This chapter addresses the suggestion that for a special regime to exist, community members must have a shared repertoire. In the context of international law, to claim that a group of international law specialists have a shared repertoire is to assert that they consider the use of certain rhetorical tools appropriate. As Chapter 5 argues, the existence of such a presupposition can be inferred from, amongst others, the use by specialists of distinct concepts, a distinct terminology, a distinct method, and distinct theories.

The Conclusions put forward a first catalogue of procreative rights based on the claims successfully asserted in international case law to date. Obstacles to the development of procreative rights are also considered, from jurisdictional issues (such as the recognition of the subsidiary nature of international human rights law and States’ margin of appreciation in sensitive areas) to certain underlying assumptions in the judicial analysis (e.g. the importance of marriage as a foundation for intentional non-genetic parenthood). Finally, this closing chapter examines incipient and potential rights, that is, claims which have not yet been raised in international litigation (some currently pending in Strasbourg) or which were left to the discretion of national legislatures. Although many procreative rights are still aspirational in nature, it is suggested that the continuously evolving interpretation of the ECHR, aligning its requirements with medical advances and social perceptions, will eventually expand the scope of procreative autonomy in international law.

This chapter offers two contributions to this collection. Its first part is dedicated to a conceptual overview of the nature and use of legal transplants. A concept central to comparative law, this is concerned with the movement of legal doctrines between legal systems in all fields of law. An overview of some of the central studies of legal transplants is ordered thematically, providing typologies of existing analyses of the nature of legal transplants sorted under several categories that range from the type of influence of foreign doctrines, through the motivations of such transplants, to the outcome of a transplant. This part also emphasises that the transplantation process is an ongoing, multi-participant exercise. The second part complements Caffera, Momberg and Morales’ chapter in this volume, which is concerned with legal transplantation in private law. In this part, I offer an example of the ways in which public law doctrines emerge and are subsequently transplanted into domestic systems, sometimes with limited, if any, attention to the particularities of public law concepts as they apply in different systems. The analysis of the movement of the ‘margin-of-appreciation’ doctrine is but one example of the highly complex nature of the movement of law around the world.

This chapter points to a dilemma at the heart of the judicial role. How can courts robustly review legislation for compliance with rights without exceeding the limits of the judicial role? And how can they pay respect to the democratically elected branches of government without ceding their obligations to uphold rights? Presenting courts as a form of constitutional ‘quality control’, this chapter argues they solve this dilemma by engaging in calibrated constitutional review. This requires judges to carefully calibrate the grounds and intensity of review depending on a complex analysis of legal and institutional concerns.

The chapter examines the relevance of (international) human rights law for international arbitration. It advances the proposition that (international) human rights law is part of the fabric of international arbitration. Hence the chapter sets out firstly thehuman rights norms and human rights methodology as far it is relevant in the international arbitration context. It then discusses human rights as the means to justify the existence of international arbitration. In its main part, the chapter considers the relevant human rights norms in commercial and investment arbitration and discusses the application of international human rights law in the commercial and investment arbitration context.

This chapter introduces and discusses the approach of each body to deference and subsidiarity, and assesses how the differences may affect convergence and fragmentation. From the margin of appreciation (MoA), typical of the European Court, to the conventionality control (CC) of the Inter-American Court, the chapter investigates all the different shades of subsidiarity and deference and put them in a comparative perspective. Moreover, through specific examples, this chapter shows how different approaches may trigger fragmentation (such as in the headscarf cases) and how convergence on the level of deference and subsidiarity may, on the contrary, foster convergence (such as in defamation cases).

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.

Finally, the checks and balances of sovereign debt restructuring by investment tribunals are also implemented as a matter of the interpretation of the substantive provisions. Given that investment arbitral jurisprudence has incorporated the doctrine of margin of appreciation, the study has concluded that a deferential review of policy decision-making by debtor sovereigns is available and appropriate for arbitral tribunals. Concretely, the arbitral jurisprudence on the provisions providing standards of protection and defence on merits may afford a balancing exercise that enables safeguarding the legitimate policy of debt restructuring without sacrificing bondholder protection.

The chapter describes how the legislator discussed whether to incorporate a leniency programme in the Trade Competition Act of 2017 (2017 Act). It is argued that there was an initial desire to introduce a leniency programme. The leniency programme would be applied to the criminal sanctions that the bill prescribed for hard-core cartels, such as those involved in price fixing or bid rigging. However, the Office of the Attorney General objected with reasons that giving immunity from a sanction is the constitutional prerogative of the court. In order not to jeopardise the creation of a leniency programme, the drafting committee was willing to limit the lenient treatment to just a reduction in the sanction or to the cartels for which only an administrative sanction would apply. But these initiatives were not incorporated into the 2017 Act. Instead, the 2017 Act gave tremendous flexibility to the enforcement agency by only prescribing maximum sanctions. This might allow a similar result to a leniency programme to be achieved, albeit without a well-defined formal framework.

Chapter 13 summarizes important findings and offer two recommendations to the Court with regard to how Article 13 could be developed: (1) The Court should engage in more and stricter procedural review by controlling and setting out requirements with regard to how domestic remedial authorities must consider whether the Convention has been violated. To this end, the Court should make more use of Article 13. The counterpart of the increased procedural review should be less substantive review. (2) The Court should engage in more principled and abstract reasoning concerning Article 13, in particular the required form of redress. More principled and abstract reasoning stands in contrast to concreteness. It provides guidance, but allows for flexible implementation in different domestic legal systems.

Chapter 12 provides normative and contextual depth that may contribute to our understanding of how Article 13 could be further developed (or not) by the Court. The goal is not to provide answers as to how every requirement should be developed, but to illustrate the role Article 13 could have in regulating, more generally, the relationship between international and national protection of human rights. It does so by illustrating how different perceptions of fundamental normative concepts values and structure underlying Covnention law and four contextual factors may influence how judges construe, apply, and develop Article 13.

Chapter 8 accounts for factors explicitly emphasized in the Court's case law which may influence the relative standard of effectiveness arising under Article 13. Indeed, States have a margin of appreciation which provides for different possibilites for assuring effective remedies in practice, for example, in penal, civil, constitutional or administrative proceedings. However, the proceedings must satisfy the minimum requirements, of access to justice and redress. These requirements may be influced by, for example, the character and degree of the violation, the context in which the remedies operate, including whether the remedial problems stems from a systemic problem and the personal situation of the applicant. Such factors may, in practice, lead to the conclusion that only a limited selection of remedies, or even only one remedy, may be effective.