Permissive Constraint

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
International Law ◽  
Limit State ◽  
The United States ◽  
State Violence ◽  
Contemporary Culture ◽  
Human Rights Abuses ◽  
Legal Norms ◽  
Legal Rules ◽  
Legal Justification

Can legal norms limit state violence? International relations and international law scholarship provide a variety of answers to this problem. Realist, decisionist, and critical theorists conceptualize law as permit, as a weak constraint on and tool of powerful states. In contrast, liberals and constructivists emphasize law’s capacity to constrain states for rationalist and normative reasons. This chapter examines whether these contending perspectives adequately account for how authorities navigate legal rules across legal cultures. It argues that legal cultures of exception and secrecy tend to operate in accordance with the assumptions of law as permit, while largely aspirational cultures of human rights fulfill a vision of law as constraint. In the United States’ contemporary culture of legal rationalization, law serves as a permissive constraint. Permissive legal interpretation has enabled American officials to establish legal cover for human rights abuses, while legal norms simultaneously delimit the plausibility of legal justification.

The Politics of Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
National Security ◽  
International Law ◽  
State Violence ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
Political Actors ◽  
Legal Norms ◽  
Legal Rules ◽  
Global War

After 9/11, the Bush administration and, to a lesser degree, the Obama administration authorized controversial interrogation, detention, trial, lethal targeting, and surveillance practices. At the same time, American officials frequently invoked legal norms to justify these policies. This chapter introduces the book’s central questions: how can we make sense of these attempts to legalize human rights abuses and how does law influence state violence? As initially outlined in this chapter, the book argues that national security legal cultures shape how political actors interpret, enact, and evade legal rules. In the global war on terror, a culture of legal rationalization pushed American authorities to construct plausible legality, or legal cover for contentious counterterrorism policies. This culture contrasts with cultures of exception and cultures of secrecy, which have shaped American national security practice in the past, as well as a culture of human rights favored by many international law and human rights advocates.

scholarly journals The Long View on Kiobel: A muted Victory for International Legal norms in the United States?

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 13-19
Author(s):  
Marco Basile
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
The United States ◽  
Historical Record ◽  
Sovereign State ◽  
Human Rights Abuses ◽  
Majority Opinion ◽  
Legal Norms ◽  
Federal Jurisdiction

Kiobel v. Royal Dutch Petroleum Co. may be a Trojan horse. Observers who are sympathetic to the adjudication in U.S. courts of international legal norms—such as those against torture— have criticized the decision for limiting federal jurisdiction over human rights abuses abroad. Yet, despite this price, Kiobel might ultimately strengthen the foundation of international legal norms in U.S. courts. Chief Justice John Roberts's majority opinion, limiting the Alien Tort Statute (ATS) from reaching overseas, rested on the principle that one sovereign state should not usually apply its laws within the borders of another sovereign state, and that idea is a bedrock principle of international law. The majority avoided the connection to international law by dressing up the presumption against extraterritoriality in a foreign-policy rationale, but its argument does not square with the historical record, especially when it comes to piracy.

scholarly journals U.S. Race Relations and Foreign Policy

2021 ◽  
pp. 77
Author(s):  
Susan Page
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Policy ◽  
United Nations ◽  
International Law ◽  
Race Relations ◽  
The United States ◽  
Human Rights Abuses ◽  
Call To Action ◽  
The United Nations

It is easy for Americans to think that the world’s most egregious human rights abuses happen in other countries. In reality, our history is plagued by injustices, and our present reality is still stained by racism and inequality. While the Michigan Journal of International Law usually publishes only pieces with a global focus, we felt it prudent in these critically important times not to shy away from the problems facing our own country. We must understand our own history before we can strive to form a better union, whether the union be the United States or the United Nations. Ambassador Susan Page is an American diplomat who has faced human rights crises both at home and abroad. We found her following call to action inspiring. We hope you do too.

Germany's Involvement in Extraordinary Renditions and Its Responsibility under International Law

2007 ◽  
Vol 25 (4) ◽  
pp. 1-30
Author(s):  
Laura Tate Kagel
Keyword(s):  
Human Rights ◽  
International Law ◽  
Middle Eastern ◽  
Public Attention ◽  
Human Rights Abuses ◽  
Legal Rules ◽  
The Government

This article investigates Germany's role in CIA "extraordinary renditions" of terrorist suspects, focusing on two cases involving German citizens of Middle Eastern descent (Khaled el-Masri and Mohammed Zammar), and one case of an Egyptian cleric who had resided in Italy and was likely transferred to Egypt via a U.S. military airport in Germany (Abu Omar). Amid recent revelations about the extent of the CIA program for transferring and interrogating terrorism suspects, the question of Germany's potential responsibility under international law has gained public attention. Against the background of international legal rules governing responsibility of assisting states, this article examines what was known in Germany about human rights abuses in the above cases and evaluates official steps taken by the government to prevent or uncover violations. In the conclusion, the article addresses the need for increased institutional safeguards to hinder German involvement in questionable U.S. counterterrorism practices.

scholarly journals The Importance of Being Quasi-Democratic - the Domestication Of International Human Rights in American and Arab Politics

2007 ◽  
Vol 38 (2) ◽  
pp. 317 ◽  
Author(s):  
David Mednicoff
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
Democratic Legitimacy ◽  
International Human Rights ◽  
Legal Norms ◽  
Political Processes ◽  
Regime Types ◽  
International Human ◽  
Human Rights Norms

The paper builds on a comparative treatment of the politics of contestation and incorporation of human rights law in the United States, Morocco and Tunisia to highlight the salience of international law's democratic legitimacy problems of popular representation and mobilization. The author shows that Morocco enjoyed the most sustained and broadest recent mobilisation of these cases in the domestic extension of international human rights norms. This finding suggests four conclusions. First, democratic legitimacy problems for international law are similar across more and less democratic regime types. Second, the democratic legitimacy problem allows states to use populist appeals to justify their internal deviations from international legal norms. Third, international human rights norms stand the best possibility of mitigating these legitimacy concerns and permeating domestic practice when they have a basis in a pattern of contestation that engages more than a narrow elite, and which might therefore be called quasidemocratic. Fourth, these points demonstrate the imperative of comparing the political processes for the domestic incorporation of international law across different spaces and regime types. 

The Fate of Human Rights in the Global War on Terror

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
The United States ◽  
State Violence ◽  
Humanitarian Law ◽  
Global War On Terror ◽  
Legal Norms ◽  
Indefinite Detention ◽  
Global War ◽  
Trump Administration

American officials attempted to construct the plausible legality of torture, indefinite detention, targeted killing, and mass surveillance in the global war on terror. These efforts were largely successful, foreclosing prosecution and ensuring impunity for human rights violations. Moreover, with the exception of torture, many of these counterterrorism practices persist and enjoy widespread acceptance. Around the world, international human rights and humanitarian law have been weakened by American efforts to erode and reinterpret constraints on state violence. This has created space for more overt attacks on legal norms by the Trump administration, which has signaled its intent to shift American national security legal culture toward the politics of exception. At the same time, international law advocates are pushing back. The chapter concludes by reflecting on possible pathways for promoting a culture of human rights in the United States.

Making Human Rights a Reality

2013 ◽  
Author(s):  
Emilie M. Hafner-Burton
Keyword(s):  
Human Rights ◽  
International Law ◽  
World Population ◽  
International Human Rights Law ◽  
Legal Norms ◽  
Human Rights Protection ◽  
National Human ◽  
The World ◽  
Protection Of Human Rights ◽  
National Human Rights Institutions

In the last six decades, one of the most striking developments in international law is the emergence of a massive body of legal norms and procedures aimed at protecting human rights. In many countries, though, there is little relationship between international law and the actual protection of human rights on the ground. This book takes a fresh look at why it's been so hard for international law to have much impact in parts of the world where human rights are most at risk. The book argues that more progress is possible if human rights promoters work strategically with the group of states that have dedicated resources to human rights protection. These human rights “stewards” can focus their resources on places where the tangible benefits to human rights are greatest. Success will require setting priorities as well as engaging local stakeholders such as nongovernmental organizations and national human rights institutions. To date, promoters of international human rights law have relied too heavily on setting universal goals and procedures and not enough on assessing what actually works and setting priorities. This book illustrates how, with a different strategy, human rights stewards can make international law more effective and also safeguard human rights for more of the world population.

Plausible Legality

2018 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
State Violence ◽  
Habeas Corpus ◽  
Global War On Terror ◽  
Political Actors ◽  
Legal Norms ◽  
Drone Strikes ◽  
Indefinite Detention ◽  
Global War ◽  
Enhanced Interrogation

After 9/11, American officials authorized numerous contentious counterterrorism practices including torture, extraordinary rendition, indefinite detention, trial by military commission, targeted killing, and mass surveillance. While these policies sparked global outrage, the Bush administration defended them as legally legitimate. Government lawyers produced memoranda deeming enhanced interrogation techniques, denial of habeas corpus, drone strikes, and warrantless wiretapping lawful. Although it rejected torture, the Obama administration made similar claims and declined to prosecute abuses. This book seeks to understand how and why Americans repeatedly legally justified seemingly illegal security policies and what this tells us about the capacity of law to constrain state violence. It argues that legal cultures shape how political actors interpret, enact, and evade legal norms. In the global war on terror, a culture of legal rationalization encouraged authorities to seek legal cover—to construct the plausible legality of human rights violations—in order to ensure impunity for wrongdoing. In this context, law served as a permissive constraint, enabling abuses while imposing some limits on what could be plausibly legalized. Cultures of legal rationalization stand in contrast with other cultures prevalent in American history, including cultures of exception, which rely on logics of necessity and racial exclusion, and cultures of secrecy, which employ plausible deniability. Looking forward, legal norms remain vulnerable to manipulation and evasion. Despite the efforts of human rights advocates to encourage deeper compliance, the normalization of post-9/11 policy has created space for the Trump administration to promote a renewed culture of exception and launch bolder attacks on the rule of law.

Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’

2017 ◽  
Vol 44 (1) ◽  
pp. 2-23 ◽  
Author(s):  
Rebecca Sanders
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
State Violence ◽  
Legal Compliance ◽  
Liberal Democracies ◽  
Global War On Terror ◽  
Human Rights Abuses ◽  
Indefinite Detention ◽  
Protection Of Human Rights ◽  
Global War

AbstractLaw following and law breaking are often conceptualised as polar opposites. However, authorities in liberal democracies increasingly deploy a strategy of what I callplausible legalityin order to secure immunity and legitimacy for proscribed practices. Rather than ignore or suspend law, they construct legal justifications for human rights abuses and other dubious policies, obscuring the distinction between legal compliance and non-compliance. I argue this is possible because instabilities in legal rules make them vulnerable to manipulation and exploitation. By tracing American rationales for contentious ‘enhanced interrogation techniques’, indefinite detention, and ‘targeted killing’ practices in the ‘Global War on Terror’, I show that law need not always be abandoned or radically reconstituted to achieve troubling ends and that rule structures enable certain patterns of violation while limiting others. The international prohibition on torture is robust and universal, but provides vague definitions open to interpretation. Detention and lethal targeting regulations are jurisdictionally layered and contextually complex, creating loopholes and gaps. The article concludes by reflecting on implications for the protection of human rights. While law is not wholly indeterminate, human rights advocates must constantly advocate shared legal understandings that constrain state violence.

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