Abstract
It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.
Highlights
Two conceptions of the law’s appropriate content and justification have polarized the debate on the normative foundations of the post-war international legal order in recent years
It is widely acknowledged that human rights law and international criminal law share core normative features
With a view to bring the debate forward, I turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs
Summary
Two conceptions of the law’s appropriate content and justification have polarized the debate on the normative foundations of the post-war international legal order in recent years. The moral/political distinction concerns a sub-set of rights/ wrongs that is subject to an extra-territorial regime, that is, a regime that confers jurisdiction to ICs for the adjudication and/or enforcement of those norms In this sense, ‘‘moral’’ and ‘‘political’’ concern the ultimate reasons for upholding this particular regime, rather than the archetypal function that those two bodies of law operate across the domestic/international divide. The political approach, in contrast, focuses on the principled role of public authorities and the conditions of their legitimate rule over individuals This view is more attentive both to the preeminence of pluralism and disagreement in law and politics and to the fact that states hold primary responsibility for upholding those norms.
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