When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

TLDR

Formal international law is stagnating in quantity and quality, increasingly supplanted by informal lawmaking involving new actors and processes, yet both formal and informal structures can become shackles that constrain freedom. The article aims to test the stagnation hypothesis, analyze its causes linked to a shift toward informality, and assess potential responses. The study draws on two years of research with 40 scholars and 30 case studies to identify procedural meta‑norms—thick stakeholder consensus—that increasingly constrain informal cooperation. Evidence supports the stagnation hypothesis, attributes it to a turn to informality, and shows that thick stakeholder consensus may be normatively superior to thin state consent.

Abstract

Formal international law is stagnating in terms both of quantity and quality. It is increasingly superseded by 'informal international lawmaking' involving new actors, new processes, and new outputs, in fields ranging from finance and health to internet regulation and the environment. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over 40 scholars and 30 case studies, this article offers evidence in support of the stagnation hypothesis, evaluates the likely reasons for it in relation to a 'turn to informality', and weighs possible options in response. But informal structures can also become shackles and limit freedom. From practice, we deduce procedural meta-norms against which informal cooperation is increasingly checked ('thick stakeholder consensus'). Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law ('thin state consent').