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

TLDR

The creation of the ICC surprised observers because major powers, especially the U.S., opposed it, and its design imposes high sovereignty costs with uncertain benefits. The study develops a theoretical model of institutional change to show that weaker actors can alter normative and institutional settings to increase the chance of persuasion and discourse in collective decision making. The model specifies conditions under which persuasion and discourse shape collective decision making. Negotiation analysis attributes the ICC’s successful creation to persuasion and discourse that shifted states’ interests.

Abstract

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