Pauwelyn, Wessel, & Wouters: The Stagnation of International Law

Joost Pauwelyn (Graduate Institute of International and Development Studies - Law), Ramses A. Wessel (Univ. of Twente - Centre for European Studies), & Jan Wouters (Katholieke Universiteit Leuven - Leuven Centre for Global Governance Studies) have posted The Stagnation of International Law. Here's the abstract:

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. International law is stagnating both in terms of quantity and quality. Drawing on a two-year research project on “informal international lawmaking” (involving over forty scholars and thirty case studies), this paper offers evidence in support of the stagnation hypothesis, evaluates the likely reasons for it and weighs possible options in response. It illustrates with a historical account that the international legal order has radically transformed in the past – on all three axes of actors, processes and outputs – so that the conceptual boundaries of how international law may look in the future are wide open. The paper next assesses the legitimacy of both new forms of cooperation and traditional international law, tackling also the question of whether new forms benefit powerful actors and how to keep activity accountable, both domestically and internationally, toward 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. Finally, focusing on the short to medium term, the paper 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 (or could be) interacting before international courts and tribunals. In this respect, it proposes certain procedural meta-norms against which new 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, international law is stagnating not only in quantity but also quality.