Change in International Law Through Informal Means: The Rise of Exceptions to State Official Immunity for International Crimes

International lawyers tend to account for change in international legal rules through the doctrine of sources. Yet, more often than not, what they believe to be the law is not convincingly explainable through these formalistic means. One such area is the law on state official immunities, where a majority of the international legal community today believes there to be exceptions to immunity in cases of international crimes. This paper seeks to explain this paradox and offer a non-formalistic, discursive account of change in international law. It does so by suggesting that, where state opposition blocks formal pathways, change often finds its way informally provided that: a) other actors are persistent in their attempt and resilient to state opposition; b) certain legal and discursive preconditions make the attempt plausible in order for it to be taken up by broader constituencies; and that minimal institutional channels are available in order to allow for authoritative endorsement.