This article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis.

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My contribution to the Thematic takes issue with the idea that tort law is there to protect rights and that what is typically called ‘distributive justice’ is not a proper normative standard by which tort law ought to be assessed. I suggest that this idea is misleading for two related reasons. First, it misunderstands its target: theories of ‘distributive justice’ are not theories about distribution, they are theories about the basic social structure. Second, social-structural concerns play an important role in determining the general conditions of moral responsibility and are therefore important elements in explaining when the violation of a right makes an agent responsible to the bearer of that right. If this is correct, theorists who exclude considerations of social justice from the normative standards that apply to tort law not only misunderstand the nature of social justice and its demands, they also have a poor account of responsibility for violations of rights.

The main source of resistance to the idea that contract law should be sensitive to the demands of social justice has been the idea that there must be a division of labour between parts of the law that attend to social-structural problems and parts of the law that attend to parties’ conduct towards each other. I argue that this idea is mistaken for two reasons. First, while an agent’s conduct towards another may not necessarily make an impact on the social structure, laws regulating the conditions of enforceability of private transactions always do. Second, structural and non-structural considerations claim overlapping rather than distinct domains of application.

An annotated bibliographical guide on estoppel in international law, covering the origins of estoppel in national legal systems; its place within the sources of international law; its practical requirements; its relation to neighbouring concepts such as acquiescence, recognition, waiver and prescription; and its role in the context of territorial, trade and investment and human rights disputes.

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We want to be faithful to the legal texts and practices that we interpret. We also want to treat those texts and practices as ‘living instruments’ that are relevant to the present and its concerns. Two dominant schools of thought in international law, positivism and critical legal theory, say that we cannot hold onto both of those desiderata simultaneously. Drawing on the hermeneutic philosophy of Hans-Georg Gadamer, I argue that we can and that we do. Showing fidelity to the interpreted legal texts and practices and treating them as ‘living instruments’ are not unsophisticated practical intuitions that turn out to conflict with each other when put under the philosophical lens. They are essential and mutually dependent dimensions of all competent international legal interpretation.

A large part of the theory of customary international law subscribes to the idea that we can determine the content of international custom by attending to certain social facts about the behaviour and intentions or beliefs of international agents. I argue that this idea is mistaken insofar as it excludes from the determinants of customary legal content the only considerations that could explain which social facts are significant, by how much, and which propositions of law they support: normative considerations.

The chapter introduces some key concepts in the law of international treaties and explores the reasons for the effectiveness of treaties as a means for securing international co-operation and for pursuing collective aims.

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The differentiation between ‘easy’ and ‘hard’ cases cannot be deployed to support the idea that general principles fill gaps in international law. The interpretation of international law takes the same form -and relies on evaluative resources to the same degree- regardless of the municipal or international provenance of the relevant legal material.

When I carelessly expose a person to danger of physical harm, tort law requires me to compensate that person insofar as my negligence has significantly increased his/her cost of options that could either reduce or eliminate that danger, or insure him/her against the incidence of the threatened harm

The doctrine of unconscionability is best seen as reflecting the principle that our institutions should hold agents accountable for their transactional choices only when those choices have been made from within a range of options and under conditions that agents could not reasonably reject as a ground of such accountability.

Those who claim that, as a general matter, States’ votes in the UN General Assembly may be used to infer those States’ intentions in respect to customary international law have failed to explain how one could separate States’ formal intentions (i.e. their intention to adopt a non-binding instrument) from their substantive intentions (i.e. their intention to support propositions contained in those instruments).

The familiar critical contention that international law cannot be both objective and normative trades on a poor conception of objectivity and a mistaken understanding of the metaphysics of value. One cannot claim to understand the propositional content of evaluative judgments and still doubt their capacity for objective truth or falsity.

Understanding the relationship between WTO and general international law requires us to determine not only whether those two bodies of law share certain formal features, but also whether the values that each reflects can be made to dovetail.

Seana Shiffrin is right to claim that we ought to measure contract law against our considered views about decent moral agency, but she is wrong to restrict her conception of decent moral agency in voluntary transactions to conformity with the demands of promise-keeping. Decent moral agents attend not only to their interpersonal duty to keep their promises, but also to their political duty to support social structures that effect a legitimate distribution of bargaining power.

Both majority and minority opinions in Al-Adsani v. UK (ECHR) subscribe to the idea that jus cogens norms are hierarchically higher norms of international law. I argue that this idea sweeps the most pressing questions under the carpet. To say that legal rules on the prohibition of torture override legal rules on state immunity, one must have determined that the two sets of rules stand in substantive conflict and that is a question of substantive interpretation rather than formal hierarchy.