of the Security Council to the forefront of the debate. It is against this background that the article discusses the legal issues arising from Security Council action facilitating humanitarian assistance to be delivered in situations of non-international armed conflict.

Following a brief survey of relevant practice of the Security Council related to humanitarian assistance, the article considers the relevance, if any, of Article 2(7) of the Charter of the United Nations (UN) to humanitarian assistance to be delivered in such situations. It then moves on to analyse whether a rejection by the territorial state of humanitarian aid to be delivered by third parties may amount to a situation under Article 39 of the UN Charter. It then considers in detail whether (at least implicitly) Resolution 2165 has been adopted under Chapter VII and, if this is not the case, whether it can be still considered to be legally binding.

The article finally considers what impact the adoption of Security Council Resolution 2165 might have on the interpretation of otherwise applicable rules of international humanitarian law and, in particular, the right of third parties to provide humanitarian assistance in a situation of a non-international armed conflict in spite of the absence of consent by the territorial state, and the obligations that members of the Security Council, permanent and non-permanent, have under Common Article 1 of the Geneva Conventions when faced with a draft resolution providing for the delivery of humanitarian assistance, notwithstanding the absence of consent by the territorial state.

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

The question of Palestinian refugees has long been recognised as one of the core issues that would need to be addressed in any eventual Israeli-Palestinian peace agreement. This article examines compensation for property seizure and forced displacement, an aspect that has figured in every round of major peace talks on permanent status issues for the past quarter of a century. Drawing upon research, informal ‘track two’ discussions and official negotiations, it highlights the challenge of crafting arrangements that would be both politically and practically feasible.

Ever since the Wednesbury decision in 1947 (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) courts and public law scholars in the United Kingdom (UK) have been struggling to comprehend the meaning of ‘reasonableness’ and its relation to ‘proportionality’. The main purpose of this article is to promote conceptual clarity in UK public law by describing the nature of reasonableness and proportionality as grounds of judicial review and by highlighting the overlooked similarities and differences between them.

The main arguments of this article are that: (i) reasonableness is, in essence, an exercise in balancing and weighing; (ii) proportionality adds very little to the existing grounds of judicial review in UK public law; (iii) this addition is not necessarily focused on the administrative weighing and balancing process; and (iv) since proportionality adds very little to the existing grounds of judicial review, there is no conceptual or normative reason to prevent having proportionality as a general ground of judicial review in UK public law.

A primary purpose of a human rights theory is to provide a foundation from which the actual and complete nature of human rights can be gleaned. Particularly for rights that are controversial or do not enjoy widespread consensus, a human rights theory provides a system for understanding what rights exist or should exist and what rights contain or should contain. The most predominant theories of human rights are based in law, politics and morality. Patrick Macklem's The Sovereignty of Human Rights proposes a new theory of human rights devised to bypass the shortcomings of those predominant theories. He argues that sovereignty is a better foundation for understanding human rights because sovereignty and its distribution in the international legal order has given rise to the need for certain rights to exist. The exercise of sovereign power by individuals also influences how human rights are implemented within state borders. He maintains that understanding the adverse effects of sovereignty and its distribution yields greater insight than other theories into why human rights exist, what they contain, and how they should be implemented.

Following a brief summary of Macklem's argument, the review examines how his theory compares with the predominant theories of human rights, particularly in light of the shortcomings of those theories. The review outlines Macklem's position that the adverse effects of sovereignty can clarify the international community's understanding of why human rights are necessary and what forms of protection they include. The review then examines how Macklem's theory corresponds with traditional classifications of human rights, which depict such rights in terms of generations. Finally, the review concludes with reflections on the theory and poses new questions raised by Macklem's theory of human rights.

Offering a current reflection on Raphael Walden's 1977 article, ‘The Subjective Element in the Formation of Customary International Law’, this contribution seeks to illustrate that considerable clarity has been achieved over the decades with regard to several long-standing questions associated with customary international law, not least those surrounding opinio juris. Accumulated practice and constructive scholarship have supplied insights into, and indeed answers to several of the controversies that have bedevilled the theory of this central source of international law. While it may inherently defy exact formulations, and some theoretical questions remain, customary international law is thus today not only as present in the international legal system as it has always been but is also better understood.

The quarter-century anniversary of Israel's ratification of the major United Nations (UN) human rights treaties is an opportunity to revisit the formal and informal interaction between domestic and international Bills of Rights in Israel. This study reveals that the human rights conventions lack almost entirely a formal domestic legal status. The study identifies a minor shift in the scope of the Israeli Supreme Court's reference to international law, as the Court now cites international human rights law to justify decisions that a state action is unlawful, and not only to support findings that an action is valid. This shift may be the result of other reasons, for instance, a ‘radiation’ of the Court's relatively extensive use of international humanitarian law in reviewing state actions taken in the Occupied Territories. However, it may also reflect a perception of enhanced legitimacy of referring to international human rights law as a point of reference in human rights adjudication following ratification of the treaties.

At the same time, the Court continues to avoid acknowledging incompatibility between domestic law and international law. It refers to the latter only to support its interpretation of Israeli constitutional law, as it did before the ratification. This article critically evaluates this practice. While international human rights law should not be binding at the domestic level, because of its lack of sufficient democratic legitimacy in Israel, it should serve as an essential benchmark. The Court may legitimise a human rights infringement that is unjustified according to international law, but such incompatibility requires an explicit justification. The Court, together with the legislature and the government, are required to engage critically with the non-binding norms set by the ratified UN human rights treaties.

The role of courts as lawmakers has been scrutinised, partly because of the questions it raises regarding legitimacy. This scrutiny has sometimes assumed that courts are safe from legitimacy-based criticism in their role as appliers of law. However, recent events in the United Kingdom show that, regrettably, this is not so: the media reaction to the judgments in the Brexit case of Miller went far beyond criticism of the courts’ reasoning or conclusions. It was an attack on legitimacy. Insofar as such attacks arise out of misunderstandings about the nature of adjudication (including, for example, the existence and scope of judicial discretion), one way of countering them is for the legal community (scholars, judges, practitioners) to continue to increase public awareness about these issues. However, it is incumbent upon other parts of the state – the executive and the legislature – to respond promptly to such attacks in order to uphold the independence of the judiciary and the rule of law.

This article, departing from Gila Stopler's ‘Rights in Immigration: The Veil as a Test Case’, published in the Israeli Law Review in 2010, reviews how the time spent by a long-term migrant, irrespective of legal status, normatively figures in liberal theories of migration and in the case law of the European Court of Human Rights (ECtHR). The article detects that in contemporary liberal theories, assigning an independent normative value to time spent by the migrant in the receiving country is a key move in balancing the competing interests of migrants and of the migrant-receiving country, where the right of the country to regulate migration is taken as given: the longer a migrant is present in a country, the stronger her interests become in receiving citizenship status or treatment akin to citizens. The article then surveys the case law of the ECtHR relating to long-term migrants. It finds that time is often one of multiple normative considerations in the balancing exercise, in conjunction with whether a migrant has achieved social integration in the migrant-receiving country and whether the right of the receiving community to regulate migration for reasons of affording citizenship, national security or distributive justice is paramount. The article argues that the lack of an independent normative weight afforded to time in the case law of the ECtHR is not merely a tension between the translation of liberal normative theory to legal policy. It also shows a deeper tension in liberal theories of migration between national liberalism and cosmopolitan liberalism.