Judicial decisions play a crucial role in the development of international human rights law. This chapter discusses the absence of a formal rule of precedent, the principle of legal certainty, and the influence of international judicial decisions on the human rights framework. It examines how judicial decisions from international, regional, and domestic courts contribute to the development and interpretation of human rights norms. The chapter also discusses the challenges and limitations of relying on judicial decisions as a primary source of human rights law, including issues of consistency, coherence, and legitimacy. It highlights the importance of judicial decisions in shaping human rights law and the need for a balanced approach to ensure legal certainty and predictability.

This concluding chapter makes an overall case for reinstatement of the right to resist in the human rights lexicon, in light of the preceding evidence and analysis. Reprising the persisting gaps in legal certainty, it summarizes the challenge of its reconsideration as a contemporary legal concept lacking express codification at UN level. It then sets an ‘agenda for reconsideration’, identifying both lex lata and lex ferenda options for clarification. Finally, supporting the contention that it is a potentially enforceable human right, it suggests a basic claims analysis template for applying the law as it stands.

Accession of the EU to the ECHR is again a realistic prospect after the 46 + 1 Group reached a deal in March 2023. This chapter answers the question as to what the potential impact of EU accession to the ECHR is from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. This chapter discusses the added value of accession showing how it fills two protection gaps while also contributing to coherence and legal certainty. It argues that actual substantive effects depend on the way in which the ECtHR will apply its case law vis-à-vis the EU, such as the margin of appreciation, positive obligations or locus standi, and access to justice. The second part of the chapter focuses on the procedural practicalities, including admissibility, the co-respondent mechanism, and the prior involvement procedure. The third part analyses how accession could remedy the gaps in judicial protection in the Common Foreign and Security Policy.

In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

This chapter addresses the suggestion that for a special regime to exist, community members must be engaged in a joint enterprise. In the context of international law, to claim that a group of international law specialists is engaged in a joint enterprise is to assert that they do what they do based on the idea that some certain state of affairs is desirable. As Chapter 4 argues, in the context of international law, the existence of such a presupposition can be inferred from the actual pursuit of those specialists of a distinct state of affairs, and the way in which they perform assignments.

Non-coherence theory says that in order to speak of legal certainty in the digital domain, a domain-specific concept of justice has to be developed. But this would already lead to a far-reaching conclusion that there can exist different ideas of justice, which is a phenomenon of relativity reaching to the deepest bottom of human rights systems. A commonality would therefore need to be found between the concepts of legal certainty and predictability. Such commonality can be found from the functions of legal certainty and predictability, where the outcome of a judicial or quasi-judicial assessment assumes the existence of standards which are constant. Pursuing this commonality leads to the term the thesis of immunity to time. We observe a specific phenomenon of non-coherence, which is a simplification and move towards thinness because predictability can, by and large, be considered legal certainty without qualitative elements, such as the ideas of justice or equality.

Many of our oceans and seas are under threat. Strengthening the environmental rule of law for better protection and sustainable use of the oceans is therefore urgent. This Chapter introduces the concept of the environmental rule of law for oceans and the diverse perspectives and topics that will be addressed throughout the book.

One important aspect of the legal effects of CIL within the EU legal order concerns the questions of whether CIL can be relied upon in EU law-related administrative or judicial proceedings and, correspondingly, whether administrative and judicial authorities are obliged to apply CIL in such proceedings in order to decide the case at hand. This is the problem of the ‘invocability’, ‘enforceability’ or the ‘direct effect’ of EU law. As there has so far only been marginal treatment of the direct effect of CIL (as opposed to that of international agreements), the chapter aims at clarifying whether and to what extent the solutions devised for the direct effect of international agreements can be transferred to CIL, that is, whether the ‘treaty analogy’ holds. In this regard, the chapter pleads not only for a uniform direct effect test for international agreements and CIL norms, but for a uniform direct effect analysis for all provisions of EU law, internal and external alike. The chapter further argues that the existing differences among the various types of EU law norms as well as the specificities of each individual provision can be adequately dealt with by applying a context-sensitive analysis of the respective provision of EU law.

This chapter presents the five traditional grounds for judicial review: inexistence, lack of competence, breach of an essential procedural requirement (the so-called external legality checks) and abuse of power and illegality (issues of ‘internal legality’). The chapter then explores the values which are enforced through judicial review, especially fundamental rights and principles of good administration. Section 3 explores the extent to which constitutional rights and the European Convention have taken over from the ‘general principles of law’ developed by the Conseil d’Etat as the main sources of rights protection. In relation to principles of good administration, the expansion of requirements has come mainly from legislation and government circulars, but there has been a strong influence from developments within the European Union.

This chapter explains how both the attribution problem and the doctrine of necessity as an emergency rule that creates an exception weaken the rule of law in cyberspace. Therefore, necessity is not capable of serving as a stable legal basis for frequently recurring incidents.

In the conclusions, the book editors assess the existing national and international regulatory frameworks in the light of the five foundational principles that they identified by reading international bioethics law in conjunction with international human rights standards: (i) freedom of research; (ii) benefit sharing; (iii) solidarity; (iv) respect for dignity; and (v) the obligation to respect and to protect the rights and individual freedoms of others. Their analysis reveals four issues common to most national regulatory frameworks as well as the international framework: (i) The prohibition to create embryos for research embryos cannot be reconciled with the right to science and the rights of science; (ii) limitations to scientific freedom based on vague laws are not truly limitations “determined by law”; (iii) limitations to scientific freedom based on obsolete laws are not limitations accepted in a “democratic society”; (iv) ne plus ultra prohibitions breach the right of everyone to benefit from scientific and technological progress and the principle of benefit sharing. The editors conclude by sketching an international governance framework that promotes science and technological development while being mindful and respectful of international human rights standards, as well as the different sensitivities with which citizens from different parts of the world approach the question of human germline genome modification.

During the Old and New Order regimes, the status and legitimacy of the Supreme Court was in a state of despair. The reformasi enabled the judiciary and the Supreme Court in particular to strengthen its independence, power and prestige by having, among others, a more free appointment and removal process of Supreme Court judges, new power to manage the personnel and resources of the lower courts as well as expansion of its own organization and budget. Despite such progress, as the highest judicial organ in the land with power to interpret the law, review government actions and regulations and control the overall courts, the Supreme Court missed the opportunity to establish its legitimacy in the eyes of the public and other state institutions. This had led them to look for other venues to protect their rights and interest, such as by bringing the cases to the Constitutional Court. This chapter examines some of the major changes and dynamics during the reformasi and explains how and why the Supreme Court fails to perform its basic function to provide legal certainty, protection and check and balance to the other arms of government.