Religious law as foreign law in constitutional interpretation

Territoriality and Status in Human Rights Litigation: The Case of Israel/Palestine

“…Or, they can argue for a definition of the parameters that will benefit their clients. In their struggle to apply the right of habeas corpus in Guantanamo Bay, for instance, activists aimed to extend the responsibility of the US to areas that, while not part of its territory, are effectively under its control (Shinar 2017;Cornelisse 2011;Raustiala 2011;Agnew 2010). This elasticity regarding how, and to whom, these parameters can be applied is useful not only for the clients but also, personally, for their lawyers, as it helps them circumvent many of the common dilemmas inherent in cause-lawyering.…”

“…When decoupled from territoriality, citizenship can be mobilized to bolster an indigenous Palestinian political community. One example of such mobilization is the use of the Israeli citizenship of some Palestinians to promote the rights of other Palestinians: those living in the OPT (Weizman 2016;Shinar 2017;Masri 2013). As a rule, Palestinians residing in the OPT do not have the right to enter Israel freely, and numerous checkpoints and patrols enforce a comprehensive permit regime (Berda 2017).…”

“…But, while, in the aforementioned cases, citizenship was used to diminish the role of territorial borders, here, territoriality trumps political status as grounds for demanding rights. Ever since Israel occupied the Gaza Strip and the West Bank in 1967, the state's official legal position has been that the OPT is not subject to its sovereign territory and jurisdiction (Viterbo 2018;Shinar 2017;Kretzmer and Ronen 2021). Nevertheless, Israel allows Palestinians to petition the High Court of Justice; and, over the years, this practice has become increasingly common (Kretzmer and Ronen 2021).…”

“…Or, they can argue for a definition of the parameters that will benefit their clients. In their struggle to apply the right of habeas corpus in Guantanamo Bay, for instance, activists aimed to extend the responsibility of the US to areas that, while not part of its territory, are effectively under its control (Shinar 2017; Cornelisse 2011; Raustiala 2011; Agnew 2010).…”

“…The West Bank is usually labelled Occupied Territory and is under military rule, as was the Gaza Strip until 2005 (Ben-Natan 2017). 1 In accordance with the 4 th Geneva Convention, Israel recognized the status of the Palestinian residents of these territories as ‘protected persons’ (Viterbo 2018; Shinar 2017) and accorded them the rights set down in international humanitarian law. However, when demanding rights for Palestinian residents of the Occupied Palestinian Territory (OPT), lawyers increasingly use doctrines from Israeli domestic law (primarily constitutional and administrative law), which is characterized by a more generous human rights regime.…”