The Regulatory Turn in International Law by Jacob Katz Cogan

[Jacob Katz Cogan, an Associate Professor of Law, University of Cincinnati College of Law and a Visiting Associate Professor of Law, Vanderbilt University Law School, Spring 2011, describes his recently published Article, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.]

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this “humanization of international law” that by the 1990s human rights had become “part of . . . international political and legal culture.” This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction. Whereas the human rights turn protected the individual against excessive governmental control, these parallel processes do just the opposite—they facilitate and enhance the regulatory authorities of government (both national and international) in relation to the individual.

The regulatory turn represents a fundamental challenge to the assumptions and dynamics of traditional international law. While once the international system shied away from acting directly on individuals,it now asserts such authority with regularity through the articulation of rules and the adoption of decisions. And while once international law deferred to states in the implementation of common rules pertaining to individual duties and their enforcement, it now often eschews state discretion and instead dictates with increasing specificity the provisions to be adopted at the national and sub-national levels. This constitutive realignment in the international system’s position vis-`a-vis the individual complicates our inherited vision of international law and the expectations that flow therefrom. The system effects include the restructuring of the distributions of power to and among states and international institutions; there framing of the ways in which international problems and solutions are imagined; the reallocation of resources to support law enforcement organizations and programs; the recalibration of the substantive and procedural demands made upon international decision-making processes; and even the reconfiguring of the ways in which we, as individuals, imagine each other.

This Article draws connections between diverse subject matters and practices, past and present, so that we can better discern the otherwise hidden trend that is the regulatory turn, situate it within the emerging system of international governance, and appraise its effects.