In the field of Private International Law, as well as in other branches of the law, Israeli legislation reflects the inheritance of the past. The situation is particularly complex in relation to matters of personal status, where the principle of the personality of the law, characterising the legal set-up of the former Ottoman Empire, still prevails, although modified in various ways by enactments of the Mandatory period and the legislature of Israel. Yet the bulk of conflict rules are drawn from the common law as applied in England, a subsidiary source of legal rules under art. 46 of the Palestine Order-in-Council, 1922–47.

The details of the P.I.L. system actually in force in the State of Israel will not be dealt with in this paper. Our discussion will be limited to the main trends.

The rules concerning personal status in Israel have their basis in Ottoman law according to which the national law of foreigners was applied to them by the consular courts of their own States. This, the well-known system of the Capitulations, was maintained until the Treaty of Montreux of 8 May 1937.

When the British Mandate was set up in Palestine, the pattern obtaining in other territories under British administration was followed: the existing legal framework was retained and merely adapted to the new situation. The relevant Mandatory legislation consisted of the Palestine Order-in-Council 1922 and the Succession Ordinance, 1925. Under these enactments matters of personal status affecting foreigners (other than Moslem foreigners belonging to States who required them to submit in such matters, to the exclusive jurisdiction of the Moslem Religious Courts) were to be tried by the civil courts (the District Courts) according to their national law; if, however, the national law referred the matter to the law of their domicile, such latter law was to be applied.

After a political and constitutional crisis, the Government of Mr. Rabin presented its resignation to the President of the State on 20 December 1976. A few weeks later, the Knesset decided to bring forward the general elections from October 1977 to 17 May 1977. Under sec. 11 of Basic Law: The Government, the procedure for setting up a new government ceases immediately after the adoption of a Law to dissolve the Knesset. Thus, the government of Mr. Rabin, having resigned will “continue to carry out its function until a new Government is formed”. It is generally assumed that it will take approximately 4–6 weeks to form a new government after the elections of May 17. Thus, a new government will not begin to function before the beginning of July 1977, leaving the present government of Mr. Rabin to “carry out its functions” for more than 6 months, i.e., from 20 December 1976 until (approximately) July 1977.

The Convention between the Government of the United States of America and the Government of the State of Israel with Respect to Taxes on Income has reached its final stages of ratification. This is the third attempt of the two governments to reach agreement on tax questions of mutual interest. The United States Senate failed to ratify the first proposed convention because of the inclusion of a “tax sparing” clause. Although the second attempt would have granted U.S. taxpayers an investment credit for investments in Israel, in lieu of the tax sparing, this substitute was still not considered sufficiently neutral to accord it ratification.

The present attempt makes use of the foreign tax credit as its primary means of alleviating double taxation.

I am very happy and very honoured to have been invited to give the inaugural lecture in the series under the Sir Hersch Lauterpacht Chair of Public International Law at the Hebrew University of Jerusalem. It is a great honour to be connected with the name of Hersch Lauterpacht who was one of the truly great minds in the field of international law in our epoch, great as a scholar, great as an idealist, an innovator and a prophet; and it is a source of happiness to me to bear witness to the fact that he was also a great human being whose wisdom was illuminated with kindness and warmth. His friends and pupils remember him with love and gratitude.

For the purpose of this paper I invite you to accept with me the proposition that we live in an ecological crisis. The extent of the dangers confronting us is in dispute. The degree of urgency is debated. There are still serious gaps in our knowledge. The task of the scientists is enormous. Still, no one can ignore the existence of this crisis.

“The two worlds of man, the biosphere of his inheritance, the technosphere of his creation—are out of balance, indeed potentially in deep conflict. And man is in the middle. This is the hinge of history at which we stand, the door of the future opening on to a crisis more sudden, more global, more inescapable and more bewildering than any ever encountered by the human species and one which will take decisive shape within the life span of children who are already born.”

In direct contrast to Israel's western flowing streams, Lake Kinneret is used for a multiplicity of beneficial uses. The lake supplies 45% of the country's total water supply, 6% of its fish catch, a vacation spot for 1½ million tourists a year, a purification plant for 3 million cubic metres of sewage yearly, an annual supply of tons of smooth, decorative pebbles, and a source of income for at least 70 scientists.

Again in contrast to Israel's streams and wadis, data are available to those interested in preventing pollution of the Kinneret. Scientific studies of the lake began as far back as 1847. Beginning in the 1950's Israel scientists concentrated their efforts on solving a myriad of problems in the lake and its watershed. In the 1950's geographic surveys of the watershed were completed which described the type of land, its quality, texture and suitability for agricultural use. By 1964, scientific studies included the quality of lake water for drinking, lake currents, salt concentrations in the lake, sources of radiation, the lake's temperature, phytoplankton, zooplankton, algal blooms, floating plants, organisms living at the bottom of the lake, the lake's water level, thematodes and nematodes in the lake, water birds, chiromed flies, pesticides, commercial fish, and, last but not least, the Tabgha blind prawn, the only unique species endemic to the lake's waters.

It is difficult to see the connection between these two topics, but on 25 February 1975 the Constitutional Court of the Federal Republic of Germany gave a decision of great importance in both fields, and although Israel adheres to another system of law, in the opinion of the writer, this decision is of great interest here too.

The amendment of the German law relating to abortions, whose constitutionality was examined in the judgment mentioned, is part of a reform movement spreading from Europe to the Americas in the West and to Russia, India and Singapore in the East. It began to have influence upon legislation between the two wars (Russia 1920, Scandinavia and Switzerland in the 1930's), but gathered momentum particularly during the last decade (one of the earlier laws in this series is the English Abortion Act, 1967; one of the latest, the French Law of 17 January 1975).

In recent years there has been a growing concern about privacy in many countries. Consequently demands are being made that the law should afford privacy a more adequate protection. This new concern about privacy may seem surprising when we recall that people have always gossipped, that individuals have always sought information about others for various purposes, and that governments have always had an interest in knowing as much as they could about their citizens. The intensity of these recent demands for more legal protection suggests that conditions have changed, and that this change has created new threats for privacy. To deal effectively with these new threats we must first identify and understand them.

It appears that a combination of various factors, all of which are somehow related to technological developments, is responsible for arousing this interest in privacy. First is the development of the mass-media, which removed the traditional limitations on dissemination of information, and created an artifical demand for such information. Second is the development of electronic devices enabling invasions of privacy which were hitherto impossible. Third is the development and use of computerised systems for the storage and compilation of information. The threats to privacy are evident. Information about us can be retrieved from the files, or sought by detectives or journalists aided by sophisticated devices against which there is virtually no protection. This information may be used against us or disseminated in the mass-media and thus become “public knowledge”. Movements and conversations may be recorded.

In Israeli law eighteen statutes now regulate the legal status of various kinds of disabled persons. These statutes apply to about twice the number of different categories of disabled persons, classified in groups or classes, according to the cause and circumstances of disablement. Ignoring voluntary arrangements, the number of legal statuses or classifications (i.e. the complex of legal rights, pecuniary and in specie, together with the conditions of entitlement) may be put at eleven, which includes groups of people disabled de facto who are not recognised as disabled under law since they do not come within the statutory definition of disablement or otherwise meet the conditions of entitlement. The number of statuses is smaller than the number of statutes because some of the latter merely extend the application of other statutes in pari materia.

If we address ourselves to the substance of the legal status of these disabled persons, the general impression obtained reflects a kind of order of preference among the different groups, sometimes with considerable gaps. At the lowest level are the most deprived, the de facto disabled, who lack all rights as such, and the ordinary disabled (those who do not fall into any specific category but are recognised as disabled—the “new” and “long-standing” invalids of Chapter 6B of the National Insurance Law (Consolidated Version), 1968, in respect of whom a paucity of rights exists, in the nature only of ultimum subsidium. At the upper level stand the most preferred groups under existing law, traffic-accident victims and disabled soldiers.

The “speciality principle” or “speciality rule”, governing extradition relations between States, finds its expression in the fact that the institution of extradition is intended, as far as its material grounds are concerned, to cover only a part of all criminal offences, that each case of the extradition of a particular person is closely connected with a specific offence and as a result of this, that the competence of the requesting State to try and punish him is limited by those restrictions imposed upon it, again from the material point of view, by the requested State.

The rule therefore, has two aspects, the “specificness of extradition” and the “limitation of competence”, which, although they are intertwined and interdependent, each has its own characteristics. They are to be viewed from the standpoint of the position of the State—whether as requested to extradite or requesting extradition—and the part the State plays in applying the principle.

The World Zionist Federation (hereafter W.Z.F.) was founded in 1897 at the First Zionist Congress as the structural framework of the organised Zionist Movement. Its contemporary members are Zionist organisations, whose aim is the implementation of the Zionist Programme as defined by its constitution. As such, the W.Z.F. is an inter-territorial organisation, not limited by national frontiers. It is known to command impressive financial resources and considerable international influence. In Israel, the W.Z.F. was also recognised and given a special status by law. Sec. 4 of the World Zionist Organisation—Jewish Agency (Status) Law provides that:

The State of Israel recognises the World Zionist Organisation as the authorised agency which will continue to operate in the State of Israel for the development and settlement of the country, the absorption of immigrants … and the coordination of activities in Israel of Jewish institutions and organisations active in those fields.

The W.Z.F. operates through three governing bodies: the Zionist Congress, the Zionist General Council and the Executive.

In the absence of a written constitution in Israel, the protection of fundamental rights of the citizens depends upon a variety of legal sources. In the course of resolving questions concerning individual rights, the courts rely upon statutory law as well as basic principles of democratic government and concepts of individual freedoms as expressed in the Israel Declaration of Independence and in international covenants.

In the Draft Basic Law: Rights of the Man and the Citizen (hereinafter referred to as the Draft Basic Law), which has passed the first reading in the Knesset, the fundamental rights will be embodied into a written Basic Law. This Basic Law together with the Basic Laws already enacted and those in preparation will eventually become the Constitution of Israel. The chapter by chapter legislative policy for enacting Israel's Constitution was laid down in 1950 by the Knesset in what has become known as the Harari Resolution. In the last eight years the drive for legislating Basic Laws, i.e., the chapters of the future Constitution, has gained momentum. It is hoped, therefore, that the day when the State of Israel will have a Constitution is not very far off.

The Draft Basic Law extends its protection over the basic civil rights commonly recognized by civilized nations and their constitutions and by international covenants. But social rights, except for the freedom of workers to “associate in labour unions for the protection and furtherance of their economic and social interests”, which is explicitly provided, are not dealt with in the Draft Basic Law.

Since the preceding article was written, the Kahn Committee, mentioned therein, has presented its report with a minority report by one of its members on the communications media. The central feature of the report is the Bill of a Protection of Privacy Law which the Committee recommends; a copy of the Bill is appended to show Israel thinking on the subject and to illustrate how far the Bill meets the matters raised by Dr. Gavison.

Apart from a very general discussion of the problems involved, the report contains a brief sketch by Dr. N. Rakover of those aspects of the subjects which are covered by traditional Jewish law and a comparative study by Dr. Gavison herself of the position mainly in the U.S.A., England, Germany, France and Canada and incidentally in Sweden, Switzerland, the Argentine, Brazil, Mexico and Venezuela, with special reference to recent legislation.

For the record it may be noted that the Committee was appointed in August 1974 by the Minister of Justice to examine the means by which protection of privacy can be secured. It held 16 meetings and heard or received in writing the views of various institutions and individuals.

Neither under Ottoman rule nor under the Mandate—nor even under Israel law until 1957—were the Druzes recognised as a religious community. Until quite recently, they resorted to the Sharī'a Courts in matters of personal status although under the Palestine Order-in-Council of 1922 these courts had no jurisdiction over non-Muslims. But in 1957, the Druzes gained recognition as a religious community within the meaning of the Religious Communities (Organisation) Ordinance, 1926, and the Druze Spiritual Leadership was given the status of a religious council within the meaning of the Religious Communities (Organisation) (Druze Community) Regulations, 1957. In 1963, by virtue of the Druze Religious Courts Law, 1962, a court of first instance and a court of appeal were established for the community. These have exclusive jurisdiction in matters of marriage and divorce of Druzes in Israel who are nationals or residents of the State. In other matters of personal status they have concurrent jurisdiction. In the absence of agreement to the jurisdiction of the religious court, jurisdiction vests in the District Court. The Druze courts also have exclusive jurisdiction in matters relating to the creation or internal administration of waqfs (endowments) established before a Druze court under Druze law or established, prior to the coming into force of the Druze Religious Courts Law, in accordance with Druze custom and not before any judicial authority.

In 1903 when Dean Roscoe Pound, who was then Commissioner of the Supreme Court of Nebraska, decided that a corporation which was wholly owned by one stockholder could not sue the person from whom the present stockholder had purchased his stock, for mismanagement and waste allegedly committed before the purchase, he wrote:

Criminal liability, in the widest sense has its periods of ebb and flow; thus for a certain length of time it may extend over a greater field of human behaviour and then may withdraw and permit forms of conduct formerly regarded as criminal to be no longer so regarded.

Looking at recent developments in Israeli substantive criminal law it appears that we are now in a period of “flow”, which finds its expression in various forms, namely:

1) The adoption by the courts of less strict canons of interpretation of criminal legislation;

2) The application of general doctrines, especially those of attempt, conspiracy and complicity more widely than before;

3) The narrowing down of certain defences;

4) The creation of new offences or the amending of existing offences with a view to covering modes of conduct which have not, in the past, been subject to criminal law.

5) The broadening of the spatial (or territorial) application of the criminal law. This is generally expressed in Israel—according to English tradition—in terms of the jurisdiction of the courts, but in actual fact it is not a procedural matter but relates to the question of the breadth of the criminal law itself.

It has been said that there are no illegitimate children but only illegitimate parents, a paradox which reflects the view that the iniquity of the fathers should not be visited upon the children, that the rights of children should not suffer deprivation because of the “sin” of their parents. So put, it presents a challenge to those many legal systems which discriminate against children born out of wedlock, treating them as illegitimate and denying them rights against their parents or, in some jurisdictions, against their fathers. For all that, we are now witnessing in a number of countries a process which is blurring and largely doing away with the traditional disqualifications and discrimination against illegitimate children. Not only does the violation of the rights of a child because his parents bore him out of wedlock appear to many of us to be immoral in itself, but we go on and urge that it is wholly unreasonable to release the “sinning” parent from his obligations and place the burden of bringing up his child on society at large.

This last view does not, however, give any moral or legal approbation to bringing children into the world out of wedlock but suggests rather that the protection of the institution of marriage and family should properly find expression in the status of the unmarried parents. The problems to which this understanding of the matter gives rise are the subject of the present analysis of the pertinent Israel legislation.

The purpose of this paper is to consider and discuss theories as to the nature of the subjective element in the formation of customary international law that have been propounded by various publicists, and to point out certain difficulties which attend all hitherto existing theories. An attempt will be made in a subsequent paper to develop a theory which avoids these difficulties.