Change in international law through informal means: the rise of exceptions to state official immunity for international crimes


International lawyers tend to account for change in international legal rules through the doctrine of sources. Treaty-making, customary law, and the general principles of law are often thought of as the only avenues through which legal norms can be transformed. Yet more often than not, what most international lawyers believe to be the law on given areas is not convincingly explainable through these formal means. One such area is the law on state official immunities, where it seems that a majority of the international legal community today believes there to be exceptions to immunity in cases of international crimes, without these being fully accountable through customary law methodology or any of the other formal sources. This article seeks to explore this paradox in the case of state official immunities and provide elements for a non-formalistic, discursive account of change in international law. It does so by suggesting that, where state opposition blocks formal pathways of normative transformation, change often finds its way informally provided that three elements are in place. First, that other actors are persistent and resilient enough to stand state opposition and uphold the change attempt. Second, that certain discursive preconditions make the attempt legally and socially plausible in order for it to be taken up by broader constituencies. And lastly, that minimal institutional channels are available in order to allow for some type of authoritative endorsement of the change attempt.

Pedro José Martínez Esponda es PhD candidate en el Graduate Institute of International and Development Studies (IHEID).