Report

Teaser, summary, work performed and final results

Periodic Reporting for period 1 - PATHS (The Paths of International Law: Stability and Change in the International Legal Order)

Teaser

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. Yet international law’s ability to adapt to changing circumstances is...

Summary

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. Yet international law’s ability to adapt to changing circumstances is limited. It erects high hurdles for change – it typically requires 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 the traditional, rigid picture would allow. Such change has often taken place 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 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 nine areas. It will seek to contrast the findings on the political and social factors behind informal change with the formal criteria international lawyers use. The aim is 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 main pillars of legitimate modes of change in the international legal order.

Work performed

The work of the first funding period included, first, a further, in-depth literature review with a view to building a more robust framework for the empirical analysis 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. The first funding phase also included a small number of pilot studies of cases in order to clarify methodological challenges and gain a better understanding of processes of change. This led, in the next stage, to the identification of a significant number of candidate cases for further study from which 36 were selected for the next project phase. A first analysis of the candidate cases allowed us to sharpen our hypotheses and develop a theoretical frame to guide the case studies and to structure the involvement of a broader group of scholars. This group will be brought together in the project workshop in Geneva in June 2019.

Final results

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 early 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 with models of 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. As the project progresses, we seek to further substantiate the relevance of this model further and to identify with greater precision the impact of other factors, especially related to the influence of powerful states. 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.

Website & more info

More info: https://paths-of-international-law.org/.