This chapter proceeds to the question of the authority of international criminal law. Although there are links between international criminal law and public international law, rooted in the treaty agreements which created the former, the partly compulsory nature of international criminal law sets it apart from other forms of public international law. Accordingly, this chapter focuses on the way in which the Rome Statute’s jurisdiction, as its primary exercise of power, and, potentially, authority are set out in the treaty and how this may affect its authority. As its jurisdictional provisions also permit the UNSC to make referrals to the Court, where a situation threatens international peace and security, the question of this power going beyond ‘typical’ jurisdictional powers is discussed in the context of power politics. This will allow an exploration of the mechanism as a legitimate exercise of power.

The final substantive discussion looks at the idea of authority rooted in both justice and rights, discussing the development of international criminal justice alongside the human rights movement, and the way in which the justification for following such rules in rooted in an understanding of the rules serving the international population, particularly those vulnerable to atrocity crimes and victims of previous crimes. It examines the implications for a theory of authority based on rights for areas such as positive complementarity and UNSC referrals, and how these areas may need to adjust to conform to an understanding of authority which supports the legitimate exercise of power in this area. As is frequently noted, the Court’s main aim is to end impunity. If this is truly the case, it should move towards a complete approach to complementarity. This completeness should involve the generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

Much has been written about the legitimacy of international criminal law and the International Criminal Court. The underlying problem of what would constitute legitimacy or authority for the Court is rarely explored. This work seeks to deal with the issue by exploring the concept of authority and seeking to provide a theory of authority of international criminal law. The overarching intention of the work is to contribute to a more focused debate on the reasons for the Court’s perceived and actual lack of legitimacy.

The work concludes by drawing together the threads of the theory of authority, demonstrating its quiet controversy and undermining its conceptualisation as an archaic aspect of jurisprudence. It is aimed to demonstrate the significant implications that a failure to adequately understand and set out the authority of institutions in international criminal law could have. The question of legitimacy is redundant should there be no exploration of authority, and thus the initial discussion, which demonstrated the link between authority and legitimacy, provided a foundation for the discussion of, effectively, whether exercises of power in international criminal law can be viewed as legitimate.

This chapter examines the role of authority in public international law, based on the preceding discussion of authority and legitimacy in the context of exercises of power. Although there is a source of power, if not authority, at the domestic level in the form of government, this does not automatically transfer to the international level. This is primarily because the international system exists without a central authority. The question automatically arises of who ought to be able to make such rules, and whether the requirement for the exercise of autonomy is still as critical as it would be at the domestic level. The discussion is based on an analysis of foundational texts, exploring the ideas of authority at the international level expounded by Grotius and Vitoria, before moving on to work by more recent authors.

This chapter begins to shape the theory of authority posited by this book, by exploring the way in which the authority of international criminal law is rooted in both justice and rights, exploring the development of international criminal justice in parallel with the human rights movement, and the way in which both have sought to serve victims of abuse. It also explores the way in which a reliance on State consent as the source of authority can undermine the authority of international criminal law. This argument is underpinned using Third World Approaches to International Law (TWAIL) scholarship, which offers the opportunity to move away from the Euro- and State-centric approach to international criminal law and encourages a greater focus on domestic prosecution. The discussion engages with what this complete approach should comprise, exploring the impact of generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

This chapter deals with an analysis of sovereignty and complementarity, including the political idea of ‘sovereignty costs,’ in which powerful actors will commit to actions which limit their power to achieve overarching aims. The exercise of complementarity in both postcolonial States and wealthy, Western States are also examined to determine whether such exercises of complementarity undermine the Court, or if these could reinforce the Court’s authority. The issue of shielding, as the protection of citizens from international prosecution through obfuscation, as a natural corollary to the preceding discussion, is then analysed, taking the examination of the situation in the UK/Iraq as a prime example. This serves as a precursor to a discussion of the examination of Afghanistan, which may confront the same issues and should be considered given that the UK/Iraq examination by the Court has now been concluded.

This chapter examines how the concept of authority relates to questions such as how law binds its subjects, and whether certain rules ought to be followed. This is important at all levels of rule-making, but particularly so in respect of domestic criminal law, because of the way in which criminal law requires individuals to adhere to a certain level of conduct. These restrictions, such as they are, have a direct impact on individual autonomy with the aim of protecting the vulnerable and securing society in respect of crimes against the person. Although it is acknowledged that criminal law regulates a variety of conduct, the focus here is on crimes against the person because of its relevance to much of the conduct proscribed under international criminal law.

The Islamic Republic relies on a number of distinct but related institutional clusters to maintain power. This include the institutional means through which the state politically incorporates social groups into its orbit; institutional mechanisms of control; a number of “veto players”; those institutions that help maintain the system; the deep state; intra-elite competition; and, patronage and clientelism.

The legislature has been one of the central institutions in the UK’s constitutional history, a forum in which major political events occurred and decisions were taken. The legislature projects constitutional values: its practice is based on the significance of representation, accountability, transparency, deliberation, contestation, and collective action. Moreover, the UK Parliament is the focus of the fundamental norm around which the constitution is structured.

There is a direct and important relationship between elections, clientelism, and the system’s legitimacy. Urban Iranians may be skeptical toward the efficacy of their vote. But rural Iranians seem to view their electoral rights differently. The fact that participation levels in remote and comparatively underdeveloped provinces has been consistently high shows that at least among the less privileged, the system enjoys continued legitimacy. Local elections help further enhance the system’s legitimacy. This is particularly the case in voting districts outside of the major metropolitan areas, in places where the local elites who get elected to the city council or the Majles serve as critical links between the system, the nezam, and the local population. In the smaller cities and towns, elections tend to be more vigorously contested because the rewards are more immediate. Legitimacy and system effectiveness are different matters altogether. One of the biggest consequences of electing clan and tribal leaders has been the apolitical marginalization of technocrats and other professionals and their diminished chance of getting into elected office.

Readers of this chapter might be left with doubts whether England had a constitution in the fifteenth century and whether, if there was one, it underwent any significant change over the century. Difficulties in governing the realm, ambiguities about power and authority, and a fundamental lack of consensus about what constituted and who had a legitimate right to rule persisted from the opening years of the period through to its end. The only notable progress recounted here was in procedures and practices in parliament. This difficult century left England with a hunger for new assertions of power and authority in the succeeding one.1

The desire to end privilege and exploitation and to reconstitute society as a community of equals runs through Britain’s history, from the Peasants’ Revolt (and with little doubt from earlier than that) to modern times. The uprising which for a few weeks in the summer of 1381 set the south-east of England ablaze was a direct challenge to a system which was now piling upon feudal rents the taxes – above all the poll tax – demanded by an increasingly centralised state. The rebels’ immediate political objectives were limited.

The International Organization for Standardization (ISO) has grown to become one of the world’s most influential standard developing organizations since its creation in 1947. This chapter examines empirically the evolution and resilience of ISO, in relation to crisis. It departs from the assumption that ISO’s evolution can be explained in relation to its ability to respond and adjust to dynamics and relating challenges in its environment. ISO has experienced rapid transformation especially during crisis moments posing a threat or risk to the organization. First, this chapter provides an illustrative example of a crisis moment that originated from the needs of ISO members from developing countries, identifying its drivers and ISO’s responses and adaptations. It then illuminates certain traits that confer resilience onto the organization, how ISO has acquired or built these traits during crisis moments, and their cultivation over time. This chapter finds that ISO over the decades through strategies and meeting challenges has grown stronger and more influential, also in relation to the state.

Transnational private regulation poses distinct questions of coherence and legitimacy within the international legal order. Regretfully, international legal scholarship is not sufficiently concerned with the interplay between public and private authority in spite of the proliferation of the latter. This contribution critically studies this interaction while zooming in on the dynamics of standard-setting through two case studies: the growing need for coherence and legitimacy of global food safety standards, and the growing (security) concerns for regulatory capture in the critical standard-setting domain of international communication within the International Telecommunication Union. Focusing in particular on international trade law rules such as those applying to sanitary, phytosanitary and technical barriers to trade, but also on those at the regional level such as in the EU, the contribution studies how democratic accountability and legitimacy of transnational private rule-makers is enhanced both ex ante as well as ex post though forms of recognition.

The global anti-doping regime is a hybrid regime operating as part of the global system of sports governance. This chapter analyses the accountability puzzle surrounding its specific hybrid constellation and the regime’s accountability response to a scandal from 2015, which exposed the Russian large-scale doping scheme. The analysis shows that, in the five years’ period following the scandal, the regime did not fully ignore calls to demonstrate accountability, yet its responses have been protracted and partial. Sanctioning or performance evaluation forums, which are said to be a defining feature of accountability relationships, have not been introduced, although the regime has adopted some structural changes that have dispelled prior conflicts of interests and system dysfunctions. Legitimacy pressures led to some functional improvements within the regime, although their power to enhance the accountability framework was limited. Our case indicates that a ’favourable’ political economy, where stakeholders have neither formal ’voice’ nor exit options, can afford leverage to a private regime owner to direct legitimacy pressures towards solutions that do not structurally diminish its power over the other actors in the regime.

The future of ISDS is at a historic crossroads. In this final chapter we provide an overview of the ISDS reform process in the UNCITRAL and discuss the EU proposal for a Multilateral Investment Court in the context of this reform. First, we contextualise the current ISDS reform against earlier attempts to negotiate multilateral international investment agreements to explain how the current reform is different. Second, we discuss the scope of the reform and its process in the framework of UNCITRAL, particularly focusing on the identified ISDS concerns. Third, we outline the reform options that have emerged in the discussion and explain their correlation to the EU’s MIC proposal. In the final part of this chapter, we consider the potential contributions that an MIC could make to the rule of law and the legitimacy of international investment law. While the negotiations are set to conclude in 2025, the aim of this chapter is to place the EU’s proposal in the broader ISDS reform context and reflect on its external challenges in this reform process.

In this final chapter of Part II, we analyse the key legal issues related to the allocation of international investment competence within the EU and examine their implications for policy efficiency and choices in external EU trade and investment relations. Following the Lisbon Treaty of 2009, the EU has gained competence for international investment treaty-making, which previously fell within the scope of the Member States’ competence. Given the relevance of international investment for the EU, on the one hand, and the cross-cutting nature of investment within the range of domestic policy areas on the other, the exercise of competences relating to foreign investment has been surrounded by controversies. Importantly, treaty-making procedure in the EU is not a matter of political inter-institutional preference but it is defined by the delineation of competences, grounded in primary law. The focus of our analysis in this chapter is placed on the internal EU institutional framework regarding competences between the EU and its Member States for investment and the conclusion of EU international investment agreements, and the role of the CJEU in defining the scope of EU policy. The content of EU international investment policy is then analysed in Part III.