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Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter, IRHL) and international criminal law (hereafter, ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, however, the predominant approach to constructing the link is substantive. This approach identifies some human rights violations as constituting potential international crimes. This overlap is normatively justified in similar terms by reference to a sub-set of moral human rights. As such, the substantive approach concentrates on the right-holders and the harm committed to the victims of the violations to build the common core between IRHL and ICL.\ud In this paper, I offer an alternative to the substantive approach. After having identified two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on the duty-holders of IHRL and ICL. Instead of focusing on the limited overlap between ICL and IRHL provisions (as positive legal scholars tend to), and instead of using substantive moral reasoning to specify this overlap (as normative theorists tend to), I start by reconstructing two structural characteristics that are common to IRHL and ICL qua international legal regimes: who has the authority to address violations of IRHL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common core of IRHL and ICL. I rely on the extra-territorial application of IRHL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IRHL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects.

This article offers an internal critique of the European Court of Human Rights’ deferential approach to the content and limits of the right to vote (under the right to free and fair elections, article 3 of Protocol 1 to the European Convention on Human Rights). Rather than imposing an independent theory of democratic rights, the critique is internal as it relies on the Court’s own conception of democracy developed under article 10 ECHR (freedom of expression) and article 11 ECHR (freedom of reunion and assembly). It uses normative democratic theory to show that the Court’s conception under those rights reveals an utmost concern for political inclusion and that this conception is systematically used by the Court to balance alleged interferences with this article. It then argues that this concern has implications for the Court’s review of the right to vote. While the Court proclaims the complementarity between expression and vote at the level of principle, the Court refrains from engaging in the balancing exercise under P1-3. The article takes the notorious example of the right of convicted felons to vote. The article does not conclude, however, that the Court should systematically maintain its franchise on democratic grounds. It rather contends that the Court should apply proportionality with the same substantive democratic principles across democratic rights.

It is widely acknowledged that human rights law (hereafter, HRL) and international criminal law (hereafter, ICL) share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts (hereafter, ICs) and tribunals adjudicating those norms. With a view to bring the debate forward, I then turn to the practices of HRL and international criminal law (hereafter, ICL) to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law (HRL and ICL, for the purpose of this article), namely the state, to legitimately govern its own subjects constructed as free and equal moral agents.

Creative Commons Attribution Non-Commercial License 4.0 Sociologically and normatively, the concept of legal pluralism presupposes a ‘legal system’ or a ‘law-like’ normative order displaying a distinctive structure (eg an institutionalised system of rules and sanctions) whose boundaries can be determined and distinguished from others (or from non-law). Legal pluralism thereby presupposes that the boundaries between those entities are cognisable (descriptively or normatively) and distinguish large-scale entities (‘system’, ‘order’, ‘layer’, etc). In this article, I argue that this overlapping concept of legal pluralism is inapplicable to human rights law either descriptively or normatively (with particular emphasis on the European Convention on Human Rights (ECHR). Normatively, recent philosophical literature suggests that human rights (law) may be endorsed by a variety of moralities (eg collectivistic) that make it safe from the critique of parochialism, legal or moral. Descriptively, European human rights law has never been legally depicted as an autonomous and complete legal order in the vein of EU law as held by the European Court of Justice in Van Gend en Loos. This is explained by the structural principle of subsidiarity shaping the complementing roles of the European Court of Human Rights (ECtHR) in reviewing state practices and national courts in applying the ECHR. How shall we then understand the point (if any) of legal pluralism in the context of European human rights law? I argue that one first needs to uncover the link between legal and moral pluralism and therefore ‘pierce’ the large-scale boundaries premised in the conventional concept of legal pluralism. I show how pluralism is used in the reasoning of the ECtHR to justify its authority over national courts, so that the distinction between legal ‘orders’ or ‘systems’ is contingent upon the normative role that moral pluralism plays in justifying the duties correlative to human rights.