Book Discussion Informal International Lawmaking: Legal Nature and Impact

[Ramses Wessel is Professor of the Law of the European Union and other International Organizations at the University of Twente]

In Part II we focus on the legal nature of informal international lawmaking. Perhaps ironically the question of whether IN-LAW should be perceived as forming part of the ‘legal universe’ is one of the most prominent ones addressed in this book. The project started off under the working title ‘Informal International Public Policy-Making’. However, on the basis of the empirical analysis we found that it is quite often difficult not to regard informal normative processes as elements of ‘lawmaking’ or at least having important legal effects or triggering a need to be regulated by law. One possible critique could be that ‒ in order to stay in business ‒ lawyers now try to include governance phenomena that were traditionally studied by political scientists and public administration scholars. Indeed, it no longer seems to be a taboo to use terms such as governance, regulation, legitimacy, or accountability in legal studies. Yet, in the end, lawyers are interested in legal systems and the main new element in the discourse seems to be that they acknowledge more frequently that the legal system cannot be studied when other normative processes (with perhaps a deeper impact on the addressees or as a first phase of an emerging legal rule) are ignored.

This issue is most prominently discussed by Joost Pauwelyn (Chapter 6), when he raises the question ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) by Pauwelyn is whether ‘output informality’ implies that IN-LAW output is not international law.

Dick Ruiter and Ramses Wessel (Chapter 7) go one step further and depart from the presumption that IN-LAW is law. What arguments does legal theory offer when we wish to include the IN-LAW processes in our legal thinking? Indeed, using institutional legal theory, the authors ask whether it is not possible (or perhaps even more logical) to view the prima facie non-legal phenomena as law. Using one of the case studies as illustration, they argue that we may need to reassess the sources of international law to the extent that consensus within an international professional community on the best available knowledge and expertise can offer a foundation for legal powers to issue hortations enjoying validity under international law.

Quite the opposite position is taken by Jean d’Aspremont (Chapter 8), who warns us that international legal scholars studying the normative activities taking place outside the traditional remit of international law are often induced to loosen their concept of international law with a view to broadening the span of their discipline. In the author’s view it is not needed or even preferred to attempt and encompass all ‘new’ normativity in legal terms. ‘[W]hy not com[e] to terms with the interdisciplinarity of such an endeavour and recognise that, even as international legal scholars, we can zero in on non-legal phenomena without feeling a need to label them law’.

By way of a synthesis, Andrea Bianchi (Chapter 9) offers a possible way out from a ‘light’ constructivist perspective. The normative outcomes of IN-LAW have no distinct legal structure from treaties. Both could be seen as different points on a spectrum of commitment. Both types of agreements, so to speak, affect States’ incentives, because both affect the relevant payoffs. The conglomerate of such heterogeneous regulatory forms is part of one very variegated but recognisably ‘global’ administrative space. This, however, is not all that new; and also not that important. Rather than asking what is it that IN-LAW does, we should focus on the question of what is it that we do with IN-LAW.

What we do with IN-LAW can be measured by its impact. In the first contribution to Part III (Impact of IN-LAW), Jan Klabbers (Chapter 10) starts at the other end: accountability requires some yardstick, and in the conduct of global affairs the most obvious yardstick is that of international law. The author discusses the position of international courts and tribunals in respect of IN-LAW instruments. In doing so, the Chapter empirically tests the plausibility of what is termed ‘presumptive law’, the argument being that in international affairs, emanations that are of normative significance and that are based on some form of consent by the relevant actors, must be presumed to be legally binding, if only because the alternative (non-bindingness) makes no sense. Klabbers tests this assumption on the basis of case law of the International Court of Justice, complemented by some references to decisions of the European Union’s courts and the non-compliance procedure set up under the Kyoto Protocol.

In the subsequent contribution, Mark Pollack and Gregory Shaffer (Chapter 11) note that IN-LAW has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. This implies that, in studying the impact of IN-LAW, the interaction between formal and informal law should be taken into account. The authors raise two sets of questions. First, why would States choose to address any given issue in a formal or an informal lawmaking setting – and why might they do both simultaneously? Second, once two or more formal and informal lawmaking processes are underway, how do formal and informal law and lawmaking interact in practice?

In his contribution to Part III, Yane Svetiev (Chapter 12), evaluates the impact of transnational regulatory networks on the basis of a case study on the International Competition Network (ICN), an extensive but highly informal network, which was set up particularly since States could not agree on a formal legal antitrust regime. The author assesses whether we can nevertheless observe the emergence of alternative norm-enforcement mechanisms and the formalisation of certain tools of learning or knowledge transfer. If anything, Svetiev reminds us of the limits of IN-LAW and the need, in particular subject areas, for more formal commitments if cooperation is to be effective.