Book Discussion Informal International Lawmaking: Some thoughts on accountability

by Jan Wouters and Sanderijn Duquet

[Jan Wouters is Professor of International Law and International Organizations, Jean Monnet Chair Ad Personam EU and Global Governance, and Director of the Leuven Centre for Global Governance Studies and Institute for International Law at the University of Leuven (KU Leuven) and Sanderijn Duquet is a Junior Member of the Leuven Centre for Global Governance Studies.]

We would like to take a moment to personally thank this week’s contributors for their insightful observations about our book. This has resulted in a wonderful discussion and we could not think of a better forum than Opinio Juris to conduct this exercise.

As has been pointed out, the conceptual book on IN-LAW is, together with a case study book, the result of a two-year research project sponsored by the Hague Institute for the Internationalization of Law (HiiL). From the kickoff onwards, the project has emphasized the importance of addressing questions of accountability, effectiveness and the tensions that may exist resulting from the operationalization of these concepts. We would like to chip into the discussions and respond to some issues raised with regard to accountability.

One of the purposes of the project has been to reconnect international legal scholarship with the ‘real world’ and the many interesting informal normative processes that shape it, and make it more interconnected and inclusive. Accepting a role for informal processes in lawmaking and global governance is of course one thing; assessing the impact of fundamental constitutional principles (such as accountability) in relation to these processes and their output quite another. Even though we did face conceptual difficulties while drawing a general theoretical framework for accountability mechanisms in different (e.g. political, technical) types of IN-LAW bodies – struggles also pointed to by David Zaring – we remain convinced of the added value of this exercise. One of our observations is the existence of overarching criteria to promote accountability at the international level. Admittedly, our starting point, the application of a broad definition of accountability, including accountability-promoting mechanisms such as transparency, participation of stakeholders etc., most likely worked in our advantage.

For example, we would argue that democratic legitimacy of IN-LAW is enhanced by open, well-established and participative deliberation processes. Focusing on IN-LAW bodies, this seems hard to test, given that informal normative processes lack common procedural characteristics or participation requirements. The processes leading to the adoption of IN-LAW are organized at the level of the IN-LAW mechanism, and procedures in place take into account the specific dynamics between actors. Yet, it would be too much of a generalization to state that no shared features promoting accountability in decision-making exist among IN-LAW bodies. Our case studies did on the contrary find broad evidence of participative models and consensus-based decision-making. Additionally, certain cases showed a willingness to remedy participatory or decision-making deficits: see e.g. the reforms that have taken place in the Codex Alimentarius Commission and in the International Conference on Harmonization of Technical Requirement for Registration of Pharmaceuticals for Human Use in order to improve (more egalitarian) participation of all members.

Within the domestic legal order, the implementation of the output of IN-LAW processes is one of the main objectives. We fully agree with Chris Brummer that the role of courts in holding IN-LAW to account deserves further analysis. The IN-LAW project marked judicial review of IN-LAW as an accountability mechanism in the narrow sense, and indeed, as noted by David Zaring, as a control tool attractive to legal scholarship. In line with Joost’s interesting example of the inclusion of arguments based on IN-LAW by the WTO Appellate Body (US – Tuna II) we want to add that in domestic settings too, judges can assume such roles in controlling IN-LAW and its legitimacy. Domestic implementation of norms and standards is the most obvious way to expose IN-LAW to the review of courts. Yet, juridical techniques, e.g. the endorsement of IN-LAW as a legally relevant given in a case, have also proven to be catalysts to subject IN-LAW to judicial scrutiny without it formally having been transformed into a national legal norm of any kind. Although we remain mindful not to overlook traps of legal activism, we would like to argue that courts will never be completely sidelined in IN-LAW discussions: judgment is and will be passed on IN-LAW norms. Our case study book has e.g. compiled examples of court cases in the Netherlands (provided by Leonard F.M. Besselink) and Brazil (Salem Nasser and Ana Mara Machado) that considered IN-LAW. A more crucial question in this respect seems to be: what are the standards IN-LAW is balanced against? In domestic cases, to a large extent the national context dictates the legal mechanisms used. This ambiguous situation may not only be problematic for the individual case under review, but furthermore questions the suitability of courts to make general policy assessments of IN-LAW, as the IN-LAW book’s chapter by Corthaut, Demeyere, Hachez, and Wouters suggests.

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