Saliternik & Shlomo Agon: Proactive International Law

Michal Saliternik (Netanya Academic College - Law) & Sivan Shlomo Agon (Bar Ilan Univ. - Law) have published Proactive International Law (UC Law Journal, Vol. 75, no. 3, pp. 661-712). Here's the abstract:

International law is notably reactive in nature. For the most part, international norms and institutions have been devised in response to previously observed crises and incidents—be they wars, pandemics, environmental disasters, economic breakdowns, or technological advances. This Article challenges the centuries-old reactive and past-oriented approach of international law. It suggests that while the reactive paradigm has facilitated practical solutions to the concrete problems faced by the international community, this paradigm has also led international law to become backward-looking and short-sighted, thereby hindering the discipline from acting in anticipation of long-term problems and developments.

Against this backdrop, this Article calls for a conceptual shift. It argues that the time has come to couple international law’s traditional reactive paradigm with a more proactive, forward-looking approach that is geared toward the future, with a view to preventing risks and realizing opportunities well in advance. Such a shift is particularly critical given that many of the global challenges on the horizon—such as artificial intelligence, synthetic biology, environmental degradation, demographic transformations, or outer space commercialization—are more complex and diffuse than those previously encountered. Moreover, these challenges present themselves in an accelerated global environment where the rapid pace of social and technological change leaves little room for maneuvering when action is due.

This Article begins by recounting the reactive record of international law while illustrating the prevalence of the reactive approach in numerous regulatory fields, including anti-terrorism, public health, refugees, and arms control. Thereafter the Article analyzes the root causes of international law’s reactive paradigm and highlights the paradigm’s limitations. The Article then turns to lay the theoretical foundations for a novel approach to the evolution and functioning of the discipline, called “proactive international law.” It presents the proactive approach’s core elements and identifies ways to mainstream them into the international legal system, thereby making long-term—even if uncertain—problems and advancements a real regulatory priority on the international agenda.