Emergent Flexibility in Institutional Development: How International Rules Really Change

Abstract

How do formal international institutions change and adjust to new circumstances? The conventional wisdom in International Relations (IR), outlined by rational design, is that the answer lies in designed flexibility, which allows states to adjust agreements. Drawing on rich but disparate literatures across subfields of political science — especially constructivism and historical institutionalism — we propose an alternative, which we call “emergent flexibility.” Emergent flexibility is a property of international institutions that is not intentionally crafted by rule-makers when a rule is formally established, but is subsequently discovered, activated, and accessed by creative rule-users in ways unintended by designers. Rich case studies trace how rule-users have accessed emergent flexibility through the legal interpretive strategy of subsequent practice to change rigid rules of the UN Charter and the European Convention on Human Rights. A key implication of emergent flexibility is that, contrary to rational design expectations, international institutions designed to be rigid can adjust to unforeseen circumstances even in the absence of formal redesign, allowing cooperation to continue. The broadening of flexibility from designed to emergent reveals the politics of flexibility between formal design moments, provides a more nuanced notion of intentionality, and equips us to better address fundamental positive and normative questions of institutional development.

Keywords: Historical institutionalism, constructivism, subsequent practice, rational design, change, international institutions, flexibility, European Convention on Human Rights, United Nations Security Council