1. Introduction
Why do some alternate endings persist longer than others? While Chapter 1 focused on the four alternate endings of norm contestation and discussed their effects on norm strength, it also identified an internal source of stability: frame agreement. This chapter delves deeper into analyzing the relative stability of alternate endings of norm contestation by discussing factors that are extrinsic to norms and that influence the longevity of norm interpretations. Both chapters rely on insights from rhetoric. As the arguments that states exchange reflect norm interpretations, looking at the structure of arguments helped me, in Chapter 1, to identify two distinct norm elements: frames (justifications that involve rules of international law) and claims (the implementing actions that follow from these rules). I then showed that whether states disagree over norm frames and/or behavioral claims affects the relative stability of the four alternate endings of norm contestation. Frame agreement is an internal source of stability because it involves categorization and signals collective normative commitment. When states agree on a norm frame, this classifies a problem as falling within the regulatory ambit of a specific norm. Consequently, it is more likely that some action is taken toward realizing the substantive norm goal; hence, the claim disagreement becomes narrower and more sustainable.
As this book studies how the arguments states exchange reflect their understandings of norms, I use insights from rhetoric to uncover these understandings. Scholars of rhetoric do not only study the structure of arguments, they also study the structure of debates. Three classical elements of rhetoric – speakers, argumentation, and audiences – help us to study how factors that are not inherent characteristics of the alternate endings influence the duration, and thereby also the outcome, of norm disputes.
Norm frames and behavioral claims do not exist in a vacuum. These norm elements are social constructs, and, as such, social dynamics affect the persistence of frame and claim (dis)agreements. Social support from important audiences legitimates norm interpretations and thus reduces reputational costs and facilitates norm development. Studying the speakers (including their agents), audience reactions, and argumentation helps us to identify the extent of social support for norm frames and/or claims and to systematically engage with scholarly debates over what renders some norm interpretations more persistent than others.
This chapter starts out with an explanation of three classical elements of rhetoric and then discusses in turn how speakers (including agents to whom interpretation is delegated), audience reactions, and argumentation affect the relative stability of norm frames and behavioral claims. The interpretations of speakers with institutional power, or critical states, are most likely to be influential. As norms are intersubjective, critical states need the support of key audiences for their norm frames and claims to avoid or reduce social and material costs of proposing “inappropriate” norm interpretations. It is important to distinguish between different audiences. Generally speaking, the reactions of in-group members and domestic audiences are more important for the sustainability of norm interpretations than the reactions of out-group members. The speaker has more ties to these audiences and therefore their dissent is particularly difficult to ignore and likely to render norm interpretations untenable. Speakers may pursue different kinds of argumentation strategies. Whether states pursue generally applicable norm change or covert exceptionalism affects what arguments are more likely to legitimate interpretations: output- or identity-based legitimation. I then draw attention to a particular kind of speaker: agents, like courts, quasi-judicial entities, or fact-finding missions, to whom norm interpretation may have been delegated. When such agents are involved, perceptions of agent competence also affect what interpretations can be upheld. Thus, agents introduce a different dynamic to norm disputes.
The chapter concludes by discussing the implications of audience reactions, argumentation, and delegation to agents for norm strength.
2. Extrinsic Influences on the Stability of Norm Contestation Outcomes: Three Classical Elements of Rhetoric
This book applies a rhetorical approach to norm contestation. Similar to other scholars of rhetoric in IR, I assume that states may not strive for the most legally correct norm interpretation but apply norms strategically in pursuit of beneficial outcomes.Footnote 1 However, as international legal norms are intersubjective standards, states need to gain widespread approval from others to change the law, or at least some support to keep proposing their contested norm interpretations without losing too much social standing. They need to create the perception among important audiences that their norm understanding is right.Footnote 2 Thus, actors have to take into account collective expectations if they wish to succeed in setting a precedent, or, alternatively, to keep social and material costs of proposing “inappropriate” norm interpretations down.Footnote 3 The contestants therefore have “thin” instrumental rationality but normative and social pressures weigh on them and influence the duration and outcome of norm contestation.Footnote 4
Some argue that material power is more decisive for the persistence and acceptability of norm interpretations than normative and social pressures,Footnote 5 particularly in security matters, on which this book focuses.Footnote 6 As I will explain in this chapter, while material power matters, it is not all that matters for the persistence of norm interpretations or for their acceptance by others. In addition, I focus on well-established, or hard, international law, precisely because of the particularly strong collective commitment to such norms,Footnote 7 which increases the influence of legitimacy politics and social reference groups and reduces the relevance of material power.
An important goal of rhetorical approaches to norm contestation is to identify what makes norm interpretations – that is, particular norm frames and/or behavioral claims – acceptable in the eyes of key audiences. Some associate rhetoric with deception and manipulation, perhaps because rhetoric is instrumental in the sense that the goal is to gain approval from the target audience, rather than finding out the truth.Footnote 8 Rhetoric need not carry such negative connotations, particularly when we acknowledge that norm meaning is incomplete, and application and debate help to develop it further. For Aristotle, a founding father of the study of rhetoric, the goal of rhetoric is simply considering what is persuasive.Footnote 9 It is necessary to consider what is persuasive because rhetoric involves arguments from probability rather than certainty; otherwise, no debate would arise.Footnote 10 The interpretation of international law may approach certainty and lead to no or little debate if it is applied to a routine situation. However, because international law is a social construct that retains an element of vagueness, uncertainty over its application, particularly to new situations, remains. Because IR are anarchical, there is often no straightforward way to determine the appropriateness of legal interpretations, let alone to enforce compliance. The uncertainty over how to apply norms often leads to debates, and the reaction of the international community then decides whether a norm interpretation takes hold. Therefore, the goal of the rhetorical approach adopted here is to find out what makes some norm frames or claims more acceptable and sustainable than others.
For Aristotle, whether persuasion is successful depends on “the truth and logical validity of what is being argued, the speaker’s success in conveying to the audience the perception that he or she can be trusted, and the emotions that a speaker is able to awaken in an audience to accept the views advanced and act in accordance with them”Footnote 11 (emphasis added). Leaving the question of what makes arguments acceptable aside for now, Aristotle draws our attention to three classical elements of rhetoric: the argumentation, the audience, and the speaker.Footnote 12 Naturally, these three elements interact. The characteristics of the audience may influence what arguments or speakers are considered important or credible. In turn, the characteristics of the speaker may affect what arguments they can use or what audiences they are more likely to appeal to. Nevertheless, it is useful to separately think through each element in the context of debates over the implementation of international law to identify what kinds of audiences, arguments, and speakers affect the duration of norm contestation. Thus, I structure the analysis of what makes some norm frames and claims more persistent than others along these three elements.
2.1 Speakers
Speakers are those actors who propose norm interpretations. Many actors reach conclusions on how to apply international law: states, NGOs, international courts and tribunals, and even individuals like Greta Thunberg contribute interpretations to international discussions. However, while many actors can voice their interpretations, not all speakers’ opinions are equally influential for norm development. Therefore, this book focuses on those actors whose opinions are most likely to influence the duration and outcome of norm disputes. Barnett and Finnemore show that decision-making authority can manifest itself in two ways: Actors can be authoritative when they are “in authority” (i.e., possess legitimate power to make decisions) or when they are considered “an authority” (i.e., have a characteristic, such as expertise, that puts them in a position of authority).Footnote 13
When it comes to the interpretation of international law, those actors with the most decision-making influence are “in authority.” States are the primary bearers of rights and duties; for example, they have the capacity to enter into treaties.Footnote 14 Hence, widespread state consent is usually necessary for international law to develop further.Footnote 15 As discussed in Chapter 1, Finnemore and Sikkink consider state consent sufficiently widespread 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 16 In norm contestation, actors are critical to the achievement of the substantive norm goal when their institutional position lends weight to their norm interpretations.Footnote 17 Thus, which states are “in authority” varies depending on the subject area. With regard to security matters, the focus of this study, the five permanent UNSC members (P5) often have the institutional power, or decision-making authority, to interpret and implement norms. For example, enforcement action under chapter VII of the UN Charter, such as economic sanctions or military action, requires their affirmative vote or abstention. The UNSC can render binding decisions under chapter VII.Footnote 18 Many of the case studies in this book therefore focus on the P5.
Institutional power and material power are often linked. The five permanent UNSC members, for instance, are also some of the most materially powerful states. This implies that material power has some influence over the sustainability of norm interpretations, but also that it is not the only explanation, as none of the P5 can unilaterally determine norm meaning. Even materially powerful states must convince other critical states of the legitimacy of their interpretations, or shoulder social and material costs for upholding unpopular norm frames and/or behavioral claims. Actors can therefore be both an important speaker and an important audience at the same time.
Institutional power can also be delegated. When states reach different conclusions on how to interpret legal rules, they can decide to delegate decision-making over legal interpretation to agents. States may lack the necessary expertise or neutrality to convince important audiences of their norm frames and claims and decide to delegate fact-finding or legal interpretation.Footnote 19 They may thus involve “an authority” and put it “in authority” regarding norm interpretation. The degree to which states delegate authority varies. Not all international dispute settlement mechanisms can render binding judgments, and even those that can lack formal enforcement powers.Footnote 20 Nevertheless, because agents’ expert authority legitimizes their interpretations, their findings are difficult to ignore without social repercussions.Footnote 21 The dynamic of norm contestation therefore changes when states involve agents in norm disputes: Argumentation and audience reactions then also revolve around the agent’s competence. I therefore examine the implications of delegation separately at the end of this chapter, after discussing argumentation and audience reactions in relation to states. This allows me to highlight similarities and differences in the factors that influence the persistence of norm frames and claims when agents are involved.
The analytical choice of focusing on institutional power comes at the expense of identifying the degree to which the activities of non-state actors, such as NGOs, affect norm contestation outcomes. The boomerang effectsFootnote 22 and spiral models,Footnote 23 as well as network theories,Footnote 24 have shown that TANs can convince states to accept and implement norm interpretations they previously rejected. As the conclusion of this book discusses, it is therefore an interesting question for future research how TANs can affect the sustainability of norm contestation outcomes, and whether they aim for frame or claim agreement when achieving consensus on both norm elements is unlikely.
To conclude, the book focuses on states – and their agents – because their institutional position makes it more likely that their interpretations, reactions, and arguments will be discussed and influence the sustainability of norm frames and claims. Of course, the other elements of rhetoric also affect the persistence of proposed frames and claims. A speaker with institutional power must still gain support from others to achieve norm clarification, or sufficient support from important audiences for the proposed norm frame and claim to avoid social and material costs and to make contestation sustainable. The next section discusses what kind of audience support is necessary for states to be able to keep proposing contested norm frames and claims.
2.2 Audiences
Importance of in-group reactions
Social identity and self-categorization theory indicate that group membership influences individuals’ attitudes and behaviors.Footnote 25 IR scholars have applied insights from social identity approaches to explain how groups of states interact in international affairs.Footnote 26 For our purposes, the distinction between states with a different identity (out-group members) and states with a similar identity (in-group members) is an important one. The reactions of in-group members to norm interpretations are particularly influential. What Johnston calls “social influence” is at play here: Because of real or imagined group pressure, an actor may conform with the position advocated by the group.Footnote 27 This effect derives from identification with the group.Footnote 28 Different sociological theories trace the pressure to conform with the in-group’s position back to the desire to be liked by a similar group, the desire to be consistent with prior commitments and values, and/or the desire to maximize social status and prestige, which publicly affirm the actor’s worth.Footnote 29
The attitudes of in-group members are an important source of information for actors, regardless of whether they follow a logic of appropriateness or of consequences. Actors who follow a logic of appropriateness gather information on role expectation by observing how others like them behave: for instance, to avoid inconsistency.Footnote 30 Research in social psychology has found more openness toward in-group criticism than toward out-group criticism, the so-called intergroup sensitivity effect.Footnote 31 In-group members, particularly those that are prototypical or highly identified with the group, are perceived as legitimate critics that seek to improve group norms and status. Out-group criticism, in turn, is less likely to be regarded as constructive and more likely to be regarded as an attempt to devalue the in-group.Footnote 32
Those who follow a logic of consequences, in turn, factor social praise or opprobrium into their calculation of gains and losses. Hence, when in-group members criticize a state’s proposed norm frame and/or behavioral claim, the (cognitive, social, or material) costs of upholding the contested norm interpretation may become too high. In-group dissent inflicts more social and material costs due to stronger (cognitive, social, and material) ties with in-group members that give their opinions weight. This effect becomes stronger the more ties in-group members share. For example, Johnston identifies pressure from developing countries – an in-group China identifies with – as an important factor in China’s support for the Comprehensive Test Ban Treaty,Footnote 33 and finds that US criticism alone, without criticism from China’s in-group, failed to generate enough opprobrium costs for China to improve its human rights implementation.Footnote 34
Simply put, the opinions of allies and friends weigh more heavily than those of adversaries and strangers: “the strength of backpatting and opprobrium depends on two related factors: the nature of the actor’s self-categorization, and which other actors, by virtue of this self-identification, become important, legitimate observers of behavior.”Footnote 35
When it comes to the P5 UNSC members, the US, the UK, and France share a similar culture, history, and values, and often work in tandem. The relationship between the so-called P3 and the other two permanent UNSC members, Russia and China, is less close. There are fewer material, ideational, and social ties to aid resolution. Therefore, dissent by Russia and China weighs less heavily for P3 states than disagreement among themselves. The P3 went ahead with launching strikes against Islamic State targets in Syria even though out-group members Russia and China disagreed with their claim that the frame of UNSC Resolution 2249 authorized these strikes. On the other hand, US President Barack Obama refrained from military action against Syria to enforce his red line on chemical weapons use when the British Parliament did not approve British troop contributions. Thus, out-group dissent had less effect than in-group dissent. Actors expect to disagree more often when there are fewer ties between them.
When in-groups turn against one of their own members, this is a particularly credible signal that their norm interpretation is reasonable and should be widely accepted. Informational theories have found that when credible authorities, for example legislative committees, make statements that go against expectations, the signal is exceptionally informative and indicates that the statements are reasonable.Footnote 36 When a defense committee proposes cuts to military spending, this is a more credible signal that the proposal is reasonable than when a budget committee makes this recommendation. Because in-group members share close social and material ties with each other, criticism of a group member risks costly internal discord. For instance, Terman and Voeten have found that states are more receptive toward criticism from other states with whom they share close ties during the United Nations Universal Periodic Review “in order to avoid damaging the relationship.”Footnote 37 The costliness of turning against one of its own members lends credibility to the in-group’s interpretation. Applying this insight from informational theories to IOs, Thompson states that “[a]n analogy in IR might be a case where the Arab League endorses intervention against an Arab state”Footnote 38 – which occurred in 2011, when the Arab League called on the UNSC to establish a no-fly zone over Libya to protect civilians from Gaddafi (see Chapter 4).
In addition, research in social psychology has identified a “black sheep effect”: When in-group members are considered inappropriate for the group, for instance because they are not perceived as norm-conforming or likable, the group tends to evaluate them more severely than out-group members who behave similarly.Footnote 39 While in-groups react strongly to deviant members who are clearly determinantal to the prestige of the group, they are open toward criticism from prototypical members who are seen as trustworthy and acting in the best interests of the group.Footnote 40 Both effects have been attributed to the desire of groups to maximize their status and prestige.Footnote 41 When other group members perceive the behavior of an in-group member as very “inappropriate,” this may not only elicit a particularly strong reaction from the in-group but may also be a credible signal to other members of the international community that this is a reasonable interpretation.
Note that group pressure can lead to public distancing from prior interpretations, modification of a frame or claim, or endorsement of more socially sustainable frames and claims. The public change in the norm frame and/or claim does not necessarily come with private acceptance.Footnote 42 Nevertheless, newfound public agreement on a norm frame and/or claim is still consequential because of the social expectation related to abiding by it in the future.
Indicators for in-groups
The categories of in-group and out-group imply a dichotomy, but relationships are never that clear-cut. It is a theoretical language to talk about differences in relationships. While we allocate actors to one group or the other in theory, in reality, there are many blends and combinations in between. Take, for example, the shared history and bond between the US, Canada, and Europe. The so-called special relationship between the US and the UK indicates that within this in-group some members are closer than others. Or take the relationship between the P3, on one side, and Russia and China, on the other. The in-group/out-group language captures the fact that, in security affairs, the topic of analysis of this book, we often see differences between these two groups of states. However, if we were studying the relationship between NGOs and states, we would classify these five states as in-group members. Thus, in-group/out-group categories are fluid and context-dependent.Footnote 43 While in-group bias has even been observed in arbitrarily created groups,Footnote 44 some group memberships are more salient and influential than others.Footnote 45
This book treats membership in IOs with selective membership criteria, as well as shared values or history, as indicators of strong ties between group members. Thus, the reactions of those in-group members to norm interpretations are particularly likely to be influential. We can treat members of IOs as an in-group: States establish them “to act as a representative or embodiment of a community of states.”Footnote 46 Institutions are a forum for debate and keep public records of prior justifications and norm interpretations. They provide “information about the degree to which actors are behaving in ways consistent with this shared understanding”Footnote 47 of a norm. Not only do IOs scrutinize norm interpretations, the decisions of IOs can change and create new norms or norm understandings.Footnote 48 Because norm interpretations are particularly visible and salient in IOs, the reactions of other IO members to norm interpretations are particularly influential.
This effect is strongest for IOs that are selective in their membership criteria. Selective membership criteria imply that those who participate in the organization share similar values and goals. Only when group members share similar values do the reactions of the group to proposed norm interpretations lead to shaming or back-patting effects.Footnote 49 It is precisely because of shared standards of legitimacy and strong ties in regional organizations (ROs) that rhetoric scholars in IR who focus on disputes within in-groups cite ROs as the site where rhetorical coercion works best in international affairs,Footnote 50 or focus their analyses on contestation within ROs.Footnote 51 Similarly, only when states have an interest in future cooperation with other states do they seek to hone a reputation for honoring their international commitments to those states.Footnote 52 Members of ROs, such as the EU, are more likely to share similar values and joint cooperative goals than members of the UN, which has almost universal membership.
Not only geography but also a narrow regulatory ambit can point to close-knit groups: Membership in such IOs indicates a commitment to tackling a joint problem, which can strengthen ties between states. Geographical and regulatory limitations can also coincide. In security affairs, for example, the UN has the most universal membership and a broad mandate, whereas NATO – particularly during the Cold War – has had a more focused mandate and geographical scope. Hence, we can identify in-group members as members of institutions, particularly those with selective membership criteria, in the subject area under contention. Treating institutions as a proxy for in-groups acknowledges the important role they play in norm contestation.
Institutional membership is one way to measure in-group membership, but it is not the only one. Another important indicator is whether countries have a shared culture, history or values, as “historical, cultural and politico-ideological forces and movements”Footnote 53 facilitate identification with similar others. Actors may share such close ties without having institutionalized them. The relationship between the US and Western Europe serves as an example. Collective values are often the characteristic that distinguishes in-groups from out-groups.Footnote 54 As such, the contested norm itself, and the degree to which it is internalized in different states, may divide states into in- and out-groups.
As the case studies in this book show, given that in-group and out-group membership is somewhat fluid and context-dependent, the topic and location of debate influence what group membership is most salient and the opinions of which in-group are most relevant. For instance, when it came to voting on establishing a no-fly zone over Libya, the position of the pertinent RO, LAS, exercised considerable influence on Russia. As a RO of the Global South, LAS forms part of Russia’s in-group, and the LAS decision to disown one of its members, Libya, made the LAS request to the UNSC particularly powerful. However, when it came to security disputes in Russia’s near abroad – that is, debates over the status of Kosovo, South Ossetia, and Abkhazia – it was not the opinions of LAS members that mattered but those of pertinent Eurasian security organizations, such as the Collective Security Treaty Organization (CSTO). Thus, which in-groups matter somewhat depends on the topic and location of debate.
To summarize, in-group membership makes it less likely that group members will openly oppose another member (unless the behavior in question is perceived as grossly inappropriate), and that the criticized group member will ignore the opposition.Footnote 55 Because of the social repercussions and costs of internal discord, when in-group members are divided over what frame and claim apply, the disagreement is less likely to persist. In-group dissent negatively affects the sustainability of norm interpretations.
From the importance of in-group support, we can infer some observable implications: We would expect those who propose norm interpretations to prioritize gaining approval from in-group members: for example, by reaching out to in-group members first and investing more time and resources in convincing group members to support their norm frames and claims over rival interpretations. The empirical chapters confirm this expectation.
Factors that can alleviate lack of in-group support
There are, however, several factors that reduce the impact of lack of in-group support: the intensity of the dissent, the reactions of out-group members, and the reaction of domestic audiences.
Regarding the intensity of disagreement with a norm interpretation, there are, of course, gradations of dissent. When other actors object loudly to an interpretation, the shaming effect and reputational costs are stronger than when the criticism is relatively subdued. Clear and open criticism implies a strong feeling that international law has been unduly twisted, and it signals that an interpretation is considered “inappropriate,” which puts pressure on the proponent of the contested norm interpretation.Footnote 56 The pressure is strongest when it comes from in-group members, and when it is consistently voiced. When in-group criticism is of a high intensity, we would expect the criticized actor to modify, if not abandon, the contested norm interpretation. Vague or sporadic criticism, in turn, reflects more ambivalence and thus can be more easily discarded without fearing adverse consequences for social standing and cooperation. Johnston finds that a lack of public criticism allowed China to remain a non-signatory of the Mine Ban Treaty.Footnote 57 In Chapter 3, Russia’s recognition of South Ossetia and Abkhazia, based on arguments relating to remedial self-determination, was not enthusiastically received by its in-group members, but their criticism was very muted. This made the dissent more manageable.
In addition, the disagreement is stronger, and strains relationships more, when it is not only verbally expressed but also backed up by actions.Footnote 58 Opponents of norm interpretations might behave in a way that makes it more difficult to implement the norm interpretation for the proponent. In Chapter 6, Spain and France denied the US overflight rights for their military strikes in response to a terrorist bombing in Berlin in 1986 that killed and wounded Americans to underline their disagreement with the US’s interpretation of the right to self-defense. Opponents can signal stronger disapproval by extracting higher costs with their actions, for example by issuing sanctions.
The same applies to the reactions of out-group members. Clear criticism from out-group members is less influential than criticism from in-group members because the relationship is less significant. However, when out-group members’ criticism weakens over time or is very muted it can somewhat mitigate lack of support from a state’s in-group, particularly if in-group dissent is muted, too. As Chapter 3 discusses, an important reason for why Russia was able to uphold its contested frame of remedial self-determination and claims regarding South Ossetia’s and Abkhazia’s independence was that the US and EU member states soon toned down their criticism, preferring not to adversely affect their relationship with Russia over their interpretive differences. States are more likely to continue to uphold a controversial norm interpretation in the absence of clear in-group support when both in-group criticism and out-group criticism are of low intensity.
Lastly, domestic reactions count, too. Robert Putnam has portrayed treaty negotiations as a two-level game of international and domestic factors, whereby strong domestic limitations on what negotiators can agree to can strengthen their international bargaining positions.Footnote 59 We can observe similar dynamics when it comes to norm application. We see this in Chapter 4, which discusses the SCS dispute, where domestic pressures on Philippine President Duterte to remind China of its agreement to grant access to contested fishing grounds in Scarborough Shoal contributed to keeping the claim agreement alive. However, domestic opinion does not always influence international disputes over the application of international law. For instance, even though the British public did not support the Iraq war, Prime Minister of Great Britain Tony Blair decided to honor his pledge to support US President George W. Bush. Some argue that domestic audience reactions are particularly influential in the area of human rights. Simmons shows that human rights implementation differs from other areas of international law in that it mainly affects the domestic population and empowers domestic actors and institutions, such as national legislators, civil society, and courts.Footnote 60 As a result, the reactions of domestic audiences to interpretations of human rights norms are particularly consequential, whereas other states are less directly affected and thus have fewer incentives to strain relationships and to shame governments for perceived violations.Footnote 61 Chapter 6 shows that domestic audiences in the US, as well as in-group member states, were important for mobilizing pressure on the US to abandon contested interpretations of the prohibition of torture. In short, when the issue is salient and gives leverage to domestic compliance constituencies, such as legislators or domestic courts, we would expect leaders to make concessions with regard to the norm interpretation.
Note that to what extent in-group/out-group and domestic audience reactions can affect the sustainability of both frames and claims depends on the goals of the dispute parties. Contestants may prioritize reaching agreement on one norm element over another. We can see this in the debate over the no-fly zone in Libya, where UNSC member states focused on reaching claim agreement. Or, a dispute party might prioritize making its disagreement with a norm element sustainable: Chapter 5 illustrates the UNSC’s efforts to render its implementation of due process rights via an Ombudsperson mechanism sustainable despite the ECJ’s disagreement with the claim. In these situations, social pressure only influences contestation over one norm element, and thus whether the disagreement over the frame or claim persists or turns into agreement.
The case studies show that audience reactions affect the ability of states to uphold contested norm interpretations. As explained in the Introduction, this book adds a more fine-grained analysis of social dynamics to the literature on norm contestation and change, compared to other scholars who study rhetorical entrapment:Footnote 62 Looking beyond dynamics within groups and studying in-group–out-group dynamics helps us to explain why some norm interpretations are more persistent than others. By identifying influential audiences, my rhetorical approach also refines Johnstone’s concept of an “interpretive community,” which passes judgments on norm applications and extracts reputational costs for non-compliance, and whose interpretations affect the evolution of law.Footnote 63
When we broaden the analysis to include different communities of values, social dynamics and legitimation strategies still matter. However, in addition to dynamics within groups, in-group/out-group dynamics and other legitimation strategies than those that are based on shared values account for the alternate endings of international norm disputes. Scholars disagree whether material power or arguments that legitimate interpretations are more important for gaining the support of important audiences for a norm interpretation. The following section shows that appeals to output legitimacy and identity-based legitimation are most likely to influence important audiences: Arguments that appeal to output legitimacy can bridge in-group/out-group divides, and appeals to identity can conceal exceptionalist interpretations.
2.3 Argumentation
As discussed in Chapter 1, actors might try to establish a generally applicable norm interpretation or engage in exceptionalism. Exceptionalism occurs 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 be covert or overt. When it is overt it can be explicit, where actors explicitly propose that a one-off exception to the prevalent understanding of a norm should be made, or implicit, where actors pursue a behavioral claim that is difficult to reconcile with their prior norm interpretations but not frame the claim as exception or advance a clear norm frame as justification. 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 64 or behavioral contestation.Footnote 65 Covert exceptionalism differs from overt exceptionalism, as well as from norm interpretations that seek to develop norms further in a generally applicable way: Because norm addressees are not transparent about the behavioral claim, the sustainability of covert exceptionalism largely depends on the ability to hide behavior, and not as much on social support for the openly proposed norm interpretations. This has implications for the kind of argumentation that is likely to be used and that is likely to resonate with important audiences. I will therefore now first assume that states aim to gain support for their openly proposed norm interpretations. I then relax this assumption and shed light on what legitimation strategies can sustain covert exceptionalism.
According to Toulmin, backings make frames and claims persuasive and give them currency with others.Footnote 66 Scholars across theoretical divides argue that two backings are particularly important when it comes to resolving or maintaining norm contestation: material power and legitimacy.Footnote 67 Because norms are standards of appropriate behavior, shaping their meaning is a way to impress ideas on others and to influence their future actions. Ikenberry and Kupchan and Krisch argue that introducing norms and socializing others into them has always been an important tool in the hegemon’s quest for influence.Footnote 68 However, there is disagreement over how much powerful states themselves are bound to the norm interpretations they introduce.Footnote 69
Because of the legitimacy benefit of gaining acceptance of rules that legitimate favored practices, Brooks and Wohlforth argue that a far-sighted hegemon may accept considerable costs and risks in the short term, gambling on a change in the standard of legitimacy in the long term.Footnote 70 While materially powerful states’ ability to absorb costs may explain why norm contestation can go on for a long time, Brooks and Wohlforth do not explain how agreement on the hegemon’s favored norm interpretation can be reached, other than pointing to the need to show legitimacy. Other scholars regard standards of legitimacy to be very stable and therefore able to trump material power, as long as it can be shown that a frame–claim combination is in accordance with this standard of legitimacy.Footnote 71 Thus, while there is agreement that legitimacy matters, there is disagreement on how and what kind of legitimacy backs up norm interpretations.
Following Max Weber, it is commonly argued that legitimacy has its foundation in a shared belief in a consensual normative order that binds those who rule and are ruled. Hurd describes this shared belief in a consensual normative order as the “normative belief by an actor that a rule or institution ought to be obeyed.”Footnote 72 Legitimacy is therefore an inherently social phenomenon, as social recognition is what gives “oughtness” to a rule.Footnote 73 Legitimacy in this sociological sense is different from legitimacy in a normative sense. It is based on perceptions of what is right, rather than on actual rightness or goodness.Footnote 74 Social recognition of a norm interpretation is constructed by social interaction.Footnote 75 Political actors construct legitimacy discursively by providing justifications for why their norm interpretation should be recognized by others.Footnote 76 These justifications must show that they fulfill collective expectations in order to be accepted. Legitimacy is constructed through social interactions, but it also structures them.
States are expected to explain their interpretations. Their justifications must show that frame–claim combinations fulfill social expectations and standards of legitimacy to gain approval. Hence, I refer to such justifications as legitimation. In the following, I discuss what justifications for a norm frame and claim are most likely to be considered valid, including by out-group members whose consent is necessary for norm clarification.
Scharpf famously distinguished between input-oriented legitimization and output-oriented legitimization.Footnote 77 The former is derived from procedural fairness and based on identity, since some identification with others is necessary for majority decisions to be acceptable. Output legitimacy, on the other hand, is derived from the perception that an effective solution has been found and is based on common interests.
This book shows that actors are particularly likely to justify norm frames and/or claims with reference to their output legitimacy. Output legitimacy is derived from the provision of an effective solution to a shared problem. A focus on beneficial consequences, what Scharpf famously labeled “output” legitimacy, has the advantage that it does not require a shared identity.Footnote 78 As Van Kersbergen and Van Waarden state, “[o]utput legitimacy implies that a political system and specific policies are legitimated by their success.”Footnote 79 Such output legitimation is thus more likely to also appeal to out-group members. The delegation of authority to an international decision-making body is often considered legitimate if this body provides effective solutions.Footnote 80 Decisions by the UNSC on how to interpret international norms – for instance, whether a threat to international peace and security exists – have output legitimacy when they are perceived to solve a shared problem. It is not prior commitments,Footnote 81 an intrinsic belief in appropriateness,Footnote 82 or the quality of deliberationsFootnote 83 that confer legitimacy, but rather the perception that a norm frame and claim successfully tackle a joint problem. The case study of contestation over the extension of the right to self-defense to include military responses against states that actively support or willingly harbor terrorists after large-scale terrorist attacks such as 9/11 (see Chapter 6) shows that output legitimacy is often influenced by external, non-discursive events that raise awareness of a common problem and the need for effective solutions.Footnote 84
Steffek criticizes the focus on successfully addressing common problems because it disregards the fact that legitimacy has a normative dimension and thus cannot be based on personal advantage.Footnote 85 However, what makes a given output (and the norm interpretation that generates it) legitimate is not personal advantage. Rather, it is a common perception that a particular norm interpretation ought to be accepted because it effectively solves a shared problem. Hence, the oughtness is derived from the intersubjective understanding that an interpretation works, rather than from situation-dependent individual advantage. The international community shows a willingness to commit to this interpretation in the long term because of the beneficial solutions they expect it to provide. Therefore, output legitimacy is defined as the provision of an effective solution to a shared problem which leads to a collective long-term normative commitment. When actors try to justify their norm interpretation based on its output legitimacy, they need to convince a tipping point of states, including critical states, that there is a problem with the status quo and that their norm interpretation offers an effective solution to it, and therefore ought to be accepted.Footnote 86 Appeals to there being a need to tackle a joint problem and the norm interpretation providing an effective solution indicate attempts at output legitimation of a norm interpretation.
Output legitimation is relevant in the context of norm contestation because it explains why, even when the dispute parties did not commit to the same norm frame and claim in the past, there is still the possibility of agreement. If perceptions change such that an actor’s norm frame and claim are seen as inadequate for solving a shared problem, this actor could face significant pressure to accept another frame and claim. If only one norm frame and claim can provide a successful solution to the problem, the opposing norm frame and claim will likely be dropped. This leads to norm clarification. Therefore, we often see dispute parties relying on output legitimation. It is not guaranteed that output legitimation will generate enough social support to resolve norm contestation or, alternatively, to sustain it. The impact of output legitimation depends on outside factors – such as 9/11 making international terrorism a more pressing and shared problem – but also on how convincingly actors can construct the output legitimacy of their interpretations or the lack of output legitimacy of their opponents’ interpretations.
The preceding discussion assumes that states openly contest norms. They may try to legitimate a generally applicable new norm interpretation or gain acceptance from important audiences for overt exceptionalism. However, states may also engage in covert exceptionalism: for example, when trying to cover up human rights violations. In these cases, we would expect states to be as secretive about their behavior as possible and to engage in denial when others uncover the dissonance between the claim and frame.Footnote 87 When engaging in covert exceptionalism, states may use their reputation for trustworthiness regarding the norm as a cover. Aristotle and many subsequent scholars have considered the credibility or ethos of the speaker as the most potent means of convincing an audience, particularly when the logical validity, that is, the frame and/or claim, of an argument is disputed.Footnote 88 “Character,” “competence,” “trustworthiness,” and “authoritativeness” of the source of the argument are among the most frequently cited traits of a credible speaker.Footnote 89 Actors need to be what Barnett and Finnemore call “an authority” with regard to the contested norm: that is, to have a characteristic that puts them in a position of authority and that makes their arguments persuasive.Footnote 90 Research in social psychology has found that prototypical, or highly identified, leaders are particularly well-positioned to be normatively innovative because they are trusted to be legitimate interpreters and to act in the best interest of the group.Footnote 91 Thus, it is important for leaders to be perceived as having internalized the norm, and as identifying with it, for others to perceive their interpretation as trustworthy. I refer to legitimacy that derives from credibility, trustworthiness, or image as identity-based legitimation since there needs to be a “cultural match” between the norm and the identity of an actor.Footnote 92 The domestic legal culture is a good indicator of the identity of states. For example, liberal states will be considered more trustworthy interpreters of human rights than illiberal ones. Human rights NGOs will be considered more credible sources of information when it comes to states’ human rights records than environmental NGOs. Opponents may, in turn, question the credibility of proponents of norm interpretations. Chapter 6 shows that the Bush administration for a long time referred to the US’s identity – the character of its legal system, its image, its honoring of domestic and international obligations – when trying to cover up prisoner abuse and to convince others that detainees suspected of terrorism were being treated humanely.
This book’s finding that perceptions of output legitimacy matter for norm change differs from the insights offered by other norm scholars. Norm scholars have mainly pointed to the importance of different facets of input legitimacy, derived from procedural appropriateness,Footnote 93 for norm clarification: Some show that prior commitment may “entrap” actors,Footnote 94 whereas others point to the fairness of the deliberation process.Footnote 95 I refer to the former as precedent-based legitimation and to the latter as process-based legitimation. However, both mechanisms are very demanding: Rhetorical entrapment only works if there was a past consensus and if there is agreement that the past and present situation are alike.Footnote 96 The Habermasian criteria for fairnessFootnote 97 – a common lifeworld, equal standing, and equal voice – are difficult to achieve in international affairs, even if they are recognized as an ideal yardstick against which deliberations are measured. Inclusive, fair deliberations alone are unlikely to be sufficiently persuasive when deep-seated beliefs or power dynamics are involved. This is not to say that these kinds of legitimacy are irrelevant: When audiences, such as in-group members or domestic audiences, whose support is important to make contestation sustainable, value process-based legitimacy, states are likely to make efforts to show it. Tony Blair’s insistence on involving the UN in the lead-up to the Iraq war because he considered the UNSC’s stamp of approval desirable and necessary to convince the British public and Labour Party members illustrates this.Footnote 98
Similarly, precedent-based legitimation may not lead to norm clarification if there are no clear-cut precedents to draw on, but prior applications of international law are still likely to structure debates. International law plays an important role in this book, precisely because of the particular kind of collective expectations and social pressures it elicits. In Reus-Smit’s words: “casting claims in the language of law” means “conscripting the power of social opinion to one’s cause. And because norms are guides to action, defining a problem or issue as legal reduces opportunity costs by invoking standardized, socially sanctioned solutions.”Footnote 99 The collective expectations around well-established norms of international law thus exercise a particularly strong pressure to apply these norms, due to their socially sanctioned nature. Therefore, dispute parties are likely to draw analogies with past applications of international law and to use the language of the law to justify their claims.Footnote 100 This contributes to the “dual quality of norms as structuring and constructed”:Footnote 101 Debates over the application of norms construct the meaning of norms and enable or constrain future episodes of norm contestation, as the “alternate endings” typology illustrates. Legal argumentation may not always lead to norm clarification because the international community may not find the legal criteria or precedents dispute parties propose persuasive: For instance, there may not have been norm clarification in similar past situations, or a situation that is perceived as similar. Nevertheless, the use of legal argumentation indicates that dispute parties consider appearing to follow socially sanctioned criteria of international law, such as drawing on precedents, as an important backing for their norm interpretations.
Actors may also engage in principle-based legitimation and refer to substantive moral values to legitimate a norm interpretation, such as the prevention of bodily harm to vulnerable groups.Footnote 102 This may particularly be the case when the contestation revolves around which of multiple candidate norm frames and claims should apply. If proponents can convince others that their preferred norm frame and claim are morally superior, this may lead to norm clarification. If principle-based legitimacy mattered in the process of argumentation, we would primarily expect to see arguments that refer to the obligation states feel to uphold a norm or norm understanding. However, as tensions between morally valuable norms are present in every system of beliefs,Footnote 103 and socialization into new values takes time,Footnote 104 principle-based legitimation is unlikely to resolve norm contestation in the short run.
In sum, to gain the support from others for their norm interpretations, proponents of an interpretation are likely to resort to identity-based legitimation when trying to cover up exceptionalist norm interpretations, and to resort to output legitimation when trying to gain social support for a generally applicable norm change or overt exceptionalism. As a result, their opponents are likely to resort to the same legitimation strategies – that is, to question the proponent’s credibility or the utility of the proposed interpretation. The detailed discourse analysis in Chapter 6, in particular, illustrates this. Chapter 6 also identifies that opponents additionally may engage in principle-based legitimation and legal argumentation to emphasize their commitment to different frames or interpretations of a frame. Lastly, an important insight of this books’ case studies is that legal argumentation matters: Because of the socially sanctioned nature of international law, actors often feel pressure to show that their preferred norm frames and claims appear to be legally sound. Past “endings” therefore structure future debates and influence the ability of actors to engage in precedent-based legitimation and to show conformity with the law.
2.4 Delegation to Agents (Speakers)
Institutional power, or the authority to decide how to interpret norms, can also be delegated. Delegation occurs when an actor (or actors) with decision-making power (the principal(s)) provide(s) another actor (or actors) with the authority to make decisions or to take actions on its (or their) behalf. The grant of authority must be temporary, limited, and revocable; otherwise, we would not see delegation but abdication of authority.Footnote 105 When principals, for example UNSC member states, involve agents in norm contestation, this adds a new element to dispute resolution: The agents and their work can also affect whether dispute parties can continue to uphold their preferred norm frames and/or claims. This section discusses under what conditions agents can contribute to managing or resolving norm contestation. Agents manage norm contestation when they make the principals’ disagreement on the norm frame and/or claim more sustainable: for example, by increasing precision and reducing the social and material costs of disagreement.Footnote 106
Occurrence
Depending on the characteristics of the delegation relationship, scholars give different names to those actors who grant and receive authority.Footnote 107 I use the umbrella terms principals and agents because they communicate well the fact that states (principals) engage a third party (agent) to interpret or implement norms. Such indirect governance can take several forms and vary greatly in duration, delegated tasks, and the degree to which principals grant authority to agents or enlist the authority of agents.Footnote 108 When it comes to norm interpretation, delegation can range from establishing permanent courts, such as the ICC, to sending fact-finding missions.
While I adopt the principal–agent terminology, I do not adopt the assumptions of principal–agent theory that agent competence is static and independent of principal control efforts, and that information asymmetry is the main obstacle for principals when trying to control agents.Footnote 109 Rather, whenever principals delegate to agents, they face a dilemma: Principals prefer competent agents whose capabilities, that is, expertise, credibility, or operational capacity, can contribute to achieving the principals’ goals. At the same time, principals would prefer to be able to control agents, that is, shape or constrain their behavior so that they pursue the principals’ goals or cannot undermine them.Footnote 110 Principals tend to face a trade-off between competence and control. Competence gives agents leverage over principals and makes them more difficult to control. Tight control by the principal, on the other hand, risks affecting agent competence: for example, how credible important audiences perceive their findings to be.Footnote 111
Delegating norm interpretation leads to such a competence–control (CC) trade-off: When dispute parties delegate norm interpretation to agents, agents’ credibility and expertise add legitimacy to the norm frame and claim the agents favor. However, dispute parties also run the risk that the agent might find in favor of an unwanted norm interpretation. Principals can do little to reduce this risk because they cannot control the agent’s verdict without diminishing the agent’s competence, and thereby the legitimacy of the agent’s findings. While delegation holds the potential to legitimate the preferred norm interpretation, it also presents the potential cost of having to accept unwanted norm frames and claims or public backlash for ignoring, or trying to control, the agent’s interpretation. In security affairs, the sovereignty costs of delegating the interpretation of contested norms to agents are particularly high.Footnote 112 Disputes over the status of territories or maritime boundaries, or over how to address security risks, have significant consequences for the well-being of citizens and the authority and influence of governments. The risk of agents finding unwanted norm interpretations applicable and delegitimizing the preferred interpretation is an obstacle to delegation, particularly in security affairs.
When dispute parties agree on a norm element, consensual delegation to manage or resolve contestation over the application of norms to security issues becomes more likely. Frame agreement reduces the range of permissible behavioral claims or ways of implementing the norm and increases collective expectations related to acting upon the norm frame. Frame agreement can lower the perceived cost of delegation, when dispute parties perceive the frame agreement as lowering the sovereignty costs of agents making undesirable behavioral claims or as opportunity to solve claim disagreement. Delegation then becomes likely when the dispute parties lack the necessary expertise and credibility to convince important actors that their behavioral claim falls within the norm frame.Footnote 113 Similarly, agreement on the behavioral claim can facilitate consensual delegation, despite frame disagreement, when principals lack the necessary resources or operational capacities to address the problems they identified.
Hawkins et al. find that the gains from delegation are greatest when specific resources are required: “[s]tates sometimes lack technical expertise, credibility, legitimacy, or other resources to make policy on their own. The greater the needs of states, the larger the gains from specialization and the more likely they are to delegate…”Footnote 114 The UNSC is an important collective principal in this book.Footnote 115 In the case studies, the UNSC tended to delegate after agreeing on one norm element, predominantly the frame (see Chapters 3–5), and therefore required specific resources to implement it.
Non-consensual delegation, on the other hand, may occur whenever it is procedurally feasible and a dispute party considers it beneficial to involve agents despite objections from other dispute parties. Procedural rules can facilitate delegation when one or more dispute parties object to it. The Philippines used compulsory dispute settlement rules in UNCLOS to involve the Permanent Court of Arbitration (PCA) in the SCS dispute against China’s will (Chapter 4) and Serbia used procedural rules that allowed the UNGA to refer the dispute over the status of Kosovo to the ICJ despite the US’s protest (Chapter 3).Footnote 116 Non-consensual delegation risks alienating opponents and making agreement on a norm interpretation more difficult. A dispute party might, however, still consider it beneficial to involve agents: for example, because the verdict of a competent agent may help to mobilize important audiences and social pressure on opponents to make concessions and drop competing norm frames or behavioral claims. I will now turn to examining the conditions under which agents can contribute to managing or resolving norm contestation.
Contribution of Agents
Agents contribute most to social norm strength when their involvement leads to norm clarification. As discussed in Chapter 1, when there is widespread agreement on a norm frame and behavioral claim, it becomes clearer what the international community expects in similar situations in the future. This increases the norm’s ability to mobilize social pressure to conform, or to justify deviations, in similar situations and gives the norm social strength. Such norm clarification is also likely to improve relations between the dispute parties and to reduce the social repercussions and costs of the earlier disagreement. Depending on the nature of the disagreement, this occurs when the agent’s findings, or the delegation to the agent, become widely accepted. In none of the cases analyzed in this book did delegation bring about norm clarification. The high sovereignty costs of accepting unwanted norm frames or claims might explain the lack of norm clarification resulting from delegation. Delegation has more frequently resolved norm contestation in other issue areas, such as trade.Footnote 117
When agents do not facilitate norm clarification, they may contribute to managing norm contestation. Agents manage norm contestation when they help to make the disagreement more sustainable: for example, by increasing norm clarity somewhat and reducing the social repercussions and costs of disagreement. While the findings of agents (see SCS dispute in Chapter 4) or delegation to them (see 1267 sanctions regime in Chapter 5) may not be completely accepted claims by all critical actors, they can facilitate agreement or rapprochement on one norm element and thereby slightly reduce the costs of disagreement and increase precision. This can improve social norm strength.
In this context, it is important to note that the disagreement agents are tasked with helping to solve can differ: It can be about the delegation to the agent itself or about separate implementing actions. These claim disagreements imply distinct goals for the agents: to gain acceptance for delegation to them or to gain acceptance of their findings. While these can be separate goals, they do not need to be. Agents often seek to legitimate both – (continued) delegation of authority to them and their findings – as both can be interrelated.Footnote 118
Delegation of norm interpretation to solve, or at least manage, disagreement puts the agent’s work at the center of the dispute. Dispute parties must decide how to react to the delegation and to the agent’s findings. As compulsory jurisdiction is rare and enforcement mechanisms absent, implementation of the agent’s findings is not automatic. Dispute parties may thus decide to ignore the agent or its findings and engage in unilateral action instead.Footnote 119 When the agent’s work is perceived as legitimate, it is more likely to be widely accepted. Alter has shown that when delegation to trustees, such as international courts, occurs, these competent agents are less easily swayed by recontracting threats and material inducements. An important reason is that experts are primarily concerned with their professional reputation, which relies on exercising independent judgment.Footnote 120 Abbott et al. show that when principals require competent agents to legitimize political decisions, delegation to any kind of agent, not only to trustees, means that principals have to forego hard contractual controls. Recontracting threats and material sanctions erode agent competence and thus jeopardize the goal of delegation of conferring legitimacy.Footnote 121 Instead, principals are likely to resort to less visible, soft controls, such as rhetorical and legitimacy politics, to respond to unwanted findings, trying to delegitimize the agent or its interpretation.Footnote 122 Thus scholars agree that competence legitimizes the work of agents, increases the reputational costs for noncompliance, and reduces principals’ ability to control agents. However, it is understudied how both agents and (some) principals use rhetorical and legitimacy politics to respectively gain acceptance for the agent’s findings, or to evade unwanted findings and to lower the reputational costs of doing so. Principals and other actors may choose to incur the social repercussions and costs of contesting the interpretations of agents when they perceive them to contradict their preferences.Footnote 123
The previously discussed legitimation strategies and social dynamics affect whether the social repercussions and costs of contestation are high enough to facilitate compliance with some or all of the agent’s findings and/or to continue delegating. Applied to delegation, the reactions of compliance constituencies and their influence on dispute parties (key audiences), the agent’s independence and image (identity-based legitimacy), and perceptions of agent effectiveness (output legitimacy) affect the likelihood of management or resolution of norm contestation. All of these factors are to a certain extent fixed (i.e., influenced by the problem structure) but they are also constructed. I will now analyze in turn how these variables affect the implementation of the agent’s findings.
Audiences
Alter has shown that international courts can influence political decisions with the help of compliance constituencies: “[international courts] then alter political outcomes by giving symbolic, legal, and political resources to compliance constituencies, ever-changing groups of actors that for a variety of reasons may prefer policies that cohere with international law.”Footnote 124 Thus, when the agent can mobilize actors who prefer policies that cohere with the agent’s findings or continued delegation, and can exercise pressure on dispute parties, it is more likely that dispute parties will accept the agent’s findings or continue to delegate. Such compliance constituencies can comprise a variety of actors, for example TANs, domestic actors (e.g., voters and parliamentarians), or beneficiaries.Footnote 125
The audience whose support is most decisive for agents is context-dependent. Compliance constituencies need to be able to exercise social pressure on principals, whether because they can directly affect a principal’s norm implementation, or indirectly by mobilizing public opinion or an influential principal’s in-group member against the principal’s norm interpretation. Which audiences are the most important compliance constituencies is to a certain degree fixed by the problem structure. For instance, the nature of the contested norms can influence which audiences’ perceptions of the agent count most. Chapter 5 shows that the justiciability of due process rights gives beneficiaries the opportunity to directly challenge the (collective) principal’s norm implementation in court. This standing made beneficiaries an important audience whose perception of the legitimacy of the delegation of norm implementation to an Ombudsperson mattered.
Low or incohesive social pressure, on the other hand, dissuades principals from continuing to rely on delegation. The different views of the UK and France, influential members of the US’s in-group, and support from domestic audiences for unilateral action, meant that the US did not face enough social pressures to continue to rely on delegation to weapons inspectors in Iraq in 2003 (see Chapter 5).
In sum, when compliance constituencies exercise pressure on dispute parties to uphold the agent’s findings or to continue to rely on delegation, agents are in a better position to manage or resolve norm contestation. For the mobilization of compliance constituencies, the perception of the agent as a competent interpreter of international law matters, because it adds legitimacy to the agent’s work. In this book, I show that the extent to which agents can legitimize their work through their identity and output influences perceptions of competence. Agents have to navigate the fact that principals’ and compliance constituencies’ perceptions may differ on what constitutes legitimate traits or output.
Identity-Based Legitimacy
The authority of agents is built on their reputation as impartial, expert decision-makers, what Barnett and Finnemore call being “an authority.”Footnote 126 To resolve or manage norm contestation, agents have to convince principals and other dispute parties with different preferences of the legitimacy of their work. The identity of the speaker influences their credibility and is important for determining the acceptability of their argument.Footnote 127 Principals to a certain extent fix the identity of agents through the mandate and appointment criteria, but agents can also affect perceptions of their identity through their conduct.
The mandate is particularly difficult to change when collective principals with consensus-heavy decision rules, such as the UNSC, issue it. Influencing agents ex post then does not only compromise perceptions of competence but is also difficult to internally agree on.Footnote 128 Thus, collective principals have the most control ex ante when designing mandates and selecting agents.Footnote 129
There has been some debate over whether dispute settlement mechanisms with a certain degree of independence from states are more effective than those that are more dependent. Dependent international tribunals have to take the interests of (powerful) states into account more and therefore might be more likely to suggest acceptable solutions, whereas independent tribunals can serve as credible commitment devices and are more likely to mobilize compliance constituencies.Footnote 130 For agents to contribute to managing or resolving norm contestation, their work has to be widely perceived as contributing legitimate interpretations of international law. The international community is unlikely to see dependent agents as expert authorities that can lend legitimacy to norm interpretation.Footnote 131 The mandate confers independence to agents when their personal or professional reputation is the main criterion for appointment and when they are given the authority to make decisions based on their own judgment.Footnote 132 In all of the case studies where delegation occurred because impartial expertise was needed to resolve or manage disagreements, agents were granted independence in exercising their mandates.
Some scholars of international courts create a higher bar for independence: amongst others, emphasizing long-term mandates and a courtroom setting,Footnote 133 compulsory jurisdiction, permanence, and tenured judges.Footnote 134 I consider the ability of agents to independently exercise their judgment, and their qualifications, most decisive. Competent agents care about their professional reputation among the interpretive community of international law and therefore are less easily swayed by recontracting threats and particular interests of states.Footnote 135 However, judicial settings, long-term mandates, and complex appointment procedures provide additional shields from political influence, and therefore such international courts have particularly high expert authority. Thus, when these shields are not in place, we would expect agents to be more prone to charges of dependence and to their expertise being questioned. Yet, if they have impeccable professional reputations and generally the ability to decide based on their own judgment, these delegitimation attempts are unlikely to resonate with many others. China attempted to challenge the legitimacy of the arbitral tribunal in the South China Sea dispute, discussed in Chapter 4, but because the tribunal consisted of some of the most eminent law of the sea experts, this was unsuccessful. China therefore abandoned relying solely on questioning the independent authority and procedural legitimacy of the tribunal and is now engaging more with the substantive findings.
The ability of agents to use identity-based legitimation is thus to a certain degree fixed by their background and mandate, but agents can also shape perceptions of their expert authority through their conduct. For instance, agents can repurpose monitoring reports to criticize control attempts or lack of cooperation (Chapter 5). Reporting requirements are therefore not necessarily a way for principals to control agents,Footnote 136 but can also be a tool agents use to pressure principals into increasing their independent authority. Agents can call out a lack of cooperation from principals or third parties in their monitoring reports and identify areas in the institutional design that could be improved to increase independence (see Chapter 5). In addition, agents can try to increase their expert authority by making themselves less dependent on principals: for example, on information or funding they provide. For instance, the weapons inspectors in Iraq avoided relying on national intelligence services, to maintain perceptions of their neutrality.Footnote 137 Agents may also try to socialize principals or compliance constituencies into their preferred way of interpreting norms: for example, by offering training courses.Footnote 138 Burley and Mattli describe how the ECJ was able to increase its caseload by encouraging private practitioners and individuals to invoke Article 177 to challenge national legislation as not being compatible with community law in training courses.Footnote 139 Moreover, agents can increase perceptions of competence by making the assessment criteria and interpretive standards they use public, if they are not public by design. This transparency helps to convince the broader interpretive community of the agent’s professionalism and thus may help to mobilize compliance constituencies (see Chapter 5). Agents can take these and other steps to demonstrate or increase their expert authority. Of course, socialization efforts can come from both sides, and principals may also try to socialize agents into their preferred norm implementation.Footnote 140
Agents’ efforts to demonstrate or increase their expert authority may not equally appeal to all key audiences: Compliance constituencies may appreciate critical reports and transparency, while principals might consider these measures to contravene their interests. Agents might therefore face a dilemma: Increasing perceptions of legitimacy among compliance constituencies might lower perceptions of legitimacy among principals. Thus, agents – particularly those without permanent mandates – must either contribute to enough social pressure to prevent principals from ceasing to rely on delegation, or strike a fine balance to avoid adverse consequences relating to recontracting or tighter control in future contracts.
Output Legitimacy
As norms are shared community standards, showing legitimacy involves creating the perception that delegation is the right way to uphold these standards.Footnote 141 Honing a reputation of impartiality and expertise shapes perceptions of legitimacy. Additionally, as discussed earlier, influencing perceptions of output legitimacy is important in order to gain support from critical audiences. Output legitimacy does not require a shared identity and thus can bridge in- and out-group divisions. Demonstrating output legitimacy centers around showing that delegation presents an effective and viable solution to the problem agents were tasked with solving (e.g., managing the Iraqi threat or access to due process).
Norms are contested because they are ambiguous or contradict each other, and therefore states can reach different conclusions on how to apply them to concrete situations.Footnote 142 Thus, the clearer the findings of agents on how to apply norms, the more effectively they contribute to identifying applicable norm frames and claims. Clarity on norm frames and claims helps with mobilizing compliance constituencies and social pressure. Hans Blix’s inconsistent messaging regarding Iraq’s WMD potential and willingness to cooperate did not help to dispel doubts about the effectiveness of the inspections regime (Chapter 5), whereas the clear verdict of the SCS arbitration tribunal in favor of the Philippines’ frames and claims has mobilized international compliance constituencies and domestic ones in the Philippines (Chapter 4).
Perceptions of how effectively the agent’s implementation or interpretation has helped to solve a shared problem, or how likely it will be to do so, also affect the sustainability of norm interpretations.Footnote 143 Russia and China portrayed the implementing actions of the NATO-led coalition that enforced the UNSC’s claim agreement on a no-fly zone over Libya (discussed in Chapter 4) as overreach of the mandate that was ineffective in bringing about lasting peace.Footnote 144 This argument resonated with Russia’s and China’s in-group and prevented a similar claim agreement on how to respond to the mass atrocities committed in Syria. As shown in Chapter 4, Filipino presidents had changing views on how effective the arbitral tribunal’s findings would be in eliciting compliance from China, and this affected how much they used it to pressure China.
Perceptions of effectiveness can be influenced by the agent, but they are also to a certain extent fixed by the problem structure. When the situation is such that agents are unable to provide conclusive evidence of effective norm interpretation, compliance constituencies and dispute parties have difficulties assessing whether the agent’s work makes a valuable contribution to solving the norm dispute. The more incomplete the information and the more uncertainty they face, the more actors fall back on prior beliefs. Historical, sociological, and bounded rationality approaches all conclude that there is a strong bias toward existing beliefs, principles, and institutions because they involve less risk and have been continuously enforced.Footnote 145 Thus, when the uncertainty involved in assessing the agent’s work is high, it is unlikely that (some) principals – and other relevant audiences – will abandon their initial assessment and accept the agent’s findings. The frame justifies the claim by connecting the grounds – that is, factual evidence – to it. Hence, if there is high uncertainty about the grounds, frame or claim disagreements are unlikely to disappear. Krook and True, for example, show that global gender equality norms are more likely to be legalized and implemented when they are easily measurable.Footnote 146 The ease with which effectiveness can be corroborated thus affects the ability of agents to influence principals’ perceptions of the value of their work.
Identity-based legitimacy and output legitimacy are connected. For instance, the NATO-led coalition was not independent, but the Western members of the UNSC (collective principal) played a leading role. This dependence facilitated attributing blame to the other members of the collective principal for the ineffective implementation. In addition, when dispute parties fail to reach consensus despite the best efforts of a competent agent, this can signal to undecided audiences that they now need to endorse a specific norm interpretation to effectively tackle the problem at hand. The failed attempt of the Troika – widely perceived as impartial – to settle the status question, convinced many European countries that all other options than Kosovo’s independence had been considered but were not feasible.Footnote 147
To summarize, delegation of norm interpretation to solve, or at least manage, disagreement puts the agent’s work at the center of the dispute. Dispute parties must decide how to react to the delegation and to the agent’s findings. As visible, hard contractual controls erode agent competence, we see rhetorical and legitimacy politics surrounding the agent’s work and interpretations. This book contributes a fine-grained study of these rhetorical and legitimacy politics and shows that the reactions of compliance constituencies and their influence on dispute parties, as well as the agent’s ability to legitimate its work based on its output and identity, affect whether agents contribute to the resolution or management of norm contestation. Importantly, this book finds that the potential for legitimation is to a certain extent fixed, for example influenced by the agent’s mandate and the availability of conclusive evidence, but is also constructed. These findings refine existing theories on delegation, such as theories on trustees and the CC trade-off. Chapter 5 makes an additional theoretical contribution by showing that “indirect costs” of delegation can create tensions in the principal–agent relationship.
3. Conclusion
This chapter has discussed factors that are extrinsic to norm interpretations and that influence whether actors can propose or continue to propose their preferred norm interpretation. In Chapter 1, rhetorical approaches helped us to identify the main elements of norms – norm frames and behavioral claims – and to show that frame agreement is an internal source of stability for norm interpretations. Rhetorical approaches also structured the analysis in this chapter: Three classical elements of rhetoric – speakers, audience reactions, and argumentation – guided the analysis of extrinsic sources of stability for norm interpretations.
When identifying speakers whose interpretations are influential, institutional power is a particularly important indicator as it gives actors the authority to decide norm interpretations. In security affairs, which are the focus of this book, the states with the most institutional power are the five permanent UNSC members. States sometimes delegate institutional power to agents in the hope of resolving norm disputes, or at least of making a disagreement more manageable. When agents are involved, the dynamic of the dispute changes: It now centers on perceptions of agent competence. The agent’s identity, output legitimacy, as well as the reactions of important audiences, or compliance constituencies, influence perceptions of agent competence.
The three elements of rhetoric are closely linked and influence each other: For example, identity can affect what audiences and arguments speakers consider particularly important. IR scholars who use rhetorical approaches tend to limit the analysis to debates within in-groups, or states with a similar identity. This identification is considered a prerequisite for the argument that community members can mobilize shared standards of legitimacy to entrap even (more) materially powerful states and to achieve norm clarification after disagreement. This chapter showed that a wider analysis of audience reactions than scholars usually engage in enables us to explain differences in the duration of norm contestation. As identification with the same reference group lends weight to the norm interpretations of in-group members, the reactions of some audiences are more important than those of others: States need the support of other states with a similar identity (in-group), or at least the absence of clear in-group criticism, to sustain their contestation of frames and/or claims. Because of the many social and material ties in-group members share, the cost of in-group disagreement otherwise becomes too high. For similar reasons, support from domestic audiences for a particular interpretation can compensate for international dissent. Shared values, history, or membership in an IO with selective membership criteria are indicators of in-groups, and which in-groups matter most is somewhat context-dependent: for example, on the location and the topic of debate. Because of the importance of in-group support, we would expect proponents of norm interpretations to prioritize gaining approval for their norm interpretations from in-group members. Lack of in-group approval does not always pave the way for norm clarification and for actors to abandon controversial norm interpretations. Low-intensity dissent from in-groups and out-groups, as well as domestic support, can then contribute to the social sustainability of such contested norm interpretations.
Scholars disagree regarding whether material power or arguments that legitimate interpretations are more important in order to gain the support of important audiences for a norm interpretation. This book shows that even materially powerful states need to gain widespread support for their norm interpretations if they seek to change norms, or at least sufficient social support to keep the social and material costs of proposing contested norm interpretations down. They can do so by discursively constructing the perception that their norm interpretation is right, or showing legitimacy. Scholars differ on what type of legitimation is most relevant: Some emphasize the persuasiveness of sound legal interpretations, whereas others argue that prior commitments or fair procedures lend legitimacy to norm frames and claims. I show that identity-based legitimation and output legitimacy are particularly important. How states contest norms affects their legitimation strategy: Appeals to output legitimacy matter when states openly contest norms because such appeals to the necessity and effectiveness of a norm interpretation are most likely to overcome in-group/out-group divisions, whereas references to their identity, and thus trustworthiness, are more prevalent when states try to hide covert exceptionalism. In addition, dispute parties often draw analogies with past applications and use the language of the law, particularly within IOs where international law is often applied and developed further. This indicates that dispute parties consider appearing to follow socially sanctioned legal criteria an important backing and that prior applications influence collective expectations.
As mentioned, when states delegate the management of norm contestation to agents, both output legitimacy and identity-based legitimation also play a role. For instance, the more information there is that suggests that the agent’s norm interpretation or implementation is effective and credible, the more likely it is that delegation will help to manage disputes. Importantly, the potential for legitimation is to a certain extent fixed, for example influenced by the agent’s mandate and the availability of conclusive evidence, but is also constructed.
In sum, who proposes norm interpretations, how important audiences react, and what kind of legitimation is used can affect the duration of norm contestation. This has implications for norm strength, defined as the extent of collective expectations related to applying a norm of international law in a certain way. Chapter 1 showed that the “alternate endings” typology gives an overview of how (dis)agreements over norm application affect precision, and that changes in the precision or social strength of norms are relative to prior episodes of contestation. Speakers, audience reactions, and argumentation affect the extent of collective expectations surrounding norm application. For instance, actors may receive widespread support for a norm interpretation because they have successfully shown its output legitimacy, leading to norm clarification and greater norm strength. If there is widespread criticism, particularly from in-group members, the lack of social support may lead the proponent to abandon the norm interpretation, and therefore also result in norm clarification. In-group/out-group divisions, on the other hand, may stabilize disagreements and lead to protracted norm impasses because the support of their respective in-groups renders each interpretation socially sustainable. When following frame agreement, agents are tasked with managing or resolving claim disagreements, and perceptions of their work affect the stability of norm recognition, and thus norm strength. In short, the characteristics of speakers, their ability to legitimate their interpretations vis-à-vis important audiences, and the (lack of) support of these audiences for norm frames and claims affect the persistence of alternate endings, and thus norm strength. The subsequent empirical chapters of this book therefore analyze how argumentation, audience reactions, and delegation to agents influenced the persistence of norm impasses (Chapter 3), norm neglect (Chapter 4), and norm recognition (Chapter 5) in particular cases, as well as what led to norm clarification (Chapter 6).
