18.12.2020 “Enduring Practices in Changing Circumstances: A Comparison of the European Court of Human Rights and the Inter-American Court of Human Rights” – A New Journal Article by Ezgi Yildiz
What explains the difference between court practices? This article attempts to address this question by looking at the relation between legal cultures and practices through the lenses of practice theory. In particular, it focuses on public hearings as distinct courtroom practices at the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). I examine the inclusiveness of their public hearings, assessing the extent to which victims and civil society groups may actively participate in the hearings. To do so, I rely on the existing literature and evidence gathered through on-site visits and a series of interviews conducted at the ECtHR and the IACtHR. I show the circular relation between legal cultures and practices with a twofold analysis. First, these courts were created in different historical contexts in response to different societal needs. The self-image that they held at their inception has since served as a creation myth. This myth has largely shaped their institutional practices to this day. Second, the persistence of these practices – despite changing circumstances – has helped keep this creation myth and self-image alive. This empirically informed analysis sheds light on how legal cultures and ethos shape the way public hearings are organized and furthers our understanding of the sociology of international courts.
14.12.2020 “Order at the margins: The legal construction of interface conflicts over time” – A new Journal article by Nico Krisch, Francesco Corradini, Lucy Lu Reimers
Legal multiplicity in the global realm, and the interface conflicts that ensue from it, are widely thought to have a destabilising effect, blocking the path towards a more integrated and perhaps constitutionalised global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots and rivalrous institutions as the main actors, it is less convincing if we regard these conflicts as part of social processes of contestation that define the relations between different norms over time. It is also less plausible if actors with other orientations – norm irritation or navigation – are taken into view. This article works towards a more encompassing account, both temporally and as regards actor orientations. It uses two case studies of conflicts at the interface between economic governance and human rights to probe the plausibility of its conjectures. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts, rather than destabilising the rule of law, may also open a pathway for change in the otherwise rigid structure of the international legal order.
28.09.2020 “Jurisdiction Unbound- Global Governance through Extraterritorial Business Regulation” – A New Working Paper by Nico Krisch
In this new working paper the author focuses on territoriality as the guiding principle of the international law of jurisdiction. Whilst international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, the territoriality principle has remained stable for a long time. The paper traces how, in contrast to the prevailing rhetoric of continuity, core categories of jurisdiction have been transformed in recent decades in such a way as to generate an ‘unbound’ jurisdiction, especially when it comes to the regulation of global business activities. The result is a jurisdictional assemblage – an assemblage in which a multiplicity of states have valid jurisdictional claims without clear principles governing the relationship between them, creating a situation in which, in practice, a few powerful countries wield the capacity to set and implement the rules. Jurisdiction is thus misunderstood if framed as an issue of horizontal relations among sovereign equals but should rather be regarded as a structure of global governance through which (some) states govern transboundary markets. Using a governance prism, this paper argues, can help us to gain a clearer view of the normative challenges raised by the exercise of unbound jurisdiction, and it shifts the focus to the accountability mechanisms required to protect not only the rights of targeted companies but also, and especially, the self-government of weaker countries.
18.09.2020 “Change in international law through informal means: the rise of exceptions to state official immunity for international crimes” – A New Journal Article by Pedro José Martínez Esponda
In this article, published by the Revista Latinoamericana de Derecho Internacional the author explores historical developments of norms around foreign state offical immunity for crimes not committed in the territory of the prosecuting state. It seems that a majority of the international legal community today believes there to be exceptions to immunity in cases of international crimes, without these being fully accountable through customary law methodology or any of the other formal sources. This article seeks to explore this paradox in the case of state official immunities and provide elements for a non-formalistic, discursive account of change in international law. It does so by suggesting that, where state opposition blocks formal pathways of normative transformation, change often finds its way informally provided that three elements are in place. First, that other actors are persistent and resilient enough to stand state opposition and uphold the change attempt. Second, that certain discursive preconditions make the attempt legally and socially plausible in order for it to be taken up by broader constituencies. And lastly, that minimal institutional channels are available in order to allow for some type of authoritative endorsement of the change attempt.
16.08.2020 EJIL LIVE Interview with Ezgi Yildiz
Ezgi Yildiz joined Sarah Nouwen on this episode of EJIL LIVE to discuss her article “A Court with Many Faces: Judicial Characters and Modes of Norm Development in the European Court of Human Rights”, which appears in issue 31:1 of EJIL. Combining legal analysis with social science methods, Yildiz takes a close look in her article at the European Court of Human Rights and provides a framework, comprising a typology of court characters (arbitrator, entrepreneur and delineator), for understanding how court rulings develop norms. The conversation ranges widely, starting with the author’s own academic journey and her shift from international relations to international law, moving on to her reasons for researching and writing the article and the arguments she puts forward in it. Dr Yildiz also talks about her experience in submitting to and publishing with EJIL.
29.05.2020 “And then the Court Created Procedural Obligations” – A New Working Paper by Ezgi Yildiz
This Working Paper was presented at the virtual Law and Society Conference this week. The author gives a detailed account of the development of procedural obligations at the European Court of Human Rights. It traces the emergence of proceduarl obligations under Article 3 (prohibition on torture and inhumane or degrading treatment) of the Convention.
27.05.2020 “International Law after Covid 19” – Presentation by Nico Krisch
Nico Krisch participated in the online panel discussion ” ‘Universally respected but temporarily neglected?’ – COVID-19 as a crisis for human rights and multilateralism”
19.05.2020 “A Court with Many Faces” – A New Working Paper by Ezgi Yildiz
In her new Working Paper the author analyses how adjudication refashions a given norm’s trajectory. This article addresses this gap by combining legal analysis with social science methods. It takes a closer look at the European Court of Human Rights and provides a framework for understanding how court rulings develop norms – that is, how judicial decisions modify norms’ content or scope. The framework is composed of a typology of court characters (arbitrator, entrepreneur and delineator) and the distinct modes of norm development that each character typically generates (incremental/ inconspicuous, pronounced and peripheral development). The typology is informed by interviews carried out at the Court as well as the literature on judicial review and, in particular, the debate on judicial activism and restraint. Unlike the concepts of judicial activism and restraint, these characters are not antithetical, but complementary. The paper shows how court characters complement one another by looking at the case of the norm against torture under Article 3 of the European Convention on Human Rights. It examines 157 Article 3 judgments issued between 1967 and 2006. The paper finds that the percentage of entrepreneur rulings considerably decreased in the post-1998 period, while arbitrator rulings increased by nearly the same amount. The analysis of nearly four decades of jurisprudence does not only shed light on how the Court operates, but also furthers our understanding of how it refashions codified norms.
17.04.2020 “COVID, Crisis and Change in Global Governance” – A New Blogpost by Nico Krisch
The COVID-19 pandemic is likely to have serious domestic and international political consequences and to exacerbate existing trends to reshape the landscape of international and transnational institutions. The author identifies six trends and argues that they, when combined, could be dangerous for the structure of global governance as we know it, in this new blogpost.
27.01.2020 “Institutionalizing Subsidiarity in the Reform of Investment Adjudication” – A New Blogpost by Nico Krisch
In his blogpost the author explores the principle of subsidiarity in investment adjudication proceedings. Current negotiations on the reform of investor-state dispute settlement aim at establishing credible constraints on adjudicators. If (re)designed based on the principle of subsidiarity, international investment adjudication could supplement rather than substitute or challenge domestic processes. Here is what that institutional design choice would mean for the standard of review, the role of domestic judicial procedures, the selection of adjudicators and complementary institutional safeguards.
07.11.2019 “On the path(s) to international legal change” – A New Blogpost by Nina Teresa Kiderlin, Dorothea Endres, and Pedro Matrinez Esponda
In their recent blogpost the authors reflect on the PATHS of International Law Workshop held in Geneva in June. They discuss the think pieces presented by the workshop participants with topics ranging from changing structures of hegemony, the rise of non-state entities as drivers of legal change, the interpretation of soft law and different non-binding norms, regional dynamics of change, legal norm contestation, to historical narratives of change interpretation. Emphasis is placed on how these think pieces fit into the wider project.
05.11.2019 “Change in International Law through Informal Means” – A New Working Paper by Pedro Martinez Esponda
In his new working paper, presented at the Dialogues on International Law conference at the Torcuato di Tella University in Buenos Aires, the author explores historical developments of norms around foreign state offical immunity for crimes not committed in the territory of the prosecuting state. Before the last decade of the twentieth century, legal debates on immunities focused on issues of general state immunity and, less controversially, on diplomatic immunities. Non-diplomatic state official immunity seems to have been a non-issue. This has been changing since the last years of the twentieth century and it is plausible to argue that an exception to state official immunity has developed for international crimes. It seems to be unclear how exactly this change transpired. At least from the perspective of the doctrine of sources, claims that international customary law has developed in this direction are, to say the least, methodologically weak. Majoritarian narratives therefore seem to run counter to formal arguments: what most international lawyers believe to be the law on state official immunity is not convincingly explainable through article 38 of the Statute of the International Court of Justice (ICJ). This article seeks to explore this paradox and provide a non-formalistic, discursive account of change in international law: discourse in international law often moves faster than any of the formal sources, leading to states of discursive faits accomplis that the traditional methodology struggles to account for.
12.07.2019 Interview with Visiting Scholar Mark Pollack
Last month we welcomed Mark Pollack, Professor of Political Science and Law at the Temple University in Philadelphia, as a visiting scholar to the Global Governance Centre. Thanks to his extensive expertise and work in international law, he got involved in informal conversations around the PATHS project, gave valuable feedback on current work, participated in group meetings on strategy, pilot studies and case selections and actively attended the PATHS workshop.
10.6.2019 “When Pathways of Change Crisscross” – A New Working Paper by Ezgi Yildiz and Umut Yüksel
In their new Working Paper, presented at the PATHS Workshop, the authors ask: What does it take for a change attempt to be materialized and registered as actual change? They argue that it takes formation of consensus. Depending on the issue areas, this could be consensus among states, members of an epistemic community or legal practitioners. But why is it that some practices come to command consensus and become established as
custom while some other potentially beneficial rules fail to achieve this status? In responding to this question, they draw inspirations from the PATHS framing paper and understand legal change as convergence around a certain interpretation. In particular, they examine how certain state practices converge around a legal rule, which eventually comes to acquire customary law status. They tease out the factors that may facilitate or hinder the convergence around a rule. In this respect, they pay a particular attention to the potential impact of institutions that are tasked with making and interpreting law.
6-7 June, 2019
Auditorium Jacques-Freymond, 132 rue de Lausanne, 1202 Geneva (Morning)
Villa Moynier, Rue de Lausanne 120B, Geneva (Afternoon)
The aim of our two-day workshop, which brings together scholars from international law, international relations, and international political sociology, is to explore informal change in the international legal order. This workshop is a part of the PATHS project funded by the European Research Council. We would like to use our collective expertise 1) to trace different accounts of informal change as it is seen from different disciplinary lenses, 2) to take stock of various theoretical approaches and 3) to better understand the strengths and weaknesses of those different approaches in light of empirical examples. This should help us to make a significant contribution to the study of the dynamics of international law, and to inform both legal scholars’ attempts at reconstructing the way international law changes, and political scientists’ and sociologists’ efforts at understanding when, why and how such change occurs.
Thursday, 6 June 2019
09:00 Arrival & Coffee
09:30-10:00 Introduction & Framing Paper
Nico Krisch & Ezgi Yildiz (Graduate Institute, Geneva): The Paths of International Law: Stability and Change in the International Legal Order
10:00-11:00 International Legal Change in a Shifting International Order
Eyal Benvenisti (University of Cambridge): International Law in the Age of Bilateralism
Mark Pollack (Temple University): The Eternal Optimism of the International Law Scholar and the Fragility of the International Legal Order
Discussant: Stephanie Hofmann (Graduate Institute, Geneva)
Chair: Ezgi Yildiz (Graduate Institute, Geneva)
11:30-13:00 Competing Accounts of Change
Kenneth Abbott (Arizona State University) & Duncan Snidal (University of Oxford): Filling in the Folk Theorem: Gradualism and Change in International Law
Jutta Brunnée (University of Toronto): Interactional International Law: Examining Stability and Change in the Right to Self-Defence against Non-state Actors
Matthew Windsor (University of Reading): Justifying Change in International Law
Discussant: Benedict Kingsbury (New York University)
Chair: Nico Krisch (Graduate Institute, Geneva)
14:00-15:30 The Construction and Evolution of Rules
James Hollway & Umut Yüksel (Graduate Institute, Geneva): Convergent Institutional Evolution and the Limits of Delimitation
Tonya Putnam (Columbia University): Between Practice and Precedent: The Politics of Constructing Authoritative Evidence of Legal Rules
Ezgi Yildiz & Umut Yüksel (Graduate Institute, Geneva): When Pathways of Change Crisscross: Courts, Consensus, Custom
Discussant: Erik Voeten (Georgetown University)
Chair: Laurence Helfer (Duke University)
15:45-16:45 Actors of Change in International Law
Moshe Hirsch (Hebrew University of Jerusalem): Political Sociology, Social Movements and Increasing Application of Human Rights Law in Investment Jurisprudence
Sebastián Rioseco (University of Melbourne): COPs as a Legal Pathway
Discussant: Tanja Aalberts (VU Amsterdam)
Chair: Diana Panke (University of Freiburg)
17:00-18:00 Repetition & Recursivity as Drivers of Change
Susan Block-Lieb (Fordham University): Recursive Incrementalism: The Role of Sub-State and Non-State Actors in Translating Soft International Law
Wouter Werner (VU Amsterdam): Repetition Expert Bodies and the Formation of Customary Law
Discussant: Anna Leander (Graduate Institute, Geneva)
Chair: Jutta Brunée (University of Toronto)
20:00 Dinner for participants
Friday, 7 June 2019
09:00-10:00 Mechanisms of Change
Giovanni Mantilla (University of Cambridge): Pathways of Change in International Humanitarian Law
Niccolò Ridi (University of Liverpool): Constraint, Coherence, Adjustment: Using the Past to Effect Change in International Adjudication
Discussant: Nina Reiners (University of Potsdam)
Chair: Tonya Putnam (Columbia University)
10:15-11:15 Accounting for Change: Practices versus Fields?
Tanja Aalberts (VU Amsterdam): Practices, Performances and the Magic of International Law
Grégoire Mallard (Graduate Institute, Geneva): Approaching Law as Fields: New Theoretical Developments in Socio-Legal Studies
Discussant: Andrew Hurrell (University of Oxford)
Chair: Madeline Baer (San Diego State University)
11:30-13:00 Regional Change Dynamics
Matheus Hernandez (UFGD, Brazil) & Adriana Erthal (Igarapé Institute, Brazil): Negotiating Boundaries in International Law: Legal Change and Stasis in the Inter-American Human Rights System
Laurence Helfer (Duke University) & Erik Voeten (Georgetown University): Walking Back Human Rights in Europe
Stephanie Hofmann (Graduate Institute, Geneva): The Use of Force and Regional Order
Discussant: Wayne Sandholtz (USC)
Chair: Thomas Biersteker (Graduate Institute, Geneva)
14:00-15:00 Norm Challenges, Contestation and Death
Madeline Baer (San Diego State University): Contesting Rights: Champions and Challengers of Economic, Social and Cultural Rights
Diana Panke (University of Freiburg): Norm Challenges in the International Systems. Exploring Pathways towards Norm Changes and Norm Death
Discussant: Fuad Zarbiyev (Graduate Institute, Geneva)
Chair: Mark Pollack (Temple University)
15:15-16:30 Final Round table: Dynamics of Change in International Law
Andrew Hurrell (University of Oxford)
Benedict Kingsbury (New York University)
Anna Leander (Graduate Institute, Geneva)
Thomas Biersteker (Graduate Institute, Geneva)
Chair: Nico Krisch (Graduate Institute, Geneva)
20.05.2019 “Order at the Margins” – A New Working Paper by Nico Krisch, Francesco Corradini, and Lucy Lu Reimers
In their Working Paper the authors explore the issue of legal multiplicity in the global realm and the interface conflicts that ensue from it. These are widely thought to have a destabilizing effect, blocking the path towards a more integrated and perhaps constitutionalized global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots, it is less convincing if we regard them, from a diachronic perspective, as part of social processes that define the relation between different norms over time. This paper works towards such a diachronic account, and it creates a typology of interface conflicts and the actors involved in them which helps to generate expectations about the likelihood that these conflicts result in friction. It then uses two case studies of ‘irritative’ conflicts at the interface between economic governance and human rights to illustrate the dynamics and consequences of this type of conflict. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts can fruitfully be seen as a pathway for change in the otherwise rigid structure of international law.
Call for Papers: The Paths of Change in International Law
Workshop, 6 and 7 June 2019
Nico Krisch, Professor, International Law, Graduate Institute
Ezgi Yildiz, Postdoctoral Researcher, Global Governance Centre, Graduate Institute
This workshop is a part of the European Research Council funded PATHS project, where we investigate the ways in which international law changes informally (through reinterpretation or shifts in custom).
International law is traditionally seen to erect high hurdles for change – typically unanimity or a uniformity of practice of states – and this high threshold has provoked much criticism for hindering the pursuit of justice, the provision of public goods, and the democratic revision of political choices. Yet in different 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 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 PATHS project 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.
In the workshop, we seek to bring together leading and rising scholars from different disciplines – law, international relations, and political sociology – to explore these issues in a small and interactive format. We are particularly interested in sharpening the contrasts between different theoretical and methodological approaches, and invite participants to develop distinctive arguments rather than ecumenical accounts.
We invite submissions that tackle the following questions:
– What are the factors behind change (and stasis) in international law?
– How does political change translate into legal change in the international realm?
– What role do powerful and less powerful states, international institutions, and courts play?
– When is international legal change rapid, when incremental?
– Who can block change in international law?
We invite interested scholars to submit an abstract of no more than 300 words by 10 January 2019 at email@example.com.
Proposals will be selected based on their quality, originality and engagement with the workshop themes. Accepted submissions will be notified by 10 February 2019.
We expect to receive a draft of your papers by 30 May 2019. We do not expect fully-developed papers, but rather short, crisp pieces of 10 to 15 pages that speak directly to some of these questions on the basis of your theoretical and empirical expertise.
The workshop will be held at the Graduate Institute of International and Development in Geneva, Switzerland. We will cover your travel expenses (economy airfare) and accommodation in Geneva.
24.4.2017 Interview with Dr. Nico Krisch on his new ERC project studying when and how international law changes
Is international law an overly rigid instrument that handicaps change in international politics and global public policy? International lawmaking tends to be cumbersome, and many critics have emphasised the negative effects on justice, public goods or the democratic revision of political choices that this entails. However, in different fields such as international criminal law or the law of international organisations, international law has developed rapidly, going beyond its traditional image, and often informally. Understanding this contradiction is at the heart of a new project led by Nico Krisch, Professor of International Law at the Graduate Institute. Entitled “The Paths of International Law: Stability and Change in the International Legal Order (PATHS)”, it has been awarded a five-year advanced grant of the European Research Council (ERC). Read the full interview here.