Chapter 5 delves into three additional cases of treaty interpretation by the human rights treaty bodies. The aim of the chapter is to probe the plausibility of the TLC concept across the human rights regime. I use insights and findings gathered from the drafting process of GC No. 15 to articulate a typology that distinguishes the treaty bodies by their likelihood to need external input when drafting GCs. Drawing on a combination of data – documents and existing scholarship, as well as interviews and personal observations – the case studies ultimately demonstrate the TLC concept to be applicable to drafting processes in other treaty bodies, even where their formation is less likely.

With its November 2002 adoption, General Comment (GC) No. 15 on the Right to Water of the ICESCR provided an authoritative base upon which states could better implement their obligations, and individuals and communities could more effectively advocate for the fulfillment of their right to water – and, in doing so, closed a significant gap in human rights law. This chapter forms the book’s empirical entry point into the TLC in practice by showing one such coalition as this story’s protagonist. More specifically, the chapter draws on novel data sources from interviews, background talks, and archival research to reconstruct GC No. 15’s drafting process – telling the story of how water became a human right – to ultimately unearth the TLC and the various aspects of its lawmaking agency in a specific case. Shown with an insular drafting core that both coalesces around a single CESCR member and comprises a select few non-UN technical and legal experts who become involved with great autonomy, the TLC detailed here contours the theoretical expectations advanced in the preceding chapter.

This chapter examines the conditions under which international tribunals may issue orders for interim measures in contentious cases in order to preserve the parties’ respective rights pending final judgment on the merits of the case. It contends that tribunals influence one another in their practice. The chapter first considers whether international tribunals can be categorised as international organisations. It starts by examining relevant jurisprudence of the International Criminal Court (ICC) which has explicitly addressed this issue and affirmed its institutional nature. Although it is not competent to entertain disputes which involve states, the view expounded by the ICC is applicable mutatis mutandis to other international courts and tribunals. Drawing on Eli Lauterpacht’s notions of cross-fertilisation and parallel instances, and employing principles of international institutional law, primarily maxims of constitutional interpretation and the doctrine of functionalism, this chapter then addresses whether these in themselves provide a foundation for a general claim that interim measures orders are binding and impose obligations on the parties to which they are addressed. This involves a close analysis of the LaGrand case. The underpinning premise is that if international tribunals are conceived as international organisations, they have a degree of autonomy in determining the parameters of their competence which is detached from the intentions of their authors. The chapter then turns to the influence exerted by the International Court’s practice concerning interim measures on that of other international tribunals in matters such as the requirements of urgency and irreparable prejudice as prerequisites for the indication of measures. It concludes by noting that this process is dynamic as developments in the practice of one court may be received by others. This is illustrated by the adoption of the notion of ‘plausibility’ by international tribunals once this criterion had been enunciated by the International Court of Justice. As a parting shot, possible normative bases for this exchange of practice are briefly canvassed.

Emanuel Adler’s 1997 article ‘Seizing the Middle Ground: Constructivism in World Politics’ is the most highly cited effort to position constructivism on a terrain between the dominant mainstream theories of neorealism and neoliberalism and their critical theoretic challengers. More than this, it is a constellation point for ideas Adler had advanced in earlier writings, and that he would develop to great effect over the coming two decades, most notably in his magnum opus, A Social Theory of Cognitive Evolution (Cambridge: Cambridge University Press, 2018). This chapter explores the difficulties of holding the middle ground through a reading of Emanuel’s writings over the past three decades. I draw a distinction between two different approaches to seizing the middle ground, which I term, for want of better words, singular and dualist. The former, as part one details, is found in Martin Wight’s tripartite distinction between realism, rationalism, and revolutionism. This distinction is noteworthy because it is at once a typology of different ontological positions, arraying theories with very different assumptions about the nature of the political universe, and a classification of different views of the potential for normative change, or progress. The second, dualist approach separates questions of ontology from those of progress, imagining two middle grounds. Exemplified in Alder’s work, the first middle ground is between the ideal and the material and the individual and structural. But when Adler discusses progress, which is a prominent and enduring theme in his work, he introduces a second, less remarked upon, middle ground. In his early work he called this position ‘humanist realism’, locating it between stasis, on the one hand, and utopianism, on the other. The difficulties of holding the middle ground in singular approaches is apparent in Hedley Bull’s constant back and forth over the relative priority of the values of order and justice, a relationship central to rationalism’s location between realism and revolutionism. The difficulties of the dualist approach are evident in Emanuel’s shifting reconciliations between his two middle grounds. In his early work, reconciliation was to come through a condominium between constructivism and communitarian normative theory. In his most recent work, it comes through the concept of practice. Neither of these reconciliations are entirely satisfactory, however, and I conclude by suggesting three possible ways of better combining the ontological and the normative.

The role of the judge ad hoc at the International Court of Justice (ICJ or Court) has historical origins in the practice of interstate arbitration tribunals in the 18th and 19th centuries. The drafters of the Statute of the Permanent Court of International Justice (PCIJ), after some debate, provided for party-appointed decision-makers when they designed the first permanent judicial body, and the drafters of the Statute of the International Court of Justice retained this feature, essentially unaltered. This phenomenon has generated occasional commentary about why the role of the judge ad hoc exists in the first place, given the importance of the impartiality and independence of the bench. This chapter aims to contribute to this body of scholarship by re-examining the rationales behind the role of the judge ad hoc, in light of empirical data about how often they are appointed, who they are, and what they do while serving on the bench. In transplanting the role of the judge ad hoc from interstate arbitration, the drafters of the PCIJ articulated a range of rationales that have been continuously reiterated over the last century by commentators and ICJ judges. The data, however, provide only limited support for the various rationales that have been articulated, with the result that the vision of the drafters of the PCIJ Statute does not entirely match the reality of today’s judges ad hoc. The data suggest that judges ad hoc appear to act as intermediaries between the Court and their appointing parties, but to a more limited extent than has commonly been thought. The notion that judges ad hoc help to ensure that the parties’ arguments are fully understood by the rest of the bench is, in particular, not entirely persuasive. Furthermore, while it is possible that judges ad hoc contribute to the confidence that disputing parties have in the ICJ as an institution, and thus the Court’s sociological legitimacy, this is yet to be proven on an empirical level (and falls beyond the scope of this chapter). The role of the judge ad hoc may be best understood as a historical anomaly that apparently still holds value for litigating parties, however limited or symbolic this value might be.

This chapter discusses the appropriate types of expertise that should be available in the composition of international courts. The main argument is that the international bench needs to include judges with diverse and specialised expertise. For this reason, the concept ‘competence in international law’ as a statutory requirement for nomination and election of judges can be construed broadly, seeking out individuals who not only have recognised competence in international law sensu stricto but also strong complementary knowledge in specialised area(s) of international law relevant to a given court’s judicial work. Judges who are conversant with both general and special aspects and areas of international law are well placed to navigate the complexity and density of international law entrenched in disputes submitted for international adjudication. The first part of the discussion engages with the idea that general international courts value expertise of judges in specialised areas of international law and that specialised international courts value judges with competence in international law. Existing statutory election requirements can accommodate this suggestion. The second part of the discussion explores the detailed expertise requirements incorporated in the statutes of certain, new international courts. Novel developments suggest a turn towards favouring and quantifying required expertise in different areas of international law when deciding the overall composition of a court.

Under the United Nations Convention on the Law of the Sea (UNCLOS), four tribunals are provided to interpret and apply the Convention. When it was concluded, the enumeration of the four tribunals, including permanent courts such as the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS), was said to lead to the risk of fragmentation of UNCLOS. However, so far, they seem to have successfully avoided such risk by interpreting and applying the Convention harmoniously, in other words, through the harmonised operation of UNCLOS. Meanwhile, the fact that the operation of UNCLOS is still at an early stage should be noted. The more cases these tribunals handle, the more flexibility they lose. This loss of flexibility may become a new cause of fragmentation of UNCLOS, because if each tribunal is bound by its own case law and adheres to it, it becomes difficult for each tribunal to take into account the decisions of other tribunals and operate UNCLOS uniformly. Against this background, this chapter contrasts the practice of courts and tribunals established under the UNCLOS in relation to cross-fertilisation and consistency in legal findings. This chapter also discusses how harmonised operation of UNCLOS can be reconciled with differences in the practice of the UNCLOS tribunals.

Interstate dispute settlement authorities (IDSAs) require administration by means of so-called registries or secretariats. These entities are entrusted with tasks that help the respective IDSA in discharging its function as a judiciary. A comparative analysis of selected IDSAs’ Statutes and Rules of Procedure reveals that the tasks assigned to registries or secretariats are not uniform for all IDSAs. There rather exist two different modes of work, with one being exclusively administrative and the other being supplementary consultative. This chapter sheds light on the origins of the consultative mode of work in the IDSAs’ Statutes and Rules of Procedure. It is argued that adjudication through dispute settlement requires legal and non-legal information to be processed by some means of information management within the course of court proceedings. Pre-judicial proceedings encompass joint information management by the disputing parties before adjudication takes place. In this case, IDSAs’ registries’ and secretariats’ statutory rules prescribe only an administrative mode of work. In contrast, for IDSAs in which pre-judicial proceedings are not foreseen, information management needs to take place in the course of court proceedings and hence is conducted by the respective judiciary. This information management is carried out in cooperation with their secretariats or registries. In this case, IDSAs’ registries’ or secretariats’ statutory rules prescribe a consultative mode of work. A correlation between the existence of pre-judicial proceedings and the absence of respective registries’ or secretariats’ consultative modes of work is deduced from a comparison of eight different IDSAs. In conclusion, positive aspects of joint information management by the disputing parties are highlighted and best-practice examples for the integration of joint information management by disputing parties for ISDAs which do not foresee pre-judicial proceedings are indicated.

As has been widely acknowledged and documented, there has been an impressive increase in interstate litigation over the past decade. More than ever, international courts and tribunals are being regularly engaged by a wide array of states, from north and south, seeking peaceful and authoritative resolution of their disputes. These disputes include disparate subject-matters including but not limited to armed conflict, land and maritime border disputes, territorial sovereignty, global trade, human rights, diplomatic relations and consular affairs. This surge of interstate litigation needs to coincide with an increase in academic attention to the field. Questions such as how the courts and tribunals function, who the arbitrators and judges that decide cases are, which rules of independence and impartiality apply to them, and why a certain method of dispute settlement is preferred, have now become more relevant than ever. An ample collection of rules and decisions now exists to permit such comparative studies. Surprisingly however, little attention has so far been given to the procedure before the various courts and tribunals dealing with interstate disputes from a comparative perspective. While important works have been published on the rules and procedure of specific courts and tribunals, notably the ICJ the ITLOS and the WTO DSU, engagement with the rules and procedure applicable in interstate litigation from a comparative perspective has received little attention.

Comparing and contrasting the ICJ and the Appellate Body of the World Trade Organization, I assess whether those international judicial mechanisms possess the basic degree of independence required for a court to be able to maintain its credibility so that it can continue to perform its core function of adjudicating interstate disputes. With those two interstate adjudicative bodies constituting the two leading international courts in terms of participation and the sheer number of cases decided, much may be learned from comparing them. I start by considering what the concept of judicial independence means in general and how it can specifically be assessed. The chapter then considers whether the ICJ and AB possess the basic degree of independence necessary to properly discharge the judicial function. In pointing out that real deficits exist, I argue there is a case for bolstering the independence of the ICJ; and without immediate reforms to the AB’s institutional design, its potential demise is likely to be hastened. I conclude that if a basic degree of judicial independence cannot be guaranteed, it is preferable to let a court vanish for a while than to maintain a significantly deficient one.

Emanuel Adler’s theory of cognitive evolution lacks an explicit phenomenology. I provide one here, drawing upon the philosophy of John Dewey and Maurice Merleau-Ponty. A phenomenological elaboration of cognitive evolution theory speaks directly to a number of conversations in the field of IR: those on microfoundations, on ontological security, and on materiality. For all three, phenomenology connects the impetus and feedback effects of experience, as a driver and outcome of action, to the ways practices transform. For microfoundations, it provides the causal beginning and end of a period of change. For ontological security, it “institutionalises” sensation by explicating its role within social relations. For materiality, it fixes the mechanisms of cognitive evolution within their physical context – a field of bodies in motion and of intentional stances. I finally offer some remarks on the normative implications of a phenomenological addition to Adler’s existing approach, and suggest that it provides an important language for the evaluation of orders and a foundation for a cosmopolitan ethos in international politics. I conclude on a speculative note, considering what the phenomenology of cognitive evolution might explain about the recent epistemic fracturing of political discourse into a state of “post-truth.”