Torture and the politics of legitimation in international law

Research output: Chapter in Book/Report/Conference proceedingChapter

3 Scopus citations

Abstract

Introduction All manifestations of political power eventually lead to questions about their legitimacy. The institutions of international human rights aspire to have power over governments and over individuals, and to the extent that they succeed the legitimacy of their authority is worth investigating. How and when can political authority be justified as legitimate, and what consequences follow from it? These questions are increasingly addressed to international law and organizations as a consequence of a perceived shift in the location of political power from the state to a more decentralized model of “governance without government” (Clark 2005; Hurd 2007; Lindseth 2010). The institutions of domestic democratic governance are widely credited with providing legitimacy to the modern state, and the transfer of political authority from democratic states to nondemocratic international rules or bodies reopens the legitimacy problem anew. Human rights laws and courts have seen tremendous growth since the 1980s. The power of these institutions leads directly to inquiries into their fairness, their accountability, and their foundation, all of which are in some form questions about legitimacy. However, most discussion of the connection between human rights rules and legitimacy has focused on the particularly narrow question of how legitimation might increase compliance. In other words, what institutional arrangements might be made in order to increase state compliance with the set of desirable human rights obligations? This is a question of institutional design and it is at the heart of much of the recent literature at the intersection of international law and political science (Hafner-Burton, Victor, & Lupu 2012; Koremenos, Lipson, & Snidal 2003; Simmons 2009). It operationalizes legitimacy as a causal factor that might change state behavior toward compliance, and then seeks to manipulate it as a variable in ways that will contribute to higher levels of compliance. This leads to debates over which set of human rights can be seen as legitimate, and what institutional arrangements are legitimate in order to realize them. The pursuit of international human rights through international law is premised on the idea that legitimation of the rules or human-rights institutions is a step toward better compliance by states.

Original languageEnglish (US)
Title of host publicationThe Legitimacy of International Human Rights Regimes
Subtitle of host publicationLegal, Political and Philosophical Perspectives
PublisherCambridge University Press
Pages165-189
Number of pages25
ISBN (Electronic)9781139540827
ISBN (Print)9781107034600
DOIs
StatePublished - Jan 1 2011

ASJC Scopus subject areas

  • Social Sciences(all)

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