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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.

Chapter

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.

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 Foundations of European Politics

13. Rule of Law and Judicial Politics  

This chapter examines the importance of law and the rule of law by looking at real-life situations through the lens of theoretical models that consider why people obey the law and how judges interpret the law. The chapter considers when and why citizens and elected officials follow the law. It then moves to the conditions under which this obedience of laws falls. It also explores the importance of courts and judges in interpreting the law, and analyses the interaction of politics and law as a way to try to understand how judges come to their decisions. In particular, it looks at the interaction between national and European Union (EU) law.

Chapter

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 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 Political Thinkers

30. Oakeshott  

David Boucher

This chapter examines Michael Oakeshott's political thought, beginning with a discussion of his scepticism and its relation to the background theory of British idealism that informs all aspects of his philosophy. It then considers Oakeshott's belief that philosophy is the uncovering and questioning of the postulates upon which all our forms of understanding rest. Oakeshott has been characterized as a conservative, a liberal, and an ideologist, but this chapter argues that he was neither conservative nor liberal in any party-political sense. It goes on to analyse Oakeshott's views on the rationalist in politics, civil association and the rule of law, and politics and law as well as his characterization of the modern European state. The chapter concludes by assessing the importance Oakeshott attached to myth and legend in the self-consciousness of a society.

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.

Chapter

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 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 Introducing Political Philosophy

10. Judicial Review and Democracy  

William Abel, Elizabeth Kahn, Tom Parr, and Andrew Walton

This chapter argues that the state should use judicial review to constrain democracy. It identifies several rights that individuals possess, and then defends judicial review as a mechanism for protecting these rights. The chapter then considers the objection that judicial review is undemocratic because it constrains the laws that an electorate or their representatives might adopt. To explore this idea, it distinguishes two arguments in defence of democracy. The first holds that democracy is valuable because it produces good outcomes, and the second holds that democracy is valuable because it treats each member of a society equally when they disagree about which outcomes are good.

Chapter

Cover Introducing Political Philosophy

9. Minority Exemptions and Multiculturalism  

William Abel, Elizabeth Kahn, Tom Parr, and Andrew Walton

This chapter argues that there is a narrow range of cases in which the state should grant members of minority groups exemptions from laws and policies that apply to others. Social and economic institutions tend to favour the preferences of those who share the majority culture, with the result that a member of a minority group often faces additional burdens in complying simultaneously with the law and the demands of their culture or religion. The chapter draws on this to propose an initial case for minority exemptions. The justification for these exemptions sees them as part of a political programme of multiculturalism, which aims to treat members of minority groups fairly when designing and applying laws and policies. The chapter then looks at the limits of this argument to shed light on the range of cases in which the state should grant such exemptions.

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 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 Political Thinkers

13. John Locke  

Jeremy Waldron

This chapter examines and defends the relevance of John Locke's writings as political philosophy. Locke's political philosophy continues to have an enormous impact on the framing and the pursuit of liberal ideas in modern political thought — ideas about social contract, government by consent, natural law, equality, individual rights, civil disobedience, and private property. The discussion and application of Locke's arguments is thus an indispensable feature of political philosophy as it is practised today. After providing a short biography of Locke, the chapter considers his views on equality and natural law, property, economy, and disagreement, as well as limited government, toleration, and the rule of law. It concludes with an assessment of Locke's legacy as a political thinker.

Chapter

Cover Political Thinkers

8. Aquinas  

Joseph Canning

This chapter examines St Thomas Aquinas' political ideas. Aquinas combined Aristotelian ideas with Christian concepts, distinguishing between the natural and supernatural orders, and attributing inherent validity to the natural order, including political life. His theory of law linked, through reason, the eternal law of God, natural law, human positive law, and divine law. According to Aquinas, government's justification was its purpose — securing the common good. He favoured limited monarchy in a mixed constitution. The chapter first provides a short biography of Aquinas before discussing his views on natural and supernatural orders, government, tyranny, and temporal and spiritual power. It concludes with an assessment of Aquinas' contribution to political thought in the area of just war theory.

Chapter

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.

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 Research Methods in the Social Sciences: An A-Z of key concepts

Hermeneutics  

Theory and Methodology of Interpretation

Mélanie Samson

This chapter assesses hermeneutics, which can refer to an art, a methodological paradigm, or a philosophical movement. In its primary sense, hermeneutics is the art of interpreting texts correctly. Today, hermeneutic method is practised across the human sciences and applied to the study of all types of written texts, actions, and other meaningful material. The chapter then focuses on the relationship between hermeneutics and human sciences. It also examines hermeneutics as a methodological approach used in legal research and the practice of law. There are two broad notions of legal interpretation. According to the first — the prevailing and most traditional notion — the interpretation of the sources of law is knowledge-based; the interpreter’s task is to extract the pre-existing meaning of a legal text, as set out by its author. According to the second notion of legal interpretation, the activity involves the interpreter’s will. The interpreter’s task is to attribute meaning to a text, by choosing from several possible meanings.