This part focuses on the foundational aspects of international human rights law, exploring its theoretical, historical, and philosophical underpinnings. It examines the evolution of human rights ideas, the influence of various philosophical traditions, and the ongoing debates about the nature and universality of human rights. The sections address the epistemological ruptures between philosophy and law, and between law and justice, highlighting the challenges in reconciling these perspectives within a coherent human rights framework. The part also delves into normative pluralism, discussing the coexistence and interaction of multiple legal systems and norms within the global human rights framework. It covers treaty-based structures, customary international law, general principles of law, and the role of judicial decisions and soft law instruments. By critically analyzing these foundational elements, this part aims to provide a deeper understanding of the principles and values that underpin international human rights law and to highlight the complexities and nuances involved in defining and protecting human rights in diverse cultural and legal contexts.

The distinct prohibitions of torture and other forms of ill-treatment have crystallized as customary international law as the chapter discusses. In the specific case of torture, its prohibition is also a peremptory (jus cogens) norm of international law – a rule that is applicable in all circumstances and in any place. The chapter also discusses the geographical, material, personal, and temporal jurisdiction of the prohibitions of torture and other ill-treatment under international law more generally.

Territorial jurisdiction will require tribes to further develop their legal systems. People often assume tribal law is exotic, based upon ancient customs. While tribal law often includes customs, many legal systems do. Moreover, tribal law is often indistinguishable from state law. This is not assimilation; rather, this is to be expected. Many laws are universal because people generally want the same basic things. For example, theft and murder are prohibited everywhere. Likewise, tribes banned these offenses long before Europeans arrived on the continent. Though tribal law can deviate from standard Anglo-American law, different does not necessarily mean bad. Additionally, tribal courts usually resemble state and federal courts. Despite negative stereotypes, studies show tribal courts treat non-Indians fairly. Nevertheless, lack of funding – largely due to state taxation – inhibits tribes’ ability to develop bureaucracy. Lack of funding also prevents some tribes from publishing their laws. A possible solution to tribal institutional capacity is the creation of intertribal business courts. The intertribal nature of the tribunal will provide more resources to increase administrative capacity and help eliminate perceptions of bias.

Genocide is sometimes called the ’crime of crimes’. The word was coined by Raphael Lemkin in 1944, then declared an international crime by the United Nations General Assembly. In 1948, the Genocide Convention was adopted. As the first human rights treaty of modern times, it constituted a significant intrusion into what had previously been a matter exclusively of domestic concern. This explains the narrow definition of the crime of genocide. It requires proof of an intent to destroy a national, ethnic, racial or religious group. Only a half century after its adoption did the Genocide Convention take on real significance with inter-State cases being filed at the International Court of Justice and many prosecutions at the International Criminal Tribunals for the former Yugoslavia and Rwanda. The Convention requires that States Parties punish genocide but they are also required to prevent it, even when it takes place outside their own territory. More than 150 States have ratified the Genocide Convention. Genocide is also prohibited under customary international law. It is generally agreed that the duty to punish genocide is a peremptory norm of international law (jus cogens).

This chapter analyses the major negotiation points and deadlock that were overcome, inter alia, regarding the legal status of the exclusive economic zone (EEZ) at the Third United Nations Conference on the Law of the Sea. The battle between the territorialist and preferentialist was settled in the middle ground of a sui generis maritime zone. The successful outcome of the negotiations is reflected in the package deal set out in Part V and related provisions of the United Nations Convention on the Law of the Sea. The jurisdictional framework of the EEZ is sustained by two legal doctrines that formulate the body of flexible prescriptions to guide the attribution and exercise of rights and duties by different States. The integrity and stability of the EEZ are further protected by the compulsory third-party dispute settlement mechanism in Part XV that acknowledges the special characteristics of the sui generis legal regime, and through the progressive development of customary law status of the EEZ concept on the basis of State practice.

This chapter discusses Western education in the landscape of colonial and even postcolonial Nigeria. Building upon ideas established in previous chapters, this chapter focuses on the uneven and complex adaptation of Western education and the emergence of a new middle class of low-level government and mercantile administrators. It will also touch upon traditional forms of education, explaining how colonial officials stunted or even undermined them. Of particular importance, this chapter explores the use of education as a tool of the political elite to construct systems of power and guide the development of societies. For colonial Nigeria, Britain sought to construct a system easily exploited for its natural resources, extracted by a vast underclass of cheap labor. This system would be managed by the small middle class of native elites under the authority of white British officials. This chapter will contextualize the aforementioned educational processes to explain the strategies colonial officials used to achieve their central objectives.

This chapter focuses on two passages from a historical novel in Malayalam, titled Sulttānvīṭu by P. A. Muhammad Koya (d. 1990), set in a Muslim matrilineal household in Calicut on the Malabar coast of southwest India. The first passage deals with a dispute between two groups on the appointment of a judge (qāḍī) and the right to carry out the Friday congregational prayer (in the early 20th century), while the second one involves two public debates in the wake of Wahhābism’s arrival in the region. Broadly speaking, the novel explores the gradual disintegration of the matrilineal tradition among Malabar Muslims in the late 19th and early 20th centuries, at the peak of colonialism, reformism and modernism.

Chapter 5 argues that an alternative ontological basis, derived from non-Western ontologies, is both possible and urgent for renewing sustainable development. It analyses how the voice of the Global South; particularly Africa, can improve the discourse on sustainable development by evolving a view on the importance of customary law, ethics, and Indigenous norms as law. It echoes the idea of ‘ecology of knowledges’ and the legal value of reviving non-Western epistemologies for sustainable development. The spotlighting of ethics, customary norms, and other forms of local and Indigenous knowledge as legal norms has been done before. However, in this book, I extend the discussion even further and do so through a comparative analysis with other bodies of legal ideas and normativity like transnational law, legal pluralism, and social construction as law in themselves. In this process, I give these ideas a unique twist for the purposes of the overall critical perspective of this project by demonstrating their usefulness for foregrounding customary law or Indigenous knowledge as law. The discussion refracts the idea of reimagining sustainable development praxis through the lens of oft-neglected African legal cosmologies, and how such experiences can provide helpful signposts in Africa and elsewhere.

The transition from an apartheid state to one whose foundation is universal suffrage saw South Africa adopt multiple methods to signify transition from the one form of rule to the other. Such a transition involved, among others, the creation of truth commissions, the amendment of legislation and the promulgation of new legislation – a process collectively referred to as transitional justice. Despite the protections against the arbitrary deprivation of property, provided for in the Constitution of the Republic of South Africa and other pieces of legislation born of transitional justice, there continues to exist a disparity in respect of who South African property law caters for and protects. Against this background, the South African Constitution and case law, this chapter engages the principle of transformative justice to interrogate the conceptions of ownership and property under South African property law. This chapter argues that the current conception of property and ownership serve to, inter alia, economically exclude a large number of South Africans whose property custodianship exists outside of the current conceptions of ‘ownership’ and consequently outside of the recognition of private ownership of land or property.

Nearly three decades since democracy, equitable land reform and redistributive justice continue to elude most South Africans – especially rural women. This chapter argues that traditional leaders’ disproportionate powers account for this failure in ‘traditional areas’. Substantial data and research evidence address (1) how land is a primary site of contestation over traditional leaders’ powers and (un)accountability; (2) how traditional leaders use powers and unaccountability afforded by the apartheid government to stand in the way of democratic governance and economic progress; (3) the citizenship implications of rural people’s subjection to leadership without consultation or choice, and dispossession of ‘informal’, ‘communal’ land rights without consultation or consent, and (4) the direct tie between the impoverished systems of rural democracy and the continued and deepening impoverishment of the people (mostly women) who live in these areas. Analysis of the Itereleng Bakgatla and Ingonyama Trust cases shows how the opportunities and objectives that the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) presents for inclusive land reform remain unrealised.

In his path-breaking book, Constitutional Identity, Gary Jacobsohn not only elucidates the role of constitutional identities but also envisions the coexistence of “seemingly irreconcilable visions of national identity” within a constitutional order. The resulting disharmony he argues is critical to the development of constitutional identities. This chapter asks whether the continued existence and even incorporation of forms of governance that explicitly contradict the founding values of a constitution are simply disharmonic or do they pose a direct threat to the continued existence of a constitutional order? If the latter, we might ask whether differentiating between those social and constitutional elements that are simply disharmonic, and thus productive elements of a constitutional order, and those that might pose a fundamental threat to the constitutional order, might not produce a more sustainable constitutionalism. In sub-Saharan Africa “traditional authority” exists in many forms, including through institutional recognition in many constitutions whose founding values include democracy and human rights. While there is debate over both the nature of democracy and the content of human rights in Africa, the assumption in this chapter is that traditional authorities, represent either a disharmonic element within or an existential threat to democratic and liberal constitutions.

As law is largely a country-specific discipline, formal African legal systems differ from one country to another. The commonly shared feature, however, is that of deep legal pluralism, which produces a multiplicity of normative orders in each society. National legal systems are influenced by colonial history and underpinned by customary law, resulting in a multi-layered legal environment overall. This chapter highlights the influence of traditional usages as a distinct but integral source of business law within pluralist African legal systems. The ‘survival’ of customary arbitration, for instance, clearly indicates the value which local communities attach to familiar transactional and dispute resolution frameworks which more suitably accommodate their voices. This singular feature underscores the importance of an exploratory and inclusive approach to identifying other elements of pluralism in the field of business law in Africa. These include the widening reach of regional law, the huge scale of informal cross-border trade, differing legal frameworks for formal cross-border trade facilitation and the monumental growth of China’s investments in Africa, all of which constitute substantive research areas in themselves in the study of the pertinent subject of legal pluralism in commerce in Africa.

Chapter 6 provides an in depth analysis of the right of self-defence: its essence, dual legal basis and other aspects of its application, including the authorship of an armed attack, the modalities of application of self-defence and the role of the Security Council.

In this chapter, Daniel Franchini and Russell Buchan examine the status, nature, content, and scope of the obligation of peaceful dispute settlement. This chapter traces the emergence of this obligation under customary and conventional international law, analyses the conditions that trigger its engagement, and explores what measures disputants must take in order to discharge this obligation. This chapter maintains that the peaceful settlement obligation is an interstitial norm insofar as it influences the interpretation and application of other rules of international law relevant to the peaceful settlement of disputes.

The author examines how ‘consent’, traditionally taken as a foundational element in international law, fares in the context of international organizations (hereafter IOs). The central argument is that IOs, both as actors consenting to international law and as institutional spaces for other actors doing so, have changed the operation or even the nature of consent in international law as they have made the components of the act of consent disaggregate. The author argues that the IO’s expression of consent has become detached from the psychological or ‘intentional’ state that is presumed to be underlying in the legal subject. Where the organization appears as an institutional space for the consent of others, the object of consent in many instances is detached especially in substance from the normative effect created for the consent-giver.