Norms in World Politics: Contested Norms Lecture 2

1. Norms in World Politics:Contested NormsLecture 2 International Summer Institute on Diversity and Democracy, Guadalajara, Mexico, June 3-29, 2007 Antje Wiener Professor of Politics & International RelationsDepartment of European Studies & Modern Languages University of Bath Email: a.wiener@bath.ac.uk 

2. Today�s Lecture 1 Norms Beyond the State 2 Politics 3 Law 4 Case 5 Questions

3. Focus: Work with the dual quality of norms Approach: critical constructivist 1 Norms in a Beyond-the-State Context

4. To understand the impact of the dual quality of norms i.e. as structuring and socially constructed in beyond-the-state politics.  Goal of this perspective on norms:

5. Approach Critical Constructivist Normative Reflexive Relational (e.g. Tully, Taylor, Habermas, Giddens, Tilly) Leading Question: Given that meanings differ according to context, how can diversity be accommodated in a democratic international system?

6. Normative Structure Observations Dual Quality of Norms i.e. norms are constructed and structuring The Rule lies in the Practice i.e. �contested compliance� changes normative substance Experience forms Expectation Wiener (2004)

7. A Contested World Order Blair: We need new global rules Bush: We need fewer global rules

8. The Debate in IR/IL Slaughter: Instrumentalisation Thesis New institutions form new opportunities for political intervention central actor: politics i.e. UN Reform, focus: human rights change of sovereignty, non-intervention; theoretical perspective: new liberal theory of international law; institutionalist approach Fischer-Lescano/Teubner: Global Constitution Thesis Constitutionalisation of world politics; central actor: the courts focus: human rights; theoretical perspective: system theory

9. Changing Political Arenas

10. Types of Norms

11. Legal Texts & Social Institutions Modern Nation-States shared social environment Legal Norms Are interpreted with reference to Social Institutions ? Basis of Legitimacy: Social Recognition Appropriateness Beyond the State lack of shared social environment Legal norms Are interpreted with reference to Individual Experience ? Basis of Legitimacy: Contestedness Conflict

12. Enhanced Contestation

13. 2 International Politics

14. Politics Traditionally speaking �politics is about authority and government.� (Brown and Ainley 2005, 4) Where does this leave world politics? Where does authority lie and what could be considered as �government� in world politics? Which are the rules and why follow them?

15. Governance and Order �Governance is a system of rule which works only if it is accepted by the majority (or at least by the most powerful of those it affects).� (Rosenau 1992, 4; emphasis added AW)

16. Governance without Government? �If governance connotes a system of rule, and if it is not sustained by an organized government, who makes and implements the rules?� (Rosenau 1992, 1)

17. Anarchy The relationship between states is structured by anarchy. That is, world politics is conducted in the absence of a formal system of government.

18. International Relations The three movers in IR Theory: the concept of state the principle of sovereignty and struggles over territory (Biersteker 2005, 157)

19. Treaty of Westphalia: 1648 Historically: beginning of Westphalian state system Politically: state sovereignty was established, i.e. acceptance of non-interference with internal state matters Theoretically: development of new concepts, such as territoriality, sovereignty, independence

20. The Sovereign State �A state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.� (Max Weber, 1946: 78) Consider however: Greek city-states non-state polities like the European Union

21. Sovereignty � A Universal Principle and a Fundamental Norm in World Politics Article 2, UN Charter stipulates �sovereign organisation� as follows that international affairs are based on �the principle of sovereign equality,� prohibiting �the threat or use of force against the territorial integrity or political independence of any state,� and forbidding UN intervention �in matters which are essentially within the domestic jurisdiction of any state.� (Mansbach 2000: 71) UN Charta, Ch 1 �Purposes and Principles� Article 2 http://www.un.org/aboutun/charter/chapter1.htm

22. Sovereignty � A Social Construction �A political entity�s externally recognized right to exercise final authority over its affairs.� (Biersteker and Weber 1996, 2; emphasis added AW)

23. Sovereignty - Qualified �limited sovereignty� (International Protectorates, e.g. Kosovo) In talks on Kosovo's future the special UN envoy, Martti Ahtisaari, proposed offering the Serbian province and its ethnic-Albanian majority �limited sovereignty�. He recommended forming "the newest state in the Balkans ... with limited sovereignty, a continued international presence and competencies in important fields.� PRISTINA, Serbia, Oct 30, 2006 (AFP)

24. Sovereignty - Qualified �pooled sovereignty� (EU) 1963: Van Gend en Loos Case �a new legal order of international law for the benefit of which the states have limited their sovereign rights�

25. Pooled Sovereignty

26. World Politics International State System Main actors States Interaction Interest-oriented Diplomatic Strategic Focus on: Principles & Power Sovereignty Anarchy Self-help Issues War Peace Conflict Cooperation World Society Main actors States Interaction Rule-oriented Cooperation Cross-border transaction Focus on: Order & Justice Institutions Norms, rules Routinised practices Issues Communication Transport systems Financial systems Development

27. 3 International Law

28. Sources of International Law Article 38(1) Statute of the ICJ: �The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: International conventions [�] establishing rules expressly recognized by the contesting states; International custom, as evidence of a general practice accepted as law The general principles of law recognized by civilized nations, .. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.� Akehurst 1993, Ch 3, 23 [emphasis added AW]

29. Article 38(1)(a) -- Treaties "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;" Reservations to Treaties Thomas Buergenthal, Judge at the International Court of Justice, speaks about reservations to treaties. If you wish to see the whole interview with Thomas Buergenthal, click here .

30. Treaties �The word �convention� means a treaty, and that is the only meaning which the word possesses in international law, and in international relations, generally.� (Akehurst 1993, 24) Bilateral Multilateral

31. Article 38(1)(b) -- Custom "international custom, as evidence of a general practice accepted as law;" Local Custom and the Passage over India Case On location, your host, Jean Allain, discusses the notion of a local or bilateral custom and how it manifested itself in the Passage over Indian Territory case. �

32. Custom Evidence actual practice of states e.g. published materials (newspapers, international lawyers) NOTE: If most states approve, customary law is valid � as long as a state does not specifically protest against the law. Opino iuris �a conviction felt by states that a certain form of conduct is permitted by international law (Akehurst 1993, 29; emphasis in original)

33. General Principles of Law Method of using existing sources Extension of rules by analogy Inference of rules by means of inductive reasoning (from the specific towards the general) Different Roles of Judges Anglo-Saxon: develop law Continental: apply the law

34. Judicial Decisions International law is not necessarily binding but for the signatory parties. Yet, judges can also create law. Discuss the role of the ICJ. Link: http://www.icj-cij.org/

35. Hierarchy of the Sources Ius Cogens (peremptory norms) human rights, democracy, the rule of law, non-intervention Basic principles of international law which are considered to be universally valid i.e. law that is �accepted and recognized [as such] by the international community of states as a whole.� (Akehurst 1993, 41; emphasis added)

36. 4 Case: New Transnational Non-State Actor Practices 

37. Non-State Actors Lobbying governments and other actors in order to gain policy change or norm transformation Status consultative status with various UN organisations representative and non-profit making bodies New Independent non-state actors: interaction between actors of different nationalities, rather than lobbying governments

38. Abstention from Torture Collaboration between Law and Politics? Composite Agency private individuals and groups constitutional law prosecution across national borders politics across national borders

39. http://www.ccr-ny.org/v2/home.asp

40. International Criminal Law Center for Constitutional Rights (NY) http://www.ccr-ny.org/v2/home.asp Criminal Indictment against Donald Rumsfeld, George Tenet, Ricardo Sanchez and eight other named individuals Charges: against US Military & US Government Brought by US-American NGO through a German Lawyer, before German Constitutional Court

41. Three Types of Actors Tuesday November 30, 2004 (1) an individual human rights lawyer Wolfgang Kaleck, Berlin, filed a criminal complaint with the German Federal Prosecutor�s Office at the Karlsruhe Court, Germany, on behalf of (2) a New York based NGO Center for Constitutional Rights in the USA and (3) four Iraqi citizens regarding 44 cases of abuse including one death against Group of US American Government and Military Officials i.e. Donald Rumsfeld and others.

42. Charges Against American Citizens War crimes against people �� 8, 4, 13 and 14, Criminal Code of Crimes Against International Law (CCAIL), and Grievous bodily harm �� 223, 224 Penal Code (StGB) in connection with �� 1 CCAIL, 6 No 9 Penal Code (StGB) and the UN Convention on Torture

43. Three Contexts Iraq, US, Germany Objective: to hold high-ranking U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, Under the doctrine of universal jurisdiction: suspected war criminals may be prosecuted irrespective of where they are located.

44. Follow-up The criminal complaint was not taken up. In a decision of February 10, 2005, the Prosecutor General at the Federal Supreme Court declined to prosecute under Sec. 153f of the StPO (Criminal Procedure Code). A petition for a court decision that was subsequently lodged was declared inadmissible by the Stuttgart State Supreme Court on September 13, 2005.

45. Justification The lodging of a complaint in Germany is justified by the fact that no prosecution of the accused is occurring in the United States of America for the incidents in Iraq and Guantanamo Bay ...; in the USA, because of a strict understanding of separation of powers, it is not structurally possible to urge prosecuting authorities to initiate investigations. There is no such thing as a proceeding to force criminal prosecution in the United States of America. Prosecution by the International Criminal Court is not possible, since the USA effectively withdrew its signature to the Rome Statute and has ruled out ratification.

46. Practicality? Successful investigation could be accomplished in Germany. According to the complainants, one could gain custody of the defendants through a European arrest warrant, or at least on the basis of the European Extradition Treaty of December 13, 1957, even if they are not present in Germany. Witnesses are available, in the persons of Janis Karpinski, David DeBatto, and additional participants in the Iraq war, who are willing to testify to the German authorities regarding the incidents listed. It is argued that Germany must therefore undertake prosecution, as a representative of the international community, to prevent the charged acts from going unpunished.

47. 4 Questions

48. 1) Is the complaint against Rumsfeld et al. to be taken seriously? Explore the legal and the political point of view: What is special about this case? Political background (types of actors involved) Legal background (legal principles, statutes, treaties etc) Group A: Pro Group B: Con

49. 2) Which Community does International Law Refer to? Does international law refer to one or several communities? Discuss with reference to different periods in World Politics.

50. 3) Which International Law? Three Positions in the Literature Network Governance (Slaughter) Constitutionalisation (Fischer-Lescano, Teubner) Democratisation (Jackson, Cohen) How do these approaches value international law? Distinguish and discuss

51. 4) Future of International Law? Will international politics be based on a) a Hobbesian / Westphalian state system (i.e. following Bush�s return to realism after 9/11), or b) a Kantian republic based on common values (i.e. following the transnational non-state actors in the Rumsfeld complaint)? c) a multiversal democracy based on recognition, access to participation and respect for diversity