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Justice and inclusion in global politics : victim representation and the International Criminal Court Tenove, Christopher John 2015

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JUSTICE AND INCLUSION IN GLOBAL POLITICS:  VICTIM REPRESENTATION AND THE INTERNATIONAL CRIMINAL COURT  by Christopher John Tenove  M.A., The University of California, Berkeley (2008) M.J., The University of British Columbia (2001)  A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of  Doctor of Philosophy in The Faculty of Graduate and Postdoctoral Studies (Political Science)  The University of British Columbia (Vancouver)  January 2015 © Christopher John Tenove, 2015   ii Abstract  There are widespread concerns that those people who ought to benefit from global governance are instead ignored, disempowered or harmed by it. Central to these concerns, this dissertation argues, is the principle of inclusion. Bringing together normative and empirical inquiry, this dissertation explains why inclusion matters and how it might be achieved in global governance, and uses this approach to assess the oft-criticized relationship between the International Criminal Court (ICC) and victims of international crimes. Inclusion is crucial for both justice and democratic legitimacy. Inclusion can empower constituencies to address injustices they face and negotiate what justice should entail. Inclusion is also necessary to address democratic deficits in global governance, when constituencies are excluded from decision-making processes that significantly affect them.  The complexity and large scale of global governance make inclusion difficult to conceptualize and promote. Building on democratic theory, this dissertation proposes the framework of mediated inclusion, which identifies the key activities of representation and communication needed for constituencies to understand and influence decision-making. It then engages with International Relations scholarship to identify actors, institutional design features and contexts that can promote or frustrate the inclusion of the intended beneficiaries of global governance. This analysis reveals both persistent challenges and positive trends in opportunities for inclusion at international organizations. These insights are used to assess the inclusion of victims in the creation and operations of the ICC. This analysis draws on over 100 interviews with ICC staff, state officials and civil society members, as well as focus groups with survivors of violence in Uganda and Kenya. Close examination of negotiations to create the ICC reveals how advocates for victims’ rights achieved a strong legal framework for victim inclusion. Case studies of the ICC’s interventions in Uganda and Kenya evaluate diverse advocates for victims, and identify opportunities and limitations for victim inclusion in judicial, bureaucratic and diplomatic decision-making sites.   iii Contributing to debates on global democracy, transnational advocacy, international organization design and international criminal justice, this dissertation shows how the principle of inclusion can be used to critically assess global governance and to create institutions that are more legitimate and just.       iv Preface  This is an original intellectual product of Chris Tenove. Chapter 6 draws in part on research published in Tenove, Chris. (2013). International Justice for Victims? Assessing the International Criminal Court from Victims’ Perspectives in Kenya and Uganda. Waterloo, Canada: Centre for International Governance Innovation. Research for this dissertation includes interviews and focus group discussions that were approved by the University of British Columbia’s Behavioural Research Ethics Board (BREB), certificate Nos. H10-00964 and H12-01296.     v Table of Contents  Abstract .......................................................................................................................................... ii	  Preface ........................................................................................................................................... iv	  Table of Contents ...........................................................................................................................v	  List of Tables .................................................................................................................................. x	  List of Abbreviations ................................................................................................................... xi	  Acknowledgements .................................................................................................................... xiii	  Dedication ..................................................................................................................................... xv	  Chapter 1: Introduction ................................................................................................................1	  1.1	   The Problem: Global Governance in a Democratic Era ..................................................... 3	  1.2	   Beyond Utopia? Democracy and Inclusion in International Relations ............................... 8	  1.3	   The Approach: Concept Development, Empirical Analysis and Situated Study .............. 11	  1.4	   The Argument: Justification and Prospects for Inclusion in Global Politics .................... 14	  1.5	   The Case Study: Victim Inclusion in International Criminal Justice ............................... 18	  1.6	   Conclusion ........................................................................................................................ 21	  Chapter 2: Justice and Democracy in an Interdependent World ...........................................24	  2.1	   Justice and Inclusion ......................................................................................................... 28	  2.2	   Inclusion and the Demos Problem in a Globalized World ............................................... 32	  What rules should be made democratically? ........................................................................ 33	  What kind of group or “people” can act democratically? ..................................................... 37	  What influence should people have over collective rules? ................................................... 42	  Conclusions on the demos problem: maximizing inclusion in global politics ..................... 45	  2.3	   From Demoi to Democratic Systems ................................................................................ 51	    vi Empowering inclusion .......................................................................................................... 52	  Collective will-formation ...................................................................................................... 53	  Collective decision-making .................................................................................................. 54	  Implications of a systemic approach ..................................................................................... 55	  2.4	   Global Governance and Democracy in the Global Political System ................................ 56	  Democratic developments in the global political system ..................................................... 57	  Empowering inclusion .......................................................................................................... 58	  Communication and collective will-formation ..................................................................... 60	  Collective decision-making .................................................................................................. 61	  2.5	   Communities of Shared Fate and Global Governance ...................................................... 62	  2.6	   Conclusion ........................................................................................................................ 64	  Chapter 3: Representation and Mediated Inclusion ................................................................66	  3.1	   Representation and Mediated Inclusion ............................................................................ 69	  Beyond the standard account of political representation ...................................................... 73	  3.2	   Representative Claim-Making .......................................................................................... 76	  Speaking for .......................................................................................................................... 77	  Speaking about ...................................................................................................................... 79	  Speaking as ........................................................................................................................... 80	  Competing claims by representatives ................................................................................... 82	  3.3	   Opportunities for Advocacy .............................................................................................. 84	  3.4	   Publicity ............................................................................................................................ 87	  3.5	   The Role of Representation in Constructing Constituencies ............................................ 91	  Challenges of constructivist representation .......................................................................... 93	  3.6	   Conclusion ........................................................................................................................ 96	  Chapter 4: Including Intended Beneficiaries in Global Governance: Trends and Challenges .................................................................................................................................98	  4.1	   The Intended Beneficiaries of Global Governance ......................................................... 102	  Constructing governance, constructing intended beneficiaries .......................................... 105	  4.2	   Who Can Represent Intended Beneficiaries? ................................................................. 109	    vii Conceptualizing representation: speaking for, as and about ............................................... 111	  When are NGOs good representatives? .............................................................................. 115	  Looking beyond NGOs for representation of intended beneficiaries ................................. 118	  Representation and authority .............................................................................................. 123	  Final observations ............................................................................................................... 126	  4.3	   Can Representatives for Intended Beneficiaries Influence Global Governance Decision-Making? .......................................................................................................................... 126	  Access by non-state actors to global governance decision-making .................................... 127	  Arguing and bargaining in global governance .................................................................... 133	  Final observations ............................................................................................................... 137	  4.4	   Publicity: Global Governance Transparency and Public Awareness ............................. 138	  Transparency and confidentiality ........................................................................................ 139	  Public awareness by intended beneficiaries ........................................................................ 143	  4.5	   Conclusion ...................................................................................................................... 145	  Chapter 5: From Victors’ Justice to Victims’ Justice? The Creation of the International Criminal Court .......................................................................................................................149	  5.1	   Humanity’s Justice, Victor’s Justice, Victims’ Justice ................................................... 152	  5.2	   Constructing and Including “Victims” in International Criminal Justice ....................... 157	  Constituting “victims” and mobilizing authority ................................................................ 157	  Victim inclusion in multiple sites of decision-making ....................................................... 161	  5.3	   Negotiating the Rome Statute: A Constitutional Moment for International Criminal Justice and Victims ......................................................................................................... 166	  The road to Rome ............................................................................................................... 168	  Victims’ issues in the negotiations ..................................................................................... 170	  5.4	   Representing Victims: Actors and Representative Claims ............................................. 176	  Victims’ Rights Working Group (VRWG) ......................................................................... 178	  Women’s Caucus for Gender Justice (Women’s Caucus) .................................................. 180	  State officials as victims’ advocates ................................................................................... 183	  Challenges of representing future victims .......................................................................... 185	    viii 5.5	   Opportunities for Advocacy and Publicity: Strategies for Arguing and Bargaining ...... 187	  Access to decision-making ................................................................................................. 188	  Deploying expert and moral authority ................................................................................ 189	  Publicity of the negotiating process .................................................................................... 190	  Achieving results through arguing and bargaining ............................................................. 192	  5.6	   Rome Statute Outcomes: Key Victim-Related Provisions ............................................. 193	  5.7	   Conclusion ...................................................................................................................... 201	  Chapter 6: Victims’ Inclusion and Contested Justice in Uganda and Kenya ......................204	  6.1	   Implementation of the Rome Statute’s Victims’ Provisions ........................................... 208	  Victims’ influence over the Prosecutor’s decisions to investigate and prosecute .............. 211	  Victim participation in legal proceedings ........................................................................... 214	  Reparations and assistance for victims ............................................................................... 216	  Victims of sexual and gender-based crimes ....................................................................... 218	  Evaluating victims’ inclusion in multiple decision-making processes ............................... 220	  6.2	   Contested Justice in Uganda ........................................................................................... 221	  Background: Three debates triggered by the ICC’s intervention in Uganda ...................... 222	  Representative claims about victims and affected communities ........................................ 224	  Advocacy by victims’ representatives ................................................................................ 229	  Transparency and public awareness of OTP decision-making ........................................... 233	  Trust Fund for Victims ....................................................................................................... 235	  Final observations ............................................................................................................... 236	  6.3	   Kenya: Victims’ Inclusion in the Courtroom and the Council ....................................... 237	  Background: Victims’ inclusion amid campaigns against the ICC .................................... 238	  Victim participation in ICC proceedings ............................................................................ 240	  Victim inclusion at the UN Security Council ..................................................................... 245	  Final observations ............................................................................................................... 249	  6.4	   Victims’ Views of the ICC and Justice ........................................................................... 250	  Constructing the constituency: Who are victims? .............................................................. 252	  Representative claim-making: Who speaks on behalf of victims? ..................................... 254	    ix Opportunities for advocacy: Do victims’ interests influence decision-makers? ................ 257	  Publicity: Victim awareness of ICC decision-making ........................................................ 259	  Final observations regarding survivor’s perspectives on inclusion and the ICC ................ 260	  6.5	   Conclusion ...................................................................................................................... 262	  Summary of case studies: The inclusion of Ugandan and Kenyan victims ........................ 262	  Institutional design, statutory implementation and victim inclusion .................................. 265	  Inclusion and justice in a global political system ............................................................... 266	  Chapter 7: Conclusion: The Practice, Design and Theory of Inclusion in Global Governance .............................................................................................................................268	  7.1	   Justice for Victims and Democratic Legitimacy: Assessing the ICC ............................. 269	  Victim inclusion and justice ............................................................................................... 272	  The ICC and democracy in the global political system ...................................................... 276	  7.2	   Designing Inclusive Global Governance ........................................................................ 279	  Representing intended beneficiaries ................................................................................... 280	  Opportunities for advocacy ................................................................................................. 282	  Publicity: transparency and public awareness .................................................................... 283	  Contributions to IR scholarship .......................................................................................... 284	  Limitations of the ICC as a case study ............................................................................... 285	  Opportunities for further research ....................................................................................... 287	  7.3	   Justice and Democracy in Global Politics ...................................................................... 289	  Representing and including transnational communities of shared fate .............................. 291	  Pathways to global democracy ........................................................................................... 292	  Inclusion and justice in global politics ............................................................................... 293	  Bibliography ...............................................................................................................................295	  Academic Sources ................................................................................................................... 295	  Governmental, Inter-governmental and Non-governmental Documents ................................ 330	  News Media and Blogs ........................................................................................................... 338	  Appendix: List of Interviews.....................................................................................................341	     x List of Tables Table 3.1: Ideal types of representative claims ............................................................................. 78	  Table 4.1 Actor types and capacity to speak for, about and as constituencies of concern ......... 122	  Table 4.2: Examples of access by non-state actors to global governance institutions ............... 130	  Table 6.1: Implementation of victim-related provisions by situation ......................................... 210	       xi List of Abbreviations  AIDS        Acquired Immune Deficiency Syndrome ARLPI        Acholi Religious Leaders Peace Initiative ASP        Assembly of State Parties to the Rome Statute AU         African Union  CAR         Central African Republic  CICC         Coalition for the International Criminal Court CLR        Common Legal Representative for victims at the ICC DRC         Democratic Republic of the Congo  ECOSOC   Economic and Social Council of the United Nations EU         European Union  GFATM     Global Fund to Fight AIDS, Tuberculosis and Malaria HRC        Human Rights Center, University of California, Berkeley HRW        Human Rights Watch ICC         International Criminal Court  ICTJ        International Center for Transitional Justice ICTR         International Criminal Tribunal for Rwanda  ICTY         International Criminal Tribunal for the Former Yugoslavia  ILC        International Law Commission IMF        International Monetary Fund IMT        International Military Tribunal IO        Intergovernmental Organizations (or “international organization”) IR         International Relations LRA         Lord’s Resistance Army NATO        North Atlantic Treaty Organization NGO         Non-governmental organization  OPCV        Office of Public Counsel for Victims, ICC OTP         Office of the Prosecutor, ICC REDRESS  The Redress Trust Limited (UK-based NGO)   xii TFV        Trust Fund for Victims, ICC UK        United Kingdom of Great Britain and Northern Ireland  UN         United Nations  UNFCCC   United Nations Framework Convention on Climate Change UNGA        United Nations General Assembly UNHCR     United Nations High Commissioner for Refugees UNSC        United Nations Security Council  USA         United States of America VPRS        Victim Participation and Reparations Section, ICC VRWG       Victims’ Rights Working Group of the Coalition of the International Criminal Court WHO        World Health Organization WTO        World Trade Organization WW2        World War Two     xiii Acknowledgements This dissertation is the result of years of reading, listening and travelling, which have brought me into conversation with many exceptional individuals. I am deeply grateful for their insights, their support and their kindness. I thank Richard Price and Mark Warren, my co-supervisors, for their advice, encouragement and aid. I am profoundly indebted to their scholarship, which helped me understand how individuals can shape their political worlds. I also thank Michael Byers, not only for his feedback and our stimulating talks at his home on Saltspring Island, but also for demonstrating how to combine the roles of the academic, the publicly-engaged citizen and the dedicated parent. I am grateful for the passion and thoughtfulness of many teachers at the University of British Columbia and beyond. I owe a particular debt to Jim Tully at the University of Victoria, and Samera Esmeir, Paul Rabinow and Eric Stover at the University of California, Berkeley, who greatly enriched how I see the world. My ‘invisible college’ of fellow graduate students have made doctoral studies a rewarding experience. Peter Dixon and Asad Kiyani were stimulating interlocutors both in conversation and in our co-authored publications. My writing group of Agustín Goenaga, Stewart Prest and Jonathan Tomm dealt with many of my terrible ideas and sentences with kind honesty. Michael MacKenzie engaged me in wonderful conversations, sometimes in front of our shared students. At UBC, I benefited from discussions with Anastasia Shesterinina, Charlie Roger and the members of the Transitional Justice Network at the Liu Institute. I also had memorable dialogues with colleagues in interesting corners of the world, including with Graeme Auld on Block Island, with Adam Bower on the shores of Lake Victoria, with Stephen Cody next to a castle in Oslo, with Emily Paddon and Lindsey Richardson amid Oxford’s splendour, with Sara Kendall in a tense airport in Eldoret, with Lara Rosenoff beside a frisky donkey in northern Uganda, and with Jennifer Stewart in the eucalyptus groves of Berkeley. While my name appears on this dissertation, many individuals contributed to it. My research in Uganda and Kenya would have been impossible without the partnership of two admirable   xiv organizations: the Justice and Reconciliation Program in Gulu (special thanks to Lino Owor Ogora) and the Coalition on Violence Against Women in Nairobi (special thanks to Lydia Muthiani). I also benefited from terrific research assistants: Leonard Opiyo and Nelly Warega in Kenya, Francis Ociti and Harriet Aloyo in northern Uganda, and Lee Aldar and Aleksandra Djordjevic in Canada. Maria Radziejowska, who helped me in The Hague and Uganda, was a tireless and uplifting research companion. This research would not have been possible without financial support from Canada’s Social Sciences and Humanities Research Council, the Africa Initiative (Centre for International Governance Innovation), and at UBC, the Liu Institute for Global Issues, the Dean of Arts and the Department of Political Science. Most importantly, a scholarship from the Pierre Elliot Trudeau Foundation allowed me to research a topic of global scope, and at the same time helped me engage in Canadian public life and introduced me to many passionate thinkers and activists. I gratefully acknowledge the time and courtesy given to me by many interviewees, from senior officials at the International Criminal Court to busy community-based advocates in East Africa. I would especially like to thank the dozens of participants in my focus groups in Uganda and Kenya, who greatly enriched my understanding of justice and its obstacles. I am very thankful for the assistance, encouragement and baby-sitting services of Lynn Smith and Jon Sigurdson, and for the wonderful companionship – and occasional lodgings – of Lisa Kerr in New York and Kristy Sim in The Hague. I am tremendously grateful to my parents, Pat and Ron Tenove, for nurturing my curiosity and supporting my desire to explore the world and its challenges.  Finally, and above all, I thank my partner, Elin Sigurdson. She provided editorial assistance and grammar consultations. She brought perspective when I was in the throes of writing and research. She has shared with me my greatest joy, our daughter, Ingrid. In her own work, Elin has shown me what it looks like to fight for justice for those who have been neglected, doing so with compassion and courage. If there were more people like Elin, we would live in a better and more just world. This dissertation is dedicated to her.    xv Dedication     for Elin  1 CHAPTER 1: INTRODUCTION In David Scheffer’s memoir of his time as the United States Ambassador-at-Large for War Crimes Issues, he reflects on his efforts to push colleagues in government to take stronger action on international criminal justice:  Often, while listening to senior officials sitting comfortably in the White House Situation Room explain why other national priorities trumped atrocities and the pursuit of war criminals, I wanted … [the] mutilated bodies and missing souls of girls, boys, women and men of Bosnia, Rwanda, eastern Congo, and Sierra Leone to file silently through that wood-paneled room and remind policy-makers of the fate of ordinary human beings.1 Like many advocates of international criminal justice, Scheffer promotes its rules and institutions by referring to the suffering of victims and their need for redress. Scholars have shown that contemporary debates about international criminal justice often focus on whether or not it provides “justice for victims.”2 But Scheffer’s image is telling in another way. The role for victims in his imaginary scene is to wait silently for decision-makers to speak on their behalf. Critics of international criminal justice often make just this accusation: that victims are effectively voiceless, unable to advance their interests and desires, the targets of governance rather than agents of justice. On this view, “justice for victims” is a slogan that adds a moral veneer to a governance regime that state governments and other powerful actors use to promote their own interests.                                                  1 Scheffer, 2013, 2. 2 On the importance of victims to the legitimacy of international criminal justice, see Fletcher, forthcoming; Glasius, 2012; Hirsch, 2010; Kendall and Nouwen, 2013; McEvoy and McConnachie, 2012; Mégret, forthcoming; Shaw et al., 2010. By “victims,” I refer to people harmed by acts defined as crimes by the ICC’s Rome Statute. The term is contentious for some scholars, and activists and its various connotations – such as those of powerlessness or dependency – warrant attention. For a discussion of the appropriateness of the term “victims” by survivors of mass violence in Kenya and Uganda see Chapter Six, Section 6.4, and Tenove, 2013b, 10-14.   2 Such concerns are not limited to international criminal justice. Many global governance institutions3 have been criticized for excluding the voices of their intended beneficiaries4 from decisions that will significantly affect them. These criticisms frequently draw on the normative language of democracy: global governance institutions are accused of lacking democratic legitimacy or being deficient in democratic values such as transparency, accountability and participation.  How should we understand and address widespread concerns that the people who ought to benefit from global governance institutions are ignored, disempowered or harmed by them? In this dissertation I respond to that central question through both normative and empirical inquiry, and in doing so I aim to make three scholarly contributions. First, I seek to clarify the normative issues at stake. I propose that the principle of inclusion is central to many concerns about global governance. Inclusion means that people have an opportunity to understand and influence decisions that affect them. I argue that inclusion is crucial for global governance to promote justice and to be democratically legitimate.  Inclusion is not a controversial principle in the abstract. What inclusion entails in practice, however, is frequently complicated and contested. We can easily imagine what inclusion looks like when decisions affect members of a small group. It is much less clear what inclusion should look like in global governance, where complex policies are made at multiple decision-making sites and affect millions of people across continents. Because of the complexity and scale of global governance, inclusion requires political representation. I propose the framework of                                                 3 By “global governance institutions” I refer to formal organizations that govern individuals in two or more states. “Governance,” to use a prominent definition, refers to the “processes and institutions, both formal and informal, that guide and restrain the collective activities of a group” (Nye and Donahue, 2000, 12). Global governance institutions include intergovernmental organizations (henceforth “international organizations” or IOs) that states create and delegate authority to, and IOs are the focus of this dissertation’s more empirically-grounded work in Chapters Four, Five and Six. Global governance institutions can also include public-private regulatory bodies, multi-national corporations, transnational professional bodies, and non-governmental organizations (NGOs). The normative and theoretical work of Chapters Two and Three applies to this broader category of global governance institutions. 4 The social categories of “intended beneficiaries” will be discussed in greater detail in Chapter Four.   3 mediated inclusion to explain how representation can enable inclusion in governance decisions that affect large constituencies. The second contribution of this dissertation is to identify factors that make global governance institutions more or less inclusive of their intended beneficiaries. To do so I draw on and intervene in International Relations (IR) scholarship on transnational advocacy, inter-state negotiations and the design of global governance institutions. I examine the social construction of different categories of “intended beneficiaries” of global governance, and I identify actors, institutional design features, and contexts that can promote or frustrate their inclusion in global governance decision-making.  The dissertation’s third contribution is an investigation of the relationship between a prominent IO and its intended beneficiaries: the ICC and victims of international crimes. This in-depth case study adds to our understanding of actors and mechanisms of inclusion in global governance. It also contributes to important debates in the field of international criminal justice concerning the ICC’s responsiveness to victims and its ability to promote justice for them. I use the framework of mediated inclusion to evaluate victim inclusion in the creation and ongoing operations of the ICC. I show that during negotiations of the Rome Statute, the founding treaty of the ICC, civil society actors worked together with several state officials to insert key victim-related provisions into the statute text. These provisions provide a strong legal basis for victim inclusion. However, my analysis of the ICC’s interventions in Uganda and Kenya reveals that the implementation of these provisions leaves many victims’ advocates – and victims themselves – unsatisfied.  In the remainder of this chapter, I expand upon the problem that this dissertation addresses, the research approach I take and the principal arguments I develop in subsequent chapters.   1.1 The Problem: Global Governance in a Democratic Era In recent years there has been widespread criticism of the democratic legitimacy of global governance institutions, including major international organizations like the United Nations   4 (UN) or the World Bank, private and semi-private regulatory bodies, and civil society organizations. Two important trends in recent decades have triggered these concerns: the increasing authority and regulatory capacity of global governance institutions and the increasing prominence of democracy as a standard of political legitimacy.  Global governance has expanded in recent decades and it is likely to continue to do so. Since World War Two there has been a dramatic increase in the number of “global governors” that exercise power across borders, including international organizations as well as public-private regulators, multinational corporations, transnational professional associations and NGOs.5 These global governors have modified our expectations and practices of state sovereignty, they increasingly target individuals and groups rather than states, and their decisions are often enforced through coercion rather than state consent.6 In some cases, global governance institutions supersede state governments. We see this when people flee their states and wind up under the protection of the UN High Commissioner for Refugees (UNHCR); when natural disasters overwhelm states and humanitarian actors rush in to provide life-saving aid; when the UN or other international organizations take over administration of a state during major transitions; and – in the principal empirical case of this dissertation – when international criminal tribunals take over justice-seeking functions that states are unwilling or unable to perform.  Zürn and co-authors have convincingly argued that the expanding regulatory capacity of global governance institutions has provoked the politicization of their authority and contests over their legitimacy.7 As people become more aware of the impact that global governance institutions have on their lives, they increasingly mobilize to have these institutions promote their own political preferences.8 For many people, the conventional standard of legitimacy for global governance – the consent of state governments – is not sufficient.                                                  5 Avant et al., 2010; Barnett and Finnemore, 2004; Keohane, 2002a. 6 Hurrell, 2007. 7 Zürn, 2004; Zürn et al., 2012. 8 Zürn et al., 2012, 71.   5 These challenges to the legitimacy of global governance have come in an era when political legitimacy is frequently evaluated according to the language and practices of democracy.9 Democratic normative expectations are particularly prominent in Western countries, but not only in the West. The proportion of states that count as democracies has increased substantially in the last century and even patently non-democratic states use the language of democracy to promote their own legitimacy. Since the Cold War ended, democratic state government has become a prominent though contested norm in international society10 and a hallmark of “civilized” states.11 Buchanan and Kehoane argue that we live in a “democratic era” and international organizations “will only thrive if they are viewed as legitimate by democratic publics.”12 Moravscik has thus claimed that the democratic legitimacy of global governance is “one of the central questions – perhaps the central question – in contemporary world politics.”13  The expansion of global governance in a democratic era has generated a central problematization in global politics, to use Foucault’s term.14 An area of political contest and ethical importance has become problematic, it has become an important object of thought, and it has provoked diverse responses in theory and practice. People whose lives are deeply affected by global governance have taken to the streets and to diplomatic conferences to criticize democratic deficits and demand that their voices be heard in decision-making. Global governance institutions from UN agencies to the World Bank to international NGOs like Oxfam and Amnesty International have introduced new processes to consult and to be accountable to stakeholders.15 Democratic theorists, IR scholars and other academics have themselves proposed                                                 9 Democracy is not the only alternative to state consent as a normative standard for global governance legitimacy. Others include legality, efficacy and cross-cultural acceptability (Zürn and Stephen, 2010). 10 Clark, 2009. 11 Hobson, 2008. 12 Buchanan and Keohane, 2011, 407. 13 Moravcsik, 2004, 336. 14 Foucault, 2003. 15 Dingwerth (2014) therefore identifies a burgeoning norm of “democratic global governance.”   6 new and competing models to democratize global governance, and some have asked whether democracy itself must be rethought in an interdependent world.16 This proliferation of democratic demands and practices in global governance poses a number of empirical puzzles. How do democratic norms and practices change when they move from domestic to global governance? Why have different global governance institutions adopted different practices? What impact do these different practices have on the function or legitimacy of institutions? Are they superficial, low cost gestures that institutions use to placate critics? Or do these changes take us toward a structural change in global politics and the nascence of something like a global democratic polity?  For each of these questions the answer will depend in part on how democracy is understood, both in its normative commitments and its instantiation in practice. Democracy is an essentially-contested concept. Different values and practices have been called “democratic” and some of these compete with each other. To take a classic example, while modern democracy is often equated with periodic elections, Rousseau claimed that representative government was a form of feudalism and that free citizens become slaves between elections.17 In recent debates about democratic deficits in global politics, different scholars have advanced very different notions of democracy. Some focus on the threat that global governance poses to democracy within states. Such fears have been raised by conservative American scholars of the “new sovereigntist” movement, who believe that global governance is undermining popular sovereignty and constitutional conventions.18 Similar fears have been raised by post-colonial and left-leaning thinkers who worry that the democratic will of weaker states is subsumed under global governance rules imposed by the United States and other powerful actors.19 Other scholars embrace global governance that promotes common interests among states, and believe that its                                                 16 See, for instance, Bohman, 2007; Dryzek, 2006; Fraser, 2009; Held, 1995; Scholte, 2014; Tully, 2014. 17 Rousseau, 1978. 18 Bolton, 2000; Goodhart and Taninchev, 2011; Rabkin, 2005. 19 Chandler, 2011; Conway and Singh, 2011; Rajagopal, 2003.   7 legitimacy depends upon some but not all democratic norms.20 Cosmopolitan democrats promote a more thoroughgoing democratization of global politics to enact universal moral equality, with some calling for an elected UN People’s Assembly and other institutions of a democratic world government.21  These scholars develop different understandings of democracy to address different problems. I do the same in this dissertation. The problem animating this dissertation is the harm and political disempowerment that global governance institutions can cause those people who are nominally their intended beneficiaries. Many scholars and practitioners have raised this concern.22 It is particularly well illustrated in the work of Michael Barnett. In his probing analysis of international organizations in general, and humanitarian organizations in particular, Barnett illuminates a deficiency at the heart of much global governance. Global governance institutions frequently act in the name of a group of concern, such as refugees or the poor or victims of disaster, and derive authority by doing so. However, these global governors are often unresponsive or unaccountable to their intended beneficiaries, and as a result their actions may be ineffective, unwanted, disempowering or harmful. In different writings, Barnett has characterized this problematic relationship between global governance institutions and affected groups as undemocratic liberalism,23 paternalism24 or a form of imperialism25—all characterized by the limited inclusion of intended beneficiaries in decisions that affect them. Barnett and others have clearly articulated a serious problem in global governance today. This dissertation aims to do something he and other IR scholars have not done, which is to propose a framework for inclusion that could feasibly address the problem they describe.                                                  20 See, among many examples, Buchanan and Keohane, 2011; Keohane et al., 2009; Moravcsik, 2004; Payne and Samhat, 2004; Scholte, 2014; Zürn, 2004; Zürn and Walter-Drop, 2011. 21 Most prominent among these is Held, 1995, 2009; but see also Archibugi, 2004, 2008; Cabrera, 2010; Patomäki, 2011; Tännsjö, 2008. 22 Among many, see, De Waal, 1997; Mégret and Hoffman, 2003; Rieff, 2003; Terry, 2013; Wilde, 1998. 23 Barnett and Finnemore, 2004. 24 Barnett, 2011a, 2011b, 2012. 25 Barnett, 2011a.   8 1.2 Beyond Utopia? Democracy and Inclusion in International Relations The argument that global politics can and should be influenced by transnational constituencies, and in particular “weak” groups such as refugees or victims, runs counter to influential lines of thinking in IR. In Carr’s foundational work in the discipline, he argued that two liberal democratic values were disastrous when scholars and policy-makers translated them from national to international politics: that public deliberation would lead to right thinking, and that public opinion would or should determine inter-state relations.26 Based on Carr’s work and others, much IR scholarship is grounded in the primacy of state interests and skepticism toward the impact of deliberation, morality, public opinion and non-state actors in an anarchic system of states. Furthermore, prominent IR approaches such as neo-realism and neo-institutionalism have assumed that the distribution of states’ material power and interests will determine the behaviour of international organizations. If these assumptions are accepted, the democratic inclusion of affected groups makes little sense – they are not states, they are not “at the table” in international negotiations, and even if they were they lack the economic and military power that determines outcomes. However, recent developments in global governance practice and in IR scholarship have challenged these assumptions.27 First, global governance practice has been transformed by a dramatic growth in civil society involvement. Indeed, developments in global civil society have gone hand-in-hand with the increasing prominence of global governance institutions. As Tallberg and Jönsson observe: “Much as the emergence of the nation-state stimulated the growth of new forms of citizen activism, the creation of international institutions in the postwar period provided new political opportunities and incentives [for civil society] to organize.”28 The increased prominence of civil society has provided a new category of actors capable of representing the views and promoting the interests of groups other than states.                                                  26 Carr, 1940. 27 These developments, as well as their implications and limitations, will be discussed in greater detail in Chapter Four. 28 Tallberg and Jönsson, 2010, 5.    9 Second, and relatedly, inter-state negotiations and global governance institutions have significantly “opened up” to non-state actors, and particularly civil society organizations.29 Non-state actors now have considerable opportunities to scrutinize or even contribute to global governance decision-making. Additionally, many global governance institutions have created roles for individuals to consult and represent affected groups in organizational policy-making. Neither of these practices cause global governance institutions to surrender their authority or ignore the dictates of states, but they can create opportunities for representatives of intended beneficiaries to be at the table for decisions that affect them. Third, in recent decades there has been a significant increase in the capacity for actors to access, analyze and share information about global governance decision-making. This development is partly technological, with improvements in information and communication technologies. There has also been a normative shift toward greater institutional transparency. Some inter-state negotiations and institutional decision-making processes remain largely secret, and even those that are not may be difficult for members of affected publics to learn about and evaluate. Nevertheless, general improvements in transparency and information dissemination can improve these possibilities.  These changes in global governance practice are key parts of an emerging norm of global democratic governance,30 and they make the inclusion of affected groups more feasible. At the same time, new approaches in IR have opened theoretical space and suggested new empirical strategies to study the inclusion of affected groups.  First, constructivist scholars have greatly expanded our understanding of how ideas matter in global politics. This literature has convincingly shown that material power and interest are not the only factors that affect the behaviour of states and global governance institutions. Many different kinds of actors, including expert bodies and NGOs, can contest and contribute to the social understandings that shape global governance. Scholars have proposed different types of                                                 29 Tallberg et al., 2013. 30 Dingwerth, 2014.   10 authority, including moral and expert authority, that enable non-state actors to influence decision-making by states and global governance institutions.31  Second, constructivists have identified the role of constitutive norms in global politics. As I argue in Chapter Four, the constitutive norms of different global governance regimes32 create certain categories of “intended beneficiaries,” such as “refugees,” “the global poor” and “victims of international crimes.” These social categories are central to these regimes, and actors make claims about intended beneficiaries to promote the legitimacy of global governance institutions and to advance their own authority.  Third, scholars have more closely examined the forms of power, authority and autonomy wielded by global governance institutions, rather than treating them as passive agents of states or intervening variables that reflect a distribution of states’ powers and interests.33  Fourth, as civil society organizations have grown in prominence in global politics, IR scholars have studied how they make decisions, mobilize authority, engage with donors and beneficiaries, and compete with one another. These analyses challenge the notion that such actors are simply altruistic. By zooming in to examine the structure and institutional practices of civil society organizations, and by pulling back to examine entire fields of competing organizations, scholars have identified factors that may make organizations more or less capable to operate as representatives of affected groups.34                                                  31 See in particular Avant et al., 2010; Barnett and Finnemore, 2004.  32 Governance regimes have been defined a “set of implicit or explicit principles, norms, rules, and decision-making procedures around which actors expectations converge in a given area of international relations” (Krasner, 1983, 2). Global governance regimes often have prominent international organizations, such as the UNHCR for the refugee regime or (currently) the ICC for the international criminal justice regime. 33 See, among others, Avant et al., 2010; Barnett and Finnemore, 2004; Betts, 2009. 34 This literature is discussed further in Chapter Four. See, among others, Barnett, 2011a; Bob, 2005; Brown et al., 2012; Carpenter, 2007; Cooley and Ron, 2002; Hopgood, 2006.   11 Fifth, IR scholars have increasingly examined the communicative encounters in global governance decision-making. An important stream of this research explores the possibility for deliberation or Habermassian communicative action in inter-state negotiations.35 Scholars have begun to identify conditions in which reason-giving, rather than bargaining or coercion, shape decision-making processes. This research can help us see when members or representatives of groups affected by global governance might shape decisions through normative or expert claims.  Taken together, these IR approaches provide much greater analytical traction on how global governance decisions are made, on the forms of authority that are at play in these decisions, and on how diverse actors – from state officials to IO bureaucrats to NGOs – may be able to mobilize that authority and influence outcomes. These research approaches do not dismiss the importance of state interest and power, but help us understand in finer detail how state interest and power are created, acted out and constrained. They also make it possible to see how constituencies that exist within or across state borders could be included in global governance regimes’ decision-making. However, we currently lack a framework that brings together these empirical insights with careful normative argument.   1.3 The Approach: Concept Development, Empirical Analysis and Situated Study This dissertation takes a pragmatic approach, in several senses of the word.36 A pragmatic approach aims to create knowledge that can inform prudent, value-rational action. This approach challenges the conventional division of labour between researchers who do abstract normative theory and others who do value-neutral, empirical inquiry.37                                                  35 Crawford, 2009; Deitelhoff, 2009; Deitelhoff and Müller, 2005; Johnstone, 2011; Mitzen, 2005, 2013; Risse, 2000, 2004; Ulbert et al., 2004. 36 For reflections on pragmatism in IR research, see Brown, 2012; Friedrichs and Kratochwil, 2009; Kratochwil, 2011. 37 For compelling examples of this approach in democratic theory, see Mansbridge, 1983; Wedeen, 2007. See also Flyvbjerg, 2001.   12 The thinking of pragmatist philosopher John Dewey informs this dissertation. Dewey, along with other pragmatist thinkers, argued that we should not treat concepts and values as deductive categories but rather as objects of thought that can be worked on to solve problems in our lives.38 One cluster of concepts and values that he worked on was democracy. He argued that democracy has to be continually rethought to address the problems faced in increasingly complex societies. Confronting the dramatic changes to social and political life at the beginning of the 20th century, he identified two key tasks for those who wanted to contribute to rethinking democracy. In Bohman’s words, these tasks are “clarifying and deepening our conceptual resources related to the core ideals of democracy, and then using these resources normatively to criticize and remake existing political and institutional forms.”39  This dissertation is also pragmatic in that it responds to the problems and practices of individuals involved in an area of governance. The research began with a specific set of frustrations and confusions that I encountered among lawyers, tribunal staff, civil society actors and victims of mass violence. In particular, these individuals expressed concern about the apparent lack of agency of victims in international criminal justice and questioned its cross-cultural legitimacy.  The research for this dissertation thus took the pragmatic approach of moving back and forth between conceptual work, empirical study and practical engagement with a particular social field. To do so it brings together democratic theory, IR scholarship and an in-depth case study of victim inclusion in international criminal justice.  I draw on democratic theory because key problems of global governance are currently formulated in democratic terms, and contemporary democratic theorists have developed nuanced conceptual tools and reflections on institutional design that can enhance IR scholarship. In particular, few IR scholars have drawn on the productive vein of contemporary democratic theory that unpacks and re-articulates concepts of inclusion and representation, making them                                                 38 Dewey, 2004. 39 Bohman, 2007, 171.    13 more applicable to complex, large-scale governance in an interdependent world.40 This literature enables us to identify and assess a wide range of actors who can function as political representatives in different sites of decision-making. For instance, we can evaluate Bono’s claims to represent Africans on matters of debt and trade or Oxfam’s advocacy on behalf of the global poor. 41 Unfortunately, IR scholars have tended to use the language of democracy in a very broad sense, clarifying little, or they have narrowly defined it in order to differentiate democratic from undemocratic states. As Keohane et al caution fellow IR scholars, the study of global governance and democracy “requires not just subtle empirical investigation, but philosophical clarity.”42 At the same time, IR scholarship can enrich democratic theory by informing its empirical assumptions about the practices and possibilities of global governance. For instance, recent work on global civil society shows the different roles, organizational forms and competitive pressures of NGOs, identifying factors that make them better or worse representatives of constituencies affected by global governance. And IR scholarship on the design of global governance institutions provides insights into how they are created and modified over time, and how principles like accountability and transparency may be built into them. Finally, this dissertation is informed by engagement with the actors and practices of international criminal justice. It benefited from formal interviews and informal discussions with diplomats and civil society actors, as well as with ICC staff ranging from prosecutors to judges to registry officials who work closely with victims. Given this dissertation’s focus on inclusion, it was also important to engage with the perspectives of those who have been harmed by violations of international criminal law. I therefore conducted focus groups in Kenya and Uganda. Their findings are presented near the end of this dissertation, in Chapter Six, but these conversations were held midway through the research process and shaped the dissertation’s theoretical                                                 40 Though see Macdonald, 2008; Steffek and Hahn, 2010; Zürn and Walter-Drop, 2011.  41 See, among others, Montanaro, 2012; Rubenstein, 2014; Saward, 2009. 42 Keohane et al., 2011, 602.   14 framework. For instance, discussants proposed multiple and complementary standards for actors who might represent them, and they alerted me to the hollowness of representation when constituency members are unaware of the positions put forward by their own representatives. These observations influenced my approach to representation and publicity in the mediated inclusion of constituencies. They also contributed to policy reports and posts on expert blogs that were published during dissertation research.43  1.4 The Argument: Justification and Prospects for Inclusion in Global Politics I argue in Chapter Two that inclusion is central to advancing justice and democratic legitimacy in global governance. Inclusion may contribute to justice, as inclusion enables those who experience injustice to raise their voices and be heard, demand redress, hold decision-makers to account, and shape collective standards of justice. Inclusion is also inherent to democracy, and lies at the core of the democratic conviction that people should give rules to themselves. However, it is not clear how inclusion or democracy might be promoted at the scale and with the complexity of global governance. To address this issue, and to develop a conception of democracy that is appropriate to an interdependent world, we need to reconsider fundamental assumptions about the boundaries and practices of democracy. Democracy requires that we are included in decision-making that significantly affects us. A central assumption of modern democracy is that inclusion is linked to one’s status as a citizen of a state. But today our lives are shaped by decisions made beyond our states’ borders. Rather than see states as distinct and separate units of democratic activity, we need to examine the global political system in its totality. When we analyze democracy systemically, we look for institutional arrangements that promote inclusion and collective action wherever they are most needed. Global governance institutions can contribute in positive or negative ways. They can advance different capacities that individuals and groups require for                                                 43 Tenove, 2012a, 2012b, 2013a, 2013b, 2013c, 2014; Tenove and Radziejowska, 2013.   15 democratic agency – such as ensuring basic levels of protection, education and means of communication – but can also undermine these capacities. Furthermore, the architecture of global governance can help structure relations among polities to minimize situations where people are governed by others without any say, but it can also create such situations. As an example, the international criminal justice regime might contribute to democracy in the global political system if it helps protect individuals, ethnic groups and states from forms of violence that radically limit people’s capacities to act as democratic agents. But international criminal justice might undermine democracy in the global political system if it fails to deter violence or help people recover from it, and if it provides an additional means for powerful states to exert control over weaker states and non-state actors.44 Global governance institutions can thus affect democracy within and across polities in complex ways, and we need to assess these systemic effects. We also need to pay close attention to the particular relationships between global governance institutions and those categories of people whose lives they aim to significantly affect. The majority of this dissertation focuses on these relationships, and the possibility for inclusion of targeted groups.  To understand what that inclusion might look like, Chapter Three proposes the framework of mediated inclusion. To preview my argument, mediated inclusion, as opposed to direct inclusion, uses practices of representation to include people’s interests and perspectives in relevant decision-making processes. Representation does not replace participation, but it enables forms of participation that are workable in large-scale governance.  Mediated inclusion has three necessary elements: representative claim-making, advocacy and publicity.  • First, representatives must make valid claims on behalf of a constituency. Representatives can advance different normative goods for their constituencies, and thus have different                                                 44 These arguments are developed further in Chapter Two and Chapter Seven.   16 standards of legitimacy. I propose three ideal types of representative claims: speaking for, speaking as and speaking about a constituency.  • Second, representatives must be able to advocate for a constituency in relevant decision-making processes and possibly influence them. To do so, they require access to these processes and consideration of their claims by decision-makers. • Third, decisions must be made in a sufficiently transparent manner for decision-makers to be evaluated and held to account, and constituency members must be able to cultivate informed opinions about decision-making processes that they believe to be important or harmful.  Focusing on these three elements helps us assess whether a constituency is included in particular situations or decision-making processes. It also highlights those functions that are necessary for inclusion, thereby focusing our attention on issues of governance design.  Chapter Four turns to IR scholarship to understand opportunities and obstacles to inclusion in global governance today. Many global governance institutions have introduced practices to include the views and interests of their stakeholders. But do any of these diverse practices contribute to the meaningful inclusion of the intended beneficiaries of governance regimes? To address this question, I clarify the central place of “intended beneficiaries” in global governance regimes. Intended beneficiaries, such as refugees and victims of international crimes, are social categories constructed by some but not all regimes. They are key to these regimes’ legitimacy, and actors within regimes engage in authority contests by making claims about them. However, despite the prominence of claims about intended beneficiaries, their actual views and interests may be misrepresented or ignored. In some cases, for instance, being designated a refugee or a victim of international crimes can be disempowering or harmful. Inclusion can address this predicament by giving intended beneficiaries opportunities to contest and modify the social category, or to influence the governance that applies to it. To determine whether and how inclusion in global governance is possible, I examine the trends mentioned in Section 1.2 above. For each trend, I identify arguments that challenge its possible contribution to the mediated inclusion of intended beneficiaries, and then propose conceptual and   17 empirical reasons to temper this skepticism. I conclude that opportunities for the mediated inclusion of intended beneficiaries in global governance have improved.  The rise of global civil society, the first trend, appears to create actors capable of representing the intended beneficiaries of global governance. However, as these civil society actors have become more influential their own authority claims have been politicized and subjected to greater scrutiny, including questions about their representative role and their own democratic legitimacy.45 Scholars have shown that NGOs frequently are not good representatives for these groups, due to factors including their organizational structure and their competition for funding. These findings do not mean that good representation of intended beneficiaries is impossible. I argue instead that some but not all types of NGOs can play important roles as representatives. Moreover, NGOs are not the only actors capable of representing intended beneficiaries. Others include academics, IO staff designated to play a representative role, and diplomats who advocate for constituencies other than their own state’s citizens. International negotiations and IO decision-making have increasingly opened up to non-state actors, the second trend.46 However, some research suggests that this access does not translate into real influence for representatives of intended beneficiaries, who will nevertheless lack influence over states or international organizations. This is a serious challenge, but there are two reasons to be less skeptical. First, IR researchers have shown that non-state actors can wield expert, moral and political authority in decision-making. Second, certain conditions exist in which global governance decisions are influenced by arguing rather than bargaining, meaning that reasons rather than resources can shape outcomes. When arguing is prominent, there are opportunities for actors with less institutional and material power to exert influence. The spread of a transparency norm along with developments in information and communication technology, the third trend, may improve the publicity of global governance decision-making.                                                 45 See Jordan and van Tuijl, 2006a; Scholte, 2011a; Slim, 2002, and especially Erman and Uhlin, 2010. 46 See, among others, Jönsson and Tallberg, 2010; Payne and Samhat, 2004; Scholte, 2011a; Steffek and Nanz, 2008; Tallberg et al., 2013.   18 However, some research shows that the intended beneficiaries of global governance are often poorly informed. This finding is less concerning, I argue, when we use a realistic standard of awareness. Even in developed democracies, we do not expect all citizens to be informed on all issues. Instead, we need decisions to be sufficiently transparent to be assessed by a number of actors with motivation and some expertise. The public in general needs to be aware of basic details about decisions that deeply affect them, such that they can seek greater information and take action if they desire. If similar expectations are applied to global governance it appears that there have been significant improvements in many global governance regimes, though there are still serious obstacles for intended beneficiaries to develop informed opinions regarding the IOs that affect them. I illustrate each of these arguments with examples from global governance regimes today, ranging from the World Bank to the Global Fund to Fight AIDS, Tuberculosis and Malaria to UN peacekeeping operations. Not only are there important trends in opportunities for the mediated inclusion, there are practices and design elements of particular institutions that will be particularly fruitful or problematic. To identify these requires in-depth analysis of IOs, to see what practices of inclusion exist and what impact they have. The remainder of the dissertation provides such a study.   1.5 The Case Study: Victim Inclusion in International Criminal Justice The ICC is an important case study for investigating the capacity of IOs to promote justice for their intended beneficiaries and – less obviously – for examining issues of democratic legitimacy. The ICC, created through negotiations that culminated in 1998, is arguably the most significant IO to be created in recent decades. Many of its architects and supporters have claimed that it can provide justice for victims of humanity’s most terrible crimes, and that it is a legitimate creation of the international community rather than “victor’s justice” imposed by a few powerful states. However, scholars, practitioners and political leaders have criticized the   19 ICC for failing to promote justice for the actual victims of mass violence, and others have accused it of undermining democracy or lacking democratic legitimacy.47 This dissertation suggests how we might evaluate these competing claims. To do so requires conceptual work as well as empirical research. First, we must assess what justice for victims ought to mean and how to achieve it. Rather than leave those questions to scholars and practitioners, I argue that justice for victims also requires that victims’ interests and perspectives be included in the design, oversight and operations of the ICC. Second, we must think carefully about the criteria of democratic legitimacy that should be applied to the ICC. I argue that the democratic legitimacy of the Court should not only be assessed according to its acceptance by democratic states (though that is important), but also by its capacity to promote or protect democratic capacities of individuals and polities in the global political system.48 Furthermore, we must examine the democratic quality of decision-making processes by which international criminal laws and institutional rules are made (such as state negotiations to create the ICC) and the many sites of decision-making that implement these laws and rules (such as by the ICC’s Assembly of State Parties or its Trust Fund for Victims). These decisions significantly affect victims, and they too must be assessed for victim inclusion. In Chapter Five, I argue that the “victim of international crimes” is a social category constituted by international criminal justice, and that actors within the regime make claims about victims to promote their own authority or the authority of their institutions. However, being the object of this claim-making does not necessarily promote inclusion. To assess victims’ inclusion, we need to look at those decision-making sites that significantly affect them, which include diplomatic and bureaucratic decision-making processes as well as judicial proceedings. We must also recognize legitimate restrictions on victim inclusion. For instance, key normative functions of                                                 47 On the ICC’s questionable capacity to promote justice for victims, see Branch, 2007; Clarke, 2009; Fletcher, forthcoming; Mamdani, 2010. On problems of democratic legitimacy, see Bolton, 2001; Goldsmith, 2003; Morris, 2002. See also the claims of African leaders that are discussed in Chapter Six. 48 Questions about the democratic role of criminal justice institutions may strike some as unorthodox, since we often do not think of them as important democratic institutions. I argue otherwise in Chapters Five and Seven. See also Fichtelberg, 2006; Glasius, 2012.   20 criminal trials will be lost if the guilt and punishment of accused persons are decided according to victims’ interests and preferences. Nevertheless, evaluating international criminal justice from the perspective of victims’ inclusion prompts a critical reappraisal of its rules and practices, including those of trial processes.  Chapter Five also examines the negotiation of the ICC’s Rome Statute, a constitutional moment in international criminal justice that transformed many of its rules, including those regarding victims. I identify civil society actors and state officials that advocated for provisions that they believed would benefit future victims. As a result of their advocacy, the Statute has several victim-specific provisions on matters of prosecutorial discretion, victim participation in proceedings, reparations, and sexual and gender violence, all of which create opportunities for the ICC to be more inclusive of diverse victims’ interests and perspectives than could previous international criminal tribunals.  In Chapter Six I evaluate the mediated inclusion of victims in the ICC’s interventions in Uganda and Kenya, and in doing so I examine the implementation of the Rome Statute’s victim-related provisions. The two case studies identify different sites of decision-making that warrant inclusion and highlight the work of different types of victims’ representatives. The ICC’s intervention in Uganda provoked a backlash from representatives of victims and affected communities. They claimed that the Court undermined victims’ interests in peace and preferences for local, restorative justice approaches. I examine these and other representative claims regarding victims, and their contribution to debates over the Prosecutor’s policies for investigations and prosecutions. In the Kenyan situation, the ICC indicted several leading political figures and has faced serious opposition from the Kenyan government and some African states. I analyze victims’ inclusion in a key diplomatic debate, when the UN Security Council voted on whether to suspend proceedings against Kenyan leaders. I also assess victims’ inclusion in ongoing judicial processes, focusing on the work of ICC-appointed victims’ legal representatives.  My analysis of ICC operations draws on over 100 interviews with diplomats, civil society actors and Court staff. It also draws on insights from focus groups with survivors of mass violence in   21 seven communities in Uganda and Kenya. Participants critically assessed their representation and their access to information about the ICC, and offered nuanced reflections on the strengths and weaknesses of the Court in providing justice. A principal complaint against the ICC by focus group participants was its failure to successfully prosecute people most responsible for international crimes or to provide significant reparations for victims. Inclusion mattered to them, but so did effectiveness. The ICC’s interventions in Uganda and Kenya paint complex pictures of victim inclusion, showing both strengths and weaknesses. Different types of victims’ representatives have made competing claims about victims’ interests and perspectives, and these actors have contributed in various ways to judicial, bureaucratic and diplomatic decision-making processes, though their influence is often limited. Furthermore, there were weaknesses in transparency and serious obstacles to victims’ access to information about the ICC. The two case studies also show that while justice for victims is affected by deficits in victim inclusion, it is seriously compromised by problems of institutional efficacy and by factors external to the ICC.  1.6 Conclusion The final chapter explains the contributions that this dissertation makes to scholarship on international criminal justice, transnational advocacy and IO design, and democratic theory. It also addresses limitations of the dissertation and avenues for future research.  In brief, this dissertation contributes to scholarship in international criminal justice by proposing a novel approach to evaluate whether it provides “justice for victims.” I argue that the ICC and other tribunals are more likely to do so if they are responsive to diverse insights and interests of victims and their communities. I claim that the Rome Statute provides the statutory basis for such responsiveness. My analysis of the ICC’s operations reveals weaknesses in practices of victim inclusion, as well as significant deficiencies in the Court’s basic effectiveness. As a result, victims face serious obstacles to make substantive use of the formal opportunities they have to address the justices they face.    22 On the debate over the democratic legitimacy of international criminal justice, I challenge the view that the ICC lacks democratic legitimacy whenever it acts without the pre-authorized or ongoing consent of democratic governments. The ICC, like other global governance institutions, should also be assessed according to whether it can promote democratic functions across state and sub-state polities. We must therefore look at the Court’s impact, and not just its authorization. To date we lack persuasive evidence that the ICC deters violence, rehabilitates victims as political agents or improves the quality of democracy in states where it intervenes. We need more extensive and rigorous empirical research as the Court completes its first trials and implements victim reparations. This dissertation’s second contribution is to IR literature. My investigation of the principle of inclusion complements recent and productive engagements between IR and democratic theory. These include examinations of the democratic values of deliberation,49 accountability50 and transparency51 in global governance. I also contribute to literature on transnational advocacy and IO design. I identify factors that influence whether civil society actors are likely to make strong claims to represent the intended beneficiaries of global governance, and I draw attention to other potential representatives that many IR scholars ignore. I also identify institutional design features that are likely to make IOs more or less inclusive, from transparency mechanisms to “gatekeeping” processes that determine access by non-state actors to decision-making.  More empirical research is needed to extend my assessment of the feasibility of including intended beneficiaries in global governance. My in-depth case study of the ICC identifies practices and situations that promote or undermine inclusion. However, the ICC is just one international organization, and it will likely differ from others in its relationship with its intended beneficiaries. In Chapter Seven, I discuss the limitations of the ICC as a case and propose future research avenues to generate more generalizable claims.                                                  49 See Deitelhoff and Müller, 2005; Johnstone, 2011; Müller, 2004; Risse, 2004. 50 See Ebrahim and Weisband, 2007; Erman and Uhlin, 2010; Grant and Keohane, 2005; Koenig-Archibugi and Held, 2005; Scholte, 2011d. 51 See Florini, 2007; Grigorescu, 2007; Payne and Samhat, 2004.   23 There are also several criticisms of my approach to inclusion that warrant further consideration. These include tensions between inclusion and other normative principles, and the possibility that inclusion in global governance can sometimes undermine the capacities of constituencies or polities to seek justice or act democratically.  Finally, this dissertation makes several contributions to democratic theory. I propose a new, systemic approach to democracy in global politics. This approach addresses theoretical debates about the “boundaries” of democratic polities in an interdependent world, and it suggests the positive and negative impacts that global governance could have on democratic functions across multiple polities. I also develop the framework of mediated inclusion to suggest how constituencies of particular global governance institutions might be included in decision-making. Furthermore, I contribute to recent scholarship on political representation. I illustrate the capacity for actors to identify and mobilize transnational constituencies through acts of representation. I also propose a new typology of representative claim-making, which illuminates the different but complementary normative goods that representatives can advance.  My focus on inclusion in global politics is motivated by questions about how global governance might address or exacerbate injustices in the world. I argue that global governance institutions, to be more likely to promote justice, should be designed to be more inclusive of the people they aim to assist. I therefore use inclusion as a principle of institutional design. Above all, however, inclusion is a principle that should guide evaluations of social relations. As I hope to show, the principle of inclusion promotes a critical and questioning stance toward governance, even when governance claims to be acting in the name of justice.    24 CHAPTER 2:  JUSTICE AND DEMOCRACY IN AN INTERDEPENDENT WORLD  People’s lives are buffeted, challenged and enriched by forces and interdependencies that cross state borders. We share vulnerabilities to climate change and nuclear war. We possess affinities with people scattered around the world who share our professions, religions, languages or hobbies. We also share governance. The citizens of other countries shape many of the rules that structure our lives. Foreign governments, transnational corporations, international organizations and other global governance actors make decisions that influence how we regulate our economic transactions, choose and conduct military operations, protect or exploit our natural environment, and treat our fellow citizens. This global interdependency has significant but perplexing implications for democracy and justice. On the one hand, rules made by foreign governments and transnational actors often trump those made by our state governments, including governments that we have chosen democratically. On the other hand, global governance can sometimes improve the quality of democracy, such as by monitoring the conduct of elections or promoting rights to speech and association. Global governance can also help to address injustices. When individuals in multiple countries experience the same injustice or vulnerability, particularly when their state governments are unwilling or unable to address it, global governance may help. However, if rules and institutions are imposed on people, even if intended to advance justice, they can cause disempowerment and harm. It is thus a daunting but critical task to understand how we might promote justice and democracy in an increasingly interdependent world. In this chapter I argue that inclusion is central to both justice and democracy in global governance. Inclusion, in brief, means that people have opportunities to understand, evaluate and influence governance decisions that affect them. Inclusion promotes three normative goods. First, people included in decision-making can promote their interests.52 Second, those included                                                 52 Following Mansbridge, I understand “interest” as including “ideal-regarding commitments as well as material needs and wants,” and therefore as closely tied to identity (2003, 517 n. 6).   25 can improve the quality of decision-making by contributing their perspectives, experiences and expertise. In doing so they can enlarge the perspectives of other participants in decision-making, identify their errors and biases, and contribute to the identification of collective interests. Third, people included in decision-making can themselves be influenced by positions other than their own. Their understandings can be challenged and enlarged, possibly changing beliefs about personal and collective interests.  This chapter lays the normative groundwork for this dissertation by clarifying the centrality of inclusion to both justice and democracy, and by proposing a systemic model for evaluating inclusion in an interdependent world. Inclusion, I argue, is instrumentally related to justice, as greater inclusion in governance decision-making can contribute to more just outcomes for included groups. Inclusion is also inherent to democracy. In the following chapters I propose a framework for evaluating inclusion in global governance, and I use this framework to assess the inclusion of victims in international criminal justice.  In developing these arguments, I propose and apply conceptual tools to help us evaluate, and ultimately advance, the justice and democratic legitimacy of global governance institutions. These are issues of practical importance and, often, political contest. This contest can be illustrated in a brief preview of two cases that will be analyzed in Chapter Six. One case is the intervention of the International Criminal Court in Uganda. Some advocates for violence-affected communities argued that the ICC’s actions imposed a harmful and unwanted form of governance rather than “justice.” The claims put forward by these advocates provoked a debate about whether and how the ICC’s policies might accommodate the interests and perspectives of victims. They also provoked a discussion about whose justice ought to matter in such conflicts. The second case illustrates a challenge to the ICC’s legitimacy on democratic grounds. The current President and Deputy President of Kenya were elected in 2013 despite facing criminal charges at the ICC for alleged roles in mass violence during and after the previous elections. The Kenyan leaders and their supporters have argued that the electoral victory rendered illegitimate the ICC’s continued interference. Upon his victory, President Kenyatta announced: “We expect the international community to respect the sovereignty and democratic will of the people of   26 Kenya.”53 That understanding of democracy, in which an electoral victory renders a global governance institution democratically illegitimate, differs from the conception I put forward in this chapter. As I will argue, global governance that impinges on the sovereignty of states – even states with elected governments – may nevertheless improve the quality of democracy within and beyond that state. Moreover, my approach foregrounds the interests and perspectives of the tens of thousands of victims of earlier election violence who continue to be marginalized and excluded in Kenyan politics. My approach thus forces us to ask whose perspectives on democratic legitimacy ought to matter most. In short, I argue that those who face injustice should be part of the conversation about what justice is and how it should be pursued, and that democracy should be seen as a governance approach that empowers people to address the problems and forms of injustice that they collectively face.  My argument develops as follows. I begin in Section 2.1 by arguing that the inclusion of those who face injustice is critical to advancing justice in global politics. Inclusion is necessary because understandings of justice vary within and between societies. Justice must be discussed and negotiated rather than imposed. Furthermore, governance decisions that systematically exclude people are likely to produce injustice, as people have no way to ensure that their interests are promoted, their identities recognized, and that decision-makers are held to account. In Section 2.2, I examine democracy in an increasingly interdependent world. The democratic principle of self-determination implies that people who are significantly affected by governance decisions ought to be able to contribute to decision-making. I argue that because people are increasingly affected by transnational interdependencies, democracy must become increasingly transnational as well. This is necessary to address the plight of transnational “communities of shared fate”— people whose lives are significantly and negatively affected by particular global rules or global institutions.54 To develop this argument, I build on the work of contemporary                                                 53 Perry, 2013. 54 On “communities of shared fate,” see Held and McGrew, 2002; Williams, 2009.   27 democratic theorists who question the centrality of the state as the pre-eminent unit of democracy. In doing so I revisit fundamental assumptions of democracy and ask: Who ought to be included in what governance decisions, and what forms of inclusion are appropriate? The globalized conception of democracy that I put forth requires a paradigm shift from the conventional understanding of democracy as a state regime type. As I argue in Section 2.3, we must think of democracy systemically.55 To promote democracy, we must look at how institutions and processes work together to promote or undermine the three essential normative functions of democracy: empowering inclusion, promoting collective will-formation and enabling collective decision-making. The institutions and processes of state governments are important for democracy, but they must be considered as components of a system rather than in isolation. This systemic approach has two important implications for democracy in global politics. First, since what matters are the functions rather than the institutional forms of democracy, we need not try to replicate the institutions of democratic states at the global level. Second, a systemic approach allows us to consider whether and how institutions at different levels – global, regional, state and sub-state – might complement or undermine each other in advancing democratic functions.  In Section 2.4, I use this systemic approach to make several observations about the relationship between global governance and democracy in the global political system.56 First, global governance institutions are sites of decision-making that warrant inclusion. They affect some people more than others, and can address or exacerbate justice for some more than others, and these facts must shape who is included in decision-making and through what means. Second, global governance can improve or undermine democratic functions in state and sub-state governance. One way it can do so is by affecting basic capabilities that shape individuals’ democratic agency, such as security, health, education, social recognition, and the ability to communicate and associate with others. Global governance institutions also influence the                                                 55 As I will clarify in Section 2.3, this form of “systemic analysis” is one that examines how different components of a system interact and contribute to its capacity to generate normative goods.  56 By “global political system” I mean the totality of political relations within and across states.   28 governance rules of state and sub-state communities, and empower or constrain their ability to enact collective decisions. The section also identifies several important changes in global governance in recent decades, including developments in human rights, global civil society, information and communication technologies, and suggests that there is a burgeoning norm among international organizations of “democratic global governance.”57  Finally, Section 2.5 argues that addressing global injustices will often require transnational communities of shared fate be recognized or “constructed” as political constituencies and included in decision-making. I give the example of HIV/AIDS sufferers who faced insurmountable barriers to accessing treatment. Their predicament was caused by deficient government policies and social stigma within their own countries, but also by global governance of public health and of intellectual property with respect to pharmaceuticals. Many people with HIV/AIDS experienced immense harm and injustice because their interests and perspectives were excluded from a variety of decision-making processes. This predicament was addressed, in part, when different actors advocated on behalf of this community of shared fate and prompted decision-makers to recognize and act on its existence and its interests. In doing so, these advocates helped shift global governance of HIV/AIDS treatment. This illustration raises two central questions that will animate the dissertation: How are communities of shared fate constructed as political constituencies, and how might they be included global governance decision-making? At the heart of both questions, as I show in Chapter Three, are issues of political representation.   2.1 Justice and Inclusion If global governance is to advance justice, the inclusion of those who suffer injustice is critical. As I will argue, their inclusion is important both to the implementation of global governance policies and to identifying what justice is.                                                  57 Dingwerth (2014) uses this term to describe the various democratic values and practices that are increasingly observed and demanded at global governance institutions.   29 Exclusion from decision-making frequently results in injustice. There is an extensive literature on the injustice suffered by groups who have been excluded from politics, such as women, ethnic minorities, the poor and the disabled.58 The link between exclusion and injustice caused by global governance institutions has also begun to receive attention, in part because of the stark consequences of exclusion. For instance, the World Bank has provided funding to build dams that destroyed communities and displaced thousands of people.59 Humanitarian organizations worked with the Ugandan government to keep civilians in displaced persons camps for years, a policy that contributed to catastrophic levels of insecurity, disease and deprivation.60 United Nations agencies failed to provide aid as famine killed tens of thousands in Cambodia between 1979 and 1984: these Cambodians went unrepresented at the UN, while the deposed and exiled Khmer Rouge leaders continued to act as Cambodia’s official representatives. A catalogue of all such incidents of harmful exclusion would be long and dispiriting.61 When people are included in decision-making they can raise their voices and demand assistance, redress or justification for their harms and grievances. They can make sure that their interests are considered rather than systematically ignored or damaged. They can hold decision-makers to account, exposing problems such as corruption and incompetence. As a result, those included in decision-making will be less vulnerable to exploitation and oppression. When people who face injustice are included in decision-making, they can also make decision-makers aware of their own abilities and efforts to address injustice, thereby enabling institutions to work with rather than against them. This dynamic has been identified in several areas of global governance. For instance, much contemporary literature on economic development highlights the importance of bringing poor people into the design of assistance, because poverty                                                 58 See, among others, Bohman, 2007; Fraser, 2009; Young, 2000, 2007. 59 Dingwerth, 2005; Khagram, 2000. 60 Branch, 2011; Dolan, 2009. 61 As I will discus in Chapter Four, however, many global governance institutions have adopted mechanisms to be more responsive to those people they affect, and have opened up to greater scrutiny and accountability by civil society organizations.   30 is significantly linked to social and political powerlessness.62 Deveaux therefore argues that if poverty is understood as “a condition of social, economic, and political powerlessness that manifests as chronic vulnerability and disadvantage, then it will matter very much whether poor communities have a central role in determining their own needs and priorities, and in helping to devise reforms.”63 Similarly, in the area of humanitarian protection, Baines and Paddon have shown how humanitarian actors that aim to protect civilians can increase people’s insecurity by undermining their ability to protect themselves.64 The authors thus argue that the design of humanitarian protection should begin by engaging with civilians to understand their self-protection strategies.  Finally, inclusion and justice are linked because individuals, groups and societies have different understandings of justice. For that reason, Tully argues that justice is best determined through democratic practices of deliberation, consultation and accommodation rather than through “monological” acts of reasoning or law-giving.65 Similarly, Fraser argues for a shift from monological to dialogical approaches to justice, since dialogical approaches “treat important aspects of justice as matters for collective decision-making, to be determined by the citizens themselves, through democratic deliberation.”66 The ability to renegotiate the aims and standards of governance is critical in situations where deep agreement on principles of justice is lacking. This is certainly the case in global politics. Conceptions of justice differ between societies, and to impose an unwanted conception of justice on people can produce great injustice.67                                                 62 For World Bank publications on the centrality of empowerment to addressing poverty, see Alsop et al (2006), or its three-volume study based on interviews with 60,000 poor individuals in many countries (Narayan and Petesch, 2002). 63 Deveaux, 2013, 13. 64 Baines and Paddon, 2012. 65 Tully, 1995. 66 Fraser, 2009, 28. 67 At the same time, as Walzer (1994) argues, we can have culturally-specific and “maximalist” understandings of justice, but still be able to identify “minimalist” moral principles on which we can agree, and this agreement can be expanded on through ongoing interaction and collaboration.    31 Conversations or negotiations over justice are often controversial and, where differences exist, may be difficult to resolve. As Sen (2009) argues, it can often be easier and more productive to seek agreement on what particular injustices are and how to address them, rather than seeking agreement on and pursuing a final and “just” set of institutional arrangements or social relations. To given an example from my own work, in focus group discussions with survivors of conflict in Uganda, several groups shifted from individual claims that they each deserved assistance and reparations, to group consensus on those categories victims who ought to be prioritized (people with permanent disabilities, women who had been abducted by the Lord’s Resistance Army and who bore children while in captivity, those whose family members were killed, and, above all, orphans and widows).68 In short, while discussants did not agree on a single policy or normative principle, they did agree on the most pressing injustices that ought to be addressed. While it may be easier to agree on existing injustices than on a theory of justice we should all follow, I do not argue that identifying injustices is uncontroversial. Relatedly, there will often be disagreement about who ought to be included in decision-making because they face injustice. However, in many cases we will be able to come to a rough consensus. Moreover, as I will argue in Chapter Four, there are specific categories of people who are the “intended beneficiaries” of certain global governance regimes and who ought to be included in decision-making. Such intended beneficiaries include refugees, victims of humanitarian disaster and victims of international crimes. I will also suggest practices and contexts that make their inclusion more likely.  Inclusion, I have argued, can help groups address injustices they suffer. In this way, inclusion is instrumentally related to justice. Situations of injustice can also undermine democracy, and the capacity of democratic processes to be inclusive.69 When individuals or groups are oppressed and disregarded, then formally democratic processes and institutions may maintain or exacerbate these injustices. Furthermore, people who suffer from impoverishment, hunger, violence, social                                                 68 See Tenove, 2013b, 22-23. See Chapter Six for views of focus group discussants on other issues. 69 On this argument, see Bohman, 2005; Young, 2000. Similar arguments have been made about the relationship between democracy and human rights (Gould, 2004; Habermas, 1996).   32 stigma, or other adversities, will be constrained in their democratic agency, even if mechanisms of democratic participation are formally open to them. Unjust relations or a lack of basic capacities can therefore deform democratic processes, excluding those who ought to be included. This situation can result in a vicious circle of deepening injustice and declining democracy. A virtuous circle is also possible. When governance decision-making is made more inclusive of those who suffer injustice and vulnerability, governance can address those injustices and vulnerabilities and improve people’s capacities to act as democratic agents. Thus, as Young argues, a key task for democratic thought and practice is to try to break vicious circles and promote virtuous circles of democracy and justice.70  I return to opportunities for global governance institutions to promote such virtuous circles in Section 2.4.  2.2 Inclusion and the Demos Problem in a Globalized World While inclusion is instrumentally linked to justice, it is inherent to democracy. The fundamental normative conviction of democracy is that the people should rule themselves. However, the meaning of this statement differs significantly in an era of pervasive transnational interdependency. Under these conditions, how should we determine and justify boundaries of democratic inclusion?  To do so, we must confront limitations imposed by the conventional understanding of democracy as a form of government pursued by the inhabitants of a territorial state. In most modern Western political thought, as well as international law and diplomacy, people are divided into separate and self-ruled territories. The Peace of Westphalia, the origin of this system in myth if not in fact, held that a state should be free from outside interference into its territory (external sovereignty) and that the state government should be the highest authority within its territory (internal sovereignty). This idea of a unified sovereign with control over a territory and a people did not change when the government of many states shifted from unelected rulers to elected                                                 70 Young, 2000, 35.    33 representatives. Popular sovereignty, the rule of the state by its people, became the regulative ideal even if it was often violated in practice. The institutions and philosophies of democracy and of the international order have thus developed together and are deeply entwined.  In the last two decades democratic theorists have begun to question whether the membership of a democratic polity (“demos”) must remain aligned with the borders of states. If that assumption is changed, we must reconsider who should constitute the demos and how to decide this inclusion in a democratically legitimate way. In an influential paper, Whelan (1983) referred to these issues as the “boundary problem” in democratic theory. He concluded that “democracy, which is a method for group decision making or self-governance, cannot be brought to bear on the logically prior matter of the constitution of the group, the existence of which it presupposes.”71 Dahl concurred, claiming “we cannot solve the problem of the proper scope and domain of democratic units from within democratic theory.”72  Democratic theorists have nevertheless continued to debate the problem. I will describe key contributions to the debate and propose a synthesis. To do so, I interrogate each element of the fundamental democratic conviction that the people should give rules to themselves. I therefore address three questions: What rules or decisions should be made democratically, what kinds of groups can act as a “people” capable of giving themselves rules, and what types of contributions to rule-making count as democratic? Ultimately, I will argue that we must shift to look at systems – rather than states – as the essential unit of democracy.  What rules should be made democratically? Democratic theorists have frequently argued that we should be included in decisions that affect us. At the core of this precept is concern about incongruence between rule-making and rule-                                                71 Whelan, 1983, 40. In fact, we regularly impose “boundaries” around democratic inclusion within states, such as when we deny opportunities to vote or run for office to people such as children, prisoners or holders of foreign birth certificates. But such exclusions from democratic participation are themselves exposed to reconsideration and reform by democratic processes. More troubling are those decisions that set the boundaries of democratic inclusion with no opportunity for revision. 72 Dahl, 1989, 207.   34 taking.73 A mismatch between inclusion in decisions and affectedness by them violates self-determination, since those who follow rules but do not help make them are not giving rules to themselves. Similarly this mismatch can violate political equality, since people will be divided into the categories of those who make rules and those who take them. Assessments of affectedness should therefore play an important diagnostic role to indicate where inclusion in decision-making is prima facie warranted. There is, however, considerable debate in democratic theory about the kinds of affectedness that generate the need for inclusion. For instance, while some conventional analyses focus entirely on inclusion in state legislative decision-making, feminist and participatory democrats have argued that people should be included in decision-making in many sites of rule-making, from work-places to state bureaucracies to civil society organizations.74 Democratic theorists who examine the issue at a transnational level have taken quite different positions on the kinds of affectedness that require inclusion. Some defend the “all affected interests” principle – that anyone whose interests will probably be affected by a decision should have a say in making it.75 Others look for more significant affectedness. For instance, Fung argues that those with “regularly or deeply affected interests” should be included in decision-making.76 Gould proposes that democratic inclusion is required in transnational decision-making that affects people’s human rights.77 Fraser proposes the “all-subjected principle,” according to which people deserve inclusion in decision-making according to “their joint subjection to a structure of governance that sets the ground rules that govern their interaction.”78 Abizadeh endorses this all-subjected principle and equates it with being “subject to a coercive and symbolic political power.”79 Schaffer proposes a more stringent                                                 73 Held, 1995, 16-17. 74 See, among others, Barber, 2003; Pateman, 1970; Phillips, 1991. 75 Goodin, 2007. 76 Fung, 2013. 77 Gould, 2004. 78 Fraser, 2009, 65. Fraser further argues that no standard of affectedness can be decided a priori but must itself be the subject of democratic debate. 79 Abizadeh, 2012, 878.    35 condition still, that democratic inclusion should be extended to those people subject to a law, which he defines as a rule that is “coercive, binding and enforceable on individual citizens.”80 However, as Fung argues, such a focus on legislation is often too restrictive, since there are many other forms of governance that structure our lives, including decisions by administrative agencies, civil society associations and private organizations.81  In much of this literature, there is a tendency to see affectedness as negative, as an imposition and possibly a harm. But many of the rules that affect us and that order our relations with other people are empowering. Democracy entails opportunities for people to propose and generate new rules and not simply protect themselves against them. Furthermore, the rules that structure our lives not only affect our material interests but also our aspirational projects and the ways in which we are regarded by others and by ourselves.82 We must also pay attention to these considerations when we track relations of affectedness. The goal of congruence between affectedness and inclusion faces serious challenges when we attempt to put it into practice, particularly if we are concerned with all forms of affectedness. First, it is often difficult to figure out who was affected by a past decision, let alone predict who will be affected by a future decision. This difficultly is exacerbated when we look transnationally, where chains of causation are complex. For instance, the link between diamond sales in North America and civil war in Africa, or between mortgage policies in the United States and the livelihoods of toreadors in Spain, could not have been obvious at the time decisions were first made.83 Second, whether someone is affected by a rule is a normative question as well as an empirical one. For instance, is someone in a poor country affected by the tax rate in a rich country? The answer to this question not only depends on whether increased taxes will lead to greater funding of foreign development assistance, but also whether we believe someone is                                                 80 Schaffer, 2012, 338. 81 Fung, 2013. 82 On the politics of recognition and its relationship to other social goods, see Fraser, 1995; Taylor, 1994. 83 On conflict diamonds see Campbell (2012). On the USA’s financial collapse leading to Spanish economic hardship and the decline of bull-fighting, see The Current, 2013.    36 “affected” by the failure of wealthy people to aid the poor.84 Third, the link between affectedness and inclusion can lead to a recursive spiral, since who is affected by a decision will vary according to the decision’s outcome, and the decision’s outcome may be determined by who is included in making it. The result, argues Goodin, is a dilemma in which we are “unable to tell…who is entitled to vote on a decision until after that very decision has been decided.”85  A partial solution to these challenges, which I develop further below, is to place greater emphasis on inclusion in situations of significant and problematic affectedness. It makes sense to prioritize inclusion in decision-making sites where symbolic and coercive power is concentrated, as per Schaffer’s argument, without necessarily limiting our focus to the creation or enforcement of laws. For example, we are significantly affected by decisions by a factory that pollutes our drinking water as well as by the criminal laws our state enforces, and decision-making processes that govern both these issues ought to include us. We must also follow decisions by the International Astronomical Union about the names of stars, but these decisions are unlikely to be problematic for us and our inclusion is therefore unimportant.  One important implication of this focus on serious and problematic affectedness is that, in some circumstances, some people will have greater claims for inclusion in the same decision-making process than others. For instance, in the example above, those people whose drinking water will be affected by a factory may have a greater claim to inclusion on regulatory decisions than fellow citizens whose water is unaffected. That is a controversial approach, since democracy is often associated with the principle of equality. Certainly, democratic governance ought to treat people as moral equals, and a democratic polity ought to promote a general equality of opportunity for political inclusion of its members.86 However, as I argued in Section 2.1, we have reasons to emphasize the inclusion of those people who suffer injustice because of governance decisions. Furthermore, if we see democratic agency as a means to address problems,                                                 84 For more on this argument, see Schaffer, 2012, 325. 85 Goodin, 2007, 52. 86 For considerations of democracy as entailing moral equality and opportunities for political inclusion, rather than equality of political influence, see Christiano, 2003; Dworkin, 2003.   37 and not simply as a right to be distributed equally, then we will emphasize inclusion of those who share serious problems.87 These considerations will be expanded below. In sum, affectedness generates a prima facie democratic claim to be included in decision-making, in order to maintain one’s individual self-determination. The more significantly one is affected, the stronger is that claim. It is clear that most people today are significantly affected by decisions made beyond their state borders. This situation prompts us to look for appropriate inclusion in rule-making, including transnational rule-making, and to seek to understand how individuals can feasibly be included in large-scale decision-making.  What kind of group or “people” can act democratically?  Democracy is conventionally seen as a state regime type. As a result, the “people” who give themselves rules are often equated with the citizenry of a state. However, as Abizadeh (2012) persuasively argues, we cannot simply accept the democratic legitimacy of this collectivity. Ethnic or cultural nations cannot be considered “pre-political” groupings that require no legitimation, since the membership and qualities of nations are produced and maintained through continuing political decisions. These political decisions can affect those produced as “insiders” and as “outsiders,” and both groups should arguably have a say in making such decisions. Furthermore, there can be no democratic process that can once and forever determine the boundaries of a demos. The ongoing decisions and actions of a democratic polity may significantly affect outsiders and may make it intolerable for some to continue as insiders. Abizadeh thus argues that we must not found democracy on a fiction of a demos with fixed and legitimate boundaries. While the nation-state cannot be accepted as the natural or pre-political unit of democracy, the importance of nation-states can be defended on functional grounds. Those who make this                                                 87 The emphasis on democracy as collective problem-solving is at the heart of Dewey’s influential approach (Dewey, 1991; Westbork, 2010). Dewey argued that individuals who share a problem and who seek to address it through their own actions are the basic associational unit of democracy, which he called a “public”. The public, in short, is “an instrument through which problem-solving is socially coordinated” (Cochran, 2010, 325).   38 argument are usually concerned with practical considerations and, as I will argue, with possibilities for collective self-determination. Song (2012) emphasizes these issues in her defense of the state as the appropriate demos. She does not dispute the democratic principle that there should be congruence between rule-making and rule-taking, but she nevertheless argues that the state is the fundamental social and institutional unit of democracy. States are necessary to provide the conditions that enable democracy, which she defines as “a collective decision-making process subject to the condition of equality.”88 She defends this proposition with several arguments. First, she claims that states can protect rights and liberties needed for individuals to participate democratically, such as freedom of speech and assembly. Second, she argues that states can promote conditions under which these rights and liberties can lead to equality of political influence, such as access to information and some limits on economic inequality. Third, Song joins Rousseau and Kant, among others, in arguing that the size of a polity affects the quality of democracy. Polities that are too large cannot sustain meaningful participation by citizens.89 Fourth, she contends that following the principle of affected interests would lead to very unstable demoi, since they would shift according to the issue being addressed. This indeterminacy about who should be included in decision-making would mean that “the lion’s share of democratic contestation would likely be devoted to determining who ought to have a say rather than to the policy issues at hand.”90  These arguments are based on empirical claims about the institutional requirements of democracy. In making them, Song ignores the actual diversity among states. It’s not clear that individuals in states with hundreds of millions of citizens have more influence over state                                                 88 Song, 2012, 43. 89 Similarly, Dahl (1999) argues that stretching democracy beyond the state will lead to people taking positions on increasingly complex issues about which they are increasingly poorly informed, and that individuals’ contributions to decision-making will be further watered down as the polity size increases. However, Dahl has also pointed out that there will always be a tension between maximizing “citizen effectiveness” as political participants, and maximizing the capacity of a political system to act on collective interests, and that no single ideal size for a democratic polity exists (Dahl and Tufte, 1973). 90 Song, 2012, 56.   39 government decisions than would citizens in transnational demoi. Moreover, some states have greatly suppressed political rights and generated immense inequality among citizens. Indeed, the capacity for states to trample rights and equality helped generate much of the global governance that exists today, including the creation of international human rights law and international criminal tribunals in the wake of World War Two. Song is therefore only referring to highly-developed liberal democratic states, and perhaps ideal versions of these. Our world is not composed entirely of such states. Furthermore, if we want to theorize based on ideals, we might also want to look at the capacity of ideal villages, tribes or voluntary associations to promote rights and equality.  Song makes a further argument for the nation-state as a demos that deserves particular consideration. She claims that states can best generate the solidarity among members that is necessary for democracy. In doing so, she follows those who argue that the members of a demos must share values, language, identity, or other characteristics that are forged through a bounded community’s association over time. For instance, liberal nationalists like Rawls and Kymlicka claim that liberal-democratic virtues can only be achieved in polities with significant consensus on political values and institutions.91 Solidarity – or “affectivity” as some call it92 – is arguably necessary for several reasons. Shared values, and perhaps a shared language, may be necessary for people to build mutual understanding and agreement on issues.93 Furthermore, shared identity or moral concern is necessary so that “people give each other’s interests some noninstrumental weight in their practical reasoning.”94 Doing so makes it possible for individuals to consider legitimate those decisions that promote the interests or justice claims of other people.95                                                 91 Kymlicka, 2006; Rawls, 1999. 92 List and Koenig-Archibugi, 2010. 93 Calhoun, 2002; Habermas, 2001; Kymlicka, 2001. 94 Song, 2012, 27. 95 As List and Koenig-Archibugi (2010, 82-84) note, the debate over the importance of affectedness and solidarity in determining the membership of demoi is clearly illuminated in the contrasting positions of Held and Kymlicka on “communities of shared fate.” Held argues that people who are affected by problems that cross borders can be seen as communities of fate whose lives are bound together and who   40 Solidarity is important on functional grounds, I would argue, to reconcile individual and collective self-determination, such that individual members of a polity can see collective decisions as their own decisions. Many forms of solidarity can cause individuals to see themselves as part of a collective. These include shared history and identity, but also shared participation in important symbolic or affective events like community celebrations. Such forms of solidarity are not limited to democracies. Indeed, twentieth-century fascist regimes went to great lengths to convince individuals that their fate and freedom depended upon the fate and freedom of their nations.  Democracy provides two unique means for fashioning collective self-determination, and it does so by promoting collective self-determination through individual self-determination. One is political equality among members of the demos. Political equality among members makes collective decisions more likely to reflect an equal consideration of all.96 Thus Rousseau famously argued that for individuals to be free at the same time that they adhere to the polity’s rules, they have to act as political equals who share in the polity’s collective will.97 In other words, the “will” of the polity is formed from the wills of all citizens. The second democratic means to reconcile individual and collective self-determination is through communication and reciprocal reason-giving. Such processes bring citizens’ perspectives into deliberation that in turn                                                                                                                                                        therefore need to seen “not only citizens of their own communities, but also of the wider regions in which they live, and of the wider global order” (1998, 241). Kymlicka challenges this notion, claiming that “what determines the boundaries of a 'community of fate' is not the forces people are subjected to, but rather how they respond to those forces, and, in particular, what sorts of collectivities they identify with when responding to those forces. People belong to the same community of fate if they care about each other's fate, and want to share each other's fate” (2001, 319-20). 96 Dworkin (2003) argues that democracies don’t require that all citizens have equal power in making decisions or equal influence over the outcome of decisions – indeed, we often want people we have elected or people with greater expertise to have more power and influence. Political equality on his account means that decisions are made in a way that treats all citizens with equal moral concern. 97 Rousseau, 1978.   41 informs collective decision-making.98 At the same time, these processes make it possible for decision-makers to explain and justify decisions to those who must follow them.   Song, following liberal nationalists, argues that the nation-state is best able to promote the conditions for solidarity and for communication and public reason-giving. But once again, those are empirical arguments that can be disputed. States can provide profoundly un equal opportunities for political influence or consideration, and may or may not encourage widespread and inclusive public deliberation.  In contrast to Song, Fung proposes a model in which the degree of affectedness is the primary determinant of demands to be included in collective self-determination. He writes:  This view envisions many overlapping circles of inclusion. Associated with every organization — government or other — is a set of individuals whose important interests are regularly (or deeply) touched by the decisions of that organization. Under the principle of affected interests, all individuals in that set should have some capacity to influence the decisions of that organization. Each individual is a member of many such sets because he is touched by the decisions of many organizations. Furthermore, these circles of inclusion around organizations and individuals must change over time as those organizations and individuals evolve.99                                                 98 Habermas notes that the idea of self-determination – that citizens should “be able to understand themselves also as authors of the law to which they are subject as addresses” – was understood in social-contract theories according to “the categories of bourgeois contract law, that is, as the private free choice of parties who conclude a contract,” while on a discursive or deliberative model of self-determination, “the legal community constitutes itself not by way of a social contract but on the basis of a discursively achieved agreement” (1996, 449). 99 Fung, 2013, 251.   42 These circles of inclusion extend across state borders.100 While this model emphasizes the congruence between inclusion and affectedness, Fung pays much less attention to the need for collectivities to enact decisions. Furthermore, as I will discuss below, he accepts that inclusion can be achieved through very diffuse and low-intensity forms of influence.  To recap, when we question the kind of group or people whose members can give themselves rules, we must focus on both individual self-determination (can individuals influence rules that affect them) and collective self-determination (can people act collectively and see collective decisions as their own). The latter consideration leads us to examine conditions or functions for collective will-formation, including group solidarity, political equality and processes of communication and reason-giving. The state may support these conditions and functions, but state institutions may also undermine them. We must therefore hold open the possibility that other political institutions, including global governance institutions, can advance conditions necessary for democracy. What influence should people have over collective rules?  Democracy requires that people give rules to themselves. We must therefore ask what counts as sufficient individual influence over collective rule-making. This question has important implications for the kind of polity that can act democratically. If people need extensive, direct influence over collective rules, then only very small and egalitarian polities can count as demoi. By contrast, if very diffuse and indirect influence is sufficient for democratic inclusion, then we can consider large, complex polities to be democratic.  Democratic theorists have taken different positions on this question. Some continue to focus on electoral representation as the sine qua non of democratic participation.101 Schmitter and Miller both argue that states with significant overlapping interests could include each other’s                                                 100 Similarly, Bohman proposes that we abandon the search for the appropriate demos to capture democratic activity, and instead turn to a system of multiple, dynamic and overlapping demoi that address different decision-making areas (2007). 101 Goodin, 2007; López-Guerra, 2005. Though when Goodin (2010) turns to the development of global democracy, he emphasizes the importance of democratic practices other than voting.   43 representatives in their legislatures, either by giving them a voice in deliberation but no vote or – in Schmitter’s proposal – by giving them some votes.102 Others claim that democratic participation in decision-making entails a broader range of activities. Abizadeh argues that all members should be able to “engage in nonviolent practices of expression, contestation, negotiation, justification, and collective decision making.”103 Tully argues that democratic participation should not be limited to peoples’ attempts to influence the decisions of institutions that act on them, but should also include cooperative action among members of a demos.104 Those who propose multiple, overlapping and shifting demoi take an even broader view of democratic influence. Fung gives the clearest illustration of this approach. He suggests that those affected by a decision may influence it in four different ways: by direct actions (e.g. advancing a position in the decision-making process), by indirect actions (e.g. voting for a representative who will participate in decision-making), and by passive means that require no action at all, such as when one’s interests are promoted by existing laws (e.g. minimum wage laws influence employers on behalf of workers) or by social mores and habits (e.g. widespread belief in human dignity influences employers to treat workers humanely).105 Fung states that people with affected interests may be included in decisions through any or all of these forms of influence. Considered this way, the inclusion of those affected by decisions becomes much more plausible, though it may not appear to some as meaningful inclusion at all. Indeed, it is just such a watering-down of democratic participation that concerns many critics of global democracy. In Miller’s estimation, many forms of global democratic citizenship are a “ghostly shadow” of citizenship properly understood.106                                                  102 Miller, 2009; Schmitter, 1997. 103 Abizadeh, 2012, 881. 104 Tully, 2013. 105 Fung, 2013, 254-258. 106 Miller, 2011, 2. See also Chandler, 2011.   44 However, such concerns about inadequate inclusion in decision-making are commonly raised in discussions of democracy within states as well. The citizen who votes in a national election has a negligible effect on the electoral outcome, and many citizens do not even participate in this low-intensity means of influencing government. Recognizing this fact, democratic theorists have identified many different forums where individuals can participate in democratic decision-making in both high-intensity and low-intensity ways.107 Moreover, the idea that every member of a demos should actively influence every decision that affects them is unnecessary as well as unrealistic. Instead, as Warren argues: At any given point in time, individuals should be able to activate those memberships that are problematic in ways that they can exert influence over the problematic effects—through argument, deliberation, protest, opposition, voting, bargaining, and so on. What this image of democracy suggests is that individuals should be able to divide and distribute their political labors in such a way that they can maximize self-determination.108 This argument aligns with my suggestion above that more significant and problematic affectedness generates a greater democratic claim to inclusion.  For a people to give themselves rules, not only must individuals be able to influence decisions but the collective itself must be able to take action. Collective self-determination thus requires that a demos can make and enact decisions. For some problems, collective action requires that the demos impose legitimate coercion on its members.109 States often have considerable ability to make and enact decisions and to impose coercion, making them important units of democratic activity. But there is wide variation among states in their capacity to make and enact decisions, and high capacity states may be undemocratic. Moreover, other associations can make and enact decisions, including civil society organizations, villages, online communities and bureaucratic                                                 107 Fung, 2006; Mansbridge, 1999a; Warren, 2002, 2009. 108 Warren, 2010, 51. 109 Mansbridge, 2012.   45 agencies. So, too, can the international community. However, a purely notional group cannot. For instance, all redheaded people cannot make and enact decisions together unless new social bonds and institutional capacities are created.  There will often be a tension between the capacity for individuals to influence decisions and the capacity for groups to make and enact them. If every member of a group participates in a discussion over an issue until they all agree on a single action, we may count this consensus decision-making as having a very high level of individual influence. But this approach to decision-making becomes unworkable as group size and issue complexity increase. Most collective goods we desire in complex societies cannot be achieved in this manner.  In sum, there are many ways that individuals can influence decisions that affect them, varying in the intensity of participation and the impact that an individual can have on collective decisions. There will be tensions or trade-offs between individual and collective self-determination. What counts as adequate influence in a democracy is highly contested among theorists, but all agree that the election of representatives to state government is but one of many mechanisms. Rather than seek the single appropriate form of influence that individuals should have over all decisions, it makes more sense to be agnostic about the form of inclusion, provided that people are able to become aware of and influence decisions that they deem most important or problematic. We must therefore examine the capacity for individuals to act through many different mechanisms in order to influence decisions at different decision-making sites.  Conclusions on the demos problem: maximizing inclusion in global politics The debate over the boundaries of democracy is primarily a debate about when inclusion is required and what form it should take in order for governance to count as democratic. I will summarize some of the key claims and apply them to issues of transnational democracy. First, democracy requires that there should be some congruence between the rules or decisions that shape peoples’ lives and their ability to influence those rules and decisions. It is clear that most people today are significantly affected by decisions made beyond their state borders, which   46 prompts us to look for appropriate inclusion. It also prompts us to question whether such inclusion can be achieved if we treat the state as the fundamental democratic unit.  Second, democracy aims to promote both individual and collective self-determination. Individuals must not only have the opportunity to influence collective decisions but must also be able to act collectively and see collective decisions as their own. Collective will-formation and decision-making may be achieved more easily in certain kinds of groups or polities, such as those with strong ties of solidarity, those that are capable of promoting equality and reason-giving, and those with sufficient institutionalization to enforce decisions. The nation-state, in the ideal, possesses such qualities and has high capacity for collective self-determination. In reality, however, many states are deficient in collective will-formation and decision-making. People belong to other collectivities that can promote congruence between affectedness and inclusion, and which are also capable of collective action.  Increasing global interdependence affects the distribut