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.
