The trend towards non-consensualism in public international law: A (behavioural) law and economics perspective

Abstract

Consent as the cornerstone of international law has been under pressure in recent years. Non-consensual forms of cooperation exist across many issue areas. The pattern and persistence of this trend, however, do not evolve at the same pace, prompting discussions on the driving factors behind this development. This research seeks to further illuminate both the scope and the underlying drivers for this development. To that end, three major formats of non-consensualism are identified, deviating from the classical perception of international law as a contractual and multilateral construct, namely unilateralism, bi- or plurilateralism and informality. This research then applies both classical rational choice theory and behavioural economics in order to explore the explanatory power of the economic approaches to these formats of non-consensualism. This study seeks to refine our understanding of international law and highlight both the potential and limitation of economic concepts as well as their relation to power-oriented and institutional approaches.