Although international legal scholars have never captured or paid attention to the epistemology of the secret at work in international legal thought of practice, the idea of secret has not been totally absent from international legal thought. For instance, international legal scholars have occasionally mobilized the idea of the hermeneutics of suspicion to describe the way in which certain scholars dismiss opponents’ arguments to be ideologically or politically motivated wrong postures as opposed to scientifically valid positions. Likewise, a lot of scholarly works have been focused on the secretive and undisclosed practices which are supposedly at work in various international legal processes. This chapter reviews these contemporary engagements by international lawyers with the idea of secret in international law.

This chapter considers the role courts play in protecting fundamental rights. It addresses three questions. What role do domestic courts play in the protection of rights in different constitutional settings? In examining key elements of constitutional design, the chapter show how there are significant variations in how courts protect rights across the world. Secondly, what role should courts play in the adjudication of rights? Here it is argued that courts in their ordinary work, applying legislation and the common law, do and must protect rights. With regard to the more contested question whether courts should protect rights under a constitutional bill of rights, the chapter argues that the case for such a role for courts is at its strongest in certain circumstances but that it cannot be claimed that in all circumstances courts should be conferred with this power. Finally, the chapter considers the current debates in the United Kingdom concerning a possible repeal of the Human Rights Act, and withdrawal from the European Convention of Human Rights, and expresses dismay at the prospect of the repeal of the Human Rights Act, given how elegantly that Act combines protection for rights by UK courts with the doctrine of parliamentary sovereignty.

How did Kant incorporate elements of natural right into his philosophical system after radically transforming the basis for philosophical claims in the Critique of Pure Reason, the Groundwork, and other related texts? I show how Kant praises certain ideas by natural law theorists while rejecting their foundations and many of their applications. Two particular areas reflect this process: Kant’s rejection of slavery and his developing work on war and international institutions for peace. Feyerabend must be understood as a stage in the development of Kant’s overarching unitary theory of right that fuses domestic and international right.

Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

Chapter 9 examines the principle of the duty of care in the context of climate litigation. The authors explore how this principle has been invoked in a growing range of jurisdictions, in different ways, to hold governments and corporations accountable for their respective contributions to climate change. By analysing judicial decisions in prominent cases such as Urgenda and Milieudefensie in the Netherlands, Neubauer in Germany, and Notre Affaire à Tous in France, the authors explore the potential of the duty of care principle to compel more ambitious climate action in pending and future cases. The emerging best practice they identify suggests a growing willingness of courts to recognise a duty of care for governments and corporations towards citizens in relation to climate change.

Chapter 12 examines how international law is interpreted and applied in climate litigation. The authors explore the interplay between international and domestic law, and how it can shape the outcomes of climate litigation. Their exploration of emerging best practice reveals a progressive trend: domestic courts are increasingly incorporating international climate obligations into their rulings. This trend not only underscores the significance of international law in shaping domestic legal responses to climate change but also amplifies the capacity of domestic legal systems to address the impacts of climate change more effectively. Moreover, the authors spotlight emerging best practices from regional and international bodies. They argue that these practices demonstrate the potency of international legal norms in influencing the trajectory of climate litigation, fostering a global legal landscape that is increasingly responsive to the climate crisis.

Chapter 8 on Extraterritoriality discusses how the cross-border nature of climate impacts is addressed within climate litigation. The author scrutinises the interpretation of ‘jurisdiction’ and related procedural and substantive issues in the context of these transboundary impacts. His analysis showcases how these legal principles and procedural rules either facilitate or constrain courts and quasi-judicial bodies in grappling meaningfully with these impacts. In his exploration of key decisions, the author unravels their implications for the global governance of climate change and the challenges and opportunities they present for transboundary climate lawsuits. He distils emerging best practices that reveal how courts and quasi-judicial bodies, through judicious interpretation of legal principles, are grappling with the global dimensions of climate change. Despite the complexities inherent in integrating extraterritorial considerations into climate litigation, the chapter posits an optimistic outlook and highlights how visionary legal reasoning can tackle these complexities in a manner that is conducive to ensuring access to justice for those most affected by climate impacts.

This chapter explores how international law and its legitimacy could be improved and made more aligned with the demands of justice. It focuses on two types of requirements. First, there are the principles and accompanying procedures on the basis of which actors ask their agency (and their rights) to be recognized by international law and its culture of legitimacy. These principles are consent, justification, accountability, consistency, representation and participation, and non-abuse of power. Second, there are the topics around which this quest for the recognition of agency (and rights) takes place. They are better universality of international law, human rights as a benchmark of the legitimacy of sovereignty, compliance/enforcement/accountability, and human rights supported by public goods. These two kinds of requirements have been at the center of the efforts to make international law more inclusive as well as more legitimate, and they need to be taken more seriously in the future.

International legitimacy established by international law is related to the fundamental principles of international law. Through these principles and their relations, international law expresses and projects legitimacy internationally. In the process, it establishes a hierarchy of rights holding and rights holders. This chapter focuses on three aspects of this situation. First, it examines the key principles or values of international law and indicates how each of them represents a form and part of legitimacy and how, as a whole, they outline an overall conception of legitimacy at the international level. Second, it analyzes the relations of compatibility, competition, and hierarchy that exist among them. Third, it shows that the fundamental principles and their relations translate into a ranking and hierarchy of rights holding and rights holders—and argues that the international top rights holder, the state, plays a central role in the changes that can affect this ranking/hierarchy.

An international authority is necessary for the features of international legitimacy—that is, international membership, rights holding, fundamental principles of international law and hierarchy of rights holding, and rightful conduct—to be identified and operationalized, to become the expression of legitimacy and legitimacy in action internationally. Since the end of World War II, the United Nations (UN) has embodied this international authority. Having been established by the will of states and the UN Charter, the UN serves as the international authority of the time, the framework in which most of the construction and evolution of international law—be it through lawmaking treaties, the resolutions of the UN Security Council, or the work of the UN General Assembly and other UN organs—has taken place since the end of World War II. In the process, it has played a central role in determining what is and is not legitimate in international life.

This chapter focuses on four aspects of a critical philosophy of international law. First, there is a paradoxical relationship between international law and philosophy, at the same time natural and a bit tense, if not conflictual. Second, the assumptions at the heart of international law are comprised of notions/values and distinctions: universal/particular, hierarchy/equality, inclusion/exclusion, self/other, and public/private. Third, these assumptions and their interactions have three major characteristics: they have a structuring power that plays a crucial role in the determination of issues of legitimacy; the assumptions are presented as true, but this quality of truth is more posited than demonstrated; the assumptions at the core of international law are not only descriptive but also prescriptive. Fourth, all of this has an impact in terms of the legitimacy of international law. The assumptions/distinctions influence the nature, organization, and practice of the building blocks of international law and its sense of legitimacy.

This chapter addresses questions concerning history and international law. First, it focuses on what traditionally has been, until relatively recently, the relationship between international law and history, including the history of international law itself. Second, this chapter reflects on the globalization of international law and its ambiguous nature and results, combining empowerment and disempowerment. In particular, it highlights that the ambiguity of the globalization of international law has been on display not only with the connection between modern international law and Western power in the context of colonization but also with decolonization since, to a large extent, after decolonization, this connection has continued in the form of neocolonization. The chapter refers as well to the ambiguity of the globalization of international law in relation to the rise of the individual as an international rights holder in the framework of international human rights. Ultimately, international law has both alienating and emancipatory effects.

This chapter concentrates on the conditions of access to and the nature of membership in the international system as established by international law—specifically, three issues. The first issue is the type of society that is presented as a legitimate collective member of the international order. One of the first steps that international law takes to determine legitimacy at the international level is to identify the criteria necessary for a collective actor to be viewed as a full-fledged legitimate member of the international community. The second issue is that after World War II and the creation of the United Nations (UN), access to international membership in the international order moved toward a form of universality that has been relatively pluralistic. The third issue is that despite this movement toward a pluralistic universality, there are limits to the universality and pluralism of international membership in the international system as defined by international law.

The introduction serves a threefold purpose. First, it aims to sensitise the reader to the all-pervasiveness of humanity in international criminal justice, more in particular in the discourse on the atrocity crimes. This part of the introduction argues that the concept of humanity provokes more questions than it is meant to solve. Second, it outlines the book’s methodology to the reader. Third, the introduction sketches the main argument of the book through an overview of the chapters.

Chapter 1 critically engages with existing academic work that either emphatically argues in favour of, or radically dismisses the appeal to humanity within international law. The important critique on the invocation of humanity notwithstanding, I argue that a concept of humanity as a collective subject, or normative community, is needed, in order to grasp what is at stake in dehumanisation.

This chapter examines Henry Stimson’s career and his rise to the pinnacle of the US government until his resignation as secretary of state in March 1933. It analyzes his background, the formation of his political views, and the creation of his foreign policy ideas as a committed member of the Republican Party. Specifically, it explores his tortuous relationship with the American empire and how he became an unbridled internationalist.