Abstract and Keywords
This concluding chapter synthesizes the findings from the case studies to substantiate the claim that argumentation influences international politics through a diffuse discursive process. It elaborates on the convergence between legal argumentation and deliberative politics. It recaps the thesis that the discursive process can only be understood by considering the role of interpretive communities, whose power comes from the reputational costs they can extract, while also setting the parameters for constructive dialogue about incremental extensions of existing legal regimes. The judgment and dialogue occurs in many settings, but it is most concentrated in international organizations (IOs). A theme highlighted in the chapter is that the operational and discursive practices of IOs are a new source of international law.
legal argumentation and deliberative politics influence world politics through a diffuse but consequential discursive process. To understand how and why, this book has focused on legal discourse as a distinctly powerful form of argumentation. I argued that the discourse occurs within and is constrained by interpretive communities, which tend to coalesce around international organizations (IOs). The power of interpretive communities depends on their ability to render cohesive judgment. This cannot be measured precisely of course, but decision-makers are conscious of the reputational costs that interpretive communities can extract. I have also argued that the legitimacy of IOs depends in part on the quality of deliberations in and around them and, by extension, on the legitimacy of interpretive communities.
In this conclusion, I synthesize the principal findings from the various cases discussed in earlier chapters and elaborate on their theoretical and policy implications. The policy implications include institutional reform. I do not offer specific reform proposals, which would need to be reconciled with or balanced against considerations other than deliberation, such as the need to keep great powers engaged in international institutions and the need for efficient decision making. However, my focus on deliberation does suggest an agenda for politically achievable reform of institutions that would enhance both their legitimacy and effectiveness.
(p. 204 ) A. Arguments Matter
The fact that argumentation occurs at all in world politics is circumstantial evidence that it serves a purpose. There is nothing compelling states to “argue,” that is, to engage in the exchange of impartial reasons for acting or not acting. Neither the structure of the international system nor the procedural rules of any organization require it; government representatives can opt to remain silent, cast votes without explanation, or stomp their shoes on the table—there is no obligation to deliberate. Yet arguing is ubiquitous.
Why states argue—what purpose it serves—is a difficult question. The motive could be a genuine desire to persuade others of the rightness or wisdom of a position, perhaps even to be persuaded otherwise. But an important finding is that sincerity is not a precondition for meaningful discourse. Arguments may be deployed strategically, to rationalize positions in order to gain international and domestic support, regardless of whether the speaker genuinely hopes to persuade or the listener is open to persuasion. The United States sought to make the best legal case it could for war in Iraq in 2003 not because the Bush Administration believed in the importance of international law or the SC (some officials saw both as inimical to U.S. interests), but because potential allies would find it easier to support the United States. The allies may not have believed in the wisdom of going to war with Iraq, but they had an interest in preserving good relations with the United States. It would have been easier to persuade their own constituencies to back the United States if the legal basis for military action had been sounder (“this is not to serve U.S. interests but to enforce SC resolutions”). Conversely, the weak legal case made it easier for allies who had doubts about the wisdom of the policy to deny support to the United States. (“I wish we could help but I can’t sign on to a war that my public sees as illegal.”)
In addition to strategic reasons for arguing (the logic of consequences), there are constructivist reasons (the logic of appropriateness). Justificatory discourse can lead to the creation of new norms, shore up fragile norms, or undermine norms that one finds unappealing. The discourse around the responsibility to protect (R2P) is a case in point. The ICISS, UN Secretary-General, and other “norm entrepreneurs” originally sought to create a new norm, building on a body of existing human rights and humanitarian law. When challenges to the norm mounted, the discourse shifted to saving it from irrelevance. The disputation occurred in thematic debates, such as the World Summit, and in connection with particular crises, like Darfur and Myanmar. As striking as the substance of the debates, which have been inconclusive, is the extent to which they are being taken seriously by all concerned. The United States would not have worked hard to craft language at the World Summit that precluded any inference of a positive duty to act if it did not think the words of summit declarations were relevant. The NAM would not be pushing for a broad, noncoercive conception of R2P, if it was not worried about reviving the doctrine of unilateral humanitarian intervention. Influential supporters of R2P would not (p. 205 ) have engaged in a public debate over whether it applied to Myanmar’s response to Cyclone Nargis if words did not matter.
B. Legal Arguments are Distinctly Powerful
Legal discourse is a powerful form of argumentation, not because the style of reasoning is distinctive, but because it is based on shared norms. International legal interpretation is, at its core, a search for inter-subjective meaning: what the relevant legal norms mean to the parties collectively as opposed to each individually or in the abstract. In a consent-based legal system, the principles and values embodied in the law are, by definition, shared by the subjects of the law. Thus, debate about the legality of the doctrine of preemption after the terrorist attacks of September 11, 2001 was within the framework of broadly shared understandings about the law of self-defense. The meaning and application of the law was up for discussion, but few of the participants in the debate claimed Article 51 of the UN Charter and associated elements like “imminence” were irrelevant.
This highlights the validity of Risse’s notion of “argumentative self-entrapment.” Once a state (a speaker) has committed to a norm, it feels compelled to justify its actions on the basis of that norm. The state can revoke its commitment to the norm (North Korea withdrew from the Nuclear Non-Proliferation Treaty), but that happens rarely and never casually. Hard law is especially “sticky” in this way because the discourse about compliance with it tends to be more demanding than for soft law. It is easier for a critic to say, “this is the law, these are the facts, your behavior is a manifest violation,” and harder for the defendant to reply, “we read the law differently, it does not apply to this situation,” or “it leaves room for exceptions.” Legal discourse is a way of holding states accountable to the commitments they have made. Incremental changes in the law can occur through the discursive interaction, as was the case with Afghanistan, but even the most powerful states cannot unilaterally rewrite the law by dint of creative reinterpretation, as the fate of the doctrine of preemption demonstrates.
Finally, it is important not to be too quick to dismiss the significance of quibbles over “legal technicalities.” While the challenges of nuclear non-proliferation do not boil down to winning arguments over the interpretation of precise articles in the NPT, those quibbles affect the context in which the political dynamics play out. Whether the DPRK is still a member of the NPT, what Iran’s “inalienable right” to develop peaceful nuclear energy means, whether assistance to India’s civilian nuclear program sets a precedent for Pakistan—these are elements of the diplomacy and political debates. They are especially important when it comes to the SC’s management and signaling as opposed to enforcement functions. The SC, led by the P5, is operating within a non-proliferation regime that is affected by the fine print of the NPT. How the P5 operate, in turn, has an effect on the integrity of that regime. While the non-proliferation policies of the Obama (p. 206 ) Administration are not all that different from those of the Bush Administration, the attitude toward international law and institutions is.
C. International Legal Discourse and Political Deliberation are Not Categorically Different
Though legal argumentation has its own structure, it is not categorically different from the sort of deliberation one hears in well-functioning legislatures. Both entail principled exchange on the basis of impartial values and reasons that all stakeholders understand as valid. Both presuppose that material power (the power to coerce) does not completely negate the power of the better argument. Material power counts for a great deal, but in engaging in deliberation and argumentation, one must assume it does not count for everything.1 The “ideal speech situation” does not exist in the real world; it is a counterfactual presupposition that helps to make sense of the act of arguing.2 If we assume the power to coerce always wins, then there would be no point in arguing, indeed not much point in trying to communicate at all. A courtroom looks more conducive to arguing than a legislature or intergovernmental negotiating forum, but the difference is one of degree, not kind. The “better argument” may get a better hearing in judicial tribunals than intergovernmental assemblies, but neither is ideal in the Habermasian sense, nor is either completely dominated by hegemonic voices. The WTO dispute settlement panels and Appellate Body are not pristine venues where the logic of arguing and principles of justice always prevail. Conversely, the UN Security Council is not a place where the great powers always get their way, as the compromises on the sanctions and counter-terrorism regimes embodied in resolutions 1267and 1373 indicate.
D. International Organizations are Nascent Public Spheres
IOs are places where discursive interaction between states tends to be most intense. They operate on the basis of norms embodied in their constitutive acts and subsidiary instruments: states feel impelled to justify their actions on the basis of those norms, and other states tend to criticize those actions on the same grounds. Government representatives are the principals in this discursive interaction, but they are not the only players. To the extent that IOs are places where multiple actors are able to participate in the deliberations and that are open to public scrutiny, they are nascent public spheres. Habermas uses the term “public sphere” to mean sites for deliberation that are separate from political institutions. I use it differently, to mean places where policy makers engage with a wide range of stakeholders: governmental agents who are not at the table, secretariat officials, (p. 207 ) parliamentarians, experts, transnational business, nongovernmental actors, and other voices of global civil society.3 The UN Security Council is not an arena for inclusive exchange with all those affected by its decisions, but the description of it in Chapter 4 as a four-tier deliberative setting gives a sense of what this more modest conception of “public sphere” means.
The form and degree of engagement varies across organizations. The power of the executive head of IOs and secretariat staff is one area of variance. The constitutive acts of international organizations tend not to be precise about the degree of autonomy the secretariat has, leaving it open to interpretation. The Article 97–99 powers of the UN Secretary-General have been interpreted broadly, giving the office considerable margin for maneuver either independently or in carrying out mandated tasks. Chapter 4 described the role of the Secretary-General as norm entrepreneur with respect to R2P. Chapters 7 and 8 considered the “discursive power” of IO officials in operational activities. The impact of the OSCE High Commissioner for National Minorities on minority rights in Eastern and Central Europe, discussed in Chapter 8, is a good example.
As for nongovernmental actors, direct participation is not practical in most intergovernmental organizations (although there are exceptions, like the International Labour Organization). The question is whether the right balance between efficient decision making and deliberative inclusiveness has been struck in the functional areas where each IO operates. Channels for participation are not always formal and need not be. The UN Security Council will not give NGOs a seat at the table nor will the WTO. That does not mean that civil society is not heard in and around them. The negotiations on SC resolution 1540, aimed at preventing weapons of mass destruction from falling into the hands of non-state actors, were formally closed but “intentionally porous,” giving experts and NGOs a chance to weigh in on what was a deeply contested act by the SC. This is precisely what the concept of a public sphere means—not an institutionalized public debate with rules of procedure and points of order, but a more free-wheeling exchange where voices other than those sitting at the table find a way of making themselves heard. Those at the table ultimately decide, but what they decide and how effective their decisions are is determined in part by the inclusiveness of the deliberations that led to them.
E. Interpretive Communities are Not Closed Technocracies
Interpretive communities set the parameters of debate, in effect judging what counts as a good argument. They frame the inter-subjective search for meaning and extract reputational costs from those who deviate too far from the conventions of the enterprise. Moreover, socialization to and internalization of norms occurs through this discursive (p. 208 ) interaction.4 Because interpretive communities occupy the halls of governmental, intergovernmental, and nongovernmental institutions, they cause norms to harden and become embedded in those institutions.
If interpretive communities are influential, then who they are matters. As noted in the introduction and Chapter 3, the concept is a way of describing how authoritative interpretations of the law are rendered, not a listing of card-carrying members of a club. But in some of the cases discussed in this book, actual individuals were identified, for example, those involved in the debates over Cyclone Nargis and the drone strikes in Pakistan. Who is recognized as a credible voice turns in part on expertise, based on immersion in the relevant area of law and practice. Indeed, the power of interpretive communities depends on that. An interpretive community extracts costs and confers benefits precisely because its collective judgment (to the extent that the judgment is cohesive) is regarded as a credible interpretation of the law.
A central question, to which there is no simple answer, is whether reliance on expertise legitimizes or delegitimizes decision making. Complex health and environmental issues benefit from expertise; we would not want those decisions to be made by popular vote.5 Nor would we want judgments about the legality of state behavior to be made by popular vote. The problem is that self-selected experts have ways of defining what constitutes true mastery of a discipline and thereby shutting out dissenting voices. This study has found that this phenomenon, though real, should not be exaggerated. Technocracy—rule by experts—is probably impossible at the transnational level. There are too many channels of influence; the system of global governance is too pluralistic, too cacophonous to seal off decision making in this way. The story of trade and environment at the WTO illustrates the point. If the interpretive community associated with trade law was ever an insular, impermeable trade elite, that is no longer the case. Whether they are a third circle of the interpretive community or outsiders looking in, other stakeholders have penetrated the discursive interaction.
A final point about interpretive communities that emerges from the cases is that they encompass international tribunals. This may seem odd if interpretive communities are conceived as the functional equivalent of judicial bodies when the latter are not available to render authoritative judgment. Yet the Kadi case on the sanctioning of individuals associated with Al Qaeda and the Taliban demonstrates that the relationship between (p. 209 ) courts and IOs can be “dialogic.” The ECJ did not strike down resolution 1267, but it did send a strong signal that the SC ought to reform its procedures (like the signal the ICJ sent in the Lockerbie case). The SC responded to the signal (and similar signals from other courts and quasi-judicial bodies), indirectly, by making some of the procedural reforms that the ECJ judgment implied were necessary. The ICJ and ECJ are not the guardians of international law against this powerful political body but rather influential voices in the interpretive community that surrounds the SC.
F. The Practices of International Organizations are a Source of Law
It is no surprise that norms affect the programmatic activities of IOs. Choices about how the IAEA should engage with the government of Iran, and peacekeepers with the government of Sudan are deeply influenced by non-proliferation and peacekeeping norms respectively. What is less apparent is how the practices of IOs—and the argumentation that surrounds those practices—impacts the norms. Operational activities of IOs are implicit interpretations of the law. In engaging in those activities, the IO may cause the law to harden or to soften. The discretion exercised by the SG and his subordinates in carrying out electoral assistance and peacekeeping tasks has reinforced democracy norms; debates over when, how, or even whether to protect civilians may be causing humanitarian principles to soften.
The law-hardening process depends on the acquiescence of states and so is analogous to customary law formation. But because the initiative often comes from the secretariats of IOs and because state consent is often several steps removed from the actual practice (for example, the sanctioning of electoral assistance by the assemblies of various international organizations), the theoretical implications are important. It is evidence of the proposition that IOs are independent actors, not just collections of member states.6 It is also evidence that the practices of IOs can be a source of law. The entrepreneurship of the Representative of the Secretary-General on Human Rights for Internally Displaced Persons is leading to a hardening of some of the Guiding Principles on Internal Displacement. Moreover, to the extent that IO officials are interacting with nongovernmental experts and advocacy groups as well as state representatives—as is the case with the Guiding Principles—it indicates a more pluralistic and fluid form of lawmaking than treaties or customary law.
G. The Logic of Arguing is an Accountability Mechanism
Accountability is a problem for global governance. A fundamental principle of democratic societies is that decision makers ought to be accountable for decisions they make. (p. 210 ) That means being held to a set of standards and paying a price when those standards are not met.7 In electoral democracies, politicians are held accountable to the citizenry through periodic elections and, on occasion, judicial processes. At the international level, it is less clear to whom decision makers are accountable and what the mechanisms for holding them accountable are.8
The logic of arguing sheds some light. “Reason-giving” is a form of accountability, as any student of administrative law knows. The requirement to explain one’s decisions to those affected impels (though does not compel) decision makers to act on the basis of good reasons. Not surprisingly, one of the main criticisms of the 1267 sanctions regime was the lack of information provided to substantiate the case for listing an individual and the lack of reasons for not delisting. Demands for “independent review” are driven by a similar logic. It is doubtful that SC members will ever accept binding review of their decisions by another body. But even nonbinding independent review can enhance accountability, as the dialogic form of review by the ECJ in Kadi demonstrates. The new Ombudsperson established to help the work of the 1267 Committee does not have the authority to delist individuals, but the compilation of data and other functions the office performs could result in implicit recommendations to that effect. The member states will decide, but a respected independent agent providing the information and analysis on which to base their decision, makes it harder for the Committee to act arbitrarily. The situation is not unlike the role of the IAEA, UNSCOM, and UNMOVIC in Iraq. The SC retained the authority to decide whether sanctions should be lifted, or stronger action should be taken, but independent assessments of Iraq’s WMD programs by these agencies were the foundation for Council deliberations. That those assessments proved to be relatively accurate suggests that, to avoid another Iraq debacle, they ought to be taken seriously.
Reputation is an important part of this. States, and by extension the organizations through which they operate, have an interest in preserving a reputation for playing by the rules.9 It is one of the ways states hold each other to account in their direct dealings. It is (p. 211 ) also what drives the felt need to engage in public justification. A point that is often underestimated in considering the impact of reputation on behavior is the “audience effect.” Scrutiny of these justifications by an interpretive community (and broader audience of stakeholders) combined with the “civilizing force of hypocrisy” is a form of accountability. It is an indirect way of pressuring decision makers to practice what they preach. The pressure may bump up against other considerations, such as the felt need to act forcefully in a national security crisis regardless of how the justification is received. Those other considerations may be overriding, especially for powerful countries. Moreover, the price for failing in the exercise of public justification will usually be paid after the fact, but that is true of most accountability mechanisms, including elections. It is the anticipation of negative judgment and its associated costs that causes decision makers to think twice before embarking on a course of action that cannot be justified to attentive audiences. In ratcheting up the policy of drone strikes in Pakistan, the Obama Administration must have considered whether the strikes could be justified as a matter of law. It might well have gone ahead regardless, but the risk of being accused of targeted assassinations and extrajudicial killings was surely a factor in weighing the costs and benefits of the policy.
H. Bringing Down the Deliberative Deficit
The effectiveness of IOs depends in part on their perceived legitimacy. Legitimacy can be measured in various ways. “Input” legitimacy looks at the nature of the decision-making process; “output” legitimacy looks at the results of that process. Legality is an element of legitimacy, as is functional expertise. Increasingly, democracy is the principal measure of the legitimacy of national governments and supranational organizations.
Argumentation and disputation are not inherently democratic, deliberation is. Some disputes can be settled behind closed doors, with limited participation or public scrutiny. Indeed, this is often necessary. The SC would not be an effective crisis manager if all its meetings were in public, let alone open to participation by the entire UN membership and interested NGOs. But deliberation (as opposed to hard bargaining) has an irreducible democratic quality in that – at least indirectly – it must account for the interests of all stakeholders. This is not only a matter of legitimacy but also effectiveness. The quasi-legislative measures of the SC (resolutions 1373 and 1540) require the leadership of the great powers, the expertise of those who understand the flow of people and money, and the buy-in of multiple stakeholders, from the regimes in unstable countries that can serve as safe havens, to regional organizations, banks and port authorities.
Vote and voice are ways of accounting for the interests of all stakeholders, as are the mechanisms described above: reason-giving, public justification, and public scrutiny. Institutional devices like criteria for humanitarian intervention would serve the purpose. Framed as considerations to be taken into account in deciding whether intervention (p. 212 ) would be warranted in a given case, they would induce SC members to deliberate on the basis of agreed standards and give other actors a normative basis for weighing in on the debate.
Some democracy theorists claim there is no way of “democratizing” IOs—the lines of delegation are too long, and the attentiveness of ordinary citizens is too scattered.10 Other observers ask whether there really is a democratic deficit in IOs and wonder whether critics are expecting more of them than we expect of national governments.11 If democracy is understood as participatory or representative governance, both may be right. If it is understood in terms of deliberation, then reducing the democratic deficit is both necessary and possible. Because legal argumentation and political deliberation are intertwined in IOs, better deliberation in and around them is a way of “democratizing” the organizations and of enhancing the legitimacy of the international legal system.
(1) For a sophisticated study of the different types of power that impact international affairs, see Michael Barnett and Robert Duvall, “Power in Global Governance”, in Power in Global Governance 1 (M. Barnett and R. Duvall eds., 2005).
(2) Thomas Risse, “Global Governance and Communicative Action,” in Global Governance and Public Accountability 164, 172 (Held, D. and Koenig-Archibugi, M. eds., 2005).
(3) I use the term in the way that Patricia Nanz and Jens Steffeck do. See P. Nanz and J. Steffeck, “Global Governance, Participation and the Public Sphere,” in Held and Koenig-Archibugi, id., at 197.
(4) On socialization and internalization, see Ryan Goodman and Derek Jinks, “International Law and State Socialization: Conceptual, Empirical and Normative Challenges,” 54 Duke Law Journal 983 (2005); Ryan Goodman and Derek Jinks, “Incomplete Internalization and Compliance with Human Rights Law,” 19 European Journal of International Law 725 (2008). On internalization of norms through transnational legal process, see Harold Koh. “Why do Nations Obey International Law?” 106 The Yale Law Journal 2599 (1997); Harold Koh, “Bringing International Law Back Home,” 35 Houston Law Review 623 (1998).
(5) Andrew Moravcsik, “Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis,” in Held and Koenig-Archibugi eds., supra note 2, at 220.
(6) Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (2004).
(7) See Ruth Grant and Robert Keohane, “Accountability and Abuses of Power in World Politics,” 99 American Political Science Review 1 (2005); Robert Keohane and Joseph Nye, “Redefining Accountability for Global Governance,” in Governance in a Global Economy: Political Authority in Transition (M. Kahler and D. Lake eds., 2003); David Held and Mathias Koenig-Archibugi, “Introduction,” in Held and Koenig-Archibugi eds., supra note 2, at 1, 3.
(8) Grant and Keohane identify seven accountability mechanisms in world politics: hierarchical, supervisory, fiscal, legal, market, peer, and reputation. Id., Table 2 at 36.
(9) On the impact of reputation, see Andrew Guzman, How International Law Works (2008); Joel Trachtman, The Economic Structure of International Law 91–98 (2008); Rachel Brewster, “Unpacking the State’s Reputation,” 50 Harvard International Law Journal 232 (2009). On whether international organizations have reputations, see Ian Johnstone, “Do International Organizations Have Reputations?” 7 International Organizations Law Review 235 (2010).
(10) Robert Dahl, “Can International Organizations be Democratic? A Skeptic’s View,” in Ian Shapiro and Casiano Hacker-Gordon eds., Democracy’s Edges 19–36 (1999).
(11) Moravcsik, supra note 5 at 212–39.