Theorizing Multiple Pathways and Speeds of Change

This volume shares with recent literature on informal international lawmaking an interest in the dynamics and developments that occur outside the glare of formal treatymaking.Footnote ¹ What makes this book distinct, however, is its emphasis on theorizing gradual change, and its ambition to introduce a theoretical framework in which informal change is considered along with formal change, in which private actors are seen alongside courts and states, and in which change may go in many directions.

Krisch, Yildiz, and their contributors draw inspiration from historical institutionalism, which has steadily become more prominent in international relations scholarship as well as international legal scholarship.Footnote ² Historical institutionalism provides a set of analytic tools for understanding how institutions develop and evolve. One of historical institutionalism's foremost interpreters highlights its emphasis on “concepts with temporal properties and on processes and mechanisms that impact the origin, stability, and change of institutions over time.”Footnote ³ Early studies often emphasized path dependency, and envisioned long periods of stability punctuated by shorter periods in which change was possible, called critical junctures. In contrast, recent historical institutionalist scholarship sees dynamism in all moments and does not assume that institutional reproduction is automatic, instead taking an interest in the contested processes through which actors reproduce, slightly redirect, or entirely repurpose laws and institutions.

Historical institutionalist scholarship separates the processes and results of change. This makes it easier to see that far-reaching change can be accomplished through the accumulation of small, often seemingly insignificant adjustments, while processes that attract headlines may ultimately have little impact.Footnote ⁴ Working from this insight, contemporary historical institutionalism often foregrounds actors and develops tools to understand how sophisticated but constrained actors pursue their goals over time. It does not expect these actors to always achieve their goals, however, instead it anticipates that actors or institutions may generate unintended consequences or negative feedback effects.

Unlike some theoretical traditions imported from political science to law, the precepts of historical institutionalism often feel intuitive to lawyers. Legal training often prepares people to recognize a space between a text and its interpretation and to expect both the activities of institutions and the interpretations of laws to evolve over time, as historical institutionalism does.Footnote ⁵ Legal training can also prepare people to see institutions and laws less as stable equilibria than as compromises that are likely to be contested again in the future, the way they are seen by historical institutionalists.Footnote ⁶ The compromises reflected in legal texts provide actors with resources that they can use to advance their goals in future fights. In this way, institutions and laws contain within them possibilities for contestation and change, and there is nothing automatic about their reproduction.

Rather than taking a snapshot of an institution, historical institutionalist scholarship often looks at a moving picture. By lengthening the time frame for analysis, scholars can see sophisticated change strategies unfold. Scholars can also observe how multiple gradual processes, or processes moving at different speeds, interact or accumulate over time. Turning attention to gradual processes also brings into focus the agency of actors who need to avoid the appearance of taking big steps, like judges or experts.

Krisch and Yildiz render historical institutionalist insights easy to use by introducing the concept of pathways of change. Five pathways of change are the core of their framework, and the book: the state action path, the multilateral path, the bureaucratic path, the judicial path, and the private authority path. Change occurs via the state action path when states modify their behavior and make corresponding statements; this path corresponds to traditional images of change in customary international law and subsequent practice to treaties. Change occurs via the multilateral path as a result of statements or new agreements issued by many states within the framework of an international organization. Change occurs via the bureaucratic path as a result of decisions or statements produced by international organizations or expert bodies without the direct participation of states in the decision-making process, such as publications of the International Law Commission. Change occurs via the judicial path as a result of decisions and findings of courts and tribunals. Finally, change occurs via the private actor path following statements or reports by recognized authorities; the work of the International Committee of the Red Cross in the interpretation and application of the Geneva Conventions exemplifies this path.

Krisch and Yildiz expect these paths to interact, and that these interactions may produce a range of effects. Paths may reinforce or undermine each other, and their interactions may solidify legal change or provide grounds for further contestation. Or pathways may operate sequentially, with the judicial path following the private authority one, for instance. It is possible to tell the story of change within an area of international law by focusing on only one pathway, as Jeff Kucik and Sergio Puig do in their chapter on trade law, focusing only on the judicial pathway (p. 261), or by focusing on interactions between multiple pathways, as Seline Trevisanut does in her chapter on law of the sea, identifying how the multilateral, bureaucratic, and private authority pathways have channeled signals of change from human rights and environmental law to law of the sea (p. 202).

The framework is fundamentally agentic—as Krisch and Yildiz observe, “change does not travel along these pathways by itself but is pursued in and through them by political and societal actors” (p. 15). Actors who seek to change the content of, or burden of argument relating to a particular norm within, international law are expected to pursue their desired change via pathways available to them. Krisch and Yildiz conceptualize each pathway as consisting of three stages; for a change to succeed, actors must move it through all three stages. First is a selection stage, in which agents activate a pathway to realize their vision. Second is a construction stage, in which other actors and authorities process the change attempts and generate statements about the status of the norm in question—confirming or refuting the change attempt, avoiding expressing a position, or finding a middle ground. Third is a reception stage, in which the outcome of the construction stage, for instance a court judgment, is appraised by a broader range of actors, who may accept, partially accept, or reject it (id.). While these three stages are logical, and Krisch and Yildiz introduce them not as strict temporal phrases but more as a heuristic to describe dynamics characterizing certain points in the change process, contributors use these phases less than other aspects of the framework, suggesting that it may be difficult to operationalize a general set of stages for change attempts.

The success or failure of any change attempt will depend on several factors, of which Krisch and Yildiz highlight four, which they see as interdependent and often mutually reinforcing but also potential substitutes for one another (p. 26). The first factor is state positions; how strongly a change is supported or opposed by states, and by which states, is the traditional explanation for success. Yet state support is not always determinative, as examples of successful change processes without great power support illustrate.Footnote ⁷ The second set of factors relate to properties of the norm in question, particularly its stability. In general, the more settled and uncontested an existing norm is, the higher the threshold for change (p. 20). The third set of factors relate to the existence and accessibility of institutions and authorities. Institutional factors can matter in all stages of a change process, from shaping if actors can access a particular pathway to influencing how quickly a change process unfolds (pp. 22–24). The fourth set of factors pertain to the relationship between legal norms and the wider ideational environment. If a gap emerges between a set of legal norms and the wider environment, then pressure for adaption of the law is likely to rise (p. 24). These factors, like the framework in general, are presented to enhance rather than limit what scholars can see.

In this sense, the volume is the very best kind of edited volume: the framework it provides is not constraining but enabling, a toolbox from which scholars can draw out what they find useful to interrogate processes more finely or differently than they did before. Responding to this invitation, the contributions are not formulaic applications of the framework to different areas of law; instead, contributors used its tools to probe dynamics and questions that interest them. The fourteen chapters relate to one another but also stand independently, with each chapter illuminating interesting dynamics and raising new questions of its own.

Insights About Change in International Law

The benefits of the framework are illustrated most vividly by Tonya Putnam's excellent chapter, which begins with a striking puzzle: while “not a single comma has changed in the text” of the Genocide Convention since 1949, in practical terms the package of obligations it entails is markedly different today (p. 107). In Putnam's telling, the shift toward more expansive interpretations of the Convention's prevention obligations “was not the result of any one decision or event,” but instead involved “decades of cumulative work from actors on multiple pathways” (p. 127). While “the most visible developments have occurred . . . on the multilateral and judicial pathways” after the Cold War, these developments were “enabled by decades of prior and contemporaneous work” by private actors, with support from concerned states and officials, and from government and international organization bureaucrats (p. 108). In short, all five pathways were activated and often actions on an individual pathway proceeded in reaction to, or in interaction with, activities on others (p. 127). The relative importance of each path fluctuated over time; for instance, when the multilateral path was blocked during the Cold War, the private actor and bureaucratic pathways became more prominent (p. 117). A spike in multilateral engagement with conflict prevention after the Cold War created more capacity to detect impending mass atrocities, which in turn made preventative action more feasible and opened the practical meaning of obligations in the Genocide Convention to interpretive debate (p. 128). In illustrating how transformation occurred through the actions of various actors along several intersecting pathways, Putnam generates insights that are relevant for anyone thinking about how processes of legal change unfold over time.

A premise of her chapter is that there can be multiple interpretations of legal rules in active circulation at any one time (p. 110). Experts in the U.S. State Department, the UN Human Rights Council, or Human Rights Watch are unlikely to hold the same views, she points out, and it is in fact “through encounters among competing applied interpretations of specific laws, each of which purports to be authoritative, that underlying beliefs about what is feasible, or appropriate, in legal terms may shift—albeit still without necessarily producing anything approaching a consensus view” (p. 111). Rather than understanding conflicts or diverse nodes of interpretative activity as a problem, here they are presented as the foundation for law's functioning.Footnote ⁸

While the Genocide Convention is a progressive example of gradual change, in which the obligations assumed by member states have been enhanced, there are also regressive examples, such as the Refugee Convention, in which the obligations have become less demanding without formal amendment, as B.S. Chimini points out in the book's epilogue (p. 343). Actors pursue change in all directions; two of the book's chapters focus exclusively on regressive change (the chapters by Mark Pollack and Wayne Sandholz), and it arises in several others, including strategies to resist progressive change (the chapter by Pedro Martínez Esponda). Pollack's fascinating chapter explores perhaps the most high-profile recent example of regressive change, by examining direct assaults on several international legal institutions from the first Trump administration. Pollack is interested in the legacies of these actions, in how easy or difficult is it to reverse changes to international legal agreements (p. 35).

With his chapter, Pollack underscores what is at stake in how we theorize and think about change. If our theories and concepts lead us to expect that legal agreements or institutions have high obstacles to change, then we are more likely to be optimistic about their resilience and may assume agreements or institutions can survive intact, even in the face of actors who seek to undermine them. We are likely to be more pessimistic (or realistic) if we, instead, acknowledge that “all institutions contain within them a dynamic, endogenous source of contestation, with dissatisfied actors constantly pressing for changes that will favour them” (pp. 46–49). Amid the continuing contestation, Pollack draws attention to how hostile actions can create “new ‘facts on the ground’” both domestically and internationally (p. 47). Other actors adapt to these new facts on the ground, and as time passes and more actors adapt, it becomes more difficult to reverse the hostile changes. Just as supportive acts like ratification or compliance generate compliance constituencies, Pollack emphasizes that hostile acts like non-compliance or withdrawal may mobilize “non-compliance constituencies” who benefit from the new reality and lobby to maintain the new status quo (id.). Dominant theoretical approaches have led scholars to underestimate the importance of these new facts on the ground, Pollack argues, and to see a fragile legal order as robust (pp. 43–45). It is a sobering reminder of how important theoretical frameworks can be for what we see in the world.

Open Questions

By opening up new directions for inquiry, this volume also prompts its readers to ask more questions about the drivers and dynamics of change processes. It also animates thinking about the durability of the five paths themselves: will these five pathways always be available? Krisch and Yildiz suggest that paths fluctuate in availability and prominence over time, but do not push this all the way to considering whether some paths may disappear altogether. Yet some pathways, notably the multilateral, bureaucratic, and judicial paths, require previous institutional creation and continuing support, which cannot be taken for granted. It is also possible that new pathways emerge. The pathway framework itself is not stable but subject to evolution, as the actors who seek to influence international law and their opportunities for doing so evolve. As I read the chapters, two sets of questions recurred to me as next steps for a research program on change in international law.

What Strategies of Change Are Open to Whom? Who Can Afford Long Time Horizons?

Not all pathways are open to all actors—and differences in resources and power can often explain which pathway is chosen, as B.S. Chimini underlines in the volume's epilogue (p. 337). This echoes a lesson from historical institutionalist scholarship in other contexts: it is usually well-resourced actors who have the ability to pursue gradual change.

Processes of gradual change are often difficult for all but the most attentive actors to anticipate, monitor, and influence. In legislative settings, these features “advantage organized interests with long time horizons and the resources to play the long game—the political actors who are most likely to be aware of opportunities inherent in existing formal rules and best positioned to act on this awareness.”Footnote ⁹ Is the same true with regard to international legal change?

Nina Teresa Kinderlin's chapter on China's efforts to change subsidies law provides an interesting perspective on this question, by addressing not only questions about what paths were open to Chinese officials but also how they went about developing the expertise and resources required to proceed along particular paths. In her telling, after China joined the World Trade Organization (WTO), Chinese officials understood a negotiation-driven multilateral path was likely of limited utility. Instead, they turned to less direct, longer-term strategies along the judicial path (building capacity for litigation at the WTO) and the bureaucratic path (ensuring more representation of Chinese nationals in international organizations), among others. The government set out a ten-year strategy to rectify internal shortcomings in trade law capacity, including by incentivizing foreign-trained Chinese lawyers to return and practice domestically, and insisting that domestic law firms be hired alongside foreign law firms to litigate WTO disputes (pp. 232–33). After a push from many developing countries for more diversity within the WTO Secretariat, the number of Chinese staff members increased from five (out of 629) in 2010 to sixteen in 2021 (p. 234). The Chinese government's long-term strategy of gradual changes on pathways away from the spotlight laid the foundation for China's later successes at the WTO. Kinderlin illustrates how power shifts are negotiated across multiple pathways, and how geopolitical shifts occur not just in headline deals, but in slower-moving changes that are easier to overlook and likely harder to reverse.

A research program that takes gradual change in international law seriously must also take questions about resources seriously. What specific types of expertise or resources are required to play the long game and pursue norm adjustment via these five pathways? Which types of actors have what resources? These questions direct attention to differences across states as well as differences between types of actors. With regard to states, the few surveys assessing governmental capacities in international law hint at profound asymmetries. For instance, one survey from the mid-2000s heyday of WTO litigation showed that two countries had twenty-one or more professional staff dedicated to WTO dispute settlement, while twenty-eight of the forty developing countries who responded to the survey did not have any professional staff dedicated to WTO dispute settlement.Footnote ¹⁰ It would not be surprising if change attempts in this context, as in other international legal contexts, came disproportionately from governments with larger, specialized teams.

Questions about relevant resources and expertise are perhaps even more acute with regard to private actors and public actors. Never before have so many private actors been able to participate in so many aspects of international lawmaking. Private actors are of course dominant in the private actor pathway, but they are also visible and influential in other pathways, including the multilateral and bureaucratic paths. For example, after years of observing a United Nations expert body, Susan Block-Lieb and Terence Halliday described an inner, deliberative core of actors that exerted disproportionate influence over the content of the international law that emerged from the room.Footnote ¹¹ Representatives of private industry participated in this core group and could be involved and influential at all stages of the lawmaking process. If a delegation attended consistently, and with the same delegates each time, then it was more likely to have influence—regardless of the delegation's identity. The distinction that mattered for influence was not state or non-state, but consistent participant or not. The resources to participate consistently emerge from Block-Lieb and Halliday's work as a prerequisite for any actor to influence the content of international law.

In her chapter, Nina Reiners illustrates one configuration in which private actors, in this instance experts, influence the content of international law. Reiners focuses on transnational legal coalitions, or informal collaborations between outside experts, such as non-governmental organizations (NGOs) or academics, and members of a United Nations human rights treaty-monitoring body (p. 90). The limited resources of treaty bodies encourage a resource exchange, whereby the outside actors provide their expertise and other resources to the body, in effect trading knowledge for access (p. 94). Reiners shows that the coalitions of outside experts and treaty body members who draft treaty interpretations are “mainly constituted through personal relationships” (id.). This finding underlines how important the individuals that I once heard a state official refer to as “free agents” or “free radicals” (highlighting that these individuals do not formally represent anyone but themselves, nor are they formally accountable to anyone) are within the United Nations human rights treaty system and other fields of international law. There are important questions to be asked about their influence. While the participation of NGOs has traditionally been studied as a normatively good development, perhaps this is because most scholars assumed that NGOs were working for rights-supporting causes that the scholars themselves broadly supported or found acceptable. How does NGO participation look if the best-funded or most influential NGOs seek to roll back rights?

Sharp and interesting questions come to the fore when socio-legal researchers actually look at who is in the room while international laws are made or interpreted along various pathways. With regard to states, the list of actors who are eligible to participate and who actually participates consistently in a lawmaking forum can be starkly different; the number of empty chairs behind state placards are noticeable in physical rooms yet often overlooked in scholarship. With regard to private actors, there is much we can learn from careful studies of how business actors participate in lawmaking in specific organizational contexts, like the International Maritime Organization. More empirical work on who is in the room may provoke normative questions about informal and gradual change. Krisch, Yildiz, and contributors do not advance normative positions or critique; the volume, admirably, sticks to understanding. But if legal change is occurring more diffusely, through various pathways, who participates and who does not participate? Whose voices are amplified? Whose voices fall away? Beyond representativeness, how should we assess other values in this new lawmaking ecosystem? More scholarship on gradual change in international law is an opportunity to return to important questions about who actually participates in lawmaking and related normative considerations.

What Strategies Are Used to Prevent, Slow, or Block Change Attempts? By Whom?

This volume takes seriously the agency of actors seeking change, their strategies and use of multiple pathways over time. But what if we attempted to theorize the agency of actors seeking to prevent, slow, or block change attempts? These actors may also use sophisticated, indirect strategies across multiple pathways in pursuit of a larger vision. They may seek to delay or prevent a change from operating in practice, to keep a legal norm from becoming binding, or to prevent a norm from spreading to other contexts.

While change attempts can fail even without a creative, strategic opposition working against them, it is probably more common for a proposed change to face opposition. These opponents may work carefully to place obstacles in the path of a proposed change; their actions may be subtle in any one moment, just requesting more time or analysis, or exercising their right to silence or abstention, but over time these small hesitations can have a cumulative, decisive impact on the success or failure of a change attempt. Their strategies and even their goals may be finely calibrated; after all, outright failure or clear rejection is in many instances unnecessarily severe. Powerful actors may believe that an ambiguous outcome is optimal. Instead of black or white, the outcomes of many change processes are likely to be decidedly gray. We see two different types of gray outcomes in the chapters of this volume.

Pedro Martínez Esponda's thought-provoking chapter analyzes the deliberate perpetuation of instability in international legal rules. He describes norm destabilization as a reluctance to concretize an argument about the meaning, scope, bindingness, or existence of a rule—as a form of agency, it stands between full advocacy for a clear-cut rule and manifest opposition to the existence of a rule (p. 70). He identifies four strategies of norm destabilization, all of which aim for intermediate outcomes between success and failure: multilateral ambiguity, selective protest, compromised support, and cryptic precedent. To use these strategies, actors can express ambivalence through language, but also through silences, equivocal attitudes, or overtly formalistic approaches (p. 71). Their motivations for creating legal uncertainty around a norm may be to merely stall change, or they may seek to avoid the consolidation of an unfavorable rule but through indirect means.

Or they may be able to just ignore a new rule or norm. Dorothea Endres's chapter addresses the reality that a legal change may be successfully accepted by some communities of practice in an issue area while being rejected by other communities of practice in the same area. In some fields of international law (often those with authoritative central courts), different ideas of “what the law is” are forced to clash and one understanding prevails, while in others, like investment arbitration, different ideas can exist and ignore one another indefinitely (p. 286). Recognizing change in such contexts is difficult: there are multiple understanding of what the law is, and the field's institutional design enables them to co-exist with no mechanism for reconciliation. Rather than a change being constructed and then recognized, there are enduring differences of view. Or there are states that engage in a field of law and states that remain largely outside it. Endres points out that the few states actively engaged in the application of international humanitarian law determine its change, while many states in the world continue to follow their own rules (id.). In such contexts, it may be more appropriate to ask, “whose international law is changing?” than “how is international law changing?” In reality, we probably need both questions.

This volume demonstrates the benefits that come with widening our view of what constitutes change in international law to include processes that lead to indeterminate, contingent, or contested outcomes. It also provides a useful structure for understanding how and why these messy outcomes emerge, by introducing pathways of change, which bring interactions between courts, expert bodies, private authorities, states, and other actors into view. The result is that we are able to recognize more of international law's dynamism, as actors select available pathways, pursue their desired change, and react to one another as well as the advance or retreat of rules or interpretations.