Book Discussion Informal International Lawmaking: Legality and Normativity

by Tai-Heng Cheng

[Tai-Heng Cheng is the international disputes partner of Quinn Emanuel Urquhart & Sullivan, LLP in New York.  Views expressed here do not necessarily reflect those of his firm or its clients.]

Congratulations are due to the authors of Informal International Lawmaking, and especially to the editors, Professors Pauwelyn, Wesssel and Wouters, for their keen observations and appraisals of the global decisionmaking processes as they operate today.

Opinio Juris has assigned me the task of commentating on the legal and normative nature of international decisionmaking processes that the authors call “informal international lawmaking.”  A sensible place to start is the authors’ discussions of whether these social processes counts as law.  Although Professor Pauwelyn seeks to move away from the “old debate about whether or not international law is law,” (p 140), he nonetheless ends up in that debate when he suggests that international social norms created by “informal” processes could constitute law, on the basis of several possible criterion for legality, such as the belief that an informal social norm is law. (p 140).  Across the debating chamber, Professor d’Aspremont rejects that perception of informal norms as law.  He laments: “[O]ne may wonder why international legal scholars cannot study a phenomenon without portraying it as a legal phenomenon.” (p. 199).

In my view, there is no purely conceptual answer to whether a decisionmaking process or norm is legal.  As I discussed in Chapter Two of When International Law Works, claims about the concept of law are inevitably premised on assumptions and motivations that are not conceptual.  They are, instead, normative, personal, and political in nature.  Professor Pauwelyn confesses that the decision to classify international social norms as law is often driven by “the practical consequences of doing so.” (p. 141).  In contrast, Professor d’Aspremont objects to calling informal social norms law because he believes that doing so would have “fallout” consequences on the “normative character of international law (1) as a whole; (2) its authority; and (3) eventually, the possibility of preserving a uniform law-ascertainment language among legal scholars.” (p. 196).  Professor d’Aspremont further charges that scholars are motivated to “pluralize” the concept of law in order to “stretch the frontiers of their own discipline,” because “there are less fields untouched and less room for original findings[.]” (p. 197).

Even if it were possible to determine in purely conceptual terms whether or not international social norms were law, that answer sheds little light on whether those shared social expectations are normative.  The authors who favor informal lawmaking argue that that process is normatively good because it is generally more inclusive of stakeholders, more transparent, and therefore more accountable. (p. 148).  However, there are many democratically-created rules that are misguided or reflect poor collective choices.  Even for those who believe that the arguably accountable process of informal lawmaking is more important than the content of  norms that result from that process, informal lawmaking nevertheless would be deemed good because it is accountable, not because it is law.  Whichever way one looks at the issue, whether a norm is law does not tell us whether it is good.

Thus, from the practical standpoint of a decisionmaker, the classification of social norms as law or not law does not necessarily provide guidance about their normative content or what the decisionmaker ought to do about those norms.  Consider, for example, the job of an investor-state arbitration tribunal, which was not covered in Informal International Lawmaking. The primary task of the tribunal is to resolve the dispute according to established legal rules.  Each arbitrator has a moral obligation to do so because the parties have delegated to him limited authority to decide the outcome of the dispute according to the law.  However, in discharging his moral obligation, the arbitrator often cannot avoid appraising the content of a relevant norm to help decide how persuasive it is.  In investor-state disputes, tribunals routinely cite and rely on prior awards.  Because there are no rules of precedent, tribunals have to decide which awards are persuasive by inquiring whether the awards are good or widely-accepted, rather than by determining only if the awards are law.  What decisionmakers need is not a conceptual theory of law, but a moral theory about law.

My provocations about the relationships among international social norms, legality and normativity should not detract from the magisterial achievement of the authors in refocusing the scholarly community’s attention on the dynamic processes of decisionmaking in international problems, and the crucial task of seeing how we can refine those processes to better promote basic values that everyone desires. In so doing, Informal International Lawmaking has made a contribution to what Harold Laswell and Myres McDougal described as a key task of “relevant jurisprudence”:

[T]o bring all these vague assumptions – of varying degrees of comprehensiveness, consciousness, explicitness, and realism – to a clear focus of attention for rational evaluation and, perhaps, for renovation into more systematic and dependable knowledge.

Jurisprudence for a Free Society, p.21.

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