When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking
Forthcoming in European Journal of International Law (2014)
38 Pages Posted: 30 May 2013 Last revised: 14 Nov 2013
Date Written: November 14, 2013
It is a mantra amongst international lawyers that the field of international law is expanding, exponentially. This trend, also referred to as the legalization of world politics, may have been true until a decade ago. It is highly questionable today. Formal international law is stagnating both in terms of quantity and quality. It is increasingly superseded by “informal international lawmaking” involving new actors, new processes and new outputs. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over forty scholars and thirty case studies, this article offers evidence in support of the stagnation hypothesis (section 2), evaluates the likely reasons for it in relation to a ‘turn to informality’ (section 3) and weighs possible options in response (section 4). The international legal order has radically transformed in the past, on all three axes of actors, processes and outputs. The conceptual boundaries of how international law may look in the future are wide open. Crucially, however, also informal structures can become shackles and limit freedom. Informal lawmaking must therefore be kept accountable, through tailor-made accountability mechanisms, especially toward stakeholders not involved in the network but affected by it (section 5). Finally, focusing on the short to medium term, the article questions whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are interacting before international tribunals (section 6). In this respect, it proposes certain procedural meta-norms against which informal cooperation forms ought to be checked, which we refer to as “thick stakeholder consensus” imposing limits in respect of actors (authority), process and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined here as “thin state consent”. In this sense, formal international law is stagnating not only in quantity but also quality.
Keywords: International cooperation, Informal international lawmaking, Accountability, Legitimacy, Stakeholder consensus, Traditional public international law, Private regulation, Networks, Soft law, History of international law, Definition of law
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