The question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.
What role have international legal scholars played in the development of international criminal law? Building on recent studies of the citation practices of international courts, the article provides an empirical assessment of the use and functions of citations to scholarly writings in the judgments of international criminal courts and tribunals. Using a mixed-methods approach, the article combines: a) a quantitative analysis of judgments interpreting the law of war crimes across four international and hybrid courts; with b) qualitative interviews with judges and legal officers at the International Criminal Court (ICC), the ad hoc Tribunals, and the Special Court for Sierra Leone (SCSL). The article argues that scholarly writings have been strikingly visible in the judgments of international criminal courts and tribunals, and especially at the ICC, which entails significant implications for the functions of academic writings and the role of international legal scholars.
This chapter advances a theoretical framework for studying how, why, and with what impact on audiences, global governance institutions (GGIs) are legitimated and delegitimated. The first component of the framework concerns the distinction between agents and objects. An agent enacts practices of (de)legitimation, whereas an object of (de)legitimation is what is being (de)legitimated, namely the GGI or specific policies. The second component is an agent-structure approach enabling the study of (de)legitimation processes within broader institutional and structural contexts. In this regard, the chapter identifies institutional set-up, policy field, and social structure as particularly relevant factors to account for variation in (de)legitimation across GGIs. The third component of the framework consists of practices, justifications, and audiences of (de)legitimation. Legitimation practices are what different agents engage in when they legitimate or delegitimate GGIs. Justifications are the substantive normative content these agents draw on when engaging in such practices. Audiences are the actors on the receiving end of these processes. The chapter develops overall theoretical expectations related to variation in practices, justifications, and audiences of (de)legitimation across GGIs.
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