This chapter establishes the theory of consent-based monism. The definition of law as well as its origins start for the purpose of this book in the “legal desert.” The legal desert is to be understood as a legal vacuum, a neutral, prelegal status without any further specifications. As we are not focusing on how a just society can be conceived, the following outline will suffice: in the legal desert, a consensus between two or more individuals is widely considered to be the possibility that allows the establishment of a binding legal rule to organize social life. Consensus is thereby understood to serve as a tool for unifying individual interests and does not aim to establish any values or tools that might indicate how a just society should be organized. Choosing this basis aims at modeling the structural relationship between international, EU and national law without saying how society or the State or a supranational organization should be organized (or without arguing, for instance, whether the EU has a constitution or not). This is illustrated by figures, which graphically display the most important consequences of structurally ordering the relationship between legal orders according to consent-based monism.

This chapter reflects on the institutional strength of the Security Council. It emphasises the fact that the Security Council forms part of the greater organisation of the United Nations, composed of 193 states. While it is obvious that the Security Council is a forum of power politics, the Council is not only composed of the powerful and the permanent. This chapter submits that the less powerful states do not necessarily need always to play a secondary role – especially if they team up. The chapter is also guided by the idea that less powerful states, in particular, have an interest in the rule of law guiding international relations as a means of constraining raw power politics. The chapter thus presents an institutionalist perspective. At its core, this perspective is about checks and balances, as well as the ability to take the interests of ‘the others’ into account (i.e., those that do not have a permanent seat at the Security Council). The chapter applies this perspective to examine the exercise of distinct Security Council powers pertaining to the use of force, UN sanctions, and counter-terrorism legislation, as well as to possible new work terrains for the Security Council.

Sadistic methods employed to extract information from those in custody date back to antiquity. The right against torture is considered a ius cogens, allowing no state to derogate from the obligation not to use such methods. This chapter provides a glimpse of the devastating techniques governments have used in various settings including medical experimentation. It also reveals methods by which officials, such as the CIA, circumvented their own laws in much-condemned efforts to obtain information deemed critical for national security. This includes extraordinary rendition via “torture jets” and use of medical professionals in illicit interrogations. The photographs used to expose the gross violations of human rights also constituted violations of human rights.

State-to-state arbitration offers some potential advantages as a dispute-resolution mechanism. These advantages are similar to those arbitration displays in other settings, having to do with specialization, procedural flexibility, speed, and confidentiality. The chapter examines some of the strengths and weaknesses of state-to-state arbitration. It also discusses the arbitrability of peremptory norms of international law (ius cogens), the interaction between arbitrators and the International Court of Justice in the lawmaking process, and the extent to which arbitration is likely to be avoided as a procedure to settle disputes among member states of a supranational organization.

Coercively inducing oppositional TG so as to trigger a regime change is in principle prohibited under international law. Does this hold true in the most extreme circumstances, i.e. when the incumbent power violates ius cogens? If states wish to halt gross and persistent breaches of ius cogens, they must exhaust the available multilateral fora and respond through collective non-recognition; multilateral cooperation; and peaceful settlement including by directly negotiating with the ius-cogens-violating regime committing these breaches. If these steps fail, international law does not fully rule out the possibility of inducing oppositional TG as a last resort measure. Checks and balances, both procedural and substantive, are then to become integral part of the unilateral and coercive inducement of oppositional TG. But the chances of impeccable lawfulness are quite low in light of the stringent procedures and conditions that apply, forming the basis for an obligation of strict moderation.