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The Practice and Case Law of Israel in Matters Related to International Law

Published online by Cambridge University Press:  04 July 2014

Rotem M. Giladi
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Extract

On February 24, 1998, the government submitted the International Treaties (Approval by the Knesset) Bill, 1998 to the Knesset. This governmental bill represents the culmination of fifty years of exchange between the Executive and the Legislature concerning the constitutional authority to conclude international agreements on behalf of the State of Israel.

Normally, it would have been preferable to await the completion of the enactment process before commenting on the new legislative arrangements. Due to the constitutional importance of the Bill and the fact that it raises several important questions, the regular practice will be abandoned in this case.

Despite the availability of an abundance of materials on the treatymaking practice of the State of Israel and the status of treaties under municipal Israeli law both in English and in Hebrew, an in-depth analysis of the Bill requires an extensive exposition de lex lata on both these questions. Only then will the provisions of the Bill be presented. This will take the form of an issue-by-issue analysis, with conclusions drawn in each segment. The review will conclude with several additional observations de lege ferenda.

Type
Research Article
Information
Israel Law Review , Volume 32 , Issue 3 , Summer 1998 , pp. 475 - 527
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1998

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Footnotes

*

LL.M. candidate, Faculty of Law, the Hebrew University. I wish to thank Prof. Ruth Lapidoth and Dr. M. Hirsch for their valuable advice and comments

References

1 The Bill was published in Hebrew in H.H. 2691, February 24, 1998, at 261. For the historical evolution of the Bill, see Part II.G, infra. The author's unofficial translation of the Bill is appended on p. 526.

2 See, for example, Benvenisti, E., “Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts”, (1993) 4 Eur. J. Int'l L. 159 CrossRefGoogle Scholar; Benvenisti, E., “The Influence of International Human Rights on the Israeli Legal System: Present and Future”, (1994) 28 Is. L.R. 136 CrossRefGoogle Scholar; Blum, Y., “The Ratification of Treaties in Israel”, (1967) 2 Is. L.R. 120 CrossRefGoogle Scholar; Golan, H., “Israel's Experience with Legislative-Executive Relations in the Field of Foreign Relations”, in Sondhi, M.L., ed., Foreign Policy and Legislatures — An Analyses of Seven Parliaments (New Delhi, 1988) 86 Google Scholar; Lapidoth, R., “International Law”, in Zamir, I. and Colombo, S., eds., The Law of Israel: General Surveys (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, 1995) 85–216 Google Scholar (hereinafter: “Lapidoth, (General Surveys)”). Zilbershats, Y., “The Adoption of International Law into Israeli Law: The Real is Ideal”, (1995) 25 Is. Yrbk. H.R. 243.Google Scholar

3 See, for example, Benvenisti, E., “The Implications of Security Considerations and Foreign Relations on the Application of Treaties in the Israeli Law”, (1992) 21 Mishpatim 221 Google Scholar; Dinstein, Y., International Law and the State (Schocken, Tel-Aviv, 1971) 128–148 Google Scholar; Lapidoth, R. (Eschelbacher), “The Treaty-Making Power in Israel”, in Feinberg, N., ed., Studies in Public International Law in Memory of Sir Hersch Lauterpacht (The Faculty of Law, Hebrew University of Jerusalem, Magnes Press, Jerusalem, 1961) 210 Google Scholar; Lapidoth, R., “On the Validity of the Extradition Treaty Between Israel and Switzerland”, (1965/1966) 22 HaPraklit 328 Google Scholar; Rosenne, S., “International Law and the Municipal Law of the State of Israel”, (1950) 7 HaPraklit 258 Google Scholar; Shetreet, S., “The Role of the Knesset in Treaty Making”, (1985) 36 HaPraklit 349 Google Scholar; Lapidoth, R., “Symposium on Parliamentary Involvement in the Conclusion of International Treaties and Agreements”, (14 May 1978), in The Yisrael Yeshayahu Volume (Israel Association for Parliamentary Problems, Jerusalem, 1982) 11 et seq. Google Scholar; Rubin, B., “The Adoption of International Treaties into Israel Law” (1983) 13 Mishpatim 210 Google Scholar; Zilbershats, Y., “The Adoption of International Law into Israeli Law: The Real is Ideal”, (1994) 24 Mishpatim 317.Google Scholar

4 (1948) 1 L.S.I. 9–10.

5 Laws and Practices Concerning the Conclusion of Treaties, United Nations Legislative Series, 1953 (ST/LEG/SER.B/3, December 1952), 67 at 70.

6 S.H. No. 1396 (14th April, 1992), p. 214. The translation here is the authorized translation to the identical section in the former Basic Law: The Government, (1968) 22 L.S.I. 257, at 262.

7 Note that at the time, Hebrew did not contain a word distinguishing the act of “approval” from that of “ratification”. The Hebrew original uses the term “approved” which will be used here so as to avoid confusion.

8 The authorized translation ((1964) 18 L.S.I. 111, at 112) reads: “shall sign such conventions with foreign states as have been ratified by the Knesset”. Blum notes that this departure from the Hebrew original seeks to incorporate the government's construction of the section, on which see supra n. 2, at 124–125, n. 33. Section 11(a)(5) originates in section 6 of the Transition Law, 1949; 3 L.S.I. 3. See Rubinstein, A. and Medina, B., Constitutional Law of the State of Israel (Schocken, 5th ed., Jerusalem and Tel-Aviv, 1996, in Hebrew) 793 Google Scholar et seq.

9 In this case, approved; see supra n. 7.

10 Laws and Practices Concerning the Conclusion of Treaties, supra n. 5, at 70–71. With regard to the effect of the exercise of the government's treaty-making powers in domestic law, the memorandum contains the following passages: “the provisions of international treaties do not become executory from the point of view of domestic law by the mere fact that the acts necessary to make the instrument binding from the point of view of international law have been duly performed. If the international convention is intended to introduce changes into the domestic legislation, or requires such changes for its effective implementation, these changes can only be affected by means of a domestic law passed in the normal way … Having regard for this, it has been the practice of the Government of Israel not to exercise its power of ratification until it is certain that parliamentary authority for the domestic law will be forthcoming. This constitutional practice was established in connection with the passage of the Crime of Genocide (Prevention and Punishment) Law, 5710–1950.”, ibid. See also Custodian of Absentee Property v. Samara et al., 1 Psakim 513.

11 See Lapidoth, (1965/1966), supra n. 3, at 345; Lapidoth (Eschelbacher), in Studies in Public International Law in Memory of Sir Hersch Lauterpacht, supra n. 3; Rubinstein and Medina, supra n. 8, at 793–94; Shetreet, supra n. 3, at 359–360; Shetreet, S., “Custom in Public Law”, in Zamir, I., ed., Klinghoffer Book on Public Law (Harry Sacher Institute, Jerusalem, 1993, in Hebrew) 375, at 410–414.Google Scholar

12 K.A., No. 5, p. 66.

13 Crime of Genocide (Prevention and Punishment) Bill, (1949) H.H., No. 27, p. 37 (14 December 1949). See also Crime of Genocide (Prevention and Punishment) Law, 1950, 4 L.S.I. 101.

14 Diurei HaKnesset, No. 7, pp. 313–324 (26 December 1949).

15 Ibid., at 323.

16 Ibid., at 324.

17 Divrei HaKnesset, No. 7, p. 345 (28 December 1949). Note, however, that the Knesset's Resolution also directed that the “certificate of approval” will be deposited with the Secretary General of the UN”. See also Weiss, S., HaKnesset, (Achiasaf, 1977, in Hebrew) 155–156.Google Scholar

18 Hishmat Kamiar v. The State of Israel (1968) 22(h) P.D. 85. See Lapidoth, (1965/1966), supra n. 3; Blum, supra n. 2.

19 K.A. No. 309, Vol. 10, p. 391.

20 Supra n. 18, at 130.

21 On which see infra, Part III.

22 Note, however, that H. Cohn J. opined that this state of affairs actually conforms with the principle of separation of powers: “The creation and existence of international relations generally, and the conclusion of international agreements in particular, are manifestly a matter for the Executive; these are not at all a matter for the Legislature to deal with. In this respect, our constitutional situation is different from that of other States in which international treaties have a status or validity equal to that of laws, or even supreme laws: thus, in these States, the conclusion of international treaties amounts to legislating. This is not the case with [Israel — R.M.G.], as no international treaty has legislative force until such force is conferred upon by it by an express law of the Knesset … It results that the “separation of powers” is properly guaranteed: in the case and to the extent that an international treaty requires legislation, whether its provisions may affect existing law or that they contain obligations of performance or conduct that may not be enforced and carried out without legislation — the Knesset will have to enact (or to empower another authority to pass secondary legislation) — and if it does not do so, the treaty cannot be executed; but a treaty which can be executed by the government in the course of conducting the affairs of the State, or a treaty reflecting existing laws of the State, or treaties … concluded within the framework of a Statute enacted by the Knesset for that purpose — are not a matter for the Knesset to deal with, but for government alone”; supra n. 18, at 96.

23 Supra n. 5.

24 Prof. Shetreet maintains that the correct term is “constitutional custom”, supra n. 3, at 359, n. 46.

25 Landau J., at 113.

26 Divrei HaKnesset (1963) vol. 35, at 771 et seq. See also Divrei HaKnesset (1964) vol. 40, at 2050 et seq.

27 See Blum, supra n. 2, at 125–126; Lapidoth (Eschelbacher), in Studies in Public International Law in Memory of Sir Hersch Lauterpacht, supra n. 3, at 344; Lapidoth, “Symposium on Parliamentary Involvement …”, supra n. 3, at 19; Shetreet, supra n. 3, at 380; Rubinstein and Medina, supra n. 8, at 795.

28 Hansard, Commons, Vol. 171; (1924) 5 Br. Yrbk. Int'l L. 191; McNair, , The Law of Treaties (Clarendon Press, Oxford, 1961) 99, at 190Google Scholar; Lauterpacht, E., “The Contemporary Practice of the United Kingdom in the Field of International Law, Survey and Comment, No. IV”, (1957) 6 Int'l and Comp. L.Q. 506, at 528CrossRefGoogle Scholar; Lauterpacht, E., “The Contemporary Practice of the United Kingdom in the Field of International Law, Survey and Comment, No. V”, (1958) 7 Int'l and Comp. L.Q. 92, at 121.CrossRefGoogle Scholar

29 The Attorney-General's Guidances are the accumulation of “the Legal Opinions of the Attorney-General … which are a “Guide to the Perplexed” to government authorities in their activities and constitute a legal aid of the first degree, sometimes preceding the development of case-law and legislation”; Rubinstein and Medina, supra n. 8, at 762. In practice, therefore, these Guidances highly affect the legal policies of public authorities; as Barak J., stated obiter in The Koch Faction v. The Chairman of the Knesset (1985) 39(iii) P.D. 141, at 152: “the authority to interpret law for the Executive is vested in the Attorney-General, and its interpretation binds the government internally”. These are, strictly speaking, administrative guidelines; they do not seem to have legal status per se.

30 See also Attorney-General's Guidance No. 64.000 of 1 August 1972.

31 Divrei HaKnesset (1983), 2831. See Bill Providing for the Approval by the Knesset of Treaties with Foreign States, 1983.

32 Ibid., at 2822–2825.

33 Approved in government Resolution 534 of (25 March 1984). Today, Rule 6(a), August 1997.

34 Attorney-General Guidance No. 64.000A, 1984.

35 It must be noted, however, that new draft Guidance on the conclusion of international treaties is being prepared by the Ministry of Justice, in conjunction with the Bill. See also text accompanying n. 135, infra.

36 Supra n. 3, at 376; Shetreet, supra n. 12. Prof. Shetreet bases this conclusion on review of past governmental practices; even if this review does reveal a consistent, recurrent pattern, as Prof. Shetreet maintains, this does not necessarily mean that such a binding “constitutional custom” has in fact evolved. A determinant factor in the evolution of a “constitutional custom” is, as Prof. Shetreet recognizes, the subjective element: the government must be acting in a recurrent and consistent manner because it feels duty bound to do so. There is evidence that the government does not feel that way: according to the 1984 Rules of Procedure, “the government may determine that a certain treaty, because of its importance, will also be brought to Knesset approval or ratification”.

37 “The Submission of Political Agreement to the Knesset”, Attorney-General Legal Opinion dated 23 October 1994 (unpublished, author's files).

38 Ibid., at 24; emphasis in the original.

39 Israeli-Palestinian Agreement on the West Bank and the Gaza Strip, signed 28 September 1998, Washington DC, 33 K.A. 1.

40 Dov Shilansky v. The Prime Minister and the Minister of Foreign Affairs, (27/7/95; unpublished), paragraph 2 of the judgment.

41 The Court noted that the 13 September 1993 Declaration of Principles on Interim Self-Government Arrangements, (Washington DC, United Nations Document A/48/ 486-S/26560 (Annex) of 11 October 1993; (1993) 321.L.M. 1525; (1994) 28 Is. L.R. 442) and the 4 May 1994 Agreement on the Gaza Strip and Jericho Area (Cairo, 32 K.A. No. 1067, 225; United Nations Document A/49/180 S/1994/727 (Annex) of 20 June 1994; (1994) 33 I.L.M. 626; (1994) 28 Is. L.R. 452) were not, in fact, brought by the government for Knesset approval prior to their signature. See also Lapidoth, (General Surveys), supra n. 3, at 122, n. 102. For surveys of the practice in that respect, see Shetreet, supra n. 3, at 362–366, 376–381 and in Epstein, N., ed., Treaties of Peace in the Knesset's Perspective, published by the Knesset, , at 5–120.Google Scholar

42 Wye River Memorandum between the Government of the State of Israel and the Palestine Liberation Organization, signed 23 October 1998 at Washington DC, as yet unpublished.

43 “The Wye Memorandum — Entry Into Force”, Attorney-General Legal Opinion dated 2 November 1998 (unpublished, author's files), at 2.

44 Ibid. See also n. 120.

45 Ibid., at 3; emphasis added. Note the reference to “implementation” rather than entry into force.

46 Ibid., at 4.

47 This indeed seems to be the interpretation of Mr. Tzvi Inbar, Legal Advisor of the Knesset, who, in a Legal Opinion to the Knesset's Chairman dated 3 November 1998, views Attorney-General Rubinstein's instruction concerning the transfer of territory only upon Knesset approval as a suggestion (unpublished, author's files).

48 (Emphasis added — R.M.G.). Interestingly, Attorney-General Rubinstein did refer to the Bill and even opined that the Wye Memorandum might have, under the provisions of the Bill, required Knesset approval even prior to signature. This position is curious, for as will be demonstrated in Part IV.B.3.b, infra, the Bill will not apply to agreements signed between Israel and the PLO.

49 See the examples brought in n. 81, infra.

50 Some of these private bills were prompted, to a large extent, as a result of opposition to thel993 Declaration of Principles (supra, n. 41) and the fact that it was not brought for Knesset approval prior to its signature. The Declaration was brought to the Knesset after its conclusion, as was the case with the Agreement on the Gaza Strip and Jericho Area (supra, n. 41). See also Lapidoth, (General Surveys), supra n. 2, at 122.

51 Private Bill by A. Poraz, M.K., No. A-899 (submitted on 13 June 1994).

52 Resolution LEG/1780.

53 And was thereby re-designated governmental Resolution 3297 (19 February 1998).

54 Item No. 3343 of the Government Agenda.

55 This indeed was the case with regard to the Arrangement de Madrid Concernant la Repression des Fausses Indications de Provenance sur les Marchandises de 1891, as amended in 1911, 1925 and 1934. Israel acceded to this treaty in 1949, and it entered into force in relation to Israel on 24 March 1950; see K.A. 37, Vol. 2, p. 63. No implementing legislation ensued to prohibit the designation of false geographical place of origin, resulting in several complaints made by the French government. This led the government to propose The Bill to Amend the Merchandise Marks Ordinance 1957: H.H. No. 318, p. 341. The Knesset's Economic Affairs Committee criticized the government's accession to the treaty, yet enabled the passing of the law in order to allow the government to honor its obligations: Divrei HaKnesset No. 33, vol. 24, p. 2217. For the text of the Law, see (1958) 12 L.S.I. 174.

56 See Shtampfer v. Attorney-General (1956) 10 P.D. 5 and Eichmann v. Attorney-General (1962) 16 P.D. 2033. As to the issue of standard, see the citation of President Shamgar, infra, text accompanying n. 72; as to the burden of proof, see Guadi, R.M., “Refugee Status, Non-Refoulement and Non-Expulsion”, in “The Practice and Case Law of Israel in Matters Related to International Law”, (1997) 31 Is. L.R. 822, at 835 n. 125a.Google Scholar

57 For a presentation of the legal position concerning customary international law, its historical origins and critique see Lapidoth, (General Surveys), supra n. 2, at 88–94 and 120–126.

58 Shimshon v. Attorney-General (1950) 4 P.E. 143, at 145–146.

59 As to the consequences of such a reasoning, see Rubin, supra n. 3, at 220–221.

60 The position with regard to declaratory norms of international law, however, is based on the customary nature of the codifying provisions; see Lapidoth, (General Surveys), supra n. 2, at 94–95; Feinberg, N., “Declaratory and Constitutive Treaties in International Law”, (1967/1968) 24 HaPraklit 433.Google Scholar For criticism of the legal position, see Rosenne, S., “A Communication to the Editor”, (1980) 15 Is. L.R. 463 CrossRefGoogle Scholar and Rubin, supra n. 3, at 221–223.

61 As to the means of transformation, see Lapidoth, (General Surveys), supra n. 2, at 97–101.

62 See Lapidoth (General Surveys), supra n. 2, at 101 et seq.

63 There is certain body of case law — as well as some literature — indicating that treaties of these categories may have some indirect effect within the Israeli legal system; see Lapidoth, (General Surveys), supra n. 2, at 105–112; Benvenisti, supra n. 2, and Giladi, R.M., “The Effect of International Treaties Within the Israeli Legal System”, in “The Practice and Case Law of Israel in Matters Related to International Law”, (1995) 29 Is. L.R. 506, at 535.CrossRefGoogle Scholar

64 Affu et al. v. Commander of I.D.F. Forces in the West Bank et al. (1988) P.D. 4, at 39; English translation appears in (1990) 29 I.L.M. 139, at 158–159;

65 Ibid., at 160. For criticism on this pronouncement, see Lapidoth, (General Surveys), supra n. 2, at 121–126; Rubin, supra n. 3.

66 Infra, at Part V.B.

67 The reference to treaties to which Israel is a Party is clearly erroneous, as it becomes a Party to a treaty subject to ratification only after it has ratified that treaty, upon its entry into force. The term “signatory” would be more suitable. See article 2(1)(g) of the Vienna Convention.

68 It would have been more accurate to state that no statutory arrangement on the matter exists.

69 Vienna Convention on the Law of Treaties, done at Vienna, May 23, 1969, United Nations document A/CONF.39/27 (1969) 63 Am. J. Int'l L. 875; (1969) 8 I.L.M. 679.

70 Note that the phrase is not properly located. The current language suggests, erroneously, that the other party to the agreement, rather than the agreement itself, has to be “governed by international law”.

71 On the meaning of this expression in the context of the Vienna Convention, see ILC Commentary (Treaties), article 2, Paragraph 6, (1966) Yearbook of the International Law Commission, Vol. II, at 189. See also McNair, supra n. 28, at 4–5, although this work, preceding the Vienna Convention, uses another — albeit similar — phrase: “operating within the sphere of international law”.

72 Abu Aita et al. v. Commander of the Judea and Samaria Region et al., (1983) 37(ii) P.D. 197, at 238. The President further noted that “The burden to prove the existence of a custom with the characteristics and status described in article 38 of the Statute of the International Court of Justice, falls upon the party which pleads its existence …”. For criticism of this latter position, see R.M. Giladi, supra n. 56.

73 See Part C.2, infra, for a development of a similar narrowing of the scope of the proposed law.

74 Namely, the inclusion of an agreement with “inter-State organizations”, excluded from the Article 2 definition. This subject is dealt with in Part B.3.b.

75 The Explanatory Notes to section 1 explicitly uses the term “inter-governmental organizations” rather the curious “inter-State organization” used in section 1. This discrepancy serves no particular purpose, so it seems advisable to replace the uncommon “inter-State” with the “inter-governmental”, used also in Article 2(l)(i) of the Vienna Convention: “‘international organization’ means an intergovernmental organization”.

76 Article 3 of the Vienna Convention provides: “The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect: (a) the legal force of such agreements; (b) the application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention; (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties”.

77 (1994) 33 I.L.M. 153. For an analysis of this Agreement, see Perla, D., “The Practice and Case Law of Israel in Matters of International Law”, (1994) 28 Is. L.R. 707.CrossRefGoogle Scholar

78 See generally Köck, H.F., “Holy See”, in Bernhardt, R., ed., Encyclopedia of Public International Law (North-Holland, Amsterdam-New York-Oxford, Vol. 10, 1986) 230–233 Google Scholar; Kunz, J.L., “The Status of the Holy See in International Law”, (1952) 46 Am. J. Int'l L. 308–314.CrossRefGoogle Scholar

79 Supra n. 41.

80 Especially as the then government did not bring it to the Knesset until after its conclusion; ibid.

81 See, for example, Private Bill by A. Poraz, M.K., No. A-899 (submitted on 13 June 1994); Private Bill by E. Ben-Elisar, M.K., No. A-580 (discussed on 29 June 1994); Private Bill by Z. Hammer, M.K., No. B-487 (discussed on 22 February 1995); Private Bill by S. Amor, M.K., No. B-557 (discussed on 22 February 1995).

82 Note, however, that proponents of this view also doubt the international personality of the PLO, or at least its capacity to sign international agreements.

83 See Article 3, reproduced supra n. 76.

84 McNair, supra n. 28, at 7–11; Jennings, R., and Watts, A., eds., Oppenheim's International Law, Vol. I (Peace), (Longman, 9th ed., 1992)Google Scholar (hereinafter “Oppenheim's International Law”) 1207.

85 See Eastern Greenland Case, (1933) Permanent Court of International Justice, Series A/B, No. 53., at 53; Nuclear Test Cases, (1974) International Court of Justice Reports 267, at 472; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (1986) International Court of Justice Reports 3, at 130–132; Case Concerning the Frontier Dispute (Burkina Faso/Mali) (1986) International Court of Justice Reports 554, at 573–574. For examples of unilateral declarations made by the government of Israel and a discussion thereof, see Lapidoth, (General Surveys), supra n. 2, at 112 et seq.

86 Supra n. 28, at 130–131. Ratification is also the actual document expressing the willingness of the State to be bound by a treaty, ibid.

87 Ibid., at 149.

88 On the meaning of “acceptance”, see McNair, supra n. 28, at 155, et seq.

89 It may be argued that inclusion of the Israeli-Palestinian agreements would necessarily bestow international status upon the PLO. Irrespective of whether or not the PLO in fact enjoyed such status prior to theses accords, it is the act signing of these agreements — as well as their subject-matter — which is capable of bestowing such status.

90 That is, fourteen days during which the Knesset is in session.

91 See infra, Part C.6.

92 See infra, text accompanying n. 97.

93 See also Lapidoth, (General Surveys), supra n. 2, at 123.

94 Interview with Ms. Hemda Golan, Director of the Treaty Division and Deputy Legal Advisor.

95 Shetreet, supra n. 3, at 355.

96 On which see supra Part V.A.

97 Infra Part V.B.

98 And quite justifiably so, under article 46 of the Vienna Convention.

99 See the Explanatory Notes to section 4, quoted infra, Part D.4.

100 As the power to initiate and negotiate treaties is retained by the government, even if implicitly.

101 See Part D.4.b, infra.

102 Cited supra, text accompanying n. 8.

103 It may be, however, that failure of the government to follow the section 4 procedure — i.e. obtaining the Knesset's approval — will in fact amount to a violation of Israeli law which would have been “manifest and concerned a rule of its internal law of fundamental importance within the meaning of Article 46 of the Vienna Convention”; supra, n. 98. Note, however, that it is the State of Israel who would have to invoke the violation vis-à-vis other States rather than the other way around. The State of Israel, for that matter, is the government. The reason Article 46 may apply to section 4 but not, apparently, to Article 2 stems from the greater constitutional importance of the former, as evidenced by the more stringent procedure it lays for a narrower, more important class of treaties.

104 On the prerogative powers of the government in the realm of foreign relations, see Rubinstein and Medina, supra n. 8, at 778 et seq.

105 Conversation with Mr. Tzvi Inbar, Legal Advisor of the Knesset, 20 October 1998. It may well be, however, that upon enactment of the proposed law, the Rules of Procedure of the Knesset will be amended to contain such relevant rules.

106 See the examples of such procedure used in national constitutions, brought by Shetreet, supra n. 3, at 355, n. 23; note, however, that Prof. Shetreet objects to the employment of this procedure, at 382. See also the 1983 private bill by A. Rubinstein, M.K., supra n. 31.

107 Compare to the Private Bill tabled by A. Poraz, M.K., under which a treaty will require Knesset approval if “its execution requires legislation by the Knesset or any of its Committees”. This text includes secondary legislation, while the Bill seems to apply only to treaties which require primary legislation.

108 See the government's position expressed in the 1951 Memorandum, quoted supra, n. 5; the opinion of H. Cohn, J. in the Kamiar case quoted supra, n. 22; and President Shamgar reasoning, quoted supra nn. 64 and 65.

109 See discussion infra Part V.B.

110 Ibid.

111 This category originates in the Ministry of Foreign Affairs' Memorandum of 12 February 1996, supra Part II.G; note, however, that that draft referred to “fundamental human rights”.

112 Take, for example, Article 7 (“Enjoyment of Human Rights”) of Annex III to the Treaty of Peace between the State of Israel and the Arab Republic of Egypt of 26 March 1979, Washington D.C., K.A. No.868, 695, at 749; U.N.T.S. Vol. 17855, p. 72. That is not to say that this treaty would not fall under another section 4(a) category.

113 See discussion in Part V.B, infra.

114 A fortiori if approval of a treaty by the Knesst will be interpreted as amounting to a transformation of that treaty into municipal law — a possibility to be explored in Part V.B, infra — in which case human rights treaties requiring implementing legislation will also fall under section 4(a)(4).

115 For a historical account, see Z. Sherf, Three Days (1961).

116 Supra n. 112.

117 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, signed 26 October 1994, 32 K.A. No. 1069, 271.

118 See Part B.3.b, supra.

119 See Part D.4.b(ii), supra.

120 Shetreet, supra n. 3, at 388; Shetreet argues that this list is merely demonstrative and that it is not exhaustive; other cases in which the binding “constitutional custom” will apply can, in his opinion, be deduced on the basis of this list. The fact that in relation to treaties of all these categories the government has in the past sought Knesset approval does not mean that the binding “constitutional custom” — if any has in fact evolved — applies necessarily to all these categories. Nevertheless, there seems to be a consensus that has such a binding custom evolved, it does apply to treaties of political importance, which term covers, in the least, treaties of peace and treaties regulating territorial change. See also Attorney-General Rubinstein Legal Opinion of 2 November 1998, supra n. 43.

121 The language of the section does not impose a “functional” limitation on the Knesset Committee to make that resolution, so it seems that any Committee can so resolve, even if the treaty in question is outside the scope of its functions.

122 Infra, Part D.6.

123 Note that the private bill by A, Poraz, M.K., proposed a somewhat different economic criteria: rather than “economic importance”, M.K. Poraz proposed that a treaty will require Knesset approval if it “imposes on the State a financial burden and which will be in force for more than one year”; supra, n. 51.

124 See the examples given supra, text accompanying n. 44.

125 As already noted, this seems to be the case even after the prospective enactment of the Bill in its current form: see supra, n. 104.

126 But there is a much more compelling reason to view the Minister of Foreign Affairs as the authority empowered to make the determination: the proposed section 6 in fact entrusts Minister of Foreign Affairs with the implementation of the proposed law. Even without this explicit provision, that Minister may be regarded, ex officio, to be the proper authority to make that determination.

127 Rubinstein and Medina, supra n. 8, at 782, et seq.

128 On justiciability, see Rubinstein and Medina, ibid., at 349, et seq., and 792–893.

129 For that distinction and its significance for the possibility of judicial review see Rubinstein and Medina, ibid., at 781 et seq.

130 See Rosenne, S., “Minister of Foreign Affairs Certificate”, (1955) 11 HaPraklit 33 Google Scholar, and the authorities mentioned there, especially Al-Tourani v.The Attorney-General (1952) 6 P.D. 1145. For a recent ruling, see Shlomit Shalom v. Muhamad Basiouni and Yehoshafat Shulman, Tel-Aviv-Jaffa Magistrate Court, decision of 27 September 1998 (not published), in which case Vice-President A. Tal relied on the Minister's confirming that the defendant is the Ambassador of Egypt in Israel and therefore enjoys diplomatic immunity under the Vienna Convention on Diplomatic Relations of 14 April 1961. See also Oppenheim's International Law, supra n. 84, at 1046 et seq.

131 Supra, Part C.5.

132 Ibid.

133 Meridor, D., “The Essence of the Draft Basic Law: The Legislation”, (1983) A Mishpat Umimshal 387, at 390.Google Scholar

134 These are criteria describing the proper identification of a basic law, enunciated by Shamgar P. in United Mizrachi Bank v. Migdal Collective Village (1995) 49(iv) P.D. 221, at 295.

135 See supra n. 35.

136 Supra n. 22.

137 Supra nn. 64 and 65.

138 Lapidoth, (General Surveys), supra n. 2, at 122.

139 Ibid.

140 Shetreet writes that “according to the democratic perspective, the requirement that the Legislature express its consent in whatever form is enhanced even more in legal systems … in which international treaties become, upon their ratification, part of the internal law, with no need for transformation”; supra n. 3. at 351.

141 Supra n. 65.

142 Supra n. 3, at 225–227.

143 See Restatement (Third) of the Foreign Relations of the United States (1987), Vol. 1, at 42–43, 46–48, 53–57.

144 Ibid., at 227 et seq.

145 Supra, text accompanying n. 65.

146 Supra n. 3, at 125.

147 Author's Translation.