Abstract

Abstract 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.

Highlights

  • Change is a perennial challenge for law—much of the appeal of the rule of law stems from law’s stability and predictability, yet at the same time, if law is to retain its legitimacy, it needs to adapt to changingVC The Author(s) 2021

  • 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 and less orderly life than typically assumed

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Summary

Introduction

Change is a perennial challenge for law—much of the appeal of the rule of law stems from law’s stability and predictability, yet at the same time, if law is to retain its legitimacy, it needs to adapt to changing. Formal mechanisms for legal change are few and far between, and where they exist—as in amendment procedures for treaties—they typically erect such high hurdles that timely adaptation becomes all but impossible This is largely due to the consensual structure of international law, which requires state consent for the creation of international treaty obligations and for their alteration, generating a powerful force for the status quo once a treaty has been put in place. The Commission emphasized the need for an ‘agreement of the parties’ – where a practice is not shared by all parties, it has lesser weight (if any at all).[4] The ILC was careful to avoid the impression that practice could modify a treaty—as opposed to adjusting its interpretation—in the absence of a formal amendment With such thresholds and the difficulties of generating agreement among large numbers of states, we would expect change in international law to be limited and infrequent. The article can only present empirical evidence in a limited fashion, but I hope that it will provide a frame for future studies of and engagement with the dynamics of international law

Approaching the Problem of Change
Reconstructing the Process of Change
Two Vignettes of Change
The Shifting Sands of ‘Public Bodies’ in WTO Subsidies Law36
The Emergence of the Right to Water51
Patterns of Change
International Law as Many
Different Pathways of Change
Authority in and through Practice
The Varied Roles of States
Politics or Law?
A Conclusion
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