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The Paths of International Law: Stability and Change in the International Legal Order

Periodic Reporting for period 4 - PATHS (The Paths of International Law: Stability and Change in the International Legal Order)

Reporting period: 2022-04-01 to 2023-09-30

International law governs our daily lives to an ever greater extent – rules on trade, investment, environmental protection, or human rights have a significant impact on domestic politics and law today, but it is typically seen as too static to respond to new challenges or political circumstances in a timely fashion. In some areas, such as international criminal law or the law of international organizations, international law has in recent times undergone more rapid change than the traditional, rigid picture would allow - and often in informal ways that do not fit classical categories. However, this greater dynamism has found little sustained attention in scholarship so far.

The project on The Paths of International Law: Stability and Change in the International Legal Order sought to fill this gap and understand when and how international law changes. The project studied change processes over the past four decades, with a focus on twenty-five in-depth case studies of (successful and unsuccessful) change attempts in eight issue areas. On the basis of this empirical material, the project identified five ideal-typical “paths” on which change travels, each with particular actors, institutions, forms of authority and dynamics. These paths – some more, others less centred on states – are often activated alongside, or in conjunction with, each other. Which paths are accessible for a given change attempt, we find, conditions the speed and ease of change processes to a significant extent. It also leads to major variation across different areas of international law.

Our account highlights the central role of authority in change processes in international law. Where authority rests in actors or processes other than state-led ones, the role of states in international legal change is heavily curtailed, and we find that in many of our cases states occupy bystander roles. Opposition, even by substantial numbers of states, makes change more difficult but is often unable to prevent it. The picture that emerges is thus more dynamic and less state-centric than in existing accounts; it also reflects a prevalence of gradual modes of change, quite in contrast with prevailing accounts that emphasize the relative scarcity of change on the basis of punctuated equilibria models.

While sensitive to the significant variation across the many issue areas in international law, the project presents a general account of the processes, institutions and factors that condition international legal change. From this account, and quite in contrast with the more formal depictions in existing scholarship, international law emerges as a flexible, institutionalized practice that produces frequent change, though not always in an entirely consolidated or uncontested way. This should reorient inquiries by international relations scholars often too heavily focused on written rules and court judgments, and it should push legal scholars to further query the use of doctrinal categories that present international law in a state-centric, uniform and rather static fashion.
The work of the project began with the construction of a more robust theoretical framework for the analysis and understanding of cases of attempted change in international law. This framework was presented and tested in a brainstorm meeting with a group of scholars in June 2018 and has guided the work of the project since. The project has used it to structure its empirical work, beginning with the identification of a significant number of candidate cases for further study, twenty-five of which were selected for in-depth analysis. All these case studies have been completed by the end of the project and have been coded so as to make systematic comparison possible. They have been published online (Martinez Esponda et al 2023), and they form the basis for the edited volume that brings together contributions from the project team as well as external contributors from the academic network we created (Krisch and Yildiz 2023).

The network - bringing together an international group of scholars from the disciplines of international law and international relations - came together at a workshop in Geneva in June 2019, prompting further collaboration with a view towards the publication of the edited volume. The group came together again for a virtual workshop to discuss draft contributions in December 2020, and in a broader setting at the international conference the project organized in Bossey (near Geneva) in October 2022. The conference served to showcase the work of the project and contributions to the edited volume, to gather additional empirical and theoretical insights and to gain feedback on our work with a view to completing the monograph that synthesizes the project findings. This monograph, Change in International Law: Paths, Processes, Power, is under contract with Oxford University Press, with publication envisaged in late 2024.
The insights from the project have allowed us to develop a more nuanced, and for many counterintuitive, account of change in international law. The picture that emerges from our case studies suggests conditions of change that stand in some contrast with traditional legal approaches, pointing to far more flexible and multifaceted modes of change. The picture also stands in contrast to existing accounts in international relations which focus either on states and power, or on norm properties, and typically advance models of sudden change through punctuated equilibria. In contrast, we develop a process-oriented and authority-driven model in which the gradual accretion of authority for the destabilization of existing, and consolidation of new, understandings of the law is central. International law typically changes when change agents are able to access and mobilize responsive authorities - either central institutions in a field, or in their absence, a significant number of authorities with a sufficient cumulative weight. The availability of such institutions in a given field thus heavily conditions the dynamics, speed and prospects of a given effort at change. Moreover, we find that opposition by a significant number of states - and even major powers - often does not pose an obstacle to legal change, very much in contrast with usual expectations. Our insights lead to a far deeper understanding of the paths of international legal change and provides the basis for the normative assessment of these paths.

This account provides a major new positive account of the process of change in international law. Most existing accounts of change in international law are of a doctrinal character, focusing on what should be recognized as change in the content of international legal norms. The (limited) scholarship that analyzes actual processes of change is typically of narrower scope and centres on a particular case or area of international law. Most international relations scholarship on international law, in contrast, is less interested in change processes beyond treaty-making. Our account - theoretically rich and empirically guided - fills a major gap in that it takes into view a broad range of issue areas in international law and presents a general account of the processes, institutions and factors that condition international legal change.
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