This panel was convened at 11:00 a.m., Thursday, April 9, by its moderator Kal Raustiala of UCLA School of Law, who introduced the panelists: Ayelet Berman of the Graduate Institute of International and Development Studies, Geneva; Dinah Shelton of George Washington Law School; Edward Swaine of George Washington Law School; and Ingo Venzke of University of Amsterdam. *
IS THERE A STAGNATION IN INTERNATIONAL LAW?
By Ayelet Berman ([dagger])
In assessing this question, we need to distinguish between two questions: First, is there a stagnation in the sources of international law? And second, is there a stagnation in the bodies that develop and promulgate international law?
Regarding the first question, on sources: Pauwelyn, Wessel, and Wouters have claimed that "international law is stagnating," and have presented evidence to support "treaty fatigue." (1) They argue that countries are concluding less multilateral and bilateral treaties. Regarding multilateral treaties, their conclusion is shared by many and indeed the data indicates that there is a significant reduction in the amount of treaties concluded. Regarding bilateral treaties, more careful research is needed before we can confidently make such a statement. We need to investigate different sets of countries (e.g. between emerging/developing countries and developed countries, among developed countries, among countries in different regions, etc.) as we may find variation. Moreover, we may need to distinguish between different policy areas (e.g. investment and free trade agreements versus health).
Be that as it may, what certainly stands out is that there is a rise in normative instruments that fall short of the traditional sources of international law. This can be referred to as the rise of "informal law," such as guidelines, standards, accords, best practices, etc. Due to the technical nature of many of these documents, the term "global regulation" or "global standards" describes them well.
Regarding the second question on the bodies that develop international law: Traditionally, international law has been developed by states and intergovernmental organizations. In the past two-and-a-half decades following the end of the cold war and with increased globalization, we see a rise of new actors active at the international level. These include NGOs, multinational companies, industry associations, regulatory agencies, etc. These "new" actors collaborate in networks, be they transgovernmental or public-private, multi-stakeholder partnerships or private industry forums. Such networks are active in many different policy fields, such as food, climate, health, finance, environment, and the internet. Examples include: the...