2. The Spiral Model in:

Jan-Hendrik Kuntze

The Abolishment of the Right to Privacy?, page 7 - 12

The USA, Mass Surveillance and the Spiral Model

1. Edition 2018, ISBN print: 978-3-8288-4034-8, ISBN online: 978-3-8288-6750-5, https://doi.org/10.5771/9783828867505-7

Series: Tectum - Masterarbeiten

Tectum, Baden-Baden
Bibliographic information
The Spiral Model On the occasion of the fiftieth anniversary of the UDHR, scholars Thomas Risse, Stephen Ropp, and Kathryn Sikkink published The Pow‐ er of Human Rights (1999) whose centerpiece was the invention of the spiral model. At that time, the upcoming and rising interests of scholars in norm distribution helped to shape the book. The book aimed to find out whether the principles stated in the UDHR effective‐ ly changed the behavior of states, what were the causes and determi‐ nants of this change and why these norms were implemented to a dif‐ ferent degree by different countries. To explain these variations, they proposed the spiral model. Due to some criticism, the scholars launched a revised edition of the book named The Persistent Power of Human Rights (2013), first published in 2011. The following statements are based on the updated version (Risse et al. 2013: 5–25). The model relies on the basic assumption that states act like indi‐ viduals when it comes to norm diffusion. It presupposes that there is a group’s (or society’s) collective understanding of an accepted behavior (norms and values) and that this socializes the members of this society. By this process of socialization, the group influences the member’s in‐ terests, identity and behavior so that it is in line with the values accept‐ ed by society. Hence, if a state wants to belong to the international so‐ ciety of states, it will have to agree to the norms of this society and have to adopt a rule-consistent behavior through the change of domes‐ tic practices. According to the spiral model, this process of socializa‐ tion can be compartmentalized into five single steps. The first step is called repression and activation of the network. Through national non-governmental organizations (NGOs) or opposi‐ tion groups, information about human rights violations conducted by a repressing state are sent to a transnational network (which are the guards of the international human rights regime) consisting of interna‐ tional organizations (IOs), international non-governmental organiza‐ 2. 7 tions (INGOs) and liberal (rule-consisting) states.1 These norm-pro‐ moting agents initiate an advocacy process in which the repressive regime is confronted with this information, and a lobbying process is set up to blame the repressive state. Hence, the repressing state is pres‐ sured from above and from below, albeit the domestic opposition re‐ mains relatively weak to this point because of possible repression by the norm violating state. Nevertheless, this evokes, second, a How dare you! reaction of the repressive state showing an ongoing refusal to recognize the interna‐ tional human rights norms. This phase is called denial. The transna‐ tional network is strengthened by this denial of international norms and will increase its effort to prove the violating state wrong. Addition‐ ally, in most cases this step gives the opportunity to begin a conversa‐ tion between the repressing state and the international society. As a third step, in order to get rid of the criticism by IOs, INGOs and liberal states, the repressive state will start to make tactical conces‐ sions. In most cases these are low cost concessions like showing greater tolerance for demonstrations or releasing a few political prisoners. But through these concessions inner advocacy groups can become stronger and the pressure to meet expectations grows even stronger. As a result, the boomerang effect eventuates. Fourth, the effort by the transnational network begins to make a dent and gives rise to a policy change (or, also possible, a regime change). At the beginning, the repressive regime begins to sign rele‐ vant international human rights treaties and start to build up and strengthen domestic human rights groups, laws and institutions. With these actions the state shows commitment to human rights norms. This step is called prescriptive status. 1 This procedure is called boomerang effect or boomerang pattern. It was invented by Keck and Sikkink (1998) and has been included in the spiral model. It describes the process of NGOs bypassing “their states and directly search[ing] out international allies to try to bring pressure on their states from outside. This is most obviously the case in human rights campaigns. […] issues where governments are inaccessible or deaf to groups whose claims may nonetheless resonate elsewhere, international con‐ tacts can amplify the demands of domestic groups, pry open space for new issues, and then echo back these demands into the domestic arena” (Keck & Sikkink 1998: 12 f.). 2. The Spiral Model 8 In the last step, the state changes its actual behavior to the point of sustained compliance with international human rights norms and can become a human rights advocate itself. This phase is named ruleconsistent behavior. During all of these steps, there are four modes of social action that the transnational advocacy network can carry out to enforce the devel‐ opment of a repressive state into a state of rule-consistent behavior2 (Risse et al. 2013: 12ff.). First of all, coercion can be used to make a state comply with a norm. Two ways are possible: military and legal enforcement. Whereas military coercion is against the will of the re‐ pressing state, the state subjugated itself voluntarily to a legal regime, e.g., the International Criminal Court (ICC). The more legal regimes that exist in order to enforce human right issues, the more legal mea‐ sures will be applied in place of military force. Second, changing incentives can change a state’s behavior. These in‐ centives can be positive or negative. While negative incentives, like sanctions, are used to punish non-compliance, positive incentives, like foreign aid, can be used to encourage compliance.3 Persuasion and discourse are two other tools of enforcing human right norms. Through arguing, persuasion and learning tactics the re‐ pressing state may be convinced of the legitimacy of the norm. Also, the process of naming and shaming falls into this category. An advan‐ tage of this method is that it is probably one of the most sustainable. On the other hand, a policy change by a repressing state is rarely based on pure persuasion alone. This method is often combined with other measures. Last but not least, capacity building can also be used to enhance human rights norms. This applies mainly to states that cannot exercise full sovereignty over their territory (limited statehood). In this case, all other tools are completely ineffective, because even if the repressive state chose to support human right norms, it could not comply with these norms (involuntary non-compliance). 2 The modes of social action have been extended in the revised approach. The original framework employs mainly discursive measures. 3 The effectiveness of positive incentives is contentious. In one of the first empirical studies on this topic, Nielsen and Simmons (2015) can find no evidence for rising benefits after the ratification of human rights treaties. 2. The Spiral Model 9 Furthermore, Risse et al. (2013: 16ff.) outlined certain scope con‐ ditions under which compliance with human right norms is more like‐ ly. This was done in the revised version due to the fact that the scholars had to explain why big and powerful states, like China and the USA, in addition to other states, still do not comply fully with human right norms. These five scope conditions are: regime type, state capacity, rule implementation, material vulnerability and social vulnerability. First, it matters whether the relevant state is a democracy or not. Non-democratic regimes are less likely to comply with human rights. Second, it is an issue if the statehood is consolidated or limited. As mentioned above, limited statehood can be one of the reasons why a state does not implement certain norms. Third, a decentralized rule implementation (which means that for an implementation of norms and rules different, decentralized – often estranged – actors have to come to an agreement) makes a rule-consistent behavior less likely. Fourth, the vulnerability of a state to external and international pres‐ sures influences the rule compliance (material vulnerability). This im‐ plies that states with strong economic and military resources are less vulnerable to certain rule enforcing measures. Fifth, a state’s social vul‐ nerability matters. The bigger the state’s desire to be a member of the international human rights society, the stronger the vulnerability to discursive measures like naming and shaming. In addition, a counterdiscourse can be set by the repressing state to challenge the discursive pressures (for example, in Asia and to a certain degree in the West it‐ self). In sum, the updated version of the spiral model matches today’s occurrences much better. As Risse et al. (2013: 4) allow, the first ver‐ sion was very positivistic and mainly driven by a discursive approach based on the Habermas’s discourse theory. The modes of social action were primarily based on persuasion of a non-complying state. With the second, revised, version, the scholars also included realistic measures to enforce compliance, like coercion and incentives, to the spiral model. Furthermore, they equipped the framework with conditions that can explain why the adoption of human right norms has stalled in some cases. Hence, the spiral model cannot only be used to explain the diffu‐ sion of human rights norms. Using the revised version, the question 2. The Spiral Model 10 why norm adoption in some cases comes to a standstill can be ex‐ plained. But is this framework also appropriate for explaining the derogation of a rule-consistent behavior? Sikkink (2013) performed the first analysis by exploring the torture practices of the USA in Guantanamo and elsewhere. According to her, the US violations of the Convention against Torture were possible because the USA invoked a counter discourse advocating the norm of security (Sikkink (2013) calls it anti-terror norm). This new norm made the US government less vulnerable because many parts of the US population as well as many US allies accepted it. In addition to the lack of social vulnerability, she holds that the material vulnerability of the USA is low as well. These factors protected the USA from national and international pressure. This is why the spiral model would not work. Nevertheless, she con‐ cludes that the spiral model would not fit the US torture case com‐ pletely, because “the spiral model suggests that a prescriptive status phase of treaty ratification usually follows the state of tactical conces‐ sions” (Sikkink 2013: 162) and not the other way around. However, she did not think about amending the spiral model in a way to explain these occurrences. In this paper, another attempt shall be made to explain the deroga‐ tion of a human rights norm, in this case privacy, with the spiral model. In order to do so, the privacy norm has to be highlighted with the ob‐ jective to determine what is meant by privacy. This topic will be dis‐ cussed in the following chapter. 2. The Spiral Model 11

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This book aims to explain the US violation of the human right to privacy unveiled by Edward Snowden with a newly developed comprehensive spiral model. After analyzing the social and juridical roots of the norm of privacy, it portrays the countering of privacy by the security norm in the US public debate and the US policy from the 1930s to 2013. On the basis of this case study the author refines the spiral model invented by Risse et al. Finally, the book explores the reaction of several actors following the Snowden disclosures and analyzes the tools these actors have used to influence the behavior of the USA. Thereby the author examines if the US reactions to the Snowden disclosures since 2013 follow the heuristic approach of the spiral model.