Posts by Daniel Haboucha

Daniel Haboucha is a fourth-year law student at McGill, with interests in international humanitarian and human rights law. A native Montrealer, Daniel completed his undergraduate degree in McGill’s integrated Arts and Science program while serving as a reserve infantry soldier in the Canadian Forces.

Disentangling politics and law in East Jerusalem

Israeli construction in East Jerusalem is nothing new; since 1967, when Israel conquered the territory along with the rest of what had come to be known as the West Bank from neighbouring Jordan and extended Israeli administration over the entire city, Israel has settled close to 200,000 of its Jewish citizens in Jerusalem’s eastern sector (which has an Arab population of approximately 230,000).[1] Due to the acceleration of Israeli construction in recent months and renewed political will within the US administration to aggressively advance the Israeli-Palestinian peace process, East Jerusalem construction has increasingly become a source of tension between Israel and its Western allies and a focal point of media attention.

The status of Jerusalem is one of the most contentious issues in the Middle East and has no clear-cut solution. I would not presume to offer one. I will, however, attempt to disentangle and analyze some of the various legal and political considerations that are implicated in Israel’s construction in East Jerusalem.

Historical overview

Faced with rising internecine conflict between Jews and Arabs in Mandatory Palestine and the incompatible nationalist aspirations of both groups, Britain in 1947 placed the question of Palestine before the United Nations. The UN General Assembly proposed to partition Palestine (Resolution 181) into two sovereign states, with Jerusalem a corpus separatum to be administered by an international regime under the control of the…

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Balancing liberty and security

The balance between individual liberties and national security was the subject of much discussion at the first-ever Symposium on Counter-Terrorism and Civil Liberties last week at McGill University’s Faculty of Law. The conference, co-hosted by the Human Rights Working Group, the Arab Law Students Association, the Muslim Law Students Association, the Comparative Constitutional Law Society, and the Centre for Human Rights and Legal Pluralism, brought together prominent policy-makers, practitioners, academics, and members of the public for an engaging series of lectures and panel discussions.

The panels revolved around three central themes: the securitization of immigration policy, the role of civilian oversight of intelligence and security agencies, and Canadian intelligence cooperation with the United States in the war on terror. The challenge from the point of view of the organizers was to avoid creating a “false dichotomy” between security and civil liberties. While panelists approached the issues from a wide range of perspectives, all acknowledged the seriousness of both the threat of terrorism and the erosion of constitutionally-protected freedoms, and proposed various mechanisms for bridging the two. “We have to recognize that it is the responsibility of states to ensure that citizens are able to exercise their rights,” said Paul Kennedy, former chair of the Commission of Public Complaints against the RCMP, “terrorism is a direct attack, a direct threat, on those very rights and freedoms. The challenge for the state…

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February 12, 2010
BY Daniel Haboucha

Daniel Haboucha


Public International Law

What the ICJ ruling on Kosovo could mean for Palestine

The year 2009 saw a renewed push, albeit a stunted one, for Palestinian statehood. Palestinian Prime Minister Salam Fayyad gained considerable attention in the West for his plan to oversee construction of state infrastructure from the ground up, and for his announcement that this would lead to a declaration of independence within two years. There has been notable progress, with significant growth both in the Palestinian economy and its governmental and security infrastructure. Given the current political climate in Israel, however, it seems unlikely that a bilateral peace agreement will be reached by Fayyad’s deadline. If negotiations don’t yield the results the Palestinian Authority (PA) is seeking, will it take the bold move of declaring statehood unilaterally? The Palestinians tried this gambit before, unsuccessfully, in the pre-PA days.

The success or failure of such a move largely hinges on the international community’s (and in particular, a few key players’) willingness to recognize Palestinian sovereignty against Israel’s wishes. To gain recognition as a member of the United Nations, it would require the support of at least 96 countries including all permanent members of the UN Security Council (UNSC).

A number of analysts have already noted similarities between the case of Palestine and that of Kosovo, which unilaterally declared its independence from Serbia two years ago next week. Though remaining nominally under UN administration under the terms of UNSC Resolution 1244, to date…

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The ideological battle between Google and the People’s Republic of China

Two weeks ago, Google publicly opposed the Chinese government by declaring that it would no longer censor its online services in China. It made this announcement shortly after a cyber-attack targeted the Google email accounts of Chinese dissidents, an attack which reports suggest may have originated from the Chinese government. Google went so far as to threaten to leave China if the government does not relax its internet censorship laws, sparking an angry response.

This latest crisis in Sino-Google relations has taken on international significance beyond just the opening of another front in the ongoing trade disputes between China and the United States, and it represents more than just the latest development in the long-lasting ideological clash between the Chinese government and western internet service providers Google, Yahoo, and Microsoft. And while this isn’t the first time an American corporation has sought to impose its will on a foreign government, this may be the first such standoff that has an ideological or public international law dimension to it. Among other things, it prompted US Secretary of State Hillary Clinton to declare last week that the United States intends to advance “internet freedom” at the United Nations.

One interesting question that comes out of this is whether corporations of Google’s stature will be able to shape the policies of state actors in much the same manner as they can those…

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Who needs a written constitution?

We in Canada tend to think of our Constitution, most notably the 1982 Canadian Charter of Rights and Freedoms, as a distinct source of national pride. Indeed, the importance of the Charter cannot be overstated – it has had far-reaching international influence as a model of constitutional reform, for example helping to shape the post-Apartheid South African constitution, the New Zealand Bill of Rights Act, and the UK Human Rights Act;[1] moreover Canadian Charter cases are “routinely referred to in most of the Commonwealth.”[2]

One of the most important functions of a written constitution is the entrenchment of certain human rights which are recognized as universal and not subject to the whims of the legislature; as such, the Canadian Charter was also an important step, as it broke with the British tradition of parliamentary supremacy by giving broad powers of judicial review to the courts, and granted even broader rights than did the US Bill of Rights (though this is partly balanced by the fact that Charter rights are subject to the notwithstanding clause).

One might worry, then, about the protection of human rights in countries that do not have written constitutions. Most notably, the UK has no formal written constitution, but instead relies on conventions and common law principles to fill in the gaps of statute law. Many such principles, written…

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Does international law adequately protect freedom of religion?

Freedom of religion is enshrined in a number of international instruments, most notably the 1976 International Covenant on Civil and Political Rights, which defines it as the right to have or adopt a religion or belief of one’s choice and to manifest it in private or in public, free of coercion, through worship, observance, practice, and teaching.

The UN General Assembly has passed a number of non-binding declarations affirming freedom of religion as a universal right, notably the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

Many countries guarantee religious freedoms through constitutional or legislative means. Canada in particular is known for its juridical emphasis, through liberal interpretation and strict enforcement, of the freedom of religion provided under s. 2(a) of the Charter of Rights and Freedoms.

So it would seem that freedom of religion has come a long way in recent decades. However, despite broad acknowledgement that freedom of religion is a fundamental right, there are glaring discrepancies between the way in which international law protects the rights of religious groups and the way in which it protects those of women, children, ethnic groups, and others. As Chon and Arzt point out, no credible international mechanisms exist to address…

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