1. Introduction
As the Introduction illustrated, there is room for interpretation of norms and for actors to strategically promote the norm understanding that best suits their interests and values.Footnote 1 Yet collective expectations limit interpretive freedom.Footnote 2 Social expectations matter because norms, by definition, are shared community standards. Actors need to legitimate their favored norm understanding vis-à-vis key audiences to avoid reputational costs – that is, they need to create the perception that their norm understanding is right.Footnote 3 Other community members may reject the interpretation an actor brings forward, which would negatively affect the actor’s reputation as a responsible community member. If the actor does not give up the contested interpretation, the community’s lack of acceptance weakens the actor’s credibility and social standing and reduces cooperation opportunities.Footnote 4 On the other hand, the actor whose interpretation wins has the chance of cementing its preferences and of holding others to account in the future.Footnote 5 Widespread acceptance of a new norm interpretation, in turn, creates collective expectations to comply with it, which can “entrap” even powerful states into following prior interpretations when they would later prefer to deviate from them.Footnote 6 There is little scholarship that has systematically explored different kinds of agreement and disagreement over the meaning of norms and how these disputes affect the strength of legal rules – especially their ability to “entrap” actors.
Before exploring different kinds of (dis)agreement over the meaning of norms and their implications for norm strength, it is important to go over and expand on some of the important analytical choices that were set out in the Introduction. This book focuses on legal rules that are well-established hard law in the field of international security: for example, the prohibition of the use of force and territorial integrity. There is a difference between “rules” and “norms,” in that the former might lack the “normative pull” that is essential to much of the processes and outcomes of contestation this book describes. As I focus on the “sovereignty norm bundle,” there is good reason to assume that the much subscribed to, frequently referred to, and institutionalized international rules that it contains have become norms, in the sense that they generate collective expectations to appropriately apply them.
I use the rules that govern the emergence of, and changes in, international law as guideline for identifying “agreement” and “disagreement” on norm interpretations. I treat abstentions and approval in the UNSC and states’ public support for a frame or claim as “agreement,” whereas “disagreement” requires public dissent.Footnote 7 This public dissent can take different forms, for example a veto in the UNSC or an actor’s public statement of disapproval.
Generally speaking, widespread state consent tends to be necessary for international law to develop further.Footnote 8 Silence can then be difficult to interpret. I treat silence as indecision before one norm interpretation has become prevalent. Once a norm interpretation is likely to become dominant, or if there are no clear alternative interpretations, I treat silence as tacit approval because states who disagree with a norm frame and claim have an incentive to publicly signal disapproval to quell a precedent that may produce unwanted obligations.Footnote 9 Hence, I focus on public debates over what norm frame applies to a given situation and what claim to action follows.
The analysis centers mostly on states because their reactions to norm interpretations have the most direct effect on legal norms given that widespread state consent tends to be necessary for international law to develop further. Sometimes the UNSC can issue binding resolutions under chapter VII of the UN Charter.Footnote 10 I then focus on UNSC member states, particularly the five veto powers (P5), because of their decision-making influence. This book also includes other critical actors in the analysis when they have decision-making authority over norm interpretation, such as the European Court of Justice (ECJ) (see Chapter 5), or when they exercise significant influence on states, such as transnational advocacy networks or domestic audiences (see Chapter 6). As explained in Section 4.1 of this chapter, we can build on Finnemore and Sikkink’s tipping point indicator, when examining whether agreement on a norm interpretation is becoming widespread.
As there is no “apex arbiter of what is legal or what is not,”Footnote 11 some scholars worry that international law provides little guidance for state behavior.Footnote 12 We can relativize these concerns by moving beyond a dichotomous understanding of norm contestation and acceptance. As I show in the following, identifying variation in the outcomes of norm contestation allows us to fully explore how norms are constructed by actors and structure their actions – what Wiener calls the “dual quality” of norms.Footnote 13
This chapter shows that treating norms as arguments allows us to capture variations in agreement and disagreement. Building on theories of political rhetoric,Footnote 14 we can break norms down into norm frames (norm-based justifications) and behavioral claims (conclusions for actions), and we can identify four alternate endings of norm contestation: norm clarification (frame and claim agreement), norm recognition (frame agreement and claim disagreement), norm neglect (frame disagreement and claim agreement), and norm impasse (frame and claim disagreement). Whether states (dis)agree on frames, claims, or both affects norm strength in distinct ways. I suggest two indicators for measuring norm strength: social strength, or how these different types of (dis)agreement affect precision; and scope, or relative strength vis-à-vis other norms. Moreover, these (dis)agreements have distinct implications for contestants’ reputations and for the duration of norm contestation. Distinguishing between alternate endings of norm contestation also helps us to better identify extrinsic influences on the persistence of norm interpretations. By extrinsic influences, I mean outside factors that affect the stability of norm interpretations, which are not inherent characteristics of the alternate endings (see Chapter 2). Examples are legitimation discourses, social pressure, and material power.
This chapter sheds light on the four different types of (dis)agreement and their implications. It proceeds as follows. I first introduce the “alternate endings” typology. I then provide guidance on how to identify frame and claim disagreements, before analyzing the relative stability of each “alternate ending.” The fifth section conceptualizes the implications of the “alternate endings” for norm strength, while the sixth section addresses how this book’s approach to assessing norm strength relates to prominent alternative theories. The chapter concludes by explaining why mapping norm contestation end points matters.
2. Breaking Down Disagreements: The Role of Frames and Claims
I adopt a rhetorical approach to studying disputes over norm interpretation. Like other scholars of rhetoric in IR, I assume that while actors may strategically use norm-based arguments, there are social expectations regarding acting consistently with prior interpretations, or justifying why norms should be applied differently to particular situations.Footnote 15 The arguments actors put forward thus give insights into their preferred understandings of norm meaning. Rhetoric scholars distinguish two aspects of an argument: a “frame” or “warrant” providing a justification for the “claim” or “implication,” which describes an action that follows from it.Footnote 16 Since the exchange of arguments reveals understandings of norms, we can also theorize norms as consisting of a frame and a claim. In law, this is essentially the difference between the rule (frame) and its application to a case that gives rise to a claim to action. For example, state A could argue that due to the prohibition of torture (frame), state B should stop waterboarding (claim). Other states may subsequently agree or disagree with the frame, claim, or both. Note that treating norms as arguments and distinguishing between norm frames and claims is mainly a helpful analytical tool for analyzing debates over the application of legal rules to specific situations. This distinction might not be as useful for analyzing abstract debates over norms, where frames and claims are less clear.
Krebs and Jackson and Schimmelfennig draw on Toulmin when differentiating between frames and claims.Footnote 17 Toulmin analyzes the structure of arguments and what elements make them persuasive.Footnote 18 The three most basic elements of an argument are warrants, claims, and grounds (factual data).Footnote 19 A warrant justifies the claim and explains why the grounds support the claim.Footnote 20 This concept aptly describes the function of frames in norm contestation, and I treat frames and warrants as equivalent.
In this understanding, norms are not static or abstract things but instead acquire meaning through application and debate. Following Goffman, scholars generally define frames as interpretive tools that allow actors “to locate, perceive, identify, and label” occurrences.Footnote 21 Frames help classify events, thereby rendering them meaningful and limiting the range of acceptable actions.Footnote 22 They signal normative commitment and provide actions with a justification. Whether we frame a declaration of independence as an exercise of the right to self-determination or a violation of state sovereignty will determine what actions are considered appropriate. Actors can use frames to highlight some aspects of reality while obscuring others, so as to win support for their interpretation.Footnote 23 Hence, the term “frame” draws our attention to what this part of a norm does: It signals commitment, offers a standard for assessment, and gives meaning. The term “claim” emphasizes that actors make assertions about what conclusions we can draw from applying a norm to a specific situation.
Other studies identify similar norm components: Winston speaks of a “value” and a “behavior” and Jurkovich of a sense of “oughtness” and an “action.”Footnote 24 I prefer the terms “frame” and “claim” to describe how these elements play out in a “discursive understanding of norms as processes.”Footnote 25 The terms “value” and “oughtness” imply a certain depth of commitment, yet actors may deploy frames strategically, and whether a frame involves “oughtness” might be exactly what actors debate. Furthermore, when it comes to disputes over norm application, the claims actors make often revolve around, but are not limited to, specific actions or behaviors. I focus on disagreements over specific actions because they have the most potential in regard to clarifying norm content. However, actors’ claims may be of a more vague and general nature, and this can be important for our evaluation of how contestation affects norm strength (see Sections 3 and 5).
Winston and Jurkovich each also suggest a third component of norms. Winston considers norms to presuppose “a problem, which is the issue to be addressed.”Footnote 26 The concept of a norm frame encompasses this component: Frames suggest a normative standard for addressing a specific problem. Jurkovich, in turn, argues that norms must also “specify an actor from whom a behavior is expected.”Footnote 27 Otherwise, it is unclear who bears responsibility for implementing the norm, and this casts doubt on whether there is a collective expectation regarding behavior.Footnote 28 The norm addressee may be unclear when it comes to vague moral norms, but international law usually specifies the bearers of rights and responsibilities. Hence, when we conceptualize norms as abstract or static “things,” there might be more to norms than frames and claims. However, when we see international legal norms reflected in arguments actors exchange, frames and claims are directed toward someone and revolve around a specific problem. When treating norms as arguments, it suffices to focus on the norm frame and claim.
Building on Krebs and Jackson’s typology of argumentation outcomes,Footnote 29 I propose four alternate endings of norm contestation (Table 1.1), depending on what actors (dis)agree about: (1) norm clarification (frame and claim agreement); (2) norm recognition (frame agreement, claim disagreement); (3) norm neglect (frame disagreement, claim agreement); and (4) norm impasse (frame and claim disagreement).
Table 1.1 “Alternate endings” typology
| Frame agreement | Frame disagreement | |
|---|---|---|
| Claim agreement | Norm clarification | Norm neglect |
| Claim disagreement | Norm recognition | Norm impasse |
Krebs and Jackson focus on agreements and disagreements over frames and claims in policy debates.Footnote 30 I show that when norms are contested, these four outcomes differ from policy debates in the way they structure discourse and affect political decision-making. In episodes of norm contestation, it is not claim agreement but frame agreement – and the associated collective expectations – that provides stability. I will elaborate on this important distinction in Sections 4 and 5. Frame agreement thus is an internal source of stability of norm interpretations. Chapter 2 discusses sources of stability that are extrinsic, that is, are not inherent characteristics of the alternate endings, such as perceptions of legitimacy and in-group support.
3. How to Identify Frames and Claims, and Disagreements over Them
This section provides guidance on how to identify norm frames and claims, and disagreements over them. Before discussing frames and claims, it is important to note that in addition to frames and claims, Toulmin identifies two more basic elements of arguments: backings and grounds.Footnote 31 I will illustrate these four elements with an example based loosely on the Trail Smelter arbitration.Footnote 32 A factory in state A that is close to the border with state B leads to a dispute. There is some evidence that toxic waste from the factory in state A has caused serious environmental damage and health problems in state B. State A argues that its right to internal sovereignty gives it authority over its territory (norm frame) and that it will keep the factory (claim).Footnote 33 State B argues that it has a sovereign right to noninterference in domestic affairs (frame) and that the factory should be shut down (claim).Footnote 34 State A and state B therefore disagree on the frame, that is, how to accommodate each state’s sovereign rights, and claim that different actions should be taken as a result. Let us assume that this norm impasse eventually culminates in norm clarification when states A and B agree on a norm frame and behavioral claim: The sovereignty of a country has limits when activities on its territory cause serious damage to the environment of another country – what is commonly referred to as the “transboundary environmental harm principle” (norm frame) – and thus, the factory has to be closed (claim).Footnote 35
Having identified the norm frame and claim, we can turn to backings and grounds. These elements support the validity of frames and claims, and therefore, I do not consider them to be as essential norm elements as frames and claims. Grounds are the “facts we appeal to as a foundation for the claim.”Footnote 36 They lie somewhat outside of the norm but play an important role in assessing what norm frame applies and what claims can be made. In this example, the grounds are that toxic waste from state A’s factory has caused environmental harm in state B. As Section 5 explains, contestation that mainly revolves around the grounds might not affect the strength of the contested norm(s) as much as it leaves open the possibility of frame and claim agreement. Backings are “other assurances, without which the warrants themselves would possess neither authority nor currency.”Footnote 37 As there are tensions and ambiguities in the legal framework, an actor may have to persuade others that its choice of norm frame or understanding of a norm is the correct one. Scholars often cite legitimacy, material power, or sophisticated legal analysis as important backings for norm interpretations. Backings give norm interpretations currency in discussions with other actors. Chapter 2 analyzes how backings affect the stability of norm contestation outcomes. As grounds and backings validate norm frames and claims in a given situation, I consider them to lie somewhat outside of the norm and treat frames and claims as the primary norm elements.Footnote 38
Figure 1.1 illustrates the four basic elements of arguments with the argument that a “transboundary environmental harm principle” (frame) requires state A to close the factory (claim).
Figure 1.1 The basic structure of arguments.
An additional clarification is in order: Frames and claims can vary in their precision. At the precise end of the spectrum would be norm interpretations that refer to explicit rules and explain that their criteria were met (frame) and give details on the actions that will be taken (behavioral claim) to implement the invoked frame. An example is the letter the US wrote to the President of the UNSC on 7 October 2001 justifying the use of force against Afghanistan. The US uses the frame of “Article 51 of the Charter of the United Nations,” “inherent right of individual and collective self-defense, following the armed attacks that were carried out against the United States on 11 September 2011.” The letter explains how the US builds on previously agreed-upon criteria of the right to self-defense such as that there is an “ongoing threat” and some state involvement in the 9/11 terrorist attacks, citing that the Taliban regime in Afghanistan has willingly harbored the perpetrators of 9/11 (Al-Qaida).Footnote 39 In addition, the US states in the letter the behavioral claim that follows from the self-defense frame in some detail, namely that “the United States armed forces have initiated actions to prevent and deter further attacks,” including “measures against Al-Qaeda terrorist training camps and military installations of the Taliban regime…”Footnote 40
In the middle of the spectrum are statements such as President Medvedev’s justification for Russia’s recognition of South Ossetia and Abkhazia, where the claim is relatively clear but the frame can only be indirectly inferred from a description in lay words and the reference to the Friendly Relations Declaration:
Tbilisi made its choice during the night of August 8, 2008. Saakashvili opted for genocide to accomplish his political objectives. By doing so he himself dashed all the hopes for the peaceful coexistence of Ossetians, Abkhazians and Georgians in a single state. The peoples of South Ossetia and Abkhazia have several times spoken out at referendums in favor of independence for their republics. It is our understanding that after what has happened in Tskhinval and what has been planned for Abkhazia they have the right to decide their destiny by themselves […] Considering the freely expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the UN Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the CSCE Helsinki Final Act of 1975 and other fundamental international instruments, I signed Decrees on the recognition by the Russian Federation of South Ossetia’s and Abkhazia’s independence.Footnote 41
Medvedev refers here to the idea that in cases of repeated and extreme human rights violations (Georgian President Saakashvili “opted for genocide”), minorities have the right to external or remedial self-determination (“they have the right to decide their destiny by themselves”). It is contested whether the 1970 Friendly Relations Declaration contains such a right (see Chapter 3). Hence, using knowledge of the cited legal documents and debates over the content of the right to self-determination, we can infer that Medvedev is framing the situation as one in which the peoples of South Ossetia and Abkhazia have a right to remedial self-determination to justify the claim, namely “the recognition by the Russian Federation of South Ossetia’s and Abkhazia’s independence.”
At the extreme end of the spectrum, that of vagueness, are situations where frames and claims are difficult to distinguish or are hidden. As discussed in greater detail in Chapter 6, President George W. Bush repeatedly used statements such as “We abide by the law of the United States, that we do not torture,”Footnote 42 or “The United States does not torture. It’s against our laws, and it’s against our values.”Footnote 43 These statements lack specificity regarding the claim, as in them Bush does not provide any detail as to what treatment of detainees does not amount to torture. The norm frame could also be clearer: “the law of the United States, that we do not torture” seems to refer to the prohibition of torture without providing any explanation of which “law” is meant or what the specific elements of the prohibition are. Thus, these statements are very abstract, and therefore are merely general signals of commitment to the prohibition of torture in the current situation, without much detail of what that means. Disagreements with such vague interpretations then also are about abstract classifications, for example, about whether the behavior in general is legal or illegal, or whether the US does or does not torture. Such general disagreements lack a clear norm frame and claim and therefore do not give much insight into how contestation affects the precision of specific norms. Because of this, the book mostly focuses on more concrete (dis)agreements; yet vague (dis)agreements might still be of relevance for assessing norm strength, as explained in Section 5.
3.1 Frame Disagreements
We can now think of different ways in which other actors could disagree with a proposed frame.
D1 – Disagreement over the frame’s existence: Other actors can contest the validity of a frame by denying its existence. Disagreement (D) 1 therefore takes the following form: “Is there a right to perform, or a prohibition on performing, acts of type X?” We would expect such frame disagreements to be rare because we would expect states to make the best case they can to convince others of their interpretations. This involves citing norms that exist and that are widely accepted.Footnote 44 However, sometimes actors want to establish a new norm or norm interpretation to address a problem, which can lead to disagreements. In this book (Chapter 4), the closest example is the initial US attempt to justify military action against Iraq. In the autumn of 2002, the Bush administration argued for preventive self-defense to forestall the use of WMD by terrorists.Footnote 45 However, several states criticized this frame, most notably France, whose defense policy rejected “the notion of preventive self-defence.”Footnote 46 Similarly, at the UN, France made clear that it found “any temptation to engage in unilateral preventive action” inappropriate and that dealing with the Iraqi threat required “collective deliberation” at the Security Council.Footnote 47 As the Bush administration’s preventive self-defense frame received pushback, the US discarded it and relied on Security Council Resolution 1441 as the frame in its justification for the Iraq war.Footnote 48 When key actors reject a frame, speakers are likely to search for other, more compelling, frames. In sum, D1 revolves around the validity, and thus existence, of a norm frame. We are most likely to see this type of frame disagreement when states seek to establish a new norm or norm interpretation.
D2 – Disagreement over the relative priority of frames: Actors can disagree over what norm applies in a situation. D2 therefore centers on the following question: “Which norm applies to this situation?” Actors must classify the situation as falling either under the scope of norm X or under the scope of norm Y, but the “penumbras of doubt” in relation to norm X and norm Y can overlap. This is what happened in the dispute over South Ossetian and Abkhazian statehood: Russia invoked remedial self-determination, whereas the US, the EU, and others gave primacy to Georgia’s sovereignty and territorial integrity.Footnote 49 O’Mahoney speaks of rule inconsistency in this context: One rule may permit an action that another rule forbids.Footnote 50 This book focuses on disagreements over specific norm frames but note that there can also be disagreement over the relative priority of different treaties or kinds of law, that is, collections of norm frames.Footnote 51
D3 – Disagreement over the interpretation of a specific frame: Actors can differ over what understanding of a norm is the most appropriate. Such disagreements (D3) usually revolve around the following question: “How does norm X apply to this situation?” D3 can take different forms. First, dispute parties may differ over the interpretation of one norm element. For instance, with regard to the right to self-defense, we have seen different interpretations of what constitutes an “armed attack” that triggers this right.Footnote 52
Second, if norm frames contain multiple elements, these might issue contradictory guidance, and give rise to debate. For example, norms often include exceptions, and those who apply them to a specific situation must assess whether a triggering threshold or condition has been met. Particularly pertinent in the context of the COVID-19 pandemic was the question of whether states may curtail freedom of movement to safeguard the health of vulnerable members of society. Article 12 (3) of the International Covenant on Civil and Political Rights (ICCPR)Footnote 53 stipulates that the liberty of movement “shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals…” When applied to the challenge of COVID-19 prevention, the question was whether the risk to public health was grave enough to justify curtailing this freedom. Most countries concluded that this threshold was met.
Article 12 of ICCPR is an example of a norm frame that formally consists of several elements. The various elements may also coexist more informally. For instance, it is widely accepted that minorities have a right to internal self-determination: that is, to speak their language, practice their culture, and enjoy other minority rights within a state. It is contested whether a right to secession or external self-determination exists – except for colonies – even in cases of extreme human rights violations.Footnote 54 Hence, other states could have argued that South Ossetians and Abkhazians have a right to internal self-determination but not external self-determination. O’Mahoney speaks of rule ambiguity in this context: “when an existing rule … does not distinguish between subsets of [those] acts or situations.”Footnote 55
Third, when discussing how norm X applies to a situation, states may also debate whether an exception to a norm frame should be added, to limit the scope of the norm, in certain contexts. This is what we saw in the factory example, and the Trail Smelter arbitration on which it is based: The transboundary environmental harm principle limits the scope of sovereignty of polluting states.Footnote 56 Such frame disagreements blur the lines between disagreements over the relative priority of frames (D2) and the interpretation of a specific norm frame (D3).
Disagreements D2 and D3 can occur simultaneously. Hart famously distinguished between a “core of certainty” and a “penumbra of doubt” when general rules are applied to particular situations.Footnote 57 In dense regulatory frameworks, various norms’ “penumbras of doubt” can overlap, and the frame disagreement may be situated in this overlapping zone as Figure 1.2 illustrates. For instance, we could portray the contestation over Medvedev’s framing as contestation over specific norm elements (external self-determination [x1] vs. internal self-determination [x2]) or as contestation over the relative priority of the rights to self-determination [x] and sovereignty [y]. Ultimately, both kinds of disagreement focus on the scope of norms. When disagreements over the scope of norms are resolved, this often clarifies what grounds trigger the application of one norm frame or the other, or one part of a norm or another. Returning to the factory example, if the toxic waste is widely considered to cause serious enough environmental damage, this gives an indication of what threshold needs to be met to prioritize the prevention of trans-border environmental harm frame over state A’s sovereignty.
Figure 1.2 Overlapping frame disagreements.
If resolved, the preceding frame disagreements would all lead to generally applicable norm interpretations that guide all norm addressees. There is, however, a second strategy states may pursue in regard to their norm interpretations: exceptionalism. Different scholars describe different actions as exceptionalist, mainly when referring to the actions of the US, the most powerful state in the post-Cold War era. Byers refers to US attempts to carve out exceptional rights for itself to gain more influence, Koh describes US double standards for its actions and those of others, and Rubenfeld refers to the US as the main founder of the legal order and source of resistance to it.Footnote 58 When it comes to disputes over norm application, we see exceptionalism when a norm addressee pursues a behavioral claim that is difficult to reconcile with prior norm interpretations but does not seek to set a generally applicable precedent. Exceptionalism can take different forms: it can be covert or overt, and overt exceptionalism can be explicit or implicit. I here discuss explicit frame disagreements and thus start by describing explicit overt exceptionalism.
D4 – Disagreement over whether a one-time exception to a frame should be made: D4 revolves around the following question: “Is this a special case that justifies a one-time exception to norm X?” The US’s justification for recognizing Kosovo’s statehood exemplifies this: US ambassador to the UN, Zalmay Khalilzad, framed Kosovo as unique or sui generis case and stated that “[w]e have not, do not and will not accept the Kosovo example as a precedent for any other conflict or dispute.”Footnote 59 Thus, the US indicated that it did not seek generally applicable norm change but wanted to keep the existing understanding of territorial integrity and a high bar for secessions intact, despite pursuing a behavioral claim (i.e., recognizing Kosovo’s statehood) that was difficult to reconcile with that frame (see also Chapter 3). Russia, on the other hand, argued that “[t]here is nothing so special about Kosovo and everyone knows this full well.”Footnote 60 President Putin rejected the US’s exceptionalist frame by denying that Kosovo’s situation justified a one-time exception to the right to sovereignty – here, to Serbia’s territorial integrity. Thus, D3 and D4 both revolve around a single norm. However, in D4 the actor does not intend to introduce a generally applicable exception.
3.2 Claim Disagreements
There are also multiple ways other states can disagree over the claim, or conclusion, that can be drawn from the frame. The most clearly identifiable claim disagreements revolve around behavioral claims and thus are disagreements over the kind of action to take (future or ex post).
Disagreement over the kind of action to take (future or ex post): Actors can draw different conclusions about what kinds of acts are allowed or forbidden given the frame(s) they cite. These disagreements take the following form: “What kind of action should we take (or should we have taken)?” For instance, as described in Chapter 4, in the lead-up to the 2003 Iraq war, UNSC permanent member states disagreed over the action that should follow from the UNSC Resolution 1441 frame: namely, whether it merely authorized weapons inspections and diplomacy (behavioral claim 1) or whether military intervention in Iraq was called for (behavioral claim 2). Disagreement over the behavioral claim can be prospective or retrospective. For instance, many states ex post criticized Russia’s recognition of South Ossetia and Abkhazia as states and did not recognize their statehood, indicating behavioral claim disagreement (Chapter 3). If the contestation focuses on a prohibitive norm, the disagreement is about whether certain kinds of actions should not be taken or not have been taken; for example, in Chapter 6 we see claim disagreement over past implementation and continuation of the Bush administration’s enhanced interrogation techniques, given the prohibition of torture.
As claims are “conclusion[s] whose merits we are seeking to establish,”Footnote 61 we can distinguish between first-order and second-order conclusions about actions that could follow from the frame. The most relevant claims are first-order – those actions that directly follow from applying the norm frame to a situation. The above-mentioned behavioral claims in the lead-up to the Iraq war are an example. There can, however, also be disagreement over second-order claims, and thus over conclusions that follow from first-order claims. For example, there could be disagreement over whether the US and UK’s 2003 military intervention in Iraq conforms to the norm (is legal or illegal) or over whether it merits criticism or not.
Abstract second-order claims such as that a norm addressee’s (specific or general) behavior “is legal” somewhat conceal what standard, that is, norm frame, was used for drawing this conclusion, when the speaker does not also explicitly state the norm frame on which this assessment is based. Further research and contextualization might help to identify the norm frame and full norm interpretation. Without further information, however general, vague “is legal” statements somewhat blend the claim (legal behavior) and frame (international law). This vagueness could be a sign of covert exceptionalism, as explained in section 5.
This book mostly focuses on disagreements over first-order behavioral claims because norms are “standard[s] of appropriate behavior”Footnote 62 or “collective expectations for the proper behavior of actors”Footnote 63 (emphasis added). (Dis)agreements over first-order behavioral claims give most insight into the content of norms and thus affect their precision, or social strength, most.Footnote 64
Armed with these definitions of frames and claims, and disagreements over them, we can now study how the four constellations of frame and/or claim (dis)agreements vary in their stability and effects on contestants’ reputations (next section) and on norm strength (Section 5).
4. The Relative Stability and Reputational Implications of the “Alternate Endings”
The four alternate endings of norm contestation vary in their relative stability because they have different effects on contestants’ reputations and collective expectations. Actors put significant effort into gaining support for their interpretations of international law. Refining the meaning of international law is a source of influence. As Sandholtz aptly observes, “[t]he outcomes of today’s disputes help to shape the context, and the pool of precedents, for later cycles.”Footnote 65 Those that disagree with a norm interpretation therefore have an incentive to publicly signal disapproval to forestall a precedent that may produce unwanted obligations. When important others disagree with the proponent’s norm interpretation and consider it “inappropriate,” the proponent’s reputation as a responsible community member suffers. Therefore, proponents care about the reactions of other actors but also seek to establish the norm understanding that best suits their interests and values.Footnote 66 The “alternate endings” typology helps us to identify how different kinds of (dis)agreements over norm frames and claims affect collective expectations and the reputations of the dispute parties, and thereby the stability of each ending. It thus indicates how internal properties of the norm elements affect the persistence of norm interpretations. (By contrast, Chapter 2 discusses sources of stability that are extrinsic to the norm elements.)
4.1 Norm Clarification (Agreement on Frame and Claim)
Norm clarification occurs when there is widespread acceptance, rejection, or synthesis of a frame–claim combination. These different types of norm clarification have different implications for contestants’ reputations.
Acceptance of an interpretation occurs when actors widely agree that the frame–claim combination an actor proposes applies. For instance, Article 51 of the UN Charter states that the right to self-defense applies when “an armed attack occurs against a Member of the United Nations.” According to the Nicaragua case, invoking this right requires active and significant state involvement in the armed attack.Footnote 67 The US sought to lower this bar by citing self-defense (frame) to justify military strikes (behavioral claim) in response to terrorist attacks – and this interpretation was contested in the 1980s and 1990s.Footnote 68 These contestations subsided in the aftermath of 9/11. Critical states, and most other states, openly (or at least tacitly) approved the US’s norm frame of self-defense against states that actively support or willingly harbor terrorist groups who have already attacked and its claim to intervene in Afghanistan.Footnote 69 This widespread support led to norm clarification.
Rejection of an interpretation occurs when actors widely agree that a proposed frame–claim combination does not apply, and when critical actors that proposed this frame–claim combination accept this verdict.Footnote 70 For example, when Cyclone Nargis hit Myanmar, French Foreign Minister Bernard Kouchner asked the UNSC to cite R2P (frame) to deliver emergency relief without the consent of Myanmar (claim). There was a lack of support internationally for Kouchner’s proposed application of R2P to the Myanmar natural disaster, and even French President Nicolas Sarkozy was not supportive.Footnote 71
Synthesis occurs when actors reach a compromise on their contrary norm interpretations. This synthesis can combine their different frames and/or claims or offer an entirely new frame and claim that all parties can agree to. Neither contestant’s interpretation prevails, but agreement is found. The so-called Turbot War serves as an example. Contesting the freedom of the high seas, Canada banned Spanish and Portuguese vessels from fishing turbot on the Grand Banks and in 1995 seized the Spanish trawler Estai, using gunfire.Footnote 72 Contestation ensued over whether the principle of “freedom of the high seas” trumps “sustainable fisheries” (frames), as both are embedded in UNCLOS, and over what nets, quotas, and possible fines (claims) could apply.Footnote 73 Eventually, Canada and the EU reached a compromise: They introduced enforcement measures such as observers and satellite tracking devices, and joint quotas to improve sustainability. At the same time, Canada repealed its controversial law allowing the arrest of Spanish and Portuguese vessels, dropped criminal charges against the Estai’s owners, and returned the bond of Can$500,000 to them, affirming the freedom of the high seas.Footnote 74
The determination of whether agreement on a frame and claim is “widespread” enough is to some extent dependent on the subject area. Widespread state consent tends to be necessary for international law to develop further.Footnote 75 Finnemore and Sikkink’s tipping point can be used as a rule of thumb:Footnote 76 State consent is widespread enough when a tipping point of one-third of states is reached, including “critical states … without which the achievement of the substantive norm goal is compromised.”Footnote 77 In norm contestation, actors are often critical to the achievement of the substantive norm goal when their institutional position gives weight to their norm interpretations.Footnote 78 With security matters, for instance, the five permanent UNSC members are usually critical because enforcement action requires their affirmative vote or abstention, and the UNSC can render binding decisions under chapter VII of the UN Charter.Footnote 79 As further described in Chapter 2, courts or quasi-judicial entities, due to their institutional position, may also be critical actors.
Norm clarification also affects reputation. Widespread rejection of a frame and claim damages the reputation of the state whose interpretation many others resist. Engaging in contested practices leads to reputational costs and thus negatively affects cooperation and social standing.Footnote 80 Rejection can even pressure powerful states to drop their interpretation: Once criticism intensified, the US largely abandoned the Bush administration’s contested interpretations of the torture prohibition (Chapter 6). Some argue that powerful states can shoulder the near-term costs of practices and interpretations that many other actors consider illegal better than others.Footnote 81 However, they might not be able to do so indefinitely, and widespread rejection is consequential because it prevents the setting of a new precedent. By contrast, social acceptance of a frame and a claim, or synthesis, prevents reputational costs. The social consensus converts a hitherto inappropriate interpretation into an appropriate one.
In sum, frame and claim agreement constructs a clearer reference point. The widespread public agreement on a norm interpretation renders norm clarification a relatively stable outcome: It signals normative commitment and collective expectation regarding using and adhering to this interpretation. Such norm clarification structures future debate by making “entrapment” by the international community’s clarified normative expectations more likely.Footnote 82
4.2 Norm Impasse (Disagreement on Frame and Claim)
Here, critical actors continue to disagree about whether the scope of a norm frame should be extended or curtailed, or about which norm frame applies. They also differ on what the correct claim is.
Persistent frame and claim disagreement leads to normative uncertainty about what norm applies, or how to interpret a norm, and what to do. This impasse is unsatisfactory for those involved, regardless of what provoked the contestation, as there continues to be disagreement over what behavior is appropriate. Norm entrepreneurs who are convinced of their interpretation’s appropriateness will continue to try to persuade critical actors.Footnote 83 “Interest actors” will also try to gain agreement for their norm interpretation to maximize and cement their preferences.Footnote 84 However, actors who publicly uphold norm interpretations that other states whose consent is critical for norm change find unconvincing, encounter social and material costs.Footnote 85 For instance, as previously mentioned and discussed in Chapter 3, the US and other Western countries’ invocation of a sui generis frame to justify their recognition of Kosovo’s statehood clashes with Russia’s insistence on Serbia’s territorial integrity and sovereignty (frame disagreement) and rejection of Kosovo’s statehood (claim disagreement). This norm impasse between critical states whose consent is, for example, necessary for Kosovo’s participation in IOs has led to uncertainty over Kosovo’s status and strained the relationship between the dispute parties (see Chapter 3).
When we see persistent disagreement on frames and claims, states face pressures that pull them in different directions. This can render norm impasses either very stable or short-lived, depending on whether the benefits of protracted contestation outweigh the normative, social, or material costs. Because of the disagreement over the norm frame and claim, there is no internal source of stability. Chapter 2 shows that then factors that are extrinsic to the norm elements influence the stability and duration of the norm impasse: the reactions of important audiences for the contestants, the argumentation strategies dispute parties adopt, as well as the work of agents if dispute parties delegate norm interpretation.
4.3 Norm Recognition (Frame Agreement, Claim Disagreement)
Norm recognition occurs when we see widespread agreement on the norm frame but disagreement on the claim. It implies a partial resolution of norm contestation. Frames categorize events and help actors make sense of the world.Footnote 86 Psychologists see categorization as a vital cognitive process: We desire coherent, structured knowledge and need to categorize information to ascertain how to interact with the world.Footnote 87 Widespread social agreement on a specific norm frame helps to interpret an event and thereby narrows the range of acceptable responses.Footnote 88 Because collective agreement that a norm frame applies in a certain kind of situation leads to collective expectations to consistently apply this norm frame, frame agreement signals collective normative commitment regardless of whether all actors sincerely belief in the appropriateness of the norm frame in this kind of situation. This signal of collective commitment to a norm frame renders some claims illegitimate and socially unsustainable. This particularly applies to those frames that are well-established, socially sanctioned, norms of international law, for which there is a strong collective expectation regarding applying them consistently.Footnote 89 Norm recognition blocks some argumentation paths and increases the expectation regarding proposing or implementing claims that correspond to prior interpretations of the norm frame. Hence, norm recognition increases normative certainty compared to a norm impasse, where the frame disagreement allows actors to advance a greater range of claims.
Thus, widespread frame agreement can back states into a corner and force them to accept claims they hitherto considered unacceptable. Bower illustrates this with the debate over the UNSC mandate for the UN peacekeeping mission in Bosnia and Herzegovina.Footnote 90 He describes how the US sought a global exemption for its soldiers from the International Criminal Court’s (ICC) jurisdiction, citing Article 98 of the Rome Statute, which exempts third states. However, other UNSC members invoked Article 16 of the Rome Statute as a frame, claiming that granting immunity is only possible on a case-by-case basis for one year and requires UNSC agreement. The US then recognized the Article 16 frame but claimed that it covers an automatic annual renewal of immunity unless the UNSC decides otherwise. When critical actors referred to the Rome Statute’s negotiation history to show that the US’s claim did not fall under the Article 16 frame, the US could no longer deny the applicability of the frame. This earlier recognition forced the US to also accept the claim of a more modest one-year exemption in Resolution 1422. Frame agreement narrows the range of claims that actors can legitimately advance. Thus, when critical states consider claims as contradicting the proposed frame, norm recognition may be a via media toward norm clarification and thus a transitory outcome.
However, when the claim disagreement is not perceived to blatantly contradict the prior history of the frame, norm recognition is a relatively stable end point. The contestation over the Kadi case (ongoing since 2002) in Chapter 5 illustrates this.Footnote 91 The UNSC agreed, after some contestation with the ECJ, to grant blacklisted terror suspects some due process rights (frame) and thus an avenue for removal from the 1267 sanctions list. The two institutions still differ on what this avenue should look like (claim): an independent Ombudsperson, favored by the UNSC, or an external court, favored by the ECJ. Since in the eyes of key audiences neither of these claims blatantly contradicts the due process frame, norm recognition has been stable and reputational costs limited. Chapter 5 discusses how extrinsic factors contributed to the perception of key audiences that neither claim blatantly contradicts the due process frame, such as that Ombudspersons have been able to show competence and effectiveness in their work to key audiences.
4.4 Norm Neglect (Frame Disagreement, Claim Agreement)
Krebs and Jackson argue that the outcomes that involve acceptance of the claim are “(at least temporary) terminuses” that are “relatively stable outcomes in the short and medium run.”Footnote 92 I contend that when it comes to norm contestation, frame agreement provides more stability because it signals collective normative commitment to a norm frame in a certain kind of situation and thus narrows the range of claims that are considered appropriate. Since claim agreement leads to joint actions, it is more visible than words. Hence, norm neglect is likely to require explanations from the action’s supporters when similar situations arise in the future, as the action’s supporters will again have to justify their claim(s). However, because of the frame disagreement, it is not clear what norm frame guided the claim agreement and resulting joint actions. Hence, there is uncertainty about the extent of collective expectations related to acting the same way in similar situations. This reduces pressure to behave alike in similar situations. This makes norm neglect an unstable outcome: It produces a temporary and partial consensus that is unstable and likely to eventually result in either a norm impasse or norm clarification.
When actors agree to a claim without accepting a frame, “acculturation” might be at work: Social pressure leads to “outward conformity with a social convention without private acceptance.”Footnote 93 Unlike frame agreement, claim agreement, alongside frame disagreement, does not signal normative commitment: It signals only outward conformity or coincidental convergence. This is often accompanied by implicit exceptionalism: While the behavioral claim is difficult to reconcile with prior norm interpretations, it is not framed as an exception or justified with a clear norm frame. China engaged in such implicit exceptionalism in the SCS dispute, discussed in Chapter 4. For instance, China did not clarify that it was making an exception to its “nine-dash line” frame nor cite any norm frame to explain its claim agreement on Scarborough Shoal. Implicit exceptionalism is characteristic of norm neglect: The dispute parties prioritize finding a pragmatic solution to a joint problem over resolving their normative differences. Thus, unlike explicit exceptionalism, which frames an application as a one-time exception to a norm and thereby acknowledges the risk of entrapment by prior interpretations, and that international law matters, implicit exceptionalism may be considered a sign that international law is neglected. Norm neglect is an unstable outcome that postpones collective commitment to a norm frame.
Norm neglect also means that states can portray their acceptance of a claim that does not correspond to their preferred norm understanding as an exception. Actors can refer to the particularities of the claim agreement to advance a different frame in the future and thereby escape entrapment. As Chapter 4 discusses, permanent UNSC members have long differed over whether R2P or sovereignty prevails when states engage in mass atrocities, but they did agree to establish a no-fly zone over Libya in 2011. Instead of accepting the R2P frame, China reaffirmed its commitment to sovereignty and referred to the special circumstances in Libya, and both Russia and China cited regional organizations’ request for, and endorsement of, the no-fly zone (frame).Footnote 94 Hence, Russia and China can refer to the special circumstances surrounding the Libya case to explain why another context is different, mitigating the criticism from key audiences that leads to reputational costs. Russia resisted UNSC resolutions on Syria by arguing that the toppling of the Libyan regime went beyond the claim (no-fly zone) it had agreed to.Footnote 95 As discussed in Chapter 2, an interpretation’s degree of output legitimacy affects its social acceptance. Hence, the possibility of referring to the external circumstances surrounding the claim agreement, including the (lack of) output legitimacy, can make norm neglect a temporary concession in a long-standing norm impasse.
On the other hand, claim agreement may be a step toward norm clarification. In Risse and Sikkink’s spiral model, repressive governments’ strategic tactical concessions, such as the release of prisoners, can generate momentum.Footnote 96 The concessions empower the domestic opposition and create more space for socialization efforts. Constructivists find that socialization can trigger norm complianceFootnote 97 or, in this typology, norm clarification. Socialization works by persuasion (information, arguments, and cognitive cues that alter behavior and beliefs) and social influence (praise and rewards for rule-conforming behavior).Footnote 98 By agreeing to a claim, actors may receive social recognition and new information that convinces them to accept a different norm frame.
Hence, while claim acceptance can be a temporary concession in a norm impasse, it can also trigger socialization processes that lead to norm clarification. It is a task for future research to examine more systematically when norm neglect generates norm clarification or impasse. What matters for present purposes is that norm neglect is likely to be an unstable outcome because of the frame disagreement, and resulting lack of clear and widespread collective expectations that this behavioral claim should be pursued in similar, future situations.
5. How to Assess Norm Strength
As well as differing in their relative stability, the “alternate endings” of norm contestation help in assessing how a norm dispute affects norm strength. Based on Katzenstein’s definition of norms as “collective expectations for the proper behavior of actors with a given identity”,Footnote 99 Ben-Josef Hirsch and Dixon define norm strength as “the extent of collective expectations related to a principled idea.”Footnote 100 I build on this definition, as it conveys that the strength of intersubjective norms depends on the degree to which the community expects adherence. The expression “related to a principled idea” needs further refinement. As this book is about disputes over the application of norms of international law, the strength of a norm is the extent of collective expectations related to applying a norm of international law in a certain way. Norms influence actors because they direct them to account for collective expectations: The community expects actors to behave in a certain way and failing to do so leads to opprobrium, whereas compliance leads to praise.Footnote 101 Thus, the greater the extent to which there are collective expectations related to applying a norm in a certain way, the stronger the pressure on norm addressees to do so. I suggest two indicators to capture the effect of norm contestation on the extent of collective expectations: changes in precision and changes in scope in the wake of norm application.
5.1 Precision: Social Strength
Precision measures the social status of a norm. The clearer the collective expectations, the more likely it is that norm addressees are aware of what constitutes “appropriate behavior,” and that the international community can identify applications that deviate from agreed-upon norm interpretations and reject them. Thus, reputational, social, and material costs are likely to ensue as a result of failing to adhere to these interpretations.Footnote 102 Hence, precision increases a norm’s ability to mobilize social pressure on actors to behave appropriately, and thus social norm strength. The “alternate endings” reflect varying degrees of precision in collective expectations and indicate that changes in precision are relative to prior outcomes of norm contestation.
Norm clarification (frame and claim agreement) increases the precision of norms the most by clarifying the meaning of a norm, or which norm frame applies and what action is expected in similar situations. This increases the collective expectation related to applying the norm in a certain way in similar situations, and thus the risk of entrapment.
Norm recognition (frame agreement/claim disagreement) also increases precision because frames categorize events.Footnote 103 The agreement on norm frames (as opposed to policy frames) renders some claims illegitimate and socially unsustainable. Norm recognition thus increases normative certainty compared to a norm impasse, where the frame disagreement allows actors to advance a greater range of claims. However, norm recognition does not increase precision as much as does norm clarification, which sets a clearer precedent due to the claim agreement. When preceded by norm clarification, norm recognition (frame agreement/claim disagreement) can also weaken a norm by reducing its clarity, as the disagreement over the 2003 invasion of Iraq (discussed in Chapter 5) illustrates.
Norm neglect occurs when we see widespread agreement on the claim despite persistent disagreement on the frame. When preceded by norm clarification, norm neglect reduces precision, since normative uncertainty continues. When preceded by norm impasse, the effect of norm neglect on social norm strength remains to be seen. Due to the frame disagreement, there is no clarity on what norm guided the claim agreement, and thus collective normative expectations remain uncertain. As explained, norm neglect is likely to be a volatile, temporary terminus that leads either to norm clarification or norm impasse.
Norm impasse weakens precision – and thus the social strength of norms – the most because it implies the greatest increase in vagueness compared to the alternate endings: Both the frame and claim are contested, and thus collective expectations are least clear. The duration of the norm impasse matters: A norm impasse that persists for a long time prevents the setting of a clear precedent, weakening the contested norms by reducing normative certainty in similar situations. The norm impasses discussed in Chapter 3 illustrate this. A short norm impasse, on the other hand, might not affect norm strength significantly if collective expectations are clarified soon thereafter. For instance, in 2001 there were disputes, among others between the US and Brazil, over whether measures to facilitate access to HIV medication (claim disagreement) breached provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)Footnote 104 or fell under a health emergency exception (frame disagreement). This dispute was soon resolved when the US dropped its case against Brazil and agreed to the Doha Declaration on the TRIPS Agreement and Public Health. The Doha Declaration clarified that HIV/AIDS counts as a public health crisis for which the emergency exception applies (frame agreement) and that compulsory licenses to facilitate access to medication can be issued (claim agreement).Footnote 105 The temporary nature of the norm impasse and the resulting norm clarification indicate that the short norm impasse did not negatively affect norm strength as it soon paved the way for clearer collective expectations. Chapter 2 discusses factors that are extrinsic to norm interpretations that influence the duration of contestation, and thus also norm strength.
Note that norm impasses affect the social status of norms less when they revolve primarily around the grounds of the case rather than the frame. For instance, in response to the 2017 chemical weapons attack in Syria, the US launched missile strikes on Syrian forces. President Trump justified this response by saying that “[t]there can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention.”Footnote 106 The North Atlantic Treaty Organization (NATO) and EU countries and officials agreed that the use of chemical weapons was unacceptable and “must be answered.”Footnote 107 Russia and Syria criticized the strikes (claim disagreement) but did not deny the chemical weapons taboo. Instead, Russia talked about a “complete disregard for factual information.”Footnote 108 President Putin questioned whether the Syrian government had launched this attack, attributing it to the rebels.Footnote 109 One year later, he questioned whether it had even occurred.Footnote 110 This criticism of the grounds allowed Putin to frame the US strikes “as an act of aggression against a sovereign state delivered in violation of international law.”Footnote 111 When history repeated itself a year later, the dividing lines were similar.Footnote 112 Hence, Russia and the US invoked different frames (sovereignty versus chemical weapons ban) and claims (different views on the need for missile strikes). Russia’s contestation of the grounds means that there was primarily a factual, rather than a legal, disagreement, leaving open the possibility that if Russia had accepted the US’s grounds, we would also have seen frame and claim agreement. This kind of norm impasse thus reduces clarity on collective expectations less than norm impasses where, despite dispute parties largely agreeing on the grounds, we see frame and claim disagreements.
In sum, the “alternate endings” typology indicates that changes in precision, and thus norm strength, are relative to prior outcomes of norm contestation. Another important insight is that frame agreement tends to increase social strength more than does claim agreement in the short run if greater disagreement has been seen in similar situations in the past: Frame agreement adds more strength to a norm than claim agreement because it signals collective normative commitment to a norm frame in a certain kind of situation rather than norm neglect. However, norm neglect and norm impasses might also be stepping stones toward norm clarification and therefore lead to an increase in collective expectations in the long run, as the previous section explained. Thus, evaluation of social norm strength is situational and relative to prior and future outcomes.
So far, I have assumed that actors use relatively clearly identifiable frames and claims. However, this is not always that case. Vague frames and claims might indicate exceptionalism, which has implications for norm strength.
Recall President George W. Bush’s statement, discussed earlier: “We abide by the law of the United States, that we do not torture.”Footnote 113 The vagueness in regard to the claim, coupled with the fact that the Bush administration frequently denied wrongdoing, is relevant here (see Chapter 6): It could be a sign that the US engaged in behavior that would be widely seen as contradicting the invoked frame (here, the torture prohibition), or what I refer to as covert exceptionalism. Covert exceptionalism occurs when norm addressees try to hide implementing actions (claims) that are difficult to reconcile with prior norm interpretations but affirm their commitment to the generally agreed-on norm interpretation. This has also been referred to as decouplingFootnote 114 or behavioral contestation.Footnote 115 This has implications for norm strength: When important others are aware of the covert exceptionalism but refrain from pointing out the mismatch between the behavior and the invoked norm frame, this silence questions the prior consensus, weakening precision and social norm strength.Footnote 116
Where possible, for example when norms are implemented domestically, we would expect exceptionalism to be covert, to prevent the reputational costs of pursuing a behavioral claim that is likely to be condemned. However, due to public scrutiny, particularly in democracies, covert exceptionalism is likely to be difficult to hide in the long run.Footnote 117 The contestation over the Bush administration’s implementation of the torture prohibition, discussed in Chapter 6, indicates this.
To conclude, when legal justifications (norm frames) and actions (claims) are not a plausible fit, and actors are aware of it, they might use vague frames or claims, in an effort to downplay the mismatch in public to prevent reputational costs. This can negatively affect social norm strength.
5.2 Acceptance: Relative Norm Strength
Scope indicates the relative strength of a norm interpretation vis-à-vis other norm interpretations. In dense normative frameworks, such as international law, norms do not exist in a vacuum. Their “penumbras of doubt” often overlap, as Figure 1.2 shows. Therefore, norm application is likely to change the scope of several norms at once: When the scope of one norm broadens because states apply it to more situations, the scope of another norm narrows.
We can see how this works when frame disagreements D2 (over relative priority) are resolved: The scope of the norm that is found to be inapplicable shrinks, now covering fewer situations than before, while the scope of the competing norm grows. For instance, following 9/11, states widely agreed that the right to self-defense applies to armed attacks by terrorists where states have willingly harbored the terrorist organization,Footnote 118 and allows for the use of military force against these states. This agreement lowered the threshold for state involvement in armed attacks by terrorists that triggers the right to self-defense, expanding the scope of self-defense vis-à-vis the prohibition of the use of force. Moreover, in dense regulatory frameworks, the resolution of disagreements over the interpretation of a specific frame (D3) can also affect the scope of more than one norm when it shrinks the overlapping penumbra of doubt of these norms. Figure 1.3 illustrates that changes in scope are relative.
Figure 1.3 Changes in scope are relative.
Panke and Petersohn find that narrowing a norm’s scope weakens it because it reduces the number of situations in which states share a commitment to the norm.Footnote 119 However, a narrower scope can lead to an increase in strength when a norm interpretation, as a result, becomes more acceptable to more states, and therefore there is a greater collective expectation related to applying it. Thus, a decrease in breadth (narrower scope) may lead to an increase in depth (more important actors agree to it).Footnote 120 This indicates that we need to identify how changes in scope affect the breadth and depth of the collective expectation, measured respectively by how norm contestation changes the number of situations to which a norm interpretation is considered to apply and the number of (critical) actors that agree with the norm interpretation.
For instance, as discussed in Chapter 5, the UNSC eventually accepted the applicability of due process rights (norm frame) in the context of the 1267 targeted sanctions regime. The UNSC delegated the review of delisting requests to a largely independent Ombudsperson mechanism (contested claim), which reduced the breadth of the UNSC’s prerogative, or decision-making authority (rival norm frame). However, this increased the depth of the UNSC’s prerogative by rendering it more acceptable in the eyes of critical actors: Listed individuals reduced litigation in domestic and regional courts, and courts showed more and more acceptance of the Ombudsperson mechanism. The decreased use of other claims (domestic and regional courts) and increased use of the UNSC’s preferred claim (Ombudsperson) indicate greater acceptance of the UNSC’s decision-making authority by important actors with regard to the 1267 sanctions regime, that is, of its prerogative. Thus, the reduced breadth strengthened the acceptance of the norm’s applicability, indicating that breadth and depth can to a certain extent be substitutes.
However, the narrowing of a norm’s scope has a clear weakening effect when it completely undermines the core of a norm so as to render it defunct or meaningless. In line with my focus on norm application, I consider the core of the norm to be those applications of the norm that have been certain, that is, consistently agreed upon and applied.Footnote 121 Figure 1.4 illustrates this. It is unlikely that in the singular episodes of contestation of well-established norms of international law under study here, we would see this effect. Norms such as “sovereignty,” “due process rights,” and “prohibition of torture” are widely accepted and thus difficult to change or question without backlash. Percy and Sandholtz show that because norms are embedded in wider structures, they are rarely completely undermined, and only die when associated social realms disappear.Footnote 122
Figure 1.4 Undermining of a norm core.
As the undermining of a norm core is likely to be a gradual process when well-established legal norms are concerned, it is important to take similar norm applications into account when drawing conclusions on relative norm strength based on single episodes of contestation.
6. Relationship to Other Theories
This book’s approach to assessing the implications for norm strength based on my “alternate endings” typology differs from two prominent alternative approaches: the approach of Deitelhoff and Zimmermann (and collaborators) and the approach of Ben-Josef Hirsch and Dixon. The main difference in this book’s approach is that it is more actor-centric: The focus on frame and claim (dis)agreements provides less room for normative bias on the part of the researcher because it does not rely as heavily on the determination of a norm core or of a violation.
Deitelhoff and Zimmermann introduced the concepts of applicatory and validity contestation to tease out how different ways in which norms are challenged matter for norm robustness.Footnote 123 The definition of these concepts – and how much these contestation types determine whether contestation is strengthening or weakening – has evolved over the years.Footnote 124 I rely here on the latest definition of these contestation types in these authors’ 2023 book. Applicatory contestation is defined as “disputes about how, when, and where a norm pertains”Footnote 125 and validity contestation as questioning the “righteousness of the core claims of a norm.”Footnote 126 Validity contestation is considered to weaken a norm, if supported by a tipping point of critical actors, whereas applicatory contestation is considered to potentially strengthen a norm because it can lead to renewed consensus and stabilization of meaning if it does not become permanent.Footnote 127 However, as acknowledged by Deitelhoff, Zimmermann, and collaborators, empirically, the difference between these two contestation types is “muddy” because it involves determining “if a certain argument attacks a norm’s core claims or its application”Footnote 128 and “core normative claims are not defined objectively.”Footnote 129 As the researcher defines the norm core, whether contestation is strengthening or weakening seems to depend to some degree on the researcher’s judgment.Footnote 130 Taking the distinction between (dis)agreements over frames and claims as the starting point for determining how contestation affects norm strength largely avoids this problem: My “alternate endings” typology is based on the interpretations of norm addressees, and how they have changed over time. Deitelhoff and Zimmermann, and collaborators, try to add an actor-centric element by defining the norm core as what norm addressees considered the core normative claims to be at the norm setting stage.Footnote 131 However, this turns the norm core into a static “thing,” rather than a dynamic “process,”Footnote 132 committing the same fallacy as first-generation norm scholars, who overlooked that norms are incomplete at inception, and that their meaning is shaped through application and debate. As international law is a living instrument, and evolves through interpretations by its addressees, “the line between interpreting and making the law is blurry.”Footnote 133 To take the dynamic nature of international law into account, I define the norm core as prior, consistently agreed on, interpretations of the norm, and whether contestation affects the norm core is not the main criterion for norm weakening. Instead, what matters is whether norm addressees (dis)agree on the frame and/or claim, and how this changes the precision and scope of the norm compared to prior applications.
The more deep-seated reason for this choice is that I attribute the normativity of norms to “collective expectations” surrounding international law, rather than to a certain normative content or value, such as fairness or dignity, that is attached to the norm.Footnote 134 Because important others attach value to international law, norm addressees feel pressure to justify their interpretations and to show that these conform to collective ideas of what international law requires in this kind of situation. Johnstone refers to these important others as an “interpretive community,” which passes judgments on norm applications and extracts reputational costs for noncompliance, and whose interpretations affect the evolution of law.Footnote 135 Similarly, Sandholtz and Bower describe how the community’s standards of interpretation affect normative reasoning of actors, including rational actors.Footnote 136 Therefore, what matters for norm strength is whether and what kind of collective expectations there are regarding implementing the international legal norm. The concepts of social and relative norm strength capture this, as does the focus on frame and claim (dis)agreements: Rather than identifying whether a norm addressee engages in applicatory or validity contestation, what matters is the collective assessment of norm applications. Do the arguments norm addressees exchange reflect agreement or disagreement over norm interpretations? How do these (dis)agreements influence the clarity and extent of collective expectations related to the contested norms?
Deitelhoff and Zimmermann do take collective expectations into account, by examining four additional indicators of norm robustness: concordance (acceptance in discussions and treaties); third-party reactions to norm violations; compliance (behavioral consistency); and implementation (inclusion in legal and policy documents).Footnote 137 These indicators reflect the different focus of their study: namely, rendering a verdict on how the robustness of a norm has changed from the emergence of the norm to the present day. When studying norm evolution, such a multidimensional indicator that includes discourse and practice-based dimensions might make sense. However, when studying how a specific episode of contestation affects norm strength relative to the status quo, (dis)agreement on frames and claims allows us to capture both changes in discourse and practice: What (if any) shared understandings of applicable standards (frames) and of acceptable actions (claims) were reached? Moreover, Deitelhoff and Zimmermann’s reliance on these four additional indicators somewhat relativizes the importance of the distinction between applicatory and validity contestation. In comparison, the distinction between frame and claim (dis)agreement is what anchors the analysis in this book. To contribute to reducing the muddiness involved in empirically applying theoretical distinctions, this chapter earlier gave a detailed description of how to identify frames and claims, and disagreements over them.
While Deitelhoff and Zimmermann, and collaborators, differentiate between validity and applicatory contestation, based on whether contestation revolves around the norm’s core or its application in theory, in practice, when contestation over specific norm applications is studied, the researchers treat validity contestation as akin to frame disagreement and applicatory contestation as akin to claim disagreement. The coding scheme of their 2023 book, for instance, lists statements that prioritize another norm over R2P as validity contestation, and statements that challenge the measures applied under R2P (e.g., use of force, sanctions, etc.) as applicatory contestation.Footnote 138 When studying specific norm applications, where we can equate validity contestation with frame disagreement, and applicatory contestation with claim disagreement, the “alternate endings” typology can anchor the analysis of how different combinations of applicatory and validity contestation affect norm strength: When both contestation types are present, there is a norm impasse; when there is only validity contestation but no applicatory contestation, we see norm neglect; and only applicatory contestation without validity contestation signals norm recognition. Similar to Deitelhoff and Zimmermann, this book shows that agreement on the norm frame is an internal source of stability, even when there is disagreement over the behavioral claim – or applicatory contestation – as long as the disagreement over implementation is not widely perceived as contradicting the norm frame. The preceding analysis shows that the weakening effect of validity contestation, or frame disagreement, is less clear-cut and does not primarily depend on whether the norm core is contested. Among other things, it matters how the disagreement over the norm frame affects relative norm strength, that is, whether it narrows the breadth and depth of the norm, and whether it was preceded by frame agreement, and thus reduces social norm strength or precision. If we only see validity contestation, without applicatory contestation, in norm implementation, the effect of this norm neglect on social norm strength remains to be seen. As the norm frame that guided the claim agreement is unclear, the agreement over the implementing action tends to be a temporary, unstable consensus: At best it triggers socialization processes and norm clarification, which increases social norm strength, and at worst it triggers a norm impasse that weakens social norm strength.
Ben-Josef Hirsch and Dixon also propose indicators of norm strength. I build on their definition of norm strength as “the extent of collective expectations related to a principled idea.”Footnote 139 Similar to Deitelhoff and Zimmermann’s approach, this approach also gives the judgments of the researcher a greater role than the “alternate endings” typology. Ben-Hirsch Josef and Dixon propose a different indicator for the strength of institutionalized norms: concordance, or the frequency and nature of references to a norm in the reports of IOs and international NGOs, and of their responses to norm violations.Footnote 140 I consider the expectations and reactions of states to also be relevant (if not more relevant). Moreover, Ben-Hirsch Josef and Dixon leave it up to the researcher to identify what counts as a norm violation, which fails to take sufficiently into account that norm meaning is constructed through application and debate. The “alternate endings” typology takes this dynamism into account and offers a more actor-centric approach to assessing the effect of contestation on norm strength.
7. Conclusions
The “alternate endings” typology that I have developed in this chapter helps us understand how different types of agreement and disagreement affect the stability and strength of norms, the duration of norm contestation, and the reputations of actors.
I have shown that we can break norms down into frames and claims, since norm meaning is reflected in the exchange of arguments. Therefore, norm contestation can have four alternate endings: norm clarification (frame and claim agreement); norm recognition (frame agreement and claim disagreement); norm neglect (frame disagreement and claim agreement); and norm impasse (frame and claim disagreement). These “alternate endings” vary in their stability and have different implications for norm strength. Widespread agreement on a norm frame signals the international community’s commitment to the norm in this kind of situation. Frame agreement increases the stability of a norm application because the collective commitment to the applicability of the norm frame narrows the range of permissible claims and increases the collective expectation related to acting on it. Frame disagreement has the opposite effect: The international community’s normative expectations are unclear and therefore there is greater uncertainty over what it means to behave appropriately, and less social pressure to do so.
Building on Ben-Josef Hirsch and Dixon’s definition of norm strength, I conceptualized norm strength as the extent of collective expectations related to applying a norm of international law in a certain way. This has two dimensions: precision and scope. The more precise the norm, the stronger it is, because it is clearer what the community considers appropriate behavior and what it will respond to with praise or opprobrium. This increases the social strength of a norm. The “alternate endings” typology anchors the analysis of the effect of contestation on norm strength: It gives an overview of how (dis)agreements over norm application affect precision, and highlights that these changes in precision, and thus social strength, are relative to prior, similar, episodes of contestation.
A second, and separate, consideration is how a given “alternate ending” affects the scope of the contested norm(s). Changes in scope can affect the breadth and depth of collective expectations, that is, the number of situations and actors they encompass. Breadth and depth can to a certain extent be substitutes: For example, a norm’s applicability to fewer situations might render it more acceptable to more actors. Thus, changes in scope indicate the relative strength of a norm interpretation vis-à-vis other norm interpretations in a certain kind of situation. Lastly, contestation is likely to gradually undermine the core of well-established norms, if at all, implying that other instances of contestation of the norm are relevant, when assessing the implications of contestation for the norm core. Compared to other indicators of norm strength, using the “alternative endings” typology as the basis for assessing how contestation affects norm strength has the advantage of being a more actor-centric approach.
Some may question the relevance of mapping norm contestation outcomes. Niemann and Schillinger regard contestation as never-ending because they question whether norms can ever reflect shared understandings.Footnote 141 However, even if states never share the exact same understanding of norms in the abstract, there can be different degrees of consensus on their application to a specific situation. Application shapes the norm and makes its meaning more or less shared. Differentiating between four outcomes – norm clarification, norm recognition, norm neglect, and norm impasse – allows us to better grasp the different ways in which contestation shapes norms and structures behavior and debate.
The “alternate endings” typology can help scholars to identify pathways that lead to (dis)agreement on frames and/or claims. Scholars from different theoretical orientations can use it to find scope conditions for when their mechanisms limit contestation and opportunism. For instance, drawing on Habermas, some scholars argue that “better,” more legally correct arguments carry more weight in norm contestation.Footnote 142 However, strong legal arguments often fail to produce norm clarification on their own. Habermasian scholars of deliberation could use this typology to explore how variations in negotiation settings, or in the characteristics of the contested norms, produce different sorts of outcomes.
In the next chapter, I theorize “extrinsic factors,” not directly related to inherent characteristics of the alternate endings, discussed in this chapter, which influence the duration and outcome of norm contestation. I thereby lay the foundation for research on the pathways to “alternate endings” of norm contestation. I show that we need a more fine-grained analysis of audience reactions and delegation to agents, and of the contestants’ justificatory discourse, than scholars usually engage in to identify how social dynamics affect the outcomes of norm contestation.
