Is a former state-official accused of committing international crimes immune from prosecution before domestic courts? A majority of international lawyers would answer no to that question if posed nowadays. Very likely, however, that majority would have held different views 20 or 30 years ago. How has this change occurred? This paper seeks to tackle this question by, first, looking at the material conditions under which this shift in opinions within the broad interpretive community of international law took place, and second, by exploring the apparent paradox existing in the fact that the whole matter seems to fit awkwardly with traditional accounts of change in international law. The paper will focus on the role that factors such as norm-stability, agency, institutional availability and social legitimacy play in the shaping of international law, as opposed to the traditional requirements of more formal approaches, namely state practice and opinio juris.
International legal change occurs on many paths – sometimes it is driven by state practice, but more often it is brought about through multilateral statements, pronouncements of international organizations, judicial findings, or private authority, for example in the form of expert opinions. What conditions the paths on which change travels? In this paper, I present an account that uses a historical institutionalist framework and focuses on the interaction of change agents and institutions. I suggest that the accessibility of the different paths, coupled with the prospects for effective change they hold, determines institutional choices by change agents. In this framework, if one or several paths are blocked, action shifts to others, thus raising pressure on them to process, and potentially accommodate, claims for change. I illustrate the argument with examples from international humanitarian law and international trade law.
International courts have become a key driver of informal change in international law. The development of international criminal law is a core example, as both its substantive and procedural rules have changed significantly with the proliferation of international and internationalized criminal courts. Which role have states assumed in a situation in which change was driven by courts? This paper uses the concept of interpretive communities to examine empirically how government representatives follow, report on and potentially criticize innovative interpretations proposed by international criminal courts. Drawing on novel interview material with 17 government representatives from both supportive and more critical states, the paper argues, and shows empirically, how the ability of international criminal courts to innovate legal meaning is actively constructed and challenged through the ways in which government representatives engage with their jurisprudence in their day-to-day practice.
This paper traces the impact of asymmetric power-relations on change in international humanitarian law with a focus on divergencies in the regulation of two non-state actors: private military companies and non-state armed groups. Traditionally, such divergencies are explained through the state’s monopoly on the use of force. In contrast, the paper seeks to show that a larger web of asymmetric power-relations determines the diverging paths of legal change of the regulation of those two actors. In this analysis, it highlights in particular the agency of Global North as opposed to Global North countries. The paper demonstrates how the attempt to change IHL regarding non-state actors is deeply structured and motivated by asymmetric power-relations in three respects: 1) militarily regarding the wielding of violent power, 2) economically regarding interests and resources in the conflict and 3) regulatorily regarding the capability to impose one’s norms and to resist such impositions.