Institutional replacement is an overlooked phenomenon in the study of international organization. But many of the world's most prominent institutions have predecessors. The United Nations replaced the League of Nations. The World Trade Organization (WTO) replaced the General Agreement on Trade and Tariffs (GATT). Most recently, the Ottawa Convention banning landmines effectively replaced Protocol II of the 1980 Convention on Certain Conventional Weapons (CCW).Footnote 1
In the early 1990s, the CCW, which regulated the use of landmines, was widely perceived to be in crisis. Over a decade after the CCW opened for signature, landmines were still being used indiscriminately and at tremendous humanitarian cost. Yet despite successful multilateral efforts to strengthen the CCW in 1996, a critical mass of states nonetheless partnered with the nongovernmental organization (NGO) community to create an entirely new institution, the Ottawa Convention, which today is composed of more than 150 member states.
When and under what conditions is an existing international institution most likely to be replaced by a new one? Conventional international relations theories offer only partial insights into this question and seldom address it directly. Realists, for example, would have difficulty explaining the replacement of the strengthened CCW given that it, unlike the Ottawa Convention, enjoyed great power support and enacted a ban on an entire class of weapons already in widespread use.Footnote 2 Likewise, neoliberal institutionalists would have difficulty explaining why a group of smaller states with little strategic interest at stake bore significant costs to negotiate a replacement institution from scratch without even giving the strengthened CCW a chance.
I argue that the concept of legitimacy, commonly defined as “the belief that an institution ought to be obeyed,” is necessary to understand institutional replacement.Footnote 3 Institutions are not simply reflections of materially defined power and interests. They also embody a set of ideas and norms. When these ideas and norms are contested, state identities and interests may evolve in a way that leads them to question their commitment to the institution. Consider again the landmines case. Scholars typically use it to show how the unprecedented mobilization of global civil society, spearheaded by the Nobel Prize-winning International Campaign to Ban Landmines (ICBL), fueled the social processes that led to the Ottawa Convention.Footnote 4 Scholars identify several potential lessons: nonstate actors matter, smaller states can create international institutions without great power support, and nontraditional diplomatic mechanisms can be valuable. These lessons, however, are more agent-centric and have little to say about the conditions in which institutions are most likely to be replaced, or, in this particular case, why states bore significant costs to create an entirely new institution despite the existence of a recently remodeled one that was not even given the chance to address the landmines crisis.
It is surprising that the institution that was delegitimized and effectively replaced by the Ottawa Convention is almost completely ignored by the literature. Indeed, it is difficult to imagine the emergence of the Ottawa Convention without the CCW. The CCW was a landmark achievement in its own right because it grew out of expert negotiations on the margins of the diplomatic process to amend the Geneva Protocols and combined humanitarian concerns with traditional arms control in a Cold War environment that was less than conducive to global cooperation. When the ICBL first sought to press the landmines issue, it did so through the CCW. Moreover, as the landmines problem drew further attention from the international community, the CCW served as the embodiment of the status quo ideational consensus against which the legitimacy of multilateral efforts to regulate landmines was contested. A focus on the CCW might therefore further one's understanding of the relationship between transnational advocacy networks (TANs) and international institutions.Footnote 5 Most importantly, however, a systematic examination of the move from CCW to Ottawa can help improve one's understanding of the conditions in which institutions are most likely to be replaced.
This article is organized into three primary sections. First, I sketch a theoretical framework in which to analyze the relationship between legitimacy and institutional replacement. Second, I explore the origins of the CCW, how its legitimacy came to be contested, and its critical role in the move toward the de novo creation of a separate institution—the Ottawa Convention. I argue that while the legitimacy of the CCW was, at multiple developmental stages, contested in procedural and substantive terms, these alone would not be enough to spur the creation of the Ottawa Convention. Rather, an accompanying fundamental shift in ideas—both principled and causal—facilitated by the efforts of the ICBL to delegitimate the CCW, paved the way for a shift in discourse from control to disarmament that made the creation of a new institution possible. Finally, I seek to generalize from the CCW experience through a preliminary discussion of other ways and cases in which legitimacy might affect institutional replacement and persistence.
Theorizing Institutional Replacement
International institutions are relatively stable collections of rules and communicative practices defining appropriate behavior for specific groups in specific situations.Footnote 6 For years, international relations scholars have grappled with questions of institutional continuity and change. While most theoretical approaches focus on institutional robustness, defined as “the ‘staying power’ of international institutions in the face of exogenous challenges.”Footnote 7 The focus here is on institutional replacement—the renegotiation of an institution intended effectively to replace an existing one.
By employing a purely instrumentalist logic, one can discern at least two possible explanations for institutional replacement. First, from a power-based perspective, if institutions are simply a reflection of the power distribution in the international system, they should change in response either to changes in the balance of power or to changes in interests of the most powerful actors.Footnote 8 Or, should a replacement institution arise without great power support, it is because states are only engaged in “shallow” cooperation which does not require any significant behavioral adjustment in the first place. This approach offers important insights into the replacement of existing institutions after major wars, such as how the great powers effectively replaced the League of Nations with the United Nations after World War II. The United Nations and Bretton Woods institutions very much reflected the new distribution of power and the strategic interests of the powerful.Footnote 9 However, power-based approaches cannot easily account for instances in which institutions involving “deep” cooperation are replaced against great power interests and absent a major shift in the international distribution of power, as in the landmines context described above. They also have difficulty explaining why some institutions are not replaced when they are perhaps expected to be, as in the case of the North Atlantic Treaty Organization (NATO) after the Cold War.Footnote 10
A second interest-based explanation suggests that “institutions should persist as long as … their members have incentives to maintain them.”Footnote 11 Because the creation of a replacement institution involves considerable negotiation and transaction costs, states will maintain even flawed institutions so long as the material and informational benefits outweigh the costs of doing so. Interest-based explanations also argue that institutions persist even when they appear to outlive their original purpose (for example, NATO) because they contain “general assets” (for example, increased transparency or the provision of focal points) that members value in a variety of contexts.Footnote 12
However, while such a functionalist approach offers important insights, it also has important limitations. For example, as described above, this approach would have difficulty explaining why states would bear considerable costs to replace an institution when a suitable alternative containing general assets already exists. Moreover, as Ruggie points out, marginal utility alone cannot accurately explain the origins of some of the specific features of institutions and their evolution, be it the indivisible security commitments of NATO or the outright prohibition of a weapons system in widespread use, such as landmines.Footnote 13
Institutions are not simply reflections of great power preferences or equilibrium outcomes among self-interested states. They also reflect a normative and ideational consensus. Power- and interest-based explanations assume that order is achieved and maintained primarily through material means thereby ignoring the social processes by which the ideas and values that facilitated the creation of the institution came to be accepted as valid and how the resulting normative order is sustained or weakened over time.Footnote 14 In this vein, international institutions play a critical role in global politics: as structures in which contests over the legitimacy of action take place.Footnote 15 Indeed, regulatory politics are not only “driven by problems of trust and credible contracting,” but also by deep ideational disputes over the causal assumptions and normative values that are at stake in dealing with a problem.Footnote 16 By examining institutions through the lens of legitimacy, one can ask how ideas and values might shift in conjunction with costs and benefits in order to gain a deeper understanding of institutional replacement.
Legitimacy is conventionally defined as the “normative belief that an institution ought to be obeyed.”Footnote 17 It is, in Hurd's words, “a subjective quality, relational between actor and institution, and is defined by the actor's perception of the institution.”Footnote 18 One can envision several ways in which legitimacy can inform the transition from one institution to another. There could be a positive transmission of norms through diffusion or mimesis. For example, certain features perceived to be “legitimate” in a preceding institution can be “downloaded” to the replacement. When the WTO replaced the GATT, many of the existing features of the GATT became part of the new institution. However, the primary focus here is on the contestation and delegitimation of existing institutions, since these processes are most likely to result in a fundamental shift in the scope and nature of the institution, such as the move from regulation to prohibition in the landmines case detailed in the next section. To analyze the relationship between institutional delegitimation and replacement, one should consider three primary questions: What are the sources of institutional legitimacy? What are the forces and mechanisms that might delegitimate an institution to the point of replacement? What role does the existing institution play in this process?
Contested Legitimacy, Ideational Change, and the Role of the Existing Institution
When scholars invoke legitimacy, they typically cast it in one of two lights. First, legitimacy is often described in terms of “inputs” or “process.” In this view, the legitimacy of an institution rests on the extent to which it is perceived to “reflect the ‘will of the people’” and to have come into being and operate in accordance with generally accepted principles of “right” process.Footnote 19 Legitimacy is also described in terms of “outputs” or “substance.” From this perspective, institutional legitimacy relies on the extent to which it “effectively promotes the common welfare of the constituency in question” and the degree to which its rules “satisfy the participants' expectations of justifiable distribution of costs and benefits.”Footnote 20 As Sharpf succinctly puts it, “input oriented legitimacy emphasizes ‘government by the people’” while “the output oriented perspective emphasizes ‘government for the people.’”Footnote 21
However, while these distinctions are quite useful, they only tacitly address a critical facet of legitimacy: the role of ideas.Footnote 22 When an institution is founded, it typically rests on a common set of causal and principled beliefs. Causal beliefs are ideas about cause-and-effect relationships that derive authority from the shared consensus of recognized elites such as the scientific or military communities. Principled beliefs are normative ideas that specify criteria for distinguishing right from wrong and just from unjust.Footnote 23 When scholars examine the legitimacy of international institutions, they tend to treat these underlying principled and causal beliefs as constant and evaluate legitimacy in terms of whether the institution operates according to accepted principles of “right” process and whether outputs are consistent with common goals and values.Footnote 24 But to understand the relationship between legitimacy and institutional replacement, it is necessary not only to evaluate the institution in terms of inputs/process and outputs/substance, respectively, but also the extent to which the ideational frames in which these dimensions are evaluated shift over time. From this perspective, institutional replacement is most likely to occur when a cognitive shift reconstitutes identities in a way that affects interests and delegitimizes the existing institution.
When is such an ideational shift most likely and what mechanisms drive a move from one institution to another? One cannot divorce what Haas calls “cognitive evolution” from the interactive social processes that lead some ideas to become institutionalized in the first place.Footnote 25 Finnemore and Sikkink identify a norm “life cycle” consisting of three stages—norm emergence, norm acceptance (or “cascade”), and norm internalization—by which ideational change can be conceptualized. In the first stage, norm entrepreneurs (agents including transnational advocacy networks, epistemic communities, and social movements) seek to promote some form of policy change from the status quo.Footnote 26 They are usually bound together by a certain set of ideas and seek to effect change by re-interpreting or reframing issues, getting their issues onto the mainstream political agenda, and using pressure tactics such as “naming and shaming.” In the second stage, the social processes of argumentation and persuasion lead to a “tipping point” in which a critical mass of states adopts the new norms, which in turn leads to their institutionalization. Once created, institutions provide a forum for social interaction, norm interpretation, and internalization that helps to reconstitute national interests and establish the identity of actors as ones who obey institutional rules and norms.Footnote 27 In the final stage, norms are internalized to the point where compliance becomes a natural force of habit. In this view, institutional “stickiness” is therefore not just derived from some degree of functionality, but also from its social value and legitimacy.Footnote 28 As Keck and Sikkink argue, “normative change is inherently disruptive or difficult because it requires actors to question this routinized practice and contemplate new practices.”Footnote 29 Consequently, arguments that succeed in changing a dominant belief structure must be extremely convincing in order to overcome ingrained habit and institutionalization.Footnote 30
Two factors seem to be particularly important in this regard: the existence of a “political opportunity structure” and norm entrepreneurs who are well-equipped to empower it. A political opportunity structure is defined as “consistent—but not necessarily formal, permanent, or national—dimensions of the political environment which either encourage or discourage people from using collective action.”Footnote 31 Factors that could enhance the political opportunity structure include an exogenous shock or focusing event, the opening up of access to power, shifting ruling alignments, the increased availability of influential allies, or cleavages within and among elites.Footnote 32
However, in order for change to take place, the opportunity structure must be empowered and exploited by norm entrepreneurs through effective argumentation and persuasion.Footnote 33 In promoting normative change, these entrepreneurs frame or “create issues by using language that names, interprets, and dramatizes them.”Footnote 34 Arguments intended to change dominant beliefs and norms work by denormalizing and delegitimizing dominant practices, by changing actors' conceptions of their interests, and sometimes by changing the capabilities of dominant actors to carry out the practices associated with those norms.Footnote 35 This change may result in a crisis of legitimacy or a “critical turning point when decline in an … institution's legitimacy forces adaptation (through relegitimation or material inducement) or disempowerment.”Footnote 36
The existence of a political opportunity structure creates a situation in which arguments are more likely to be received, but that does not necessarily mean they will be persuasive. The power of persuasion depends in significant measure on the characteristics of those making the argument. While there is no definitive agreement as to what makes some norm entrepreneurs more effective than others, scholars have identified a range of potentially important factors, including a collective identity, a common purpose or identifiable challenge, moral and/or knowledge-based authority, network density, material resources, and organizational capacities.Footnote 37 The stronger and more cohesive the norm entrepreneurs along these lines, the better positioned for success they will be.Footnote 38 Of these factors, authority and common purpose deserve particular attention. Agents that enjoy high degrees of moral and/or expert authority are more likely to articulate credibly cause-and-effect relationships, help identify interests, frame issues for collective debate, and highlight the most salient points of negotiation.Footnote 39
However, arguments do not appeal to all actors in the same way. Some state identities and interests (for example, Scandinavian states) have evolved in a way that makes them more open to principled arguments than others.Footnote 40 Others, such as developing countries, might not be as easily persuaded to accept what they perceive as Western norms, given their position in the international system and their wariness of being dominated by the powerful. Of course these countries also might be more willing, ceteris paribus, to support initiatives opposed by the great powers for principled reasons as a means of resistance. Additionally, causal arguments might be more likely to affect interests by altering strategic perceptions of targets (for example, the strategic value of a weapons system), while principled arguments are more likely to affect their normative belief structures (for example, the morally acceptable uses of a weapons system). When arguments are framed in both causal and principled terms their persuasive potential is greater because they are more likely to resonate with the broadest possible audiences. When these arguments coalesce around a common purpose and a clearly defined alternative to the status quo, they are better equipped to generate the momentum necessary to delegitimate the existing institutional order.Footnote 41 But the nature of the status quo also matters considerably.
The existing institution is especially critical to understanding the relationship between legitimacy and institutional replacement for two primary reasons. First, as noted above, institutions are not created in a vacuum but are rather a product of a social and cognitive evolutionary process. Tracing the ideational origins of the existing institution raises a number of questions necessary to assess its legitimacy and the prospects for replacement. What principled and causal assumptions were used to justify the creation of the institution? Where did they come from? Which actors were promoting these ideas? To what extent does the founding institutional discourse reflect some degree of ideational consensus among relevant actors? Was the initial negotiation process contentious? If so, were there disagreements over the values and goals that the institution was supposed to be promoting? How solid was the founding ideational consensus behind the institution? A stronger consensus agreement on institutional goals and values in principle creates a more robust cognitive and social basis for its operation over time, delimiting potential political opportunity structures, and making delegitimation more difficult.Footnote 42 Should the cognitive frames in which institutional legitimacy is perceived fundamentally change or shift in emphasis, state identities and interests might change in a way that causes them to rethink their commitment to the institution and consider replacement.
Second, the existing institution is important because it provides a basis for analyzing how structure and agency interact to bring about normative change. Norm entrepreneurs, who are successful in promoting normative change, reconstruct or redefine the linkages between established and new norms.Footnote 43 They do this by contesting the legitimacy of the existing institution in procedural and/or substantive terms.
When norm entrepreneurs detect and seek to empower a political opportunity structure, they usually seek to gain access to the existing institution and attempt to get their issues on the agenda. If institutional procedures prove incapable of providing sufficient access or cumbersome voting mechanisms block pathways to desired change, then agents may contest the institution's procedural legitimacy, arguing that it does not sufficiently reflect the will of the people and perhaps advocating for an alternative institutional forum. Yet procedural arguments are more likely to take hold if they are situated in broader substantive context.
Norm entrepreneurs typically contest the substantive legitimacy of an institution in order to promote normative change, arguing either that institutional outputs are incongruent with the substantive goals and values of the institution or that the substantive underpinnings themselves need to change. The persuasiveness of these arguments depends heavily on their “fit” with the existing normative framework, which serves as a focal point for legitimacy contests. In this sense, institutions serve as discourse arenas enabling deliberative processes geared toward problem solving and provide, in Habermasian terms, a “common lifeworld” or “a common set of references and of experiences to which actors can relate in their communicative interactions.”Footnote 44 In other words, participation in institutional forums not only fosters a common knowledge regarding the problem and the “rules of the game” necessary to solve it, but also enables actors to challenge and explore the validity claims of norms and thus revise their views of the world, identities, and interests.Footnote 45 Since actors who hear arguments compare them to beliefs they already hold, norm entrepreneurs often use the existing institution as a foil in framing and reframing the issue.Footnote 46 They seek to raise awareness about the problem and demonstrate how the existing institution is insufficient to solve it. Without the existing institution as a reference point, actors would either be less likely to see the need for change or choose different options (such as those that led to the existing institution in the first place). However, if the existing institution rests on a solid ideational consensus among the governed, it is much more likely to absorb substantive contests of legitimacy and/or make adjustments to address legitimacy concerns, without garnering sufficient momentum toward a replacement.
The legitimacy of many international institutions is commonly contested in both procedural and substantive terms, but these contests alone are unlikely to delegitimate an institution to the point of replacement. However, if the principled and causal arguments that fuel legitimacy contests lead actors to question the ideational basis of the existing an institution (thereby affecting perceptions of what institutional goals and values should be and what legitimacy means), replacement is much more likely. Because the existing institution embodies the dominant belief structures that inform perceptions of legitimacy, it simultaneously provides a focal point for debate and a springboard for reconstruction of norms that is critical in convincing states that an alternative order is preferable to the status quo.Footnote 47
The next section traces the institutional development of the landmines case to show how the evolution of ideas—driven in important ways by the International Committee of the Red Cross (ICRC) and the ICBL—led to the creation and delegitimation of the CCW, altered identities and cost/benefit analyses with respect to landmines over time, and spurred the creation a new institution that prohibited landmines outright.
The Landmines Crisis: From CCW to Ottawa
Anti-personnel landmines (APLs) are mines “designed to be exploded by the presence, proximity or contact of a person and will incapacitate, injure or kill one or more persons.”Footnote 48 They are indiscriminate, unable to distinguish between civilians and soldiers, or allies and enemies. They can be active for decades. They are small and easier to place in greater quantities. They are cheap, costing as little as three dollars, and easy to activate, requiring as little as one kilogram of pressure to trigger an explosion. APLs can also be extremely difficult to detect. Many mines are spread without any mapping efforts and new technologies have produced new (for example, nonmetallic) varieties that can elude mine detection efforts. Consequently, APLs have become a serious issue over time because of the tremendous and widespread humanitarian, economic, and psychological consequences that they have inflicted.Footnote 49 During the past two decades, APLs have become subject to much more international scrutiny and a target of international arms control efforts.
The Emergence of the CCW
Unlike most arms control arrangements, the origins of multilateral efforts to regulate landmines lie in international humanitarian law. International humanitarian law seeks to regulate the conduct of hostilities and the treatment of those not actively participating in the conflict, including civilians, the wounded, and prisoners of war.Footnote 50 In response to the evolution of military doctrine, weapons technology, and the tremendous damage inflicted on the civilian population in World War II, the ICRC began to draft rules to improve the protection of civilian populations. The ICRC's Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War was published in 1956 and was the first document that identified landmines specifically as a weapon of concern. Although landmines were still legally authorized and accepted weapons of war, the ICRC's Draft Rules stipulated that they were acceptable only against military objectives and must be charted so authorities after the conflict could ensure their removal.Footnote 51
Following the publication of the Draft Rules, the uses of and harm from landmines steadily grew, but it was not until the 1970s that momentum slowly began to build toward a coordinated approach to landmines as an outgrowth of international efforts to clarify and strengthen humanitarian law. The rise of intrastate conflict and guerrilla warfare after World War II complicated the application of the principle that a distinction must be observed between civilians and the military.Footnote 52 In response, a Diplomatic Conference on the Reaffirmation and Development of International Law Applicable in Armed Conflicts was convened in Geneva in 1974 in an effort to clarify and strengthen international humanitarian law.Footnote 53 At the end of the fourth session of the conference, two protocols were agreed upon and opened for signature in 1977.
These protocols restated two long-standing principles of international humanitarian law that are of particular significance for the landmines case. First, parties to a conflict must distinguish between civilians and combatants.Footnote 54 Second, the right of the parties to a conflict to adopt means of violence has legal limits. The use of weapons that cause unnecessary suffering and impose consequences disproportionate to their military purpose should be prohibited.Footnote 55 Together, the protocols increased the protection afforded to victims of armed conflict under international humanitarian law, which in turn created the political opportunity structure necessary to take steps toward addressing landmines.
On the margins of the conference, the experts of nineteen countries (in consultation with the ICRC) met three times between 1973 and 1976 to discuss potential problems of conventional weapons that may cause unnecessary suffering. Their primary aim was to provide governments with the necessary data and information they would need to address specific weapons in the protocols. The Diplomatic Conference created an ad hoc committee to weigh these findings. Because of the potentially sensitive nature of the inclusion of such language, the Conference ultimately decided not to introduce restrictions on specific weapons in the protocols, calling instead for such issues to be dealt with in the UN context.Footnote 56 The UN General Assembly endorsed this recommendation in 1977 calling for a UN conference “with a view toward reaching agreements on the prohibition or restriction of conventional weapons, including those which may be deemed to be excessively injurious or to have indiscriminate effects.”Footnote 57 After two preparatory sessions, a UN Conference convened in Geneva in the fall of 1979 and 1980, which led to the conclusion of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW).Footnote 58
Protocol II of the CCW represented the first formal multilateral arms control effort to deal with landmines. The CCW embodied what might be referred to as a more traditional form of arms control. Negotiations were conducted by states and significantly influenced by the international power structure, in which the United States and the Soviet Union had disproportionate influence. State sovereignty reigned as the guiding international legal principle, as evidenced by the consensus based decision-making process, which produced a least common denominator balance between military and humanitarian issues.
Protocol II was based on three major founding ideational assumptions derived from the historical uses of landmines and international humanitarian legal principles discussed above. The first, drawing on the language used in the Geneva Protocols, is that landmines are indiscriminate and can cause “superfluous injury and unnecessary suffering.”Footnote 59 States generally subscribed to the principled idea that landmines, left unregulated, could impose extreme and excessive humanitarian costs. But without the Geneva Conventions and the Diplomatic Conferences, which both provided customary legal validity and a focusing event to reinvigorate the idea that uses of landmines had moral implications, it is difficult to imagine the creation of the CCW.
Contrast the underpinning humanitarian assumption of the CCW with the second founding assumption that landmines can be militarily useful weapons. As Gard points out, the companion principle to proportionality in international law is military necessity, which assumes that there is some threshold for necessary violence in war, so long as there is respect for the law of war.Footnote 60 At the inception of the CCW, there was little debate over the military necessity for APLs. The expert contributions submitted to the Diplomatic Conferences argued that the “use of anti-personnel mines is a generally accepted means of hampering enemy advance.”Footnote 61 Even in the early 1990s, a similar experts group concluded that “no alternative meets military requirements in the way that anti-personnel (AP) mines do” and that “the AP mine is the most cost-effective system available to the military.”Footnote 62 The debate instead occurred over how to reconcile the military need with humanitarian concerns related to the weapon. The military necessity of landmines was, particularly for the great powers, a given. On the other hand, the argument that landmines could cause unnecessary suffering was also not controversial.
These competing views were squared in the third major founding assumption: landmines can be regulated. The compromise reached in the negotiations assumed that the military value of landmines could be maintained, while affording better legal protection for landmine victims through the creation of an international regulatory treaty. But the principles laid out in the Geneva Protocols alone would not be sufficient to ensure that they were followed. Precise rules that addressed the mine problem directly were necessary to exact change. By clearly specifying rules with respect to the use of landmines, Protocol II of the CCW would provide a necessary arms control supplement to existing humanitarian law.
Protocol II contained several key components aimed at addressing the landmines problem. First, it provided definitional framework for various landmines, booby traps, and other devices. Second, and most notably, it stated that the use of APLs was “prohibited in all circumstance[s] … either in offence, defense or by way of reprisals, against the civilian population as such or against individual civilians.” Protocol II of the CCW also established parameters for what constituted an “indiscriminate use” of weapons, drawing from international law, and provided restrictions on the use of remotely delivered APLs, authorizing their use only “within an area … which contains military objectives” and when “their location can be accurately recorded” or an “effective neutralizing mechanism” is in place.Footnote 63 Finally, the CCW provided a variety of provisions for the recording of minefields and the establishment of a cooperative basis for de-mining activities. The CCW opened for signature in 1980, and with fifty-one original signatories, including the great powers, entered into force in 1983.
However, the CCW also had significant problems. Protocol II only covered specific aspects of the use of landmines. It contained no provisions regulating the production, sale, or possession of these weapons. It also did not provide for compliance or verification procedures, contain an enforcement mechanism, or establish a predetermined review conference to assess the performance of the treaty over time. Like most international treaties, many of the CCW's provisions were ambiguous and vulnerable to interpretations that might run counter to the scope and purpose of the institution.Footnote 64 For these reasons, proponents of a stronger integration of humanitarian law into the text (particularly the international legal community and “principled” European states such as Sweden, Norway, and Switzerland and developing states such as Mexico—many of the same states that would join the Ottawa process) thought that the CCW was too weak.Footnote 65 Though a complete prohibition was considered, it was never a realistic option since it lacked the support of most of the major states with large militaries.
From an ideational perspective, the CCW is unique not only in that it was the first treaty regulating conventional weapons since the 1920s, but also in that it combined elements of international humanitarian law (the domain of principled beliefs) and arms control (the domain of causal military beliefs). The influence of humanitarianism in the CCW negotiations, though still subordinate to the military interests of powerful states, planted the seeds for an ideational challenge to the legitimacy of the landmines institution. A decade later those seeds would germinate.
The Landmines Crisis and the Delegitimation of the CCW
In the years that followed the negotiation of Protocol II of the CCW, there was little further action on landmines, but this would change in the early 1990s when the legitimacy of the CCW came under fire. Why didn't the landmines crisis become apparent earlier? Would the mobilization of the international community have occurred in the same way without the CCW? Why were transnational actors able to figure so prominently in the delegitimation of the institution? To begin to answer these questions, let us examine the state of the CCW in the early 1990s.
At the turn of the decade, the CCW hardly embodied government by or for the people. Although most of the great powers (including the United States and the Soviet Union) were members, the CCW only had thirty-two parties, with many developing states considering it not worth ratifying and some “militarily significant” states not wanting to be bound by its provisions.Footnote 66 There were no mechanisms in place to hold states accountable for their actions. Although the convention provided for review conferences, they were to be convened on an ad hoc basis and none were even scheduled. Most notably, uses of landmines went up, not down, during the 1980s. Conflict ridden countries such as Angola and Cambodia saw their mine problems worsen and the landmines used in these conflicts were being purchased from the industrialized world at a breakneck pace.Footnote 67 Two critical phases of delegitimation help illustrate why a critical mass of states moved to replace the CCW even after an agreement to strengthen it significantly.
Phase I: Mobilization (1991–94)
Part of the reason why the CCW did not come into question earlier was simply a lack of information. Because the CCW had no monitoring apparatus and access to many of the landmine-ravaged areas was limited, the growing humanitarian costs imposed by landmines slipped under the radar. To the extent that NGOs and other entities had such knowledge, there was no coordinated means to share it.
The initial move to revisit the landmines problem is widely considered to have begun with the International Committee of the Red Cross (ICRC). Alarmed by the apparent increase in the number of landmine-victim limb amputations and concerned by the outbreak of conflicts in the former Yugoslavia, Chechnya, and elsewhere, the ICRC began to collect data about the war-related wounds in surgical hospitals. Surgeons soon realized that a significant amount of these wounds were due to landmines and pressed the ICRC to raise the issue in its diplomatic, legal, and public awareness efforts.Footnote 68 In 1992, the ICRC published Mines, A Perverse Use of Technology, which presented some of the results of its data collection efforts.Footnote 69
On its own though, the ICRC had limited visibility. Not until it joined forces with a nascent coalition of other international NGOs concerned about landmines, did mine awareness efforts ignite. In October 1992, a group of six NGOs—Handicap International (France), Human Rights Watch (U.S.), Medico International (Germany), Physicians for Human Rights (U.S.), Mines Awareness Group (UK), and the Vietnam Veterans of America Foundation—banded together to form the ICBL.Footnote 70 Each approached the landmines issue from a different perspective. Some, such as the ICRC and Human Rights Watch, approached it as a human rights and humanitarian legal issue. Others such as Handicap International or Medico International viewed landmines primarily as a medical and public health issues, while still others such as the Vietnam Veterans of America Foundation (VVAF) saw it as a matter of social responsibility in dealing with the lasting consequences of war.Footnote 71 Yet they were able to coalesce around a single, simple goal: a complete and total ban on the use, production, stockpiling, and transfer of APLs.
The landmine ban encapsulated two unifying ideas (both principled and causal) that would underscore the cry for action: any use of landmines was immoral and landmines had no acceptable military use. Yet this simple message would not have been possible without the existing legal framework provided by the Geneva Conventions and the CCW. The Geneva meetings were the first to make a formal call for a complete ban on landmines, though this was never seriously considered in the state-dominated negotiations for the CCW. However, as the shortcomings of the CCW became increasingly apparent and publicized, it became a valuable reference point and symbol for the ICRC to show that regulation simply did not work. However, it was one thing to have a strong ideational consensus surrounding the landmines issue within the ICBL; it was another to get others to buy into it. Given the dominance of states in arms control and the reliance of the militaries of powerful states on landmines, it was dubious that sufficient support could be garnered to implement such a big step.
Consequently, the ICBL began to push for a global response to the landmine problem through the diplomatic channels afforded by the CCW, calling for a review conference to revisit the landmines issue and consider an outright ban.Footnote 72 State governments were initially uninterested, not because they were unsympathetic to the landmine problem, but because a complete mine ban was commonly perceived to be a “pie in the sky.”Footnote 73 They knew how tough it was to garner consensus on arms control issues, given great power reluctance to give up an entire class of existing weapons and the consensus-based procedures commonly used in multilateral forums whereby a single dissenting state could block collective action.Footnote 74 However, without the CCW, there was no established mechanism to get states to a formal negotiation table at all. Knowing that working through established diplomatic channels carried more legitimacy, the ICBL pushed hard for a CCW review conference.Footnote 75
Eventually, the ICBL raised enough public awareness to generate domestic pressure within key states to call for a CCW Review Conference and implement moratoria on mine exports. They documented positions taken by various countries with respect to landmines and sought out allies in individual governments to help raise the issue in formal diplomatic circles. By July 1994, major European states such as France and Italy had imposed voluntary bans on landmine exports. A month later, U.S. President Bill Clinton proposed to the UN General Assembly, “a first step toward the eventual elimination of a less-visible, but still deadly threat: the world's 85 million antipersonnel land mines—one for every 50 people on the face of the Earth. I ask all nations to join with us and conclude an agreement to reduce the number and availability of those mines.”Footnote 76 Clinton's speech illustrated the progress the ICBL had made, yet also underscored the challenge that remained in securing a complete ban on landmines by only calling for reductions.
In this initial phase, the CCW served three important purposes. First, it provided a multilateral forum to revisit the landmines issue in the form of a review conference, which is much easier than starting from scratch. Second, having grown out of humanitarian law, it codified a core belief that landmines caused unnecessary suffering and committed states to the idea. Third, it provided a platform that the ICBL could use to contest the substantive legitimacy of the CCW, allowing it to make the case that simply regulating landmines was not enough and begin to shift the discourse from “landmines are militarily useful, but can potentially cause unnecessary harm, therefore they need to be regulated” to “landmines cause unnecessary suffering that outweighs any military value, therefore they need to be banned.” In essence, the CCW provided the political opportunity structure that norm entrepreneurs would seek to empower. However, the inherent difficulty in doing so would be evident a little more than a year later when the first Review Conference convened.
Phase II: Diplomatic Success and Failure (1995–96)
The first-ever meeting of the CCW Review Conference, held in Vienna in fall 1995, failed to yield substantive progress. No consensus was reached, except to suspend the proceedings until 1996. Most governments focused on the major sticking points related primarily to issues such as verification, scope, detectability, and the use of self-destructing mines and did not consider a complete ban to be a viable option.Footnote 77 These debates reflected the traditional modus operandi of arms control: mind-numbing technical discussions, prevalent notions of sovereignty, and glacial decision-making processes.Footnote 78
However, the 1995 Review Conference was not a total loss for two primary reasons.Footnote 79 First, several states (including Sweden, Mexico, Norway, and Austria—many of the same states that believed that the original CCW was too weak) offered formal support for a complete prohibition on landmines in their plenary statements, which gave the disarmament discourse renewed life in diplomatic circles. Second, the ICBL was able to address state delegates at the conference and make the case for a complete ban. While a ban was the ultimate goal, however, it was not an option that even the ICRC seemed to consider feasible in the CCW context, despite support from some states. In a position paper released after the conference, the ICRC stated that it “deeply regrets that the recent Review Conference … was unable to agree on new measures to prohibit or severely restrict the production, use, and transfer of anti-personnel landmines” and feared that “the complex and costly technical measures” that gummed up the CCW diplomatic machinery “will not solve the landmines crisis.”Footnote 80
The CCW Review Conference proceedings resumed in January 1996. The week-long session held in Geneva continued to be bogged down by “technical issues.” The ICBL thus convened a meeting of pro-ban states during the session, and agreed to pursue a framework for an immediate ban rather than the “eventual elimination” of landmines, per the U.S. position. This tactic aimed to ratchet up pressure on states to conclude significant substantive revisions to Protocol II of the CCW. On first glimpse, it worked.
In May 1996, parties to the CCW agreed on an Amended Protocol II that significantly strengthened the 1980 version by addressing a number of the most serious loopholes. Most notably, the Amended Protocol extended the scope of application to cover both international and internal armed conflicts, and imposed restrictions on landmine transfers, requirements for mine detectability, the inclusion of consultation and compliance procedures, more precise mine clearance provisions, and a specific date for the next review conference. Moreover, parties solemnly declared “their conviction to continue to strive towards the goal of the eventual elimination of anti-personnel land-mines, consistent with the terms of General Assembly resolution 50/70(O)”Footnote 81 and a complete ban on their transfer in a consensus Final Document. The most glaring problems with the 1980 CCW with respect to landmines had been addressed and there was a consensus position to work toward a total ban. The efforts of the ICBL had paid off. Or had they?
Starting from Scratch: The Move Toward Ottawa
Despite the significant changes embodied by the Amended Protocol II, its legitimacy was contested from the outset. UN Secretary-General Boutros Boutros-Ghali's statement at the conclusion of the conference praised the revised Protocol, but also expressed “deep disappointment” because “the impact which mines are having, both on the civilian population and on the economy as a whole in affected countries, is so appalling, so devastating, that a total ban on all anti-personnel landmines is the only solution.”Footnote 82 Some other statements were not so diplomatic. In the ICRC press release issued the day before the conference ended, the Amended Protocol was called “woefully inadequate.”Footnote 83 Statements of several member states that now supported a ban also expressed regret that it was not achieved. Given the resources devoted to strengthening the CCW through three different Review Conferences and related preparatory efforts, combined with the fact that seemingly significant progress had been made relative to the original 1980 Protocol, why was the CCW not more warmly received? Let us revisit the concept of legitimacy.
In procedural terms, the legitimacy of the Amended Protocol II was contested primarily because of the consensus-based decision-making process. Because any state could block proposals for a total ban, the Review Conference process as a whole was widely believed by ban proponents to be a nonstarter. Even if the next meeting considered a total ban and had a groundswell of support for it, few believed that the diplomatic “minefield” required for passage would be navigable. The United States and other states that were still reluctant to sign on to a ban were content to continue using vague, noncommittal language that was purely aspirational in nature. That way, they could point to positive steps they had taken toward a ban, thereby reducing political pressure, while still being able to use landmines.Footnote 84
The legitimacy of the Amended Protocol was also contested in substantive terms. Many participants chafed at the distinction made between “smart” (mines with self-deactivating or self-destruction mechanisms, possessed primarily by the great powers) and “dumb” mines. The Amended Protocol only prohibited the use of landmines that were not in compliance with “the provisions on self-destruction and self-deactivation in the Technical Annex.” The same held true for remotely delivered mines. In effect, the Amended Protocol created two classes of mines: “smart” ones that were essentially legal under international law and essentially authorized those that possessed them (that is, the great powers) to continue using them and “dumb” mines, which were far more common. After the Amended Protocol was agreed upon, President Clinton announced his “new” landmine policy, which contained three main elements: (1) an end to the use of “dumb” mines by 1999, except in Korea; (2) the continued use of “smart” mines indefinitely until an international agreement is reached; and (3) negotiation of an international agreement to ban anti-personnel mines.Footnote 85 However, instead of being viewed as a positive step, the U.S. policy was viewed by many to symbolize great power double standards and was dismissed by mine-ban proponents as preserving the status quo.Footnote 86
In and of themselves, these legitimacy contests would likely not have been enough to disempower the CCW. Consensus-based procedures have always been the standard by which decisions are made in arms control where sovereignty issues are of particular importance given the security implications of cooperation. Moreover, the fact that the United States and others would employ “smart” mines should in principle increase the effectiveness of the CCW—so why was the substantive legitimacy contested so strongly? I argue that the delegitimation of the ideational underpinnings of the CCW holds the key to understanding why the strengthened protocol, despite its significant improvements, was a nonstarter.
The Pivotal Role of Ideas
The mine ban movement successfully reframed the issue in a way that, for a significant number of actors, made anything short of a complete prohibition untenable. A major reason for this success was the ability of the ICBL and like-minded states to embed the debate over the military utility of landmines into a moral discourse, which affected the cost-benefit analysis of landmine production, stockpiling, and use. As evidence of the severe humanitarian consequences of landmines continued to mount, ban proponents called the military utility of anti-personnel landmines into question. In March 1996, the ICRC released Anti-Personnel Landmines: Friend or Foe, which contested the enduring military utility of landmines. The conclusions, unanimously endorsed in their personal capacity by more than fifty former high-ranking military officials in nineteen countries, were unambiguous. “The limited military utility of AP mines is far outweighed by the appalling humanitarian consequences of their use in actual conflicts. On this basis their prohibition and elimination should be pursued as a matter of utmost urgency by governments and the entire international community.”Footnote 87 Indeed, according to the study, landmines—even when used on a large scale—have hardly affected the outcome of minor skirmishes and never the course of a battle, let alone a war. A month later, the VVAF followed suit in the U.S. media market by sponsoring a two page ad in The New York Times containing a letter to President Clinton from General Norman Schwarzkopf and fourteen other retired senior U.S. military officers (including two former commanders of U.S. forces in South Korea), which called for a total ban on landmines. The letter stated such a ban would be “humane and militarily responsible” and “would not undermine the military effectiveness or safety of our forces, nor those of other nations.”Footnote 88 According to one senior U.S. State Department official, the move away from the CCW was legitimate because, for many actors, landmines were no longer “considered to be a legitimate tool of war … because just about only place they have been used is by the U.S. in the Korea DMZ. Mostly they had been used by irregular forces since WWII and had very little use anymore for regular forces.”Footnote 89
The primary goal of these efforts was to shift the way in which states, their militaries, and attentive publics conceived the humanitarian costs versus military benefits ratio. It was working. As landmines became an increasingly prominent issue and more authoritative sources voiced support for a ban, the ideational boundaries of what was considered to be a feasible and morally acceptable solution to the problem changed. Over the course of the CCW review process, forty-one states came out in support of a ban.Footnote 90 Neither this group of states nor the ICBL was satisfied with the amended CCW.
The “Ottawa Process”
Mine-ban proponents left the CCW Review Conference resolved to find an alternative venue that would not be subject to the same cumbersome procedures as traditional arms control. In October 1996, Canada hosted a strategy conference that would prove to be a major diplomatic turning point. The central purpose of this conference was to launch a pro-ban effort while preventing more skeptical members of the international community from blocking progress and seeing which of the forty-one states on the “good” list (that is, that indicated support for an outright ban on landmines) after the May CCW conference were truly committed.Footnote 91 Canada, Austria, and several other states that constituted the Ottawa process “core group,” many of whom opposed the original structure of the CCW almost two decades earlier, expended considerable diplomatic capital to balance the need for expediency with that of acceptance.Footnote 92 They circulated draft treaty texts and procedures (based on the UN General Assembly (UNGA) rules, which would enable decisions to be made by two-thirds vote if consensus was not achieved) well in advance, in the hopes that this degree of transparency, coupled with deftly applied diplomatic pressure in advance of diplomatic conferences, would pave the way for developing a rapid consensus behind the ban.Footnote 93 The danger was putting key prospective signatories in the all-or-nothing position either to accept a ban or not. There was little middle ground and the force-fed nature of process could prove to be disillusioning.
The so-called “strategy conference” attracted seventy-four states along with the ICBL and the UN. It yielded three concrete results. First, it produced a final declaration agreed to by the fifty formal government participants committing them to ensure, among other things, “the earliest possible conclusion of a legally binding international agreement to ban anti-personnel landmines.”Footnote 94 Second, it outlined a Global Plan of Action to achieve this goal, including the passage of a supportive UNGA resolution. However, the policy entrepreneurship of the ICBL and like-minded states could only go so far until it ran up against the reality that a total ban, if it was ever to be achieved, needed a critical mass of states to support it. Leadership was desperately needed within the formal, state-based diplomatic circles. A third, unanticipated outcome of the conference provided just that. In his concluding remarks at the conference, Canadian Foreign Minister Lloyd Axworthy made a dramatic challenge to the international community:
I am convinced that we cannot wait for a universal treaty. I am convinced that we can start now … And so today I commit Canada … to work with our global partners to prepare a treaty that can be signed by December 1997 and implemented by the year 2000. I invite and challenge all of you to join with us to attain that goal.Footnote 95
This would prove to be a considerable challenge, with skeptics fearing that the push for such quick multilateral negotiations and Canada's diplomatic gamble could have the unintended consequence of weakening the consensus behind a mine ban, thereby jeopardizing all of the progress that had been made.
The 1996 strategy conference launched what has become commonly known as the “Ottawa process”—a fast-track diplomatic initiative that, in only fourteen months, led to the negotiation of a convention banning the use, production, transfer, and stockpiling of anti-personnel landmines. The Ottawa process consisted of three unique features: (1) it involved a close partnership between states and NGOs (the ICBL), which allowed for “two-track” diplomacy in which sets of actors participated in the development of the convention; (2) it brought together a band of like-minded states that produced enough political will to negotiate the convention without support from great powers such as the United States, Russia, and China; and (3) it provided for an alternative set of negotiations—a series of multilateral consultations and conferences that were held outside of the traditional arms control forums such as the UN Conference on Disarmament and the CCW review process.Footnote 96
The Ottawa process reached its climax in September 1997 in Oslo where eighty-seven full participants and thirty-three observer states successfully negotiated a treaty text. Realizing Axworthy's goal, the Ottawa Convention opened for signature in December 1997, with 122 states signing on, and entered into force in 1999. It differed markedly from its CCW predecessors. Rather than simply regulating landmines and thereby legitimizing them on some levels, the convention provided for a complete prohibition of the use, stockpiling, production, and transfer of anti-personnel landmines.Footnote 97 In addition, the Ottawa Convention requires members to destroy their existing stockpiles (except those retained for de-mining training) within four years of becoming bound by the treaty. Today, the United States, Russia, China, and India still remain outside of the treaty, but each has taken steps to adhere to the provisions of the Ottawa Convention, either by enacting mine export bans, conducting research into alternatives to anti-personnel landmines, or through a public pronouncement that they aspire to one day accede to the Ottawa Convention.Footnote 98
Legitimacy and Institutional Replacement: Lessons from the CCW Experience
By examining the CCW experience through the lens of legitimacy, one can derive at least three lessons. First, it is difficult to imagine the emergence of the Ottawa Convention without first considering the role of the CCW. The Ottawa Convention was not just a standalone creation of the ICBL and a “core” group of smaller states, but also a byproduct of institutional development. The CCW would likely not have been possible without the preceding conferences to amend the Geneva Protocols, just as the Ottawa Convention would not have been possible without the precursor of the CCW. Not only did the CCW provide the forum that allowed social mechanisms such as persuasion to take hold, but without the CCW, calls for a complete ban would also have resonated differently because there would be little evidence to question the assumption that landmines could be regulated. Indeed, the ICBL used the CCW as a crutch to recast the ideational framework used to conceive of the landmines problem, shifting the discourse from one of arms control to one of complete disarmament.
Second, the contestation of ideas that underpin an existing institution constitutes an important precondition for the movement to a new one. The success of the Ottawa process hinged on three related factors: (1) the ability to attract even wider official and public interest into the mine campaign through the dissemination of new, authoritative knowledge by epistemic communities that called the founding assumptions of the CCW into question; (2) getting a critical mass of actors to perceive that any military benefits of keeping landmines were outweighed by their humanitarian costs; and (3) the political cohesion of the “like-minded” core group and other states. Each of these factors depended in critical ways on the contested ideas of the CCW, since they defined the parameters used to conceive of the problem and weigh possible solutions. Indeed, the contested ideational underpinnings of the CCW altered the frames in which the substantive and procedural contests of legitimacy took place.
In substantive terms, the ideational shift that began in the early 1990s and came to a head during the Ottawa process made a complete ban the only appropriate and feasible option to address the landmines crisis for a critical mass of actors. The simplicity of these ideas—landmines impose unacceptable humanitarian costs, landmines are of limited military utility, and landmines could not be regulated—enabled the ICBL and partner states, despite their divergent interests, to rally around the common goal of a mine ban and muster the political will necessary to realize it. Each of these ideas grew out of the CCW experience, the first positively, the latter two negatively.
Contrast the three founding ideas of Protocol II of the CCW and the Ottawa Convention in terms of ideational assumptions. First, while both were rooted in humanitarian concern, the emphasis differed markedly. Consider the differences in the preambular text in each. Protocol II of the CCW blandly states “recalling the general principle of the protection of the civilian population against the effects of hostilities,” whereas the Ottawa text reads in a much more specific and emphatic fashion: “Determined to put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children.” Second, Protocol II implied that landmines remained a valuable military weapon. It used ambiguous language that justified possible uses of landmines. Article III (4) states that, “All feasible precautions shall be taken to protect civilians from the effects of weapons … which are practicable … taking into account all circumstances ruling at the time, including humanitarian and military considerations,” thereby letting the user decide what is feasible and what it is not. The Ottawa text provided no such qualifications. The humanitarian costs brought about by the indiscriminate use of landmines clearly outweighed the questionable basis of military utility. Finally, the CCW assumed that the use of landmines could be regulated in a way that could minimize humanitarian impact, as evidenced by its numerous conditional clauses. The Ottawa process, on the other hand, was driven by the assumption that they could not be regulated. The Amended Protocol II plugged significant loopholes in the 1980 version, only to be roundly criticized for being too weak for not banning the landmines outright.
In procedural terms, a critical mass of actors came to question the traditionally accepted consensus-based procedures. When ideas shifted in a way that necessitated the move toward a ban—a view that the majority of states supported—the procedural apparatus was incapable of allowing such a change. The creation of an alternative mechanism outside of normal diplomatic channels was a tricky enterprise, but the success of the Ottawa process depended on the belief that the process that created it was “right,” despite lacking some typical democratic features, because it was the only one capable of achieving a ban.
A third lesson—one also derived from the interaction between ideas and the substantive basis of legitimacy—is that there is power in resistance.Footnote 99 The conventional belief with respect to multilateral treaties is that great power support is essential for their effectiveness and legitimacy. Although the United States attended the 1997 Oslo conference, it did not support the draft text calling for an outright ban. The U.S. delegation, banking on the fact that the desire to incorporate the world's superpower into a new treaty would translate into bargaining leverage, came equipped with an “all-or-nothing package” that need to be accepted in order to secure U.S. support. It included an exception to be included for U.S. mines deployed on the demilitarized zone in Korea, deferral of the entry into force, and changes in mine definition to accommodate U.S. weapon systems designed to protect antitank mines.Footnote 100 In opposition to the U.S. position, two traditional powers—Britain and France—announced their support for the Ottawa process in 1997, underscoring the pull of the emerging prohibitory norm against landmine use.
Yet for some, something else was operating beyond accusations of U.S. double standards in the Ottawa process—a common desire to stand up against U.S. power in the world. The intractability of the U.S. position, as epitomized by former Senator Jesse Helms, who wrote that “the US negotiation position in Oslo is our bottom line … not a starting point for debate,”Footnote 101 actually increased the resolve of the international community toward a complete ban and even generated positive free media for the campaign. A similar line of argument, made by a handful of experts interviewed for this article, was that Canada (and Axworthy in particular) was driven as much by a desire to shift the tide in a world order that hinged on U.S. participation as it was by its belief in banning landmines. One U.S. government official asserted that:
NGOs drove the process in a certain direction away from the traditional diplomatic forum [the CCW] by restructuring the debate over landmines, but their interests also coincided with partisan political interests of Axworthy. He viewed the landmines issue as an opportunity for Canada to do a series of positive things and to stick it to the U.S., which for him was important since he was bitterly anti-American.Footnote 102
Another Canadian arms control expert commented that for Canada, the landmines campaign was “as much about the process and public relations of supporting a moral cause and exercising leadership as a middle power that the United States could not” than it was about the ends themselves.Footnote 103 When this same official was asked whether he thought that a mine ban would have been achieved without the leadership of Canada, he said he was almost certain that it would have, since the “wheels were already in motion” after the disappointing outcome of the CCW review process. The cognitive shift toward prohibition and accompanying groundswell of support widened the political opportunity structure by reducing the costs of countries wanting to “stick it to the U.S.” and reinforced momentum toward a mine ban.
Conclusion
The CCW/Ottawa case can be leveraged to illuminate more general pathways toward institutional replacement. In order to explain institutional replacement, it is critical to focus on the existing (or preceding) institution as a unit of analysis. The existing institution both embodies an ideational consensus about the shared goals and values that are to be promoted and provides a framework in which the “cognitive evolution” at the heart of institutional replacement takes place. According to Haas, “cognitive evolution encompasses the ability to compose and then decompose a nested problem set.”Footnote 104 As institutions confront the inexorable forces of change, their legitimacy is commonly contested. Wholesale replacement is most likely to occur when these contests—fueled by social processes of argumentation, persuasion, and learning—lead to a fundamental redefinition of the “problem set” and the existing institution proves incapable of accommodating the cognitive shift. Ideational “decomposition” is thus a central part of the delegitimation process that can lead to replacement. This was the case in the CCW, and other institutions show signs of similar fates.
For example, we are already seeing signs that the Kyoto Protocol could follow a similar path. The legitimacy of the Kyoto Protocol has been contested both in terms of effectiveness and fairness. Some wonder if the limits imposed by the treaty will effectively reduce carbon emissions such that global warming will cease. Others, including the United States, are critical of the fact that Annex 1 countries (the industrialized world) are subject to enforcement for exceeding their emission limits while Annex II countries (for example China) are not. However, these contests also appear to reflect a shift in ideas. As epistemic communities produce increasing amounts of data showing the pernicious causal effects of global warming that are accepted as valid and norm entrepreneurs increasingly cast the climate change as a moral issue,Footnote 105 actors are forced to “decompose” the problem, which has in turn affected their interests. Consequently, there is a growing sense that the current institutional framework is insufficient. The result is increased pressure for states either to overhaul the Kyoto Protocol or create a new institution altogether, as evidenced by the global conferences already being held to discuss a potential institutional successor.Footnote 106
Second, while the primary emphasis is on processes of delegitimation and disempowerment, institutional replacement might also be driven by more positive mechanisms of norm diffusion. In these cases, the consensus on institutional goals and values remains relatively strong, but legitimacy contests raise questions about the viability of the existing institutional apparatus to pursue them. Some rules and norms of existing institutions can therefore be “downloaded” into replacement institutions that are, in principle, better equipped to promote the relevant ideational consensus. For instance, the WTO did not emerge from the delegitimation of the GATT, but rather formalized and expanded the application of GATT principles. While the legitimacy of the GATT was certainly contested, particularly in its ability to accommodate the needs of developing countries in a just and effective manner, the driving force behind the creation of the WTO was the common belief that GATT principles such as reciprocity and nondiscrimination in the trade area could promote economic growth and benefit all members. The WTO created a new institutional framework perceived to be better equipped to promote these principles through expansion of the regulatory umbrella to accommodate increasingly diverse and complex trade relationships and provision of a more robust dispute resolution mechanism.Footnote 107
Since institutional orders can contain many facets, it is conceivable that processes of delegitimation and diffusion can operate simultaneously. For instance, the League of Nations was effectively delegitimated because its interwar failures precipitated a cognitive shift away from the logic of utopianism toward one of prudence. Yet despite the League's failure, some of its norms were nonetheless “downloaded” into its successors. For example, the principled idea of collective security serves as the foundation for the UN Charter. Some scholars point out that even prominent critics of the League, such as E. H. Carr,Footnote 108 did not contest the idea of collective security, per se, but rather the means by which it could be achieved.Footnote 109 Others have highlighted important, yet overlooked, linkages between the League and the creation of the International Monetary Fund (IMF), in which “ideas shaped by painful experience in one institutional setting can be transmitted into another.”Footnote 110
Third, these insights might also prove useful for examining cases in which one might expect to see institutional replacement, but does not. The persistence of NATO after the Cold War might be best understood by exploring the enduring ideational assumptions on which security commitments are based and how they evolved from the Concert of Europe to the CSCE to postwar NATO.Footnote 111 Another example might be the Nuclear Nonproliferation Treaty (NPT), which has experienced serious legitimacy contests, but few calls for replacement. If the discourse in landmines can be shifted from one of regulation to one of prohibition, why is this not the case in the context of nuclear weapons? Perhaps this is because the underpinning ideas of the NPT—nuclear weapons have deterrent value, their spread can be regulated, and access civilian nuclear technology is critical—have come under so little fire.Footnote 112
A fourth set of insights regarding replacement can be derived from the characteristics of norm entrepreneurs and their interplay with the existing institution. When a political opportunity structure for change exists within an institutional order, several characteristics of norm entrepreneurs might ex ante increase the prospects that it will be exploited. If norm entrepreneurs are conferred some degree of expert or moral authority by international society, they share common causal and principled beliefs about the problem set and the need for redefinition thereof, and they are able to coalesce around a single focal point or goal, replacement becomes more likely. The ICBL is widely cited as the exemplar of an effective norm entrepreneur because it exhibits these three qualities. By contrast, antiglobalization and antinuclear movements appear to be lacking in each respect, particularly the latter two.Footnote 113
However, even if norm entrepreneurs are well equipped to empower an opportunity structure, their interaction with the existing institutional framework also matters considerably. As the landmines case shows, existing institutions can provide access to power, a forum in which processes of argumentation and persuasion can take hold, and an invaluable reference point for comparison to a preferred alternative. Ceteris paribus, agents that gain sufficient access and establish alliances with institutional “insiders,” who use persuasively the experience of the existing institution and its shortcomings to reframe the problem set, and effectively mobilize external pressure (for example, by raising awareness), are better positioned to fuel a process of change that could result in replacement. But if the existing institution rests on a solid ideational consensus among the governed, it is much more likely to absorb contests of legitimacy and/or make adjustments to address concerns without garnering sufficient momentum toward replacement.
The foregoing suggests that legitimacy, and specifically the causal and principled beliefs that inform the procedural and substantive perceptions thereof, provides valuable insights into institutional replacement and persistence. Tracing the ideational origins and development of an institution highlights the interactive processes by which dominant belief structures are contested and norms are either reaffirmed or reconstructed, which has important implications for change and stability. Indeed, as the international system becomes increasingly complex and defined by multiple, overlapping normative orders, examination of the meaning and importance of legitimacy to participant actors will be a vital tool for scholars and practitioners in understanding and influencing the evolution of institutions on which global order depends.
