Verdictive Discourses, Shame and Judicialization In Pursuit of Freedom of Association Rights

Verdictive discourses, shame and
judicialization in pursuit of freedom of
association rights

Edward Weisband

Judicialization, shame and the transaction costs of accountability

In recent years, questions have arisen over the meanings and significance of concepts such as ‘juridification’, ‘judicialization’ and ‘legalization’ (Hudec 1992). 1 Debates occur within the domains of several academic fields including the sociology of international law. At issue is the degree to which international law and judicial frameworks ‘guide’ the political, social and normative behaviors of agents within sovereign states and, in turn, the extent to which the cultural and socio-economic features of domestic society influence international legal norms. This chapter focuses on a piece of this puzzle, on how the statutory discourses and judicial procedures of a multilateral monitoring regime intersect with the domestic laws and practices of sovereign states.

In particular, this chapter examines the dynamics of ‘judicialization’ by means of which an administrative entity, namely, the Committee on Freedom of Association (CFA), established under the auspices of the International Labour Organization (ILO), monitors ILO member states in ways that approximate legal proceedings with respect to the freedom of association rights of workers and their associations. Since the 1950s, the ILO supervisory system that presides over the monitoring of core international labor standards has maintained a special complaints structure with respect to freedom of association rights. The CFA is at the core of this administrative framework. But more than this, the CFA operates as a judicial tribunal charged with the responsibility for determining the validity of the complaints brought before it. Consequently, it functions replete with the judicialized instrumentalities of a court of law: with the mandate to review complaints involving alleged ILO member state violations; with the capacity to evaluate the facts relevant to each complaint; and with the power to define jurisprudential implications of each complaint through legal inferences contained in reports officially promulgated as case law. Since the CFA is an agency of the ILO Governing Body, it mirrors the tripartite governance structure of the ILO comprised of workers’ and employers’ associations as well as of government delegations. The CFA is composed of nine individuals, three from each of the major groups of delegations (employers, workers, governments), but all of whom serve in their personal capacities to insure the impartiality of CFA deliberations appropriate to the judicialized functions it performs.

The legalization of human rights that is under review in this chapter has entailed a process of transmutation during which the CFA has become ‘judicialized’, and, as a result, endowed with the features of judicial authority. We look first at how complaints deemed acceptable or ‘receivable’ by the CFA are distributed among ILO member states and we consider various explanations for what we find is the highly skewed or narrow distribution among a relatively few ILO member states. Additionally, we discover that the CFA, in its officially published findings, employs specific sets of coded scripts to express its opinions. Discourse analysis thus reveals that CFA opinions adhere to a performative language rather than one that remains merely constative or oriented to statements of fact. CFA findings are designed to perform actions over and beyond their outline of the facts in any case. And these actions take the form of verdicts: CFA opinions comprise verdicts; it uses particular forms of verdictive language or vernaculars to communicate its findings. This leads us to suggest that the application of verdictive vernaculars is a defining dimension intrinsic to the very character of judicialization itself. Judicialization, empirically established, analytically interpreted, relative to normative jurisprudence in the field of international human rights, workers’ rights and international labor law, thus together provide the overall focus of the analysis here.

Judicialization, as conceived in the present study, involves a kind of value-added conversion through which ‘ordinary’ institutional, bureaucratic and administrative procedures become invested with the spirit, majesty, and appurtenances of judicial rulemaking. Judicialization infuses non-legal modes of collective decision-making and dispute settlement with the modalities of juridical opinion and judicial due process. 2 The dimensions of judicialization and of judicialized procedures include at least five features: the incidence of formal legal opinions; appellate reports and statutory decisions; cumulative jurisprudence; the presence of judicial criteria governing forensic rules of evidence; and the juridical ‘standing’ of plaintiffs or complainants and defendants. 3 A bone fide momentum toward judicialization tends to strengthen organizational capacities for accountability on the part of those subjected to its influences. The transformation of rivals, enemies or disputants into ‘plaintiffs’ or ‘complainants’ (first-party) and ‘defendants’ (second-party) as a consequence of judicialized monitoring procedures reinforces the ability of monitoring structures or accountability regimes (third-party) to reduce the risks of conflictual, unpredictable or other substandard behaviors. External actors, in particular, civil society organizations (fourth-party), become empowered by receiving information based on third-party procedures. Thus they can respond through channels and in ways that might not be available to them in the absence of such judicialized procedures. Thus the interests of the general public (fifth-party) may be said to be served as the result of this textured unfolding of judicialized monitoring, transparency and verification.

Herein is the key to the transaction cost efficiencies of any accountability regime and a reason why the promotion of international human rights, on the one hand, and judicialization of multilateral accountability frameworks, on the other, so often march progressively hand-in-hand. A single heuristic assumption anchors transaction cost economics as an analytical perspective; cost efficiencies linked to reduction of risks during competitive exchanges provides a basis for explaining why and when firms rather than markets serve as the indispensable coordinators of economic activity (Williamson 1985, 1996; Moe 1995). Students of international organization have recently demonstrated that multilateral regimes and a variety of transnational institutions can offer similar opportunities for transactional efficiencies (Abbott and Snidal 2000). Here too, analytical relationships link cost efficiencies with the reduction of risks seen to arise whenever autonomous, antagonistic or sovereign agents interact in unpredictable ways. Such risks include political and social as well as economic risks, including defection from specified legal standards as well as deceit with respect to concrete normative obligations. In the face of these and other such dysfunctional possibilities, efficiencies accrue from the presence of transnational legal and normative standards and thus from the treaties, conventions and judicialized mechanisms that support them. This is especially so if they reinforce social ‘ordering’ and overall predictability by making dissimulation less probable. In this view, international legal norms, institutions and regimes serve the interests of transnational sociality by sustaining those processes that inhibit, discourage or punish corrosive disengagement from normative and statutory expectations (Keohane et al. 2000).

This logic supports the case that the dynamics of legalization and the structures of judicialization, especially in the realm of international human rights, are mutually supportive. It is an argument grounded in notions of accountability (Fox and Brown 1998; Fox 1997; Risse et al. 1999). The nature and impact of global accountability remains an insufficiently examined vector in gleaning transactional cost efficiencies through transnational multilateral regimes (Alston and Crawford 2000; Clark 1999; Chamberlain 1999; Thorne 1998; Rose-Ackerman 1997; Weiss 1997; Wade 1997; Buvenic et al. 1996). Accountability may be said to emerge through the pursuit of risk-reduction strategies, mechanisms and procedures that include but are not limited to the following: auditing; reporting; monitoring; benchmarking; and transparency procedures. In recent years, global accountability structures and regimes have proliferated. 4 This development has been applauded by those who suggest that legalization and judicialization work to suppress the risks of defection from international human rights standards and laws by means of auditing and reporting requirements as well as through supervisory, monitoring or verification procedures, etc. In this view, international human rights laws and the judicialized regimes that monitor them inhibit, discourage or punish derogation of legal and/ or normative expectations and do so on a more efficient basis than is otherwise possible. Legalized/judicialized forms of human rights accountability are thus said to be embedded in reputational risk-reduction strategies designed to register defections and deceit that might, for example, in the case of workers’ rights, lead to competitive forms of labor devalorization and the proverbial ‘race to the bottom’ across competing labor markets.

The case study below investigates the extent to which the ILO CFA as an accountability regime effectively identifies its worst violators, as indicated by its history of received complaints. Our analysis demonstrates how the ‘use’ of shame in instances of alleged repeat violations or recidivism supports a case for judicialization. This argument on behalf of judicialization and the enforcement of compliance in the name of accountability is hardly beyond controversy. Judicialized discourses based on notions of non-compliance and enforcement provoke grave suspicion in some quarters. One set of concerns, for example, focuses on the deadening impacts of universalized legal vernaculars. The importance of cultural or value relativism is stressed by those, for good reasons and ill, who seek to temper the universalism of Western human rights legal strictures with indigenous values. But the importance of nurturing localized social movements or of sustaining marginalized voices across highly diverse political, social and economic conditions, need not run counter to the goal of promoting international human rights by means of those Judicialized frameworks and procedures armed with a capacity to identify agents that are consistently acting in non-compliant ways (Claude 1996). This is especially true when Judicialized human rights procedures promote norms of compliance in ways that are flexible and sensitive to local or ‘domestic compliance constituencies’ (Williamson 1996). The relevance of flexibility, locality and sensibility in the application of legalized human rights standards by means of Judicialized procedures, represents a plea for humility not a call for inaction.

The case may be made, therefore, that Judicialized and legalized forms of international human rights promotion reinforce local constituents, domestic social movements and internal civil society organizations by connecting domestic and international political pressures in ways that strengthen the multiplier effects of what have been called ‘intermestic linkages’. 5 Judicialization galvanizes what Kahler (2000:675), for example, has described as ‘compliance constituencies’, that is, social and political agents willing to submit domestic conflicts to the authority of international judicial tribunals. ‘Transnational dispute resolution’, Kahler argues, ‘empowers compliance constituencies in two ways. It grants access to nonstate actors, expanding the pool of those who may attempt to obtain compliance’. But it also raises the cost of infraction. ‘Governments that do not comply face a new calculus: in addition to the international costs of breaching a legalized commitment, they must now face the much more serious reputational and political costs of breaching legal commitments before their own citizens.’ The certainty of such reputational cost or shame (Weisband 2000), therefore, helps to embolden domestic constituencies and in the long term promotes the legitimacy of Judicialized accountability frameworks.

In the Judicialized contexts influenced by the legalized and juridified authority of multilateral accountability regimes, shame exacts a cost in the currency of reputational risk. Judicialized human rights mechanisms permit shame to be brought to bear against actors that violate their obligations, especially against those who violate standards repeatedly. There is a recursive process that operates here: the greater the certainty that shame will be exerted in instances of violation or offense, the greater the legitimacy of any Judicialized human rights regime; and the greater the legitimacy, the more certain the shame. Imagine a world in which international human rights were no longer legalized by statutory jurisprudence nor surveyed by judicialized multilateral normative regimes. It would be a world without shame. Shame exists in a world of honor, even if it is honor among thieves. Sovereign states and brigands find it important to maintain ‘face’. Once they do, they become entrapped in a process of ‘self-hostaging’ to their code of honor. But a code of honor acts as such only to the extent that it is ultimately sanctioned by the exigencies of shame. It is a matter of a mirror-image: ‘I am what I think you think I am’.

Shame may be viewed from the perspective of those subjected to it as well as from the perspective of the cultural, environmental or institutional contexts in which it arises. In the present study, shame may be assayed against the background of the reputational risks that stem from the loss or the threat of losing ‘national face’ or honor. In the instances relevant here, this threat arises by means of receivable complaints and when domestic transgressions against laws and practices that promote fundamental freedoms and human rights in the workplace are subsequently found by the CFA to have occurred in particular societies at particular times. Shame, in the present context, arises not as a consequence of vague generalized principles, therefore, but in concrete sets of circumstances defined by domestic laws and practices and the realities ‘in the field’ as interpreted by domestic compliance constituencies within the special complaints frameworks established under the auspices of the ILO CFA.

Such judicialized monitoring cuts into the realms of domestic or sub-national society, i.e. into the ‘billiard ball’ of state sovereignty theorized by state realism. But shame also represents a mobilization strategy on the part of compliance constituencies seeking to avail themselves of the services and support of judicialized multilateral frameworks that monitor government policies and practices at home in terms of the obligations they have accepted abroad. In the absence of judicialized human rights frameworks and procedures able to project the ultimate pressures of shame, multilateral obligations become attenuated relative to domestic practices. But more than this, obligations no longer constitute an integral part of the ‘status-identities’ of states. In the absence of judicialized agencies, attempts to invoke shame, especially in cases of egregious non-compliance or recidivism, run the risk of appearing to be no more than capricious acts of condemnation, not the noble instruments of public embarrassment.

Mobilization of shame by means of judicialized agencies and regimes thus represents the ultimate recourse and strategy available to those seeking to advance human rights. This is the broad inference that grounds our emphasis on the relationship between shame and alleged recidivism in human rights accountability. Vernacular practices that ground performative speech acts tend to prevail in discourse communities that adhere to the importance of appearances. In such cultures, identity-status depends not only on what actors do alone but on what they appear to do as well. Institutional and political cultures imbued with a sense of the significance of appearances endow loss of face, reputational costs and the dynamics of honor and shame with a compulsive overlay that helps to explain the need to avoid peer pressures, especially those conveyed by the condemnations of shame. In such normative settings, communal ‘judgment’ represents a powerful weapon in any strategy of mobilization against recidivism.

Under contemporary conditions, the CFA retains a capacity, in the case of some societies more, others less, to provide an ‘ensemble’ of supports for internal compliance constituencies seeking redress. Shame serves the interests of accountability when those without ‘honor’ become sufficiently marked and isolated. Ostracism is a weapon of choice in all purposive communities, especially those committed to the monitoring of ‘appearances’. In the case of core international labor standards, transactional cost efficiencies rise when shame functions in ways that prevent substandard practices in specific labor markets designed to gain trade or investment advantages through the domestic repression of workers’ rights. Freedom of association along with the other core international labor standards, freedom from forced labor, from discrimination, from abusive child labor, all contribute to transactional cost efficiencies in international trade and exchange when monitored by a global accountabilities regime such as the CFA that would deter states or domestic actors from seeking unfair forms of rent or economic advantage by means of departure from prescribed freedom of association laws and practices.

There are, of course, many arguments against the efficacy and effectiveness of shame as a mobilization strategy. States may not care about shame or about saving face in ways that influence their behaviors or policies with respect to human rights. But the recalcitrance of particular agents and their perceived unwillingness to conform to legalized norms or judicialized procedures do not in themselves weaken the potential capacity of multilateral human rights regimes to exercise shame in relation to them. The certainty of reputational cost, the inevitability that recidivism will be identified, the guarantee that shame will be galvanized by judicialized authority, all promote the very trust that emboldens domestic compliance constituencies. What counts is the certainty of multilateral responses to recidivism, the inexorable application of judicialized procedures that lead to varying degrees of identification, rejection and condemnation of recidivists, however such responses become modified according to the necessities and niceties of politics.

Such dynamics extend the legitimacy of multilateral frameworks and international human rights regimes. Herein lies the deductive logic that stands behind the inductive methodology that frames the analytical portion of this chapter: trust, legitimacy, legalization, judicialization, risk reduction and transactional cost efficiency, that is, the values said to endow ‘third-party’ multilateral accountability regimes with influence and effectiveness, operate synergistically to advance the cause of international human rights at the domestic level, if and only if, repeat offenders are subject to the embarrassments of almost certain shame, especially when they engage in systematic and continual violations of institutional obligations. But we shall also argue that the mettle of a judicialized accountability regime purporting to exercise a global purview lies in its capacity to operate across a wide range of regions and thus to galvanize diverse national and sub-national constituencies evenly.

The architecture and empirical analysis of special complaints

Determining the nature and extent of recidivist behaviors represents a central concern of those involved in the pursuit of judicialized accountability. The legitimacy of any global accountability regime stems from its capacity to participate in shame discourses that identify defendants guilty of repeated legal and normative violations. Our focus now turns to institutional discourses grounded in the ultimate threats of shame. We explore how a third-party judicialized regime may impose reputational costs by means of a set of verdictive vernaculars designed in the ultimate sense to bestow shame upon state agents found guilty of recidivist non-compliance (Martin and Simmons 1998). The language of shame is a performative language, one comprised of illocutionary speech acts that vary according to the extent to which shame is being asserted. Semantic variations in relation to shame and alleged recidivism provide an analytical foundation to evaluate how any multilateral accountability regime may operate with judicialized ‘teeth’.

The present case study, therefore, examines patterns of judicialized decision-making undertaken by the ILO CFA within an analytical context shaped by Austinian constructivist categories of illocutionary speech acts and performative modes of discourses (Weisband and Colvin 2000). The ILO CFA represents a complaints regime that converts the ‘identities’ of complainants into plaintiffs and those of offenders into defendants. The CFA is charged with legal authority to make authoritative judicial decisions in instances when it is formally alleged that an ILO member state has failed to remain in conformity with its legal obligations regarding freedom of association rights. Speech act patterns found in CFA judicial findings provide a basis for analyzing how the CFA applies discourses of shame in cases of alleged recidivism (Austin 1965; Searle 1969; Habermas 1984). Since freedom of association rights represent the ‘core of the core’ of international labor standards and workers’ rights, adherence to ratified conventions is crucial to the reputational standing of ILO members. The analytical questions thus raised concern how and in what discursive manner the CFA responds to complaints brought before it. What kinds of illocutionary speech acts does it use, what kinds of verdictive vernaculars does it employ, to demonstrate its judicialized capacity to respond to the complaints brought before it? The CFA adopts a set of verdictive vernaculars that varies according to the kind of institutional pressure and degree of shame it seeks to exert. These vernaculars are amenable to classification in accordance with a taxonomic scheme initially conceived by J.L.Austin and later developed by John R.Searle regarding performative illocutionally speech act practices. Overall, the case study of the CFA provides a demonstration of how a discourse analysis may be empirically applied in ways broadly relevant to accountability regimes in the fields of international law and organization, particularly regarding human rights, environmental affairs and sustainable development.