Chapter 3 focuses on the ECtHRs general principles concerning ECHR Article 9 in its jurisprudence. It contends that the ECtHR recognises the forum internum and forum externum relationship, intuitively understanding that, because actions flow from the forum internum, the forum internum is always relevant to some degree in Article 9 cases. As such, this chapter recommends conceptualising the forum internum and forum externum aspects of the right on a continuum. Whilst, this chapter argues, forum internum relevance is the principal factor weighing in favour of the applicant, it contends that it is not the only factor the ECtHR takes into consideration in Article 9 cases; the ECtHR balances in all Article 9 cases, weighing up factors pointing to a violation of Article 9 (primarily, but not forum internum relevance) with countervailing factors pointing away from a violation, to reach its decision. Given the ECtHR offers a range of protection as a result, this chapter suggests that a useful way of grouping Article 9 cases for analysis is a loose concentric circles model, comprising three circles, as this better reflects the ECtHR jurisprudence than a binary and hierarchical framework.

This chapter discusses how international alw is made, and how it can be iendtified

This chapter expands on the concept of reciprocity, looking at how it can be defined, its key characteristics, and the three key functions it plays: in norm creation, as a condition, and in execution of the law. It examines the defining elements of reciprocity: proportionality, relativity, equality, and interdependence. The chapter goes on to examine the nature of reciprocity, and its relationship to custom and general principles, two sources of international law. It illustrates how it is reciprocity’s relationship with the structural characteristic of sovereign equality in international law that explains many of its roles and defining characteristics.

This chapter provides a critical history of international environmental law. It suggests that the ideologies at the heart of international law and international environmental law projects cannot protect the environment. First, the chapter considers the influence of classical liberalism on the conception of nature in international law prior to World War II, especially in the context of fisheries. Then, the chapter turns to emerging environmental issues after World War II, when international law was concerned with marine pollution. During this period, international law took a welfarist approach to environmental problems, but with no substantial change to a liberalist conception of nature. Thereafter, international environmental law as a distinct branch emerged in the 1970s. This new branch remains rooted in liberal principles, but is also influenced by neoliberalism, as reflected in its general principles and marketised approach to problems such as climate change and biodiversity protection. As international environmental law has failed to provide solutions to the problems for which it was enacted, the conclusion calls for an ideological rethinking of founding principles.

The law of responsibility has been subject to massive change over the past centuries. While in key areas such change is well-established in the form of customary law or general principles, for particular transformations the process of change is more difficult to pin down. Major examples are the transition from a private to a public law model and from independent to shared responsibility, where the depth and scope of change and its support in practice remains uncertain. The author argues that the normal rules for determination of change in international law, reflected in the sources of international law, are not always helpful for determining change in the law of responsibility. To understand such change, it is helpful to distinguish change in secondary rules from change in primary rules (substantive rights and obligations) and tertiary rules (procedures and institutional rules for implementing responsibility). Change in the law of responsibility is to some extent driven by prior changes in primary rules, but it is also argued that secondary rules have a logic and justification that is to some extent independent from primary rules.

The capital-exporting states of the North Atlantic long insisted that the standards of civilised justice mandated that capital-importing states respect the property rights of their nationals engaged in commercial enterprise abroad. Only a single North Atlantic conception of civilisation qualified to provide content for this purported international standard, even as that content was contested by capital-importing states from the Global South. This chapter turns to a methodology that is dominant in investment law scholarship that operates to produce an outcome functionally equivalent to the standards of civilized justice. International investment lawyers and scholars, it is argued, deploy simplistic comparative methodologies that reproduce historic domination by powerful capital-exporting states. The choice of country models is highly selective and productively so. By preferring to conscript the easily retrievable law of the Global North into general principles of international law, scholars reinforce extant power relations rather than realigning them in new directions.

This chapter begins by explaining why international lawyers typically begin discussions about the sources of public international law by referencing Article 38 of the Statute of the International Court of Justice (ICJ). It then introduces treaties and custom, which are the two main sources of law in this field, before discussing other sources, namely general principles of law, decisions of international organizations, unilateral declarations, as well as judicial decisions and the teachings of international legal experts. The chapter ends with a discussion of non-binding instruments, which do not contain binding legal rules, but are nonetheless significant in the international legal field, as they contain norms that impact the behavior of states.

This chapter begins by explaining why international lawyers typically begin discussions about the sources of public international law by referencing Article 38 of the Statute of the International Court of Justice (ICJ). It then introduces treaties and custom, which are the two main sources of law in this field, before discussing other sources, namely general principles of law, decisions of international organizations, unilateral declarations, as well as judicial decisions and the teachings of international legal experts. The chapter ends with a discussion of non-binding instruments, which do not contain binding legal rules, but are nonetheless significant in the international legal field, as they contain norms that impact the behavior of states.

This chapter explores the foundations of due diligence under international law. Due diligence emerged in the international practice of the nineteenth century concerning diplomatic protection and the security of states, and developed as a notion linked to the responsibility of states in connection with acts of private individuals. For a long time, due diligence was conceived as a concept pertaining to the realm of international responsibility and it was primarily associated with the measure of a state organ’s fault. The chapter illustrates how, during the twentieth century, due diligence migrated from the realm of secondary rules to primary rules. The chapter clarifies the relationship between due diligence and overlapping concepts, like international liability and the notion of general principles of international law. It is argued that due diligence should be construed as an identifier for a typology of international obligations, something that provides meaning and rationale to them. The chapter concludes by clarifying the difference between due diligence as a ‘qualifier’ for primary rules of states, and due diligence as a ‘process’ linked to the activities of non-state actors.

This chapter discusses how international law is made, and how it can be identified

The Politis/Lauterpacht project foundered both on academic rejection and (above all) the jealousy of states with regard to their sovereignty. The pragmatic alternative was first described by Kiss in a remarkable doctoral thesis in 1953, prefaced by five incisive words by Bastid, his supervisor: ‘it [abuse of right] should not be taken literally’. In this more modest conception, the prevention of abuse of right (which no one will dispute as an abstract proposition) is recognized as a general policy goal, requiring the hard work of negotiating contextually meaningful criteria as lex specialis. This reasonable retrenchment is informed by the understanding that avoiding abuse of rights on the international plane requires the accommodation of concurrent rights which may naturally generate competing claims. This process does not call for the assignment of moral blame, and cannot succeed as intuitive projections of the phrase ‘abuse of right’.

This chapter sets out the importance of a children’s rights focused inquiry into the human rights obligation of business enterprises by drawing insights from various disciplines, including philosophy, psychology, sociology and medical sciences. It sets out childhood as a stage of rapid development, the disproportionate and different effects of harms during childhood and children’s rights as a remedy to children’s invisibility, lack of public voice and consultation. The characteristics of a children’s rights focus for businesses as human rights duty-bearers are sketched out and linked to the so-called general principles of children’s rights.

Chapter 3 examines the negotiation process that lead to the adoption of the CRPD and provides a general overview of the innovative features of the Convention. It critically discusses the structure and core substantive rights of the CRPD, as well as its general obligations and general principles. In addition to analysing the role played by data collection and international cooperation in advancing disability rights, the chapter examines the role of the CRPD Committee in protecting and promoting the rights of persons with disabilities and in enhancing compliance with the CRPD globally. The chapter also explores the national monitoring and implementation system provided for in the Convention, including the role of the focal point and coordination mechanism. Finally, the role of bodies such as the UN Human Rights Council, the Office of the High Commissioner for Human Rights and the Special Rapporteur on the Rights of Persons with Disabilities in advancing the implementation of the CRPD are briefly discussed.

Chapter 3 examines the negotiation process that lead to the adoption of the CRPD and provides a general overview of the innovative features of the Convention. It critically discusses the structure and core substantive rights of the CRPD, as well as its general obligations and general principles. In addition to analysing the role played by data collection and international cooperation in advancing disability rights, the chapter examines the role of the CRPD Committee in protecting and promoting the rights of persons with disabilities and in enhancing compliance with the CRPD globally. The chapter also explores the national monitoring and implementation system provided for in the Convention, including the role of the focal point and coordination mechanism. Finally, the role of bodies such as the UN Human Rights Council, the Office of the High Commissioner for Human Rights and the Special Rapporteur on the Rights of Persons with Disabilities in advancing the implementation of the CRPD are briefly discussed.