16.09.2022: Ezgi Yildiz attended the Inaugural Conference of the Swiss Network for Law and Society and presented her forthcoming book Between Forbearance and Audacity: How the European Court of Human Rights Redefined the Norm against Torture and Inhuman or Degrading Treatment.
The book investigates when can we expect international courts to advance the law, and when will they refrain—or even regress? This paper explores the conditions under which the international courts tend to issue progressive decisions, widening the application of existing human rights norms. It builds this assessment on the example of the European Court of Human Rights and the way it has refashioned the norm against torture and inhuman or degrading treatment. Employing mixed methods ranging from expert interviews to content analysis of nearly 2’300 judgments, I argue that the Court’s progressivity is a function of the width of the discretionary space that states grant to the Court. The progressive change is more likely when this space is wider, as we have witnessed in the late 1990s and early 2000s. When the discretionary space is narrow, I find that the Court is selectively progressive—a characteristic we observed between the 1960s and the late 1990s and then again in the 2010s. In such instances, the issue characteristics matter. The Court tends to be more progressive around issues of lower stakes for which there is a general agreement among member states. Yet, when the stakes increase, it either keeps the status quo or even retracts some of the rights. This analysis does not only shed light on the institutional explanations behind the legal change, but it also shows that the backlash and political pushback we observe today are not unique. The Court has always operated under the shadow of political pushback, which left its mark on the legal progress within the European human rights regime. Public criticism and pushback against international courts have certain costs, as they can inhibit courts’ progressive agendas. Yet, there is more to legal progress. Even if there is occasional stagnation at times, progress can always work incrementally and then speed up suddenly when the conditions are suitable.
15.09.2022: Ezgi Yildiz presented “Do States Learn? Evidence from the European Court of Human Rights,” at the European Consortium of Political Research Conference (ECPR), Innsbruck, Austria, August 22-26 and the American Political Science (APSA) Association Annual Conference, Montreal Canada September 15-18 (together with Umut Yüksel)
Do states learn and improve their practices after being found in violation by a supranational court? This paper analyzes the degree to which international courts may play a pedagogical role and the extent to which states learn from their past practices by looking at the case of the European Court of Human Rights (Court) and its Article 3 (prohibition of torture) jurisprudence. In order to ensure that the European Convention of Human Rights remains “practical and effective, not theoretical and illusory,” the Court has recognized a series of new obligations in its recent history and expanded the remit of existing protections under the European Convention of Human Rights. The introduction of procedural obligations under Article 3 is a prime example of this expansion, and it constitutes an innovative solution to cultivate a robust rule of law tradition across Europe. Using an original dataset that disaggregates the Court’s Article 3 rulings at the level of the obligations, this article analyses the extent to which countries found in violation of their procedural obligations improve their subsequent practices. This research offers two distinct contributions. First, it assesses whether being found in violation of procedural obligations decreases the likelihood of future violations under Article 3 and states’ ability to learn and improve their domestic procedures. Second, it evaluates the spread of procedural misconduct in Europe and shows whether the rule of law crisis is limited to well-known examples of Poland, Hungary, Russia, and Turkey.
14.09.2022: Ezgi Yildiz participated in the Global Complexity in and Through Time workshop organized by Stephanie Hofmann and Orfeo Fioretos at CERUIM of the University of Montreal. Together with Umut Yüksel, she presented a think piece entitled, “Detecting Complexity and its Effects over Time: Evidence from the Field of Maritime Delimitation”
In this piece, they assess the creation and the maintenance of complexity in the field of maritime delimitation drawing inspiration from the historical institutionalism literature. They analyze the origins, main characteristics, and implications of complexity in this field, focusing in particular on its impact on policy harmonization over time. The field is structured around multilateral treaties – such as the 1958 Geneva Convention on Continental Shelf and the 1982 UN Convention on the Law of the Sea (UNCLOS) – as well as the active involvement of international courts and tribunals, most notably, the International Court of Justice (ICJ), but also the International Tribunal of the Law of the Sea (ITLOS) and arbitral tribunals. They argue that what drove the complexity and hindered policy harmonization in this field is the mixed messages sent by international courts and tribunals, and especially the ICJ, over time.
08.09.2022: Ezgi Yildiz participated in The Anti-torture Norm: Emerging Directions in Research, the University of Copenhagen and the University of Birmingham, Copenhagen, Denmark, and presented insights from her forthcoming book Between Forbearance and Audacity: How the European Court of Human Rights Redefined the Norm against Torture and Inhuman or Degrading Treatment
12.05.2022: Ezgi Yildiz published an open access book chapter, entitled“Extraterritoriality Reconsidered: Functional Boundaries as Repositories of Sovereignty and Jurisdiction,” for The Making of iCourts: New Interdisciplinary Legal Research, eds. Henrik Palmer Olsen and Henrik Stampe Lund (Nomos), pp. 357-372.
12.04.2022. Ezgi Yildiz published a new article, entitled “Limits of Behavioral Approaches: Lessons from the Field of Maritime Boundary Making” in the German Law Journal (together with Umut Yüksel). This is an open-access article.
Do states take court decisions into account when formulating policies? If so, how do they process new judicial input and make policies in response to them? While self-interest and incentives are the usual elements involved in a rational choice explanation of policymaking, behavioralist scholarship casts doubt on whether decisionmakers are able to identify and pursue their interests in a rational manner. We draw on rational and behavioral approaches to formulate different expectations about the process of policymaking and updating in the context of maritime delimitation. We focus on how states formulate policies about the appropriate method of maritime delimitation given relevant decisions of the International Court of Justice. Using a dataset of continental shelf delimitation policies, we find evidence that at least some states change policies in line with court decisions. However, we are unable to distinguish between mechanisms consistent with rational choice and those suggested by behavioralism. We discuss why behavioralist explanations of policymaking processes are difficult to test in a large-N setting. Moreover, we discuss why additional evidence from interviews also proves insufficient, notably due to actors’ tendency to rationalize state policies. We end by suggesting how these problems can be addressed in future research.
1.04.2022: Ezgi Yildiz presented a co-authored article with Nico Krisch “From Drivers to Bystanders: The Varying Roles of States in International Legal Change” at the International Studies Association Annual Convention, Nashville, TN, USA.
This article problematizes the central role that states occupy in theories and narratives of change is also driven by insights about actual instances of change in different areas of international law. To do so, it takes a close look at these different roles that states play and at the factors that lie behind states being cast in them. Drawing on empirical insights from different issue areas, we present a typology of ideal-typical roles states occupy in international change processes, ranging from that of drivers to that of bystanders, and including also those of blockers, catalysts, and spoilers. We then outline two core factors which, we believe, can help us understand much of the variation observed across state involvement in actual instances of change. We finally lay out some implications of our findings for international law’s promise and limitations in a geopolitical context increasingly rife with division and state inaction.
28.03.2022: Ezgi Yildiz and Umut Yüksel presented “The De-focalizing Effect of International Courts: Evidence from Maritime Delimitation Practices”
This second article, presented in Nashville, questions whether international courts influence state policies and facilitate interstate cooperation? Existing literature argues that they can. Courts can make cooperative outcomes easier for states by formulating or endorsing rules around which state expectations and practice can converge. While it is widely assumed that court rulings may become focal points and play a role in harmonizing state practices, we know little about the conditions under which court rulings have such an effect. We propose that court decisions may fail to cultivate policy convergence and may even have the opposite effect (de-focalizing effect) by providing alternative rules that are incongruent with existing state practice or treaty law, or inconsistent with earlier court rulings. As long as these alternatives exist, it is hard for one rule to emerge as focal and state practice remains divided as a result. Especially when alternative rules have different distributional consequences, states may have incentives to strategically choose among these available rules according to their interests. We illustrate our argument by examining the landmark decisions of the International Court of Justice in the field of maritime delimitation. We find that although court rulings influence state policies, even in areas with high distributional consequences such as maritime delimitation, their influence is not as forceful or as unifying as part of the literature suggests. These findings cast doubt on the role of international courts as reliable drivers of legal certainty and reveal the unintended yet enduring consequences of judicial lawmaking.
28.03.2022 Call for papers: “Change and Resilience in International Law”
International law is built upon a narrative of constancy, predictability, and permanence—features that give it a coherent but also a static appearance. Yet beneath this outer layer (and its strong representation in international legal doctrine), it is characterized by significant dynamism and adaptability. Its rules are in constant flux, being made and remade through practice. Between the poles of stability and adaptability: how resilient is international law in fact? To what extent does it resist changes in its environment, and to what extent does it adapt to them in order to remain relevant? This question is especially pertinent, we believe, in times of radical challenges from politics (e.g., the rise of anti-internationalism and multipolarity), from problem-solving pressures (e.g., sustainability and climate change), and from technological change (most visibly in the turn to data). In this conference, we take a closer look at the ways in which resilience in International Law may manifest, and we assess the degree to which International Law is resilient. Our inquires will be guided by questions such as:
- How resistant is international law to change, and does the degree of resistance vary from one field to another? Which actors or factors are more likely to trigger resistance in international law?
- Through what mechanisms does international law adapt to changing circumstances and technological advancements and respond to new crises? When can we expect institutions to resort to resistance, adaptability, and elasticity (i.e., an institution’s return to its original state/model)?
- What is the relation between contestation, backlash, and resilience?
- How flexible should international law be in responding to challenges and changing circumstances? What procedures would be adequate?
The conference will bring together scholars working in international law, international relations, and related disciplines. We are seeking empirically- as well as theoretically-oriented paper proposals that address one or more of the above questions. We welcome different disciplinary approaches, as long as a clear focus on international law and legalities is present.
Please submit your abstract of no more than 300 words, accompanied by a short CV (maximum 2 pages), by 24 April 2022 to paths@graduateinstitute.ch. We aim at communicating the results of the selection process in early May. Those selected are expected to submit think pieces of around 3,000 to 4,000 words by 20 September 2022. We will cover accommodation for all speakers, and we will be able to cover part of the travel expenses for speakers without their own institutional funding upon request.
The conference is organized by the Graduate Institute of International and Development Studies, Geneva, as part of the research project on the “Paths of International Law”. Convened by Ezgi Yildiz and Nico Krisch, it will take place at the Chateau de Bossey near Geneva. The project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 740634).
15.03.2022 “Exploring the Paths of Change in the Field of Business and Human Rights” – PATHs Panel VII
Calls for change are ubiquitous in the field of Business and Human Rights: increased accountability of corporations or more consequential enforcement or clearer regulations of human rights with respect to corporations have been on the agenda of human rights scholars and activists for decades. In contrast, very little attention is paid to the way in which law regulating corporate behaviour internationally has actually been changing. International human rights law narratives highlight the increasing density of regulation, and portray hope for a potential accumulation of this regulation in a treaty on Business and Human Rights. Is this story of progress an accurate one? Who are the crucial actors pushing or blocking the legal change? How have the sites of or fora for legal change shifted over time?This panel will put perspectives from theory and practice, from different continents, and from old and new technologies into conversation. In this way, the speakers will explore the avenues on which legal change in the field of Business and Human Rights has actually travelled in the last few decades.
Speakers were: Lara Jesani, Human Rights Activist and Advocate at Bombay High Court, India; Robert McCorquodale, Prof. of International Law and Human Rights, University of Nottingham, United Kingdom of Great Britain and Ireland; and Kebene Wodajo, Postdoctoral Researcher at the Institute for Business Ethics, University of St. Gallen, Switzerland. The panel was moderated by Dorothea Endres, PhD Candidate in International Law and Researcher at the Global Governance Centre, The Graduate Institute, Geneva, Switzerland
Watch the full panel video here
January 2022: Ezgi Yildiz published a chapter entitled “Understanding the Interpretative Evolution of the Norm Prohibiting Torture and Inhuman or Degrading Treatment under the European Convention,” in Language and Legal Interpretation in International Law, eds. Anne Lise Kjær and Joanna Lam (Oxford University Press), pp 295-314.
This chapter provides a historical overview of the interpretive evolution of the norm against torture and inhuman or degrading treatment under the European Convention on Human Rights from a socio-legal perspective while paying attention to the political and legal context that has informed the norm’s interpretive evolution.
03.12.2021: Ezgi Yildiz with Umut Yüksel presented a paper entitled “How Inconsistent Takes on Custom Shape State Practice” at the Interpretation of Customary International Law: Methods, Interpretative Choices and the Role of Coherence,” organized by PluriCourts, TRICI-Law, University of Groningen
Much has been written about how customary international law emerges and the importance of state practice in informing custom. But we know little about the reverse: how do pronouncements on custom inform state practice? We approach this question by focusing on the International Court of Justice (ICJ) and its rulings on customary rules concerning maritime delimitation. The ICJ had to apply customary international law on multiple delimitation cases, but its rulings on what is customary and what is not, have not been coherent over time. We show that this inconsistency was not guided by changing state practice, yet it had a profound effect on how states take a position on maritime delimitation subsequent to these rulings. In particular, we look at how the ICJ has come to different conclusions with regard to the customary status of the equidistance method or a provisional equidistance line. We show that the 1969 North Sea Continental Shelf Cases, which ruled that equidistance is not customary, hampered the convergence of state practice around equidistance. Instead, it gave states a license to claim maritime areas using various non-equidistance-based methods. Consequently, state claims and views on maritime delimitation greatly diverged. The ICJ’s subsequent interventions that brought back equidistance were not enough to reverse this process and create consensus around equidistance at a later point. We find that states continued to follow alternative rules that the ICJ had sanctioned earlier in order to realize their maximalist interests. For our analysis, we collect documents evidencing state preferences on the continental shelf delimitation rule since the end of World War II. Based on a classification of these documents, we produce a dataset that has annual information on state preferences over the delimitation rule in the period under study. Our findings are surprising in light of the common assumptions about the role of state practice in the formulation of custom. By showing how incoherent pronouncements of custom diversify state practice, we highlight the consequences of inconsistent interpretation of customary international law.
18.11.2021: Ezgi Yildiz presented a chapter from her forthcoming book “Between Forbearance and Audacity: How the European Court Redefined the Norm Against Torture and Inhuman or Degrading Treatment,” at the Human Rights Insights seminar of the University of Luxembourg, Luxembourg
Drawing on literature from both International Law and International Relations, this interdisciplinary book makes a timely intervention in the debate on international courts, international norms, and legal change. The growth in the emergence and the use of international courts is a feature of the post-Cold War period. This is not likely to go away. What is new in this picture is a varying degree of political pushback and backlash against these courts. The strategies of such attacks may vary, yet their overall purpose is clear: they are there to subdue these institutions. For this reason, it is important to study how these institutions work under ideal circumstances and how they operate under pressure. Investigating the normative and practical implications of these two modes of operation helps us understand the real costs and consequences of courts’ forbearance and audacity. Between Forbearance and Audacity achieves this crucial, yet much-neglected, task by dovetailing concepts and theories gleaned from the studies on international courts and international norms. It provides empirical evidence for, and theoretical explanation of, why and when courts generate progressive or regressive change. To do so, it relies on a mixed-method approach and combines social science methods such as content analysis, descriptive statistics, and interviews with legal analysis.
12.11.2021 “From Drivers to Bystanders: The Varying Roles of States in International Legal Change” – LCIL Friday Lecture by Nico Krisch
International law is in constant movement, and any proper account of the international legal order needs to place this movement at the centre. “The course of international law needs to be understood if international law is to be understood,” says James Crawford in the opening of his general course at the Hague Academy in 2013. Yet rarely do we find focused and systematic attention to this ‘course of international law,’ to the ways in which international legal rules change, get reaffirmed or disappear. In this paper, we take a step towards a broader account of these dynamics, and we interrogate in particular the varying roles states play in them – largely from an empirical, not a doctrinal starting point. We pay particular attention to contexts in which states take secondary roles in change processes – roles of bystanders, catalysts, or spoilers – and we outline two core factors which, we believe, can help us understand much of the variation we observe. With this, we hope to dispel some of the shadows cast by doctrinal representations and make progress on the way to on the way to developing a richer, more empirically-oriented and more ‘social’ account of the paths of international law.
31.10.2021 “Entangled Legalities Beyond the State” – A New Book edited by Nico Krisch
Law is usually understood as an orderly, coherent system, but this volume shows that it is often better understood as an entangled web. Bringing together eminent contributors from law, political science, sociology, anthropology, history and political theory, it also suggests that entanglement has been characteristic of law for much of its history. The book shifts the focus to the ways in which actors create connections and distance between different legalities in domestic, transnational and international law. It examines a wide range of issue areas, from the relationship of state and indigenous orders to the regulation of global financial markets, from corporate social responsibility to struggles over human rights. The book uses these empirical insights to inform new theoretical approaches to law, and by placing the entanglements between norms from different origins at the centre of the study of law, it opens up new avenues for future legal research.
The volume is quite interdisciplinary, with contributions from law, sociology, political science, philosophy, and history. Contributors include Kirsten Anker, Larry Cata Backer, Tobias Berger, Tomer Broude, Francesco Corradini, Keith Culver, Antoine Duval, Julia Eckert, Michael Guidice, Caroline Humfress, Machiko Kanetake, Grégoire Mallard, Ralf Michaels, Tomas Morochovic, Aurel Niederberger, Lucy Lu Reimers, and Brian Tamanaha.
11.10.2021 “The Dynamics of International Law Redux” – A New Journal Article by Nico Krisch
Law is constantly caught between stasis and dynamism, between the production of legal certainty and the adaptation to a changing environment. The tension between both is particularly acute in international law, given the absence of legislative mechanisms on the international level and the high doctrinal thresholds for change through treaties or customary law. Despite this apparent tendency towards stasis, international law is changing frequently and rapidly in many areas, though in ways that are not well understood. This article seeks to begin an inquiry into these ways of change, starting from two vignettes of recent change processes and presenting a number of conjectures about core elements of a conceptualization of change in international law. The resulting picture reflects significant variation across different areas of international law, multiple paths of change outside traditional categories, and states in different—and not always central—roles. Much change observed in contemporary international law travels on paths and is advanced by authorities created by social actors and their practices relatively independently from doctrinal representations. This presents a challenge for doctrinal categories, and it should provoke a broader, empirical reconstruction of the social life of international law today—a far more dynamic but also less orderly life than typically assumed.
06.10.2021 “PhD Student Highlight : Dorothea Endres’ critical take on business and human rights” – An Interview with Dorothea Endres
Dorothea Endres’ PhD project demonstrates how human rights law is used as a tool of both domination and resistance in constructing corporations as subjects in international law. In this interview she provides some insights from her research.
13-17.09.2021: Ezgi Yildiz presented a co-authored paper with Nico Krisch entited, “From Drivers to Bystanders: The Varying Roles of States in International Legal Change” at the European International Studies Association, 14th Pan-European Conference on International Relations
This paper problematizes the central role that states occupy in theories and narratives of change is also driven by insights about actual instances of change in different areas of international law. To do so, it takes a close look at these different roles that states play and at the factors that lie behind states being cast in them. Drawing on empirical insights from different issue areas, we present a typology of ideal-typical roles states occupy in international change processes, ranging from that of drivers to that of bystanders, and including also those of blockers, catalysts and spoilers. We then outline two core factors which, we believe, can help us understand much of the variation observed across state involvement in actual instances of change. We finally lay out some implications of our findings for international law’s promise and limitations in a geopolitical context increasingly rife with division and state inaction.
08.09.2021: Ezgi Yildiz and Umut Yüksel presented their think-piece “Back to Basics – Conversational Interdisciplinarity” at the European Society of International Law (ESIL) pre-conference working group meeting convened by the ESIL Interest Group on Social Sciences and International Law
Ezgi Yildiz with Umut Yüksel presented their think piece on interdisciplinary International Relations and International Law scholarship, where they argued that it is important for scholars from each discipline to understand the fundamentals and basic methods to carry out research on questions of mutual interest. This does not essentially mean that International Law scholars need to learn or master advanced quantitative methods or International Relations scholars need to become experts in a given International Law field. We believe that acquiring a basic understanding of the workings of law or research design and methods is often sufficient for participation in the process of knowledge production. This is the crucial first step to build a coherent body of theoretical and empirical research on how international law matters in international politics and to facilitate interdisciplinary cross-fertilization.
06.07.2021 “Paths of Change in International Law I” – ICON-S Panel with Nico Krisch, Ezgi Yildiz, Jaye Ellis, Pedro José Martínez Esponda, Nina Reiners and Eyal Benvenisti, chaired by Nico Krisch
better understand the processes through which such change occurs. It uses insights from empirical studies and scholarship from international relations and international political sociology to enrich and question existing approaches and complement internal legal perspectives. It focuses especially on the way in which states interact with ‘authorities‘ in the process of legal change – with actors and institutions that are recognized as being able to say with authority what the law means. Central questions include: which paths of legal change are dominant in a given context? What role do states play vis-à-vis non-state authority? Why do actors choose to pursue change through one authority and not another? How do states respond to attempts at the legal change they do not control?
Nico Krisch / and Ezgi Yildiz present: ‘From Drivers to Bystanders: The Varying Roles of States in International Legal Change’, Jaye Ellis talks about ‘The Turn to Metrics in International Environmental Law’ Pedro José Martínez Esponda analyses ‘Change in International Law Through Informal Means: The Rise of Exceptions to State Official Immunity for International Crimes’, Nina Reiners demonstrates ‘The States-as-Bystander Effect in Human Rights Law and Eyal Benvenisti acts as discussant.
09.07.2021 “Paths of Change in International Law II” – ICON-S Panel with Nicolas Lamp, Dorothea Endres, Nina Kiderlin, Fuad Zabiyev and Moshe Hirsh, chaired by Nico Krisch
International law changes more frequently and often more rapidly and easily than standard accounts suggest. This is one of two panels that seek to better understand the processes through which such change occurs. It uses insights from empirical studies and scholarship from international relations and international political sociology to enrich and question existing approaches and complement internal legal perspectives. It focuses especially on the way in which states interact with ‘authorities‘ in the process of legal change – with actors and institutions that are recognized as being able to say with authority what the law means. Central questions include: which paths of legal change are dominant in a given contect? What role do states play vis-à-vis non-state authority? Why do actors choose to pursue change through one authority and not another? How do states respond to attempts at legal change they do not control?
Nicolas Lamp presents on ‘Arrested Norm Development: The Failure of Legislative-Judicial Dialogue in the WTO’, Dorothea Endres analyses ‘Whose international law is changing? The role of communities of practice’ Nina Kiderlin shows ‘How do geopolitical shifts translate into international legal change? The case of China at the WTO’ Fuad Zarbiyev presents ‘A Quiet Revolution in the Making? The Changing Authority of States in Treaty Interpretation’ and Moshe Hirsch acts as Discussant
21.06.2021 Norm Knitting – A Presentation at the Law and Humanities Roundtable 2021: Change and the Law by Dorothea Endres
At the third annual Law and Humanities Roundtable, which features four original, interdisciplinary, and humanities-focused paper presentations reflecting on the theme of change, this presentation will demonstrate how the concept of norm knitting can be useful for the analysis of legal change. The broad starting point is that one can begin the knitting project with one needle, but to actually construct anything, more than one needle is necessary: at least two actors need to collaborate and build upon each other’s work. If those two actors neatly agree upon the pattern to be knitted, the resulting sheet may be uniform and dense, able to cover all situations it is intended for. However, it is not that easy to knit in exactly the same pace and pattern. Sometimes, the wool is held too tightly, and the net becomes too dense; sometimes the wool is held too loosely, and the net will have holes. The constructed law may not fit perfectly all situations it is intended for, because the different actors may have had different patterns in their head. This visualization provides for an innovative analytical tool that makes it possible to demonstrate the variety in ‘successful’ change of a given norm in international law in response to specific challenges the actors face.
May 2021, Ezgi Yildiz appointed as a member for the Informal Expert Group for the Implementation of the EU Anti-Torture Regulation (Regulation 2019/125) for the EU Service for Foreign Policy Instruments for two years (2021-2023).
20.05.2021 “The Human Side of Protecting Foreign Investment” – A New Journal Article by Dorothea Endres
This article looks at the human side of protecting foreign investment in the sense that it zooms onto the role stereotypes play in the development of the relation between human rights and investment law. I demonstrate that international human rights law not only protects from discrimination based on stereotypes but also creates and reiterates stereotypes. These stereotypes may entrench differences between communities but also bear potential for new convergences. I argue that we need to focus on the humans producing the transnational legal discourse and the process of normalisation of those humans in order to destabilise stereotypes that hinder possible convergences of human rights and investment community. In short, this paper explores in what way international law’s stereotypes encourage convergence or divergence in transnational legal discourse on the intersection between human rights and investment law.
18.03.2021 “The Process of Change in International Law” – A UCL Current Legal Problems Lecture by Nico Krisch
The relation of change and stability is a perennial question in law, but it poses particularly urgent problems in international law because of the lack of a proper legislature and the scarcity of courts. Beyond the conclusion of treaties, though, the process of change in international law is little understood. Most observers focus on doctrinal categories associated with change – especially the requirements for new customary rules, or as regards treaties, the threshold for change through subsequent practice. Yet these hardly reflect the dynamism of international law in many areas, nor can they help us to understand the observable variation in dynamism across areas and institutional contexts. In this talk, I try to get closer to a broader account of change that starts, rather than from doctrinal categories, from the practices of actors in relation to international law. The resulting picture is one of a diversity of authority structures in the different fields of international law, brought about endogenously through social practice, and driving change onto particular ‘paths’. States are often central actors, though their weight varies with the social and institutional context in which change attempts are embedded. Drawing on the findings of a considerable number of case studies, I reconstruct the ways in which change occurs in international law and use our findings to suggest an account of the international legal process which transcends the normative and analytical limitations of existing approaches of this kind. Rather than a set of rules (or even a legal system), international law then appears as a multitude of processes, often intersecting and with varying degrees of authority, through which actors navigate, recreate and transform the content of the law.
01.03.2021 “Connecting Perspective of the Global South with Perspectives of the Global North on human rights obligations of corporations” – A Presentation at the EUI Doctoral Forum on Practicing Reflexivity by Dorothea Endres
Much of the literature on corporate social responsibility and business & human rights I come across is drafted in the terms of evil Western corporations from which powerless developing countries need to be saved – on the terms of human rights purely drafted in the logic of Western legal developments. While this is a powerful narrative, worthy of analysis in itself, my aim is to find an alternative way to provide an academic voice from the Global North that takes account of Global South perspectives in their own agency. In this enterprise, the situatedness as central-European lawyer proves to be a continuous challenge: recognizing and reflecting my own subjectivities in the evaluation of non-Western positions remains a difficult task.
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.
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.
30.11. to 10.12. 2020 PATHs Workshop convened by Nico Krisch and Ezgi Yildiz
Twenty scholars of international law and international relations, from junior to senior, held virtual in-depth discussions on draft chapters for a joint volume around the project theme. The program is available here: Paths of International Law Workshop Program.
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.
PATHS Workshop Programme
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)
13:00-14:00 Lunch
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
08:45-09:00 Coffee
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)
13:00-14:00 Lunch
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)
17:00 Apéro
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
Geneva, Switzerland
Convenors:
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?
Submission procedure:
We invite interested scholars to submit an abstract of no more than 300 words by 10 January 2019 at paths@graduateinstitute.ch.
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.
Practical information:
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.
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.
30.11. to 10.12. 2020 PATHs Workshop convened by Nico Krisch and Ezgi Yildiz
Twenty scholars of international law and international relations, from junior to senior, held virtual in-depth discussions on draft chapters for a joint volume around the project theme. The program is available here: Paths of International Law Workshop Program.
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.
PATHS Workshop Programme
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)
13:00-14:00 Lunch
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
08:45-09:00 Coffee
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)
13:00-14:00 Lunch
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)
17:00 Apéro
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
Geneva, Switzerland
Convenors:
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?
Submission procedure:
We invite interested scholars to submit an abstract of no more than 300 words by 10 January 2019 at paths@graduateinstitute.ch.
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.
Practical information:
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.
PATHS of International law 