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Essay 6 British Constitution With Comments Notes

Updated essay 6 british constitution with comments notes.

British Constitution

This is part of the British Politics series covering Margaret Thatcher and the Conservative governments (1979-97), New Labour and British Constitution. This package contains: (1) exam notes on the 'British Constitution' and (2) an essay titled 'What, if anything, is wrong with the British constitution?' Useful for: 1) understanding whether the British Constitution is transitioning from the doctrine of parliamentary sovereignty to a codified one, with discussions about A. V. Dicey, devolution, ent...

The following is a more accessible plain text extract of the PDF sample above, taken from our British Constitution Notes . Due to the challenges of extracting text from PDFs, it will have odd formatting:

What, if anything, is wrong with the British constitution?

What constitutes the British constitution, unlike the American constitution or the French constitution of 1958, is not immediately obvious. Britain does not have a codified constitution, but a constitution, in the sense of 'a collection of the most important rules prescribing the distribution of power between the institutions of government—legislature, executive and judiciary—and between the individual and the state’ undoubtedly exists (Bogdanor 9). The conceptual reason behind Britain’s not having a codified constitution is that sovereignty is embodied in the Parliament, so there is no need to have a constitution that represents the will of the people, especially one that limits the power of the Parliament. In other democracies, a written constitution is typically enacted to mark a new beginning in the nation’s history, for examples independence or a change of regime. The constitution serves almost as a ‘social contract’ of the people, giving legitimacy to the new regime and the new political system. However, in the case of Britain, using Sidney Low’s words, the constitution has simply ‘been allowed to grow’ (Bogdanor 12). There is nothing inferior in the first principles of an unwritten constitution compared to a written constitution. In a sense a parliament that exists at a point in time is a better representation of the people than the founding fathers of a nation or the drafters of the constitution. However, the way the British constitution has been allowed to grow is at best ‘piecemeal, unplanned and pragmatic’ (Bogdanor 5) and at worst incoherent and short-sighted. Before launching into what, if anything, is wrong with the British constitution that resulted from the series of constitutional changes in the 20 th and 21 st centuries, the essay must address what is meant when it refers to the ‘British constitution’. The ‘British constitution’ is no longer the one described by Bagehot and Dicey. The British constitution they described adheres fully to the doctrine of the sovereignty of the Parliament. It is marked by a near complete fusion of legislative and executive power, in the sense that the cabinet is formed by the party that holds majority in the Parliament. It also relies on conventions. For one, the Queen legally can refuse to give assent to laws passed by the Parliament, but by convention she would always give royal assent. The Salisbury Convention also stipulates that the House of Lords would not defeat any legislation that has been promised in the government’s election manifesto (Bogdanor 16-7). McLean rightly points out that with changes such as UK’s entry into the European Communities (later the EU), the practice of referendum and devolution to Scotland, Wales and Northern Ireland, the British constitution is changing fast, and it no longer only rests on the sovereignty of the Parliament (McLean 5). This essay will explore the consequences of the short-sighted and unsystematic constitutional reforms, before turning its attention to the more fundamental question—did and does the Parliament possess the legitimacy to introduce constitutional reforms?

With entry into the European Communities in 1973, part of the sovereignty of the Parliament was transferred upwards to the European level. Although treaties and treaty amendments have to be ratified by the domestic legislatures of Member States, it is not the case for ordinary legislation, which increasingly have to go through the co-decision mechanism. In the European Council, more decisions are made by qualified majority voting, meaning that decisions binding on the Parliament in Westminster can be made against the will of the government democratically elected. Turnout rate for the European Parliament elections remain low (43% in 2014), and the election of MEPs in the UK has little relation to voter preferences in the general election. Therefore, the supremacy of EU laws means that part of the British people’s sovereignty, embodied in the Parliament is being transferred upwards. In the 1964 case Costa v ENEL , the European Court of Justice ruled that 'the transfer by the States from their domestic legal systems to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights , against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail ' (Bogdanor 27, my emphasis). The consequence of this became apparent in the Factortame case (1991). In 1988, the Parliament passed a Merchant Shipping Act that restricted the right of foreign-owned vessels to fish in British waters. It was meant to target Spanish fishing-boat companies that registered in the UK in order to use the UK’s fishing quota. However, the ECJ ruled that it was contrary to Community law in that it discriminates against foreign EU nationals (Bogdanor 28). The simple transfer of sovereignty upwards itself is not a matter of concern (explain why it isn’t), given that the decision was made by the Parliament first in 1973, then confirmed in a national referendum in 1975. However, the constitutional issues with the entry into the EU becomes apparent when the country voted to leave the EU in June 2016. Firstly, Alison Young rightly points out that the ECJ will remain influential after Brexit. ‘EU-derived law’, such as employment law, competition law and data protection law, will remain to be interpreted in line with the case law of the ECJ, meaning that the ECJ can continue to set precedents for UK courts (Young 762). Secondly, it elucidates the problem with devolving sovereignty to the non-English parts of the UK. Scotland and Northern Ireland did not vote to leave the EU, and all three of the devolved nations show a desire to remain in the European Economic Area (Young 764). The result of the Brexit referendum has prompted the Scottish First Minister Nicola Sturgeon to announce her intention to...

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The UK constitution

What are constitutions and why do they matter? 

The term ‘constitution’ refers to the principles, rules and laws that establish and underpin a political system. The constitution creates and defines the powers of different political institutions and determines how they should relate to each other. It sets out the limits of these powers and regulates the relationship between the state and its citizens. 

Constitutions place both limitations and obligations on governmental organisations in their relationship with the people, and provide opportunities for the public to influence the political process. 

Click on any of the questions below to be taken to the answer.

Is the constitution of the United Kingdom written down?

Why is the UK’s constitution different to most other modern liberal democracies?  

Is Magna Carta (1215) our constitution?

What are the sources of the UK constitution?

What key reforms have been made to the UK constitution over time?

What are the advantages of having an ‘uncodified’ constitution?

What are the disadvantages of having an ‘uncodified’ constitution?

Further reading

Is the constitution of the United Kingdom written down? 

It is often noted that the UK does not have a ‘written’ or ‘codified’ constitution. It is true that most countries have a document with special legal status that contains some of the key features of their constitution. This text is usually upheld by the courts and cannot be changed except through an especially demanding process. The UK, however, does not possess a single constitutional document of this nature. Nevertheless, it does have a constitution. The UK’s constitution is spread across a number of places. This dispersal can make it more difficult to identify and understand. It is found in places including some specific Acts of Parliament; particular understandings of how the system should operate (known as constitutional conventions); and various decisions made by judges that help determine how the system works.  

Why is the UK’s constitution different to most other modern liberal democracies? 

As described above, the UK’s constitution is different from many other countries in that its core aspects are not contained in a single legal source. This can be explained in part by UK history. Unlike France, Italy and many other places, the UK did not experience a revolution or moment of political rupture in the late eighteenth century or nineteenth century, when written constitutions were at their most popular after the American Revolutionary War. 

Unlike in the United States, where the constitution is the ‘supreme law’ the UK system has no clear concept of a ‘higher law’: there is no clear distinction between what is a constitutional law and what is a regular law. This also means there are no special procedures for changing the constitution itself in the UK. If it is determined to do so, a ‘constitutional statute’ can be repealed or amended by simple majority votes in Parliament, like any other legislation. This differs from the situation in countries such as the United States, where the constitution is ‘entrenched’ – in other words, needing to satisfy additional requirements in order for it to be amended. The UK constitution can be altered relatively easily by the government of the day, meaning it changes more frequently than many other constitutions. It is often said that the UK Parliament is ‘sovereign’. This parliamentary ‘sovereignty’ means that Parliament can make or unmake any law, without being limited by a constitutional text.

Is Magna Carta (1215) our constitution? 

Magna Carta (translated as Great Charter) was an agreement reached at Runnymede in 1215 between King John and a group of English barons who had been part of a rebellion against the King. In chapter 39 and 40 it stated that: 

39. No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. 

40. To no one will we sell, to no one deny or delay right or justice. 

Magna Carta became significant in placing formal limits on the King’s power over his subjects, and in articulating the notion that the monarch should not be above the constraints of the law. In this, we can see the origins of a foundational constitutional principle: the rule of law (that everyone within a state should be bound by and entitled to the benefit of the law).  

Many look to Magna Carta in the way people in other countries might look to a ‘written’ constitution. Although the extent of what it actually secured in thirteenth-century England has often been overstated, it no doubt represents a significant point in the development of our constitutional system. Much of its impact came through inspiring and supporting future developments, such as ‘habeas corpus’: that a person may not be detained without legal reason. Furthermore, it predated the existence of the UK by five centuries, and was an English document (though written in Latin).

What are the sources of the UK constitution? 

The sources of the UK constitution are various, including both law and other less formal documents, without legal force. 

Acts of the UK Parliament: certain pieces of primary legislation enacted by the UK Parliament form a major source for aspects of the UK constitution. These laws provide for: the devolution settlements; the right to vote and the holding of elections; the upholding of human rights; the prohibition of discrimination; the existence of the Supreme Court; and much else. As mentioned previously, despite the constitutional significance of these statutes, there is no clear formal means of distinguishing them from more regular laws which deal with policy areas such as education and transport. 

Conventions: are understandings about how the constitution functions. They can be hard to define precisely and in a way that commands wide agreement; and they lack hard legal force. But conventions are the source of some of the most important features of the UK system of government. For instance, that the Prime Minister should be a member of the House of Commons able to command the confidence of that institution is only a convention. Traditionally, conventions tended not to be written down in official documents. But, increasingly in recent decades, accounts of them have come to be included in texts published by bodies such as the UK government. These include the Cabinet Manual and the Ministerial Code.

Common law: the UK has what’s known as a ‘common law’ system, meaning that judges declare the law as derived from custom and precedent. Although it is the role of the courts to interpret the rules, not to make them; in practice, through identifying what the law is, judges can create it. In doing so, they have established important features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power.

Authoritative works: in the UK system, as we have seen, the constitution is spread over a number of documents and sources, which can make it particularly hard to decipher. Given this, the interpretations of experts seeking to make sense of the system can become particularly important and influential. In fact, they can become so influential to perceptions of the system that they seem to become part of it. The views of the late nineteenth/early twentieth century legal scholar, Albert Venn Dicey, for instance, came to underpin the widely accepted doctrine known as ‘parliamentary sovereignty’. The political journalist, Walter Bagehot, writing in the nineteenth century, helped shape the conception and operation of a constitutional monarchy. Although knowledge of these works has declined since the twentieth century, they continue to be important today, having shaped the ideas even of those who do not know what their source is. 

What key reforms have been made to the UK constitution over time? 

Although they do not provide a comprehensive picture, we can get a sense of the changing UK constitution through a number of key Acts of Parliament. 

1536/1543: two laws now known as the ‘Acts of Union’ between Wales and England legally incorporated Wales into England. Among other measures, the 1536 law prevented the use of the Welsh language in court proceedings; while the 1543 Act provided more detail to the general settlement set out in the earlier law.

The Bill of Rights 1689: the Catholic King James II was defeated in the revolution of 1688-89 and replaced by Mary II and William III (the Prince of Orange), ruling jointly. The Bill of Rights in essence established the terms of his ascension to the throne, and was the outcome of negotiation between William and contemporary political leaders. It was a statute of particular constitutional importance in firmly establishing the authority and independence of Parliament in relation to the monarch. Laws could no longer be suspended or got rid of without the consent of Parliament. It also contained provisions to further protect the liberty and security of the individual. 

The Act of Settlement 1701: prevented Catholics from taking the English throne and provided for the ascension of the House of Hanover. In doing so, it established Parliament’s right to decide on the line of succession, further enhancing its power. It also contained important constitutional provisions relating to the independence of the judiciary. The Act protected the salaries and positions of judges, aiming to give them the security to enforce the law without fear of retribution. 

The Treaty and Acts of Union of 1706-1707: provided for the union of Scotland and England. Two Acts were passed, one by the English Parliament and one by the Scottish Parliament, implementing the Treaty of Union. Whilst England and Scotland had the same monarch since 1603, they retained separate legislatures. After the Acts of Union, they united to form a single legislature: the Parliament of Great Britain, and a single state. Nonetheless, Scotland retained its own legal system, arrangements for education, local government, and religion.

Act of Union 1800: brought about a Union of Ireland and Great Britain. This arrangement began on a controversial footing because it was not accompanied by measures to remove political discrimination against Catholics.

The Parliament Acts 1911 and 1949: established in law the primacy of the House of Commons and reduced the power of the House of Lords. The Acts meant that the Lords could in most cases no longer veto legislation if the Commons was determined to pass it. Bills could be presented for Royal Assent without the approval of the second chamber, as long a certain amount of time had elapsed and certain other conditions were met. The Lords no longer had any power at all to reject bills certified as relating to financial matters, giving the Commons clear control over money. 

The European Communities Act 1972: provided for the UK’s ascension to the three European Communities (the European Economic Community, the European Atomic Energy Community, and the European Coal and Steel Community). Constitutionally, the most significant aspect of the Act was that European Community Law (later EU law) became incorporated and binding within UK domestic law. Furthermore, it stipulated that Community Law was ‘supreme’ within a member state, with potential conflicts between domestic law and EU legislation overseen by the European Court of Justice. It eventually became established that an Act of Parliament could be ‘disapplied’ in as far as it contradicted European law – a new departure for the UK constitution.

The Human Rights Act 1998: gave direct effect in domestic law to the rights contained within the European Convention on Human Rights, which was adopted in 1950 after the Second World War. The 1998 Act meant that human rights cases could be heard in UK courts, rather than individuals having to take their case to the European Court of Human Rights. Additionally, it stipulates that as far as possible judges must interpret Acts of Parliament so they are compatible with the rights in the Convention. If this is not possible, they may issue a declaration stating that the legislation is incompatible. However, this does not affect the validity of the primary legislation and the law remains the same unless it is altered by Parliament.  

The House of Lords Act 1999: reduced the size of the House of Lords and largely removed hereditary peerages (where an individual could inherit a seat in the Lords through their family). It reduced the number of peers from 1330 to 669. 

The European Union (Withdrawal) Act 2018: repealed the European Communities Act 1972 (see above), thus removing the provision that EU legislation automatically takes effect as domestic law in the UK. It was introduced by the Theresa May government in 2018 as part of the process of the UK’s exit from the European Union. It transferred all EU law onto the UK statute book and gave ministers powers to make changes to this ‘retained EU law’ in the future. 

What are the advantages of having an ‘uncodified’ constitution? 

Some praise the UK’s uncodified constitution for its flexibility. As the timeline above indicates, the constitution has been modified frequently over many years in response to changing circumstances. Its proponents argue this allows for a pragmatic approach, where different things can be tried, tested and developed, with an optimal arrangement being honed over time. They point to other countries with hard to change codified constitutions that have been unable to update their political systems in line with changing attitudes and political realities. The issue of gun ownership in the United States provides one often cited example of this, where controls have been hard to implement because of the 2 nd Amendment.  

Many also believe that having an uncodified constitution is more democratic. Rather than being bound by the decisions of past generations, it allows for each successive generation to influence the constitution through the representatives they elect. If a party with a constitutional reform agenda is elected, they are able to carry out what the people have voted for. The new Labour government of 1997 had a wide-ranging constitutional programme, including devolution and human rights, that might have been difficult to implement otherwise. In an uncodified constitution, its supporters argue, it is elected politicians, rather than unelected judges, who have the final say.

What are the disadvantages of having an ‘uncodified’ constitution? 

Critics of the uncodified constitution argue that it leaves the political system open to abuse. In the UK system, there are few checks on the power of a government with a majority in the House of Commons, which could alter the rules for its own advantage. In theory, a powerful government could abolish the devolved legislatures and repeal the Human Rights Act. There are also few barriers against a government rushing through poorly thought-out changes to the constitution. 

For some the UK’s constitution is pragmatic, for others it is piecemeal. In other words, changes often happen in stops and starts and through gradual, sporadic tweaks. When the constitution isn’t considered as a whole, they say, it can lead to unintended negative consequences. 

Finally, many argue that the UK’s uncodified constitution is confusing and ambiguous. This makes it more difficult for citizens to fully understand, and therefore to know when a government is abusing its position. This lack of clarity can also be exploited by those in power to get away with things that would be more difficult if the rules were clearer. It also can make the business of governing harder, as there will be doubts surrounding the roles and responsibilities of different political institutions. Proponents of a codified constitution argue that stating clearly all in one place how the political system operates would enable the government to better serve the public and the public to better engage with government.

Click here for a PowerPoint on the basics of the UK constitution, that condenses the information above. The PowerPoint is primarily designed for teachers covering the topic.

Further reading: 

Vernon Bogdanor, Brexit and our unprotected constitution

Andrew Blick, Populism and the UK Constitution  

Nat le Roux, ‘Unconstitutional Democracy?’

Nat le Roux, Is there a tension between Parliamentary Democracy and referendums?

From the UK Parliament website :

Human Rights Act Review : Do not risk UK’s constitutional settlement and enforcement of rights by amending Act, urge MPs and Peers

The Parliament Acts explained by the UK Parliament website 

The Constitution Society

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How well are Rights protected in the UK?

How effective is the judiciary at protecting civil liberties.

The History and development of Rights in the UK

What has been the effect of the Human Rights Act? Has it worked?

Freedom of Information Act

Human Rights Act

Criticisms of the Constitution  

Party Discipline and Elective Dictatorship  

Recent changes such as the Human Rights Act , Freedom of Information Act and Equality Act   and the creation of a Supreme Court has led to the suggestion that there is now a ' rights-based culture ' in the UK.

In 2001 Parliament established th e The Joint Committee on Human Rights which as a consequence of the HRA review the application of incompatibility orders which result from a conflict between the Act and existing or proposed legislation. The Committee is also an important watchdog with a general function of reviewing all new laws and thier impact on human rights with regard to common law and international law.

But the HRA has limitations,  while all new legislation must be compliant wi th the act and judges can declare earlier acts of Parliament incompatible with it they  cannot legally compel Parliament to make changes. This is because of the all-important concept of parliamentary sovereignty so the HRA is not entrenched (i.e. it's not a form of higher law like the US Bill of Rights)

So to be clear: The UK does not have a Bill of Rights!

Evidence for  rights based culture might be  an increased use of judicial review . The number of reviews rose from around 4240 in 2000 to around 15,600 by 2013. Examples of successful challenges to government policies include High Court rulings that retired Gurkha soldiers should be allowed to settle in the UK (2008), and that the government had not consulted fairly on compensation for people affected by the planned High Speed Rail link (2013).

Judicial Review Cases

A prominent example of judicial review — sometimes called `judge-made law' — is the issue of privacy. Judges have been accused of effectively creating a privacy law through the way they have interpreted the Human Rights Act. In a series of high-profile court cases, they appeared to give priority to Article 8 of the European Convention on Human Rights (the right to privacy) over Article 10 (the right to freedom of expression), as claimed by the press. This occurred even though specific legislation on the subject had not been passed by Parliament, and was not a prominent feature of common law . This called in to question the principle of the Rule of Law since wealthy individuals, who could afford to take legal action, had an unfair advantage. For example, in 2008 the High Court awarded Max Mosley, the head of the Formula 1 motor racing organisation, substantial damages when the News of the World published a story about his sex life, which he argued had breached his privacy. Max Mosley failed in a subsequent case at the European Court of Human Rights, which refused to rule that newspapers should notify people before printing stories about their personal lives.

A criminals' charter?

Another serious fault for Conservative critics of the Human Rights Act is the way that it seems to show favour to undeserving individuals, rather than protecting the legitimate freedoms of UK citizens. The Conservatives have argued for many years for the replacement of the act with a new 'British Bill of Rights', which would establish the supremacy of British courts over the European Court of Human Rights. The case of Abu Qatada illustrates the frustration caused by the way in which the Human Rights Act was implemented.

 Unelected judges with too much power? - Judicial Tyranny

judicial review may be a vital means of defending citizens' rights, enabling the legality of government actions to be properly scrutinised but its critics argue that it places too much power in the hands of unelected and unaccountable judges.

Is the UK Supreme Court too political?

  The Judicial Review and Courts Act 2022  

The HRA has not prevented an attack on civil liberties in recent years

After the 9/11 terror attacks in the USA in 2001, and the 7/7 Underground and bus bombings in 2005, the HRA did not stop the government limiting civil liberties in the interests of protecting the wider community. Ministers argued that they were entitled to detain terror suspects without trial on the grounds that a national emergency existed. In December 2004, in the Case of the Belmarsh 9, the Law Lords (the highest court in the land before the creation of the Supreme Court) ruled that indefinite detention of foreign nationals, on suspicion of involvement in terrorism, was discriminatory. Faced with this legal challenge, the government passed a new law to introduce a system of control orders that enabled suspects to be closely monitored, such as through electronic tagging, a requirement to report to the police and removal of mobile phones and Internet access. Control orders were kept in place, despite adverse rulings by judges, until 2011 when the coalition government replaced them with a modified version known as Terrorism Prevention and Investigation Measures (TPIMs).

The Blair Government was accused of increasing authori­tarianism in the UK. The 2007 film, Taking Liberties, which examined the Blair government's record on civil liberties, even warned about the emergence in the UK of a 'police state'. 

Essay Example How effective are the judiciary at protecting civil rights in the UK (30) 

Have civil liberties been under threat? If so, why has this happened?

The Labour government's record on civil liberties between 1997 and 2010 was a mixed one. In the first place, this period witnessed major advances in individual rights, widely welcomed by groups campaigning on civil liberties issues, such as Charter 88, Liberty, and Freedom and Law. The Human Rights Act was the most significant example of this, but others included the Freedom of Information Act 2000, which marked a major advance in open government and helped to establish a public right to know. Other examples of a strengthening of rights include the establishment of the right to roam through the Countryside and Rights of Way Act 2000. This was a culmination of many generations of campaigning by ramblers ( Ramblers Association ) and civil liberties groups.

On the other hand, Labour's critics drew attention to its civil liberties 'blind spot', reflected in the growth of legislation that expands the power of the state and weakens or removes civil liberties or individual rights. Various measures have contributed to this 'drift towards authoritarianism'. For example:

 The right to a jury trial was restricted in 1999 by new rules that made it more difficult for people accused of theft, burglary and assault from opting to be tried by a Crown Court (where juries sit), rather than by a magistrate.

Detention was introduced for asylum seekers whose claims have been refused, and access to the benefits system was replaced by shopping vouchers for refugees.

 Public order legislation led to restrictions being imposed on the right to protest.

Anti-social behaviour orders (ASBOs), first introduced in 1999, imposed a range of restrictions on (usually young) 'offenders', often on the basis of hearsay evidence and in the absence of a jury.

The Identity Card Act 2006 provided for identity cards to be phased-in on a voluntary basis from 2009 (although these plans were abandoned after Labour's 2010 defeat).

However, the government's most controversial measures were its anti-terrorism legislation, passed in the aftermath of 9/11 (the 2001 terrorist attack on New York and Washington) and 7/7 (the coordinated 2005 terrorist attacks on London). This gave the police the power to hold suspects for 28 days without being charged (ie told what they were suspected of doing) if they were suspected of terrorism offences.

Changes to Civil Liberties under New Labour  

DNA database, Double Jeopardy (2003) Anti-Terror laws, end of jury trials for Serious Fraud.

 Coalition reforms , Freedom Bill , reversing 28 days, green paper on 'secret courts',  and the Counter Terrorism Ac t   2015 ( Amended 2016)

However, some restrictive measures have been abandoned in the face of parliamentary and public opposition. For example, in November 2005, the Blair government's proposal to extend the period that a suspect could be held before being charged, from 14 to 90 days, was defeated in the Commons. The government then compromised on 28 days and abandoned a subsequent attempt to increase it to 42 days, following a defeat in the Lords in 2008. Under the coalition, the 28-day period was halved, and the Labour government's plan for compulsory identity cards was scrapped.

However, the public has been remarkably willing to sacrifice some liberties at a time of heightened concern over security. Governments have tended to place the safety of society above the protection of individual rights. This explains why pro-human rights pressure groups such as Liberty have had limited success in deflecting government policy. For example, Plans for a British Bill of Rights , Legal aid cuts , Internet Surveillance and Extending Secret Courts -2 013 Justice and Security Act (Closed Material Practices), which permit terrorist suspects and major criminals to be tried without the evidence against them being disclosed in full. The passage of the Investigatory Powers Bill — the so-called 'Snoopers' Charter' —which increases the power of the intelligence agencies by obliging Internet companies to store information about customers' browsing history.

In 2016, Parliament passed the Investigatory Powers Act, which authorises the retention of personal electronic data and its access for law enforcement.

 In 2020, Ed Bridges and the pressure group Liberty brought a case against South Wales Police over whether it could use automatic facial recognition technology. In its judgment, the Court of Appeal ruled that more care should be taken in how the technology is used. However, the benefits to society are ‘potentially great’ and the threat to the individual’s privacy ‘minor’.

In 2020 after a terrorist suspect was released from prison under an early release scheme designed to reduce the prison population, who went on to carry out an attack, the government promised an emergency bill to end early release. The bill was delayed by the COVID crisis but in May the government announced the Counter-Terrorism and Sentencing Bill, which as promised ended early release but also gave the police new powers to impose TPims . A TPim imposed strict limits on an individual's freedom. The new law would mean this could be imposed for an unlimited time ( currently they are limited for two years) and the bill would reduce the threshold of evidence to mean a TPims would only need a 'balance of probability' ie - you could be a terrorist !

Counter-Terrorism and Sentencing Bill

Reaction to the London attacks

TPims Explained

 The Johnson government’s Police, Crime, Sentencing and Courts Act 2022  was designed to limit the impact of public protests and has thus generated significant opposition from civil liberties groups.

 In the Queen’s Speech (2022) the Johnson government controversially committed to introducing a British bill of rights, replacing certain elements of the Human Rights Act, so that ‘there is a proper balance between the rights of individuals, our vital national security and effective government, strengthening freedom of speech’. The Human Rights Reform Bill received its first reading in 2022 but has not progressed. The influential Joint Committee on Human Rights said a planned Bill of Rights Act would restrict certain protections "the government finds inconvenient". Liz Truss's government  shelved plans for Human Right Bill with was design designed to give ministers the power to ignore human rights rulings from the European Court of Human Rights (ECHR).  

In 2022, the Johnson government controversially introduced a policy to fly asylum seekers to Rwanda rather than allow them to claim asylum in the UK. Designed to stem the flow of cross-Channel refugees and deter people-trafficking, the policy was condemned by the Archbishop of Canterbury, Justin Welby, as ‘subcontracting our responsibilities’.

Can asylum seekers be sent to Rwanda ? November 2023 

Nationality and Borders Act 2022: The Nationality and Borders Bill was introduced into the House of Commons in July 2021 and On 27 April 2022 the  Nationality and Border Bill became an Act of law .       Criticisms around the Act include concerns around its departure from international convention and possible incompatibility with international law, and the creation of a two–tier system for refugees, which will penalise those who enter the UK through unofficial routes . Amongst other elements, it proposes to introduce "designated places" or "offshore" asylum hubs for application of refugee and migrant asylum claims, potentially in another European country or an African country  

How well are  rights are protected by:

Legislation/parliament: .

During the pandemic laws were passed with limited scrutiny . At the start of the crisis, the Coronavirus Act formed the central part of the government’s response to COVID-19. The Act was passed by Parliament in just 4 working days, in March 2020. The speed at which it was passed might suggest that it was subjected to relatively little parliamentary scrutiny, demonstrating the strength of the executive. The Act has given the government an enormous range of powers, largely to impose new regulations in response to COVID-19. These can be introduced without parliament scrutiny.  

Even in non pandemic time Parliament is dominated by the executive. How well does Parliament fulfill its functions?

Recent Limitations Placed on Rights

Elections Act 2022  

The Police, Crime, Sentencing and Courts Act 2022   Gives more power to the police, criminal justice, and sentencing legislation, and it encompasses restrictions on "unacceptable" protests, crimes against children, and sentencing limits. The law is controversial, and led to protests under the slogan "Kill the Bill" in various British cities before it had come into force. It has received fierce criticism both locally and internationally by various politicians, human rights groups, journalists and academics, due to the impact on free expression, freedom of speech and the right to protest in the United Kingdom There are new rules in the act that allow police to step in if noise from a protest is causing issues for people or disrupting an organization's activities in the area. In such cases, the police can set conditions but not completely stop the protests. This decision will consider factors like location, duration, and the impact on sensitive places like schools or medical facilities, and will vary case by case. Regarding obstructing a highway, the penalty has been raised from a £1000 fine to an unlimited fine and/or six months in prison. This change means the offense can happen even if the police or relevant authority have closed the highway. This may seem like a step back after the House of Lords ruling in DPP v Jones supported protesters' rights to peacefully gather on a highway. A new provision has been added to update the Public Order Act 1986 to make sure access to essential services is not disrupted. It is now illegal to disrupt the supply of time-sensitive products to consumers, block access to crucial supplies, communication, worship places, transportation, education, or healthcare services.

2023 Public Order Act: The Public Order Act 2023 gives the police additional powers for both suspicion- based and suspicion less stop and search in protest settings. The police have the power to stop and search you without reasonable suspicion under existing powers, such as Section 60 of the Criminal Justice and Public Order Act 1994, or because of a Serious Violence Reduction Order . The Public Order Act 2023 gives police the additional power to carry out suspicionless stops and searches about protest activity. Where authorised by an inspector or a more senior officer, a uniformed police officer can carry out suspicionless stop and searches in a particular location for a specific period .

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UK Constitution Government and Politics Edexcel A Level Notes and essay plans

Subject: Government and politics

Age range: 16+

Resource type: Assessment and revision

Last updated

11 May 2023

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This is a fantastic resource from the Government and Politics Edexcel A Level topic of the UK Constitution containing, notes, essays and essay plans on questions discussing the relevance and effectiveness of the UK Constitution in its current uncodified state today, and whether or not constitutional reform since 1997 has gone far enough.

It also includes a wide range of evidence and examples to use which is extremely important to include in essays in order to achieve those higher A-A* marks.

These notes are all A-A* quality and were significantly useful to helping me achieve my A* in Politics A level this year.

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TikTok challenges U.S. ban in court, calling it unconstitutional

Bobby Allyn

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban. Kiichiro Sato/AP hide caption

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban.

TikTok and its parent company on Tuesday filed a legal challenge against the United States over a law that President Biden signed last month outlawing the app nationwide unless it finds a buyer within a year.

In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the constitution and suppresses the speech of millions of Americans.

"Banning TikTok is so obviously unconstitutional, in fact, that even the Act's sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok's ownership," according to the filing.

The law, passed through Congress at lightning speed, which caught many inside TikTok off guard, is intended to force TikTok to be sold to a non-Chinese company in nine months, with the possibility of a three month extension if a possible sale is in play.

Yet lawyers for TikTok say the law offers the company a false choice, since fully divesting from its parent company, ByteDance, is "simply not possible: not commercially, not technologically, not legally," the challenge states. "And certainly not on the 270-day timeline required by the Act."

Anupam Chander, a law professor at Georgetown University who specializes in technology regulations, said if TikTok loses this legal fight, it will likely shut down in the U.S.

"The problem for TikTok is that they have a parent company that has these obligation in China, but they're trying to live by free speech rules by the United States," Chander said in an interview. "The question is whether American courts will believe that that's even possible."

TikTok says law based on "speculative and analytically flawed concerns"

Lawmakers in Washington have long been suspicious of TikTok, fearing its Chinese owner could use the popular app to spy on Americans or spread dangerous disinformation.

But in the company's legal petition, lawyers for TikTok say invoking "national security" does not give the government a free pass to violate the First Amendment, especially, TikTok, argues, when no public evidence has been presented of the Chinese government using the app as a weapon against Americans.

Possible TikTok ban could be 'an extinction-level event' for the creator economy

According to the filing, the law is based on "speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means."

New DOJ Filing: TikTok's Owner Is 'A Mouthpiece' Of Chinese Communist Party

Constitutional scholars say there are few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways is if the government can demonstrate a national security risk. Also key, legal experts say, is the government showing the speech suppression was the least restrictive option on the table.

TikTok said Congress ignored less restrictive ways of addressing the government's national security concerns.

"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the filing states. "And for TikTok, any such divestiture would disconnect Americans from the rest of the global community."

Since more than 90% of TikTok's users are outside of America, Georgetown's Chander said selling the U.S.-based app to a different owner would cannibalize its own business.

"You can't really create a TikTok U.S., while having a different company manage TikTok Canada," Chander said in an interview. "What you're doing essentially is creating a rival between two TikToks," he said. " It may be better to take your marbles out of the United States and hope to make money outside of the U.S., rather than sell it at a fire-sale price."

TikTok critics call app a 'spy balloon on your phone'

The filing sets off what could be the most important battle for TikTok. It has been fending off legal challenges to its existence since former President Trump first sought to ban the app through an executive order in the summer of 2020. That effort was blocked by federal courts.

Since then, Democrats and Republicans have shown a rare moment of unity around calls to pressure TikTok to sever its ties with ByteDance, the Beijing-based tech giant that owns the video-streaming app.

Trump's Ban On TikTok Suffers Another Legal Setback

Congress has never before passed legislation that could outright ban a wildly popular social media app, a gesture the U.S. government has criticized authoritarian nations for doing.

In the case of TikTok, however, lawmakers have called the app a "spy balloon on your phone," emphasizing how the Chinese government could gain access to the personal data of U.S. citizens.

Worries also persist in Washington that Beijing could influence the views of Americans by dictating what videos are boosted on the platform. That concern has only become heightened seven months before a presidential election.

Yet the fears so far indeed remain hypothetical.

There is no publicly available example of the Chinese government attempting to use TikTok as an espionage or data collection tool. And no proof that the Chinese government has ever had a hand over what TikTok's 170 million American users see every day on the app.

TikTok says it offers U.S. a plan that would shut app down if it violated agreement

TikTok, for its part, says it has invested $2 billion on a plan, dubbed Project Texas, to separate its U.S. operation from its Chinese parent company. It deleted all of Americans' data from foreign servers and relocated all of the data to servers on U.S. soil overseen by the Austin-based tech company Oracle.

While the plan was intended to build trust with U.S. lawmakers and users, reports surfaced showing that data was still moving between staff in California and Beijing.

In the filing on Tuesday, TikTok said it submitted an agreement to the Committee on Foreign Investment in the United States, which has been probing the app for five years, that would allow the U.S. to suspend TikTok if it violated terms set forth in a national security plan.

But, lawyers for TikTok say, the deal was swept aside, "in favor of the politically expedient and punitive approach," the petition states.

Mnuchin claims he will place a bid to buy TikTok, even though app is not for sale

Despite the new law giving TikTok the ultimatum of selling or being shut down, there are many questions around how the app could even be bought by another company or group of investors.

Former Treasury Secretary Steven Mnuchin told NPR on Monday, he is planning to assemble a group of investors to try to purchase TikTok without the app's algorithm.

Mnuchin, who declined to answer additional questions, said in between sessions at the Milken Institute Global Conference in Los Angeles that the proposal to buy the app is still in the works, but he would not say when it would be formally submitted.

One major obstacle in any possible sale of TikTok is a glaring problem: The app is not for sale.

TikTok Ban Averted: Trump Gives Oracle-Walmart Deal His 'Blessing'

Despite the new law in the U.S., ByteDance says it does not intend to let go of the service. Furthermore, winning the support of China would be necessary, and officials in Beijing are adamantly against any forced sale.

In 2020, amid the Trump administration's clamp down on the app, China added "content-recommendation algorithms" to its export-control list, effectively adding new regulations over how TikTok's all-powerful algorithm could ever be sold.

ByteDance, not TikTok, developed and controls the algorithm that determines what millions see on the app every day. The technology has become the envy of Silicon Valley, and no U.S. tech company has been able dislodge TikTok's firm hold on the short-form video market. Experts say key to its success is its highly engaging and hyper-personalized video-ranking algorithm.

The algorithm, which involves millions of lines of software code developed by thousands of engineers over many years, cannot be easily transferred to the U.S., even if China did allow it, TikTok's challenge states.

Lawyers for TikTok argue that "any severance [of the algorithm] would leave TikTok without access to the recommendation engine that has created a unique style and community that cannot be replicated on any other platform today."

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The Disastrous Relationship Among Israel, Palestinians and the U.N.

The legal scholar aslı ü. bâli traces the history of international law and its role in the israeli-palestinian conflict..

[MUSIC PLAYING]

From New York Times Opinion, this is “The Ezra Klein Show.”

On Friday, May 10, the U.N. General Assembly passed a resolution saying Palestinians qualify for full member status at the U.N.

In the end, the vote was overwhelming. In favor, 143. Against, 9. Abstentions, 25.

[GAVEL SOUNDS]

This was new. The General Assembly had never voted for that before, but they did so now in overwhelming numbers. The final vote was 143 to 9. Israel voted against it. So did the United States. Now, to make Palestinians, to make Palestine, a full member of the U.N. would take a Security Council approval. The US would veto that. Our position is that a Palestinian state should only emerge through negotiations between Palestinians and Israelis.

But the vote itself was a sign of the chasm that is opening between not only Israel and the U.N., but America, too. Israelis have long felt the U.N. is biased against them. In 1975, the U.N. voted to declare Zionism a form of racism, though repealed that in 1991. From 2015 to 2022, the U.N. General Assembly adopted 140 resolutions on Israel. Over that same period, it passed 68 resolutions on all other countries combined.

At the same time, the U.N. was instrumental in the creation of Israel, voting to partition the land of historic Palestine between Jews and Palestinians and giving a majority of it to Jews. Palestinians feel the U.N. in particular, and international law in general, has been a procession of false promises. Where is their state, their self-determination? Where is the right of return for their displaced? What have all these resolutions and condemnations amounted to?

Aslı Bâli is a professor at Yale Law School who specializes in international law. Now, I wanted to have her on to trace a deeper question here, too, one that stretches beyond Israel and Gaza to Russia, Ukraine, and really, the whole world. What is international law actually for? As always, my email, [email protected].

Aslı Bâli, welcome to the show.

Thank you for having me.

So I think the way we normally think about laws is that they are rules where if you break them, some kind of external actor comes in to enforce a punishment, right? Maybe a sanction, maybe imprisonment. With that definition, is international law actually made up of laws?

It is made up of laws, and it sort of depends on where you sit. So if we take an average-sized country with an average military capacity and an average economy, it might be very much deterred, just by the presence of the rules themselves, from doing things that it could reasonably anticipate would be subject to punishment under the rules, like sanctions, or punishment, like international adjudication.

And it would depend a little bit what kind of violation it was and whose interests were at stake. But there are many, many contexts in international law where it operates just the same way that you expect it to operate in a domestic legal system.

We are thinking about international law from the perspective of sitting in the United States, a country that is the author of most of the rules, a rulemaker, and not very often a rule taker, in part because it’s by far the most powerful state in the international system. And we tend to project from that experience of understanding international law, in, let’s say, an a la carte manner, to how all states in the international system might regard international law. But that’s wrong.

I think that makes sense to me. But one of the things I was looking at before we talked was, what, since roughly 2000, have been the conflicts with the most terrible casualty counts? And when you look at that, you actually do see a lot of countries that are not hugely powerful international actors.

I mean, you see Syria on there. You see Yemen, you know, and the Yemen Civil War. You see Ethiopia and Eritrea. And all of these — and some of them in particular — have had terrible atrocities associated with them. But the fact that the perpetrators weren’t particularly powerful did not seem to create some opening by which the international community could stop the bloodletting.

Yeah, in the two specific examples you just gave that you began with in Syria and Yemen, the reason for this is because smaller or less powerful actors can seek great power patrons in the international system, and those very powerful states can disable mechanisms of enforcement and accountability. So in the case of Syria, it has cultivated a relationship with Russia, and Russia has effectively used its veto power at the Security Council to shield Syria from various forms of accountability that were very much on the table.

With respect to Yemen, the source of impunity has been the United States, and Saudi Arabia has been able to wield its own influence, backed by the United States at the U.N. through a variety of backroom negotiations and open threats. So the cases you began with are cases where great powers stopped accountability from occurring through their veto and the Security Council and other means.

That still leaves the other example you gave, which is Eritrea and Ethiopia. And I would add to that one more, which is the conflict that has consumed the Great Lakes region in Africa since the late 1990s, where you have had millions of people displaced, millions of people killed and injured, and essentially very little by way of international intervention.

These are cases where no great power is interested and is willing to generate the political will to engage the institutional accountability mechanisms that exist because there isn’t, for example, a domestic audience cost. There isn’t an outcry domestically over that particular conflict in the Great Lakes region, D.R.C. example that I gave you. There’s no comparison between the level of attention and scrutiny given by the American public to conflicts that are occurring in Europe or in the Middle East and those that are occurring in parts of Africa where the United States is not historically deeply implicated or engaged.

So what I hear you saying here in different directions is that for international law, like for other kinds of law, power really matters.

Yeah, and if you would, let me indulge in just one more example, in the context of the 1990s, when the United States was by far the most powerful state in the international system, an uncontested sort of unipolar moment, there were two major crises that involved clear evidence of crimes against humanity, possibly genocidal crimes and violence. One was in Yugoslavia, and the other one was in Rwanda. And there was enormous international attention to these contexts.

And yet there was still a reluctance to do the first thing that international law might have required, which is to trigger measures through the U.N. Security Council that would wield international power to get the violence to stop. And there were constant calls for this.

But from the United States’ perspective, a painful, punishing experience in Somalia earlier in the 1990s had yielded the lesson that we will not be implicated in judgments by the Security Council, suggesting that such an obligation might exist, for example, by characterizing the conflict in Rwanda as a genocide. We will not allow this because this will drag us into engagements that we do not wish to be part of.

Eventually, of course, because the Yugoslav conflict was unfolding on European soil, eventually, you did have a direct intervention, but it took a very long time. And so that’s another example of a place — it’s sort of in between — where international law is definitely being used. It’s shaping the responses of actors, but it’s being deployed in a way that defers the urgency of the moment and allows bloodletting to continue.

Before we get into the conflict where we’re actually really here to talk about, I guess I want to ask a more personal question of you, which is, this seems, from everything you are describing here, to be an incredibly frustrating world to work in. I know a number of international lawyers. I know people who care deeply about international law, and they are unerringly some of the most idealistic, most justice oriented people I have ever met.

And yet what we’re describing here, what you’re describing here, is a world where powerful states decide whether enforcement actions will be taken, where power decides whether the law will apply at all, where the relevant body of the U.N. that decides on security actions is dominated by a small number of very powerful players wielding vetoes. How do you balance the sort of belief in the laws as written and your recognition of the way that practical politics and power end up shaping and warping their application?

So the international peace and security order that we have emerged out of the Second World War, which resulted in the deaths of at least 30 million civilians, which caused untold damage to the world over, although we tend, in the United States, to focus exclusively on the European theater. So the architecture that was established for the international legal order in the aftermath of the second World War prioritized peace over justice without any doubt, in my view.

The nations were united. The big five, China, Russia, Britain, France, and the United States, led the peoples of the world as they launched a rule of international law and a bill of human rights, a rule of law they believed no nation, large or small, would dare defy.

The architecture of the United Nations security order gives asymmetric power to the victors of the Second World War that were also assessed at that time to be the most powerful states in the international system, states that now have nuclear weapons. Any war between those five states threatens planetary extinction, and as a result, must at all costs be avoided.

The architecture of the U.N. endows them with this asymmetric power as a mechanism to keep them inside of the institution, negotiating the differences amongst them, rather than resorting to extra diplomatic, extra political means to resolve their conflicts.

Now, imagine a universe in which the great majority of countries agree that the circumstances in Israel-Palestine represent a threat to international peace and security and require imperatively international intervention. The United States would interpret such an intervention as a direct threat to one of its most core interests of enormous consequence. And so immediately, you would be in a situation in which one nuclear power would be on one side of the equation, and arguably, one or more nuclear powers would be on the other side of a conflict.

There is a real risk that any number of geopolitical zones of conflict, including Israel-Palestine, including the Middle East, could become the site of a metastasizing globalizing conflict in which one or more of these nuclear states has ranged against the other.

But the institutional design of the United Nations system is intended to prevent that by enabling each of these powers to paralyze any action when one of these great powers understands its interests to be threatened. That’s the design of the system.

International law, though, has other characteristics, too. For one thing, it is a recognition of the sovereign equality of all states, regardless of their ability to defend their borders militarily. So it’s a system that is a de jure matter, recognizes equality amongst fundamentally unequal units in the international system, and affords some possibility for smaller states to protect their own independence using a normative language in which all actors recognize the states in the international system have a shared vocabulary.

That’s an incredibly valuable possibility. It’s a language that makes it possible to make normative claims on the powerful and to limit the degree to which they exercise their power in ways that are deeply compromising of the interests of states that are far weaker.

So the basic decision made to build an international institutional architecture that recognizes those asymmetries of power and keeps those countries in, even at the price of paralyzing the security order in circumstances where they believe their interests are at stake, is a decision to prioritize the avoidance of a third World War over justice as part of the actual internal institutional structure of international law itself.

You’ve said that the creation of the state of Israel and the creation of international law as we know it today are interwoven. How so?

So one of the things that the League of Nations did after World War I was oversee the territories of collapsed empires that were defeated in the course of the first World War and whose territories were now no longer under imperial dominion. On the land empire of the Ottoman Empire in the Middle East, the territories were not deemed capable of self-government and were placed instead under mandates, a kind of trusteeship, in the hands of colonial powers.

One of those was the Palestine mandate. And it was bequeathed to Britain to oversee as a mandate that was supposed to enable the self-determination of the people on that territory. There were a range of events for two decades, as the British maintained this mandate authority, in which you had increasing emigration of Jews from Europe and elsewhere to Palestine as part of their goal to establish a state on the Palestinian territory that would realize the ambitions of the Zionist movement, which was born in Europe in the 19th century.

And the British authorities were extremely supportive of the goal of Jewish communities to establish a Jewish homeland in Palestine. It was something that was conceived of as a solution to an ongoing problem of Europe, which was the kind of raging anti-Semitism and the violence that came with it that culminated horrifically in the shoah in the Second World War. But of course, it punctuated European history for centuries before that with pogroms and persecution across the continent.

And then, of course, you had the indigenous Arab population of Palestine that were seeking self-determination and independence, as were the Arab populations of the other mandates, Syria, Jordan, Lebanon, et cetera. And so, of course, this was producing inter-communal clashes because you now had two communities that were seeking to engage in self-determination on one land. And so this conflict raged for two decades.

And at the end of the Second World War, the British, basically having difficulty maintaining imperial control as a general matter, turned its mandate in Palestine over to the newly formed United Nations and was asked to make a judgment about what should be done about these competing ambitions for a homeland.

At a special session, the General Assembly of the United Nations established a special committee on Palestine and sent it to this troubled area to study the problems and make recommendations.

The judgment that the United Nations made was that the land would be partitioned between the Jewish community, which would get roughly 55 percent of the land, and the Arab community, which would get roughly 45 percent of the land. The Palestinians of the territory were accorded less than half of the territory that had been part of the mandate.

They objected to this. They also constituted a very, very large majority on that territory at the time. But the Arab rejection led to a war. And in that war, the Jewish forces gained a larger proportion of the territory even than had been assigned to them in the partition, leaving 22 percent of the territory under Arab control and the remainder under Jewish control.

Israel was admitted to membership in the United Nations, and her flag was raised at Lake Success. Again, the United Nations had, through peaceful mediation, resolved an international dispute, which had been a threat to world peace.

So that’s as of 1949. But in the following two decades, the U.N. presided over a much, much wider scale decolonization of territories that had been colonial possessions of Britain and France and other European powers across the Middle East, Africa, and parts of Asia.

And this enormous wave of decolonization brought dozens of new countries into the United Nations, newly independent countries, all of whom were highly committed to a model of decolonization that enabled populations under colonial rule to achieve self-determination.

So one thing I think this gets at is the way in which there are these two narratives that sit alongside each other about the foundation of the state of Israel and the world we now inhabit around that, which is, one, is that it was an act of the United Nations, right? There was a piece of paper. There was a partition plan.

And another is that the U.N. was a bit of a sideshow, and there was a war, and that sort of understanding Israel, and, for that matter, Palestine and Palestinians, as constructs of international law, has both always been tempting, because international has always been right there, but has actually been wrong, because in the end, the U.N. did not send in peacekeepers or soldiers to enforce its own partition. It did not send in people to create its own preferred outcome.

And so there’s been this tendency to look outside of the conflict for this arbitrating authority of the U.N. that has always been right there alongside the conflict and still is, but has never actually been able to manage or effectively structure it. How do you think about the way these sort of two tracks of interpretation have evolved alongside each other?

So I think that the second track that you describe, which just views the creation of the state of Israel as a fact of war, is problematic for a couple of reasons. The first is that it doesn’t ask a set of questions that are the predicate to that war being possible. How was it that there was an idea that an Israeli state would emerge on a mandate from the Ottoman Empire that was called the Palestine mandate for the population that was on that territory at the time of the end of the first World War?

That, too, was an instrument of international law. The mandates were created as a consequence of the Versailles Peace Treaty, and the British exercised its power as a matter of international law over Palestine, and, of course, many would argue, violated the terms of a mandate by enabling a kind of pattern of immigration and demographic change, along with commitments, political and legal, to another community to achieve self-determination on that same territory.

And this connects to the ways in which international law itself has long been, prior to World War II and since, a system of rules that essentially have facilitated European, let’s say, now Western or global North control over swaths of territory that were defined lawfully as colonies.

So the thing you’ll hear from Israelis on this is, they feel the U.N. is biased against them. You’ll hear that from 2015 to 2022, the U.N. General Assembly adopted 140 resolutions on Israel. It adopted 68 resolutions on all other countries combined, even though this is a period when there was a lot of war, a lot of atrocity, a lot of human rights abuses in places like Syria and Yemen. So there is a specific level of interest in Israel and the Palestinians that I think if you’re just looking at, say, casualty counts of different wars and conflicts, you wouldn’t be able to predict.

So it’s the only territory that had been slated to be decolonized at the creation of the United Nations that it inherited from that previous system that has not been decolonized. It is not disproportionate to the attention that was paid to apartheid South Africa, where the territory continued to be under white minority rule. For decades in the United Nations, these two challenges were understood as ongoing examples of incomplete decolonization that continued long after the rest of the world had been fully decolonized.

At the beginning of the 1990s, there was an expectation globally that both of these remaining dossiers of incomplete decolonization were on the cusp of being resolved, one of them because of the transition within South Africa to a post-apartheid constitutional regime, and the other because of the Oslo peace process and the imminent possibility of the emergence of a Palestinian state.

In the context of Israel-Palestine, the two-state solution did not come to fruition. And as a consequence now, Palestine remains the one instance that goes right back to the founding of the United Nations of an example that a majority of states at the U.N. continue to interpret through the lens of incomplete decolonization.

So from the US perspective, decolonization is over. It was a good thing, and now we’re in this post-Cold War order. But from the perspective of the world that was subject to colonial dominion, the question of decolonization remains very live, and the continuities between the experience quite recent, I would add, historical experience, of their nations and the current scenes that are emanating out of Israel-Palestine, makes this an ongoing issue of concern for them, if only for symbolic reasons and if only to a limited extent.

So voting on U.N. General Assembly resolutions is not exactly the same as having serious skin in the game. But those 143 states in the international system understand the Palestinians as entitled to self-determination and a state. 50 countries in the world don’t recognize Palestinian statehood. And there’s an enormous overlap between those 50 countries and the former colonial powers in the international system.

And so in that circumstance, I think you can see why it is that what you’re describing as disproportionate attention is actually attention to the one case that continues to reflect this longstanding grievance of the global South over the role that international law has played in enabling subordination.

The view I often hear from Israelis about this is that they feel there is something unusual about the belief that Israel itself is unusual. And it’s an attack they often lob specifically at the United States, which is itself a nation that was settled, settled with enormous violence to it. There is a lot of blood in the founding and blood in the early years of the country, and that at some point, that is no longer a question, right? There isn’t an effort anywhere to sort of say, should the US continue to exist?

And to israelis, there are many countries that look like that, that their foundations have a war in them, the foundations have an expulsion in them, but that country is now kind of accepted as just a country, not sort of an open case file, whereas Israel, they feel like there is somehow softer clay around them than other countries that don’t look all that different in their origins. Do you think there’s validity to that feeling? And if so, does it reflect that Israel emerges after the formation of the U.N. and this world of international law, or is it something else?

I do think it has to do with the fact that Israel emerges after the rules have changed. So it’s quite true that the United States was founded in a very similar fashion with European settlement, and in fact, much more violent — the genocide of the indigenous population, expropriation of its lands, enslavement of peoples, trans-Atlantic slave trade, et cetera.

There’s nothing to celebrate about the origin story of the United States from that perspective as a matter of international law, except that at the time that all of that happened, there weren’t clear laws that excluded that. In fact, quite the opposite. As I mentioned, international law facilitated colonial conquest of non-European lands and territories and offered a set of justificatory frameworks for enabling that.

So, first of all, there was already international law applicable that treated Palestinians differently than indigenous populations of earlier centuries. As a consequence of the end of the first World War and the creation of the League of Nations, Palestinians had already been recognized as a people with a legitimate right of self-determination, subject to a mandate that was understood as a trust in order for them to have their welfare preserved, I mean, however cynically, by a colonial power until such time as they could exercise their right of self-government.

And secondly, following the end of the Second World War, there were new rules about the conduct of war and the protection of refugees. So it was against that backdrop that Israel came into existence. And it’s less that it’s considered a state unlike all other states, and it’s not an incomplete file as such just on the Israeli side. It’s rather the idea that, today, you have 14 million people on this territory. Half of them were recognized as having their own right of self-determination, and that has been frustrated. The other half has achieved its right of self-determination.

So Israel has created a state that is an expression of the recognized right of self-determination of the Jewish people, but is continually behaving in ways that essentially deny Palestinians the ability to achieve the same. All of those efforts that you described of external actors to impose solutions of one kind or another, whether they be unilaterally the British or the Americans or the United Nations as an international organization, one thing they run up against is that there are actually two communities on the ground whose preferences need to be taken into account.

One of them is asymmetrically more powerful than the other. Each of the rounds that you described or that we’ve discussed so far have greatly favored the Israeli side in one way or another. The least example of that is the U.N. partition plan. All subsequent plans have enabled Israel to retain far larger swaths of territory, territory acquired by use of force in a time when international law prohibits the acquisition of territory through the use of force.

So these agreements, these externally backed agreements, have systematically favored the more powerful side. And the inconvenient reality on the ground is that there are two populations of equal size on the territories, 7 million Palestinians, 7 million Jewish citizens of Israel. And it has proven impossible to force, through external pressure or by dint of arms, Palestinians to simply accept their subordination as a legal matter. And so you have an ongoing conflict.

Let me pull us into the present here and look at another body of international law, which is the international laws around war and conflict. And let me begin on the part that I think people are talking less about right now, which is that on 10/7, you have Hamas fighters cross into Israel. They kill around 1,200 people, most of them civilians. They take hundreds of hostages, many of them civilians. What does international law have to say about that?

So they clearly violated the laws of war by first deliberately targeting civilians; secondly, taking civilians hostage, which is also impermissible. And then ongoing indiscriminate rocket fire is another source of violation. So there’s undoubtedly war crimes committed by armed Palestinian factions, including Hamas, on Oct. 7.

If Israel wanted to rely on U.N. international law here as both a matter of defense and a matter of justice, what would it have said or done?

So it had a number of potential options. It could have engaged in a police action in Gaza seeking to apprehend individuals that they held responsible for the Oct. 7 attacks. It would probably have begun with investigation on Israeli territory of who actually was responsible for taking the individuals that had been captured alive on Israeli territory, interrogating them, and then seeking to gain access to or jurisdiction over those that were held responsible.

It could have engaged in a much narrower set of engagements, attempting to target facilities that made it possible for armed actors to cross the border in the way it had. And primarily, it could have shored up its own defenses because the conditions that enabled the Oct. 7 attack to occur was not some new, unexpected capacity on the part of armed actors that represent an ongoing existential threat to Israel, but rather a failure to maintain basic defenses at the border with Gaza.

Israel has responded with the view that Hamas is a kind of organized fighting force that cannot be allowed to continue to exist as any kind of fighting force. That as long as Hamas exists as a structure, it will continue planning and using creative means to try to figure out how to strike at Israel’s weaknesses, and so that they need to destroy Hamas. They can’t just treat it as something where a couple people committed a crime. The thing that was Hamas cannot be allowed to exist. How does that fall within the way international law understands the kinds of responses that are reasonable here?

I think the view that the absolute destruction and extermination of your adversary is the war objective is simply grossly disproportionate and impermissible as a matter of use ad bellum, which is to say the law governing resort to the use of force. Hamas does not represent an existential threat to Israel. Israel is saying that our objective in this war is to destroy all Hamas military presence, period. So then it’s basically a no holds barred situation because the argument is there are tunnels underneath everywhere.

So the way that Israel is interpreting international humanitarian law here, its deliberate choice to prioritize military necessity over the principles of proportionality and distinction, and also to describe military necessity with respect to its overall strategic objectives, rather than answering the question whether this object in this concrete and direct way is contributing to a specific military advantage in that moment, is reinterpreting the rules in a way that undermine both the spirit and the law of international humanitarian law, because it eviscerates the law’s ability to protect civilians.

What’s made much more complicated is that Israel is not always clear in claiming that it’s Hamas as an armed actor that must be destroyed. Oftentimes, it seems as if it’s just Hamas as a whole, and Hamas has many different characteristics. It is an armed faction in Gaza, but it is also the governing authority that represents all of the civil service, all of the bureaucracy, all of the municipal services, everything that enables any territory to run from crossing guards to sanitation workers to people who are operating the hospital systems.

And so the idea of destroying the governing authority is totally impermissible and would be actually targeting of the civilian infrastructure, which is, indeed, something I think we’re seeing. And so there’s a troubling question of, how does Israel define the object that it’s seeking to eliminate or exterminate? And in the context of Gaza, which is a very, very small territory with a very dense civilian population, is going to have the kinds of consequences we’ve seen of just grotesque, disproportionate harm to civilians.

Is this a place where international law and what you might call international practice diverge? Because it is difficult for me to imagine all that many countries suffering the kind of attack from a neighboring territory that Israel suffered, and not believing their objective is to wipe out the governing authority that planned, financed and launched that attack.

I mean, the obvious, I think, analogy for Americans is Al Qaeda after 9/11 was certainly the way the American political establishment initially absorbed this moment, right? Joe Biden kind of making the point of how many 9/11’s this would feel like to Israel, even as many of us kind of really pushed the idea that our response to 9/11 was misguided.

But it wasn’t an effort to invoke that same sense of how a country might reasonably be expected to respond to this kind of security risk. So there’s a question of international law here, but there’s also the question of, what do countries typically do under this kind of pressure? And I wonder if those two diverge for you.

So it’s an interesting question. To begin with, the idea of a country facing an armed attack from another country and what does it do is, of course, the premise of all of the laws of war.

And let’s think of the context of Ukraine and Russia, for example. We don’t imagine a scenario in which it’s permissible for either of those actors to have as its war objective the complete elimination and extermination of all fighting forces and the governing structure of the other. We would understand that to be a kind of total war that’s ruled out. And if either party seemed as if it was pursuing that kind of a maximalist goal, that would be rejected out of hand.

So it really depends on where you sit. If you’re the United States and you choose to see Hamas as the equivalent of Al Qaeda on 9/11, you might choose one set of repertoires. And as you say, international law required constraints that the United States did not observe post-9/11 and came to regret it for the reasons you were suggesting.

Many of us believe that the US response post-9/11 was disastrous, not only for those that were the targets of US force, but also for the United States itself, which, in fact, suggests that there is a purpose to the rules, and that enabling their constraining function may actually be in the interest of all parties. But if you’re sitting elsewhere in the world, for example, in the Global South, then you might not think of Hamas as similar to Al Qaeda, but rather to the national liberation movement that achieved independence in your own country.

And the rest of the world, the Global South, at least, fought very hard for a law that entrenched that right of armed resistance in the international legal order through the additional protocols to the Geneva Conventions and through a range of subsequent customary international law that has grown up around the Geneva Conventions and the additional protocols that recognize national liberation movements as a very different kind of actor, a sort of proto-state military, rather than an actor that can be compared to Al Qaeda or a terrorist group that isn’t connected to a claim of national self-determination.

I want to go back to something you said a minute ago about Russia in Ukraine. Because I actually did understand something like the governing authority of this country is illegitimate and a danger to us and needs to be wiped out completely, as Russia’s, at least, stated objective of what they were trying to do in Ukraine. And I think this gets to this question somewhat of enforcement, where I think Russia’s general invasion was rejected within international law.

And yet there is this kind of shimmering, crazy making sense around it, where Russia did the thing that is most abhorred under international law — just launched an invasion of a neighboring country for functionally no reason whatsoever. And yet Russia maintains its standing in the international system as it has always been. It’s sitting there on the U.N. Security Council. The fact that its efforts have been rejected has not mattered all that much.

If we are looking at the Russia-Ukraine analogy alongside this, I do think that is one where people look at the system, and they say this is no system at all. This is just power dressed up as laws, not laws that actually act to constrain power.

In Russia and Ukraine, it’s one thing to say that the goals of Russia are to defeat the Ukrainian government and to perhaps remove the leadership of the Ukrainian government. And it’s another thing to say that the goal of Russia is to wipe them out and exterminate them.

So I don’t think we have any evidence to suggest at this point that they have articulated an expectation, for example, of taking every person who has served in the Ukrainian government, from trash collectors to sanitation workers to civilian crossing guards to policemen to K through 12 teachers, et cetera, and just kill them all.

Is that Israel’s goal, though? Because that’s also to mine — I mean, I have a deep critique of the way Israel has conducted this war, but I don’t hear them saying that every doctor who works for the Hamas government should be killed here. I mean, that also sounds like beyond what Israel has described as their goal.

I was just pointing out that the goal of wiping out Hamas has the potential to be read in three different ways. There’s the armed actor, there’s the governing infrastructure, and there’s the social movement. And there’s ambiguity in the way that Israel describes it. More generally, Israel has targeted, for example, the police force. It has targeted civilian infrastructure of a variety of kinds.

So it’s hard to say exactly what their goals are, but I didn’t mean to assert that they had the goal of killing those people. I’m just saying if that were a goal, it would be impermissible. That kind of total war would be impermissible under any circumstances, in any context, whether between states or with respect to a nonstate actor, et cetera. And that was the sense in which I was invoking Russia and Ukraine earlier in our conversation, that we don’t understand that to be the Russian war goal.

And the challenge that we have in saying that Israelis have established the complete destruction and elimination of Hamas as the objective of the war raises troubling implications of total war that I think we wouldn’t permit in any context, even the suggestion of destroying the entire military.

I mean, for example, the United States clearly had in mind, in its invasion of Iraq and subsequent occupation of Iraq, destroying Saddam Hussein’s capacity to wield his military. It didn’t entail destroying every last fighting man or fighting age man in Iraq. And indeed, it didn’t involve even disarming all Iraqis. These are not the kinds of objectives that we have.

Typically, it’s a decapitation of the leadership, and then a preservation to the extent possible of infrastructure that will make governing the day after possible. It’s not always clear in the case of the war against Hamas that Israel is making any of these distinctions.

What are, in your view, the clearest violations of the laws of war that have happened during Israel’s invasion of Gaza?

I think the one that is probably the easiest to document and substantiate is the blocking of access to humanitarian aid and what is now amounting to the crime of starvation. Because Israeli officials declared in the immediate aftermath of Oct. 7 that they were going to cut off all food, all fuel, all water, and have proceeded to oversee a scheme in which they control today all points of entry and egress from Gaza and have precluded humanitarian aid necessary for subsistence of the Gazan population to enter the territory, and have also denied humanitarian actors the ability to supply that aid.

So blocking humanitarian assistance, including food, medicine, fuel, water treatment, hospitals. That, I think, is the clearest and most easily established war crime. I think the deliberate targeting, in some instances, or at least indiscriminate, bombardment of areas that have dense concentrations of civilians. It’s difficult in the context of war crimes, as you know, and the violations of international humanitarian law to establish the requisite intent.

But examples of indiscriminate killing that are well known include the killing of Israeli hostages when they had escaped and were walking clearly unarmed with their hands up, carrying white flags and were nonetheless executed. And then the strike on the World Central Kitchen four-car convoy. These are cases where, because of the identity of those that were struck, Israel has felt the need to explain its conduct and others have scrutinized the conduct. But I think these are very small examples of a much, much wider pattern.

Unfortunately, the deaths of 34,000-plus Gazans has simply not attracted the same level of international focus. But there are statements that have been made on the record by Israeli military authorities and IDF spokespeople, together with the empirical record of enormous destruction of all civilian infrastructure in Gaza, that make it relatively more straightforward than in other contexts to establish that the war crime of indiscriminate bombardment of civilian areas has occurred.

There are, I think, two major categories here that I want to think about not separately, but for different reasons. So one is the actions that I think it is fair to say are targeted at civilians, or at least indiscriminately, truly indiscriminately, targeted at civilians, like the siege. And, I mean, that has always seemed to me to be a war crime. And the sort of American defense of it has, I think, been disappointing.

The other piece of it, which you brought up around these tunnels, what Israel says is that Hamas is using international law against it, that Hamas uses civilian shields. And I cannot judge whether this is true, but take it as plausible for the moment that Hamas works out of schools and hospitals. And the Israelis have said, well, because of that, it means that, unfortunately, we have had to destroy. I mean, there was just a Times report on the huge proportion of Gazan schools that have just been wrecked.

And so Israel’s argument is that this is not Israel’s fault. It is Hamas’s fault, that it is Hamas that has decided to hide among civilians and to use both civilians and civilian infrastructure as shields, as disguises, as operating bases. And so the consequence of this falls on them. How does international law treat a question like that when you do have a force that, at least, to some degree, is using civilians and civilian infrastructure as kind of shields, collateral damage, and operating bases?

Obviously, in places and in territories where you have a dense civilian population, there is infrastructure that is helping an adversary’s armed forces sustain itself on which the civilian population is also deeply dependent. Targeting that on the grounds that it’s dual use is not only in violation of the spirit of international humanitarian law and the goal of protecting civilians and minimizing harm to civilians in conflict, but in many cases, it’s also a violation of the rules, which brings us to human shields and that argument.

So the definition of using human shields for a matter of international law is the deliberate placement of civilians in proximity to military objectives during a conflict. It’s not the presence of civilians in densely populated areas from which armed groups also operate. Gaza is a tiny territory. And inevitably, on a territory that small, that has 2.3 million people residing, you’re going to have civilians close to places where Hamas operates, no matter what.

Under those circumstances, the rules require that Israel take precautions that are available to take. So let’s take an example of the hospitals. Let’s say, arguendo, that Hamas was using a hospital or was present underneath a hospital. Then what would be the measures that Israel is permitted to take in order to address the tactical military advantage of an actual Hamas presence, an armed presence in that moment, near or under that hospital?

First of all, Israel would have to evacuate the civilians or create an opportunity for the civilians that are in the hospital to be evacuated. It would have to facilitate access to medical supplies and necessary humanitarian assistance for patients to be transferred, for patients in need of care. It would also have to ascertain where it believes Hamas is present and narrowly target whatever strike or attack to that particular location.

And it’s not simply that you warn a population of an attack, it’s that you provide them a meaningful opportunity to be evacuated from an area. You offer them safe passage, and you enable them to travel to somewhere where they will be safe. Instead, we’ve seen warnings without opportunities to evacuate, or where evacuation passageways have themselves been the subject of targeting for attack, and where people have been directed to places that themselves have continued to be bombarded. Let’s just look at the laws of war for a moment and see what they’re designed to do. They’re not designed primarily for ex-post accountability and to be used in an international criminal setting. They’re designed for ex-ante incorporation in the military manuals and books and rules that govern armed forces, how they’re trained and what they’re told they can or can’t do.

Now, I think there’s good reason to think that there has been a dramatic shift in Israel in the internal rules of engagement. We’re probably not going to be able to establish whether that’s true or not in the immediate period because Israel will remain the most powerful actor on the ground and will not subject itself to that kind of third party inquiry. But the rules are failing to constrain Israel first and foremost, because Israel has ceased to internalize those rules.

The use of such heavy weaponry as 2,000 pound bombs or the shelling with very heavy artillery of civilian areas where civilian populations remain present, is quite distinctive in this context because it’s happened so frequently and with such a high level of ordinance that sets it apart from essentially any other conflict to date, at least that the United States has been involved with or implicated in.

One thing that has been interesting to me is the Biden administration has been shifting its position somewhat over the past, I would call it, two or three months, is that as much as international law has not been able to constrain Israel on its own, it is the tool the Biden administration increasingly seems to be using as it looks for a way to reconcile its own positions.

It wasn’t there when they didn’t want it to be there, but when they don’t seem to want their position to simply be Joe Biden has had enough, he thinks they’ve gone too far, it does sort of operate as this other language, this sort of agreed upon language. I’m curious how you think about that sort of role of this. Even where international law cannot work as an in-the-moment enforcement mechanism, it is something that can be used, at times, to create sort of mounting moral pressure or justify decisions that would not otherwise work politically.

Yeah, I mean, I think that’s clear. And again, I just want to go back to where we started at the very beginning of our conversation in thinking about how does law work as a general matter. We don’t say in a domestic system that has periodic surges in murder rates that the law of homicide doesn’t exist or doesn’t work or is unenforceable.

Even if it’s the case that there are people that escape the capacity of the law to actually hold them individually accountable for one reason or another, the fact that people break the law and sometimes get away with it doesn’t mean the law doesn’t exist and doesn’t have force. The Biden administration came into office, in part, signaling at home and abroad that it was breaking from the Trump administration, breaking from a period of what it viewed as lawless rule and returning to a rule-based order, rehabilitating the US reputation.

What we have now entered into is a period of a return of serious multipolarity. That is to say, the United States faces a range of actors, some larger, some smaller, that for a variety of reasons, either in their particular spheres of influence or globally, have emerged as either adversaries or challengers.

And in this context, of course, each of them is able to make recourse to the precedents set by the United States of failing to constrain when they want to act. And so they’ll point to Kosovo. They’ll point to Iraq. They’ll point to Libya. And we’re seeing the consequences of those precedents now, when they’re wielded to legitimate uses of force we disagree with.

So there is that phenomenon, for starters, and that indicates a universe in which all actors, not just the United states, have to either be far more careful about the ways in which they continue to erode the existing international legal infrastructure, or in which we are moving in the direction of regional, fragmented interpretations of what the international rules are, powerful actors commanding authority within their own near abroad becoming stronger, and over time, the production of precisely the kinds of dynamics that resulted in the world wars of the 20th century.

So for much of the war, the US has used its veto at the Security Council to stop any resolutions calling for a cease-fire. Then in March, when another one came along, this one written somewhat differently, the US abstained and allowed it to pass. The Israelis ignored it, and then the US called it nonbinding. And there was a State Department briefing where a reporter asked about this.

So you don’t believe anything is going to happen as a result of the passage of this resolution?

So I think that separate and apart from this resolution, we have active ongoing negotiations to try to achieve what this resolution calls for, which is an immediate cease-fire and the release of hostages. I can’t say that this resolution is going to have any impact on those negotiations —

So I don’t expect you to answer this now, but to maybe just stick this in your pocket. If that’s the case, what the hell is the point of the U.N. or the U.N. Security Council?

That was really a moment, I think, that made the contradictions in our relationship to international law pretty stark.

There’s actually a precedent for the United States treating a U.N. Security Council resolution and turning around and presenting it as nonbinding. And strikingly, it was in the South African context. You had a very similar situation during apartheid that we find ourselves in now, in which the U.N. General Assembly, the overwhelming majority of states in the international system, passed resolution after resolution after resolution, with enormous majorities in support of denunciations of the South African regime of apartheid, calls for sanctions, arms embargoes, all kinds of things.

In the General Assembly, while it doesn’t have the power to issue resolutions that have binding law that are the force of binding law, it has enormous power to shape agendas. And it did do that, even as the US and the UK, and to some extent, France continued to use their role in the Security Council to shield the South African government. The General Assembly ended up setting the global agenda for how one should understand South Africa.

And over time, the Security Council had no choice, under enormous pressure, to finally agree to some very, very mild measures against South Africa. But the very first such resolution passed by the Security Council involved exactly the same pattern, and then the US delegate turning around and saying, well, this is nonbinding, and having an enormous debate about how to interpret Security Council resolutions, et cetera.

In the end, in the grand scheme of things, it just didn’t matter because the overall momentum in the system was against the South African government. And in the coming years after that, South Africa had come to become such an illegitimate actor globally that the Security Council finally did pass binding resolutions involving arms embargoes. And as we know, there was an eventual transition in South Africa to a post-apartheid system.

So this nonbinding resolution around the cease-fire could also be seen as the first in a series of steps that might occur in this relationship between international public opinion, international law, the general assembly, international courts, the U.N. Security Council, that shift our attention away from the longstanding international humanitarian law framework that has dominated and that has forced us to look specifically at the rules for belligerent occupation and the rules of the conduct of hostilities when Israel engages in a variety of kinds of operations against Gaza or against the West Bank.

To shift our gaze from all of that and instead return our attention to the question of the entirety of the mandate and ask a question about what the future would look like politically and legally under international law for an authority that governs 14 million people, where 7 million people, Jewish citizens, are fully enfranchised citizens of a democracy, and the other population of the territory, the other 7 million people, still have unresolved rights, and they’re still sitting on the territory as well.

And then always our final question — what are three books you would recommend to the audience?

Yeah, thank you so much for giving me a chance to recommend some great books. The first I would recommend is Antony Anghie’s “Imperialism, Sovereignty, and the Making of International Law,” which retells the history of international law, as well as the intellectual history of canonical European jurists, by centering the colonial encounter as the structuring event that triggered the emergence of international law as we know it.

I would also recommend Noura Erakat’s “Justice for Some: Law and the Question of Palestine,” which provides a detailed and highly readable account of how international law first facilitated British colonial rule, and then how it’s been used by Israelis and Palestinians to organize on the one hand, and resist on the other.

I would also recommend Adom Getachew’s “Worldmaking After Empire: The Rise and Fall of Self-Determination,” which returns to the era of decolonization to offer an account of how the principle of self-determination was differently understood by anticolonial leaders and how that understanding, had it prevailed, might have yielded alternatives to logics of partition logics, like the logic that underlies the U.N.‘s involvement in Israel-Palestine and ideas of the two-state solution.

And then, with your indulgence, I’m going to recommend a fourth book — Aziz Rana’s “The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them,” which is a wonderful book just published that provides an eye-opening and beautifully rendered account of how we, as Americans, came to be bound to a Constitution that makes it so difficult to hold our own government accountable or to translate public preferences into changes in our policies, a question that I believe has renewed urgency at a time when polls show that consistent majorities in the United States support a permanent cease-fire in Gaza.

Aslı Bâli, thank you very much.

This episode of “The Ezra Klein Show” is produced by Annie Galvin, fact-checking by Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Isaac Jones. Our senior editor is Claire Gordon. The show’s production team includes Annie Galvin, Rollin Hu, Elias Isquith and Kristin Lin, with original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser, and special thanks to Carole Sabouraud.

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Produced by ‘The Ezra Klein Show’

The international legal system was created to prevent the atrocities of World War II from happening again. The United Nations partitioned historic Palestine to create the states of Israel and Palestine but also left Palestinians with decades of false promises. The war in Gaza — and countless other conflicts, including those in Syria, Yemen and Ethiopia — shows how little power the U.N. and international law have to protect civilians in wartime. So what is international law actually for?

[You can listen to this episode of “The Ezra Klein Show” on the NYT Audio app , Apple , Spotify , Amazon Music , YouTube or wherever you get your podcasts .]

Aslı Ü. Bâli is a professor at Yale Law School who specializes in international and comparative law. “The fact that people break the law and sometimes get away with it doesn’t mean the law doesn’t exist and doesn’t have force,” she argues.

In this conversation, Bâli traces the gap between international law as written and the realpolitik of how countries follow it, the U.N.’s unique role in the Israeli-Palestinian conflict from its very beginning, how the laws of war have failed Gazans but may be starting to change the conflict’s course and more.

You can listen to our whole conversation by following “The Ezra Klein Show” on the NYT Audio app , Apple , Spotify , Google or wherever you get your podcasts . View a list of book recommendations from our guests here .

(A full transcript of this episode is available here .)

This episode of “The Ezra Klein Show” was produced by Annie Galvin. Fact-checking by Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Isaac Jones. Our senior editor is Claire Gordon. The show’s production team also includes Rollin Hu, Elias Isquith and Kristin Lin. Original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Carole Sabouraud.

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