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Preface
Dynamism is perhaps the defining characteristic of the modern world. The speed at which the world changes seems to be ever increasing, so much so that it often appears out of control. As Anthony Giddens wrote thirty years ago, ‘living in the modern world is . . like being aboard a careering juggernaut’, and his diagnosis has only become more obvious today. Entire sociological theories are now built around the notion of social acceleration, and we live, in Hartmut Rosa’s words, on ‘slipping slopes’.
This dynamism poses serious problems for any form of governance, and in particular for law. Law in modernity is ensnared in a perennial tension—meant to guarantee stability and predictability, it also needs to change and adapt at an ever-faster pace in order to make good on the promise of ordering society. Between stability and change, between the past and the future, law is caught in an uneasy oscillation, never able to cater fully to either. Legal institutions in the modern state have found ways of coping with this oscillation, by establishing legal fixed points in the continuing process of social, political, and economic change, and by revising these rapidly in a continuous exercise of reflexivity through legislation and administrative regulation.
On the international plane, however, we find few comparable tools—treaties, seemingly closest to domestic statutes, are too difficult and slow to negotiate and amend to be able to strike a similar balance. Secondary rulemaking by international organizations is largely limited to non-binding forms. Change is then a core challenge for international law, but we do not understand it all too well. We do not know how, realistically, more dynamic adaptation could be achieved in an international legal order built around diverse, sovereign states. But we also do not even know very well how international law actually changes—how dynamic it really is, and the factors that facilitate or hinder this dynamism.
This volume is an attempt to fill this gap. It comes out of a project we have been heading for a few years, on ‘The Paths of International Law’. With our team (which included Dorothea Endres, Nina Kiderlin, and Pedro Martínez Esponda, all of whom also have chapters in this book) we have sought to get a better understanding of the ways in which international law actually changes—the actors, institutions, and conditions that matter in change processes. For this, we took a deliberate distance from the doctrinal categories in which international lawyers typically study change—these exclude by definition many instances in which new rights, obligations, and understandings of international legal norms have come about outside traditional, state-centred processes.
The present volume is the fruit of a collaboration that began with a workshop we hosted in Geneva in the summer of 2019. The energy in the room was extraordinary, and not just because of the beautiful views of Lake Geneva outside our workshop venue. It was especially the conversations across disciplinary boundaries—between lawyers, sociologists, and international relations scholars in particular—that worked exceptionally well, and we decided to continue these in a smaller group with a view to producing a joint volume. An authors’ workshop and various conference panels later, we are happy that the conversation has continued and that contributions have all come together to make for a stimulating whole which, we hope, will find many readers.
The beauty of a volume of this kind is that it is held together by a common theme—the paths of change in international law—but explores this theme in a great many directions, driven by the backgrounds and curiosities of the different contributors, to whom we owe many thanks. We learn about Raphael Lemkin and Donald Trump, about subsidies as well as search and rescue at sea, and about rights activists and authoritarian antipreneurs. Only Godot, impressively present in his absence at the 2019 workshop, remains outside this time. International law’s social life, the actors behind it, come to life here in a way which, for international lawyers at least, is rare. And international law emerges from this volume as more dynamic than usually catches the eye—but still within limits, and often caught between rival visions of whether it should change or in what direction.
Apart from our team and the contributors, we would also like to thank Matthew Daminato for his help with editing; Clarissa Brack Burdeu, Camila Morais Silva, and Sylvia Nissim at the Graduate Institute’s Global Governance Centre for their administrative and logistical support; and Robert Cavooris and Lane Berger at Oxford University Press for steering the process of publication. Last but not least, we are grateful to the European Research Council whose funding has made our research, the workshops, as well as the open access publication possible. We hope you, the readers, will enjoy the fruits.
Nico Krisch
and Ezgi Yildiz
Acknowledgements
This book is part of ‘The Paths of International Law: Stability and Change in the International Legal Order’, a project that has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 740634. Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Council Executive Agency. Neither the European Union nor the granting authority can be held responsible for them.
Summary Contents
List of Contributors xvii
List of Abbreviations xix
I. INTRODUCTION
1. Nico Krisch and Ezgi Yildiz, ‘The Many Paths of Change in International Law: A Frame’ 3
II. S TRATEGIES OF CHANGE
2. Mark A Pollack, ‘Trump as a Change Agent in International Law: Ends, Means, and Legacies’ 35
3. Pedro Martínez Esponda, ‘Norm-instability as a Strategy in International Lawmaking: The Case of Self-defence against Non-state Actors’ 69
4. Nina Reiners, ‘Transnational Lawmaking Coalitions as Change Agents in International Law’ 89
III. FO RMS OF CHANGE
5. Tonya Putnam, ‘Tracing International Legal Change in Genocide Prevention’ 107
6. Wouter Werner, ‘The Making of Lawmaking: The ILC Draft Conclusions on the Identification of Customary Law’ 129
7. Jaye Ellis, ‘The Turn to Metrics in International Environmental Law’ 151
IV. FO RCES OF CHANGE
8. Wayne Sandholtz, ‘Resurgent Authoritarianism, Rights, and Legal Change’ 179
9. Seline Trevisanut, ‘The Future of the Oceans: The Role of Human Rights and International Environmental Law in Shaping the Law of the Sea’ 201
10. Nina Teresa Kiderlin, ‘World Trade Law and the Rise of China: Struggles over Subsidy Rules’ 227
V. S ITUATING CHANGE
11. Jeff Kucik and Sergio Puig, ‘The Appellate Body’s Judicial Pathway: Precedent, Resistance and Adaptation’ 249
12. Dorothea Endres, ‘Whose International Law is Changing? The Practice of Fragmented Communities Constructing Legal Change’ 267
13. Fuad Zarbiyev, ‘A Quiet Revolution in the Making? The Changing State Authority in Treaty Interpretation’ 291
14. Ingo Venzke, ‘The Path not Taken: On Legal Change and its Context’ 309
VI. EPILOGUE
15. BS Chimni, ‘Epilogue: Fragmentary Thoughts on Informal Change’ 335
Index 347
I. INTRODUCTION
II. S TRATEGIES OF CHANGE
3.4 Attacking International Legal Institutions: The WTO Appellate Body
3. Norm-instability as a Strategy in International Lawmaking: The Case of Self-defence against Non-state Actors (Pedro Martínez Esponda)
2. The Historical Trajectory of Self-defence against Non-state Actors
3. Strategies of Norm-destabilization
3.1
3.2
3.3
4. Transnational Lawmaking Coalitions as Change Agents in International Law (Nina Reiners)
4. Change Agents in Action: Two Case Studies of Human Rights Treaty
4.1
5.
III. FO RMS OF CHANGE
5. Tracing International Legal Change in Genocide Prevention (Tonya Putnam)
3.2
3.3
3.4 Reframing (and Re-taming) Genocide
4. Conclusion
6. The Making of Lawmaking: The ILC Draft Conclusions on the Identification of Customary Law (Wouter Werner)
2. Codification as Pathway of Change
2.1 From Progressive Development to Codification
7.
2.
8.
IV. FO RCES OF CHANGE
2.
3.
10. World Trade Law and the Rise of China: Struggles over Subsidy Rules (Nina Teresa Kiderlin)
1. Introduction
2. China’s Challenge to International (Trade) Law
3. Generating Trade Law and Litigation Capacity
4. Subsidies and State-Owned Enterprises in China
5. Subsidy Regulation at the WTO
6. Shifts in the WTO Case Law
7. Conclusion
V. S ITUATING CHANGE
11. The Appellate Body’s Judicial Pathway: Precedent, Resistance, and Adaptation (Jeff Kucik and Sergio Puig)
1. Introduction
2. Precedent and the Competing Incentives of International Courts
2.1 The Use of Precedent and the Judicial Path
2.2 Exploring the Judicial Path through Non-compliance
2.3 Change and Adaptation of Precedent
3. Testing Change by Looking at Adaptation
3.1 Design
3.2
4. The Judicial Path and
4.1 The Paths
4.2
5. Conclusion
12. Whose International Law is Changing? The Practice of Fragmented Communities Constructing Legal Change (Dorothea Endres)
1. Introduction: A Trajectory of Change?
2. CoPs Changing International
2.1
2.2 CoPs
3. Three Kinds of Communities
3.1 C
3.2
3.3 Parallel Communities
4. Conclusion: How to Determine Whose International Law is Changing?
13. A Quiet Revolution in the Making? The Changing State Authority in Treaty Interpretation (Fuad Zarbiyev)
2. Assessing the Interpretive Authority of States
3. Anatomy of a Revolution in the Making
14.
15.
3.
3.2
3.3
4.
VI. EPILOGUE
List of Contributors
BS Chimni: Professor of International Law, Jindal Global Law School, Sonipat, India
Jaye Ellis: Associate Professor, McGill University, Montreal, Canada
Dorothea Endres: PhD Researcher in International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland; Research Assistant, Faculty of Law, University of Geneva
Nina Teresa Kiderlin: PhD Researcher in Anthropology and Sociology, Graduate Institute of International and Development Studies, Geneva, Switzerland
Nico Krisch: Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
Jeff Kucik: Associate Professor of Political Science and Law (by courtesy) at the University of Arizona
Pedro Martínez Esponda: Professor of International Law at Universidad Iberoamericana in Mexico City, Mexico
Mark A Pollack: Professor of Political Science and Law, Temple University, Philadelphia, PA, USA
Sergio Puig: Evo DeConcini Professor of Law and Director, International Trade and Business Law Program at the University of Arizona
Tonya Putnam: Research Scholar, Columbia University, New York, NY, USA
Nina Reiners: Associate Professor for Human Rights and Social Sciences at the Centre for Human Rights, University of Oslo, Norway; Associated Researcher, Graduate Institute of International and Development Studies, Geneva, Switzerland
Wayne Sandholtz: Professor and John A McCone Chair in International Relations, Department of Political Science and International Relations and Gould School of Law, University of Southern California, USA
Seline Trevisanut: Professor of International Law and Sustainability, Utrecht University, Utrecht, The Netherlands
Ingo Venzke: Professor of International Law and Social Justice, University of Amsterdam, Amsterdam, The Netherlands
Wouter Werner: Professor in International Law, Vrije Universiteit Amsterdam, Amsterdam, The Netherlands
Ezgi Yildiz: Assistant Professor of International Relations, California State University, Long Beach, CA, USA
Fuad Zarbiyev: Associate Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
OECD Organisation for Economic Co-operation and Development
OHCHR Office of the High Commissioner for Human Rights
ONUCA UN Observadores de las Naciones Unidas en Centro America (UN Peacekeeping Mission in Central America)
OPOL Offshore Pollution Liability Association
OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic
PATHS paths of International Law
PLO Palestine Liberation Organization
R2P responsibility to protect
RASRO Rescue at Sea Resettlement Offers
RCEP Regional Comprehensive Economic Partnership
ROPME Regional Organization for the Protection of the Marine Environment
SAR search and rescue
SAR Convention Search and Rescue Convention 1979
SCM Agreement Agreement on Subsidies and Countervailing Measures
SCO Shanghai Cooperation Organization
SD standard deviation
SDGs Sustainable Development Goals
SD-NSA self-defence against non-state actors
SEA Strategic Environmental Assessment
SG Secretary General
SOE state-owned enterprises
SOLAS Convention Convention on the Safety of Life at Sea 1974
SPA Specially Protected Areas
START Treaty Strategic Arms Reduction Treaty
TLC transnational lawmaking coalition
TLO transnational legal order
TPP Trans Pacific Partnership
TRIMS Trade Related Investment Measures
T WAIL Third World Approaches to International Law
UDHR Universal Declaration of Human Rights
UNGA UN General Assembly
UN United Nations
UNAMIR UN Assistance Mission for Rwanda
UNAVEM I UN Angola Verification Mission I
UNFCCC UN Framework Convention on Climate Change
UNGOMAP UN Good Offices Mission in Afghanistan and Pakistan
UNHCR UN High Commissioner for Refugees
UNHRC UN Human Rights Council
UNIIMOG UN Iran-Iraq Military Observer Group
UNODC UN Office on Drugs and Crime
UNSC UN Security Council
UNTAG UN Transition Assistance Group
UPR Universal Periodic Review
USMCA US Mexico Canada Agreement
USSR Union of Soviet Socialist Republics
USTR US Trade Representative
VCLT Vienna Convention on the Law of Treaties
V-Dem Varieties of Democracy
WHO World Health Organization
WTO World Trade Organization
PART I INTRODUCTION
1
The Many Paths of Change in International Law
A Frame
Nico Krisch* and Ezgi Yildiz**
1. Introduction
International politics is in constant flux. States’ interests, status, and power are shifting; norms governing appropriate behaviour are getting stronger or weaker, emerging or decaying, or changing complexion and content. It is stability, rather than mutability, that requires an explanation in politics. International law, on the other hand, appears much less fluid. While it will often reflect the shifting political constellations of its time to some extent, it is not merely the mirror image of politics, nor does it track political change immediately or in its entirety. Some changes in politics will make a quick impact, some a much slower one, and yet some will fail to leave a mark on the law.
How and when political change translates into new (interpretations of) international legal rules is not well understood so far. Existing approaches portray legal change as a result of power constellations, of the properties of the norms at issue, or as a phenomenon that depends on a new confluence of state interests. But they can hardly account for the dynamic, and varied, picture that emerges when we look at change processes in different areas of international law. Moreover, most approaches focus on treaties, but treaty-making faces a high threshold, and major new agreements are few and far between. Instead, the more frequent forms of change through reinterpretation or shifts in customary rules tend to remain out of view, but it is through these that many broader transformations find reflection in the international legal order.
This volume seeks to take us closer to an understanding of how change happens in international law, and consequently of the factors that facilitate or hinder the reception of political transformations in the international legal order. In this,
* Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland.
** Assistant Professor of International Relations, California State University, Long Beach, CA, USA.
