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Chapter

Cover Human Rights: Politics and Practice

4. Human Rights in International Law  

Rhona K. M. Smith

This chapter examines the international legal context of human rights. It first considers the historical evolution of international human rights law, with particular emphasis on the reincarnation of philosophical ideals as international laws (treaties), before discussing the principal sources of international human rights law such as customary international law and ‘soft’ law. It then describes the various forms of expressing human rights, along with the core international human rights instruments. It also explores the mechanisms for monitoring and enforcing human rights, including the United Nations system, regional human rights systems, and national human rights systems. Finally, it explains the process followed for a state wishing to be bound to the provisions of a treaty and the benefits of listing human rights in treaties.

Book

Cover The Politics of International Law
This book is an introduction to international law for politics and international relations students. It provides a deep understanding of the possibilities and limits of international law as a tool for structuring relations in the world. The case study-driven approach helps students understand the complexities of international law, and illustrates the inextricable interaction between law and politics in the world today. In addition, it encourages students to question assumptions, such as whether international law is fit for purpose, and what that purpose is or ought to be. The book also discusses the potential of rising powers to shift the international system.

Chapter

Cover The Politics of International Law

1. Introduction  

What is international law and why does it matter for international relations?

This introductory chapter provides an overview and a brief history of international law. Why should students of international relations be interested in international law? International politics and international law are so closely intertwined that one cannot be understood without understanding the other. The United Nations describes international law as ‘the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries’. Just as domestic law frames a political community and regulates relations among its members, international law helps to frame international society, to signal its core values, and to regulate relations among states and other actors. The chapter then considers two philosophical traditions that have shaped the study and practice of international law over the past four centuries: natural law and legal positivism.

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Cover The Politics of International Law

2. International law and international relations theory  

This chapter discusses international law (IL) and international relations (IR) theory. It studies legal theory in order to better understand what law is, and how IL compares with domestic law. The chapter then introduces the major schools of IR theory, with a focus on how they conceptualize IL and its role in enabling and constraining the conduct of international politics. The disciplinary estrangement between IR and IL began to ease at the end of the 1980s. By that time there were already important strands within IR, including the English School, that were seeking to explain the prevalence of cooperation in an anarchical international system. New generations of IR scholars began theorizing the role of IL in structuring international politics, particularly from the perspectives of liberalism and constructivism, as well as from a range of critical approaches.

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Cover The Politics of International Law

3. Locating law in the international system  

This chapter examines the sources of international law. International legal rules are not as easily located as their domestic law counterparts. Whereas at the domestic level, only a relatively small number of bodies are endowed with law-making powers, at the international level, all states have law-making capacity. Moreover, state acts are not the only source of international legal rules. The result is a mosaic of law-making processes, forums, and regimes. The chapter focuses on the two most significant sources of international law: treaties and customary international law. It then turns to the relationship between international law-making and the principle of state sovereignty. Finally, the chapter considers the body of non-binding norms, which increasingly permeates and regulates all facets of international life. This so-called soft law takes many forms; it is often highly influential in its own right and may harden into binding law over time.

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Cover The Politics of International Law

13. International criminal justice  

From Nuremberg to the International Criminal Court

This chapter assesses whether international politics can be conducted in the courtroom. It begins with an analysis of the post-Second World War Nuremberg tribunal. While flawed in many ways, these proceedings marked a significant change in thinking about international crimes and individual responsibility. Though the onset of the Cold War prevented the translation of the Nuremberg legacy into more permanent, treaty-based international institutions, the ideas Nuremberg incubated were to have a lasting impact on international law. As in so many other areas of international law and international politics, the end of the Cold War was a watershed. The 1990s saw the revival of ad hoc international criminal tribunals, most notably the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda. The chapter then examines the International Criminal Court, which is, in many ways, the culmination of efforts to institutionalize international criminal justice.

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Cover The Politics of International Law

11. International humanitarian law  

This chapter investigates whether and how the laws that govern armed conflict achieve their objective of minimizing the suffering of combatants and non-combatants alike. International humanitarian law (IHL) reflects the tensions of an international legal order that oscillates between the apologist tendency to reflect state practice and state self-interest and the utopian desire to reflect higher values of justice and human dignity. The chapter begins with a brief overview of the evolution of this body of law, the codification of which dates from the second half of the nineteenth century. It then turns to the question of terminology, analysing the political origins and legal implications of the relatively recent term ‘international humanitarian law’. The chapter focuses on two key questions. Firstly, who or what is a legitimate target during an armed conflict? Secondly, what are legitimate means of conducting armed conflict? The chapter also considers the status of nuclear weapons under international law, a topic that captures well both the possibilities and limits of IHL.

Chapter

Cover The Politics of International Law

14. The politics of international law  

Continuity and change

This chapter draws together the key themes of this book, using contemporary debates over the nature and future of international order, and explores likely sources of continuity and change in the politics of international law. It begins by expanding on the concept of international order and, more specifically, the so-called liberal international order that has framed international politics in the postwar period. The chapter asks whether and why the liberal international order is in crisis and how it is likely to evolve. It then turns to the rise of non-Western powers, a phenomenon that many observers have argued is contributing to the crisis of the current order. The focus is on what the changing balance of material power may reveal about the present and future of international law. Finally, the chapter offers some tentative conclusions about the politics of international law two decades into the twenty-first century.

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Cover The Politics of International Law

5. Compliance and enforcement in international law  

This chapter assesses why international legal obligations are (or are not) complied with, and how they are (or are not) enforced. It begins by drawing a distinction between laws and norms. The chapter then examines the main explanations for international law compliance put forward by both international law and international relations scholars. These may be broadly grouped into two categories: instrumentalist explanations and normative explanations. The chapter also discusses the concept of state responsibility—that is, the body of rules governing when and how states may be held liable for violations of international law. International law-enforcement is indelibly shaped by the condition of international anarchy. According to the concept of self-help, an injured state may, under certain circumstances, unilaterally take countermeasures against the guilty party. Such measures may include sanctions, though these may also be ordered by the UN Security Council as a collective security measure. The international legal system also increasingly makes use of judicial procedures that approximate those found within states. In this connection, the chapter considers the role of courts and tribunals in adjudicating disputes and promoting compliance with international law.

Chapter

Cover Human Rights

Human Rights in International Law  

Rhona K. M. Smith

This chapter focuses on human rights within international law. It discusses the principal monitoring systems that ensured states complied with their international human rights treaty obligations. Some human rights agreements involved the abolition of slavery, humanitarian law, and labour rights. The chapter then lists treaties, customary international law, and soft law as the sources of international human rights law. States generally indicate their acceptance of international human rights law by agreeing to treaties, but they could avoid the full impact of legal obligations through reservations, derogations, and declarations. Thus, the existing mechanisms for monitoring human rights have a light touch that encouraged states to comply with treaties through constructive dialogue instead of any court processes.

Chapter

Cover Global Politics

8. International Law  

This chapter describes the broad challenges involved in establishing global order under conditions of anarchy through international law. The fact that there is no world government with powers akin to national governments means that maintaining cooperative relations between and among states is always a careful balancing act, given the problem of enforcing international law in the absence of a single, overarching sovereign authority. The chapter looks at law in the global sphere through the notion of rule of law. It then considers the emergence of international law in broad historical perspective. Moving on to international law in the twentieth century, and up to the present period, the chapter examines the nature of treaties, charters, and covenants which operate in multiple issue areas from postal services, trade, and aviation to communications, the environment, and human rights. It also focuses on two major international courts: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Finally, the chapter reflects on how the principles and practices of a rules-based international order are faring in the contemporary period with a focus on Russia, China, and the US.

Chapter

Cover The Politics of International Law

8. Human rights in the postwar period  

This chapter focuses on human rights, a perfect topic through which to study the interaction between law and politics in international relations. The topic of human rights offers a microcosm of the clashes and contradictions between realism and idealism, legal principles and political expediencies, state and non-state actors, and collective and individual rights, which characterize international order. The chapter defines human rights and outlines their international legal framework. The chapter then traces the postwar evolution of international human rights law (IHRL). It explains how, by the late twentieth century, the concept of human rights had captured the global imagination. It also explores the international political context in which the rise of human rights took place, including decolonization and the explosion in rights-based civil society activism in the 1970s. Finally, the chapter analyses the efficacy of IHRL in a world of sovereign states, before assessing the cultural relativist critique of human rights, which challenges their claim to universality, often from the perspective of postcolonial societies.

Chapter

Cover Security Studies: Critical Perspectives

7. War and socio-political orders  

Victoria M. Basham

This chapter evaluates the relationship between war and society. The tendency to define war as fighting has led humanity to collectively condemn and attempt to curtail war horrors through international laws and regulatory practices. It is therefore easy to see why states around the world see preparing for war and waging it as vital to their security. The chapter focuses on three key questions: where is war? How is war possible? What (or who) does war secure? Asking these questions enables a deeper understanding of the choices that societies make about why, when, and where to fight and prepare for war; how the choices of actors and their actions make war possible; and the benefits and costs to people's security that wars can bring about. Indeed, such questions can help us to evaluate whether we should continue to prepare and wage war, and for what purposes.

Chapter

Cover International Relations and the European Union

15. Migration: The Dilemmas of External Relations1  

Christopher Hill

In the 21st century, migration has become a significant issue in international politics. The European Union (EU), as a zone of wealth and liberal democracy geographically close to the poor and often war-torn states of north Africa and the Middle East, has been a magnet to people desperate to improve their standard of living outside their own countries. But neither the individual EU member states, who retain full control over their own external borders, not the EU, have managed to settle on policies which strike a balance between their obligations to provide asylum and the increasing political pressures at home to restrict immigration. This chapter describes how migration has turned into a problem of foreign policy for the EU, and how efforts to forge a commonpolicy have mostly failed, including the management of the common external frontier. It goes on to discuss the EU’s relationship with international law and other international institutions, in the context of the constraints imposed by a turbulent external environment. The chapter concludes by examining the attempts to sub-contract the implementation of migration management to third states, focusing on relations with Turkey and with Libya.

Chapter

Cover The Globalization of World Politics

19. International law  

Christian Reus-Smit

This chapter examines debates surrounding the nature and efficacy of modern international law. It begins by discussing the reasons why international societies construct institutions, and why different sorts of institutions have emerged in different historical contexts. It then considers the nature and origins of the modern institution of international law, its relationship with the practice of multilateralism, and the recent cosmopolitanization of the global legal order. It also explores the laws of war and concludes with an overview of different theoretical approaches to international law such as realism, neoliberal institutionalism, and constructivism. Two case studies are presented: the first is about whether international law is an expression of Western dominance and the second is about individual criminal accountability in non-Western countries.

Chapter

Cover The Globalization of World Politics

19. International law  

Christian Reus-Smit

This chapter examines debates surrounding the nature and efficacy of modern international law. It begins by discussing the reasons why international societies construct institutions, and why different sorts of institutions have emerged in different historical contexts. It then considers the nature and origins of the modern institution of international law, its relationship with the practice of multilateralism, and the recent cosmopolitanization of the global legal order. It also explores the laws of war and concludes with an overview of different theoretical approaches to international law such as realism, neoliberal institutionalism, and constructivism. Two case studies are presented: the first is about whether international law is an expression of Western dominance and the second is about individual criminal accountability in non-Western countries. There is also an Opposing Opinions box that asks whether international law has any real effect on the nature and conduct of international relations.

Chapter

Cover Global Politics

6. Law  

This chapter evaluates how law has come to function as a form of authority in global politics. It examines the myth of how international law provides a form of moral authority justifying rules, institutions, and enforcement mechanisms that will civilise global politics. As global politics is dominated by the struggle for survival between states and their conflicting self-interests, the myth of international law’s impossibility confronts its limitations. The chapter acknowledges the ambiguity of international law’s fundamental feature in the global scene as it simultaneously maintains global order and mediates political change. It references the work of Finnish international lawyer Marti Koskenniemi on questioning how the conflicts within international law are decided.

Chapter

Cover Human Rights: Politics and Practice

7. Contemporary Critiques of Human Rights  

David Chandler

This chapter examines contemporary critiques of human rights, focusing on the downside of human rights claims — what is commonly understood by advocates of human rights to be the ‘misuse’ or ‘abuse’ of human rights. It first considers how human rights claims conflate ethical and legal claims because the subject of rights is not a socially constituted legal subject. It then discusses the rise of human rights as well as the relationship between human rights claims and international interventions such as humanitarianism, international law, and military intervention. In particular, it analyses the ethical, legal, and political questions raised by the Kosovo war. The chapter shows that there is a paradox at the heart of the human rights discourse, which enables claims made on behalf of victims, the marginalized, and excluded to become a mechanism for the creation of new frameworks for the exercise of power.

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Cover The Politics of International Law

4. International organizations, states, and global governance  

This chapter evaluates global governance and how it relates to international law. It addresses the role of international organizations in processes of global governance, charting their rise from the nineteenth century onwards. Two international organizations exemplify semi-legalized governance beyond the state: the United Nations and the European Union. Sovereign states, of course, continue to play a central role in the institutions, processes, and mechanisms of global governance. The chapter then explores the extent to which a state’s power, influence, and legitimacy are affected by factors such as its domestic political arrangements and its adherence to the liberal, Western values that underpin the postwar order. It also assesses whether the proliferation of legalized and semi-legalized global governance regimes amounts to a constitutionalization of international relations.

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Cover The Politics of International Law

7. Global economic and trade governance  

This chapter addresses the intersection of international law and international politics as it relates to global trade. To study global economic governance is to study international law, international relations, and international political economy (IPE) all at once. The chapter begins with a brief introduction to IPE, a discipline which seeks to understand the workings of the global economy in its political context. It examines the relationship between economic globalization and state sovereignty, before turning to the construction of the postwar global economic order, with a focus on the Bretton Woods institutions. The postwar global economic order has often been described as ‘liberal’ by virtue of its underlying assumptions and the ideological convictions of its framers. Importantly, the postwar liberal order was built by, and for, the developed countries of the Global North-a fact that has informed critiques emanating from the developing countries of the Global South. The chapter then assesses global trade governance, analysing the structure, powers, and role of the World Trade Organization.