Legal Framework for International Business

IV. Processes

Social constructivists are keenly interested in the emergence and evolution of international norms. Alexander Wendt, for example, argues that international order is shaped by the shared understanding of states regarding ‘cultures of anarchy’. He subsumes realist and liberal perspectives on world politics, arguing that particular cultures of anarchy socialize states into particular forms of behavior. A realist ‘Hobbesian’ anarchy is based on competing power relations and portrays other states as enemies; an institutionalist ‘Lockean’ anarchy is based on competing interests and portrays other states as rivals; whereas a ‘Kantian’ anarchy is based on shared values and portrays other states as friends. Ultimately, international order is determined by ‘what states make of it’ (Wendt 1999;1992).

While this dovetails with some concerns of international legal scholars in strengthening an international legal order, the language and framework used by a constructivist such as Wendt is very different from the language and framework employed by a scholar of international law. On the other hand, there are some constructivists who take a more legalistic approach, such as Christian Reus-Smit (2004), who have been more sympathetic to explicitly examining the relationship between international law and international politics through a reflection on the feedback effects of law on politics, rather than just politics on law.
Other social constructivists such as Martha Finnemore and Kathryn Sikkink (2005) have focused on the role that individual ‘norm entrepreneurs’ play in promoting and institutionalizing new international norms. They argue that international norms emerge in life cycles that generally begin with norm promotion by individuals, and progress to norm institutionalization within international organizations and institutions, followed by socialization and acceptance of norms by state actors that begins with a few state actors and then spreads until it reaches a tipping point and creates a ‘norm cascade’. This can, they argue, lead to a general acceptance, internalization, and the naturalization and institutionalization of the new norm. Within this framework, international law plays an important role in promoting normative change. The signing on to international conventions and treaties marks an important stage in the ‘norm cascade’ pattern. Whereas states may initially sign on to international human rights or other conventions for instrumental reasons, this may initiate a process that eventually leads to a change in behavior, and internalization of new norms, and perhaps an eventual change in a state’s own self-identity. Again, the terminology used here is very different from that used by IL scholars, but parallels processes of state acceptance of and compliance with international law, and the ways in which international law can insert itself into a state, reshaping domestic legal practice.
With regard to the creation of and compliance with limitations on resort to the use of force or conduct of armed conflict, constructivists point to the normative power of the UN Charter, International Humanitarian Law and other international treaties. State leaders may comply with these legal regimes because they believe them to have value in themselves, and because they conceive of their states to be law-abiding members of the international community. The social constructivist Nina Tannenwald, for example, has argued that states have not used nuclear weapons and largely comply with the Nuclear Non-Proliferation Treaty (NPT) because they have internalized a strong ‘nuclear taboo’ that makes it normatively unacceptable to use or openly pursue nuclear weaponry. This is a very different argument from that made by realists who would focus instead on the role of power, threats, coercive diplomacy, and security guarantees in limiting the use and spread of nuclear weapons since World War II.

1 The democratic peace thesis claims that democracies are unlikely to fight each other. Prominent liberal IR scholars who have advanced the democratic peace thesis are Michael Doyle (1983) and Bruce Russett (1994). A number of different explanations have been given for the finding that democratic states are unlikely to go to war with each other. Some explanations emphasize the role played by shared liberal norms and values. Other explanations focus on the institutional constraints on war found in democratic systems, the transparency of information provided by a free press, or other factors such as trade ties and interdependence.