1. Introduction
Professor Ruti Teitel, author of Humanity's LawFootnote 1, is perhaps best known for her foundational work on the concept of transitional justice. She is a proven norm entrepreneur. Her development of the concept of transitional justice demonstrates her ability to detect progress for those victimized by atrocities. It also demonstrates her skill in developing responses to those atrocities. Transitional justice, as Teitel envisioned it, has an ambitious agenda as a ‘conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes’.Footnote 2 That said, transitional justice in its original conception has a specific focus, limited by time and circumstance. Those limits are in part responsible for its success as a concept and practice.
Teitel's recent book, Humanity's Law, seeks to establish for the reader the existence of a ‘law of humanity’ or, more frequently, ‘humanity law’. As with transitional justice, Teitel is both detecting progress and trying to develop a new concept that can serve as a vehicle for further progress. Given her track record, her research and analysis deserve careful consideration. Her underlying observation that international law increasingly emphasizes human rights and concerns and de-emphasizes the state is a valuable, if not wholly original or uncontested, contribution; and it takes the author on an interesting journey through a wide variety of legal areas. This reviewer respectfully submits that the ultimate argument of the volume, namely that ‘humanity law’ exists, is less persuasive than the underlying thesis that there is increasingly a welcome emphasis on humans instead of on the particular institution of the state in many areas of law. If the book is judged by the reader to be unsuccessful in accomplishing its greatest ambition, this should not blind the reader to the potential uses of the book and the conversation it wishes to further.
The underlying idea that human rights (and other developments that focus on natural persons in international law) have important effects on international law has been widely discussed, and perhaps nowhere more skilfully than in the works of Theodor Meron. Emerging from a lecture at The Hague Academy of International Law, Meron's 2000 article `The Humanization of Humanitarian Law'Footnote 3 later bloomed into the 2006 volume The Humanization of International Law.Footnote 4 Meron does not suggest the existence of a new area of law, but rather suggests a phenomenon – humanization – that he has described in detail across various areas of international law. His approach is largely objective, not normative, describing what he believes has occurred rather than prescribing what should occur. That said, one suspects throughout his work on the subject that he approves of these developments, not least because he was instrumental in engineering them as, inter alia, a judge (now president) at the International Criminal Tribunal for the former Yugoslavia, and through his work on the steering committee on the study on customary rules of international law by the International Committee of the Red Cross.
As Teitel notes, ‘humanitarianism's meaning for the international legal system is hotly contested’.Footnote 5 Humanitarianism – the concern for human rights and welfare – is clearly a dynamic force upon international law, but it is unclear whether it has a primarily reforming, humanizing effect, or rather the revolutionary effect of creating a new area of law that may even serve as a new constitution of the international system. This essay traces the idea of humanity law through Teitel's work, culminating in an analysis of her approach in the volume Humanity's Law. The essay then details Meron's alternative approach, analysing the developments as a phenomenon within international law, rather than a new area of law: ‘humanity law’. The conclusion focuses on the normative question whether the development of a new area of law is a desirable outcome.
2. The evolution of the idea of humanity law
The volume Humanity's Law did not arrive unheralded. While the idea of humanity lawFootnote 6 is revolutionary, not incremental, the idea itself evolved in a series of articles in 2002, 2006, and 2008. The general course of this evolution is one of expanding scope and ambition, from an interpretive lens that encourages an expansion of protections of natural persons during armed conflict to a new constitution of the international legal order.
In 2002, Teitel's ‘Humanity's Law: Rule of Law for the New Global Politics’Footnote 7 identified ‘humanity's law’Footnote 8 as a ‘new international legalism’Footnote 9 or ‘paradigm shift’Footnote 10 or ‘new humanitarianism’Footnote 11 within international law that was changing foreign affairs. The article contends that ‘the most pronounced change in the international legal system is the dramatic expansion of humanitarian law's reach through its merger with international human rights law’.Footnote 12 What this means in legal practice, it seems, is the continuation of human rights protections during armed conflict, and the protections of international armed conflict during non-international armed conflict. In Teitel's initial conception of humanity law, while international criminal law has its uses,Footnote 13 the emphasis is on the merger of the law of war and the law of human rights.Footnote 14 She emphasizes the ‘internal perspective’Footnote 15 of the law of war (reflecting the sovereigntist perspective of states agreeing to be bound) and the ‘external perspective’Footnote 16 of the law of human rights (with individuals protected regardless of their nationality). She concludes by noting the thin line the ‘new humanitarianism’ is walking, possibly authorizing humanitarian intervention and eroding human rights discourse as an independent perspective.Footnote 17
Teitel revisits the concerns she raised in her 2002 work in a 2006 article entitled ‘The Wages of Just War: Comment on Richard Arneson's Just Warfare Theory and Noncombatant Immunity’.Footnote 18 In the penultimate section of this article, ‘Humanity-Law: Justifying Wars of Humanitarian Intervention and Liberation’,Footnote 19 Teitel suggests that ‘the very meaning of the justice of war is increasingly defined in terms of the treatment and protection of persons and peoples rather than exclusively in terms of the defense and interests of the state’.Footnote 20 This work again emphasizes the subject of humanity law being primarily an issue of human rights influencing humanitarian law.
In a 2008 article, ‘Humanity Law: A New Interpretive Lens on the International Sphere’,Footnote 21 Teitel frames humanity law as more than an interpretive lens.Footnote 22 This article states that there is a ‘non-sovereignty-based normativity manifesting itself, which has an uneasy and uncertain relationship to the inherited discourse of sovereign equality’.Footnote 23 Teitel states:
I call this new normativity ‘humanity law’ and it might be viewed as the dynamic ‘unwritten constitution’ of today's international legal order – the lens through which many of the key controversies in contemporary law and politics come into focus.Footnote 24
Those following Teitel's writings on humanity law will note that the claims for the idea have become significantly more ambitious at this point. In addition, after a whirlwind review of several critical thinkers on the relationship between law and ethics, Teitel states that the article
aims to move beyond the prevailing perspectives on law … because their theoretical structures are of limited explanatory value today, as they do not adequately comprehend present foreign policy making, which is itself undergoing change in light of contemporary transformations regarding law and politics.Footnote 25
Teitel also seeks to address rather extensive questions such as ‘What is the principle of rule of law today?’Footnote 26 and ‘how entangled ought the law be in politics?’Footnote 27 These can be addressed by humanitarian law as an interpretive practice that ‘rules from within, through interpretation, rather than from above’.Footnote 28 Teitel sees humanity law as needed in part because human rights law jurisprudence is in its infancyFootnote 29 and because international law itself lacks a theory of interpretation.Footnote 30 Humanity law implies that there is, substantively, a minimum threshold of decent behaviour which constrains states and non-state actors, and that this threshold does not derive from state consent but instead from a human-centred perspective of legitimacy.Footnote 31
Humanity law also may provide a source for legal authority. Under this understanding, humanity law should not only be seen as a primary, substantive corpus of law but also a source of law, i.e. it fulfills the role of H. L. A. Hart's ‘rule of recognition’;Footnote 32 that is, it helps determine what is recognized as law and what is not. Teitel notes that, ‘with the very limited exception of jus cogens, state consent is the traditional source of legitimacy in international law, as the sovereign state could only be constrained by its own will’.Footnote 33 She approvingly cites Theodor Meron to support the idea that the traditional requirements to demonstrate international customary law are being degraded under the ‘modern’ approach, which depends less on the generality of state practice and ‘principally on loosely defined opinio juris’.Footnote 34 In addition to customary law, for Teitel, humanity law is implicated in jus cogens Footnote 35 or the principles of law recognized by civilized nations.Footnote 36 ‘Humanity Law: A New Interpretive Lens on the International Sphere’ claims that ‘humanity law has significant purchase on the problem of the interpretation of treaties’.Footnote 37 Teitel titles this part ‘Of State Consent and Humanity Rights: An Attempted Reconciliation’,Footnote 38 but it is unclear where state consent does not or should not always give way to ‘humanity rights’ in her conception. Humanity law is now not only a substantive body of law, but also a source of law and tool for interpretation.
3. The culmination of the concept? Reading Humanity's Law
In Humanity's Law, humanity law is not found within a more recognized body of law such as the law of armed conflict, human rights, or international criminal law. Rather, ‘[t]he humanity law framework draws from three corpuses of positive law – of international human rights, the law of war, and international criminal justice’.Footnote 39 Sometimes humanity law is not a framework but an ‘interpretative lens, [which] navigates the narrow strait between the Scylla of difference and the Charybdis of universalism’.Footnote 40 It reorders the sources of legitimacy, devaluing the state-centred perspective on legitimacy and privileging the human-centred ‘minimum threshold of decent behavior below which conduct becomes inhuman’.Footnote 41 For Teitel, this is shown in part by international criminal-law courts and tribunals declaring the existence of a customary rule without paying particular attention to state practice or opinio juris in a manner that would lack legitimacy if it were not for the legitimacy underlying norms of humanity law themselves.Footnote 42
In Humanity's Law, humanity law is not even necessarily a specimen of international law, or for that matter municipal law. Teitel speaks disparagingly of a ‘state-centric perspective’Footnote 43 on law that ‘lacked sufficient explanatory power’.Footnote 44 There has been a ‘paradigm shift’Footnote 45 in which ‘humanitarian law is actually redefining the struggle for justice in terms that focus not on the preservation of state autonomy against the global legal order, but on the effects of law on persons and peoples’.Footnote 46
Teitel sometimes writes as though the field of ‘humanity law’ that protects ‘humanity rights’ is already clearly established. For example, when discussing the tribunals addressing crimes in Sierra Leone, Kosovo, Lebanon, East Timor, and Cambodia, she asserts that these tribunals are ‘framed in terms of affording protection for violations of humanity rights’.Footnote 47 While she may be framing them in these terms, the term ‘humanity rights’ as applied is an innovation, not an accepted fact.
The reader of Humanity's Law may notice the rapid but often unexplained transition between various phrases that involve the ‘human’. Human rights, human dignity, human worth, humanitarianism, humanitarian law, humanity law, and humanity itself are used in quick succession, not exactly interchangeably, but also not with a sense that each term has been clearly defined and placed within a systematic whole. It is not clear, for example, how ‘humanity rights’Footnote 48 are different from ‘human rights’. This is a problem not only with newly coined phrases like ‘humanity law’ and ‘humanity rights’ but with time-honoured terms like ‘humanitarian law’ that Teitel may or may not intend to imbue with new meaning aside from the established definition of the law that regulates the conduct of armed conflicts.
Similarly, a discussion mentioning without explanation ‘universal justice’Footnote 49 on one page will be followed by a discussion on ‘universal jurisdiction’ on the next,Footnote 50 leading the reader to wonder whether the author sees these distinct ideas as identical or whether a link is being implied but not elucidated. This confusion is furthered by unsupported and unexplained statements such as ‘the majority [of universal-jurisdiction investigations] were initiated by victims and/or NGOs clearly reflecting the principle of complementarity’.Footnote 51 There is little that is clear in this assertion.
There are points where it seems as though the book might clearly distinguish between, for example, ‘human rights’ and ‘humanity rights’. Teitel cites the European Court of Human Rights in Behrami and Saramati v. France as
[W]restling with the fulfillment of humanity rights – but not human rights per se – for, above all, in the court's attempts to reconcile the norms of both systems, it appears to have been guided by the telos of human security and, therefore, to have ultimately elected to interpret matters using these terms of security, first and foremost.Footnote 52
At first the reader may be excited at the prospect of a clear distinction between terms. Unfortunately, it appears that the reader is only left with an additional term. It now appears that ‘humanity rights’ has something to do with the telos of human security in a way that human rights do not – but that is only one possible explanation, and one that is muddled by the fact that the case ‘arose out of human rights violations’Footnote 53 and that ‘human security’ is also a general and contested term that is never clearly defined for the purpose of interpreting Teitel's meaning.
Teitel does not always seem to be a robust backer of her own idea – showing awareness of the potential downsides of the developments she notes. She suggests that the advantage of the ICTY operating outside the political circumstances of the Balkans (a curious but at least arguable statement)
underscored the ambivalence of the law of humanity: for insofar as such adjudication attempted to depoliticize the problem of dealing with conflict, it risked failing to deliver long-lasting solutions that were grounded in local accountability and the rule of law.Footnote 54
Whatever humanity law is, it is not without its problems. It is not a utopian project, but an effort by imperfect people operating in less-than-ideal circumstances. It is ‘neither utopian nor aspirational in content; rather it is grounded in common practices that imply at least a minimal common, normative ground’.Footnote 55 Teitel recognizes that there is a ‘persistent question of whether humanity law has a clear definition’.Footnote 56 This, unfortunately, remains a somewhat unanswered question.
An interesting window into Teitel's perspective is provided when she reflects on the nature of the ICC as only nominally ‘international’Footnote 57 because it focuses on ‘violations of the law of humanity’Footnote 58 and because ‘this site ties jurisdiction to a normativity that is not centrally focused on justice between states’.Footnote 59 This perspective makes two implied claims. First, that international criminal law as it is practised at the ICC deals with violations of ‘humanity law’. Second, that international criminal law as practised at the ICC is not what has traditionally been viewed as international law, with states as its subject and object. Regardless of what one thinks of the first claim, the idea that the ICC lies somehow between traditional international law and municipal law is reflected in other writings. See, for example, Carsten Stahn, who recently argued that international criminal law is returning to its normative home, which ‘lies in the space between traditional areas of international law (i.e., general public international law, international humanitarian law, and international human rights law) and domestic jurisdiction’.Footnote 60 Teitel accurately perceives that considering public international law, humanitarian law, human rights, or criminal law in isolation fails to capture the current dynamics at the ICC and elsewhere.
Teitel also sees humanity law as helpful in explaining the law and rhetoric regarding terrorism. She describes the characterizations of the attacks on 11 September 2001 as ‘crimes against humanity’ and violations of the ‘law of nations’ as evidence that they are ‘grounded on humanity law and its violations and used to define who is in and who is out of a legitimate international society’.Footnote 61 Again, whether or not you accept the idea that the analysis is based on some sort of unspoken grounding on ‘humanity law’, the question of analysing how the international community decides ‘who's in’ and ‘who's out’ has a long pedigree. Should Teitel continue to develop the idea of humanity law, it would be interesting for her to draw further upon other sources that have developed this distinction. For example, in famed Dutch jurist B. V. A. Röling's framework, the history of public international law can usefully be divided into three stages.Footnote 62 In the first stage, stretching from the Treaty of Westphalia until the Peace of Paris, scholars and jurists included so-called ‘Christian nations’ within the ambit of international law. With the introduction of the Ottoman Empire into the Concert of Europe, the second stage admitted so-called ‘civilized nations’ into the circle of law-making states. Finally ‘peace-loving nations’ were included after the Second World War. Other authors could also be usefully drawn upon to draw out this ‘membership function’ of humanity law.
Humanity law in operation, for Teitel, is in part the ‘judicialization or at least juridification of political struggle and military conflict’.Footnote 63 There is a much broader history of the application of law to these subjects that Teitel could have drawn upon. In 1933, Hersch Lauterpacht authored The Function of Law in the International Community.Footnote 64 Martti Koskenniemi described this volume as the most important book on international law in English in the twentieth century.Footnote 65 This book argued forcefully that international law was a comprehensive system, capable of settling disputes brought to international judicial forums. Lauterpacht conceived of international law as a complete system, with the function and duty of international legal practitioners to settle disputes. Teitel cites Lauterpacht in her opening of Chapter 8, but does not really apply his thinking fully.
Teitel's approach in Humanity's Law is ambitious in scope and essentially revolutionary in its aims. Should the concept of humanity law be further developed, there are a number of areas that could be further clarified. In addition, certain subjects, such as the potential ‘membership function’ of humanity law and the judicialization of political struggle and military conflict, could be usefully extended. Overall, the original emphasis in Teitel's writings on humanity law on the intersection of human rights law and humanitarian law, particularly on the application of the ‘external perspective’ of human rights law (with individuals protected regardless of their nationality), remains an interesting and valuable contribution, one that could benefit from further clarification and extension. As Teitel noted from the outset, however, there are risks to taking this approach, not least that of the potential of authorizing or legitimizing misguided humanitarian intervention and eroding human rights discourse as an independent perspective.
4. An alternative approach: limited but pervasive ‘humanization’
Theodor Meron has a more modest approach in his 2000 article ‘The Humanization of Humanitarian Law’.Footnote 66 He emphasizes progress, but his guiding light is the need for balance and limitation. He details the widely remarked effect of human rights law on humanitarian law, focusing not only on the evolution of the law from an inter-state to an individual rights perspective, but also on the contradictions inherent in the humanization of the law of war. He begins with the possibly inherent paradoxes of the effort to humanize law, and ends with the gaps between human rights and humanitarian law, and the limitations of both. Between these somewhat cautionary notes, Meron examines many of the same themes that Teitel discusses.
Meron pays special attention to the decline of reciprocity and reprisals and their possible replacement with criminal prosecution. ‘The Humanization of Humanitarian Law’ also provides a wealth of useful detail regarding the emergence of parallel protections in human rights and humanitarian law, particularly the Geneva branch of humanitarian law. Specifically, Meron examines the evolving treatment of the issue of repatriation of prisoners of war from one of inter-state obligations to one of individual rights. The history of the concept of crimes against humanity is briefly traced as well, noting the relationship between human rights and humanitarian law with respect to this category of crimes. ‘The Humanization of Humanitarian Law’ closes by reflecting on the chasm between the humanization of the law of armed conflict and the dehumanization with respect to the actual selection of targets in war, with civilians frequently targeted by combatants on all sides.Footnote 67 Perhaps surprisingly for a judge and jurist, he minimizes the deterrence value of international criminal lawFootnote 68 and suggests that ‘[h]umanization may have triumphed, but mostly rhetorically’.Footnote 69 The task of humanizing and minimizing the actual practice of armed conflict ‘cannot be left to the law alone’,Footnote 70 instead recognizing the limitations of law and relying on values such as ethics, honour, mercy, and shame.Footnote 71 These reflections on the limits of law are not the main emphasis of Teitel's work on humanity law.
Meron does not discuss humanization directly in ‘Revival of Customary Humanitarian Law’,Footnote 72 the work Teitel cites to discuss the ‘modern’ approach to customary law.Footnote 73 This modern approach
relies principally on loosely defined opinio juris and/or inference from the widespread ratification of treaties or support for resolutions and other ‘soft law’ instruments; thus, it is more flexible and open to the relatively rapid acceptance of new norms.Footnote 74
Meron explicitly sets out to be descriptive, leaving aside the debates on the merits of the modern approach to customary law.Footnote 75 But in practice, the ‘Revival of Customary Humanitarian Law’ is in part built around the existence of another work, Customary International Humanitarian Law.Footnote 76 This work, which Meron helped develop as a member of the steering committee, the culmination of the ICRC's grand effort to investigate the practices of 50 countries in order to elucidate the customary international humanitarian law by traditional means, is used as an example of the enduring value of the traditional approach to customary law, one that relies less on actual practice and more on evidence such as the Charter of the United Nations, treaties, and declarations.Footnote 77 Meron's judgement is that a ‘balance must be struck’Footnote 78 between approaches that minimize the importance of actual practice that violates purported customary law and traditional approaches that seek to discern customary law from actual practice. Meron's approach to the rapid acceptance of new norms is thus relatively cautious, particularly with respect to the proper approach to be taken in international criminal law. `Revival of Customary Humanitarian Law' serves as an additional cautious counterpoint to the enthusiasm of ‘The Humanization of Humanitarian Law’ with respect to openness to new norms, including the new norms associated with humanization.
Just as Meron's lecture at The Hague Academy of International Law served as the core of ‘The Humanization of Humanitarian Law’, that article serves as the core of Meron's extensive 2006 work, The Humanization of International Law.Footnote 79 He also draws upon other work, including `Revival of Customary Humanitarian Law', which serves as the foundation of the treatment of customary law in the volume. This volume does much more than expand the analysis from humanitarian law to other areas of international law (Chapters 1, 2, and 4). It also addresses cross-cutting issues of the effect of humanization on the sources of international law (Chapter 6), treaty interpretation (Chapter 3), and the subjects (state and non-state) of international law (Chapter 5). There are also two chapters on key institutional players, such as international courts (Chapter 7) and United Nations institutions (Chapter 8).
Meron expands on the focus of his earlier article, not only addressing international law beyond humanitarian law but also amplifying his analysis of the interactions of humanitarian law and human rights law, such as his treatment of the Martens clause and the application of humanitarian law by human rights organs.Footnote 80 He treats the criminalization of violations of international humanitarian law as a separate instantiation of the humanization of international law, respecting international criminal law as its own separate domain with its own principles and limits.Footnote 81 In particular, nullum crimen sine lege may modify the application of international humanitarian law to the individual accused. The effect of human rights on state responsibility is described as a development from bilateral state obligations to obligations erga omnes.Footnote 82 The effect is not merely to expand state obligations, but also to influence the circumstances precluding wrongfulness – where humanitarian concerns regarding distress, necessity, or consent create exceptions to a rule of state responsibility.Footnote 83 Humanization has clearly had a major effect on humanitarian law, international criminal law, and state responsibility, according to Meron's analysis.
The Humanization of International Law goes beyond the effect of humanization on these substantive areas of law, to discuss more generally humanization's effect on the sources of international law, particularly on treaties and treaty interpretation, and on the subjects (state and non-state) of international law. With respect to the sources of law, Meron covers treaty law extensively along with his chapter on treaty interpretation. In discussing the effect humanization has had on treaty law, the volume explores the effect of jus cogens norms and the complex interactions of reservations and severability in the context of normative treaties that operate on each party per se, not through reciprocity between the parties inter se.Footnote 84 Meron's analysis of customary law and general principles of law builds upon `Revival of Customary Humanitarian Law', but grapples much more explicitly with the influence of human rights on these two sources. The approach is generally careful, noting the impact on more modern approaches to establishing law via these sources but giving detailed airing of the views of defenders of a more traditional approach.
The final chapters of The Humanization of International Law focus on institutional developments in two courts (the International Court of Justice and the European Court of Human Rights) and the United Nations. These chapters are rich in detail and interesting in their particulars, but the overall theme is perhaps the most useful point – the effect of human rights is widespread in institutions where it used to play a more minor role (the ICJ and the UN) and institutions with human rights at their core are applying those human rights norms to wide areas of international law. The material here covers some similar subject matter to previous sections, including treaty interpretation and state responsibility, but also newer subject matter such as protection of the environment, sanctions, and humanitarian intervention.
In sum, The Humanization of International Law is broad in scope, but comparatively humble in ambition. Meron traces a widespread phenomenon (humanization) across a wide variety of areas within international law. The volume methodically covers its material, allowing the reader to easily select a particular area and glean Meron's thoughts independently. Together, Meron's writings make a powerful case that humanization is a widespread phenomenon, one that is likely to continue to shape international law in profound ways.
5. Conclusion: which approach is preferable?
The most important question may not be the objective issue of whether humanity law exists, but the question whether it should exist. Perhaps it is premature to discuss ‘humanity law’ as an existing fact, and indeed Teitel's scholarship on the subject reflects a great deal of awareness of the emerging nature of the proposed framework. But the subject is ripe to discuss as a goal. Would it be better to establish humanity law, or to accept a more limited humanization of international law? Revolution or reform?
One critique of the more revolutionary approach embodied by Humanity's Law might lie in its durability. By claiming no single taproot, no clear claim of an enduring legal tradition to provide a sense of rootedness and sustenance, it is unclear that the area of humanity law would endure even if established. Of course, some plants endure without roots – epiphytes, such as Spanish moss or certain orchids – but such vegetation rarely displaces the older plants upon which it grows. Of course, the maxim of Roman law hominum causa omne jus constitutem est (all law is created for the benefit of human beings) might serve as a response to this critique – concern for human beings is hardly a new concern in law. This maxim, cited in Prosecutor v.Tadić Footnote 85 and recited in Humanity's Law,Footnote 86 might serve as the first principle of humanity law, and help guide those interpreting law to reveal it in the best possible light.Footnote 87
One might also ask whether the attempt to establish humanity law can do harm, or at least whether the promise outweighs any drawbacks. Teitel claims that the promise of humanity law includes ‘a distinctive human-centered global justice, a modicum of the rule of law that guarantees a measure of human security and accountability’.Footnote 88 Against that promise, one must weigh the dangers Teitel herself has identified. First, the flexibility of the concept might be used as a tool in the hands of powerful actors, for example being used to authorize or justify inadvisable humanitarian interventions.Footnote 89 Second, and more pervasively, human rights discourse and other traditions such as international criminal law and international humanitarian law may be degraded as providing their own independent perspectives. Spanish moss may not be able to displace a forest in which it hangs, but that does not mean it is incapable of reducing the progress of the host tree, particularly a sapling.
That said, promoting what amounts to a revolution in international law – a new constitution for international law that would transform its sources, means of interpretation, and essential substance – in a certain sense secures the ground for more modest programmes of reform. Humanity's Law, and the intellectual effort it represents, may contribute greatly to the further humanization of international law in practice, as long as the cautious notes of the effort to detail the effects of humanization are not lost by conflating the two approaches.
Continuing reform might start at the nexus of human rights law and the law of armed conflict, where both Teitel and Meron began their explorations. While ruminating on the effect of concern for the human on such far-flung areas as treaty interpretation and internal practice at the United Nations is both interesting and important, there is unfinished work to be done on implementing minimum humanitarian standards, particularly in the context of the changing nature of modern transnational armed conflicts, non-international armed conflicts, and situations of great internal violence. The prehistory of Meron's explorations on the subject of humanization, what he has sometimes called ‘homo-centrism’, would include the ‘Declaration of Minimum Humanitarian Standards’ or ‘Turku Declaration’. When published in the American Journal of International Law, Meron and Allan Rosas (two of the principal authors of the declaration) noted that the difficulties in protecting human dignity ‘are compounded by the inadequacy of the non-derogable provisions of human rights instruments, the weakness of international monitoring and control procedures, and the need to define the character of the conflict situations’.Footnote 90 These are enduring problems, which directly affect those most vulnerable to human rights abuses. Those truly focused on a human-centred approach and interested in the continuing humanization of international law or creating humanity law might focus their energies on implementing minimum humanitarian standards first.
