This book takes the transatlantic conflict over the International Criminal Court (ICC) as the lens for an enquiry into the normative foundations of international society. It shows how the way in which actors refer to core norms of the international society, such as sovereignty and human rights, affect the process and outcome of international negotiations. The book offers an innovative take on the long-standing debate over sovereignty and human rights in international relations. It goes beyond the simple and sometimes ideological duality of sovereignty versus human rights by showing that they are not competing principles in international relations, as is often argued, but complement each other. The way in which the two norms and their relationship are understood lies at the core of actors' broader visions of world order. The book shows how competing interpretations of sovereignty and human rights and the different visions of world order that they imply fed into the transatlantic debate over the ICC and transformed this debate into a conflict over the normative foundations of international society.
This book aims to understand the US failure to impose its political preferences on the institutional design of the ICC and the subsequent transatlantic debate over the Court by exploring the discursive dynamic of this conflict. From this perspective, the official statements and explanations of diplomats and negotiators concerning the ICC become the main focus of research, since they are the main site of political power struggles. This chapter introduces the main themes of the book and explains why the book focuses on the transatlantic debate over the ICC.
This chapter discusses theoretical approaches to sovereignty and human rights and their mutual relationship. The aim is to overcome their major shortcoming, that is, the hierarchical dichotomy between sovereignty and human rights. The discussion argues that both sovereignty and human rights are contested concepts. The contestation of their meaning emerges from the typical ambivalences incorporated in each concept. By combining these ambivalences, a discursive formation opens up that consists of four competing discourses, each of which claims to constitute the same object, i.e. the configuration of sovereignty and human rights. It also introduces core theoretical concepts such as discourse, discursive power and hegemony. In addition, it includes a discussion of the methodological approach.
This chapter covers the legalistic discourse which achieved a hegemonic position in the course of the debate about the ICC. The legalistic discourse draws upon the Enlightenment tradition and adopts its emphasis on progress understood as rationalisation, legalization and the professionalisation of politics. According to legalists, the ultimate telos of progress in international relations consists of a just and peaceful international order that is based upon international law. Moreover, proponents of legalism hold that such an international order has to be symmetrical in the sense that all states are considered as equal regardless of their actual size and power. A specific feature of the legalistic discourse is the fact that it comprises two different strands. The first perceives the international society of states as the most vital point of reference for human rights, whereas the second puts the world society of individuals to the fore.
This chapter is devoted to the interventionist discourse. Though interventionists are aware of the relevance of international law and human rights, they oppose the legalistic idea that human rights are best enforced by professional legal bodies such as the ICC. Instead, they argue that the implementation of human rights on a global scale should be left to powerful states, to which they attribute the role of vigilantes. Vigilantes are actors that enforce legal provisions on behalf of the international society, thereby substituting themselves for the central authority that the international society is lacking. Interventionists hold that the ICC in its eventual shape represents an impediment to the enforcement of human rights on a global scale rather than facilitating this task, since the Rome Statute does not reflect the exceptional role of great powers.
This chapter addresses sovereigntist discourse. Sovereigntism bears similarities to the legalistic discourse in as much as it equates order with the rule of law. Yet according to sovereigntists, legal institutions have to be embedded in constitutional structures, which the international society of states is largely lacking. For this reason, sovereigntists consider the domestic level of states as the only viable and legitimate venue for the enforcement of human rights. They emphasise that courts are only able to guarantee due process if they are incorporated into the constitutional structures and democratic checks and balances within a state. For sovereigntists, international legal institutions rest upon the consent of single states. Viewed from this perspective, advocates of sovereigntism also criticise the universal aspirations of the ICC, as it claims to have jurisdiction over citizens of non-party states.
Progressivists questioned the usefulness of the ICC per se. According to them, we face a trade-off between the prosecution of offences against international humanitarian and human rights law on the one hand and the demand for democratisation on the other: if authoritarian leaders assume that they will face trial for their crimes, they will try to remain in power for as long as possible and even risk the continuation of armed conflict. Progressivists emphasise the framework of domestic politics as the appropriate venue for the enforcement of human rights. At the same time, they consider the international level as crucial for human rights issues. However, they perceive international society as an ‘invitation-only club’ access to which should depend on the domestic human rights record of states. For advocates of progressivism, international order and peace are mainly derivative of the domestic structure of states.
The transatlantic debate about the establishment of the ICC involves four discourses, each of which constructs the configuration of sovereignty and human rights in a specific way. This chapter summarises the findings and discusses them with reference to several questions: first, what conclusions can we draw from the US stance on the ICC? And second, how can we explain the fact that the UK and France shifted their positions on the Court in 1997 and 1998, respectively? The conclusion discusses what consequences emerge from the fact that different actors in international relations have different conceptions of international order and the role that sovereignty and human rights are supposed to play within that order. It examines how this affects the concept of international society.