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Studien des Leibniz-Instituts Hessische Stiftung

Friedens- und Konfliktforschung


Caroline Fehl · Dirk Peters
Simone Wisotzki · Jonas Wolff Editors

Justice
and Peace
The Role of Justice Claims
in International Cooperation
and Conflict
Studien des Leibniz-Instituts
Hessische Stiftung Friedens- und
Konfliktforschung
In der Schriftenreihe werden grundlegende Forschungsergebnisse aus dem Insti-
tut, Beiträge zum friedens- und sicherheitspolitischen Diskurs sowie Begleit-
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forschung (HSFK/PRIF), Frankfurt am Main.

The series publishes elementary research findings from the Institute, contributions
to the peace and security discourse and accompanying publications to PRIF’s
­scientific conferences. The studies are subject to an external review procedure.

The series is published by Peace Research Institute Frankfurt (PRIF/HSFK),


Frankfurt am Main.

More information about this series at http://www.springer.com/series/15640


Caroline Fehl · Dirk Peters ·
Simone Wisotzki · Jonas Wolff
Editors

Justice and Peace


The Role of Justice Claims in
International Cooperation
and Conflict
Editors
Caroline Fehl Dirk Peters
Peace Research Institute Frankfurt Peace Research Institute Frankfurt
(PRIF/HSFK) (PRIF/HSFK)
Frankfurt am Main, Germany Frankfurt am Main, Germany

Simone Wisotzki Jonas Wolff


Peace Research Institute Frankfurt Peace Research Institute Frankfurt
(PRIF/HSFK) (PRIF/HSFK)
Frankfurt am Main, Germany Frankfurt am Main, Germany

ISSN 2662-3544 ISSN 2662-3552  (electronic)


Studien des Leibniz-Instituts Hessische Stiftung Friedens- und Konfliktforschung
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Preface

In 2009, the Peace Research Institute Frankfurt (PRIF/HSFK) started what was
then its new research program. It was entitled “Just Peace Governance” and
would guide academic research at PRIF for roughly the next ten years. The
basic aim was to analyze to what extent conflicts are shaped by matters of jus-
tice and under what conditions particular forms of governance enable peaceful
management of justice-related conflicts. Between 2009 and 2017, a whole series
of research projects have been conducted as part of the “Just Peace Governance”
program, resulting in numerous publications. But, as is so often the case with
peer-reviewed journal articles, many of these papers have been published in spe-
cialized outlets that target specific academic subcommunities. The idea of this
edited volume is, therefore, to provide the reader with a broad overview of the
research and the key findings that have been produced by PRIF in the context
of the “Just Peace Governance” program. Most of the chapters in this book have
appeared in journals previously but are published here within a common frame-
work, with a view to identifying overarching results and in order to make them
accessible to a wider audience.
Research programs at PRIF really are collective affairs. It is, therefore, gener-
ally difficult and mostly irrelevant to apportion responsibilities and credits. Still,
as we are concerned here with justice, some names have to be mentioned—in
order to give the people involved their due. The idea for and the basic thrust of
the “Just Peace Governance” program came from PRIF’s long-standing director
Harald Müller, who kept on reminding us (as can be seen in his contribution to
this volume) that the focus on justice is really not merely the issue of an indi-
vidual research program but part and parcel of an incipient revolution in Inter-
national Relations, peace and conflict studies, and the social sciences at large.
During the first years of the research program, Christopher Daase and Christoph

v
vi Preface

Humrich coordinated the process of turning the general idea into an operational
research program. In later years, a small collective—which, internally, came to
be known as the Gruppe 10. Dezember—took over the job of coordinating the
implementation of the program. It is from this group that the even smaller group
of people who edited this volume emerged.
There are also many people outside PRIF who contributed to the develop-
ment and implementation of the “Just Peace Governance” program, including the
members of PRIF’s scientific advisory board as well as innumerable colleagues
around the world who commented on our work during their visits at PRIF or at
international conferences and workshops. As editors of this volume, we want
to particularly thank Tanja Brühl and David Welch, who acted as reviewers and
contributed important suggestions for this specific undertaking. Also, at PRIF,
Nadine Benedix, Cornelia Hess, Lisa Riegert and Lisa Waldheim supported us in
the production of the manuscript. At Springer, we thank Jan Treibel for support-
ing us throughout the process. For those chapters that have not previously been
published elsewhere, Matthew Harris was, as usual, important in correcting and
polishing the language. Finally, we also want to thank all the publishing houses
which so kindly gave permission for articles published in their respective journals
to be re-used for the purpose of this “Just Peace Governance” reader.

Caroline Fehl
Dirk Peters
Simone Wisotzki
Jonas Wolff
Contents

Part I  Justice and Peace Research


1 Introduction: The Role of Justice in International
Cooperation and Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Caroline Fehl, Dirk Peters, Simone Wisotzki and Jonas Wolff
2 Justice from an Interdisciplinary Perspective: The Impact
of the Revolution in Human Sciences on Peace Research
and International Relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Harald Müller

Part II  Justice in International Regimes and Organizations


3 Understanding the Puzzle of Unequal Recognition:
The Case of the Nuclear Non-Proliferation Treaty. . . . . . . . . . . . . . . 67
Caroline Fehl
4 The Role of Justice in Compliance Behavior: Germany’s
Early Membership in the Nuclear Non-Proliferation Regime. . . . . . 87
Marco Fey, Aviv Melamud and Harald Müller
5 Gender Justice in Multilateral Negotiations: The Case of
SGBV in the Rome Statute and in the ICC . . . . . . . . . . . . . . . . . . . . . 115
Simone Wisotzki
6 Institutional Justice as a Condition for the Regional
Acceptance of Global Order: The African Union
and the Protection of Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Matthias Dembinski and Dirk Peters

vii
viii Contents

Part III  Justice and Outside Interference in Societies


7 R2P Ten Years on: Unresolved Justice Conflicts
and Contestation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Gregor Peter Hofmann
8 The Normative Challenge of Interaction: Justice Conflicts
in Democracy Promotion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Annika E. Poppe and Jonas Wolff
9 Negotiating Interference: U.S. Democracy Promotion,
Bolivia, and the Tale of a Failed Agreement. . . . . . . . . . . . . . . . . . . . . 229
Jonas Wolff

Part IV  Justice in Negotiating Peace and Conflict


10 The Roadblock of Contested Recognition: Identity-Based
Justice Claims as an Obstacle to Peace Negotiations
in Afghanistan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Arvid Bell
11 Claims for Local Justice in Natural Resource Conflicts:
Lessons from Peru’s Mining Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Melanie Coni-Zimmer, Annegret Flohr and Andreas Jacobs
List of contributors

Arvid Bell,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main,


bell@hsfk.de.
Melanie Coni-Zimmer, Peace Research Institute Frankfurt (PRIF/HSFK),
Frankfurt am Main, zimmer@hsfk.de.
Matthias Dembinski,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt
am Main, dembinski@hsfk.de.
Caroline Fehl,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am
Main, fehl@hsfk.de.
Marco Fey,  Federal Foreign Office (Auswärtiges Amt), Berlin, fey@hsfk.de.
Annegret Flohr, TMG Research gGmbH—Think Tank for Sustainability,
­Berlin, Anne.flohr@tmg-thinktank.com.
Gregor Peter Hofmann, Peace Research Institute Frankfurt (PRIF/HSFK),
Frankfurt am Main, hofmann@hsfk.de.
Andreas Jacobs, Federal Ministry for Economic Cooperation and Develop-
ment (Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung,
BMZ), Bonn, Andreas.Jacobs@bmz.bund.de.
Aviv Melamud,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am
Main, melamud@hsfk.de.
Harald Müller,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am
Main, mueller@hsfk.de.

ix
x List of contributors

Dirk Peters, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am


Main, peters@hsfk.de.
Annika E. Poppe,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt
am Main, poppe@hsfk.de.
Simone Wisotzki,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt
am Main, wisotzki@hsfk.de.
Jonas Wolff, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am
Main, wolff@hsfk.de.
Part I
Justice and Peace Research
Introduction: The Role of Justice
in International Cooperation 1
and Conflict

Caroline Fehl, Dirk Peters, Simone Wisotzki and Jonas Wolff

1.1 Introduction

“Modern empirical scholars of International Relations (IR),” David Welch (2014,


p. 411) observed a few years ago, “have been curiously uninterested in the role
of justice in politics.” Indeed, since Welch’s seminal 1993 book on Justice and
the Genesis of War, only a few scholars have tried to systematically tackle the
relevance of justice for international politics in general, and peace and conflict
in particular.1 This lack of scholarship is curious for at least two reasons: first,
because of the well-documented role that the justice motive and justice-related
concerns play in the social relations of human (and non-human) animals (Müller,

1These scholars will be discussed extensively throughout this volume. We will simply
name them and their key contributions at the outset: Aggestam and Björkdahl (2013);
Albin (1999, 2001, 2009); Albin and Druckman (2014a, b); Druckman and Albin (2010);
Lebow (2008); Müller and Druckman (2014); Müller and Wunderlich (2013); Welch (1993,
2014, 2017); Zartman (1997, 1999, 2008); Zartman and Kremenyuk (2005); Zartman et al.
(1996).

C. Fehl () · D. Peters · S. Wisotzki · J. Wolff 


Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: fehl@hsfk.de
D. Peters
E-Mail: peters@hsfk.de
S. Wisotzki
E-Mail: wisotzki@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 3


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_1
4 C. Fehl et al.

this ­volume; Tyler 2012); and second, because of the ubiquity of justice-related
claims in social conflicts and political debates (Albin 2001; Sen 2009; Zartman
et al. 1996).
This book presents the results of a research program of the Peace Research
Institute Frankfurt (PRIF) that aimed at addressing this glaring research gap.2
Between 2011 and 2017, a series of research projects at PRIF set out to study the
relationship of justice and peace at various levels of analysis (from the global to
the local) and across different policy areas (from arms control to natural resource
governance). The chapters in this volume present key findings from these pro-
jects.3 The common assumption of the studies assembled in this book is that jus-
tice conflicts—which we define as situations in which justice claims made by
different actors collide—are a key feature of both international and intra-state
conflict. Hence, investigating the dynamics and consequences of justice c­ onflicts
promises important insights into the causes of conflicts and their escalation as
well as into possibilities for negotiating, regulating or resolving conflicts in a
peaceful manner. The contributions to this book show that this is indeed the case.
They do so by addressing three overall topics. The first issue concerns the ways
in which justice conflicts shape international regimes and organizations. Second,
contributions consider justice conflicts over outside interference in the internal
affairs of other states. Third, the role of justice conflicts in peace negotiations and
dialogue processes is addressed.
In this introductory chapter we summarize the state of research on which
PRIF’s research program in general and the studies assembled in this book in par-
ticular build (Sect. 1.2). Following this, we introduce key concepts that will be
used throughout the volume, including the concept of justice as well as our under-
standing of justice claims and justice conflicts, and identify the research questions
which are addressed throughout the chapters (1.3). The next section briefly sum-
marizes the individual contributions to this volume (1.4), while the concluding
section presents the overarching findings of the book (1.5).

2The research program, which was entitled “Just Peace Governance”, is outlined in Daase
and Humrich (2011). See also Baumgart-Ochse et al. (2011) and Müller (2013).
3This said, not all projects that have been conducted in the context of PRIF’s research pro-

gram are represented in this volume (for further publications, see, among others, Baum-
gart-Ochse et al. (2017); Baumgart-Ochse and Wolf (2019); Daase et al. (2015); Müller and
Wunderlich (2013)).
1 Introduction 5

1.2 The State of the Art

Aspects of global justice have been debated in various scientific disciplines. Tra-
ditionally, moral philosophy, political theory, international political theory and IR
theory concentrate on normative aspects of global justice. By contrast, empirical
justice research undertaken in social psychology, sociology or neuroeconomics
focuses on subjective justice perspectives which real-world actors adopt. For this
examination of the state of the art only a few of these ideas and debates will be
reflected upon. We concentrate primarily on those aspects of the global j­ustice
debate which are relevant for the purpose of this book. The following ­overview
thus focuses, first, on the normative concepts of political theory and here, in
particular, on different dimensions of justice (Sect. 1.2.1). Second, we briefly
­summarize the state of empirical justice research (Sect. 1.2.2).4

1.2.1 Normative Debates on Global Justice

International Political Theory (IPT) or International Ethics are relevant for the
empirical research agenda outlined in this introductory chapter, as they aim to
clarify how and to what extent justice can be realized at the level of international
politics. Is there a universal moral obligation, which derives from principles of
common humanity, to assist and support the poor? How can justice beyond a
state’s borders be achieved at the international level? How comprehensive or—to
speak in the language of global justice—“thick” does the definition of a concept
of justice have to be (Walzer 1994)?
Moral cosmopolitanism starts from individualist and universalist assumptions.
Based on Kantian rationalism, human beings are seen as equally equipped with
rationality, and therefore capable of coming to terms with principles of global jus-
tice. From such a moral cosmopolitan perspective, human beings have a moral
obligation to prevent suffering and injustice beyond state borders (Shapcott 2010,
p. 15; Lu 2000, p. 263). Despite the fact that people belong to different commu-
nities, nationalities or states, there is a universal moral concern for humanity,
as people should be perceived as equal to one another (Shue 1980). From this
perspective, human rights are prioritized over principles of state sovereignty
­

4In addition, the individual chapters address specific (sub-)debates that are relevant for the
respective studies.
6 C. Fehl et al.

(Pogge 1992, p. 58). While moral cosmopolitanists point to individual responsi-


bility for realizing universal principles of justice, institutional cosmopolitanists
assign such responsibilities for achieving global principles of justice to the insti-
tutional level. Pogge (2002, p. 14) perceives existing global economic institutions
as a source of worldwide poverty. Principles of justice have to address global
structures of exploitation, social marginalization and power inequalities, which
need to be revised at a global scale. From such a point of view, simple humanitar-
ian benevolence will not suffice; global justice principles must contain substan-
tial standards of economic redistribution as well as political and civil entitlements
(Shapcott 2010, p. 17; Caney 2005, p. 85).
Communitarians argue that cosmopolitanism overlooks the profound norma-
tive and cultural pluralism that characterizes the world. Principles of justice can
only be established within the context of national communities, and might be dif-
ferent depending on the relevant culture (Walzer 2006; Brown 2002, pp. 92 f.;
Brown 1992). Therefore, global justice must be perceived as contextual and can-
not be universal in range (Miller 2007, p. 263; Miller 2005). Such anti-cosmopol-
itan positions emphasize the relevance of borders and argue that any standard of
global justice must acknowledge the principle of state sovereignty (Nagel 2005,
pp. 113–147). However, even from such an anti-cosmopolitan perspective, some
weak universal principles of justice can be established if citizens from different
national backgrounds agree upon them in the transnational space. Such norms
include basic human rights principles, such as the negative duty to prevent harm
(Shapcott 2010, p. 59; Miller 1999, p. 197; Walzer 1994, p. 103). The most prom-
inent justice theorist, John Rawls (1972, 2001), explicitly argued that his ideas
of justice should be transferred to the international realm only in a significantly
modified way. In contrast to the demanding “difference principle” concerning dis-
tributive justice, which he developed for constitutional liberal democracies, Rawls
argues that only minimal principles of justice should apply at the international
level. They encompass rules of non-intervention, the right to self-defense and a
general acknowledgement of human rights principles (Rawls 1999, p. 37).
Rawls remains critical of cosmopolitan perspectives, as they might mask forms
of (Western) imperialism. Tony Erskine (2008, pp. 169 ff.) tries to overcome
such a criticism by designing her concept of “embedded cosmopolitanism” for a
world of “dislocated communities.” As morally constitutive communities might
be non-territorial or transnational, she develops the idea of overlapping member-
ships in morally relevant associations. People build morally constitutive com-
munities in the transnational space to practice solidarity and moral responsibility
between them (Erskine 2002, p. 469; O‘Neill 1996, pp. 291 ff.). Discourse-ethical
approaches point in a similar direction by stressing the relevance of procedural
1 Introduction 7

justice. Similarly to Pogge, Forst (2007, 2010, p. 448) argues that unjust global
power structures call for global principles of justice. Consequently, a practice of
discursive justification should gradually be institutionalized in the transnational
arena based on openness and equality of access. From a feminist perspective, pro-
cedural justice becomes decisive for revising global structures of injustice and
inequality (Hutchings 2010, pp. 197 ff.; Benhabib 2002, p. 36; Fraser 2006).
Another justice-related debate in IPT concerns the relevant dimensions of jus-
tice. While most scholars who have been discussed so far focus on distributive
and/or procedural justice, Nancy Fraser (2009) has broadened this typology by
including Axel Honneth’s (1992) argument about the key significance of recogni-
tion for justice. She puts forward a three-dimensional conception of the substance
of justice, encompassing redistribution, recognition, and representation. As we
will discuss below, this three-dimensional account informs the typology of justice
conflicts that will be used throughout this book.
The debate on global justice in IR mirrors the discussion in IPT. Firstly, the
controversy within the English School between solidarists and pluralists reflects
the difference between cosmopolitanism and communitarianism. Secondly,
as cosmopolitanists see evidence for their notion of a common humanity and
­solidarity in institutions of international politics, solidarists of the English School
also emphasize that the normative structure of world society reflects increasing
signs of solidarity and shared justice conceptions among states and world citizens
(Buzan 2004, p. 141; Wheeler 2000, p. 12).
The debate within the English School is shaped, in particular, by the tension
between the norm of state sovereignty and human rights concerns. For solidar-
ists, the ordering principle of sovereignty also includes global responsibilities to
protect people and to secure their human rights. Pluralists, by contrast, put order
before justice and stress the continuous relevance of sovereignty and non-inter-
ference as ordering principles of the international system of states. For Bull, the
pursuance of the notion of a “world common good” remains utopian, because
“to pursue the idea of world justice in the context of the system and society of
states is to enter into conflict with the devices through which order is at present
maintained” (Bull 1977, p. 88). Consequently, realizing principles of justice has
to remain within the nation state (Jackson 2000; Dunne 2009; Wheeler 1992,
p. 477). Similar to anti-cosmopolitan positions in IPT, pluralists would opt for
some minimal duties to assist needy states. Linklater (2006) develops his concept
of “harm conventions” as a possible compromise to bridge the gap in the English
School, which would acknowledge some minimal common duty among human
beings and states to protect people from gross injustices such as genocide. States
might be able to agree on a consensus regarding how to avoid harm rather than
8 C. Fehl et al.

aiming at “some universalizable conception of the good life which should be pro-
moted everywhere” (Linklater 2001, p. 267).
Outside the research tradition of the English School, liberal internationalists
argue that the authority and sovereignty of states are conditional upon states’
responsibility towards their own people (Téson 2003, p. 93). Serious malpractices
imply the suspension of the rights of states to sovereignty and non-interference.
As a result, liberal internationalists are even more willing to opt for humanitarian
intervention than solidarists of the English School (Buchanan and Keohane 2004,
pp. 4 f.; Evans and Sahnoun 2002, p. 101). This form of “new humanitarianism”
has become part and parcel of a liberal conception of a new world order where
the protection of human rights—conceptualized in terms of liberal values of
­liberty and equality—outweighs the traditional concept of sovereignty ­(Shapcott
2010, p. 133).
These normative debates in IPT and IR—which are carried on without any
agreement in sight between academics who share fairly similar cultural and
social backgrounds—lend support to an important argument that has been made
by Andrew Hurrell: Global justice “is not something that can be deduced from
abstract rational principles,” but can only be thought of as “a negotiated ­product
of dialogue and deliberation” (Hurrell 2007, p. 308). In line with this insight, the
approach to justice taken in this book deliberately refrains from taking sides in
the normative debates just mentioned. Instead of trying to solve the normative
questions at stake theoretically, the common aim of the studies collected in this
volume is to empirically analyze the ways in which these normative debates actu-
ally play out in the interaction of real-world actors. The arguments, conceptual
clarifications and typologies provided by normative justice research offer useful
heuristic devices for facilitating a systematic grasp on these justice-related con-
troversies in the world “out there” (see Sect. 1.3 below).

1.2.2 Empirical Justice Research

In contrast to the normative debate on global justice, empirical justice research


focuses on justice claims which real-world actors put forward. Empirical justice
research began in the 1960s as a subfield of social psychology, but, in the mean-
time, has also been firmly established in sociology, experimental economics and
neuroscience. In general, this interdisciplinary field of research has proven that
the realization of justice claims is decisive for intra-group interaction (Dembinski
2017, pp. 813 ff.; Müller, this volume). Empirical justice research shows that
justice conceptions are intertwined with pro-social behavior. On the other hand,
1 Introduction 9

feelings of injustice may lead to anti-social behavior (Sigmund et al. 2002, p. 84).
In his justice motive theory, Lerner (1980) focuses on the belief in a just world
which includes people’s conviction that they deserve what they are entitled to.
Children learn in their transition from a simple desire principle to social reali-
ties that their long-term interests may be fulfilled when they forgo their short-
term immediate desires. In the expectation of better results in the long-run, they
abstain from choosing short-term gains. Such motivation which, in the perspec-
tive of social psychology, is closely intertwined with egoistic interests and utility
maximization, leads human beings in general to opt for just treatment and just
relationships. Realizing the justice motive also leads people to lobby for more
just conditions at the levels of their communities, states or even international
relations. Welch (2017, p. 76) describes the justice motive as a “mechanism of
regularly monitoring the world for apparent injustices.” Such perceptions of injus-
tice frequently invoke other strong emotions such as outrage or anger. The justice
motive can eventually become so strong that it dominates other models of social
interaction (Montada and Lerner 1996).
Empirical justice research relies on two models of explanation of why actors
pursue justice considerations: Firstly, according to the interest-based model, self-
interested agents choose modes of social interaction in order to achieve gains.
Justice serves as a mechanism for regulating such social relations (Tyler and
Smith 1998). Secondly, the identity-based model focuses on procedures within
groups that mirror relations of power, status and authority (Lind and Tyler 1988).
Actors assess their standing within the group depending on how other members
of the group, particularly authorities, treat them. Both models stress that the jus-
tice conceptions of human beings serve social functions, such as for example
enabling actors to find their place in communities or achieving agreement on
mechanisms of distribution. From such a perspective, justice must be perceived as
constitutive to achieving stable social relations and as facilitating the construction
of communities.
In the early 1990s, the International Social Justice Project developed a com-
parative design focusing on world views and justice ideologies across different
countries, and examined justice perceptions of citizens from thirteen countries in
four population surveys between 1991 and 2007 (Kluegel et al. 1995). Reflect-
ing the distinction between an interest-based and an identity-based model, the
project defined justice judgments as either referring to the outcome of a specific
distribution of goods or to a set of general rules and principles that underlie this
distribution in a given socio-political order. Such order-based “justice judgments”
can be systematized on the basis of Mary Douglas’s Grid-Group Theory (1989,
1996) which stresses the relevance of social contexts which focus on grid as the
10 C. Fehl et al.

hierarchical order of a group or the degree of individual freedom people have in


a group in order to realize their aims. In this sense, Wegener and Liebig (2000)
argue that individual justice judgments depend on social position and the societal
context in which people interact. The results of the International Social Justice
Project confirm the importance of socioeconomic, cultural and political context
conditions which shape citizens’ perceptions of (in-)justice.5
Empirical justice research focuses, in particular, on two dimensions of jus-
tice: distribution and procedures. While procedural justice is conceptualized as
the fairness of processes that lead to distributive decisions, distributive justice is
understood as involving standards that aim at dispensing material and immaterial
goods. Findings of empirical justice research point to linkages between the two
dimensions. More specifically, both dimensions are interrelated in the sense that
deficits in one dimension can be compensated for by the other. An unjust distri-
bution, for instance, may be tolerated if it results from a fair—or procedurally
just—process of negotiation (Jost and Kay 2010, p. 1140; Tyler and Smith 1998,
p. 601).
Existing empirical justice research in IR confirms both the general relevance
of political actors’ perceptions of justice and some of the more specific find-
ings reported above. David Welch (1993) has shown that the “justice motive”
is a key factor contributing to the escalation of interstate conflicts into war (see
also Welch 2017). Studies on international negotiations (see Albin 1999, 2001,
2009; Albin and Druckman 2014a, b) have found that “justice claims” advanced
by states influence the perceived legitimacy and effectiveness of international
­agreements, and that contradictory justice claims can contribute to the failure
of negotiations and impede the implementation of treaties. They also identify
the linkages between distributive and procedural justice. However, in contrast
to sociological and social psychological studies, Albin and Druckman rely on a
­deductively-derived conception of justice, measuring “just” or “unjust” proce-
dures and outcomes based on pre-defined standards. This contrasts with David
Welch’s study. Drawing on Melvin Lerner’s psychological approach, Welch uses
a formal and subjective conception of justice, arguing that a “concern for jus-
tice” can be recognized not in the specific content of demands made by states,
but in their general form, which calls for a “rectification of disparities between

5This survey, for example, found that citizens from Eastern European transitional states
and from “late” democracies such as Spain and Portugal support stronger state intervention
in order to achieve redistribution und greater economic equality (Schrenker and Wegener
2007, p. 16).
1 Introduction 11

perceived entitlements and assets” (Welch 1993, p. 41). As will be explained in


the next section, this is also the perspective on justice that guides the studies col-
lected in this book.

1.3 Key Concepts

Jointly and individually, the contributions to this volume advance two core argu-
ments: The first argument holds that justice plays a central role both in individual
political decision-making and in intersubjective political discourses, but that con-
ceptions of justice vary widely across actors and communities. The second argu-
ment holds that we need to take these empirical justice concerns of real political
actors seriously, because they are a central factor shaping the dynamics of both
peaceful cooperation and conflict in world politics.
At the heart of the first argument lies an understanding of justice which
is open enough to capture a wide empirical variety of claims without reducing
“justice” to an empty signifier. Justice can mean many things to different peo-
ple and groups, but not every political claim can be characterized as a justice
claim. Drawing on Melvin Lerner’s psychological perspective and David Welch’s
application of this perspective to international politics, our understanding of jus-
tice conceptualizes justice claims not through their specific content but through
the specific “formal structure of a justice speech act”: A claimant puts forward a
demand for something she or he argues belongs to her or him according to some
established entitlement (Müller 2013, p. 58). The common denominator of justice
claims is thus that they refer to “a perceived discrepancy between entitlements
and benefits” (Welch 1993, p. 19). What justice means in a given context is, how-
ever, frequently contested. In line with sociological justice research, we assume
that this contestation may concern the general principles of justice as well as their
prioritization, interpretation and application in a specific situation.
This understanding of justice, which is shared by the contributions to this
­volume, not only opens up conceptual space for the empirical exploration of
actors’ justice claims and their impact on cooperation and conflict. At a theoreti-
cal level, it also promises to transcend the dichotomy between cosmopolitan and
communitarian notions of justice which has dominated past discussions on global
justice. We neither posit the applicability of universal standards across cultures
and contexts nor do we claim that there are only “locally valid” notions of justice.
Instead, we assume that the reality of global politics is marked by conflicting con-
ceptions of justice which are, however, subject to collective discourses and nego-
tiations that can transcend cultures and communities and may (but need not) lead
12 C. Fehl et al.

to the emergence of transnationally or even universally accepted notions of justice


(Daase and Humrich 2011, p. 2).
While the emergence of a universal standard (or multiple universal standards)
of justice is thus a theoretical as well as empirical possibility, we share the obser-
vation made by David Welch in his pioneering 1993 book that global politics has
been and continues to be marked by situations in which political actors driven
by the “justice motive” advance justice-related claims (i.e., claims to perceived
entitlements) that collide with each other. We refer to such collisions as “justice
conflicts”. Importantly, our definition of justice conflicts does not suggest that any
domestic or international conflict can be classified in a dichotomous fashion as
either a “justice conflict” or a “non-justice conflict”. Given the ubiquity of justice-
related claims in world politics, such an approach would give rise to the legiti-
mate question of whether there really are any empirical examples of domestic or
international disputes in which political actors make no references whatsoever to
justice principles, which would imply that justice is actually “constant and cannot
explain variations in state behavior” (Welch 1993, p. 1). While we acknowledge
that “pure” non-justice related conflicts are empirically rare, we do contend that
the frequency and intensity with which diverging justice claims are made can and
do in fact vary strongly across domestic and international conflicts. This assump-
tion is in line with Welch’s argument that the justice motive is a variable which
can take on a range of values (from “imperceptible” to “conclusive”) in any
given conflict (Welch 1993, p. 40). For us, thus, justice conflicts can be more or
less intense and mark international and domestic disputes to a greater and lesser
degree.
Within our broad definition of justice conflicts, we differentiate further
between different types of justice conflicts, which vary not only regarding the
nature of claims being brought forward but also in terms of potential institutional
solutions that could address them. Drawing on established approaches in politi-
cal theory and, in particular, on the work of Nancy Fraser (2009), we distinguish
between three types of justice conflict: (1) conflicts over redistribution, which are
about conceptions of and demands for substantive justice; (2) conflicts over rep-
resentation, which are characterized by competing understandings of procedural
justice; and (3) conflicts over recognition which address the meta question of who
is entitled to articulate justice-related demands at all. The first type of conflict
is a conflict over the distribution of material goods, which may range from eco-
nomic opportunities and resources to health, education, and physical protection
from violence and natural disasters or—in justice conflicts among state actors—
military capabilities. The second type of conflict refers to the distribution of par-
ticipatory rights, opportunities for political representation and equality before the
1 Introduction 13

law; again, such conflicts can be observed both within and between states and
societies. The third type captures conflicts in which recognition of actors’ identi-
ties, differences, and culturally assigned status are the object of conflicting jus-
tice claims. Taking up key arguments from sociological justice research discussed
above, we assume that each of these three types of justice conflict can take the
form of a disagreement over general principles of substantive/procedural/rec-
ognition justice or of a dispute over how these principles should be prioritized,
interpreted and applied in a specific conflict, and that the different dimensions
can—but need not—be linked.
Importantly, we use these ideal-types of justice conflicts as heuristic categories
that may capture empirically articulated justice claims of actors to a greater or
lesser extent. While building on the work of political theorists, we do not attempt
to formulate a normative standard of procedural, redistributive or recognition jus-
tice that could be used as a measuring stick to assess whether specific political
claims or specific institutional solutions live up to it. In this, as discussed above,
we also depart from the work of Albin and Druckman, whose approach we oth-
erwise share. Also, we do not aim at establishing which of the three types of jus-
tice conflict is the most intractable one with the most potential for causing violent
conflict, nor do we seek to arbitrate on the question debated by Nancy Fraser and
Axel Honneth of whether recognition and distributional justice are fundamen-
tally intertwined or independent (Fraser and Honneth 2003). Rather, we assume
that the justice conflicts debated in normative theory by political theorists reflect
basic intuitions shared by many—albeit not necessarily all—real political actors.
They can thus be used as a heuristic tool for identifying different dimensions and
aspects of empirical justice conflicts, while at the same time remaining open to
observation of diverging interpretations of what constitutes distributive, proce-
dural, and recognition justice, enabling us to see similarities as well as differences
between the different cases of justice conflict.
The second core argument made in this book is that justice conflicts of differ-
ent types are key determinants of conflict and cooperation both between states
and within individual societies. In particular, we argue that “justice” and “peace”
are linked to one another in an intimate, yet ambivalent relationship.6

6For the purposes of our joint research, we use a narrow conceptualization of peace as the
absence of direct and systematic personal violence (peace as a state) or de-escalation, mini-
mizing and containment of direct, personal violence (peace as process). For our analytical
purposes, such a narrow concept has the advantage that—unlike broader concepts such as
“positive peace”—it excludes justice from the definition of peace itself, making the rela-
tionship between both easier to grasp and analyze (Daase and Humrich 2011, p. 3).
14 C. Fehl et al.

Both internationally and domestically, justice conflicts are often at the heart
of political divisions that inhibit cooperative solutions to pressing social and
political issues and that may even produce or escalate violent conflicts. While
­justice conflicts are far from the only source of political conflict and violence, we
expect—in line with the findings of Welch’s pioneering work—that they can rein-
force and escalate conflicts through a range of causal mechanisms, for instance
by making actors less amenable to compromises and trade-offs, more suscepti-
ble to cognitive errors and less tolerant of other states’ gains (Welch 1993, p. 31).
The recognition that such mechanisms of escalation play a potentially important
role does not suggest the view that the “justice motive” is the only or even the
dominant cause of domestic and international violent conflict. As Welch (1993)
has argued and empirically demonstrated, justice conflicts work alongside and
in conjunction with other (interest- and power-based) causes of conflict. Fur-
thermore, we expect that contextual factors can moderate or reinforce the impact
of justice conflicts on peace. For instance, we could expect that justice conflicts
“might particularly give rise to conflicts in times or situations where interests are
in transition and therefore pre-defined or traditionally accustomed patterns of the
distribution of some goods are no longer fitting in one way or another” (Daase
and Humrich 2011, p. 3). Global power shifts, major crises or catastrophes or
periods of domestic upheaval could thus be forces that contribute to the escalation
of justice conflicts. Another conjecture proposed by David Welch (1993, pp. 20,
32) is that clashing justice conceptions are more prone to engender violent con-
flict when there are no shared institutional procedures through which colliding
claims can be moderated.
While justice is often a key factor in escalating conflict, we contend that it is
also critical to achieving negotiated solutions to domestic and international dis-
putes, both in situations that are already marked by violent conflict or threaten
to escalate into violence, and in negotiations on international agreements that
aim to create the preconditions for preserving a peaceful international order. As
Albin and Druckman have argued, shared justice conceptions—particularly at the
procedural level—can considerably facilitate agreement in international negotia-
tions. If negotiators mutually acknowledge and accept each other’s justice claims,
and if they manage to balance and combine colliding justice claims so that the
negotiating outcome “appeals” to all parties’ “sense of justice,” this will help the
agreement to be approved and respected (Albin and Druckman 2010, p. 110; see
also Zartman et al. 1996; Zartman 2008). Treaties which respect key principles of
justice are found to be more durable than other agreements (Albin and Druckman
2010, pp. 111 ff.). While Albin and Druckman categorize treaties as objectively
more or less respecting of certain pre-defined justice distributive and procedural
1 Introduction 15

principles, their argument can easily be integrated into our formal and subjectivist
understanding of justice by assuming that perceived respect for justice principles
is the feature that makes treaties durable. Again, the beneficial impact of justice
may depend on the operation of other contextual factors, such as the level of trust
among negotiating parties and/or their adoption of a “problem-solving” attitude
(Albin and Druckman 2010, p. 117). In summary, existing research indicates that
successful reconciliation of or compromise between colliding justice claims can
lay the foundation for resilient peace, pointing to “just peace” as both a tool and
normative aspiration in tackling domestic and global political controversies.
Based on these insights from existing research, the PRIF research program,
within which the individual research projects presented in this book were devel-
oped, set out to analyze both positive and negative interactions between justice
and peace. Our shared aim was to demonstrate that the empirical study of justice
in international politics, conflicts and negotiations can generate key insights into
the constraints and possibilities of constructing a peaceful order in a multipolar,
and arguably increasingly plural, world.
All contributions to this volume, while theoretically and methodologically
diverse (see below), take up the analytical challenge of understanding the role of
justice conflicts and their impact on peace by focusing on a number of shared
research questions.

To what extent is a given domestic or international conflict marked by


“justice conflicts”? Do colliding claims about perceived entitlements play an
important role in driving the controversy, or particular phases thereof? Empiri-
cally identifying justice conflicts is methodologically demanding. The analysis of
political discourses and public arguments will always be an important part of the
task, but leaves open the question of whether they reflect genuine motivations or
are used strategically to “sell” demands to certain audiences. Even in the latter
case, justice remains an important factor, as strategic use of justice claims would
be unsuccessful if there were no audience susceptible to such arguments (Albin
2001, p. 19 f.; Daase and Humrich 2011, p. 7). Yet, how justice conflicts affect
peace may well differ depending on which and how many players have internal-
ized justice concerns.

What types of justice conflict can be identified in the controversy?  Do col-


liding justice claims mainly revolve around one type of justice claim, or does
the controversy deal with distributive, procedural as well as recognition-related
aspects of justice? If so, how do these different dimensions interact? Do justice
conflicts in different dimensions reinforce one another or can they even be used
16 C. Fehl et al.

productively to craft compromises? In mapping the justice claims articulated by


different political actors, contributions use the shared heuristic of types of justice
conflict introduced above, but without assuming that theoretical ideal-types can
be used as measuring sticks to evaluate whether actually articulated claims come
close to a normatively prescribed standard of distributive/procedural/recognition
justice. The focus of all contributions is on studying what real political actors
actually identify as their justice-related concerns and how these, and their inter­
actions, shape political conflicts and negotiations.

How and under what conditions do justice conflicts lead to the breakdown of
a cooperative endeavor or the violent escalation of a conflict?  Can we ­discern
any of the typical causal pathways identified in the literature through which col-
liding justice claims can block the path to cooperative solutions and escalate
disputes? (How) Does justice interact with other prominent causes of conflict
and violence? Are there contextual factors, such as periods of flux in identities,
interests and power structures or (lack of) institutional contexts that could have
moderated or reinforced the impact of justice conflicts on peace in the given con-
troversy?

How and under what conditions are justice conflicts resolved or amelio-
rated?  Through what specific measures and practices, if at all, are justice con-
flicts contained in a given dispute? This includes the question of what forms of
negotiation, institutional regulation and governance contribute to the develop-
ment or shared justice conceptions, or alternatively the recognition and prag-
matic r­econciliation of colliding justice claims. In other words, what strategies
and institutional solutions are used to harvest the potential for justice to stabilize
peace in a mutually reinforcing “just peace” framework? And what are the condi-
tions that enable these resolution strategies to work?

1.4 Contributions to this Volume

Following this introduction, Harald Müller continues with laying out the ration-
ale that underlies a justice-oriented research agenda in international politics and
peace and conflict studies. In the chapter “Justice from an Interdisciplinary Per-
spective: The Impact of the Revolution in Human Sciences on Peace Research
and International Relations,” Müller starts from the observation that peace
and justice have been a preferred couple in theoretical writings, but that peace
research offers surprisingly little empirical knowledge about how they relate to
1 Introduction 17

each other. Knowledge produced outside political science, however, clearly


­suggests that humans are highly sensitive to violations of justice and that justice
concerns permeate social relations. Summarizing the state of research across a
whole range of disciplines, Müller shows that neuroscientists have located the
parts of the brain responsible for negative reactions to violation of claims for jus-
tice. Evolutionary biologists have identified rules of distribution and retribution
not only in early human societies but among other socially living species as well.
Psychologists have observed the emergence of a sense of justice in very early
childhood, while behavioral economists have identified behavior of average per-
sons in experiments that deviated significantly from the model of the “economic
man” and could only be explained by a sense of justice.
Müller’s chapter summarizes these findings and outlines their implications
for peace research. It highlights the ambivalent nature of justice for social rela-
tions. Justice concerns can exacerbate conflicts between individuals and groups
but ­justice can also provide standards for arriving at durable peaceful solutions
to conflicts. Understanding these ambivalences and their repercussions for inter-
national and intrastate relations provides a promising path towards understanding
conflict dynamics.
The second part of the book turns to the role of justice in international regimes
and organizations. It starts with a chapter by Caroline Fehl on “Understanding
the Puzzle of Unequal Recognition: The Case of the Nuclear Non-Proliferation
Treaty”. The 1968 Nuclear Non-Proliferation Treaty (NPT) is a paradigmatic
example of an unequal institutional order. It distinguishes between states that own
nuclear weapons and those that do not, and prohibits the have-nots from ­seeking
the same status as nuclear weapon states. This inequality enshrined in the treaty
would seem to militate against justice concerns and undermine the stability
of the treaty. To explain why states put up with such unequal recognition, Fehl
turns to recognition theory. At first sight, recognition theory seems ill-equipped
to explain the creation and persistence of this unequal treaty and, up to now, IR
scholars have indeed mostly used it to understand struggles against inequali-
ties in world politics. And yet, Fehl argues, a close analysis reveals that differ-
ent types of recognition needs, articulated by different states, heavily shaped both
the process leading up to the adoption of the treaty and its contents. While the
NPT denied states an equal right to the possession of nuclear weapons, it none-
theless responded to justice concerns of the parties. In particular, it responded to
demands for participatory equality and for the recognition of individual national
identities and achievements. Thus, the multidimensionality of recognition needs
explains why recognition politics ultimately enabled and stabilized an unequal
institutional order.
18 C. Fehl et al.

The NPT also constitutes the empirical focus of the contribution by Marco
Fey, Aviv Melamud and Harald Müller. In “The Role of Justice in Compli-
ance Behavior: Germany’s Early Membership in the Nuclear Non-Proliferation
Regime,” Fey et al. investigate whether the perceived justice or injustice of an
institution affects states’ compliance with its rules. An extensive literature studies
the compliance behavior of states. But the potential impact of justice concerns on
compliance has not yet been sufficiently explored—even though justice has been
demonstrated to play an important role in international negotiations and the crea-
tion of international institutions. The chapter examines the relationship between
the two concepts and holds that the justice considerations of actors regarding a
regime can influence their compliance behavior. To illustrate the importance of
including justice considerations in the study of compliance, Fey et al. analyze
West Germany’s behavior as a member of the NPT during the 1960s, 1970s
and 1980s. They show that West Germany had three major grievances with
what it perceived as an unjust regime: the discriminatory nature of the distinc-
tion between nuclear weapon states and non-nuclear weapon states; the unequal
obligations assigned to these two groups; and the disadvantages that resulted for
non-nuclear weapon states from these obligations. These concerns, then, caused
contested compliance and regime conflict. The case illuminates the central role of
justice concerns for compliance and thus the need to broaden our understanding
of compliance and its complexity in both conceptual and practical terms.
The chapter “Gender Justice in Multilateral Negotiations: The Case of SGBV
in the Rome Statute and in the ICC” by Simone Wisotzki analyzes the negotia-
tions of the Rome Statute. During these negotiations, the “gender battle” became
synonymous with a series of justice conflicts concentrating on a norm to crimi-
nalize sexual gender-based violence (SGBV). SGBV has escaped sanctions at the
international level for a long time. Based on progress achieved during the war
tribunals on Rwanda (ICTR) and Yugoslavia (ICTY), this finally changed with
the Rome Statute that led to the establishment of the International Criminal Court
(ICC). During the negotiations in Rome, civil society organizations relied on jus-
tice arguments in order to push for an individualization of sexual gender-based
crimes. As feminist lawyers were not satisfied with the ways in which sexual vio-
lence had been defined in the statutes of the two war tribunals on Rwanda and
Yugoslavia, they now aimed at “doing justice” to the victims by seeking to widen
the definition and pushing for forms of retributive justice. Their efforts of lob-
bying for a concept of gender justice were met with resistance by conservative
states, which at several points led to serious conflicts during the negotiations at
Rome. Wisotzki identifies these justice conflicts, analyzes their consequences for
the way in which the SGBV norm was finally established by the Rome Statute,
1 Introduction 19

and concludes by asking how such conflicts have affected implementation efforts.
She identifies vast discrepancies between the normative rhetoric and the adjudica-
tion practices of the ICC when seeking to realize gender justice.
The final chapter in this part deals with “Institutional Justice as a Condition
for the Regional Acceptance of Global Order: The African Union and the Pro-
tection of Civilians.” Matthias Dembinski and Dirk Peters argue that conflicts
about liberal global norms can often be understood as conflicts about procedural
justice in the application of those norms rather than as conflicts about their sub-
stance. Regional organizations, which are key actors for the acceptance of global
norms at the regional and global level, respond to perceived procedural injustice
by contesting the underlying regime. Consequently, they submit, reducing pro-
cedural injustice when applying global norms will enhance the acceptance of
global norms at the regional level. To illustrate this link, the chapter compares
the response of the African Union (AU) to the application of global protection
norms in two cases. The application of the Responsibility to Protect in Libya in
2011 resulted in attacks on the norm by the AU, whereas the application of the
Protections of Civilians in Côte d’Ivoire in the same year was supported by the
AU even though it resulted in the removal of an incumbent head of government
as well. The difference, Dembinski and Peters show, lay less in the norms or their
implications themselves but in the procedures through which they were applied.
Whereas the AU was circumvented in the Libya case, it had an effective voice
in the Côte d’Ivoire case. Procedures for applying global norms should thus take
into account that regional actors will oppose global norms when they recognize
that they do not have a say in how they are implemented in their region.
The chapter by Dembinski and Peters already highlights the key norma-
tive problematique that is at the center of the third part of the book: the issue
of outside interference in the internal affairs of other states. In “R2P Ten Years
On: Unresolved Justice Conflicts and Contestation,” Gregor Hofmann takes an in-
depth look at the persisting contestation of the norm set known as the Responsi-
bility to Protect (R2P). This contestation, Hofmann argues, is not driven only by
the intention of challenging a Western-dominated international order. Rather, it
has its root in an underlying conflict of justice conceptions, in which an under-
standing of justice as based on entitlements of individuals collides with an under-
standing based on the entitlements of states. The chapter develops this argument,
bringing together theoretical arguments from different strands of research. Recent
constructivist scholarship on norm contestation suggests that pre-existing norms
and normative beliefs determine actors’ perception of the legitimacy of new
international norms. The English School and empirical justice research, simi-
larly, point to collectively held ideas of justice as motives for norm contestation.
20 C. Fehl et al.

Against this background and based on process tracing, qualitative content anal-
ysis, and expert interviews, Hofmann then analyzes the negotiations on R2P in
2005 and compares the results with the further development of R2P within the
UN General Assembly. In doing so, the chapter illustrates that conflicts over indi-
vidual vis-à-vis statist entitlements and over procedural justice remained unre-
solved during the emergence of R2P in 2005 and have continued to hamper the
further evolution and implementation of the norm.
The conflict between individual (human) and collective (state) rights is not
confined to R2P but also, more broadly, affects the international politics that
aim at promoting democracy and human rights. This is the topic of the chapter
“The Normative Challenge of Interaction: Justice Conflicts in Democracy Promo-
tion” by Annika E. Poppe and Jonas Wolff. In the global “North-West”, liberal
democracy is regarded as the universally valid model of political rule that is to be
promoted globally through foreign and development policies. Democracy promo-
tion, Poppe and Wolff argue, is, however, frequently challenged by justice-related
claims. Whereas external democracy promoters claim to help enforce universal
individual rights, those resisting democracy promotion point to the collective
entitlement to self-determined political evolution. “North-Western” governments
see liberal democracy as the only embodiment of a just political order, but in
those countries that are the targets of democracy promotion different understand-
ings of appropriate norms and institutions may exist. Contestation of democracy
promotion has, therefore, a crucial normative dimension that can be conceptual-
ized as a series of conflicts over justice. If we conceive of external democracy
promotion as a process of interaction instead of unidirectional export or socializa-
tion, such justice conflicts constitute a major normative challenge to democracy
promoters. The chapter argues for an alternative perspective on “democracy pro-
motion as interaction” and presents a typology of justice conflicts that enables
scholars to empirically analyze the normative challenges brought about by the
interactive nature of democracy promotion.
The following chapter “Negotiating Interference: U.S. Democracy Promotion,
Bolivia, and the Tale of a Failed Agreement” directly takes up this charge. Jonas
Wolff applies the conception of democracy promotion as an interactive process
that is crucially affected by conflicts over conceptions of justice to the relations
between the US and Bolivia. Since 2009, the US and the Bolivian government
have been trying to fix their broken diplomatic relations. These negotiations cul-
minated in 2011 in the signing of a bilateral agreement but, ultimately, failed to
establish a basis for mutually acceptable development aid relations. Wolff ana-
lyzes these negotiations and suggests a partial explanation that accounts for their
dynamics and results. Specifically, the chapter shows how the negotiations have
1 Introduction 21

pitted Bolivian demands for state sovereignty and mutual respect, based on an
egalitarian understanding of inter-state relations, against the US emphasis on
common obligations and universal rights, informed by a non-egalitarian notion
of liberal hegemony. The failure to balance or reconcile these conflicting notions
helps to explain why the negotiations were so difficult and eventually failed to
produce a viable outcome.
The final part of the book turns to the role of justice in negotiations over peace
and conflict. As the work by William Zartman and others has shown, justice con-
cerns of the warring parties pose particularly problematic obstacles to any attempt
to end violent conflict. In the chapter “The Roadblock of Contested Recognition:
Identity-Based Justice Claims as an Obstacle to Peace Negotiations in Afghani-
stan,” Arvid Bell focuses on the problem of recognition in such negotiations and
analyzes this issue in the ongoing conflict in Afghanistan. The Afghanistan con-
flict is still characterized by resistance to negotiation and by the continuation of
violence. However, as Bell shows, several studies have thoroughly explored the
interests of the main parties to the conflict and a settlement that respects their key
demands would actually be possible. The current military situation resembles a
“hurting stalemate,” which, according to rationalist assumptions, should compel
the parties to move toward negotiations. The chapter demonstrates that the main
obstacle to negotiation is an underlying and unaddressed conflict of recognition
between the United States, the Afghan government, and the Taliban. While each
party believes it is driven by justice claims, they perceive their opponents to be
driven by a hostile strategy informed by incompatible interests. Relying on Rich-
ard Ned Lebow’s Cultural Theory of International Relations (Lebow 2008), the
chapter explores the parties’ motives in the conflict, focusing on the need to strive
for esteem and honor. Bell suggests that the reciprocal acknowledgement of legit-
imate identity-related justice claims could remove a key obstacle to formal nego-
tiation.
In the final chapter of this volume, Melanie Coni-Zimmer, Annegret Flohr and
Andreas Jacobs turn to local dynamics in negotiating conflict. As Coni-Zimmer
et al. argue in “Claims for Local Justice in Natural Resource Conflicts: Lessons
from Peru’s Mining Sector,” justice concerns figure prominently in local conflicts
about the use of natural resources which pit local communities against corpora-
tions or state actors. Even where the addressees of local justice claims respond to
those claims, they may fail to satisfy them because they misperceive their nature.
The chapter uses Nancy Fraser’s distinction among three dimensions of justice—
procedural, distributive and recognition justice—to explore this argument with
respect to a local mining conflict in Peru, namely local protests against a mining
company in the Morequegua region. In this case, local communities demanded
22 C. Fehl et al.

compensation for earlier environmental and health impacts of mining activities.


Addressees of these demands ignored the recognition-based aspects of these
demands, i.e., the implication that compensation should be offered to the victims
of past harm. Instead of compensation, addressees offered social contributions in
return for the willingness of the community to let the company continue with its
operations, framing the conflict purely as a distributive conflict. Consequently,
Coni-Zimmer et al. suggest, these attempts to resolve the conflict failed.

1.5 Overarching Findings

Overall, the contributions to this volume demonstrate how justice conflicts per-
meate many conflicts in international politics; identify the major issues that are
contested; and show the implications of addressing these underlying conflicts and
of failing to do so.
To begin with, the contributions demonstrate that justice arguments are
brought forward in a wide variety of conflicts. Indeed, if the results of research by
evolutionary biologists and neuroscientists are taken into account, this does not
come as a surprise (see Chap. 2 by Harald Müller). As a sense of justice appears
to be deeply engrained in humans as social beings, it would be surprising if jus-
tice were not addressed in conflict situations. Claims to rightful entitlements sur-
face not only in territorial conflicts, where Welch (1993) has examined them, or
as a justification for procedural demands in negotiations (Albin and Druckman
2014b), but also in the design and implementation of treaties, in democracy pro-
motion, in conflicts about intervention decisions and in resource conflicts. They
are made by all kinds of actors involved in international politics, including state
governments, regional organizations and civil society actors.
While justice proves to be a regular point of reference in conflicts, the chapters
also clearly demonstrate that there is often contestation of what justice means and
what it implies for a given situation. Across the contributions, two dimensions of
contestation emerge: who are the subjects of justice and which principle of justice
is applicable in a situation? While the former issue is often related to recognition
conflicts, the latter most often concerns conflicts over procedural or distributive
claims. Concerning the first question, i.e., the question of who can claim to pos-
sess rights in international and transnational politics, an important distinction that
comes up repeatedly is that between the rights of states and those of individu-
als. It is important to note that, even though actors often make justice claims for
themselves, they may at times refer to and defend entitlements of others. There
are state governments that claim that individuals and their human rights are the
1 Introduction 23

most significant subjects of justice and that state claims of sovereignty can be
overridden by those of individuals (see especially Chap. 5 by Simone Wisotzki,
Chap. 7 by Gregor Hofmann, and Chap. 9 by Jonas Wolff). In other conflicts we
see the justice claims of global and regional organizations clash (Chap. 6 by Mat-
thias Dembinski and Dirk Peters), those of state governments and armed groups
(Chap. 10 by Arvid Bell), and those of local communities and multinational cor-
porations (Chap. 11 by Melanie Coni-Zimmer et al.). What makes these conflicts
particularly difficult to resolve is that the question on which they center (who can
make rightful claims at all and in whose name?), is of a much more fundamental
nature than differences about the distribution of goods. This moves the conflict
out of the sphere of distributive bargaining and requires actors to address much
more intractable issues. Arriving at a common understanding is possible, but it
can be a long-winded process and may require difficult compromises (Chap. 5).
The second question—which principle of justice is applicable—is not nec-
essarily easier to address, as the contributions show throughout. Equality is a
powerful justice principle that is evoked by actors and contrasted with what they
perceive as unequal treatment; for example, when it comes to unequal treaty obli-
gations for different member states (Chap. 4 by Marco Fey et al.) or a voice in
international decision-making processes (Chap. 6). Applying the equality prin-
ciple can, of course, become especially contentious when the actors claim to
subscribe to the principle per se but want to see it applied to different subjects:
equality of sovereign states versus equal rights for individuals (Chap. 8 by Annika
Poppe and Jonas Wolff and Chaps. 5, 7, and 9). But there are also cases in which
claims are made that point to special rights and obligations due to differences in
actor characteristics. Unequal rights and obligations between nuclear weapon
states and non-nuclear weapon states in the NPT, for example, could be regarded
by the signatories as just in this sense (Chap. 3 by Caroline Fehl).
This final observation is also a welcome sign of hope. Even though justice
conflicts appear widespread and even though they make it especially difficult to
resolve conflicts, the justice motive can also contribute to the resolution of con-
flicts, and justice conflicts can be resolved over time. The NPT case (Chap. 3)
demonstrates that a functioning institution can be formed when claims to justice
are recognized and that, under these circumstances, even unequal treatment may
become acceptable. The study of regional organizations’ involvement in interna-
tional military interventions (Chap. 4) shows that giving regional actors oppor-
tunities to have a say in decision-making about interventions can ensure their
continued willingness to cooperate. Even more importantly, the latter case also
shows that justice dimensions are linked. Procedural justice can make distributive
outcomes acceptable to actors who might not have accepted the outcomes as fair
24 C. Fehl et al.

if they had not participated in the decisions that led to them. In this sense, attend-
ing to justice grievances of actors can even make it easier to resolve other, related
conflicts.
However, the contributions also contain many cautionary tales that highlight
the significance of justice conflicts by demonstrating that the failure to address
them has resulted in the failure to establish peaceful or cooperative relations
between actors. Basic recognition conflicts can make even the start of negotiations
about conflict resolution impossible (Chap. 10). Where parties mistake recogni-
tion demands for distributive demands and address them this way, for example by
paying money instead of recognizing past guilt, this may lead to the breakdown
of negotiations (Chap. 11). At times, it may be possible to arrive at an arrange-
ment, a treaty or institutions, even though underlying justice grievances were not
addressed. However, what may look like a successful agreement may eventually
run into severe difficulties in the implementation phase (Chaps. 4, 5, 7, and 9).
A specific feature that characterizes the negotiation of justice conflicts in quite
a few of the cases studied in this volume makes reaching a resilient agreement
particularly difficult: actors usually hold their own demands to be shaped by
(moral) justice concerns, but hardly recognize that other actors hold their views to
be based on perceived entitlements and justice concerns, too. While actors know
that they are moral agents themselves, they tend to interpret the reasoning of
­others in terms of a narrow, materialist conception of interest understood in terms
of power and wealth (Chaps. 6, 7, 9, and 10). This finding is also of immediate
policy relevance as it suggests that a first step towards dealing constructively with
justice conflicts requires the actors involved to recognize that they are all, inter
alia, driven by justice concerns and that dealing with conflicts frequently involves
a debate about colliding, competing or at least diverging conceptions of justice.
All the chapters show, however, that the reconstruction of justice conflicts
underlying political conflicts in the international and transnational sphere contrib-
utes significantly to understanding the dynamics of these conflicts and the success
or failure of attempts to resolve them.

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Justice from an Interdisciplinary
Perspective: The Impact of the 2
Revolution in Human Sciences on Peace
Research and International Relations

Harald Müller

2.1 Introduction: Towards Scientifically Founded


Anthropological Assumptions for Political
Science

Peace and justice are often regarded as a settled pairing in theoretical writings—
but what do we know about their empirical relationship? Will deepening research
into this relationship pay off at all? Insights from other disciplines which have
been involved in the “revolution in human sciences” for decades should serve as a
powerful incentive in a field like international relations, which has always closely
followed other disciplines for stimulation: Neuroscientists have located the cir-
cuits in the brain responsible for adverse reactions to violations of claims for
justice. Evolutionary biologists have identified rules of distribution and retribu-
tion not only in early human societies but among contemporary social species as
well. Psychologists have tracked the emergence of a sense of justice in very early
childhood, while in experiments behavioral economists have identified behavior
by “average” people that deviated significantly from the model of “economic
man” and could only be explained by a sense of justice. The chapter discusses

Research for this chapter was supported by the Charles University Research Centre
program UNCE/HUM/028 (Peace Research Center Prague/Faculty of Social Sciences).

H. Müller () 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: mueller@hsfk.de

© The Author(s) 2019 29


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_2
30 H. Müller

these findings and identifies implications for the study of war and peace between
and within states.
In doing so, this chapter aims at escaping from the intellectual straightjacket
imposed by the narrow and incomplete perspective of humans as selfish, mate-
rialistic utility-seekers and of methodological individualism. It starts from the
assumption that humans are as much moral as they are selfish (Monroe et al.
2009), that they are as much emotional as they are rational, and that they are as
much social-communal as they are individual.
Based on these assumptions, “justice”, the time-honored moral concept of
political theory since ancient times, is presented as a central issue in interna-
tional relations. This proposition is not based on philosophical deliberations,
but on insights from many academic disciplines, including “hard sciences”. As
I will show on the following pages, these insights converge on the empirically
supported proposition that humans are endowed with what could be called in lay-
person’s terms a “sense of justice” and that this disposition in the hard wiring of
our brain has momentous political consequences not only at the individual, small
group and intergroup level, but also in politics and international relations. In a
nutshell, the presence or absence of perceived justice is a key factor that decides
on war and peace.
There is no doubt that peace without justice contains tensions between those
suffering from perceived unjust treatment and those responsible for such treat-
ment, as those on the receiving end of injustice will develop the “justice motive”
(Lerner 1977) to close the gap between their justice claim and its lack of fulfill-
ment. These tensions may endanger the stability of peace: unjust peace has the
negative connotation of being unsustainable. Just peace, by contrast, displays
the extremely important attribute of continuity and permanence. This statement
should not come as a surprise. Justice means in general that members of a given
community obtain what they can justly claim (“suum cuique”). When this is
the case, satisfaction with the status quo prevails and the respective social order
enjoys legitimacy. There is no motivation for violent resistance in order to create
basic change. Under these circumstances, peace is sustainable.1

1Unfortunately, there are those predisposed to using violence not only to combat injustice
but also for other purposes, who by doing so reduce this conceptually sound statement,
contrary to its deterministic language, from an assertion of absolute truth to a probability
proposition.
2  Justice from an Interdisciplinary Perspective 31

2.2 Losing the J-Theme: The Weight of Paradigmatic


Hegemony

The pedigree of the philosophical debate on justice and the gravity of its concep-
tual assumptions about human destiny should have motivated intense empirical
research, but there is amazingly little to be found. Inevitably, empirical research-
ers have uncovered interesting insights into the role of distributive conflicts and
their resolution in the sustainability of peace agreements, on the role of non-rec-
ognition in conflicts within and among political communities, on the impact of
transitional justice on post-civil war societies, and on the meaning of fair pro-
cedures for the acceptance of negotiation results—all subjects intimately related
to the idea of justice (e.g., Albin 2001; Albin and Druckman 2008, 2010, 2014;
Druckman and Wagner 2017; Zartman 1997, 2008). But these insights have had
only marginal influence on the great theoretical debates, if any at all, and they
have not informed thinking on conflict and conflict resolution in international
relations to the degree they deserve. As David Welch, a pioneer in thinking about
justice in international relations (Welch 1993), has recently written, the reason is
most probably paradigmatic hegemony (Welch 2014).
This certainly begs the question how empirical research about politics could
lose sight of one of the key subjects of the social sciences and humanities: the
meaning of morality and ethics in human affairs. Morality, at the center of the
academy for millennia while philosophers and theologians were at the helm,
has receded into small niches of scientific interest in modern science—though
we have to give the philosophers credit for helping to keep the topic alive until
now. In the social sciences, it has been consigned to the margins. For Marxists
and poststructuralist, late Nietzscheans, morality is an ideological superstructure
concealing the material or ideational basis of society. Similarly, rationalists view
moral arguments as instruments of a rhetorical strategy (Schimmelfennig 2001)
for overcoming resistance to actors’ material interests (while never asking the
question how moral arguments could exert influence among interest-pursuing
actors in the first place). The social-Darwinist inheritance of (utilitarian) ration-
alism is only inadequately papered over by the apparent liberty rationalists have
to identify their actors’ (theoretically also altruistic) “preferences” (e.g., Lake
and Powell 1999; Snidal 2013). In almost every empirical study informed by a
rationalist perspective, it is the material, egotistic interests of individuals or their
groupings that drive behavior, and the connection to the “survival” doctrine of
the social Darwinists in this approach is not hard to identify. This view is alive
despite all accumulated evidence that the “justice motive” is different from “self-
interest” (Markovsky 2017, pp. 115 f.).
32 H. Müller

All these approaches (we can include realism and neo-realism because both
rely on an anthropology that focuses on survival or the egotistic enhancement of
power, or both) have the anthropological assumption of egotistic individualism in
common. Motivations driving groupings (such as clans, city-states, feudal enti-
ties or states) are mere extensions of what drives individuals. It is very hard to
see a logical way morality could emerge from these basic assumptions about how
humans are structured. As stated above, to treat morality instrumentally begs the
question how it could be an instrument of persuasion for a group of egoists. This
question remains unanswered.
Constructivists, by contrast, view ideational motivation as a permanent part
of human dispositions and behavior. They postulate great variance in the sub-
stantive structure of these dispositions, as they are rooted in cultures which are
historically path-dependent and thus vastly different when, say, the culture of a
South East Asian society is compared with that of a sub-Saharan African or a
Scandinavian one. There is little or no connection with the “hard science” basis
of these assumptions. Constructivists rely on the tradition of social sciences and
social philosophy. For quite some time now, this has been a disadvantage vis-à-
vis rationalism connected to evolutionary biology (though in the highly doubtful
version of social Darwinism), with rationalism thus enjoying a more respectable
“scientific” reputation (Jackson 2010).

2.3 The Key Role of Unproven Anthropological


Assumptions

The hegemonic social science paradigm that has informed much of IR work is
thus rationalism (Lake and Powell 1999). Humans are rational utility-seekers and
maximizers or optimizers. Realism and neo-realism are variations of this basic
theme. Structures emerge out of the strategic interaction of actors with different
preferences which are frequently in opposition to each other. Structures then deter-
mine the strategic choices of actors; depending on the choices made, outcomes
ensue and, from time to time, new preferences and structures emerge. Rational-
ity may be limited through lack of information, and information exchange may
become part of the strategic interaction among actors. Actors—whether natu-
ral persons or collectives—must be regarded as “individuals” who are only kept
together by virtue of their strategic interaction and the resulting structures.
I am not interested here in the fine-tuning of the whole theory and its applica-
tion in IR, but in the skeleton of the anthropological assumptions that constitute
their basis. As is well known, this very special anthropology has been imported
2  Justice from an Interdisciplinary Perspective 33

from the academic field of economics. It should be emphasized that economics


has adopted this anthropology without any preceding empirical anthropologi-
cal studies. The founders of modern economics derived their conclusions from
their lay observation of everyday behavior and expanded their conclusions to a
simple if not primitive theory of how human beings “tick”. When Charles Dar-
win laid the groundwork for evolutionary biology, pundits of utilitarian political
economy were quick to jump on the bandwagon; lacking their own foundation
in the hard sciences, here they found what they needed to bolster the “scientific”
claim of their field. The struggle for survival of the fittest and the perceived “bet-
terment”—in both physical and intellectual capacities—through the historical
process of organic evolution appeared to support what economists viewed as the
emulation of the biological template in the market system and the resulting better-
ment of human affairs resulting from ever more efficient production and distribu-
tion modes.
IR scholars of the realist and rationalist faith then followed this example,
claiming, like the economists, scientific status based on the noble “hard science”
pedigree behind the paradigm adopted. While rationalists focused closely on
the micro-level, realists looked at the big picture (most notably Waltz 1979). In
extremis, they described world history as a merciless fight for survival in which
states had no other choice than to arm, to ally, and to fight, in order to survive. This
sophisticated social Darwinism found its most consistent expression in “offensive
realism” (Mearsheimer 2001). Never mind that the extinction rate in the world of
states is surprisingly small, that many states focus on things other than survival,
since they survive anyway, and that even extinct states may experience surpris-
ing resurrections—something highly unusual in the biological world other than
through Jurassic Park techniques, which still belong in the realm of fiction.
The anthropological assumptions of rationalism have experienced many
attacks, in the most sustained way by constructivists who wanted to leave the
materialist ground on which rationalism is ultimately based and to give the idea-
tional factors inherent in the human brain and in the social life of humans their
due. But even constructivist work has succumbed at times to key elements of the
rationalist paradigm, such as the evolutionary theory of norms (Florini 1996) or
the utilitarian motivation of political leaders in John Owen’s theory of forced
regime change (Owen 2010). In many ways, rationalism offered the anthropologi-
cal default option to which even critics of rationalism would revert when neces-
sary. The reason was most probably the aura of “being scientific” resulting from
the rationalist basis in economics (allegedly the most “scientific” social science,
despite the endless sequence of incorrect prognoses), which in turn was rooted
in an oversimplified and misunderstood interpretation of Darwinist evolutionary
34 H. Müller

biology (Jackson 2010). Two images prevailed: “economic man” (Ingram 1888)
and the “selfish gene” (Dawkins 1976).
Of course, any political theory must rely on basic anthropological assump-
tions. Without such assumptions, there can be no hypothesis about the motives
and directions of human action, individual or collective. In modernity, these
assumptions have been gathered in a rather amateurish, ad-hoc way, and they
reflect the beliefs of academics to a far greater degree than any hard knowledge,
from Morgenthau’s “lust for power” (Morgenthau 1968) through Waltz’s con-
cern for security, to the prevailing rationalist paradigm of utility-maximization.
In the past, political analysts could be excused by pointing to the vast discrepancy
between existing “hard” knowledge and the ad-hoc assumptions related to the
presently most plausible relevant “hard knowledge” to which they clung, namely
evolutionary biology as understood by social scientists.2
The time for such excuses has passed as a result of scientific advances over
the last few decades. For the first time since the academic faculties split as a con-
sequence of scientific development in the era of the Enlightenment, we may be
facing a period of convergence for a wide range of academic fields from hard sci-
ences such as neuroscience or evolutionary biology to sociology and political sci-
ence (international relations included) and cultural sciences such as ethnology or
literature. A chorus of jubilation could be expected over the immense opportuni-
ties this development is creating, over new, vast domains of academic possibilities
opening before our eyes. It is a kind of underselling to speak only of an “emo-
tional turn”, which would be another temporary fashion for marketing a limited
new idea imported from elsewhere (Hutchison and Bleiker 2014, p. 492). What is
happening here is nothing less than a revolution across the field, based on a new
and scientifically-based image of the human species and its motivational disposi-
tions (Crawford 2011). Despite this, most scholars stick to their old models, from
rational choice to post-structuralism, and neglect the marvelous chance of enrich-
ing our knowledge.3

2For a biting critique, see Bauer (2010, Chap. 5, pp. 185 ff.). Remarkably, Richard Ned

Lebow (2008) has developed a completely different set of anthropological assumptions


from ancient Greek philosophers’ speculations on the nature of human beings which were
based only on seasoned and sharp observation. Lebow has applied this theory to the his-
tory of international relations and to war studies, and has gained amazing insights (Lebow
2010). Typically, the mainstream has ignored this work.
3At least the special issue on emotions and IR of International Theory, edited by Emma

Hutchison and Roland Bleiker, was a sign of hope (see Hutchison and Bleiker 2014).
2  Justice from an Interdisciplinary Perspective 35

No social or political theory whose assumptions about human beings do not


pass three crucial tests is sustainable nowadays. First, theories must be plausible
in the light of evolutionary requirements: All attributes ascribed to human beings
by social and political scientists must have a plausible evolutionary history in the
human species, a history during which individuals have always been embedded
in groups rather than being lone wolves. The attributes must be supported by at
least some empirical evidence in evolutionary biology and anthropology (Hatemi
and McDermott 2011b). Second, they must not contradict recent insights by neu-
roscience and neurobiology. These sciences, though quite young, are deciphering
the structure and functions of the brain at astonishing speed, making use of rap-
idly developing new technologies. Third, they must find some support in the rap-
idly growing body of experimental research in sociology, social psychology and
behavioral economics.

2.4 Insights on the Justice Motive from Many


Disciplines

Trying to distill the knowledge from various scientific fields with a view to
obtaining answers to key questions is akin to a fool’s errand: too many possible
sources in too many unknown fields, and too much specialist knowledge needed
to understand what these far-away colleagues are writing. The best an interested
layperson can do is to start with the few scientific authors who care (and are
capable) of presenting their field to a broader, interested audience, and to work
through their key references to touch upon a wider circle of writings. This is what
I have done in preparing this chapter.

2.4.1 The Justice-Seeking Human as Social


Animal: Insights from Evolutionary Biology
and Anthropology

There is no way to understand political motivation, choices, and sociality with-


out a deep look at the evolutionary history of the human species. Evolution
has led to the emergence of key universal traits underlying preferences and
­influencing political attitudes and decisions which work through the structure of
the brain (see below) and the central and peripheral nervous systems. Moreover,
traits transferred by individual’s genetic inheritance show considerable variabil-
ity; some individual differences in political orientation and reaction to specific
36 H. Müller

e­nvironments are probably inherited: “Individuals with different traits may


respond differently to the same trigger, just as individuals with the same trait may
respond similarly to different cures [sic!]. In essence, part of an individual’s trait
may include inclinations how to best interpret the environment; some individu-
als will see threat where others see opportunity” (Hatemi and McDermott 2011a,
p. 25). To understand political behavior in general, knowledge of the universals is
essential. To understand single cases of decision making at the microlevel, recog-
nizing individual differences is necessary. I am interested here in the big picture,
and thus focus on the universal characteristics of human sociality.
Human beings, compared with all other species, need an extraordinarily long
development period to grow up to a degree where they are capable of surviving
on their own. For one and a half decades they are relatively helpless and need
protection and provision of food and other necessities by adult persons. Not only
their bodily competencies need this long period of childhood and adolescence to
achieve full strength, their brain also needs this long period for full development
and, in addition, for mastering the content of cultural knowledge for coping with
the challenges of life, which is the outstanding characteristic of our species.
To survive this long “under-age” period of life, humans must be embedded in
groups (of variable size, see below) which care for them. This necessitates cer-
tain attributes in our “genetic hard wiring” which we do not share with all spe-
cies on earth, nor with all vertebrates or mammals, but only with those which,
like us, live in groups whose social coherence provides the necessary environ-
ment for survival. This social embedding may include the possibility of being
adopted if a child’s natural parents die very early, or of being cared for in the
case of handicaps, injuries, illness and the disabilities connected with old age. All
these possibilities have been shown to have existed in early human society and
exist in great-ape groups (de Waal 2015, pp. 69, 83). In other words, apart from
the capability of surviving as individuals (which humans must do—like any other
species—in order to deliver their genes to the next generation), humans need
the capability to help their group survive and to function in a surviving group,
in order to master life individually and as a species through the course of evolu-
tion. Behavioral traits (and their biophysical substrate) that foster group cohesion
and strength are a condition for evolutionary success of any social species (more
below). Brian Skyrms has shown in a series of evolutionary game simulations that
cooperative traits related to fairness/justice beat selfishness in the “competition
for fitness” (Skyrms 2014).
If this assumption holds true, we should find behavioral regularities selected
by the necessity of functioning in a group and making the group function in
non-human species which are also “social”. Most prominently, we should find
2  Justice from an Interdisciplinary Perspective 37

s­ imilarities with our closest relatives, the great apes, and these similarities should
even extend to attributes of the brain, as far as it has been already deciphered.
Evolutionary biologists (Bekoff and Pierce 2009), primate researchers (de
Waal 2009; Yamamoto and Takimoto 2012) and anthropologists (Boehm 2001)
have explained the competitive advantages of species living in social communi-
ties which result from fairness rules concerning distribution of food, punishment
for unruly behavior (Brosnan and de Waal 2012), and accepted rules for making
decisions in the group, whether they are more hierarchical or more egalitarian.
Such rules (from simple to complex) were found in an astonishing array of social
species ranging from cleaner fish through coyotes, wolves and crows (Bekoff and
Pierce 2009) to our closest relatives, the primates, notably the great apes, and
finally to early human societies (Boehm 2001).
Among the great apes, chimpanzees and bonobos are our cousins. We share
a common ancestor, and we share certain traits in behavioral patterns and brain
structure with both, even though the two species are different. Chimpanzees live
in patriarchal societies, are strictly hierarchical, relatively competitive and violent
(but with rules) internally, and strongly violent towards other groups of the same
species. Bonobos live in slightly matriarchal societies, are more inclined to solve
internal conflict non-violently (with the aid of frequent sexual intercourse in the
service of conflict management and resolution) and, while careful to protect ter-
ritorial borders, are inclined to fraternize with bonobo outgroups rather than make
war on them (de Waal 2015, pp. 24 f., 92 ff.).
As de Waal observes, these great apes, like humans, strive for power, secu-
rity, and affection from others, love sex, defend their territory, and appreciate
trust and cooperation (de Waal 2015, p. 29). We also find elements of a sense of
justice/fairness in these species. It starts with “inequity aversion”, the disinclina-
tion to tolerate unfair (unequal) treatment in distribution situations (de Waal 2015,
pp. 30 f.). It appears that we share with the chimpanzee a disposition to strong
intragroup competitiveness, balanced by the striving for intragroup cooperation,
and with the bonobos a very strong disposition to empathy, based on the VEN
neuron type, which both we and they possess (de Waal 2015, pp. 112 ff.).4
Chimpanzees and bonobos both display clear behavioral patterns concern-
ing food distribution (de Waal 2015, p. 170). Chimpanzees principally share
meat gained from hunting. Successful hunting is followed by loud calls from

4This does not by any means imply that chimpanzees are not empathic. They are. Inter
alia, experiments have shown that chimpanzees prefer to share food with a group member
observing them when they could have enjoyed it alone (de Waal 2015, pp. 165 f.).
38 H. Müller

the ­hunters, signaling the imminent feast. Concerning “vegetarian food” (fruits,
leaves, branches), by contrast, the possessor of the food distributes it. However,
other group members—even alpha individuals—start begging, and usually the
possessor will hand over part of the food to other group members.5 Approach-
ing special places where food is located (e.g., in captivity), the social ­hierarchy
decides on the sequence in which individuals are admitted to the source. In
­bonobo societies, female individuals, according to their rank order, approach first.
Even leading males come later (de Waal 2015, pp. 108 f., 175 f., 260).
Implementation of justice is also an important element for reducing the degree
of (violent) conflict in a group. In chimpanzee and bonobo societies, older indi-
viduals (not necessarily the actual alpha members) act as arbiters in intragroup
conflicts—notably conflicts where violence is actually used or threatened to be
used—and excel by their complete impartiality (if friends or close relatives are
involved, they are not favored) (de Waal 2015, pp. 34 f., 67 f.).
Altogether, in the world of primates we find the characteristic ambivalence
which we know from human society: The social world is a world of competi-
tion (which can become very tough and cruel), but on the other hand it is also
an environment with traits of community, where norms of appropriateness apply,
sympathy and help from others can be expected, and isolation and loneliness of
the individual is a deviant—pathological—situation (de Waal 2015, p. 43; Proctor
and Brosnan 2011).

5As an amateur bonobo observer, stimulated by de Waal’s imposing studies, I regularly


watch the quite sizable bonobo community in the Frankfurt Zoo. Two recent observations
confirm de Waal’s propositions: In the first episode, a very young individual, sitting close
to his/her mother, was holding and eating a banana. An older, very senior female (possi-
bly the alpha) approached and showed her interest in eating the banana. Rather than tak-
ing it, it started begging the little one for a piece. The baby reacted in the cutest possible
way. It took a bite and transferred it with a kiss into the mouth of the senior. She kissed
back and all three apes smiled at each other. In the second episode, an older female was
holding a branch with apparently quite delicate leaves. When she let go of it for a moment
an adolescent male jumped from a tree stealing the branch. The female shouted and pur-
sued the perpetrator. Even when he let go of the branch she pursued him, caught him and
hit him several times but without inflicting wounds. The mother of the adolescent watched
the scene without any reaction. The adolescent sat in a corner, not even approaching his
mother for consolation. In the first episode, food distribution rules were observed by all
three participants, even the very young one (and how charmingly!). In the second episode,
the rules were violated, and retributive justice followed. The mother did not interfere, thus
putting the rules before kinship. And even the perpetrator showed what could be interpreted
as signs of remorse in the end.
2  Justice from an Interdisciplinary Perspective 39

Many primates, not only our closest cousins, share the capability to cooper-
ate, a strong aversion against inequality, a concern for status (recognition), and an
inclination to observe social rules (for a hierarchical order of status, food distribu-
tion, reciprocity and alliance building) that helps mitigate the possibly devastating
consequences of status competition and inequality aversion within social groups
(Proctor and Brosnan 2011).
Looking at more recent work in the field of anthropology, we find strong par-
allels of early human social life to primate societies. Charles Boehm described in
great detail the development of food-sharing rules and how the ambitions of very
strong individuals have been tamed by the emergence of egalitarian practices and
norms in human hunter-gatherer societies (Boehm 2001). He also demonstrated
that deviant behavior has been punished by shaming, blaming and temporal isola-
tion, while persistent deviants who threaten the integrity of the group have suf-
fered expulsion or even the death penalty (Boehm 2001, 2012).
What applies to primates from an evolutionary perspective applies to early
human society as well: in addition to the individual capability to survive, the
group’s capability to survive is decisive for successful evolutionary develop-
ment, as the group, in turn, is the necessary condition for the individual’s sur-
vival. Group survival depends on viable and predictable relationships within the
group, where competition, cooperation and mutual care must be balanced. The
balance ultimately hinges on valid rules of justice/fairness based on mutual rec-
ognition, reciprocity, practices of sharing and care, and punishment of inappropri-
ate behavior. All these norms and practices are instantiations of the principle of
“suum cuique”, which appears to be interculturally accepted as the highest and
most general principle of justice, whereas the specific substance of “suum” and
“cui” varies considerably within and between cultures.6 But the existence of such
rules removes many conflict triggers from society as it combines a shared sense
of “appropriateness” with the feeling that individuals, independently of their par-
ticular status in the group, will get their due, that deviations from the norms will
be corrected, and that wrongdoers will be punished. Justice, order, and group
coherence are thus intimately connected (de Waal 2015, p. 304 ff.).
These aspects of justice in societal species are likely to relate to four evolu-
tionary functions:
First, to keep the largest number of group members alive in order to have a
“reserve of individuals” in hard times and, more immediately, to be capable of
resisting attacks by predators from other species or by rival groups of the same

6For an intercultural discussion, see the contributions in Polylog 3 (2001).


40 H. Müller

species in the competition for the territory in which the group lives. Rules for
sharing food are essential. It has to be emphasized that this does not necessarily
mean equal sharing. In many social species, alpha individuals eat first and obtain
the best pieces of food, yet weaker individuals are not denied. The sharing func-
tion serves to prevent group members from starving and to provide enough food
for next-generation group members to grow successfully. Caring for children
as a collective task (Hrdy 2010) including, just in case, the practice of adoption
as mentioned above, serves the same general function, which deviates from the
templates of both utilitarian egotism of the individual and of the “selfish gene”.
Christopher Boehm also argues that food sharing (notably applying to meat, with
its significant protein supply) evens out survival conditions among group mem-
bers between the strongest and the weakest. He also notes that sharing extends
beyond the narrow kinship group and includes non-relatives in the band (Boehm
2001, pp. 184 ff.). All this, he emphasizes, favors more altruistic groups in inter-
band competition (Boehm 2001, pp. 218 ff.).
Second, keeping the group effective (decision-making). Social animals have
and early human societies had distinct rules concerning how to make decisions.
Primate societies are hierarchical in various ways, but it appears that it would be
too easy to ascribe decision-making power only to the chimpanzee or bonobo
alpha animal. Rather, primate researchers observe various coalitions on which
even alphas have to rely. Human hunter and gatherer societies as well as agri-
culture-based tribal societies are more egalitarian. Boehm argues that apart from
the “lust for power”, which he sees as a natural trait in (mostly male) humans,
and the readiness to (reluctantly) submit to a superior “alpha” in order to avoid
harm, there is the equally strong desire to preserve the individual’s autonomy
against others’ aspiration for dominance (Boehm 2001, pp. 67, 163 f.). Using a
broad spectrum of historical and ethnographic evidence, he maintains that these
societies have found ways of neutralizing this aspiration, and have helped nature
in favoring the selection of the genes of more altruistic and empathic individu-
als by treating strongly deviant “big egos” through ostracism or even execution
(Boehm 2001, pp. 27 f.). Human hunter and gatherer societies are more egalitar-
ian; the development of hunting tools for killing game produced an equalizing
effect of “political” rivalry comparable to a pre-weapon competition based on the
individuals’ raw physical strength (Boehm 2001, pp. 180 f.). Decisions are mostly
discussed among the (adult male) members of the group/band and require con-
sensus in the group. These modes, internalized by group members, have proven
effective enough to permit the group to survive.
Third, enforcing rules (punishment). The emotions which accompany the posi-
tive experience of being treated justly and the negative emotions connected with
2  Justice from an Interdisciplinary Perspective 41

perceived unfairness serve important functions both for the individual and for the
group. They help the individual get what he/she needs for survival and they help
the group to stick together and maintain the bonds needed for the collaboration
that is essential for survival (Keltner et al. 2006). Retributive justice (Wenzel and
Okimoto 2016) is observable across social vertebrate species (Proctor and Brosnan
2011, pp. 55 f.). Punishment follows the inappropriate application of force,
for example when young wolves, coyotes or dogs are punished for a dispropor-
tionately sharp bite during play, or when chimpanzees or bonobos hurt another
group member severely in a rivalry or sex competition situation, or when a group
member appropriates food to which another member had a justified claim (de
Waal 2015, p. 219; for findings concerning canids, cf. Bekoff 2001). Even supe-
rior group members (alphas) may suffer punishment in such situations (de Waal
2015, pp. 215 f., 219 f.). De Waal reports an episode in a bonobo group where
a high-status male, by approaching a female in whom he was interested was ter-
rifying her baby and thus endangering it. The event led to one of the very few
instances of violence in the group, with highly emotionalized members ganging
up against the perpetrator because of his “crime” (de Waal 2015, pp. 109 f.).
Punishment may range from vocal disapproval through minor physical ret-
ribution to the ultimate horror punishment, expulsion from the group. Isolation
from the community can cause death in the wilderness. Individuals in social
species are primed to avoid this fate: The human brain, for example, reacts very
strongly to experiences of isolation. Lack of success in intimate relations, or their
breakdown, or the loss of a very close individual creates stress and anxiety. In
extremis, the whole motivational system may collapse or may focus on aggression
as a means of gaining recognition and group membership (Bauer 2010, pp. 39 f.,
63 ff., 75 ff.). This explains the key role of “recognition justice”, the claim to be
accepted as a worthy member of the club, in the order of human justice claims
as priority “suum cuique”. It also helps understand the devastating psychological
impact of successful mobbing activities in modern social interactions.
Charles Boehm documents punishment practices against (powerful) devi-
ants on a very broad empirical basis (Boehm 2001, Chaps. 3 and 4). He assumes
that in hunter/gatherer societies, deadly punishment of violent and psychopathic
deviators has shifted the human gene pool towards the more altruistic, moral and
cooperative side (Boehm 2012), an effect he also ascribes to intergroup compe-
tition/selection, in which groups with strong coherence (based on altruism and
justice/fairness rules) fare better than their competitors composed of egoists
(Boehm 2001, Chap. 9). At any rate, punishment of inappropriateness has cer-
tainly served another important function, namely preservation of the coherence
of the group.
42 H. Müller

Fourth, keeping the group together. This is no trivial task given the inevita-
ble and in many regards functionally beneficial role of intragroup competition
and conflict. These centrifugal forces had to be kept in check in order to preserve
group cohesion as the key to both group and individual survival when facing three
challenges:
The first challenge emanated from predators which could jeopardize the sur-
vival of the group in the early phase of human evolution.
The second challenge was the occasional encounter between different human
groups which could result in violent and deadly competition (Boehm 2001,
pp. 158 f.). The evolutionary “genetic response” is very clearly reflected in the
finding of De Dreu and others that the production of oxytocin—one of the mes-
senger substances triggering feelings of wellbeing and happiness—in the human
brain is activated more frequently when mutual trust and close collaboration in a
group is reaffirmed while the group is confronted with a rival or hostile outgroup
(De Dreu et al. 2010). Mutual trust is a result of being treated fairly in your own
group. On the one hand, the oxytocin level rises as a result of such experiences
and, on the other hand, they enhance mutual trust (Bauer 2010, p. 47).
The third challenge is the “stag hunt” temptation in joint hunting. “Stag hunt”
is a paradigmatic game theory construction in which individuals of a hunting
band are tempted to desert the common project of hunting a stag for the easier
prey for the deviating individual of a hare. Of course, humans would hunt the
hare if they were completely egotistic utilitarians and the group would break
apart. That hunter/gatherer bands survived the stag hunt trap for 150,000 years
shows that humans, through genetic disposition, socialization and maintenance of
rules, were capable of resisting this temptation.
In response to all three challenges we see dispositions which favor support for
the common good over individual utility. These altruistic/communal dispositions
underlie a sense of duty that is offset by a consciousness of rights (e.g., in food
sharing). The balance of duties and rights represents, of course, a central aspect
of justice/fairness. Reciprocity is another justice-related behavioral pattern which
human society shares with primate societies. Primate reciprocity appears in food
sharing and grooming: favors are acknowledged by returning favors, often with
considerable temporal delay (de Waal 2015, pp. 175 f.). The most basic rules we
are inclined to observe (most of us most of the time) and which shape the way
justice/fairness is internalized genetically and culturally in primate and human
groups, and which, from early human society on, have become institutionalized,
are reciprocity, impartiality of arbitration, rules of sharing, and rules of participa-
tion (de Waal 2015, p. 49; Boehm 2001, 2012).
2  Justice from an Interdisciplinary Perspective 43

The length of primate evolutionary history including pre-human forms is


estimated to be 6 million years. Proto-human and human evolutionary history
encompasses between 1.8 and 2.8 million years, long enough for selecting a
genetic disposition adapted to group life, at a time when dispersed small groups
living at considerable distance from each other had to reproduce by incestuous
practices. This inbreeding created the conditions for the relatively rapid selec-
tion of intergroup differences in genetic dispositions. Even the gathering/hunting
group/band stage of at least 150,000 years could be enough to establish relevant
social dispositions in the human brain (Boehm 2001). It is not necessary for the
whole population to have a strong prosocial disposition: Evolutionary simulation
games have found that groups are adaptive with a mix of members of altruists,
“punishers” (keen to avenge breaches of the rules), egotists and (isolationist) rul-
ers, as long as the first two types are prevalent (Fowler et al. 2011, p. 210).

2.4.2 The Justice Disposition in Our Brain: What Can We


Learn from Neuroscience?

Neuroscience/neurobiology is among the most dynamic scientific fields (for an


introduction see Damasio 2005). Progress is amazing. Some of the more relevant
findings relate to the subject matter of this chapter.7 Key emotions have no single
center in the brain (which was an early hypothesis), but emerge from the “coop-
eration” of several regions which can communicate neuronally or biochemically
(for a survey of the roles of different parts of the brain see Schreiber 2011). Bio-
chemical connection means that regions in the brain trigger the flux of biochemi-
cal “messenger” substances (e.g., hormones) which, in turn, cause positive or
negative feelings (e.g., joy, frustration, aggression or disgust). What we may call
the “sense of fairness” (or justice) for want of a better expression is one of these
structures of cooperation (Nam et al. 2017). As de Waal remarks, the mere fact
that humans care about justice would not be there if a disposition to do so were
not anchored in their genetic hard wiring (de Waal 2015, p. 44).
Being justly treated, in other words obtaining what people believe they are
entitled to, or simply receiving the recognition they desire (and need) are among
the experiences—all connected to positive relations to other human beings—
which trigger the production and transmission of the messenger substances

7SeePinker (2011, Chaps. 8 and 9), and Hutchison and Bleiker (2014) for useful references
from neuroscience from an IR perspective.
44 H. Müller

(namely dopamine, endorphin, encephalin and oxytocin) that cause feelings of


desire, happiness, sympathy, warmth, and so on. Experiences of being treated
unjustly, of being denied what is due or being treated with contempt instead of
respect cause feelings of resentment, aggression or even physical nausea (­Henrich
et al. 2001; Singer 2007; Pinker 2011, p. 858). Experiments have also found that
the perception of unfairness triggers strong emotions and willingness of the per-
son concerned to strike back against the perceived source of unfair treatment
(Svirastava et al. 2009). These findings help to understand the everyday experi-
ence that both the satisfaction of being treated justly as well as the frustration
of suffering perceived injustice are connected to strong emotions, in the latter
case stimulating even violent reactions (Mercer 2010). Pinker describes in great
detail how the “wrath system” which we share with our vertebrate relatives fol-
lows registration of the experience of frustration or threat, and triggers defensive
or offensive aggressive reactions. He also shows how this system is connected
to a distinct second aggression-stimulating structure in the brain that is activated
in competitive constellations and uses testosterone as the messenger substance.
If the fighting escalates, the strategic use of violence degenerates into violence
guided by blind wrath (Pinker 2011, pp. 736 ff.). Since the competitive disposi-
tion relates to the individual’s status and hence to the recognition dimension of
justice, it is another path through which justice concerns may lead to the readi-
ness to apply violence (see also Mercer 2010).
Neuroplastics, one of the branches of neuroscience, investigates how not only
neuronal connections but also certain aspects of the brain’s biochemistry are com-
pleted only after birth and as a result of experiences in early childhood (David-
son et al. 2000). From this research, it appears that the genetic dispositions which
brain researchers have now located need a kind of interactive development in
which the young brain requires positive stimulus from an empathic and loving
environment to grow to full potential, not only in its cognitive and reflective but
also in its emotive, moral and social capacities. Early feelings of being cared for
(the equivalent of feelings of “recognition”) contribute to the capability to pro-
duce and trigger the flow of messenger substances which cause “good feelings”
of happiness. Equally, the capability to develop empathy with others also appears
to depend on the experience of being treated with empathy. Individuals who do
not have these positive experiences in early childhood appear to develop deficits
in this regard (Bauer 2004, 2010, pp. 54 ff.; for an excellent overview see Druck-
man 2008).
What is intriguing is the close connection between fairness/justice and
“recognition”, and the key role this complex plays in switching the human
mind between happiness and readiness to enter into conflict. Nancy Fraser has
2  Justice from an Interdisciplinary Perspective 45

p­ ostulated recognition as the third type of human justice concern, apart from dis-
tributive and participative concerns (Fraser 2008). Axel Honneth puts recognition,
or lack thereof, at the root of social and political conflict (Honneth 2010). From
an IR perspective, Reinhard Wolf (2017) has emphasized the striving for respect
shown by governments of all kinds and the negative reactions once such respect
is denied. These deliberations are seen to be accurate in the light of what we can
learn from neurobiologists and development psychologists, as is Ned Lebow’s
insistence that the “spirit” (which can be understood as the need for recogni-
tion) is responsible for most conflicts between human collectivities (Lebow 2008,
2010).8
As Joachim Bauer and other authors show, the motivational system of the
human brain is programmed to strive for close relations with other people and
with the group in which individuals live and where their identity is deeply rooted
(Insel and Fernald 2004; Bauer 2010). People lacking this form of intense bond-
ing frequently display psychological deviance. These insights should not come as
a surprise, because humans can only survive when they are embedded in social
groups, and the ability to achieve this condition for survival requires robust dis-
positions in human genes. As neuroscientists tell us, precisely these dispositions
exist. The desire for justice, and the positive and negative reactions depending on
whether the individual is treated justly or not, is an important element of these
dispositions, because just treatment confirms that group membership is a condi-
tion of the individual’s life.
From my readings, I would speculate that the justice aspect of recognition is
not just a part of the whole complex that connects justice issues to emotions, but
the most fundamental element because of—as argued in the previous section—
the central importance of being accepted by the group for individuals to survive.
I hypothesize that the recognition issue is also the element that drives emotions in
the realms of distribution and participatory justice. Being afforded what (­people
believe) is their due signals recognition of the individual by the person or the
group or the system that manages the distribution of the good in question. To be
involved as a participant in decision making also signals recognition of the person
as being entitled to play a meaningful role in the group. All these are essential
aspects of the individual-group relationship, in which the individual has the great-
est stake, and toward which he/she is hard wired to strive, which is a major com-
ponent of our emotive and cognitive apparatus (see also Dutton 2006).

8On the meaning of recognition in international relations, see Daase et al. (2015).
46 H. Müller

The relation between the sense of fairness/justice and empathy appears to be


of particular importance: empathy is the basis of the capability to have active feel-
ings of alter-justice, that is, to empathize with positive or negative justice experi-
ences of other people (Mathur et al. 2010).9 The capability for empathy rests most
fundamentally in a specific type of neuron in our brain, the mirror neurons. It ena-
bles us to quasi-simulate in ourselves what we observe another human or animal
doing, experiencing, enjoying or suffering (our capacity to imitate is also derived
from these neurons) (Bauer 2005; de Waal 2015, pp. 182 ff.). Measurements of
brain activity have shown that in experiments people react positively to satisfac-
tion of the justice concerns of others and negatively to frustration of their justice
concerns. Comparisons show that these empathic brain activities are somehow
weaker than those occurring in connection with the individual’s own concerns,
but are still clearly measurable. The same asymmetry has been found between the
strength of empathy towards ingroup members as compared with members of an
outgroup (Nam et al. 2017, p. 293; Hein et al. 2016; Cikara et al. 2012).
If the neuroscientists tell us about our disposition to be motivated by justice
and to react to its manifestations, developmental psychologists show how these
dispositions are activated and develop in very young humans. Notably Michael
Tomasello’s work on early childhood has shown that empathy emerges very early
in life, and that the first indications of a sense of justice manifest themselves in
some individuals as early as 18 months. Make no mistake: children can be ego-
tistical, but all the same they recognize rules of reciprocity and of sharing and
show emotions in connection with satisfied and frustrated claims not only by
themselves but by their peers as well. Children of four to five years, left playing
without supervision, have been observed adopting third-person justice perspec-
tives by prompting peers to share toys fairly with other children (Arsenio and
Killen 1996). The research by developmental psychologists appears to imply that
the dispositions that enable us to feel a “sense of justice” are activated early in
and through social relations, and develop over the whole of childhood and adoles-
cence (Tomasello 2009).
Combining the findings of the two sciences, neuroscience and developmental
psychology, suggests that our morality, to which a “sense of justice” is central,
has a biological basis which unfolds its potential in interactions with the human-
social environment. The double evidence annihilates the notion of humans as cold
and calculating utilitarian egotists. Of course this attitude exists and is also an

9The capability for third-party fairness perspectives has also been found in bonobos and
chimpanzees (de Waal and Lanting 1997; Brosnan et al. 2010).
2  Justice from an Interdisciplinary Perspective 47

expression of a disposition based in our “hard wiring”. But it is only part of the
whole (see below). To confuse this part with the entirety of human dispositions
leads to deficient anthropological assumptions and, as a corollary, misinformed
social and political theory.

2.4.3 The Death of “Economic Man”: Evidence


from Recent Work in Sociology, Behavioral
Economics, and Neuroeconomics

Sociologists (Liebig and Lengfeld 2002) and experimental economists (Loewen-


stein et al. 1989; Fehr and Schmidt 1999) have verified in many experiments that
people in games simulating distributive conflict and dilemmas deviate from the
model of utility-maximizing behavior in favor of rules of fair distribution. Soci-
ologists and social psychologists have proven that such justice concerns apply to
the individual as well as to collectives. These collectives can be small, such as the
family or a peer group, mid-sized like a university, a city, or a soccer club, or may
be large, such as a nation, an alliance, an ethnicity or a religion. Grouping frames
can be structural and enduring, such as the groups just mentioned, or ad hoc and
short-lived such as an experimental group put together by a social scientist. Even in
these artificial groupings whose constructed character is known to all participants,
the psychological, neuronal, and biochemical processes run with the same serious-
ness as in “real life” in the direction of we-feeling and empathy within the ingroup
and the feeling of difference and distance towards outgroups (Pinker 2011, p. 773).
Social groups develop rules for dealing with justice issues among their mem-
bers which instantiate justice principles. Sociological justice research has identi-
fied the intracultural as well as intercultural diversity of these justice principles.
This aspect is of particular relevance for the analysis of conflicts that emerge
from conflicting justice principles postulated by different actors, and from the
different application of the same principle to specific situations (Kals and Maes
2012 document the breadth of this research).
Sociologists have also found that one of the most popular philosophical solu-
tions to the justice problem, John Rawls’s Difference Principle is not supported
by real world people’s attitudes. Rawls’s Difference Principle permits diverging
from strict equality “so long as the inequalities in question would make the least
advantaged in society materially better off than they would be under strict equal-
ity” (Lamont and Favor 2017). Rawls postulated that inequality is legitimate only
to the degree that it fosters disproportionate gains for the poorest. The most popu-
lar idea about justice as revealed in polls is a combination of the justice ­principle
48 H. Müller

of need (people should be granted the basics for their existence) and the justice
principle of merit (individuals contributing to the common good should obtain
a share proportional to their contribution) (Frohlich et al. 1987; Frohlich and
Oppenheimer 1992; Frohlich 2007).
This combination is indicative of a certain flexibility of individuals in adher-
ing to several justice principles. They may combine them, but they may also
switch between them, depending on which one is more favorable for themselves
or for their ingroup in a given situation. This opportunism of choice appears to
be less a matter of conscious strategic choice in a selfish-utilitarian frame than of
an intuitive, pre-cognitive decision which receives justification only after it has
been taken, and it does not negate the existence of an inherent “sense of fairness”
which is at the root of even this selfish version of justice behavior as well as of
more altruistic phenomena (Valdesolo and DeSteno 2008). The psychological
phenomenon called “self-serving bias” is common (Trivers 2011).
In experimental (behavioral) economics, the paradigmatic test for a “sense
of fairness” is the ultimatum game (Fehr and Schmidt 1999): A finite number of
chips or coins, say, ten, is given to a player who has to offer a share to a second
player. If the partner accepts it, this distribution is implemented, and each player
keeps the money that the distribution leads to. If the second player refuses, nei-
ther of the players receives a reward. According to economic rationality, the sec-
ond player should accept any distribution which brings a gain greater than zero,
and the first player should not offer more than the smallest possible sum. In fact,
second players refuse—emotionally—what they regard as “unfair” offers (­usually
offers below a third of the sum available). Most of the time first players offer
forty to fifty percent. This means that not only do second players betray a self-
related sense of appropriate fairness, but first players either anticipate that second
players will act according to a fairness norm or are acting out of their own feeling
that a fair offer is appropriate. The ultimatum game findings held up across cul-
tures in a major comparative study featuring societies from Latin America, Papua
New Guinea, Mongolia and Africa. At the same time, cultural and market struc-
ture differences contribute to considerable variation in behavioral detail (Henrich
et al. 2004).
Since the original findings were published, the rapidly growing field of experi-
mental/behavioral economics and neuro-economics has buried “economic man”
for good. Cooperative impulses, internalized norms of fairness with a strong root
in reciprocity, empathy, and, above all, the embedding in social groups contradict
the orthodox idea of unfettered utilitarian individualism, and deviate ­significantly
from neoliberal and neoclassical orthodoxy (Gintis et al. 2005). The entire range
of motives on the basis of which humans act presents an amalgam of selfish and
2  Justice from an Interdisciplinary Perspective 49

a­ ltruistic, rational-strategic and emotional drivers for economic and political choices
and a considerable influence of the cultural and institutional environment, including
the incentives it offers to actors (cf. Glimcher and Fehr 2013; Haidt 2007).
We are accustomed to thinking of politics, notably high politics related to
conflicts of interest, peace and war, as distinct from ethical and moral considera-
tions to which justice issues belong. We are equally accustomed under rational-
ist hegemony to think of this realm as the fiefdom of cool strategic calculation,
remote from emotions. But if the sense of justice is part of both our genetic and
our cultural inheritance (de Waal 2015, p. 63; Haidt 2007; Lamont and Favor
2017), then from the very beginning it has been implausible that politics, as a
central area of human activity, could be isolated from its influence. In the end,
this is an empirical question, and the findings, as far as they exist, point in the
direction that justice matters.

2.5 Justice, War and Peace: The Ambivalence of the


Human Inheritance

2.5.1 The Ambivalence Inside

The impact of the justice issue in society and politics hinges on the ambivalent
and contradictory predispositions of the human mind. Here I follow Boehm’s
summary of this problem. Accordingly, we have inherited the disposition to domi-
nance, submission, and resentment of dominance side by side. Together with our
dispositions for prosocial attitudes such as empathy, compassion, a sense of fair-
ness, and the drive for cooperation and community, we harbor in our brain struc-
ture dispositions to egotism, nepotism (that is, to show prosocial behavior and
accompanying emotions only to a small ingroup) and universally-directed altru-
ism. These dispositions are stratified as they manifest themselves in decreasing
strength the wider the circle of possible beneficiaries is. All this is not simply cul-
turally constructed, but “anchored in human nature” (Boehm 2001, pp. 225 ff.; for
recent empirical support see Magraw-Mickelson and Gollwitzer 2018). Boehm
summarizes:

The evolutionary saga ends with a species altruistic enough to cooperate quite
efficiently in large or small groups, but at the same time prone to competition and
conflict…Our most amazing accomplishments are complex societies that verge on
being antlike in their divisions of labor and organic cooperation – and also in their
unusual capacity to go to war (Boehm 2001, p. 254).
50 H. Müller

It goes without saying that, like all genetic dispositions, the ones discussed here
are distributed among people unequally: Most individuals have all of them, but in
different strengths (McDermott 2014, p. 558). In addition, the preceding discus-
sion indicates that our dispositions are varied and contradictory enough to present
the basis for “radically different behavioral outcomes at the level of the pheno-
type”, because they make an almost unlimited variety of combinations possible
(Boehm 2001, pp. 236 f.).
One particular dark side of our capability to feel and think in justice terms
is our inclination to frame justifications in terms of justice arguments when we
explain why we do (or have done) harm to others. They can be framed as deal-
ing out retributive justice to a rule-breaker (including revenge); justifications can
also be derived from the inherently unjust nature of our opponent (such as the
“unjust enemy” of Immanuel Kant [Müller 2014]). From there it is only a small
step to the argument that we were justified in doing harm to a person to prevent
or limit harm being done to third parties (protection) or ourselves (self-defense)
(Baumeister 1997).
In order to understand the power of the justice factor in politics, it is essen-
tial to overcome the methodological individualism that still permeates the social
sciences. There is still intense discussion about the possibility of states being
“actors”, of groups having collective identities or of the masses having shared
feelings. For sociologists or economists versed in group experiments or for neu-
roscientists measuring brain activity during collective experiences the issue has
long been settled. In recent years, neuroscientists have identified practices that
stimulate regions in the brain whose neuronal circuits trigger particularly intense
we-feelings simultaneously among entire groups of participants. These involve
synchronous movement or vocal actions such as marching, dancing, singing,
rhythmic shouting (e.g., of slogans), etc. (Farmer and Maister 2017, pp. 338 ff.).
Taking part in a mass demonstration or in the vocal support of the home team
in an exciting football match creates an emotional identity that can be mobilized
for good or bad—Hitler knew that all too well (Crawford 2014, p. 536) as did
the perpetrators of the Rwanda genocide (Ross 2014). At a more complex level,
emotions can be collectivized by institutionalization (Crawford 2014). Collective
emotions in this sense—the uniform focusing of emotions by many individuals on
the same target—is characteristic of justice claims by groups adhering to identity
concepts such as nation, ethnic group, religion, or ideology. These are possibly
the most devastating grouping frames in terms of their capability to direct com-
mon identity into collective violence against outsiders (Pinker 2011, pp. 824 ff.).
Collective emotions can thus also be ascribed to, and mobilized by, states (Mercer
2014).
2  Justice from an Interdisciplinary Perspective 51

The collective pursuit of a group’s justice claims governs intergroup compe-


tition where the potential of aggressive emotions is high (Pinker 2011, pp. 767,
772 f.). The diminishing strength of emotions from individual claims through
ingroup claims to outgroup claims contains the potential for a fateful reversal in
the case of intergroup justice conflicts: We deny the outgroup the right to make
justice claims at all, and frame them as enemies who deny us (our ingroup) what
is rightfully ours. The mechanism of collective “evilization” triggers escala-
tory emotions that end in a “we or they” showdown, where only the complete
destruction of the enemy will bring justice (Monroe et al. 2000; Müller 2014).
The process is a particularly dangerous variant of the ingroup-outgroup dynamics
analyzed by Henry Tajfel and his collaborators, and is a common element of the
security dilemma, enemy image production and the escalation of conflicts (Tajfel
1982). Understanding of the biological substrate of the ingroup/outgroup distinc-
tion and its evaluative and emotional expression in the human brain has made
considerable advances in the last two decades, even though many questions have
yet to be answered (Jost et al. 2014; Iyengar and Westwood 2015).
However, the path from “altering” a person/group as part of the process of
identity building to evilization, that is to say, drawing the line for violent conflict,
has not been determined with finality. As de Waal found in his studies on bonobos
(see above), even among primates a clash is not inevitable when two groups meet
or when an individual approaches a foreign group. Being “other” does not auto-
matically lead to being designated an enemy, as Tajfel himself observed (Tajfel
1982, p. 16; see also Turner 1978, p. 249; Brewer 1999, p. 434).10 As Boehm
reminded us, empathy and the sense of fairness can extend beyond the core or
wider family and include unrelated persons. In a much broader historical con-
text, it is obvious that humans have the capability to imagine bonds and extend
borders, possibly not completely arbitrarily, but with a high degree of flexibility.
Our innate capability to feel empathy and even altruism towards other people is,
in principle, almost unlimited (Batson 2011; Pinker 2011, pp. 859 ff.). For that
reason, the triadic structure proposed by Boehm, the differentiation between ego-
tism, nepotism and altruism should not be taken as involving discrete alterna-
tives, but rather as a continuum, in which the range of “altruism” encompasses
the inclusion of a few strangers into a small ingroup and extends through mid-
dle-sized and large groups to essentially universalistic altruism. If this amazing
emotional flexibility of the “expanding circle” which the human brain permits did
not exist, the building of ever larger social and political units beyond people’s

10I owe the suggestion to examine this literature to Una Becker-Jakob.


52 H. Müller

closest kin, for which identity bonds were construed in human history, would
not have been possible (Singer 2011). That the bonds (and the emotions which
they nurture) become less intense the wider the scope and the more people they
­encompass might be generally true, but given the enormous intensity of national-
ism or common religion as a bonding emotion and the motivational force to use
violence in its service shows that scope and intensity are not perfectly correlated,
and that even the widening of the circle of empathy, we-feeling, and justice still
contains the dark side of excluding those who allegedly don’t belong to the group.
It is for this reason that studying techniques and practices that prevent the
alienating consequences of ingroup/outgroup dynamics or even roll back preju-
dices against the “other” are of utmost importance for peacemaking and peace-
building. Experimental psychological studies have shown that relatively simple
pedagogical practices such as perspective-taking (e.g., writing an essay on a con-
flict from the viewpoint of the other side) change existing brain reactions towards
this outgroup for the better. Synchronous movement with people of a prejudiced
group produce results similar to what these practices engender in homogeneous
groups (see above), thus helping to diminish intergroup social distance. Even
more amazing results have been produced by electronic simulation techniques
which show that the person being studied was handling an avatar from a prej-
udiced social group. The resulting process of identification (and concomitant
prejudice-deconstruction) appears to be related to the simultaneous challenge of
non-conscious (bodily) and conscious (conceptual) parts of the research partici-
pant’s identity (Farmer and Maister 2017, pp. 337 ff.). Another study found that
the asymmetry in empathy between ingroup and outgroup disappeared after a few
instances of experiencing (unexpected) help from outgroup members (Hein et al.
2016). Thus, the plasticity of feelings towards the outgroup offers a promising
approach for tackling the difficult dilemma of contradictory justice claims distrib-
uted across two identity groups. These practices for enhancing empathy towards
groups previously regarded as hostile, alien or unpleasant could help to under-
stand the sources of hostile justice claims and to overcome seemingly unalterable
antagonistic positions in justice conflicts.

2.5.2 The Ambiguity of Justice

Principally, our disposition for justice is not impartial or symmetrical. Our read-
ing of what is fair is biased in a selfish way, individually as well as collectively
(Babcock et al. 1995). Thus we react most strongly when our own individual
­justice claims are concerned (egotism). We are considerably engaged when those
2  Justice from an Interdisciplinary Perspective 53

of our ingroup (our close relatives at the top) are involved (nepotism). And we
have the capability, still measurable but definitely weaker than the first two, to
develop empathy with the justice claims of strangers (including outgroups)
(Boehm 2001, 2012). It is this latter capability on which the pacifying potential of
justice rests. It is the former two capabilities which drive its potential for conflict.
The impact of justice issues on human affairs and political relations can there-
fore apply pressure in two opposite directions. Justice is part of overall moral-
ity and one of the highest moral values. As Pinker demonstrates, morality itself
is ambiguous (Pinker 2011, pp. 923 ff.). Humans build moral communities along
the ingroup-outgroup divide. These moral communities may, but need not, coin-
cide with other bonding characteristics (class, ethnicity, religion, and nation).
Since morality is prone to create absolutes, ingroup-outgroup relations quickly
produce attitudes of alienation, condescension, and hostility. Boehm adds the bit-
terly ironic point that morality might be at the root of the extraordinary capacity
of the human species to engage in large-scale, immensely costly wars: without
morality, individuals could not be shamed into military service, and without altru-
ism, nobody would be willing to sacrifice his/her life for the sake of the commu-
nity (Boehm 2001, p. 254; Rudolph 2017, pp. 174 f.).
It follows that as a central moral principle, justice in politics is also bound to
engender these ambivalent consequences. On the one hand, the settlement of dis-
putes becomes possible, and solutions have a chance of being lasting if and when
they satisfy the justice claims of all relevant actors or are perceived by them as
reasonably just when the outcomes for all parties are compared (Zartman 1997,
2008, pp. 74 ff.). On the other hand, incompatible justice claims or contradictory
justice principles applied to a specific case may lead to enduring disputes and
stimulate high levels of emotion, which make the rational management of con-
flict difficult or impossible and motivate parties to take recourse to violent behav-
ior (Welch 1993; Müller 2013). In the realm of retributive justice, threatening the
perpetrators of atrocities with legal prosecution, for example through the Interna-
tional Criminal Court, may not only sustain motivation to continue violent con-
flict rather than seek compromise, but can also create secondary justice conflicts
through resentment among followers or supporters of perceived arbitrary prosecu-
tion of their leaders, but not those of the opposite party (Porok 2017).
Different ideas about what justice means in general or in specific situations are
possible because our basic genetic disposition for the “sense of justice” does not
determine the substance with which we fill the term “justice” (Druckman 2008).
This “filling” takes place during the long socialization process humans are sub-
jected to, and differs among cultures. Different traditions bring about different
preferences for principles of justice and different ways of interpreting how they
54 H. Müller

are to be applied: culture matters in presenting the frame in which our disposi-
tions take a particular substantive shape during our socialization (Boehm 2001,
pp. 244 f.).11
As a consequence, there are vastly different ideas in the world—and in the
minds and souls of humans—concerning what justice means and how it should
be implemented. The well-meaning attempts of philosophers and religious theo-
rists to develop a supposedly universally valid conception of justice from their
respective cultural traditions are in vain, because they are trapped in a particular
perspective and cannot shake off pluralism of conceptions. Even the most honest
attempt to take an “objective position” can never be certain that intrinsic bias has
not affected cognition, deliberation and evaluation.12 When their ideas become
part of national cultures, such efforts to create a universal theory with cogent
validity may even deepen rifts and stimulate conflict by developing strong dog-
mas that are hard to overcome, thus influencing political preferences and stimu-
lating a missionary drive towards universalization directed against the justice
ideas reigning elsewhere.
There is another area where the human inclination to invest emotions in jus-
tice claims against others can trigger an escalatory spiral of violence: an inte-
gral part of justice is retributive justice. One important merit of the civilization
process is the deprivatization of retributive justice (punishment for wrongdoing)
and its takeover by the state. Nevertheless, people’s feeling of having been hurt,
betrayed, offended, discriminated against, or humiliated by another actor still
drives the desire for revenge (Pinker 2011, pp. 783 ff.) even within states gov-
erned by the rule of law; it is a very dangerous trigger of violence in fragmented
societies where the fragments have strong identities, and it is also strong in the
international realm (e.g., Fattah and Fierke 2009). The lust for revenge is the indi-
vidual emotion which is involved here, and it is coupled with the structures of
wrath and aggression in our brain. It can suppress empathy toward the offender,
and successful revenge can trigger emotions of happiness, notably in men (Singer

11It should be noted, however, that recent research appears to confirm the hypothesis that
genetic dispositions may even influence humans’ inclination towards egalitarian or, alter-
natively, merit-related justice principles. This is not reported to be a strictly determining
influence, but a disposition that makes it more likely that individuals incline towards one
end of the justice-principle spectrum. Individual life experience and—to a much lesser
degree—socialization interact with the genetic disposition and impact on the outcome as
well (Batrićević and Littvay 2017).
12I call this constellation “the cultural uncertainty principle” (Müller 2009, Chap. 3).
2  Justice from an Interdisciplinary Perspective 55

et al. 2006). Fortunately, our genetic inheritance contains still another structure
which makes us inclined to forgive, and thus dampens the impulse to take revenge
when we suffer injustice (McCullough 2008).

2.5.3 Justice, War and Peace

How these ambiguities can combine in an internationally relevant way has been
demonstrated by social psychologists (Platow et al. 2014). They polled citizens
of Australia, New Zealand, and the United States on how the Olympic perfor-
mance of national teams should be measured; the standard measure is the total
number of Olympic medals. While Americans found it bewildering that anybody
could think of anything else than the standard metric, Australians and even more
strongly, New Zealanders, believed that this standard was unfair, and that instead
population size and/or Gross National Product should be taken into account (e.g.,
medals per citizen should be the metric applied). Citizens of the three nations
were in complete agreement that nations should be compared according to a just
standard, but disagreed profoundly on what “just” meant in the given situation,
and each nationality chose the measure that would favor the prestige of their own
nation. What looks quite harmless in this example can become much more serious
in other constellations, of course.
The—largely unconscious—tilting of the sense of justice in our own favor and
its use to place outgroups and their members at a disadvantage is part of what Ste-
ven Pinker has rightly dubbed “the moralization gap” (Pinker 2011, pp. 721 ff.).
Justice as a core value of any moralistic system, and in a consensual or compro-
mise-ready environment favorable for the establishment of lasting peace, can turn
into a tool for creating horrific injustice in the very name of justice, all the way to
genocidal violence.
It is thus not surprising that in his pioneering study on justice and war David
Welch found a strong impact of justice claims and conflicts in most of the major
international conflicts between great powers since 1815 (Welch 1993). Nations
as imagined communities (Anderson 1991) achieve coherence in their national
identities from the feeling that their own ingroup is better than the others. Conse-
quently, their own justice claims (e.g., the claim on territory or for higher status
than others) are seen as justified, while equal or equivalent claims by others are
not. Since strong emotions are attached to these collective claims, compromising
is extremely difficult and leaders who try to commit to compromise risk their rep-
utation, power and—in the extreme case—their life, as Egyptian President Sadat
did in the case of the Camp David agreement and Israeli Prime Minister Rabin
56 H. Müller

did in the case of the Oslo Agreement. Currently, we are watching attentively the
way in which the Greek and Macedonian leaders are experiencing harsh criticism
for their completely reasonable compromise on the decades-old quarrel about the
name of Macedonia. The jury is still out on the outcome.
Justice, one of the noblest traits of human beings, hard wired in the brain and
imprinted into the mind by socialization and constant practice, can thus degen-
erate into the stimulus for the worst instincts that our species harbors. On the
other hand, empathy for the justice claims of others can help enlightened leaders
cut Gordian knots of enduring conflict and find solutions that “do justice” to all
claimants, laying to rest deadly quarrels that had prevailed for so long. There is
no magic algorithm for granting victory to the “better angels” in our mind, as Ste-
ven Pinker put it, and there is no final institutional structure for human affairs that
would reliably cause permanent justice and permanent peace. Rather, outcomes
depend on practices, and the practitioners are humans with their inexorable bifur-
cated inclination to do both good and bad in the name of justice, to make peace as
well as to make war.

2.6 Conclusion

Continuing progress in a variety of sciences will engender a revolution in our own


fields of political science, international relations, and peace studies. The main­
stream has experienced a taste of the ongoing change, as the 2017 Supplement of
International Organization on “The Behavioral Revolution and International Rela-
tions” documents. The explicit aim of this collection of articles is to assess the
“challenge” posed “to rationalist models” by the “behavioral revolution” that has
“swept across the social sciences in the last few decades” (Hafner-Burton et al.
2017, pp. S2 f.). However, as this chapter has shown, the concept of a “behavioral”
revolution presented there falls far short of what is really happening. The authors
of the introductory article and the authors of most of the remaining papers are
seeking ways of integrating insights into empirical human behavior that present
“anomalies” in the perspective of the hegemonic behavioral model of rationalism.
They accept heterogeneous preferences and risk-taking, take the asymmetrical val-
uation of losses and gains identified by prospect theory into account, recognize
the influence of emotions and beliefs, and amalgamate these innovations with the
rationalist model, but in a way that transfers everything new to complementary
aspects of “economic man” (Hafner-Burton et al. 2017). The task is then reduced
to defining the scope conditions under which rationality prevails and using the
complementary explanatory tools to explain extant deviations. Occasionally, it
2  Justice from an Interdisciplinary Perspective 57

appears to dawn on the authors that more is at stake, such as when they state that
findings like motivated reasoning or social preference may “require rethinking the
axiomatic foundations of rational choice itself” (Hafner-Burton et al. 2017, p. 18).
This insight, however, is not borne out in this volume. Rather, it demonstrates a
classic case of Kuhn’s “science in crisis”, in which scholars work hard to integrate
findings into the hegemonic paradigm, while these findings constitute insuperable
contradictions to the same paradigm (Kuhn 1962, Chap. 7).13
In fact, we are not facing just a “behavioral revolution”, a term which sug-
gests a change in methods from deductive to inductive research, based on empiri-
cal insights into human behavior gained by new methods. We are confronted with
an ontological revolution that forces us to reconstruct our image of the human
(Crawford 2011). As suggested at the end of the previous section, the human
mind is a mixed bag, and its contents are involved in perception, evaluation, and
decision making. Morality and emotions always interfere with selfishness and
rationality—no supposedly rational cognition or decision occurs without the
involvement of emotions (Ellsworth 2014; McDermott 2014, p. 558), even when
the prefrontal cortex does most of the work. A new standard model of behavior
has to start from this mixed bag and must be freshly constructed from scratch.
The rational choice model can serve as the ideal type of a special case, the scope
conditions of which have to be carefully researched and determined (Gross Stein
2017), but should not be imposed as the default option of “normalcy” from the
outset.
A changed image of the human species that concerns both individual motives
and reactions and how they combine to affect the behavior of collectivities from
small groups to states (Hutchison and Bleiker 2014; Mercer 2014; Crawford
2011) opens many new roads for our discipline. The central and ambiguous posi-
tion of the justice issue in politics can be far better explored from this perspective
than from the old hegemonic one.
In order to harness the new opportunities scholars will have to do three things:
First, to acquire a basic knowledge on the related findings and the paradigms in
which they are rooted. Second, to develop practices of interdisciplinary work

13It is telling that Richard Ned Lebow, who from an early stage had criticized the ration-
alist paradigm from a perspective emphasizing motivational bias (Lebow 1981) and has
constructed an alternative anthropological model in which non-rational drivers (striving for
honor, fear) play a central role (Lebow 2008), does not even appear in the huge list of refer-
ences attached to the introductory article. An alternative standard model is not admitted by
those standing guard over the hegemonic paradigm.
58 H. Müller

that go far beyond the sporadic encounters, contacts, and single projects that
have been beacons of synthetic insights of great potential but for the most part
have not led to systematic joint progress across disciplines. Third, to sincerely
sift through the assumptions underlying our established theories and correct them
or even abandon them in the light of what is becoming the state of the art else-
where. Neither economic materialism nor preference-based rationalism, neither
“economic man” nor “ideational woman” will stand the test. They can serve, use-
fully, as ideal types to explore empirical deviations from their idealized assump-
tions. Their role is reduced to that of being epistemological tools. They cannot be
used as ontological templates to decipher the empirical world. The philosophical
tradition in which these theories are located have emphasized dichotomies, such
as cognition/emotion, deliberation/feeling, selfishness/altruism, empathy/hate.
Again, these dichotomies are useful heuristic tools for distinguishing the related
sources and expressions of human behavior, that is, epistemological instruments.
Ontologically, however, these apparent opposites are mixed and intermingled
in the material (biological) basis of human behavior. Our “nature” is thus much
more complex and more ambiguous than the traditional simplification into these
dichotomies suggests. This makes the analysis of political problems and their
solution even more burdened and onerous than the “old” ontologies indicated.
It is nevertheless inescapable to include the profound recent insights in human
nature into our analysis. The relationship between justice and peace is a good
place to start. But the landscape upon which the door is opening is much broader;
it encompasses the whole field in which we are working.

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Part II
Justice in International Regimes
and Organizations
Understanding the Puzzle of Unequal
Recognition: The Case of the Nuclear 3
Non-Proliferation Treaty

Caroline Fehl

3.1 Recognition and Global Political Order

Struggles for recognition have long constituted a central focus of discussion in


political theory, as reflected in the work of Charles Taylor (1994), Nancy Fraser
(1997; Fraser and Honneth 2003) and, above all, Axel Honneth (1992, 1996,
2004). More recently, the debate has crossed the disciplinary boundary into the
field of International Relations (IR). A growing number of IR scholars draw on it
to explore how the desire of state and non-state actors to have their identities or
social status recognized by others can drive and shape international conflicts (e.g.
Agné et al. 2013; Greenhill 2008; Lindemann and Ringmar 2012).
In line with its philosophical roots, this new IR literature understands inter-
national recognition struggles as emancipatory, that is, as directed against (per-
ceived) inequalities of political order. Accordingly, IR theorists working from a
systemic sociological perspective have pointed to recognition struggles to explain
the destabilization of historical inter-state hierarchies, from the Holy Roman
Empire to the Soviet sphere of influence (e.g. Reus-Smit 2011; Wendt 2003).

This chapter was first published as Fehl, C. (2015) Understanding the Puzzle of Unequal
Recognition: The Case of the Nuclear-Non-Proliferation Treaty. In C. Daase, C. Fehl,
A. Geis, Georgios Kolliarakis (Eds.), Recognition in International Relations: Rethinking a
Political Concept in a Global Context (104–22). Basingstoke: Palgrave Macmillan. I would
like to express my appreciation for granting publication rights.

C. Fehl () 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: fehl@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 67


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_3
68 C. Fehl

Responding to this line of argument, I argue in this chapter that the impact of
recognition dynamics on global order can be more complex and more ambivalent.
While the struggle for recognition may often be an equalizing force for change in
world politics, recognition theory can help us to understand not only the collapse
but also the creation and stability of unequal order.
I develop this argument in studying the creation of the nuclear Non-Prolifer-
ation Treaty (NPT), probably the clearest contemporary case of an unequal yet
almost universally recognized international institution. The NPT differentiates
between five legitimate “Nuclear Weapon States” (NWS) and the remainder of
“Non-Nuclear Weapon States” (NNWS), which renounce their right to the pos-
session of nuclear arms. Although this unequal distribution of nuclear rights has
been criticized as “discriminatory” ever since the inception of the treaty, the lat-
ter has outlived repeated predictions of imminent breakdown (Epstein 1976; Falk
1977; Nye 1985). Current controversies surrounding the nuclear programmes
of Iran and North Korea make it all too easy to forget that the unequal nuclear
order created with the NPT almost half a century ago is still almost universally
accepted (Müller 2010).
The NTP’s creation and longevity in spite of its unequal nature represent
a puzzle to recognition theory—a puzzle that, one might think, can only be
resolved from an alternative theoretical viewpoint. An obvious candidate for such
an alternative perspective is a rationalist theory of hierarchy that interprets une-
qual order as resting on a mutually beneficial contract between strong and weak
states (e.g. Lake 2009). The NPT, which is widely depicted as the product of an
economic and security “bargain”, appears as an almost ideal-typical illustration of
this type of argument. The non-nuclear states, it seems, subordinated their recog-
nition needs to the material benefits they expected to derive from the treaty. This
account implies that recognition theory can contribute little to our understanding
of the NPT’s origins. In fact, where it has been applied at all to the analysis of
nuclear politics, it has been used to explain resistance to the nuclear order, as in
the case of Iran (Hummel 2012).
While not denying that disputes such as the one over Iran’s nuclear pro-
gramme can be usefully understood as recognition struggles, I contend that rec-
ognition theory can tell us more about the global nuclear order. In the analysis
that follows, I seek to demonstrate that the popular account of the NPT bargain
remains incomplete in several respects and that states’ demands for recognition
were indeed influential in shaping the 1968 treaty. Recognition theory can thus
shed light not only on resistance to the unequal NPT, but also on why it gained
such wide acceptance and on why so many states have not defected from it.
3  Understanding the Puzzle of Unequal Recognition 69

The remainder of the chapter is structured as follows: In the next section, I


sketch the “rational contract” approach to international hierarchy and discuss its
merits and shortcomings in explaining the creation and durability of the unequal
nuclear order. In the third section I set out a recognition theoretical alternative,
discussing why and how the social theoretical concept is at all applicable to
international relations and how it can make sense of the phenomenon of unequal
order. The fourth section applies the argument to the NPT.

3.2 Shortcomings of a Rational Contract Perspective


on the Nuclear Hierarchy

IR theorists have recently paid increasing attention to historical and present mani-
festations of hierarchical order in the international system, which include such
diverse phenomena as colonialism, dollarization, or the institutional privileges of
the UN Security Council’s permanent members (Dunne 2003; Hobson and Shar-
man 2005; Lake 2009; Reus-Smit 2005; Weber 2000). Scholars have advanced
a range of explanations for the existence of “hierarchy within anarchy” (Don-
nelly 2006). One line of argument, put forth most prominently by David Lake,
understands international hierarchy as resulting from an “exchange between ruler
and ruled” in which the weaker state voluntarily accepts its subordination to the
stronger state (in specific issue-areas) in exchange for the benefits of the politi-
cal order guaranteed by the latter (Lake 2009, p. 29). In other words, the une-
qual international order represents a rational equilibrium that neither side has any
incentives to disturb.1
At first sight, this argument seems well in line with standard accounts of
the NPT’s underlying rationale. The nuclear non-proliferation regime is widely
described as resting on a “bargain” between nuclear and non-nuclear states: the
latter agreed to give up nuclear weapons in exchange for improved access to civil-
ian uses of nuclear energy, inscribed in the NPT’s Article IV, and in return for the
promise of nuclear powers, under Article VI of the treaty, to pursue disarmament
negotiations in the future (e.g. Du Preez 2006; Müller 2010; Smith 1987). While
the first element of the deal promised economic gain, the second has been inter-
preted as an attempt to resolve, in the long run, the “security dilemma” that non-
nuclear states faced in renouncing nuclear weapons (Müller 2008, p. 71). A third
dimension of the NPT bargain, discussed at times as an addition and at times as

1See also Ikenberry (2001) and Weber (2000) for similar arguments.
70 C. Fehl

an alternative to the disarmament deal, is seen in the immediate security benefits


that NNWS derived from a world with fewer nuclear weapons (e.g. Nye 1985;
Scarlott 1991, p. 692; Scott 2008, p. 106) and from implicit negative security
assurances and/or extended deterrence guarantees by the nuclear powers (Epstein
1976, p. 105; Hassner 2007, p. 460; Paul 2003; Rühle 2007, p. 513). In this per-
spective, it is precisely the nuclear states’ remaining “margin of power” that ena-
bles them to guarantee the maintenance of the order beneficial to all (Bellany
1977, p. 597; similarly Frederking 2009).
On the face of it, there thus seems to be great deal of support for an interpre-
tation of the NPT as a rational contract from which non-nuclear states derived
security and economic benefits in return for their (temporary) subordination to the
nuclear powers. At a closer look, however, only one of the three elements of the
bargain is relatively undisputed. There is broad agreement among analysts that
the lure of a new form of energy production, seemingly immune to the problems
of a fossil economy, was a major motivation for many states to sign up to the
NPT (e.g. Du Preez 2006; Müller 2010; Smith 1987).
The second element of the deal, disarmament, leaves open a number of ques-
tions that are hard to answer from a rationalist perspective focusing on issue-
specific cost-benefit calculations alone. First, the argument that NNWS gave
up the potential security benefits of a prospective nuclear weapons capability in
exchange for NWS’ long-term disarmament promise does not apply to the major-
ity of non-nuclear NPT members which never had the intention—or indeed a
realistic prospect, given their economic and technological resources—of acquir-
ing nuclear weapons in the first place (Krause 2007, p. 490). This is not to deny
that, in the negotiations on the NPT as well as at later NPT Review Conferences,
the issue of NWS disarmament was pressed by broad coalitions of states, includ-
ing not only erstwhile or current nuclear threshold states, but also smaller coun-
tries which never had nuclear ambitions—such as Ireland, a member of the New
Agenda Coalition (Rauf 2000; Shaker 1976, pp. 527 ff.). Yet, it is implausible that
the latter advocated NWS disarmament to resolve a security dilemma—such a
dilemma only exists for states that have a choice of arming or disarming them-
selves.
Second, even with regard to former nuclear threshold states, such as Sweden,
the argument is not wholly convincing. In 1968, many non-nuclear states that had
demanded disarmament commitments by the nuclear powers were highly dis-
satisfied with the eventual negotiation outcome (Epstein 1976, pp. 80 ff.; Krause
2007, p. 488). Their criticism suggests that they did not view Article VI as an
effective guarantee of the nuclear states’ actually disarming in the foreseeable
future. Consequently, the ultimate decision of some of the critics to join the NPT
3  Understanding the Puzzle of Unequal Recognition 71

can hardly be explained with the argument that Article VI resolved their secu-
rity dilemma. Even less persuasive is the idea that NNWS such as Sweden still
lobbied for NWS disarmament decades after their decision to renounce nuclear
weapons—for instance, in the negotiations on the NPT’s expansion—to resolve a
perceived security dilemma.
Lastly, an interpretation of the NPT’s disarmament component as a rational
deal between nuclear and non-nuclear states is hard to square with the fact that
the formers’ widely criticized “reneging” on their disarmament commitments to
the present day (e.g. Scott 2008, p. 110) has provoked neither mass defections
from the treaty nor a new wave of nuclear weapons programmes, contrary to
repeated predictions.
The third dimension of a potential rational NPT bargain, the provision of order
by the nuclear powers in exchange for the subordination of non-nuclear states,
seems more applicable than the proposition of a disarmament deal to small
NNWS which were never interested in or capable of acquiring a nuclear weap-
ons capability. However, it is rather ill at ease with the observation that several
non-nuclear states, particularly those closer to the nuclear “threshold”, expected
the NPT to have a negative impact on their national security. The German gov-
ernment, for instance, still considered an independent nuclear capability as indis-
pensable to national defence until late in the NPT negotiations, and was highly
distrustful of the credibility of US extended deterrence guarantees (Küntzel 1992;
Rost Rublee 2009, pp. 190 f.).
In summary, an explanation of the unequal NPT in terms of a security and eco-
nomic bargain between NWS and NNWS has serious limitations. The attraction of
civilian nuclear energy production was certainly a factor, but is this really the whole
story? If so, why didn’t at least the bigger non-nuclear states reconsider the bargain
once they had gained secure access to civilian nuclear technology? Why was dis-
armament apparently such a “big deal” for both small and big NNWS, not only in
the original negotiations on the NPT but also in recent NPT Review Conferences,
and why have most of them thus far nevertheless adhered to the NPT in the face of
NWS’ widely criticized failure to live up to their disarmament commitment?

3.3 Bringing in Recognition Theory

Recognition theory, I contend, can provide answers to these open questions. In


developing these answers, I draw on Honneth’s social-psychological theory of
recognition and on Fraser’s critique of the latter. According to Honneth (1996),
human beings have an innate desire to be recognized by others. He distinguishes
72 C. Fehl

three basic patterns of recognition: (1) love, a positive response to the individ-
ual’s emotions and physical needs from which he/she gains self-confidence; (2)
the granting of equal rights with other members of society, which the individual
experiences as respect; and (3) solidarity, the recognition of the individual’s per-
sonal traits and achievements that distinguish him/her from others, which gives
him/her self-esteem. Experiences that violate these basic recognition needs are at
the origin of political struggles that diverse social groups have led within their
wider societies.
Transferring Honneth’s concept to states as individuals in an international
“society” seems an intuitive step: states want physical security and a basic recog-
nition of their sovereignty (the equivalent of “love”), equality of rights with other
states, and recognition of their distinct national identities and achievements. The
only problem is that states are not people and thus cannot be analysed in psycho-
logical terms. Neither does the shortcut argument that heads of state are human
beings appear persuasive: hopefully, these leaders base their decisions on role
expectations that require them to distinguish personal feelings and raison d’état.
Here, Fraser’s alternative reading of recognition struggles within societies is help-
ful. To her, misrecognition as a form of societal injustice must not be understood
primarily as a personal psychological experience but as an institutionalized pat-
tern of assigning certain individuals and groups an inferior social status (Fraser
and Honneth 2003, p. 29).
Such an interpretation of (mis)recognition can also be applied to the world of
international institutions that this chapter is concerned with, rendering it unnec-
essary to resort to psychologizing explanations of state behaviour. At the same
time, it appears plausible to retain Honneth’s distinction between love (under-
stood as security), equal rights and national identity as different recognition needs
also within the world of states. The first dimension, security, is less interesting
for this chapter, as it is central to conventional theories of international politics.
The second is critical to both Honneth’s and Fraser’s theories, which agree in par-
ticular on the importance of a parity of participation in societal matters (Honneth
1992, p. 191; Fraser and Honneth 2003, p. 36). The third, individual identity, is
collapsed with the “rights” category in Fraser’s notion of social status. And yet,
we can plausibly construe the international recognition of a national identity and
of unique national achievements as something that governments may pursue inde-
pendently from the question of equal rights—not out of a personal psychological
impulse but because such a policy may score points with electorates.
A corollary of this non-psychological reading of recognition theory is that
unlike many IR scholars who use recognition theory in their work, I do not under-
stand the theoretical approach used here as being per se opposed to a concept of
3  Understanding the Puzzle of Unequal Recognition 73

instrumental rationality and to a sophisticated understanding of rational institu-


tionalism. Recognition politics are not necessarily “emotion-driven”, but can be
based on interests concerning broad questions of world order and social status,
rather than issue-specific interests as emphasized by standard rational institution-
alist analyses.
So, if states have an interest in the recognition of equal rights and of their indi-
vidual identities and achievements, how does this account for NNWS’ acceptance
of the NPT? The answer I want to propose lies in understanding the multidimen-
sionality of recognition dynamics in world politics, that is, the fact that states
(like all political actors) have multiple recognition needs which can be met in
a variety of ways. The argument is illustrated in the following analysis, which
builds on earlier studies of the nuclear non-proliferation regime, but also goes
beyond these existing accounts by highlighting more neglected impacts of recog-
nition struggles on the NPT’s creation and evolution and by integrating different
dynamics into an overarching recognition theoretical framework. Methodologi-
cally, the relevance of recognition needs is demonstrated by (1) showing that their
impact can elucidate negotiating processes and outcomes that are puzzling to an
alternative theory of hierarchy and by (2) tracing references to recognition needs
in the public discourse of political actors and observers. This focus on public, as
opposed to private, discourses is unproblematic for my analytical purposes. Since
I understand recognition politics among states as encompassing instrumental as
well as non-instrumental motivations, the typical problem of how to “look into
the minds” of leaders to distinguish between the two does not pose itself in the
case at hand.

3.4 Recognition Dynamics in the NPT

3.4.1 Parity of Participation in the NPT Negotiations

The first type of political demand that recognition theory would expect to be of
critical importance in international politics concerns the recognition of states’
equality of rights. While the NPT’s distinction between NWS and NNWS runs
counter to this recognition need, neither the treaty’s design nor the process through
which it was brought about can be fully understood without reference to it.
This is perhaps most evident with regard to the treaty’s contested disarmament
article. Several analysts argue that the insistence of NNWS on this clause was
“a question of principle” (Scott 2008, p. 108) and that it can best be understood
in terms of the “normative satisfaction” it conveys (Müller 2010, p. 191). What
74 C. Fehl

these comments refer to is the “perspective of elimination of inequality within


the treaty community” in a factually distant but symbolically important future
when all states will have given up nuclear weapons (Müller 2010, p. 195). In the
language of recognition theory, this means that Article VI made the NPT more
acceptable to the NNWS by qualifying its non-recognition of their equal nuclear
rights as temporary and exceptional.2
This familiar argument is not the only conceivable recognition-theoretical
reading of the NPT’s disarmament clause, however. Apart from qualifying the
substantive inequality of nuclear rights at the heart of the treaty, Article VI also
has an often overlooked procedural dimension that relates closely to Honneth’s
and Fraser’s idea of “parity of participation” in the making of societal rules.
The procedural importance of the clause lies in the fact that it places some com-
mitments on the nuclear powers and thus underlines the notion that agreements
should be based on mutual (reciprocal) concessions by all parties, even if these
concessions vary in size.
This principle, discussed by negotiation theorists as a form of “procedural
justice” (Albin 2001, p. 39 f.; Welch Larson 1998), was clearly reflected in the
public discourse of negotiating parties. A formula used widely during the NPT
negotiations demanded that the NPT include an “acceptable balance of mutual
responsibilities and obligations of the nuclear and non-nuclear powers” (UN Gen-
eral Assembly 1965). A Polish government official, speaking at an academic con-
ference preceding the adoption of the NPT, explained the idea as follows:

“How would the balance of mutual responsibilities and obligations be reached—


or to put it more bluntly: what would the non-nuclear countries receive in return
for their renunciation of acquiring nuclear weapons? […] The treaty we are seek-
ing should not provide for unilateral obligations. It should not enjoin nuclear absti-
nence to one group of states, while leaving complete freedom of action to the other.
It should place restrictions, though different in character, on all.” (cited in Dombey
2008, pp. 41 f.)

The phrase “different in character” is the critical part. A differentiation of sub-


stantive nuclear rights was apparently something that NNWS could live with,
but only as long as the treaty upheld their participatory equality by subjecting all
member states to some constraints of their nuclear freedom.

2Contrary to the argument that Article VI resolved a ‘security dilemma’, the argument
about normative satisfaction still holds if we assume that the NWS’ disarmament commit-
ment was primarily symbolic and that the chance of their eventual complete nuclear disar-
mament was small.
3  Understanding the Puzzle of Unequal Recognition 75

A recognition-theoretical reading of the NPT’s disarmament article can thus


elucidate the importance that big and small non-nuclear states have always
accorded to this point, and the widespread discontent about nuclear states’ per-
ceived “reneging” on their disarmament commitments (Scott 2008, p. 110). In
particular, the centrality of procedural equality concerns explains why the nuclear
states’ acceptance of “Thirteen Steps” toward disarmament at the 2000 NPT
Review Conference was so important in ensuring the treaty’s continued legiti-
macy after its indefinite extension, and why the United States’ subsequent refusal
to recognize those steps spelled disaster for the 2005 NPT Review Conference
(Müller 2005, 2010, p. 194). The American posture at this meeting—which was
partly supported by France—mirrored the Bush administration’s broader effort to
promote a revisionist reading of the NPT’s history: non-proliferation was inter-
preted as the historical core of the treaty and as primary to its other two pillars,
disarmament and peaceful use of nuclear energy. Such an interpretation would
have fundamentally altered the balance of mutual responsibilities agreed in 1968
and was thus unacceptable to the NNWS (Franceschini 2012, p. 6 f.; Müller et al.
2012, pp. 105 ff.). The latter had always been angered by the slow pace of nuclear
states’ disarmament efforts, but had been able to extract important concessions
such as the “Thirteen Steps” in response to their recognition needs. In contrast,
the overt non-recognition of the mutuality of obligations—and, by implication, of
the participatory equality of NPT members—had a different quality, which cre-
ated a serious risk of provoking defections (Müller 2010).
But it was not only the agreement on a mutual balance of responsibilities that
signalled the commitment of NPT members to states’ parity of participation.
Other key aspects of the NPT negotiations and of the treaty that emerged from
them also responded to demands for the recognition of procedural equality.
First, the conclusion of the NPT was enabled by a negotiating process that,
albeit still exclusive, was viewed by contemporaries as a significant step toward
greater participatory equality in global affairs. The drafting of the NPT took
place in the new Eighteen Nation Disarmament Committee (ENDC). Prior to the
creation of this forum, arms control negotiations at the United Nations had been
treated as an exclusive domain of the great powers; only six smaller states from
the two superpowers’ spheres of influence had been additionally admitted in 1959
(Verona 1978). Against this background, the creation of the ENDC represented a
remarkable opening of the negotiating process. While it invited only eight new-
comers to the negotiations, these represented the group of non-aligned states, and
thus a large part of the world that had previously been completely excluded from
arms control talks. In the view of contemporaries, this step effectively replaced
the “closed framework” in which “states were prevented from exercising their
76 C. Fehl

right to participation in the solving of the relevant problems” with a “multilat-


eral” process (Verona 1978, p. 201). It also opened the door to further rounds of
enlargement, which eventually produced today’s Conference on Disarmament
(CD) with currently 65 members.
How critical was this opening of the negotiating process to the NPT’s wide-
spread and lasting acceptance? While this counterfactual question is hard to
answer directly, an indirect indicator of the importance that non-nuclear states
continue to place on participatory equality in global arms control negotiations is
their reaction to repeated challenges to the multilateral negotiating framework.
In the years and decades that followed the adoption of the NPT, key problems
of nuclear arms control and disarmament were time and again shifted out of the
multilateral forum into bilateral talks between the superpowers or into exclusive
groupings such as the Nuclear Suppliers Group or, more recently, the Prolifera-
tion Security Initiative. As early as 1978, mounting discontent with such tactics
culminated in a special UN General Assembly session, which was convened with
the explicit aim of making global arms control negotiations more representative
(Goldblat 2002, p. 35). The General Assembly has since continued to reaffirm the
importance of multilateralism in arms control matters (Handl 2010, p. 15). To cite
one recent example, a resolution adopted in 2012 recalls “the existence of a broad
structure of disarmament and arms regulation agreements resulting from non-dis-
criminatory and transparent multilateral negotiations with the participation of a
large number of countries, regardless of their size and power”, expresses concern
about the “continuous erosion of multilateralism in the field of arms regulation,
non-proliferation and disarmament” and “[u]nderlines the importance of pre-
serving the existing agreements on arms regulation and disarmament, which con-
stitute an expression of the results of international cooperation and multilateral
negotiations” (UN General Assembly 2011, emphasis in the original). Evidently,
states have long regarded formal participatory equality as key to the legitimacy of
arms control initiatives.
Demands for the recognition of procedural equality were also raised with
regard to the institutional design of the NPT itself. For instance, non-nuclear
states strongly and successfully pressed for the institutionalization of a consen-
sus-based review process. NPT Review Conferences, which were to be held at
5 year intervals, were tasked with “reviewing the operation of the treaty” (Art.
VIII). This innovative formulation differed from how treaty review conferences
had previously been used by states. Rather than limiting the review to dealing
with amendments, Article VIII created an opportunity for NNWS to monitor
treaty implementation, including with regard to disarmament (Carnahan 1987).
Together with the provision that a decision about the extension of the treaty
3  Understanding the Puzzle of Unequal Recognition 77

should be taken 25 years after its entry into force (Art. X), the review process
thus gave non-nuclear states voice and leverage over the treaty’s future evolution.
Again, the importance of this twofold recognition of procedural equality for the
NPT’s overall legitimacy can be indirectly inferred from member states’ response
to change. The NPT’s indefinite extension at the 1995 Review Conference dra-
matically reduced the leverage of non-nuclear states over the treaty’s future evo-
lution, thus potentially eroding its procedural legitimacy (Daase 2003). However,
this step was embedded in a package of “Decisions”, one of which was aimed
at “Strengthening the Review Process for the Treaty” (NPT Review Conference
1995). The understanding of negotiating parties was that the new bargain condi-
tioning treaty extension upon a strengthened review process would ensure “per-
manence with accountability” (Dhanapala 2005, p. 57). This widely used formula
testifies to the continued importance which NPT member states attached to the
recognition of procedural equality within the NPT.
Another area in which concerns about participatory equality were central was
the design of the NPT’s safeguards regime. In the eyes of non-nuclear states, the
originally proposed language that placed strict safeguards on them but not on the
nuclear states “added a form of insult to the discriminatory injury which they suf-
fered” (Epstein 1976, p. 108). The issue was (partly) resolved through the intro-
duction of a less intrusive safeguards regime for countries with advanced civilian
nuclear programmes and through the voluntary acceptance of safeguards on the
part of the United States and the United Kingdom (Epstein 1976, p. 108).
In summary, the above analysis suggests that although the NPT’s distinction
between NWS and NNWS amounts to a non-recognition of equal nuclear rights,
its acceptance by many non-nuclear states cannot be explained as a result of non-
nuclear states simply subordinating their recognition needs to issue-specific cost-
benefit calculations. To the contrary, demands for the recognition of equal rights
were highly influential in shaping the process leading up to the treaty’s adoption
and its eventual design.

3.4.2 The NPT and the Recognition of National Identities

The second type of need that a recognition theory of international relations would
expect to influence states’ foreign policies concerns the recognition of individual
national identities and achievements. As the following analysis suggests, the NPT
also catered to specific national recognition needs, including such identity-related
concerns. The focus here is on three important nuclear threshold states whose
78 C. Fehl

stance on the NPT is particularly hard to explain in terms of issue-specific cost-


benefit calculations: Germany, Sweden, and Japan.3
It is rarely remembered today that Germany long had an ambivalent view of
the NPT and that the Christian Democratic government of Konrad Adenauer had
flatly opposed it until late in the preparatory negotiations (Küntzel 1992). This
stance reflected fears that the treaty could jeopardize national security, but also
the view that the renunciation of nuclear weapons would relegate Germany to
second-class status (Müller 2003, p. 3; Küntzel 1992, pp. 34 ff.). Adenauer had
rejected early calls for a unilateral German renunciation of nuclear weapons “not
because one intends to produce these weapons but because one does not want
to be discriminated against” (cited in Küntzel 1992, p. 20). Franz-Josef Strauß,
his defence minister, later attacked the proposed NPT as a “Versailles of cosmic
dimensions” (Der Spiegel 1969).4
That Germany nevertheless became an NPT member can be attributed only in
part to its structural security dependence on the United States, as evidenced by
the fact that it took a change of government to put the German signature under
the treaty. The pro-NPT stance of Willy Brandt’s new social-liberal coalition was
based on the emergence of a strong disarmament movement within his party and
in the German population at large (Rost Rublee 2009, pp. 188 f.) as well as on the
central theme of his Ostpolitik, the moral rehabilitation of Germany in the eyes
of the international community. Both objectives, disarmament and moral rehabili-
tation, were linked in the NPT, which offered “young democracies” a chance to
“demonstrate good international behaviour” (Müller 2010, p. 190). For a country
struggling to shed the association with Nazi atrocities, “being a responsible mem-
ber of the civilized world was directly linked with staying non-nuclear” (Rost
Rublee 2009, p. 194). Thus, the recognition of Germany’s new, peace-loving
national identity and, linked to this, the recognition of its equal membership of
the international community of “civilized” states outweighed the loss of the sub-
stantive right to nuclear weapons, which would have allowed the country to gain
recognition as a member of a more exclusive great power club.
The position of Sweden, another important European participant of the NPT,
differed from that of Germany in three respects: the country’s neutrality in the
East-West confrontation, the fact that it had a far more advanced nuclear w­ eapons

3The analysis draws on earlier analyses which point to the importance of national identity
conceptions for countries’ non-proliferation policies, but without systematically relating
this factor to other recognition dynamics in the non-proliferation regime.
4All German quotes translated by the author.
3  Understanding the Puzzle of Unequal Recognition 79

programme than Germany, and its constructive role in the ENDC negotiations
leading up to the establishment of the NPT. It is the combination of the second
and third observation that needs explaining: how did a country that came within
six years of producing nuclear weapons in 1957 (Rost Rublee 2009, p. 173) trans-
form into a leading advocate of nuclear disarmament within a decade? Again, part
of the answer has to do with factors unrelated to recognition dynamics, such as
new weapons developments by the superpowers and changing calculations of mil-
itary utility (Quester 1973, pp. 126 f.). As in Germany, the growth of a domestic
disarmament movement also played its part.
The last and, according to some analysts, most important factor in the Swe­
dish change of position was its election as one of the eight non-aligned members
of the ENDC (Quester 1973, p. 128). As was argued earlier, the creation of this
forum recognized the right of the overall group of non-aligned states to have a
say in global arms control talks. At the same time, it admitted those elected to
speak for the group to a privileged circle of great and middle powers. In addi-
tion, “the Swedish delegation in Geneva saw itself […] as a spokesman for the
other seven less economically developed nonaligned states” within the ENDC
(Quester 1973, p. 128). Thus, the NPT negotiations gave Sweden an upgrade of
social status and recognized its unique national abilities by informally accepting
it as a leader among the leaders. At the same time, Sweden’s new leadership role
in nuclear disarmament also suited its traditional self-image as a “peacemaker”
(Rost Rublee 2009, pp. 180 ff.). Whereas participation in the nuclear arms race
would have been ill at ease with this key element of Sweden’s national identity
conception (Quester 1973, p. 124), the NPT negotiations offered the country an
opportunity to receive widespread recognition of its peacemaker image. In the
following years, Swedish leadership on nuclear disarmament became so integral
to the national identity narrative that already in the early 1970s, one analyst con-
cluded that “[r]ightly or wrongly, Swedes today see themselves as having worked
for all forms of disarmament at Geneva, as having been against proliferation all
along” (Quester 1973, p. 124). This narrative can also explain why Sweden never
backtracked on its strong support for the NPT, neither after securing access to
civilian nuclear energy nor in response to NWS’ broken disarmament promises.
The importance of national identity concerns for the Swedish pro-NPT stance
is particularly visible in comparison with Japan, a reluctant NPT participant that
signed the treaty only in 1970 and ratified it six years later. Apart from commer-
cial and security calculations, this scepticism was influenced by a “widespread
feeling among Japanese elites that Japan was not sufficiently acknowledged as
a nation” by their most important ally, the United States—and one of the things
that angered the Japanese leadership was the fact that the United States had not
80 C. Fehl

thought it necessary to include it in the ENDC (Quester 1978, p. 110). Indeed,


the eventual Japanese ratification of the NPT was preceded by Japan’s admission
to the Conference of the Committee on Disarmament, the successor forum of the
ENDC. This meant a status upgrade which the Japanese government had reached,
in the analysis of contemporaries, by “exploiting” the NPT issue (Okimoto 1975,
p. 316).

3.5 Conclusion

The analysis offered in this chapter suggests that recognition theory can generate
important insights into the creation, design, and longevity of the NPT. Issue-specific
cost-benefit calculations, as emphasized by a rationalist contractual theory of hierar-
chy, go only part of the way in explaining why non-nuclear states agreed to a pro-
foundly unequal order. In particular, they fail to explain why both small non-nuclear
states and major nuclear threshold states placed strong emphasis on NWS disarma-
ment commitments throughout the NPT’s history, and why they nevertheless did not
defect from the treaty when the nuclear powers later reneged on their commitments.
A recognition-theoretical analysis can help to clarify these points by distin-
guishing different recognition dynamics underlying the unequal treaty. While
the treaty’s discrimination between nuclear and non-nuclear states amounts to a
non-recognition of equal substantive rights to the possession of nuclear weapons,
other aspects of the NPT negotiations and of the resulting treaty were designed
to accommodate the recognition needs of non-nuclear states. The NPT’s disar-
mament dimension softens the unequal distribution of rights while also recog-
nizing the participatory equality of NPT negotiating parties; these implications
explain the insistence of non-nuclear states on this particular clause, as well as
their strong reactions to the Bush administration’s non-recognition of procedural
steps agreed earlier. Yet, regime legitimacy was grounded not only in the disarma-
ment article, but also in a range of other institutional compromises—regarding
the forum in which the NPT was negotiated, its review process, and its regula-
tions on safeguards—that responded to demands for participatory equality. In
addition, the treaty offered key nuclear threshold states a chance to fulfil specific
national recognition needs, including with regard to the recognition of individ-
ual national achievements and identity traits. These additional recognition ben-
efits can account for the NNWS’ continued adherence to the regime in spite of the
NWS’ failure to meet their disarmament commitments.
This is not to suggest that all states that had non-nuclear status in 1968
found their recognition needs satisfied in the process and outcome of the NPT
3  Understanding the Puzzle of Unequal Recognition 81

n­ egotiations. The continued outspoken resistance of the remaining NPT “hold-


outs” to the global non-proliferation regime makes it plain that from their point
of view, the treaty’s multiple reaffirmations of an equality of substantive and pro-
cedural rights among states represented no more than an insufficient placebo for
the recognition benefits they derived from achieving full nuclear status. Still, the
fact that these radical NPT critics are in a clear minority shows that most non-
nuclear states arrived at a different conclusion in weighing the positive and nega-
tive implications of the treaty for the fulfilment of their recognition needs. This
calculation could be altered, however, if nuclear-weapon states openly challenge
the participatory equality of NPT members, as exemplified by US rhetoric and
behaviour during the Bush administration.
The analysis also holds general lessons with regard to the application of rec-
ognition theory to international politics. The key insight that emerges from the
NPT case is that social recognition is complex, and so are recognition implica-
tions of global institutions. Evidently, actors have multiple recognition needs that
can be satisfied or dissatisfied in a number of alternative ways (see Table 3.1).

Table 3.1   Recognition needs and their [non-]fulfilment in the NPT


Recognizing actor/collective
Recognition needs International com- Privileged groups of
munity great/middle powers United States
Recognition of equal NWS disarmament [denied: NW for
substantive rights obligations Germany, Sweden,
and other threshold
states]
Recognition of equal NWS disarmament ENDC participation [denied: ENDC
participatory rights obligations for Sweden non-participation for
ENDC negotiations [denied: ENDC Japan]
NTP review process non-participation for
Safeguards compro- Japan]
mise
German rehabilita-
tion as member of the
international com-
munity
Recognition of Sweden’s traditional Informal ENDC lead-
national individuality ‘peacemaker’ image ership of Sweden
Germany’s new
‘peace-loving’ char-
acter
82 C. Fehl

In the case of the NPT, acceptance of the treaty has implications for the recogni-
tion of equal substantive rights (to the possession of nuclear weapons), of equal
participatory rights (in decisions on nuclear matters), and of specific national
features and achievements. Furthermore, recognition demands can be directed
to different social collectives—to the international community as a whole, to a
privileged group of great and middle powers or, as in the case of disappointed
Japanese recognition needs, to one major diplomatic partner. Finally, the same
recognition need can be fulfilled in multiple ways, as the different institutional
concessions to participatory equality suggest.
The multidimensionality of recognition needs has two important implica-
tions for our understanding of global order: First, in deciding whether or not to
accept an institutional order, state leaders and other political actors must not only
weigh its recognition implications against the material benefits it provides, but
also trade off different recognition needs against one another. Second, since one
and the same institution can satisfy and disappoint different recognition needs at
the same time, equal recognition at one level of an institutional order can end up
facilitating or stabilizing unequal recognition at another level. Thus, the “puzzle
of unequal recognition” set out at the outset of the chapter can be resolved—not
by discarding recognition theory in favour of an alternative theoretical perspective
but by applying it to the case in a more fine-grained manner.

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The Role of Justice in Compliance
Behavior: Germany’s Early Membership 4
in the Nuclear Non-Proliferation Regime

Marco Fey, Aviv Melamud and Harald Müller

4.1 Introduction

The body of literature in political science and international law that tackles the
question of what determines the effectiveness of global governance arrange-
ments is continuously growing. Justice is a concept central to political theory and
increasingly salient in disciplines such as brain research (e.g. Singer 2007), pri-
mate research (e.g. Yamamoto and Akimoto 2012), evolutionary biology (Bekoff
and Pierce 2009), anthropology (e.g. Fiske and Haslam 2009), psychology

This chapter has been published in International Negotiations 19 (2014), pp. 459–486.


We are grateful for the permission of Koninklijke Brill NV to reprint it here. Earlier drafts
were presented at the workshop “Compliance and Beyond: Assessing and Explaining the
Impact of Regional and Global Governance Arrangements,” University of St. Gallen, 31
May–1 June 2013; the ECPR General Conference, Bordeaux, 4–7 September 2013; and
the ISA ISSS-ISAC Joint Annual Conference, Washington, DC, 4–6 October 2013. For
comments on earlier versions of the chapter, the authors would like to thank Tim Büthe,
Ellen Gutterman, Laurence R. Helfer, Carsten Rauch, Elvira Rosert, Rachel M. Stein and
two anonymous reviewers.

M. Fey () 
Federal Foreign Office (Auswärtiges Amt), Berlin, Germany
E-Mail: fey@hsfk.de
A. Melamud · H. Müller 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: melamud@hsfk.de
H. Müller
E-Mail: mueller@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 87


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_4
88 M. Fey et al.

(Tomasello 2009), and experimental economics (e.g. Fehr and Schmidt 1999); but
it has hardly been identified in International Relations (IR) research as one of the
parameters of regime membership behavior and regime stability. As compliance
with regime rules is a central aspect of governance “effectiveness,” we explore
in this chapter the relationship between regime justice and members’ compliance
with regime rules.
After a brief sketch of the small body of work on justice in IR, we propose
the introduction of justice as a factor influencing states’ compliance behavior. We
understand “compliance behavior” as a broader concept than rule-conforming
behavior. For us, it comprises multiple elements, including the understanding of
the regime’s objectives and how the treaty is meant to achieve them, the inter-
pretation of particular treaty prescriptions, and the discursive process by which
actors explain and justify their behavior. For the identification and understanding
of the role of justice in these processes, we emphasize the importance of utilizing
the subjective notions of justice held by the actors themselves, instead of objec-
tive, external ideas about justice as applied by the academic observer.
In order to illustrate the proposed connection between an actor’s justice per-
ceptions and its compliance behavior, we present the case of Germany’s compli-
ance behavior as a member of the Nuclear Non-Proliferation Treaty (NPT). We
contend that the traditional explanations for challenged compliance—security
considerations (due to the nature of the treaty) or economic interests (due to
the character of the activities)—hardly suffice to explain its compliance behav-
ior. As we demonstrate, Germany had substantial justice grievances regarding
the regime, which shaped its interpretation of the treaty’s text and objectives,
and subsequently its criticized behavior. The evidence presented in this chap-
ter clearly indicates that justice informed Germany’s economic decisions in the
nuclear export field, thus impacting on its compliance. We thus conclude with
encouraging further research on the role of justice in IR and suggest directions
such research could take.

4.2 Why Justice?

It is almost intuitive to assume that individuals’ behavior would be influenced


by their feelings of injustice and discrimination. Indeed, references to injustice
and discrimination are frequent and numerous in diplomatic discourse. And yet,
in this arena where compliance is considered vital to maintaining order, analyses
have widely neglected justice as a potential influence on state behavior.
4  The Role of Justice in Compliance Behavior 89

Rationalism drafts an ideal-type of human behavior which it then hypostatizes


as real world manifestation. While rationalism can, in principle, assume altruistic
preferences and work from there, rationalist studies in general use an understand-
ing of the human as individualistic utility-maximizer. Such a simplistic view of
human behavior, however, lags behind insights gained in a great variety of scien-
tific disciplines, including but not limited to brain research, primate research, evo-
lutionary biology, anthropology, and psychology, all of them incorporating justice
in their research agendas. Even experimental economists have found significant
deviations of their test persons from ideal-type market behavior and trace back
these “irregularities” to a fairness standard that is influencing economic choices
(Fehr and Schmidt 1999). Thus, the power of justice considerations is dawning
in the very faculty where idealized utilitarianism once emerged in the first place.
From the beginning of reasoning about politics in ancient Greece and through-
out the millennia since, the quest for a just order has been considered with great
emphasis. Yet modern political science and IR in particular have cut out this cen-
tral theme from their empirical work in favor of the homo economicus in vari-
ous incarnations.1 Even constructivism, with its focus on norms and values, has
neglected the justice problem as a major factor of conflict—and an important
basis of its solutions. Justice is an ideational construct that permeates human
affairs of whatever sort and at whatever level of analysis. It can be conceived of
as a meta-norm, serving as an important standard for assessing the legitimacy of
a specific normative order and for establishing one where none exists (Müller
2011, pp. 282 ff.). Rationalists usually dismiss the call for justice as plain rhetoric
(Schimmelfennig 2003), aimed at concealing the “true” driver behind the justice
claim, namely the “interest.” Indeed, it can be assumed that the strategic use of
justice arguments is not to be excluded, but only because genuine justice argu-
ments are exchanged as well; only this semantic environment makes “conceal-
ment” possible in the first place. However, to disentangle “interest” and a genuine
justice claim might meet insuperable barriers. First, there is no way of identifying
with ultimate certainty an actor’s motivations, but the sheer frequency of justice
utterances in IR is a powerful indicator. Speakers, whether interest- or norm-
driven, by saying “justice” or using its synonyms, document that they deem such
arguments as meaningful for influencing their audience. Thus, even if we cannot
overcome the epistemological difficulty to ascertain with more than a degree of

1A remarkable exception is Richard Ned Lebow’s work over the last decade (2006, 2008,
2010, 2012).
90 M. Fey et al.

probability whether a speaker means what she says, we can still learn about the
politics of justice. The second difficulty concerns the ontology of interest and jus-
tice. As Blyth (2003, p. 697) has put it, “[h]olding ideas apart from interests, even
analytically, makes little sense.” There is no logical prior for one of the two. Inter-
est is rather a “cluster concept” with cognates such as beliefs and desires inti-
mately bound with it. Hence, feelings of justice as well may shape how an actor
defines its interest (Blyth 2003, p. 697).
Empirical research in IR that addresses justice issues is still rare, and yet the
results are highly interesting. The pioneer work was done by Welch in his semi-
nal 1993 book Justice and the Genesis of War. His definition of the “justice
motive”—the engine that drives actors to behave in order to get justice done—is
very well fit to guide empirical research. It is defined as the drive to correct a
perceived discrepancy between entitlements and benefits (Welch 1993, p. 19), and
was shown to have frequently led governments into wars. Zartman found that jus-
tice must complement power relations in order to satisfactorily explain the results
of negotiations with a distributive content. No solutions will be found as long
as actors cannot agree on a shared or a compromise concept of justice (Zartman
et al. 1996; Zartman 1997, 2008). These results have been confirmed and further
refined by the work of Albin (2001), Müller and Wunderlich (2013), and Druck-
man and Albin (2011). According to Albin, justice concerns are present through-
out all negotiation stages. The study by Müller and Wunderlich confirms this
finding with a number of case studies that shed light on the role of justice in norm
dynamics in the field of multilateral arms control. Procedural fairness and an
agreement that incorporates justice principles, particularly the principle of equal-
ity, in a significant way, according to Druckman and Albin, enhance the chances
of a peace agreement to last over time. With that finding, a bridge between justice
and compliance has been laid, as the endurance of agreement indicates that par-
ties continue to comply with their basic undertakings.

4.3 Justice and the Study of Compliance

Social science research on the impact of individuals’ justice perceptions on their


behavior is abundant. This saliency has hardly been mirrored with regard to
state behavior and particularly treaty compliance. Research on state compliance
in both the discipline of international law and IR has focused on several, differ-
ing explanations as to why states comply (examples of compliance literature sur-
veys include Simmons (1998), Underdal (1998), Koh (1997)). Depending on the
4  The Role of Justice in Compliance Behavior 91

underlying theoretical understandings, varied explanations are offered regarding


state behavior, its motivations to comply, and means by which compliance can be
enhanced (Kingsbury 1998). Yet as a rule, and in corresponding to general trends
in IR, the study of states’ compliance has thus far lacked a focus on actors’ justice
perceptions as potentially guiding and shaping compliance behavior.
A normative aspect which relates to our focus on justice and that has been
addressed by some compliance studies is legitimacy. With the assertion that an
international regime can erode if its legitimacy is undermined (Kratochwil and
Ruggie 1986, p. 773), the importance of this concept to international order has
been recognized. Yet legitimacy is intuitively distinct from justice: a rule can be
legitimate (e.g. due to its enactment through reasonable procedures or because it
is derived from time-honored traditions) but still be unjust in the eyes of some
addressees.
Franck’s groundbreaking study on legitimacy, in which he asserts that legiti-
macy is a property of a rule that exerts a compliance pull on the rule’s addressees
(Franck 1990), is seemingly the most extensive piece theorizing the role of legiti-
macy in compliance. According to him, “right process” creates the perception of
legitimacy, which exerts a compliance pull (such a pull, it is important to note,
is not the same as compliance in terms of the actual behavior of the actor; see
also critique by Raustiala and Slaughter 2002, p. 541). Legitimacy, to Franck, is
“a property of a rule or rule-making institution which itself exerts a pull toward
compliance on those addressed normatively because those addressed believe that
the rule or institution has come into being and operates in accordance with gen-
erally accepted principles of right process” (Franck 1990, p. 24). A strictly pro-
cedural concept, Franck specifically excludes justice as one of the factors which
constitute legitimacy, although he assumes both to have a pull toward compliance.
In a subsequent and equally ambitious study, Franck (1995) delves into the
question of international law and institutions’ fairness, comprised of both pro-
cedural and substantive aspects, namely procedural fairness (legitimacy) and
distributive justice. Here as in the case of legitimacy, Franck is interested in the
property of the rules. Franck’s examination includes both the processes according
to which international law is made and the outcomes of these processes (legiti-
macy and distributive justice, respectively). Yet the particular perception that
actors have of the rules’ fairness is not explored, nor the way in which these per-
ceptions influence the actors’ comprehension of the agreement, its rules, and their
behavior as parties. The legitimacy/fairness approach to compliance, while rec-
ognized as a meaningful strand in compliance research, has not been sufficiently
elaborated beyond the monumental works by Franck and few others.
92 M. Fey et al.

4.4 Subjective Interpretations of Regime Rules

A most basic definition of compliance describes a state to be in compliance with


its treaty obligations when its behavior conforms to what is prescribed (Simmons
1998, p. 77; Mitchell 1996). Yet despite this seemingly clear definition, compli-
ance with international agreements is of course a much more complex condition.
It is generally accepted that there cannot be a simplistic dichotomous view of
compliance behavior. Indeed, compliance cannot be easily reduced to “rule obedi-
ence”, either identified as such or proven as false, because often there is not an
agreed and stable meaning of treaty prescriptions and obligations. Even though
formal agreements are considered to encourage and enhance members’ compli-
ance behavior due to their capacity for clarity and precision, they nonetheless
leave a space for interpretation by the actors themselves: “states, instead of sim-
ply ‘complying’ with international legal rules may bargain in light of them, and
around them” (Howse and Teitel 2010, p. 132). A state’s justification for behavior
therefore might explicitly or implicitly include its understanding of the rules as
well as its perception of justice.
It is through the discourse on compliance that we can learn what regime mem-
bers’ interpretation of the rules is, and how it diverges from competing inter-
pretations. Justice concerns shape a state’s understanding of the problem and
its preferred solution; they shape the way through which an actor interprets its
commitments as well as the way in which its behavior supposedly corresponds to
those commitments. The discourse surrounding rule ambiguity or interpretation
of objectives and regulations expresses deeper differences in understanding of the
norms which underlie the regime, including justice grievances.
Studies of compliance, even those focusing on rule legitimacy, lack empiri-
cal exploration of the role played by particular actors’ justice perceptions in their
compliance understanding and behavior. Our endeavor is aimed at exploring this
role, through a broad understanding of “compliance behavior” that begins with
actors’ subjective evaluation of treaty objectives and goals, and hence their under-
standing of particular clauses, as well as what “being in compliance” in fact
means.
If justice carries an influence on the behavior and attitude of individuals, it is
clearly the way in which the individuals perceive it (subjective perceptions), and
is not due to an outside assessment, as for example in Mayer (2006). Similarly, it
would seem intuitive to assume that in order to identify the influence of justice
on states’ compliance behavior, it is inevitable that these perceptions be identi-
fied from the actor’s specific point of view, and not using an external measure of
evaluation. We assume that if justice dissatisfaction influences actors’ view of the
4  The Role of Justice in Compliance Behavior 93

regime and its rules, the basic undertaking is to identify their own justice percep-
tion. In order to distill an actor’s justice perception, their utterances must be ana-
lyzed and taken seriously as “the best indicators for his or her understanding of
justice available” (Müller et al. 2011, p. 3).
Recognizing justice in actors’ discourse without basing on a comprehensive
external definition of what constitutes justice is not as tricky as it may sound.
Often, the language used—“unfair,” “imbalanced,” “unequal,” or a number of
other synonyms and indicative words—points directly to justice being at play.
For our analysis, we also identified case-specific signifiers that could only be
understood as justice-related because of their historical connotations, for example
when then-Minister of Finance Franz-Josef Strauß claimed in 1967 that “the NPT
resembles a Versailles of cosmic dimensions!”—a clear reference to the history of
Germany. And thirdly, we drew upon Welch’s approach (1993) and coded entitle-
ment claims as justice-related statements. Accordingly, in order “to qualify as an
issue of justice, what matters is not a particular content as defined by a substantial
or procedural notion of justice, but merely the question of whether actors perceive
and present something they demand (for themselves or others) as something they
are entitled to” (Poppe and Wolff 2013, pp. 376 f.).

4.5 Empirical Illustration: Germany’s NPT


Commitments

In order to establish that justice perceptions play a role in the compliance behav-
ior of states, we opted for a single case study: Germany’s compliance as a party
to the Nuclear Non-Proliferation Treaty (NPT) in the 1970s–1980s. As research
on justice in compliance is still in an exploratory state, we chose a most-likely
design—most-likely in the sense that if justice plays a role in compliance behav-
ior, we should find evidence for this in the case at hand. The NPT is inherently
and profoundly discriminatory and Germany’s deviations from compliance, as
we argue below, cannot be explained with acute security concerns, leaving more
space for justice considerations to impact on behavior. Germany is also one of
the few industrialized non-nuclear weapon states (NNWS) that at that time had a
fully developed nuclear industry, which, moreover, depended on export and com-
peted for markets with the nuclear industries of Western nuclear weapon states
(NWS). Thus, any perceived injustice in the regime should matter to Germany
and it can be expected to justify deviations from regime compliance by point-
ing to injustice. If, however, traces of justice cannot be found in this most-likely
case, the idea of justice playing a role in compliance would be dealt a heavy blow,
94 M. Fey et al.

based on the so-called “inverse Sinatra inference” which underlines the logic of
a most-likely design—if justice can’t make it here, it won’t make it anywhere
(Levy 2008). The purpose of this analysis is not to present causal claims regard-
ing the role of justice in compliance, nor to imply that the relationship identi-
fied in this specific case is necessarily generalizable to others. Rather, we aim at
establishing plausibility of justice having an impact. If justice impacting on com-
pliance is indeed observable here, we contend, expanding the investigation to dif-
ferent types of behavior and actors would be a next step, as well as elaborating
the process through which this occurs.
Furthermore, the analysis based on a single case allowed a thorough under-
standing of the actor’s justice contentions. Both domestic debates, including in
camera discussions, as well as international statements, served as a supportive and
crucial level for uncovering and categorizing the justice contentions of the actor,
and its understanding and interpretation of the regime’s rules.2 We propose that
this in-depth analysis exposes the relationship between the actor’s justice conten-
tions and its regime behavior. The inclusion of justice considerations allows for a
more comprehensive understanding of the deviations from compliance.

4.5.1 Germany’s NPT Regime Behavior

Germany,3 being a solid democracy and civilian power and as such a strong sup-
porter of multilateralism and international law (Harnisch and Maull 2001), would
not intuitively be associated with non-compliant behavior. From today’s vantage
point, Germany’s behavior in the NPT regime is undisputed: It has established
a credible reputation for not wanting nuclear weapons, and for working to pre-
vent the spread of nuclear weapons and related technology to other states. It is
­therefore intriguing that Germany’s behavior during its initial decades of NPT
membership was in fact strongly criticized and condoned as contradicting not only
the written treaty prescriptions, but also its basic non-proliferation o­ bjectives.

2In the empirical section we draw upon both the “official position” of the state, and state-
ments made by individuals from the government or parliament. We consider the inclusion
of both the German position in the international discourse (e.g. statements at Review Con-
ferences) and the internal political discourse (statements by individual parliamentarians
that took an active role in domestic debates on related topics) was necessary to map the
justice claims.
3Our discussion pertains solely to the Federal Republic of Germany (FRG), commonly

referred to as West Germany.


4  The Role of Justice in Compliance Behavior 95

In the following, we posit that Germany’s contested compliance behavior with


regards to its nuclear non-proliferation commitments should be analyzed in view
of its long standing criticism of the regime’s injustice. Despite the overwhelming
prominence of justice language in Germany’s NPT-related discourse throughout
the decades, this aspect has been entirely overlooked from analyses of its behav-
ior (e.g., Lowrance 1976; Kaiser 1978). The inclusion of this traditionally over-
looked factor, we argue, can offer a more complete explanation of Germany’s
regime behavior, and could shed light on comparable cases of alleged deviations
from compliance, thus adding to the understanding of states’ cooperative behavior
within international regimes.
Germany had initially committed itself to nuclear weapons abstinence in the
West European Union’s Paris Treaties of 1954, where it undertook not to manu-
facture on its territory, inter alia, any atomic weapons, and furthermore specifi-
cally swore off the production of fuel for nuclear weapons (plutonium and highly
enriched uranium). It subsequently strengthened its commitment to non-nuclear
status with its signature and ratification of the Limited Test-ban Treaty in 1963
as well as its announcement in the 1966 Peace Initiative (“Friedensnote”) that it
would abstain from acquiring nuclear weapons.
Notwithstanding these commitments to refrain from nuclear weapons, Ger-
many was reluctant to join the NPT when it opened for signature in 1968. As we
elaborate below, Germany was highly critical of the NPT for its discriminatory
nature and strove to balance this inequality through a fairer distribution of obli-
gations. During the treaty’s negotiations, Germany’s concerns and demands for
amendments delayed the treaty’s opening for signature substantially, even though
it was not formally a member of the Eighteen-Nation Disarmament Committee
that was charged with the negotiations. Only after a change of government did
Germany sign the NPT in 1969.
By the time of ratification in 1975, Germany’s role as a “good citizen” in the
international community was solely defined in economic (rather than military)
terms. As such, Germany sought to promote non-proliferation via nuclear cooper-
ation with developing countries, which it considered as inducing nuclear restraint
(Müller 2003, pp. 16 f.). It considered itself (and was indeed viewed as) a “sup-
porting strand in the web of nations committed to retarding the spread of nuclear
weapons” (Lowrance 1976, p. 148).
Despite this commitment to non-proliferation, Germany’s compliance behavior
was not without controversy; at times it was challenged for its inappropriateness to
regime commitments as well as overall goals, even though Germany maintained that
it was fully compliant with the treaty’s prescriptions. Starting from the late 1960s,
Germany concluded controversial export agreements with nuclear-power-threshold
96 M. Fey et al.

states such as Brazil and Argentina (discussed further below). These, as well as
mounting evidence in the late 1980s regarding German companies’ involvement
in the transfer of dual-use technology to the clandestine WMD programs of Libya,
Iraq, and Pakistan, which garnered more harsh criticism on Germany and its laxness
in export controls (Müller 2003, p. 4), led to a reevaluation of German nuclear non-
proliferation policy starting. Germany revised and reformed its domestic legislation
substantially in the early 1990s (Müller et al. 1993), and, on the international level,
became a driving force in the efforts to strengthen Nuclear Suppliers Group (NSG)
guidelines as well as International Atomic Energy Agency (IAEA) Safeguards (Mül-
ler 2003, p. 5). Germany assumed a substantially stricter view of non-proliferation,
which differs meaningfully from that which it zealously supported until then.
Germany’s commitment to the prevention of nuclear weapon proliferation
throughout its regime participation is not disputed. Therefore, as we discuss
below, an explanation for its alleged deviation from compliance which is based
solely on economic considerations (as motivating the export prominence) is insuf-
ficient. Germany’s behavior during the 1970s and 1980s, we contend, cannot be
understood without weighing the substantial justice concerns which were present
throughout the extensive international and domestic debates on Germany’s adher-
ence to the NPT.

4.5.2 NPT Justice Contentions

Germany, from the initial phases of NPT negotiations, voiced clearly its discon-
tent regarding the treaty’s imbalanced nature. German NPT-justice contentions
can be divided into three central categories of grievances: (1) the inherent and
basic discriminatory nature of the regime in differentiating NWS and NNWS and
thereby creating two classes of regime members, (2) the inequality of obligations
and commitments between the two categories of states, and (3) the concern of
disadvantages which the NNWS would incur due to their unequal NPT obliga-
tions. These categories rise in specificity from very general grievances to particu-
lar issues and proposals for mitigation.4
The inherently discriminatory nature of the regime, which distinguishes the
so-called nuclear “haves” and “have-nots,” is the first and basic grievance which
Germany shared with the majority of NNWS, as well as non-member states.

4See Müller (2010) and Tannenwald (2013) for analyses of the NPT from a justice perspec-
tive.
4  The Role of Justice in Compliance Behavior 97

­ onrad Adenauer, who as Chancellor set out to fight discrimination against


K
Germany in the post-war period, rejected the treaty as a matter of principle as it
would enshrine into international law a distinction of two classes of states (Geier
2011, p. 321).
The mere fact of this distinction was brought up by German politicians again
and again as discriminating against Germany. Some referred to it as a “clas-
sic example of an unequal treaty”5 and Chancellor Kiesinger later explained to
the British Prime Minister Wilson that there was the sentiment in Germany that
the NPT would “degrade the country and definitely put it down as a 10th class
nation.”6 Franz-Josef Strauß, one of the fiercest critics of the treaty, even called
it a “Versailles of cosmic dimensions” (quoted in Geier 2011, p. 448). The NPT
forced states to give up their right to nuclear weapons and thereby, in his view, a
“decisive feature of national sovereignty” in the atomic age (Strauß 1989, p. 310).
For this generation, the renewed, democratic Germany had cleaned itself of its
dark past that was the reason and justification of post-war discrimination. Having
undergone this catharsis, they felt their country was entitled to the same entrusted
status as Britain or France, the old rivals and new partners. Nuclear weapons were
the symbol of this equal status.
Moreover, a question of procedural justice came up as German politicians took
issue with the first drafts of the NPT. These were negotiated between the super-
powers, and presented to the NNWS without the possibility for the latter to make
any changes (at least to Articles I and II, in which NWS commit not to assist
NNWS in developing or acquiring nuclear weapons and NNWS commit not to
obtain such weapons).7 A final justice issue with regard to the general nature of
the treaty was brought forward in the German ratification debate in the Bunde-
stag in 1974: The NPT, it was argued, was envisioned to become universal and

5Karl Carstens (CDU) Bundestag (20.02.1974), p. 5280 f. See also Kurt Birrenbach (CDU),

Bundestag (08.11.1973), p. 3711, Alois Mertes (CDU/CSU), Bundestag (20.02.1974),


p. 5258. Unless specified otherwise, quotes are taken from the respective year’s record of
plenary debates in the German Bundestag. The parties’ abbreviations refer to: Christian
Democratic Union (CDU), Christian Social Union (CSU), Free Democratic Party (FDP),
and Social Democratic Party (SPD). Here and henceforth, quotes that are originally in Ger-
man are all presented in the authors’ translation.
6Kurt Georg Kiesinger, Meeting of the Chancellor with Prime Minister Wilson, 16.02.1967,

quoted in Schwarz 1998, pp. 284–285.


7Alois Mertes (CDU), Bundestag (20.02.1974), p. 5258; Kurt Georg Kiesinger, Meeting of

the Chancellor with Prime Minister Wilson, quoted in Schwarz (1998, pp. 284 f.).
98 M. Fey et al.

thereby reduce its inbuilt imbalances as far as possible, but in 1974, only friends
of the United States (US) had signed the NPT, while the Soviet Union’s allies and
several threshold nuclear powers (such as Brazil, Argentina, Israel, and India) had
not.8
The second category of German grievances relates to the general dissatisfac-
tion with the gross inequality in the distribution of obligations under the NPT.
While German politicians eventually accepted the necessity for the NNWS hav-
ing different undertakings from the NWS, they took issue with NNWS having
to assume the majority of concrete obligations: They complained that the treaty
demanded “efforts and sacrifices” from NNWS alone while NWS would have to
forego “almost nothing.”9 Statements in the domestic debate formulated a merit-
based entitlement to reciprocation: Germany’s effort (“Leistung”) calls for efforts
on behalf of the NWS in return (“Gegenleistung”).10
A central manifestation of the inequality in obligations is the application of
international verification measures (“safeguards”): NNWS generally had no dif-
ficulties, already during the negotiation of the treaty, to accept the application
of safeguards applied to their nuclear activities, but they resented “the idea of
being discriminated against by NWS” by having the safeguards apply exclu-
sively to them (Shaker 1980, p. 662). The NWS not only retained their military
nuclear capability but were also not required under the NPT to subject their civil-
ian nuclear industry to international controls. An official German memorandum
issued during the negotiations in 1967 stated that “controls should fulfill their
purpose as effective checks on the non-proliferation agreement, but should not
have an obstructive or discriminatory influence… Universal acceptability is
a criterion which must also govern the methods of the control system. Equal
treatment for all parties to the treaty would considerably facilitate the world-
wide negotiation.”11 Particularly the technologically advanced countries, such
as Germany, were concerned of “being handicapped in world nuclear competi-
tion vis-à-vis the powers which had entirely maintained their freedom of action”

8Alois Mertes (CDU), Bundestag (20.02.1974), p. 5259; Karl Carstens (CDU), Bundestag
(20.02.1974), p. 5281.
9Friedrich Zimmermann (CSU), Bundestag (27.04.1967), p. 4962.

10Willy Brandt (Foreign Minister, SPD), Bundestag (27.04.1967), p. 4944; Ernst Majon-

ica (CDU), Bundestag (18.01.1967), p.  3936; Kurt Birrenbach (CDU), Bundestag
(27.04.1967), pp. 4946–4947.
11Quoted in US Arms Control and Disarmament Agency (1969, p. 71, emphasis added).
4  The Role of Justice in Compliance Behavior 99

(Goldschmidt 1980, p. 74). As declared by German Foreign Minister Brandt dur-


ing the negotiations, “discrimination against or any other disadvantage accruing
to the non-nuclear powers in the non-military sphere must be prevented.”12
Germany’s insistence that freedom of nuclear research and development
would not be limited by NPT membership was, for instance, based on its concern
“that the NPT could be manipulated to restrict not just weapons proliferation but
commercial competition in civilian nuclear fields” (Mackby and Slocombe 2004,
p. 199). In 1967, Foreign Minister Brandt complained about US companies’
unfair usage of the NPT, and accused them of falsely claiming that German com-
petitors would not be in a position to guarantee the supply of nuclear fuel to cus-
tomers due to Germany’s NNWS status.13 Also Chancellor Helmut Schmidt later
saw in the NPT little else but industrial policy in disguise that would help the US
to defend its industry’s preeminence in the field (Geier 2011, p. 657). Later when
the US vehemently protested against a civil nuclear deal between Germany and
Brazil, the motives behind that protest were questioned, as the US position was
accused of serving the interests of American companies in the competition for
export markets (Gall 1976, p. 167).
The criticized imbalance in obligations led directly to the third category of
German grievances: material disadvantages for the NNWS that manifested in
unequal security and burdens for their nuclear industry. Adenauer went as far as
calling the NPT a “squared Morgenthau plan.”14 During NPT negotiations, Ger-
many articulated many proposals—or rather demands—for defining a fairer dis-
tribution of obligations within the regime.
One demand that figured prominently within the German debate was for
including in the NPT a meaningful commitment by the NWS to disarm or at least
to stop their vertical proliferation:15 “The world must not be divided into haves

12Declaration on 18 February 1967, quoted in US Arms Control and Disarmament Agency


(1969, p. 70).
13Willy Brandt (Foreign Minister, SPD), Bundestag (27.04.1967), p. 4945 f. This obvi-

ously remained an issue as the very same argument came up eight years later during the
NPT ratification debate in the Bundestag, see Otto Graf Lambsdorff (FDP), Bundestag
(24.04.1975), p. 11651.
14Interview with Konrad Adenauer, DER SPIEGEL, No. 10, 27.02.1967.

15In contrast to horizontal proliferation, which refers to the spread of nuclear weapons to

more states, vertical proliferation refers to the quantitative or qualitative build-up of an


already-nuclear state’s arsenal.
100 M. Fey et al.

and have-nots for all times.”16 German politicians called for a concrete com-
mitment to be included in the NPT in the interest of balanced treaty undertak-
ings: the NWS should commit to stop the further production of nuclear weapons,
delivery vehicles, and fissile material, as well as to reduce their massive nuclear
weapons arsenals. CDU parliamentarian and member of the committee on for-
eign affairs Kurt Birrenbach considered NNWS’s call upon the NWS to enter into
a commitment to disarm “a question of elementary justice.”17 This commitment
should go beyond a promise that was originally envisioned in the draft’s pream-
ble. Instead, the NWS’s disarmament performance should be reviewed and evalu-
ated after five years. Gradual but nonetheless concrete disarmament steps towards
the elimination of all nuclear weapons were seen as the only acceptable way
towards “a balance of renunciation”18 and therefore “equal sovereignty.”19
During the ratification debate in the Bundestag, CDU parliamentarian Alois
Mertes named the lack of concrete obligations for the NWS as reason for oppos-
ing NPT ratification, since Article VI20 only calls upon all states to “pursue
negotiations in good faith” on measures towards disarmament.21 Others were
disappointed with the implementation of the NWS’s disarmament responsibility
during the first five years of the regime.22 The discontent of many parliamentar-
ians with the implementation of Article VI never faded: in 1985, the SPD spokes-
person for disarmament and arms control, Hermann Scheer, called the lack of
progress in disarmament a “daily breaking of international law by the nuclear
weapon states.”23
With regard to its nuclear industry, Germany feared that it would suffer from
NPT requirements in that it would be burdened with inspections, while NWS
would not. A particular concern was the costs of inspection provisions and

16William Borm (FDP), Bundestag (27.04.1967), p. 4957.


17Kurt Birrenbach (CDU), Bundestag (27.04.1967), p. 4948.
18Kurt Birrenbach (CDU), Bundestag (27.04.1967), p. 4948.

19Alois Mertes (CDU), Bundestag (20.02.1974), p. 5260 f.

20Article VI of the NPT reads: “Each of the Parties to the Treaty undertakes to pursue nego-

tiations in good faith on effective measures relating to cessation of the nuclear arms race at
an early date and to nuclear disarmament, and on a Treaty on general and complete disar-
mament under strict and effective international control.”
21Alois Mertes (CDU), Bundestag (20.02.1974), p. 5260.

22Karl Carstens (CDU), Bundestag (20.02.1974), p.  281.

23Hermann Scheer (SPD), Bundestag (24.01.1985), p. 8704.


4  The Role of Justice in Compliance Behavior 101

s­ afeguards for the nuclear industry.24 Germany was also concerned with the diffu-
sion of valuable data from military application of nuclear energy to civilian uses
(e.g. via nuclear explosion experiments), so-called “spin-offs,” that only the NWS
could benefit from. This, it was thought, could lead to a “monopolizing of tech-
nological advance.”25 Foreign Minister Brandt considered the transfer of techno-
logical and scientific know-how from the military to the civilian sphere of nuclear
application “vital for industrialized countries such as the Federal Republic of
Germany.”26
In order to mitigate to some extent the implications of these potential disad-
vantages, Germany called upon the NWS to reciprocally commit to place their
civilian nuclear activities under safeguards: “It is not acceptable that the NNWS
shall endure permanent discrimination also beyond the military sphere in their
civilian sector […] and it would certainly help to make the NPT universally
acceptable if this fundamental discrimination was eliminated.”27 Some propo-
nents of universal safeguards, including the German government as late as 1975,
viewed this as a matter of principle. Accordingly, they called on all NWS to
accept safeguards to their civil nuclear facilities.28 Others were specifically con-
cerned with immediate competitors on the world market, namely the Western
NWS.29
With regard to NWS’ advantages from “spin-offs,” and based on Germany’s
voluntary renouncement to engage in military nuclear activities, Brandt formu-
lated an “entitlement to participate in the NWS’s gain of experience and knowl-
edge that stem from military applications of nuclear energy and that advance

24See, for example, Kurt Birrenbach (CDU), Bundestag (08.11.1973), p. 3713.


25Willy Brandt (Foreign Minister, SPD), Bundestag (01.02.1967), p. 4169.
26Willy Brandt (Foreign Minister, SPD), Bundestag (01.02.1967), pp. 4167–4168.

27Kurt Birrenbach (CDU), Bundestag (27.04.1967), p. 4950.

28Gerhard Stoltenberg (CDU) Bundestag (27.04.1967), p. 4959; Erhard Eppler (SPD),

Bundestag (27.04.1967), p. 4937; Antwort der Bundesregierung auf die Kleine Anfrage
der Abgeordneten […] betr. Vertrag über die Nichtverbreitung von Kernwaffen vom 1. Juli
1968 und Verifikationsabkommen IAEO-EURATOM vom 5. April 1973, Deutscher Bunde-
stag, Drucksache 7/2375, 11.07.1974; Martin Grüner (FDP, Parliamentary State Secretary
at the Ministry of Economics), Bundestag (12.03.1975), p. 10710.
29Kurt Birrenbach (CDU), Bundestag (13.10.1967), p. 6364; Kurt Birrenbach (CDU),

Bundestag (08.11.1973), p. 3713; Walter Scheel (Foreign Minister, FDP), Bundestag


(08.11.1973), p. 3710; Alois Mertes (CDU), Bundestag (20.02.1974), p. 5262.
102 M. Fey et al.

the civil uses as well.”30 Closely linked with this call for including in the NPT
the NWS’s obligation to share technological and scientific advances31 was the
demand for nuclear fuel supply assurances, as well as for a kind of peaceful
nuclear explosions service by the NWS that could be employed, for example, for
the creation of artificial canals, harbors, or tunnels.32
Whereas some of Germany’s and other NNWS’s proposals were included in
the NPT (or implemented otherwise) and indeed mitigated, others, most notably
the obligation to nuclear disarmament, were not realized in a manner that was
considered satisfactory. The treaty ultimately also did not include a recipro-
cal obligation of safeguards for the peaceful activities of NWS. The US and UK
pledged, on December 1967, to apply safeguards to their peaceful nuclear activi-
ties, “in order to appease the dissatisfaction of the non-nuclear-weapon States
with the potential application of safeguards only in their own territories” (Shaker
1980, p. 657). However, according to Goldschmidt (1980, p. 79), this gesture by
the US and UK was of reduced scope since the Soviet Union stated that it would
not, under any circumstances, follow suit.
It is as a result of their perception of the unequal distribution of obligations,
the disadvantages this would imply, and the NNWS’s lack of implementation
of their already few obligations, that NNWS (particularly the technologically
advanced of them) “called for complete freedom of action, with no stage of the
industry, from uranium mining to energy production, being denied them” (Gold-
schmidt 1980, p. 78). Such an expectation means, in practical terms, that no lim-
itations would be placed on the civilian activities of NNWS, and that although
they would be prohibited from developing nuclear weapons and monitored to
ensure this, the NNWS would in fact be allowed to develop the technology which
could lead to obtaining fissile material that was usable for manufacturing nuclear
weapons.

30Willy Brandt (Foreign Minister, SPD), Bundestag (01.02.1967), p. 4165. See also Kurt
Birrenbach (CDU), Bundestag (27.04.1967), p. 4951, who envisioned something similar to
Eisenhower’s Atoms for Peace program from 1955 to implement such a transfer of know-
how.
31Besides profiting from “spin-offs,” German politicians also called for more informa-

tion on Uranium enrichment and Plutonium production technologies to be shared without


restrictions by the US with the EURATOM countries; see, for example, the chairman of the
Defense Committee, Friedrich Zimmermann (CSU), Bundestag (27.04.1967), p. 4964.
32Friedrich Zimmermann (CSU), Bundestag (27.04.1967), p.  4964; Kurt Birrenbach
(CDU), Bundestag (13.10.1967), p. 6364; Walter Scheel (Foreign Minister, FDP), Bunde-
stag, (08.11.1973), pp. 3710–3711.
4  The Role of Justice in Compliance Behavior 103

Given its concessions as a NNWS and the lack of reciprocity built into the
NPT, Germany emphasized its right to develop each and all phases of the nuclear
fuel cycle, as well as its entitlement—even commitment—to export them. This led
directly to bilateral export deals which Germany justified as its prerogative, and
for which it was harshly criticized.

4.5.3 Germany’s Questionable Nuclear Exports in the


1960s–1980s

From the late 1960s and for two decades, the German nuclear industry was quite
successful in gaining contracts in countries that were not members to the NPT,
through several high profile bilateral deals. Some of these exports of nuclear tech-
nology were highly criticized by the international community as potentially con-
ducive to nuclear proliferation (Krause 2005; Ricke 2013; Müller et al. 1993).
Argentina was a prominent recipient of German nuclear exports since the late
1960s. The German company Siemens supplied Argentina with the Atucha 1
heavy water reactor that began operations in 1974 as well as with its sister reactor
Atucha 2 (the construction of which began in 1981 and has not been completed
since). Siemens (and the German government), defeating American and Canadian
rivals although their prices were much lower, allegedly insisted only on very lim-
ited safeguards in scope and duration as compared to those required by the US
and Canada. The offer of a heavy water reactor, coupled with assistance in con-
tracting Swiss firms for the construction of a heavy water production plant, would
have awarded Argentina independence of enriched fuel supply (to presumably
come from the US, giving Washington leverage over Argentina’s nuclear pro-
gram).33 The German offer included another “sweetener” as Siemens also agreed
to build a laboratory-scale reprocessing plant near Ezeiza (Fischer 1992, p. 83;
Geier 2011, pp. 543 ff.; Cirincione et al. 2005, p. 384).
Further bilateral export deals were struck with other developing states such as
Iran (the now-famous nuclear power plant in Bushehr was constructed by a Ger-
man company, but work was discontinued following the 1979 revolution). But the

33The heavy water reactor (HWR) was thought to allow fuel independence because it can
be used with natural uranium, which is abundant in Argentina. However, the plutonium,
which is produced from natural uranium during normal HWR operation, represents a larger
proliferation risk than the plutonium produced from enriched uranium fuel, because HWR
plutonium is better suited for weapons purposes.
104 M. Fey et al.

deal which drew particular attention was the 1975 Agreement of Cooperation in
the Peaceful Uses of Nuclear Energy between Germany and Brazil, according to
which Germany would supply Brazil with nuclear reactors as well as a uranium
enrichment plant and a spent fuel reprocessing facility (Gall 1976, pp. 157 f.);
this, in essence, would have provided Brazil the complete and self-sufficient
nuclear fuel cycle.
The central objection to the German-Brazilian deal was the planned transfer of
enrichment and reprocessing technologies, which were never before supplied by
nuclear exporters because of their weapons implications (Lowrance 1976, p. 150).
Moreover, the recipient was then a steadfast NPT-critic. The US in particular
opposed this deal, which “led to the most serious clash in German-US relations
since World War II” (Kaiser 1978, p. 87). The agreement was deemed “nuclear
madness” by a NY Times editorial, and Germany was accused by US Senator
Pastore, chairman of the Joint Committee on Atomic Energy, of “creating a likely
peril in our backyard” (quoted in Lowrance 1976, p. 153). It was described as
having erased the line of restraint which exporters, as “the tragic custodians of a
double-edged technology” (Lowrance 1976, p. 153), were expected to maintain.34
Such behavior would seem to contradict entirely the commitments of a respon-
sible, non-proliferation-supporting NNWS party to the NPT, even if it can be
explicated as remaining within the letter of the treaty, as argued by Germany at
the time. Germany’s behavior was challenged as not adhering to the treaty’s pro-
scriptions (or, at least, of contradicting its spirit), while according to Germany’s
justifications, it was in fact promoting regime goals: Germany’s nuclear exports
were part of its encouragement of non-proliferation via nuclear cooperation, not
of a clandestine intent to negate non-proliferation goals.

4.5.4 Non-Proliferation via Nuclear Cooperation

Germany, in its interpretation of the NPT and its understanding of how it should
serve to promote non-proliferation, insisted on the centrality of the principle of
free nuclear commerce. Indeed, uninhibited access to (safeguarded) nuclear
energy technology was considered central to NNWS (Kaiser 1978, p. 84). In a

34Mounting pressures forced Germany to insist on the application of international inspec-


tions in the transfers to Brazil, which would detect diversion to military purposes. Such
safeguards became standardized through the Nuclear Suppliers Group at the same time
(Gall 1976, pp. 158 f.).
4  The Role of Justice in Compliance Behavior 105

memorandum that the German government submitted to parliament in 1973


together with the bill on the NPT,35 it referred to Article IV36 and highlighted the
two central aspects it includes: obligation and right.
The right according to Article IV had a twofold meaning for Germany, both
as a recipient and a provider in nuclear commerce. As a provider, it wanted to
ensure that it was not unduly limited from nuclear export, and as a recipient to
secure its access to fuel and technological advances. Germany furthermore cham-
pioned the general right of all NNWS to partake in the exchange of all aspects
of civil nuclear activities. In 1975 it emphasized at the first NPT Review Con-
ference that article IV “is the charter of the universal exchange of knowledge in
the nuclear realm.”37 And at the 1985 NPT review conference, Germany stated
that it “attached the greatest importance to the inalienable right of the parties to
the Treaty to develop and use nuclear energy and participate in the widest pos-
sible exchange of equipment and scientific and technological information for the
peaceful use of nuclear energy. […] The benefits of the peaceful application of
nuclear energy should be made available to all States, with particular attention
being paid to the developing countries’ special needs.”38 Article IV, in Germany’s
interpretation, included in fact an obligation to share civil uses of nuclear energy
in order to ensure the equal treatment of all NPT members.

35Deutsche Bundesregierung, Denkschrift zum Vertrag, Drucksache 7/994 (1973),


pp. 13–22. The importance of interpreting the NPT as a cohesive trinity of non-prolifer-
ation, the unobstructed participation in peaceful uses of nuclear energy, and the pledge
to disarm, was stressed continuously by German delegations at review conferences to the
treaty; see, for example, Jürgen Möllemann, Statement to the 3rd NPT Review Conference,
Geneva, 29 August 1985, NPT/CONF.III/SR.4.
36Article IV of the NPT reads: “1. Nothing in this Treaty shall be interpreted as affecting the

inalienable right of all the Parties to the Treaty to develop research, production and use of
nuclear energy for peaceful purposes without discrimination and in conformity with Articles
I and II of this Treaty. 2. All the Parties to the Treaty undertake to facilitate, and have the
right to participate in the fullest possible exchange of equipment, materials and scientific and
technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a
position to do so shall also cooperate in contributing alone or together with other States or
international organizations to the further development of the applications of nuclear energy
for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the
Treaty, with due consideration for the needs of the developing areas of the world.”
37Annex II to the Final Document of the Review Conference of the Parties to the Treaty on

the Non-Proliferation of Nuclear Weapons, NPT/CONF/35/I (1975), p. 20.


38Michael Gerdts, Statement to the 3rd Review Conference to the NPT, Geneva, 11 Sep-

tember 1985, NPT/CONF.III/C.III/SR.4.


106 M. Fey et al.

In contradiction, some governments (most notably the US) argued in favor of


precautions beyond the letter of Article IV, including stronger safeguards, for the
sake of preventing proliferation. This resulted in “deliberately barring national
governments, and in particular non-NPT states, from having access to ‘sensitive’
nuclear technology” (Häckel 1983, p. 73). During the second half of the 1970s,
as the nuclear export market was expanding and with it the potential of nuclear
weapons proliferation, the U.S. was translating this into legal steps through its
Non-Proliferation Act of 1978, which was construed as an attempt to “enforce
new non-proliferation standards upon others that went beyond the NPT” (Krause
2005) and thereby limited substantially the transfer of nuclear technology and
materials.
Germany resisted mounting pressures from the US to restrain its nuclear com-
merce. While it joined the Nuclear Suppliers Group that negotiated its guidelines
confidentially from 1974 to its publication in 1977, Germany “grandfathered” the
Brazil deal that was concluded before and went through the essential transfers
before the guidelines became valid.
To be sure, economic and political interests played a substantial role with
regards to the NPT and nuclear exports. The Brazil deal, for instance, made “eco-
nomic sense” for Germany (as did other nuclear exports) and was also politically
timely,39 although it was likewise risky. But there was more to it. Germany justi-
fied its exports by claiming that living up to its commitment under Article IV is in
fact saving the NPT, by (a) proving to the NNWS that they receive what they are
entitled to, and (b) encouraging them to maintain their non-nuclear weapon status
by what Germany called “non-proliferation via nuclear cooperation.”
With regard to (a), Germany pointed to the inalienable right of states parties
to the NPT to develop nuclear energy for peaceful uses and to the “obligation to
cooperate and share to the extent possible.”40 German politicians were convinced
that because of the country’s nuclear cooperation with third world countries, the
“discriminating nature of the NPT was put into perspective” and the NNWS’s
“legitimate interest in participating in the peaceful uses of nuclear energy” was

39“For West Germany, the sale will bring at least temporary relief to a giant industry bur-

dened by ties to unprofitable allied divisions and suffering from over-capacity of almost
30%[…] the package sale to Brazil will help both industry and Chancellor Schmidt’s
Social Democratic Party[…] All of this commerce will bring much-sought export revenue
to the Bundesrepublik” (Lowrance 1976, pp. 157 f.).
40Jürgen Möllemann (State Minister in the Foreign Office, FDP), Bundestag (26.09.1985):

pp. 11945–11946, (emphasis added).


4  The Role of Justice in Compliance Behavior 107

satisfied.41 Industrialized countries, in the view of then-Minister of State in the


Foreign Office Mertes, had “no right to deny developing countries the promises
of civil nuclear activities.” It would be “wrong” if only the possessors of nuclear
technology could profit from its advantages; “instead, all of mankind should be
benefiting from the atom.”42 German parliamentarians claimed that because of its
nuclear exports and cooperation, NNWS realized that they had indeed access to
nuclear technology, as envisioned under Article IV of the treaty, and that this had
immediate positive effects on the NPT’s review process.43
With regard to (b), Germany’s policy of “non-proliferation via nuclear coop-
eration” was based on the idea that through civilian nuclear cooperation, incen-
tives will be provided to NNWS which will ensure their continued abstention
from military nuclear ambitions. This position merged Germany’s self-perceived
role as an economic power and its commitment to non-proliferation as well as
to combating the inherent inequality in the regime (Müller 2003, p. 17; Häckel
1983, p. 75). It assumed that the unequal treatment of NNWS within the NPT
must be mitigated as much as possible by promoting civilian nuclear cooperation
and ensuring the free flow of nuclear commerce. A strategy of withholding know-
how and maintaining dependence of developing states on industrialized ones was
considered in Germany as a prelude to nuclear autarky. Particularly for states who
have committed themselves as non-nuclear, “a second discriminatory measure
restricting access to and utilization of uranium-plutonium fuel cycle technolo-
gies” would be an incentive to self-sufficiency outside of the non-proliferation
regime (Hildenbrand 1978, pp. 54 f.).
Germany considered non-proliferation primarily as a political problem, not
a technical one: “A policy of trust and co-operation was the most secure basis
from which to combat the proliferation of nuclear weapons. The Treaty must con-
tinue to permit the peaceful use of nuclear energy and international co-operation,
so as to prevent the agreed basis of trust and commonsense from being jeopard-
ized by the emergence of nuclear weapon States.”44 Germany argued that with
the removal of the long-term technical obstacles to nuclear weapons capability
and in considering that the sole obstacle for military nuclearization is political,

41Karl Lamers (CDU), Bundestag (26.09.1985), p. 11940 f.


42Alois Mertes, (State Minister in the Foreign Office, CDU), Bundestag (24.01.1985),
p. 8706 ff.
43Karl Lamers (CDU), Bundestag (26.09.1985), p. 11940 f.

44Jürgen Möllemann, Statement to the 3rd NPT Review Conference, Geneva, 29 August

1985, NPT/CONF.III/SR.4.
108 M. Fey et al.

the integration of industrializing nations is crucial: “This integration entails trans-


ferring technology, but exchanging that gesture for good will and promises of
restraint from the recipients. In adopting this approach Germany is simply follow-
ing the provisions of the Non-proliferation Treaty’s Article IV” (Lowrance 1976,
p. 154). Germany was convinced that cooperation with non-members of the NPT
also helped to further the cause of non-proliferation: “If Germany had declined
the Brazil deal, Brazil would have been pushed on a totally uncontrolled nuclear
path.”45 It was the opinion in the Foreign Office that Germany’s export policy has
contributed in an important way to preventing the bleak proliferation prognoses
of the 1960s, that foresaw at least twice as many states with nuclear weapon by
the 1980s, from coming true.46 The stricter US position on exports was consid-
ered “unilateral American measures” (Kaiser 1978, p. 83) which undermine the
basic rules, as well as goals, of the non-proliferation regime. In insisting on its
interpretation of article IV, Germany was in fact playing, for the first time, the
role of defender of principles of an international order against unilateral US
attempts to amend them (Kaiser 1978).

4.5.5 Understanding Germany’s Deviations From


Compliance in View of its Justice Grievances

We consider Germany’s ongoing commitment to non-proliferation well estab-


lished, particularly since it changed its behavior beginning in the late 1980s,
despite its continued economic interests in exports. There were clear and uncon-
ditional revelations regarding the contribution of its “non-proliferation via nuclear
cooperation” policy to dubious non-civilian endeavors. In the case examined,
explanations based purely on economic or security interests are not able to fully
account for Germany’s deviant NPT behavior.
A security-based explanation seems highly unlikely for the case in hand. That
Germany acted against its ostensible security interests eliminates security as a
motivation for its policies. German non-compliance did not concern activities that
would have facilitated later German breakout and thus could be part of a hedg-
ing strategy. Rather, Germany’s non-compliance was instrumental in the nuclear

45Hans Werner Lautenschlager (Assistant Secretary of State), Aufzeichnung des Ministe-


rialdirigenten Lautenschlager betr. Zusammenarbeitsabkommen mit Brasilien, 16.04.1975,
quoted in Möller (2006, p. 394).
46Alois Mertes (CDU), Bundestag (20.02.1974), p. 5260 f.
4  The Role of Justice in Compliance Behavior 109

programs of other states, possibly affording them a nuclear weapons capability,


and thus prone to foster nuclear proliferation, impacting negatively on German
security.
It seems acceptable to assume that Germany was not aiming towards obtain-
ing nuclear weapons for itself. In the late 1960s, Germany discontinued research
activities which might have pointed in the direction of weaponization. Further-
more, the integration of its centrifuge enrichment technology with that of the
British and Dutch in a joint venture, URENCO, made it much harder for Ger-
many to use this technology for a later breakout. This speaks against the existence
of a broader German hedging policy.
If interested exclusively in nurturing its security, Germany’s most likely pol-
icy would have aimed at pleasing its nuclear protector, the US. Since the US was
keen to make the NPT an efficient treaty, flawless compliance by the Germans
would have been conducive to fasten the German-US relationship and thus a most
advisable way to enhance German security. However, Germany’s choice of policy
led to a temporary alienation between it and its protector and could have been
highly detrimental to the overall relationship. Taken together, these considerations
rule out a security motivation for German non-compliance.
Economic interests would seem to offer a more plausible explanation: Ger-
many wanted to develop the full fuel cycle and to export it, regardless of the pro-
liferation consequences, for its economic gains. Again, at closer look, the matter
is less straightforward. Domestic investments in the complete fuel cycle were an
extremely costly and economically risky business, as the success of MOX fuel
and the breeder which Germany pursued was all but certain. The enthusiastic pro-
nouncements of civilian nuclear pundits were countered by much more skeptical
analyses. The forecasts were wildly optimistic, and this was exposed by critical
experts. If the German government and industry pressed forward with their plans
stubbornly without carefully considering the merits of the critical reviews (which
turned out to be right a decade later), more was likely involved than pure econom-
ics. The emotionally charged presentation of the German positions also implies
deeper motivations at play than simply greed.
The same consideration applies to the export field. The US was outspoken
vis-à-vis Bonn in its criticism of Germany’s nuclear exports, mainly the Brazil
deal. Any calculation of economic benefits to Germany would have had to con-
tend with enormous reputational costs. But the deal itself was highly risky in eco-
nomic terms; it was a subsidized offer based on lofty expectations of the Brazilian
and the world markets which were quickly revealed as unfounded. The ability of
Brazil to absorb the huge project was doubted by almost every country expert.
The German government afforded loan guarantees with potential largely n­ egative
110 M. Fey et al.

consequences for the budget. The huge deals, promoted with high emphasis, were
in fact high risk given the economic (Brazil, Argentina) and political (Iran) viabil-
ity of the customers and did not prove overly profitable to Germany. At the same
time, they necessarily and inherently entailed the risk of scolding and even pen-
alty by the US, for example, difficulties to obtain fuel as a consequence of the
pursuit or defiant export of the full fuel cycle. The US Congress and the Depart-
ment of Commerce in the late 1980s and early 1990s targeted individual com-
panies that had used the permissive German export policy for doubtful deals. In
both the domestic fuel cycle and nuclear exports, Germany did not seem to have
a sufficiently strong economic interest in a rationalist sense to bring about devia-
tions from compliance with its international legal undertaking.
The German insistence on reciprocal commitments by NWS to submit their
peaceful nuclear activities to IAEA safeguards illustrates the emphasis placed by
Bonn on the establishment of some degree of equal treatment, even if superfi-
cial. This demand was almost entirely of a psychological nature: Realizing that
safeguarding civilian facilities in NWS is irrelevant in strategic terms (since safe-
guarding controls against diversion to military purposes, which NWS already and
legally possess), the insistence was clearly symbolic, and meant to alleviate the
inequality of obligations, rather than to achieve any meaningful results. The US
and UK could choose which installations would be inspected, and it was any-
how clear that the IAEA would not spend resources on inspections “devoid of
practical value”; the voluntary submission, according to Goldschmidt, “may be
compared to the attitude of a traveler who has a right to show the customs offi-
cials which of his suitcases should be examined” (Goldschmidt 1980, p. 79). If
Germany’s concerns for reciprocity were informed by economic interests (alone)
and not by justice considerations, it would have insisted on controls being applied
more comprehensively to NWS’s civilian nuclear industries. Instead, the German
government itself repeatedly pointed to the psychological nature of its request.47
Furthermore, distinguishing between the economic interest and the justice
grievances is not necessarily required, because they are tied together. This per-
spective applies particularly in the NPT, since there is a clear connection between
the treaty’s discriminatory nature and the ensuing unfair balance of rights and

47Kurt Georg Kiesinger, Meeting of the Chancellor with Prime Minister Wilson,
16.02.1967, quoted in Schwarz (1998, pp. 284 f.); Antwort der Bundesregierung auf die
Kleine Anfrage der Abgeordneten […] betr. Vertrag über die Nichtverbreitung von Kern-
waffen vom 1. Juli 1968 und Verifikationsabkommen IAEO-EURATOM vom 5. April
1973, Deutscher Bundestag, Drucksache 7/2375, 11.07.1974.
4  The Role of Justice in Compliance Behavior 111

duties which leads consequently to disadvantages incurred by NNWS; in this


way, the justice motive influences “interests.” Germany’s questionable regime
behavior in the field of nuclear exports can be only insufficiently explained with-
out taking into consideration Germany’s substantial justice grievances.

4.6 Conclusion

The German case establishes the plausibility of the impact of justice on compli-
ance behavior. The country emerged as a Western democracy, in strong security
dependence on the US. It was obvious to German politicians that the acquisition
of nuclear weapons would not end this dependence. These were instead seen as
a symbol of equality. Germany risked serious disputes with its protector because
of a highly critical attitude towards the NPT and the stubborn insistence on an
unlimited right to peaceful use and civilian (and dual use) exports. Ironically, this
policy ended together with the Cold War that reduced the virulence of Germany’s
security dependence on the US not totally, but considerably, as the main threat
disappeared and the security environment became much more pleasant to a larger
Germany encircled by friends.
Our analysis of the German discourse and considerations of the alternative
economic explanation show that not economic interest disguised as justice con-
cerns were at play, rather that justice concerns informed and even framed Germa-
ny’s perceived economic interests that drove policy. This conclusion is supported
by the emotionality that characterizes many utterances in the German debate; the
expressions regarding the NPT by Strauß and Adenauer, quoted above, are obvi-
ous cases in point. As Mercer (2010, pp. 6 f.) has claimed and as brain researchers
confirmed (e.g. Singer 2007), feelings of injustice create strong emotions which,
in turn, serve to evaluate perceived causes of this injustice. If an international
regime is seen as a reason why one has suffered injustice, it will be assigned a
negative evaluation, and the motivation to comply will sink accordingly.
These findings call for the integration of justice concerns in research about
processes related to compliance behavior. Research following the case study pre-
sented here could take three directions. First, future research could aim at tracing
the causal mechanism(s) at play here. Second, it could expand the scope on the
actor axis beyond Germany as well as the regime axis beyond the NPT in order
to increase generalizability. Finally, more case studies should ask for the different
weight that justice claims might be given by different types of actors, the varia-
tion in justice principles by which such claims are justified, and the distribution of
preferences for justice principles across countries and regions. For such research,
112 M. Fey et al.

we do not expect “justice” to acquire a monopoly explanatory position for com-


pliance behavior. But it would be surprising if it would not contribute substan-
tially to a more comprehensive explanation of such behavior.

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Gender Justice in Multilateral
Negotiations: The Case of SGBV in the 5
Rome Statute and in the ICC

Simone Wisotzki

5.1 Introduction1

For a long time, sexual gender-based violence (SGBV) has escaped sanctions in
the international realm. The high incidence of sexual and gender-based violence
in the Rwandan genocide and in the Balkan wars enabled different norm entre-
preneurs to take action. For the first time, such gross violations of human rights
were punished through the installation of ad hoc criminal tribunals (International
Criminal Tribunal for Yugoslavia/ITCY and International Criminal Tribunal for
Rwanda/ITCR). These tribunals aided the cause of feminist lawyers who sought
to have sexual and gender-based violence recognized as legal crimes and as gross
human rights violations seriously inhibiting individual physical integrity and
security. This chapter seeks to illuminate the processes that led to the criminaliza-
tion of SGBV and its recognition in the norms of the Rome Statute, which paved
the way for the institutionalization of the International Criminal Court.
Norm research in International Relations focuses in general on the relevance
of norms and their potential contestation. Quite a few studies of norms ­emphasize

1This chapter is part of a research project on “justice conflicts in multilateral negotiations”


financed by the German Research Association. Earlier versions of this paper were pre-
sented at the International Studies Association. I would like to thank Lisa Waldheim for her
excellent research assistance.

S. Wisotzki (*) 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: wisotzki@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 115


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_5
116 S. Wisotzki

the role of human suffering for framing or grafting norms onto existing moral
belief systems (Carpenter 2007, p. 103; Price 1998). Social movement theory
complements such insights by further differentiating the modes of framing:
Closely related to the humanitarian frame is what is called the “injustice frame”
when social movements call attention to victims and amplify their victimization
(Benford and Snow 2000, p. 615). I argue in the following chapter that the nego-
tiations leading to the Rome Statute and the establishment of the ICC are a para-
digmatic case for illuminating the relevance of such an “injustice frame”.
SGBV in wars had long been perceived as a crime against the honor of women
and was characterized as such in international humanitarian law (IHL). Feminist
lawyers arguing for the inclusion of SGBV in the Rome Statute managed to shift
this discourse in the direction of acknowledge the seriousness of such crimes and
empowering the victims to seek retributive justice. While the normative results of the
Rome Statute regarding the inclusion of SGBV were laudable, these norms became
a matter of serious contestation during the negotiations. Some states perceived
SGBV as a heinous crime and human rights violation, while others did not contest
this matter in general, fearing that some aspects of the criminal specification might
infringe on their national sovereignty and the prerogatives of national prosecution.
The justice perspective on multilateral negotiations helps illuminate the con-
testation of these norms in more detail. Consequently, the theoretical Chap. 2
draws on insights from International Political Theory on Global Justice. To con-
centrate on the “injustice motive” helps understand the underlying motivation and
understanding of the feminist lawyers who, as experts, became crucial lobbyists
or—norm entrepreneurs—in the process leading to the ICC. Chapter 2 also draws
on the concept of “gender justice” as a normative lens for looking at the ICC’s
implementation processes and adjudication practices. The empirical section in
Chap. 3 argues that while gender justice has been normatively embedded in the
Rome Statute and a decisive change of discourse was reached through the group
of feminist lawyers, the implementation and adjudication practice of the ICC is
not consistent regarding its SGBV indictments. This becomes even more obvious
when concentrating on gender insights into the root causes of SGBV as well as
gendered concepts of retributive and restorative justice.

5.2 Gender Justice in Multilateral Negotiations

The role of rival justice claims has not been systematically addressed as part of
IR research on norms, even though there are conceptual overlaps between norm
research and a focus on justice: The concept of legitimacy as the “right to rule”
5  Gender Justice in Multilateral Negotiations 117

emphasizes the appropriateness and acceptance of norms, compliance with them,


and the role of democratic institutions (Hurd 1999, p. 388). Thus, legitimacy
encompasses aspects of justice, such as fairness and equal participation rights
(Deitelhoff 2009; Müller 2007; Lynch 2000). Approaches to global governance
stress in particular the role of deliberative procedures and routines in order to gain
legitimacy for norms (Risse 2000, p. 7). Empirical case studies nevertheless indi-
cate that commonly shared interpretations of norms and a common lifeworld as
a shared frame of reference are rare and limited among diplomats at the United
Nations (Müller 1994, p. 33, 2007, p. 216; Deitelhoff and Müller 2005). Due
to this lack of a common lifeworld, fundamental norms such as sovereignty or
human rights can become contested between negotiating parties. Disputes over
the constitutive role of sovereignty emerge particularly in those negotiation situ-
ations where sovereignty clashes with other fundamental norms, such as human
rights (Sandholtz 2008; Wiener 2009).
The tension between these two different fundamental norms can be identified
as normatively driven conflict in moral philosophy and political theory. Various
schools of thought debate various aspects of global justice.2 Moral cosmopolitan-
ism3 starts from an individualist and universalist assumption. Following a moral
cosmopolitan perspective, human beings have a positive obligation to prevent suf-
fering and injustice beyond state borders (Shapcott 2010, p. 15; Lu 2000, p. 263).
As a consequence, individual human rights are prioritized against principles of
state sovereignty (Pogge 1992, p. 58). Communitarians criticize these universal
positions and argue that cosmopolitanism overlooks the profound normative and
cultural pluralism in world politics. Principles of justice can only be established
within the context of national communities, and may differ, depending on culture
and whether people are citizens of the United States or of China (Walzer 2006;
Brown 1992, 2002, pp. 92 f.). Thus, global justice must be perceived as contex-
tual and cannot be universal in range (Miller 2005, 2007, p. 263). Communitarians
point to the relevance of borders and argue that global justice must acknowledge
the principle of state sovereignty (Nagel 2005, pp. 113 ff.). The clash of ideas

2Other schools of thought are, for example, discourse ethics, ethics of war and peace, femi-
nist ethics or post-colonial theory. For an even broader overview see Shapcott (2010) or
Hutchings (2010).
3Within the debate of cosmopolitanism different strands have emerged. For the purpose of

this paper I mainly rely on the positions of moral cosmopolitanism which are founded on
the idea of a “common human community” (Shapcott 2010, p. 15). Other variants include
institutional, normative and legal cosmopolitanism (Beardsworth 2011, pp. 29 ff.).
118 S. Wisotzki

between cosmopolitanism and communitarianism contains two main aspects:


First, the two schools of thought differ in their perception of the appropriate
domain of justice. Can justice be truly global or is it limited to the state/nation?
Secondly they disagree regarding the relevant dimensions of justice: distribution,
participation and recognition (Fraser 2008).4 I assume that appeals to different
notions of justice serve as strong justifications for states’ positions during inter-
national negotiations (Müller 2011, 2013; Müller and Wunderlich 2013; Hofmann
and Wisotzki 2014). Given that the clash between individual human rights and
statist sovereignty concerns is also mirrored in the negotiations of the Rome Stat-
ute, I also analyze claims of justice in its three dimensions: distribution, procedure
and recognition (Fraser 2008).
These academic debates are not merely normative; they are also relevant and
mirrored in global disputes in the diplomatic arena. Concepts of liberal justice
and human rights promoted by Western norm entrepreneurs frequently cause con-
cern in the Global South, as decolonized states suspect that these values are just
fig leaves for Western imperialism (Purdy 2005, p. 323; Barnett 2005, p. 734;
Duffield 2001). From an Indian perspective, for example, the state symbol-
izes emancipatory representation as result of decolonization: statist sovereignty
and non-interference remain guarantees of self-determination, safeguarding
rights to human beings after being liberated from colonial oppression (Bajpai
2003, p. 260). Such different understandings of justice which either focus on
the domain or the dimensions of justice are frequently contested in the course of
­multilateral negotiations.
For the purpose of this Chap. 1 draw on such insights from empirical justice
research, but I seek to extend such a perspective through the lens of gender and
gender justice because both informed and became constitutive for the agitation
of the group of feminist lawyers. A perspective on gender justice focuses helps to
gain a fuller picture of the particularities of sexual violence and the comprehen-
sive efforts to criminalize it. It thus also serves as a yardstick for evaluation of the
norm generation efforts that led to the establishment of the ICC. Concerning the

4A similar debate on the question of the adequate domain of justice and the range of its
principles can be identified within IR theories. The English School in particular articulates
the tension between statist sovereignty norms and human rights concerns (Jackson 2003;
Dunne 1998; Wheeler 1992, p. 477; Bull 1977). Solidarist and pluralist schools of thought
within the English School differ, for example, on the question of forcefully interven-
ing in conflicts. Proponents of liberal internationalism argue even more openly for force-
fully intervening in conflicts if severe human rights violations have been acknowledged
(Buchanan and Keohane 2004, p. 4 f.; Evans and Sahnoun 2002, p. 101).
5  Gender Justice in Multilateral Negotiations 119

causes of SGBV, early feminist approaches tend to rely on essentialism regarding


the role that gender stereotypes of masculinity and femininity play in the outbreak
and course of armed conflicts (Skjelsbaek 2012, p. 140). The dominant narra-
tive—often also prevalent in the political practice—tends to essentialize women
into a “monolithic victim group and gender as a unitary ground for discrimination”
(Mibenge 2013, p. 7). Gender becomes the main determinant of sexual violence,
and the root causes of SGBV are portrayed as lying within the power inequalities
based on gender roles characterized by the male domination and female subordina-
tion. While gender factors play a role in acts of SGBV, such a perspective tends to
overlook other structural factors which intersect with gendered images of (fe)male-
ness. Essentializing individuals based on gender as a root cause of SGBV ignores
the diversity of women’s experience and the disparities among women and girls
(Corser 2011, p. 5). Furthermore, such an approach overlooks the empirical fact
that sexual violence in armed conflicts and post-conflict situations also targets—
albeit to a lesser extent—men and boys (Carpenter 2006).
Feminist peace and conflict research focuses on an intersectional analysis to
explain the root causes of SGBV in armed conflicts and post-conflict situations.5
An intersectional approach makes it possible to move beyond the victim-perpetra-
tor conceptions of sexual violence against women and instead focuses on struc-
tural inequalities which facilitate SGBV such as poverty, unemployment, lack
of housing, displacement and food insecurity (Ertürk 2007, p. 10).6 In order to
provide a full picture of gender justice, both retributive and restorative justice
must be taken into account. Furthermore, feminist lawyers have been critical of
the consequences of taking a retributive justice approach in international crimi-
nal law. In practice, SGBV has often been treated as “secondary crime” (Green
2011), implying that its prosecution was often treated as secondary in character.
Because retributive justice is harm-oriented, killings are frequently perceived
as more serious than rape when local communities have been questioned. Such
empirical findings result from deep-rooted sexism and gender stereotypes t in
societies as well as in international law, which lead to a discrimination bias in
the evaluation of such crimes. Feminists such as Guzman (2011, p. 521, 2012,
p. 21) propose a deontological view for international criminal adjudication. Such
a deontological approach requires assessing the harm associated with crimes as

5The term “intersectionality” was introduced by Kimberlé Crenshaw (1989) discussing


black women’s employment in the US (Yuval-Davis 2006, p. 194).
6The intersectional understanding of SGBV in armed conflicts and post-conflict situations

closely resembles Johan Galtung’s concept of structural violence.


120 S. Wisotzki

well as the level of culpability. While killing might be legitimate under some lim-
ited conditions of the laws of war, sex crimes are never legitimate. While harm
remains a generally under-theorized concept, there is reason to conclude that
harm against women is particularly severe in societies where women’s lives are
undervalued.
From a perspective of gender justice, a retributive justice approach fails to
take into serious account some of the most heinous war crimes and crimes against
humanity such as sex crimes. While the deontological approach deciphers the dis-
crimination bias which often results in treating SGBV as secondary crime, such
a perspective falls short of addressing the underlying structural causes of SGBV
which must be considered in order to prevent SGBV from persisting, such as in
post-conflict societies. Consequently, gender justice also needs to encompass ele-
ments of restorative justice. Victims of SGBV are particularly vulnerable because
they often experience stigmatization and discrimination in their families and
respective communities. A carceral or retributive justice approach ends impunity
and demonizes the individual perpetrator which is, in case of the ICC, only the
top-rank commanders and politicians responsible (Engle 2018, p. 141). Restora-
tive justice has been contested because it seeks to bring victims and offenders
together to collaboratively attempt to heal harm done. The primary restorative
practice in international criminal law focusing on sex crimes should be victim
participation and the award of individual as well as gender-sensitive community-
based reparations (De Guzman 2011, p. 527).

5.3 Case Study: SGBV in the Rome Statute and the


ICC

5.3.1 The Change of Discourse on Sexually-Related


Crimes

From ancient times throughout the greater part of the Middle Ages, sexual vio-
lence against women, and in particular rape, was commonly perceived as a prop-
erty crime, a crime committed against the man who “owned” the woman, not
against the woman herself (Brouwer 2005, p. 4; Douglas 2001). This changed in
part during the late 18th and 19th centuries, when the first institutions of Inter-
national Humanitarian Law (IHL) which sought to protect civilians in conflicts
were established. However, the provisions which in part were intended to pro-
tect women from sexual violence remained vague. The Lieber Code of 1863,
for example, prohibited acts of wanton and unnecessary violence which also
5  Gender Justice in Multilateral Negotiations 121

included rape.7 The different Hague Conventions further advanced the Interna-
tional Humanitarian Law and the rules of war. Despite these regulations for war-
fare, the prohibitions against sexual violence were primarily based on the notion
that women deserved protection due to their being the property of men. This per-
ception started to change during the Nuremberg Trials. In late 1945, the Control
Council Law No. 10 issued by the occupying authorities in Germany listed rape
for the first time as a crime against humanity in order to provide a uniform basis
for prosecuting war criminals.8
The war horrors of Bosnia and the deliberate and widespread war strategy
of targeting women having the same ethnic background as a wartime opponent
gained international notoriety. Women were not harmed simply because they
were among the enemy population, but also because they kept the civilian popu-
lation functioning (Dixon 2002, p. 703). They became targets as part of organ-
ized ethnic warfare aimed at destroying the opposing population (Moshan 1998,
p. 156). In early 1993, an International Human Rights Law Group called Women
in the Law Project (WILP) traveled to Rwanda to gather evidence through inter-
viewing victims of sexual violence. They pursued a multitrack strategy by spread-
ing the message globally to women’s groups but also directly by targeting the
International Criminal Tribunal for Rwanda (ICTR). The initiative finally suc-
ceeded in convincing the Prosecutor Judge Goldstone to add sexual offences to
the crime list prosecuted by the Tribunal (Halley 2008–2009, p. 15).
The intense media coverage of crimes such as mass rapes drew international
attention and paved the way for the International Criminal Tribunal for Yugo-
slavia (ITCY). Nevertheless, in the original statute of the ITCY rape was not
included as a punishable crime (Erb 1998, p. 418). Only the close public atten-
tion to the sexual atrocities committed in the Yugoslavia conflict paved the way
for broadening the scope of crimes to include rape and other forms of SGBV.
The Foca indictment charging eight Bosnian Serb soldiers, policemen and

7Article 37 of the Lieber Code reads as follows: The United States acknowledge and pro-
tect, in hostile countries occupied by them, religion and morality; strictly private property;
the persons of the inhabitants, especially those of women; and the sacredness of domestic
relations (See ICRC 1863).
8Interestingly enough, the International Military Tribunal for the Far East, established by

the US to sue leaders of the Japanese Empire, contained no reference to such crimes in
its Charter. Only a few leaders were found guilty of sexual violence under the category of
failure to prevent atrocities at the command level. These convictions stood in stark contrast
to the failure to prosecute on behalf of more than 200,000 “comfort women” detained in
camps by the Japanese government (Ellis 2007, p. 228).
122 S. Wisotzki

p­ aramilitary with rape and sexual assault of at least fourteen Bosnian Muslim
women in the town of Foca represents a milestone, as sexual crimes were pros-
ecuted as a grave breach of the laws and customs of war and as a crime against
humanity. Judge Goldstone explicitly stressed in this context that International
Humanitarian Law has to be perceived as a species of criminal law and that crimi-
nal law is the real genus while IHL is the particular focus. Consequently, the
ITCY dealt with crimes beyond the focus of IHL. Perpetrators were also pros-
ecuted and convicted for rape as crimes against humanity, which differ from war
crimes in that they do not require a link to an armed conflict. The Trial Chamber
defined rape “as a violation of sexual autonomy” while stressing the human dig-
nity and bodily integrity of the victims (Erb 1998, p. 422).
In the court decision against Akayesu in the Rwanda Tribunal, the Trial Cham-
ber managed to clearly differentiate between rape and other forms of sexual vio-
lence encompassing forms of harm to personal dignity. In the case of rape, the
Court decided that “coercive circumstances need not be evidenced by a show
of physical force. Threats, intimidation, extortion and other forms of duress that
prey on fear or desperation may constitute coercion, and coercion may be inher-
ent in certain circumstances, such as armed conflict”. With the two tribunals, the
ITCR in Rwanda and the ITCY in the former Yugoslavia, the international per-
ception of sexual violence had changed. The discourse finally shifted from a per-
ception which conceived sexual violence as a violation of men’s property rights
over women to a perception emphasizing the human dignity and bodily integrity
of victims (Koenig et al. 2011, p. 14). Such an understanding helped the vari-
ous women’s activists to make their case, particularly as existing IHL persists
in framing sexual violence as an infringement of women’s honor. Diverse social
movements, non-governmental organizations and their networks also served
as important facilitators for framing sexual violence as a crime against human-
ity. Women’s activists managed to put the issue of women in armed conflict on
the agenda of the World Conference on Human Rights held in Vienna in 1993
and of the Fourth World Conference on Women held in Beijing in 1995 (Copelon
2000, p. 219; Bedont and Hall-Martinez 1999, p. 2). As an outcome of the Beijing
conference, the Beijing Platform for Action obligated governments to integrate a
gender perspective within the resolution on armed conflicts. Under the Arria For-
mula where NGOs are invited to address the UNSC members, women’s activists
successfully gained the attention of the UN Security Council which recognized
violence against women in armed conflicts as a serious global challenge in UNSC
Resolution 1325 in 2000.
In the case of the Rome Statute, a group of feminist lawyers served as experts
and lobbyists during the Rome negotiations. Some of these feminist legal experts,
5  Gender Justice in Multilateral Negotiations 123

for instance Catharine MacKinnon, started out in 1994 as counsels of Bosnian


victims who sued the Bosnian Serb Leader Radovan Karadzic in the United
States District Court in the case Kadic v. Karadzic. While the Kadic plaintiffs
are unlikely to receive any of the millions in compensation, the decisions of the
US Court had important symbolic value and added to the moral and social rec-
ognition of deliberate bodily harm in intra-state armed conflicts as crimes against
humanity (Dixon 2002, p. 706).
A crucial role was played in changing the discourse by the Women’s Caucus
for Gender Justice created in February 1997 during the PrepComs of the Rome
Statute. This caucus emerged from one presented at the Fourth World Conference
on Women in Beijing. The Women’s Caucus primarily sought to educate peo-
ple worldwide about crimes against women. During the PrepComs the Women’s
Caucus held regular gender briefing sessions during which specific knowledge
about terms such as gender or the definition of sexual violence was provided (Erb
1998, p. 426). To this end, the Caucus developed membership sections in almost
all countries participating in the negotiations, from all regions of the world, and
distributed valid information about the status of negotiations. During the nego-
tiations in Rome, the Women’s Caucus managed to diversify the issue of sexual
violence against women and girls in order for other forms of criminal activities
beyond rape to be recognized. They also achieved the formal recognition of sexu-
ally-related crimes against men as crimes against humanity on an equal footing in
the Statute (Benedetti et al. 2014, pp. 69 ff.).

5.3.2 SGBV in the Rome Statute

Both the ICTY Statute and the ICTR Statute also recognize rape as “crimes
against humanity”. These new rules relieved rape of its “retro dignity and honor
baggage” and allowed it to be recognized as a freestanding crime of the same grav-
ity as murder, extermination or enslavement (Halley 2008–2009, p. 68). Never­
theless, feminist lawyers were not satisfied with the ways rape was defined and
treated in the statutes of the two war tribunals. Rape as a crime against human-
ity was only recognized if committed in the course of “armed attack”. In reality,
such crimes often occur sporadically, which would not allow prosecution under
such a narrow interpretation of the norm in question. Consequently, feminist law-
yers in Rome sought to minimize the level of armed conflict needed to recognize
rape as a crime against humanity. Moreover, as feminists strove to place rape as a
crime at the highest level of the IHL hierarchy, they also sought to avoid catego-
rizing rape only as a crime against humanity, because such a definition implied
124 S. Wisotzki

that ­raping an individual human being would harm humanity. Instead, feminists
sought to define rape as a “grave breach” and as a war crime, and thus to indi-
vidualize the wrong and allow its gendered focus to appear. This was achieved
thanks to the intense lobbying of the Women’s Caucus on Gender Justice.
Already during the PrepComs, the Women’s Caucus had sought to include
rape as well as other SGBV crimes as part of the war crimes list. The Prep-
Coms finally added a provision within the section concerning other war crimes
which included “rape, sexual slavery, enforced prostitution, enforced pregnancy,
enforced sterilization and any other form of sexual violence also constituting a
grave breach of the Geneva Conventions” (Erb 1998, p. 429). The recognition of
rape and other forms of sexual violence as grave breaches under the ICC stat-
ute marks an extraordinary step in the development of international law as it fine
tunes SGBV crimes on the rubric of the laws of war. Article 8.2 (b) (xxii) of the
Rome Statute holds that the ICC includes jurisdiction to try individuals for grave
breaches of the Geneva Conventions, including a subsection on sexual offences
(Chappell 2014, p. 579). Rape committed against individuals protected by the
Geneva Conventions falls within the scope of the “grave breach” provisions in
that it constitutes torture or inhumane treatment. Already in 1992, the ICRC had
declared in its comment on the Geneva Conventions that rape as “willfully caus-
ing great suffering or serious injury to body or health” would fall under the grave
breach provision. Shortly afterwards, the US State Department also affirmed that
rape constitutes a grave breach under the Geneva Conventions and could be pros-
ecuted as such. Such precedents helped the case at the Rome Conference and as a
result rape could be included in the list of grave breaches and part of war crimes.
In addition, one major accomplishment of the Rome Conference with regard to
war crimes certainly was the inclusion of war crimes committed in non-interna-
tional armed conflicts (Dörrmann 2003, p. 348). Nevertheless, in the original ILC
statute draft of the International Criminal Court gender-specific concerns were
not included (Erb 1998, p. 424).
The Rome Statute of 1998 of the International Criminal Court (ICC) also
added sexual slavery, enforced prostitution, forced pregnancy, enforced steriliza-
tion and other forms of sexual violence of equal gravity to the list of war crimes
and of crimes against humanity (Ellis 2007, p. 235). In comparison with the
ICTY and the ICTR, the ICC thus codifies several other crimes against women
apart from rape. It also adds a gender component, because it acknowledges that
sexual violence could be committed against both sexes—men or women (Lewis
2009, p. 24). Nevertheless, already during the PrepComs, the term “gender”
became contested and was only included in the text in brackets.
5  Gender Justice in Multilateral Negotiations 125

During the Rome negotiations this dispute over the term “gender” erupted
once more and almost led to a last-minute failure of the whole conference. Gen-
der and the definition of SGBV became two seriously debated potential stum-
bling blocks. The attempt of the Women’s Caucus on Gender Justice to stretch
the definition of sexual violence as a legal crime to the utmost possible limit trig-
gered the opposition of a number of states which stressed cultural or religious
points of concern. A major point of contention arose from the question whether
the term “gender” was adequate for the recognition of rights of both sexes. Gen-
der as envisaged by the NGO coalition was the subject of considerable and sharp
debate during the Rome negotiations. The Women’s Caucus wished for a wider
definition of gender which also reflected the power inequalities between men and
women. The Vatican and a number of Arab states sought to prevent the inclusion
of such a term because they feared that it would be interpreted as encompassing
sexual orientation (Halley 2008–2009, p. 45 f.; Spees 2003, p. 1244). The oppo-
nents finally managed to restrict the definition of gender to biological sex differ-
ences and refused the recognition of the social construction of gender. Article 7
(3) finally reads as follows:

For the purpose of this Statute, it is understood that the term ‘gender’ refers to the
two sexes, male and female, within the context of society. The term ‘gender’ does
not indicate any meaning different from the above.

The reference to the two sexes reflects the positions of the Arab states and the
Vatican. The phrase “within the context of society” is intended to incorporate the
social construction of gender and therefore contains a compromise in language.
The last sentence was again sought by the small group of anti-gender diplomats
hoping to exclude other sexual orientations in this way (Copelon 2000, p. 237).9
Similarly, the recognition of other sexually-related crimes such as the recogni-
tion of policies of sexual apartheid as pursued by the Afghan Taliban vis-a-vis
women was a contested issue. Due to the opposition of the US delegation, the
NGO network was unable to successfully advocate the inclusion of such crimes
into the definition of SGBV. In addition, a potential norm on enforced preg-
nancy stirred the opposition of the Vatican and the Arab states, which feared that
such a definition might be read as affecting national laws related to pregnancy.

9A crucial element of procedural justice—the principle of consensus—allowed a small


group to achieve a crucial weakening of the text of the Rome Statute. To reach compro-
mise, the majority of states had to give into the concerns of the few states which disliked
aspects of gender justice.
126 S. Wisotzki

The Vatican sought to delete enforced pregnancy from the draft statute on the
grounds that it threatened to criminalize enforcement of national laws discourag-
ing or criminalizing abortion. The Women’s Caucus on Gender Justice introduced
a new and more specific meaning to the contested term “enforces pregnancy”.
The term “forced pregnancy”, which was adopted in the final draft of the Rome
Statute (Bedont and Hall-Martinez 1999, p. 74), clarifies that the crime in ques-
tion must be committed with violent intent.
In the end, some of the paragraphs on SGBV had to be compromised on, and
the consensus principle worked against a more far-reaching normative solution.
The ICC statute was nevertheless the first opportunity for the international com-
munity to codify by convention crimes against humanity and find a common
understanding of what should be perceived as shocking the collective conscience
of humanity. The definition of these crimes reflects the growing recognition of
gender-based crimes under international criminal as well as humanitarian law.

5.3.3 The Institutionalization of the ICC and the


Implementation Process: Some Inhomogeneous
Results

After the Rome Conference and the establishment of the Rome Statute, more fine
tuning was needed to establish an International Criminal Court. In a series of fur-
ther preparatory meetings, the state delegates debated some of the nuances of the
definitions. Interestingly, similar justice conflicts reappeared on the question of
individual rights, such as on gender and on the scope of SGBV. The first debate
arose on the question of the level of coercion and consent in prosecuting a case of
rape. While Germany, Spain, Israel, Italy and UK wanted to delete the clause on
the definition of consent, Columbia, Chile, Cuba and Brazil opposed the deletion
with an argument on the need for proof. Finally, a procedural rule was inserted
in order to provide balance with regard to the rights of the accused (Women’s
Caucus 1999). Statist sovereignty concerns were raised on the issue of the recog-
nition of gender crimes as crimes against humanity. Eleven Arab states inserted a
proposal that gender crimes should not be recognized as crimes against human-
ity when committed within the context of family, religion or culture (Women’s
­Caucus 1999). China inserted changes on the range of enforced sterilization.
While the original definition entails the “deprivation of reproductive capac-
ity not including birth control measures”, China sought to include the phrase
“­deprivation not intending birth-control measures with short-term effect” in order
5  Gender Justice in Multilateral Negotiations 127

to be on the safe side regarding Chinese domestic policy concerning these issues
(Women’s Caucus 2000).
Women’s rights and norms of gender equality played a crucial role in the
establishment and institutionalization of the International Criminal Court. The
ICC grants victims, including victims of SGBV, a participatory role in the Court’s
proceedings—it adopted the broadest participatory scheme compared with any
previous tribunal. The ICC stressed that its intention was the empowerment of
victims to seek retributive justice. Article 69 of the Rome Statute envisages the
creation of a Victims and Witnesses Unit for the ICC. Article 75 grants the court
the authority to award reparations including compensation, restitution and reha-
bilitation–individual rights were also strengthened through elements of restorative
justice. Elements of procedural justice were also included in the provisions of the
Rome Statute. Article 36/8 provides for the fair representation of men and women
and Article 44/2 foresees similar provisions for the office of the prosecutor and
for the ICC staff (Copelon 2000, p. 238). Studies show that elements of proce-
dural justice—such as appointing a fair representation of female judges—have a
direct effect on the indictment of SGBV crimes (Booth and Plessis 2005). The
Office of the Prosecutor (OTP) proceeded in greater detail with the institution-
alization of its criminal prosecution responsibility. In its Policy Paper on Sexual
and Gender-Based Crimes of June 2014 it stated that SGBV crimes are among
the gravest of the Statute. At the same time, the OTP recognized the difficulties
and sensitivities of effective investigation of such crimes and envisaged a rigorous
gender analysis becoming part of all crime investigations. Moreover, experiences
of investigations also indicated the need to manage the expectations of victims
and witnesses better (Office of the Prosecutor 2014, pp. 5 f.).
When looking at investigations, indictments and judgments the results look
rather inhomogeneous due to the mandate of the ICC being decisively limited.
The ICC only has a mandate to address the highest level perpetrators of the
most serious international crimes. Moreover, the culprit must originate from a
nation that has accepted the Court’s jurisdiction, or the crime must have taken
place within the borders of such a country, or the UN Security Council must have
decided to refer the situation to the ICC (Koenig et al. 2011, p. 18). Furthermore,
the criterion of complementarity must be fulfilled, that is, the Court only com-
plements and does not replace national jurisdiction. Although it has been widely
acknowledged by the international community that SGBV crimes clearly satisfy
the criterion of “sufficient gravity”, the relevant cases all indicate the existence
128 S. Wisotzki

of immense difficulties in proving the charges beyond reasonable doubt—in par-


ticular persons charged with rape or other forms of SGBV were often acquitted.10
In the ICC’s first trial against Thomas Lubanga Dyilo, the prosecution referred
to the gender dimension of the crime of enlisting and conscripting children under
the age of 15. Lubanga was charged with three counts of war crimes (Interna-
tional Criminal Court 2012). Sexual and gender crimes were included in the
charges in the Katanga, Ngudjolo, Mbarushimana and Mudacumura cases. The
accused Katanga was sentenced in May 2014 and found guilty of crimes against
humanity (murder) and four types of war crime (murder, attacking civilian popu-
lations, destruction of property and pillaging). He was acquitted of SGBV crimes
as there was no evidence beyond reasonable doubt that the crimes of rape and
sexual slavery were committed (International Criminal Court 2014). The charges
against Ngudjolo were dropped due to failure to prove beyond reasonable doubt
that he had command responsibility over the FNI rebel group in the DR Congo.11
As of 2014, the Women’s Initiative for Gender Justice (2014, p. 65) noted
that investigations were ongoing in eight countries all of which were on the Sub-
Saharan continent.12 In six of the eight cases sexual- and gender-based crimes are
involved; the exceptions so far are Libya and Mali. However, some challenges
remain: for example, only half of the sexual violence counts sought by the pros-
ecution reached trial, mainly due to the lack of or poor quality of evidence.
In the case against Jean-Pierre Bemba Gombo, former vice-president of the
DR Congo, reports of acts of sexual violence far outnumbered alleged killings
(Bensouda 2014, p. 540). In March 2016 Bemba was convicted as a former mil-
itary commander on two counts of crimes against humanity (murder and rape)
as well as on three counts of war crimes (murder, rape and pillaging). He was
sentenced to 18 years’ imprisonment. However, the Appeal Chamber of the ICC
decided in June 2018 to acquit Gombo of the charges of war crimes and crimes
against humanity as it found errors in the trial judges’ assessment that Bemba
did not take necessary measures to prevent, repress, or punish the commission

10See Article 17 (1) (d), International Criminal Court (2002).


11In the case of Mudacumura the arrest warrant is still pending, while the Mbarushi-
mana case was closed in December 2011 as the Pre-Trial Chamber I could not agree on
the charges against the accused. For the Ngudjolo case see International Criminal Court
(2015).
12Investigations are taking place in the following countries: Uganda, the DRC, the CAR,

Kenya, Sudan (Darfur), Libya, Mali and Cote d’Ivoire. Five of them (Uganda, DRC, the
CAR, the CAR II and Mali) were referred to the respective countries in their capacities as
ICC States Parties. Sudan and Libya were referred to the ICC by the UN Security Council.
5  Gender Justice in Multilateral Negotiations 129

of crimes by his subordinates. The former Lord’s Resistance Army commander


Dominic Ongwen (Uganda) has been on trial since December 2016 and was orig-
inally charged with three counts of crimes against humanity and four counts of
war crimes. In December 2015 the prosecution added a further 70 counts of war
crimes and crimes against humanity, including rape, forced marriage, torture, sex-
ual slavery and enslavement.13
The above material provides some initial insight into the difficulty of put-
ting political or military commanders on trial for charges of rape or other SGBV
crimes. Also in other pending cases, such as in Kenya or the Cote d’Ivoire where
it was asked to assist the national prosecution, the ICC faces severe difficulties,
given that its work is often perceived as unwanted interference in national affairs.
Moreover, African state leaders have become increasingly critical as they perceive
themselves to be the main target of criminal investigations by the ICC. Regard-
ing SGBV, the ICC made many efforts to prosecute perpetrators for their indi-
vidual criminal responsibility for crimes of SGBV. When looked at on a global
scale, SGBV remains ubiquitous as a strategy of war. The SVAC dataset indicates
that between 1989 and 2009, sexual violence occurred in 76 cases of armed con-
flict, and massive sexual violence was located in 17 countries (Cohen and Nor-
das 2014, p. 423). Sexual violence aimed at destroying the opposing ethnicity as
a strategy of war continues to be an abhorrent everyday reality of violent con-
flict. Recent examples refer to the terrorist regime of the Islamic State, which has
enslaved and brutalized thousands of women from the Yazidi ethnic minority of
Syria and northern Iraq (Davis 2018; Chertoff 2017; Hechler 2016).

5.4 Conclusion

Law and judicial proceedings are powerful tools for highlighting the cruel nature
of SGBV as an atrocity. The Statute of the ICC is the first international instrument
expressly to target various forms of sexual and gender-based crime—including
rape, sexual slavery, enforced prostitution, forced pregnancy, enforced steriliza-
tion, and other forms of sexual violence—as not only crimes perpetrated against

13“The additional charges related to attacks on the Pajule IDP camp, the Odek IDP camp
and the Abok IDP camp. The expanded charges against Dominic Ongwen also include
sexual and gender-based crimes committed from 2002 to 2005 in Sinia Brigade—forced
marriage, rape, torture, sexual slavery, and enslavement—and the conscription and use of
children under the age of 15 to participate actively in hostilities from 2002 to 2005, in Sinia
Brigade” (ICC 2005).
130 S. Wisotzki

humanity but also as war crimes committed in international and non-international


armed conflicts. The Statute also criminalizes persecution based on gender as a
crime against humanity. From a justice perspective, gender-based persecution is
interesting as it highlights both justice conflicts and in particular those conflicts
deriving from the divergence between strengthening individual (human) rights and
statist sovereignty concerns. While justice conflicts on the definition of SGBV and
on the term “gender” were explicit during the Rome negotiations, such disputes
stayed only along the margins during the Review Conference in 2011.
The international criminal cases where sexual and gender-based crimes were
prosecuted generated scientific and empirical knowledge about the gendered
effects of conflicts. Different forms of SGBV have been internationally recog-
nized as atrocities and national legislation has been added or revised to strengthen
the criminal accountability of perpetrators. The ICC aims at delivering restorative
as well as retributive justice. Criminal accountability is coupled with establishing
a trust fund for victims. Nevertheless, when looking more closely at the successes
of the prosecutions, trials and sentences of the ICC, the results of charging perpe-
trators of having committed sexual and gender-based crimes remain inhomogene-
ous The reasons for this are multi-faceted, but often include the deliberate neglect
of SGBV and its treatment as “secondary crime” (Green 2011). In addition, so far
the trust fund for victims (TFV) has not allocated funds for SGBV crimes.
Feminist lawyers are even more critical as they focus on the discrepancies
between the focus on the individual criminal accountability of the few most prom-
inent perpetrators and the causes of SGBV atrocities. The criminal trial model,
particularly in its Anglo-American adversarial practice, reduces the complexities
of war-time atrocities to simplistic binaries of innocent/guilt, non-criminal/crim-
inal. Moreover, the ICC practice has indicated the particular difficulty of charg-
ing perpetrators with sexual and gender-based crimes. Often, the focus remains
solely on rape and even these crimes seem difficult to prove, despite the fact that
such prosecutions are crucial to “restoring the dignity and integrity of individual
women who have experienced a deeply personal crime and seek acknowledgement
and punishment of the perpetrator” (Ni Aoláin et al. 2011, p. 440). Furthermore,
feminists remain critical of the erasure of the social context in individual criminal
trials—criminal law is implicated in ongoing social inequality. From the perspec-
tive of gender justice, the structural causes of SGBV, which often persist in the
gender inequalities in post-conflict situations, have to be addressed in a more sys-
tematic and sustainable way. Focusing only on individual criminal accountability
does little to achieve gender justice (Buss 2011, p. 418). Intersectional approaches
draw attention to the structural causes which—during armed conflict and in post-
conflict situations—facilitate sexual violence such as poverty, displacement,
unemployment, lack of housing or food insecurity (Ertürk 2007, p. 10).
5  Gender Justice in Multilateral Negotiations 131

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Institutional Justice as a Condition
for the Regional Acceptance of Global 6
Order: The African Union and the
Protection of Civilians

Matthias Dembinski and Dirk Peters

6.1 Introduction: Global Norms and Regional


Security Organizations

Emerging global norms and rules1 of liberal origin are not easily accepted at the
local level. Two similar events in 2011 highlight the need to reconsider the rela-
tion between global norms and their local acceptance. As the present chapter
argues, institutional justice is key for understanding when and why global norms
are locally accepted.

1In what follows, we will use the terms norms and rules interchangeably, conceiving of
norms as agreed-upon rules and not in their original sociological definition as expressions
of moral necessities and largely unquestioned codes of behavior.

This chapter is a slightly edited version of Dembinski M. und Peters D. (2014).


Institutional Justice as a Condition for the Regional Acceptance of Global Order: The
African Union and the Protection of Civilians. PRIF Report 130. Frankfurt am Main: Peace
Research Institute Frankfurt (PRIF). We are grateful for permission to reprint it here.

M. Dembinski (*) · D. Peters 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: dembinski@hsfk.de
D. Peters
E-Mail: peters@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 137


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_6
138 M. Dembinski and D. Peters

In April of 2011, the UN Security Council passed Resolution 1973 with a


large majority. Relying on the Responsibility to Protect (R2P) norm for the first
time, this resolution authorized the use of force to protect people from grave
crimes committed by their government—in this case Libya. This decision was
initially supported by all regionally affected states on the Security Council. After
the vote however, the African Union broke with the consensus under the leader-
ship of the non-permanent Security Council member South Africa and emphati-
cally rejected the implementation of the resolution by a coalition of willing states.
South Africa criticized their approach as a form of neo-colonial interference and
went on to distance itself from the R2P norm.
At around the same time, a UN force supported by French troops stationed in the
Ivory Coast appealed to a related norm: an obligation to the Protection of Civilians
(POC) during peacekeeping missions. The intention here was to use military force
to intervene in the violent power struggle that had emerged in the wake of the 2010
presidential elections. Incumbent president Laurent Gbagbo was to be removed from
power and arrested and his challenger Alassane Ouattara was to be put in office. As
in the case of R2P, the AU had been involved in developing the POC norm from
the beginning. However, this time, the AU continued to support the norm after it
had been applied for the first time and would later refer to the POC in justifying the
deployment and robust actions of a UN intervention force in eastern Congo in 2012.
The first situation was picked up by the press and intensely debated in aca-
demia. Indeed, Africa’s change of course in the R2P case can be considered
highly significant for the fate of global governance. Africa was the first non-West-
ern region to embrace the R2P most clearly. Given that other regions remained
skeptical of or even outright rejected the R2P, the entrenchment of the responsi-
bility to protect in article 4(h) of the Constitutive Act of the African Union from
July 2000 appeared to indicate that core liberal norms of global governance might
also achieve recognition in the non-Western world. Consequently, Africa’s turn
away from this principle was taken to be a historical turning point in the debate
about global governance. It appeared not only to herald the end of the R2P (Rieff
2011; see also Hofmann 2014, p. 17; Benner et al. 2015) but also to represent the
emergence of a front of resistance on the part of non-Western regions to prin-
ciples of liberal order. This skepticism was presumably confirmed by a similar
development with respect to international criminal justice and the liberal norms
associated with it. An arrest warrant issued for Sudanese president Al Bashir
garnered intense opposition in Africa. It prompted the AU to give up its sup-
port for the International Criminal Court and even led to the establishment of an
African version of international criminal justice. During the crisis in Libya, the
6  Institutional Justice as a Condition 139

AU explicitly requested its member states to ignore the arrest warrant against
Muammar al-Gaddafi.
Might there be a pattern here? Is the African Union becoming the grounds
and the instrument for resistance to a world order shaped by liberal institutions?
Might African states and their regional organizations even have deliberately cre-
ated the appearance of accepting liberal global norms for instrumental reasons
and revealed their true positions once the norm was first applied in practice? The
Ivory Coast case does, however, indicate that we are not dealing with such a pat-
tern and that sweeping and pessimistic conclusions about African resistance to a
liberal global order are premature. Reactions to the emergence of global norms on
the part of local and regional actors have clearly varied.
What, then, affects the position of local actors towards global norms? In our
case, the answer to this question needs to account for the variation in the African
Union’s behavior, i.e. explain why it initially supported two related global protec-
tion norms, only to distance itself from the R2P upon its first application while
continuing to support the POC.
Both cases reveal an additional similarity. In both situations regional secu-
rity organizations played a decisive role. Alex Bellamy and Paul Williams (2011,
p. 847) have characterized the functions of the Arabic League in the case of Libya
and that of the Economic Community of West African States (ECOWAS) in the
case of the Ivory Coast as those of “gatekeepers”. Their consent to the interven-
tions allowed global protection norms to be implemented in the first place. This
illustrates the rising importance of regional security organizations for the archi-
tecture of global governance. Since the end of the 1990s, many regional organi-
zations whose focus had originally been on economic cooperation—such as the
Association of South East Asian Nations (ASEAN)—have begun to develop their
capacities in the area of security, while others—such as the Union of South Amer-
ican Nations (UNASUR)—have been created with the explicit goal of coordinat-
ing security policies (Kirchner and Dominguez 2011; Aris and Wenger 2014).
According to a recent figure, over 30 RSOs currently deal with various aspects
of maintaining security in their regions (Wallensteen and Bjurner 2015). Accord-
ing to the concept of “new regionalism”, their growth can be seen as a reaction to
normative adjustment pressures, which have surfaced along with the restructur-
ing of the global order from one of sovereign equality to that of a liberal peace.
Bellamy and Williams’s analysis is incomplete, however, because they only look
at RSOs as facilitators. Regional organizations can surely be put to use by their
members in order to take advantage of global norms. They can, however, likewise
be employed in order to shield these states from normative pressures at the global
level. RSOs are thus increasingly important as interfaces between the global
140 M. Dembinski and D. Peters

and the state level. They can serve as instruments for their members to influence
normative developments at the global level. And they can function as filters that
allow, deny or adjust to the implementation of global rules. As such, our two-
sided puzzle is representative of a more general question: Under which conditions
do RSOs accept and serve as the building blocks of emerging global norms and
under which conditions do they stand in opposition to such norms, thereby acting
as barriers to global governance?
We argue that justice plays a key role in this process. At first glance, it might
appear far-fetched to assume that an empirically oriented theory of institutional
justice could clarify our current puzzle and, moreover, increase our understand-
ing of conflicts involving global norms and their regional validity. Such a theory
has not been developed as of yet. In marked contrast to exhaustive research in
the area of political theory and the new sub-discipline of international political
theory (Wisotzki 2013), there exist, at best, only a handful of studies that focus
on international justice from an empirical perspective (Welch 1993; Müller
and Druckman 2014). Even though the term justice has made an appearance in
nearly all keynote speeches addressing the global order, it remains unclear what
the term implies for world politics, whether a shared understanding of justice
exists, and whether it is something that motivates the actions of political deci-
sion-makers and is a goal that they actively pursue. The situation in the neighbor-
ing fields of social psychology, organizational research, experimental economics
and evolutionary research is quite different. Empirical justice research is firmly
established in these disciplines. Here, countless experiments and comprehensive
field research have shown that the actions of individual actors are not merely dic-
tated by their short-term interests or cost-benefit calculations but equally by their
desires for justice. Even though these findings cannot simply be carried over to
the area of international politics as is, the development of an international theory
of institutional justice may stand to benefit by borrowing from research in neigh-
boring disciplines.
Against this background, the present chapter has two primary goals. First, it
intends to establish a basic conception of international institutional justice by
drawing from empirical justice research carried out in other disciplines. Second,
it aims to demonstrate that such a conception can lead to a more complete under-
standing of how regional actors relate to norms for global governance.
This theoretical perspective on the politics of order entails far-reaching politi-
cal implications. They concern the modalities of political control efforts, in
general, and the relationship between global and regional structures of order, in
particular, which is currently intensely debated. In this debate, the German Fed-
eral Government, for instance, has emphasized the inherent potential of RSOs
6  Institutional Justice as a Condition 141

for establishing global order. In 2012, Chancellor Angela Merkel stated that
NATO and the EU could not alone solve all the problems related to security.
Regional powers, especially regional organizations, should acquire more respon-
sibility and be enabled to more effectively assume this role (Merkel 2012). Based
on a German initiative, the European Council took up this suggestion in a con-
sultation on EU defense policies in December 2013. It subsequently passed the
Enable and Enhance Initiative (E2I) that aims at strengthening the capacities of
other regional organizations in the area of conflict prevention (Puglierin et al.
2014). The EU can thereby expand its existing programs that support organiza-
tions such as the African Union. These include its African Peace Facility (APF)
through which the AU’s peacekeeping missions are co-financed. It might appear
that through such mechanisms extra-European regional organizations (e.g. the
AU) allow themselves to be instrumentalized in order for the West to more effi-
ciently attain its goals. Upon first inspection, such a view might have some merit.
Why would Germany and the EU support strengthening RSOs if this entails limit-
ing European influence and making way for solutions to regional problems that
do not accord to European views? In contrast, institutional justice would deem
such an instrumentalized understanding as short-sighted. Instead, and in accord-
ance with the central argument of this chapter, RSOs can best contribute to stabi-
lizing the global order when they are fairly involved in this order.

6.2 Procedural Justice as a Key for Global


Governance

6.2.1 Conventional Explanations for the Regional


Acceptance of Global Norms: Theories
of Socialization and Localization

In order to clarify the specific perspective and special contribution of empirical


theories of justice to global governance research, we will first briefly introduce
the theories of socialization and localization—two theoretical concepts that have
thus far dominated debates on the local recognition of global norms. Adherents of
socialization theories take modern, successful and efficient actors to be the driv-
ing force lying at the core of the implementation of global standards. Socializa-
tion theories relativize earlier assumptions of an automatic diffusion of efficient
and modern forms of organization by placing more weight on the influence of
actors and on the significance of instrumental action. In the end, however, struc-
tural factors tend to be decisive for the success of socialization. Besides the
142 M. Dembinski and D. Peters

attractiveness and the strength of the agents of socialization—i.e. their ability


to create positive or negative sanctions—it is the normative match between the
new norms and the existing local practices and thus the cost of adjustment which
affects the success of socialization (Checkel 2005, pp. 806 ff.). In this context,
the mode of socialization extends from strategic calculations through role playing
all the way up to persuasion (Schimmelfennig 2002, pp. 11 ff.). Despite attempts
to develop more differentiated concepts, representatives of this theory ultimately
adhere to a linear process of norm diffusion, a process that progresses from incep-
tion through a gradual dissemination and up to a certain tipping point. Thereaf-
ter, norm entrepreneurs carry the process forward by way of strategic engagement
until those targeted finally internalize the norms (Finnemore and Sikkink 1998;
critique: Daase 2013).
In contrast, localization theories—particularly those developed by Amitav
Acharya—place greater emphasis on the character of actors, such as the autonomy
and strategic capabilities held by the objects of socialization efforts. Local actors
have been shown to respond both creatively and instrumentally to global norms.
Depending on how global norms relate to a “cognitive prior” (Acharya 2004)—
namely, the preexisting traditions, mentalities and interests (of the elites) —, local
states will reject them, accept them or adjust them to their needs.
Though both theories take differing stances on the assertiveness, autonomy
and creativity possessed by agents and objects of socialization, they agree on
two central points. The normative match—the accord between the contents of
global norms and local traditions and interests—is considered to be the essen-
tial condition for either acceptance or rejection. Furthermore, total acceptance is
viewed as improbable. Whereas localization theories assume that adjusting norms
to existing local traditions and practices is a more likely outcome, socialization
theories argue that strategic adjustment and role playing are, at least in the first
stage of the process, more likely than internalization. The differentiation between
the substance of a norm (in terms of the general and abstract rules it embodies)
and its application in a concrete situation is also prominent in recent research on
norms. This research has demonstrated that conflicts typically break out when
abstract rules are applied in practice. When such disputes relate to the question
of application itself—whether or not the rules suit the practical case—they will
usually result in specification of the rules. Should, on the other hand, disputes
of application uncover hidden differences in regard to definitions of the general
rules, the norm may very well break apart (Betts and Orchard 2014). Applied to
the African position towards R2P, both approaches would argue that the mark-
edly negative reaction to the norm’s first application highlights clear differences
in the interpretation of what R2P actually entails. Accordingly, even though the
6  Institutional Justice as a Condition 143

AU paid lip service to R2P early on for its own, and assumedly, instrumental
reasons, its member states held a fundamentally different understanding of the
concept compared to their Western counterparts who implemented Resolution
1973. Localization theories would presume the existence of differences over the
content between the AU and the international community with respect to ques-
tions of sovereignty—particularly in relation to the issue of whether the R2P
can legitimize emergency measures against incumbent governments that do not
meet their obligation to protect. Applied to the African position towards the POC,
both approaches would argue that the match between the definition of global
norms and local traditions and interests was better, and, accordingly, that the first
attempted application of the norm served to specify mutual understandings of
its contents. Differing reactions to both norms on the part of the AU would be
explained by their content and by how well they could be integrated in relation to
local interests.

6.2.2 Empirical Justice Research as a Basis for a Theory


of Institutional Justice in International Relations

As touched upon in the introduction, empirical justice research emerged within


the area of social psychology in the 1950s, and subsequently gained a foothold
in other areas of the social sciences such as organizational research and experi-
mental economics. This research focuses on perceptions of justice in social rela-
tions and institutions. It starts out from a conception of justice as a particular
distribution of goods and rights. A just distribution is one that accords actors what
they deserve. Moreover, justice means that equals are treated equally and une-
quals unequally. Accordingly, injustice lies in the arbitrary, unequal treatment of
equivalent demands as well as in the difference between agreed-upon rules and
actual conduct. Unlike philosophy, empirical justice research is not interested
in developing well-reasoned standards of justice. Rather, it examines what real-
world actors perceive as just or unjust and how this affects their behavior. We
cannot elaborate here on the current status of this line of research in any depth but
will only briefly highlight three central findings that are important for informing
research about institutional justice in the international realm.
First, social psychological research—particularly the work by John S. Adams
and the equity theory that he developed—demonstrates that the justice motive can
be isolated from interests. Actors do not only follow direct cost-benefit calcula-
tions. Rather, perceptions of justice likewise have an influence on their actions
(Adams 1965). Justice, and especially the recognition of injustice, even motivate
144 M. Dembinski and D. Peters

actions to a particularly large degree. A perception of justice is closely related to


socially oriented behavior and encourages the willingness of individuals to vol-
untarily contribute to the production of collective goods. Actors often respond to
perceived injustice through negative actions such as protests, refusal to cooper-
ate, sabotage and depression. In short, the behavior of real people does not cor-
respond to the assumptions made by models of rational and self-interested actors
developed by economists. Rather, people appear to be a hybrid species, “a cross-
breed of H. economicus and H. emoticus [emphasis in the original], a complicated
hybrid species that can be ruled as much by emotions as by cold logic and selfish-
ness” (Sigmund et al. 2002, p. 84).
Second, empirical justice research has come up with different explanations
for why justice is a central concern for individuals. One model starts from the
assumption that self-interested actors are dependent on cooperation in order to
achieve their goals. According to this model, justice is a shared standard that
allows the members of a community to socially organize in such a way that they
may maximize their utility by acting as competitors in cooperation with others.
As such, justice is important in so far as it regulates social interactions (Tyler and
Smith 1998, p. 612). According to a second model developed by Tom Tyler and
Allan Lind on the basis of social identity theory, justice is defined as a standard
that offers those involved the relevant information about their social status within
a given group. This group-value model assumes that actors value social recog-
nition and assess their status within a group based on how others, particularly
authority figures, treat them. It is, of course, doubtful whether these models can
be neatly separated when they are applied to empirical phenomena. Experimental
economics show that individuals oppose unfair treatment even when this proves
adverse to their short-term interests. Presumably, protest serves to maintain their
feelings of self-worth, as suggested by the group-value model. But research fur-
ther indicates that this need to protect feelings of self-worth is part of a behavioral
program through which actors arm themselves against the risk of future exploita-
tion by self-interested others. “From an evolutionary viewpoint, this self-esteem
is an internal device for acquiring a reputation, which is beneficial in future
encounters” (Sigmund et al. 2002, p. 85).
Third, and especially interesting for us, empirical justice research establishes a
difference between two dimensions of justice: distributive justice and procedural
justice. Distributive justice exists when members of a social group are convinced
that the allotment of a given good within the group corresponds to standards
shared by the group. This need not necessarily be a standard of equality. Dis-
tributive justice can also be based on standards of need, of seniority or of merit.
Justice is realized when the suum cuique principle is satisfied, when each person
6  Institutional Justice as a Condition 145

receives their deserved share. Procedural justice is a feature of decision-making


which results in the the distribution of goods. The pioneers of research into pro-
cedural justice, social psychologist John Thibaut and lawyer Laurens Walker,
investigated the conditions under which judicial proceedings and the resulting
judgments were deemed as fair by those concerned. In more general terms, proce-
dural justice refers to the fairness of the processes of applying a general rule (the
law) to a concrete case. Thibaut and Walker assumed that the so-called “process
control” (or “voice”) of those affected increases the acceptance of a judgment.
Here, process control refers specifically to “control over the development and
selection of information that will constitute the basis for resolving the conflict”
(Thibaut and Walker 1975, p. 546). The prescriptive model developed by Gerald
Leventhal (1980) is even broader. Leventhal developed a catalog of qualities that
any given procedure must fulfill in order to be deemed fair. These include consist-
ency in the application of general rules, the impartiality of decision-making bod-
ies, and the accuracy of information flowing into the procedure.
In sum, this research finds that perceptions of injustice can surface at two
points: either a general rule or an isolated decision made on the basis of that rule
can be found to be unjust. In established communities at least, justice disputes
relating to general rules are rather unlikely and justice conflicts will generally
revolve around individual decisions. When judging the justice of an individual
decision, those concerned not only evaluate the distributive effect of that deci-
sion on the basis of their conceptions of just allotment but likewise the procedure
that led to that decision. The affected parties are more likely to accept a concrete
judgment when they perceive the procedure involved in making that decision as
fair. Subsequent empirical studies confirmed the assumption that procedural jus-
tice operates independent of outcomes. Evidently, justice deficits in the distribu-
tive dimension can be compensated for by strengths in the procedural dimension
(Greenberg 1990, p. 406).
Overall, then, empirical justice research postulates that people are evolutionar-
ily equipped with a perception of justice. This allows members of a community
to acquire and share specific standards of justice and permits interactions among
members of this community to operate free of friction. The recognition of a con-
crete distributive decision as being just or unjust not only depends on the distribu-
tion itself but also on the fairness of the procedure that led to this decision.
Can the results of this research, which focus on the behavior of individuals, be
transferred to the inter-state arena? This will depend on the answer to two ques-
tions: (a) Do dispositions and perceptions of individuals influence the behavior
of large groups and of states? How reliable are the mechanisms of transfer from
the individual to the group level?; and (b) given that justice is a shared ­standard
146 M. Dembinski and D. Peters

within communities, why would representatives of states apply justice standards


in inter-state relations even though the level of cultural and social integration
within the international system is markedly lower than within historically evolved
communities?
The first question is currently being extensively discussed in the theory of
international relations by research that examines the broader significance of indi-
vidual dispositions and experiences—such as emotions (Mercer 2010, 2013),
humiliation (Saurette 2006) and respect (Wolf 2011; Ward 2013)—for state
behavior. This research has highlighted two causal mechanisms for the transfer
of individual dispositions to state behavior. First, decision makers can conceive
of the state system as a social system and determine the status of their own state
based on how it is treated by representatives of other states. Second, members of
a large group or state who identify with that group or state may project the exist-
ent individual and acknowledged justice principles onto relations between larger
groups or states. Socio-psychological justice research has also produced empiri-
cal indications that individuals transfer perceptions of justice onto large social
groups and that they hold expectations that their own social groups will be treated
justly in relation to others.
Empirical justice research also offers answers to the second question. Field
research has already confirmed the assumption that justice carries universal sig-
nificance but that concrete expectations related to justice are shaped by communal
experiences (Henrich et al. 2004). The current state of research on the question
of whether justice is universal or culturally determined has been summarized by
Tom Tyler and Heather Smith (1998, p. 619): “Most studies support the sugges-
tion that justice is important across cultural settings. However, this research also
suggests that people do not necessarily define justice in the same way.” Research
has, however, also shown that the boundaries of communal perceptions and
expectations of justice can neither be definitively demarcated nor are they immu-
table. On the one hand, communities draw a distinction with respect to the people
whom justice must serve, members of the group or outsiders. This differentiation
is not, however, absolute and communities are prepared to afford justice to outsid-
ers, though perhaps to a lesser degree than to insiders. They are less willing to
share communal goods but do take the basic rights of outsiders into considera-
tion. On the other hand, the boundaries of justice vary based on the social interac-
tions involved. It seems quite likely that globalization is shifting the boundaries
of where people are aware of and expect justice. Justice is gaining in significance
as a global and inter-state phenomenon due to an increase in transnational interac-
tions and externalities.
6  Institutional Justice as a Condition 147

In sum, there is good reason to believe that the justice motive is increasingly
playing a role in interactions between states; that states expect to be treated justly
by other states, i.e. that they expect to receive what they are entitled to; and
finally that individuals can also be recognized as subjects of justice in inter-state
relations. At the same time, however, one can rightly expect shared perceptions of
justice within the international arena to be weaker than in culturally homogenous
communities which have historically evolved. In the national arena, shared expec-
tations of justice represent a resource that allows conflicts about individual deci-
sions to be resolved discursively. In the international arena, justice disputes over
the distributive effects of single decisions are far more likely to impact the rules
informing these decisions. This makes the procedural dimension all the more cru-
cial and renders the acceptance of general rules all the more dependent on proce-
dural fairness.
Given these findings, how would empirical justice theory interpret our cases?
The starting point here would also be the difficulty of moving from the general rule
to its application in an individual case. The application is particularly meaningful
in the cases of R2P and POC. When applied they can have significant impact on
states because they limit the rights of states in varying ways. Moreover, as they
are still young norms, their interpretations are not yet settled and every instance, in
which they are applied will contribute to how they will be interpreted in the future.
Unlike socialization and localization theories, justice theories do not assume a
straightforward link between the contents of a norm and its application. Rather,
an abstract rule can be applied to a concrete case in different ways. The procedural
dimension is variable. Whether or not a decision in a case is accepted will be sig-
nificantly affected by how fair the procedures of application are perceived to be.
A justice-based explanation of our cases would entail two expectations. First,
we would expect that the AU placed particular importance on procedural aspects
during discussions regarding both the R2P and the POC. Second, we would
expect that the different reactions of the AU in both cases did not—or at least not
primarily—have to do with the contents of the norms, i.e. with any underlying
differences between the AU and the international community as to their mean-
ing, but rather with the differing opportunities for AU participation. Where the
AU sees itself unfairly excluded from decision-making over how a general rule
is applied in a concrete case, dissatisfaction with the unfairness of the treatment
should become visible in the AU’s rhetoric, in defiant behavior and a dissociation
from the content of the norm in question. Where procedures for deciding about
the application of a norm are considered fair, in contrast, this would be expected
to increase the norm’s acceptance among African states.
148 M. Dembinski and D. Peters

In the following section, we investigate the reactions to both protection norms


by African states in order to determine whether the differing reactions are bet-
ter explained by the normative match, as suggested by socialization and localiza-
tion approaches, or by perceptions of procedural fairness, as justice theory would
hold.

6.3 The Cases: Justice Theory and the African Union’s


Position on Global Protection Norms

6.3.1 The African Union and the Responsibility to Protect

As mentioned in the introduction, the African Union incorporated the idea of the
responsibility to protect in its Constitutive Act as early as July 2000. Article 4(h)
of this unusual document grants the Union the right to intervene during serious cri-
ses in a member state, such as defending against war crimes, genocide and human
rights violations. Should unanimity minus one not be achieved, a decision to inter-
vene is made by the AU General Assembly through a two-thirds majority vote
by the member states—without the government in question holding a veto right.
This indicated that the establishment of the AU in 2001 as the successor organi-
zation to the discredited Organization for African Unity (OAU) was accompanied
by a normative shift from a culture of non-intervention to one of non-indifference
(Murithi 2009; Williams 2007). It appeared that Africa and African states were not
only accepting Western norms but also that a normative shift in the global order
from one based on state sovereignty to one based on principles of liberal peace was
actively being promoted by the new organization. Some observers optimistically
commented that the R2P was a “norm born out of Africa” (Williams 2009, p. 397).
The AU’s acknowledgement of the responsibility to protect certainly was sur-
prising. For one, the OAU had previously emphasized traditional principles such
as non-intervention, sovereignty and uti possidetis, compromising with the power
interests of African potentates. And, secondly, many African states continued to
be ruled by authoritarian regimes and, due to inherent weakness and diverse inter-
nal conflicts, had the potential to quickly become the sites of serious conflicts and
the targets of humanitarian intervention. By accepting the responsibility to protect
and the associated dismantling of normative protections against external interven-
tion, AU member states were willingly accepting these risks. Given the inequality
between African states that were the potential objects of humanitarian protection
and those states with the military capacity to intervene, this represented a danger-
ous gateway for external interventions on the African continent.
6  Institutional Justice as a Condition 149

Consequently, article 4(h) was much debated during the founding of the AU
and a number of states continue to hold a skeptical position towards the new
principle. The fact that this departure from the principle of state sovereignty was
successful at all is tied to the shock of the situation in Rwanda. Foreign policy
elites and many African decision-makers came to two conclusions as a result
of the genocide: First, a crime of this sort must never be repeated and, second,
Africa could not count on the international community to take quick military
action when it came to protecting the lives of Africans. Additionally, South Africa
and Nigeria also actively contributed to the shift. The governments of both coun-
tries came to promote the establishment of liberal norms in the AU’s constitution
based on their own convictions and on strategic calculations. Supporting the shift
helped them to demonstrate the liberal leanings of their policies to both their pop-
ulaces and international observers (Tieku 2004). In order to make the R2P more
palatable and to pass it against opposing opinions, they appealed to the existing
continental norms of Pan-Africanism and traditional expectations to demonstrate
solidarity with oppressed African brothers (Adebajo 2010, p. 417; in summary
see Dembinski and Schott 2014, pp. 371 ff.; for a background on African deci-
sion-making processes see Williams 2011, p. 155).
The African protagonists of the responsibility to protect did, however, make
their acceptance dependent on one central condition. They insisted that the
African Union alone would decide on the application of the protection norm in
Africa, and not the international community or the UN Security Council. Article
4(h) explicitly granted the right of intervention to the AU, not to the UN Secu-
rity Council. The Ezulwini Consensus of 2005, through which the AU prepared
its position for the World Summit, reinforced support for the R2P but likewise
insisted that only regional organizations would decide on interventions in their
respective regions. Agreement from the Security Council was desirable but
could be granted “after the fact” (Ext/EX-CL/2 (VII) (2005), B.i.). This condi-
tion also is linked to elements of an African security culture, namely the concept
of Africa establishing its own peace. Against the background of colonialism and
neo-colonial interventions, this concept draws a normative distinction between
interventions in Africa by African and by extra-continental powers. The latter
were deemed illegitimate and the former legitimate as long as they served Pan-
African interests (Mazrui 1967, pp. 203 f.). Interventions by extra-continental
powers were considered problematic since they could lead to foreign domination
and exploitation. Accordingly, giving the AU’s decision priority was originally
designed as a defensive move. The purpose was not to prohibit extra-continental
powers from intervening to protect against grave human rights violations alto-
gether but rather to enable African participation and control capacities in order
150 M. Dembinski and D. Peters

to prevent potential abuses of interventions. Even though the AU acknowledged


the principle of R2P and accepted the fact that extra-continental assistance would
be necessary to protect African lives, it also insisted on controlling this extra-con-
tinental assistance. Along with this, the condition also had an enabling function. It
was designed to ensure—against the background of the Rwanda experience—that
Africa could solve its problems on its own without international support, which it
deemed to be unreliable, and without a mandate from the Security Council.
In practice, recognition of the responsibility to protect did certainly remain
inconsistent after 2005 and the AU continued to maneuver between the princi-
ples of non-indifference and non-intervention. African states rarely managed to
find a unified position in ensuing crisis situations. Even though their reaction to
the crisis in Darfur reflected a new sensibility towards abuses of power by states,
it also revealed existing reservations in taking action against incumbent govern-
ments or calling out their crimes (Kieh 2013). In response to the crisis in Libya,
three positions formed: South Africa, Nigeria, Rwanda, Ghana and, to a certain
degree, Tanzania and Benin were the supporters of the R2P, the Arabic States in
North Africa along with Zimbabwe comprised the opposing camp, and the rest
of the states positioned themselves somewhere in the middle of these two poles
(Williams 2009, pp. 414 f.). Yet differences in interpreting the R2P among AU
member states were hardly any greater than those within the EU (when disregard-
ing the camp of radical critics that held marginal positions in the development
of the R2P as well as in decision-making about the response to concrete crises).
In sum, the Responsibility to Protect as it is codified in the AU Constitutive Act
represents a compromise between conflicting interests, requests and concerns.
There is, however, little to suggest that accepting the shift from the principle of
non-intervention to that of non-indifference was instrumental in nature. On the
contrary, the African conception developed in accordance with the normative shift
in the global order.
This attempt to establish the Responsibility to Protect and to use procedural
mechanisms to minimize the risks of exploitation was put to the test d­uring
the crisis in Libya. As violence on the part of the Libyan government against
its populace escalated in February 2011, the AU stood in line with the interna-
tional community. When announcing its first official position on 23 February, the
Union sharply criticized the actions of the Libyan government (African Union
2011a). As the conflict assumed the contours of an armed confrontation between
the Gaddafi regime and the opposition in Benghazi, the AU drafted a road
map for resolving the crisis during a follow-up meeting on 10 March. This
document envisaged an immediate end to the fighting, the introduction of
­
6  Institutional Justice as a Condition 151

i­nternational humanitarian aid, the protection of civilians and African “guest


workers”, and the commencement of negotiations between the conflicting parties
with regard to political reforms and the county’s democratization (African Union
2011b). The three African countries with a seat on the Security Council—South
Africa, Nigeria and Gabon—supported Resolution 1970 without reservations.
After an initial period of hesitation, South Africa decided to also support Resolu-
tion 1973 on 17 March 2011, thus ensuring a majority for the resolution as the
two other ­African states followed Pretoria’s lead (Adler-Nissen and Pouliot 2014,
p. 904). ­Representatives from the African states reasoned that the no-fly zone
would protect civilians. Moreover, this would create additional diplomatic pres-
sure on Gaddafi’s regime and strengthen the AU’s position as a mediator as well
as the possibilities for negotiating a peaceful resolution to the conflict. To achieve
this, the AU put together a high-ranking ad hoc group at the meeting on 10 March
that was set to travel to Libya and initiate talks. Up to this point, the African
states along with the AU found themselves sharing the international consensus of
implementing the R2P in Libya and were apparently also in accordance with the
views of the Western initiators of Resolution 1973. The latter even approved a
passage in paragraph 2 of the resolution explicitly mentioning the planned dis-
patch of an AU delegation to Libya with the goal of finding a peaceful resolution
to the crisis.
Accord between the AU and the initiators of Resolution 1973 gave way to dis-
sonance as soon as the first bombs fell on 19 March 2011. The coalition of will-
ing states had closed Libyan airspace, thereby blocking the AU’s mission. Once
the ad hoc group was finally able to enter in April, it became clear that their nego-
tiation recommendation did not fail on account of opposition from Gaddafi but
rather from the National Transitional Council in Benghazi. According to their
interpretation, the air war had consolidated the dismissive position of the rebels.
The Transitional Council had gained military high ground due to air support from
the coalition and now hoped that they could win the conflict militarily. The coali-
tion’s official position and the way that it had conducted military action proved
that this hope was not ill-placed (Adams 2012, pp. 12 f.). The clearer it became
that the coalition’s intervention would de facto lead to a forced regime change,
the more the AU distanced itself from the coalition and became disenchanted with
the R2P principle it had supported before.
Reactions to the intervention in Libya by African states clearly brought exist-
ing differences to the fore. While Nigeria and Rwanda seemed to harbor a degree
of understanding for the coalition’s actions, rejection was most pronounced in
countries such as South Africa and Uganda (Kagame 2011). More important,
152 M. Dembinski and D. Peters

however, were the similarities. A large majority of AU member states were in


agreement that African rights had simply been ignored and that their efforts to
find a peaceful solution were undermined through the actions of the coalition.
Taken together, these observations do not support the assumption that the AU
and Western backers of the R2P had drifted apart after the crisis in Libya due to
any underlying differences as to the content or meaning of the protection norm
that would have surfaced upon the norm’s first application. The crisis in Libya
certainly did, again, demonstrate the existence of African reservations regarding
military action against established governments (Omorogbe 2012). However, the
critics of intervention by the West were not opposed to Gaddafi’s overthrow in
principle. African nationalist and Ugandan President Yoweri Museveni stressed
the right of the Libyan opposition to resist, merely criticizing the interference by
extra-continental actors. As the leading voice in the AU mission, it was also South
Africa’s diplomatic intention to bring about Gaddafi’s departure by making use
of the road map (McKaiser 2011). As such, the AU’s recommendation for resolv-
ing the crisis was operating within the boundaries of what one might have rightly
expected to also be the basis of a Western understanding of the R2P in a case such
as this.
The decisive root of the conflict was the way in which Resolution 1973 was
implemented and how this served to marginalize the AU. With their right to par-
ticipation and control ignored and the AU’s efforts undermined, perceptions held
by African actors were reflected in harsh and defiant reactions as well as state-
ments by leading AU representatives and countries such as South Africa. This
sheds light on the significance of the justice motive and the awareness of unjust
treatment.
Statements by African leaders clearly illustrate that they took exception at
what they perceived as unfair treatment of African states by the coalition mem-
bers. AU chairman Jean Ping condemned the coalition’s actions as adverse to the
peace process and he also accused coalition members of having a hidden power
agenda (BBC News 2007). Just before the end of the conflict, he criticized double
standards in the West’s treatment of covert military assistance: “Sometimes, when
they [i.e. mercenaries in Libya] are white [and stand on the side of the Transi-
tional Council], they call them ‘technical advisors’” (quoted in Tull und Lacher
2012, p. 9). Museveni argued that “Western countries always use double stand-
ards. Their actions […] are emphasizing that might is right” (Museveni 2011).
South African presidents Zuma and Mbeki criticized that the states possessing the
military power to bomb deliberately undermined African peace efforts; and that
they used their advantageous position to abuse the implementation of Resolution
1973 and to marginalize the AU (Mail and Guardian 2011a, b). In a speech before
6  Institutional Justice as a Condition 153

the UN Security Council, Zuma argued that it was “the view of the AU that the
1973 Resolution […] was largely abused in some specific respects” (de Waal
2013, p. 367). Further, he stated that African states had not been treated accord-
ing to the unbiased interpretation of a general principle but according to the idea
of “might is right” (Mbeki 2011). The South African president not only criticized
the lack of respect for international law on the part of the coalition but particu-
larly the breach of the African right to self-determination. In his view, arbitrary
and unfair treatment was so pronounced in the case of Libya that he referred to it
as having set a “very dangerous precedence”, rhetorically asking “which African
country will be next?” (ibid.) A similar critique could be found in a public state-
ment signed by over 200 African intellectuals, stating that the Security Council
had allowed a coalition of powerful and willing states to usurp the implementa-
tion of Resolution 1973 and undermine the AU’s road map. Thus the Security
Council had supported “the immensely pernicious process of the international
marginalisation of Africa even with regard to the resolution of the problems of
the Continent” (Open Letter by “Concerned Africans” 2011). At the letter’s for-
mal introduction, one of its initiators, Johannesburg Professor Chris Landsberg,
warned that “the re-colonisation of Africa is becoming a real threat” (Global
Research 2011).
Perceptions of unfair treatment also led to defiant policies by the AU and Afri-
can states. As the first expression of its frustration, the AU refused to participate
in the Libya Conference on 29 March 2011 that was organized by the coalition as
well as the corresponding Libya Contact Group, thereby denying itself the oppor-
tunity for further influence (de Waal 2013, p. 371). In a further step, on 1 July, the
AU recommended that its member states ignore the international arrest warrant
set for Gaddafi (New York Times 2011). The AU defiantly refused to recognize
the National Transitional Council as the representative for Libya until Gaddafi’s
death on 20 October 2011. Observers were baffled over what they perceived to be
a low level of rationality on the part of the AU and South Africa, characterizing
their behavior as “stubborn”, “obstinate” and increasingly unsustainable within
the African Community (Tull and Lacher 2012, pp. 8 f.).
Ultimately, African critics have demanded a reassessment of the exploitation
risk inherent in accepting the responsibility to protect (Zähringer 2013) and have
been exercising harsher criticism over the contents of the norm. This distancing
manifested itself in South Africa’s position towards the crisis in Syria. During
discussions regarding UN Draft Resolution S/2011/612 in October 2011—which
154 M. Dembinski and D. Peters

starkly condemned the use of force by the Syrian government —, South Africa
abstained arguing that Resolution 1973 had previously been abused (See United
Nations Security Council 2011b, p. 11). African representatives demanded that
either the AU’s procedural rights be strengthened along with other regional organ-
izations or that the AU review its stance towards the R2P (Hofmann 2014, p. 24).

6.3.2 The African Union and the Protection of Civilians


During Peacekeeping Missions

The Protection of Civilians (POC), as one of the goals of peacekeeping missions,


gained attention in international discussions about peacekeeping reforms since the
mid-1990s. Initiated by the International Committee of the Red Cross and further
developed by various UN bodies—particularly the Office of the High Commis-
sioner on Human Rights (OHCHR), the Department of Peacekeeping Operations
(DPKO), the Department of Field Support (DFS) and the Office for the Coordina-
tion of Humanitarian Affairs (OCHA) —, the UN used this concept to respond to
the increasingly multi-dimensional character of peacekeeping missions in domes-
tic conflicts as well as to the shift from state-centered understandings of security
towards an understanding committed to the principle of human security. The UN
Assistance Mission in Sierra Leone (UNAMSIL) in 1999 was the first UN mis-
sion with the explicit mandate of protecting civilians. Since then, fourteen addi-
tional UN missions have operated under the POC mandate. However, the UN has
still not been clear about what the protection of civilians means concretely, about
which measures this concept requires or about the degree to which it transforms
the concept of peacekeeping missions. In the interest of protecting citizens, the
Brahimi Report2 had called for a more robust form of peacekeeping. This was
not meant to replace the three traditional guidelines for peacekeeping operations
(consent from the conflicting parties, impartiality, non-use of force) but to rein-
terpret them. Accordingly, a demand for consent would not imply that conflicting
parties may manipulate the implementation of the mandate, nor would impartial-
ity imply that all conflicting parties be treated equally; rather it would mean that
an operation’s obligation towards the mandate and the use of force serve both the
purpose of self-defense and of upholding the mandate (Holt et al. 2009). A recent

2The Brahimi Report, published in August 2000, had been commissioned by UN Secre-
tary General Kofi Annan. It contained the recommendations of a panel of high-level experts
regarding the future of UN peace operations.
6  Institutional Justice as a Condition 155

concept document by the UN, while not specifically defining POC, describes it as
a three-stepped approach that aims at initiating the political peace process, at pro-
tecting civilians from physical violence and at creating a benign legal and human-
itarian environment (United Nations DPKO/DFS 2010).
At first glance, it would seem that the AU is more open to the content of this
norm because it is closely connected to traditional forms of peacekeeping. In con-
trast to the R2P, it tends to be based on the consent of local governments and,
consequently, is less regime-threatening from the viewpoint of local political
elites and respects local interests and traditions. Upon closer inspection, however,
this norm also proves to be a potential gateway for interventions by extra-conti-
nental actors. The shift in the doctrine of peacekeeping goes far beyond cosmetic
adjustments. The so-called Capstone Doctrine, formulated by the UN in 2008, has
called POC the “core business” of peacekeeping and the 2009 UN “New Hori-
zons” document has emphasized both the robustness of peacekeeping missions
and the significance of protecting citizens (Dembinski and Schott 2014). Here,
the UN continues further down the path of decoupling the military measures it is
responsible for from the consent of local governments. One framework document
from 2011 recognizes that the primary responsibility for protecting civilians lies
with the state in question but also goes on to formulate the particular responsibil-
ity of the UN mission when the government cannot or does not live up to this
responsibility:

However, in cases where the government is unable or unwilling to fulfill its respon-
sibility, Security Council mandates give missions the authority of act independently
to protect civilians. Bearing in mind that missions operate within the principles of
peacekeeping and in accordance with the mandate, missions are authorized to use
force against any party, including elements of government forces, where such ele-
ments are themselves engaged in physical violence against civilians (United Nations
OCHA/DPKO 2011, p. 3).

This development held the potential of threatening incumbent regimes. Afri-


can decision-makers were aware of this potential and that formed the basis of
their skepticism towards UN missions.3 The first practical test of the norm would
indeed highlight this risk. In 2011, around the time of the crisis in Libya, the end
of President Gbagbo’s rule in the Ivory Coast was sealed by the robust United

3See Sudanese President Bashir’s strict rejection of accepting a UN mission as successor to


the African Union Mission in Sudan (AMIS).
156 M. Dembinski and D. Peters

Nations Operation in Côte d’Ivoire (UNOCI) mission, which had been legitimized
with reference to the POC and operated in cooperation with French troops. At this
time, West Africa’s former success story had been facing years of domestic con-
flict and violence, first erupting in 2002 and only brought under control by the
dispatch of UN blue helmet troops. The oft-postponed presidential elections were
meant to finally establish peace between the Gbagbo supporters that dominated
the south and those of his long-time challenger Ouattara in the north. They, how-
ever, allowed the conflict to escalate. While independent election observers fore-
saw Ouattara winning, an election committee, dominated by Gbagbo’s followers,
declared the incumbent president to be the winner. During the violent conflict that
subsequently erupted, the UN did not assume the role of a neutral observer but
supported Ouattara’s claims of electoral victory (S/RES/1962 (2010)). It strength-
ened its UNOCI troops and activated the emergency mandate under Resolution
1975 from 30 March 2011 with its aim of protecting civilians, particularly from
the use of heavy weapons (S/RES 1975 (2011a)). Even though the incumbent
president revoked the permission he had originally granted for blue helmets to
be stationed in the country, the UNOCI troops refused to withdraw. Instead, they
attacked the weapons holds of Gbagbo’s supporters with the aid of French troops,
forcing his resignation and finally arresting him on 11 April.
While many African rulers may perceive the POC norm to be no less risky
than R2P, the AU and other African organizations and states in fact supported this
concept even after its first application. Two developments confirm the co-evolu-
tion of this protection norm on the global and regional levels.
First, the AU passed a draft of African POC guidelines in 2010, which strictly
adhered to the views of the UN’s DPKO. While a series of other AU missions
were also meant to protect civilians in one way or another, the AU explicitly
tasked the African Union Mission in Sudan (AMIS) and the African-led Interna-
tional Support Mission to Mali (AFISMA) with this goal. The protection of civil-
ians is also the top priority in the operational planning for the African Standby
Force (ASF). Plans for the ASF contain even more robust deployment rules for
peace operations than those of the DPKO (Dembinski and Schott 2014, p. 287).
Second, contrary to the demand to have African solutions to African problems,
the AU and other African actors seem to be pursuing a cooperative relationship
with the UN with respect to peacekeeping operations. While the AU’s initial plan-
ning foresaw a massive intervention force of 20,000 African troops, including
brigades from each of the five sub-regional organizations (Regional Economic
Communities, RECs), current plans only call for a small, quickly deployable
fighting unit of around 1500 soldiers. But even this capacity still only exists on
paper. The AU would largely be dependent on extra-continental actors for ­critical
6  Institutional Justice as a Condition 157

capabilities such as reconnaissance and air transport. Rather than adhering to


the policy of independent action, observers advise the AU to either limit itself to
short-term missions that can eventually be handed over to the UN or to actively
assume a part in UN operations (Coleman 2011). Moreover, the AU and subre-
gional organizations have been accepting of the trend towards more robust and
independent approaches to UN missions in Africa. The final step in this develop-
ment was the creation of the heavily armed intervention brigade for the United
Nations Organization Stabilization Mission in the DR Congo (MONUSCO) in
eastern Congo, explicitly tasked with taking the offensive against armed parties
that were undermining the peace process (Cammaert 2013).
However, the AU has made its willingness to work with and be dependent on
the international community conditional on factors that draw from the justice
motive. First, the AU understands any dependence on extra-continental organi-
zations and states to only be temporary and the result of the fact that the finan-
cial resources and military capabilities possessed by the AU and the RECs are
still deficient. In order to minimize the danger of financial dependence becoming
political dependence, the AU has called for reliable and non-conditional mecha-
nisms for financing the African peace architecture (African Union 2008). In the
view of states such as South Africa, a greater share of the financing for African
security structures must be covered by African states in the medium term. Thus,
the pan-African idea of independence and self-established peace has only been
postponed and not abandoned.
Despite still lacking the capacities to secure peace in Africa, the AU has
insisted on being fairly involved in implementing the global norms for peace-
keeping. In a report about the partnership between the AU and the UN dur-
ing peacekeeping in 2012, the AU expressed the expectation that the Security
­Council “should give due consideration to the decisions of the AU and its PSC
[Peace and Security Council] in arriving at its own decisions” (African Union
2012, para 45). In subsequent official positions and reports, the AU strengthened
its demands for involvement and political control in UN peacekeeping missions
in Africa. Further, cooperation between global and regional organizations is to be
informed by a new interpretation of Chapter VIII of the UN Charter as well as by
principles such as a respect for African ownership and priority setting; “flexible
and innovative application of the principle of subsidiarity” and “closer consulta-
tion and coordination […], based on African ownership and leadership” (African
Union 2013).
In sum, the AU has made acceptance of any robust peacekeeping missions
in Africa dependent on a commitment from extra-continental actors to closely
consult with African bodies and consider their concerns and interests when
158 M. Dembinski and D. Peters

i­mplementing the peace doctrine, even if African actors themselves can only offer
little in terms of resources. The AU continues to recognize these concepts and
has deepened its cooperation with the UN in response to the latter having broadly
respected the former’s demands for co-determination and control. The UN’s polit-
ical course in the Ivory Coast was approved by ECOWAS and the AU and both
ECOWAS and the AU had requested more robust actions by UNOCI. The crea-
tion of the intervention brigade for MONUSCO was initiated by the subregional
International Conference of the Great Lakes Region (ICGLR) and received sup-
port from the AU and the Southern African Development Community (SADC).
South Africa, Tanzania and Malawi supplied the troops for the intervention force,
thereby highlighting African demands for determining the deployment of such
units on its own. As such, it is evident that regional participation and involvement
prove to be vital to the regional acceptance of robust peacekeeping missions car-
ried out by extra-continental actors in Africa.

6.4 Summary and Conclusions: The Significance


of Procedural Justice

Up to now, research has dealt with the interactions between global and regional
security organizations primarily from the viewpoint of norm diffusion. In con-
trast, this study highlights the importance of procedural fairness for the regional
acceptance of global norms. It does so by cross-fertilizing international relations
theory with insights from empirical justice research. From the perspective of jus-
tice research, international orders are accepted when the institutions they produce
contribute to a just distribution of material or immaterial goods, risks and burdens
and when they give the affected parties opportunities for participation in imple-
menting the rules of this order. As such, the procedural dimension exerts its own
influence in this context. The probability that decisions will be accepted by those
affected depends on the procedures that are chosen and the degree to which these
correspond to perceived standards of justice.
This chapter has illustrated these effects with two cases: the AU’s reactions to
the Responsibility to Protect and to the Protection of Civilians norm. Both cases
confirm the expectations set out by the theory of institutional justice. They both
are highly similar but diverge with respect to a central causal factor as well as in
their outcomes. Both cases are about the recognition of individual rights to pro-
tection as well as the impact that this recognition has on the distribution of rights,
obligations and risks among states. The African Union accepted both emergent
global norms at an early stage but made acceptance of these norms conditional on
6  Institutional Justice as a Condition 159

the right to procedural co-determination. The acceptance of these norms was put
to the test for both cases during their first implementation in 2011 with the crises
in Libya and in the Ivory Coast. For the case of Libya, the African Union was
denied the right to involvement it had demanded. As a consequence, the AU criti-
cized the unjust way in which R2P had been implemented and began to question
its acceptance of the norm altogether. In the case of the Ivory Coast, the AU was
involved in all the decisions and therefore strengthened both its acceptance of the
POC and cooperation in peacekeeping with extra-continental actors.
A reconstruction of the events and an analysis of the justifications put for-
ward by African actors further highlighted the significance of procedural justice.
In both cases, the right to be involved in implementation played a central role
within the African debates. Criticism from Africa towards the coalition’s actions
taken in Libya revolved around the topoi of foreign determination, the violation
of the pan-African right to self-determination, and exploitation. It did not, how-
ever, reflect any fundamental opposition to the possibility of making state lead-
ers accountable for human rights violations. The debate in Africa about the POC
norm following the events in the Ivory Coast revolved around co-determination,
possibilities for control and respect for African rights to self-determination. Here
it was made clear that the AU will only continue to cooperate with extra-conti-
nental actors as long as they recognize the principle of “African ownership and
priority setting”.
In contrast, the central assumptions of norm diffusion theories were not con-
firmed in the cases. The R2P and the POC norm hardly differ in their adaptabil-
ity to the African tradition of granting state leaders immunity. They both embody
similar risks to state leaders and, in fact, had similar results for them in the two
cases. Nonetheless the AU distanced itself only from the R2P and not from the
POC.
The conclusions that can be drawn from these observations are clear. An
ambitious international order, whose institutions reflect the realities of globali-
zation and are capable of coping with the associated demands, dependencies
and externalities, will only become widely accepted among affected actors if it
satisfies demands for justice. This requires agreement on the fundamental prin-
ciples of distribution but also procedural fairness: local or regional actors need
to have a say when global norms are applied in concrete cases. The growth of
regional security organizations reflects local actors’ insistence on co-determina-
tion. From their perspective, this is an essential element in any just institutional
order. Demands for involvement made by regional organizations do not put the
substance of a global order into question. According to the theory of institu-
tional justice, the devolution of responsibility to the regional level represents an
160 M. Dembinski and D. Peters

o­ pportunity rather than a risk for realizing global governance. The regionalization
of the architecture of global governance, for which the founding conference of the
UN in San Francisco had called already in 1944, seems to be more pertinent than
ever.

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Part III
Justice and Outside Interference in
Societies
R2P Ten Years on: Unresolved Justice
Conflicts and Contestation 7
Gregor Peter Hofmann

7.1 Introduction

In international relations (IR) theory, the Responsibility to protect (R2P) is con-


ceptualized as a norm or a set of norms, an intersubjectively shared expectation
or “standard of appropriate behaviour” shared by actors within a community
(Finnemore and Sikkink 1998). The norm set of the Responsibility to Protect
consists of three pillars: the responsibility of the state to protect its population,
international assistance in the fulfilment of this responsibility upon request, and
the international community’s responsibility to react to atrocities. The third pillar
in particular and its implication that the non-intervention principle is contingent

This chapter has been published as Hofmann, G. (2015). R2P Ten Years on. Unresolved
Justice Conflicts and Contestation. Global Responsibility to Protect 7(3–4), 275–299.
I am grateful for the permission of Koninklijke Brill NV to reprint it here. The chapter
was written as part of a research project at the Peace Research Institute Frankfurt (PRIF)
on conditions for successful governance in the conflict between humanitarianism and
sovereignty, which was funded by the German Research Association (DFG). I also thank
the German Academic Exchange Service for a scholarship that supported my field research
at the United Nations in New York in summer 2014. Furthermore, I am grateful for
valuable comments from the anonymous reviewers, and from discussions of this chapter at
the 56th Annual Convention of the International Studies Association in 2015 and in PRIF’s
scientific colloquium.

G. P. Hofmann (*) 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: hofmann@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 167


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_7
168 G. P. Hofmann

on a state’s capacity and willingness to prevent atrocities is challenging a “plu-


ralist ethics of equal state sovereignty, self-determination, and non-intervention”
(Jackson 2000, p. 14). With many states being uncomfortable with external inter-
ferences into their domestic affairs, R2P is hotly contested within the society of
states. Empirical analyses of R2P resistance that take into account normative
drivers of this norm contestation usually refer to the intention of states from the
global South to challenge a Western-dominated international order (Serrano 2011;
Quinton-Brown 2013; Claes 2012). However, this seems to be an oversimplifica-
tion of the complex contestation dynamics around the R2P norm set.
Recent research in constructivist IR theory turned to the contestation of inter-
national norms, even after states have agreed on their basic validity (Wiener 2008;
Sandholtz 2009; Jeschke and Liese 2013). Sources of contestation are not just
strategic considerations of utility-maximizing actors, as rationalists might assume.
Contestation may rather be grounded in pre-existent local norms that are in con-
flict with a new international norm (Acharya 2004), cultural background knowl-
edge that implies different interpretations of a norm (Wiener and Pütter 2009), or
conflicts between different norms (Sandholtz 2009; Jeschke and Liese 2013). A
factor not taken into account sufficiently is the influence of justice considerations
on norm contestation. Perceptions of justice and their influence on human behav-
iour are the object of research in social psychology (Tyler 2012), negotiation
research (Tyler and Blader 2004; Grasso and Sacchi 2011), and even in experi-
mental economics (Grobe 2011), evolutionary biology and neuronal research
(Druckman and Müller 2014). From a moral-philosophical perspective, justice is
a concept used to judge the legitimacy of rule and resistance (Broszies and Hahn
2010). Findings in social psychology suggest “that people’s thoughts, feelings,
and behaviours are determined by their internally held values concerning what
is just or fair” (Tyler 2012). With a claim for justice, a speaker utters his expec-
tations of rightful behaviour. Rightfulness and justice are intrinsically socially
constructed concepts and related to the distribution of goods, rights and duties,
participation in decision making processes and the question of who is recognized
as a legitimate actor in the first place (Fraser 2009). Claims for justice are claims
for entitlements. Since actors may have different views on what they are entitled
to, it seems plausible to look at justice as one factor driving the contestation of
international norms. From a norm contestation perspective, justice can be concep-
tualized as a metanorm, a norm about norms, serving actors as a benchmark for
the legitimacy of a normative order or a particular norm (Müller 2013b).
Having said that, this chapter examines the role of justice claims in the contesta-
tion of the validity and application of the R2P norm set. In order to assess the plau-
sibility of this theoretical approach, I combine the literature on norm dynamics and
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 169

norm contestation with the growing literature on justice in international negotia-


tions. Drawing on content analysis of debates in the UN General Assembly on R2P
between 2005 and 2014 and on expert interviews, I analyse the normative under-
pinnings of the contestation of R2P.

7.2 Constructivism & Norms in IR

7.2.1 From Socialization to Localization and Beyond

The current research on norms in IR can be roughly differentiated along two


perspectives. The behaviouralist norm socialization approaches concentrate
on the effects norms might have on shaping states’ policies and politics. The
causal mechanisms used to explain the diffusion and effects of norms are mate-
rial and social pressure, mimicking and learning, as well as normative persuasion
(Checkel 2005; Johnston 2008). The end point of successful norm diffusion and
socialization is expected to be norm internalization: states, respectively the agents
acting on behalf of them, will eventually internalize the norm in question, include
it in their identity and be compliant without questioning the norm (Finnemore and
Sikkink 1998).
Reflectivist approaches are challenging this perspective (Wiener and Pütter
2009, p. 4): by treating norms as stable phenomena, research on socialization
is neglecting the potential of a constructivist ontology (Wendt 1992) that treats
agents and structures as mutually constitutive. The literature on socialization has
long neglected the influence of pre-existing norms on the national (Acharya 2004;
Cortell and Davis 2005; Zwingel 2012) or regional (Ba 2006; Capie 2008) level.
Local actors may adapt a new international norm to their domestic normative sys-
tem and thereby alter the norm, which may influence the “original” international
norm (Prantl and Nakano 2011; Acharya 2013; Zwingel 2012). The top-down
approach of mainstream socialization research is ignoring these perspectives, as
well as actions of the so-called socializees (Epstein 2012). Those actors—in gen-
eral, states and societies in the global South—are thereby infantilized and, from a
theoretical point of view, their identities seem just to be replaced by new ones that
are in line with the newly “taught” appropriate behaviour (Ibid.).
In contrast, reflectivist approaches conclude that norms can be stable for a
certain period of time and thereby guide actors’ behaviour, but they are, at the
same time, dynamic and contested, because they have different meanings for dif-
ferent actors (Wiener 2008; p. 50; Krook and True 2012, p. 106). Norms remain
contested throughout their life cycle. Their content and interpretation may change
170 G. P. Hofmann

over time, since the dominant interpretation might be challenged during the pro-
cess of diffusion (Krook and True 2012, p. 108). Contestation is especially prob-
able when norms are transferred from one normative context into another.
Even though contestation may also include the weakening or erosion of the
respective norm (Rosert and Schirmbeck 2007; Panke and Petersohn 2012), norm
contestation in discourses on norm application may also strengthen the legiti-
macy of the norm in question by specifying the scope conditions and regulatory
components of the norm (Badescu and Weiss 2010; Deitelhoff and Zimmermann
2013). Even fundamental disputes about the validity of a norm may strengthen it
if the different actors find a shared interpretation of its meaning in different con-
texts (Wiener 2009; Zwingel 2012). The contestation of international norms is the
product of agency. Norm generation and norm application should therefore be
analysed as continuous processes of negotiation and interpretation. Only through
these dynamic processes of contestation may norms evolve and become intersub-
jectively shared standards of appropriate behaviour (Sandholtz 2009).

7.2.2 Sources of Norm Contestation

One has to analyse the perspectives of the states themselves on the meaning of
norms because norms are historically contingent, making norm interpretation
dependent on the respective context. The diffusion of international norms moves
social practices related to a norm beyond the social context in which they origi-
nate, thereby reducing the social feedback for actors when they interpret the norm
(Wiener 2008, p. 64). As mentioned above, culturally contingent standards of
appropriateness at the domestic level—social practices, local norms and values—
guide the interpretation of the meaning of international norms by the addressees
of norm diffusion, as well as the norm socialization efforts of norm proponents.1
Contestation is especially likely in situations of crisis that “raise the stakes for
norm interpretation as time constraints enhance the reduced social feedback
­factor” (Ibid.).
Different possible interpretations of the same norm open space for contes-
tation: the outcome of international negotiations is often the lowest common

1I use the term norm proponent rather than the term norm entrepreneur, because states
sceptical of or opposed to a norm may also engage in activities that are entrepreneurial
in character. (Compare on different types of norm entrepreneurs: Wunderlich 2013,
pp. 34–38.).
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 171

denominator of the actors’ demands. Drafters choose more general formulations


in order to make the negotiated outcome acceptable for all parties. However,
“[t] broader and more general the language, the wider the ambit of permissible
interpretations to which it gives rise” (Chayes and Chayes 1998, p. 11). Moreover,
norm contestation can result from conflicts between different norms and conflict-
ing expectations of behaviour implied by them. For example, if sovereignty, as a
constitutive principle of international law, comes into conflict with the protection
of individual human rights, then the emergence of conflicts is likely (Sandholtz
2009; Jetschke and Liese 2013).
Contestation may also be grounded in moral considerations. The English
School has discussed intensively how international justice concerning the inter-
national order is defined in different parts of the society of states (Bull 1977;
Wheeler 2000; Hurrell 2003). Different understandings clash: Pluralists, and with
them many developing states, see the formal equality and independence of states,
in terms of sovereignty and the principle of non-interference, as the most impor-
tant aspect of international order. Solidarists, and also most liberal democracies,
support a concept of conditional sovereignty that entails the obligation to protect
individuals from unnecessary harm (Wheeler 2003; Foot 2003). Even though the
English School can be seen as a pioneer in the study of norms governing inter-
national society, its insights long played just a marginal role in the constructivist
research project (Finnemore 2001, pp. 509 ff.). Nevertheless, an incorporation
of the normative reflections of the English School into empirical constructivist
research contributes in three ways to our understanding of the role of ethical rea-
soning in international relations: First, it may help constructivism to overcome
its structuralist focus on international norms as well as its corollary, the implicit
deontological bias to an interpretation of history as being progressive towards
a liberal utopia. Second, it may underpin the ethical reflections undertaken by
the English School with more sophisticated empirical data (Reus-Smit 2008,
pp. 80 f.). And last but not least, such incorporation can guide the examination
of normative beliefs, like justice considerations, as motives for actors to propose,
support, or contest a particular norm or a normative order (Reus-Smit 2002).

7.2.3 Justice Claims and Norm Contestation

In this chapter, I investigate whether justice can be seen as a metanorm that serves
actors as one benchmark for the legitimacy of a normative order (Müller 2013,
p. 5). Metanorms are norms that define how other norms should be developed and
applied (Stone 1994, pp. 444 ff.). They are grounded in the constitutional structures
172 G. P. Hofmann

of international society, intersubjectively shared understandings that “define what


constitutes a legitimate actor, entitled to all the rights and privileges of statehood
and the basic parameters of rightful state action” (Reus-Smit 1997, p. 566).
Justice in this setting means that an actor can claim entitlements that are, from
the perspective of the respective actor, deduced or should reasonably be deducible
from an existing, intersubjectively acknowledged institutional background (Welch
1993, p. 216). When uttering a justice claim, an actor voices her conviction
that she is entitled to obtain or maintain something—an object, a right, a good,
opportunities to participate in a decision, etc. (Müller 2013, p. 6; Welch 1993,
pp. 20–22). Such claims for rights an actor sees herself entitled to are a particular
type of moral claim, because they refer to the constitutional structures of interna-
tional society and aim to constrain material power (Reus-Smit 2009, p. 13).
It is empirically difficult, if not impossible, to disentangle authentic justice
claims from interest considerations, because they permeate each other (Müller
2013, pp. 360–362). From a psychological perspective, perceived entitlements go
beyond an ordinary interest. “The mode of reasoning involved in the defence of
one’s entitlements differs fundamentally from the mode of reasoning involved in
the pursuit of other goods: It tends to be categorical and deontological rather than
utilitarian” (Welch 1993, p. 21). Behaviour that is driven by status considerations
and the pursuit of honour, as an instrument to strengthen (national) self-esteem,
is likely to be more confrontational (Lebow 2008, p. 27). Perceived injustice is
often a source of conflict and, “if the processes or outcomes of a conflict are per-
ceived to be unjust, the resolution of a conflict is likely to be unstable and give
rise to further conflict” (Deutsch 2011, p. 106).
Studies of empirical justice research in IR support these assumptions: Justice
motives—in terms of an actor’s drive to correct a perceived discrepancy between
entitlements and benefits—can play an important role in the outbreak of wars
(Welch 1993, p. 19). Unresolved justice conflicts aggravate political disputes.
Without a solution for these justice conflicts, a deadlock in negotiations or even
a violent conflict resolution becomes more likely (Ibid., pp. 19, 216). Other stud-
ies indicate that in the absence of established institutions during negotiations
in a case of conflict, the actors must first achieve an agreement on an adequate
justice concept and on the reference point for justice demands, as a basis for an
order satisfactory to all sides (Zartman 1995, 1997). Justice plays a role in all
negotiation phases (Albin 2001). Consideration of procedural justice criteria and
the inclusion of justice principles, like equal treatment of the opposing parties,
even increase the durability of peace agreements (Albin and Druckman 2010).
Moreover, justice considerations have been both a driving force as well as a stum-
bling block for the dynamic development of arms control norms (Müller and
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 173

­Wunderlich 2013). Other studies on the impact of justice considerations on inter-


national security negotiations share a “very strong indication that justice concerns
of actors, and the efforts of negotiators to include responses to these concerns in
the form of justice principles in negotiation results, impact on the process, out-
comes and ensuing behaviour of actors” (Druckman and Müller 2014).
While reflectivist constructivists perceive norm contestation as “a necessary
component in raising the level of acceptance of norms” (Wiener and Pütter 2009,
p. 7), the discussed justice research implies that contestation which is driven by
considerations of justice may lead to a deadlock and hamper the development of
norms. Contestation that is driven by justice considerations seems therefore dif-
ficult to mitigate.
Having said that, I hypothesize that if conflicts between different justice
claims uttered by states remain unresolved during the negotiations over the emer-
gence of a new norm, they will likely inform future norm contestation, break up
in times of crisis—e.g. debates over the application of a norm to a given situa-
tion—and hamper the further development and implementation of the norm.
I examine this hypothesis by tracing whether such justice conflicts had an
influence on the process of R2P’s development, based on primary data generated
through content analysis of statements by states on R2P and twelve semi-struc-
tured qualitative interviews with diplomats and UN officials conducted in June
2011 and between August and October 2014.2 The debates during the run-up to
the world summit in 20053 are compared with statements by selected states dur-
ing the annual informal interactive dialogues of the General Assembly on R2P in
2010, 2011, 2012, 2013 and 2014 as well as during the informal debate on the
Brazilian Responsibility while Protecting concept note in February 2012.4

2I conducted these interviews under the promise of anonymity and cannot disclose most
names or affiliations.
3For the World Summit case study, 97 statements on R2P by 47 states and 3 state groupings

were coded. They have been delivered between January and September 2005, in official
and informal debates of the UN General Assembly on the Report of the High-Level Panel
on Threats, Challenges and Changes, the report of the Secretary General, the draft outcome
document of the World Summit and the high-level plenary meeting of the General Assem-
bly in September.
4In order to provide a broad and sound analysis of the lines of contestation around R2P, I

coded 104 statements delivered by 22 states and two groups that are vocal supporters or
sceptics of R2P (supporters: Canada, Costa Rica, France, Germany, Ghana, Guatemala,
Mexico, Netherlands, Rwanda, South Africa, United Kingdom, United States, and the
Group of Friends of R2P; sceptics of R2P: Brazil, China, Cuba, Egypt, India, Indonesia,
Iran, Malaysia, Pakistan, Russia, and the Non Aligned Movement).
174 G. P. Hofmann

If justice is such a metanorm that informs actors’ perception of the legiti-


macy of a norm, as stated by Harald Müller (2013), and considerations of justice
influence states’ contestation of R2P, justice claims should be prominent in the
argumentation of states in negotiations on the formation or further development
of R2P, and one should be able to observe significant differences in the justice
claims brought forward by states’ agents. I take the relative importance of justice
claims in states’ argumentation compared to other sources of norm contestation—
individual and statist rights, the international public interest and national inter-
ests—as an indicator for the influence of justice claims (Hofmann and Wisotzki
2014). Justice claims refer either directly to justness/unjustness, fairness/unfair-
ness, etc. or to a demand to rectify “disparities between perceived entitlements
and assets” (Welch 1993, p. 41). I differentiate between (re)distributive, proce-
dural, and recognitional justice principles (Fraser 2009).

7.3 The Contested Development of R2P

7.3.1 The Agreement on R2P at the UN World Summit


in 2005

The negotiations on R2P as a part of the World Summit Outcome Document


(WSOD) were protracted (Bellamy 2009; Wheeler, 2005; Pollentine 2012;
­Hofmann and Wisotzki 2014). Canada and several European and African states
were the main norm proponents pushing for an adoption of R2P. Russia, China
and many states from the Non-Aligned Movement (NAM) were very sceptical.
Linking R2P with UN reform in general and the commitments to development
in the WSOD have been essential incentives for approval by states of the NAM
(UN 2005b; Bellamy 2009, p. 83; Pollentine 2012; Wheeler 2005). Even though
this package deal facilitated agreement on R2P, I argue that it was not sufficient
without the mellowing of an underlying normative dispute over different ideas of
justice—at least for the time being: R2P could have gone down the same road
as the section on disarmament and non-proliferation, which was deleted from the
draft WSOD a week before the summit (United States 2005c).
A comparison of the argumentation of the member states points to two major
lines of conflicts related to R2P during the world summit: the first is related to
sovereignty, its contingency on human rights protection and the use of force, and
the second to questions of procedural justice.
In 2005, sovereignty claims were often framed as entitlements during the
negotiations, as demands for equal sovereignty for all states. A representative
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 175

Data R2P skeptics 2005: 387 codings in 47 statements by 15 states and 2 state groupings (NAM, African Group)
Data R2P supporters 2005: 153 codings in 50 statements by 32 states and 1 state grouping (European Union)

Fig. 7.1   Relative distribution of entitlements referred to in statements on R2P 2005

example is the Non Aligned Movement’s demand for respect for the sovereignty,
territorial integrity and non-interference in the internal affairs of States and “the
rejection by the Movement of the so-called ‘right’ of humanitarian intervention,
which has no basis either in the Charter or in international law” (Malaysia and
NAM 2005). China and Russia shared these concerns. By comparing the relative
ratios of the code categories used by those with sceptical and opposing views on
R2P in 20055 with those of supportive states,6 a clear difference becomes obvious
(Fig. 1):
Southern states in particular framed sovereignty as an entitlement of which they
must not be deprived. As the African Group stated in April 2005: “the protection

5Algeria, Angola, China, Colombia, Cuba, Egypt, India, Indonesia, Iran, Malaysia, Paki-
stan, Russia, Venezuela, Viet Nam, Zimbabwe, African Group, and Non-Aligned Move-
ment.
6Armenia, Australia, Belgium, Botswana, Bulgaria, Canada, Chile, Estonia, France, Gua-

temala, Iceland, Italy, Japan, Liechtenstein, Lithuania, Luxembourg, Mauritius, Mexico,


Monaco, New Zealand, Norway, Poland, San Marino, South Africa, South Korea, Sweden,
Switzerland, Tanzania, Uganda, UK, USA, Vatican, and the European Union.
176 G. P. Hofmann

of citizens should not be used as a pretext to undermine the sovereignty, independ-


ence and territorial integrity of States” (Malawi and African Group 2005). Claims
to the fundamental principle of sovereignty were intermingled with justice claims.
Similar statements followed during informal negotiations on the draft WSOD in
June and July 2005. Not all NAM states equated sovereignty with non-interven-
tion. South Africa claimed that sovereignty includes responsibility for its own
population. Even though South Africa emphasized that R2P “should not be used
as a pretext to undermine the sovereignty, independence and territorial integrity of
States” (South Africa 2005), it did not refer to the concepts of non-interference
or non-intervention. This is remarkable because these two concepts were promi-
nent in most NAM states’ argumentation against R2P. Besides South Africa, also
Rwanda and Tanzania were decisive for persuading the African Group to embrace
R2P at the World Summit, by pointing out that R2P is not meant to undermine
their sovereignty, but to strengthen their capacities to provide protection to their
populations (Bellamy 2009, pp. 88 f.).
The rectification of past injustices against victims of mass atrocities, the pro-
tection of the individual’s physical integrity, punishing perpetrators and bringing
an end to massive human rights abuses has been a major claim by R2P supporters
to underline the necessity of such a norm set. Especially Western states empha-
sized individual rights and humanitarian concerns, stressing that infringements
had to be punished and that sovereignty contains no right to arbitrariness. The
USA shared the position of its allies in 2005, but expressed reservations towards
an obligation to act (United States 2005e).
In order to accommodate the concerns of NAM states, R2P supporters
repeated the scope conditions of application of R2P—genocide, ethnic cleansing,
war crimes and crimes against humanity—within the paragraphs §138–139 of
the WSOD several times.7 This lowered the heat of the debate and contributed to
the final compromise. Hardened negotiation positions mellowed, since R2P sup-
porters had taken the arguments of opponents seriously, as a comparison between
draft WSODs of June (United Nations 2005a), July (United Nations 2005d) and
August(United Nations 2005d) reveals.
Claims for procedural justice were an important point of contestation, includ-
ing demands for equal treatment of crises and of different states. Around one
third of the demands for procedural justice were directed to questions of equal-
ity before the law. The most important critique in this context referred to double

7Author’s
interview with a Canadian diplomat who participated in the 2005 negotiations,
Skype/Mainz/Ottawa, June 2011.
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 177

standards and selectivity in the UN Security Council’s (UNSC) work. States like
India, Pakistan, Cuba and Iran pointed to power asymmetries and double stand-
ards and criticized a lack of equality before the law and equality among states:
“The big and powerful States, not small and weaker ones, will decide where and
when to intervene to protect people at risk” (Pakistan 2005). Fears of abuse of
R2P for unilateral intervention were common. Besides that, claims for procedural
justice by Southern states also referred to fair decision-making on R2P during the
WSOD negotiations and to possible future decisions based on R2P. However, cri-
teria for the use of force as guidance for UNSC decision-making were perceived
by many states as a backdoor for great power interventionism (Wheeler 2005).
Only case-by-case decisions on coercive measures were deemed acceptable, espe-
cially for the five permanent members of the UNSC. Hence, the question when
and how to intervene was only vaguely defined. The WSOD stated in a broad
manner:

We are prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII, on a
case-by-case basis and in cooperation with relevant regional organizations as appro-
priate, should peaceful means be inadequate and national authorities are manifestly
failing to protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity (United Nations 2005b).

Besides naming the UNSC as the sole authority for decision-making on interven-
tions in order to rule out the use of force without UN approval—a major concern
for most NAM states, China and Russia—this leaves a lot of space for interpret-
ing the exact meaning of this way of procedure.
The formula found in the WSOD represented a hybrid of claims to uphold
individual rights through conditioning sovereignty in cases of mass atrocities,
claims to protect the collective entitlement to sovereignty, and claims to proce-
dural justice, by binding R2P to the UN Charter and thus preventing unilateral
abuse. The fact that the norm set remained in the WSOD shows that member
states saw the compromise formula on R2P as at least respecting their basic jus-
tice claims.8 However, the underlying conflict over the relative status of statist vis-
à-vis individual rights and concerns of procedural justice remained unresolved.

8Even
though the majority of states was excluded from the final stage of drafting the
WSOD (Bellamy 2009, pp. 89 ff.).
178 G. P. Hofmann

How to decide over the use of force, in particular in atrocity situations, and what
to do when the Security Council is deadlocked were excluded from the outcome,
opening space for future contestation.

7.3.2 Debates on R2P Between 2009 and 2014: A


Quantitative Assessment

A look at the General Assembly debates on R2P between 2009 and 2014 shows
that the above-mentioned justice conflicts still dominate the debate and influence
the development of the R2P norm set. There is a similar difference in the entitle-
ments emphasized by the different groups as back in 2005, with procedural jus-
tice claims being more important than back in 2005 (Fig. 2).
R2P supporters emphasize humanitarian concerns, human rights and a collec-
tive moral responsibility of the international community to protect populations in
danger (code category: individual rights). Canada, Costa Rica, France, Germany,
Guatemala, Indonesia, Mexico, Netherlands, Rwanda, UK and the USA belong to
this group. Not only the general support for R2P but also the motivations for this
support reach beyond the group of industrialized Western states.

Data R2P supporters 2009-2014: 283 codings in 59 statements by 12 states and 1 state grouping (GoF of R2P)
Data R2P skeptics 2009-2014: 422 codings in 47 statements by 10 states and 1 state grouping (NAM)

Fig. 7.2   Relative distribution of entitlements referred to in statements on R2P 2009–2014


7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 179

Fig. 7.3   Average percentage of text used for each code category per statement 2009–2014

But there are also interesting intra-group variations: South Africa’s claims, a
supporter of R2P in 2005, today seem close to those of China, Cuba, Egypt, Iran,
Malaysia, Pakistan, and Russia, at least from a quantitative perspective. A qualita-
tive look at the data reveals that much of the South African critique concentrates
on the intervention in Libya. Also surprising is the supportive stance of Indonesia,
a sceptic in 2005. Nowadays, its positioning and argumentation is close to that of
strong R2P supporters. Brazil’s R2P rhetoric shows similarities to Ghana’s, even
though most would see Brazil as a sceptic and Ghana as a major supporter of
R2P. Within the group of supportive states (including Indonesia), statist rights and
procedural justice are more important for Southern (19%/21% of codings) than
for Northern states (8%/6% of codings). However, sceptical states devote much
more space to justice claims than the supporters of R2P (Fig. 3).9
What do these numbers tell us? At least, they show: (a) besides the conflict
between the fundamental principles of sovereignty and human rights, procedural
justice claims seem to be central in the debate around R2P, especially for the
sceptics, and (b) there are significant differences in the way states argue over R2P.
Moreover, the simplifying dichotomy of “the West against the rest” is not war-
ranted, even though states from the global South share a commitment to statist
rights. These results point to the same major lines of conflict already present in
2005. A qualitative assessment of the data reveals their influence on the develop-
ment of the R2P and its components.

9The percentage shares in Fig. 3 do not sum up. Large portions of the text did not belong to
any of the code categories.
180 G. P. Hofmann

7.3.3 Dynamics of R2P Since 2009

At least 35 Security Council Resolutions with direct references to R2P between


September 2005 and June 2015 are an indication of its growing relevance for the
politics of international peace and security.10 However, most of these resolutions
refer just to pillar one, the protection responsibility of the state. Only eight reso-
lutions, including resolutions 1674 (2006) and 1894 (2009) on the Protection of
Civilians in Armed Conflict, refer to R2P as defined in the World Summit Outcome
document and just two out of those seven are resolutions on a country-specific sit-
uation (Sudan 2006, South-Sudan 2014). Three resolutions refer to pillar two of
R2P. Hence, not all pillars of R2P receive growing recognition.
In the first years after the World Summit, several states tried to block any
progress on R2P in the UNSC. For example, the UK tabled a first draft of what
would later become Resolution 1674 in December 2005. Russia, China and Alge-
ria dismissed the term “collective responsibility” and claimed together with Bra-
zil and the Philippines that the WSOD only asked the GA to remain concerned
with R2P, not to implement R2P in Security Council Resolutions (Bellamy 2010,
p. 145; Lederer 2006). It took the R2P supporters months until they were able to
persuade Russia and China to accept an endorsement of the WSOD-paragraphs
on R2P in an UNSC resolution.
Despite this initial backlash, the General Assembly debate in 2009 showed
broad, though not deep, support for R2P (Thakur 2011; Serrano 2011). A small
number of states tried to block any progress.11 However, it was not easy to reach
consensus on a GA resolution on R2P in 2009. The debate started with an infor-
mal interactive dialogue on the Secretary-General’s report on the implementation

10Resolutions 1674 (2006) and 1894 (2009) on the protection of civilians in armed conflict,
1653 (2006) on the Democratic Republic of Congo (DRC) and Burundi, 1706 (2006) on
Sudan/Darfur, 1970 (2011), 1973 (2011), 2016 (2011), 2040 (2012), and 2095 (2013) on
Libya, 1975 (2011) on Côte d’Ivoire, 1996 (2011), 2109 (2013), 2155 (2014), 2187 (2014),
2206 (2015), and 2223 (2015) on South Sudan, 2014 (2011) on Yemen, 2085 (2012), 2100
(2013) and 2164 (2014) on Mali, 2093 (2013) on Somalia, 2121 (2013), 2127 (2013), 2134
(2014), 2149 (2014), 2196 (2015), and 2217 (2015) on the Central African Republic, 2139
(2014) and 2165 (2014) on Syria, 2211 (2015) on the DRC, 2117 (2013) and 2220 (2015)
on small arms and light weapons, 2150 (2014) on the prevention of genocide, 2171 (2014)
on the prevention of armed conflict, and 2185 (2014) on the role of police forces in peace-
keeping missions.
11Most prominent objectors were Cuba, Iran, Pakistan, Nicaragua, Sudan and Venezuela

supported by Algeria, Belarus, Bolivia, Democratic People’s Republic of Korea, Ecuador,


Sudan, Syria and Zimbabwe (Serrano 2011, p. 10).
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 181

of R2P (Ki-Moon 2009). The president of the General Assembly, the Nicara-
guan diplomat Miguel D’Escoto, tried to hinder agreement on R2P by tabling a
concept note that put it in the context of colonialism and European imperialism
(President of the 63rd General Assembly 2008). Many states criticized a lack of
consistency and double standards, as well as the working methods of the Security
Council. The potential use of force was especially seen as a backdoor for unlaw-
ful interference into the domestic affairs of states. D’Escoto closed the debate
without the adoption of a resolution (Serrano 2011, p. 435). In reaction, a group
of states led by Guatemala initiated negotiations on a procedural resolution on
R2P that should at least include a supportive reference to the Secretary-General’s
report and its three pillar structure as well as a commitment of the GA to remain
seized of the matter. Surprisingly, India supported Guatemala’s effort.12 The
sponsors of the resolution tried to build broad support in the global South before
approaching Western states. They expected a Southern initiative to be seen as
more legitimate by the sceptics of R2P. At the end of the day, this strategy proved
successful and the GA adopted Resolution 63/308 unanimously on 14 September
2009.
However, after this second round of negotiations on R2P the underlying nor-
mative conflicts still persisted, as interviews with diplomats reveal:

Advocates have to understand that it will take some time until R2P is accepted by
the UN system. This will happen if there is equality in the international system, if
power politics does not influence decisions, if the veto was not used. Until that, it
will be contested. R2P comes from civil society. But if you ask civil society about
the Westphalian system, they say that the structure of the world community has
undergone fundamental change. But state representatives think the world is still
state-centric. Not just the developing states see it that way, but also major developed
countries.13

These concerns are, according to diplomats, often not articulated openly but are
nevertheless underlying some states’ reasoning about the norm set: “I am very
sure that there is an issue of double standards and a fear that Western states are,
through R2P, looking for a concept that can justify intervention and justify also
the imposition of a certain world view […], the introduction of basically Western

12Author’s interview with a Latin American diplomat who participated in the 2009
­negotiations, New York, October 2014.
13Author’s interview with a diplomat from a big Asian NAM state, New York, August 2014.
182 G. P. Hofmann

liberal democracy by military means”.14 Hence, this points once more to an inter-
mingling of sovereignty claims with considerations of justice.
Unsurprisingly, the perceived unilateral extension of Resolution 1973 (2011)
on Libya by NATO (Ulfstein and Christiansen 2013) provoked a conflict about
procedural justice, especially about equality before the law, and questions of the
international public interest, namely accountability of interveners. Even though
there is a growing consensus on Pillar I and Pillar II, many states demand a nar-
row understanding of R2P’s Pillar III. With regard to Pillar III, a basic line of
contestation for many sceptics is still the claim for a neutral and impartial appli-
cation of R2P to all conflict parties (Quinton-Brown 2013, p. 267; Dembinski and
Reinold 2011; Stuenkel 2014). As India stated in 2012, R2P “cannot be seen as
codifying a system of coercion, providing a tool in the hand of powerful govern-
ments to judge weaker states, and encourage regime change primarily on political
considerations” (India 2012).
During and after the Libya crisis, those normative conflicts erupted and dom-
inated the debate again, as they did in 2005. Mistrust against the West and its
motives resurfaced because developing states saw their claims for equality before
the law as unfulfilled:

Civilians should not pay the price in war. It is only fair that the international com-
munity should look at this. […] However, when it comes to R2P, you must not
forget its origins. It comes from the idea of a droit d’ingérence. It does have prob-
lematic aspects. Hence, it is an idea you cannot buy wholesale without qualification.
[…] this is an idea that is to be implemented predominantly in the developing world
but not in the US, Israel, or France. Almost unconsciously but manifestly, people are
talking about the Protection of Civilians in weak and poor countries. From an his-
torical point of view this is unfair. […] The most shocking crimes were committed
by developed countries. In a way, the idea of R2P is used to whitewash the guilt of
the powerful states, without them acknowledging this guilt.15

Comparing the ratios of justifications used by a subset of those sceptical states


that delivered statements during both the 2009 GA debate and the 2012 Infor-
mal Dialogue of the GA on R2P’s third pillar,16 we can observe an increase of

14Author’s interview with a diplomat from a member state of the EU, New York, September
2014.
15Author’s interview with a diplomat from a South American country, New York, August

2014.
16Brazil, China, Cuba, India, Iran, Malaysia, Pakistan, and Russia; 119 codings in 8 state-

ments in 2009, 67 codings in 8 statements in 2012.


7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 183

one fourth in the share of claims related to issues of procedural justice. As a con-
sequence of this discomfort with the actual implementation of the third pillar,
Brazil introduced its Responsibility while Protecting (RwP) concept note, asking
for an accountability mechanism for Chapter VII mandates and a strict chrono-
logical and political sequencing of the three R2P pillars (Brazil 2011). Thereby,
Brazil tried to fill the empty space of vague formulations from the WSOD with
its own interpretations. In 2012 China and Russia, together with Malaysia, India,
South Africa and other NAM States welcomed the Brazilian initiative. China even
developed a similar but semi-official concept in early 2012 named Responsible
Protection (Garwood-Gowers 2016). However, some European states and also the
US question the motivations behind RwP. They see criteria to guide decisions on
the use of force as a potential slippery slope that could undermine the protection
of human rights and that “would be a way to institutionalize inaction, because
countries could always say that not the whole list is fulfilled”.17 Other states saw
RwP as a chance to engage in a real debate: “RwP has broadened the discussion
and opened an alternative path […]. France, the Netherlands and others that want
to push R2P had to explain themselves and be open for dialogue”.18
The RwP debate showed that India, Brazil, South Africa and other Southern
states question pillar III less per se, but question more so the means and proce-
dures used. In Libya for example, they did not see all peaceful means exhausted
and hence perceived the immediate military actions by Western states and their
Arab allies as a misinterpretation and misuse of R2P and Resolution 1973
(Stuenkel 2014, pp. 13 ff.; Dembinski and Reinold 2011, p. 11; Ulfstein and
Christiansen 2013, p. 165). The resulting mistrust initially also had consequences
for the behaviour of India, Brazil and South Africa in the debates on Syria in the
Security Council: they did not support the first draft resolution on Syria tabled
in October 2011, because they feared that the threat of further steps included in
the draft resolution would open the path to regime change in Syria like in Libya
(Stuenkel 2014, pp. 19 f.). They changed their stance in early 2012, but this did
not change the political dynamics: Russia and China vetoed most of the resolu-
tions on Syria tabled in the UNSC.
As a consequence, a procedural justice claim to restrict the use of veto re-
emerged: concerned about inaction of the Security Council in Syria, the “Small
5”, Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland, tabled in May

17Author’s interview with a diplomat from a member state of the EU, New York, October
2014.
18Author’s interview with a diplomat from a European country, New York, September 2014.
184 G. P. Hofmann

2012 draft GA Resolution A/66/L.42/Rev.1 that addressed the transparency of the


Security Council and asked for a voluntary restraint of the use of veto in the face
of mass atrocities. But they withdrew the draft resolution following pressure from
the five permanent members of the UNSC. In October 2013, France revived the
idea and launched, supported by Mexico and the New York-based NGO Global
Centre for the Responsibility to Protect (GCR2P), an initiative for a code of con-
duct for the use of the veto (GCR2P 2013). Even though many states uttered their
support for this proposed reform at a ministerial side event during the opening
session of the General Assembly in September 2014, the US, and especially Rus-
sia and China showed no intention to translate this into reality.
The renewed increase in norm contestation after Libya also influenced norm
socialization strategies of NGOs, the UN and states committed to an implemen-
tation of R2P. These norm proponents refocused their work on prevention and
international support for states to build capacities for atrocity prevention. In early
2012, Ban Ki-Moon declared 2012 to be the year of prevention, because he saw
the topic as not receiving sufficient attention (Ki-Moon 2012). The 2013 report
turned to the protection responsibilities of states (Ki-Moon 2013), the 2014 report
to means of international support to strengthen the state (Ki-Moon 2014). How-
ever, new initiatives in the field of prevention, like the Latin American Network
for Genocide and Mass Atrocity Prevention or Global Action against Mass Atroc-
ity Crimes (GAAMAC), were not labelled as connected to R2P but to genocide
and atrocity prevention in general, because R2P became a somewhat poisoned
term in the aftermath of Libya:

If you look at history, and unfortunately at the Libyan situation, you will have many
of the sceptical states, they can say, ‘yes, but that’s all fine and well but look at what
happened’. That is still a challenge, how to go about really assuring states that when
we talk about R2P we don’t mean that we just want to bomb everybody.19

Norm proponents committed to R2P try with these prevention initiatives to


anchor R2P-like ideas and policies at a national and regional level by connect-
ing them with pre-existent local norms: “For some countries in the region it will
be much easier to join the Genocide Prevention Initiative than the R2P initiative,
because R2P is a label that can be helpful for certain things, but also brings some

19Author’s interview with a diplomat from a member state of the EU, New York, September
2014.
7  R2P Ten Years on: Unresolved Justice Conflicts and Contestation 185

other problems”.20 Norm proponents hence adapted their socialization strategies


and avoided contested issues to bypass substantial justice concerns of the norm
sceptics.

7.4 Conclusion and Outlook on Further Research

This chapter aimed to answer the question of which role justice claims play in the
contestation of the validity and application of the R2P norm set and how this con-
testation influences its development. Justice claims are frequently used in negotia-
tions over R2P and there are significant differences in the entitlements that states
emphasize in their statements. It seems plausible to understand justice claims as
a signal, a red line beyond which consensus is unlikely to be reached (Deutsch
2011, p. 109). Hence, the contribution of norm contestation to the overall accept-
ance of a norm seems to be contingent on the actors’ motives for contesting. If
actors contest a norm because of justice concerns, reaching an agreement on the
actual norm application or its further development is difficult, if not impossible.
Based on these preliminary results, the working hypothesis formulated at the
beginning of this chapter seems to be validated (see Fig. 4):
Norm contestation around R2P is partially grounded in unresolved conflicts
between different fundamental norms—sovereignty and human rights—and
issues of procedural justice uttered by states during the negotiations over the
emergence of the R2P norm. Today, these conflicts inform norm contestation
by sceptical states and erupted in the debate over Libya. Last but not least, the
increase in norm contestation after Libya also led to an adaptation of socializa-
tion strategies by norm proponents (new focus on prevention) and to the develop-
ment of new reform initiatives (RwP, Responsible Protection, non-use of veto) by
both sceptics and proponents. Nowadays, the implementation of R2P within the
UN system seems still to be hampered, as is its further development: none of the
aforementioned reform initiatives produced any tangible results so far.
Therefore, the analysis also shows that we must not make the mistake to look
rather at one’s own preferred outcome—R2P being a universally accepted inter-
national norm set that is actually implemented on the ground—instead of look-
ing at the actual status quo (Daase 2013). R2P is still contested intensively. The
perception that some states consider themselves to be above the law and that they

20Author’s interview with a diplomat from a Central American country, New York, September
2014.
186 G. P. Hofmann

Fig. 7.4   Influence of justice conflicts on R2P

could misuse UN mandates for their own interest especially provokes ongoing
contestation over application of R2P in times of crisis.
These preliminary empirical results imply that considerations of justice and
other values are not the only, but certainly an important determinant of norm
contestation. Moreover, as implied by the English School, claims for individual
human rights, and statist entitlements, like equal sovereignty, seem to also be
grounded in justice considerations. Further research has to dig deeper into the
mixed motives of state actors and disentangle the influence of justice considera-
tions in comparison to other material and ideational factors.

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The Normative Challenge of Interaction:
Justice Conflicts in Democracy 8
Promotion

Annika E. Poppe and Jonas Wolff

8.1 Introduction

Democracy promotion is about interaction, and this interaction is at least par-


tially about justice. These are the two major claims the present chapter makes.
In general terms, no one would deny that the international promotion of democ­
racy involves interaction between those promoting democracy from the outside
(the “donors”) and those at the receiving end (the “recipients”). Yet, instead of
conceiving of interaction in democracy promotion as being limited to the imple-
mentation of a given “formula” (i.e., democracy), we argue that interaction has
a crucial normative dimension to it: It involves contestation of the appropriate­

This chapter has been published as Poppe and Wolff (2013). The Normative Challenge of
Interaction: Justice Conflicts in Democracy Promotion. Global Constitutionalism, 2(3),
373–406, © published by Cambridge University Press. We are grateful for the permission
to reprint it here. Previous versions of that article were presented at the 2011 IPSA-ECPR
Joint Conference in Sao Paulo, at the 2012 BISA-ISA Joint Conference in Edinburgh, and
published in the PRIF Working Paper series. The authors would like to thank Iris Wurm for
contributions to a very first version of the paper as well as Evgeniya Bakalova, Dorothea
Gädeke, Harald Müller, Hans-Jürgen Puhle, Philippe C. Schmitter, Lisbeth Zimmermann,
the members of the German Research Network “External Democracy Promotion”, and two
anonymous reviewers of the journal Global Constitutionalism for helpful comments.

A. E. Poppe (*) · J. Wolff 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: poppe@hsfk.de
J. Wolff
E-Mail: wolff@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 193


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_8
194 A. E. Poppe and J. Wolff

conception of the set of political norms that is to be implemented in a given


­country and promoted from the outside. But why should external actors have a
legitimate say in the shaping of an appropriate normative order for a given
society? Here, the concept of justice enters the equation (Pangle 2009). In nor-
mative terms, the international practice of democracy promotion is based on the
notion that there is a universal value of and, in fact, commitment to democracy
(Sen 1999; Schraeder 2003, pp. 25–26). Bringing democracy to people living
under non-or not sufficiently democratic conditions aims, thus, at correcting “a
perceived discrepancy between entitlements and benefits” (Welch 1993, p. 19): It
is a question of justice.1 Yet, as soon as interaction in democracy promotion invol-
ves contestation of the proper set of political norms, it is no longer clear which
specific entitlements are to be met by means of which precise rules and institu-
tions. Even more basically, the very intent by external actors to help construct a
just political order implies meddling in the internal affairs of other states. Demo-
cracy promotion can therefore, itself, be viewed as violating the (collective) entit-
lement to sovereignty and self-determination (cf. Hurrell 2007, p. 163; Ikenberry
2011, pp. 287–290; Sørensen 2011, p. 42; Tully 2005; Whitehead 2010). In this
sense, external democracy promotion is both based on and challenged by claims
to perceived entitlements. In this chapter, we propose analyzing such collisions of
competing claims to entitlements as justice conflicts.
It is broadly acknowledged that the 1990s boom in both the practice of and
the discourse on democracy promotion has given way to a period of increasing
challenges or outright backlash.2 In this context, a normative debate about the
universal applicability and appropriateness of “western-derived analytical frame-
works and models of democracy” (Burnell 2010, p. 5; cf. Hobson and Kurki 2012;
Smith 2007) has resurfaced as has “attention to the question of norms concerning
democracy assistance” (Carothers 2010, p. 67).3 Carothers specifically emphasi-
zes legal norms—concerning, for instance, the contested right of democracy aid
providers “to carry out their work in other countries” (Carothers 2010, p. 67).

1See the discussion in the Section “Core Concepts”.


2Cf. Carothers (2010); NED (2006); Diamond (2008, pp. 56 ff.); Burnell and Youngs
(2010); McFaul (2010, pp. 1 ff.).
3In 2003, Peter Schraeder could still conclude that “[t]he advocates of democracy promo-

tion clearly have the edge in the normative debate”, i.e. in the debate “around the normative
issues of whether the international community should be actively involved in democracy
promotion efforts” (Schraeder 2003, p. 25). Still today, the advocates probably represent
the larger (and more powerful) camp, but critical voices have clearly become louder—both
in the political and the academic arena.
8  The Normative Challenge of Interaction 195

Indeed, the tension between the alleged universality of democracy and the per-
ceived illegitimacy of external interferences in internal affairs refers to competing
rights in a narrow, legal sense (individual human rights vs. collective state rights).
Yet, what is at stake here are not “only” laws. Emphasizing the universal commit-
ment to democracy or defending collective self-determination implies referring to
more basic, morally based claims that are not dependent on a specific legal order.
This type of claims is precisely what David Welch has conceptualized as justice
claims, that is, claims to perceived entitlements (Welch 1993). The focus on “jus-
tice”—on claims to entitlements (justice claims) and on conflicts shaped by con-
tested perceived entitlements (justice conflicts)—therefore provides an analytical
perspective on the above-mentioned normative debate that specifies the kind of
contested normative claims without overly restricting the analysis to a narrow
look at legal issues only. To put it differently: entitlements, not laws or norms,
constitute the lowest common denominator in the normative debate on democracy
promotion.
In this sense, it appears promising to look systematically at justice conflicts
in democracy promotion.4 Analytically, we distinguish between three areas of
contestation constituting three types of justice conflicts in democracy promotion:
when external and domestic actors argue over each other’s particular conceptions
of a “just political order” (contestation of the just model of political order); when
they dispute the very legitimacy of international efforts at promoting democracy
(contestation of the extent and means of just external interference); and when
they disagree about whom to recognize as justice claimants, that is, as partici-
pants in the negotiation about political change and democracy promotion (contes-
tation of recognition). The research program conceptually outlined in this chapter
would enable scholars to analyze how democracy promoters deal with such nor-
mative contestation and how conflicts over justice are negotiated between donors
and recipients. This promises important insights into the normative premises and
the political mechanisms behind the formulation and implementation of democ­
racy promotion policies.
The present chapter starts with defining core concepts. Then, we discuss
mainstream views on democracy promotion. Arguing that the bulk of existing
research, even when apparently looking at interaction, treats the “formula” that is
to be promoted (i.e. democracy) as a non-negotiable given, we make a case for a
perspective that takes democracy promotion as interaction seriously. The third

4On the concept of justice conflicts, see Daase and Humrich (2011) and Müller (2010, p. 4)
as well as the Section “Core Concepts” below.
196 A. E. Poppe and J. Wolff

section looks at debates in normative theory where democracy promotion has


been explicitly dealt with as a justice-related issue. This section reveals the under-
lying normative tensions inherent in the overall endeavor to externally promote
democratic self-determination. Fourth, the chapter integrates these discussions
in a typology of justice conflicts, which conceptually grasps the inherent norma-
tive challenges that confront democracy promotion as interaction. It concludes
by highlighting the political significance of the proposed research agenda: how
democracy promoters deal with justice conflicts, and whether donors and recipi­
ents are able to peacefully negotiate contentious justice claims is relevant for the
effectiveness, legitimacy and conflict-proneness of democracy promotion as well
as for the future of world order at large.

8.2 Core Concepts: Democracy Promotion, Justice


Claims and Justice Conflicts

In this chapter, democracy promotion is broadly understood as comprising all


activities by external actors “aimed at establishing, strengthening, or defending
democracy in a given country” (Azpuru et al. 2008, p. 151). Such activities range
from development aid (democracy assistance) and diplomatic appeals (democracy
diplomacy) to material incentives and sanctions (democratic conditionality) as
well as military intervention (coercive democratization). Democracy, as the aim
that guides such activities, is not defined a priori. Given our focus on normative
contestation of democracy promotion, it is an empirical question what different
actors (“donors” and “recipients”) understand by democracy—and, more broadly,
a just political order.
The analytical focus on justice claims and justice conflicts follows the pio­
neering work on the role of justice in international politics by David Welch
(1993).5 Drawing on the psychological perspective put forward by Melvin Ler-
ner, Welch defines the justice motive as “the drive to correct a perceived discre-
pancy between entitlements and benefits” (Welch 1993, p. 19; emphasis in the
­original). Justice claims, thus, are not characterized by a specific content, but only
by the specific “formal structure of a justice speech act”: the claimant puts for-
ward a demand for something she/he maintains belongs to her/him (Müller 2010,
p. 9). The definition of justice (claims) is, in this sense, deliberately “formal and

5Thisis in line with the general approach taken in PRIF’s research program on “Just Peace
Governance” (Daase and Humrich 2011; Müller 2010).
8  The Normative Challenge of Interaction 197

­subjective” (Welch 1993, p. 42). In order to qualify as an issue of justice, what


matters is not a particular content as defined by a substantial or procedural notion
of justice, but merely the question of whether actors perceive and present some­
thing they demand (for themselves or others) as something they are entitled to
(Welch 1993, p. 19):

Justice reigns if actors have got what rightfully belongs to them; of course, what this
might be is highly controversial within and across cultures. But this does not matter:
As long as a speech act in politics has the structure of a claim for an entitlement, it
satisfies the formal structure of a justice claim, independently of how it is substan-
tiated (Müller 2010, p. 9).6

In the case of democracy promotion, we are faced with an “other-referential” per-


ception of injustice—“an injustice suffered by someone else” (Welch 1993, p. 42;
emphasis in the original)—which an external actor then is trying to help correct.
On the recipient side, however, such external attempts to bring justice may be
regarded as violating an entitlement to collective self-determination or sover-
eignty, giving rise to a (self-referential) perception of injustice. The result is an
example for what we call a justice conflict in democracy promotion: Competing
claims to perceived entitlements collide (cf. Daase and Humrich 2011, pp. 8 f.).
As we argue in this chapter, the formal definition of justice allows for an ana-
lytical perspective that facilitates taking an empirical look at the normative pro-
blematique of democracy promotion contestation. In contrast to the debate in
(international) political theory discussed below (Section “Just and Unjust Demo-
cracy Promotion”), this perspective does not aim at solving the inherent norma-
tive tensions in democracy promotion that become manifest in justice conflicts.
Instead, the prospective aim is to analyze how contentious justice claims are pro-
cessed by democracy promoters and negotiated between democracy promoters
and recipients.
But why focus on competing claims to entitlements and justice conflicts—
instead of on references to (contested) rights or norms? As already explained in
the introduction, legal rights are only one, if important, subset of entitlements

6Note that this conceptualization of justice and of entitlements should not be mistaken
as referring to Robert Nozick’s entitlement theory and his focus on distributive justice
(Nozick 1974, Chap. 7). Claims to entitlements, as defined by Lerner and Welch, can refer
to quite different dimensions of justice. Regarding the “‘what’ of justice”, Nancy Fraser
(2009, p. 6) has, for example, proposed a three-dimensional approach that distinguishes
between demands for a redistribution of resources, for recognition or for political represen-
tation.
198 A. E. Poppe and J. Wolff

that are contested in the field of democracy promotion. Furthermore, whether


and to what extent an entitlement is codified by a legal framework is itself part
and parcel of norm contestation in international relations (cf. Abbott et al. 2000;
Brunnée and Toope 2011).7 As Welch (1993, p. 197) explains, to speak about an
entitlement “presupposes the existence of an institutional substructure to give it
meaning and moral authority”; but such an institutional context does not only
consist of legal norms in a narrow sense. At the same time, any claim to an enti­
tlement, by implying a collective expectation about appropriate behavior in a
given institutional context, constitutes a normative claim.8 Not every claim that
refers to norms, however, is also a justice claim. Justice claims relate to norms
in two specific regards. On the one hand, they refer to what Antje Wiener (2008,
pp. 66 f.) has called “fundamental norms”: norms with high degrees of general-
ization, moral and ethical scope.9 On the other, they refer to norms that have a
specific function: “to apportion rights, benefits, and obligations in a given area or
on a given issue” (Welch 1993, p. 198). The analytical focus on justice conflicts
in democracy promotion, therefore, allows us to zoom in on contestation of fun-
damental norms that establish entitlements.
Having said this, the analytical perspective adopted in this chapter is gene-
rally informed by the constructivist research tradition in International Relations
(IR). While taking norms, ideas and language seriously, the proposed research
program on justice conflicts in democracy promotion is, however, not theoreti-
cally ­embedded in any one of the diverse constructivist or post-positivist approa-
ches (cf. Adler 2002). Our focus on justice claims obviously draws on speech-act
theory and is based on the assumption that speech acts are “important mecha-
nisms that generate social reality” (Pouliot 2004, p. 327), and our proposal to ana-
lyze the negotiation of justice conflicts in democracy promotion is clearly related
to broader IR research on norm contestation (cf. Acharya 2004; Wiener 2008;
Zimmermann 2012). But this does neither imply that speech acts are all that cons-
titutes and maintains social facts, nor does it suggest that ideational factors have
ontological or causal primacy over material ones (cf. Sil and Katzenstein 2010).

7A crucial example concerns the debate about whether there is, in international law, such a
thing as an (emerging) “democratic entitlement” (cf. Fox and Roth 2000).
8This follows the definition by Jepperson et al. (1996, p. 54): “Norms are collective expec-

tations about proper behavior for a given identity.”


9In the same vein, Müller (2010, pp. 4 f.) conceives of justice “as a metanorm prescribing

how human relations should be shaped across a broad spectrum of policy fields which are
constituted and regulated by their own field-specific norms”.
8  The Normative Challenge of Interaction 199

8.3 From the State-of-the-Art to a New Perspective:


The Normative Challenge of Interaction

There is broad consensus that democracy is not just a “good” that can be exported
from one country to another (Bermeo 2009, p. 242; Fukuyama and McFaul 2007,
p. 5). Democracy is a deeply contested concept, and there exists a variety of very
different models of democracy, both in theory and in the real world (cf. Held
1995, Chap. 1; Hurrell 2007, pp. 157 f.; Kurki 2010). At the same time, most
practitioners and scholars of democracy promotion agree that external actors can,
at best, support the emergence, stabilization and improvement of a democratic
regime that has to grow from within, has to be endorsed by both domestic elites
and the general population, and, therefore, has to correspond to local norms and
values. For example, Larry Diamond (2008, p. 316), one of the leading scholars
in the field, emphasizes “the need for local ownership” as the “first and foremost”
key principle for democracy assistance:

Assistance efforts must be grounded in the interests and needs of societal stake-
holders, most of all the general public. For democracy assistance to be legitimate,
effective, and sustainable, it must respond to local priorities and initiatives rather
than impose preconceived formulas from the outside (Diamond 2008, p. 316).10

Even former US President George W. Bush paid lip service to this consensus
view:

Freedom, by its nature, must be chosen, and defended by citizens, and sustained
by the rule of law and the protection of minorities. And when the soul of a nation
finally speaks, the institutions that arise may reflect customs and traditions very dif-
ferent from our own. America will not impose our own style of government on the
unwilling. Our goal instead is to help others find their own voice, attain their own
freedom, and make their own way (Bush 2005).11

This acknowledgment, however, has crucial implications for democracy promo-


tion—implications both scholars and politicians have yet to seriously engage with

10See also Bermeo (2009, pp. 242 ff.); Fukuyama and McFaul (2007, p. 5); Youngs (2012,
p. 115).
11Similarly, the German Ministry of Economic Cooperation and Development, in the offi-

cial German document on democracy promotion, maintains that democracy promotion is


not about supporting “a specific form of democracy” but about implementing the “princip-
les” of democracy and the rule of law (BMZ 2005, p. 6).
200 A. E. Poppe and J. Wolff

(see Kurki 2010). If every society has to develop its own set of norms, institutions
and styles of democratic government, then countries that are trying to introduce
or improve democracy have to actively construct something new out of the broad
and heterogeneous set of norms that is generally associated with democracy. Such
“appropriation” or “localization” involves adapting ideas, norms and institutions
to “local beliefs and practices” (Acharya 2004, p. 245; Zimmermann 2012).12 As
a consequence, democracy promoters cannot simply stick to their particular con-
cept of democracy but have to reconsider what is to be promoted in a given situ-
ation: If a variety of models of democracy exists, and if the shape and content of
democracy is processed by local actors based on local beliefs and practices, then
it is not enough to design context-sensitive democracy promotion strategies and
programs, but the normative premises and conceptual underpinnings of democ­
racy promotion themselves have to be adapted in the light of local conditions. Of
course, the processes of adaption (on the part of the donor) and appropriation (on
the part of the recipient) have to be closely related. While local appropriation of
norms can happen without any active external interference, adapting democracy
promotion to local conditions can only result from interaction.
There is no need to emphasize that external democracy promotion, by defini-
tion, involves some kind of interaction between donor and recipient. Yet, interac­
tion as it is meant here is different from the kind of interaction that is usually
acknowledged in the literature on and the practice of democracy promotion. The
latter corresponds to a very asymmetric understanding of interaction, resembling
social engineering, in that an external actor helps implementing a given set of
norms in the recipient country by applying a series of strategies (ranging from
persuasion, material support and incentives to sanctions, threats, and military
force). As is well-known from its application in general development aid, the
ownership concept then is transformed from denoting substantial control by the
recipients to implying local commitment to an externally predetermined reform
agenda (Whitfield 2009). Taking ownership seriously leads to an alternative per-
spective on interaction in democracy promotion. If democracy is “also about
contestation and co-operative argumentation over the meaning and substance of
democratic self-governance” and if “consistent democracy promotion must itself

12With a view to the general question of “how to reconcile cosmopolitanism with the uni-
que legal, historical, and cultural traditions and memories of a people”, Seyla Benhabib
(2009, p. 198) calls for processes of “legal and political contestation” where “the meaning
of rights and other fundamental constitutional principles are reposited, resignified, and
reappropriated by new and excluded groups, or by the citizenry in the face of unpreceden-
ted hermeneutic challenges and meaning constellations”.
8  The Normative Challenge of Interaction 201

comply with the principle of free, mutual agreement” (Patomäki 2012, p. 87),13
then democracy promoters cannot but accept the need to put their own norma-
tive premises up for discussion with those that are at the receiving end (cf. Kurki
2010, pp. 376 ff.; Teivainen 2009). In this sense, interaction requires meaning-
ful agency on both sides and, therefore, substantial negotiation about the set of
norms that is to be promoted.14 This alternative perspective on democracy pro-
motion as interaction, thus, differs from mainstream scholarship with regard to
one important assumption: the “formula” that is to be promoted cannot be taken
for granted. Normatively, it is, for any recipient country, an open question which
democratic norms in which shape and combination are appropriate. Empirically,
the central question is which model of democracy is promoted in a given case and
to what extent this model relates to, and is shaped by, political beliefs and practi-
ces in the recipient country.15
In the 1990s, the conceptual contestability of democracy (Kurki 2010) was
largely seen as of theoretical relevance at best. The end of the Cold War and

13From a traditional perspective on international politics, such an agreement would concern


the respective governments representing donor and recipient state only. Yet, in the area of
democracy promotion the situation is more complicated than in, say, international trade or
arms control, because the raison d’être of democracy promotion is that the “democratic
credentials” of a given recipient government are seen as “insecure, contested, or outright
lacking” (Whitehead 2010, p. 25).
14In this sense, Milja Kurki emphasizes the “conceptual contestability” of democracy

(Kurki 2010) and calls for a “more equal and more dialogical approach to democracy pro-
motion” (Kurki 2010, p. 383) that takes into account the need to pluralize and contextua-
lize conceptions of democracy (see also Teivainen 2009; Hobson and Kurki 2012). With a
view to liberal peace-building, Oliver Richmond argues for a “post-liberal peace” which
requires “that democracy and the formation of state institutions is at least partially deter-
mined and expressed by local voices expressing the full range of everyday issues and
processes. This then takes the form of a negotiation between the range of local actors and
international actors over the processes, institutions and aims of political organization and
mobilization for peace.” (Richmond 2010, p. 690) Such negotiation would include both
arguing and bargaining—two communication modes which, in general, can be distingu-
ished analytically only (empirically, they usually appear simultaneously) (Deitelhoff and
Müller 2005, p. 171).
15We focus here on the mainstream body of democracy promotion scholarship. With a view

to the literature on norm diffusion within International Relations (IR), Acharya (2004,
pp. 242 ff.) shows that existing approaches are largely characterized by a static view of
(given) norms and a unidirectional perspective on norm transfer (see also Zimmermann
2012, Chap. 2–4). Regarding the related debates on liberal peace- and state-building, see
Chandler (2010), Jahn (2007), Richmond (2010) and Tadjbakhsh (2011). On norm contes-
tation in IR, see Wiener (2008).
202 A. E. Poppe and J. Wolff

the “third wave of democratization” (Huntington 1991) did not only create new
opportunities and demands for democracy promotion, but, in 1990, “democracy
enjoyed an unrivalled position as an ideology for humankind” (Burnell 2000c,
p. 39). The related notions of a universal value of democracy (Sen 1999), an inter-
national right to democracy (Franck 1992; cf. Fox and Roth 2000) and an inter-
national norm of democracy promotion (McFaul 2004; Schraeder 2003, p. 40)
became increasingly popular (cf. Hurrell 2007, Chap. 6). In the North-­Western
discourse, democracy was more and more seen as a global entitlement that
binds all nation-states in both moral and legal terms (cf. Fox 2000; Franck 1992;
McFaul 2004). Consequently, state sovereignty and the right to non-interference
were seen as conditioned by “a growing array of standards pertaining first and
foremost to human rights, but more recently also to democracy” (Brock 2009,
p. 224; cf. McFaul 2004, pp. 83 ff.; Reisman 2000). In this context, democracy
promotion as an international practice became regarded as not only both legiti­
mate and legal,16 but even as an international norm that shifts “the normative bur-
den […] to those not interested in advocating democracy promotion” (McFaul
2004, p. 158). The normative challenge to democracy promotion outlined above
could, thus, be largely ignored at the time, given the allegedly corroborated nor-
mative premise that liberal democracy constitutes the universally valid model of a
just political order.17
This premise has also shaped the mainstream scholarship on democracy pro-
motion. Most empirical studies that are interested in analyzing the strategies,
logics of influence and consequences of democracy promotion accept that such
policies are based on a certain model of liberal democracy and do not regard
the question of conceptual adaption or contextualization as a relevant issue.
This is obviously the case for quantitative studies on the impact of democracy

16As Carothers (2010, p. 70) has argued, the underlying logic that democracy promo-

ters refer to when justifying their continuous work in the face of local resistance is “that
governments which fall short on democracy are entitled to less political sovereignty than
democratic governments”.
17Two additional normative premises were also important in this regard: that democrati-

zation serves a range of other normative goals (peace in particular, but also, e.g., develop-
ment-oriented aims), and that, in democracy promotion, the values and interests of
democratic states become one. These assumptions were based, in particular, on democratic
peace theory, which suggested that promoting democracy meant extending a community
of democracies characterized by peace, stability and prosperity (Cox et al. 2000; Ikenberry
1999). Of course, these assumptions are equally questionable and have been increasingly
criticized since the turn of the century (cf. Goldsmith 2008; Ish-Shalom 2006; Leininger
et al. 2012; Smith 2007; Wolff et al. 2013).
8  The Normative Challenge of Interaction 203

promotion (cf. Finkel et al. 2007; Scott and Steele 2011), but the qualitative lit­
erature that draws on the concept of international socialization (cf. Cowles et al.
2001; Schimmelfennig et al. 2006) likewise accepts the given set of (­ democratic)
norms as the benchmark against which success and failure of norm take-over is
to be measured. The same holds true for most qualitative studies that explicitly
deal with democracy promotion (Kurki 2010, pp. 365 ff.). An edited volume on
Democracy Assistance (Burnell 2000a), for instance, starts out from the two-
fold assumption that, empirically, “the notions of democracy that lie at the cen-
tre of much democracy assistance, while not all being identical, occupy a limited
range” whereas, normatively, “to promote something other than elements of the
standard western experience would be reprehensible if it meant exporting untried
models of democracy that are judged too risky to entertain at home” (Burnell
2000b, p. 4). A recent volume that compares US and European democracy pro-
motion policies (Magen et al. 2009), in the introductory chapter, notes the
“triumph of democracy as an ideal and system of government”; observes a com-
mon “normative commitment to democracy and the objective of its promotion
outside” by the US and Europe; and then focuses on the analysis of the diffe-
rences and commonalities in terms of strategies of promoting democracy (Magen
and McFaul 2009, pp. 5, 11). Another comparative study (Schraeder 2002a) does
look at differences in “the nature of the democracy promotion policies” in terms
of more specific targets or dimensions (Schraeder 2002b, p. 228). Yet, this volume
focuses on general differences between donors (namely the US, Germany, Japan
and the Nordic countries) and not on processes of adaption to local conditions;
consequently, the variance is explained by divergent foreign policy interests with
the recipients playing no role at all (Schraeder 2002b, pp. 228 ff.).
More policy-oriented authors equally avoid the question of whether it could
be useful to consider contestation of democracy as a relevant subject for either
scholars or practitioners.18 Even scholars who look critically at one-size-fits-all

18Larry Diamond, as seen, emphasizes “the need for local ownership” (Diamond 2008,
p. 317). However, the current “democratic recession” (ibid., pp. 56–87) notwithstanding,
there is no question that “democracy is really the only broadly legitimate form of govern-
ment in the world” (ibid., p. 13). In the end, it is “the policies and the collective will of the
established democracies” that should make the difference (ibid.), and there is no hint that
Diamond conceives of local ownership as something that would possibly involve rethinking
what democracy means in any substantial sense. More explicitly, Fukuyama and McFaul
argue that democracy cannot be imposed on a society but that democracy promotion “is
intended only to help reveal public preferences in the society itself”; yet, because liberal
democracy “serves universal needs or performs functions that are universally ­necessary”,
204 A. E. Poppe and J. Wolff

approaches to democracy promotion (cf. Carothers 2007; Grävingholt et al. 2009;


Hill 2010) understand context-sensitivity or case-specificity largely in terms of a
strategic adaptation to local capacities and framework conditions, not in terms of
contested norms. If ideological challenges to liberal democracy are discussed, the
focus is mostly on non-democratic alternatives and not on (perhaps non-liberal)
challenges within democracy (cf. Burnell 2010, p. 9 f.; McFaul 2010, pp. 37 ff.;
NED 2006, pp. 8 f.; Ottaway 2010). Likewise, among practitioners, the recent
“backlash” against democracy has not led to “any substantial reconsideration or
reformulation of their work” (Carothers 2010, p. 66).19 As Milja Kurki (2010,
p. 363) concludes with a view to both scholarship and practice, “a broad con-
sensus continues to exist on the belief that democracy promotion entails liberal
democracy promotion, that is, the promotion of certain key liberal democratic
procedures” (emphasis in the original; cf. Ayers 2009, pp. 7 ff.; Burnell 2010,
p. 2; Carothers 1999, pp. 85 ff.).
These liberal assumptions have always been contested,20 but events and trends
since the turn of the century have led to a revival of critical analyses of the norma-
tive premises und conceptual underpinnings of “North-Western” democracy pro-
motion.21 The evolving new context is characterized by the legacy of the George

such public preferences will always be in favor of the type of democracy we know
(Fukuyama and McFaul 2007, p. 5). Grävingholt et al. (2009) emphasize the general need
of context-sensitivity in democracy promotion but then refer to the selection of appropriate
partners, the choice of appropriate timing and the sequencing of support measures only—
not to the potential need to revise the set of norms or the model of democracy in the light of
changing political contexts.
19“Although democracy assistance groups have in some cases pulled back in response
to the backlash, they have not changed their basic methods or practices. Most of the US
groups that tend to carry out the more politically assertive side of democracy aid have not
engaged in any substantial reconsideration or reformulation of their work. They have not
done so both because they feel they are fully justified in pushing when they can on aut-
horitarian and semi-authoritarian regimes […] and that any pulling back would only be
rewarding repression and resistance to democratic change. To the extent they see a need
to change their methods in response to the backlash, they see it as arising with regards to
communication about what they do—if concerned governments and public better unders-
tood what Western democracy assistance is in fact rather than in myth, their thinking goes,
such governments would object less to it.” (Carothers 2010, p. 66).
20See Chomsky (1997); Gills et al. (1993); Robinson (1996); and the debate in Fox and Roth

(2000).
21Cf. Barany and Moser (2009); Burnell and Youngs (2010); Carothers (2000, pp. 194 f.);

Goldsmith (2008); Hobson and Kurki (2012); Hurrell (2007, Chap. 6); Jahn (2007); Kurki
(2010); Risse (2009, p. 266); T. Smith (2007); Sørensen (2011, pp. 57 f.).
8  The Normative Challenge of Interaction 205

W. Bush administration and, in particular, the 2003 invasion of Iraq; by ambivalent


and non-linear trends in the evolution of national political orders that have led to
an increasingly plural picture of diverse types of (semi-)authoritarian and hybrid
as well as a range of most differently democratic regimes; a changing international
correlation of power characterized by the rise (and rising assertiveness) of non- or
semi-democratic states like China, Russia or Venezuela; and, associated with the
three former features, increasing resistance by recipient governments to external
support for democratic reforms and civil-society groups.22 These trends are cap-
tured by catchwords like the “backlash against democracy promotion” (Carothers
2010) and the “democratic recession” (Diamond 2008, pp. 56 ff.), “autocracy pro-
motion” (Burnell 2011a, Chap. 11) and “authoritarian capitalism” (Bermeo 2009,
p. 251), the “changing global distribution of power” (cf. Young et al. 2010) and the
“normative divide in international society” (Bundegaard 2010).23
All these supposed trends are, of course, debatable. Still, there is ample evi-
dence suggesting that democracy promotion is confronted with normative contes-
tation that cannot simply be dismissed as a neglectable expression of the narrow
interests of some outdated dictators:

The mood now is that democracy promoters must expect to have to argue their case
and tread carefully—a moral that is somewhat at odds with the hubris of the 1990s
[…] (Burnell 2011b, p. 7).

It seems highly unlikely that any single ideology or worldview will provide an
overarching framework or meta-narrative for values and ethics in the twenty-first
century. […] To the extent that such convergence around a single world view does
emerge, it will only be viable in so far as it comes from persuasion and un-coerced
acceptance rather than imposition and imperialism—both for moral reasons, but also
because imperial or hegemonic ordering, including liberal imperialism, is unlikely
to prove stable, effective, or legitimate (Hurrell 2007, pp. 314 f.; cf. Sørensen 2011).

At the moment, therefore, the optimism has largely vanished and the critics of
democracy promotion have gained strength both in the political and the academic

22Cf. Burnell (2010, 2011a); Carothers (2010); Goldsmith (2008); Müller (2009); NED

(2006); Smith (2007); Whitehead (2009).


23This divide refers to the observation of “a division between a North-West side acting upon

a universalist, rights-based norm, and a South-East side defending sovereignty and plura-
lism” (Bundegaard 2010, p. 4). See also Müller (2009). This divide is not simply a divide
between the “liberal” West and a supposedly “non-liberal” rest as it reflects a basic tension
within liberalism (cf. Sørensen 2011, Chap. 2; Wolff and Wurm 2011, pp. 83 ff.).
206 A. E. Poppe and J. Wolff

arena. This directly concerns the normative assumption of democracy’s universal­


ity. Whether in China or Russia, the Middle East or South America, the claim to
self-determined political development that may involve not only a different path
and pace of democratization but also an alternative end point (i.e., a different con-
ception of democracy) is pitted against the alleged universal entitlement to liberal
democracy as conceived of in the global “North-West”.24 “Competing ideologies”
of various kinds are, again, treated as a significant challenge for the endeavor to
globally spread democracy as understood in the global North-West (Burnell 2010,
pp. 9 f.). Even if it is contested to what extent a “full-fledged” ideological chal-
lenge to liberal democracy exists (cf. Ottaway 2010), there is not much doubt that
the ideological uncontestedness—or taken-for-grantedness—of liberal democracy
is gone. Hence scholars have noted the (re-)increasing questioning of “western-
derived analytical frameworks and models of democracy” (Burnell 2010, p. 5)
and the rising “attention to the question of norms concerning democracy assis-
tance” (Carothers 2010, p. 67; cf. Mahbubani 2009).
We draw on this incipient debate about the normative premises and concep-
tual underpinnings of democracy promotion, but intend to take it one step further:
from highlighting and criticizing problematic assumptions to offering an approach
for assessing, empirically, the role and the fate of these normative assumptions in
the interaction between donors and recipients. In order to analytically approach
this normative dimension of interaction, we propose a focus on justice conflicts as
the underlying problematique democracy promoters are confronted with.

8.4 Just and Unjust Democracy Promotion: The


Debate in Normative Theory

The academic literature that explicitly deals with democracy promotion rarely
refers to justice as a relevant concept.25 Yet, at the very basic level, the liberal per-
spective on international relations that is at the heart of the democracy p­ romotion

24“The entitlement of particular actors to support democratic progress abroad and the legi-
timacy of democracy promotion overall appear to be accepted less now than when McFaul
(2004–2005) said democracy promotion had achieved ‘world value’ status” (Burnell 2011b,
pp. 6 f.). In a general sense, this relates to what Bundegaard (2010, p. 6) calls “the sover-
eignty-responsibility normative divide” that runs “between a state sovereignty defending
South-East and a human rights responsibility proponing North-West”.
25For exceptions, see Hurrell (2007), Pangle (2009), Gädeke (2010) and—with a view to
conditionality—Collingwood (2003) and Pogge (2001).
8  The Normative Challenge of Interaction 207

enterprise is based on the distinction between “[d]omestically just republics,


which rest on consent” (i.e., liberal democracies), and “nonliberal states”, which
“do not rest on free consent” and are, therefore, “not just” (Doyle 1986, p. 1161).
Democracy promotion, in this sense, is embedded in what Hurrell (2007, p. 296)
calls the “particular justice agenda of liberal solidarism”. Accordingly, it is not
by chance that important normative debates crucial for democracy promotion do
regularly address questions of justice. The philosophical debate about the univer-
sality of democracy and human rights is, to an important extent, a debate about
the principles of global justice. Consequently, in contributions that deal with the
legitimacy and legality of coerced democratization by military means (and the
broader debate about the military enforcement of human rights), references to
theories of justice and, in particular, the concept of “just war” abound.26
It is in international political theory and philosophy that questions of democracy
promotion have been dealt with as explicitly justice-related issues:27 Are states ent-
itled—or perhaps even obligated—to promote democracy in other states? To what
extent, and under which conditions, can democracy promotion be regarded a just
or unjust intervention? While focusing mainly on the question of if and when mili-
tary interventions can be regarded as just, this debate nevertheless offers important
insights into the justice conflicts that confront also the kinds of democracy pro-
motion that are limited to non-coercive means. The overall issue at stake in this
debate is, indeed, “a conflict between competing demands of justice”: The aim to
intervene into the internal affairs of a given country in order to correct intolerable
injustice clashes with the problem that any intervention—“whether military or
nonmilitary”—“violates the right to self-determination of the citizens of the state
that is the target of the intervention” (McMahan 1996, p. 2). Or, as Michael Doyle
(2009, p. 350) puts it, “the cosmopolitan, humanitarian commitment to assistance”
collides with the “respect for the significance of communitarian, national self-de-
termination”. Dispute about precise criteria notwithstanding, most scholars agree
that this justice conflict largely dissolves when a given state massively violates
basic human rights in a way that renders any notion of collective self-determination

26See Beitz (1999, 2009); Brock (2009); Doyle (2009); Finlay (2007); Frankel et al. (2006);

Grimm and Merkel (2008); Hurrell (2007); Müller (2009); Nagel (2005); Pangle (2009);
Reisman (2000); Walzer (2006, 2008).
27For the related—and in many ways interrelated—debate in international law, cf. Altman

and Wellman (2009); Charlesworth (2012); Fabry (2009); Farer (2004); Fox and Roth
(2000); R. Merkel (2008).
208 A. E. Poppe and J. Wolff

“cynical and irrelevant” (Walzer 2006, p. 90).28 Yet, with a view to democracy
­promotion, this leaves two issues unresolved: What about non-coercive means?
And what about political aims that go well beyond a (however narrowly defined)
set of basic human rights?
On the question of means, most scholars agree that established democracies
“can never rightly use force to create a democratic regime in someone else’s coun-
try” (Walzer 2008, p. 351; cf. W. Merkel 2008, p. 498).29 In this, they can refer
to both Immanuel Kant’s Perpetual Peace and John Stuart Mill’s A Few Words on
Non-Intervention (Doyle 2009, p. 352; Jahn 2005, pp. 188 f.).30 Yet, the demands
of justice, according to liberal philosophers and theoreticians, are less clear when
it comes to non-military means, or intervention in a broader sense.31 John Rawls’
Law of Peoples, for example, restricts just interventions in a way that leaves
almost no room for any kind of activities directly aiming at democracy promo-
tion. Liberal democracies, according to Rawls, have to tolerate non-democratic
regimes as long as these respect some basic human rights and international rules
and thereby qualify as “nonliberal but decent” (Rawls 1999, p. 3). Toleration

28Cf. Doyle (2009, 1983, pp. 361, 330 f.); Macedo (2004, p. 1723); Rawls (1999, p. 81);

M. Smith (2009, p. 80). While Rawls and Walzer define fairly restrictive criteria that a just
war has to meet, cosmopolitan liberals set a much lower threshold of violations of liberal
(human rights) standards that justify military interventions (cf. Beitz 2009).
29A possible, but still very much contested exception concerns the case when a “democ­

ratizing” military intervention aims at reversing a coup against a democratically elected


government (Reisman 1990, p. 871). In addition, Finlay (2007) has argued that, under spe-
cific circumstances, “reform interventions” that aim at promoting democracy by supporting
revolutionary movements could in principle be justified.
30A different question, however, concerns the right (or even duty) to establish democracy

“once states have used force for some other legitimate purpose, to defeat the Nazis, for
example, or (hypothetically, since we did not do it) to stop a massacre in Rwanda“ (Walzer
2008, p. 351; cf. Pangle 2009, pp. 31 f.). Quite a few scholars argue for such an ex post
obligation to “political reconstruction” (Walzer 2008, p. 351) or, indeed, comprehensive
democratization as part of an extended jus post bellum (W. Merkel 2008).
31In international law, intervention is traditionally defined narrowly as “dictatorial interfe-

rence” (Lassa Oppenheim, quoted in Doyle 2009, p. 350). But coercive or military inter-
vention is, of course, not the only way in which states may actively interfere in other
countries’ internal affairs. McMahan (1996, p. 3) therefore defines intervention as “the use
of coercion, compulsion, or manipulation by some external agent or agents in an effort to
effect or to prevent changes in the policies or practices of a state” but adds that it would
also be “perfectly acceptable” to also include “external assistance to a state that is inten-
ded to help the state defeat its internal opponents”. “At the most general level, intervention
refers to actions or policies designed to influence the affairs of a sovereign state and carried
out by an agent external to that state.” (Beitz 1999, p. 72).
8  The Normative Challenge of Interaction 209

means “to recognize these nonliberal societies as equal participating members”


(Rawls 1999, p. 59), which requires refraining from any activities that would deny
this status as equal partners, including “the granting of subsidies to other peoples
as incentives to become more liberal” (Rawls 1999, p. 85). Liberal-democratic
states, in the Rawlsian perspective, should even refrain from “official criticisms
with respect to these societies” (Macedo 2004, p. 1732) This far-reaching tolera-
tion, by allowing a recognition “of these societies as bona fide members of the
Society of Peoples’, is seen as the best means to indirectly promote democracy,
because “withholding respect from decent peoples” would stifle their ability “to
reform themselves in their own way” (Rawls 1999, p. 61).
Michael Walzer goes a bit further in the direction of active democracy promo­
tion by arguing that states can “encourage democratization without using ­military
force—through diplomacy, say, or ideological argument” (Walzer 2008, p. 351).
While this allows for the kind of official criticism Rawls rejects, Walzer still
seems to limit democracy promotion to the defense of “human rights by advo-
cacy and example” (Walzer 2008, p. 352).32 This corresponds to the classical lib­
eral perspective, according to which “example and persuasion” constitute “the
sole path open to fostering liberal democracy abroad” (Fabry 2009, p. 727; cf.
Nussbaum 2006, p. 80). Thomas Nagel, without being precise about appropriate
means, adds that external assistance can be considered just once internal develop-
ments already point in the right direction:

People engaged in a legitimate collective enterprise deserve respect and noninterfer­


ence, especially if it is an obligatory enterprise like the provision of security, law,
and social peace. […] But there seems nothing wrong with being particularly sup-
portive of transformations in a liberal direction (Nagel 2005, p. 135).

Briefly discussing the spectrum of “non-belligerent tactics” to spread liberal


democracy, Thomas Pangle concludes that “ideological” measures—“including
inter-governmental dialogue, exhortation, propaganda, cultural exchange, and
educational efforts of all kinds”—can be considered “to be almost always legiti­
mate, and indeed obligatory—as an expression of the highest defining goals of
liberal republicanism and its self-expression and self-affirmation” (Pangle 2009,

32“The old biblical idea about being ‘a light unto the nations’, which implies that you just
have to sit still and shine, is not the whole story of democratization but it is a good begin-
ning” (Walzer 2008, p. 352). Walzer, in his piece, does not mention at all the question of
active democracy assistance so it remains unclear to what extent this could constitute a fur-
ther legitimate step in the “story of democratization”.
210 A. E. Poppe and J. Wolff

p. 33). When turning to “the pressure of peaceful, but costly, sanctions of all
sorts”, “greater moral caution” is required because of “the respect that is due to
nonliberal regimes that are relatively unwarlike and unoppressive” (Pangle 2009,
p. 33). The most intrusive policies that are still non-violent concern “material
and educational support for indigenous nongovernmental or semi-governmen-
tal democratic organizations and movements within nonliberal nations”; these,
accordingly, demand “still greater moral circumspection” (Pangle 2009, p. 33).
Cosmopolitan liberals—following up on John Stuart Mill’s plea for “benign colo-
nialism” (Doyle 2009, p. 363; cf. Jahn 2005)—consider much more intrusive
forms of intervention as potentially just. Charles Beitz, for example, acknowl­
edges that, when dealing with a target state that “is just, or is likely to become
just if left free from external interference”, the prohibition of nonintervention
would hold and include “subversion, payoffs to government officials, c­ onditional
aid, and similar techniques of influence” (Beitz 1999, pp. 91 f.). Yet, if these
conditions are not met, promoting “justice” from the outside by a wide range of
measures can be perfectly just (Beitz 1999, p. 92) and can even include “some
form of imposed trusteeship or protectorate or shadow government” (Beitz 2009,
p. 345; cf. Jahn 2005, p. 185).33
On the question of aims, Rawls, again, represents the most restrictive end
of the spectrum. According to Rawls, as seen, once “nonliberal states” meet “a
minimal condition of decency”, the foreign policy of liberal states should not
aim to move these further “toward liberalism” (Nagel 2005, p. 134; cf. Rawls
1999, p. 118). Drawing on Rawls, Stephen Macedo (2004, p. 1738) adds that
“[d]ue respect for the project of collective self-governance requires that just
societies resist the impulse simply to universalize principles arrived at within the
horizons of one people’s institutions, history, and culture.” Walzer, while arguing
in favor of using diplomatic protest as a means to promote democracy, in terms of
the aims advises the established democracies to be “minimalists abroad”, which
implicates a focus on (basic) human rights:

Steady pressure on behalf of political decency and a sustained critique of brutality


and repression are what we should expect from democratic states, and, except in
humanitarian emergencies, not much more (Walzer 2008, p. 352).

33To be sure, also in the fairly restrictive Rawlsian framework, there are still non-decent
peoples, especially “outlaw states” and “burdened societies”, towards which much more
active and intrusive kinds of interference –including military intervention (in the case of
outlaw states) or protectorates (in the case of burdened societies)—are justified (Rawls
1999: Part III; cf. Jahn 2005, p. 186).
8  The Normative Challenge of Interaction 211

Andrew Hurrell also argues “that a core list of human rights should form the basis
for international action rather than the aim of promoting democracy”:

If external involvement is extended beyond this into the detailed ways in which poli-
cies are chosen and implemented, the central liberal principals of representation, of
accountability, of pluralism and the respect for diversity will be undermined (Hurrell
2007, p. 163).

Indeed, if we take the basic assumption that Rawls and Walzer—following Kant
and Mill—make seriously, any attempt to shape the path of political development
of other societies is deeply problematic. Just as Kant “made a strong case for
respecting the right of nonintervention because it afforded a polity the necessary
territorial space and political independence in which free and equal citizens could
work out what their own way of life would be” and Mill added that intervention,
even if well-meant, would actually undermine “the authenticity of domestic strug-
gles for liberty” (Doyle 2009, p. 352),34 Rawls argues that “[d]ecent societies
should have the opportunity to decide their future for themselves” (Rawls 1999,
p. 85). Walzer adds that democracy “has to be reached through a political pro-
cess that, in its nature, can also produce different results”; as long as these results
do not “threaten life and liberty”, “the different political formations that emerge
must be given room to develop (and change)” (Walzer 2004, p. 184).
Most liberal scholars certainly see much less problems in advocating the
explicit (if non-violent) promotion of specific liberal-democratic principles and
institutions. Early on, for example, Michael Doyle has argued in favor of “eco-
nomic means—sanctions or restricted interaction with nonliberal states, and
extended aid and trade with liberal or transitional states—to promote liberal prin-
ciples abroad” (Jahn 2005, p. 182; cf. Doyle 1983, pp. 344 ff.). In general, there
is a wide range of scholars who do not seem to see any injustice in the attempt to
promote the spread of liberal democracy, even if it cannot count on explicit con-
sensus in the target countries (cf. Jahn 2005, pp. 185 f.). Yet, to date, international
political theorists have not comprehensively dealt with the question of which

34Of course, Mill’s plea for nonintervention was restricted to “civilized nations” and did
not extend to “barbarians”, which “have no rights as a nation, except a right to such treat-
ment as may, at the earliest possible period, fit them for becoming one” (Mill 1859, p. 119;
cf. Doyle 2009, pp. 363 f.). Kant’s position on nonintervention, in this sense, was certainly
less imperialist that Mill’s (Jahn 2005), but his notion of an “unjust enemy” also opens the
door for interventionist policies, including coercive regime change (Pangle 2009, p. 29).
212 A. E. Poppe and J. Wolff

kinds of non-coercive democracy promotion activities are justified (or not) under
which circumstances (cf. Gädeke 2010).35
In order to facilitate systematic theoretical reasoning, most scholars in this
debate assume a relatively simple differentiation between democratic and non-
democratic countries.36 They, therefore, can avoid more complex questions about
to what extent external actors are entitled to promote a rather specific set of (lib­
eral-democratic) institutions conceived, by them, to be universally just. When we
turn to democracy promotion in countries that are, in terms of its basic political
structures, already democratic, a second justice conflict adds to the overall one
between the claims to self-determination and human rights/democracy: What if
just (democratic) procedures lead to decisions—“actual enactments of the demo-
cratic people”—that violate a given “interpretation” of “universal human rights”
(Benhabib 2009, p. 191)?37
This brief review of debates in normative theory shows that, even from a lib­
eral perspective, it is heavily contested which kinds of democracy promotion are
to be regarded as just or unjust. Even peaceful democracy promotion “can quickly
come into conflict with a liberal respect for the self-determination of other
­nations—and with a liberal tolerance for the diversity of civic cultures” (Pangle
2009, p. 31). At the same time, to refrain from actively promoting democracy
would be not much better in terms of complying with liberally defined p­ rinciples
of justice. Quite clearly, democracy promotion is confronted with contradictory

35Without speaking about specific means, Philip Pettit, for example, has made the case that
“representative states will have commitments that give them normative reason for a concern
with rectifying the problems of those who live under ineffective and non-representative
states” (Pettit 2010, p. 89), while the only “satisfactory solution” is to replace such regimes
“by states that are representative in the requisite sense” (Pettit 2010, p. 90): “The ideal of
nondomination […] identifies the goal that established, representative states should seek
to achieve, even as they act out of mixed or impure motives” (Pettit 2010, p. 90). Drawing
on Pettit’s notion of justice as non-domination, Gädeke argues that the role (and duty) of
external actors is limited to “ensure that […] everyone has access to institutions of fun-
damental justice. All further claims to justice are then to be justified and realized autono-
mously within these institutions” (Gädeke 2010, p. 21).
36Of course, the latter are then usually further differentiated: into nonliberal, but decent

and other “peoples” which are not well-ordered in the case of Rawls, or into states that are
likely to become just and other which are not, as Beitz has it (see above).
37Seyla Benhabib’s answer to the problem “of how to reconcile cosmopolitanism with

the unique legal, historical, and cultural traditions and memories of a people, is that we
must respect, encourage, and initiate multiple processes of democratic iteration” (Benha-
bib 2009, p. 198): “Universalist norms are thereby mediated with the self-understanding of
local communities.” (Benhabib 2009, p. 199).
8  The Normative Challenge of Interaction 213

justice claims, which refer to competing entitlements and result in justice con-
flicts that can, arguably, not be resolved on the abstract level of philosophical rea-
soning. If global justice, as Hurrell (2007, p. 308) states (see also Welch 1993,
p. 200), cannot “be deduced from abstract rational principles”, but has to be
thought of as “a negotiated product of dialogue and deliberation”, then an alterna­
tive to the attempt to theoretically dissolve the normative tensions of democracy
promotion is to empirically study the ways in which these tensions actually play
out and are handled in the interaction between democracy promoters and recipi­
ents. This is the path for future research this chapter suggests.

8.5 Justice Conflicts in Democracy Promotion: A


Conceptual Proposal

Up to this point, the present chapter has made the case for two arguments:
­democracy promotion has to be conceived of as a process of interaction that
includes contestation and negotiation and the normative problematique implied
by this perspective results from underlying normative tensions inherent in the
overall endeavor to externally promote democratic self-determination. As seen,
the common denominator of these tensions is that they render problematic basic
claims to entitlements associated with democracy promotion. The result is a
series of justice conflicts that shape both the devising and adapting of democracy
promotion strategies on the part of the donor (the processing of justice conflicts)
and the interaction between external actors and recipients (the negotiation of jus-
tice conflicts). At the heart of this problematique is what Nancy Fraser (2009,
Chap. 4) has called a context of “abnormal justice”: a situation in which “the
grammar of justice itself is up for grabs” (Fraser 2009, p. 50). Normative con-
testation of democracy promotion is not “only” about substantive questions con-
cerning, e.g., the appropriate model of a just political order. It also includes basic
disagreement about the kind of actors which are entitled to make justice claims
(individuals, states, external actors?) as well as about the proper arena in which
such claims should be dealt with (nation-state, inter- or transnational relations?).38
Systematically, we can distinguish between three types of justice con-
flicts in democracy promotion: contestation of the just model of political order;

38Fraser’s
notion of “abnormal justice” further emphasizes the need for interaction in
democracy promotion: In “abnormal times”, justice conflicts cannot be dealt with in a
“monological” way but require “a dialogical process” (Fraser 2009, p. 68).
214 A. E. Poppe and J. Wolff

c­ ontestation of the extent and means of just external interference; and contesta-
tion of the question of whom to recognize as participants in the negotiation about
political change and democracy promotion. With a view to each of these substan-
tial topics which may be contested in democracy promotion, justice conflicts can
theoretically come in two different shapes: In an application conflict, competing
justice claims are derived from the same or from generally shared principles of
justice; in a conflict of principles, by contrast, such basic principles are them­
selves contested (Daase and Humrich 2011, pp. 8 f.).39
Justice conflicts in democracy promotion, at the same time, can play out at dif-
ferent levels. Justice conflicts may be something internal to the democracy pro­
moter. Here, a particular context or specific events in the recipient country give rise
to conflicting objectives, which involve justice-related aims, on the part of the exter-
nal actor; such conflicts are conflicts between competing aims and beliefs a ­specific
actor holds. Justice conflicts can also emerge between democracy promoters and
recipients. Here, the conflict situation is constituted by competing claims of external
and local actors; it is a conflict between actors that make competing claims. There
is, of course, an additional level—internal justice conflicts in recipient countries—
and, given the fact that democratization is first and foremost an internal process, it
is arguably the most important one. Yet, to include domestic justice conflicts as an
additional object of research would require an analysis of the diverse and complex
political dynamics in recipient countries with a view to the shaping of political order
and social conflict. While this is certainly an important research agenda situated at
the level of domestic politics, in research focusing on international democracy pro-
motion it is reasonable to look at this level only to the extent that it gives rise either
to conflicting objectives on the part of the democracy promoters or to conflicting
local claims directed against external actors. The focus of this chapter is, therefore,
on the processing of justice conflicts on the part of the democracy promoters and the
negotiation of justice conflicts in the interaction between donors and recipients.
Figure 8.1 maps the typology of justice conflicts we propose. In the first
instance, democracy promoters’ claim that liberal-democratic standards constitute

39In addition to these justice conflicts, in which justice claims collide, there are also justice-
related conflicts of objectives in a broader sense—that is, conflicts in which justice-related
aims clash with other types of objectives (see Daase and Humrich 2011, pp. 8 f.; Müller
2010, p. 4). In a conflict of values, justice claims collide with other demands that are r­ elated
to the common good but independent of questions of justice (e.g., peace). In a conflict of
preferences, justice claims and narrowly defined “material” interests collide. Given our
interest in the normative challenges to democracy promotion, this chapter focuses on jus-
tice conflicts in a narrow sense.
8  The Normative Challenge of Interaction 215

Conflict Specification

(1) Contested Liberal democracy in conflict with alternative


political (non-liberal, non-democratic) conceptions of a
models just political order Internal processing of justice
conflicts by donor (level of
Interference based on individual rights versus processing)
(2) Contested
non-interference based on right to collective
interference Negotiation of conflicts
self-determination
between donors and
recipients (level of
Contestation about who and according to what interaction)
(3) Contested
criteria to recognize as legitimate justice
recognition
claimant

Fig. 8.1   Justice Conflicts in Democracy Promotion

universal features of any just political order collides with alternative democratic
or non-democratic conceptions of a just political order that may exist in a given
recipient country (Conflict 1). Thus, the nature and shape of a just political order
is contested, taking either the form of a conflict of application or a conflict of
principle. Between external and local actors such contestation may either arise if
shared democratic principles are interpreted, applied and/or prioritized in differ­
ent ways, or when there is fundamental disagreement about basic principles of
political rule. With a view to the former, these application conflicts may concern
differences, e.g., between presidential and parliamentary systems, mechanisms
of majority rule and power sharing, representative and direct democracy. With a
view to the latter, the individualist conception of justice, which is at the heart of
liberal democracy, may collide with conceptions of justice, which give priority to
collective, and/or communitarian rights (conflict of principles). Clashing under­
standings of a just political order, at the internal level of the democracy p­ romoter,
render problematic the justice-related norms that guide democracy promotion:
How is the principle of “country ownership” to be applied under circumstances of
contestation (conflict of application)?40 How is the conflict between the ­individual

40Another application problem at the internal level concerns the question of how to trans-
late the abstract entitlement to democracy into specific aims and indicators of democracy
promotion programs.
216 A. E. Poppe and J. Wolff

entitlement to democracy and the collective right to self-determination to be


resolved (conflict of principle)?41
This problem of ownership/self-determination already points to the second
justice conflict, in which contestation is about whether or not external actors have
the right to interfere in another country’s internal affairs (Conflict 2). Whereas
external military intervention may be the most extreme case of interference, it can
be argued that any kind of involvement in another state’s affairs constitutes an
illegitimate act (see Section “Just and Unjust Democracy Promotion”). When it
comes to the interaction between external and local actors, democracy promot­
ers invoke the universal right to democracy that applies to each individual and
thus claim to intervene on behalf of those who have been denied their basic
rights. External interference, however, runs into conflict with two other valued
international principles, namely the right to self-determination of peoples and
the national sovereignty of each state (Ikenberry 2011, pp. 287 ff.). Internally,
democracy promoters have to come to terms with this conflict as well, as promot­
ing democracy, in principle, is based on individual political and civil rights as
well as on the notion of collective self-determination. While these principles may
be starkly pitted against each other (conflict of principles), the more likely case
is that actors argue about the manner and degree to which they should be applied
in a given situation (conflict of application). Local actors may welcome a cer-
tain degree of external support but may resent too much pressure or the imposi-
tion of sanctions. External actors may also debate internally how to balance their
commitments against each other: How much “Liberalism of Imposition”, how
much “Liberalism of Restraint” is appropriate (Sørensen 2011)?42
At the most fundamental level—and in the most extreme cases—external and
local actors can refuse to recognize each other as legitimate justice claimants
(Conflict 3). Here, an actor’s status as a legitimate justice claimant, i.e. as having

41This requires what Youngs (2012, p. 115) calls the need “to work towards squaring the
circle”: While promoting democracy, from the liberal perspective, is about promoting “a
system that (simply) creates space for a variety of local choices”, “core liberal freedoms are
required to make such local choices”. Yet, if external actors insist on such freedoms, this is
then often regarded as “a corruption of local autonomy”.
42As Sørensen (2011, p. 43) shows, both a pluralist “Liberalism of Restraint” that “empha­

sizes tolerance of diversity, moderation, holding back, empathy, nonintervention, and


­peaceful cooperation” and a universalist “Liberalism of Imposition” that “accentuates that
liberal principles are morally superior to other principles and universally valid” and, hence,
“supports activism, intervention, and, in the international realm, the change of nonliberal
regimes to liberal regimes” refer to basic liberal principles of a just world order—and both
are equally contradictory (Sørensen 2011, p. 58; see also Ikenberry 2011, pp. 287 ff.).
8  The Normative Challenge of Interaction 217

the legitimacy to make justice claims at all, is disputed. Such conflicts of recog-
nition emerge between external actors and recipients either when a local actor
demands such recognition but is seen by democracy promoters as illegitimate
in this respect—or when the external democracy promoter is regarded illegiti-
mate by one or several local actors. E.g., in the contemporary “backlash” against
democracy promotion, some “non-Western” governments reject external advice
and pressure on domestic political issues by claiming that outsiders do not have
any legitimate say in the internal affairs of sovereign states, whereas, conversely,
some liberal analysts and politicians reject these demands by “autocratic leaders”
as they deny them the status of legitimate justice claimants (cf. Carothers 2010;
Gershman and Allen 2006; NED 2006). At the internal level of the democracy
promoter, such conflicts of recognition raise crucial questions about the appro-
priate rules and criteria of recognition: In deciding with whom to cooperate
and whose voices to hear, should such recognition be based on formal authority
(government as official representative of a state and a people), empirical legiti-
macy (political forces that receive broad support in the population) or on the
nature of behavior and claims (political forces whose behavior and claims are dee-
med just by the external actors)?43
In the real world of democracy promotion, these three types of justice conflicts
will regularly be intimately connected, mutually reinforcing or mitigating each
other. Analytically, however, it is useful to differentiate between them as they
refer to distinct problems which can, at least theoretically, exist independently
of each other. For instance, even if there is no conceptual disagreement about
democratic standards of just political rule and no problem of denied recognition,
a given recipient government might still reject any kind of active involvement

43In a piece about the “awkward coupling” of state sovereignty and democracy, Whitehead

(2010, p. 25) illustrates this basic conflict of recognition as seen from the perspective of the
democracy promoter: “It is not enough to respect the sovereignty of those states that can be
unambiguously assigned to the ‘democratic’ side of the global community. There are still
far too many states (with supporting populations) whose democratic credentials are inse-
cure, contested, or outright lacking. They will continue to exist, and to play an active part
in the international community. They will often even provide services such as security and
identity to their subject populations, who may therefore feel threatened when their soverei-
gnty is contested from without. And, in most cases, these states will be the most plausible,
if not the sole bearers of national hopes for eventual progress with democratization as well.
So the suspension of their sovereignty is neither a practical nor a prudent method of advan-
cing the course of democracy in the world, except under the most extremely restricted cir-
cumstances.”
218 A. E. Poppe and J. Wolff

by democracy promoters. In the same vein, there might be no contestation, in


­principle, of the legitimacy of promoting democracy from the outside but still dis-
agreement about the kind of democracy that democracy promotion should aim at.
In principle, democracy promoters have vowed to do justice to these compe-
ting norms: While the promotion of democracy is supposed to endow all human
beings with their inalienable rights, local conceptions of justice are to be respec-
ted and accounted for. Yet, as seen, this harmonious idea is regularly contra-
dicted by justice conflicts that characterize the political dynamics in a pluralist
world (cf. Hurrell 2007, pp. 158 ff.; Müller 2010; Sørensen 2011, Chap. 2). The
dilemma at hand is that principles such as ownership and self-determination sug-
gest the need to put the appropriate norms that are to guide democracy promotion
in any specific case up for discussion with the respective recipients. Yet, promo-
ting democracy, by its very essence, means supporting a specific political regime
(democracy), which may be defined more or less narrowly but, in any case, impli-
cates normative limits to local adaptation. What is more, democracy promotion
derives from the very identity of the established democracies in the “North-West”
and is, thus, systematically informed by the specific (liberal-democratic) norms
established in these societies. This raises the empirical question of how such
justice conflicts are processed by democracy promoters and negotiated between
donors and recipients.44 The perspective on democracy promotion as interaction
and the typology of justice conflicts developed in this chapter present a frame-
work for tackling this question.

8.6 Conclusion

Democracy promotion has to be considered as a process of interaction which


requires a departure from unidirectional notions of “export” or “socialization”.
Scholars and practitioners in the field have to acknowledge that interaction in
democracy promotion involves meaningful agency also on the part of the recipi­
ents, including with regard to the very norms that are to guide democracy pro-
motion. This chapter aimed at, theoretically, establishing this need and outlining

44Within the scope of this chapter, we have focused on highlighting and making plausible

the need to address democracy promotion from a different angle, namely taking the nor-
mative challenges and thus the interaction process seriously. Analyzing the interaction pro-
cess would require to look at four interrelated dimensions: the articulation of justice claims,
negotiation of justice conflicts (the interaction proper), adaptation to justice conflicts, and
consequences of justice conflicts.
8  The Normative Challenge of Interaction 219

a conceptual framework that enables us to analyze, empirically, how democracy


promoters deal with, and how donors and recipients negotiate about, the ensuing
normative challenges or justice conflicts.
The problem at hand is, however, not “only” an abstract normative issue as
well as an object for empirical research that has so far received little ­academic
attention. It is also relevant for the practice of democracy promotion itself.
Research should, therefore, go beyond empirically analyzing the processing and
negotiation of justice conflicts in democracy promotion and also aim at identi­
fying constructive ways of handling contestation in this policy field. Procedur­
ally, such ways can refer either to internal operating procedures on the part of the
donor that enable a reflexive processing of justice conflicts,45 or to ways of insti-
tutionalizing the interaction between donor(s) and recipient(s) that favor arguing
over bargaining.46 In terms of substance, the question is whether justice conflicts
can be resolved (or, at least, mitigated) by way of an agreement about basic prin-
ciples for both a just political order for the recipient side and just forms of exter-
nal interference by the donor.47 Answers to these questions are arguably of crucial
importance for the future of democracy promotion in the twenty-first century. As
will be argued in these concluding remarks, finding constructive ways of handling
justice conflicts is not only immediately relevant for making democracy promo-
tion more effective, more legitimate and less conflict-prone but also for the shape
of world order in the twenty-first century.
As we have shown, there is, on a general level, a broad consensus that democ­
racy can only work in a given country if it is “locally owned” and correspond­
ingly adapted to the particular socio-politico-cultural context. If taken seriously,
this requires democracy promoters to be reflexive in the sense of adjusting their
(universalist) conceptions of the good political order to local demands and cir-
cumstances. In the terminology adopted in this chapter, this would require that

45A first attempt in this direction—which at least touches upon some of the problems iden-
tified here as justice conflicts in democracy promotion—is Carothers’ proposal to reform
the institutional structures and operational methods within USAID (Carothers 2009b).
46Following Habermas’ Theory of Communicative Action as applied to International

­Relations, arguing is understood here as “truth-seeking or deliberative action […] based


on communicative rationality as opposed to bargaining based on a strategic rationality”
(Deitelhoff and Müller 2005, p. 170).
47Resolving a justice conflict would require that parties were able “to reconcile their differ­

ing notions and arrive at a common sense of justice” (Zartman 2008, p. 75). A less demand­
ing task would be “to identify overlaps and areas of compromise” (Daase and Humrich
2011, p. 7).
220 A. E. Poppe and J. Wolff

democracy promoters take up justice claims and deal with justice conflicts aris­
ing from within the recipient countries in a serious manner. This is a question of
effectiveness, but also impacts directly on the legitimacy of external interven­
tions (which, on its part, is generally assumed to contribute to effectiveness). The
criticism as to the quasi-imperialist nature of democracy promotion48 may often
be overdrawn, given that most really-existing democracy promotion policies are
much less coercive, dogmatic and coherent than these critics would have it (cf.
Burnell 2011a, Chap. 4; Carothers 2009a, pp. 12 ff.; Wolff 2012; Youngs 2012).
Still, even relatively sympathetic observers note that democracy promoters are
regularly not very sensitive to local contexts and demands (cf. Burnell 2011b,
pp. 9 f.; Carothers 2009b; Grävingholt et al. 2009; Hill 2010). There can, thus, be
no doubt that the empirical legitimacy of democracy promotion in the eyes of the
recipients would increase—and, hence, also its potential effectiveness—if external
actors demonstrated that they were not engaged in exporting a certain model but
in supporting the search for locally adjusted paths to locally adjusted democracy.
Furthermore, dealing constructively with justice conflicts in democracy
promotion is also of immediate relevance for preventing conflict, both inside
recipient countries and between donors and recipients. With a view to the
intra-recipient dimension, the research on the specific risk of political violence
associated with democratization does not generally discard the possibility that
democracy and democratization may contribute to establishing and/or securing
intra-state peace. Scholars rather point to the need to adjust processes of political
change to the particular situation in a given country (Bermeo 2009, pp. 244 f.).49
As has been argued in this chapter, such adjustments would have to take into
account the—potentially diverging—local claims as to how a just political order
in the country should look like. With a view to the international dimension,
democracy promotion can become a major source of conflict between donor and
recipient governments if justice conflicts between the two are not dealt with in a
cooperative way. That democracy promoters, for example, listen to the “plurality
of views on democracy” existing in a given country is, therefore, not only “nor-
matively desirable but also practically desirable in allowing productive engage-
ment to emerge between critical (or even hostile) target publics and democracy
promoters” (Kurki 2010, p. 378).

48Cf. Ayers (2009); Chomsky (1997); Gills et al. (1993); Robinson (1996); Slater (2006);
Tully (2005).
49Cf. Carothers (2007); Fukuyama (2007); Hegre et al. (2001); Jarstad and Sisk (2008);

Mansfield and Snyder (2007).


8  The Normative Challenge of Interaction 221

From a broader perspective, the challenges to democracy promotion are also


relevant to the future of world order in the twenty-first century. The question of
the extent to which peaceful global governance can or should be based on liberal-
democratic norms is at the heart of the current debate about possible normative
foundations of order in an increasingly pluralist world (Cox 2002; Hurrell 2007;
Ikenberry 2011; Sørensen 2011). Correspondingly, contestation of democracy and
democracy promotion is part and parcel of the broader dynamics of norm contes-
tation in international politics (Acharya 2004; Müller 2010; Wiener 2008). While
this academic scholarship focuses on norm dynamics in multilateral arenas, it is,
in fact, the form of political order at the level of the nation-state that will cons-
titute the basis of any multilayered structure of global governance for the fore-
seeable future. In this sense, analyzing the dynamics of contestation in regards to
foreign and development policies that aim at promoting democracy also promises
crucial contributions to the contemporary study of international politics.

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Negotiating Interference: U.S.
Democracy Promotion, Bolivia, and the 9
Tale of a Failed Agreement

Jonas Wolff

9.1 Introduction

Bolivia, September 2009. The U.S. embassy in La Paz declares that it will
phase out USAID’s democracy program in Bolivia (Nacion.com, September 20,
2009). Following years of complaining about alleged U.S. attempts to destabi-
lize democracy in the country, the Bolivian government had instructed USAID
to close its democracy promotion activities in the country, adding to a series of
expulsions that in the course of 2008 had already affected the U.S. Ambassador
to La Paz and the U.S. Drug Enforcement Administration (DEA). But while Free-
dom House reacts by “strongly” criticizing the Obama Administration’s decision
“to accede to the demands of the Bolivian government” (Freedom House 2010,
p. 5), the U.S. government does not only do precisely this, but continues a bilat-
eral dialogue that had been started just a few months earlier and that, in Novem-
ber 2011, would culminate in the signing of a bilateral “Framework Agreement

This chapter has been published as Wolff, J. (2016). Negotiating interference: US


democracy promotion, Bolivia and the tale of a failed agreement. Third World Quarterly,
38(4), 882–899, copyright © Southseries Inc., www.thirdworldquarterly.com, reprinted by
permission of Taylor & Francis Ltd, http://www.tandfonline.com on behalf of Southseries
Inc., www.thirdworldquarterly.com. I would like to express my appreciation for granting
publication rights.

J. Wolff (*) 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: wolff@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 229


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_9
230 J. Wolff

for Mutually Respectful and Collaborative Bilateral Relations” (U.S. Department


of State 2011a). This agreement, while duly recognizing common obliga-
tions related to representative democracy and human rights, clearly emphasizes
“respect for sovereign states” and “the principle of non-intervention” over exter-
nal democracy promotion (Bolivia and United States 2011). Still, on May 1,
2013, Bolivia’s president Evo Morales publicly declares the expulsion of USAID,
for continuing to conspire against his government. As a consequence, after
50 years of operating in Bolivia, the agency closes its office in the country.
It is these—temporarily successful, but ultimately failed—negotiations
through which the U.S. and the Bolivian government tried to fix their broken dip-
lomatic relationship that constitute the topic of this chapter. But Bolivian resist-
ance against democracy promotion, and against U.S. interference in the name
of democracy in particular, is a far from isolated phenomenon. It is part of a
broader trend that has emerged since the turn of the century and is mostly dis-
cussed as a “backlash” against democracy promotion (Carothers 2010; Gershman
and Allen 2006). Still, while since the middle of the last decade “dozens of gov-
ernments in Asia, Africa, Latin America, the Middle East, and the former Soviet
Union have taken steps to limit the space for external support for democracy
and human rights within their borders” (Carothers and Brechenmacher 2014),
the case of U.S.-Bolivian relations is exceptional in an important regard: Here,
a “donor” and a “recipient” government have engaged in an extensive process of
negotiation, which even led to the successful signing of an agreement that, how-
ever, ultimately failed to establish a basis for mutually acceptable development
aid relations. Analyzing these negotiations, therefore, promises important insights
into the fundamental issues and the competing claims that are at stake in the con-
temporary controversy over democracy promotion and the backlash against it.
In a more general sense, such an analysis also contributes to a broader research
agenda on the negotiation of development aid relationships as a sub case of inter-
national negotiations under conditions of pronounced power asymmetries (Spec-
tor and Wagner 2010; Whitfield 2009; Zartman and Rubin 2000). Theoretically,
the study emphasizes the normative dimension of negotiations, focusing on com-
peting justice claims, and thereby adds to the small, but increasing scholarship
that investigates the role of justice in international negotiations.1
The present chapter pursues two interrelated aims: (1) to empirically recon-
struct the process of bilateral negotiations at hand and (2) to offer an explanatory

1This literature will be introduced in the following section.


9  Negotiating Interference 231

account that helps to make sense of the observed dynamics and results. With a
view to the former, I trace the interaction between the Bolivian and the U.S. gov-
ernment, focusing on the bilateral dialogue that started with the incoming Obama
administration in early 2009 and culminated in late 2011 in the signing of the
Framework Agreement. This empirical analysis draws on newspaper reports, pri-
mary documents, cables sent by the U.S. embassy in La Paz that have become
publicly available through Wikileaks2 as well as on a series of interviews and off-
the-record conversations conducted in both Bolivia and the U.S.3 Methodologi-
cally, I combine a reconstruction of the sequence of events with a content analysis
of statements made by both parties with a view to assessing the main claims artic-
ulated in the course of the negotiations.
The claim analysis, then, serves as the basis for the second step: By identi-
fying and contrasting the overall normative templates in which the two parties’
main claims are embedded, I develop a partial explanation that accounts for the
complicated nature, the temporary success and the ultimate failure of the negotia-
tions. Without claiming that this account grasps each and every feature and fac-
tor of the conflict at hand, I argue that the negotiations between Bolivia and the
U.S. can basically be understood as a conflict over the issue of interference, pit-
ting an emphasis on state sovereignty and mutual respect based on an egalitarian
understanding of inter-state relations against an emphasis on common obligations
and universal individual rights informed by a non-egalitarian, if implicit notion
of liberal hegemony. Given that these two normative positions reflect fundamen-
tally irreconcilable principles of justice, the search for an agreement led to what
William Zartman and colleagues have called “compound justice”, the “joining
together” of different principles of justice in order to bridge the conflict (Zart-
mann et al. 1996, p. 87): In the Framework Agreement, the U.S. accepted the
Bolivian demand for equality at the level of general declarations, while Bolivia
conceded to a series of formulations that, de facto, allowed for a continuity of
systematically asymmetric U.S. policies in specific issue areas (such as develop-
ment aid and counternarcotics). Yet, this agreement never resembled anything like
a common “formula” of justice, “a jointly determined sense of justice to govern
the exchange” (Zartman 2008, p. 6). In particular, the agreement failed to shape
the domestic foreign policy discourses in both countries, which continued to

2These diplomatic cables will be cited in brackets, giving the official code (XXLAPAZXX)
by which they can be identified and found at http://www.wikileaks.ch.
3These interviews have been conducted during research trips to Bolivia (mainly La Paz) in

April/May 2009 and March 2013 as well as to the U.S. (Washington, DC) in May 2010.
232 J. Wolff

operate according to the respective normative templates. In a sense, then, the fail-
ure of the Framework Agreement can be understood as the result of two unco-
ordinated “two-level discourses” (Müller 2004, p. 422) taking place in different
worlds of justice, which systematically produce clashes between irreconcilable
ideas of what a just bilateral relationship between the two countries could and
should look like.
In what follows, I will, first, outline the theoretical focus on justice in interna-
tional negotiations and introduce the relevant literature. Then, I will present the
sequence of events in U.S.-Bolivian relations, thereby also briefly describing the
background against which the negotiations have taken place. Third, I will zoom
in on the claims made by the two parties and identify the main issues at stake as
well as the overall normative templates that underlie the positions of the govern-
ments of Bolivia and the U.S., respectively. The concluding section summarizes
the partial explanation that emerges from the analysis and briefly touches upon
policy disagreements and “national interests” as a competing explanatory factor.

9.2 Justice in International Negotiations: The


Theoretical Framework

With the backlash against democracy promotion and the reactions to it on the
part of those promoting democracy, Thomas Carothers observed, “the question
of norms” has taken center stage: “When and in what ways is it legitimate for
governments to regulate, and if they wish to prohibit externally sponsored democ-
racy aid activities on their territory? Or looked at from the other side, what right
do democracy aid providers have to carry out their work in other countries?”
(Carothers 2010, p. 67) In the language of international political theory, under-
lying this normative controversy is a fundamental “conflict between competing
demands of justice” (McMahan 1996, p. 2) or, in short, a “justice conflict” (Poppe
and Wolff 2013): on the one hand, democracy promotion is justified by the aim
to correct intolerable injustice and promote the protection of individual human
rights; on the other, any external intervention, even if non-violent, clashes with
the right to self-determination of the very people on whose behalf the interven-
tion is legitimized. Following David Welch (1993) and Harald Müller (2013),
these (competing) claims can be conceptualized as justice claims in so far as they
invoke perceived entitlements and aim at correcting or preventing a perceived
discrepancy between entitlements and benefits. Democracy promoters see them-
selves as entitled to assist individuals in other countries with a view to promoting
their human rights; target governments see the collective rights of their countries
9  Negotiating Interference 233

violated and regard themselves as entitled to control, restrict or reject outsiders’


activities on their territory (Carothers 2010, p. 67). As will be seen in the empiri-
cal analysis, the basic question of interference is indeed the core issue on which
the conflict and the negotiations between the U.S. and Bolivia have centered.
When it comes to analyzing the role of competing justice claims in interna-
tional negotiations, there is a small, but rich scholarship on which one can draw.
While a series of both qualitative and quantitative studies as well as experiments
have generally demonstrated that justice concerns matter for both the process
and the outcomes of international negotiations (see Müller and Druckman 2014,
p. 402; Albin 2001; Albin and Druckman 2010; Müller 2013; Zartman 2008;
Zartman et al. 1996), empirical research has specifically shown that during “the
process of negotiating the exchange or division of the items contested between
them, negotiators come to an agreement on the notion of justice which will gov-
ern this disposition; if they do not, negotiations will not be able to proceed to
a conclusion” (Zartman et al. 1996, p. 218). This need to agree on a common
notion, or “formula”, of justice implies that individual notions of justice “must
be coordinated and accepted as the first stage of negotiation” and, therefore, “act
as a substantive veto on agreement” (Zartman 2008, p. 83). As mentioned above,
when agreement on a single principle of justice is not feasible, negotiators may
also seek “compound justice”, that is, “a pairing of principles or an exchange of
concessions” that combines competing justice claims in a way that is seen as bal-
anced by both parties (Zartman et al. 1996, p. 87). In the same way, Cecilia Albin
has found that the parties to the negotiations she studied, “when upholding con-
flicting principles, usually addressed these so as to arrive at an agreement which
all could accept as balanced and appropriate” (Albin 2001, pp. 218 f.; Albin and
Druckman 2010, p. 110).
The relevance of justice concerns is particularly striking in the case of nego-
tiations under conditions of power asymmetry (Zartman and Rubin 2000). While
asymmetries in material (sources of) power are certainly crucial in shaping such
negotiations, the common observation that “weak negotiate with strong and gain
favorable (even asymmetrically favorable) outcomes” calls for an explanatory
dimension that goes beyond the narrow, materialist focus on power and interest
(Zartman 2008, p. 83). The need to agree on some kind of a common notion of
justice helps explain why the “very act of negotiating works to level the play-
ing field”: “Once the game becomes the one known as negotiation, the rules
change and everyone becomes empowered by this transformed reality” (Zartman
and Rubin 2000, pp. 289 f.). Justice concerns are, of course, not the only
explanatory factor that can strengthen the negotiating power of parties that are
relatively weak in terms of material (power) resources (see Zartman and Rubin
234 J. Wolff

2000, pp. 278 ff.; Spector and Wagner 2010, pp. 330 f.; Whitfield 2009). All this
is not to say that justice concerns entirely determine negotiations. First, they do
not simply define the positions and the behavior of the parties but rather shape
negotiations by informing the thinking, including the strategic reasoning, of the
actors and by enabling and constraining the range of demands and proposals
that can be justified (or easily delegitimized) (Albin 2001, pp. 227 f.). Second,
non-justice related factors, including the usual ones (power, perceived “mate-
rial” interests), are clearly relevant as well—if plausibly in ways that are very
much entangled with normative concerns (Albin 2001, pp. 224 ff.; Müller 2013,
pp. 49 ff.; Welch 1993, pp. 40 ff.). It is precisely the task of negotiators to find a
common formula of justice that addresses not only the moral considerations of
the parties but also their more mundane concerns that we usually call interests
(Albin 2001, p. 225). In the following analysis, I therefore look not only at jus-
tice-related demands but at three types of claims: (1) political demands and pro-
posals (policy-oriented claims), (2) justifications of one’s own behavior/position
and criticism of the opposite party (normative claims) as well as (3) statements
on (contested) empirical “facts” (factual claims). Justice claims, as defined above,
constitute a specific type of normative claims. By invoking perceived entitle-
ments, they serve as a particularly strong, moral argument either to justify one’s
own behavior/position or to delegitimize the other’s behavior/position.
Furthermore, in analyzing statements of governments or individual politicians,
we cannot assume that any justice claim uttered necessarily reflects a genuine
moral concern (Welch 1993, pp. 44 f.). However, even the strategic use of moral
language is significant: Firstly, it creates a commitment on the part of the speaker
to take the pursuit of justice seriously; secondly, by making a justice claim, the
speaker at least assumes that the invocation of an entitlement strengthens one’s
own argument, whether the aim is the opponent, an international or a domestic
audience (Welch 1993, pp. 44 f.).

9.3 U.S.-Bolivian Negotiations: The Sequence


of Events

Since Evo Morales’s victory in the 2005 presidential elections, bilateral rela-
tions between the U.S. and Bolivia had been tense. The election of the indigenous
leader of the Movement towards Socialism (Movimiento al Socialismo—MAS)
and head of the federations of coca growers was not precisely greeted with enthu-
siasm in Washington. In office, Morales and his government did indeed imple-
ment policy changes that contradicted U.S. interests and values: the convocation
9  Negotiating Interference 235

of a Constituent Assembly to “re-found” Bolivia aimed at significantly transform-


ing the country’s liberal-democratic regime; the “nationalization” of the country’s
gas resources manifested the government’s intent to turn away from neoliberal
economic policies; the legalization of coca and an emphasis on cooperative coca
crop reduction replaced the U.S.-backed, repressive counternarcotics strategy;
and, in terms of foreign policy, the Morales government strengthened relations
with countries such as Cuba and Venezuela as well as, outside of the region, with
China or Iran.4 Still, during Morales’s first two years in office, bilateral rela-
tions between the U.S. and Bolivia remained remarkably calm, and it took until
2008 for the expected “diplomatic breakdown” to finally occur (Gray 2009,
pp. 171 ff.). In September 2008, amid a severe domestic political crisis provoked
by conservative autonomy movements in the south eastern lowlands that openly
challenged the authority of the central state, Morales declared U.S. Ambassador
Philip Goldberg persona non grata, accusing him of supporting the opposition
in its attempt to destabilize the country. The Bush Administration responded
by expelling Bolivia’s ambassador to Washington, “decertifying” Bolivia with
regards to her counternarcotics efforts and suspending trade preferences, which
the country had received in the framework of the Andean Trade Promotion
and Drug Eradication Act (ATPDEA). Bolivia, in turn, expelled the U.S. Drug
Enforcement Administration (DEA) from the country. In December 2008, Bolivia
lost access to funding from the U.S. Millennium Challenge Account (MCA)
(Wolff 2012, p. 423).
The change in the U.S. presidency from George W. Bush to Barack Obama was
accompanied by signs of a possible turn for the better in U.S.-Bolivian relations,
which had reached a historic low point. First, Morales responded almost enthusi-
astically to the election of Obama, “someone who comes from the most discrimi-
nated sectors”, “from the enslaved sectors” (08LAPAZ2391). In January 2009,
in a congratulatory note to Hillary Clinton on her appointment as new Secretary
of State, Bolivian Foreign Minister David Choquehuanca expressed his hope for
“improved and extended relations […] based on mutual respect” (09LAPAZ163)
and also publicly emphasized that “his government would like to renew ties with
the U.S. and accept an American ambassador back into the country, now that Pres-
ident Obama has taken office” (LATimes.com, January 30, 2009). On the part of
the U.S., Assistant Secretary of State Thomas Shannon in early March had said
his country wanted a “comprehensive and high-quality diplomatic dialogue” in

4For overviews, see Crabtree and Whitehead (2008); Farthing and Kohl (2014); Zegada
et al. (2011); Wolff (2012, pp. 419 ff.).
236 J. Wolff

order to re-establish full relations of cooperation with Bolivia (LaPrensa.com.bo,


March 20, 2009). Such a bilateral dialogue was indeed launched in early 2009,
and May 2009 saw the first meeting in La Paz (U.S. Department of State 2009a,
LaPrensa.com.bo, May 20, 2009) During this high-level meeting, the two govern-
ments “agreed upon an agenda for a dialogue on antidrug policy, the ATPDEA,
commercial agreements and the role of U.S. aid in the country” (LaPrensa.com.
bo, September 20, 2009).
Yet, already before the second bilateral meeting in October 2009, the attempt
at reconciliation was challenged by new setbacks. In June, Obama frustrated
Bolivian expectations by extending the suspension of trade preferences, which
provoked critical remarks by Morales (LaPrensa.com.bo, July 8, 2009). In a
meeting with Secretary Clinton on July 2, 2009, Foreign Minister Choquehuanca
“conveyed the Bolivian government’s deep disappointment over the U.S. decision
not to reinstate Bolivia’s trade preferences” (U.S. Department of State 2009b). A
week later, the Bolivian government instructed USAID, in a letter delivered to the
U.S. embassy, to suspend all democracy programs as of 15 July (09LAPAZ1027).
The U.S. government responded first by attempting to reverse this decision by
diplomatic means, but on September 19, 2009 revealed the Bolivian demand to
the public (LaPrensa.com.bo, September 19, 2009; La-Razon.com, September
19, 2009). A few days earlier, on September 15, Obama had again “decertified”
Bolivia, confirming Bush’s decision to place the country among those that “failed
demonstrably […] to adhere to their obligations under international counter-
narcotics agreements” (Bolivia Information Forum 2009). In the public exchange
of arguments concerning the closure of USAID’s democracy program, the Boliv-
ian authorities criticized U.S. interference in the country and called on the U.S.
to “reorient” the funds spent on these “political” activities towards social and
economic projects (see 09LAPAZ1333, LaPrensa.com.bo, September 19, 2009;
September 7, 2009; September 22, 2009). The U.S. embassy responded that all
USAID activities “are implemented in consultation with the Bolivian govern-
ment and are embedded in the objectives of the National Development Plan of
the Bolivian government”, but affirmed that the U.S. would still comply with
the Bolivian determination (Nacion.com, September 20, 2009). Until the end of
2009, USAID did indeed phase out its projects in the area of democracy assis-
tance—only some municipal strengthening activities continued with acceptance
by the Bolivian government (Wolff 2012, p. 426). The USAID activities that
were terminated included: a program on Strengthening Democratic Institutions
(FIDEM) which had been focusing on the regional (departmental) governments; a
justice program that supported Integrated Justice Centers (IJCs); activities related
9  Negotiating Interference 237

to election observation; civil society aid; and the support for political parties
(09LAPAZ1027).
Amongst others, Freedom House “strongly” criticized the Obama Administra-
tion’s decision “to accede to the demands of the Bolivian government to cut off
all U.S. support for democracy and human rights in Bolivia” and recommended
administering at least part of it “outside the bilateral aid framework if necessary”
(Freedom House 2010, p. 5). Yet, the U.S. government—just as its Bolivian coun-
terpart—decided to continue striving for a bilateral agreement to re-establish full
diplomatic relations and, in late October 2009, a second meeting of the bilateral
dialogue took place in Washington (U.S. Department of State 2009a). It would,
however, take another two years of difficult negotiations until, in November
2011, the two governments signed the new “Framework Agreement for Mutu-
ally Respectful and Collaborative Bilateral Relations” (Bolivia and United States
2011). The accord, according to a joint statement issued at this occasion, “estab-
lishes a framework by which the two governments will pursue relations on the
basis of mutual respect and shared responsibility.” The statement also promised a
possible “early return of ambassadors to both Washington and La Paz” and envi-
sioned “a more productive, collaborative relationship for the benefit of both our
peoples” (U.S. Department of State 2011a). In December 2011, the Bolivian gov-
ernment announced that negotiations on a commercial agreement with the U.S.
would start in February or March 2012 (La-Razon.com, December 20, 2011). On
February 28, 2012, the “High-Level Bolivia-U.S. Joint Commission”, that was to
be established by the Framework Agreement, met for its inaugural session (U.S.
Embassy La Paz 2012).
In general terms, the signing of the agreement was seen as a “political victory”
for the Morales government both in the U.S. (Achtenberg 2011; Walser 2011) and
in Bolivia (LosTiempos.com, November 8, 2011; PaginaSiete.bo, November 10,
2011). In fact, the agreement outlines a way of doing bilateral relations and devel-
opment cooperation between the two countries that would be radically different
from previous decades in which U.S.-Bolivian relations were dramatically asym-
metric and characterized by direct political influence by the U.S. on Bolivian
domestic politics (Gamarra 1999; Lehman 1999). Be that as it may, on the basis
of the bilateral agreement, the U.S. State Department, in April 2012, announced
a plan to develop the remaining municipal-strengthening project in Bolivia into
“a larger Democracy and Governance project in FY 2014”(U.S. Department of
State 2012). Yet, in the end, the U.S. assistance program was not expanded but, on
the contrary, on May 1, 2013, the Bolivian government entirely expelled USAID
from the country. The reason, according to President Morales, was continued con-
spiracy against the government and, in particular, attempts to manipulate leaders
238 J. Wolff

of social movements. Morales also referred to Secretary of State John Kerry’s


remark (from April 2013) about the Western Hemisphere as the U.S. “backyard”,
which for Morales demonstrated that the U.S. “still has a mentality of domina-
tion, of subjugation” (LosTiempos.com, March 6, 2013). In the weeks before the
expulsion the U.S. government had also, once again, criticized Bolivian coun-
ternarcotics policies in its annual counternarcotics strategy (LosTiempos.com,
March 6, 2013) and the U.S. embassy, most probably, also delivered its annual
demarche to the Bolivian government in which Washington uses to set counter-
narcotics benchmarks for the coming year. After 2013, U.S.-Bolivian relations
have continued to fluctuate between signals of rapprochement suggesting a pos-
sible reestablishment of full diplomatic relations and irritations triggered either
by the Obama government’s annual “decertification” of Bolivia or by the Morales
government’s periodic claims of continued U.S. attempts to destabilize it.

9.4 U.S.-Bolivian Negotiations: Contested Issues,


Competing Claims

From the perspective of the Bolivian government, the dispute about U.S. foreign
assistance, and USAID’s democracy program in particular, was clearly about
the scope and limits of legitimate external interference in the internal affairs of
a sovereign and democratic state: the U.S., through its support for political par-
ties, NGOs and subnational governments, was regarded as illegitimately meddling
in Bolivia’s internal affairs. Since Morales took office in late 2005, the president
himself as well as other government officials and members of his MAS party had
repeatedly accused the U.S. government of supporting the opposition, instigat-
ing conflict and trying to destabilize the Morales government.5 As regards U.S.
democracy assistance, this criticism on the one hand concerned USAID’s specific
support—through FIDEM as well as its Office of Transition Initiatives (OTI)—
for the regional governments at the departmental level, which at that time were
mainly in opposition to the Morales government (Wolff 2012, pp. 424 f.). In addi-
tion, USAID and NED support for civil society organizations was also charged
with privileging the opposition (Burron 2012, pp. 125 ff.). At a more general, dip-
lomatic level, the U.S. embassy was also seen as supporting, or even coordinating,

5For a summary of these charges, see the official report on U.S. “interference” in Bolivia
published by the Bolivian Vice Presidency in August 2009 (Vicepresidencia de Bolivia
2009).
9  Negotiating Interference 239

opposition forces such as the autonomy movements (Burron 2012, pp. 124 f.).


This concern became particular critical in 2008, when the Bolivian government
saw itself seriously threatened by these autonomy movements.
In the context of the closure of USAID’s democracy program in the second
half of 2009, Bolivian authorities specifically accused USAID of supporting the
election campaign of Morales’s principle opponent, criticized that large parts of
USAID’s funds were channeled through NGOs and consultancies without any
knowledge of the Bolivian government, and asked the U.S. to “reorient” the
money spent on these “political” activities towards social and economic pro-
jects (LaPrensa.com.bo, September 19, 2009, September 7, 2009, September 22,
2009). The primary allegation of “interference” (injerencia) in domestic politics
refers, in particular, to deliberate U.S. support for the domestic opposition (see
09LAPAZ1046, 09LAPAZ1027; Vicepresidencia de Bolivia 2009). Here, the
Bolivian government, on behalf of the entire country, claims an entitlement to
non-interference, which is also implied by references to (national) sovereignty.6
A second type of criticism concerns the bypassing of governmental control and
the lack of transparency of USAID activities and financial flows in Bolivia (see
09LAPAZ1027). In this case, the government invoked, for itself, an entitle-
ment to oversee external activities in its area of authority. Seeing itself as the
sole legitimate partner of, and primary point of contact for, external actors, the
Bolivian government rejected the U.S. policy of recognizing, and working with,
a multiplicity of sociopolitical actors in the country (central and subnational
governments, government and opposition, state and civil-society actors) (see
08LAPAZ2241, 09LAPAZ89; La-Razon.com, August 22, 2011). At least implic-
itly, the latter claim also refers to principles of ownership and/or accountabil-
ity as established standards of international development cooperation.7 The two
allegations are also related: if there are “obscure” USAID funds that the Bolivian
government is not aware of, this immediately leads to the suspicion that these

6Claims for (national) sovereignty were, for instance, made by Minister of Autonomy
Carlos Romero and Vicepresident García Linera (LaPrensa.com.bo, September 22, 2009,
November 22, 2009). In its draft “Framework Agreement”, the Bolivian government
included “Unrestricted respect for the sovereignty […] of the States” and “Full respect for
the free determination of the peoples” as key principles to govern the bilateral relationship
(09LAPAZ66).
7Bolivia’s draft “Framework Agreement”, for instance, contains several guidelines for bilat-

eral cooperation that emphasize principles of national ownership, government control and
alignment with national development strategies (09LAPAZ66).
240 J. Wolff

are used for political purposes, i.e. against the Morales government (LaPrensa.
com.bo, September 22, 2009). The basic claim that is behind both charges is
the right of any country and its legitimate government to be treated with “dig-
nity” (LaPrensa.com.bo, March 20, 2009, July 8; 06LAPAZ969) and “(mutual)
respect” (ElPais.com, May 22, 2009; LaPrensa.com.bo, September 19, 2009).
In this sense, the main criticism on the Bolivian government leveled against
the U.S. referred to a basic entitlement to be treated fairly. Based on the prin-
ciple of equality at the level of state-to-state relations, this perceived entitle-
ment included both the overall symbolic demand to be treated as an equal at the
level of diplomatic relations as well as more specific rights to sovereignty, self-
determination and non-intervention that concerned U.S. foreign assistance and
democracy promotion (09LAPAZ66, 10LAPAZ7).8 The core demands that fol-
lowed from these allegations included the call for U.S. foreign assistance to be
“state-to-state”, or rather “government-to-government”, only as well as to be fully
transparent and in line with Bolivia’s national development strategies.9 The back-
ground to these claims is a general history of (post-)colonial interventionism and
dependence, including manifold experiences with U.S. attempts at undermining
leftist governments in Latin America, as well as a specific history of U.S. inter-
ference in Bolivia. The latter, in the case of President Morales, has also a signifi-
cant personal dimension, given his first-hand experiences with the U.S.-led “war
on drugs”. As a MAS representative reportedly explained to the U.S. embassy in
2009, Morales was “especially traumatized by his perceptions of perceived unjust
and undue USG [U.S. government] involvement with prior Bolivian administra-
tions, which are compounded by his personal negative experiences with the DEA
as a coca union leader”. The MAS representative added that this legacy of U.S.
involvement should be recognized by the U.S. government, even if without admit-
ting “to specific wrong doings”, in order to “move forward” (09LAPAZ194).10
This legacy also includes a 2002 incident in which then U.S. Ambassador Manuel
Rocha openly threatened the possible withdrawal of U.S. assistance if the Boliv-
ian people dared to elect Morales (Wolff 2012, pp. 422 ff.).
Besides these justice claims that relate to what is perceived as illegitimate
or inappropriate U.S. behavior in and towards Bolivia, a second type of claims

8See also La-Razon.com (December 16, 2010); LaPrensa.com.bo (March 20, 2009; July 8,
2009).
9See, again, Bolivia’s 2009 proposal for a bilateral framework agreement (09LAPAZ66).

See also La-Razon.com (December 16, 2010).


10Similar claims were also directly articulated by Morales himself (09LAPAZ89).
9  Negotiating Interference 241

referred to Bolivian policy demands. These mainly concerned two related issues:
(de-)certification and trade preferences.11 From the Bolivian perspective, “eco-
nomic and social asymmetries” between the countries require a “differentiated
treatment”, e.g. in terms of trade preferences (09LAPAZ66).12 On several occa-
sions, Bolivian government officials demanded publicly or in private the rein-
statement of trade preferences (see Erbol.com.bo, September 21, 2010; U.S.
Department of State 2009; 09LAPAZ1333, 09LAPAZ828, 09LAPAZ1595).
Decertification, and thus the overall justification for the suspension of Bolivia
from ATPDEA, was basically seen as a “pretext” to punish the country
(08LAPAZ2494). In this regard, tangible economic interests were at stake, most
notably important parts of the local textile industry (08LAPAZ2494). Yet, again,
the Bolivian government also embedded these specific, policy-related claims in a
larger normative argument against what was seen as a U.S. attitude of paternal-
ism. In private communication at the U.S. Embassy (09LAPAZ640), the coun-
ternarcotics relationship was explicitly criticized as “overly paternalistic with
Bolivia in a subordinate role”.13 The Obama decision to continue with the sus-
pension of trade preferences was described, by Foreign Minister Choquehuanca,
as “two slaps in the face” (LaPrensa.com.bo, November 22, 2009). And Morales,
in rejecting the renewed decertification under Obama, emphasized “that the USA
does not have the authority to ‘label’ Bolivia” (Bolivia Information Forum 2009).
In general, the U.S. insistence on coca being an illegal drug directly clashed
with the Bolivian government’s discourse that had elevated the coca leaf to a
core element of the country’s indigenous culture (see Farthing and Kohl 2014,
pp. 128 ff.). In this way, the policy-related demands were also directly related to
the overall call for dignity and mutual respect. Bolivia’s general aim with regard
to the new bilateral framework agreement, as described by Morales, was thus pre-
cisely to enable “good relations with the United States” that would not include
“any kind of imposition, no tutelage, no humiliation, and also no conditionalities”
(La-Razon.com, June 28, 2011). At the same time, however, the Bolivian gov-
ernment also deliberately used public charges against U.S. meddling for reasons

11In addition, Bolivia for some time also pursued the aim to regain eligibility for the Mil-
lennium Challenge Account (see 09LAPAZ658). A further issue concerned the Bolivian
demand for the extradition of former president Sánchez de Lozada (see 10LAPAZ7).
12Therefore, Morales even threatened to lodge a complaint against the ATPDEA suspension

at the WTO (09LAPAZ89).


13Responding to the first U.S. decision to suspend trade preferences under the Bush admin-

istration, Morales reportedly said: “We cannot kneel for 63 million dollars” (09LAPAZ89).
242 J. Wolff

of domestic politics: as a scapegoat, to rally popular support and to delegitimize


its opponent (LaPrensa.com.bo, September 7, 2009). The symbolic importance
of the very date (May 1) on which Morales announced the expulsion of USAID
speaks to this domestic politics orientation of the Bolivian government’s behavior
towards the U.S.
The main U.S. response to the Bolivian allegation of illegitimate interference
was factual rejection. According to the U.S. government, USAID’s partners and
beneficiaries were always selected in non-partisan ways and, therefore, included
representatives and organizations from both the governing MAS party and from
the opposition.14 In general, since the election of Morales, USAID had tried hard
to present its democracy assistance to Bolivia as “balanced” and even “apoliti-
cal” (Wolff 2012, p. 425). With a view to the critique of bypassing, the U.S. also
declared the charge to be factually wrong. For instance, as already quoted above,
the U.S. embassy emphasized that all USAID activities were implemented “in
consultation with the Bolivian government” and aligned to Bolivia’s National
Development Plan (Nacion.com, September 20, 2009). In internal discussions
with the Bolivian authorities, U.S. embassy representatives also emphasized that
USAID had held “lengthy discussions on program operations” with the Boliv-
ian government (09LAPAZ1027). A series of USAID activities affected were
even “specifically requested by, or coordinated with, the Government of Bolivia”
(09LAPAZ1062).
Still, the U.S. did also justify its democracy assistance in normative terms,
e.g. by underscoring “the importance of the democracy programs to the Boliv-
ian people” (09LAPAZ1027).15 In an internal meeting, a State Department offi-
cial responded to an “attack of USAID-funded NGOs” by Bolivian Presidency
Minister Juan Ramón Quintana by emphasizing “that a robust civil society,

14More specifically, the U.S. emphasized that “people hired for USAID democ-
racy programs were selected based solely on expertise and not on political affiliation”
(09LAPAZ1027) and that USAID’s work at the regional level included all departamentos
and not only those governed by the opposition, while support for political parties, since
2007, had consisted in multi-party activities only and included also MAS representatives
(see Wolff 2012, pp. 425 f.).
15It should be noted that the U.S. embassy, in internal negotiations, also used more prag-

matic arguments (or threats) in order to convince the Bolivian government that it would
better not insist on the closure of USAID’s democracy program: such a move, the Bolivian
authorities were told, would potentially have a “negative impact” on “the ongoing bilateral
talks” between the two governments and could lead U.S. Congress “to transfer a significant
amount of USAID’s Bolivia funding to other countries” (09LAPAZ1027).
9  Negotiating Interference 243

including a diversity of views, is a key element of a democracy” and that the


U.S. government “promotes the strengthening of civil society across the world”
(09LAPAZ1046). This twofold argument refers to two claims often heard in the
debate about the (il-)legitimacy of external civil society support: that (a) you can-
not have democracy without a vibrant civil society (which legitimizes support-
ing the latter in the name of the former) and that (b) civil society support is an
established international practice (which renders it something like a customary
practice) (Carothers and Brechenmacher 2014, pp. 39 f.). While generally being
willing to acknowledge that USAID assistance “is subject to the sovereignty of
the Government of Bolivia” (09LAPAZ1062), the U.S. would neither comply
entirely with Bolivian demands for transparency nor implement USAID activi-
ties through governmental channels only. In 2008, the Bolivian government had
called for a review process concerning USAID’s entire portfolio in the coun-
try—and the U.S. embassy chose to comply with Bolivian demands only hesi-
tantly and partially (08LAPAZ1166). This partial refusal is clearly related to
the U.S. assessment that an “increasingly authoritarian” president and govern-
ment in Bolivia constituted the most serious threat to democracy in the country
(09LAPAZ722), which, in terms of U.S. democracy assistance, implied a need to
(also) support “counterweights” to the Morales government (Wolff 2012, p. 425).
Correspondingly, the U.S. government rejected the Bolivian demand to limit
development aid to “government-to-government” cooperation (see 10LAPAZ21).
When comparing the draft Framework Agreement proposed by the Bolivian gov-
ernment in 2009 and the final version adopted by both parties in 2011, it is clear
that the U.S. was not willing to allow for comprehensive government control over
U.S. assistance in Bolivia.16 The final agreement also testifies to U.S. insistence
on including at least some language concerning “fundamental liberties”, “repre-
sentative democracy” and its “promotion” (Bolivia and United States 2011, p. 2).
The first draft version as suggested by the Bolivian side did mention “absolute
respect for fundamental rights and human rights” but neither liberties nor democ-
racy or its promotion (09LAPAZ66). All this shows that the U.S., at least implic-
itly, claimed a certain right to interfere, based on a notion of universal norms and

16Development cooperation, according to the agreement, is not limited to “state-to-state”


cooperation as initially demanded by the Bolivian government but includes “public, private,
public-private and nongovernmental organizations”; intergovernmental consultations will
only define the “type of executing organization or organizations as well as the criteria and
the process of selecting them” (Bolivia and United States 2011, p. 4). The Bolivian govern-
ment announced that it would respect U.S. assistance in the country, whether implemented
by USAID or channeled through NGOs (Opinion.com.bo, November 14, 2011).
244 J. Wolff

established international practices. But it is also notable that, in difference to


U.S. general foreign policy rhetoric, the U.S. government did not explicitly jus-
tify its policies by referring to democracy, human rights, freedom and/or liberty
as being universal (rights). An additional argument against full Bolivian govern-
ment control over U.S. aid referred to the responsibility of “donors” “to not just
give resources, but to be able to participate to make sure their investment leads to
results” (09LAPAZ1333).
On its part, the U.S. government criticized that the Bolivian government did
not use proper diplomatic channels for dealing with concerns regarding U.S.
activities in the country but frequently turned to uttering “baseless public accu-
sations” against the U.S. (09LAPAZ631; see also 09LAPAZ1468, 09LAPAZ470,
09LAPAZ474). But this is, in effect, the only policy demand explicitly articulated
by the U.S. government. All other policy- and interest-related claims are framed
as “mutual interests” or “mutual goals” (see 09LAPAZ631; U.S. Department of
State 2011b).17 Still, the demands are nevertheless made explicit, the most impor-
tant one being related to counternarcotics: if the Bolivian government wanted
to see trade preferences reinstated, it “would need to quickly work to show pro-
gress on counternarcotics cooperation” (09LAPAZ828; see also 09LAPAZ640,
09LAPAZ722, 10LAPAZ7). Concerns regarding the state of democracy in
Bolivia are also articulated (see 09LAPAZ722), but do not play a larger role in
the negotiations between the two governments.18 In the area of trade, the U.S.
government—implicitly, but still very clearly—rejected the claim for differenti-
ated treatment as a Bolivian entitlement and, as seen above, continued to con-
dition the reinstatement of trade preferences on cooperation in counternarcotics
affairs.
In the bilateral framework agreement, the U.S. government finally accepted
the language of “mutual respect” (Bolivia and United States 2011). In the pub-
lic joint statement by the two governments on the occasion of the signing of the

17Itshould be mentioned that the changes in Bolivia’s economic policies did not directly
challenge U.S. economic interests as the “nationalizations” mainly affected Spanish and
Brazilian gas companies.
18While the above-mentioned cable from the U.S. embassy argued that the “steady erosion

of democratic practices and institutions under the Morales regime shows no sign of abat-
ing and is likely to prove a serious irritant to the bilateral relationship” (09LAPAZ722),
neither the leaked cables nor media reports suggest that U.S. concerns regarding the state of
Bolivian democracy significantly affected bilateral relations in general or the negotiations
between the two governments in particular.
9  Negotiating Interference 245

agreement, democracy or its promotion by the U.S. is not mentioned at all (U.S.
Department of State 2011a). The 11-page agreement itself clearly emphasizes
“respect for sovereign states” over democracy promotion, but also reflects an
attempt to balance the competing justice claims. The first three principles high-
light “respect for the equal sovereignty and the territorial integrity of the states”,
“the obligation to abstain from intervening in the internal affairs of another state”
as well as “the right of each state to choose, without external interferences, its
own political, economic and social system”. Yet, the fourth principle establishes
“the obligation to promote and consolidate a representative democracy”, even if
it immediately adds “with all due respect to the principle of non-intervention”.19
This official U.S. recognition of Bolivia’s core claims notwithstanding, the
cables sent by the embassy in La Paz suggest that deep-seated beliefs related to
U.S. liberal hegemony combined with domestic politics in impeding any serious
revisiting of U.S. practices that, from the Bolivian perspective, clearly violated
the principle of respect. With a view to domestic politics, the U.S. government
frequently tried to dissociate itself from certain difficult issues by pointing to the
role and autonomy of Congress. For instance, when delivering a copy of the U.S.
Human Rights Report for Bolivia, the Chargé d’Affaires explained “that the report
is congressionally mandated” (09LAPAZ303); and when preparing the ground
for yet another negative decision regarding US trade preferences for Bolivia,
a State Department official explained to high-level representatives from the
Bolivian government “that many in Congress opposed the restoration of ATPA”
(09LAPAZ1333). Yet, in the end, U.S. embassy deliberations and arguments,
as documented in cables from La Paz, show that the U.S. government under the
Obama administration continued to operate, just like the U.S. Congress, according
to what research on U.S. policy toward Latin America has called the “hegemonic
presumption” (Crandall 2002, pp. 9 f.). In line with a specific belief system of lib-
eral hegemony, this presumption includes three core elements: (a) the notion of
individual entitlements related to democracy and liberal rights and liberties which
are regarded as undisputed and universal, (b) the notion of c­ ollective interests and

19This balancing continues with the fifth principle referring to the “universal respect and
observance of human rights and fundamental liberties” and the seventh one emphasizing
“the development of friendly and cooperative relations based on the respect for the princi-
ple of equality of rights and self-determination of the peoples”. The sixth principle refers
to peaceful resolution of conflict (including a reference to the “territorial integrity” and
the “political independence” of the states), the eighth one refers to “social justice” and the
ninth and last one to the environment and “sustainable development” (Bolivia and United
States 2011, pp. 2 f.).
246 J. Wolff

obligations (e.g., in terms of counternarcotics) which are seen as uncontroversial,


and (c) the notion of a special role of the benevolent hegemon U.S., which is enti-
tled, if not obliged, to care about the protection and promotion of both individual
rights in other countries and of the collective good.20 Across the diplomatic cables
and the bilateral negotiations, these notions are assumed as self-evident.
As a result, in contrast to the Bolivian emphasis on equality as the basic prin-
ciple of justice that is to guide bilateral relations, the U.S. conceptualizes its rela-
tionship with Bolivia in fundamentally asymmetric terms. This asymmetry is
never called that way, but is clearly identifiable as a necessary assumption behind
most U.S. claims and practices. It is also formally institutionalized in laws that
regulate drug control certification, trade preferences and foreign assistance. At
times, this belief system even leads the U.S. to entirely lose sight of the ration-
ale behind Bolivian behavior. For instance, one internal U.S. embassy update on
U.S.-Bolivian relations from April 2009, almost naively, contrasts the series of
“best efforts” by the U.S. to engage with, and respond to demands of, the Boliv-
ian government with continued provocations by the Morales administration, with-
out at all considering neither the history of U.S. policies in the country, nor its
past relationship with Morales before he became president, nor the continued
practice of unilateral (de-)certification (09LAPAZ631). What is problematic here
is, thus, not so much the actual policy decisions taken by the U.S. government:
also from the Bolivian point of view, the U.S.—as a sovereign state—can cer-
tainly decide whom to offer bilateral trade preferences and foreign aid. These
issues become a matter of (dis-)respect, however, because of the hegemonic
presumption that the U.S. is entitled to decide whether Bolivia fulfills its inter-
national obligations in terms of counternarcotics (thus being worthy of “certifi-
cation”) or good governance (thus deserving, e.g., support from the Millennium
Challenge Account).
It is this tension between deep-seated hegemonic thinking on the part of the
U.S. and deep-seated Bolivian aversion to being treated in a subordinate way that,
even in an apparently minor and entirely symbolic way, came to a head when State
Secretary Kerry referred to “America’s backyard”. What was, from Kerry’s view,

20In terms of justice principles, this normative template is based on a compound version of
justice that combines egalitarian principles at the level of individual (human) rights with
non-egalitarian principles at the level of collective (state) rights. The latter, if implicitly,
include status-related notions of proportionality or equity (based on superior capabili-
ties and merits of the hegemon) as well of priority justice (in line with principles such as
“noblesse oblige” and “primogeniture”) (see Zartman 2008, pp. 84 f.).
9  Negotiating Interference 247

meant as a friendly phrase signaling to his Washington audience why the region
was “critical” to U.S. interests, in the region itself it was seen as an offense. As
Morales said in response to Kerry, likewise addressing his domestic audience: “We
may be a small country, but we deserve respect” (CNN.com, May 1, 2013).

9.5 Conclusion

The negotiations between the governments of Bolivia and the U.S. have been
shaped by the clash of two fundamentally different notions of justice. Bolivian
justice concerns basically referred to entitlements as established by the normative
order of the international society of states, where equal, sovereign states interact
with each other, and were specifically shaped by the history of perceived injus-
tices related to the colonial and postcolonial practices of (neo-)imperialist and
hegemonic powers. The overall principle of justice, here, is equality. U.S. justice
concerns, in contrast, combined cosmopolitan notions of a liberal world order
based on universal individual (human) rights with a non-egalitarian, status-based
notion of liberal hegemony, in which a benevolent hegemonic power is entitled, if
not obliged, to ensure compliance with common, international obligations related
to both liberal, individual rights and collective goods. While the Framework
Agreement managed to balance these competing justice concerns at the abstract
level of diplomatic wording, the fundamentally different normative templates
inhibited the identification of a common formula of justice. The agreement, there-
fore, ultimately failed to establish a basis for mutually acceptable development
aid relations. In the end, given that foreign aid relationships are, by their very
nature, asymmetric and that the U.S. government would have never allowed the
Bolivian government full control over its foreign aid, terminating all U.S. foreign
aid programs was the only clear-cut solution to the justice conflict at hand.21
The failure to reconcile, or at least somehow balance, the competing justice
concerns generally helps explain the complicated nature and the ultimate failure
of the negotiations. In terms of explaining why the balancing act envisaged by
the Framework Agreement proved unsustainable, the analysis has pointed to the
well-known problematique of diplomatic two-level games. More specifically, in
line with the notion of “two-level discourses”, the domestic foreign policy dis-
courses in the two countries continued to operate according to fundamentally

21Infact, this is what Bolivia’s Foreign Minister Choquehuanca suggested already in late
2009 in a private conversation at the US Embassy (09LAPAZ1595).
248 J. Wolff

irreconcilable normative templates (Müller 2004, pp. 422 ff.). In the U.S. case,


“re-certifying” Bolivia and/or resuming trade preferences remained a distant pos-
sibility—not to speak of the option to discontinue the entire practice of unilat-
eral “certification” or stop thinking about Latin American countries in terms of
the U.S. “backyard”. In the Bolivian case, the “anti-imperialist” mindset contin-
ued unabated, both in terms of a deep-seated mistrust of the U.S. on the part of
the governing elite and in terms of widespread common sense that the govern-
ment can politically exploit. Very clearly, the diplomatic reassurance of “mutual
respect” did not reach far enough to change the domestic politics side of the two
countries’ foreign policy.
To be sure, neither the overall conflict nor the negotiations between Bolivia
and the U.S. have been entirely, or only, shaped by justice concerns. There is no
doubt that the Morales government explicitly aimed at preventing external sup-
port for those domestic forces that were opposing his government and, as empha-
sized, used charges against the U.S. for reasons of domestic politics. Conversely,
U.S. democracy assistance to Bolivia explicitly aimed at preventing the Morales
government from gaining overwhelming control over the country, not least with
a view to limit the harm to U.S. foreign policy interests. The theoretical focus on
justice claims and justice conflicts does not imply that this “material” dimension
of the dispute should be regarded as negligible. The argument is rather that we
cannot understand the dynamics and results of the negotiation process—including
the bargaining over competing policy claims—if we look only at disagreements
in terms of tangible political interests. As the analysis has shown, also specific
policy-related claims that reflect perceived “national interests” are themselves
embedded in a broader normative template that is based on perceived entitle-
ments. From the Bolivian perspective, the U.S. refusal to reinstate trade prefer-
ences was seen as sign of disrespect, while from the U.S. perspective Bolivia, by
denying to cooperate in U.S. counternarcotics, has failed to do her share in terms
of common obligations.

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tice. London: Routledge.
Zartman, I. W., & Rubin, J. Z. (2000). Symmetry and Asymmetry in Negotiation. In
W. Zartmann & J. Z. Rubin (Eds.), Power and negotiation (pp. 271–293). Ann Arbor:
University of Michigan Press.
Zartmann, I. W., Druckman, D., Jensen, L., Pruitt, D. G., Peyton Young, H. (1996). Negotia-
tion as a search for justice. International Negotiation, 1(1), 79–98.
Zegada, M. T., Arce, C., Canedo, G., & Quispe, A. (2011). La Democracia desde los
Márgenes. Transformaciones en el Campo Político Boliviano. La Paz: CLACSO.
Part IV
Justice in Negotiating Peace and Conflict
The Roadblock of Contested
Recognition: Identity-Based Justice 10
Claims as an Obstacle to Peace
Negotiations in Afghanistan

Arvid Bell

10.1 Introduction

When Western politicians talked about Afghanistan in 2014, they focused on the
withdrawal of NATO forces and on the related security transition. Though the
United States and its allies were planning to significantly reduce their military
footprint by the end of 2014, the Afghan Civil War was far from over at that time;
the Taliban’s “Islamic Emirate” controlled significant parts of the country, conti-
nued to find shelter in Pakistan’s tribal areas, and challenged the Afghan National
Security Forces (ANSF). At the same time, the war had taken its toll on the Tali-
ban too and it was unlikely that the insurgents would be able to conquer major
urban centers as long as the U.S. continued to fund and support the ANSF. The
conflict’s many actors (both state and non-state), along with their diverse inter-
ests, made it difficult to ascertain how a successful negotiation process can begin.

This chapter has been published as Bell, A. (2014). The Roadblock of Contested
Recognition: Identity-Based Justice Claims as an Obstacle to Peace Negotiations in
Afghanistan. International Negotiation, 19(3), 518–42. I am grateful for the permission
of Koninklijke Brill NV to reprint it here. Thanks are extended to Harald Müller and two
anonymous reviewers of International Negotiation.

A. Bell (*) 
Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany
E-Mail: bell@hsfk.de

© Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 253


C. Fehl et al. (eds.), Justice and Peace, Studien des Leibniz-
Instituts Hessische Stiftung Friedens- und Konfliktforschung,
https://doi.org/10.1007/978-3-658-25196-3_10
254 A. Bell

Resistance to negotiation and the continuation of violence dictate the course


of events in the Afghanistan conflict: today as they did in 2014, when this chap-
ter was originally written. However, several studies have thoroughly explored
the interests of the main parties to the conflict and a settlement that respects
their key demands is possible. The military situation resembles a “hurting stale-
mate,” which according to rationalist assumptions should compel the parties to
move toward negotiations. This chapter argues that the main obstacle to negotia-
tion is an underlying and unaddressed conflict of recognition between the United
States, the Afghan government, and the Taliban. While each party believes it is
driven by justice claims, they perceive their opponents to be driven by a hostile
strategy informed by incompatible interests. Relying on the Cultural Theory of
International Relations, this chapter explores the parties’ motives in the conflict,
focusing on the need to strive for esteem and honor. It suggests that the reciprocal
acknowledgement of legitimate identity-related justice claims could remove a key
obstacle to formal negotiation.

10.2 Motives, Emotions, and Cultural Theory

In “A Cultural Theory of International Relations,” Lebow (2008) creates a fra-


mework that seeks to explain the role of human motives and emotions in inter-
national conflict. While Cultural Theory is meant to serve as a comprehensive
constructivist theory of international relations, this chapter interprets it in the
context of negotiation behavior and applies it to a specific case. Since Cultural
Theory heavily relies on human motives and emotions, and discusses the relation-
ship between individuals and their “political worlds,” this endeavor does not
require any major deviations from the theory’s core assumptions (besides a pro-
posal of how to systematically relate justice claims to the motives suggested by
the Cultural Theory, which will be addressed).
Lebow starts by criticizing the “limited representation of human motives by
existing paradigms and the theories nested in them” (2008, p. 35). On one hand,
Cultural Theory can be understood as primarily challenging the realist perspective
on war and its causes; realists think in categories such as maximizing economic or
political gains or minimizing economic or political losses and invent paradigms
such as “security dilemmas” or “balance of power” to explain the behavior of
states. Security then becomes the states’ principal motive in the struggle for pro-
sperity and power in an anarchic world order; “international politics, like all poli-
tics, is a struggle for power” (Morgenthau 1955, p. 25). On the other hand, it is
not simply Lebow’s critique of realist approaches to international relations that is
10  The Roadblock of Contested Recognition 255

new, since to point out the shortcomings of rationalist assumptions of both (neo)
realists and (neo)liberalists is a well-known constructivist claim (Wendt 1992).
Weber said that “we are cultural beings with the capability and the will to take
a deliberate attitude toward the world and to lend it significance” (Weber 1949,
p. 81); and Ruggie stated that “constructivism is about human consciousness and
its role in international life” (Ruggie 1998, p. 856). According to constructivists,
culture plays a significant role when it comes to the meaning that individuals attri-
bute to their actions. Lebow develops his arguments from a constructivist perspec-
tive (see his reflections about identity and autonomy, Lebow 2008, p. 555).
What sets Cultural Theory apart from established constructivist arguments is
Lebow’s claim that fundamental drivers of human nature not only shape human
relations as well as relations between communities, but that these drivers can also
be categorized and analytically and systematically applied to the study of peace
and war. Based on the work of Plato and Aristotle, Lebow identifies spirit, appe-
tite and reason as fundamental drivers of human motivation (2008, p. 60). When
reason cannot constrain appetite or spirit, fear can serve as a fourth driver. Spirit,
appetite, reason, and fear trigger different patterns of human behavior and that of
their political entities, where “each motive has an associated ‘logic’ that prompts
specific approaches to cooperation, conflict and risk-taking” (Lebow 2008,
p. 505). Analyzing established theories of international relations, Lebow finds
that “liberalism and Marxism are rooted in appetite,” while realism is “a para-
digm based on fear” (2008, p. 35). But no existing theory “builds on the motive
of the spirit and the human need for self-esteem and describes the ways in which
strivings for honor and standing influence, if not often shape, political behavior”
(Lebow 2008, p. 35). Or, simply put: “Realism and liberalism ignore the spirit”
(Lebow 2008, p. 558). Spirit as a human motive is crucial since “it starts from
the premise that people, individually and collectively, seek self-esteem” (Lebow
2008, p. 61).1 (see Table 10.1)
“When the spirit is dominant, when actors seek self-esteem through honor,
standing or autonomy, they are often willing to risk, even sacrifice, themselves

1In “Why Nations Fight,” Lebow (2010, p. 114) demonstrates the relevance of his claims

by analyzing the reasons for war initiation that involve all interstate wars with the partici-
pation of great and aspiring rising powers from 1648 to 2008. He finds that the motive of
“standing” is responsible for 58% of the wars, followed by “security” (18%), “revenge”
(10%), “interest” (7%) and other motives (7%). This finding is at odds with realist assump-
tions. While this book focuses on states, the Cultural Theory is also applicable to other
collective entities.
256 A. Bell

Table 10.1  Motives, Emotions, Goals, and Means in Cultural Theory (Lebow 2008, p. 90)
Motive or emotion Goal Instrument
Appetite Satiation Wealth
Spirit Esteem Honor/standing
Fear Security Power

or their political units in pursuit of these goals” (Lebow 2008, p. 19). He conce-
des that the expression of self-esteem is “culturally determined because esteem
depends on conceptions of shame and justice, which vary across cultures and
epochs” (Lebow 2008, p. 128). While Lebow connects the spirit with a notion of
justice, Cultural Theory does not systematically link different motives with diffe-
rent justice claims.
What is striking is his conceptualization of ideal-type appetite-based worlds
that seem to be largely interest-driven: “Cooperation [amongst actors in such a
world,] would be routine, indeed the norm, and built around common interests.
It would endure as long as actors shared interests and end when they diverged”
(Lebow 2008, p. 75). In other words, if the motive of the appetite is predominant,
actors seek to gain satisfaction by promoting their self-interest. This self-interest
can be conceptualized in economic terms, since the primary instrument related to
the motive of appetite is wealth. Appetite-driven actors will try to identify shared
interests and build coalitions with others based on their degree of mutual agree-
ment. However, the recognition of each other as legitimate actors is not debatable.
Of course, while this does not mean that appetite-based worlds are free of con-
flict, the way to settle disputes will be guided by rational cost-benefit analysis.
A key distinction between appetite-based and reason-based approaches is the
notion that actors driven by reason may even cooperate “when it may be con-
trary to their immediate self-interest” (Lebow 2008, p. 77). Actors are willing to
engage in a discourse and willing to compromise since they share some “under-
lying values” that minimize “the nature of conflict and the cost of being on the
losing end (Lebow 2008, p. 77). When it comes to the fear-based world, Lebow
states that fear, in contrast with appetite, spirit, and reason, is an emotion and not
a motive. It arises from situational circumstances such as a breakdown of politi-
cal order. If an actor triggers this breakdown, he may lead others to believe that
their ability to build self-esteem through standing or satisfaction through wealth
is severely threatened. Thus, fear-based worlds are “highly conflictual” (Lebow
2008, p. 90) since actors focus their behavior on security maximization.
10  The Roadblock of Contested Recognition 257

My interpretation of Cultural Theory, the relationship between spirit, appetite,


reason, and fear, can be summarized as follows: Appetite motivates the search for
wealth, the spirit motivates the search for (self-)esteem through honor or standing,
and reason has the potential to “check and balance” these two other motives. Fear
is the fourth driver—an emotion, not a motive—that needs to be controlled by
reason, or tempered by other emotions. Once triggered, fear motivates the search
for security through power. “Power” is a vague concept since even realists cannot
fully explain what it means. The expression of all motives highly depends on the
cultural context in which the individual or collective actor is embedded.

10.3 Justice Conflicts and Cultural Theory

As stated before, Cultural Theory does not systematically link different motives
with different types of justice claims. However, I do not want to imply that there
is no connection between these motives and justice. Cultural Theory does, in fact,
relate different justice principles to appetite, spirit, reason, and fear. For instance,
the principle associated with appetite is equality and the principle associated with
spirit is fairness. However, these associations are spelled out in a less-formalized
way than the relationship between motives, goals, and instruments, which is sum-
marized in the category scheme of Cultural Theory (Lebow 2008, p. 90). To make
Cultural Theory more easily applicable to identity-based conflicts, I thus adopt
Welch’s approach to empirical justice research (1993) and link it with the motives
suggested by Lebow.
According to Welch, a justice claim can be understood as a claim for an “ent-
itlement.” I accept this formal definition since there is a clear criterion that can be
reconciled with the category scheme of Cultural Theory: the normative reflection
of whether a specific justice claim is legitimate is not what matters. Instead, the
perception of those who make the claim is crucial:

Justice reigns if actors have got what rightfully belongs to them; of course, what this
might be is highly controversial within and across cultures. But this does not matter:
As long as a speech act in politics has the structure of a claim for an entitlement, it
satisfies the formal structure of a justice claim, independently of how it is substan-
tiated (Müller 2013, p. 58).

Based on this definition, different justice principles, claims, and conflicts can be
distinguished. For instance, Fraser (2009) distinguished resources, representation,
and recognition into three dimensions that are not only very compelling, but also
yield explanatory power when interpreted in the context of Cultural Theory.
258 A. Bell

Looking at the idea of recognition, we can see that a related justice conflict is
the result of contested recognition among individuals or entities. A party’s claims
are not considered valid because it is not perceived as a legitimate entity in the
context of a conflict. To not be recognized, according to Fraser “is not simply to
be thought ill of, looked down upon or devalued in others’ attitudes, beliefs or
representations. It is rather to be denied the status of a full partner in social inter-
action, as a consequence of institutionalized patterns of cultural value that consti-
tute one as comparatively unworthy of respect or esteem” (2000, pp. 113 f.). The
words “status” and “esteem” that Fraser uses are two key ideas associated with
the spirit in Cultural Theory. Bearing in mind that the human motive of the spi-
rit triggers the search for esteem through honor and standing, denied status will
result in a conflict of recognition, since the party that is denied recognition will
inevitably believe that the situation is unjust. This argument is further illustrated
by the fact that Fraser explicitly uses the concept of “standing” when elaborating
on her understanding of contested recognition:

To view recognition as a matter of status means examining institutionalized patterns


of cultural value for their effects on the relative standing [sic] of social actors. If and
when such patterns constitute actors as peers, capable of participating on a par with
one another in social life, then we can speak of reciprocal recognition and status
equality. When, in contrast, they constitute some actors as inferior, excluded, wholly
other, or simply invisible—in other words, as less than full partners in social inter-
action—then we can speak of misrecognition and status subordination. From this
perspective, misrecognition is neither a psychic deformation nor a free-standing
cultural harm but an institutionalized relation of social subordination (Fraser 2000,
p. 113).

Fraser’s understanding of a claim for recognition thus explicitly reaches beyond


the demand for the pure acknowledgement of the claimant’s identity, but it also
implies a demand for the recognition of the claimant’s standing.
Honneth has criticized Fraser’s separation of distribution and recognition and
instead argues that “even distributional injustices must be understood as the insti-
tutional expression of social disrespect—or, better said, of unjustified relations of
recognition” (2003, p. 114). According to Honneth (1995), recognition is related
to the spheres of love, rights, and solidarity. For him, this concept underpins the
justice conflicts that Fraser distinguishes. Fraser, in return, has criticized Honneth’s
approach as “recognition monism.” For the conceptualization of justice claims,
I stick to Fraser’s categorization since it can more easily be reconciled with the
human motives suggested by Cultural Theory. The differentiated dimensions of
justice are better fit to guide empirical research than Honneth’s overarching use
10  The Roadblock of Contested Recognition 259

of “recognition.” At the same time, Honneth’s reflections on recognition are vital


in explaining the relevance of a particular type of justice claim: According to Cul-
tural Theory, “the spirit craves autonomy” (Lebow 2008, p. 475), and according
to Honneth, autonomy craves respect, since people “acquire, via the experience of
legal recognition, the possibility of seeing their actions as the universally respected
expression of their own autonomy” (Honneth 1995, p. 118).
In the context of a conflict of recognition, this consequence of denied respect is
directly related to the degree of risk-taking. If respect is denied, the claimant may
resort to a behavior that may seem “unreasonable” to an observer who misinter-
prets the situation as a conflict of distribution. Cultural Theory states that appetite
and reason trigger risk-aversion while spirit triggers risk-seeking. Denied recogni-
tion thus serves as a driver for risk-taking behavior in situations of conflict.
If spirit relates to a claim of recognition, appetite relates to (re)distribution. In
the context of negotiations, this type of justice conflict can arise when the parties
disagree over concrete issues that are up for debate. We can easily apply rationa-
list negotiation theory to these situations, map out best alternatives to a negotiated
agreement (BATNA) and zones of possible agreement (ZOPA), and come up with
a distribution that should make sense for all parties. However, research has shown
that people may refuse offers that make sense economically because they believe
that the distribution is unfair (Welsh 2004). Still, it can be understood that con-
tested distribution concerns specific issues rather than identity. In negotiations,
such a conflict can lead to an impasse if one party refuses to meet another party’s
demand for a more just distribution. Accordingly, Fraser’s frame of redistribution
is informed by the Marxist notion of the working class, which, collectively, is the
victim of economic injustice. This dimension of justice thus has an inherently
material dimension, and so does the motive of appetite in Cultural Theory—note,
again, the importance of wealth attached to it.
Finally, I propose that representation is related to the role of reason in Cultu-
ral Theory. These reflections remain incomplete, but the argument I propose is
as follows: Fraser’s notion of representation is meant to frame and contextualize
redistribution and recognition. She states, “redistribution and recognition must be
related to representation, which allows us to problematize governance structures
and decision-making procedures” (Fraser as quoted in Dahl et al. 2004, p. 380).
Conflicts over these issues are never disconnected from the structures on which
decisions are negotiated and made, but they always happen in a specific political
context. In other words, the economic sphere, in which distribution may be con-
tested, and the cultural sphere, in which recognition and status may be contested,
are always linked to a political sphere, namely the political order in which these
justice conflicts arise. The political order itself may be contested, constituting a
260 A. Bell

Table 10.2   Linking Justice Claims with Cultural Theory


Motive or emotion Goal Instrument Justice claim
Appetite Satiation Wealth Distribution
Spirit Esteem Honor/standing Recognition
Reason Happiness Wisdom Representation
Fear Security Power Triggered by denied justice claim

c­ onflict of representation. In the context of specific negotiations, the justice dimen-


sion refers to the framework and the rules of the negotiations—the way “the table
is set up”—which a party may view as deeply unjust, even if the others do not con-
test its status and interests.
In Cultural Theory, the motive of reason plays a similar role. It is meant to
put checks and balances on appetite and spirit, and it is the only motive that can
compel people to reformulate and rethink their goals. It thus contextualizes and
frames appetite, spirit, and fear. In an idealized understanding, one might argue
that reason-driven political worlds strive for happiness realized by wisdom. This
does not mean that no conflicts arise, yet if they arise, they are dealt with on the
basis of an agreement. Justice claims can thus refer to issues (distribution), status
(recognition), or process and structure (reason). Fear does not fit into the justice
dimension since it does not serve as a motive. As previously noted, Lebow consi-
ders it an emotion. However, it can be triggered if another party denies a justice
claim. (see Table 10.2)

10.4 Hurting Stalemate: The Afghanistan War in 2014

To understand the current situation in Afghanistan, it is important to provide some


historical context.2 Since 1978, Afghanistan has not had any national government
that has been able to establish a monopoly on the legitimate use of force.
The 34-year long civil war broadly consists of three phases. The Soviet occupa-
tion of Afghanistan from 1979 to 1989 was the first and most deadly phase of the
conflict. The Mujahedeen united against the Red Army and counted on generous

2The following description is simplified and aims to provide only the necessary context for
the main argument of the chapter. For further information about the Afghan Civil War, see
Johnson and Leslie (2004).
10  The Roadblock of Contested Recognition 261

support from the U.S., Pakistan, and Saudi Arabia. In ten years of war, between
one and two million people have lost their lives. Prominent Afghan politicians that
are still active on the national stage started their political—or rather military—
careers during this time. Thus, for many Afghans, the word “Mujahideen” carries
the honorable connotation of someone who stood up for the liberation of Afgha-
nistan from foreign occupation. Today, former Mujahideen are the most powerful
warlords in Afghanistan.
In the second phase of the civil war, the communist Najibullah regime, lacking
Soviet financial support, was eventually overthrown, and infighting between the
different Mujahedeen factions began. Despite the smaller number of casualties in
this phase of civil war, chaos, turmoil, and ethnic violence reigned. The bloody
fighting and related anarchy eventually paved the way for the advance of the
predominantly Pashtun Taliban, who formally declared the “Islamic Emirate of
Afghanistan” in 1996. They strictly enforced an ultraconservative interpretation
of Islamic law and forced most warlords into exile. Even the Taliban were not
able to control the entire country. This phase of the Afghan Civil War came to an
end when the U.S. and its allies invaded in 2001.
When the Taliban refused to hand over Osama bin Laden, the mastermind of
the 9/11 terrorist attacks, to the U.S. without concrete evidence of his involve-
ment, American forces intervened militarily to oust the Taliban from power and
destroy the al-Qaida camps in Afghanistan. While the level of violence was rela-
tively low from 2002 to 2004, the Taliban have since then been able to mount
a powerful insurgency against foreign military forces in Afghanistan and against
the new Afghan government.3 The number of casualties has doubled from 2005 to
2006 and again from 2006 to 2010.4

3The Afghan insurgency consists of a variety of armed groups. The most prominent groups
are the Islamic Emirate of the Afghan Taliban, the Haqqani Network which is allied with
the Taliban, and the Islamic Party of the Islamist warlord Gulbuddin Hekmatyar. This chap-
ter focuses on the Islamic Emirate since the Taliban are the largest and most influential
insurgent group.
4Observers argue that a key factor that enabled the Taliban to return to Afghanistan was the

Iraq War (Rashid 2008). The American political and military leadership was focused on
Iraq and the international community failed to make efforts to rebuild Afghanistan in the
crucial time from 2002 to 2005. This lack of commitment, in combination with the influx
of foreign Jihadists to Afghanistan and Pakistan (also motivated by the US-led invasion of
Iraq), caused the escalation of violence, especially in the south east of the country. This
chapter does not make any objections to this compelling argument nor does it claim that the
conflict of recognition caused the Taliban insurgency. Instead, it focuses on the role of con-
tested recognition as an obstacle for negotiations in the stalemated phase of the war.
262 A. Bell

It is important to distinguish between the different purposes of the initial


U.S.-led invasion of Afghanistan and the subsequent longer-term international
military mission. While “Operation Enduring Freedom” (OEF) was meant to
destroy al-Qaida in Afghanistan, the NATO-led International Security Assistance
Force (ISAF) is officially responsible for assisting the new Afghan government
with establishing security and stability throughout the country.5 When the Tali-
ban and other armed groups opposing ISAF and the ANSF gained momentum,
ISAF enacted a counterinsurgency strategy (COIN) that relied on “integrated,
population-centric approaches that engage traditional local political authorities,
civil society, and a wide range of religious actors” instead of “militarized stra-
tegies focused on killing the enemy” (Bruton 2009, p. 81). The number of U.S.
and NATO troops in Afghanistan (ISAF and OEF combined) rose to more than
150,000. The “surge” was intended to significantly weaken the insurgency so that
the ANSF would be able to control the security situation by the planned end of
the ISAF mission in 2014. However, “this has not happened. Tight deadlines for
U.S. withdrawal combined with Taliban resilience have left insurgents in control
of enough critical terrain to remain a threat well after 2014” (Biddle 2013, p. 6).
Thus, the security transition does not represent a major power shift on the batt-
lefield. Rather, the burden on the pro-Government side will almost completely
shift from U.S. and NATO forces to the ANSF: “If current trends continue, U.S.
combat troops are likely to leave behind a stalemated war in 2014” (Biddle 2013,
p. 2). This “stalemated war” has been the status quo since approximately 2010.
The Taliban turned out to be much more resilient than ISAF and ANSF expected,
as they established shadow institutions in large parts of the country. Yet they were
unable to conquer major urban centers or to inflict strategic defeats to NATO or
Afghan forces. As long as the U.S. does not decide to completely stop all material
and financial support to the ANSF—a scenario that is extremely unlikely in spite
of disruptions to the U.S.-Afghan relationship—this stalemate is likely to stay.
In such a situation, the Taliban should have good reasons to negotiate, if they are
“reasonable” actors:

In fact there may be good reasons for the Taliban to explore a possible deal. Omar
[the spiritual leader of the Taliban] and his allies have been living in exile for over a
decade, their children are growing up as Pakistanis, and their movements are surely
watched and constrained by their Pakistani patrons. [. . .] Perhaps more important,

5Note that ISAF operates under a UN Chapter VII mandate, while OEF is based on the US’
right of self-defense.
10  The Roadblock of Contested Recognition 263

they live under the constant threat of assassination by U.S. drones or commando
raids – just ask Osama bin Laden or six of the last seven al Qaeda operations direc-
tors, all killed or captured in such attacks. And the war imposes costs on the Taliban,
too. Stalemated warfare is an equal opportunity waste of lives and resources. They
are probably able to continue indefinitely, and they will certainly not surrender sim-
ply to stanch the bleeding, but this does not mean they enjoy it or would prefer it
to any possible settlement terms. Stalemate is costly enough that the Taliban might
consider an offer if the process is not tantamount to capitulation (Biddle 2013, p. 9).

As Zartman’s theory of the “mutually hurting stalemate” (MHS) suggests, “when


the parties find themselves locked in a conflict from which they cannot escalate to
victory and this deadlock is painful to both of them [. . .], they seek an alternative
policy or way out” (2001 p. 1). According to Biddle’s strategic assessment, the
current deadlock is very painful for the Taliban, but the United States, has been
unable to “escalate to victory” either. Since 2001, more than 2,000 American sol-
diers have lost their lives in the Afghanistan War, and the number of wounded
soldiers is ten times as high. The financial costs of the war for the U.S. are also
enormous, costing at least $641.7 billion from 2001 to 2013. Cordesman writes:
“This is an incredible amount of money to have spent with so few controls, so
few plans, so little auditing, and almost no credible measures of effectiveness”
(2012a, p. 3). At the same time, while reliable figures for the number of casualties
from the ANSF are often difficult to obtain, estimates suggest that in the second
half of 2012 alone, the insurgents inflicted more casualties on the ANSF than on
all NATO forces in Afghanistan during the previous two years combined.6
Thus, assuming a rational cost-benefit analysis, all three parties have reasons
to view the situation as a painful and costly stalemate. This does not mean that we
should expect the Taliban, U.S., and Afghan government to all of a sudden come
up with a roadmap to peace. Rather, Zartman’s idea of a “ripe moment” should
be understood as situational circumstances that provide incentives to the parties
to consider alternatives to violence. The conditions should encourage them to
explore other ways of dispute resolution that may turn out to be less painful than
the status quo: “Parties do not have to be able to identify a specific solution, only
a sense that a negotiated solution is possible for the searching and that the other
party shares that sense and the willingness to search too” (Zartman 2001, p. 2).

6This figure from 2012 is relevant because it concerns the time in which the responsibility
for security was still shifting from ISAF to ANSF. By now, ANSF is officially fully respon-
sible for security. Rising ANSF casualties are the logical consequence of the “Afghaniza-
tion” of the war. For more numbers, see Cordesman (2012b).
264 A. Bell

Indeed, there have been several negotiation attempts within the last years. Two
rounds of talks organized by Saudi Arabia in 2008 and 2009, talks in the Maldi-
ves in 2010, and European Union-led initiatives in 2007 and 2009 through 2010
are examples of exploratory negotiations that involved individuals affiliated with
the insurgency (Wörmer 2012, p. 2). However, official representatives of the Tali-
ban or the Afghan government did not participate, and all discussions eventually
broke off for various reasons. For instance, the Afghan government expelled the
EU diplomat who had reached out to the Taliban, “plainly wishing to underline
that there was to be no contact with leaders of the insurgency without its parti-
cipation or at least knowledge” (Wörmer 2012, p. 3). The most significant step
towards formal negotiations was the opening of an official Taliban office in Doha,
Qatar, in 2013, but these talks also eventually broke down. Looking back, the
official spokesman of the Islamic Emirate, Zabihullah Mujahid, explains that

we [the Afghan Taliban, A.B.] have repeatedly said that the peace process was not
started practically even in the past. It was only for the sake of providing an opportu-
nity to Americans. If they really want to end the occupation of Afghanistan through
non-military channels, we will surely give it a chance. But in practice it was only a
deceitful and misleading short time process therefore we abandoned it. As far as the
Kabul administration is concerned, we have not started any peace negotiations with
them in the past nor will it be held in the future (Islamic Emirate of Afghanistan
2014).

The last sentence is in line with the official Taliban policy to consider the Afghan
government a pro-American “puppet regime” that is not perceived as a legitimate
negotiation partner. This notion already indicates that there is more at stake than a
simple trade-off of interests.

10.4.1 Diverse Interests, yet Zone of Possible Agreement

The mutually hurting stalemate is grounded in cost-benefit analysis, fully consistent


with public choice notions of rationality (Sen 1970; Arrow 1963; Olson 1965) and
public choice studies of war termination and negotiation (Brams 1990, 1994; Wright
1965), which assume that a party will pick the alternative which it prefers, and that
a decision to change is induced by increasing pain associated with the present (con-
flictual) course (Zartman 2001, p. 1).

If the Taliban, U.S., and Afghan government adhered to rationalist negotiation


behavior, they would compare the costs and benefits of a stalemated war with
those of a negotiated settlement. These “economic models of negotiation tend
10  The Roadblock of Contested Recognition 265

to assume rationality and focus on the outcome that should emerge from these
rational actions by both (or all) parties” (Bazerman and Neale 1991, p. 109). Of
course, this does not mean that negotiations have to be successful. But at least, the
parties are expected to try to identify the ZOPA. If there is no ZOPA, but if the par-
ties believe that their BATNA is more attractive than the potential deal at the table,
a breakdown of negotiations is compatible with rationalist negotiation theory.
An important factor that narrows the ZOPA in multi-party negotiations is the
number of parties: The more groups that are involved, the more likely it is that
the “overlap” of interests is smaller. Thus, it is arguable that the complexity of
the Afghanistan conflict narrows the ZOPA and makes a negotiated settlement
less likely. The insurgency is internally fragmented, different warlords have dif-
ferent external sponsors, and Pakistan continues to maintain ties with the Taliban
through its Inter-Services Intelligence (ISI). The conflict does not only involve
a variety of non-state actors, but also—directly or indirectly and to a different
degree—at least a dozen states, including the Central Asian republics, the Arab
states of the Persian Gulf, the U.S., Russia, India, China, Pakistan, and Iran. Cer-
tainly, these conditions make up a complicated negotiation environment. But
while the number of parties can explain why it is difficult to sequence and orches-
trate a formal and inclusive negotiation process that involves all stakeholders, it
does not explain why all negotiations of the core group of main actors have failed
to gain traction. These key actors can easily be identified: the largest insurgent
group is the Taliban.7 Their primary opponents are the U.S. and NATO forces
in Afghanistan and the Afghan government that these forces protect. Certainly,
inclusive peace talks would also have to involve Pakistan, and without the buy-in
of Iran, whose Revolutionary Guards have ties to the insurgency, any settlement
would be very fragile. Yet the three main parties to the conflict are the Taliban, the
U.S., and the Afghan government.8 The fact that these three are able to end the

7The Haqqani Network is allied with them, and Gulbuddin Hekmatyar’s Islamic Party
alone does not have the capabilities to continue a strong insurgency. All three insurgent
groups would in some way have to be part of an inclusive peace agreement, but it is the
Islamic Emirate that plays the key role on the side of the insurgency.
8One might object that the U.S. does not speak for all of NATO and that France, the UK,

and Germany, for example, pursue their own interests in the conflict. While this is true to
a certain extent, there can be no doubt that the U.S. is the most decisive actor on the side
of NATO. It does not only provide the majority of ISAF troops (33,500 out of 51,178 as of
April 2014, followed by the UK with 5,200), but also sets the strategic course for NATO in
Afghanistan. The decision to enact COIN was the result of a strategic review initiated by
President Obama, and the future of NATO’s engagement in Afghanistan is contingent upon
future U.S. involvement.
266 A. Bell

war was demonstrated in 2008: the head of the United Nations Assistance Mis-
sion to Afghanistan (UNAMA), had asked ISAF, the Afghan government, and
the Taliban to suspend all offensive military operations on World Peace Day. The
three parties agreed, and on September 21, 2008, security incidents fell by 70%
(Eide 2012, p. 284).
Several studies that explore the prospects of negotiations with the Tali-
ban conclude that their interests could be met by an agreement with the Afghan
Government and the U.S. administration. Waldman conducted 76 interviews with
insurgents, former senior Taliban officials, and Afghan politicians, as well as
Afghan and foreign analysts, academics, NGO employees, journalists, diplomats,
soldiers, and religious and tribal leaders. He states that the main objectives of the
Taliban are the

withdrawal of foreign forces; law and order, especially as enforced by ulema (Isla-
mic scholars) against criminals; application of sharia, involving harsher punish-
ments and changes to the Afghan constitution; legitimate exercise of power or
Islamic government; conformity with perceived Islamic social rules, involving fur-
ther constraints on women; political, but possibly not administrative, power; and
peace and security (Waldman 2010, p. 1).

Even though Waldman mentions several obstacles to negotiations, he conclu-


des that “while Taliban tactics are deplorable, many insurgents’ motivations
are understandable, and certain objectives could be considered valid. There is a
degree of convergence of insurgent and wider Afghan and international interests.”
Consequently, he recommended, “given the constraints of counterinsurgency and
transition strategies as well as the deteriorating security situation, the Afghan-in-
ternational coalition should seek to engage in direct or indirect exploratory talks
with the Taliban” (Waldman 2010, p. 1).
In the report of the “Century Foundation International Task Force in Afgha-
nistan in Its Regional and Multilateral Dimensions,” a comprehensive agenda for
an inclusive peace agreement for Afghanistan is outlined that addresses both the
national and international dimensions of the conflict. “At the heart of this con-
flict, as in so many others, is the contest for power, both at the center and in the
­provinces. Control of the ministries of defense, interior, and perhaps also educa-
tion and justice, may well be particularly sensitive” (Brahimi and Pickering 2011,
p. 4). This report assesses multiple issues, such as the constitutional order, eco­
nomic development, and human rights. Regarding the key U.S. interest of pre­
venting a return of al-Qaida to Afghanistan, they recommend that “an accord
must include a verifiable severing of Taliban ties with al Qaeda and guarantees
that Afghanistan will never again shelter transnational terrorists, with possible
10  The Roadblock of Contested Recognition 267

UN Security Council measures to support counterterrorism capability during a


transition period” (Brahimi and Pickering 2011, p. 6). Waldman’s findings sug-
gest that this could be acceptable for the Taliban:

The insurgents interviewed did not espouse al-Qaeda’s extremist ideology, and one
commander said: ‘We want good relations with foreign countries.’ Interviewees
regarded the Taliban as having few links with al-Qaeda, different strategic goals,
and a different Islamic philosophy – a point emphasized by former Taliban deputy
minister Mawlawi Arsala Rahmani. No interviewee considered al-Qaeda a signifi-
cant actor in Afghanistan, which comports with recent U.S. intelligence assessments
(Waldman 2010, pp. 6 f.).

In the Century Foundation study, it is suggested that a UN peacekeeping force


be deployed to monitor the implementation of a potential settlement and that the
withdrawal of ISAF is the “key demand of the insurgency” (Brahimi and Pickering
2011, p. 7). To make the peacekeeping force acceptable for both the Taliban and
Afghan government, they recommend that “no belligerent party to the current con-