1

Global Governance Efforts in Tension between

Humanitarian Concerns and Statist Sovereignty Rights

by

Gregor Hofmann & Simone Wisotzki

(Peace Research Institute Frankfurt)

Paper prepared for the Panel "Ideas of Justice in Conflict"

at the 7th ECPR General Conference Sciences Po, Bordeaux, 4-7 September 2013

Draft Version. Please do not cite without permission from the authors.

Abstract:

The paper focuses on the role of justice claims for global governance. It connects to debates

on Ethics in International Relations (cosmopolitanism/communitarianism) as well as on glob-

al justice in International Political Theory (IPT) and International Relations (IR). The paper

seeks to contrast these normative debates with empirical case study analyses. It asks whether

and how differences in justice claims of states relate to norm conflicts. The paper also aims to

show that conflicting justice convictions of states can become considerable stumbling blocks

for multilateral negotiations. Justice claims of states which aim at strengthening individual

rights, such as human rights or human security, often collide with statist sovereignty convic-

tions such as the right of non-intervention, territorial integrity and non-interference. The paper

seeks to exemplify such clashes of ideas in examining different recent negotiation processes

and governance efforts at the United Nations, such as Responsibility to Protect (R2P) or the

Arms Trade Treaty (ATT).

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1. Introduction

Global challenges and interdependent problems such as poverty, migration or world economic

crises set limits to the policy options of each single nation state. Severe human rights viola-

tions mobilize the world public and set the international community of states under pressure

to take actions even without the prior permission of the country in conflict. But what do hu-

manitarian interventions imply for human rights norms and world order policy? Is the consti-

tutional norm of sovereignty and its underlying principles of non-intervention, self-

determination, territorial integrity and non interference an anachronism and no longer sacro-

sanct? The realist scholar Krasner argues that sovereignty is nothing more than “organised

hypocrisy” and rightfully stated that no principle has been more often breached than the con-

stitutional norm of sovereignty (Krasner 1999). Nevertheless, global governance regulations

emerge that underline shifting grounds of international order. New norms increasingly reflect

a careful balance between human rights concerns and notions of sovereignty. When viewing

multilateral negotiations, states often clash in their positions: Some states argue for the

strengthening of individual human rights, while others insist on the continuing value of the

constitutional norm of sovereignty. We argue that from a social constructivist perspective, the

dynamics of global governance regulations can be grasped more adequately than insisting on

a (neo-)realist perspective.

The clash of ideas between individual rights and states’ claims of sovereignty is picked as a

central theme by international political theory (IPT) and by some schools of thought in Inter-

national Relations. Some theorists of International Ethics and Global Justice argue that world

order reflects signs of cosmopolitanism insofar as individual (human) rights outweigh statist

concerns of non-intervention and non-interference. The protection of individual rights is given

priority over the constitutional norm of sovereignty (Pogge 1992: 58). Universal principles of

justice are to be owed to every human being, independent from origin and nationality (Caney

2005: 102-147; Moellendorf 2002: 36). From such a cosmopolitan perspective, states and

human beings alike bear a moral responsibility to prevent human suffering and are obliged to

fight against global injustice. This preference of individual rights is primarily countered by

states of the Global South which argue that in the process of decolonisation the institution of

the state and the constitutional norm of sovereignty have become a symbol of liberation and

emancipation. While some of these states favour the strengthening humanitarian aspects of

world politics, they frequently voice their suspicion that Western states hide strategic interests

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behind their efforts of pushing human rights beyond their own borders. In the practice and

routines of multilateral negotiations different notions of justice collide and often become

stumbling blocks to effective outcomes. Negotiations are turned into arenas where opposite

positions of justice reflect countering beliefs about a rightful world order.

In our research project we seek to examine the causal mechanism of rival justice claims on

global governance regulations. Our dependent variable is examined at three different stages:

the generation process, the dynamics and normative deepening of the regulation, and finally

the application of the regulations in zones of (post)-conflict. We believe that unsolved justice

conflicts not only inhibit effective generation processes, but ultimately reemerge at review

conferences and also affect the application of regulations. For the project, we choose three

relevant policy fields: humanitarian intervention, humanitarian arms control and women’s

rights. The independent variable concentrates on deciphering contrasting justice claims of

state agents. We start from the assumption that a basic clash of ideas exists in the question of

individual/state rights which is expressed in the antagonism between human rights versus

sovereignty. Moreover, rival justice claims can also be identified beyond this antagonism. We

start with the categorization of Nancy Fraser and roughly distinguish between justice claims

of distribution, recognition and participation (Fraser 2008).

For this ECPR paper we chose to present a small section of this larger project. Here, we con-

centrate on two case studies of two different policy fields: R2P can be defined as a case of

successful global governance when concentrating on its generation process; it has been ac-

cepted unanimously by the UN General Assembly in 2005. The Arms Trade Treaty is our

unsuccessful case, since states failed to reach consensus in two negotiation rounds. We seek

to exemplify the causal mechanism of conflicting justice claims and its effect on the negotia-

tion outcome of the two different negotiations. Despite the differences in the objects of regu-

lations both show a similar clash on ideas of justice and more prominently in the antagonism

between human rights and sovereignty principles. The paper and the project seek to connect to

a desideratum of global governance research and follows Michael Zürn’s demand for a broad-

er perspective rather than just focusing on questions of legitimacy and effectiveness of regula-

tions (Zürn 2008: 577).

In Chapter 2 we start from a social constructivist approach and demonstrate where our empir-

ical research on global justice connects to existing research on norms and global governance.

Chapter 3 concentrates on aspects of justice in negotiations and presents an overview of the

“state of the art”. We then elaborate on the core ideas of justice which often become conflict-

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ual in multilateral negotiations. Chapter 4 discusses the methods we draw on in our research

project. Chapter 5 and 6 present some first and preliminary results on the two case studies of

the R2P and the ATT.

2. Global Governance and Norms in IR

Several IR theories address the role of norms at different stages of global governance regula-

tions.1 While rationalist approaches such as neo-institutionalism and regime theory point to

the relevance of states’ interests for generating and maintaining institutions, constructivism

assigns relevance to the effects of persuasion and norm socialization (Checkel 2001; Has-

enclever/Mayer/Rittberger 1997; Klotz 1995; Müller 1993). More recent rationalist approach-

es stress the socialization process of the homo economicus and highlight the nexus between

interest- and norm-based agency (Grobe 2011: 731; Hindmoor 2011). Nevertheless, neither

rationalist nor constructivist approaches concentrate systematically on the effect of rival jus-

tice claims for the generation processes of global regulations, their norm dynamics and their

compliance. We define justice as part of the larger moral system and as a metanorm which

affects all other political means, as for example the process of norm generation and their dy-

namics. An order is just, if all actors receive their share (suum-cuique principle) whereas the

principles of distribution might remain contested at a global scale. Such contestation about

distributive justice often ends in rival claims of justice and conflict between the negotiating

actors (Welch 1993).

IR theorists generally differentiate the research on norms along two perspectives. The re-

search on norm socialization grasps norms as stable phenomena and independent variable.

This strand concentrates on the conditions of norm generation, the processes of norm applica-

tion and on the effects norms might have on shaping states’ politics (Checkel 2001, 1999,

1997; Risse et al. 1999). The second perspective in IR-research identifies norms as changing

objects and concentrates on the complex processes of norm dynamics. Throughout their life

cycle norms remain contested. Norm contestation nevertheless allows norms to gain legitima-

cy insofar as the validity and meaning of norms are more clearly defined. However, the norm

1 Norms can be defined as “a standard of appropriate behavior for actors with a given identity” (Finne-more/Sikkink 1998: 891). For the purpose of the paper, we draw on the definition of regime theory which dif-ferentiate between principles, norms and regulations for constituting regimes (Müller 1993: 26). However, we do not treat norms as given or stable facts: even though norms can be stable for a certain period in time and thereby guide actors’ behavior, they are at the same time dynamic and contested, because they have different meanings for different actors (Wiener 2008: 50).

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life cycle might also include degeneration and the erosion of norms (Wiener 2009; McKeown

2009; Rosert/Schirmbeck 2007; Cortell/Davis 2005, 2000). Such a perspective perceives

norm generation and norm application as continuous negotiation and interpretation process.

Only through such processes of interaction and conflict norms can evolve and become inter-

subjectively shared standards of appropriateness which also encompass regional or local adap-

tations (Archaya 2009; 2004; Capie 2008; Sandholtz 2007; Wiener 2008; Elgstrom 2000).

Even from this perspective norms have some stabilizing effects as part of the global world

order, but this view stresses more rigorously the moments of contestation and continuous dis-

putes between negotiating states (Wiener/Pütter 2009; Wiener 2007). Whenever such norms

prescribe changes in states policies and ask for curtailing states’ sovereignty, the level of con-

flict and opposition against such regulations might increase (Deitelhoff 2009: 189; Zürn

2008).

Fundamental norms such as sovereignty can become contested between negotiating parties.

Disputes about the constitutive role of sovereignty emerge particularly in those negotiation

situations where sovereignty clashes with other fundamental norms, such as human rights

(Sandholtz/Stiles 2009; Wiener 2009). States seem to have different subjective preferences in

regard to universal and particular values which are also reflected in their preferences for cer-

tain justice claims. Conflicts about fundamental norms have become part and parcel of a larg-

er justice perspective: Justice conflicts in multilateral negotiations often arise when states ei-

ther push for statist rights (sovereignty) or individual rights (human rights). Nevertheless, the

problem of “justice is conflict” encompasses more aspects than the dispute about the validity

of fundamental norms. So far, the question of rival justice claims has not been systematically

addressed as part of IR’s research on norms. To what extent are different notions of justice

engine or stumbling block for successful norm generation processes?

The research on global governance in IR also concentrates on the conditions for successful

regulations. From this perspective, the legitimacy and effectiveness of regulations are key

variables for their successful evolution.2 Legitimacy as the ‘right to rule’ points to the appro-

priateness and acceptance of norms, their compliance, as well as to the role of democratic

institutions (Hurd 1999: 388). Insofar, legitimacy encompasses aspects of justice, such as

fairness and equal participation rights (Deitelhoff 2009; Müller 2007; Lynch 2000). Ap-

proaches of global governance stress in particular the role of deliberative procedures and rou-

2 Zürn criticizes the monism of global governance and asks for more innovative approaches of global governance research which reaches beyond the question of legitimacy and effectiveness (Zürn 2008: 577).

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tines in order to gain legitimacy of norms (Risse 2000: 7). Empirical case studies nevertheless

indicate that commonly shared interpretations of norms and a common lifeworld as a shared

reference ground are rare and limited among diplomats at the United Nations (Müller 2007:

216; Müller 1994: 33). Therefore, our project seeks to address to what extent convergent no-

tions of justice are a necessary condition for effective global governance.

3. Justice in Negotiations

In the discipline of International Relations there are only a few studies on the role of justice in

multilateral negotiations. In contrast, justice plays a more prominent role in other scientific

disciplines such as social psychology or evolutionary biology. Brain researchers seek to iden-

tify those areas in the human brain where reactions to perceived injustice can be located

(Singer 2007). Anthropologists categorise cultures according to their mixtures of justice sys-

tems (Fiske/Haslam 2005). There are numerous other scientific disciplines where the empiri-

cal research on justice has gained prominent space. Among them, empirical sociologists un-

dertake laboratory studies to measure the types of justice principles human beings use in dis-

tributive conflicts (Liebig/Lengfeld 2002). This form of empirical research on justice aims at

analysing justice as one of the core motives of social relations. In contrast to normative ap-

proaches of political theory and philosophy justice does not become a yardstick for morally

rightful behaviour or a criterion for judging social institutions. Empirical research on justice

merely asks for social conditions of choosing specific notions of justice. Our social construc-

tivist approach reflects some parallels to these forms of sociological empirical research on

justice. Both rely on the idea that human beings argue by drawing on different justice claims

which frequently become objects of renewed conflicts. Ultimately, rival justice claims also

affect negotiation outcomes of global governance.

The few existing empirical studies on the role of justice in IR draw on Welch’s (1993) exami-

nation of the relationship between perceived justice and decisions to wage war. His findings

indicate that justice claims aggravate negotiations and enhance the probability of using force.

He also points to the tension between justice claims of states and an insufficient international

order which cannot guarantee that legitimate claims will be realilzed and enforced (Welch

1993: 196). Albin and Albin/Druckman identify conflictual notions of justice as decisive issue

for multilateral negotiations and in particular for peace negotiations after ending civil wars.

Conflict solutions become more sustainable and lasting if the peace agreement also incorpo-

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rates agreements on conflictual justice claims (Albin 2008, 2001; Albin/Druckman 2009).

Substantive justice claims, such as distributive justice, as well as aspects of fairness strength-

en peace agreements and help to prevent a new outbreak of violent conflict (Albin/Druckman

2010: 110). Zartman concludes that a consensual agreement on contrary justice claims is a

necessary condition for effective and sustainable conflict resolution (Zartman 2007). This

contradicts the findings of Mayer who admits only a weak relationship between justice and

the robustness of regimes (Mayer 2006).

For the purpose of our research on the role of justice conflicts in multilateral negotiations we

start from the research on norm contestation and the role of fundamental or constitutive norms

in IR. Justice conflicts play a prominent role in moral philosophy as the debates between indi-

vidual versus state rights in cosmopolitanism and communitarianism reflect. Similar antago-

nisms exist in the English School of IR between solidarist and pluralist approaches. At the

core of the debate the question of solidarity beyond borders is critically reflected in both mor-

al philosophy and in IR. Are there universal moral obligations that justify state actions beyond

their own borders to prevent gross human rights violations and protect foreigners if their own

government fails to do so?

Divergent positions of state actors on the role and relevance of human rights and sovereignty

as antagonist justice claims or fundamental norms can be identified in multilateral negotia-

tions. Especially in the policy field of security, the generation processes of global governance

regulations are dominated by conflicts on the priorities of fundamental norms for world order

purposes. For a starting point, two main perspectives can be identified. From the first perspec-

tive, state actors argue that sovereignty and the principle of non-interference are anachronisms

and stumbling blocks on the path of a universal value system which might constitute a future

world order system: Such positions are mostly articulated by state actors of the Western hem-

isphere.3 From the second perspective, state actors argue that the fundamental norm of sover-

eignty continues to remain a norm which guarantees statist rights of autonomy, postcolonial

independence and equality in a world order which is perceived to be fundamentally unjust.

Such arguments and positions are primarily relied on by states of the Global South. Both sides

nevertheless argue that their opponents use their justice claims with strategic intent in order to

hide strategic interests and to realize their convictions of world order. From our point of view,

this assumption needs to be questioned. To argue that justice claims only hide rational-

3 For the purpose of the paper, we start from ideal-type assumption. Our empirical analyses indicate a far more diverse picture. For a first overview we refer to Chapter 6: Conclusion.

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utilitarian interests of states overlooks the possibility of different logics of appropriateness

which are behind these contrary notions of justice. The project seeks to examine norm genera-

tion processes and the role of conflictual justice claims. We aim at contrasting the normative

approaches in moral philosophy and IR, which assume that world politics increasingly reflects

cosmopolitan values, with empirical cases of multilateral negotiations of regulations in ‘hard’

cases of the field of security policy where the ideational conflict between justice norms such

as sovereignty/human rights is particularly relevant. In order to identify the different dimen-

sions of justice (distribution, recognition and participation/fairness), we first rely on the con-

ceptualizations of moral philosophy and political theory (Fraser 2008).

3.1 Ideas of Justice in Conflict

Moral philosophy and political theory first and foremost concentrate on questions of justice

within the state. From the perspective of political theory states are responsible for their citi-

zens and for realizing a just society. In his ”Theory of Justice” (1979) Rawls draws on the

model of a liberal-democratic state. In “Justice as Fairness” (2001) he continues to stress the

relevance of democratic principles of decision-making and prioritizes them over other princi-

ples of justice. Nevertheless, Rawls remains critical about the possibilities of establishing

common principles of justice at a global scale. In “Laws of the People” (1999) he develops a

two-tier model for principles of humanitarian law in liberal foreign policy. While social jus-

tice should be realized at a national level, democratic states bear the responsibility of realizing

basic justice principles in the international system. Such minimal principles of justice encom-

pass rules of non-intervention, the right to self-defense and the general acknowledgement of

human rights principles (Rawls 1999: 37).4

With the establishment of international political theory and international ethics as a discipline,

theorists more rigorously concentrate on the question of global justice. Some political theo-

rists even claim a change of paradigm caused by these debates on global justice and on the

responsibilities beyond state borders (Broszies/Hahn 2010: 12). Indeed, different schools of

thought debate various aspects of global justice.5 For the purpose of the paper, we concentrate

on the two main schools, namely cosmopolitanism and communitarianism, because the clash

4 Rawls distinguishes states along their political constitution. Liberal democracies can acknowledge non-liberal societies as long as they live up to certain human rights standards. Vis-a-vis „burdened societies“ liberal democ-racies have a responsibility of assistance (Rawls 1999: 63). 5 Other 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; Hutchings 2010.

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of ideas on justice can be most clearly identified in these two antagonistic schools of thought.

Proponents of cosmopolitanism6 argue that Rawls’ differentiation between the national state

and the globe are insufficient. Instead, cosmopolitanism proposes a broader set of justice prin-

ciples which sometimes even includes principles of social justice for the international realm.

Pogge, for example, transfers Rawls principle of difference to the international arena and ar-

gues from an institutional cosmopolitan perspective that poverty must be curbed and princi-

ples of distributive justice have to be realized at a global scale (Pogge 2007: 134). Other cos-

mopolitan theorists criticize Rawls for accepting illiberal regimes and argue that he underval-

ues basic civil rights such as liberty and equal opportunity in his thoughts on global justice

(Moellendorf 2002: 15; Tan 2000: 66).

Moral cosmopolitanism starts from an individualist and universalist assumption. Based on

Kantian rationalism human beings are equally equipped with rationality and therefore capable

of coming to terms with principles of global justice. From such a cosmopolitan perspective,

human beings have a positive obligation to prevent suffering and injustice beyond state bor-

ders (Shapcott 2010: 15; Lu 2000: 263). As a consequence, individual human rights are priori-

tized against principles of state sovereignty (Pogge 1992: 58). While cosmopolitanists are

convinced that universal principles of justice can be identified and established for the interna-

tional realm, they differ in the question of which human rights are most important and wheth-

er they must encompass aspects of economic and social justice (Caney 2005: 102-147; Moel-

lendorf 2002: 36). Pogge nevertheless stresses that human rights must more rigorously be-

come part and parcel of a just world order (Pogge 2008). As a consequence of such thinking,

some cosmopolitanists argue that gross human rights violations justify the use of force. Some

of them propose the institutionalization of “just war” norms as guidance for humanitarian in-

tervention (Caney 2005; Téson 2005; 2003; Moellendorf 2002).

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 might be different, depending

on culture and whether human beings are citizens of the United States or of China (Walzer

2006; Brown 2002: 92-93; Brown 1992). For this reason, global justice must be perceived as

contextual and cannot be of universal range (Miller 2007: 263; Miller 2005). Communitarians

6 Within the debate of cosmopolitanism different strands have emerged. For the purpose of our paper we mainly rely on the positions of moral cosmopolitanism which relies on the idea of a „common human community” (Shapcott 2010: 15). Other variants include institutional, normative and legal cosmopolitanism (Beardsworth 2011: 29-40).

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point to the relevance of borders and argue that global justice must acknowledge the principle

of state sovereignty (Nagel 2005: 113-147). However, even from a communitarian perspec-

tive, some weak universal principles of global justice can be established if citizens from dif-

ferent nations meet in transnational space. Such norms of action include basic human rights

principles, such as a negative duty to prevent harm (Shapcott 2010: 59; Shapcott 2006; Miller

1999: 197; Walzer 1994: 103).

The clash of ideas between cosmopolitanism and communitarianism contains two main as-

pects: First, the two schools of thought differ in their perception on the adequate domain of

justice. Can justice be truly global or is it limited to the state? Secondly they differ regarding

the relevant dimensions of justice. Nevertheless, even strong communitarians would

acknowledge that there is a minimal common duty among human beings and states to protect

people and prevent harm. Similar “clashes of ideas” on the question of the adequate domain

of justice and the range of its principles can be identified within IR-theories. Particularly the

English School articulates the tension between statist sovereignty norms and human rights

concerns. While in the pluralist variant of the English School states cooperate in institutions to

minimize the risk of war and the use of force, both modes of violence cannot be eradicated

through forms of international order. Pluralists remain rather sceptical when it comes to uni-

versal principles of order. Instead, they stress the continuous relevance of sovereignty and

non-interference as core ordering principles in the international system of states. Therefore,

realizing justice remains within the nation state (Jackson 2000; Dunne 1998; Wheeler 1992:

477; Bull 1977). Similar to communitarians, pluralists identify some minimal duties to assist

needy states which are enshrined in humanitarian law. Linklater sees as a possible compro-

mise between the two schools of thought the “harm convention” which proposes minimal du-

ties of states beyond their own borders (Linklater 2006).

In contrast, the solidarist variant of the English School proposes a more far reaching concept

of global justice. Contrary to the assumption of pluralism, the world order has profoundly

changed since the end of the Cold War (Hurrell 2003: 26). Meanwhile, the normative struc-

ture of world society reflects signs of increasing solidarity and shared justice convictions

among states and world citizens (Buzan 2004: 141; Wheeler 2000: 12). The ordering principle

of sovereignty also includes global responsibilities to protect human beings and to secure hu-

man rights. Contrary to cosmopolitan positions, the solidarists seem to be more hesitant when

it comes to the question of how to secure individual rights and protect people from gross hu-

man rights violations. Instead of humanitarian intervention they prefer preventive diplomacy

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as a more adequate action for practicing solidarity beyond borders and securing human rights

(Dunne/Wheeler 2004: 20). This more careful position sometimes collides with convictions

held in liberal internationalism. Proponents of liberal internationalism argue more openly for

forcefully intervening in conflicts if severe human rights violations have been acknowledged

(Buchanan/Keohane 2004: 4-5; Evans/Sahnoun 2002: 101).7 State authority and sovereignty

also implies recognizing state responsibilities for welfare and well-being of citizens – mal-

practice terminates the sovereign rights of such states. This form of “new humanitarianism” is

part and parcel of a liberal conception of a new world order where the protection of human

rights – conceptualized in the liberal values of liberty and equality – outweigh traditional con-

ceptions of sovereignty such as non-intervention and non-inference.

Such concepts of liberal justice and human rights priorities frequently raise concern of the

Global South, as decolonised states suspect that these moral values are just fig leaves for

strategies of Western imperialism (Barnett 2005: 734; Duffield 2001). From an Indian per-

spective, for example, the state became a symbol for emancipatory representation during the

process of decolonisation: statist sovereignty and non-interference have been perceived as

guarantees for self-determination and institutions for human beings deliberated from colonial

oppression (Bajpai 2003: 260). From such a point of view, human rights and Western proac-

tive policies mask strategic interests and serve as legitimizing strategy of force and world or-

der dominance. Moreover, prioritization of liberal human rights against social and economic

justice reinforces such fears. In sum: This brief overview on different theoretical approaches

should help to indicate the relevance of the clash of ideas on different notions of justice. Core

among them is the clash between the constitutional norms – sovereignty and human rights.

4. Methods

In order to assess the influence of justice and other moral claims on the outcome of negotia-

tions on new international regulations, we use process tracing to investigate whether or not the

causal mechanism of rival justice claims is at work and influences the negotiation outcome

(George/Bennett 2005: 211-212). Furthermore, as part of process tracing qualitative content

analysis (Mayring 1997) is used. Based on a complex code book we investigate the relative

7 Buchanan and Keohane argue that even the threat of violating human rights justifies preventive humanitarian military intervention. Both validate their claims by granting coalitions of democratic states special moral respon-sibilities in world politics. Due to their democratic constitution they become particularly reliable for realizing a cosmopolitan world order.

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importance of justice claims in comparison to other types of justifications in the argumenta-

tion of the negotiation parties.

Building on the literature on the dynamic development of norms and norm contestation (Wie-

ner 2008; Sandholtz 2009; Jetschke/Liese 2013) and on studies of empirical justice research,

we see justice as a metanorm, which serves as a culturally-contingent standard of appropriate-

ness for an actor to assess the legitimacy of a normative order. Views on justice thereby offer

guidance for the development of new regulations in specific policy fields (Müller 2011b:282,

286). Claims for justice go beyond rhetorical action: rationalist approaches cannot explain,

why actors introduce justice claims in the discourse, even though they are of no strategic utili-

ty (Müller 2011a).

As said before, David Welch’s study Justice and the Genesis of War points out that the justice

motive can play a significant role in the outbreak of wars. The justice motive is understood as

an actor’s drive to correct a perceived discrepancy between entitlements and benefits (Welch

1993: 19).We assume that justice conflicts aggravate international conflicts and that without a

reconciliation of conflicting justice claims, a violent resolution of conflict or a deadlock in

negotiations becomes more likely (Welch 1993: 216).

We treat the articulation of justice claims as a speech act, comparable to the notion of securit-

ization by the Copenhagen School (Buzan et al. 1998). Interests and justice considerations are

interwoven, since justice claims refer to the actors’ respective understandings about what

ought to be and what is conceived as the “right thing to do”. Based on the work of Harald

Müller, we assume that appeals to justice serve as strong justifications for states’ positions

during international negotiations (Müller 2010, 2011a, 2011b). To operationalise justice, the

definition of David Welch (1993) is used which states that justice claims rest on entitlements

perceived as legitimate by the respective actor: a perceived entitlement goes beyond a simple

interest in something; the actor thinks that she has an entitlement get or maintain this some-

thing (Müller 2010: 9). The mode of reasoning involved in the defense of entitlements is de-

ontological and categorical rather than utilitarian (Welch 1993: 21). Hence, justice claims can

raise issues on a higher level of intensity and negotiation positions may harden. This assump-

tion is based on studies in social psychology which show that “perception of injustice fosters

hostility, distrust and social protest” (Austin 1986: 159; see also Deutsch 2011; Tyler 2012).

As mentioned before, we analyze claims to justice in three dimensions: distribution, proce-

dure and recognition (Fraser 2008). We draw on a typology of justice claims (Mül-

ler/Müller/Wunderlich 2011; Müller 2011a; Müller/Wunderlich 2013) which was developed

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as part of the common research program of PRIF called Just Peace Governance. However, we

extended this typology to include other claims, based on moral argument or interest or the

common good. Since we try to assess claims to moral or justice from the perspective of the

respective actors, the codebook tries to cover different understandings of justice that have

been deduced from the relevant literature. However, the codebook is open for inductive sup-

plementation.

The Codebook has four levels: The type of regulation and connected enforcement mecha-

nisms aspired by an actor is coded on level one. Codes on this level range from “no regula-

tion” to “soft law” to “hard law” to “enforcement by use of force”. Codes on level two ad-

dress the concept of sovereignty an actor advocates. On a basic level, we differentiate be-

tween absolute sovereignty and conditional sovereignty (Philpott 2001). Moreover, categories

are inspired by the distinction between internal and external sovereignty and between authori-

ty and control (Krasner 1999). On the next level of the Codebook, we code which entity an

actor names as being entitled to something: Since claims can refer to different levels of social

aggregation and because an actor may not just claim something for himself but also in the

name of others, we differentiate between different right holders: the individual, the state, a

people, a religious community and other collectives. The fourth level is of special importance

for our project because on this level we code the justifications actors use to make their argu-

ments. We differentiate between five broad types of justifications which themselves are sub-

divided in different subcategories: 1. Cosmopolitan moral concepts refer to statements by

which states demand or reject certain things or actions based on moral reasoning. 2. Justice

claims have to be formulated as entitlement or as a “right to” something. This narrow defini-

tion and our differentiated code system should prevent miscoding. 3. Referrals to the “Just

War Theory” may often be found in debates around the use of force. They might be used as

justifications in favor or against military interventions. 4. References to the common good

might also be used to justify negotiation positions. Examples may be arguments based on a

utilitarian logic or arguments drawing on development or peace. Finally, we include 5. claims

based on articulations of (national) interest as well as power-based claims of the respective

actors in our analysis. Thereby we want to avoid the charge of being biased towards moral

argumentations.

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5. Case Studies

5.1 Negotiations on R2P in the 2005 World Summit Outcome Document

5.1.1 Human Rights, Sovereignty and R2P

The notion of “Responsibility to Protect” (R2P) entered international politics with the report

of the International Commission on Intervention and State Sovereignty in 2001. Kofi Annan’s

High Level Panel on Threats, Challenge and Change (HLP) took up R2P and included the

concept in the report of UN reform (HLP 2004: §199-209). Kofi Annan incorporated most of

the HLP recommendations in his report In larger Freedom (Annan 2005) and presented it to

the UNGA for consultation at the World Summit in 2005. During the negotiations on the

World Summit Outcome document (WSOD), R2P was part of the agenda from the beginning

(Bellamy 2009: 83-84).8 While the USA were rather indifferent in the early phase of the nego-

tiations, Canada, France and the United Kingdom were pointing to the necessity for a new

norm guiding international reactions to mass atrocities. China, Russia, and the coded member-

states of the Non-Aligned Movement (NAM), with the exception of South Africa, did not see

any need to introduce a new concept. From their point of view, the UN Charta provides all

necessary tools to deal with crises that threat international peace and security. Especially In-

dia, Iran and Cuba expressed doubt regarding the legal foundation of R2P in international law.

During the debates in the run-up to the World Summit basic concerns about R2P had been

raised as justice claims: China, Cuba, Iran and the NAM states emphasized sovereignty con-

cerns and framed sovereignty in more absolute terms. They further called for justice between

states in form of sovereign equality and non-interference in internal affairs. The NAM also

pointed to parallels between humanitarian interventions and the concept of R2P. In a similar

vein, Iran stated that R2P was a source of major concern at a time when “sovereignty and po-

litical independence of countries of the South has become subject to encroachment by the

outside powers” (Iran 2005a). The state warned of undermining the principle of sovereignty,

demanded equal standards of sovereignty for all nations and rejected “19th century parame-

ters to relax the restrictions on the use of force” (Iran 2005b). Canada, France, South Africa,

the UK and, at the end of the negotiations, also the United States advocated conditioned sov-

ereignty and claimed that sovereignty includes responsibility for the own population. Even

though South Africa emphasized that “the obligation of States to protect their citizens should

not be used as a pretext to undermine the sovereignty, independence and territorial integrity of 8 For this empirical illustration, we coded statements by different state actors during formal and informal nego-tiations in the run-up to the UN World Summit: the permanent members of the Security Council, Canada, Cuba, Egypt, India, Iran, Malaysia, the Non-Aligned Movement and South Africa.

15

States” (South Africa 2005), it did not refer to the concepts of non-interference or non-

intervention. This is a remarkable difference compared to statements of other NAM states

where those two concepts played prominent roles in the argumentation against R2P.

On the level of justifications there is an interesting difference in the argumentation of the ac-

tors: On the one hand, the states from the Global South referred to justice-based arguments

more often, especially in regard to justice-based sovereignty claims. On the other hand, Cana-

da, France and the United Kingdom argued on moral grounds based on humanitarian concerns

and an assumed global moral responsibility. Other points of view came from China, Russia,

the NAM and Iran but also the United States that pointed more often to legal rights based on

the UN Charta.

For France, the universality of human rights was an important argument in favour of R2P dur-

ing the negotiations on the WSOD. In contrast, the NAM also emphasized “that all human

rights, in particular the Right to Development, are universal, inalienable, indivisible, interde-

pendent and interrelated [but that] […] human rights issues must be addressed within the

global context through a constructive, dialogue-based approach, in a fair and equal manner,

with objectivity, respect for national sovereignty and territorial integrity, non-interference in

the internal affairs of States, impartiality, non-selectivity and transparency as the guiding

principles, taking into account the political, historical, social, religious and cultural character-

istics of each countries.” (NAM 2005). Even though the argumentation of the Southern states

shared similarities, NAM was not a unitary block during the negotiations. Developing coun-

tries were split in advocates and opponents of R2P. South Africa, for example, represents this

special position: While demanding respect for sovereignty, it spoke in favour of R2P by fram-

ing the concept as a common moral responsibility. At the same time, the African state em-

phasized that unilateral action has to be ruled out under R2P.

Thus, while Southern states called for justice between states, in form of sovereign equality

and respectively fair treatment before international law, advocates of R2P such as Canada, the

UK and France pointed to moral responsibilities for the protection of the individual’s physical

integrity as well as for the punishment and ending of heavy human rights abuses. The latter

also emphasized legal duties derived from international humanitarian law. Great Britain

stressed that infringements of international humanitarian law had to be punished and that sov-

ereignty contains no right to arbitrariness.

16

Among the more powerful states, especially the P-5, an implicit conflict over legal interpreta-

tions is visible, regarding the ranking of legal bases for international action. While the argu-

mentation of France and the UK was primary based on international humanitarian law, China,

India, Russia, the NAM states, and the USA called for full substantial and procedural respect

of the UN Charter.

In spite of the existing differences, there was constant progress during the negotiations on the

WSOD between March and August 2005 (Bellamy 2009: 84). Within the Global South, there

was still much discontent with R2P: Some NAM and G-77 states regarded R2P as an imperi-

alistic plot and feared a misuse of the concept to legitimize regime change or foreign exploita-

tion of their natural resources9.

5.1.2 Just procedure

Hence, just procedure was a topic of upmost importance during the World Summit: Southern

states demanded first and foremost a fair procedure for drafting the outcome document. Be-

sides that, the assessment of human rights violations and decision making in the UN Security

Council played a central role in the argumentation against R2P. During the World Summit,

Cuba, Egypt, India, Iran and also speakers on behalf of the NAM demanded fair decision

making and equal participation when human rights violations were addressed, by claiming

that dialogue rather than external interference was the better strategy to deal with such viola-

tions. The same applies to the question of equal hearing in the discourse on international

norms. NAM states complained about double standards and selectivity in the work of the Se-

curity Council and were thereby demanding equality before the law in the sense of fair proce-

dures for the assessment of human rights situations in certain states. However, in this context,

referral to cultural difficulties was rare. Even though Egypt, the NAM and Russia occasional-

ly referred to the necessity to take into consideration the historical, political, social, religious

and cultural characteristics of each country when assessing human rights situations, the uni-

versality of human rights remained unquestioned.

Especially Cuba, but also Iran – both strong opponents of R2P – claimed that the new concept

of R2P would serve the interests of the powerful and criticized this as a symptom of an unfair

world order:

“It would be suicidal to validate the so-called ‘right to intervention’, used so many times nowadays,

within the circumstances of a unipolar and neoliberal world characterized by the existence of an eco-

nomic and military dictatorship exerted by the superpower, where only one society model is attempted

9 Interview with a Canadian diplomat who participated in the negotiations

17

to be imposed, there is a ‘nuclear Club’, ‘preemptive wars’ are promoted, double standards dominate the

actions of the Security Council, some shape the contempt towards the General Assembly, the imple-

mentation of coercive unilateral measures proliferates and human rights are politically and selectively

manipulated.” (Cuba 2005)

To counter these and similar claims by other NAM states, Canada demanded the introduction

of criteria for the use of force as guidance for Security Council decisions and as new norma-

tive groundwork to improve the effectiveness of responses by the Security Council to atroci-

ties. However, the criteria idea failed on the rejection by most other actors. At the end of the

day, the P-5 did not want to see their hands tied by such criteria and many Southern states

regarded them as a backdoor for great power interventionism (Wheeler 2005; Bellamy 2009:

83). Decisions made on a case-by-case were deemed the only acceptable mode of decision

making regarding coercive measures, especially for the P-5 but also for Iran.

5.1.3 The impact of justice claims during the negotiations

By using justice claims, especially Cuba, the NAM and Iran and to a much lesser extent India,

Malaysia, China and Russia signaled that the potential conditioning of sovereignty was of

high importance for them. The combination of sovereignty and justice claims implies that

especially weaker states from the South seem to regard sovereignty as an entitlement of which

they must not be deprived of. By raising justice claims, NAM states lifted the topic of R2P on

a higher level of intensity. The negotiation position of many states seemed to harden – a jus-

tice conflict emerged.

However, since the NAM did not reach a common position and due to the fact, that within the

NAM there were strong supporters of R2P – like South Africa, Rwanda or Tanzania – pro-

gress was possible. Canada and other supporters of R2P showed openness for these claims.

Canada referred to principles of fair decision-making and of equal treatment before the law to

emphasize the necessity of the new principle: “in order to be legitimate, the Council's ap-

proach needs to be clear and consistent. It must apply to both large and small states equally; it

must apply to north and south equally” (Canada 2005). Moreover, Canada pointed out “that in

the Responsibility to Protect, the concept of sovereignty is strengthened, not weakened, since

the basis for intervention by the international community is narrowly limited to a failure to

uphold the very obligations inherent in sovereignty itself” and that “the protection of civilians,

and the concept of state sovereignty are mutually reinforcing” (Canada 2005). In order to ad-

dress the concerns of NAM states, the supporters repeated the scope conditions of application

of R2P – genocide, ethnic cleansing, war crimes and crimes against humanity – within the

18

R2P paragraphs several times.10 This lowered the heat of the debate and thereby contributed

to the final compromise. After the linking of R2P to exceptional circumstances as scope con-

ditions, the hardened negotiating positions on R2P mellowed. NAM states still demanded

further consideration of the topic in the General Assembly but did not oppose the remaining

of R2P in the WSOD anymore.

A draft version of the Outcome Document from August 5, 2005, reflected a growing willing-

ness among the UN member states to accept R2P (UNGA 2005a). The whole situation

changed when John Bolton became the US ambassador to the UN on August 3, 2005 and de-

manded the renegotiation of hundreds of the paragraphs in the draft Outcome Document and

the elimination of many other (Bellamy 2009: 85-86; Bolton 2007: 207-219). The USA

shared the position of its allies but expressed reservations towards an obligation to act. She

emphasized, that the responsibility of the host state to protect its citizens differs from the re-

sponsibility of other countries (USA 2005b). The USA in addition demanded a possibility to

act without Security Council authorization in case of emergency. However, this claim contra-

dicted with the emerging consensus within the UNGA (Bellamy 2009: 82). Moreover, the

USA prevented a formulation by Kofi Annan that stated an obligation of the international

community to react to mass atrocities (Bellamy 2009: 85, FN 81). Further, the United States

were the only actor expressing caveats against the inclusion of a prohibition of the incitement

to mass atrocities into the WSOD paragraphs on R2P because this was not compatible with

the first amendment to the US constitution protecting freedom of speech (USA 2005b). In the

end, this US claim failed.. But with his massive demands, Bolton gave other delegations the

possibility to withdraw from the negotiated compromise: At the end of August, China put

forward great reservations against R2P, although it had already signalled approval two months

before under the condition that the responsibility first lies within the state and that interven-

tions are bound to the UNSC (Bellamy 2009: 87-88). Also Russia refused to accept R2P and

questioned its foundation in international law. Some NAM and G-77 states followed China

and Russia (Bellamy 2009: 88-89). However, there were still supporters of R2P on the side of

the developing states, like South Africa, Ruanda, Tanzania and Latin-American states (Evans

2009: 21). Canadian efforts to persuade southern states to support R2P proved to be

10 Interview with a Canadian diplomat who participated in the negotiations

19

ful11and especially the country’s ambassador had an effect on the Russian side in convincing

them to reconsider their obstructive position on R2P (Bellamy 2009: 87).12

However, observers and participants see an important influencing factor for the remaining of

R2P in the WSOD in the non-transparent negotiations during the last days before the begin-

ning of the World Summit: Many critics within the NAM were excluded from these negotia-

tions: The President of the General Assembly, some UN official as well as some delegations

went on working on the original draft and constantly considered different arguments from the

debate without rejecting the achieved consensus from early August, as it had been required by

Bolton (Bellamy 2009: 89). However, only a few delegations seemed to have been involved

in these last consultations.13

In the end, US Ambassador Bolton, who has been against R2P, received the instruction from

Condoleezza Rice to accept the Outcome Document. However, important American demands

had been included in the Outcome Document – e.g. that there is no obligation for the UNSC

to react and no criteria for the use of force. The renunciation of a non-veto clause seems to be

due to pressure from the P-514. On September 13, the day before the beginning of the World

Summit, negotiations on the text were ongoing in the morning15. India, Cuba and Iran re-

mained critical and braced themselves against R2P, appealing to its legal and moral founda-

tions. However, the criticism of the Indian representative Sen was not included in the final

document, hoping that the Indian government could still be persuaded (Bellamy 2009: 88).

Finally, the remaining brackets in the text were deleted from the document on the day before

the summit of the heads of states has started, without involving all delegations in this deci-

sion, according to participating diplomats. The final text was accepted for the transfer to the

World Summit during a meeting of the General Assembly on September 13. Before and dur-

ing the summit, the Canadian Prime Minister Paul Martin, contributed substantially to per-

suade sceptics to vote in favour of that Outcome Document (Evans 2009: 21).

However, the linking of R2P with UN reform in general has contributed decisively to its ac-

ceptance: By approving the Outcome Document, the USA has, for the first time, recognized

the MDGs as a framework for the coordination of development aid (UNGA 2005b: §17). That

11 Interview with a Canadian, French and German diplomats who participated in the negotiations 12 „In the end, Canada’s Allan Rock approached the Russian permanent representative directly, intending to ascertain whether Russia had any deep-seated political or philosophical problems with the R2P. When the legal expert failed to mount a convincing case against the R2P, the permanent representative indicated that Russia had no objections of principle and would cease its obstructionism” (Bellamy 2009: 87) 13 Interview with a French diplomat who participated in the negotiations 14 Interview with a Canadian diplomat who participated in the negotiations 15 Ibid.

20

has been an essential incentive for the NAM states to support the Outcome Document. Never-

theless, the influence of moral and justice-based considerations must not be underestimated:

R2P in the WSOD represents a hybrid of different claims based on different understandings of

moral and justice: the claim to condition sovereignty in cases of mass atrocities based on hu-

manitarian concerns and an assumed common responsibility of mankind was reconciled with

claims to secure sovereign equality and to strengthen equality before the law. by binding it to

the UN Charter and thereby ruling out the potential of unilateral abuse inherent in R2P.

The different moral and justice claims have been balanced within the WSOD. The R2P para-

graphs clearly address the major demands of Russia, China, the USA, India, Iran and the

NAM states but also the commitment to civilian protection brought forward by Canada and its

supporters. The formula found enables coercive measures trough the Security Council but

rules out unilateral interventions. The NAM demand for an explicit scope definition of R2P,

specified as the four mentioned crimes, is apparent in the heading of the sections 138 and 139

as well as in several places in the text (UNGA 2005b: §138-139). Even though the problem of

selectivity and double standards could not be resolved, the most pressing fears of Southern

States have been accommodated. Decisions based on R2P have to be made on a case-by-case

basis and there is no obligation to intervene. There are no criteria for the use of force and no

request to the UNSC to adopt a code of conduct for the P-5 to refrain from the use of their

veto in R2P-related cases, as recommended by the HLP-Report (HLP 2005).

By accepting the Responsibility to Protect, human rights have been strengthened in interna-

tional law. Since the primary responsibility to protect the population lies with the state, and

because the international community promised to support the state in fulfilling its responsibil-

ity, a strengthening rather than a weakening of the state, as the organizational unit that has to

protect human rights, could be recognized (Jetschke/Liese 2013: 37-38).

5.2 The Arms Trade Treaty (ATT)

The evolution of the Arms Trade Treaty (ATT) cannot be adequately understood without

looking at its precedents in humanitarian arms control. With the focus on human security,

conventional arms control generally gained a new impetus. In 1994, UNDP introduced the

term “human security” in order to change attention from thinking security in statist terms.

Instead of stressing states’ security and principles such as territorial integrity and non-

interference, the focus changed toward individual human beings and their security needs. This

21

new framing of human security paved the way for a series of arms control initiatives which

have some similarities: The Anti-Personnel Mine Ban Treaty (MBT) of 1997, the Program of

Action on the Illicit Trafficking of Small Arms and Light Weapons (PoA) of 2001 and the

Convention on Cluster Munitions (CCM) of 2008 were all initiated by transnational non-

governmental campaigns which managed to persuade like-minded states to take up negotia-

tions. All three global governance regulations stress the relevance of embedding humanitarian

concerns and human rights into the arms control realm.

This form of “new humanitarianism” in arms control led to the ban of two weapon categories

and initiated a series of arms control measures in order to tackle the illicit trafficking of small

arms and light weapons. The successes to effectively insert ideas of humanitarianism and hu-

man rights into arms control have also inspired the non-governmental campaign of “Control

Arms”.16 While the PoA envisaged the illicit trade of SALW, the ATT campaign aimed at

regulating all global conventional arms exports. The transnational non-governmental cam-

paigns stress the relevance of legal arms exports which have become illicit and affect human

security in many parts of the world. Nevertheless, regulating arms exports also implies an

infringement on the sovereign rights of states. While some progressive states favour a „strong

and robust“ ATT and underlined the relevance of human rights as overriding criteria for the

treaty, other states stress the continuous relevance of core principles of sovereignty as they are

enshrined in the UN-Charta. This clash of ideas overshadowed the two negotiation rounds and

became at least one part of the explanation why the ATT failed to be concluded under the

rules of consensus. Instead, the treaty was accepted by vote in the UN-General Assembly on

April 3, 2013.

5.2.1 Ideas of Justice in Conflict: Human Rights Concerns versus Sovereignty Claims

The ATT aims at reducing human suffering caused through irresponsible arms trade and in-

duces global criteria for regulating the legal arms trade of states. During the two negotiation

rounds which took place in July 2012 and March 2013, a broad consensus between states

emerged demonstrating their principal support of human rights and humanitarian law as guid-

ing principles for the emerging regulation. Nevertheless, a handful of states stated their con-

cern that human rights remain essentially contested among UN member states. Particularly

states from the Non-Aligned Movement (NAM) expressed their fear that an ATT could be

used as another discriminating tool against states from the Global South. Indonesia stated that

16 See http//www.controlarms.org.

22

importing states must have “equal opportunity to define serious and systematic violations of

human rights” (ATT Monitor 2012b: 4).17 Algeria argued the treaty should not include human

rights or IHL or any other “arbitrary” approaches to regulate the arms trade (ATT Monitor

2012c: 2). On the opposite site, states from CARICOM insisted that the ATT was never meant

to be just a trade treaty and that strong human rights and international law components must

be at its core (ATT Monitor 2012f, 1).

The debate about the term “gender-based violence” shows a resemblance to the discussion

about contested human rights. While some delegations, most prominently the Vatican, sought

to replace it with “violence against women and children”, the vast majority called for recogni-

tion of the gendered impact of arms trade such as gender-based violence (ATT Monitor

2012a: 6). The question of women’s rights in general voiced concern of some Arab delega-

tions such as Egypt and Algeria who insisted that this issue will remain a matter of national

prerogatives.

While the meaning and interpretation of human rights was somehow contested, the clash of

ideas between individual rights and states’ rights became even more visible in the discussion

about the role of sovereignty. Numerous states, particularly from the Global South, stressed

the relevance of their constitutional rights enshrined in the UN Charter. Some states such as

Venezuela named sovereignty of states as the most important principle for the treaty to uphold

(ATT Monitor 2012b: 2). A rift between interests developed between states which stressed the

non-selectivity of the principles of the UN Charter such as Mexico and the EU and others who

stressed only some of the sovereignty principles. India, Indonesia and Syria called, for exam-

ple, for an unambiguous reference to territorial integrity. Ecuador and Iran stated the need to

refere to the right to self-determination, non-interference, and the right to be free from coloni-

al oppression or foreign occupation (ATT Monitor 2012b: 7). Numerous states expressed their

right of self-defence in line with Article 51 of the UN Charter which includes, from their per-

spective, the right to acquire and sell conventional arms (ATT Monitor 2012d: 3).18 States’

ability to exercise self-defence was often coupled with the argument of meeting security

needs. This indicates that justice arguments are in practice frequently merged with inter-

est/security arguments. The DPRK argued that not all states are in a system of collective secu-

rity which ultimately implies that the right of self-defence must also encompass the right to

17 Indonesia therefore stressed the need of establishing an independent advisory group to judge about human rights violations. Interestingly the concern about contested human rights is coupled with an idea of fair decision-making. Nevertheless, this fairness argument did not reach the unanimity of states. 18 Australia questioned the right of states to manufacture arms arguing that this is not a right under international law (ATT Monitor 2012e: 5).

23

manufacture and trade arms. Nevertheless, sovereign rights were not only raised by delega-

tions from the Global South, but also expressed by Western states. The US and Canada

stressed their sovereign rights of civil gun ownership which should not be touched by any

global governance regulation including the ATT (ATT Monitor 2012e:4).

To summarize: The clash of ideas between human rights and statist sovereign concerns over-

shadowed the two negotiation rounds of the ATT. In the end, this clash of ideas also affected

the outcome of the treaty. Progressive states, such as Germany and UK, stated at the outset of

the negotiations, that human rights must become the “golden rule” and a core criterion for

evaluating conventional arms transfers. A majority of states sought to get included human

rights into Article 1, the object and purpose of the treaty, but failed. Furthermore, the efforts

to include human rights into the criteria only partially succeeded. The criteria of the ATT dif-

ferentiate between a prohibiting norm (Article 6) which encompasses UN arms embargoes

and situations of genocide, crimes against humanity as well as grave breaches of the Geneva

Conventions of 1949. Article 7 then lists further criteria of export assessment where human

rights are mentioned among others. States such as Norway or Switzerland south to get includ-

ed IHL and IHRL also into Article 6. Furthermore, the US delegation insisted that the con-

tributing effect of arms to peace and security should be included into Article 7 as well. As in

many exporting countries human rights concerns are frequently outweighed by strategic secu-

rity considerations, this rule further weakened the gravity of the human rights argument. Ne-

gotiated under the rules of consensus (fairness), sovereign concerns and the contested nature

of human rights prevented a stronger norm which would have made human rights a golden

and unanimous rule.

5.2.2 Justice Claims in the ATT Negotiation Process

The two negotiation rounds in July 2012 and March 2013 were overshadowed by the strong

tension between exporting and importing countries. The question of the “right balance” of the

treaty became a core concern for states and also an issue of justice. Particularly states from the

Global South frequently argued about the imbalance of the treaty between arms exporting and

importing countries. Egypt, for example, called for the treaty “to address the current imbal-

ance by safeguarding the rights of arms importing developing countries, and by ensuring that

the major arms exporters are accountable in this respect” (ATT Monitor 2012a: 6). Aspects of

distributive justice and the question of equal burden-sharing was reiterated by the delegation

of DPRK who saw the treaty as a danger of legally consolidating inequalities between export-

ing and importing states if it does not address arms production and disarmament. Indonesia

24

also envisaged a treaty which would strike “a fair balance between the interests of importers

and exporters, noting that the treaty should not generate political conditionalities (ATT Moni-

tor 2012b: 5). Some states that previously voiced concern, including Syria, Iran and DPRK,

finally opted against the ATT when the second round of negotiations failed in March 2013.

Fairness arguments or issues of procedural justice were also frequently stated. This con-

cerned, on the one hand, the question of fairness and fair decision-making in the negotiations,

but on the other hand also questions of fairness embedded in the norms of the treaty itself.

Most prominently, the issue of fairness was raised when the ATT was voted at the UN Gen-

eral Assembly on April 3, 2013 after negotiations in consensus had failed. Russia and China

stressed that they were abstaining because they opposed the adoption of a multilateral arms

control treaty through a majority vote at the UNGA (Holtom/Bromley 2013: 7). Particularly

the states of the Global South argued that a fair ATT would need some form of collective de-

cision-making and institutions in order to independently evaluate incidents of human rights

violations. A diverse group of states such as the Bahamas, Chile, Colombia, El Salvador, Gua-

temala, Jamaica, Mexico and Peru called for a consultation mechanism allowing recipient

states to address concerns to avoid a transfer denial. Another aspect of fairness was the ques-

tion of entry into force (EIF). While some states opted for a low number of EIF, others voiced

their concern that the EU states alone could set the ATT into force if they ratified the treaty

(ATT Monitor 2012e:5). The P-5 states argued for 65 ratifications before EIF which should

include the major exporting countries. Ecuador argued that major arms exporters do not nec-

essarily need to be party to the treaty for it to enter into force, otherwise this would result in

the possibility of those states to have a veto. Fairness arguments are here combined with ar-

guments about the power status of states. Another point of contestation was the right of reser-

vation which is a standard in IHL and is often argumentatively linked to statist sovereign

rights. While particularly the Arab group said that the right of reservation must be safeguard-

ed, Latin American and Caribbean states argued for the opposite, particularly regarding scope

and criteria (ATT Monitor 2012a: 7). Also, Article 20 became an object of contestation: the

dispute focused on the question whether amendments to the treaty can only be decided

through the consensus of all member states. In the end, a compromise was elaborated where

consensus-building should be tried, but three-quarter majorities might be an option if all other

efforts have been exhausted.

The question of negotiating under the rule of consensus has already been a matter of contro-

versy in the four PrepComs preceding the negotiations of the ATT. The United States made

25

the consensus rule a condition for their participation in the ATT negotiations. In the end, a fair

decision-making system allowed a handful of states to hinder the negotiations to succeed. The

US and Russia blocked consensus in the July negotiations 2012 arguing that the text of the

ATT would not pass domestic legislation. In March 2013, DPRK, Iran and Syria voted against

the treaty.

Fairness in the negotiations themselves also became a matter of controversy. Particularly

states with smaller delegations complained about the numerous informal negotiations and

argued that they felt disempowered. However, informal sessions often helped to find solutions

for disputes and wordings for contested norms and regulations. States from the Global South

stressed the need of “equal footing” and their rights to voice their points of concerns in the

plenary. Aspects of procedural justice were sometimes closely related to the question of

recognition. During the first round of negotiations, in July 2012, the debates were upheld for

two days because Palestine demanded full voting rights for the negotiations.

6. Conclusion

Differences in claims of justice between states characterize multilateral negotiations and ulti-

mately also affect their outcomes. Cosmopolitan perspectives often envisage a world society

where universal principles of justice and common human rights standards are being realized

but the empirical practice of negotiating global governance regulations sound a note of cau-

tion. Instead, most states perceive constitutional norms such as sovereignty, non-intervention,

self-determination and territorial integrity as legitimate justice claims and still consider them

as part and parcel of a just world order. Our first view onto the two case studies of the R2P

and the ATT generation processes clearly indicate that state borders remain a relevant point of

reference in world politics. Both cases reflect that the clash of ideas between individual hu-

man rights concerns and sovereignty considerations overshadow multilateral negotiations in

the security sector and also impinge on the outcomes and effectiveness of global governance

regulations. Moreover, sovereignty considerations are more frequently raised by states of the

Global South as they fear that new norms and regulations might further contribute to imbal-

ance and injustice in the system of world politics. Nevertheless, the issue of sovereignty is

also raised by Western states. However, our two case studies have shown that also states from

the Global South demand collective responsibilities to secure the rights of human beings be-

yond their own borders. Human rights issues such as gender-based violence are for example

26

particularly highlighted by African states. Latin American and Caribbean states often stress

the relevance of human rights and international humanitarian law. Our very preliminary find-

ings might be interpreted as contrasting empirical results to the normative and antagonistic

debates in IPT (cosmopolitanism versus communitarianism) and in IR (solidarist/pluralist

English School). Both domains of justice – the individual human being and the state – are

core reference points for efforts of generating global governance regulations. Moreover, our

empirical analysis also brings out the concerns of the Global South that such governance ef-

forts of “new humanitarianism” might be used to mask strategic interests and shape world

order according to Western liberal values while generously overlooking Southern social jus-

tice claims.

The analysis of the two case studies indicate that beside the clash of ideas also other dimen-

sions of justice become a matter of contestation and ultimately affect normative outcomes.

Fairness arguments are stated when fair-decision making during negotiations become a matter

of controversy. Procedural justice issues are also raised when concrete norms are at stake,

which for example foresee mechanisms of dispute settlement. Moreover, it seems that espe-

cially weaker states refer to justice to foster their negotiation positions. Our empirical case

study analysis also indicates that justice claims are frequently raised in combination with se-

curity interests or power arguments. While the schools of thought in IR have frequently de-

bated whether rational or moral motives explain states’ action, empirical realities demonstrate

the relevance of mixed motives and an amalgam of interest/moral claims in the world of di-

plomacy. Such findings are confirmed by empirical research on justice in other scientific dis-

ciplines. More recent rational-choice approaches talk about the “socialized” homo economicus

and about the fact that interest- and norm-based action often merge in practice (Hindmoor

2011; Grobe 2011). While constructivist research has frequently stressed the importance of

values and norms in politics, it has not systematically addressed the particular salience of jus-

tice concerns and their potential for conflict in multilateral negotiations.

Our results properly fit into the results of constructivist norm contestation research. Contested

norms such as rival justice claims do not only affect the outcome of negotiations, but also

continue to remain a source of conflict in the longer lasting norm cycle. In the case of the R2P

unresolved justice conflicts inhibit effective norm application. A recent example can be found

in Syria: The NATO-intervention in Libya found massive criticism by emerging powers, be-

cause support for the Libyan rebels and the following regime change was conceived as unlaw-

ful external interference into the self-determination of the Libyan people. This provides now

27

an excuse for China and Russia for continuing their blockade of the UN Security Council re-

garding Syria. In the case of the ATT, an evaluation is too early to draw, but other cases of

humanitarian arms control such as the PoA demonstrate such effects. Nevertheless, both glob-

al governance regulations indicate that despite controversial issues of justice, a cautious min-

imal consensus on basic moral obligations might be identified. While states remain responsi-

ble for the protection and security of their inhabitants, premises of human security and human

rights have led to a reframing of issues. This reframing enabled transnational initiatives for

new global governance regulations in the realm of humanitarian intervention as well as hu-

manitarian arms control

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