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Preface
Dynamism is perhaps the defining characteristic of the modern world. The speed at which the world changes seems to be ever increasing, so much so that it often appears out of control. As Anthony Giddens wrote thirty years ago, ‘living in the modern world is . . like being aboard a careering juggernaut’, and his diagnosis has only become more obvious today. Entire sociological theories are now built around the notion of social acceleration, and we live, in Hartmut Rosa’s words, on ‘slipping slopes’.
This dynamism poses serious problems for any form of governance, and in particular for law. Law in modernity is ensnared in a perennial tension—meant to guarantee stability and predictability, it also needs to change and adapt at an ever-faster pace in order to make good on the promise of ordering society. Between stability and change, between the past and the future, law is caught in an uneasy oscillation, never able to cater fully to either. Legal institutions in the modern state have found ways of coping with this oscillation, by establishing legal fixed points in the continuing process of social, political, and economic change, and by revising these rapidly in a continuous exercise of reflexivity through legislation and administrative regulation.
On the international plane, however, we find few comparable tools—treaties, seemingly closest to domestic statutes, are too difficult and slow to negotiate and amend to be able to strike a similar balance. Secondary rulemaking by international organizations is largely limited to non-binding forms. Change is then a core challenge for international law, but we do not understand it all too well. We do not know how, realistically, more dynamic adaptation could be achieved in an international legal order built around diverse, sovereign states. But we also do not even know very well how international law actually changes—how dynamic it really is, and the factors that facilitate or hinder this dynamism.
This volume is an attempt to fill this gap. It comes out of a project we have been heading for a few years, on ‘The Paths of International Law’. With our team (which included Dorothea Endres, Nina Kiderlin, and Pedro Martínez Esponda, all of whom also have chapters in this book) we have sought to get a better understanding of the ways in which international law actually changes—the actors, institutions, and conditions that matter in change processes. For this, we took a deliberate distance from the doctrinal categories in which international lawyers typically study change—these exclude by definition many instances in which new rights, obligations, and understandings of international legal norms have come about outside traditional, state-centred processes.
The present volume is the fruit of a collaboration that began with a workshop we hosted in Geneva in the summer of 2019. The energy in the room was extraordinary, and not just because of the beautiful views of Lake Geneva outside our workshop venue. It was especially the conversations across disciplinary boundaries—between lawyers, sociologists, and international relations scholars in particular—that worked exceptionally well, and we decided to continue these in a smaller group with a view to producing a joint volume. An authors’ workshop and various conference panels later, we are happy that the conversation has continued and that contributions have all come together to make for a stimulating whole which, we hope, will find many readers.
The beauty of a volume of this kind is that it is held together by a common theme—the paths of change in international law—but explores this theme in a great many directions, driven by the backgrounds and curiosities of the different contributors, to whom we owe many thanks. We learn about Raphael Lemkin and Donald Trump, about subsidies as well as search and rescue at sea, and about rights activists and authoritarian antipreneurs. Only Godot, impressively present in his absence at the 2019 workshop, remains outside this time. International law’s social life, the actors behind it, come to life here in a way which, for international lawyers at least, is rare. And international law emerges from this volume as more dynamic than usually catches the eye—but still within limits, and often caught between rival visions of whether it should change or in what direction.
Apart from our team and the contributors, we would also like to thank Matthew Daminato for his help with editing; Clarissa Brack Burdeu, Camila Morais Silva, and Sylvia Nissim at the Graduate Institute’s Global Governance Centre for their administrative and logistical support; and Robert Cavooris and Lane Berger at Oxford University Press for steering the process of publication. Last but not least, we are grateful to the European Research Council whose funding has made our research, the workshops, as well as the open access publication possible. We hope you, the readers, will enjoy the fruits.
Nico Krisch
and Ezgi Yildiz
Acknowledgements
This book is part of ‘The Paths of International Law: Stability and Change in the International Legal Order’, a project that has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No 740634. Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Research Council Executive Agency. Neither the European Union nor the granting authority can be held responsible for them.
Summary Contents
List of Contributors xvii
List of Abbreviations xix
I. INTRODUCTION
1. Nico Krisch and Ezgi Yildiz, ‘The Many Paths of Change in International Law: A Frame’ 3
II. S TRATEGIES OF CHANGE
2. Mark A Pollack, ‘Trump as a Change Agent in International Law: Ends, Means, and Legacies’ 35
3. Pedro Martínez Esponda, ‘Norm-instability as a Strategy in International Lawmaking: The Case of Self-defence against Non-state Actors’ 69
4. Nina Reiners, ‘Transnational Lawmaking Coalitions as Change Agents in International Law’ 89
III. FO RMS OF CHANGE
5. Tonya Putnam, ‘Tracing International Legal Change in Genocide Prevention’ 107
6. Wouter Werner, ‘The Making of Lawmaking: The ILC Draft Conclusions on the Identification of Customary Law’ 129
7. Jaye Ellis, ‘The Turn to Metrics in International Environmental Law’ 151
IV. FO RCES OF CHANGE
8. Wayne Sandholtz, ‘Resurgent Authoritarianism, Rights, and Legal Change’ 179
9. Seline Trevisanut, ‘The Future of the Oceans: The Role of Human Rights and International Environmental Law in Shaping the Law of the Sea’ 201
10. Nina Teresa Kiderlin, ‘World Trade Law and the Rise of China: Struggles over Subsidy Rules’ 227
V. S ITUATING CHANGE
11. Jeff Kucik and Sergio Puig, ‘The Appellate Body’s Judicial Pathway: Precedent, Resistance and Adaptation’ 249
12. Dorothea Endres, ‘Whose International Law is Changing? The Practice of Fragmented Communities Constructing Legal Change’ 267
13. Fuad Zarbiyev, ‘A Quiet Revolution in the Making? The Changing State Authority in Treaty Interpretation’ 291
14. Ingo Venzke, ‘The Path not Taken: On Legal Change and its Context’ 309
VI. EPILOGUE
15. BS Chimni, ‘Epilogue: Fragmentary Thoughts on Informal Change’ 335
Index 347
I. INTRODUCTION
II. S TRATEGIES OF CHANGE
3.4 Attacking International Legal Institutions: The WTO Appellate Body
3. Norm-instability as a Strategy in International Lawmaking: The Case of Self-defence against Non-state Actors (Pedro Martínez Esponda)
2. The Historical Trajectory of Self-defence against Non-state Actors
3. Strategies of Norm-destabilization
3.1
3.2
3.3
4. Transnational Lawmaking Coalitions as Change Agents in International Law (Nina Reiners)
4. Change Agents in Action: Two Case Studies of Human Rights Treaty
4.1
5.
III. FO RMS OF CHANGE
5. Tracing International Legal Change in Genocide Prevention (Tonya Putnam)
3.2
3.3
3.4 Reframing (and Re-taming) Genocide
4. Conclusion
6. The Making of Lawmaking: The ILC Draft Conclusions on the Identification of Customary Law (Wouter Werner)
2. Codification as Pathway of Change
2.1 From Progressive Development to Codification
7.
2.
8.
IV. FO RCES OF CHANGE
2.
3.
10. World Trade Law and the Rise of China: Struggles over Subsidy Rules (Nina Teresa Kiderlin)
1. Introduction
2. China’s Challenge to International (Trade) Law
3. Generating Trade Law and Litigation Capacity
4. Subsidies and State-Owned Enterprises in China
5. Subsidy Regulation at the WTO
6. Shifts in the WTO Case Law
7. Conclusion
V. S ITUATING CHANGE
11. The Appellate Body’s Judicial Pathway: Precedent, Resistance, and Adaptation (Jeff Kucik and Sergio Puig)
1. Introduction
2. Precedent and the Competing Incentives of International Courts
2.1 The Use of Precedent and the Judicial Path
2.2 Exploring the Judicial Path through Non-compliance
2.3 Change and Adaptation of Precedent
3. Testing Change by Looking at Adaptation
3.1 Design
3.2
4. The Judicial Path and
4.1 The Paths
4.2
5. Conclusion
12. Whose International Law is Changing? The Practice of Fragmented Communities Constructing Legal Change (Dorothea Endres)
1. Introduction: A Trajectory of Change?
2. CoPs Changing International
2.1
2.2 CoPs
3. Three Kinds of Communities
3.1 C
3.2
3.3 Parallel Communities
4. Conclusion: How to Determine Whose International Law is Changing?
13. A Quiet Revolution in the Making? The Changing State Authority in Treaty Interpretation (Fuad Zarbiyev)
2. Assessing the Interpretive Authority of States
3. Anatomy of a Revolution in the Making
14.
15.
3.
3.2
3.3
4.
VI. EPILOGUE
List of Contributors
BS Chimni: Professor of International Law, Jindal Global Law School, Sonipat, India
Jaye Ellis: Associate Professor, McGill University, Montreal, Canada
Dorothea Endres: PhD Researcher in International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland; Research Assistant, Faculty of Law, University of Geneva
Nina Teresa Kiderlin: PhD Researcher in Anthropology and Sociology, Graduate Institute of International and Development Studies, Geneva, Switzerland
Nico Krisch: Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
Jeff Kucik: Associate Professor of Political Science and Law (by courtesy) at the University of Arizona
Pedro Martínez Esponda: Professor of International Law at Universidad Iberoamericana in Mexico City, Mexico
Mark A Pollack: Professor of Political Science and Law, Temple University, Philadelphia, PA, USA
Sergio Puig: Evo DeConcini Professor of Law and Director, International Trade and Business Law Program at the University of Arizona
Tonya Putnam: Research Scholar, Columbia University, New York, NY, USA
Nina Reiners: Associate Professor for Human Rights and Social Sciences at the Centre for Human Rights, University of Oslo, Norway; Associated Researcher, Graduate Institute of International and Development Studies, Geneva, Switzerland
Wayne Sandholtz: Professor and John A McCone Chair in International Relations, Department of Political Science and International Relations and Gould School of Law, University of Southern California, USA
Seline Trevisanut: Professor of International Law and Sustainability, Utrecht University, Utrecht, The Netherlands
Ingo Venzke: Professor of International Law and Social Justice, University of Amsterdam, Amsterdam, The Netherlands
Wouter Werner: Professor in International Law, Vrije Universiteit Amsterdam, Amsterdam, The Netherlands
Ezgi Yildiz: Assistant Professor of International Relations, California State University, Long Beach, CA, USA
Fuad Zarbiyev: Associate Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
OECD Organisation for Economic Co-operation and Development
OHCHR Office of the High Commissioner for Human Rights
ONUCA UN Observadores de las Naciones Unidas en Centro America (UN Peacekeeping Mission in Central America)
OPOL Offshore Pollution Liability Association
OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic
PATHS paths of International Law
PLO Palestine Liberation Organization
R2P responsibility to protect
RASRO Rescue at Sea Resettlement Offers
RCEP Regional Comprehensive Economic Partnership
ROPME Regional Organization for the Protection of the Marine Environment
SAR search and rescue
SAR Convention Search and Rescue Convention 1979
SCM Agreement Agreement on Subsidies and Countervailing Measures
SCO Shanghai Cooperation Organization
SD standard deviation
SDGs Sustainable Development Goals
SD-NSA self-defence against non-state actors
SEA Strategic Environmental Assessment
SG Secretary General
SOE state-owned enterprises
SOLAS Convention Convention on the Safety of Life at Sea 1974
SPA Specially Protected Areas
START Treaty Strategic Arms Reduction Treaty
TLC transnational lawmaking coalition
TLO transnational legal order
TPP Trans Pacific Partnership
TRIMS Trade Related Investment Measures
T WAIL Third World Approaches to International Law
UDHR Universal Declaration of Human Rights
UNGA UN General Assembly
UN United Nations
UNAMIR UN Assistance Mission for Rwanda
UNAVEM I UN Angola Verification Mission I
UNFCCC UN Framework Convention on Climate Change
UNGOMAP UN Good Offices Mission in Afghanistan and Pakistan
UNHCR UN High Commissioner for Refugees
UNHRC UN Human Rights Council
UNIIMOG UN Iran-Iraq Military Observer Group
UNODC UN Office on Drugs and Crime
UNSC UN Security Council
UNTAG UN Transition Assistance Group
UPR Universal Periodic Review
USMCA US Mexico Canada Agreement
USSR Union of Soviet Socialist Republics
USTR US Trade Representative
VCLT Vienna Convention on the Law of Treaties
V-Dem Varieties of Democracy
WHO World Health Organization
WTO World Trade Organization
PART I INTRODUCTION
1
The Many Paths of Change in International Law
A Frame
Nico Krisch* and Ezgi Yildiz**
1. Introduction
International politics is in constant flux. States’ interests, status, and power are shifting; norms governing appropriate behaviour are getting stronger or weaker, emerging or decaying, or changing complexion and content. It is stability, rather than mutability, that requires an explanation in politics. International law, on the other hand, appears much less fluid. While it will often reflect the shifting political constellations of its time to some extent, it is not merely the mirror image of politics, nor does it track political change immediately or in its entirety. Some changes in politics will make a quick impact, some a much slower one, and yet some will fail to leave a mark on the law.
How and when political change translates into new (interpretations of) international legal rules is not well understood so far. Existing approaches portray legal change as a result of power constellations, of the properties of the norms at issue, or as a phenomenon that depends on a new confluence of state interests. But they can hardly account for the dynamic, and varied, picture that emerges when we look at change processes in different areas of international law. Moreover, most approaches focus on treaties, but treaty-making faces a high threshold, and major new agreements are few and far between. Instead, the more frequent forms of change through reinterpretation or shifts in customary rules tend to remain out of view, but it is through these that many broader transformations find reflection in the international legal order.
This volume seeks to take us closer to an understanding of how change happens in international law, and consequently of the factors that facilitate or hinder the reception of political transformations in the international legal order. In this,
* Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland.
** Assistant Professor of International Relations, California State University, Long Beach, CA, USA.
it places particular emphasis on the different pathways through which change occurs and the authorities that play a central role situated on each of these pathways. These vary across issue-areas and institutional contexts, and they are subject to change and transformation themselves. Without properly accounting for these pathways—and the social and political dynamics associated with them—we cannot begin to build a broader, more systematic account of the ways in which change processes unfold.
In this introduction, we seek to set the scene for this inquiry by clarifying core concepts and developing an instrumentarium that helps us structure the analysis of change processes in international law. We begin by taking stock of some of the key attempts at understanding international legal change in the past, focusing on recent scholarship at the intersection between international law and international relations (section 2). Addressing the shortcomings of these attempts, we build an ideal-typical model of the stages and pathways of change processes in the international legal order (section 3). Starting from a micro-level, focusing on the actors initiating, processing, and receiving attempts at changing international legal rules, we then zoom out again to develop conjectures about the factors that condition the speed, ease, and success of change processes (section 4). Understanding these conditions can help us to account for the significant variation across the different fields of international law. We then use this framework to introduce and situate the contributions to this volume and their findings with a view to developing the contours of a bigger picture of international legal change (section 5).
The picture that emerges from this endeavour is one of change processes in multiple sites, at different speeds, and involving diverse actors—and with a significant variation across the different areas of international law. It is a picture not of revolution but of polycentric reform efforts, but nevertheless, one that, we hope, will give us a clearer understanding of the dynamics of, and forces behind, much consequential change—and that will help us to better appreciate the complex politics of international law.
2. Change and Stasis in International Law
The question of change is central to international law—even more so than in other legal orders because of a lack of legislative mechanisms that would allow adapting legal rules to changing circumstances—and it has accordingly been of concern to international lawyers for centuries. The issue became particularly salient in the early twentieth century when calls for the ‘peaceful change’ of treaties (often concluded in highly unequal relations) gained political strength, and the absence of an international legislature was widely lamented.1 Hersch Lauterpacht devoted a large
1 Sir John Fischer Williams, International Change and International Peace (OUP, H Milford 1932).
part of his seminal work on ‘The Function of Law in the International Community’ to the issue, yet just as many lawyers before and after, his treatment of the question focused particularly on the doctrinal categories through which change could be rationalized, such as the ‘clausula rebus sic stantibus’ or the notion of ‘abus de droit’.2 Tellingly, though, he pointed to the relatively limited extent of the problem in international, as opposed to domestic, law. In his assessment, international law at the time was ‘more static than any other law not only because of the absence of an international legislature, but principally because it regulate[d] relations which are not in themselves liable to be affected in a decisive manner by economic and other changes’. He concluded that ‘[o]nly when the political organization of the international community has undergone a fundamental change, so as to regulate in detail the life of its individual members in its internal aspects—only then will it be possible to speak of a constant flux of changes necessitating legislative remedies’.3
The question continued to be discussed during the Cold War,4 but it has been the turn to an international law of ‘governance’, with a significant impact on domestic politics in many areas,5 that has—as foreseen by Lauterpacht—brought the problem to the fore with yet greater urgency. Many have pointed to the structural difficulties of bringing about effective regulation on issues of global concern, such as climate change,6 and to the limits on adapting existing international law to changing political views, as in the case of world trade law for environmental and development concerns, or in investment law for concerns about domestic regulation in the public interest.7 Many of these limits derive from the high hurdles for change through the traditional categories of international law. Treaties require the consent of the parties to begin with, and usually the agreement of all parties is seen as necessary for their adaptation through ‘subsequent practice’. And customary international law requires, according to standard doctrine, a widespread and uniform practice of nearly all states.
While these difficulties may have led actors to seek solutions outside the formal international legal order,8 there are also indications that they have led to adaptations of the traditionally rigid ways of making formal law. This is especially the
2 Hersch Lauterpacht, The Function of Law in the International Community (2nd edn, OUP 2011).
3 ibid 257–58.
4 Antonio Cassese and Joseph HH Weiler (eds), Change and Stability in International Law-Making (Walter de Gruyter 1988).
5 Joseph HH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547.
6 David G Victor, Global Warming Gridlock: Creating More Effective Strategies for Protecting the Planet (CUP 2011); Thomas Hale, David Held, and Kevin Young, Gridlock: Why Global Cooperation Is Failing When We Need It Most (Polity 2013).
7 Andrew Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order (OUP 2011); Muthucumaraswamy Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015).
8 Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1.
case in a number of specialized issue-areas, such as (international) environmental law, human rights law, humanitarian law, criminal law, or the law of international organizations.9 Tendencies towards a more dynamic approach to legal change have also been observed in core areas of general international law, such as state responsibility,10 the law on the use of force,11 or customary law,12 typically with particular attention to the influence of international institutions on the development of international law.13 Most existing accounts remain, however, limited to particular contexts and issues,14 and many are driven by normative precommitments in favour of particular mechanisms for (or limitations to) change.15 Moreover, observed differences in perceptions about the applicable secondary rules among actors have not been taken up systematically.16 The greater dynamism visible in some areas is then often treated as exceptional, also because it tends to be contested on normative grounds.17 Broader attempts at restating the norms of international legal change—especially in the United Nations (UN) International Law Commission (ILC)—tend to return to traditional conceptualizations of subsequent practice or customary law.18
9 Monica Hakimi, ‘Secondary Human Rights Law’ (2009) 34 Yale Journal of International Law 596; Julian Arato, ‘Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations’ (2013) 38 Yale Journal of International Law 289; Alexander Grabert, Dynamic Interpretation in International Criminal Law: Striking a Balance between Stability and Change (Herbert Utz Verlag 2015); Yuval Shany, ‘Sources and the Enforcement of International Law: What Norms Do International Law-Enforcement Bodies Actually Invoke?’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (OUP 2017); Jutta Brunnée, ‘Sources of International Environmental Law: Interactional Law’ in Besson and d’Aspremont (eds), The Oxford Handbook of the Sources of International Law; Sandesh Sivakumaran, ‘Making and Shaping the Law of Armed Conflict’ (2018) 71 Current Legal Problems 119.
10 James Crawford, ‘The International Court of Justice and the Law of State Responsibility’ in CJ Tams and J Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013).
11 Monica Hakimi and Jacob Katz Cogan, ‘The Two Codes on the Use of Force’ (2016) 27 European Journal of International Law 257.
12 Anthea Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ [2001] American Journal of International Law 757; Niels Petersen, ‘Der Wandel des Ungeschriebenen Völkerrechts im Zuge der Konstitutionalisierung’ (2008) 46 Archiv des Völkerrechts 502; Curtis A Bradley, ‘Customary International Law Adjudication as Common Law Adjudication’ in Bradley (ed), Custom’s Future: International Law in a Changing World (CUP 2016).
13 Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (OUP 2012).
14 For exceptions, see Michael P Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments (CUP 2013); Georg Nolte (ed), Treaties and Subsequent Practice (OUP 2013).
15 See eg Rebecca Crootof, ‘Change Without Consent: How Customary International Law Modifies Treaties’ (2016) 41 Yale Journal of International Law.
16 Hakimi and Cogan (n 11); Lauri Mälksoo, Russian Approaches to International Law (OUP 2015).
17 Marcelo G Kohen, ‘Keeping Subsequent Agreements and Practice in Their Right Limits’ in Georg Nolte (ed), Treaties and Subsequent Practice (OUP 2013).
18 International Law Commission, ‘Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties: Text of the Draft Conclusions Provisionally Adopted by the Drafting Committee on First Reading’ (2016); International Law Commission, ‘Identification of Customary International Law: Text of the Draft Conclusions Provisionally Adopted by the Drafting Committee’ (2016).
In the growing interdisciplinary literature at the boundary between international law and international relations, the question of change has surprisingly attracted only limited attention.19 Much of this literature—especially that operating in a rational-choice framework—seeks to explain or understand the creation of, or compliance with, particular norms at a given point, without paying much attention to the dynamics of changing legal norms over time. Andrew Guzman’s influential account is a good example here: concerned primarily with the relevance of international legal rules for state behaviour, he starts from a fixed content of these rules and focuses on the factors that may drive states to comply with them. In terms of law-creation and change, only treaty-making comes into clearer view.20 The latter point is also remarkable for many prominent engagements with international law by international relations scholars. The path-breaking ‘legalization’ project,21 or Barbara Koremenos’ recent work focus almost exclusively on treaties and treaty design.22 The dynamic construction of international law over time remains largely outside the picture.
This is somewhat different for constructivist approaches that pay particular attention to the processes through which norms are socially constructed. However, the constructivist literature on norm development, for the most part, does not address international law specifically.23 When it does, it often sees legal norms merely as reflections of social norms as they have evolved, without theorizing the more complicated ways in which the two are related.24 Such a close linkage is, for example, characteristic of the prominent work of Jutta Brunnée and Stephen Toope, for whom international legal norms—understood as social norms—rest on shared understandings within a community of practice. Their particularly legal character stems from a grounding in an inclusive ‘practice of legality’, a requirement derived primarily from normative considerations, but one that leaves the possible (and actual) distance between social and legal norms out of sight.25
Broader accounts of change in international law as such have thus remained relatively isolated. One of these, by Wayne Sandholtz and Kendall Stiles, adopts a constructivist frame and views legal change as driven primarily by norm
19 See eg Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (CUP 2012).
20 Andrew T Guzman, How International Law Works: A Rational Choice Theory (OUP 2008).
21 Judith L Goldstein and others (eds), Legalization and World Politics (MIT Press 2001).
22 Barbara Koremenos, The Continent of International Law: Explaining Agreement Design (CUP 2016).
23 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887. But see also Martha Finnemore and Stephen J Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2001) 55 International Organization 743.
24 Christian Reus-Smit, ‘The Politics of International Law’ in C Reus-Smit (ed), The Politics of International Law (CUP 2004).
25 Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law. An Interactional Account (CUP 2010).
