This chapter addresses the suggestion that for a special regime to exist, community members must have a shared repertoire. In the context of international law, to claim that a group of international law specialists have a shared repertoire is to assert that they consider the use of certain rhetorical tools appropriate. As Chapter 5 argues, the existence of such a presupposition can be inferred from, amongst others, the use by specialists of distinct concepts, a distinct terminology, a distinct method, and distinct theories.

The interpretation of unwritten norms is fraught with difficulty, as the boundaries between the existence of a norm and the determination of its content can become blurred. Interpreters may return to the evidence of the norm’s existence in order to determine its content or it may be that interpretation itself is part of the constitutive process of unwritten norms. This confusion is exacerbated by a lack of established methods and procedures for the interpretation of unwritten international law, which includes not only custom but also general principles of law. While it is commonplace to speak of custom and general principles under the umbrella of ‘general international law’, it is unclear whether questions of interpretation are to be approached in the same manner for both categories of norms or whether custom and general principles may assist in the interpretation of one another. The central objective of this chapter is to examine the interactions between these two categories of norms in the context of interpretation. More specifically, it considers whether general principles of law may play a role in the interpretation of customary rules.

In its case law the International Court of Justice has repeatedly suggested the idea that rules of customary international law (CIL) do not operate in a vacuum but, instead, are to be understood against the background of other rules of the international legal system. This observation, although somewhat unsurprising, shows that the sources of international law exist in close interconnection – something that is also visible if one looks at the rules of interpretation contained in Article 31 of the Vienna Convention on the Law of Treaties. Accordingly, ‘any relevant rules of international law applicable in the relations between the parties’ must be taken into account, together with the context, when interpreting treaty provisions. The question addressed in this chapter is whether or not the same can be said of the interpretation of customary rules. In other words, if we look at the practice of international courts and tribunals, is it possible to reach the conclusion that CIL rules, too, must be interpreted with the cognizance of any relevant rules of international law applicable between the parties?

International law governs almost every facet of international life, from the mundane to the complex. This chapter discusses the role of international law in world politics. It begins with a discussion of the content of international law, explaining the sources of law and how we identify them. It then addresses the question of why the study of international law is foundational to the study of international relations. The chapter offers two answers to this question. First, international law is important in the study of international relations because the nature and extent of its influence are among the core debates in international relations theory. Second, the study of international law is important because law is at the heart of many international disputes today. The chapter concludes by considering two examples of ‘law in action’: the legal decision regarding Chinese activities in the South China Sea and the contemporary debate over membership of the International Criminal Court.

EU fundamental rights are autonomous EU rights but are founded on two sources: the European Union Charter of Fundamental Rights (EUCFR) and general principles of law. The EUCFR has the same legal status as the Treaties, and comprises a wide array of civil, economic, ecological, political and social rights. General principles of law comprise all the rights in the European Convention on Human Rights as well as a number of further principles: notably, equal treatment, legitimate expectations, the proportionality and precautionary principles, and general rights of defence. EU fundamental rights can be invoked to strike down EU measures but, more frequently, they guide interpretation of these measures. They can only be invoked against Member States when these implement EU law. This will be so when a national measure implements or has the same objectives as an EU law, is authorised by an EU law, or is invoked as an exception to an EU law. A number of general principles of EU law can also be invoked against private parties, notably the prohibition on discrimination, the right to effective judicial protection and the right to annual leave.

The author starts by observing that discussions about the foundations and the limits of the powers of international courts, including those of the European Court of Human Rights (hereafter ECtHR), turn around the aims of achieving legal certainty, ensuring legitimacy and justice, and avoiding conflicting obligations which may emanate from different regimes of international law. The chapter reflects on these aims from the perspective of consent as the common basis of the main sources of international law, as listed in Article 38 of the Statute of the International Court of Justice. Proceeding from the case law of the ECtHR, the chapter explores how the recent work of the International Law Commission conceives the role of consent in respect of the main sources of international law, and whether the jurisprudence of the ECtHR remains within the framework of general international law so enunciated.

The field of international arbitration has proven to be fertile in theoretical debates. This entry will identify and analyse three major debates on the theory of international arbitration, starting at different points in the past with their underlying concepts continuing to overlap to this date.

First, various authors have sought to explore the nature of arbitration – whether it is a jurisdictional phenomenon, akin to court proceedings, or a creature of contract, where the agreement of the parties would be of paramount importance.

The second debate focused on whether international arbitration has a strictly local existence or whether it is “delocalised,” allowing the arbitrator to factor in legal systems other than that of the “seat.”

This debate, in turn, led to a third debate on whether there is an arbitral legal order, independent of any individual jurisdiction taken in isolation but interacting as such with State legal orders.

The entry shows that an awareness of these debates is essential to understanding international arbitration not only as a field of practice, but also as raising key questions of a theoretical and philosophical nature.

Chapter 5 offers new insights into the drafting of the criminal responsibility rules in the Rome Statute. Specifically, the chapter argues that it would be simplistic to present the restrained approach to the assessment of criminal responsibility exhibited in the Rome Statute as the triumph of sovereign states, seeking to shield their nationals from convictions, over non-state actors, such as legal scholars, and non-governmental organizations, aiming to expand the scope of criminal responsibility provisions to enable easier convictions for the perpetrators of mass atrocities. In fact, authoritative legal experts were among the most ardent proponents of the proposal to codify in detail the general principles of criminal responsibility in the RS, instead of granting discretion to the future judges at the Court to develop the rules of criminal responsibility. From the perspective of those legal experts, the inclusion of a ‘General Part’ in the Statute marked the progress that ICL had made since its early days towards a coherent penal system. Thus, the politics of the legal field, that is, the promotion and contestations of different understandings of the law, are crucial for understanding how the principled approach to criminal responsibility became influential in Rome.

Given that modern sovereign bonds usually contain the choice of forum clause designating domestic courts to enforce the contractual terms of such instruments, sovereign immunities are among the foremost options for debtor sovereigns to forestall bondholder litigation. This study has concluded that contractual arrangements and statutory provisions on the waiver of immunities represent a fair balance between bondholders’ access to judicial remedies and respect for sovereign debt restructuring. In general, the broad waiver of jurisdictional immunity maintains the option for a holdout, whereas immunity from measures of constraint may prevent eventual enforcement against the assets held by defaulting sovereigns. Such a consequence does not unduly undermine the interests of bondholders, insofar as holdout strategies are envisaged in practice to gain leverage in a debt restructuring negotiation rather than to enforce contractual rights through litigation. In addition, an option of a stay of proceedings available in some jurisdictions may provide a basis for the courts to indirectly regulate the progress of sovereign debt restructuring by imposing and lifting a stay of proceedings.

This chapter provides an innovative analysis of the concept of legal significance of resolutions. It evaluates the common traits of state practice related to the attribution of legal significance of resolutions in relation to three contexts – at the adoption stage, within domestic law and in international practice. Subsequently, it evaluates whether it is possible to predict the presence of legal significance of resolutions by providing a critique of the existing tests of legal significance devised by scholars. It concludes by arguing that there is a significant discrepancy between the findings of this study and scholarly positions on the normative value of resolutions. The latter tend to focus on the legal significance at the adoption stage, thus underplaying the relevance of state practice as a signpost of legal significance at the implementation stage – both domestic and international.

This chapter presents the five traditional grounds for judicial review: inexistence, lack of competence, breach of an essential procedural requirement (the so-called external legality checks) and abuse of power and illegality (issues of ‘internal legality’). The chapter then explores the values which are enforced through judicial review, especially fundamental rights and principles of good administration. Section 3 explores the extent to which constitutional rights and the European Convention have taken over from the ‘general principles of law’ developed by the Conseil d’Etat as the main sources of rights protection. In relation to principles of good administration, the expansion of requirements has come mainly from legislation and government circulars, but there has been a strong influence from developments within the European Union.

This chapter examines the sources of law used by WTO adjudicators, starting with the WTO “covered agreements.” The chapter also discusses the status of other international agreements, public international law, and general principles of law, under WTO law. The chapter includes a comprehensive discussion of the issue of precedent under WTO law. The chapter also includes a detailed analysis of how the Vienna Convention on the Law of Treaties is used by WTO panels and the Appellate Body to interpret WTO law.

In this chapter I discuss the responsibility of international organizations for human rights violations as a matter of substantive law. The central rules concerning the attribution of conduct to international organizations are analyzed, as are the relevant rules on indirect responsibility (complicity). Four potential sources of human rights obligations for international organizations are also identified: the constitutions and secondary law of the organizations themselves, treaty law, customary law, and general principles of law.

In the conclusions, the book editors assess the existing national and international regulatory frameworks in the light of the five foundational principles that they identified by reading international bioethics law in conjunction with international human rights standards: (i) freedom of research; (ii) benefit sharing; (iii) solidarity; (iv) respect for dignity; and (v) the obligation to respect and to protect the rights and individual freedoms of others. Their analysis reveals four issues common to most national regulatory frameworks as well as the international framework: (i) The prohibition to create embryos for research embryos cannot be reconciled with the right to science and the rights of science; (ii) limitations to scientific freedom based on vague laws are not truly limitations “determined by law”; (iii) limitations to scientific freedom based on obsolete laws are not limitations accepted in a “democratic society”; (iv) ne plus ultra prohibitions breach the right of everyone to benefit from scientific and technological progress and the principle of benefit sharing. The editors conclude by sketching an international governance framework that promotes science and technological development while being mindful and respectful of international human rights standards, as well as the different sensitivities with which citizens from different parts of the world approach the question of human germline genome modification.