13 April 2017

An ERC project by Nico Krisch studies when and how international law changes

“PATHS” seeks mainly to understand when political and social change translates into legal change.

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). Interview.

What intellectual motivation has led you to study the dynamic character of international law?

I have long been interested in the politics around international law – I am teaching on the topic, and I’ve written various articles related to it over the years. But little scholarship directly tackles the question of how change in international law happens – beyond the formal rules that exist – and the pieces that do mostly look at formal change through treatymaking. Yet in my experience, much of the change in international law takes place in informal ways, through reinterpretation of treaties or gradual shifts in customary law, and it tends to be more rapid and also less structured than the formal picture of international lawyers would make us believe. So I thought that here is a gap in our understanding that is waiting to be closed.

Your project aims to trace attempts at informal change in international law in several issue areas, identify relevant factors behind the developments in those cases, and understand how they relate to the formal categories of international legal change. Can you expand upon that?

The idea is to get a better picture at when change in international law actually happens, and especially at when political change translates into legal change. Law is an institution that is linked to the political process, but not identical with it: politics are filtered in and through law, and not every political change is also registered as legal change. I’m interested in which actors and institutions play a role, which role power differentials play in the process, and how important the context of evolving social norms is. I will focus on change processes over the last decades in six selected issue areas: general international law, the laws of war, economic, environmental, and human rights law as well as the law of international organisations. And I want to contrast the findings on the political and social factors behind informal change with the formal criteria international lawyers use – mostly to do with a convergent practice of states, or, in the case of a treaty, the practice of all treaty parties. I ask: To what extent is this formal picture accurate? And how can we build a coherent framework for understanding international legal change as a political process?

What kinds of theoretical tools, case studies and methodology will you use?

The main focus of the project will be on a detailed reconstruction of change processes in the six issue areas just mentioned, and the ERC funding allows me to build a team to undertake this work. The team will include, apart from myself, a postdoctoral researcher as well as two doctoral students and a research assistant. For each of the six areas, we will select six to eight cases of attempted change and trace the success of these attempts, the actors behind it, as well as the broader context – which actors support, resist or acquiesce in the attempts; which institutions play a role; and what the status of social norms is that are invoked to bring about legal change. With the number of cases generated through this, we should be able to discern patterns and understand better which conditions favour change and which impede it.

Do you already have a hypothesis in this respect?

I start from two intuitions that are somewhat opposed to one another. One is rather “realist”, in that it sees powerful states as the main drivers of change – and as being able to bring about change even if there is significant resistance from other actors. The other sees change processes in law as following an alternative, more “normative” logic in which weaker actors are empowered and succeed in effecting change, even though the distribution of material power and wealth does not necessarily favour them – a story of “discursive” power, if you will. There is anecdotal evidence for each of these approaches, and I am keen to explore their relation to one another. I certainly believe that most accounts so far – whether more realist or more normative ones – have underestimated the role of institutions and authorities in the making of international law, and one aim of the project is to get a clearer picture of how relevant institutions are in the change processes we study.

How was the “path” to obtain this ERC project? Was it long and complicated?

In fact, not as long and complicated as one would think. I had thought about the project for a while, but it was really only last summer that I began to focus on it more directly – I then devoted a good part of the summer to writing it up. I submitted in the beginning of September, and five months later I got the good news about it being funded. Compared with other project applications – especially projects in research groups that involve different principal investigators – this one was pretty quick and straightforward. And lucky, of course.

Is “better understanding the normative grounding of international law” only a theoretical exercise for scholars? Or can citizens, for instance, be concretely concerned by this research? If so, can you provide a concrete example?

One part of the project is to ask: How should international law change? This is a normative inquiry, and it is meant to put us in a position to evaluate the ways in which new international law comes about. The tensions here are manifold. Many see facilitating change as a way to achieve progress for the common good – peace, human rights, the environment, etc. – for which the traditional, status-quo oriented rules of international law are badly equipped. But then there are others who warn that rule change, if made too easy, can turn into an imposition: it can serve to impose the interests of some on all. This throws us deep into questions of self-government and public goods in an age of interdependence, and while I am intuitively in favour of greater flexibility in international law, there is obviously a need to find a balance between competing values here, and we may have to explore middle ways – perhaps “relative legalities” – in our search for solutions. But this is not just a philosophical exercise: we should all be interested in the ways in which international law is produced. And this all the more so as much of international law today governs issues that concern us directly: carbon emissions are the most obvious example, but we can also think about food safety affected by free trade, or health systems affected by investment rules. The outcry in Europe in recent years over trade and investment agreements such as the Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) has shown that there is an increased sensitivity for the problems international law can cause. Such problems also emerge in the processes I seek to study in the project – the more informal processes of change in international law. And the fact that the problems are less openly visible in this context does not mean that they are less urgent, also for a broader public.