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date: 16 August 2017

International Norm Change

Summary and Keywords

In the first wave of scholarship on international norms, the primary task was to convince a skeptical discipline that norms affect domestic and international outcomes. A second phase of international norms research developed political theories of the emergence and establishment of new international norms. Transnational actor models as well as “legalization” and “rational design” approaches tested propositions on norm creation but did not theorize what happens after norms are created. General norms inevitably collide with the relentless specificity of experience. Actors constantly dispute the meaning and application of norms. The resultant arguments modify the norms being contested, and the modified norms then shape subsequent behavior and disputes. The third wave of international norms research has focused on the inherent dynamism of norms and norm systems. Norms emerge through processes of transnational advocacy and institutional design, but they also evolve through cycles of application and disputation.

Keywords: international norms, international law, disputes, contestation, norm change, empirical international relations theory

Introduction

When research on international norms started to take off in the 1980s, the first task was to pry open scholarly space for norms in a field still dominated by realism and neorealism. Scholars of international norms had to produce the evidence that norms affect domestic and international outcomes (Finnemore, 1996; Klotz, 1995; Nadelmann, 1990; Price & Tannenwald, 1996).1 A second phase of international norms research developed political theories of the emergence and establishment of new international norms (Brysk, 1993, 2000; Finnemore & Sikkink 1998; Risse-Kappen, Ropp, & Sikkink, 1999). A third wave of international norms research has focused on the inherent dynamism of norms and norm systems, seeking to theorize the processes and mechanisms by which norms evolve through use (Sandholtz, 2007, 2009a; Krook & True, 2012). Of central interest here are the theoretical advances and empirical research associated with the second and third waves.

Foundations

Despite the flourishing of theoretical and empirical research on international norms, some conceptual vagueness remains surrounding core terms. Even the crucial terms “norm” and “rule” suffer from some lack of precision. For instance, defining norms as “collective expectations about proper behavior for a given entity” (Katzenstein, 1996, p. 54; Finnemore, 1996, p. 22; Checkel, 1999, p. 83) muddles rather than clarifies. The problem is that expectations, even shared ones, are not the same thing as norms and may not be connected to norms. If meteorologists predict a heat wave, we all expect that the high temperatures will dry out our gardens. We may even adjust our behavior, watering the most delicate plants. But there is nothing normative about either our expectation or the resultant behavior (Onuf, 2008, p. 444). There is nothing necessarily normative about shared, or social, expectations. In some countries, when supporters of rival soccer teams are seated next to each other, everyone expects violence, not because there ought to be violence but because such situations tend to produce it. Shared expectations are therefore not the definition of norms but rather an effect of norms. Norms generate expectations about behavior because members of a group believe that most people will conform to social norms most of the time. As Onuf puts it, “Norms are social, but sharing expectations does not make them so” (Onuf, 2008, p. 446).

A norm is a “standard of appropriate behavior for actors with a given identity” (Finnemore & Sikkink, 1998, p. 891). What distinguishes norms from other social facts (e.g., customs, traditions, values, or fashions) is their prescriptive quality, the sense of “oughtness” attached to them. In other words, norms are standards of conduct intended to regulate behavior. They are “prescriptive generalizations” (Schauer, 1991, pp. 25–27). Or, in Onuf’s more extended definition, norms (or rules) “address some class of agents, describe some class of actions as appropriate conduct for those agents, and link agents and standards with ought-statements: agents ought to behave in accordance with standards” (Onuf, 2008, p. 450). Thus, sovereignty is not a norm: “[P]olitical scientists tend to slip into discussions of ‘sovereignty’ or ‘slavery’ as if they were norms, when in fact they are (or were) collections of norms” (Finnemore & Sikkink, 1998, p. 891). Sovereignty is a normative idea, or a principle, but in itself it does not establish standards of conduct. It is easy to state norms that give content to the principle of sovereignty: “States may not exercise any functions of government in the territory of another state,” or “States shall not intervene in the internal affairs of other states.” These are norms, but sovereignty in itself is not.

Onuf’s definition of norms points to a second fundamental misunderstanding, which is the alleged distinction between norms and rules (Onuf, 2008, pp. 443–450). In some international relations usage, “norm” seems to refer to standards of conduct that are more general or less formal, or both. “Rule,” again in some international relations usage, appears to denote standards of conduct that are more specific (at a finer level of detail) or more formal, or both. This distinction confuses rather than clarifies. Rules and norms are not different things. Both are standards of conduct for a set of actors in a given context. Norms (and rules) vary in formality, specificity, and organized enforcement (Stone, 1994). Clarity will be served by recognizing that norms and rules are the same thing (standards of conduct) and then identifying the levels of specificity and formality of particular norms when it is important to do so. For example, laws are a subcategory of norms with a high level of formality, created through processes recognized as “legal.” Laws also vary widely in specificity and organized enforcement. Here the terms “rule” and “norm” are used interchangeably.

Theories of Norm Creation

A large body of research has theorized, and explored empirically, the creation of new norms. Typically, studies in this vein have focused on proscriptive norms, that is, norms that rule out a formerly permitted behavior (Nadelmann, 1990). The frameworks deployed to analyze norm creation typically frame it as the outcome of pressure politics played out at the transnational level. Norm activists or entrepreneurs start with a normative idea and mobilize civil society groups or networks, both within and across states, to support it (Keck & Sikkink, 1998). These alliances bring pressure to bear from above (transnationally) and below (domestically) (Brysk, 1993, 2000). The result can be a “norm spiral” (Risse, Ropp, & Sikkink, 2013; Risse-Kappen et al., 1999) or “cascade” (Finnemore & Sikkink, 1998), as states accept the norm, at least formally. The process of norm creation is complete when the new rule is internalized in domestic law and institutions and, ideally, becomes part of the taken-for-granted context that guides policy-making (Finnemore & Sikkink, 1998; Risse-Kappen et al., 1999). Research on the expansion of rights and the creation of new human rights norms also emphasizes the role of activists, advocates, and NGOs in framing issues and setting agendas (Nelson & Dorsey, 2008; Bob, 2011; Brysk & Stohl, 2017).

The transnational politics approach to norm creation has informed a substantial body of empirical research, at least in the area of human rights. It is less a hypothesis-generating, falsifiable theory than it is an organizing framework for understanding and explaining norm emergence (Finnemore & Sikkink, 1998). The “spiral model,” for instance, offers an ideal-typical five-stage model, beginning with activists who challenge repressive governments and ending (ideally) with routinized compliance (Risse-Kappen et al., 1999, pp. 5–7). When the conditions identified in the stages of the model are met, the new norm is established and guides state behavior. When the five stages fail to develop, the new norm will not emerge or it will not shape behavior. The model is thus not a predictive theory in the classic sense of falsifiability. But it has broad scientific utility because it provides a framework for systematic understanding of the process of norm creation.

The originators of the “norm spiral” project revisited it a dozen years later and reviewed empirical research making use of the model. The empirical studies in the original volume had not been offered as a test of the theory but rather as a demonstration of the model’s plausibility and utility (Risse et al., 2013, p. 5). Comparative case studies were the appropriate tool for generating “empirical evidence for the general validity” of the model (Risse et al., 2013, p. 7). Looking at the empirical work published since, Jetschke and Liese found that a broad variety of single and comparative case studies had applied the model in order to test its causal mechanisms. Their assessment found general support for the model, especially the first three stages (repression, denial, tactical concessions). There was less empirical support for the last two stages (prescriptive status, rule-consistent behavior). The review pointed to the need for further development of the framework to address resistance and “counterframes,” as well as to the need for ongoing mobilization in the latter stages (Jetschke & Liese, 2013). Simmons reviewed some parts of the spiral model in light of quantitative research on human rights. She noted that no one has claimed to test the model as a whole but that “[s]ome of the relationships documented in the quantitative scholarship are at least partially consistent with” parts of the original spiral model (Simmons, 2013, p. 44), in particular the latter stages moving toward compliance.

Two other theory projects make claims regarding norm creation in international relations. The “legalization” project seeks to explain what its framers describe as a “move to law” in international relations: “some international institutions are becoming increasingly legalized” (Goldstein, Kahler, Keohane, & Slaughter, 2000, pp. 385–386). Legalization could thus be seen as norm change of a particular kind, that is, a trend toward giving legal form to international norms. In fact, however, the framework is only about norm creation: “[i]t explains why actors choose to create legalized institutions” (Goldstein et al., 2000, p. 386). Perhaps surprisingly, for a project that takes the move to law seriously, the legalization framework incorporates none of the dynamism—the incessant adaptation—that is inherent to law and legal systems. As Finnemore and Toope note, the legalization volume treats “law as an artifact—something created by state choice,” ignoring legal process, legal argumentation, and law’s embeddedness in “contemporary social aspirations and the larger moral fabric of society” (Finnemore & Toope, 2001, pp. 749–750).2 Instead, the legalization project is about the moment of creation and the theory stops there. The single empirical study in the legalization volume that does analyze the dynamic development of a legalized system (the European Union [EU]) barely refers to the dimensions of legalization (obligation, precision, delegation).3 And it does not make use of the legalization framework to explain the development of the EU’s legal system (Alter, 2000).

The failure of the legalization volume to address the dynamism inherent in legal systems is also evident in its nearly complete inattention to customary international law. Customary law is, by definition, law that evolves as state practice and beliefs about legal rules (opinio juris) shift. By changing with a changing world, customary law “ensures that the rules of international conduct remain current with the needs and expectations of the international community” (Bederman & Keitner, 2016, p. 18). The legalization project is about the design of formal legal institutions. It says nothing about what happens after legal rules or institutions are in place. There is no attention to the processes by which legal norms are adjusted and modified through practice and application.

The legalization project has not generated much systematic testing. In the volume’s empirical studies (applying the legalization framework to three distinct issue areas: monetary relations, trade, and human rights), legalization concepts did little of the analytical work. Instead, other concepts (signaling, credible commitment, information) were central to the analyses (Goldstein & Martin, 2000; Simmons, 2000). In one study, greater legalization was associated with lower compliance, though the framework had not theorized a relationship between legalization and compliance (Lutz & Sikkink, 2000). Subsequent empirical work makes reference to the three dimensions of legalization but without gaining theoretical leverage from the framework as a whole.

A second approach that addresses norm creation is the “rational design of institutions” project. Its main goal is “to offer a systematic account of the wide range of design features that characterize international institutions,” where international institutions are defined as “explicit arrangements, negotiated among international actors, that prescribe, proscribe, and/or authorize behavior” (Koremenos, Lipson, & Snidal, 2001a, p. 762). In other words, the “rational design” project is also about norm creation, since the function of international institutions is to regulate behavior through prescriptive, proscriptive, or authorizing rules (Koremenos et al., 2001a, p. 762). Six independent variables (including three uncertainty variables) and five dimensions of institutional design (the dependent variables) offer an “explanatory framework” (Koremenos et al., 2001b, p. 1052). The framers of the project set aside possible interactions among the independent variables and narrow the 30 potential bivariate relationships down to 16 conjectures. Each empirical study in the volume addresses one substantive issue area and a subset of the 16 conjectures. The findings are generally consistent with the framework’s conjectures, though mixed in some cases (Koremenos et al., 2001b, p. 1055). But the evidence is limited in multiple ways: some of the conjectures were addressed in only one or two of the empirical studies (one was not addressed in any), and the studies did not attempt to assess interactions among the explanatory variables. Interactions may offer the most interesting causal relationships, but also the most complicated and potentially confounding ones.

Koremenos has recently extended and refined the rational design approach, both theoretically and empirically. Her “continent of international law” (COIL) framework explains key features of formal international agreements (treaties), including flexibility, centralization, scope, and control. The main explanatory variables are (1) the nature of the underlying cooperation problem and (2) the characteristics of participating states in the aggregate. The theory linking these variables to various design choices generates a series of hypotheses that are tested with data from a random sample of 234 treaties. The quantitative data analysis is broadly consistent with the hypotheses (Koremenos, 2016).

Like the legalization project, the rational design approach stops at the moment of creation. It is about the origins of formally institutionalized norms and not about what happens once those rules are in place and actors try to apply them to their own conduct and the conduct of others.

The Inherent Dynamism of International Norms

Although theories of norm creation are well developed, international relations scholarship has paid far less attention to the inherent dynamism of norms and norms systems, that is, to what happens after norms have been created.

The stability of international norms is a necessary illusion. For rules to guide behavior, actors need to see them as establishing fixed standards of conduct at a given moment. Even law, the most codified, formal subset of norms, is a motion picture. The image is constantly moving, but any instant it is frozen in a specific frame. For practical purposes, the frame at the moment is crucial because it guides our own behavior and the conduct of others. But the moving picture has been of central interest to scholars. What Roscoe Pound said about law holds for norms in general: “Law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change” (Pound, 1946, p. 1). The starting premise for the approaches discussed in this section is that norm systems are dynamic; once established, they generate the conditions for their own transformation.

Theory: Cycles of Norm Change

Norm change is continual, a product of the collision of general rules with the “relentless particularity of experience” (Eckstein, 1988, p. 795). The tension between general rules and specific actions triggers disputes, which generate argumentation, which in turn modifies the rules themselves (Sandholtz, 2007, chap. 1). This process can be depicted as a cycle (Giddens, 1984; Stone Sweet, 1999; Sandholtz, 2007, p. 11).

Phase I: Norm structures. The cycle begins with the constellation of existing rules, which provide the normative structure within which actors decide on a course of action, justify their conduct in terms of the rules, and evaluate the behavior of others. Assume a rational maximizer who acts within a social context structured by norms. She attempts to foresee the costs and benefits of potential courses of action, given the limitations of time, resources, and cognitive capacity. She must therefore anticipate which actions would be deemed (by other relevant actors) as compatible with norms; acts judged by the relevant community to violate norms are likely to lead to some form of sanction (ostracism, shaming, financial or material penalties, or even violence). To engage in this anticipatory calculation, the actor must understand not only the relevant norms but also current standards for interpreting and applying them. This requires her to assess past disputes and the justifying arguments that have proven persuasive. Lawyers engage in this kind of normative reasoning all the time, but actors in nonlegalized and informal social settings do as well. Indeed, the capacity to reason about rules in complex ways, including in situations of normative ambiguity and conflict, may be innately human (Sugden, 1989, pp. 89, 95).

Phase II: Dispute. Although rational actors constantly engage in normative reasoning, disagreements about the meaning and application of norms are inevitable. Rules cannot spell out the behavioral requirements for every situation, nor can they foresee all possible circumstances or disagreements. All norms include a “penumbra of doubt when we are engaged in bringing particular situations under general rules” (Hart, 1994, p. 123). Or, as MacCormick puts it, “Almost any rule can prove to be ambiguous or unclear in relation to some disputed or disputable context” (MacCormick, 1978, pp. 65–66). Two kinds of tensions arise as actors seek to apply norms to specific situations (Krook & True, 2012, pp. 109–111; Sandholtz, 2007, p. 10). The first is the one indicated by Hart and MacCormick, namely, the tension between norms that are inevitably more general than the circumstances in which they are supposed to guide behavior. The second tension is between different norms that could apply to the same action or problem. Contradictions between different rules, or sets of rules, are inevitable (Kratochwil, 1989, pp. 62, 190; Lowe, 2000, pp. 213–214; Schachter, 1991, pp. 20–21). Rules to protect dolphins, for example, collide with rules of free trade. International human rights norms can be tension with norms of noninterference in the internal affairs of other states.

In other words, normative change is not the product of abstract reflection over gaps and contradictions in norms. Rather, norm gaps and contradictions mean that many actions are contestable on normative grounds. Thus, specific actions trigger disputes, as one actor seeks to justify behavior and others condemn it, with both sides invoking what they see as the relevant norms.

Phase III: Argumentation. Sooner or later, despite her best efforts at anticipatory normative reasoning, an actor does something that triggers opposition or condemnation. She finds herself embroiled in a dispute. To win, she must persuade other relevant actors that her conduct complies with the group’s rules and therefore should not be sanctioned. Critics of her behavior will make the opposite argument. In other words, the arguments are normative, even if the outcomes at stake may involve material payoffs (trade and investment flows, arms reductions, borders). As actors argue about which rules apply and how they should be interpreted in the context of a dispute, the direct parties to a dispute (for instance, the United States and Afghanistan after the September 11 attacks) are not the only participants in the argumentation. Additional states with some perceived interest (whether material or normative) in the dispute will also join in.

In order to prevail, actors cannot simply argue that an outcome should be preferred because it serves their interests. Indeed, the point is that actors must argue rather than merely assert self-interest, especially in order to persuade third parties (actors not directly involved in the dispute). And normative arguments require, as Elster points out, a certain degree of impartiality (Elster, 1995, pp. 246–247).

Only when one side can impose its will unilaterally might a dispute escape the boundaries imposed by normative argumentation. But such situations are probably rare, even in international politics. Powerful states virtually always seek to justify their conduct in terms of international norms, as Russia did when it invaded Crimea. The arguments offered may be cynical and may persuade no one, but states almost never seek to justify their actions purely in terms of interest and power. This is the case because “violations . . . are rarely cost-free even to powerful states” (Schachter, 1991, pp. 7–8). Even the use of force by major powers—the U.S. invasion of Iraq in 2003, the Russian annexation of Crimea in 2014—is never presented as a simple exercise of power and interest but is always justified in normative or legal terms. The 2003 U.S. invasion of Iraq offers a telling illustration.

The United States justified the invasion of Iraq as a permissible exception to the Art. 2(4) prohibition on the use of force. In fact, the United States claimed both Charter-based exceptions: Security Council authorization (via earlier resolutions on weapons of mass destruction in Iraq) and preemptive self-defense (Sandholtz, 2009b, pp. 223–229). Not even the United States’ only major ally in the invasion—the United Kingdom—accepted the preemptive self-defense argument, though it did claim a legal basis for the invasion in prior Security Council resolutions (Goldsmith, 2003, para. 3; United Kingdom Parliament, 2003, para. 51–52). U.S. arguments failed to persuade either the Security Council or the international community more broadly that the use of force against Iraq was permissible under international norms (Sapiro, 2003, p. 603). Even important U.S. allies, including Canada, France, and Germany, held that the invasion would be illegal without a new Security Council resolution. Because much of the world regarded the invasion as contrary to international norms, multilateral support for the effort was not forthcoming.4 Only three other countries participated in the invasion itself (though others sent military personnel for various tasks associated with the occupation and reconstruction of Iraq): the United Kingdom, Australia, and Poland. The invasion was carried out by about 150,000 U.S. troops and 23,000 from the other three countries; about 20,000 of those came from the United Kingdom (Al Jazeera, 2011).

Because international support for the invasion of Iraq was limited, the United States bore the bulk of the cost of the war and of the occupation. The contrast with the 1991 Persian Gulf War is instructive. The 1991 Persian Gulf War had been authorized by the Security Council, which in turn made it possible for a large number of countries to contribute militarily or financially. The 1991 war in Iraq cost the United States a total of some $96 billion (constant 2008 dollars), but a large share of that financial burden was borne by U.S. allies, so that the “[n]et costs to U.S. taxpayers totaled $4.7 billion” (Daggett, 2008, p. 3). In comparison, the 2003 war in Iraq cost the U.S. $648 billion (2008 dollars) (Daggett, 2008, p. 2). The long-term costs of the Iraq War will be far greater, probably at least $3 trillion (Stiglitz & Bilmes, 2010). The heavier financial burden of the 2003 Iraq War for the United States is the product, in part, of the perceptions of many countries that the war was unlawful and, in part, of their consequent unwillingness to support it.

Disputes thus open “a dynamic . . . marketplace of rules” (Bederman, 2010, p. 20). Actors make normative bids and counterbids, attempting to gain support for their favored interpretation of the rules. Competing norms can exist, each with some support: “there could be a period of time during which the two [customary rules] coexist until one of them is generally accepted” (Shaw, 2003, p. 86). The “marketplace” metaphor is apt, but the discursive struggle over interpreting and applying rules is also like an ongoing plebiscite in which members of a community define the rules under which they will live. Participants in the dispute try to win “votes” for the rules and interpretations that they prefer. The process is analogous to the development of customary international law, as new interpretations of the rules “should to some extent mirror the perceptions of the majority of states” (Shaw, 2003, p. 75). But it is not a pure democracy because some votes count for more than others. Power is a crucial factor in norm contestation, and both material and discursive resources confer greater influence on shaping the arguments that lead to norm change (Sandholtz, 2007, chap.1; Shaw, 2003, p. 75).

Phase IV: Norm change. The outcome of dispute-driven normative arguments is always to modify the existing norms. Rules cannot emerge from this process unchanged. The direction of change is clearest when broad support, including the most relevant actors, emerges in favor of one interpretation of the norm over others. The relevant actors will vary from dispute to dispute. For a dispute between neighboring countries, other states in the region may be the relevant community. For disputes in a particular issue area, countries with a direct stake may be necessary for any emerging consensus (for example, in cross-boundary pollution). For some topics, states with strong domain-specific interests or capabilities will be crucial participants (for example, maritime powers in law-of-the-sea disputes.) In other domains, nonstate actors may be influential, offering arguments that persuade states and other actors. For instance, in human rights issues, domestic and transnational activist networks can play an important role in framing the arguments that reshape international norms (Brysk, 2000; Keck & Sikkink, 1998; Risse et al., 2013).

The preexisting rule is the default. If it obtains broad support among states,5 including the most relevant ones, the preexisting norm remains in place but not unchanged: the norm has been strengthened. It has survived contrary behavior and argumentation challenges; the outcome of the dispute is thus a reinforcement of the rule. If an alternative interpretation gains broad support, including the most relevant actors, the preexisting rule has been modified.

Unfortunately, there can be no a priori standard for what constitutes sufficiently “broad” support for a normative argument to prevail. It will almost certainly vary from one context to another. In some settings, broad support implies a majority of states, including those states most concerned with the domain being regulated (Shaw, 2003, pp. 75–76). For instance, postwar international norms supporting decolonization and condemning apartheid emerged with more than majority support at the global level. In other domains, norm change can occur with support from smaller sets of states. For example, for the revival of international criminal accountability for atrocities, in the form of the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda, support, or at least acquiescence, of the permanent members of the Security Council was crucial.

If argumentation fails to produce broad agreement, the norms in question remain subject to continuing contestation (Byers, 1999, pp. 154, 158). Many international norm arguments take decades or longer to reach resolution. Some debates fade away with no clear outcome, only to be revived at a later period. The long duration and the on-and-off nature of some international norm debates affirm the necessity, in many instances, of taking the long historical view. Arguments that are inconclusive in the short term may be part of more consequential long-term processes (Sandholtz, 2007, chap. 1).

Given the centrality of disputes and argumentation to processes of norm change, a predictive theory of norm change would require a theory of normative argumentation. That is, we would need to be able to predict which arguments are likely to prevail. Though specific predictions may not be possible, the cycle theory of norm change does offer broad expectations. Normative claims are more persuasive to the extent that they:

  1. 1. Receive support from multiple powerful states;

  2. 2. Are compatible with existing and widely accepted norms; and

  3. 3. Draw on more, and more recent, precedents, since precedents embody the conclusions of similar past disputes (Sandholtz, 2007, chap. 1).

Although it may not be possible to predict ex ante the normative outcome of disputes, what is certain is that the norms cannot remain unchanged. The outcome of norm disputes and arguments is always to modify the norms, making them stronger or weaker, clearer (or more ambiguous), more specific (or less), broader (or narrower). The cycle of norm change has thus completed a turn, and the modified rules establish the norm context for subsequent actions, disputes, and arguments.

Empirical Research

At the most abstract level, cycles of norm change occur in two kinds of social settings, the dyadic and the triadic (Shapiro, 1981, chap. 1; Stone Sweet, 1999). In dyadic contexts, the parties to a dispute seek to define a solution between themselves, that is, without recourse to an external mediator, arbitrator, or judge. In that sense, dyadic settings are formally anarchic (which is not to say without order), because there exists no authoritative dispute resolver outside the dyad. Dyadic dispute resolution can thus take multiple forms: imposition (a stronger party coerces a weaker one), negotiation, or persuasion. Such forms of dispute resolution are ubiquitous; they occur between spouses, labor and management, many interstate conflicts, and so on. Describing a dispute resolution process as dyadic does not mean that only two actors are involved. Multilateral disputes (that is, disputes involving more than two parties) can be seen as a collection of linked bilateral relationships. The label “dyadic” simply refers to the absence of an outside adjudicator. Triadic dispute resolution embraces all settings in which, in addition to the parties themselves, there is a “third party” (which can also be a collectivity of multiple actors, including enforcers), who assists in finding, or authoritatively determining, a resolution to the dispute. Empirically, forms of triadic dispute resolution vary along a continuum that roughly stretches from mediation to arbitration to adjudication. As we move along this continuum, the authority of the triadic entity vis-à-vis the parties is enhanced and institutionalized in ever more formal rules and procedures (Shapiro, 1981, chap. 1).

The trajectory of norm change—whether a rule is becoming stronger or weaker, for instance—is generally not visible in a single dispute, just as a single point cannot define a line. But norm change in one episode shapes the normative context for subsequent disputes, and normative shifts accumulate. Norm change must thus be observed through chains of disputes linked across time (Sandholtz, 2007, chap. 1), whether in triadic or dyadic contexts. The following paragraphs illustrate empirical research on both triadic and dyadic international dispute resolution and norm change.6

International Courts and Triadic Dispute Resolution

International courts are an important site of triadic dispute resolution and norm change. Indeed, courts offer the archetypical model of cycles of norm change. Disputes lead to a judgment, which often modifies the underlying legal norms; that is, judges inevitably make law. Judgments, in the form of precedent, shape both the arguments and the outcomes of subsequent disputes, even in courts (like international courts) where there is no formal, binding precedent (Venzke, 2012; von Bogdandy & Venzke, 2013). As Alter has argued, “new style” international courts are reshaping “how international legal agreements are understood domestically and internationally,” thus “shift[ing] the meaning of law in ways that are unexpected and politically irreversible” (Alter, 2014, pp. 5, 9). Although the body of quantitative scholarship on international courts is sizeable and rapidly growing, the empirical work that demonstrates cycles of norm change as theorized above necessarily focuses on chains of episodes. Each episode represents a cycle of change, and episodes are linked through time, with cumulative effects that can entail dramatic shifts in the content of international norms.

Early studies in this vein focused on the European Court of Justice (now the Court of Justice of the European Union, or CJEU). The CJEU issued a string of judgments that created the doctrines of supremacy and direct effect, in effect constitutionalizing the Treaty of Rome (Stein, 1981; Weiler, 1991). Other decisions catalyzed the revival of harmonization through mutual recognition (Alter & Meunier-Aitsahalia, 1994). The CJEU has played a similar role in developing EU law in multiple domains, including the free movement of goods (Stone Sweet, 2004, chap. 3), agricultural policy (Jupille, 2004, chap. 6), air transport (O’Reilly & Stone Sweet, 1998), environmental protection (Cichowski, 1998; Stone Sweet, 2004, chap. 5), sex equality (Ellis, 1998; Cichowski, 2004, 2007, chap. 3), and telecommunications (Sandholtz, 1998).

The regional human rights courts have similarly produced change in international human rights norms through dispute cycles. The European Court of Human Rights (ECtHR) has been the most influential human rights court in the world. Through chains of case law, the ECtHR has altered regional norms across a wide variety of substantive and procedural rights (Brems & Gerards, 2013), with far-reaching effects in the domestic law and practices of its member states (Keller & Stone Sweet, 2008). The Inter-American Court of Human Rights has similarly, case by case, expanded the scope of human rights norms in the Americas in multiple domains (Burgorgue-Larsen & Úbeda de Torres, 2011). Other regional courts have played similar roles. The Andean Tribunal of Justice has built intellectual property law in the Andean Community through a series of judgments (Helfer, Alter, & Guerzovich, 2009). The Economic Community of West African States (ECOWAS) Community Court of Justice has constructed a human rights jurisprudence essentially from scratch (Alter, Helfer, & McAllister, 2013). At the global level, the World Trade Organization’s dispute settlement mechanism has developed international trade law (Hudec, 1993; Steinberg, 2004; Shaffer, Elsig, & Puig, 2017), each case constituting a turn through the cycle of norm change (Stone Sweet, 1999).

Dyadic Dispute Resolution and International Norm Change

Dyadic dispute resolution in international relations takes many forms, ranging from the exchange of diplomatic communications to armed conflict. Empirical research on cycles of international norm change focused first on demonstrating the plausibility of the central theoretical claim that norm change occurs through linked cycles of disputes. To demonstrate the utility of the model, empirical analysis should produce two main kinds of evidence. First, it should show that the rules did in fact change. Second, it should show that normative change occurred in the cyclical process proposed by the theory. Further evidence of the cyclical dynamic would consist of observable changes in the nature of argumentation. That is, the kinds of arguments that are deemed acceptable and persuasive should change as the underlying norms evolve.

The first empirical probe of the theory focused on the development of norms against wartime plunder of cultural artifacts and sites (Sandholtz, 2007). The research identifies, a priori, the kinds of situations that would offer the strongest evidence of the existence of a new norm against plunder. Against the backdrop of hundreds of years in which plundering was considered the normal reward for victory, compelling evidence of the antiplunder norm would consist of countries that (1) prevail in war; (2) were not plundered themselves; (3) oblige defeated plunderers to effect restitution to third countries; and (4) do not engage in plundering of their own. The analysis covered nearly 200 years of norm development, beginning with the Napoleonic Wars and ending with the U.S.-led invasion of Iraq in 1991. Napoleonic plundering triggered a process of norm change that replaced the norm permitting cultural plundering in war with one that prohibited it.

For centuries, the accepted—and well-practiced—norm was that the victor in war was entitled to carry away the cultural treasures of the vanquished. The Romans celebrated their conquests with elaborate parades of the cultural icons taken from their defeated foes. The custom continued in medieval and modern Europe. During the Napoleonic Wars, the French gathered artistic masterpieces from every corner of Europe and brought them to Paris to stock the Musée Napoleon, later to become the Louvre. Moreover, the French explicitly invoked their right to the fruits of victory under the traditional laws of war. But at the negotiations in 1815 following Waterloo, the allies (excepting Russia) insisted that the treasures brought to Paris by the French armies must be returned to their prewar owners. Subsequent cycles of disputation and norm change were triggered by the 1870 Franco-Prussian War and World War I.

The norm against plunder was severely tested by the immense cultural plundering carried out by the Nazis in World War II. Nazi cultural looting violated norms that had developed in previous dispute cycles and that had been codified in the 1907 Hague Convention (IV). The dispute was therefore different from the one that occurred in 1815. It was no longer possible to argue that plundering was legitimate; indeed, the Nazis did not claim that their plundering was justified by the earlier norm of “to the victors go the spoils.” Instead, they argued that the looting was a gathering of German cultural patrimony, which had been seized in previous wars. The arguments among the allies focused not on whether there should be restitution but on the principles that would guide it and on the practical means of carrying it out. As a direct result of this experience, international norms were significantly clarified, elaborated, and formalized, first in the Nuremberg trials and more substantially in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.

The empirical analysis thus establishes two essential points: (1) that norms changed, and (2) that the process of change resembled the cyclic pattern proposed by the theory. A crucial similarity between the Napoleonic and Nazi cases further supports the cycle theory of norm change. Key states—Britain in 1815 and the United States in 1945—declined to exercise the once unquestioned right of victors. These countries prevailed in war and were therefore in a position of power, from which they could assert the historic claim to the cultural treasures of the defeated. Yet both backed policies of restitution. Their support for restitution cannot be construed as simple self-interest because neither country had been the victim of looting. In addition, though both were in a position to plunder if they wished to, both refrained from doing so.

The cycle theory captures essential features of norm change in other substantive domains: conquest, piracy, terrorism, extraterritoriality, slavery, genocide, refugees, humanitarian intervention, the emerging right to democracy (Sandholtz & Stiles, 2009), and the norm that states should not profit from aggression (O’Mahoney, 2014). Finally, research has probed more specific propositions implied by the cycle theory of norm change. For example, the theory claims that arguments based on precedent should carry persuasive weight even in dyadic disputes (not involving a third-party dispute resolver). A study of Security Council arguments over humanitarian intervention shows that states were keenly aware of the persuasive power of precedent. States large and small cited previous Security Council debates and decisions in arguments over potential new occasions for humanitarian intervention (Sandholtz & Sweet, 2004).

Conclusion

Theories of international norm change have followed one of two main paths. Several approaches focus on norm creation, that is, the emergence of new norms. Transnational politics approaches theorized the conditions under which networks of domestic and transnational actors, exerting pressure on governments from above and below, can bring about the adoption of new norms through norm spirals or cascades. Empirical research, with some caveats and theoretical adjustments, has generally found evidence consistent with theoretical expectations. The “legalization” and “rational design” approaches similarly focused on the creation of new norms. What these approaches lack is a means of understanding what happens after norm creation, as norms inevitably collide with the relentless particularity of behavior. That is, they do not address the dynamic process of change that is inherent in all normative systems. The theory of cycles of norm change seeks to model that internal dynamic. In empirical studies, the theory captures broad features of norm change over long stretches of time and across diverse substantive domains.

Still, our understanding of processes of norm change remains incomplete and, in many respects, tentative. For instance, norms can change in multiple ways, not just in their substantive content. They can become clearer or more ambiguous, more subject to exceptions or less, stronger or weaker. We need to understand better which kinds of disputes and argumentation lead to different kinds of change. We need a clearer grasp of when disputation and contestation strengthen norms and when they weaken norms, with suitable measures of norm strength or robustness. Finally, we collectively need to address what happens when actors cease to accept the legitimacy of norms and cease to comply with them. Do norms die, or, more likely, are they replaced by different rules? In the current world moment, with rising challenges to fundamental international norms and institutions, understanding the dynamics of norm weakening and replacement may be particularly urgent.

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Notes:

(1.) Research on international norms has burgeoned over the past 20 years or so. The overview offered here sketches major trends in general terms and mentions only a few representative works. It does not attempt to catalogue all of the areas in which significant norms-related scholarship has developed, much less to mention the many scholars who have contributed to its development. For instance, research on international norms has made significant advances in analyzing norm diffusion and socialization, norm localization and adaptation, norm contestation, compliance with international norms, and legalization and judicialization. Those important bodies of research are not assessed here.

(2.) For a fuller development of legal process, “criteria of legality,” and the importance of the law’s social embeddedness, see Brunnée and Toope (2010).

(3.) In any case, the three dimensions (precision, obligation, and delegation) predate the legalization project. See Stone (1994).

(4.) Of course, countries may have opposed the invasion for reasons other than its violation of international norms. Some may have deemed the invasion politically unwise or not worth the cost. But the point here is that the lack of an acceptable normative (or legal) justification was one factor influencing states not to support the war.

(5.) The general argument presented here assumes an international system still dominated by states. That assumption would be modified in domains where other actors play central roles in defining, applying, and interpreting norms. Examples could include investor-state and international commercial arbitration, as well as nonstate standards of corporate social responsibility. The general argument holds regardless of the nature of the actors.

(6.) The discussion that follows does not pretend to be a comprehensive survey. The research literature on international courts, for example, is immense, and many important contributions will necessarily go unmentioned here.