How do we approach the extraterritorial legal regime that was once widely practiced but then nearly universally abolished soon after WWII? Are existing major IR theories capable of explaining this dramatic phenomenon of norm change? How did extraterritoriality as one legitimate component of the concept of sovereignty undergo tremendous challenge and become a pariah practice and eventually de-normalized in international politics? After all, today Western states might still not be satisfied with the quality of judicial system and law enforcement of non-Western nations, but they would not even think of protecting their citizens’ human rights by setting up a consular court in, say, Singapore or Indonesia. What used to be normatively taken for granted has now become the most absurd and reproachable.
Like it or not, realism, particularly its structuralist variant—neorealism, is almost always the first acid test for any meaningful conversation in IR theories. Neorealism emphasizes the consequential effects of the structural properties of international system over state actors: states are sovereign, unitary, territorial, rational and juridically autonomous entities; anarchy makes states like units that prioritize survival and security; the tendency of self-help causes states to pursue relative, material gains; and the distribution of state capabilities determines the systemic character of international relations. The notion and practice of sovereignty is treated as exogenously given, not as a locus of contestation. Norms, rules, or institutions are conceptualized as instruments of powerful state actors, or as reflections of power structure in international politics, and are thus epiphenomenal factors with much less causal effects than material ones, like geography, natural resources and military forces. It is not surprising that the issue of norm change is not an interesting research subject in the eyes of neorealists: what is the point of studying the evolution of international norms when the root cause of international peace and conflict is believed to reside in power relations and material variables? However, even though neorealism might be able to explain the establishment of extraterritoriality as a result of power asymmetries and coercive diplomacy, the theory cannot adequately explicate its accelerated and celebrated demise soon after WWII, when power relations between treaty powers and non-Western states did not yet change rapidly. Also, neorealism, due to its overemphasis on structure and negligence of process, fails to account for the global phenomenon of institutional and normative conformity by non-Western nations that made them functionally and organizationally like units with European-American powers. The more crucial point is that a study of the history of extraterritoriality leads me to question the exogeneity of sovereignty, which is the rock bottom for a neorealist account of international politics.
Neoliberal institutionalism fares just a bit better than its neorealist counterpart. Sharing all the analytic assumptions with neorealists, neoliberal institutionalists emphasize the importance of the functions of international institutions in reducing transaction costs and uncertainties, preventing conflict escalation, facilitating communication and information exchange, shaping common identities and values, and promoting interdependence. The modern concept of sovereignty and its constitutive norms may be understood as an internationally recognized institution that was developed to serve those functions. But then the history of extraterritoriality delivers a fatal blow to the theory because it does not address squarely the unintended trouble brought forth by a seemingly rational legal design. Overlapping and conflicting claims of jurisdiction that were not unusual during extraterritorial years did not enhance the utility of extraterritorial legal system but achieved just the opposite: more law enforcement confusion, more judicial inefficiency, more transaction costs, and more information opaque. Also, neoliberal institutionalism does not explain the direction and end result of development of extraterritoriality as a once sanctioned norm. By saying that I mean that the evolutionary line of extraterritorial legal regime could have been different than what we witness in history: treaty powers could have kept revising extraterritorial practices in order to sustain its operation and legitimacy; or, non-Western nations could have ignored or justified the not-so-autonomous practice of extraterritoriality, and focused on more crucial aspects of national development. However, this was not what took place in history. As I will discuss later, the leadership of non-Western nations almost without exception were desperate to have the extraterritorial regime abolished as soon as possible. Neoliberalism fails to address the directionality of norm change in this case. It then seems to me that economic interdependence is a necessary if not a sufficient factor for norm change. There should be some other variables more determinative of the evolution of norms than commerce and trade.
The theory of world culture (Meyer et. al. 1997, Boli 2001) might be another candidate for theoretical foundation of my project. The theory suggests that the sovereign states in the world are “structurally similar in many unexpected dimensions and change in unexpectedly similar ways” because “[m]any features of the contemporary nation-state derive from worldwide models constructed and propagated through global cultural and associational processes” (Meyer et. al. 143-4). The proposition stresses the externally and exogenously imposed cultural-political construction in nation-states that caused the phenomena of institutional isomorphism to be seen in a number of social, economic, political, and administrative aspects. Meyer et. al. (158) argue that the dominant cultural models of state sovereignty “take concrete form in particular state structures, programs, and policies.” The history of transition from extraterritoriality to territorial jurisdiction in non-Western states attests to the world culture theory in that legal and judicial reforms modeled in European principles had been one of the key prerequisites for abolishing the regime. However, the world culture theory tells us the end result, if not the mechanisms, of institutional and normative importation. The theory is like a road map without contours: it does not tell much about the processes through which the phenomenon of institutional isomorphism is achieved; neither does the theory provides a satisfactory account of why sovereign states scrambled to modernize their domestic institutions. In other words, the theory fails to explain why conforming to the West institutional standards becomes a national interest to non-Western states. It sheds light on the regulative, if not normative and constitutive, effects of Western norms and institutions. However, being forced to be submissive is one thing, but actively pursuing Westernization in a number of domestic issue-areas is apparently another. The theory sketches out a grand, static picture of world history but does not tell us much about how and why world history develops that way.
The English School that highlights a rule-based international society is another option for theory building of my project. Sovereign states in international relations follow certain well-recognized norms and rules, which significantly conditioned or even determined the evolution of domestic judicial-political institutions. While comparing the concept of order to the concept of justice, Bull (1995, 81) mentions the principle of cosmopolitan or world justice as ideas that “seek to spell out what is right or good for the world as a whole, for an imagined civitas maxima or cosmopolitan society to which all individuals belong and to which their interests should be subordinate.” Although by cosmopolitan justice Bull mainly refers to those ideals championed by NGOs or self-appointed international activists, the concept may be applied to the demands imposed by a state or a group of states upon another one, for “universal ideologies that are espoused by states are notoriously subservient to their special interests, and agreements reached among states notoriously the product of bargaining and compromise rather than of any consideration of the interests of mankind as a whole” (Bull 82). Notwithstanding its emphasis on the effects of norms and rules over international relations, the international society theory presupposes two assumptions that I consider problematic. The theory assumes that a rule-based society is less conflictual and coercive than a force-based society. However, the clash of norms is no less violent, and it is neither logical nor practical to suppose norm following acts as more peaceful. Secondly, the theory says fairly little about the processes and practices through which international norms were accepted, challenged, eroded, and transformed. Both the world culture theory and the international society approach draw up a homeostatic account of international politics and thus are inadequate for my project.
I then shift my attention to some other theories that I think better integrate and balance structure and process when dealing with the issue of norm change in international politics. Krasner’s Sovereignty: Organized Hypocrisy (1999) draws my attention because his efforts directly address the fluidity and malleability of the concept of sovereignty. I agree with most of Krasner’s analytic assumptions: anarchy is the defining characteristic of modern international politics (but it does not extend to the suggestion that the state is always the ultimate source of domestic jurisdiction); distribution of capability among states heavily conditions, if not solely determines, state policies and behavior; power asymmetries is a constant phenomenon of international politics; and states are always self-centered and interest-oriented.
By sovereignty Krasner mainly refers to what he terms international legal sovereignty, meaning the international recognition of “juridically independent territorial entities” (7), and Westphalian sovereignty, meaning “the exclusion of external actors from internal authority arrangements” (9). He points out that as much as these two norms of sovereignty have been desired, recognized, and respected, they have also been ignored, relegated, and even frequently violated. Sovereignty as a “logic of appropriateness” then becomes organized hypocrisy because in theory it must have binding effects over state behavior, but in actuality it is breached all the time. He then suggests the four “modalities” of compromising sovereignty in international politics: conventions, contracts, coercion and imposition (25-6). However, this understanding of sovereignty implies an a priori & a-temporal consensus about the content of sovereignty, and the universal applicability of sovereignty. In other words, state actors across the time invariantly agree on the composing norms of sovereignty by which policies and interactions of all states, regardless of the nature of their authority structures and internal political arrangements, should be shaped and constrained. This understanding is anachronistic because the history of diplomacy between the West and non-Western/non-Christian nations reveals that the norms of sovereignty, say territoriality and exclusive domestic jurisdiction, did not always apply to the latter. Also, this understanding of sovereignty is overly static because the normative element of sovereignty (like state autonomy and nonintervention) did not develop just once or come full-blown, but keeps evolving (Risse 2000, 5). The content of sovereignty is a product of the dynamic process of multiple and asymmetric negotiations of various states and international organizations.
As Krasner admits, an a-temporal and supposedly universal understanding of sovereignty as the underlying assumption is meant to be “something that can do the explaining” of international phenomena, not to become “something to be explained” (7). But the reading of the history of extraterritorial practice in non-Western states leads me to problematize exactly the validity of this understanding: can we come to terms with a universally acceptable definition of sovereignty? And, what are the key components of sovereignty on which every actor agrees across the time? Should the norms of sovereignty be applied to nations whose nature of authority structure and political arrangements is completely different from that of the West? Should policies and behaviors of Western states be bound by these norms when they interact with those unlike units? Or, should there be another set of norms of sovereignty that regulates patterns of interaction between the West and non-Western nations? Lastly, how do we know when a particular norm of sovereignty becomes salient and effective in shaping states’ foreign policies?
Krasner does not put the implicit assumptions of sovereignty on the spot, but I do. To him the contestation about the content and applicability of sovereignty has been settled; for me it is an intellectual and practical question whose answer is ever updating. What he tries to expose is the functions and frequent violation of sovereignty; what I intend to get at is the social construction and alternatives of a crucial attribute of sovereignty—territoriality. Both Krasner and I conceive sovereignty as a host of informal consensus, norms, intersubjective understandings, and cognitive scripts that do not necessarily concord one another. Also, the degree of saliency and effectiveness of each norm of sovereignty may vary during different periods of time (Krasner 2001, 15-6). In other words, there is not a norm of sovereignty, but multiple (and sometimes contradictory) norms of sovereignty. Sovereignty is a composite whose elements never come in as a full package.
Krasner proposes that the “decoupling” between state actions and international norms takes place in international politics primarily because either (1) state actors are not “clear which of several scripts is most appropriate in a given context; or (2) state actors “adopt scripts that are inappropriate for their own circumstances” (1999, 65). In other words, the content of sovereignty is fixed and ready for imitation and adoption, but state actors find it difficult to pick out an appropriate mix of norms to match their circumstances. For Krasner the issue at hand is less about the norms of sovereignty but more about capability of learning and lack of adequate information, because he examines the practice of sovereignty from a micro (state/unit) level that concerns the cognitive capacity of imitation of state actors. Another finding from this state-centered perspective is that state actors, by accepting certain norms of sovereignty, “create certain tendencies, propensities, and predispositions to accept some solutions more readily than others. These concepts render solutions of the past less viable today and enable solutions of the present that were inconceivable in the past” (Oksenberg 2001, 84). Once accepted, norms and rules tend to constrain the range of policy options of states. States’ norm-observing behavior is thus confining and path-dependent to their future (Krasner 2001, 20).
Following their argument, I would like to further suggest that certain norms of sovereignty through the practices of state actors come under challenges and are eventually transformed. Norms shape state behavior, but state actions (discursive or practical ones) change norms as well; the dynamics of interaction cuts both way. What interests me, and constitutes the object of my analysis, is the result of dynamic interaction between micro/state level (imitation and adaptation) and macro/structure one (socialization and imposition); that is, between cognitive factors and normative effects. Instead of analyzing the decoupling or mismatch between norms and actions, I would like to inquire into norm change—when a previously taken-for-granted norm is contested, how the process of contestation is initiated and conducted, and what factors attribute to the direction and substance of change.
Krasner touches on but leaves unexplored a pivotal factor in the process of norm change: identity. For him identities “simplify the way in which one actor recognizes another” (64). Identities are “associated with prepackaged contracts that indicate how different agents should behave in different circumstances” (ibid.). These “prepackaged contracts,” in my terminology, are actually a particular set of norms and rules that “anchor reality for individuals and become part of the objective social environment” (ibid.). For those who subjectively believe that they collectively bear an identity, the set of norms and rules attached to the identity becomes intersubjectively shared knowledge scripts that tend to construct their behavior. The imperatives of this understanding of the relationship between identity and norm are of two-pronged: on one hand actors tend to apply different norms and rules when interacting with those not bearing the same identity. In other words, when actors shift from one identity to another, norms and rules that guide policy and behavior shift as well; on the other hand, discontented actors could contest or even delegitimize norms and rules imposed upon them by endeavoring to change their identity. It is likely that an internationally sanctioned norm might be gradually eroded and eventually abolished as a result of the dynamic interaction between actions, identities, and power structures. This is where post-colonialist study becomes relevant in my argument because the school is interested in domination and resistance in the practice of identity politics.
The structuration theory of Giddens (1979) may be helpful to better clarify the potentials and conditions of norm change. Frustrated with functionalism and structuralism in sociology, Giddens proposes the duality of structure as the conceptual backbone of his theory of structuration. By duality of structure Giddens means that “the structural properties of social systems are both the medium and the outcome of the practices that constitutes those systems” (69). For Giddens social structure is both “enabling and constraining” for social practices (ibid.). Also, structure is not “a barrier to action, but as essentially involved in its production” (70). He elevates the importance of agency by suggesting that individual actors are not cultural dopes who passively receive and follows orders and routines of social structure but are knowledgeable agents who have the “transformative capacity” (104) and “could have acted otherwise” (56), although social practices are always conducted in “the context of historically located modes of activity” (ibid.). Giddens addresses the maintenance of social norms by arguing that the norms as a structural property “have at every moment to be sustained and reproduced in the flow of social encounters” (86). He suggests a practice-oriented approach of social analysis, for it is “practices, not roles, which (via the duality of structure) have to be regarded as the ‘point of articulation’ between actors and structures” (117). The reproduction of a social position (identity) and its corresponding role prescriptions (norm) is highly contingent upon the practices of social actors of that identity. Norm change is the result of interaction between social practice, social position (identity), and power structure (rules and resources).
In addition to Giddens, Wendt’s work of scientific realism and moderate constructivism (1999) focuses more specifically on international politics, and his analysis on the interrelationship between identity, interest, and norm may be of great help to my project. Wendt’s two-layered argument suggests that (1) the conception of power is mostly constituted by interests, and (2) the content of interests are largely determined by socially shared ideas, including norms and rules. For Wendt, materiality does not lead to objectivity. Anarchy and relative distribution of capabilities as the material characteristics of the systemic structure of international politics mean different things to different states, because different perceptions and identities bring forth various interests, which determine states’ understanding of power, and motivate states to behave in certain patterns. Furthermore, Wendt points out that interests are actually another format of idea. He argues that “only a small part of what constitutes interests is actually material. The material force constituting interests is human nature. The rest id ideational: schemas and deliberations that are in turn constituted by shared ideas or culture” (114-5). He then proposes that both cognitive and deliberative factors are key components of interests. Socially shared schemas, scripts, norms, and cultures through processes of identity formation (imitation and social learning) shape interests of state actors(324). Wendt argues that “[i]dentity refers to who or what actors are. They designate social kinds or states of being. Interests refer to what actors want. They designate motivations that help explain behavior” (231). Interests thus always presuppose identity because “an actor cannot know what it wants until it knows who it is” (ibid.). Wendt uses a symbolic interactionist framework to explain why in interaction state A’s perception of state B can be “actively and on-goingly constitutive of state B’s self-understanding:
[I]dentities and their corresponding interests are learned and then reinforced in response to how actors are treated by significant Others. This is known as the principle of “reflected appraisals” or “mirroring” because it hypothesizes that actors come to see themselves as a reflection of how they think Others see or “appraise” them, in the “mirror” of Others’ representations of the Self. . . . Not all Others are equally significant, however, and so power and dependency relations play an important role in the story (327).
Also, interests are deliberatively constructed through processes of issue framing, discussion, persuasion and contestation. The structural cultures and norms therefore have causal and constitutive effects to unit-level agents. But structure and agents are mutually constitutive and co-determined at the same time because “only through the interaction of state agents that the structure of the international system is produced, reproduced, and sometimes transformed” (366).
So how does the transformation of the structure come about? Wendt treats structural change as a “problem of collective identity formation” that focuses on the “mechanism of reflected appraisals” (338, 341). That is, structural change is closely relevant to cultural and normative transformation at the macro-level. Wendt suggests an interlocking relationship between culture, norm/rule, identity, and interests that any change in one part would cause others to change, and would be constitutive of changes of others. In addition, change may be initiated from any part and reverberate to others. Four mechanisms of state practices—interdependence, common fate, homogeneity, and self-restraint—stand out as the “master variables” that facilitate international politics to shift from a Lockean culture to a Kantian one. Among the four mechanisms, the process of homogeneity might be of interest to my project. Similar to the theory of world culture, the concept of homogeneity refers to the isomorphic development of identities of state agents. Wendt suggests that collective identity “presupposes that members categorize themselves as being alike along the dimensions that define the group, and as such the perception of homogeneity helps constitute collective identity” (354). Also, homogenization in domestic political arrangements and authority structure “cause[s] actors to recategorize others as being like themselves” (ibid.). Homogenization thus facilitates the appearance of an international society:
[I]n order to be seen as a member of this society states had to have a number of domestic attributes that were initially characteristic primarily of European states. To be sure, whether another state has certain attributes is partly in the eye of the beholder and thus subject to debate.
The demise of extraterritoriality as an international norm is closely tied to national identity transformation and recognition, a process in which the concept of modernity played a central role. The concept of sovereignty of which territoriality is a constitutive element also underwent a gradual but no less fundamental change through the elimination of extraterritoriality. Identity, norm, sovereignty, and modernity are four interrelated and co-constitutive parts of this narrative. The developmental history of sovereignty is a process of identity transformation, norm change, and power asymmetry. The abolishment of extraterritoriality depends heavily upon how the national identity of a territorial-juridical entity is perceived and evaluated by those already in the club. And this perception is contingent on how much the entity has done to satisfy the criterion of assimilation to internationally recognized norms and values. When a state’s efforts of assimilation reaches the extent that club members begin to consider the entity as a like unit, their resistance to the abolishment of various discriminatory mechanisms and practices would as well lose ground.
