Book Discussion Informal International Lawmaking: A comment by David Zaring

[David Zaring is Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School]

Pauwelyn, Wessel, and Wouter’s excellent book, which in turn marks the fruition of a project on informal international lawmaking that they dub IN-LAW, is pretty good on the theory end of things, which is what this post will look at, and also critique. Organizationally, the editors cracked the whip creditably – each chapter is organized, features a takeaway, and follows well. But should you read it?

PWW develop both a definition and a metric for evaluating informal international lawmaking. Their defintion – figuring out whether that international phenomenon is IN-LAW or not – looks to its output, process and actors. If the output (non-treaties), process (non-diplomacy) or actors (non-states) are different from those in conventional international law then, PWW argue, you are in the world of IN-LAW. And that world includes a large number of public governance efforts ranging from technical regulation to much more political work like that done by APEC and the G20.

The metric turns on evaluating IN-LAW on two axes. The first turns on whether it is accountable, and therefore legitimate, the second on whether it is effective (and possibly legitimizable through that metric). Conceptually, it’s really quite a persuasive take. The book is an efficient blend of the descriptive and the normative. Nonetheless, some questions:

IN-LAW isn’t a bad rubric, but policing the borders of these kinds of categorization exercises is irresistible. Is it really so valuable to take heads of state exercises like APEC and the G20 and try to jam them into the same space as much more technical exercises on, for example, the Global Strategy on Diet or the Internet Engineering Task Force? PWW do that. But one is politically legitimate from its first moment. The other stakes its legitimation claims on its expertise, to say nothing of the differences in media attention, significance, and scope. Informal, yes, they both are. But I’d like to see an even better reason to group them.

This is a book written by legal scholars, and legal scholars love to talk about legitimacy. But is it such a raison d’etre if your goal is to understand and work with international law? What, for example, if IN-LAW is not legitimate? We’d still have a phenomenon worthy of description. Indeed, the efforts the authors make to legitimize IN-LAW – domestic accountability, various other metrics – is completely different from the old legitimation technique, which turned on state consent. If legitimation is your grail, why change the standards by which legitimation is set?

There is only a little of the “why now?” in this book, but why IN-LAW now? International governance has had informal antecedents for a long time, but in both economics, and especially politics, has worked through pretty formal channels for decades. Now it isn’t, and laying the development at the feet of globalization seems a little imprecise. I’ll look forward to further research on this question.

For those particularly exercised by the above, here’s an overview of the chapters in the conceptual section:

Ayelet Berman and Ramses Wessel observe that accountability in IN-LAW comes from the accountability of the constituents to it, the domestic agencies or political actors who participate in IN-LAW processes. They consider whether IN-LAW entities ought to get international legal personhood and speculate that it might not enhance accountability.

Liliana Andonova and Manfred Elsig apply a more political scientific lens to view IN-LAW as a principal-agent problem – and solution to the principal-agent problems posed by more formal international organization or diplomats.

Stefan Voigt takes an interesting look at a likely incomplete data set of United States informal agreements generated by the executive’s reporting under the Case Act. The data shows just how often the traditional foreign affairs establishment is resorting to mechanisms other than treaties – the leading Case Act informal agreement producers are the White House, the military, and the State Department. The agreements these institutions make are overwhelmingly bilateral, a fifth of which concern the wealthy west (and another fifth of which concern Latin America, oddly).

Philipp Dann and Marie Von Engelhardt compare IN-LAW to other schools designed to get at the bottom of the proliferation of non-formal international law among states; that is, the Global Administrative Law Project, which I associate with NYU and Rome, and the International Public Authority Project championed by a group in Heidelberg.

PWW again take up the legitimacy question in the conclusion to the work. They argue that legitimacy needs to be assessed beyond the metric of state consent and that IN-LAW’s claim to legitimacy substitutes a domestic legitimation project for the formalities of public international law. They argue that ideally that legitimation would involve a “thick stakeholder consensus”. They also observe that IN-LAW in particular has an outsider problem, in that many of the participants in these informal organizations are elite, hard to track, and self-absorbed in a way that has real consequences for the developing world and the less technically inclined affected by IN-LAW, but unable to police it.

All in all, the book is a pleasure, which is not always easy to achieve with an edited volume. Those with even passing interests in international institutions will benefit from contemplation of the conceptual approaches set forth here.