I’m excited to have the case studies from our PATHS project out on SSRN now – a great amount of fascinating material on change processes in international law (and their many paths) over the past decades, courtesy of Pedro Martinez Esponda, Ezgi Yildiz and Dorothea Endres. Abstract and table of contents below. More work drawing on these cases coming soon!

Abstract
What does it take for international legal rules to change? Key to any serious attempt at accounting for the dynamism of the field – and yet surprisingly understudied – this query constituted the central endeavour of the Paths of International Law project, conducted at the Geneva Graduate Institute from 2018 to 2023. The present compilation lays out the empirical materials used in the project to build a theoretical account of change in international legal rules. These consist of 25 case studies, each zooming into the legal history and politics of individual norm-change attempts and seeking to provide an analytical reconstruction of the elements that facilitated or hindered shifts in of each of them. The case studies cover eight issue areas of international law, which provide the structure of this compilation: General International Law, International Human Rights Law, International Humanitarian Law, International Criminal Law, the Law of the Sea, International Environmental Law, International Trade Law, and International Investment Law. This allowed the project to test international rules in different settings and contexts, making for a rich overview of change in international law.

Contents

Good summer news – my piece “Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance” is out in the European Journal of International Law (in advance view and open access!). It traces how unilateral exercises of jurisdiction by a few countries generate oligarchical global governance and how this affects how we should conceptualize the legal and normative problems that arise from it. You can access the piece here, the abstract is below. Also out is Roger O’Keefe’s insightful comment (here). We don’t disagree on the law as much as on its consequences – Roger is right that ‘unbound’ jurisdiction does not necessarily lead to domination, but it makes it likely in a context of stark economic inequality. My (more detailed) response to him will appear at some point on EJILTalk!.

The piece is the fruit of the PATHS project, hosted by the Geneva Graduate Institute’s Global Governance Centre and generously funded by the European Research Council. It has also benefited from comments from many colleagues, especially at the Vienna conference of the German Society of International Law.

Abstract: The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centred on territoriality as the guiding principle, has remained stable for a long time. This article 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 wide and overlapping jurisdictional claims, 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 article 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 public accountability and self-government in weaker states.

In a post on EJILTalk! I reflect on the state of the law on the use of force in international law in light of Russia’s invasion in Ukraine. I focus especially on the impact of the fact that Western countries have often ignored the law when its constraints appeared to clash with political goals or moral demands, and how this impact changes with the turn to today’s multipolar, posthegemonic international order. In a decentralized order such as international law, the weight of the law is eroded if powerful actors treat it cavalierly. Western governments may have long thought that their own disrespect for Charter rules was inconsequential because of their own hegemonic position – because they had the means to deter or stop others from taking the same latitude. In a changed world order, this is no longer the case, and the insistence on international law by the US and Europe must now look somewhat hypocritical to those who have long been critical of Western interventionism. In today’s multipolar world, maintaining the law on the use of force will require not only decisive responses when others flout the law, but also a readiness to practice restraint oneself.

A somewhat longer development of some of these ideas (in German) can be found here.

Last Friday I gave a virtual lecture at the Lauterpacht Centre for International Law in Cambridge in which I presented a draft paper, co-authored with Ezgi Yildiz, on “From Drivers to Bystanders: The Varying Roles of States in International Legal Change”. A fruit of our PATHS project, the paper tries to understand the dynamics of international law better by focusing on different forms of influence states exercise over processes and outcomes of change. This leads us to a more nuanced – and less statist – account as well as a rough heuristic of such roles which we hope will help to structure the further explorations of change processes. A longer abstract is below; the full lecture is recorded and freely available here. Comments welcome!

Abstract: 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.

The PATHS project is made possible through funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 740634).

Our book on Entangled Legalities beyond the State is finally out electronically – and it’s open access! A great cast of contributors explores how legal multiplicity leads to entanglement, and how this challenges the way we do and think about law. The print version will be out in a few weeks, but you can already start reading (and download chapters or the entire book) here.

The volume is nicely 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.

Here is the blurb: 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 the fruit of the Interface Law project I conducted with Lucy Lu Reimers, Francesco Corradini and Tomas Morochovic as part of the broader OSAIC research group and with the support of the Swiss National Science Foundation and the Deutsche Forschungsgemeinschaft.

On 14 and 15 October we are hosting a great conference on ‘Alternative Approaches to International Organizations Law’, which tries to take a step back from typical accounts of that area of law, draws in insights from international relations, history, sociology, anthropology and critical studies and to think about how to reorient our inquiries. Thanks to the organizers, Negar Mansouri and Daniel Quiroga Villamarin, we have a great group of speakers from different disciplines, and the conference takes place both in person at the Graduate Institute and online. Registration and more information is here. More on the conference theme below.

The conference theme: As International Organizations (IOs) tend to work in practice, few international lawyers have paid much thought to how they work in theory. As Klabbers and Sinclair noted recently, international organization law “is one of those fields of international law where the theorization by lawyers has been kept to a minimum”. As an example, functionalism -the main theoretical approach produced by international lawyers- which unsurprisingly “has been developed by practitioners, responding to practical challenges, often in piecemeal fashion and through mimicry or comparison”. Our neighboring disciplines, however, have been much more attentive to the theorization of these institutions. In the last three decades, scholars have increasingly applied the tools of international relations (IR), history, or ethnography -inter alia- to rethink the role of IOs in global governance. With the generous support of the Swiss National Science Foundation and the Global Governance Centre & International Law Department at the Graduate Institute, Geneva (IHEID), our international conference aims to open up the space for multidisciplinary discussions on potentials of non-doctrinal approaches to the study of IOs in international law. The main premise of the event is that ‘alternative’ approaches could not only shed light on the unexplored nature and functioning of international organizations in international law but are also integral to a thorough understanding of rules and legal regimes in international law. The term ‘alternative approaches’ includes both interdisciplinary methods and the application of critical approaches developed within international law to international organizations.  We aim to capture both diverse ‘subjects of enquiry,’ as well as how different disciplines study the same subject differently.

Current Legal Problems has just published my new piece, “The Dynamics of International Law Redux”, online – and it’s open access! The piece comes out of our project on The Paths of International Law in which we explore change processes in the international legal order, and it presents our guiding ideas and approaches as well as some empirical materials. The abstract is below – comments always welcome!

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.

Many thanks go to the project team – Dorothea Endres, Nina Kiderlin, Pedro Martínez Esponda, and Ezgi Yildiz – for their research, comments and assistance. The research for this article was supported by the European Research Council under the European Union’s Horizon 2020 research and innovation programme (grant agreement no 740634)

I have a new working paper out: “Jurisdiction Unbound: Global Governance through Extraterritorial Business Regulation”. It is part of our PATHS project on change and stability in international law and tries to understand how the – traditionally very territorial – international law of jurisdiction has responded to pressures for change in a globalizing world. The upshot of the argument is that, despite much continuity on the surface, the categories of jurisdiction available to states have been transformed in such a way as to be virtually ‘unbound’ today. This expansion supports the unilateral regulation of global markets by powerful states, thus creating a structure of global governance in disguise. Acknowledging that jurisdiction is so closely interwoven with governance – and is not merely an expression of equal sovereigns in the international order – is the first step to tackling the accountability problems posed forcefully by unilateral regulation. The full abstract is below, the paper here. Comments welcome!

Abstract:
The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centered on territoriality as the guiding principle, has remained stable for a long time. This 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.

Francesco Corradini, Lucy Lu Reimers and myself have a new piece coming out from our projects on Interface Law and Paths of International Law: “Order at the margins: The legal construction of interface conflicts over time”. It is available here, part of a special issue of the journal, Global Constitutionalism, on “After Fragmentation: Norm Collisions, Interface Conflicts, and Conflict Management”. The special issue, resulting from the OSAIC research group, tries to understand how conflicts between norms from different spheres of authority in global governance are dealt with and how they affect the overall global order. Our piece focuses on legal modes of processing such conflicts, and in particular on how these conflicts unfold (and shape order) over time. The abstract is below; an openly accessible version is here.

Abstract: 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.