1 COMMENT ON NICO KRISCH, “THE DECAY OF CONSENT: INTERNATIONAL LAW IN AN AGE OF GLOBAL PUBLIC GOODS” Eyal Benvenisti* and George W. Downs † In his recent article 1 , Nico Krisch joins an increasing number of scholars who worry about the “turn to- ward nonconsensual structures” in international lawmaking. Although the article is primarily descriptive and does not set out to offer either a rigorous explanation or a normative assessment of this trend, Krisch does suggest that the trend “reflects the fact that the need for greater cooperation [at the global level] . . . is not always, or not even typically, satisfied by international law.” It also gives voice to the concern that the move to informal institutions “point[s] in the direction of more hierarchical forms of governance” that increasingly cater to a small number of powerful states, rather than to the traditional, broad, consent-based order. Krisch juxtaposes this worry about emergence of a “the decay of consent” against two historical alterna- tives. The first is “the dominant narrative of the continuing rise and growth of international law in times of global interdependence. That narrative is common among international lawyers—whether they are sympa- thetic or hostile to the development—and is also widely shared among international relations scholars.” While this camp may characterize writers of the mid-1990s, it has recently been largely overtaken by a new genera- tion of more critical voices 2 . Krisch appears to be referring to the latter camp when he mentions scholars who noted the decay of consent but have drawn from it an egalitarian picture, namely, a supposed “shift toward majoritarian decision making that retains for all states a right to equal participation.” Krisch’s vision is starker: “nonconsensualism, whether in formal or informal guise, creates more exclusive decision-making structures that reduce the number of decision makers—and typically not in an egalitarian fashion but in a way that entails a loss of control for all but the most powerful players.” While we are among those who have noted 3 the democratic and egalitarian deficits entailed by the move to informal international lawmaking, we find ourselves less convinced by Krisch’s misgivings concerning the decay of consent in a world dominated by a handful of powerful states. For better or worse, we believe that consent was never a major impediment to the dominant powerful states that could manipulate the global archipelago of treaty regimes to their benefit, relegating consent to a mere formal legitimating tool of sub- mission to power. As Joseph Weiler has pointed out 4 , “the consent given by [most] ‘sovereign’ states is not much different to the ‘consent’ that each of us gives, when we upgrade the operating system of our computer * Eyal Benvenisti is Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law. † George W. Downs is Bernhardt Denmark Professor of International Affairs and Professor of Politics at New York University. Originally published online 26 Mar. 2014. 1 Nico Krisch, The Decay of Consent: International law in an Age of Global Public Goods, 108 AJIL 1 (2014). 2 JOOST PAUWELYN ET AL., INFORMAL INTERNATIONAL LAWMAKING (2012). 3 Eyal Benvenisti & George W. Downs, The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. 595 (2007). 4 J.H.H. Weiler, The Geology of International Law – Governance, Democracy and Legitimacy, 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 547 (2004) (Ger.).