Contestation from Within: Norm Dynamics and the Crisis of the Liberal International Order

Abstract:

To what extent is the current “crisis of the liberal international order” a result of features of the order itself? In this article, we focus on the role of formal and informal hierarchies by comparing two cases of contestation of core norms of the liberal international order: The African states and the African Union contesting the duty to prosecute institutionalized in the International Criminal Court and the United States contesting the international prohibition of torture. The African contestation of the duty to prosecute became radicalized and diffused, leading to challenges to the broader international criminal accountability regime. The US contestation of the prohibition of torture did not spread, leaving the broader human rights regime untouched. We argue that the formal and informal hierarchies in both orders shaped their contestation dynamics more than their formal institutionalization. While the duty to prosecute is situated in a highly hierarchical setting that fueled frustration and contestation, the contestation of the prohibition of torture evolved in the less hierarchical setting of the human rights treaty bodies, which helped prevent contestation from spreading.