1. law, govt and politics
2. politics

Paper prepared for the ISA Annual Convention; 18th - 21st of February 2015, New Orleans.
First draft - Please do not cite or circulate
Samuel Jarvis, University of Sheffield; s.jarvis@sheffield.ac.uk
Understanding Normative Contestation: The Added Value of International Legitimacy in
the Case of R2P
Abstract
In reply to Welsh’s (2013) call for constructivists to “adopt methodologies that can fully
account for the inter-subjective nature of norms and on-going contestation”; this paper will
examine how a greater focus on the role of legitimacy can help improve understanding of
contestation during norm development. It is argued that the dominant norm lifecycle model
fails to fully recognise the ability of norms to face increasing contestation during the later
stages of their development, whereby contestation over the application of a norm can
persist, particularly as new circumstances and crises arise. This analysis will therefore help
to uncover the often-missed terrain of conflict and contestation over interpretations of
international legitimacy in norms (Hurd, 2007). This framework is subsequently applied to
an analysis of the normative contestation surrounding the R2P norm. It is argued that the
breakdown of consensus over the NATO led intervention in Libya has resulted in a
significant legitimacy deficit for the norm. The increasingly contested external environment
has driven states to reassess the current formulation of R2P, resulting in attempts by Brazil
and China, to significantly redefine the procedural application of the norm. It is concluded
that in order for the norm lifecycle model to remain relevant to analysis of normative
progression, it must further acknowledge how legitimacy shapes norms and attempts to
redefine them, during periods of normative contestation.
Key Words: Constructivism, Norm Lifecycle, International Legitimacy, R2P
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Understanding Normative Contestation: The Added Value of International
Legitimacy in the Case of R2P
I. Introduction
Constructivist thinking on the development dynamics of norms has been most commonly
defined by the highly influential work of Finnermore & Sikkink (1998), in which their norm
lifecycle framework has provided the dominant theory for understanding how norms evolve
over time in the international system. However, the strength of this framework has become
increasingly contested, as scholars look to re-examine how to understand normative
concepts that don’t appear to fit the linear norm lifecycle model (Kersbergen and Verbeek,
2007; Krook & True, 2010; Weiner, 2009). This has been most prominent when attempting
to analyse why norms can often be directly challenged in the later stages of their
development. This paper is therefore aimed at refocusing the norm lifecycle framework, in
order to improve understanding of how normative contestation forms and ultimately how it
impacts on state behaviour towards norms in the later stages of the lifecycle. It is argued
that a greater focus on the role of legitimacy during periods of normative contestation can
thus help address the limitations of the lifecycle framework, highlighting how the legitimacy
of a norm will always be subjected to challenges and adaptions, particularly following its
practical application. To augment this analysis, this paper will examine the impact of
legitimacy on our understanding of the current normative contestation facing the
Responsibility to Protect (R2P) norm.
In February of 2011, the coercive part of R2P’s third pillar faced its first practical test, as the
UN Security Council authorised intervention in Libya to use “all necessary measures” in
order to protect civilians under threat in Benghazi (UN, 2011b). However, as the paper will
go on to examine in detail, this first major practical test for the norm’s third pillar, provided
the spark for the build-up of considerable normative contestation, around the practical
tenants of the norms implementation. Accordingly, it is in regard to the third pillar of the
R2P norm, in which the most considerable normative contestation is currently focused and
where this paper will look to focus. As Stuenkel (2014) notes, while there has been relative
agreement on the principles stipulated in pillar I and II, it is disagreement concerning pillar
III, which has caused a breakdown in consensus (p.23). The fallout from the Libyan
intervention therefore presented new questions that were seen to challenge traditional
thinking on the development of norms in international relations. It appeared as though the
norm was “neither as widely cascaded nor as deeply internalized” as was commonly claimed,
highlighting a significant limitation of the traditional norm lifecycle framework to explain
this reality (Morris, 2013, p.1280). Prominent constructivists such as Welsh (2010) have thus
suggested the need to create “a much deeper understanding of both how norms evolve and
the competing normative commitments that drive those who remain sceptical” (p.428).
Consequently, this paper argues that in order to build understanding of the development of
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normative contestation, constructivists must pay greater attention to the role of legitimacy
within the norm lifecycle framework.
For constructivists, analysis of the concept of legitimacy has more often than not formed a
limited component in a much wider analysis of the social interaction of states.
Consequentially, in constructivist thinking, legitimacy has rarely been utilised as the central
theoretical concept of discussion. As Hurd (2007) has pointed out, the relationship between
constructivist theory and legitimacy has been severely underexplored, by which “there has
not been a full-fledged exploration of the concept and its operation” (p.2). By making
legitimacy the central component of this constructivist analysis, this paper will look to add
to the relative lack of research into this relationship, through applying a more complete
understanding of legitimacy to current constructivist discussions into normative change.
The paper is therefore structured along the following lines: The first section will outline the
norm lifecycle framework of Finnermore & Sikkink (1998), highlighting the key limitations of
this model, in explaining how norms continue to experience contestation in the later stages
of norm development. Subsequently, it will be argued that a greater emphasis on the
concept of legitimacy can provide a more complete analysis of how normative contestation
forms and its impact on state behaviour. In the following section, the insights from the
previous theoretical discussion will be applied to an analysis of the current normative
contestation surrounding the R2P norm. It will be argued that debates over the procedural
legitimacy of the norm, following the Libyan intervention, have created a significant
legitimacy deficit, whereby contestation has formed around key procedural legitimacy
criteria. To further illustrate this point, the final part of the paper will focus on recent
attempts to reform and adapt the construction of the norm, in which proposals from Brazil
and China will be examined. To conclude, it will be argued that a greater focus on legitimacy
is instrumental to the continued relevance of the norm lifecycle framework.
II. The Missing Terrain of International Legitimacy in the Norm Lifecycle Model
For constructivists, the structure of international relations is determined by the
international distribution of ideas, whereby “expectations and beliefs about appropriate
behaviour are what give the world structure order and stability” (Finnermore & Sikkink,
1998, p.894). Consequently, much of constructivist research has focused around the study
of norms, defined as “shared expectations about appropriate behaviour held by a
collectivity of actors” (Checkel, 1999, p.83). When looking to examine the influence of
norms in the international system, one must first look to engage with the highly influential
work of Finnermore and Sikkink (1998). Their analysis of norms and the normative lifecycle
has become a key benchmark in constructivist thinking, providing the main framework for
understanding normative change. For Finnermore and Sikkink (1998), norms are seen to
evolve in a patterned lifecycle, understood to be a three stage process. It is subsequently
possible to plot the advancement of a norm along this linear timeline, allowing one to
understand the “dynamics of the agreement process” (Finnermore and Sikkink, 1998, p.892).
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Whilst succession along this life-cycle is not an ineluctable process, once a norm has been
seen to pass a “tipping point”, its progress to the latter stages is argued to be almost
inevitable. Consequently, it is the divide between the first and second stage which provides
the key threshold or “tipping point”, and whereby the main focus is around the impact of
normative contestation. Contestation towards new norms is inevitable, due to the fact that
norms emerge in a “highly contested normative space” where they are forced to compete
with other norms and interests (Finnermore and Sikkink, 1998, p.897). At the significant
“tipping point” stage, leader states and norm entrepreneurs attempt to persuade a critical
mass of relevant state actors to adopt the new norm (Finnermore and Sikkink, 1998, p.895).
It is through a process of “socialization” that dominant leaders begin to relate their own
identity back to the norm itself, helping to “redefine appropriate behaviour for the identity
called “state” (Finnermore and Sikkink, 1998, p.902). In this instance, a relevant subset of
states help to place pressure on others to adopt the new norm, in order to become fully
recognised as members of the international society (Finnermore and Sikkink, 1998).
“Socialization” is thus the dominant mechanism of this process, through which norm leaders
are able to persuade others to adopt new norms (Finnermore and Sikkink, 1998, p.902).
However, it is important to note that the advocacy of normative change by Finnermore and
Sikkink (1998), as well as other constructivist literature (Risse, Ropp, and Sikkink 1999), is
often presented as a one way dialogue, characterised by the advocates focus on persuasion
by a number of key actors, rather than a process of discussion and compromise between a
multiplicity of actors. According to Finnermore (1996), “normative claims become powerful
and prevail by being persuasive” (p.141). This process of persuasion is enacted by norm
entrepreneurs, whose mission it is to “change the utility functions of other players to reflect
some new normative commitment” (Finnermore and Sikkink, 1998, p.914). In this
framework, norms are seen to be able to take a number of forms, however the boundaries
in which they exist are viewed as fixed, in which norms are “taught, advocated and
internalised” (Krook and True, 2010, p.2). The analysis of contestation surrounding a norm is
therefore not focused upon the external conditions and discourses, but limited to a more
simplistic discussion of the competition between other opposing norms (Krook and True,
2010, p.2). Based upon this argument, the framework can be seen to lack an ability to
engage with crucial external discourses, outside of norm competition itself. In contrast,
norms are arguably in constant interaction with external conditions; whereby significant
external change can have an impact upon the legitimacy of a norm.
On the other hand, by suggesting the use of a non-linear timeline of normative change, it is
possible to view the persuasive process as being much more discursive, in which all actors
are as much message senders as receivers (Payne 2001 p.43) One must therefore begin to
the view the dynamics of normative change as a two way dialogue, in which progress can be
halted and brought back by the challenges and critiques of other states. A serious question
must then be asked of the traditional norm lifecycle framework, particularly the extent to
which norms can be adapted or even reformed in the normative lifecycle process. As Payne
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(2001) has previously highlighted, discussion of actors advancing counter-claims or
potentially adapting and reinterpreting the fundamental ideas of a norm, once past a
perceived tipping point, is significantly absent from the lifecycle model (p.42). This paper
will therefore assess how these limitations can be addressed through a greater emphasis on
the role of legitimacy.
The Missing Value of Legitimacy
The concept of legitimacy is a relatively marginalised element in the traditional normative
lifecycle framework created by Finnermore and Sikkink (1998), despite its potential
relevance to a variety of issues within their framework, such as contestation and
internalisation. Instead, analysis into legitimacy is only examined in detail with regard to the
issue of “peer pressure” and its impact upon state adherence to norms, in the second stage
of the lifecycle. According to Finnermore and Sikkink (1998) there are three key motivations
for states responding to the “peer pressure” created by the normative leader states, one of
which being legitimation. Despite not directly defining their interpretation of legitimacy, the
concept is regarded as significant in helping to shape state behaviour at this stage. By which,
“International legitimation is important insofar, as it reflects on government’s domestic
basis of legitimation and consent, thus ultimately on its ability to stay in power”
(Finnermore and Sikkink, 1998).
However, this understanding of normative contestation and the role of legitimation is
arguably too simplistic and underdeveloped, to fully explain how a norm may ultimately
face increased opposition, despite already passing a perceived “tipping point”. Norm
adoption cannot therefore be viewed as simply a process of “saving face” or building
domestic support. Whilst the impact on domestic audiences does play a role in state
thinking, contestation surrounding norms is often far more concentrated on issues related
to the governance of the international system itself. In contrast to the predominantly
domestic focus of legitimacy, found in the work of Finnermore and Sikkink (1998), a more
holistic understanding of international legitimacy is required, to highlight a number of other
key areas of contestation related to “transparency, participation and accountability in rulemaking” (Bernstein, 2005, p.163). Furthermore, through applying an analysis of legitimacy
that is more expansive in scope to our understanding of these debates, it can allow for
greater discussion into the role of power and world order, rather than a more limited
concentration on domestic image and prestige.
Defining the Concept of Legitimacy
In order to grasp how the concept of legitimacy can be applied successfully to a greater
understanding of normative contestation, one must first explain and define its features. This
is imperative, due to the inherently complex and contested nature of the concept (Beetham
and Lord, 1998, p.5). For Bernstein (2005), legitimacy is defined as “the acceptance and
justification of shared rule by a community” (p.142). In this sense, legitimacy is seen to
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decide “who is entitled to make rules and how authority itself is generated” (Bernstein,
2005 p.143). This definition is crucial in acknowledging a more expanded definition of
legitimacy, compared to earlier emphasis on legitimacy as simply a mode of compliance
(Bernstein, 2005, p.143). Likewise, Suchman (1995) views legitimacy as a “generalised
perception, or assumption that the actions of an entity are desirable, proper, or appropriate
in some socially constructed system of norms, values beliefs and definitions” (p.574). This
definition is also able to acknowledge that an actor’s decision to comply with a norm is
driven by a sense of appropriateness or rightness rather than simply self-interest or
coercion (Hurd 2007). When applying the concept of legitimacy to normative assessments, it
is possible to define its use based upon notions of “procedural or substantive fairness”
(Chimni, 2010, p.305). In looking to the role of procedural fairness, the legitimacy of a norm
is examined in regard to the process and procedures followed in the context of the norm;
whilst an emphasis on substantive fairness, is able to acknowledge that morally
questionable consequences severely damage the legitimacy of a norm (Chimni, 2010, p.305).
These concepts of substantive and procedural legitimacy are also a central focus of Ian
Clark’s (2005) seminal study of international legitimacy. For Clark (2005), legitimacy is
viewed as a “composite of, and an accommodation between, a number of other norms,
both procedural and substantive’ (p.207). He therefore recognises legitimacy as a “social
property” in which “claims to legitimation are mediated through politics and consensus”
(Clark, 2005, p.207). This understanding of international legitimacy is crucial to the process
of unpacking substantial debates surrounding normative contestation, particularly when
viewing the dynamics of normative change as a complex two way dialogue.
In order to examine legitimacy in context, we must next look to the process of
internalisation. Ian Hurd (2007) argues that this process can be judged by looking for
examples of states acting “instrumentally toward their goals” through the context of taking
existing norms for granted (p.32). This process of internalisation can then be seen to help
shape a state’s sense of their interests (Hurd, 2007, p.40). More specifically, when applying
the concept of legitimacy to the analysis of a norm, it is vital to analyse the process in which
an actor is able to internalise the norm, and how this then helps to define how the actor
sees his or her own interests (Hurd, 1999, p.381). Consequently, an actor’s belief in the
legitimacy of a specific norm and their reasons for following are not necessarily based upon
them being law abiding, or being submissive to a higher authority (Hurd, 1999, p.381).
Through the process of internalisation, a shared belief in the legitimacy of an international
norm has a direct effect, not only on the states own behaviour, but also upon the behaviour
of all other states (Hurd, 2007, p.64). This line of argument links to recent literature into the
status of the R2P norm by Bellamy (2013), in which the norm is viewed as a “habit-former”
(p.1). The internalisation of the R2P norm can be seen to act as an “external pressure” which
contributes to changes in interests and identities of states, as well as the context in which
decisions are made (Bellamy, 2013, p.12). As a result, legitimacy and understandings of
6
legitimacy are critical in forging an ability to assess the complex nature of state interests and
importantly how these interests change over time (Hurrell, 2005, p.16).
Nevertheless, norms will often run into tests of legitimacy, and so it is important to
acknowledge that levels of legitimacy surrounding a norm will always be in flux. The
communicative environment in which norms exist, mean they are able to lose legitimacy,
even in the later stages of the norm lifecycle. Any attempt to make use of a norm in practice
therefore provides an opportunity for the norms legitimacy to be tested. Consequently,
when examining normative contestation, it is vital to be able to track the range of
arguments and debates that surround the norm; this provides an ability to assess its current
legitimacy status. The breakdown of legitimacy for a norm can therefore be seen to create
opportunity for states to both “feedback and reconstitute” the norms original construction,
directly shifting the normative environment in which it competes (Hoffman, 2007, p.10).
Expanding analysis of legitimacy thus provides a far more comprehensive tool for tracing
how normative contestation develops and the impact it has on state behaviour. The
understanding of legitimacy highlighted in this section, will thus be applied to analysis of the
normative contestation surrounding the R2P norm; with specific focus on the impact of
procedural legitimacy.
III. The R2P Legitimacy Deficit
Following on from the analysis laid out in the previous section, it will now be crucial to apply
the theoretical to the empirical, by examining the limitations of the norm lifecycle model in
understanding how normative contestation has formed around the R2P norm. This section
will therefore examine a key area of contention, the 2011 NATO led intervention in Libya,
which provided the first practical application of the R2P’s third pillar. Rather than retelling
the narrative of the Libyan intervention, the paper will look to focus upon the response of
rising powers directly following the intervention, in order to assess how contestation
towards the R2P norm has formed around issues of procedural legitimacy. It is argued that
this first practical test for the R2P norm has created a significant legitimacy deficit following
the actions of the P3 states (UK, US & France); which has had a direct impact not only on the
normative status of the R2P, but also on debates between the P3 and the BRICS.
This analysis will subsequently help to uncover the often “missed terrain of conflict and
contestation over interpretations of legitimacy in norms” (Hurd, 2007, p.139). As highlighted
earlier, the norm lifecycle framework significantly underestimates this terrain by failing to
acknowledge the extent to which norms often face direct challenges to their legitimacy, in
the later stages of development. In order to demonstrate the strength of applying a focus on
legitimacy, to our understanding of R2P normative contestation, this section will focus on
debates surrounding key procedural legitimacy criteria. It is thus argued that these
disagreements have been central to the considerable normative contestation surrounding
the R2P.
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The Progress of the R2P Norm
The norm lifecycle model has formed a key tool for constructivist scholars looking to trace
the progress of the R2P norm from its initial conception in 2001 to its subsequent adoption
in the UN Outcome Summit Document (SOD) in 2005. There have thus been numerous
attempts to place the R2P norm upon this linear life cycle model of normative change. For
Reinold (2013), R2P is argued to be situated within stage two of the lifecycle, in which the
transition of the norm from stage one to stage two has been in part facilitated by “R2P’s
institutionalization into the UN machinery”, which is highlighted by the appointment of a
special advisor on R2P, as well as the creation of an informal Security Council working group
(p.87). Due to the internalisation process, it is argued that the political pressure on states to
address mass atrocity crimes has increased (Reinold, 2010, p.78). Based upon this
framework, one would expect the competing conceptions of the norm, which existed in
earlier stages of the lifecycle, to have become stabilised through the internalisation process;
the norm’s meaning would therefore be confirmed and contestation surrounding its
application would effectively be brought to an end (Welsh, 2013, p.379). However, Welsh
(2013) argues that this interpretation of the norm lifecycle neglects to examine what
happens after a norm is internalised, whereby future interpretations of the norm may still
shift the norms meaning, as well as bring about conflicting conceptions of its practical
application (p.379). The recent normative progress of the R2P has therefore been heavily
stalled by a number of attempts to challenge its practical application, as well as redefine its
overall construction. To emphasise this point, the paper will now focus on the 2011 Libyan
intervention, in order to examine the development of R2P normative contestation and the
subsequent legitimacy deficit.
Libya
On March 19th 2011 the UN Security Council passed resolution 1973, authorising a no flyzone over Libya. The NATO led military intervention acted to protect civilians threatened by
Qaddafi’s call to massacre civilians in the rebel-held city of Benghazi; by October, his 42 year
dictatorship had come to an end. The significance of Resolution 1973 on the situation in
Libya is certainly considerable, in which for the first time, the Security Council authorised
the use of force in order to “protect civilians against the will of a functioning state” (Claes,
2012, p.81). However, despite the claims of prominent R2P advocate Gareth Evans (2011),
that Libya represented a “textbook case of the R2P norm working exactly as it was supposed
to”, it soon became clear that there was considerable disagreement over the methods and
operational goals of the intervention. The actions of the P3 states during the Libyan
intervention have significantly redefined the debates surrounding the R2P, in which the
procedural legitimacy of the norms implementation has come under increasing attack.
Issues of contestation have now begun to centre on who has legitimate authority to decide
how civilians will be protected in accordance with R2P.
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These debates can be seen to originally stem from the construction of resolution 1973 itself,
which provided authority to protect “civilian and civilian populated areas under threat of
attack” (UN, 2011b). As Dunne and Gifkins (2011) argue, “the civilian protection component
of the resolution, shows a more expansive approach to the protection of civilians in both
actions and language” (p.523). The flexibility of the terms of resolution 1973 ultimately left
room for interpretation over what measures were seen as “ensuring effective protection of
endangered civilians” and most importantly, if regime change was considered “a necessary
and proportionate way of living up to the international community’s responsibility” (Reinold,
2013, p.102). This considerable ambiguity attached to the resolution highlighted the
complexity of applying R2P in the field, in which there was a clear need to elaborate further
on how the norm could create consensus on the type of force that could be used to protect
civilians (Welsh, 2011, p.7). The consequence of this ambiguity was a clear disagreement
over the idea that civilians would only be safe once Gaddafi was out of power. The
perceived overreach in the implementation of the Security Council mandate was thus
defined by a shift from “the politically neutral posture of civilian protection, to the partial
goal of assisting rebels and pursuing regime change” (Thakur, 2013, p.70). The decision by
the P3 states to overstep the stated mandate was seen to directly undermine the
correctness of procedure and therefore challenge the procedural legitimacy of the norm.
As Thakur goes on to highlight (2013), the implementation of the R2P in Libya,
“demonstrated the need for legitimacy criteria to guide decisions on authorizing and
overseeing international military intervention” in which its implementation proved to be of
a controversial nature for many emerging powers (p.61). This controversy was
acknowledged by a range of actors, including former UN secretary Kofi Annan (2012) who
also admitted that the way the “responsibility to protect was used in Libya caused a
problem for the concept”. What the intervention made clear therefore, was a considerable
level of disagreement as to how the R2P norm should be implemented and who had the
authority to decide its scope and goals. The consequence of this divide was a clear loss of
legitimacy for the R2P, in which serious questions were being asked of the norms practical
qualities. As Hurd (2007) argues, the loss of legitimacy for a norm is a result of actors failing
to live up to “the ideals and principles which justify it” (p.195). It is clear that the practical
application of R2P in Libya caused a number of states to reassess the legitimacy of the norm,
based upon the perceived goal of intervention, shifting from one of civilian protection to a
drive for regime change. The impact of this response by emerging states can be seen to
create a considerable legitimacy deficit for the R2P norm, which is central to understanding
the increased normative contestation it faces.
Consequently, it is vital to look beyond the confinements of applying the traditional norm
lifecycle framework to our understanding of R2P contestation, which provides only limited
scope for explaining the challenges a norm faces in the later stages of its development.
Alternatively, a focus on legitimacy during periods of normative contestation can be seen to
better inform our understanding of how norms are often susceptible to adaption and
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reconstruction, due to the dynamic nature of legitimacy itself. As the discussions in first
section highlighted, the legitimacy of a norm is not simply confirmed through the process of
adoption, its legitimacy status is fluid and open to change. For a norm to evolve and gain a
wider sense of legitimacy beyond its initial adoption, it must be susceptible to debate and
refinement across the normative lifecycle. Furthermore, by examining the normative
contestation surrounding R2P, through the lens of legitimacy, one can highlight how the
socialisation process for actors can never be complete; actors will always experience some
“turmoil and indecision” with respect to legitimacy, as well as susceptibility to arguments
from different points of view (Hurd, 2007, p.138). This underlines how analysing the concept
of legitimacy, is essential to forging a better understanding of the current normative status
of R2P. In order to assess the perceived legitimacy deficit, one must now look to outline how
contestation has formed around issues of procedural legitimacy.
Procedural Legitimacy & Accountability
When attempting to determine the procedural legitimacy of a norm, it is crucial to examine
the extent to which actors are willing to accept rules and procedures related to its practical
application (Hurd, 2007, p.71). The legitimacy of the action is therefore defined by the
ability of the actors involved to follow “accepted rules of procedure”, rather than the
inherent fairness or justice of the act (Hurd, 2007, p.71). In regard to the R2P, it is the UN
Security Council which defines the procedural framework of decision making and provides
the ability for force to be authorised on behalf of the norm. When assessing the legitimacy
of the Security Council to sanction the use of force, one must consider the question of
rightful process and conduct, in regard to the procedural aspect of its power (Keating, 2013,
p.169). Fundamentally, it is the treaties and mandates issued by the UN, which make up the
“procedural face of international legitimacy”, therefore underlying what is regarded as
rightful conduct in the international society (Gallagher, 2013, p.100). The debates over the
content of rightful conduct following the Libyan intervention can thus be seen to challenge
the legitimacy of the R2P norm (Hurd, 2007, p.72). The actions of the P3 states in going
beyond the established mandate not only damaged the legitimacy of the norm, but
highlighted the frailties of the current UN accountability mechanisms and decision making
procedures. By placing increased emphasis upon the procedural based arguments against
the implementation of R2P, emerging states have been able to represent themselves as the
“staunchest defenders of the UN system” (Serrano, 2011, p.435). This line of argument has
proved effective in undermining the overall legitimacy of the norm, through centring debate
on key aspects of procedural legitimacy, such as accountability.
The debates surrounding the R2P norm can thus be seen to have shifted in the aftermath of
the Libyan intervention, from a previous focus on accountability for failing to act when
atrocity crimes are committed, to a need to strengthen accountability measures for actors
going beyond stated mandates (Loiselle, 2013, p.322). In attempting to explain this shift,
one must apply greater focus upon the relationship between accountability and legitimacy.
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First of all, it is vital to acknowledge that accountability forms a central component of
legitimacy, in which the right to legitimacy is dependent on “whether the actor is accepted
as having an appropriate accountability relationship with others” (Black, 2008, p.150).
Accountability is thus critical in helping to form consensus around the conduct of actions
through demonstrating open and transparent procedure, reinforcing legitimacy. Without a
strong accountability agreement, states will lose confidence in the legitimacy of the actions
and processes undertaken by proponents of the norm.
It is clear that many of the fears that have crept into the debates on the concept of
accountability are fundamentally connected to R2P’s potential use as a pretext for regime
change, and the lack of controls to limit this (Garwood-Gowers, 2014). It is argued that the
Security Council failed to hold accountable the UN officials and states involved in
disregarding the Council’s mandate (Bellamy, 2014b, p.6). Due to this perceived lack of
accountability in the UN framework, there is increasing pressure for more stringent control
measures to be introduced for states acting on Security Council mandates (Bellamy, 2014b,
p.6). Most significantly, this line of argument was brought to attention in the Security
Council debates into the protection of civilians in armed conflict, May 2011, in which Brazil
stated, “we must avoid excessively broad interpretations of the protection of civilians”
which could be used as a “smokescreen for intervention or regime change” (UN, 2011a).
This was subsequently backed up by South Africa, who also warned of states “advancing
mandates which go beyond the protection of civilian mandates, including regime change”
(UN, 2011a). The actions of the P3 in Libya therefore created fertile ground for emerging
states to challenge the norm’s current implementation procedures, which included calls to
introduce more rigorous tests and accountability measures for the use of military force. The
weakness of the accountability measures defined by the current R2P norm and the UN,
mean that states have begun to view the norms implementation as holding a significant risk
of granting the overextension of powers, beyond the protection of civilians (Stuenkel, 2014,
p.23). As Gareth Evans (2014) acknowledges, the judgement of the P3 to resist debate in the
Security Council on their decision to push for regime change in Libya, severely compromised
any common ground that could have been forged in regard to transparency and the wider
issue of accountability. It is this decision to avoid debates around the issue of accountability
which undermine most severely the R2P norm’s procedural legitimacy and highlights its
failure to build consensus, around the practical use of force to protect civilians.
Whilst the traditional norm lifecycle model is useful in helping to explain the transition of
the R2P from emerging concept to an institutionalised norm, it fails however, to provide a
framework to assess the challenges to the norm, specifically beyond the initial “tipping point”
phase. A focus on legitimacy makes it possible to examine how a norm will always face tests
of legitimacy during its practical application, even once it is perceived to have reached the
stage of an institutionalised norm. Consequently states will have the opportunity to debate
and reassess their own position vis-à-vis the norm, following its practical application. As the
Libyan example demonstrates, the traditional norm lifecycle model requires a greater
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emphasis on legitimacy, in order to explain the considerable contestation that has built up
following the norm’s practical implementation. The complexity of the normative
contestation facing R2P is thus left considerably under theorised, without examining issues
related to procedural legitimacy and its impact on the lack of consensus surrounding the
R2P norm. Through focusing on the role of legitimacy in regard to normative contestation, it
has been possible to develop a framework of analysis that can provide greater insight into
how normative contestation forms during the later stages of the norm lifecycle.
IV. Addressing the Legitimacy Deficit
As previously highlighted, the procedural fallout from the Libyan intervention has resulted in
a redefining of the debates surrounding the R2P norm; which have had a considerable
impact on discussions regarding the subsequent Syrian crisis. Consequently, the R2P norm is
seen to be unable to fully meet crucial procedural criteria when applied in practice. The
result of this lack of consensus is a considerable legitimacy deficit, whereby normative
contestation continues to halt the norm’s progress through the lifecycle. This increasingly
contested environment has thus led to a number of rising powers attempting to adapt and
reform the R2P norm. It is therefore important to explore how issues related to the
procedural legitimacy of the R2P norm have helped to shape recent attempts at reform.
Consequently, it will be argued that new proposals have continued to challenge the overall
legitimacy of the R2P norm in its current state, fundamentally influencing state behaviour
towards the norm. The ability of rising powers to launch legitimate challenges against the
R2P norm must be examined in the context of shifting global power dynamics, which have
raised the profile of the BRICS and their ability to challenge Western dominance.
Understanding how legitimacy influences the construction of new normative proposals is
thus crucial to further developing analysis of normative contestation and its impact on state
behaviour.
The Impact of the Libya Fallout on the Syria Crisis
The practical application of R2P in Libya has arguably provided the trigger for increased
debate around the procedural elements of the R2P norm. To understand the current status
of normative contestation surrounding the R2P, one must begin by examining how this
process has continued to impact on the legitimacy of the norm, following the development
of the Syrian crisis. As Morris (2013) argues, the Council’s discussions over Syria were
particularly significant due to the fact that states were seen to have been “influenced by the
parallels drawn with Libya” (p.1275). Most significantly, Russia was forthright in contending
that “The situation in Syria cannot be considered in the Council separately from the Libyan
experience” (UN, 2011c, p.4). This line of argument again proposes that the implementation
of the operation itself can be seen to define the disagreement, whereby the legitimacy of
the norm has been directly undermined by the actions of the P3. As Sandholtz (2008) points
out, contestation surrounding normative concepts can be seen to reveal “shifting social
understandings of the rules and how they should be applied in practice” (p.121).
12
Subsequently, it can be argued that these disputes between states are frequently not the
result of abstract arguments, but are instead triggered by “practical disputes arising out of
specific actions” (Sandholtz, 2008, p.121).
As a result of such statements, it is easy to view the way in which NATO chose to implement
the mandate in Libya as the sole reason for the lack of consensus over intervention in Syria
(Morris, 2013, p.1275). On the other hand, the politics surrounding the Syria case make it a
difficult example to draw substantial conclusions from (Bellamy, 2014a, p.23). As Bellamy
(2014a) argues, the discussions in the Security Council regarding Syria did not revolve
entirely around the fallout from Libya; consequently it is important to consider the
considerable political ties between Moscow and Damascus as influencing the lack of
consensus (p.27). However, the perceived overreach of NATO forces did continue to inform
how many states viewed the practical components of R2P, in which the norms procedural
application became increasingly defined by the Libyan intervention. This is demonstrated by
the response of other BRICS, to the Syria crisis. South Africa's UN envoy, Baso Sangqu stated
that “The trajectory, the template for the solution (in Syria) was very clear, it was along
similar lines to Libya” (Plett, 2011). Furthermore, India's UN ambassador, Hardeep Singh
Puri, echoed a similar sentiment asserting, “Libya has given R2P a bad name" (Benner, 2011).
The consequence of this lack of consensus meant that three draft Security Council
resolutions relating to the situation in Syria failed to gain support (Bellamy, 2014a, p.25).
Whilst there has been no evidence of a consistent BRICS position on Syria, it is clear that the
failure of the Libyan intervention to build legitimacy around the R2P norm has certainly led
states to reconsider its current construction. This has been demonstrated by the increased
engagement of rising powers in attempts to redefine the current procedures for applying
R2P in practice.
The increasingly contested environment, in which the norm exists, can be seen to have
inspired alternative interpretations of the concept, as states attempt to redefine the rules
and procedures of the norm (Krook and True, 2010, p.709). New proposals have thus been
constructed around significant procedural legitimacy criteria, focusing on confronting the
current period of normative contestation. As Gareth Evans (2013) argues, the initiatives of
Brazil and China can be seen to reflect genuine and widely felt concerns, as well as attempts
to assume greater co-ownership of the R2P norm. This section will therefore look to assess
two significant proposals which have attempted to redefine the debate over R2P, through
their focus upon addressing key procedural legitimacy criteria.
Responsibility while Protecting
The significance of the Brazilian Responsibility while Protecting Proposal (RwP) is created by
both the context and timing of its introduction and most importantly, the status of its
author, a significant rising power looking to raise its profile on the global stage (Benner,
2013, p.2). The concept paper entitled “Responsibility while Protecting: Elements for the
Development and Promotion of a Concept”, was presented to the Security Council by
13
Brazilian UN Ambassador, Maria Luiza Ribeiro Viotti, On 9 November 2011, only months
after the controversial Libyan intervention (Benner, 2013). The proposal signified a critical
moment for Brazilian foreign policy, with the state underlining its ambitions to become a
leader in the development of a key global norm (Benner, 2013, p.2).
RwP firstly acknowledges a “growing perception that the concept of responsibility to protect
might be misused for purposes other than protecting civilians, such as regime change”
(Brazil, 2011, p.2). The proposal is therefore an initiative to counter this perception, focusing
on the need to place the “issues of legitimacy and proportionality at the centre of the R2P
debate” (ICRtoP, 2012, p.12). In this sense, one can view the Brazilian proposal as a warning;
that if intervention continues to be loosely regulated, powerful coalitions will continue to
divide the international community by intervening as and when they please (Stuenkel, 2014
p.22). In order to address the breakdown in the norm’s procedural legitimacy, the proposal
looks to focus on the decision making process within the Security Council, the adoption of
criteria to guide the implementation of resolutions, as well as the creation of a “monitoring
and review mechanism for the implementation of resolutions” (Almeida, 2013, p.51). With
this in mind, it will now be useful to examine in more detail, how the legitimacy deficit
caused by the Libya intervention has influenced the construction of the RwP proposal.
Whilst many procedural criteria form elements of the proposal, it is arguably a concern that
states acting on Security Council mandates are not currently held fully accountable, which is
at the heart of the Brazilian RwP proposal (Bellamy, 2014b, p.6). Consequently, the
emphasis on accountability in the proposal is specifically focused on the creation of
monitoring and review mechanisms, to increase scrutiny of the application of Security
Council resolutions (Almeida, 2013, p.56). It is clear that previous disagreements over the
application of the Libyan mandate have influenced the proposals emphasis on tighter
restrictions on “the scope of military action”; which must be seen to “abide by the letter and
the spirit of the mandate” (Brazil 2011). In attempting to better regulate this process, the
proposal specifically states a need to enhance Security Council procedures in order to
“monitor and assess the manner in which resolutions are interpreted and implemented”
(Brazil, 2011). This element of the proposal represents an important attempt to reinforce
the overall legitimacy of the UN, as the sole authority able to grant the use of force, as well
as to emphasise the organisations role in securing compliance and consensus.
The potential introduction of increased accountability mechanisms ultimately impacts on
discussions relating to the issue of effectiveness. The creation of new mechanisms to govern
implementation could potentially require adaptions to the UN Charter, and thus create
further debate and contestation (Bellamy, 2012). Whilst the Brazil proposal fails to fully
specify how these new mechanisms should be developed, it is likely that changes to the
current system of accountability procedures could directly limit the effectiveness of decision
making regarding R2P interventions, restraining the ability of states to apply a flexible
response in a quick and timely fashion (Bellamy 2012). Nevertheless, the Brazilian proposal
14
must be viewed as an attempt to improve the legitimacy of the current system of decisionmaking, designed to limit the ability of states to bypass UN accountability measures in the
name of effectiveness.
Moreover, debate following the aftermath of the Libyan intervention has brought forward a
number of issues regarding what an effective implementation of R2P should look like. The
RwP proposals attempts to develop these discussions further, specifically outlining a
number of factors that an effective intervention must adhere to. It is therefore stated that
the use of force must “produce as little violence and instability as possible and under no
circumstance can it generate more harm than it was authorized to prevent” (Brazil, 2011).
Again this element of the proposal is a direct attempt to create a more legitimate
interpretation of the R2P norm, restricting the actions that can be used in its name whilst
also emphasising the need for more effective prevention tactics.
In summary, it is clear that the RwP proposal is a significant attempt to refine the R2P norm,
in order to ensure future interventions can generate greater legitimacy and consensus
(Almeida, 2013, p.63). Despite this, the initial response by the P3 states to the proposal was
relatively negative, with the P3 challenging the RwP proposal for “attempting to delay or
block interventions” (Almeida, 2013, p.61). The direct response of the US reinforced this
assumption, in which it was stated that: “We cannot bind ourselves to inaction based on an
unrealistic prerequisite of assured success” (US, 2012). Based upon this line of argument,
Western states looked to categorise the proposal as an attempt to directly limit intervention
and question the overall responsibilities states have to those in need of protection.
Consequently, Brazil has remained relatively static on the issue, with no recent attempts
made to flesh out the specifics of the proposal or engage directly in further discussion
(Benner, 2013, p.8). However, it is clear that the proposal has continued to influence how
states view the R2P norm itself, with the India Ambassador, suggesting that “If R2P is to
regain the respect of the international community; it has to be anchored in the concept of
RwP” (India, 2012). The legitimate concerns of Brazil can therefore be seen to have
influenced debates around the R2P, demonstrating how contestation creates opportunity
for a norms legitimacy to be directly challenged and reinterpreted.
Responsible Protection
The Chinese scholar Ruan Zongze, in a 2012 journal article, first floated the concept of a
complementary R2P principle known as “Responsible Protection” (RP). Following the initial
proposal outlined by Zongze (2012), one of China’s senior think tanks (reporting directly to
the foreign ministry), organised a small international conference of leading experts in Beijing
to discuss the concept further. Many international attendees duly noted the significance of
this event, with India security expert Dipanker Banerjee (2013) suggesting that the event
demonstrated China’s “willingness to stand up to norms which are in the process of being
established by the West”. Moreover, Gareth Evans (2013) claimed that discussion of RP
15
represented the genuine and widely felt concerns of the BRICS, most specifically, the lack of
consensus in regard to the implementation of R2P.
Certainly the initial motivation for developing RP can be seen to echo similar sentiments as
the Brazilian RwP proposal, by which the focus is upon the fear of R2P becoming a
“synonym of regime change” due to how it was applied in Libya (Zongze, 2012). RP is
therefore positioned as an attempt to build consensus over the application of R2P through
developing further discussion, as well as helping to formulate “a written document to guide
future decision-making” (Zongze, 2012). The proposal thus suggests a number of key
principles that should be adhered to under the concept of RP. These principals ultimately
reflect a need to address key procedural legitimacy criteria in order for consensus to be built.
In regard to the role of accountability, the proposal is clear in its support for further United
Nations mechanisms of supervision as well as “outcome evaluation and post-factum
accountability” for state application of the R2P (Zongze, 2012). The UN therefore has an
increased role in ensuring all aspects of the “means, process, scope and results of protection”
are adhered to by the states involved (Zongze, 2012). Part of the process of ensuring this
accountability is to firstly better define objectives of protection operations, in this sense
only protection of innocent people is a rightful form of protection, not “specific political
parties or armed forces” (Zongze, 2012). Secondly, to construct tighter mechanisms to
ensure intervention does not “create greater humanitarian disasters because of protection”,
again stressing the need for the UN to monitor intervention once a mandate has been
adopted (Zongze, 2012). The framework further reiterates concerns over the strength of
current accountability procedures specified by the R2P norm, thus highlighting the impact of
the current legitimacy deficit on attempts to redefine the norm.
Furthermore, the proposal attempts to build greater legitimacy for the concept through its
appeal to be upholding the purposes of the UN charter, in contrast to the damage caused by
R2P’s recent implementation (Zongze, 2012). As Hurd (2007) points out, efforts to challenge
or adapt a norm often take the form of a claim to be making a more “truthful and
historically accurate interpretation of the values underpinning the institution (or norm)”
(p.142). One can point directly to this line of reasoning in the RP proposal (2012). Zongze
(2012) is forthright in his attack upon the current R2P norm, arguing that responsible
protecting “better embodies the purposes and principles of the UN Charter as well as the
basic norms governing international relations”; furthermore RP is seen as “more conducive
to building a just and reasonable new international order“. This statement is not only a
claim to greater legitimacy for the proposal, but also a direct attempt to undermine the
legitimacy of the current formulation of the R2P. More specifically, the example
demonstrates how normative contestation creates debates over whose interpretation of
the norm holds the greatest legitimacy.
On the other hand, it is important to note that debate around the initial RP proposal has not
yet resulted in the Chinese perusing the idea at a more formal level. The decision to bring
16
the proposal into international focus, through the conference in Beijing, must be viewed as
a significance move in China becoming more engaged in discussions of R2P, but this still
represents only a tentative step. More fundamentally, whilst the proposal looks to tick
many of the same boxes as the Brazilian RwP proposal, it is considerably lighter on policy
and ultimately how an RP guide to intervention would be established formally, remains to
be seen. What the proposal does represent however is an increasing acknowledgement of
the need to refine the current R2P norm, as well as a significant nod towards the growing
engagement of BRICS countries in the development of normative concepts. Consequently,
the proposal further challenges the legitimacy of the original R2P concept, potentially
reframing how future discussions and agreements must be developed in order to secure
consensus.
When examining attempts to reform and adapt the R2P norm, one can highlight a clear
continuity between the emphasis of recent proposals and key procedural legitimacy criteria.
This ultimately demonstrates how concerns relating to procedural legitimacy have increased
engagement with the norm, directly influencing the construction of adapted R2P proposals.
This is significant, as it adds to our understanding of how normative contestation forms and
how state behaviour and interests towards norms can shift as a consequence. The
increasingly contested external environment has driven states to reassess the current
formulation of R2P, directly challenging its legitimacy; consequently Brazil and China have
framed their proposals as attempts to strengthen legitimacy and build greater consensus
around the norm. This analysis therefore demonstrates the impact legitimacy has on
normative concepts during periods of contestation, whereby the relative legitimacy of a
norm shapes interaction and the ability of states to launch effective challenges.
V. Conclusion
This paper has argued that a greater focus on the role of legitimacy can better inform
constructivist thinking on the impact of normative contestation. The dominant
understanding of norm development presented by Finnermore and Sikkink (1998) can be
seen to lack an ability to engage with crucial external discourses, outside of norm
competition itself. In contrast, norms are arguably in constant interaction with external
conditions; whereby significant external change can have an impact upon the legitimacy of a
norm. Furthermore, the framework presents a relatively simplistic and underdeveloped
conception of legitimacy, which is based solely on the impact of domestic prestige and
support. A more expansive interpretation of legitimacy is therefore required, to capture
how contestation can form around issues related to the governance of the international
system itself. These limitations are seen to clearly restrict the ability of the model to
understand how normative contestation forms around developed norms and ultimately
how this impacts on state behaviour. When looking to judge why a norm has become
increasingly contested, one must begin by examining how states are attempting to justify
their decision to directly challenge the norm. It is subsequently possible to trace how these
17
challenges are often attempts to undermine the legitimacy of the norm, appealing to a need
to reinforce and adapt key elements. These concerns then influence further engagement
with the concept, as states look to address the breakdown of legitimacy.
This theoretical argument was applied to the study of the R2P norm, in an attempt to
understand how contestation has formed around the concept. Following the actions of
NATO forces in Libya, states were quick to question the norms practical application, directly
undermining the procedural legitimacy components of the norm. The impact of this growing
normative contestation can be seen to have had a significant effect on the behaviour of
states towards the norm, whereby a number of BRICS states have sought to further
challenge the legitimacy of the norm. Consequently, Brazil and China have framed their
recent proposals as attempts to strengthen procedural legitimacy criteria and build greater
consensus around the norm. These two examples therefore reveal how the practical
application of a norm will often test its overall legitimacy, whereby the breakdown in
consensus directly influences how states view the norm and adapt their behaviour
accordingly. Subsequently, the recent trajectory of the R2P norm is seen to have reinforced
the idea that normative concepts are continually redefined and adapted throughout the
norm lifecycle as they encounter practical tests of legitimacy. This more reflexive
interpretation of the norm lifecycle holds that norms evolve through interaction in context
and are hence flexible in their construction. One can thus argue, that the initial acceptance
of a norm may in fact be only the start of intense debate to define the norms meaning and
how its practical elements will be applied (Kersbergen and Verbeek, 2007). A greater focus
on the impact of legitimacy can therefore allow for an improved understanding of how
contestation forms in the later stages of a norms development, as well as how debates over
a norm’s legitimacy influences and shapes state behaviour. Consequently, in order for the
norm lifecycle to remain relevant to analysis of normative progression, it must be able to
acknowledge the impact of legitimacy on norms in the later stages of development.
18
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