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

Periodic Reporting for period 2 - PATHS (The Paths of International Law: Stability and Change in the International Legal Order)

Reporting period: 2019-04-01 to 2020-09-30

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. We would thus expect that international law should be able to adapt to new problems and changing political circumstances. Yet so far we do not have a clear understanding of how flexible international law is in this respect. International courts, and many legal scholars, tend to presume high hurdles for change – typically requiring unanimity among the parties to a treaty or a uniformity of practice in the international community. However, 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 this rigid picture would allow. Such change has often taken place in informal ways that do not fit classical categories, but 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 seeks to fill this gap and understand when and how international law changes, how this change is registered among participants in legal discourses and how the pathways of change differ across issue areas and sites of international legal practice. It focuses on change processes over the last decades in eight areas, aiming to reconstruct change processes in law and to build a coherent framework for understanding international legal change as a political process. The project also aims at assessing pathways of change from a normative perspective. Just as the rigid mode of change is challenged for its inability to adapt to changing circumstances and provide public goods, more flexible approaches are criticized for failing to respect principles of legal certainty as well as the sovereign equality of states. In light of this, the project will theorize the main pillars of legitimate modes of change in the international legal order.
The work of the first period included 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-four of which were selected for in-depth analysis. Two-thirds of these case studies have been completed by the end of the reporting period. The theoretical framework as well as first insights and conjectures were presented at an international workshop with scholars from international law and international relations in Geneva in June 2019, prompting further collaboration with a view towards the publication of a joint edited volume. The group of authors for this volume will gather for a virtual workshop to discuss draft contributions in early December 2020.
The insights from the initial work have allowed for the clearer identification of differences between issue areas contexts with respect to the pathways for international legal change. The picture that emerges (provisionally) from the case analysis suggests conditions of change in contrast with the traditional legal picture, 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 an 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. As the project progresses, we seek to further substantiate the relevance of this model and to identify with greater precision the impact of other factors, especially the influence of powerful states on the success or failure of norm change attempts. This will lead to a far deeper understanding of the paths of international legal change and provides the basis for the normative assessment of these paths.