When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

KU Leuven, Leuven Centre for Global Governance Studies, Working Paper No. 97 - October, 2012

32 Pages Posted: 18 Nov 2016

See all articles by Joost Pauwelyn

Joost Pauwelyn

Graduate Institute of International and Development Studies (IHEID); Georgetown University Law Centre

Ramses A. Wessel

University of Twente - Centre for European Studies

Jan Wouters

KU Leuven - Leuven Centre for Global Governance Studies

Multiple version iconThere are 2 versions of this paper

Date Written: 2012

Abstract

Traditional international law and its instruments are stagnating both in terms of quantity and quality. New, alternative forms of cross-border cooperation, in particular processes of informal international lawmaking, have emerged and gained prominence since the 2000s in response to an increasingly diverse, networked, and knowledge-based society. This transformation impacts on the three axes of actors, processes and outputs in the international legal order. We challenge the assumption that traditional international law is, by definition, legitimate and that this would not be the case for new forms of informal lawmaking: whereas traditional international law is often based on “thin state consent”, a “thick stakeholder consensus” underlies many of the new forms of cooperation. It is submitted that the evolution in the international legal order demands an adjustment of models to keep both new forms of cooperation and traditional international law in check. This paper thereto assesses the legitimacy of international legal processes, tackling also the question whether new forms benefit powerful actors and how to keep activity accountable, both domestically and internationally, towards internal and external stakeholders, through ex ante, ongoing and ex post control mechanisms, involving not only managerial or administrative checks and balances but also political and judicial oversight. The paper furthermore examines 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 (or could be) interacting before international courts and tribunals. To conclude, a redefinition of the academic discipline of international law to keep both the field and its students sociologically relevant is proposed.

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

Suggested Citation

Pauwelyn, Joost and Wessel, Ramses A. and Wouters, Jan, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking (2012). KU Leuven, Leuven Centre for Global Governance Studies, Working Paper No. 97 - October, 2012. Available at SSRN: https://ssrn.com/abstract=2871110 or http://dx.doi.org/10.2139/ssrn.2871110

Joost Pauwelyn (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, Geneva CH-1211
Switzerland

HOME PAGE: http://graduateinstitute.ch

Georgetown University Law Centre ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Ramses A. Wessel

University of Twente - Centre for European Studies ( email )

Netherlands

HOME PAGE: http://https://www.utwente.nl/en/bms/pa/staff/wessel/

Jan Wouters

KU Leuven - Leuven Centre for Global Governance Studies ( email )

House De Dorlodot - Deberiotstraat 34
Leuven, B-3000
Belgium

HOME PAGE: http://www.globalgovernancestudies.eu

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