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The purpose of this chapter is to articulate an understanding of basic human rights that is sufficiently clear and cogent to serve as the core of a justice‐based moral theory of international law. To accomplish this goal, the concept of human rights is first analysed into its key elements, and the analysis is used to explain how assertions about human rights can be justified, and show that plausible justifications for basic human rights can be grounded in a diversity of moral and religious perspectives. Next, several objections to the claim that there are human rights or that they can play a fundamental role in a moral theory of international law are refuted, and it is argued that the right to minimally democratic governance should be included among the rights that international law ascribes to all persons—whether it is a human right or of instrumental value in securing human rights, or both. It is then shown that the use of coercion to protect basic human rights is compatible with a proper tolerance for the diversity of values, and the chapter concludes with a discussion of how the international legal order can cope with the ineliminable abstractness of human rights norms. The seven parts of the chapter are: I. Clarifying the Idea of Human Rights; II. The Justification of Assertions about the Existence of Human Rights; III. A Plurality of Converging Justifications for Human Rights; IV. Is democracy a Human Right?; V. Critiques of Human Rights; VI. Human Rights and the Bounds of Toleration; and VII. The Inelimable Indeterminacy of Human Rights and its Implications for the Moral Theory of International Law.

This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal order should include rights of distributive justice (sometimes called social and economic rights) for individuals that exceed the right to the means of subsistence that is already widely recognized in international and regional human rights instruments, and (2) whether international law should recognize not only individuals but collectivities such as states or “peoples” or nations as having rights of distributive justice. To situate these questions, the chapter begins by considering alternative explanations for widespread skepticism about the possibility that distributive justice can have a significant place in the international legal order. The remaining sections of the chapter discuss: I. The Place of Distributive Justice in International Law; II. Reasons for Rejecting a Prominent Role for Distributive Justice in International Law Today; III. Deep Distributive Pluralism; IV. Societal Distributive Autonomy; and V. Institutional Capacity and Lack of Political Will.

The synthesis of this book evaluates how the Court and the Commission have behaved overall with respect to the areas of international law analysed. The ECHR system is viewed from a wider perspective, namely through the prism of fragmented international law. This chapter evaluates various factors which have played a role in the reception of international law. In this context, the aim is to list the most influential cross-cutting factors which appeared in the case law. The influence of these factors is the evaluated from a comparative perspective in accordance to the research results obtained with regard to each regime. In light of the results obtained, the chapter analyses the nature of the ECHR regime and its interactions with other special and general regimes. The research results are presented in three concise tables.

Ch. 8 argued for combining a rather restrained, justice‐based view of the unilateral right to secede, the Remedial Right Only Theory, with a much more supportive stance toward forms of self‐determination within the state: various forms of intrastate autonomy. This chapter argues that the international legal order ought to acknowledge the importance of self‐determination by supporting intrastate autonomy, and also suggests that, apart from the role that international law should play, individual states should generally give serious consideration to proposals for intrastate autonomy. The chapter first makes the case for including in the domain of transnational justice the monitoring and enforcement of intrastate autonomy regimes under certain rather exceptional circumstances, and then, in the last section, suggests that even where principles of transnational justice do not require it, there are cases in which the international community might play a constructive role by providing diplomatic support and economic inducements or pressure to encourage the creation and well‐functioning of intrastate autonomy regimes. The five sections of the chapter are: I. Intrastate Autonomy and Transnational Justice; II. Indigenous Peoples’ Rights; III. Justifications for Intrastate Autonomy for Indigenous Peoples; IV. Basic Individual Human Rights as Limits on Intrastate Autonomy; and V. International Support for Intrastate Autonomy: Beyond the Requirements of Transnational Justice.

This chapter introduces the peculiarities of the ethical questions facing those proposing reforms to the international legal order; those responsible for interpreting international legal standards; and those having to decide whether moral imperatives justify breaching existing legal standards in a given instance. A drafter of legal reforms must aim to construct a framework for peaceful and respectful cooperation that can be accepted as legitimate, if not by all, at least by all seriously potent elements of an existing political community. In order to satisfy the objective need for accommodation, bearers of diverse interests and values must be prevailed upon to accept outcomes that systematically fall short of fully realizing not only their preferences but also their principles.

This chapter examines how international law has responded to the risks presented by new technologies. It focuses, first, on the definition of the notion of precaution and its constitutive elements, and examines how the precautionary approach brings new concerns and new paradigms into the international legal order. It then looks at precaution's links with public participation. Finally, it examines the societal dimension of precaution.

This introductory chapter sets the scene by showing how Ludwig Wittgenstein identified in search for certainty with Goethe’s tragic figure Faust. Faust tried the word, its true sense and the force behind the word as foundations in the search of beginning and meaning. None satisfied him and he ultimately found the solution in the deed. The chapter reads discussions in the International Law Commission surrounding the Vienna Convention on the Law of Treaties and its rules of interpretation through the lens of Faust’s quarrels. It introduces the challenge for both sources doctrine and received ideas about the nature of interpretation that comes with semantic pragmatism and the proposition that it is the deed that generates meaning and legal normativity. The chapters draws attention to the legitimacy implications of this challenge in the specific constellation of the international legal order and sets out the book’s agenda.

This chapter presents two essays on the current challenges to the global system and what they may mean for the future of international law. The first essay discusses the differences between interdependence and globalization in economic activities and the impact of economic globalization on state sovereignty and the international legal order. The second essay expands the discussion and looks at the globalization of other issue areas and the role of non-binding norms in the light of current trends.

This chapter discusses the emergence and consequences of the notion of the influential authority of international law. It argues that much of our thinking on the relationship between international and domestic legal orders is erroneously based on the bindingness of international law. Whereas that standard account may leave little room for breaking out of an essentially dualistic paradigm, a more substance-based conception of international law allows for a richer account of the relevance of international norms in domestic settings and indeed makes formal separations between legal orders largely irrelevant.

This chapter examines the prevailing theories on whether international law can contribute to the management of regime conflicts. These range from legal pluralists' flat-out denial of any meaningful role for international law (as suggested by some legal pluralists) to a strong endorsement of international law's relevance by scholars committed to a unified concept of international legal order.

This chapter investigates the relationship between international law and international politics. It also evaluates how the changes associated with the concept of globalization affected the international legal order. It explains that these issues provide a framework for drawing together some of the main arguments that have run through this volume and for isolating some of the principal points of divergence and debate.

This chapter argues that the struggle for humans to find meaning has to take priority over the struggle to build institutions, making most explicit the raw spirit of Hobbes that underlies the whole attempt to construct an international legal order on the basis of the early modern classical state sovereignty. It analyses the most penetrating and systematic critique of the problem that the classical state posed for international law, which Kelsen offered after the First World War. The main lesson here is that this most rigorous thinker did not consider the positive law put in place by the UN Charter to have met his standards for overcoming the dilemmas posed by the classical state. The chapter concludes by drawing upon the work of Richard Tuck to show that the radical individualism associated with Hobbes, whom Tuck brings together with Grotius, Vattel and Kant, is integral to a predatory imperialism towards the non-European world.

This chapter proposes an alternative conception of legal plurality. It suggests that international law provides a common language for discursive engagement across regimes, based on shared, regime-transcendent discourse rules. While this common language does not guarantee a unified legal order, free of internal contradictions, it does open up an avenue for the coordination of the policies of various international regimes.

‘The Appeals of the Orient’— in the February 1925 issue of the literary journal entitled Les Cahiers du Mois— summarized more than 100 responses to a questionnaire that was intended for various cultural and literary writers. The survey attempted to explore issues regarding the Occident and the Orient — values that supposedly make the Occident superior, the features of both that would make each veer away from the other, and the expanding influences brought about by those in the East. Two months after the article was published, a group of rebels from Morocco and France experienced what was then referred to as the ‘War of the Riff’. This came about because the rebels did not want European occupation to expand within their territory. The rebels, however, were soon defeated as Spain and France were able to establish formalized zone divisions. Because this war proved to be of great significance in French culture and politics, this chapter studies the public discourse about the war, specifically on issues about the relationships the French has set out in the colonized world through international legal order and other such measures.

This chapter first explores the most common policy motivations for the government regulation of trade in cultural products. It then outlines the rules of international law that bear, and impose limits, upon a government's liberty to regulate trade in cultural products. Finally, the emergence of a multiplicity of different rules of international law pertaining to trade in cultural products is placed within the context of a broader debate among international law specialists — the diversification or ‘fragmentation’ of the international legal order. An overview of the subsequent chapters is also presented.

This introductory chapter sets out the book's purpose, namely to offer a new approach to global justice that integrates the work and insights of international law and ethics. The book analyses the international legal order for its contribution to global justice. It demonstrates that to build a more just world order, one must understand what has been achieved in international law and institutions. The chapter then explains how the appraisal of the law and legal institutions is a project of non-ideal theory in the philosophical sense. It highlights the fact that while non-ideal theories of global justice are not new, the non-ideal theory offered in this book is particular in one important sense: it is grounded in international law. An overview of the subsequent chapters is also presented.

The introduction presents the theme, lays out its importance and explains the structure of the entire book. It also provides methodological foundations of the analysis pursued throughout the book. It offers an overview of major theoretical concepts relating to the status of tangible cultural heritage in state succession. It explains that these do not only concern the principles of the allocation and distribution of cultural material applicable among states involved in such processes, but they also relate to succession and continuity of international cultural heritage rights and obligations. Thus, by mapping the core problems and potential shortcomings of the existing international legal frameworks, the introduction aims at conceptualizing the actual state practice analysed in the book.

This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.

This introductory chapter first sets out the book's purpose, which is to analyse the contradictory and often incoherent position in which national courts place themselves when applying international humanitarian law. It proposes a methodology for examining court decisions to determine their functional role. Through a critical reading of case law from different democratic jurisdictions, the book identifies a spectrum of functional roles that judges may assume. They can serve as a legitimating agency of the state; avoid exercising jurisdiction for extra-legal considerations; defer the matter back to the other branches of government; enforce the law as required by the rule of law; or, develop the law and introduce ethical judgment beyond the positive application of the law. The chapter then discusses the political objective of the rule of law framework; national courts and the international legal order; and national courts and the international rule of law. An overview of the subsequent chapters is also presented.