Reasons for Optimism: From Thin State Consent to Thick Stakeholder Consensus

His latest research project flags a new trend in global governance that has emerged since the turn of the century: the stagnation of international law. "I hope I can convince you of this phenomenon", professor Pauwelyn begins.

It is important to flesh out the concept of stagnation as Pauwelyn applies it. He is not saying that there are no further treaties being concluded, he is simply saying that we are currently experiencing a relatively quiet period for traditional legalisation. In the early 1990s the international landscape was marked by a huge shift towards legalisation - often dubbed the 'end of history'. Alongside that, we had the creation of the International Criminal Court. Because of this, the period was awash with popular opinion similar to that which was prevalent around the time of the birth of the League of Nations: everything had become very legalised and many thought we had moved beyond politics. We can contrast this hype surrounding legalisation in the 90s with the present where there is a great deal of stagnation both in the number of formal treaties and also in the 'quality of formal international law-making'. If you look at the UN multilateral treaty database, between the 1950s and the 1990s there is more or less an average of 35 new multilateral treaties being churned out each decade. Now if you look at the 2000s, it drops to just 20. In the last five years the picture is more shocking still, with only eight new multilateral treaties entering into force, a low point for the post-war period. So clearly, something is happening.

So what explains this phenomenon? One answer that surely goes part of the way to explaining it is saturation. We've been making treaties for decades, is it not normal that we have fewer topics to address? Pauwelyn recognises that something like this may be happening, but at the same time we are getting more and more issues on our plate. Think about the financial crisis, climate change, conflicts such as that in Syria and many more. We live in an age where we need multilateral cooperation but where multilateral treaties are increasingly difficult to get.

A bigger issue might be the fact that we now live in a multi-polar world. Whereas in the early 1990s we had one recognised hegemon, today we have many. If you look at world trade, climate change or intellectual property negotiations, there are so many countries that have a de facto view upon it. Even well-established multilateral institutions are heavily contested. The IMF and the World Bank (formal as they are) are really struggling to reform themselves in order to accommodate new stakeholders. As a result what we are seeing is the creation of new bodies outside of that realm, such as The Financial Stability Board and the New Development Bank. The G20 is another good example. No longer is it useful to distinguish between East and West (and of the Cold War) and the North and South (and of the First and Third World); today there are ever more countries that are important and can block multilateral consensus.

Domestic scrutiny is another possible explanation. Up until ten years ago, countries were signing bilateral investment and trade agreements as if they meant nothing. Those days are over. Today these trade and investment efforts are subject to intense parliamentary scrutiny that is symptomatic of a shift to evidence based law-making. This is coupled with a growing awareness within constituencies of a treaty's ramifications and the subsequent loss of sovereignty, adding a further layer of difficulty to the process of ratification. The latter is sure to become an increasingly hot topic in the coming months when the expected EU referendum takes place in the UK.

The final two factors are familiar points of interest for global governance scholars. Unlike twenty or thirty years ago, the diversity of actors at the international level today is stunning. In the realm of international law, treaties are traditionally associated with the state, but if you bring in NGOs, private companies and other non-state actors, out of technical necessity you move into the realm of networks, guidelines and other alternatives to traditional formal law-making. We have the manifestation of 'disaggregated sovereignty' that Anne-Marie Slaughter wrote about in 2004; no longer is the state department or the ministry of foreign affairs the sole negotiators of deals with other actors. We now have regulators, cities, and all kinds of local actors reaching out to partners and concluding agreements - which for a formal international law-maker cannot even be called a treaty.

The final point which goes some of the way to explaining this stagnation harks to the oft-cited criticism of hard law: its rigidity. The notion of concluding an all-encompassing treaty in sectors such as finance, the internet or food safety is simply laughable. Once you have actually concluded a treaty the world will have changed and to amend or modify the treaty is extremely difficult. Because of this rigidity it becomes unviable to deal with today's rapidly evolving problems using formal law-making procedures.

Given this level of stagnation, is there any reason to be optimistic about addressing global problems wherein resolution necessitates global cooperation? Pauwelyn believes so. Treaties are less and less frequently the instruments that actors are picking from the menu to facilitate cooperation across borders, but other options exist. Instead, what we are seeing is new outputs, new networks and new forms of informal law-making. Fields such as health, the internet and finance are increasingly regulated through networks and non-binding guidelines that involve many different actors (in addition to states). In these fields we have witnessed much evolution and adaptation in an emerging code of good practice coming from the bottom-up. What we have is a move from relatively thin state consent to thick stakeholder consensus.

Nonetheless, informal law-making is far from ideal. No longer can we rely on domestic ratification as a sole way of keeping treaties of international activity accountable. Broadening governance to networks and bringing in private actors remove domestic oversight, and can lead to transparency issues. The headline-grabbing fiasco playing out at FIFA right now serves as a real-life theatrical distillation of the potential problems bound up in having a private NGO regulating a field with a public impact. This modern type of informal law-making and governance falls between the cracks of international and domestic law and, as Pauwelyn laments repeatedly, is flagrantly overlooked by most legal curriculums. Scholars of political science can continue to work harmoniously with international lawyers by working to remedy this void through assessing these global networks in order to ensure transparency, accountability, and ultimately, legitimacy.