Processes of change in international law are typically portrayed as centered on states. Other actors (international organizations, civil society organizations, expert groups, or scholars) play a role in these processes as supporting characters. Considering the fragmented or even fractured nature of the world, and the growing polarization among states, how can state-focused models explain the significant changes observed in the past two decades? We propose to explain this under-explored dynamism by shifting the focus away from solely state-centric explanations. We introduce a typology for various other roles states play by building on evidence from different issue areas of international law in which important change processes centrally involve non-state actors, with states occupying more limited or even marginal roles. Our account includes five main roles: central ones as drivers and blockers, marginal ones as bystanders, and intermediate ones as catalysts and spoilers.
The UN’s Sustainable Development Goals (SDGs) were adopted in part to inject dynamism into international environmental governance that law is perceived to lack. In fact, the performance metrics on which the SDGs are predicated have long been an important component of international environmental regimes, as an analysis of the climate change regime clearly illustrates. I argue that the integration of metrics into legal regimes holds distinct advantages over the SDG approach, in which metrics are developed and implemented with little or no contribution by legal normativity. The Paris Agreement illustrates how legal norms and metrics can work together to generate equilibrium between instrumentality and legality, scientific and legal modes of reasoning, and dynamism in the face of rapid ecological change and scientific understandings, and the stability provided by normative approaches.
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.
This paper argues for international legal change in human rights as a consequence of a states-as-bystander effect: When states do neither actively drive or block change processes, and alternative state-empowered authorities exist in a legal field, states’ position at the sidelines opens a path for non-state actors to enact substantive change. In human rights law, this is a process they route through General Comments, a powerful instrument of the human rights treaty bodies to set, expand, and redefine standards for global human rights. This article bears its core argument of a states-as-bystander effect by taking a single norm, the necessity of water for human life, and tracing its change process from non-existent in human rights law, to a non-right, to a condition for other rights, and, finally, to the recognition of water and sanitation as independent rights at the international level. Ultimately the analysis shows that non-actors can enact change to law, and do so, on the heels of states’ relegation to the periphery of the human rights system, which has opened the door for certain actors —transnational coalitions of expert body members, human rights advocates and issue professionals — to use General Comments in a way that not only impacts international legal change but also can withstand state opposition.