Justice and Peace: The Role of Justice Claims in International Cooperation and Conflict [1st ed.] 978-3-658-25195-6;978-3-658-25196-3

Table of contents :
Front Matter ....Pages i-x
Front Matter ....Pages 1-1
Introduction: The Role of Justice in International Cooperation and Conflict (Caroline Fehl, Dirk Peters, Simone Wisotzki, Jonas Wolff)....Pages 3-28
Justice from an Interdisciplinary Perspective: The Impact of the Revolution in Human Sciences on Peace Research and International Relations (Harald Müller)....Pages 29-64
Front Matter ....Pages 65-65
Understanding the Puzzle of Unequal Recognition: The Case of the Nuclear Non-Proliferation Treaty (Caroline Fehl)....Pages 67-85
The Role of Justice in Compliance Behavior: Germany’s Early Membership in the Nuclear Non-Proliferation Regime (Marco Fey, Aviv Melamud, Harald Müller)....Pages 87-114
Gender Justice in Multilateral Negotiations: The Case of SGBV in the Rome Statute and in the ICC (Simone Wisotzki)....Pages 115-135
Institutional Justice as a Condition for the Regional Acceptance of Global Order: The African Union and the Protection of Civilians (Matthias Dembinski, Dirk Peters)....Pages 137-163
Front Matter ....Pages 165-165
R2P Ten Years on: Unresolved Justice Conflicts and Contestation (Gregor Peter Hofmann)....Pages 167-191
The Normative Challenge of Interaction: Justice Conflicts in Democracy Promotion (Annika E. Poppe, Jonas Wolff)....Pages 193-227
Negotiating Interference: U.S. Democracy Promotion, Bolivia, and the Tale of a Failed Agreement (Jonas Wolff)....Pages 229-250
Front Matter ....Pages 251-251
The Roadblock of Contested Recognition: Identity-Based Justice Claims as an Obstacle to Peace Negotiations in Afghanistan (Arvid Bell)....Pages 253-276
Claims for Local Justice in Natural Resource Conflicts: Lessons from Peru’s Mining Sector (Melanie Coni-Zimmer, Annegret Flohr, Andreas Jacobs)....Pages 277-298

Citation preview

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 Institut, Beiträge zum friedens- und sicherheitspolitischen Diskurs sowie Begleitpublikationen zu den wissenschaftlichen Tagungen der HSFK veröffentlicht. Die Studien unterliegen einem externen Gutachterverfahren. Die Reihe wird herausgegeben vom Leibniz-Institut Hessische Stiftung Friedens- und Konfliktforschung (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 Peace Research Institute Frankfurt (PRIF/HSFK) Frankfurt am Main, Germany

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

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

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

ISSN 2662-3544 ISSN 2662-3552  (electronic) Studien des Leibniz-Instituts Hessische Stiftung Friedens- und Konfliktforschung ISBN 978-3-658-25195-6 ISBN 978-3-658-25196-3  (eBook) https://doi.org/10.1007/978-3-658-25196-3 Springer VS © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 The chapter “Justice from an Interdisciplinary Perspective: The Impact of the Revolution in Human Sciences on Peace Research and International Relations” by Harald Müller is licensed under the terms of the Creative Commons Attribution 4.0 International License (hhttp://creativecommons. org/licenses/by/4.0/). For further details see license information in the chapter. This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer VS imprint is published by the registered company Springer Fachmedien ­Wiesbaden GmbH part of Springer Nature The registered company address is: Abraham-Lincoln-Str. 46, 65189 Wiesbaden, Germany

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 justice 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 specialized 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 framework, 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, generally 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 individual research program but part and parcel of an incipient revolution in International Relations, peace and conflict studies, and the social sciences at large. During the first years of the research program, Christopher Daase and Christoph

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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 development 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 supporting 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

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Part III  Justice and Outside Interference in Societies 7

R2P Ten Years on: Unresolved Justice Conflicts and Contestation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Gregor Peter Hofmann

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The Normative Challenge of Interaction: Justice Conflicts in Democracy Promotion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Annika E. Poppe and Jonas Wolff

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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, [email protected]. Melanie Coni-Zimmer, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Matthias Dembinski,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Caroline Fehl,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Marco Fey,  Federal Foreign Office (Auswärtiges Amt), Berlin, [email protected]. Annegret Flohr, TMG Research gGmbH—Think Tank for Sustainability, ­Berlin, [email protected]. Gregor Peter Hofmann, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Andreas Jacobs, Federal Ministry for Economic Cooperation and Development (Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung, BMZ), Bonn, [email protected]. Aviv Melamud,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Harald Müller,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected].

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List of contributors

Dirk Peters, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Annika E. Poppe,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Simone Wisotzki,  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected]. Jonas Wolff, Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, [email protected].

Part I Justice and Peace Research

1

Introduction: The Role of Justice in International Cooperation 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: [email protected] D. Peters E-Mail: [email protected] S. Wisotzki E-Mail: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_1

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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 projects.3 The common assumption of the studies assembled in this book is that justice 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 particular 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 understanding of justice claims and justice conflicts, and identify the research questions which are addressed throughout the chapters (1.3). The next section briefly summarizes 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 program are represented in this volume (for further publications, see, among others, Baumgart-Ochse et al. (2017); Baumgart-Ochse and Wolf (2019); Daase et al. (2015); Müller and Wunderlich (2013)).

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1.2 The State of the Art Aspects of global justice have been debated in various scientific disciplines. Traditionally, 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 justice. 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 communities, 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.

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(Pogge 1992, p. 58). While moral cosmopolitanists point to individual responsibility for realizing universal principles of justice, institutional cosmopolitanists assign such responsibilities for achieving global principles of justice to the institutional 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 humanitarian benevolence will not suffice; global justice principles must contain substantial 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 normative and cultural pluralism that characterizes the world. Principles of justice can only be established within the context of national communities, and might be different depending on the relevant culture (Walzer 2006; Brown 2002, pp. 92 f.; Brown 1992). Therefore, global justice must be perceived as contextual and cannot be universal in range (Miller 2007, p. 263; Miller 2005). Such anti-cosmopolitan 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 prominent 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 distributive 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 memberships in morally relevant associations. People build morally constitutive communities 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

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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, procedural 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 justice. 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 recognition 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 solidarists, 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-interference 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

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aiming at “some universalizable conception of the good life which should be promoted 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 actually 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 controversies 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 meantime, 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,

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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 realities that their long-term interests may be fulfilled when they forgo their shortterm immediate desires. In the expectation of better results in the long-run, they abstain from choosing short-term gains. Such motivation which, in the perspective 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 injustice 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, selfinterested 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 justice 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 comparative 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). Reflecting 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

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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 justice: 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 distribution, 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 findings 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” procedures 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 justice” 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

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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).

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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 collected in this book.

1.3 Key Concepts Jointly and individually, the contributions to this volume advance two core arguments: The first argument holds that justice plays a central role both in individual political decision-making and in intersubjective political discourses, but that conceptions of justice vary widely across actors and communities. The second argument 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 people 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 justice 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, however, 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 theoretical 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 conceptions of justice which are, however, subject to collective discourses and negotiations that can transcend cultures and communities and may (but need not) lead

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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 observation 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 justicerelated claims in world politics, such an approach would give rise to the legitimate 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 assumption 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 political 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 representation, 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 economic 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 participatory rights, opportunities for political representation and equality before the

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law; again, such conflicts can be observed both within and between states and societies. The third type captures conflicts in which recognition of actors’ identities, differences, and culturally assigned status are the object of conflicting justice 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/recognition 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 justice 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 otherwise share. Also, we do not aim at establishing which of the three types of justice 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 fundamentally 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, procedural, 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 different 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, minimizing 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 relationship between both easier to grasp and analyze (Daase and Humrich 2011, p. 3).

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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 reinforce and escalate conflicts through a range of causal mechanisms, for instance by making actors less amenable to compromises and trade-offs, more susceptible 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. Furthermore, 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 conflict 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 disputes, 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 negotiations. 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

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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 developed, 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? Empirically 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 internalized justice concerns. What types of justice conflict can be identified in the controversy?  Do colliding 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

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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 colliding 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 controversy? How and under what conditions are justice conflicts resolved or ameliorated?  Through what specific measures and practices, if at all, are justice conflicts contained in a given dispute? This includes the question of what forms of negotiation, institutional regulation and governance contribute to the development or shared justice conceptions, or alternatively the recognition and pragmatic 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 conditions that enable these resolution strategies to work?

1.4 Contributions to this Volume Following this introduction, Harald Müller continues with laying out the rationale that underlies a justice-oriented research agenda in international politics and peace and conflict studies. In the chapter “Justice from an Interdisciplinary Perspective: 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

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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 justice. 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 persons 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 relations. 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 international 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 inequalities in world politics. And yet, Fehl argues, a close analysis reveals that different 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 nonetheless 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.

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The NPT also constitutes the empirical focus of the contribution by Marco Fey, Aviv Melamud and Harald Müller. In “The Role of Justice in Compliance 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 creation 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 distinction 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 negotiations of the Rome Statute. During these negotiations, the “gender battle” became synonymous with a series of justice conflicts concentrating on a norm to criminalize 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 justice 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 violence 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 lobbying 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,

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and concludes by asking how such conflicts have affected implementation efforts. She identifies vast discrepancies between the normative rhetoric and the adjudication 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 Protection 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 substance. 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 procedural 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 normative 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 indepth look at the persisting contestation of the norm set known as the Responsibility 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 understanding of justice as based on entitlements of individuals collides with an understanding 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, similarly, point to collectively held ideas of justice as motives for norm contestation.

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Against this background and based on process tracing, qualitative content analysis, 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 individual vis-à-vis statist entitlements and over procedural justice remained unresolved 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 Promotion” 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 promotion, 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 understandings of appropriate norms and institutions may exist. Contestation of democracy promotion has, therefore, a crucial normative dimension that can be conceptualized as a series of conflicts over justice. If we conceive of external democracy promotion as a process of interaction instead of unidirectional export or socialization, such justice conflicts constitute a major normative challenge to democracy promoters. The chapter argues for an alternative perspective on “democracy promotion 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 culminated in 2011 in the signing of a bilateral agreement but, ultimately, failed to establish a basis for mutually acceptable development aid relations. Wolff analyzes these negotiations and suggests a partial explanation that accounts for their dynamics and results. Specifically, the chapter shows how the negotiations have

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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 concerns 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 Afghanistan,” Arvid Bell focuses on the problem of recognition in such negotiations and analyzes this issue in the ongoing conflict in Afghanistan. The Afghanistan conflict 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 Richard 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 legitimate identity-related justice claims could remove a key obstacle to formal negotiation. 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 corporations 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

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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 permeate 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 justice were not addressed in conflict situations. Claims to rightful entitlements surface 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 promotion, 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 possess rights in international and transnational politics, an important distinction that comes up repeatedly is that between the rights of states and those of individuals. 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

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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 Matthias Dembinski and Dirk Peters), those of state governments and armed groups (Chap. 10 by Arvid Bell), and those of local communities and multinational corporations (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 necessarily 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 obligations for different member states (Chap. 4 by Marco Fey et al.) or a voice in international decision-making processes (Chap. 6). Applying the equality principle 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 conflicts, 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 international military interventions (Chap. 4) shows that giving regional actors opportunities 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

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if they had not participated in the decisions that led to them. In this sense, attending 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 recognition 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 arrangement, 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 contributes significantly to understanding the dynamics of these conflicts and the success or failure of attempts to resolve them.

References Aggestam, K., & Björkdahl, A. (2013). Rethinking peacebuilding. The quest for just peace in the Middle East and the Western Balkans. Abingdon: Routledge. Albin, C. (1999). Justice, fairness, and negotiation: Theory and reality. In P. Berton, H. Kimura, & I. Zartman (Eds.), International negotiation. Actors, structures/processes, values (pp. 257–290). Basingstoke: Macmillan.

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Albin, C. (2001). Justice and fairness in international negotiation. Cambridge: Cambridge University Press. Albin, C. (2009). Peace vs. justice—And beyond. In J. Bercovitch, V. Kremenyuk, & I. Zartman (Eds.), The sage handbook of conflict resolution (pp. 580–594). London: Sage. Albin, C., & Druckman, D. (2010). The role of justice in negotiation. In D. M. Kilgour & C. Eden (Eds.), Handbook of group decision and negotiation, advances in group decision and negotiation (pp. 109–119). Dordrecht: Springer. Albin, C., & Druckman, D. (2014a). Bargaining over weapons: Justice and effectiveness in arms control negotiations. International Negotiation, 19(3), 426–458. Albin, C., & Druckman, D. (2014b). Procedures matter: Justice and effectiveness in international trade negotiations. European Journal of International Relations, 20(4), 1014–1042. Baumgart-Ochse, C., & Wolf, K. D. (2019). Religious NGOs at the United Nations: Polarizers or mediators?. Abingdon: Routledge. Baumgart-Ochse, C., Schörnig, N., Wisotzki, S., & Wolff, J. (2011). Auf dem Weg zu Just Peace Governance. Beiträge zum Auftakt des neuen Forschungsprogramms der HSFK. Baden-Baden: Nomos. Baumgart-Ochse, C., Glaab, K., Smith, P., & Smythe, E. (2017). Faith in justice? Special issue of globalizations. London: Routledge. Benhabib, S. (2002). The claims of culture. Equality and diversity in the global era. Princeton: Princeton University Press. Brown, C. (1992). International relations theory. New York: New normative approaches. Brown, C. (2002). Sovereignty, rights and justice. International political theory today. Cambridge: Cambridge University Press. Buchanan, A., & Keohane, R. (2004). The preventive use of force: A cosmopolitan institutional proposal. Ethics & International Affairs, 18(1), 1–22. Bull, H. (1977). The anarchical society. London: Macmillan. Buzan, B. (2004). From international to world society?. Cambridge: Cambridge University Press. Caney, S. (2005). Justice beyond borders: A global political theory. Oxford: Oxford University Press. Daase, C. & Humrich, C. (2011). Just Peace Governance. Research program of the Peace Research Institute Frankfurt. PRIF Working Papers, 1. Frankfurt a. M.: Peace Research Institute Frankfurt. https://www.hsfk.de/fileadmin/HSFK/hsfk_publikationen/PRIF_ WP_01.pdf. Accessed 30 Oct 2018. Daase, C., Geis, A., Fehl, C., & Kolliarakis, G. (2015). Recognition in international relations. Rethinking a political concept in a global context. London: Palgrave Macmillan. Dembinski, M. (2017). Procedural justice and global order: Explaining African reaction to the application of global protection norms. European Journal of International Relations, 23(4), 809–832. Douglas, M. (1989). A typology of cultures. In Deutsche Gesellschaft für Soziologie (Ed.), Kultur und Gesellschaft. Verhandlungen des 24. Deutschen Soziologentages 1988 in Zürich (pp. 85–97). Frankfurt a. M.: Campus. Douglas, M., & Isherwood, B. (1996). The world of goods. Towards an anthropology of consumption. London: Routledge.

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Druckman, D., & Albin, C. (2010). Distributive justice and the durability of peace agreements. Review of International Studies, 37(3), 1137–1168. Dunne, T. (2009). Liberalism, international terrorism, and democratic wars. International Relations, 23(1), 107–114. Erskine, T. (2002). “Citizen of Nowhere” or “the Point Where Circles Intersect”? Impartialist and embedded cosmopolitanisms. Review of International Studies, 28, 457–478. Erskine, T. (2008). Embedded cosmopolitanism: Duties to strangers and enemies in a world of ‘Dislocated Communities’. Oxford: Oxford University Press. Evans, G., & Sahnoun, M. (2002). The responsibility to protect. Foreign Affairs, 81(6), 99–110. Forst, R. (2007). Das Recht auf Rechtfertigung. Elemente einer konstruktivistischen Theorie der Gerechtigkeit. Frankfurt a. M.: Suhrkamp. Forst, R. (2010). Zu einer Kritischen Theorie transnationaler Gerechtigkeit. In C. Broszies & H. Hahn (Eds.), Globale Gerechtigkeit (pp. 439–464). Frankfurt a. M.: Suhrkamp. Fraser, N. (2006). Mapping the feminist imagination: From redistribution to recognition to representation. In U. Degener & B. Rosenzweig (Eds.), Die Neuverhandlung sozialer Gerechtigkeit Feministische Analysen und Perspektiven (pp. 37–52). Wiesbaden: Springer VS. Fraser, N. (2009). Scales of justice. Reimagining political space in a globalizing world. New York: Columbia University Press. Fraser, N., & Honneth, A. (2003). Redistribution or recognition? A political-philosophical exchange. London: Verso. Honneth, A. (1992). The struggle for recognition: The moral grammar of social conflicts. Cambridge: MIT Press. Hurrell, A. (2007). On global order. Power, values, and the constitution of international society. Oxford: Oxford University Press. Hutchings, K. (2010). Global ethics. An introduction. Cambridge: Polity Press. Jackson, R. (2000). The global covenant: Human conduct in a world of states. Oxford: Oxford University Press. Jost, J., & Kay, A. (2010). Social justice. In S. Fiske, L. Gardner, & D. Gilbert (Eds.), Handbook of social psychology (pp. 1122–1165). London: Wiley. Kluegel, J., Mason, D., & Wegener, B. (1995). Social justice and political change. Public opinion in capitalist and post-communist states. Berlin: De Gruyter. Lebow, R. (2008). A cultural theory of international relations. Cambridge: Cambridge University Press. Lerner, M. (1980). A belief in a just world a fundamental delusion. New York: Springer US. Lind, E., & Tyler, T. (1988). The social psychology of procedural justice. New York: Plenum Press. Linklater, A. (2001). Citizenship, humanity, and cosmopolitan harm conventions. International Political Science Review, 22(3), 261–277. Linklater, A. (2006). The harm principle and global ethics. Global Society, 20(3), 329–343. Lu, C. (2000). The one and many faces of cosmopolitanism. The Journal of Political Philosophy, 8(2), 244–267. Miller, D. (1999). On nationality. Oxford: Oxford University Press. Miller, D. (2005). Global egalitarianism. The Journal of Ethics, 9(1/2), 55–79. Miller, D. (2007). National responsibility and global justice. Oxford: Oxford University Press.

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Montada, L., & Lerner, M. (1996). Current societal concerns about justice. New York: ­Plenum Press. Müller, H. (2013). Peace. Interdisciplinary perspectives on a contested relationship. In G. Hellmann (Ed.), Justice and peace: Good things do not always go together (pp. 43–68). Frankfurt a. M.: Campus. Müller, H., & Druckman, D. (2014). Introduction: Justice in security negotiations. International Negotiation, 19(3), 339–409. Müller, H., & Wunderlich, C. (2013). Norm dynamics in multilateral arms control: Interests, conflicts, and justice. Athens: University of Georgia Press. Nagel, T. (2005). The problem of global justice. Philosophy & Public Affairs, 33, 115–147. O‘Neill, O. (1996). Towards justice and virtue. A constructivist account of practical reasoning. Cambridge: Cambridge University Press. Pogge, T. (1992). Cosmopolitanism and sovereignty. Ethics, 103(1), 48–75. Pogge, T. (2002). World poverty and human rights: Cosmopolitan responsibilities and reforms. Cambridge: Polity. Rawls, J. (1972). A theory of justice. London: Oxford University Press. Rawls, J. (1999). The law of peoples. Cambridge: Havard University Press. Rawls, J. (2001). Gerechtigkeit als Fairness. Frankfurt a. M.: Suhrkamp. Schrenker, M., & Wegener, B. (2007). Was ist gerecht? Ausgewählte Ergebnisse aus dem International Social Justice Project 1991–2007 International Social Justice Project. Arbeitsbericht 150. Berlin: Humboldt-Universität zu Berlin. https://www.sowi.huberlin.de/de/lehrbereiche/empisoz/forschung/archiv/isjp/publication/ISJP_WP_150. Accessed 30 Oct 2018. Sen, A. (2009). The idea of justice. London: Allen Lane. Shapcott, R. (2010). International ethics. A critical introduction. Cambridge: Cambridge University Press. Shue, H. (1980). Basic rights. Subsistence, affluence and U.S. foreign policy. Princeton: Princeton University Press. Sigmund, K., Fehr, E., & Nowak, M. A. (2002). The economics of fair play. Scientific American, 1, 83–87. Téson, F. (2003). The liberal case for humanitarian intervention. In J. L. Holzgrefe & R. O. Keohane (Eds.), Humanitarian intervention. Ethical, legal, and political dilemmas (pp. 93–129). Cambridge: Cambridge University Press. Tyler, T. (2012). Justice theory. In P. Van Lange, A. Kruglanski, & E. Higgins (Eds.), Handbook of theories of social psychology (pp. 344–362). London: Sage. Tyler, T., & Smith, H. (1998). Social justice and social movements. In D. Gilbert, S. Fiske, & L. Gardner (Eds.), The handbook of social psychology (pp. 595–629). Boston: Distributed exclusively by Oxford University Press. Walzer, M. (1994). Thick and thin: Moral argument at home and abroad. Notre Dame: University of Notre Dame Press. Walzer, M. (2006). Sphären der Gerechtigkeit. Ein Plädoyer für Pluralität und Gleichheit. Frankfurt a. M.: Suhrkamp. Wegener, B., & Liebig, S. (2000). Is the “Inner Wall” here to stay? Justice ideolgies in unified Germany. Social Justice Research, 13, 177–197. Welch, D. (1993). Justice and the genesis of war. Cambridge: Cambridge University Press. Welch, D. (2014). The justice motive in international relations: Past, present, and future. International Negotiation, 19(3), 410–425.

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Welch, D. (2017). The justice motive in east Asia’s territorial disputes. Group Decision and Negotiation, 26(1), 71–92. Wheeler, N. (1992). Pluralist or solidarist conceptions of international society. Millennium, 21(3), 463–487. Wheeler, N. (2000). Saving strangers. Humanitarian intervention in international society. Oxford: Oxford University Press. Zartman, I. (1997). Conflict and order: Justice in negotiation. International Political ­Science Review, 18(2), 121–138. Zartman, I. (1999). Justice in negotiation. In P. Berton, H. Kimura, & I. Zartman (Eds.), International negotiation. Actors, structures, processes, values, justice in negotiation (pp. 291–307). Basingstoke: Macmillan. Zartman, I. (2008). Negotiation and conflict management. Essays on theory and practice. London: Routledge. Zartman, I., & Kremenyuk, V. (2005). Peace versus justice: Negotiating forward- and backward-looking outcomes. Lanham: Rowman & Littlefield. Zartman, I., Druckman, D., Jensen, L., Pruitt, D., & Young, H. (1996). Negotiation as a search for justice. International Negotiation, 1(1), 79–98.

2

Justice from an Interdisciplinary Perspective: The Impact of the 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 circuits in the brain responsible for adverse reactions to violations of claims for justice. Evolutionary biologists have identified rules of distribution and retribution 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: [email protected] © The Author(s) 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_2

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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, materialistic 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 international 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 layperson’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 treatment, 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 fulfillment. 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.

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2.2 Losing the J-Theme: The Weight of Paradigmatic Hegemony The pedigree of the philosophical debate on justice and the gravity of its conceptual assumptions about human destiny should have motivated intense empirical research, but there is amazingly little to be found. Inevitably, empirical researchers have uncovered interesting insights into the role of distributive conflicts and their resolution in the sustainability of peace agreements, on the role of non-recognition in conflicts within and among political communities, on the impact of transitional justice on post-civil war societies, and on the meaning of fair procedures 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) rationalism 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 “selfinterest” (Markovsky 2017, pp. 115 f.).

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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 entities 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 substantive 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-àvis 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 determine the strategic choices of actors; depending on the choices made, outcomes ensue and, from time to time, new preferences and structures emerge. Rationality may be limited through lack of information, and information exchange may become part of the strategic interaction among actors. Actors—whether natural 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 application 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

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from the academic field of economics. It should be emphasized that economics has adopted this anthropology without any preceding empirical anthropological 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 Darwin 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 “betterment”—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 betterment of human affairs resulting from ever more efficient production and distribution 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 surprising 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 ideational 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 anthropological default option to which even critics of rationalism would revert when necessary. 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

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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 assumptions. 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 concern 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 consequence 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 sciences such as neuroscience or evolutionary biology to sociology and political science (international relations included) and cultural sciences such as ethnology or literature. A chorus of jubilation could be expected over the immense opportunities 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 “emotional 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 dispositions (Crawford 2011). Despite this, most scholars stick to their old models, from rational choice to post-structuralism, and neglect the marvelous chance of enriching 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 history 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).

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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 neuroscience and neurobiology. These sciences, though quite young, are deciphering the structure and functions of the brain at astonishing speed, making use of rapidly developing new technologies. Third, they must find some support in the rapidly 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 without 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 variability; some individual differences in political orientation and reaction to specific

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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 individuals 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, recognizing 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 certain attributes in our “genetic hard wiring” which we do not share with all species on earth, nor with all vertebrates or mammals, but only with those which, like us, live in groups whose social coherence provides the necessary environment 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 evolution. 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

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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 communities 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 territorial 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, security, 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 disinclination 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 concerning 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.).

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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 Approaching 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 individuals (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 competition (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 (possibly the alpha) approached and showed her interest in eating the banana. Rather than taking 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 pursued 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.

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Many primates, not only our closest cousins, share the capability to cooperate, a strong aversion against inequality, a concern for status (recognition), and an inclination to observe social rules (for a hierarchical order of status, food distribution, 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 parallels 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 isolation, while persistent deviants who threaten the integrity of the group have suffered 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 development, as the group, in turn, is the necessary condition for the individual’s survival. 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 recognition, reciprocity, practices of sharing and care, and punishment of inappropriate 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 particular 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 evolutionary 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).

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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 function 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 members 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 interband 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 agriculture-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 individuals by treating strongly deviant “big egos” through ostracism or even execution (Boehm 2001, pp. 27 f.). Human hunter and gatherer societies are more egalitarian; 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 consensus 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 positive experience of being treated justly and the negative emotions connected with

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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 disproportionately 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 superior 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 terrifying 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 retribution 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) deviants 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 competition/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 certainly served another important function, namely preservation of the coherence of the group.

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Fourth, keeping the group together. This is no trivial task given the inevitable 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 survival 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 messenger 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 participation (de Waal 2015, p. 49; Boehm 2001, 2012).

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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 selection 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) rulers, 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 “cooperation” of several regions which can communicate neuronally or biochemically (for a survey of the roles of different parts of the brain see Schreiber 2011). Biochemical connection means that regions in the brain trigger the flux of biochemical “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

7See

Pinker (2011, Chaps. 8 and 9), and Hutchison and Bleiker (2014) for useful references from neuroscience from an IR perspective.

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(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 person concerned to strike back against the perceived source of unfair treatment (Svirastava et al. 2009). These findings help to understand the everyday experience 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 follows 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 disposition 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 readiness 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 completed only after birth and as a result of experiences in early childhood (Davidson 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 produce 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 Druckman 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

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p­ ostulated recognition as the third type of human justice concern, apart from distributive 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 recognition) 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 bonding 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 dispositions 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 condition 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 greatest stake, and toward which he/she is hard wired to strive, which is a major component of our emotive and cognitive apparatus (see also Dutton 2006).

8On

the meaning of recognition in international relations, see Daase et al. (2015).

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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 feelings of alter-justice, that is, to empathize with positive or negative justice experiences 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 enables 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 satisfaction 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 egotistical, 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 perspectives 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 adolescence (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 humansocial 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).

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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 (Loewenstein 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. Sociologists 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 seriousness 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 members which instantiate justice principles. Sociological justice research has identified 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 solutions 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 equality” (Lamont and Favor 2017). Rawls postulated that inequality is legitimate only to the degree that it fosters disproportionate gains for the poorest. The most popular idea about justice as revealed in polls is a combination of the justice ­principle

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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 adhering 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, neither of the players receives a reward. According to economic rationality, the second 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 selfrelated 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 cultures in a major comparative study featuring societies from Latin America, Papua New Guinea, Mongolia and Africa. At the same time, cultural and market structure differences contribute to considerable variation in behavioral detail (Henrich et al. 2004). Since the original findings were published, the rapidly growing field of experimental/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

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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 considerations to which justice issues belong. We are equally accustomed under rationalist 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 dominance, submission, and resentment of dominance side by side. Together with our dispositions for prosocial attitudes such as empathy, compassion, a sense of fairness, and the drive for cooperation and community, we harbor in our brain structure dispositions to egotism, nepotism (that is, to show prosocial behavior and accompanying emotions only to a small ingroup) and universally-directed altruism. These dispositions are stratified as they manifest themselves in decreasing strength the wider the circle of possible beneficiaries is. All this is not simply culturally 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).

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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 discussion indicates that our dispositions are varied and contradictory enough to present the basis for “radically different behavioral outcomes at the level of the phenotype”, 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 dealing 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 essential 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 neuroscientists 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 common 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).

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The collective pursuit of a group’s justice claims governs intergroup competition 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 escalatory 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 distinction 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 automatically 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 context, 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 egotism, nepotism and altruism should not be taken as involving discrete alternatives, 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 middle-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

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

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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 nationalism 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 prejudices against the “other” are of utmost importance for peacemaking and peacebuilding. Experimental psychological studies have shown that relatively simple pedagogical practices such as perspective-taking (e.g., writing an essay on a conflict 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 prejudiced 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 participant’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 distributed across two identity groups. These practices for enhancing empathy towards groups previously regarded as hostile, alien or unpleasant could help to understand 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 reading 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

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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 therefore apply pressure in two opposite directions. Justice is part of overall morality 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, coincide 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 bitterly 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 altruism, nobody would be willing to sacrifice his/her life for the sake of the community (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 disputes 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 conflict difficult or impossible and motivate parties to take recourse to violent behavior (Welch 1993; Müller 2013). In the realm of retributive justice, threatening the perpetrators of atrocities with legal prosecution, for example through the International Criminal Court, may not only sustain motivation to continue violent conflict rather than seek compromise, but can also create secondary justice conflicts through resentment among followers or supporters of perceived arbitrary prosecution 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 subjected to, and differs among cultures. Different traditions bring about different preferences for principles of justice and different ways of interpreting how they

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are to be applied: culture matters in presenting the frame in which our dispositions 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 theorists 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 dogmas that are hard to overcome, thus influencing political preferences and stimulating a missionary drive towards universalization directed against the justice ideas reigning elsewhere. There is another area where the human inclination to invest emotions in justice claims against others can trigger an escalatory spiral of violence: an integral 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 governed 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 individual 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, alternatively, 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).

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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 performance 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 Steven 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 compromise-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. Consequently, 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 reputation, 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

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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 degenerate 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 Steven 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 bifurcated 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 Relations” 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 valuation 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

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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 suggests a change in methods from deductive to inductive research, based on empirical 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 position 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 rationalist 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 references attached to the introductory article. An alternative standard model is not admitted by those standing guard over the hegemonic paradigm.

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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 elsewhere. Neither economic materialism nor preference-based rationalism, neither “economic man” nor “ideational woman” will stand the test. They can serve, usefully, as ideal types to explore empirical deviations from their idealized assumptions. 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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Lebow, R. N. (2010). Why nations fight: The past and future of war. Cambridge: Cambridge University Press. Lerner, M. J. (1977). The justice motive. Some hypotheses as to its origins and forms. Journal of Personality, 45(1), 1–52. Liebig, S., & Lengfeld, H. (2002). Interdisziplinäre Gerechtigkeitsforschung. Zur Verknüpfung empirischer und normativer Perspektiven. Frankfurt a. M.: Campus. Loewenstein, G., Thompson, L., & Bazerman, M. (1989). Social utility and decision-making in interpersonal contexts. Journal of Personality and Social Psychology, 57, 426–441. Magraw-Mickelson, Z., & Gollwitzer, M. (2018). Relational and group collective selfresponses to observed victimization across cultures. Social Justice Research, 31, 113–132. Markovsky, B. (2017). Social justice through multidisciplinary lenses: A review essay. Social Justice Research, 30, 106–116. Mathur, V. A., Harada, T., Lipke, T., & Chiao, J. (2010). Neural basis of extraordinary empathy and altruistic motivation. Neuroimage, 51, 1468–1475. McCullough, M. E. (2008). Beyond revenge: The evolution of the forgiveness instinct. San Francisco: Jossey-Bass. McDermott, R. (2014). The body doesn't lie: A somatic approach to the study of emotions in world politics. International Theory, 6, 557–562. Mearsheimer, J. J. (2001). The tragedy of great power politics. New York: Norton. Mercer, J. (2010). Emotional Beliefs. International Organization, 64, 1–31. Mercer, J. (2014). Feeling like a state: Social emotion and identity. International Theory, 6(3), 515–535. Monroe, K. R., Hankin, J., & Bukovchik Van Vechten, R. (2000). The psychological foundations of identity politics. Annual Review of Political Science, 3, 419–447. Monroe, K. R., Martin, A., & Ghosh, P. (2009). Politics and an innate moral sense. Scientific evidence for an old theory? Political Research Quarterly, 62, 3614–3634. Morgenthau, H. J. (1968). Politics among nations: The struggle for power and peace. New York: Knopf. Müller, H. (2009). Building a new world order. Sustainable policies for the future. London: Haus. Müller, H. (2013). Justice and peace. Interdisciplinary perspectives on a contested relationship. In G. Hellmann (Ed.), Justice and peace: Good things do not always go together (pp. 43–68). Frankfurt a. M.: Campus. Müller, H. (2014). Evilization in liberal discourse: From Kant’s “Unjust Enemy” to today’s “Rogue State”. International Politics, 51(4), 475–491. Nam, H. H., Yost, J. T., & Feldman, S. (2017). The neurobiology of fairness and social justice: An introduction. Social Justice Research, 30, 289–299. Owen, J. M. (2010). The clash of ideas in world politics: Transnational networks, states, and regime change, 1510–2010. Princeton: Princeton University Press. Pinker, S. (2011). Gewalt. Eine neue Geschichte der Menschheit. Frankfurt a. M.: Fischer (engl. original edition: The better angels of our nature: Why violence has declined. New York: Viking). Platow, M. J., Hunter, J. A., Branscombe, N. R., & Grace, D. M. (2014). Social creativity in olympic medal counts: Observing the expression of ethnocentric fairness. Social Justice Research, 27, 283–304.

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Part II Justice in International Regimes and Organizations

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Understanding the Puzzle of Unequal Recognition: The Case of the Nuclear 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 international recognition struggles as emancipatory, that is, as directed against (perceived) 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: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_3

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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-Proliferation 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 possession of nuclear arms. Although this unequal distribution of nuclear rights has been criticized as “discriminatory” ever since the inception of the treaty, the latter 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 unequal 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 recognition 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 programme can be usefully understood as recognition struggles, I contend that recognition 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.

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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 manifestations 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 Sharman 2005; Lake 2009; Reus-Smit 2005; Weber 2000). Scholars have advanced a range of explanations for the existence of “hierarchy within anarchy” (Donnelly 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 political order guaranteed by the latter (Lake 2009, p. 29). In other words, the unequal 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 civilian 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 interpreted as an attempt to resolve, in the long run, the “security dilemma” that nonnuclear 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.

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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 perspective, it is precisely the nuclear states’ remaining “margin of power” that enables 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 interpretation 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 questions that are hard to answer from a rationalist perspective focusing on issuespecific 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 majority of non-nuclear NPT members which never had the intention—or indeed a realistic prospect, given their economic and technological resources—of acquiring 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, including not only erstwhile or current nuclear threshold states, but also smaller countries 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 themselves. 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 dissatisfied 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

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can hardly be explained with the argument that Article VI resolved their security 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 weapons 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 government, for instance, still considered an independent nuclear capability as indispensable 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 economic 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 disarmament 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

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three basic patterns of recognition: (1) love, a positive response to the individual’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 personal 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 recognition 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 psychological 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 helpful. To her, misrecognition as a form of societal injustice must not be understood primarily as a personal psychological experience but as an institutionalized pattern 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 unnecessary to resort to psychologizing explanations of state behaviour. At the same time, it appears plausible to retain Honneth’s distinction between love (understood 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 particular 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 independently 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 understand the theoretical approach used here as being per se opposed to a concept of

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instrumental rationality and to a sophisticated understanding of rational institutionalism. 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 institutionalist analyses. So, if states have an interest in the recognition of equal rights and of their individual identities and achievements, how does this account for NNWS’ acceptance of the NPT? The answer I want to propose lies in understanding the multidimensionality 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 recognition struggles on the NPT’s creation and evolution and by integrating different dynamics into an overarching recognition theoretical framework. Methodologically, 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

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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 commitments 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 General Assembly 1965). A Polish government official, speaking at an academic conference 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 seeking should not provide for unilateral obligations. It should not enjoin nuclear abstinence 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 substantive 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 commitment was primarily symbolic and that the chance of their eventual complete nuclear disarmament was small.

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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’ perceived “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 legitimacy 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 interpreted 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 created 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 newcomers 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

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right to participation in the solving of the relevant problems” with a “multilateral” 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 widespread 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 Proliferation 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-discriminatory 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 preserving the existing agreements on arms regulation and disarmament, which constitute 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 consensus-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

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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 dramatically reduced the leverage of non-nuclear states over the treaty’s future evolution, 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 conditioning treaty extension upon a strengthened review process would ensure “permanence 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 suffered” (Epstein 1976, p. 108). The issue was (partly) resolved through the introduction 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 nonnuclear states simply subordinating their recognition needs to issue-specific costbenefit 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

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stance on the NPT is particularly hard to explain in terms of issue-specific costbenefit 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 rehabilitation, 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 member 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 substantive 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.

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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) transform 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 military 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 addition, “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 concluded 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 commercial 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

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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 hierarchy, go only part of the way in explaining why non-nuclear states agreed to a profoundly unequal order. In particular, they fail to explain why both small non-nuclear states and major nuclear threshold states placed strong emphasis on NWS disarmament 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 distinguishing 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 disarmament dimension softens the unequal distribution of rights while also recognizing 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 disarmament article, but also in a range of other institutional compromises—regarding the forum in which the NPT was negotiated, its review process, and its regulations 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 individual national achievements and identity traits. These additional recognition benefits 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

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n­ egotiations. The continued outspoken resistance of the remaining NPT “holdouts” 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 procedural 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 nonnuclear states arrived at a different conclusion in weighing the positive and negative 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 recognition theory to international politics. The key insight that emerges from the NPT case is that social recognition is complex, and so are recognition implications 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 community

Privileged groups of great/middle powers

United States

Recognition of equal NWS disarmament substantive rights obligations

[denied: NW for Germany, Sweden, and other threshold states]

Recognition of equal NWS disarmament participatory rights obligations ENDC negotiations NTP review process Safeguards compromise German rehabilitation as member of the international community

ENDC participation [denied: ENDC non-participation for for Sweden Japan] [denied: ENDC non-participation for Japan]

Recognition of Sweden’s traditional national individuality ‘peacemaker’ image Germany’s new ‘peace-loving’ character

Informal ENDC leadership of Sweden

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In the case of the NPT, acceptance of the treaty has implications for the recognition 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 implications 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.

References Agné, H., Bartelson, J., Erman, E., Lindemann, T., Herborth, B., Kessler, O., et al. (2013). Symposium ‘The politics of recognition’. International Theory, 5(1), 94–107. Albin, C. (2001). Justice and fairness in international negotiation. Cambridge: Cambridge University Press. Bellany, I. (1977). Nuclear proliferation and the inequality of states. Political Studies, 25(4), 594–598. Carnahan, B. M. (1987). Treaty review conferences. The American Journal of International Law, 81(1), 226–230. Daase, C. (2003). Der Anfang vom Ende des nuklearen Tabus. Zeitschrift für Internationale Beziehungen, 10(1), 7–41. Dhanapala, J. (2005). Multilateral diplomacy and the NPT: An insider’s account. Geneva: UN Institute for Disarmament Research. Dombey, N. (2008). The nuclear non-proliferation treaty: Aims, limitations and achievements. New Left Review, 52, 39–66. Donnelly, J. (2006). Sovereign inequalities and hierarchy in anarchy: American power and international society. European Journal of International Relations, 12(2), 139–170. Du Preez, J. (2006). Half full or half empty? Realizing the promise of the nuclear nonproliferation treaty. Arms Control Today, 36(10), 6–12.

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4

The Role of Justice in Compliance Behavior: Germany’s Early Membership 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 arrangements is continuously growing. Justice is a concept central to political theory and increasingly salient in disciplines such as brain research (e.g. Singer 2007), primate 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: [email protected] A. Melamud · H. Müller  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany E-Mail: [email protected] H. Müller E-Mail: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_4

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(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 interpretation 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 objective, external ideas about justice as applied by the academic observer. In order to illustrate the proposed connection between an actor’s justice perceptions and its compliance behavior, we present the case of Germany’s compliance 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 behavior. 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 chapter 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.

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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 understanding of the human as individualistic utility-maximizer. Such a simplistic view of human behavior, however, lags behind insights gained in a great variety of scientific disciplines, including but not limited to brain research, primate research, evolutionary 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 throughout 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 central theme from their empirical work in favor of the homo economicus in various 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 arguments are exchanged as well; only this semantic environment makes “concealment” 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 normdriven, 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).

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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 justice. 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. Interest is rather a “cluster concept” with cognates such as beliefs and desires intimately 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 seminal 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 justice 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 Druckman and Albin (2011). According to Albin, justice concerns are present throughout 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 equality, 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 parties 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, differing explanations as to why states comply (examples of compliance literature surveys include Simmons (1998), Underdal (1998), Koh (1997)). Depending on the

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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 legitimacy 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 legitimacy 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 generally accepted principles of right process” (Franck 1990, p. 24). A strictly procedural 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 procedural 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 (legitimacy and distributive justice, respectively). Yet the particular perception that actors have of the rules’ fairness is not explored, nor the way in which these perceptions influence the actors’ comprehension of the agreement, its rules, and their behavior as parties. The legitimacy/fairness approach to compliance, while recognized as a meaningful strand in compliance research, has not been sufficiently elaborated beyond the monumental works by Franck and few others.

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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, compliance 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 obedience”, 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’ compliance behavior due to their capacity for clarity and precision, they nonetheless leave a space for interpretation by the actors themselves: “states, instead of simply ‘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 members’ interpretation of the rules is, and how it diverges from competing interpretations. 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 empirical 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 understanding 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 identified 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

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regime and its rules, the basic undertaking is to identify their own justice perception. In order to distill an actor’s justice perception, their utterances must be analyzed 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 entitlement 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 behavior 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 behavior, 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 competed 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 pointing 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,

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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 regarding the role of justice in compliance, nor to imply that the relationship identified in this specific case is necessarily generalizable to others. Rather, we aim at establishing plausibility of justice having an impact. If justice impacting on compliance is indeed observable here, we contend, expanding the investigation to different 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 understanding 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 contentions 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 supporter 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 prevent 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 statements 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 Conferences) 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.

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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 behavior (e.g., Lowrance 1976; Kaiser 1978). The inclusion of this traditionally overlooked 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 manufacture on its territory, inter alia, any atomic weapons, and furthermore specifically 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, Germany 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 obligations. 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 cooperation with developing countries, which it considered as inducing nuclear restraint (Müller 2003, pp. 16 f.). It considered itself (and was indeed viewed as) a “supporting 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

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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 nonproliferation 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 (Müller 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 insufficient. 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 adherence to the NPT.

4.5.2 NPT Justice Contentions Germany, from the initial phases of NPT negotiations, voiced clearly its discontent 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 obligations. These categories rise in specificity from very general grievances to particular 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

tive.

Müller (2010) and Tannenwald (2013) for analyses of the NPT from a justice perspec-

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­ 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 “classic 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 superpowers, 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 Bundestag 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 German 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.).

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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 dissatisfaction with the gross inequality in the distribution of obligations under the NPT. While German politicians eventually accepted the necessity for the NNWS having 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 meritbased 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 difficulties, 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 exclusively 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 civilian 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 worldwide negotiation.”11 Particularly the technologically advanced countries, such as Germany, were concerned of “being handicapped in world nuclear competition 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 Majonica (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).

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(Goldschmidt 1980, p. 74). As declared by German Foreign Minister Brandt during 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 competitors would not be in a position to guarantee the supply of nuclear fuel to customers 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, Germany articulated many proposals—or rather demands—for defining a fairer distribution 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 obviously 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.

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and have-nots for all times.”16 German politicians called for a concrete commitment to be included in the NPT in the interest of balanced treaty undertakings: 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 foreign 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 preamble. Instead, the NWS’s disarmament performance should be reviewed and evaluated 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 opposing 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 parliamentarians with the implementation of Article VI never faded: in 1985, the SPD spokesperson 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. 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 negotiations 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 disarmament 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. 17Kurt

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s­ afeguards for the nuclear industry.24 Germany was also concerned with the diffusion 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 technological advance.”25 Foreign Minister Brandt considered the transfer of technological 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 disadvantages, 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 proponents 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 concerned 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 formulated an “entitlement to participate in the NWS’s gain of experience and knowledge that stem from military applications of nuclear energy and that advance

24See,

for example, Kurt Birrenbach (CDU), Bundestag (08.11.1973), p. 3713. 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 Bundestag, 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. 25Willy

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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 reciprocal obligation of safeguards for the peaceful activities of NWS. The US and UK pledged, on December 1967, to apply safeguards to their peaceful nuclear activities, “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” (Goldschmidt 1980, p. 78). Such an expectation means, in practical terms, that no limitations 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 knowhow. 31Besides profiting from “spin-offs,” German politicians also called for more information 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), Bundestag, (08.11.1973), pp. 3710–3711.

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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 technology were highly criticized by the international community as potentially conducive 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 limited 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 contracting 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 program).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 German 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.

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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 responsible, 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 proscriptions (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 inspections 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.).

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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 championed 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 Conference 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 possible 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-proliferation, 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 September 1985, NPT/CONF.III/C.III/SR.4.

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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 commerce. 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 “economic 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 justified 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 burdened 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).

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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 cooperation” was based on the idea that through civilian nuclear cooperation, incentives 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 knowhow 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 technologies” 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 continue 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 jeopardized 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. 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. 42Alois

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the integration of industrializing nations is crucial: “This integration entails transferring technology, but exchanging that gesture for good will and promises of restraint from the recipients. In adopting this approach Germany is simply following 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 considered “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 established, particularly since it changed its behavior beginning in the late 1980s, despite its continued economic interests in exports. There were clear and unconditional 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 hedging strategy. Rather, Germany’s non-compliance was instrumental in the nuclear

45Hans

Werner Lautenschlager (Assistant Secretary of State), Aufzeichnung des Ministerialdirigenten Lautenschlager betr. Zusammenarbeitsabkommen mit Brasilien, 16.04.1975, quoted in Möller (2006, p. 394). 46Alois Mertes (CDU), Bundestag (20.02.1974), p. 5260 f.

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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 obtaining nuclear weapons for itself. In the late 1960s, Germany discontinued research activities which might have pointed in the direction of weaponization. Furthermore, the integration of its centrifuge enrichment technology with that of the British and Dutch in a joint venture, URENCO, made it much harder for Germany 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 policy 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: Germany wanted to develop the full fuel cycle and to export it, regardless of the proliferation 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 pronouncements 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 economics. 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 contend with enormous reputational costs. But the deal itself was highly risky in economic 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

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consequences for the budget. The huge deals, promoted with high emphasis, were in fact high risk given the economic (Brazil, Argentina) and political (Iran) viability 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 penalty 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 Department of Commerce in the late 1980s and early 1990s targeted individual companies 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 deviations 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 superficial. This demand was almost entirely of a psychological nature: Realizing that safeguarding civilian facilities in NWS is irrelevant in strategic terms (since safeguarding 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 anyhow 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 officials 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 perspective 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 Kernwaffen vom 1. Juli 1968 und Verifikationsabkommen IAEO-EURATOM vom 5. April 1973, Deutscher Bundestag, Drucksache 7/2375, 11.07.1974.

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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 without taking into consideration Germany’s substantial justice grievances.

4.6 Conclusion The German case establishes the plausibility of the impact of justice on compliance 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 concerns were at play, rather that justice concerns informed and even framed Germany’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 obvious 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 presented 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 variation in justice principles by which such claims are justified, and the distribution of preferences for justice principles across countries and regions. For such research,

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we do not expect “justice” to acquire a monopoly explanatory position for compliance behavior. But it would be surprising if it would not contribute substantially to a more comprehensive explanation of such behavior.

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Gender Justice in Multilateral Negotiations: The Case of SGBV in the 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 entrepreneurs 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 criminalization 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 presented 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: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_5

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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 negotiations leading to the Rome Statute and the establishment of the ICC are a paradigmatic 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 contestation of these norms in more detail. Consequently, the theoretical Chap. 2 draws on insights from International Political Theory on Global Justice. To concentrate 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”

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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 indicate 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 situations 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 cosmopolitanism3 starts from an individualist and universalist assumption. Following a moral cosmopolitan perspective, human beings have a positive obligation to prevent suffering 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 contextual 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, feminist 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.).

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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 international 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 Statute, 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 concern 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 symbolizes 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 comprehensive 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

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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 intervening in conflicts. Proponents of liberal internationalism argue even more openly for forcefully intervening in conflicts if severe human rights violations have been acknowledged (Buchanan and Keohane 2004, p. 4 f.; Evans and Sahnoun 2002, p. 101).

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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 narrative—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 subordination. 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)maleness. 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-perpetrator conceptions of sexual violence against women and instead focuses on structural 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 criminal 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

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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.

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well as the level of culpability. While killing might be legitimate under some limited 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 discrimination 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 elements 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). Restorative 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 communitybased 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 violence against women, and in particular rape, was commonly perceived as a property 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 International Humanitarian Law (IHL) which sought to protect civilians in conflicts were established. However, the provisions which in part were intended to protect women from sexual violence remained vague. The Lieber Code of 1863, for example, prohibited acts of wanton and unnecessary violence which also

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included rape.7 The different Hague Conventions further advanced the International Humanitarian Law and the rules of war. Despite these regulations for warfare, the prohibitions against sexual violence were primarily based on the notion that women deserved protection due to their being the property of men. This perception 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 population functioning (Dixon 2002, p. 703). They became targets as part of organized 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 interviewing victims of sexual violence. They pursued a multitrack strategy by spreading the message globally to women’s groups but also directly by targeting the International Criminal Tribunal for Rwanda (ICTR). The initiative finally succeeded 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 Yugoslavia (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 attention 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

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37 of the Lieber Code reads as follows: The United States acknowledge and protect, 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).

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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 prosecuted 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 criminal 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 prosecuted 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 dignity and bodily integrity of the victims (Erb 1998, p. 422). In the court decision against Akayesu in the Rwanda Tribunal, the Trial Chamber managed to clearly differentiate between rape and other forms of sexual violence 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 inherent in certain circumstances, such as armed conflict”. With the two tribunals, the ITCR in Rwanda and the ITCY in the former Yugoslavia, the international perception of sexual violence had changed. The discourse finally shifted from a perception 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 various 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 humanity. 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 Formula 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,

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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 recognition 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 people 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 negotiations 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 sexually-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 gravity 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 humanity 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 lawyers 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 categorizing rape only as a crime against humanity, because such a definition implied

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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 individualize 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 PrepComs 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 statute 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 causing 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 prosecuted 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-international 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 sterilization 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.

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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. Gender and the definition of SGBV became two seriously debated potential stumbling 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 triggered 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. Gender 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 opponents finally managed to restrict the definition of gender to biological sex differences 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 recognition 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 pregnancy 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.

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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 compromise, the majority of states had to give into the concerns of the few states which disliked aspects of gender justice.

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The Vatican sought to delete enforced pregnancy from the draft statute on the grounds that it threatened to criminalize enforcement of national laws discouraging 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 question 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 community 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 further 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 recognition of gender crimes as crimes against humanity. Eleven Arab states inserted a proposal that gender crimes should not be recognized as crimes against humanity 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 capacity not including birth control measures”, China sought to include the phrase “­deprivation not intending birth-control measures with short-term effect” in order

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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 rehabilitation–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 procedural 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 institutionalization 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 complements 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

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of immense difficulties in proving the charges beyond reasonable doubt—in particular 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 (International 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 populations, 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 SubSaharan 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 prosecution 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 military 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

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17 (1) (d), International Criminal Court (2002). the case of Mudacumura the arrest warrant is still pending, while the Mbarushimana 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. 11In

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of crimes by his subordinates. The former Lord’s Resistance Army commander Dominic Ongwen (Uganda) has been on trial since December 2016 and was originally 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, sexual slavery and enslavement.13 The above material provides some initial insight into the difficulty of putting 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. Regarding SGBV, the ICC made many efforts to prosecute perpetrators for their individual 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 conflict, and massive sexual violence was located in 17 countries (Cohen and Nordas 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 conflict. 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 sterilization, 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).

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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 recognized 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 perpetrators of having committed sexual and gender-based crimes remain inhomogeneous 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 prominent 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/criminal. Moreover, the ICC practice has indicated the particular difficulty of charging 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 perspective 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 systematic 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 postconflict situations—facilitate sexual violence such as poverty, displacement, unemployment, lack of housing or food insecurity (Ertürk 2007, p. 10).

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Institutional Justice as a Condition for the Regional Acceptance of Global 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 relation 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: [email protected] D. Peters E-Mail: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_6

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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 leadership of the non-permanent Security Council member South Africa and emphatically 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 academia. 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-Western region to embrace the R2P most clearly. Given that other regions remained skeptical of or even outright rejected the R2P, the entrenchment of the responsibility 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 principles 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 support 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

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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 created 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 pattern 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 protection 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 security 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 interventions allowed global protection norms to be implemented in the first place. This illustrates the rising importance of regional security organizations for the architecture of global governance. Since the end of the 1990s, many regional organizations 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 American Nations (UNASUR)—have been created with the explicit goal of coordinating 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). According to the concept of “new regionalism”, their growth can be seen as a reaction to normative adjustment pressures, which have surfaced along with the restructuring 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

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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 twosided 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 understanding 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 decision-makers and is a goal that they actively pursue. The situation in the neighboring 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 dictated 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 neighboring 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 understanding of how regional actors relate to norms for global governance. This theoretical perspective on the politics of order entails far-reaching political 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 Federal Government, for instance, has emphasized the inherent potential of RSOs

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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 responsibility 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 consultation 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 organizations 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 efficiently 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 limiting 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 accordance with the central argument of this chapter, RSOs can best contribute to stabilizing 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 driving force lying at the core of the implementation of global standards. Socialization 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, structural factors tend to be decisive for the success of socialization. Besides the

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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 inception through a gradual dissemination and up to a certain tipping point. Thereafter, 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 essential 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 markedly negative reaction to the norm’s first application highlights clear differences in the interpretation of what R2P actually entails. Accordingly, even though the

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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 questions 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 experimental economics. This research focuses on perceptions of justice in social relations 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 unequals 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 realworld 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 calculations. Rather, perceptions of justice likewise have an influence on their actions (Adams 1965). Justice, and especially the recognition of injustice, even motivate

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actions to a particularly large degree. A perception of justice is closely related to socially oriented behavior and encourages the willingness of individuals to voluntarily contribute to the production of collective goods. Actors often respond to perceived injustice through negative actions such as protests, refusal to cooperate, sabotage and depression. In short, the behavior of real people does not correspond to the assumptions made by models of rational and self-interested actors developed by economists. Rather, people appear to be a hybrid species, “a crossbreed 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 selfishness” (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 recognition 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 further 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 exploitation 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. Distributive 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

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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 procedural 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, procedural 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 consistency in the application of general rules, the impartiality of decision-making bodies, 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 decision 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 justice operates independent of outcomes. Evidently, justice deficits in the distributive dimension can be compensated for by strengths in the procedural dimension (Greenberg 1990, p. 406). Overall, then, empirical justice research postulates that people are evolutionarily 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 concrete distributive decision as being just or unjust not only depends on the distribution 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 questions: (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

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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 individual 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 existent individual and acknowledged justice principles onto relations between larger groups or states. Socio-psychological justice research has also produced empirical 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 significance 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 suggestion 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 immutable. 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 outsiders, 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 consideration. On the other hand, the boundaries of justice vary based on the social interactions 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 interactions and externalities.

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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 expectations of justice represent a resource that allows conflicts about individual decisions 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 crucial and renders the acceptance of general rules all the more dependent on procedural 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 significantly 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 meaning, 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.

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In the following section, we investigate the reactions to both protection norms by African states in order to determine whether the differing reactions are better explained by the normative match, as suggested by socialization and localization 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 crises 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 intervene 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 organization 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 surprising. 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 internal 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 intervention, 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 dangerous gateway for external interventions on the African continent.

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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 countries 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 populaces 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 decision-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 Security 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 condition 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 PanAfrican 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 altogether but rather to enable African participation and control capacities in order

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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-continental 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 principles 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 governments 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 disregarding 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 international 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 ­

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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 Resolution 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 pressure 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 dispatch 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 dissonance as soon as the first bombs fell on 19 March 2011. The coalition of willing 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 negotiation 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 coalition’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 existing 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,

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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 resolving 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 participation and control ignored and the AU’s efforts undermined, perceptions held by African actors were reflected in harsh and defiant reactions as well as statements 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 members. 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 Transitional Council], they call them ‘technical advisors’” (quoted in Tull und Lacher 2012, p. 9). Museveni argued that “Western countries always use double standards. 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

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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 according 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 particularly 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 statement signed by over 200 African intellectuals, stating that the Security Council had allowed a coalition of powerful and willing states to usurp the implementation 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 formal 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 African 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 opportunity 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

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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 organizations 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 Commissioner on Human Rights (OHCHR), the Department of Peacekeeping Operations (DPKO), the Department of Field Support (DFS) and the Office for the Coordination of Humanitarian Affairs (OCHA) —, the UN used this concept to respond to the increasingly multi-dimensional character of peacekeeping missions in domestic 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 mission with the explicit mandate of protecting civilians. Since then, fourteen additional 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 reinterpret them. Accordingly, a demand for consent would not imply that conflicting parties may manipulate the implementation of the mandate, nor would impartiality 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 Secretary General Kofi Annan. It contained the recommendations of a panel of high-level experts regarding the future of UN peace operations.

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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 protecting civilians from physical violence and at creating a benign legal and humanitarian 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 contrast 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-continental 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 Horizons” 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 responsibility 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 responsibility, 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 elements are themselves engaged in physical violence against civilians (United Nations OCHA/DPKO 2011, p. 3).

This development held the potential of threatening incumbent regimes. African 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).

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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 conflict 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, however, allowed the conflict to escalate. While independent election observers foresaw 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 strengthened 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-evolution 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 International Support Mission to Mali (AFISMA) with this goal. The protection of civilians 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 planning 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

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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 subregional organizations have been accepting of the trend towards more robust and independent approaches to UN missions in Africa. The final step in this development 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 organizations and states to only be temporary and the result of the fact that the financial 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 mechanisms 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 peacekeeping. In a report about the partnership between the AU and the UN during 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 consultation 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

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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 political 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 creation of the intervention brigade for MONUSCO was initiated by the subregional International Conference of the Great Lakes Region (ICGLR) and received support 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 carried 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 contrast, 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 justice 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 implementing 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 protection 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

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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 criticized 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 forward 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, however, reflect any fundamental opposition to the possibility of making state leaders 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-continental 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 confirmed in the cases. The R2P and the POC norm hardly differ in their adaptability 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 globalization 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 principles 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-determination. 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 institutional justice, the devolution of responsibility to the regional level represents an

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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

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R2P Ten Years on: Unresolved Justice Conflicts and Contestation Gregor Peter Hofmann

7.1 Introduction In international relations (IR) theory, the Responsibility to protect (R2P) is conceptualized 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: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_7

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on a state’s capacity and willingness to prevent atrocities is challenging a “pluralist ethics of equal state sovereignty, self-determination, and non-intervention” (Jackson 2000, p. 14). With many states being uncomfortable with external interferences 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 oversimplification of the complex contestation dynamics around the R2P norm set. Recent research in constructivist IR theory turned to the contestation of international 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 conflict with a new international norm (Acharya 2004), cultural background knowledge 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 behaviour are the object of research in social psychology (Tyler 2012), negotiation research (Tyler and Blader 2004; Grasso and Sacchi 2011), and even in experimental 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 expectations 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 conceptualized 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 contestation of the validity and application of the R2P norm set. In order to assess the plausibility of this theoretical approach, I combine the literature on norm dynamics and

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norm contestation with the growing literature on justice in international negotiations. 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 underpinnings 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 material 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 system 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 general, 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 different actors (Wiener 2008; p. 50; Krook and True 2012, p. 106). Norms remain contested throughout their life cycle. Their content and interpretation may change

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over time, since the dominant interpretation might be challenged during the process of diffusion (Krook and True 2012, p. 108). Contestation is especially probable 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 legitimacy 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 contexts (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 intersubjectively 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 originate, 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 contestation: 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.).

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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 conflicting 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 international 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 important 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 international 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 reasoning 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

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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 international 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 perceived 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 studies 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 stumbling block for the dynamic development of arms control norms (Müller and

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­Wunderlich 2013). Other studies on the impact of justice considerations on international 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, outcomes 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 difficult to mitigate. Having said that, I hypothesize that if conflicts between different justice claims uttered by states remain unresolved during the negotiations over the emergence 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 situation—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-structured 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 during 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 Assembly 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).

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If justice is such a metanorm that informs actors’ perception of the legitimacy 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 interests—as an indicator for the influence of justice claims (Hofmann and Wisotzki 2014). Justice claims refer either directly to justness/unjustness, fairness/unfairness, etc. or to a demand to rectify “disparities between perceived entitlements and assets” (Welch 1993, p. 41). I differentiate between (re)distributive, procedural, 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

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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, Pakistan, Russia, Venezuela, Viet Nam, Zimbabwe, African Group, and Non-Aligned Movement. 6Armenia, Australia, Belgium, Botswana, Bulgaria, Canada, Chile, Estonia, France, Guatemala, 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.

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of citizens should not be used as a pretext to undermine the sovereignty, independence 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-intervention. 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 prominent 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 protection 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 emphasized 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 supporters 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, including demands for equal treatment of crises and of different states. Around one third of the demands for procedural justice were directed to questions of equality 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.

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standards and selectivity in the UN Security Council’s (UNSC) work. States like India, Pakistan, Cuba and Iran pointed to power asymmetries and double standards 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, criteria 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, especially 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 appropriate, 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 interventions 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 interpreting 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 procedural 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 justice claims.8 However, the underlying conflict over the relative status of statist visà-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.).

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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 entitlements emphasized by the different groups as back in 2005, with procedural justice claims being more important than back in 2005 (Fig. 2). R2P supporters emphasize humanitarian concerns, human rights and a collective 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

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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 qualitative 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 warranted, 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 development 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.

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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 resolutions, 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 situation (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 Algeria dismissed the term “collective responsibility” and claimed together with Brazil 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 informal 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 peacekeeping 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).

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of R2P (Ki-Moon 2009). The president of the General Assembly, the Nicaraguan 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 unlawful 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 normative 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.

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liberal democracy by military means”.14 Hence, this points once more to an intermingling 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 narrow 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 application 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 governments 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 dominated 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 community 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 problematic 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 historical 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 Informal 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 statements in 2009, 67 codings in 8 statements in 2012.

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one fourth in the share of claims related to issues of procedural justice. As a consequence 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 chronological 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 procedures 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 resolutions on Syria tabled in the UNSC. As a consequence, a procedural justice claim to restrict the use of veto reemerged: 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.

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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 conduct 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 Russia 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 implementation 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). However, new initiatives in the field of prevention, like the Latin American Network for Genocide and Mass Atrocity Prevention or Global Action against Mass Atrocity 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 connecting 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

2014.

interview with a diplomat from a member state of the EU, New York, September

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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 contestation influences its development. Justice claims are frequently used in negotiations 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 acceptance 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 socialization strategies by norm proponents (new focus on prevention) and to the development 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 international norm set that is actually implemented on the ground—instead of looking 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

2014.

interview with a diplomat from a Central American country, New York, September

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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 considerations in comparison to other material and ideational factors.

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Garwood-Gowers, A. (2016). China’s ‘Responsible protection’ concept: Reinterpreting the responsibility to protect (R2P) and military intervention for humanitarian purposes. The Asian Journal of International Law, 6(1), 89–118. GCR2P (2013). UN Security Council veto reform. http://www.globalr2p.org/our_work/ un_security_council_veto_reform. Accessed 26 Jan 2014. Grasso, M., & Sacchi, S. (2011). Procedural justice in international negotiations on climate change. CISEPS Research Paper (Vol. 6). Grobe, C. (2011). Die Sozialisierung des Homo oeconomicus—Zur Neudefinition ratio­ nalen Handelns durch die experimentelle Methode. Politische Vierteljahresschrift, 52(4), 714–744. Hofmann, G., & Wisotzki, S. (2014). Global governance efforts in tension between humanitarian concerns and statist sovereignty rights. International Negotiation, 19(3), 487– 517. Hurrell, A. (2003). Order and justice in international relations: What is at stake? In R. Foot, J. L. Gaddis, & A. Hurrell (Eds.), Order and justice in international relations (pp. 24–49). Oxford: Oxford University Press. India (2012). Statement at the 2012 UN General Assembly informal dialogue on R2P, 5 September. http://responsibilitytoprotect.org/India.pdf. Accessed 27 Oct 2012. Jackson, R. H. (2000). The global covenant: Human conduct in a world of states. New York: Oxford University Press. Jetschke, A., & Liese, A. (2013). The power of human rights a decade after: From Euphoria to contestation? In T. Risse, S. C. Ropp, & K. Sikkink (Eds.), The persistent power of human rights: From commitment to compliance (pp. 26–42). Cambridge: Cambridge University Press. Johnston, A. I. (2008). Social states: China in international institutions, 1980–2000. Princeton: Princeton University Press. Ki-Moon, B. (2009). Implementing the responsibility to protect: Report of the SecretaryGeneral, United Nations, A/63/677. Ki-Moon, B. (2012). Address to Stanley foundation conference on the responsibility to protect ‘R2P: The next decade’: January 18, New York. http://www.un.org/apps/news/ infocus/sgspeeches/statments_full.asp?statID=1433#.VL-EIi63Thk. Accessed 3 March 2015. Ki-Moon, B. (2013). Responsibility to protect: State responsibility and prevention. Report of the Secretary-General, United Nations, A/67/929–S/2013/399. Ki-Moon, B. (2014). Fulfilling our collective responsibility: International assistance and the responsibility to protect. Report of the Secretary-General. United Nations, A/68/947–S/2014/449. Krook, M. L., & True, J. (2012). Rethinking the life cycles of international norms: The United Nations and the global promotion of gender equality. European Journal of International Relations, 18(1), 103–127. Lebow, R. N. (2008). A cultural theory of international relations. Cambridge: Cambridge University Press. Lederer, E. (2006). U.N. affirms duty to defend civilians. The Washington Post, 28 April. Malawi/African Group (2005). Statement on behalf of the group of African states on the report of the Secretary-General (A/59/2005). A/59/PV.85, 6 April.

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Malaysia/NAM. (2005). Statement on behalf of the non-aligned movement at the informal meeting on draft World Summit Outcome Document, 21 June. http://www.un.int/malaysia/NAM/nam210605.html. Accessed 19 Nov 2013. Müller, H. (2013a). Agency is central. In H. Müller & C. Wunderlich (Eds.), Norm dynamics in multilateral arms control: Interests, conflicts, and justice (pp. 360–362). Athens: University of Georgia Press. Müller, H. (2013b). Where it all began. In H. Müller & C. Wunderlich (Eds.), Norm dynamics in multilateral arms control: Interests, conflicts, and justice (pp. 18–31). Athens: University of Georgia Press. Müller, H., & Wunderlich, C. (Eds.) (2013). Norm dynamics in multilateral arms control: Interests, conflicts, and justice. Athens: University of Georgia Press. Pakistan (2005). Statement on the report of the Secretary-General (A/59/2005). A/59/ PV.86, 6 April. Panke, D., & Petersohn, U. (2012). Why international norms disappear sometimes. European Journal of International Relations, 18(4), 719–742. Pollentine, M. (2012). Constructing the responsibility to protect. Cardiff: Cardiff University. Prantl, J., & Nakano, R. (2011). Global norm diffusion in East Asia: How China and Japan implement the responsibility to protect. International Relations, 25(2), 204–223. President of the 63rd general assembly (2008). Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Office of the president of the General Assembly. http://www.un.org/ga/president/63/ interactive/protect/conceptnote.pdf. Accessed 10 Nov 2014. Quinton-Brown, P. (2013). Mapping dissent: The responsibility to protect and its state critics. Global Responsibility to Protect, 5(3), 260–282. Reus-Smit, C. (1997). The constitutional structure of international society and the nature of fundamental institutions. International Organization, 51(4), 555–589. Reus-Smit, C. (2002). Imagining society: Constructivism and the English school. The British Journal of Politics & International Relations, 4(3), 487–509. Reus-Smit, C. (2008). Constructivism and the structure of ethical reasoning. In R. Price (Ed.), Moral limit and possibility in world politics (pp. 80–81). Cambridge: Cambridge University Press. Reus-Smit, C. (2009). On rights and institutions. In C. Beitz & E. Goodin (Eds.), Global basic rights (pp. 25–48). Oxford: Oxford University Press. Rosert, E., & Schirmbeck, S. (2007). Zur Erosion internationaler Normen. Folterverbot und nukleares Tabu in der Diskussion. Zeitschrift für Internationale Beziehungen, 14(2), 253–288. Sandholtz, W. (2009). Explaining international norm change. In W. Sandholtz & K. Stiles (Eds.), International norms and cycles of change. Oxford: Oxford University Press. Serrano, M. (2011). The responsibility to protect and its critics: Explaining the consensus. Global Responsibility to Protect, 3(4), 425–437. South Africa (2005). Statement in the informal thematic consultations of the General Assembly on cluster III issues. 20 April. http://www.southafrica-newyork.net/speeches_ pmun/view_speech.php?speech=5561068. Accessed 19 Nov 2013. Stone, A. (1994). What is a supranational constitution? An essay in international relations theory. The Review of Politics, 56(3), 441–474.

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Stuenkel, O. (2014). The BRICS and the future of R2P: Was Syria or Libya the exception? Global Responsibility to Protect, 6(1), 3–28. Thakur, R. (2011). The responsibility to protect and the North-South divide. In S. Silverburg (Ed.), International law: Contemporary issues and future developments (pp. 32–48). Boulder: Westview Press. Tyler, T. (2012). Justice theory. In P. Lange, et al. (Eds.), Handbook of theories of social psychology (pp. 344–362). London: Sage. Tyler, T. & Blader, S.L. (2004). Justice and Negotiation. In M. J. Gelfand & J. M. Brett (Eds.), The handbook of negotiation and culture (pp. 295–312). Stanford: Stanford University Press. Ulfstein, G., & Christiansen, H. F. (2013). The legality of the NATO bombing in Libya. International and Comparative Law Quarterly, 62(1), 159–171. UN (United Nations) (2005a). Draft Outcome Document of the high-level plenary meeting of the General Assembly of September 2005. Submitted by the president of the General Assembly, A/59/HLPM/CRP.1, 8 June. UN (2005b). 2005 World summit outcome. UNGA Res. A/RES/60/1. 16 September. UN (2005c). President’s draft negotiating document for the high-level plenary meeting of the General Assembly of September 2005. Submitted by the president of the General Assembly. 6 September 2005. www.responsibilitytoprotect.org/files/DOD_6Sept05_ rev2.pdf. Accessed 26 March 2014. UN (2005d). Revised draft Outcome Document of the high-level plenary meeting of the General Assembly of September 2005. Submitted by the president of the General Assembly. A/59/HLPM/CRP.1/Rev.1, 22 July 2005. United States (2005e). Letter by the representative of the United States of America to the United Nations, Addressed to all delegations to the representatives of states to the United Nations, 30 August 2005. http://www.responsibilitytoprotect.org/files/US_Boltonletter_R2P_30Aug05%5B1%5D.pdf. Accessed 19 Nov 2013. Welch, D. A. (1993). Justice and the genesis of war. Cambridge: Cambridge University Press. Wendt, A. (1992). Anarchy is what states make of it. The social construction of power politics. International Organization, 46(2), 391–425. Wheeler, N. J. (2000). Saving strangers: Humanitarian intervention in international society. Oxford: Oxford University Press. Wheeler, N. J. (2005). A victory for common humanity: The responsibility to protect after the 2005 world summit. Journal of International Law and International Relations, 2(1), 95–105. Wiener, A. (2008). The invisible constitution of politics: Contested norms and international encounters. Cambridge: Cambridge University Press. Wiener, A. (2009). Enacting meaning-in-use: Qualitative research on norms and international relations. Review of International Studies, 35(1), 175–193. Wiener, A., & Pütter, U. (2009). The quality of norms is what actors make of it: C ­ ritical constructivist research on norms. Journal of International Law and International Relations, 5(1), 1–16. Wunderlich, C. (2013). Theoretical approaches in norm dynamics. In H. Müller & C. Wunderlich (Eds.), Norm dynamics in multilateral arms control: Interests, conflicts, and justice (pp. 20–48). Athens: University of Georgia Press.

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8

The Normative Challenge of Interaction: Justice Conflicts in Democracy Promotion Annika E. Poppe and Jonas Wolff 8.1 Introduction Democracy promotion is about interaction, and this interaction is at least partially 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 implementation 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: [email protected] J. Wolff E-Mail: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_8

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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 normative 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 involves 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 institutions. 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. Democracy promotion can therefore, itself, be viewed as violating the (collective) entitlement 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 frameworks 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 emphasizes 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”. 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 promotion 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. 2Cf.

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Indeed, the tension between the alleged universality of democracy and the perceived 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 commitment 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 “justice”—on claims to entitlements (justice claims) and on conflicts shaped by contested 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 participants in the negotiation about political change and democracy promotion (contestation of recognition). The research program conceptually outlined in this chapter would enable scholars to analyze how democracy promoters deal with such normative 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.

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section looks at debates in normative theory where democracy promotion has been explicitly dealt with as a justice-related issue. This section reveals the underlying 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 normative 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 Lerner, Welch defines the justice motive as “the drive to correct a perceived discrepancy 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 forward 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

5This

is in line with the general approach taken in PRIF’s research program on “Just Peace Governance” (Daase and Humrich 2011; Müller 2010).

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­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 substantiated (Müller 2010, p. 9).6

In the case of democracy promotion, we are faced with an “other-referential” perception 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 sovereignty, 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 analytical perspective that facilitates taking an empirical look at the normative problematique of democracy promotion contestation. In contrast to the debate in (international) political theory discussed below (Section “Just and Unjust Democracy Promotion”), this perspective does not aim at solving the inherent normative tensions in democracy promotion that become manifest in justice conflicts. Instead, the prospective aim is to analyze how contentious justice claims are processed 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 representation.

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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 generalization, 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 fundamental norms that establish entitlements. Having said this, the analytical perspective adopted in this chapter is generally 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 theoretically ­embedded in any one of the diverse constructivist or post-positivist approaches (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 mechanisms that generate social reality” (Pouliot 2004, p. 327), and our proposal to analyze 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 constitutes 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 expectations 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”.

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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 stakeholders, 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 different 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 promotion—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 official German document on democracy promotion, maintains that democracy promotion is not about supporting “a specific form of democracy” but about implementing the “principles” of democracy and the rule of law (BMZ 2005, p. 6).

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(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 concept of democracy but have to reconsider what is to be promoted in a given situation: 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 definition, 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 perspective 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 unique 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 unprecedented hermeneutic challenges and meaning constellations”.

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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 normative 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 meaningful agency on both sides and, therefore, substantial negotiation about the set of norms that is to be promoted.14 This alternative perspective on democracy promotion 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 practices 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 promotion” (Kurki 2010, p. 383) that takes into account the need to pluralize and contextualize 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 determined 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 distinguished 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 contestation in IR, see Wiener (2008).

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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 international right to democracy (Franck 1992; cf. Fox and Roth 2000) and an international 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 burden […] 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 normative 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 promotion. 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 promoters 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 democratization serves a range of other normative goals (peace in particular, but also, e.g., development-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).

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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 twofold assumption that, empirically, “the notions of democracy that lie at the centre 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 promotion policies (Magen et al. 2009), in the introductory chapter, notes the “triumph of democracy as an ideal and system of government”; observes a common “normative commitment to democracy and the objective of its promotion outside” by the US and Europe; and then focuses on the analysis of the differences 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 government 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”,

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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 consensus 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 normative premises und conceptual underpinnings of “North-Western” democracy promotion.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 authoritarian 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 understood 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.).

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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 captured by catchwords like the “backlash against democracy promotion” (Carothers 2010) and the “democratic recession” (Diamond 2008, pp. 56 ff.), “autocracy promotion” (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 evidence suggesting that democracy promotion is confronted with normative contestation 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 pluralism” (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.).

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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 conception 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 challenge 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 “westernderived analytical frameworks and models of democracy” (Burnell 2010, p. 5) and the rising “attention to the question of norms concerning democracy assistance” (Carothers 2010, p. 67; cf. Mahbubani 2009). We draw on this incipient debate about the normative premises and conceptual 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 perspective 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 legitimacy 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 sovereignty-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).

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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 universality 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 entitled—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 military interventions can be regarded as just, this debate nevertheless offers important insights into the justice conflicts that confront also the kinds of democracy promotion 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-determination”. 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).

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“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 country” (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 promotion. 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 specific 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 interference” (Lassa Oppenheim, quoted in Doyle 2009, p. 350). But coercive or military intervention 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 intended 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).

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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 toleration, 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 advocacy 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 developments 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 supportive 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 beginning” (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 further legitimate step in the “story of democratization”.

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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-governmental 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 colonialism” (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).

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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 policies 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 struggles 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 process 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 “economic means—sanctions or restricted interaction with nonliberal states, and extended aid and trade with liberal or transitional states—to promote liberal principles 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 consensus 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 treatment 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).

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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 nondemocratic 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 democratic 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 fundamental justice. All further claims to justice are then to be justified and realized autonomously 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” (Benhabib 2009, p. 198): “Universalist norms are thereby mediated with the self-understanding of local communities.” (Benhabib 2009, p. 199).

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justice claims, which refer to competing entitlements and result in justice conflicts that can, arguably, not be resolved on the abstract level of philosophical reasoning. 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 justice 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 contestation of democracy promotion is not “only” about substantive questions concerning, 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 conflicts 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).

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c­ ontestation of the extent and means of just external interference; and contestation 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 substantial 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 different 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 external 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 promotion 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 justicerelated 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 justice conflicts in a narrow sense.

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Conflict

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Specification

(1) Contested political models

Liberal democracy in conflict with alternative (non-liberal, non-democratic) conceptions of a just political order

(2) Contested interference

Interference based on individual rights versus non-interference based on right to collective self-determination

(3) Contested recognition

Contestation about who and according to what criteria to recognize as legitimate justice claimant

Internal processing of justice conflicts by donor (level of processing) Negotiation of conflicts between donors and recipients (level of interaction)

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 translate the abstract entitlement to democracy into specific aims and indicators of democracy promotion programs.

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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 certain degree of external support but may resent too much pressure or the imposition 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.).

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the legitimacy to make justice claims at all, is disputed. Such conflicts of recognition 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 illegitimate 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 appropriate 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 legitimacy (political forces that receive broad support in the population) or on the nature of behavior and claims (political forces whose behavior and claims are deemed 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 insecure, 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 sovereignty 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 advancing the course of democracy in the world, except under the most extremely restricted circumstances.”

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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 disagreement about the kind of democracy that democracy promotion should aim at. In principle, democracy promoters have vowed to do justice to these competing norms: While the promotion of democracy is supposed to endow all human beings with their inalienable rights, local conceptions of justice are to be respected and accounted for. Yet, as seen, this harmonious idea is regularly contradicted 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 suggest 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, promoting democracy, by its very essence, means supporting a specific political regime (democracy), which may be defined more or less narrowly but, in any case, implicates 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 framework 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 promotion. 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 normative challenges and thus the interaction process seriously. Analyzing the interaction process 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.

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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 institutionalizing 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 principles for both a just political order for the recipient side and just forms of external 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 promotion 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 circumstances. 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 identified 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).

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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 “normatively desirable but also practically desirable in allowing productive engagement 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).

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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 liberaldemocratic 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 contestation 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 constitute the basis of any multilayered structure of global governance for the foreseeable 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 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 destabilize 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 Freedom 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 bilateral dialogue that had been started just a few months earlier and that, in November 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: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_9

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for Mutually Respectful and Collaborative Bilateral Relations” (U.S. Department of State 2011a). This agreement, while duly recognizing common obligations related to representative democracy and human rights, clearly emphasizes “respect for sovereign states” and “the principle of non-intervention” over external 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 diplomatic relationship that constitute the topic of this chapter. But Bolivian resistance 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 discussed as a “backlash” against democracy promotion (Carothers 2010; Gershman and Allen 2006). Still, while since the middle of the last decade “dozens of governments 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, however, 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 contemporary 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 international negotiations under conditions of pronounced power asymmetries (Spector and Wagner 2010; Whitfield 2009; Zartman and Rubin 2000). Theoretically, the study emphasizes the normative dimension of negotiations, focusing on competing 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 reconstruct the process of bilateral negotiations at hand and (2) to offer an explanatory

1This

literature will be introduced in the following section.

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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. government, 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, primary 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 offthe-record conversations conducted in both Bolivia and the U.S.3 Methodologically, 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 articulated in the course of the negotiations. The claim analysis, then, serves as the basis for the second step: By identifying 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 negotiations. Without claiming that this account grasps each and every feature and factor 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, pitting 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 fundamentally 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 (Zartmann 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 development 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.

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operate according to the respective normative templates. In a sense, then, the failure of the Framework Agreement can be understood as the result of two uncoordinated “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 international 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 governments 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 democracy 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, underlying 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 intervention 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 themselves 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

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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 empirical 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 international 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 govern 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 balanced 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 conflicting 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 negotiations 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 playing 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

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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 “material” 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 justice-related demands but at three types of claims: (1) political demands and proposals (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 entitlements, 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 relations 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 enthusiasm in Washington. In office, Morales and his government did indeed implement policy changes that contradicted U.S. interests and values: the convocation

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of a Constituent Assembly to “re-found” Bolivia aimed at significantly transforming 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 relations 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 enthusiastically to the election of Obama, “someone who comes from the most discriminated 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 President 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.).

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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 governments “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 counternarcotics agreements” (Bolivia Information Forum 2009). In the public exchange of arguments concerning the closure of USAID’s democracy program, the Bolivian 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 government 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 assistance—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

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to election observation; civil society aid; and the support for political parties (09LAPAZ1027). Amongst others, Freedom House “strongly” criticized the Obama Administration’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 counterpart—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 Mutually Respectful and Collaborative Bilateral Relations” (Bolivia and United States 2011). The accord, according to a joint statement issued at this occasion, “establishes 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 envisioned “a more productive, collaborative relationship for the benefit of both our peoples” (U.S. Department of State 2011a). In December 2011, the Bolivian government 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 development cooperation between the two countries that would be radically different from previous decades in which U.S.-Bolivian relations were dramatically asymmetric 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 conspiracy against the government and, in particular, attempts to manipulate leaders

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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 domination, of subjugation” (LosTiempos.com, March 6, 2013). In the weeks before the expulsion the U.S. government had also, once again, criticized Bolivian counternarcotics 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 counternarcotics benchmarks for the coming year. After 2013, U.S.-Bolivian relations have continued to fluctuate between signals of rapprochement suggesting a possible 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 parties, 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, instigating 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 addition, USAID and NED support for civil society organizations was also charged with privileging the opposition (Burron 2012, pp. 125 ff.). At a more general, diplomatic 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).

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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 projects (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 entitlement 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 implicitly, the latter claim also refers to principles of ownership and/or accountability 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 bilateral cooperation that emphasize principles of national ownership, government control and alignment with national development strategies (09LAPAZ66).

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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 “dignity” (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 principle of equality at the level of state-to-state relations, this perceived entitlement 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, selfdetermination and non-intervention that concerned U.S. foreign assistance and democracy promotion (09LAPAZ66, 10LAPAZ7).8 The core demands that followed 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 background 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. interference in Bolivia. The latter, in the case of President Morales, has also a significant 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 administrations, 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 admitting “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 Bolivian 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).

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referred to Bolivian policy demands. These mainly concerned two related issues: (de-)certification and trade preferences.11 From the Bolivian perspective, “economic and social asymmetries” between the countries require a “differentiated treatment”, e.g. in terms of trade preferences (09LAPAZ66).12 On several occasions, Bolivian government officials demanded publicly or in private the reinstatement 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 paternalism. In private communication at the U.S. Embassy (09LAPAZ640), the counternarcotics relationship was explicitly criticized as “overly paternalistic with Bolivia in a subordinate role”.13 The Obama decision to continue with the suspension 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 precisely 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 government 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 Millennium 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 administration, Morales reportedly said: “We cannot kneel for 63 million dollars” (09LAPAZ89).

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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 “apolitical” (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 Bolivian 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 Bolivian people” (09LAPAZ1027).15 In an internal meeting, a State Department official 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 democracy 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 pragmatic 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).

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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 cannot have democracy without a vibrant civil society (which legitimizes supporting 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 activities through governmental channels only. In 2008, the Bolivian government had called for a review process concerning USAID’s entire portfolio in the country—and the U.S. embassy chose to comply with Bolivian demands only hesitantly and partially (08LAPAZ1166). This partial refusal is clearly related to the U.S. assessment that an “increasingly authoritarian” president and government 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 government 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”, “representative 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 democracy or its promotion (09LAPAZ66). All this shows that the U.S., at least implicitly, 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 government 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).

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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 justify its policies by referring to democracy, human rights, freedom and/or liberty as being universal (rights). An additional argument against full Bolivian government 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 accusations” 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 important one being related to counternarcotics: if the Bolivian government wanted to see trade preferences reinstated, it “would need to quickly work to show progress 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 differentiated treatment as a Bolivian entitlement and, as seen above, continued to condition 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 public joint statement by the two governments on the occasion of the signing of the

17It

should 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 abating 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.

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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 highlight “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 liberal 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 principle 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.).

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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 entitled, 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 principle of justice that is to guide bilateral relations, the U.S. conceptualizes its relationship 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 rationale 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 Bolivian government with continued provocations by the Morales administration, without 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 certainly 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 international obligations in terms of counternarcotics (thus being worthy of “certification”) 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 capabilities 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.).

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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 injustices 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, therefore, 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 discourses in the two countries continued to operate according to fundamentally

21In

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

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irreconcilable normative templates (Müller 2004, pp. 422 ff.). In the U.S. case, “re-certifying” Bolivia and/or resuming trade preferences remained a distant possibility—not to speak of the option to discontinue the entire practice of unilateral “certification” or stop thinking about Latin American countries in terms of the U.S. “backyard”. In the Bolivian case, the “anti-imperialist” mindset continued 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 government 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 support for those domestic forces that were opposing his government and, as emphasized, 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 entitlements. From the Bolivian perspective, the U.S. refusal to reinstate trade preferences 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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U.S. Department of State (2009b). Secretary Clinton’s meeting with Bolivian Foreign Minister David Choquehuanca. http://www.state.gov. Accessed 18 November 2009. U.S. Department of State (2011a). Joint statement by the United States of America and the plurinational state of Bolivia. http://www.state.gov/r/pa/prs/ps/2011/11/176749.htm. Accessed 8 Dec 2011. U.S. Department of State (2011b). 2011 International narcotics control strategy report. http://www.state.gov/j/inl/rls/nrcrpt/2011/index.htm. Accessed 21 Nov 2012. U.S. Department of State (2012). Congressional budget justification: Foreign operations. Annex: Regional perspectives. Fiscal year 2013. http://www.state.gov/documents/ organization/185015.pdf. Accessed 3 Sept 2012. U.S. Embassy La Paz (2012). Statement by the joint commission of the plurinational state of Bolivia and the United States of America. http://bolivia.usembassy.gov/jointcommision2012.html. Accessed 1 Oct 2012. Vicepresidencia de Bolivia (2009). Injerencia de los Estados Unidos en Bolivia. http:// www.vicepresidencia.gob.bo/IMG/pdf/desclasificados.pdf. Accessed 21 Nov 2012. Walser, R. (2011). The State Department’s turn-the-other cheek policy. Heritage Blog. http://blog.heritage.org. Accessed 21 Jan 2013. Welch, D. A. (1993). Justice and the genesis of war. Cambridge: Cambridge University Press. Whitfield, L. (2009). The politics of aid: African strategies for dealing with donors. Oxford: Oxford University Press. Wolff, J. (2012). Democracy promotion, empowerment, and self-determination: Conflicting objectives in US and German policies towards Bolivia. Democratization, 19(3), 415–437. Zartman, I. W. (2008). Negotiation and conflict management. Essays on theory and practice. 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). Negotiation 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 Claims as an Obstacle to Peace Negotiations in Afghanistan

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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, continued 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 Taliban 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 interests, 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: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_10

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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 chapter 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 stalemate,” which according to rationalist assumptions should compel the parties to move toward negotiations. This chapter argues 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 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 framework that seeks to explain the role of human motives and emotions in international 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 relationship between individuals and their “political worlds,” this endeavor does not require any major deviations from the theory’s core assumptions (besides a proposal 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 prosperity and power in an anarchic world order; “international politics, like all politics, 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

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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 attribute to their actions. Lebow develops his arguments from a constructivist perspective (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, appetite 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 paradigm 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 participation 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 assumptions. While this book focuses on states, the Cultural Theory is also applicable to other collective entities.

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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 concedes 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 different 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 agreement. 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 conflict, 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 contrary 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 “underlying 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 political 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.

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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 summarized 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 “entitlement.” 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 substantiated (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.

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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 interaction, as a consequence of institutionalized patterns of cultural value that constitute 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 spirit 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 interaction—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 institutional 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

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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 Cultural 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 misinterprets the situation as a conflict of distribution. Cultural Theory states that appetite and reason trigger risk-aversion while spirit triggers risk-seeking. Denied recognition 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 rationalist 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 contested 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 Cultural 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 contested, 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

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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 dimension 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 contest 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 considers 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 occupation 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).

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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 Afghanistan 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 involvement, American forces intervened militarily to oust the Taliban from power and destroy the al-Qaida camps in Afghanistan. While the level of violence was relatively 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 chapter 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 contested recognition as an obstacle for negotiations in the stalemated phase of the war.

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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 Taliban 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 strategies 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 battlefield. 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.

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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 directors, 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 simply 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 soldiers 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 responsible for security. Rising ANSF casualties are the logical consequence of the “Afghanization” of the war. For more numbers, see Cordesman (2012b).

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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 Maldives 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 Taliban 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 participation 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 opportunity 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 (conflictual) 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

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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 parties 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 different 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. Certainly, these conditions make up a complicated negotiation environment. But while the number of parties can explain why it is difficult to sequence and orchestrate 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.

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war was demonstrated in 2008: the head of the United Nations Assistance Mission 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 Taliban 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 (Islamic scholars) against criminals; application of sharia, involving harsher punishments and changes to the Afghan constitution; legitimate exercise of power or Islamic government; conformity with perceived Islamic social rules, involving further 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 concludes 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-international 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 Afghanistan 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 conflict, 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 education 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

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UN Security Council measures to support counterterrorism capability during a transition period” (Brahimi and Pickering 2011, p. 6). Waldman’s findings suggest 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 significant 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 conflict should be part of the UN peacekeeping force, and Muslim countries in particular should be encouraged to take part in it” (Brahimi and Pickering 2011, p. 77). Such a step could be a smart compromise that removes the “occupying forces” while forestalling a civil war along ethnic lines. The report also refers to the important role that Pakistan plays in the Afghanistan conflict and states that “Pakistan’s leadership has affirmed its willingness to participate in a political resolution to the conflict and emphasized its ability to bring the Taliban to the negotiating table and influence their decision-making” (Brahimi and Pickering 2011, p. 11). Furthermore, “at the international level, since there are clearly non-Afghan aims pursued in the present conflict, a settlement will also have to address the many security concerns of international stakeholders” (Brahimi and Pickering 2011, p. 27). While there are certainly internal struggles within the Taliban, which could turn out to be a problem in the negotiation process, Mullah Omar still serves as the spiritual leader of the movement. Considering more than a decade of asymmetric warfare, this continuity in the Taliban leadership is remarkable. It also meets another condition that is crucial when looking for the ripe moment in the context of a mutually hurting stalemate, which is the “presence of a Valid Spokesman for each side” (Zartman 2001, p. 10). With Mullah Omar for the Taliban, the Afghan President for the Afghan Government, and President Barack Obama for the United States, the three main parties to the conflict are led by three individuals with formal authority that enables them to move their parties towards negotiations. So far, however, this has not happened.

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10.4.2 Standing and Contested Recognition in the Afghanistan Conflict To explain this phenomenon, it is necessary to drop the notion of rational cost benefit analysis and explore the underlying motives of the main parties. If we apply the previously outlined conceptualization of a conflict of recognition to the Afghanistan conflict, we have to understand how the three parties perceive themselves and their status in the current situation. The American involvement in Afghanistan is closely linked to the 9/11 terrorist attacks. When President Obama outlined his strategy for Afghanistan in December 2009, he explained: It’s important to recall why America and our allies were compelled to fight a war in Afghanistan in the first place. We did not ask for this fight. On September 11, 2001, 19 men hijacked four airplanes and used them to murder nearly 3,000 people. They struck at our military and economic nerve centers. They took the lives of innocent men, women, and children without regard to their faith or race or station. Were it not for the heroic actions of passengers onboard one of those flights, they could have also struck at one of the great symbols of our democracy in Washington, and killed many more. As we know, these men belonged to al Qaeda – a group of extremists who have distorted and defiled Islam, one of the world’s great religions, to justify the slaughter of innocents. Al Qaeda’s base of operations was in Afghanistan, where they were harbored by the Taliban – a ruthless, repressive and radical movement that seized control of that country after it was ravaged by years of Soviet occupation and civil war, and after the attention of America and our friends had turned elsewhere (White House 2009).

Obama believes the U.S. is fighting a just war. While addressing “the Afghan people” and explaining that “we [America] have no interest in occupying your country,” he accused the Taliban of having “maintained common cause with al Qaeda, as they both seek an overthrow of the Afghan government.” Referring to attempts by the Afghan government to reach out to the insurgency, Obama did not categorically rule out negotiations9 and said “we will support efforts by the Afghan government to open the door to those Taliban who abandon violence and respect the human rights of their fellow citizens.”

9For

a discussion of negotiations with terrorists and related U.S. policy, see International Negotiation: 8(3), 2003.

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Obama’s speeches are known for brilliant rhetoric, and U.S. politicians often appeal to their audience by invoking patriotic emotionalism in public statements. Accordingly, Obama concluded his speech in West Point by, again, referencing the 9/11 attacks: It’s easy to forget that when this war began, we were united – bound together by the fresh memory of a horrific attack, and by the determination to defend our homeland and the values we hold dear. I refuse to accept the notion that we cannot summon that unity again. I believe with every fiber of my being that we – as Americans – can still come together behind a common purpose. For our values are not simply words written into parchment – they are a creed that calls us together, and that has carried us through the darkest of storms as one nation, as one people (White House 2009).

Two months before Obama delivered this powerful speech calling upon the nation to rally behind a common purpose, Mullah Omar released a message to his followers: During the past eight years, NATO, under the leadership of the militarists of the Pentagon, have implemented a policy of brutality and atrocity, hoping that they will subjugate the brave people of Afghanistan by dint of military power. They have used their sophisticated and cuttingedge technology, including chemical weapons, in order to achieve that end; employed hundreds of centers of propaganda; and spent billions of dollars to portray the image of their military power in a palatable way and terrorize their counterpart opposition. But all these anti-human activities could not bring them success. With the passage of time, the resistance and the Jihadic movement, as a robust Islamic and nationalist movement, assumed the shape of a popular movement, and is approaching the edge of victory (Omar 2009).

Omar, too, sees himself in a just war against “anti-human” aggressors. Where Omar extends his “heartfelt felicitations to all heroic Mujahideen, the pious people, the families of martyrs of the sacred frontlines of Islam,” Obama states “it’s an extraordinary honor for me [to address the nation] here at West Point—where so many men and women have prepared to stand up for our security, and to represent what is finest about our country.” Both leaders invoke the heroism of the warriors on their side who defend their country. Omar explicitly refers to the Taliban as an Islamic, as well as “nationalist” and “popular,” movement. Recalling the fact that the spirit compels people to behave seemingly “unreasonable” by triggering risk-taking behavior, this self-description of both Obama and Omar as the

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leaders of their warriors sent out to defend the honor of their country may help understand the behavior of the U.S. and the Taliban in the Afghanistan War.10 According to Omar, the goal of the Islamic Emirate “is to gain independence for the country and to establish a just Islamic system there, on the basis of the aspirations of the Muslim nation. We can consider any option that could lead to the achievement of this goal. We have left open all options and ways towards this end. However, this will only be feasible when the country is free from the trampling steps of the invading forces, and has gained independence.” Similar to Obama, who asks the Taliban to “abandon violence,” Omar asks the U.S. to abandon violence by leaving Afghanistan before negotiations can start, thus asking for a transformation of the other party’s identity within the context of the conflict. In their current status, the U.S. and Taliban do not recognize each other as legitimate negotiation partners. In Omar’s view, the withdrawal of U.S. and NATO forces would then allow for the “rehabilitation of social and economic infrastructure, advancement and development of the educational sector, industrialization of the country, and development of agriculture.” He bitterly complains about the “enemy media” who, in his eyes, have wrongly depicted us as a force that is against education and women’s rights. They also accuse us of our being a threat to the countries of the world. The Islamic Emirate of Afghanistan wants to clear away all these doubts, provided a conducive atmosphere is available. The Islamic Emirate of Afghanistan calls on the public of the West not to be deceived by the assertions of [U.S. President Barack] Obama, who says the war in Afghanistan is a war of necessity. The West does not have to wage this war. This war, in fact, started for clandestine motives under baseless reasons. Humanity as a whole suffers from its negative consequences (Omar 2009).

For Omar, the Afghan government is “a corrupt and stooge administration” that only survives because of the military support provided by the United States. It is important to consider that the same warlords whom the Taliban forced into exile in

10To

prevent misunderstanding, a disclaimer: It is not my intention to make the normative argument that what the U.S. and what the Taliban do in Afghanistan is “the same”. I believe that UN figures are correct according to which the insurgency is responsible for the vast majority of civilian casualties in the war. (The Taliban consider these figures propaganda.) I also think that deliberate and targeted insurgent attacks against civilians are not “the same” as civilian victims that have not been the deliberate target of NATO air strikes. But in the context of the conflict, the judgment of observers matters much less than how the involved parties perceive the situation.

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the 1990s are back in power and are allied or formally affiliated with the Afghan government (Omar 2009). Rashid Dostum, Ismail Khan, Mohammad Fahim (1957–2014), Atta Mohammad Nur, Karim Khalili, to just name a few, are all declared opponents of the Taliban, yet prominent Afghan politicians that support the new political order. They are recognized by the U.S. as important partners in spite of complaints from civil society groups that claim they have committed gross human rights violations. Consequently, Mullah Omar complains about the “rampant corruption in the surrogate Kabul administration, the embezzlement, the drug trafficking, the mafia networks, the tyranny and highhandedness of the warlords.” These claims must sound like an insult directly targeting the standing of the Afghan government. The United Nations has established an international military force to support the ANSF, several elections have taken place, and members of the government are recognized as renowned actors in the “international community.” While specific issues are certainly contested, there is no one who contests the legitimacy of the Afghan government itself—except the insurgency. In the narrative of prominent warlords, they were able to overthrow the Taliban in 2001 with American assistance, and they are the ones who could grant the Taliban a seat at the negotiation table, not vice versa. Atta Mohammad Nur, for instance, the current Governor of Balkh, is considered one of the most powerful Afghan warlords. In his eyes, “it will be very difficult to sit at the same table with the leaders of the Taliban, because from their form of Islam they only know the way of killing and suicide bombing” (Nur as quoted in Hersh 2012). While Nur is carefully navigating between allegiance with the central government and local strongmen, he can count on solid American support. An ISAF spokesman admits that Nur “is looking out for his regional and ethnic interests. But on balance he’s someone we feel we can count on. He’s a very influential fellow, and he’s very vital to the efforts of the government of Afghanistan up here” (Lt. Col. David Olson as quoted in Hersh 2012). While the warlords object to the prosecution of honorable Mujahideen (a term they reserve for themselves) for war crimes committed during the time of Jihad against the Soviet occupation, they blame the Taliban for terrorist and criminal activities—a hypocrisy that further alienates the Islamic Emirate. It is striking how severely the above-mentioned quotations relate and appeal to the justice orientation of all parties to the conflict, and how strongly all men condemn their opponents as inherently unjust actors. The strive for standing reaches beyond a rationalist objective of trading one issue for another at the negotiating table, and it even goes further than the claim for a previously denied entitlement. The identity of all actors is closely connected with the just endeavor of standing up against an unjust actor in the name of universal justice.

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10.4.3 Justice Claims in the Afghanistan Conflict As a Taliban commander from Wardak province describes in an interview, “many, many [Taliban] fight because of the killing of Afghans, the invasion and order of the Holy Quran to stand up against injustice and corrupt government” (Taliban commander as quoted in Waldman 2010, p. 4). Thus, Mullah Omar’s Eid ul-Fitr message corresponds to the motives displayed by the lower level of the Taliban. If we assume that the conflict of recognition serves as the main barrier to negotiations, we have to find indications that the main dispute concerns status and standing, not issues. Waldman’s findings indicate that this may indeed be the case. Asking what exactly it is that the Taliban want, Waldman observed that the insurgents saw sharia as the application of Islamic law but few could articulate what this meant in practice, beyond more severe punishments for criminals, including amputation and capital punishment. [. . .] Most insurgents interviewed said the Afghan constitution should be changed, but were unable to say how (Waldman 2010, p. 5).

One can interpret this as a sign that certain words carry a specific meaning that comes from that word’s association with actors whose position is contested in the conflict of recognition: The commanders’ support for this goal [changes to the constitution] is probably attributable to their belief that the constitution was engineered by Western powers and their aversion to aspects of democracy as currently manifested in Afghanistan, rather than any profound objections to the constitutional framework (Waldman 2010, p. 5).

What matters then is the recognition of each other as legitimate actors with valid justice claims who are worthy of being addressed. As Fraser puts it: Misrecognition constitutes a form of institutionalized subordination, and thus a serious violation of justice. [. . .] in this approach claims for recognition seek to establish the subordinated party as a full partner in social life, able to interact with others as a peer (Fraser 2000, p. 114).

The previously mentioned Taliban office in Doha illustrates the importance of this understanding of recognition. When the Taliban opened their office, they raised the flag of the Islamic Emirate of Afghanistan and officially called the office the “Political Office of the Islamic Emirate” instead of the “Political Office of the

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Afghan Taliban.” The Afghan government was outraged and accused the Taliban of styling itself as a parallel government, as “Islamic Emirate of Afghanistan” was the official name of Afghanistan during the reign of the Taliban. This incident is telling on two different levels: First, economic models of negotiation cannot explain such a behavior, since haggling over words—often considered “cheap talk” in rationalist theory—should not lead to an outright impasse. Second, there is more at stake than just contested distribution. The name of the Taliban’s office and the type of flag are not issues to be debated as part of a negotiated settlement. Instead, they relate to the dimension of recognition and to the identity of the parties involved.

10.5 Misperception of Justice Claims One of the major barriers to negotiations in the Afghanistan conflict is that the conflicting parties do not identify these justice claims as a primary motive of their opponents. In the eyes of the Taliban, “the plans of colonial expansionism underway in the region, under the notorious and unlawful slogan of war on terrorism is, in fact, an endeavor against the universal human values, justice, peace, equal distribution of resources, and independence—an endeavor tainting the true representatives of the aspirations of the people under one name or another” (Omar 2009). They assume that the West, led by the U.S., has occupied Afghanistan as part of an overreaching agenda driven by anti-Islamic and anti-Afghan motives: These brutal invaders have trampled down on all our Islamic values; they work for the dissemination and spread of Christianity under a previously worked-out plan; they plunder our natural resources under various names, and put heavy burdens of loans on our country (Omar 2009).

The presence of U.S. military forces in Afghanistan as the result of terrorist attacks committed on American soil whose planners enjoyed safe heavens in the Taliban’s “Islamic Emirate” does not play a role. In Mullah Omar’s Eid ulFitr message, 9/11 is not even mentioned. Thus, the Taliban believe that the United States is driven by appetite, while the Taliban believe that they themselves are driven by a search for honor. The United States believes that the Taliban maintain ties with al Qaida and are motivated by an undemocratic, fundamentalist ideology aimed at oppressing the women of Afghanistan. It does not seem to be important that some motives of the

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insurgents might actually be legitimate justice claims. For instance, the Taliban’s complaints about widespread corruption are correct. According to Transparency International, corruption in Afghanistan is rampant, and the organization ranks Afghanistan as 175 out of 177 (http://www.transparency.org/cpi2013/results). Strategic assessments proposing “powersharing” and “deals” with the Islamic Emirate are thus very helpful in order to think about issues “at the negotiation table,” yet they do not tell us how to get there. The misperception on the American side is similar to the Taliban’s misperception of the U.S.: While the U.S. believes itself to have a narrow set of legitimate objectives derived from a just motivation (9/11), it perceives the Taliban as being driven by an overreaching agenda with hostile motives. The same can be said about the Afghan government. The political leadership considers itself to be the legitimate representatives of the Afghan people and the warlords see themselves as honorable Mujahideen who have liberated the country from both Soviet occupation and Taliban rule. From the government’s perspective, the Taliban’s return to power must thus be prevented and the Taliban should reform before negotiations are possible. The Islamic Emirate believes this misrecognition is deeply unjust. Thus, the notion that “at the heart of this conflict, as in so many others, is the contest for power” (Brahimi and Pickering 2011, p. 4) is incomplete in the sense that it does not capture the dimension of the spirit in the Afghanistan conflict and the related justice claims of the main parties. Denied recognition can further escalate the conflict by causing anger, which is also related to the spirit. In addition, denied recognition can trigger fear, compelling the parties to shift to escalation strategies and security maximization, making negotiation less likely. Of course, contested recognition is not the only barrier to negotiations in the Afghanistan conflict. However, the argument can be made that as long as the parties do not acknowledge that their counterparts are, at least partly, driven by legitimate justice claims, the unresolved conflict of recognition is likely to remain a major roadblock on the path to a negotiated settlement.

References Arrow, K. (1963). Social choice and individual values. New Haven: Yale University Press. Bazerman, M. H. & Neale, M. (1991). Negotiator rationality and negotiator cognition: The interactive roles of prescriptive and descriptive research. In H. Peyton Young (Ed.), Negotiation Analysis (pp. 109–29). Ann Arbor: University of Michigan Press. Biddle, S. (2013). War termination in Afghanistan. Prepared statement before the commit­ tee on foreign affairs; Subcommittee on the Middle East and North Africa & subcom­ mittee on Asia and the Pacific, United States House of Representatives, 1st Session,

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113th Congress. Hearing on After the Withdrawal: The Way Forward in Afghanistan and Pakistan. 29 October. Brahimi, L., & Pickering, T. (2011). Afghanistan. Negotiating peace. The report of the century foundation international task force on Afghanistan in its regional and multilateral dimensions. New York: The Century Foundation Press. Brams, S. J. (1990). Negotiation games. New York: Routledge. Brams, S. J. (1994). Theory of moves. Cambridge: Cambridge University Press. Bruton, B. (2009). On the Quicksands of Somalia: Where doing less helps more. Foreign Affairs, 88(6), 79–94. Cordesman, A. H. (2012a). Coalition, ANSF, and civilian casualties in the Afghan conflict from 2001 through August 2012. Washington DC: Center for Strategic and International Studies. Cordesman, A. H. (2012b). The U.S. cost of the Afghan war: FY2002–FY2013. Cost in military operating expenditures and aid and prospects for ‘Transition’. Washington DC: Center for Strategic and International Studies. Dahl, H. M., Stoltz, P., & Willig, R. (2004). Recognition, redistribution and representation in capitalist global society: An interview with Nancy Fraser. Acta Sociologica, 47(4), 374–382. Eide, K. (2012). Power struggle over Afghanistan. New York: Skyhorse Publishing. Fraser, N. (2000). Rethinking recognition. New Left Review, 3, 107–120. Fraser, N. (2009). Scales of justice. Reimagining political space in a globalizing world. New York: Columbia University Press. Hersh, J. (2012, April 30). Atta Muhammad Noor, Afghan governor, criticizes U.S. exit plan. The World Post. Honneth, A. (1995). The struggle for recognition. The moral grammar of social conflicts. Cambridge: The MIT Press. Honneth, A. (2003). Redistribution or recognition: A response to Nancy Fraser. In N. Fraser & A. Honneth (Eds.), Redistribution or recognition? A political-Philosophical exchange. London: Verso. Islamic Emirate of Afghanistan. (2014). We do not recognize any president in the presence of the islamic emirate: Zabihullah Mujahid. Interview with the Afghan Islamic News Agency, published on the official website of the Afghan Taliban on 13 April. Johnson, C., & Leslie, J. (2004). Afghanistan: The mirage of peace. New York: Zed Books. Lebow, R. N. (2008). A cultural theory of international relations. Cambridge: Cambridge University Press. Lebow, R. N. (2010). Why nations fight. Cambridge: Cambridge University Press. Morgenthau, H. J. (1955). Politics among nations: The struggle for power and peace. New York: Knopf. Müller, H. (2013). Peace. interdisciplinary perspectives on a contested relationship. In G. Hellmann (Ed.), Justice and peace: Good things do not always go together (pp. 43–68). Frankfurt a. M.: Campus. Olson, M. (1965). The logic of collective action. New York: Schocken. Omar, M. M. (2009). Message of felicitation of Amir-ul-Momineen on the occasion of ‘Eid ul-Fitr. ‘Eid ul-Fitr Message from Taliban Leader Mullah Omar. www.memri.org/ report/en/0/0/0/0/0/0/3646.htm. Accessed 20 Sept 2018.

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Claims for Local Justice in Natural Resource Conflicts: Lessons from Peru’s Mining Sector

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Melanie Coni-Zimmer, Annegret Flohr and Andreas Jacobs 11.1 Introduction1 Scholarly analysis has, in the past, rarely focused on the role that diverging notions of justice play in the evolution of natural resource conflicts. The consequence of this is a lack of systematic knowledge about the justice claims that actors involved in natural resource conflicts put forward. This is surprising 1The

authors would like to thank Mara Funda for her highly professional research ­assistance.

This chapter has been published as Coni-Zimmer, M., Flohr, A., Jacobs, A. (2017). Claims for Local Justice in Natural Resource Conflicts: Lessons from Peru’s Mining Sector. In M. Pichler, C. Staritz, K. Küblböck, C. Plank, W. Raza and F. R. Peyré (Eds.), Fairness and Justice in Natural Resource Politics (pp. 90–108). London: Routledge. We would like to express our appreciation for granting publication rights. M. Coni-Zimmer (*)  Peace Research Institute Frankfurt (PRIF/HSFK), Frankfurt am Main, Germany E-Mail: [email protected] A. Flohr  TMG Research gGmbH—Think Tank for Sustainability, Berlin, Germany E-Mail: [email protected] A. Jacobs  Federal Ministry for Economic Cooperation and Development (Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung, BMZ), Bonn, Germany E-Mail: [email protected] © Springer Fachmedien Wiesbaden GmbH, part of Springer Nature 2019 C. Fehl et al. (eds.), Justice and Peace, Studien des LeibnizInstituts Hessische Stiftung Friedens- und Konfliktforschung, https://doi.org/10.1007/978-3-658-25196-3_11

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c­onsidering that, upon closer inspection, justice claims advanced by affected actors are easily identifiable within any particular resource conflict. Be it the population in the Niger Delta claiming a greater share of oil revenues or an end to the contamination of fragile local ecosystems, or workers of the Marikana mine in South Africa protesting for higher wages and full rights for a particular union, almost all local claim-makers invoke ideas of justice as a basis for their demands. In International Relations, the disregard in considering justice in the context of natural resource conflicts is best illustrated in literature dealing with the causes of civil war. Notable overlaps exist between the concept of justice and the concept of grievance within the so-called greed versus grievance debate (Collier and Hoeffler 2004; Basedau and Lay 2009; Collier et al. 2009). However, this literature generally conceptualizes natural resources as an essential element of the greed paradigm rather than as a grievance-related explanation for civil wars. In contrast, disciplines such as political theory and philosophy have long identified the exploitation and distribution of natural resources as a central point of contention in achieving (global) justice (Beitz 1979; Pogge 2002; Wenar 2008). These scholars have, however, mostly been interested in developing abstract principles of justice; as such, when they do mention empirical justice claims made by actors, it is primarily for illustrative purposes. Contrary to this, social anthropologists and scholars engaged in development and regional studies have frequently conceded analytical priority to justice considerations. Their explanations for the root causes and/or dynamics of ongoing resource conflicts often highlight locally perceived grievances publically expressed in terms of justice (Latouche 1997, pp. 137 ff.; Ferguson 2006, pp. 35 ff.). Despite having this focus, work done by scholars in these disciplines and research fields apparently does not differentiate between different types of justice claims in any systematic manner. This chapter analyzes justice claims by local communities along with the governance initiatives that have emerged in response to these claims. We ask whether these governance initiatives adequately respond to local justice claims and identify the significance of misperceptions or misinterpretations of justice claims made by the actors involved in given conflicts. The chapter demonstrates the importance of distinguishing between various types of justice claims in order to achieve a better understanding of conflict dynamics and increase our knowledge of the governance mechanisms used to address them. In order to analyze local justice claims more systematically, we propose a threefold conceptualization of justice based on the work of Nancy Fraser (2009), which analytically covers distribution, recognition and representation-related claims (Sect. 3). We argue that the disentanglement of these different justice

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claims is important as the misperception of particular claims by addressees—such as corporations, state actors, or international organizations—might lead to governance initiatives that prove not only insufficient for satisfying local demands but could even further exacerbate the conflict dynamics. We apply this argument to a mining conflict in Peru, where numerous local conflicts exist in the context of large-scale mining projects (Sect. 4). These conflicts have generally emerged between corporations and the affected communities, though they also invariably involve state institutions. A common response has been to install Dialog Tables (Mesas de Diálogo) to reach a compromise between parties to the conflict. The case study presented here focuses on the conflict between the population of Ilo, in Peru’s Moquegua region, and the Southern Cooper Corporation mining company. The analysis is based on field research carried out between June and August 2013, including interviews conducted with various stakeholders and participant observation in Mesa sessions.2 Our empirical analysis shows that the mesa de diálogo in Ilo has not been successful because of its inadequacy in addressing the local justice claims. While Southern Copper Corporation’s discourse focused on voluntary (financial) contributions to local communities, representatives from these communities emphasized the past damages caused by Southern, principally striving for (official) recognition of the company’s guilt. Hence, compromise-oriented policy instruments such as dialog tables prove to be ill-suited for dealing with claims where recognition rather than compensation is at stake.

11.2 Local Resource Conflicts According to the Heidelberg Institute for International Conflict Research, the year 2014 witnessed 96 inter- and intra-state political conflicts relating to natural resources, raw materials, or the profit generated therefrom. Among these, 63 involved violence and 9 passed the threshold of war (HIIK 2015, p. 18).3

2The

authors are immensely thankful to all stakeholders in Moquegua who supported this work by contributing their first-hand insights. 3According to the revised definition of the HIIK (2015, p. 8), a political conflict “is a positional difference, regarding values relevant to a society—the conflict items—between at least two decisive and directly involved actors, which is being carried out using observable and interrelated conflict measures that lie outside established regulatory procedures and threaten core state functions, the international order or hold out the prospect to do so.”

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The Observatory of Mining Conflicts in Latin America, in comparison, counted 209 ongoing mining conflicts across the continent as of November 2015, directly affecting 313 local communities (OCMAL 2015a). Many of these conflicts have the potential to erupt into violence if not properly addressed. This also holds true for the probably much higher number of local natural resource conflicts worldwide (OCMAL 2015b). Local resource conflicts are commonly characterized by the centrality of ­justice claims made by various actors. The claims that local communities make tend to stand out in this regard as the socio-economic and metaphysical wellbeing of the majority of local community members frequently relies on (free access to) the local environment and associated resources such as water, land, and forests (Martinez-Alier 2009; Hahn 2010). By being—or perceiving themselves as being—increasingly cut off from their livelihood conditions due to resource exploitation projects, local communities often rise up and demand justice. Conflicts are subsequently triggered by the unequal distribution of costs and benefits that either create new conflicts between local communities and other actors (such as extractive corporations) or aggravate pre-existing conflicts among community members and between communities from the larger area. Numerous studies have shown that resource extraction projects tend to lead to a variety of negative socioenvironmental impacts for local communities, particularly those which depend on subsistence agriculture (e.g., Kok et al. 2009; Greve 2011). For example, ecological conditions—such as the availability of water and fertile soil—are prone to be affected by resource exploitation; at the same time, substantial increases in migrant workers may challenge local markets and social settings. Furthermore, the unequal distribution of benefits and the subsequent justice claims are connected to financial profits generated from resource extraction. Whether already underway or predicted for the future, state actors along with local communities commonly associate resource extraction projects with the generation of significant profits. These profits, in turn, are frequently distributed to specific stakeholders—primarily extractive companies and their financial and political backers—in a way that other actors (particularly local communities) perceive as highly unjust (MiningWatch Canada 2013). Typical conflict constellations involve the state, extractive companies, and local communities. The state, for its part, sets the regulatory framework and has ­economic interests in large-scale projects. The state is often perceived as ­siding with companies and as intervening in favor of economic interests (e.g., through regulatory action or the use of force against its own population). Particularly, large-scale extractive projects in weak zones of governance are often not only controversially discussed but have the potential to escalate into violence. ­Extractive

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corporations—often with global operations—are powerful actors who possess superior technical knowledge and have financial and other resources at their disposal. Weak states are particularly dependent on these capacities, a condition that negatively influences their bargaining power. When conflicts erupt on the local level, communities often end up directly approaching corporations—or even a transnational public—since state institutions are either absent or perceived as weak and biased towards the companies. Moreover, companies are, rightfully, deemed as having the financial and other capacities to mitigate the community’s grievances. In order to receive more just benefits, locally-rooted opposition movements often seek assistance from local, national, and global NGOs that release public statements for empirically identifiable justice claims.

11.3 Conceptualizing Local Justice Claims Justice claims can be defined as claims for an entitlement (Welch 1993; Müller 2010).4 Justice claims are not an objective assessment but are based on the perceptions held by different actors. Hence, these claims express what actors believe they are entitled to (Welch 1993, p. 19). While justice claims may entail the formulation of positive ideas about justice-related principles, we assume that complaints related to perceived injustices are central in the statements made by local communities involved in resource conflicts. As Amartya Sen (2009) has argued, while people often possess “a strong sense of injustice” (p. 2), they may neither agree on the reason for this injustice nor on any ideas or principles for a perfectly just situation. Justice claims can be “self-referential (i.e. the actor perceiving the injustice would be the aggrieved party) or other-referential (i.e. the actor perceives an injustice suffered by someone else)” (Welch 1993, p. 19). In the case of local resource conflicts, self-referential justice claims are generally made by communities and their representatives. Other-referential justice claims could, for instance, be made by civil society actors, such as NGOs, on behalf of the affected ­communities.

4The

approach chosen is in line with the Just Peace Governance research program at the Peace Research Institute Frankfurt, where the empirical investigation of justice claims and justice-related conflicts is one of the main objectives (see Müller 2010; Daase and Humrich 2011; Poppe and Wolff 2013).

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One important objection to analyzing justice claims is that actors might strategically make use of the justice theme to mask inherently instrumental objectives (Müller 2010, p. 5). For example, local communities could use justice claims to mask their greed. Some scholars have, however, argued that justice arguments possess a different character (Welch 1993, pp. 20 f., 40 f.): An ­experience of injustice may, for instance, trigger “a unique emotional response”, and thus increase the likelihood of violent reactions (Welch 1993, p. 20). Moreover, the justice motive only refers to benefits that people perceive as entitlements; as such, any argumentation for the pursuit of these benefits tends to be “categorical and deontological rather than utilitarian” (Welch 1993, p. 21). Due to the methodological difficulties in differentiating between “real” and “pretended” rationales held by local communities—or NGOs that claim to speak on their behalf –, it proves useful to analyse more than just written or oral statements when inferring justice claims. In order to increase our understanding of these claims, contextual knowledge about conflicts along with data sources—such as observations made during field research—must likewise be taken into account. There are, however, no distinct criteria for distinguishing between “real” and “pretended” rationales—we have been well aware of this issue in the context of our research. Justice claims made by local communities need to be understood and carefully scrutinized within their context (Welch 1993, p. 42). For systematizing the empirical analysis, we conceive of justice claims as being sent by local communities and/or representative organizations (senders) to other involved actors (addressees) (see Fig. 11.1). Senders assume that these addressees have a say in the ongoing conflict and are, in turn, able to provide governance. Following the work of political theorist Nancy Fraser (2005; 2009), we distinguish between three types of justice claims: (1) claims for redistribution, (2) claims for recognition, and (3) claims for representation. Redistribution Claims for redistribution are a major issue both within nation states and beyond territorial borders (Wuppertal Institut für Klima, Umwelt, Energie 2006; Fraser 2009). As large-scale resource extraction almost always negatively affects local communities, the latter most probably perceive an entitlement to some material benefits resulting from natural resource extraction on their land. The specific demands of local communities are an empirical question; they may demand some form of direct monetary compensation, ask for education or health services, or insist on jobs with the extractive companies.

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Fig. 11.1   Local justice claims in resource conflicts. (Source: authors’ own illustration)

Recognition Recognition is a basic human need; hence, misrecognition has the potential to become a major source of frustration and conflict (Wuppertal Institut für Klima, Umwelt, Energie 2006; Fraser 2009, p. 14). As such, local communities might, first and foremost, demand respect and recognition from the state and/or corporations as comprising a group, including the acknowledgment of their existence and a serious consideration for their interests.5 Demands for recognition are often linked to claims for redistribution and representation as the recognition of a group by the state and corporations is a virtual precondition for achieving representation

5Note,

in this context, that the very implementation of resource extraction projects may contribute to processes of identity and group formation in the first place.

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and redistribution. Beyond the aim of gaining this sort of recognition, claims may also involve admissions of the harms inflicted on a community. More fundamentally, claims may refer to recognizing particularities such as the differing ways of life adhered to by specific groups. Representation Justice claims can also be made with regard to “the opportunity of representation and equality before the law” (Daase and Humrich 2011, p. 6). These claims relate to a procedural dimension of justice and aim at including certain groups in decision-making on societal issues. Debates related to free, prior, and informed consent (FPIC) serve as a prime example as they are one of the main outcomes of struggles by local communities claiming self-determination and participation in decision-making in the context of major resource extraction projects (Oxfam 2010). In general, these demands may focus on claims for consultation or on gaining more formal decision-making rights from the state. Extractive companies can also become the targets of representation claims. They may, for example, ensure that community representatives have a strong say in the design and implementation of core business activities and various social programs that most major companies conduct nowadays. Although the disentanglement of distinct justice claims is essential, the ­relationship between the three dimensions is, however, contested in theory and may also be blurred in the real world (Fraser and Honneth 2003). Questions concerning the redistribution of material resources, for instance, almost inevitably have ramifications for questions of recognition as resources can only be distributed to actors who are recognized as possessing legitimate stakes in a given conflict. Likewise, if particular local communities demand inclusion in political processes, this may indicate justice claims that are related to both representation and (some form of) recognition. Nevertheless, we argue that the analytical distinction between the three dimensions is useful as a heuristic tool. But the question of which dimension is most crucial in a given situation can only be answered by making use of empirical evidence. Governance initiatives as a response to justice claims Addressees of local justice claims can comprise a diverse set of actors. State actors intuitively come to mind since they bear prime responsibility for the population on their territory. State representatives are usually responsible for awarding contracts and licenses to corporations and they provide the regulatory framework within which extractive projects are conducted. In developing countries in particular, extractive corporations are obvious targets of local justice claims as they

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are often much more visible to the affected communities than state actors. Justice claims made by local communities can, however, also be addressed to other actors, such as international organizations, development agencies, local and international NGOs, or even the corporations’ home countries. Generally speaking, addressees of local justice claims may react in different ways: They can attempt to ignore local demands or they can choose to provide local communities with the demanded benefits. Alternatively, addressees can try to convince communities that they have misconceived the scope or content of the perceived entitlements (Welch 1993). In recent years, a range of governance initiatives has emerged in response to resource conflicts including the Extractive Industries Transparency Initiative that promotes transparency in the oil, gas, and mining industry, the recent Open Contracting Partnership, aimed at publishing extraction contracts made between governments and companies, or the Kimberley Process, seeking to curb the trade of conflict diamonds (Darby 2010; Carbonnier et al. 2011). In addition to their participation in a broad range of multi-stakeholder initiatives, transnational corporations are also recognized as important local governance actors, as they implement social responsibility and community development programs or provide basic social services to the communities in which they operate. The common feature of governance initiatives that involve the private sector is that they are usually voluntary in nature, i.e., neither states nor corporations are legally bound to follow particular procedures or provide certain benefits. In terms of substance addressed by the initiatives, most of them are focused on issues of transparency whereas regulations of corporate behavior that go beyond reporting requirements are rare. When responding to local communities’ justice claims, addressees are likely to engage according to their own conceptions of justice. Whenever senders and addressees of justice claims share similar notions of justice, it is likely that the latter will design and implement governance initiatives that attempt to address injustices as perceived by the local communities, thereby contributing to the mitigation of local conflict dynamics. In contrast, when local communities and governance actors adhere to differing notions of justice, resource conflicts are more likely to occur and escalate. The following analysis does not focus on conceptions of justice held by addressees but rather on governance initiatives used to respond to senders’ local justice claims. Given the prevalence of natural resource conflicts in developing countries, we expect empirical analyses to uncover serious justice gaps meaning that governance initiatives do not respond to and satisfy local justice claims. This is based on the assumption that the latter—i.e., corporations and state actors—likely adhere to substantially diverging notions of justice, which implies that their governance initiatives will not satisfy local demands. Alternatively,

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addressees may very well misperceive local justice claims and thus fail to address these claims adequately. In some cases, corporations might also consciously misinterpret or fail to recognize claims made by communities if they are deemed too far-reaching or costly. The consolidation and/or escalation of conflict dynamics— rather than their mitigation—is a probable consequence of either case.

11.4 Governing Justice Claims in Mining Conflicts in Peru 11.4.1 Natural Resource Conflicts in Peru Mining is the most important sector of the Peruvian economy. While its contribution to GDP ranged from 5 to 7% between 2005 and 2011, its share of export revenues amounted to 50 to 60% while its contribution to tax revenues was 14% in 2013 (CopperAcción 2013). Copper and gold are by far the most important mining products in Peru. In 2014, 543 mining operations were carried out with an additional 440 in the exploration phase (Minem 2014). While highly important to the economy, mining is also highly controversial in public discourse in Peru and many of the hundreds of mining operations have caused conflicts on the local level, often manifesting in protest and blockades and not rarely erupting in violence. One of the reasons that mining conflicts in Peru have received a degree of notoriety is that they are unusually well documented. As of August 2015, Defensoria del Pueblo (2015) documented 142 social-environmental conflicts, out of which 94 were mining conflicts.6 These conflicts have a set of typical characteristics that closely relate to Peru’s political history. The largest portion of mineral extraction is taking place in the Andes, where the Andean inhabitants of indigenous origin (so called campesinos) have experienced political and economic marginalization throughout Peru’s history. When mining projects arrive in these Andean communities, the conflicts that arise regularly center on the competition for scarce land and water resources, on environmental impacts, and the distribution of material benefits generated through mining (Bebbington and Williams 2008). These conflicts often manifest in the form of protests and street blockades

6Note

that the marked difference between the Peru-specific figures presented in this section and the world-wide as well as Latin America-specific figures presented above seems to primary result from an unfortunate interplay of discrepancies in definitions, different ways of counting, and severe data gaps.

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or attempts to forcefully enter mining compounds in order to bring operation to a halt (Arellano-Yanguas 2011). Formally speaking, the Peruvian state has devised a relatively broad set of policies and institutions for dealing with mining conflicts. The law requires ­Comprehensive Environmental and Social Impact Assessments (ESIA)—including public hearings of affected communities—to be conducted before a mining project is licensed. A number of governmental agencies are tasked with overseeing mining projects to enforce environmental and social regulations. A national revenue redistribution scheme, titled Canon Minero, is also in place. This scheme prescribes the imposition of a tax that mining companies pay to the central government. Once received, part of the tax revenue is redistributed to the regions and districts in which the tax-paying mine operates. As a result, mining communities rank among the richest areas in Peru (Arellano-Yanguas 2011). As for indigenous communities, Peruvian law foresees a so-called Consulta Previa, i.e., the right for these communities to be heard before any mining operation license is conferred in their territory (Schilling-Vacaflor and Flemmer 2015; Flemmer and Schilling-Vacaflor 2016). While these policies and institutional frameworks have the potential to address or even prevent the emergence of conflicts in theory, the problem—as is so often the case in countries with strong extractive sectors—lies in the implementation of these laws that requires strong governmental institutions. While Peru is not necessarily a state with weak levels of governance, national institutions are not present throughout the entire territory, with institutional presence particularly limited in the Andes (Arellano-Yanguas 2011). Furthermore, Peru’s economy remains dependent on revenues from the mining sector, leading the government to strive for an investment-friendly climate wherever it can. Consequently, the competencies of environmental authorities have been reduced time and again (Echave 2015). When conflicts do erupt between local communities and mining companies, the government is often perceived as siding with the company rather than with the community. The police or military forces frequently forcefully repress anti-mining protests and make excessive use of violence (Misereor 2013). Against this background, the government has recently embarked on a policy of dialog as a priority instrument for addressing mining conflicts. Since 2010, the so-called Mesas de Diálogo (Dialog Tables) have been installed across the country whenever mining conflicts emerge. The mesas are designed as multi-stake­ holder processes that involve the conflict parties—usually a mining company, a local community, and government authorities—and strive to settle the conflict through negotiation and compromise (Presidencia del Consejo de Ministros 2013). The following subchapters will scrutinise one of the many dialog proces­ ses in order to assess their potential for addressing local justice claims.

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11.4.2 Southern Peru Copper and the People of Ilo: Misperceiving Recognition as Distribution The dialog table under scrutiny was installed to deal with a conflict between the Southern Copper Corporation and the population of Moquegua. Civil society organizations (CSOs) in the port city of Ilo comprise the most outspoken sector of this local population, and their claims mostly involve environmental pollution resulting from the company’s smelter and refinery operations (Iniciativa Anticorrupcion Ilo 2012; Scurrah 2013; Grupo; Mesa de Diálogo de Ilo n. d.). Unless otherwise indicated, all empirical data used in the following subchapters was collected through participant observations during mesa sessions between June and July 2013. The Conflict between Southern Copper and the Town of Ilo The Southern Copper Corporation is one of Peru’s oldest mining companies. It operates two large open-pit copper mines in the southern part of the country: the Cuajone project in the Moquegua region and the Toquepala project in Tacna. Additionally, Southern owns a copper smelter and refinery in the port city of Ilo. Copper production in Toquepala and refining in Ilo began as early as 1960. The Cuajone mine, which has been in operation since 1976, still ranks 19th on the list of the world’s largest copper mines. The Ilo smelter ranks 13th (International Copper Study Group 2014, pp. 12, 18). Due to both its sheer size and its long history in Peru, Southern is often seen and portrayed as a corporation with very privileged access to political decision-makers. Southern benefitted from tax exemptions granted by Peru’s military government (1968–1980) while environmental regulations otherwise applicable to more recent mining projects have not been enforced on Southern for many years (Scurrah 2013, pp. 6 f.). Southern’s operations have been the subject of severe social conflicts for almost six decades. Though this subchapter exclusively focuses on the conflict between Southern and the population of Ilo—whose CSOs have always been among the most vocal protagonists in conflicts with the company –, the mining conflict operates on various levels and involves different communities across Peru’s southern regions of Moquegua and Tacna. Two specific issues have been central throughout the decades of struggle in Ilo and the Moquegua region. First, Southern has always held exclusive wateruse rights for several of the most valuable fresh water sources in the Moquegua region, which happens to be located at the outskirts of the Atacama, the world’s driest desert. As a result, the company has been able to satisfy its enormous water

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demand at no cost while the city of Ilo has increasingly faced water shortages (Balvín Diaz 2004; Scurrah 2013). Second, Ilo was heavily affected by the smelting facility’s emissions. Southern’s continued operations using technical standards from the 1960s resulted in extreme levels of air pollution in the city, which was repeatedly confirmed by various governmental authorities. Although the capture of 99% of sulphur dioxide emissions in copper production has long been the standard elsewhere, Southern operated without any emission controls in Ilo for 35 years (Boon et al. 2001, p. 219). As early as 1968, a national law required Southern to begin reducing its emissions but was later repealed after a change in government. As recently as 1998 Southern completed an upgrade for capturing 33% of emissions, still leaving them at levels that a WHO investigation deemed dangerous to human health (Boon et al. 2001, p. 219). The complete modernization of its operations that brought emissions controls up to current technological standards was only completed in February 2007 (Southern Copper 2007). Complaints about these emissions and their impacts arose just months after the smelting facility in Ilo had begun operations in 1960 (Scurrah 2013, p. 6). In fact, Ilo’s vibrant CSOs emerged as a result of this very conflict. These organizations have led many street protests and have repeatedly tried to use Peruvian state institutions to forward their claims. For example, they sought administrative investigations by responsible authorities, such as the national water authority (Autoridad Nacional del Agua, ANA) and the environmental monitoring agency (Organismo de Evaluación y Fiscalización Ambiental, OEFA). They have filed lawsuits in Peru and even took their claims to the United States when US investors still held a majority share in Southern (Interview 1). In the course of these struggles, the organisations built valuable human capital since technical expertise was needed to provide evidence of the dangerous levels of emissions and their impacts on air quality, human health, or agricultural production (Interview 2; Scurrah 2013, p. 40). In 2007, when Southern completed the modernization of its facilities, the CSOs based in Ilo achieved their primary objective of significantly reducing harmful emissions. Justice claims against Southern did not, however, subside as a result. On the contrary, Ilo’s population subsequently demanded material compensation for 46 years of uncontrolled emissions (LABOR 2006; Mesa de Dialogo de Ilo n. d.). From an analytical perspective, it is reasonable to classify this demand for compensation as a recognition-related justice claim. At first sight, the local claims undoubtedly aimed at (re-)distribution: Ilo’s population now demanded material benefits to compensate for past damages to their lives. At the same time, however, the people of Ilo also demanded the official acknowledgement of their suffering

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and the subsequent recognition of the company’s wrongdoings. Hence, recognition was particularly important to the local actors. This became evident in many personal and written exchanges in which CSOs complained that company representatives, among other things, showed “a lack of respect for the people of Ilo when alleging that there had been no environmental impacts of the metallurgical operations” (Interview 3). The governance response: A mesa de diálogo Mesas de diálogo have become popular all across Peru over the past decade. They are one of the most important policy instruments for the central government in response to the many social conflicts revolving around mining projects throughout the country (Presidencia del Consejo de Ministros 2013). On the initiative of the new regional government led by Martín Vizcarra in 2012, a new mesa was established to deal with the conflicting issues involving Southern in the Moquegua region. This initiative complemented two other, closely related, mesa processes: In Moquegua itself, the regional government had successfully concluded a mesa with the incoming mining company, Anglo American, while local communities in the Tacna region successfully negotiated a new deal with Southern (Interviews 1, 2, and 4). The mesa with Anglo not only succeeded in securing an extraordinarily high social contribution from the company to the region, but also—and more importantly—resulted in significant changes in the mining company’s operational plans, particularly with regards to its water use management plans (Interviews 5 and 6; Scurrah 2013; see also Elliott 2013). As a result of the mesa, Anglo’s operations would greatly reduce the company’s reliance on freshwater resources that have competitive uses in local agriculture. The mesa with Southern in Tacna, for its part, was primarily lauded for the social contribution that Southern agreed to pay in exchange for the expansion of its Toquepala mine. Following these recent and proximate examples, Martín Vizcarra proposed an analogous process with Southern and succeeded in securing its implementation (Interview 2; Scurrah 2013). The institutional design of the Southern mesa resembled the model that has been rolled out all across Peru. It was created by a ministerial resolution and is tripartite in nature, incorporating government representatives along with CSOs and the company (Presidencia del Consejo de Ministros 2013). The mesa has likewise adopted some regional particularities copied from the Moqeuguan mesa with Anglo. Among these regional specificities was the regional government’s very strong role in the proceedings. More precisely, the plenary was led by the regional president, who had also presided over the mesa with Anglo and was seen

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to have personally contributed to its success (Flohr 2014). The Southern mesa met regularly between October 2012 and April 2014. Its mandate was broadly formulated as “analyzing the hydrological, environmental, and mining problems with Southern in the region of Moquegua” (Mesa de Diálogo 2012, p. 1, authors’ own translation). Misperceived Justice Claims The mesa had a broad mandate to “analyze” a variety of issues related to the conflict with Southern.7 From its first plenary sessions, however, it became evident that the demand for compensation for environmental damages would be a central issue for many mesa participants, particularly civil society representatives (Grupo Iniciativa Anticorrupcion Ilo 2012). The latter regularly raised this concern at plenary sessions, often resulting in heated confrontations with representatives from Southern. The company’s representatives highlighted that this topic was not part of the mesa’s mandate and that they were not ready to discuss the issue. Southern argued that a claim for compensation was totally ill-founded as Southern’s operations had always complied with the applicable laws. Hence, the alleged past environmental impacts were no longer a matter for discussion since large investments into upgrading the refinery and smelting facility to current technical standards had solved the problem (Interviews 7 and 8). For the people of Ilo, the technological upgrade was insufficient for c­ orrecting the past harm they had suffered, and they therefore continued to demand compensation. While both social contributions and compensation entail a transfer of money, compensation also responds to claims for justice through recognition (of past harm inflicted) while social contributions do not. Consequently, the conflict between Southern and the community in Ilo was reinforced rather than mitigated. Any time this topic emerged, the discussions at the mesa would stall. For Southern, discussing the issue of compensation was completely off the table; for the people of Ilo, compensation was their primary demand. The controversy was clearly understood as an issue of justice, specifically justice as a form of recognition. This is evident in light of the statements made during mesa sessions where

7Indeed,

the very mandate of the mesa regularly became the topic of fierce debate. During the sessions, Southern would often point out that the mesa was overstepping its competencies when it went beyond an “analysis” of the problems and sought accords on possible solutions.

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citizens of Ilo reacted with indignation to propositions by Southern to make a (financial) “social contribution” to the region of Moquegua in exchange for a continued “social license to operate”. Ilo representatives frequently intervened to clarify that, in their view, any such discussion about a social contribution was meaningless unless a debate about “compensation” for the environmental and health impacts the people had suffered from Southern’s operations in the past was started. The fact that the people of Ilo demanded compensation instead of a contribution indicates that this was a matter of justice as recognition (as victims of mistreat­ ment at the hands of Southern) rather than justice as distribution—even though material benefits would ultimately be distributed one way or another. However, the nature of this local justice claim was misperceived by most of the mesa parti­ cipants and by Southern’s representatives in particular. According to the latter, the mesa in the Moquegua region was a mistake in the first place as the company did not plan to make changes in their Moqugua operations and was, therefore, not obli­ ged to secure any form of societal consent. In Southern’s view, the only reason that the people of Ilo demanded a mesa in Moquegua related to the fact that the company had agreed to pay a social contribution in Tacna and Moquegua sought to receive the same benefits. As the company argued, the contribution in Tacna was due to an expansion it planned for its Toquepala operations; since the com­ pany did not plan any expansion in Moquegua, there was no need to negotiate a ­benefit-sharing agreement with the locals. As is evident in the above analysis, attempts to resolve the long-standing ­conflict pertaining to Southern’s operations—and its past emissions in particular—through a mesa de diálogo was ill-conceived from the start. The Peruvian Mesas are, by their very nature, meant to facilitate collaborative processes that bring about compromise solutions through multi-stakeholder dialog. Such an instrument could not address the central claim of the population of Ilo—compensation of past damages. Claims for compensation are invariably confrontational rather than dialog-oriented. One side believes it has been unduly harmed by the other, while the other side is unlikely to voluntarily acknowledge and act upon this claim. Indeed, even if the party inflicting damage accepted its responsibilities and “voluntarily” paid compensation, this outcome would still most likely not satisfy the party making the claim. This owes to the fact that claims for compensation inherently imply claims for rectification or punishment. Claim-makers want the accused parties to be faulted and publicly punished by a super-ordinate third

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party; this is the only outcome that would suffice to satisfy their recognitionrelated demands. In formal legal systems, courts, for example, provide this form of recognition (and often impose some type of compensation), particularly in criminal proceedings that result in identifying guilt. For cases, in which a proceeding is sought by one party, out-of-court settlements are often not an option since the recognition-related claims remain unfulfilled without a formal identification of guilt—despite the pecuniary result being very similar. In fact, the people of Ilo were seeking an official and ideally legal identification of Southern’s wrongdoing, which could not have come from Southern itself. In this sense, the mesa, with its collaborative proceeding, was an inappropriate venue for the compensation claim from the very beginning. Even if two thirds of its tripartite structure were ready to publically recognize Southern’s “guilt”, the company would have always refused. This deficiency of the mesa as a governance instrument for the mining conflict was apparently overlooked by all the parties involved. The regional government knew that the past damages done by Southern would be a central issue and even so installed the mesa. The Ilo-based CSOs expected that their claim for compensation would finally be heard. Southern apparently believed that it could use the mesa to secure its social license to operate without dealing with compensation claims.8

11.5 Conclusion Justice claims are ubiquitous in local conflicts involving natural resources. In this chapter, we sought to present an analytical framework for studying such conflicts. This framework departs from the justice claims made by local communities defined as perceived entitlements. The framework differentiates among three dimensions of justice: justice as distribution, representation, and recognition. The assumption is that empirical analyses reveal serious gaps in justice between local communities—as senders of these claims—and their addressees—be they corporations, state actors, or others. Consequently, addressees may simply decline local

8At

the time of writing (September 2015), the Southern mesa in Moquegua was ongoing because a technical commission, named “social contribution”, had been unable to work out a compromise. Though field research for this chapter was last conducted in 2013, the misperception of justice claims presented here is likely to remain the principal reason that the mesa participants remain unable to produce a mutually acceptable resolution for the local mining conflict up to the present day.

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claims or their governance activities will not satisfy the senders. Alternatively, addressees may misperceive the nature of local justice claims and, therefore, fail to properly address them. The consolidation and/or escalation of conflict dynamics is a likely consequence in either case. This argument was illustrated through a case study of a local mining conflict in Peru. In this conflict, the population of the port city of Ilo in Peru’s Moqeugua region had been protesting against the operations of the mining company Southern Copper and its metallurgical complex in Ilo for decades. The population demanded from Southern to assume responsibility for the environmental and health impacts it had inflicted on Ilo. While the community demands compensation for these impacts, attempts at resolving the conflict have regularly failed since they do not take the justice dimension inherent in a claim for compensation into account: Seeking compensation for past damages involves a recognition-based claim. All attempts at resolving the conflict, including the most recent multi-stakeholder dialog process, have, however, resulted in Southern offering the community a social contribution, at best—which resembles a distribution-based claim. The proposed framework for studying empirical justice claims can be applied to local conflicts in different countries and in relation to various types of natural resources. A result of further research could be the identification of similarities and differences of justice claims. To what extent are justice claims – similar in regard to their content and addressees – put forward by local communities in different regions of one country or across several countries? To what extent do justice claims have regionally or culturally specific characteristics? What can account for the similarities and differences identified? Further empirical research might also highlight cases in which local justice claims have more comprehensively been addressed and indicate whether this has led to more effective mitigation of the underlying resource conflicts.

List of Interviews Interviews were conducted in addition to participant observation at mesa sessions. All interviewees were promised anonymity. Interview 1: Focus group discussion with Ilo civil society, 1 July 2013 Interview 2: Civil society member, Lima, 1 May 2013 Interview 3: Written communication with civil society member, Ilo, on file with the author

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Interview 4: Representative of regional government, Moquegua, 28 June 2013 Interview 5: Representative of Anglo American, Global Headquarters, 18 April 2013 Interview 6: Representative of Anglo American, Peruvian Headquarters, 7 June 2013 Interview 7: Representative of Southern Copper Corporation, Moquegua, 28 June 2013 Interview 8: Representative of Southern Copper Corporation, Ilo operation, 9 July 2013

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