On the path(s) to international legal change

By
Nina Teresa Kiderlin, Graduate Institute of International and Development Studies
Pedro José Martinez Esponda, Graduate Institute of International and Development Studies
Dorothea Endres, Graduate Institute of International and Development Studies

 

Synopsis: Challenging the common narratives of legal change, the PATHS project investigates the different pathways through which stability and change travel in the international legal order.

Keywords: legal change, international law, norms, international order, power, institutions

 

How does international law change? Which actors are influential in pushing for change or resisting it? What are the obstacles to change? Which types of political and legal processes drive change? Are certain areas of international law inherently more prone to change than others? At which pace does international law change?

The PATHS team, led by Nico Krisch and Ezgi Yildiz, has so far approached these questions from two different angles. From the first angle, the team has sought to understand how actors in international law choose different pathways to challenge the meanings of international norms, or to put new norms forward.  From the second angle, the PATHS team has investigated how the choice of path influences outcomes through in-depth case studies across different issue areas of international law. The aim is to develop and test theoretical explanations about the different pathways through which change in international law travels.

 

 

The workshop on The Paths of Change in International Law”, which took place in Geneva on the 6th and 7th of June 2019, sought to draw deeper insights and explore alternative perspectives on legal change. For this purpose, the PATHS project brought together an interdisciplinary group of scholars from international relations, history, sociology, and international law studying change in the international legal order. Participants presented short think pieces, inspiring lively discussion and covering a range of diverse themes. Among these were the changing structures of hegemony, the rise of non-state entities as drivers of legal change, the interpretation of soft law and different non-binding norms, regional dynamics of change, legal norm contestation, as well as historical narratives of change interpretation.

 

How can we observe and measure change in international law?

The discussions during the workshop also engaged with methodological questions. Through which methods can we observe and measure change in international law? Some participants made use of predominantly qualitative tools in this endeavor, seeking to understand how practices evolve and how the meaning and acceptance of international rules fluctuates in different contexts. For this, they based their research on interpretive and historical approaches. One participant, for example, looked at how the practice of powerful states has expanded the scope of the right to self-defence in international law since the terrorist attacks of 11 September 2001. To do so, she assessed the acts and arguments of several countries in the light of Lon Fuller’s horizontal understanding of the law, focusing on the degree to which these practices meet certain criteria of legal legitimacy, such as generality, non-retroactivity, and clarity, among others. By contrast, other participants relied more on quantitative methodologies, setting out to measure empirically the fluctuations in the way legal rules are understood and implemented by the different players in international law. For instance, one participant’s think piece sought to understand how actors use legal precedent strategically by examining data sets compiling the use of citation and precedent in a large sample of court rulings. This provided insightful explanations of underlying causal mechanisms that operate in the background of international law.

 

How can we theorize legal change?

Participating scholars also provided a wide spectrum of theoretical approaches to the conceptualization of legal change, which centered around the role of power, or the role of social structures and institutions. Focusing on power-dynamics shaping the international order, some participants demonstrated how hegemons shift from multilateralism to bilateralism. This change, they argue, is because hegemons have lost their agenda-setting power within multilateral institutional frameworks. An interactional account of international law highlighted that great powers’ role in shaping customary law is increasingly limited due to the willingness of a broader range of states to weigh in. Another perspective, favouring transnational and domestic level analysis, aimed at explaining why certain policy coalitions rise to power in key states, and which knowledge practices and cultural capital they inherit. Furthermore, some of the participants noted that accepting that social reality is uncertain allows us to see ‘orders of worth’ competing over the definition of social order. In this process of competition, the critical capacities of everyday social actors and the reflexive structure of social practices cannot be underestimated.

As for the theoretical approaches that focus on the role of institutions and social structures in shaping the international order, participants raised multiple key points. One argued that the limits of change-resistant institutions merit greater scholarly attention. This is especially important when analysing the resilience of international law. Another think piece emphasized the role of social movements in promoting human rights law in other areas of international law, which had traditionally allowed little space for such considerations. Yet another think piece demonstrated that actors seeking to solve problems spanning across national borders create transnational legal orders. Subsequent changes in law-making informed by the emergent transnational legal orders are often incremental and recursive. Indeed, the pace of change is seldom sudden and involves a variety of different actors, which interact through multiple cyclical movements between and within levels of norm making. The temporal dimension of change through customary law was elucidated by one participant by invoking a literary analysis of Waiting for Godot’. This excursion into the literary field demonstrated the cyclical movement of customary law in a very original manner. Finally, norm death, which can occur through non-compliance or re-negotiation, was theorized in another piece. The conclusion was that the survival of legal norms depends on the strength of the norm-challenger and the precision of the norm.

The fruitful discussions at this workshop, which challenged the mainstream, formalistic narratives of change and stability in the international legal order, have given the PATHS team much food for thought. The discussions provided valuable snapshots from different strands of scholarship and multiple disciplines working on conceptualizations of change in international law. The insights gained through the think pieces and the final roundtable discussion have furthered the project’s interdisciplinary collaboration and will be incorporated into the ongoing research by the PATHS team.

 

Discover more about the PATHS project and keep up to date with its progress here.

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