This book provides an expanded conceptualization of legalization that focuses on implementation of obligation, precision, and delegation at the international and domestic levels of politics. By adding domestic politics and the actors to the international level of analysis, the authors add the insights of Kenneth Waltz, Graham Allison, and Louis Henkin to understand why most international law is developed and observed most of the time. However, the authors argue that law-breaking and law-distorting occurs as a part of negative legalization. Consequently, the book offers a framework for understanding how international law both produces and undermines order and justice. The authors also draw from realist, liberal, constructivist, cosmopolitan and critical theories to analyse how legalization can both build and/or undermine consensus, which results in either positive or negative legalization of international law. The authors argue that legalization is a process over time and not just a snapshot in time.
Author(s): Henry (Chip) Carey, Stacey M. Mitchell
Publisher: Palgrave Macmillan
Year: 2023
Language: English
Pages: 307
City: Cham
Contents
1 Introduction: Re-Conceptualizing Legalization—The Positive and Negative Uses and Effects of International Law
Concept of Legalization
Obligation to Be Legally Bound by the Law
Precision of the Law
Delegation of Authority to Implement, Interpret, and Apply Rules to Resolve Disputes
Precision and Obligation Involve Implementation
Third-Party Resolution Is Not Necessarily “More Is Better”
Critiques
More Critical Perspectives
Cosmopolitan Approaches
Conclusion
2 Legalization with Lawyers in Lawfare: The Case of National Security
Intermediate Causes of International Law Compliance
Global Civil Society
Opposing Tans in Divided Global Civil Society
Example of International Criminal Tribunals
Catalytic Causes: Legal Activism
Pragmatists
Rationalizing the Legal
Conclusion
3 Legalization of Reform of Torture Laws and Practices: Compliant, Exceptionalist, and Hybrid Types
International Torture Regime
Compliant Democracies
France
Argentina
Exceptionalist Democracies
The United States
Israel
Hybrid Democracies
Poland
Explaining the Differences Between the Three Types of Democracies
Conclusion
4 Limits to the Legalization of Economic, Social, and Cultural Rights: Ambiguous Obligation and Imprecision with Varying Implementation
ESCRs
Historical Background and Current Challenges
Right to an Adequate Standard of Living
COVID-19 and ESCRs Violations
Responses to COVID-19/Pandemic
Education
UN Monitoring and Protection of ESCRs
Refugees/Migrants
Thematic Studies of ESCRs
NGO Monitoring of ESCRs
Corruption
Inflation
Gender Inequalities/Violence Against Women/Women’s Rights
Health
Racism/Race Discrimination
Dilemmas in Monitoring ESCRs
Conceptualizing the Evidence of NGO Impacts
Climate Action/Climate Change
Possible Collaboration Between Neoliberal and Progressive TANs on ESCRs
Conclusions
5 Positive and Negative Legalization of Women’s Rights: The Limits on Implementation by the Committee for the Elimination of Discrimination Against Women
Un Charter-Based and Treaty-Based Gender Rights Regimes
UN Charter-Based Regimes
Treaty-Based Regimes
Conclusion
6 Legalization of Human Rights in Africa
The Push for Human Rights on the African Continent
Institutionalization of Human Rights Laws Prohibiting Tortures, Disappearances, and Political Killings in African States
Conclusions
7 European Regional Effects on Legalization
Contemporary Struggles
Country Studies
Responses to Russian Aggression
Conclusions
8 Conclusions About Legalization
Positive/Negative Legalization
Monism vs. Dualism
Strong States/Weak States
Multilateral Monitoring
Type of Regime
International Level of Legalization
Index
