The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case

Abstract

For many political observers the successful creation of the International Criminal Court (ICC) came as a surprise, as major powers, in particular the United States, had opposed the plans for the ICC. Moreover, the institutional design of the ICC entails enormous sovereignty costs for states but only uncertain benefits. An analysis of the negotiations suggests that the court's successful creation can be attributed to persuasion and discourse within negotiations, that is, a shift in states' interests. The article develops a theoretical model of institutional change that defines the conditions under which persuasion and discourse can affect collective decision making. In particular, this study attempts to show that if (traditionally) weaker actors alter normative and institutional settings of negotiations they can further the chance of persuasion and discourse.

Representing Mass Violence: Conflicting Responses to Human Rights Violations in Darfur

“…The American story is particularly interesting as the United States has never ratified the Rome Statute and generally keeps a critical distance from the ICC. William Schabas (2004) in fact writes about "United States hostility to the International Criminal Court" (see also Deitelhoff 2009). Specifically with regard to Darfur, the United States initially displayed considerable resistance against a referral of the Darfur situation to the ICC.…”

Business and Human Rights: Analysing Discursive Articulation of Stakeholder Interests to Explain the Consensus-based Construction of the ‘Protect, Respect, Remedy UN Framework’

“…Business organisations gain power from liaising with political elites "as business is the key motor of economic growth on which the political system is so dependent". In other cases, NGOs have successfully used strategies of persuasion to affect changes the positions of states' interests (Deitelhoff, 2009). Kolk (2001) found that business organisations generally favour voluntary initiatives and self-regulation to public regulation, partly because self-regulation enables the self-regulator to decide for themselves what they want to do.…”

Dos aproximaciones a la racionalidad comunicativa: analizando la deliberación democrática y los procesos de aprendizaje colectivo

“…Other studies -probably more interesting to political scientists -include the analysis of the emergence of cosmopolitanism and cosmopolitan norms (Benhabib, 2006;Delanty, 2013); cases of normative learning in legal revolutions (Brunkhorst, 2014); the creation of the International Criminal Court (Deitelhoff, 2009); environmental discourse and environmental policy making (Eder, 1995); informal political talk and learning processes regarding the definition of social identities and the formation of political perspectives (Walsh, 2004); Germany's path into modernity and the evolution of the German political culture during the 18 th and 19 th centuries (Eder, 1991), or the democratising dynamics of the European public sphere (Eder, 2007b;Statham and Trenz, 2014;Trenz and Eder, 2004). These are mostly case studies in which the goal is to account for the unfolding of events in time, examining turning points and how previous events paved the way for subsequent ones, whilst foreclosing alternative courses of action.…”

“…First, it has been contended that discourse might give rise to "islands of persuasion" (Deitelhoff, 2009), this is, it might shape communicative interactions in such a way that they closely approximate the ideal speech situation. This is what the standard, political theory perspective would also call deliberation.…”

“…Self-entrapments occur when social actors behaving strategically have to accept validity claims contrary to their interests in order not to appear inconsistent and discredit themselves -that is, in order to continue pretending that they are acting according to the rules of discourse (when they are not). Although there is a difference between genuinely behaving according to the rules of discourse and simply pretending to do so, the point is that argumentative self-entrapments lead, at least superficially, to changes in an actor's discourse, which can constitute a crucial turning point in a wider process of opinion formation (Deitelhoff, 2009, shows this for the case of the creation of the International Criminal Court). On these occasions, it is consistency and the force of arguments that carries the day, even if social actors are not really moved by the force of arguments, but by the desire to save face.…”