The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case

Abstract For many political observers the successful creation of the International Criminal Court (ICC) came as a surprise, as major powers, in particular the United States, had opposed the plans for the ICC. Moreover, the institutional design of the ICC entails enormous sovereignty costs for states but only uncertain benefits. An analysis of the negotiations suggests that the court's successful creation can be attributed to persuasion and discourse within negotiations, that is, a shift in states' interests. The article develops a theoretical model of institutional change that defines the conditions under which persuasion and discourse can affect collective decision making. In particular, this study attempts to show that if (traditionally) weaker actors alter normative and institutional settings of negotiations they can further the chance of persuasion and discourse.