Role of Process Legality in Norm Contestation: Rise and Fall of Human Protection

Abstract

Contestations on a norm sometimes weaken the consensus on the norm, while other times strengthen it. The literature demonstrates that legal norms are more resilient in the face of contestations. This study argues that regardless of the norm’s legal nature, the use of legal language and argumentation in the contestation processes increases the norm’s resilience by facilitating a renewed agreement on the norm’s validity. The evolution of the human protection norm, which regulates the international use of force for humanitarian purposes, is examined through comparative discourse analysis of two contestation periods in Kosovo (1998–1999) and Libya (2011–2013) interventions. While the legal nature of contestations after the Kosovo crisis revealed the inadequacies of the humanitarian intervention framework and led to the development of a stronger consensus under the Responsibility to Protect (R2P), non-legal contestations following the Libya crisis did not yield constructive outcomes and ended with practical disappearance of R2P as a basis of military intervention. The article concludes that the concept of process legality has explanatory power for enlightening the contradicting consequences of norm contestations, as well as a potential for guiding the methods of norm proponents.