Legal Pluralism: Challenging ‘Default Settings’ in IHR

This paper argues employs the International Court of Justice (ICJ) case of the Bakassi Peninsula (2002) as a lens through which to consider fertile intersections of legal pluralism and human rights, with a focus on two particular issues. First, the challenge of addressing contemporary border disputes that can trace their origins to colonialisation, and; second, the matter of human rights’ effectiveness in producing changes to international legal mechanisms and practices. This paper draws attention to the purportedly neutral definitions, practices and forums that permeate both international law and international human rights law, and presents a legal pluralism as a vital resource in both recognising and combatting such default settings.

Counter-terrorism, IHL and the right to rebel

In my paper, I discuss the overlap of the legal regimes of anti-terrorism law and international humanitarian law (IHL). Increasingly, IHL gives way to anti-terrorism law, affecting the right to oppose an oppressive regime. Since 9/11 counter-terrorism policies have generated a growing body of legal cooperation regimes, at the international and regional level. Increasingly, domestic courts are vested with broad jurisdictional powers to try terrorist extraterritorially. Branding groups fighting an oppressive regime as terrorist rather than as combatants has shrunk the legal space for political opposition. To illustrate the effect of this pluralist reality where one legal regime cancels out a cardinal principle of the other regime – the right to participate in hostilities – I discuss the prosecution of Tamil tigers in certain European states. There is a risk of democratic States becoming complicit in suppressing the right to rebel.

Pluralising the Rule of Law

Armed opposition groups like the Taliban in Afghanistan and the FARC in Colombia often establish their own ‘courts’ in territory they control. Can such rebel courts be seen as embodiments of the rule of law, or does the rule or law’s association with state sovereignty preclude this? Drawing on fieldwork on the judicial practice of armed opposition groups, I argue that the exclusive link between the state and the rule of law is both recent and unjustified. Norms of International law already infer that entities other than states can administer justice in a manner that represents the rule of law, including armed rebels, and there is no requirement that the interests represented in the rule of law replicate those of states. The concept of the rule of law, whether ‘thick’ or ‘thin’, is not monolithic but plural; the elements that make up the rebel rule of law will thus necessarily amount to a distinctive reflection of the particular context in which armed rebels operate.

Subsidiarity and Interpretive Pluralism in International Human Rights Law

The salience of principles & practices of subsidiarity in IHRL is linked to value pluralism & communal self-determination. I argue that an analysis of the variations in the practice of subsidiarity by different IHRL mechanisms is a useful proxy to elucidate the idea of legitimate interpretive pluralism in IHRL, defined as a plurality of incompatible, albeit correct, interpretations of the requirements of human rights that are simultaneously valid under the same mechanism. The scope of interpretive pluralism depends on reasons associated with the grounds & nature of human rights, and on second-order reasons, eg the credibility of domestic institutions. Interpretive pluralism also suggests that IHRL mechanisms are open to adjustments in their aims & modes of activity for reasons of communal self-determination. This is important for effective human rights protection because respect for value pluralism can nurture individual loyalty to IHRL institutions and cement their role & functions.