The TRICI-Law team are excited to announce that the videos from our recent Workshop on ‘Change of International Law: Rules of Change and Changing Rules’ are now live! Please click the banner below to view them.
Themes of the Workshop
International law, much like any law, sits at the centre of a tug of war between competing forces; stability and change, motion and rest. On the one hand, it needs to accommodate the need for stability and predictability that is essential to any legal system. On the other hand, it needs to remain responsive to the exigencies of an ever-changing world, lest it loses its relevance and becomes obsolete. It is noteworthy that, according to H.L.A. Hart, the rules by which other rules are altered (rules of change) are a marked feature and indispensable condition of any legal system. But what are the rules that govern the change of rules of international law?
This question inevitably brings to the fore the regulation of change within the body of rules and principles that comprise the theory of sources of international law. As far as treaties are concerned, the Vienna Convention on the Law of the Treaties enumerates various formal ways in which treaty rules can change: modification, amendment, or termination. Yet, when it comes to many important treaty rules, like those provided in broadly ratified multilateral treaties, procedures on change are cumbersome, politically unrealistic, and termination runs the risk of regression. In practice, change in the content of treaty provisions comes about predominantly through its constant (re)interpretation by states, international organisations, international courts and tribunals, and other actors. To illustrate this point, almost forty years after the adoption of the VCLT, the ILC decided the inclusion of the topic ‘Treaties over Time’
in its programme of work alluding to the notion of rules of change in the law of treaties.1 However, the practical prevalence of interpretation in bringing about change is such that the ILC decided eventually to limit the scope of its study and final output to the topic of ‘Subsequent Agreements and Practice in Relation to the Interpretation of Treaties’.2 How does the rule of interpretation enable change of treaty rules? And, does the rule of interpretation strike an adequate balance between stability and change, predictability and evolution, in the context of determination of treaty rules? Has the rule of interpretation itself evolved, or should it evolve, as a result of the tension between stability and change?
When it comes to the other principal sources of international law, customary international law and general principles of law, the issue of change remains relatively underexplored. In recent years, the ILC has set about to study the rules relating to the identification of customary international law, general principles of law, and jus cogens.3 Yet, it is remarkable that the Commission implicitly or implicitly excluded for the most part the issue of change from the remit of its works and final outputs. What are the rules governing change of unwritten international law, if any? The dominant account is that rules of unwritten international law can only be changed either by a subsequent rule of the same pedigree or that they constantly evolve. By implication, rules of unwritten international law might appear virtually unchangeable once formed or merely transient in the sense that they never fully form. Is there a way to strike a better balance between stability and change? How is change determined in the content of rules of unwritten international law? Is there a role for processes akin to interpretation in the law of treaties?
The regulation of change in the theory of sources of international law, or the lack thereof, brings to the fore a plethora of questions. Which actors stand to benefit or lose from this configuration? What is the role of international judges in bringing about change of rules of international law and what are the limitations, if any, of this function? Are rules of change necessary or desirable from a normative perspective and, if so, how should they look like?
This workshop aims to map out and assess the rules and principles that govern the change of rules of international law including through interpretation. To this end, it invites contributions which elucidate the processes that drive change of rules of international law within the framework of sources of international law. It also welcomes contributions which offer normative, empirical, or critical perspectives as to how international law can or should be addressing the issue of change.