The Paths of International Law

Our purpose is to analyse 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. We will focus on informal change, rather than change through formal treaty-making. Drawing on scholarship in international law and international relations, we aim to trace successful and unsuccessful attempts at international legal change in six issue areas over the past decades. More specifically, we plan to identify relevant factors behind the developments in those cases, and to understand how these developments relate to – are brought into and inform – the formal categories of international legal change. The shape and pace of change is likely to be linked to emerging authority structures in global governance, and the project expects significant variation in the ‘paths’ of change in different contexts and issue areas, often with an important role for global institutions – international organizations, courts, and expert bodies.

The project is funded by the European Research Council and hosted by the Global Governance Centre at the Graduate Institute of International and Development Studies, Geneva. The research is organised around three pillars:

In the first pillar (reconstructing the norms of change) we will explore how the practice of international law constructs the conditions under which a change in its content takes place. For this aim, we will focus on the three principal forms of informal change in the international legal order: interpretative change, change of treaty norms through subsequent practice, and the evolution of customary international law. While doing that we will rest on the assumption that international law is foundationally a social construct that is constituted by social practices. On this basis, we will seek to trace the ways in which the conditions for change in international law are constructed by social actors that participate in the corresponding practices and discourses.

PATHS focuses on six issue areas in international law. For each area, we will select six to eight cases of attempted change to analyse actor positions in detail, and we will assess to what extent change has occurred and consolidated in each of them. The primary focus will be on the post-Cold War international order, yet in some cases change processes will be traced further back in time. The members of the research team will analyse secondary sources as well as primary materials, taken from press releases, statements in international fora, submissions in legal proceedings, court decisions and other public documents. Where necessary, primary materials will be translated.

In the second pillar (understanding the process of change) we will build upon the analysis developed for the first pillar and understand better when and under what conditions attempts at change in international law succeed. Our ambition is not to explain the political changes that lie behind most attempts at legal change, but to understand better when political and social change translates into legal change. Regarding law as a ‘semi-autonomous’ social field, we seek to advance our understanding of how and when political change – change in interests, ideas, or power relations – is registered in international law. PATHS is interested in both the shape of informal change and the conditions that make it possible (and those that hinder it). As regards the shape of change processes, many observers focus on relatively sudden change through punctuated equilibria and tipping points or ‘Grotian’ moments. This accords with the important role of critical junctures in historical institutionalism. In line with a more recent turn in that field and related insights on formal international organizations, we expect that a significant part of change in international law takes a more gradual form, characterized by the accretion of changing positions rather than quick shifts. As regards the conditions of change, we will not follow a fixed, pre-defined theory about which factors are likely to prevail. Instead, we will start from a set of potentially influential conditions that are suggested by existing accounts, including the quality and precision of existing norms, the shape and extent of support for and opposition to change, the institutional setting and the broader structure of the social field. The PATHS team will carry out in-depth case studies to identify relevant factors and link them to the shape, pace and degree of change. The comparison of these cases should allow for discerning patterns, prominent factors and potentially also necessary conditions.

In the third pillar (assessing the pathways of change) we will assess the pathways of change in international law from a normative angle and ask what would be legitimate mechanisms and thresholds for legal change in the globalized world.