This chapter explores third-party mediation and peacekeeping. Mediation, along with arbitration and adjudication, is a form of peacemaking. Peacekeeping means maintaining durable peace after conflict has ended. The UN is one of several kinds of actors that engage in peacekeeping missions. They leverage the costs belligerents would pay if they return to war, provide information, reduce uncertainty, and provide political cover to facilitate political concessions. Also discussed in the chapter are peacebuilding efforts, including developing the proper political, legal, social and economic infrastructure to stabilize the security environment. Challenges for third parties seeking to engage successfully in peacekeeping and peacemaking include the difficulties they face in providing long-term incentives for peace, the possibility of distorting information flows such that peace is less stable, and being sensitive to local contexts. The chapter applies many of its concepts to a quantitative study of the causes of peacekeeper sexual exploitation and abuse, and a case study of third-party involvement during the conflicts in the Great Lakes region of Africa in the 1990s and 2000s.

This chapter examines the institutional context of the Court. It focuses first on the Court’s function as a court, i.e. as the principal judicial organ of the United Nations. It then considers the Court’s relations with States, as an international court. Finally, he considers the Court’s institutional grounding as an organ of the United Nations, and examines its relationship with the United Nations. Professor Ginsburg argues that there is a gap between the Court’s formal institutional structures and its actual operation in practice, and emphasises in particular the way in which the Court has taken a central role in the development of international law.

A growing sociological and empirical literature focuses on lawyers as part of the globalization and transnationalization of law. Sociological approaches treat arbitration tribunals as embedded in society and arbitral awards as the product of a network of actors. A common creed of peaceful international dispute settlement binds together these actors. Arbitral tribunals are institutions that develop specific institutional and legal rationalities. This chapter draws together the existing scholarship on arbitrator behaviour with the aim of identifying gaps. Section II surveys the theoretical contributions on the sociology of international arbitrators. Section III surveys empirical studies on arbitrators.

The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize the government’s interest. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.

The idea of determinatio – first identified and analysed in natural law theory – is crucial for understanding international human rights adjudication. Human rights, as they appear formulated in international human rights treatises and declarations, require specification, implementation, concretisation, i.e., determinatio, at the domestic level. I argue that there are good reasons for this to be so. One such reason is that determinatio allows for the application of a norm to be sensitive to the particular circumstances in which it takes place. Determinatio entails deference in human rights adjudication, the latter being the legal consequence of the reasonable space for discretion granted to states which is entailed by determiatio in international human rights law. Close attention to determinatio allows us to see well-known doctrines of deference (such as the doctrine of the margin of appreciation, of regional consensus and of incrementalism) in a different light—not as concessions to state sovereignty, but as grounded on reasons internal to the legal practice of human rights law, of which determinatio is an integral part.

Proportionality has been a recurrent method of adjudication in the Inter-American Human Rights System in different types of cases – mainly, in cases of limitations of human rights and in cases of equality and nondiscrimination. This chapter focuses on the use of proportionality by the Inter-American Court in the second group of cases. First, the chapter addresses the complexity of equality and nondiscrimination positive provisions, with specific emphasis on the formulas employed by the American Convention on Human Rights. Second, it discusses the type of cases in which proportionality is useful and serves its purpose of narrowing discretion in the adjudication of equality and nondiscrimination provisions, which are those involving direct discrimination. It also presents reasons to be skeptical about the usefulness and appropriateness of proportionality in the adjudication of other types of cases, specifically those dealing with covert and indirect discrimination. The analysis also discusses the potential use of proportionality in other cases related to the substantive dimension of equality and nondiscrimination.

Chapter 7 provides an overview of the international law scene in China during the 1920s and, in particular, the new phenomenon of continuous representation at key international organizations and international law settings, including the role of China’s diplomats at the League of Nations, its first international judge, Wang Chonghui, and its first members of the Institut de Droit International and other bodies of elite international law professionals. At the same time, the chapter examines the new emergence of major contesting ideologies and schools of thought regarding international order and international law – competing internationalisms.

This introduction lays out the context, scope, theoretical framework, core arguments and structure of the study. It problematises the focus on synergies between environmental protection and human rights in existing literature, and emphasises the importance of retrieving, exploring and critically unpacking the conflicts that underpin this relationship. The analysis introduces the central interrogation of the book: how environmental protection laws can collide with human rights concerns, and how regional human rights courts balance individual or collective human rights against the interest in environmental protection, when environmental protection and human rights collide. Several sub-questions unfold from this main interrogation. How do regional human rights courts address, conceive of and frame conflicts with environmental laws, many of which include considerations that are part and parcel of existing human rights? Which conflict-management techniques and argumentative strategies do they employ to settle such trade-offs? And what does this tell us about how the environment is represented, and how its protection is legally justified in relation to human concerns? The summary of the main findings of the book lay bare the importance of the project, the gaps it aims to fill, and how these novel insights reconfigure the relationship between environmental protection and human rights.

This concluding chapter summarises the main arguments and findings of the book. It reflects on the multiple rationales and ideals that were mobilised over time to protect the environment, and translates this protection into an actionable legal framework. It examines the motivations and aims invoked to this end and explores what implications the gradual association of environmental protection with human rights in regional human rights jurisprudence had for the representation of the environment and its relation to human concerns. How are environmental concerns conceptualised, consolidated and contested by human rights courts? Which representations of human and non-human relations lie encoded in the ‘universalisation strategies’ that the book reveals? And what are the political effects of the adoption of environmental concerns in the lexicon of human rights? The conclusion interrogates the world-making effects that the articulation of environmental protection in a human rights register generates and questions the latter’s suitability for radical environmental politics in the Anthropocene. Overall, the book informs us about the management of legal conflicts by courts, the strategies they develop to justify their outcomes and the performative role they play in shaping our understanding of the environment–human rights interface.

This chapter examines Supreme People’s Court (SPC)’s judicial interpretation, which has been formally legalized as a source of law for adjudication, as well as its relationship with various other statutes in China’s legislative system. It points out that the inner logic of China’s legislation with different hierarchical status, as distinct from those of democratically elected parliamentary systems, is determined by the de facto distribution of legislative power within its authoritarian regime, where the SPC has become a significant player in exercising legislative power in a way that has largely evolved beyond its constitutional settings. In particular, it investigates the unique inner logic of SPC’s judicial interpretations, which have become a de facto primary source of law for adjudication in practice.

This chapter explores the unique function and role of judicial documents – a significant form of informal state law, as distinguished from formal statutory laws – in China’s legislative enterprise. In particular, it examines why and how, with no explicit statutory delegation, the judicial lawmaking practice of producing judicial documents has become embedded in the adjudication of China’s courts. It accordingly proposes a twilight theory of China’s judicial documents that explains why the practice of judicial lawmaking through producing documents exists in a twilight zone between legal and illegal and is suitable for China’s politically resilient authoritarian regime. Moreover, it demonstrates how the judicial document can be referred to effectively by judges in adjudication. It further investigates the extent to which the judicial document has enabled the court, under the dual leadership of the superior court and the local Party committee, to efficiently and effectively respond to the subnational diversity and the differences of local politics.

Eventually, the first cases before the ICC and the ECCC reached the adjudication stage. Based on a review of the court’s voluminous legal records and in-depth interviews with those involved, this chapter identifies the ICC’s main adjudicative practices regarding reparations. The goal is to understand how reparations were conceived through these practices, and how these practices shaped the reparations outcomes decided by the judges. Chapter 6 examines the first two reparations cases before the ICC, namely the cases concerning Thomas Lubanga and Germain Katanga. In 2012, the ICC delivered its first reparations decision in Lubanga. This decision was amended by the ICC Appeals Chamber in 2015. The account ends with a second reparations decision by the Appeal Chamber in 2019. The second ICC case to reach the reparations phase was Katanga, where a reparations order at first instance was rendered in 2017 and an appeals judgment in 2018.

This chapter explores the ECCC’s adjudicative practices regarding reparations. Distinct features of the ECCC are that its judges are based in the country where the crimes occurred and that they appear both as lawmakers, at least in relation to their procedural rules, and adjudicators of these laws. This chapter examines the ECCC’s adjudicative practices in Cases 001 and 002, the latter being tried in two separate sub-trials (Cases 002/01 and 002/02). After observing that their original framework did not deliver tangible reparations to civil parties in Case 001, judges amended the Internal Rules. My examination of the experience in Case 002 provides an account of how this experiment worked out in practice. ECCC judges were ultimately more socially responsive in their decision-making on reparations than their colleagues at the ICC. Yet, the practices they adopted eventually put into question the remedial nature of the reparations awards.

This chapter begins by elaborating on the concept of a dispute, before providing a historical perspective on the evolution of the requirement to settle disputes peacefully. The chapter then explores diplomatic as well as legal methods of dispute settlement. Diplomatic forms of dispute settlement (also known as political or non-legal forms of dispute settlement) include negotiation, mediation, inquiry, and conciliation. Legal forms of dispute settlement include arbitration and adjudication. Resort by states to dispute settlement procedures, and in particular legal methods of dispute settlement, has grown exponentially in the last decades. Since the 1990s, the International Court of Justice has had an increasingly active docket of cases, and, in addition, the Permanent Court of Arbitration has undergone a sort of renaissance. The focus of this chapter will be on the settlement of inter-state disputes, as opposed to disputes between states and non-state actors or between non-state actors.

This chapter ventures into defining the Islamic legal tradition, its main characteristics as a legal tradition. Three main themes shed light on the nature of Islamic law historically. These themes are (1) legal pluralism, (2) legal determinacy, and (3) legal reform. While defining a tradition is hampered by its pluralism, legal determinacy allows for some stability and a better attempt at definition. I argue that in our conceptualization of the Islamic legal tradition we must incorporate the practice of law in the work of judges, rather than narrowly focusing on the black-letter discourse of jurists. It is this interaction, which is captured in several legal genres, that creates a stable legal system. In addition to the realist nature of this approach, it also promises to open up new possibilities for legal reform.

Transparency is central in current policy debates about international law. One sees it being waved as a flag or wielded as a sword in debates on the legitimacy of international institutions and their role in global governance. Its proponents talk about ‘sunlight being the best disinfectant’, while its opponents see it as changing modern diplomacy. Due to their crucial role in gatekeeping international commitments, these debates have also touched on the issue of transparency in international adjudicating bodies. This has led to fruitful legal and normative analysis of the state of the art of transparency in international courts. This chapter attempts to contribute to these debates by assessing three understudied aspects of transparency in the international adjudication debate. Firstly, adding to the previous literature, this chapter attempts to make a different, though cumulative, case for why transparency in international adjudication matters. It does so by showing how most theories of compliance with international law as well as theories of compliance with international legal rulings are very much information-dependent. If one takes the step of accepting that more transparency leads to more information, then whether or not a dispute is open to the general public becomes relevant for reasons beyond its normative value. It also becomes a question of compliance. Secondly, in line with previous literature on the topic, this chapter provides a theoretically informed survey of the design of procedural rules associated with transparency at the main global adjudicating bodies. Specifically, it does so by assessing design features, which are expected to impact transparency outcomes: whether the rule is mandatory or a default-rule, status quo option; agenda-setters and the scope for possible shifts from the status quo; and the number of veto-players. Finally, the chapter goes beyond the rules of international adjudicating bodies and assesses transparency outcomes in 1,248 disputes at eight major adjudicating bodies across several issue areas. Using online disclosures by international adjudicating bodies as an empirical case study, this chapter provides a novel and comprehensive map of de facto transparency in international disputes. By doing so, it shows that rule-based assessments of how transparent an international adjudicating body is may be misleading.