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Joost Pauwelyn

Symposium: Rule of Law, Internationally

by Joost Pauwelyn

[Joost Pauwelyn is a Professor of Law at the Graduate Institute of International and Development Studies in Geneva and Visiting Professor at Georgetown University Law Center. This is the fourth post in the Defining the Rule of Law Symposium, based on this article (free access for six months). The first is here, the second, here and the third here.]]

Both domestic and international normative regimes may limit our freedom and affect our daily lives. As a result, as Prof. McCorquodale implies, both need to be subject to the rule of law or mechanisms that keep the exercise of power accountable (in earlier work, I referred to this as “principled monism”). The fact that international affairs are, at this stage, not always conducted in line with the rule of law (just think of UN immunity and the Haiti cholera case) does not mean that there cannot be, or should not be, a rule of law at the international level.

Two tensions struck me, however, in Prof. McCorquodale’s article, when it comes to defining the rule of law operative at the international level. Firstly, the article, in my view correctly, distinguishes the rule of law from “the existence of, and compliance with, substantive international law obligations” (p. 15). On that ground, it does not include “all human rights in the rule of law”. Later on, however, the definition of international rule of law provided does include “access to justice to protect human rights”. Why only access to justice to protect some substantive rights and not others? Does this definition not imply, contrary to the author’s earlier statements, that human rights are part of the rule of law (if you must provide access to justice to protect human rights, surely, you must have human rights in the first place?). Conversely, does it put economic or contract rights outside of the access to justice commitment?

Secondly, the article, once again rightly so in my view, argues for the existence and application of a rule of law also at the international level. As noted earlier, when our freedom is limited, why should we care where the freedom-restricting norm comes from (national or international), who made it (states, parliaments, regulators or private standard setters) or what form it takes (formal or informal law)? Taking the rule of law seriously means it should apply across the board (see Pauwelyn, Wessel & Wouters, When Structures Become Shackles, 25 European Journal of International Law (2014) 733-763).

At the same time, Prof. McCorquodale keeps repeating that “the application of the concept and definition of the national rule of law to the international system is misconceived” (p. 15). To the extent this is meant to say that implementing the rule of law at the international level may take different forms and institutions, it is unobjectionable. If it means that the mere nature of the international system fundamentally changes the requirements or very definition of the rule of law, I find it difficult to accept (hence, I am not sure it is correct to define an international rule of law separately from a domestic rule of law). Accountability domestically may work in some forms (say, parliamentary approval or ministerial responsibility), at the international level in other forms (say, state consent, peer review or principal-agent controls). But that does not mean we need one definition of accountability domestically, another internationally. Indeed, domestic institutions may ensure or assist in the implementation of an international rule of law (Kadi case?). Conversely, international mechanisms may operationalize or facilitate domestic rule of law (think of a WTO or investor-state tribunal condemning due process or denial of justice violations or nudging local governments away from discriminating foreigners). In today’s context, maintaining bright line distinctions between domestic and international legal regimes, formal and informal law, public and private standard setting is increasingly artificial.

Another bifurcation, black or white distinction, that is common, and also Prof. McCorquodale implies it, but that is misleading, is that separating rule of law from politics (at p. 3: “the rule of law … is a crucial part of the refutation of international law as being either politics or lacking in normative legality”). Rule of law (reducing exit options) is enabled by politics (understood here as voice, contestation, control, state or popular expression of preferences); conversely, rule of law (less exit) can only be maintained with a sufficient level of politics (or voice). In The Transformation of World Trade (104 Michigan Law Review, 2005, 1-70) I explained this bi-directional interaction in the context of the global trade regime. It is not a story from politics to law, but law enabled by and constantly requiring politics. In my more recent The Rule of Law Without The Rule of Lawyers? (109 American Journal of International Law 761-805), I show how today’s (granted, limited) rule of law in the WTO is enabled by a relatively inexperienced pool of panelists, most of whom are government officials, many of whom are not even lawyers, a pool that is, however, representative and inclusive. The more experienced pool of investment arbitrators, far less diverse and more polarized, coming mainly from private practice, in contrast, led EU Trade Commissioner Malmström to tweet that: “We want the rule of law, not the rule of lawyers.”

In that article I used “rule of law without rule of lawyers” tongue in cheek, without really defining either notion. Prof. McCorquodale, in his article, took the extra step that, so far, many (including this author!) avoided. Doing so he clears a major path ahead, tackling in a clear but pragmatic way core questions of definition, implementation and monitoring of the rule of law irrespective of where the action takes place.

Book Symposium The Electronic Silk Road: New Trade Rules for Cross-Border Flows of Information?

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva]

The Electronic Silk Road is a fantastic read, literally bridging Bangalore with Silicon Valley, showing us how the activity of trade has dramatically changed and how these changes require us to think about “Trade 2.0” rules.  Prof. Chander discusses both private and public law issues, domestic and international rules.

I want to focus my comments on international trade law rules, of the WTO type, that is, the rules imposed by treaty on governments, which generally prevent governments from doing certain things (e.g. prevent them from restricting trade or enacting domestic laws that discriminate against foreigners). When discussing “rules” and the internet, internet companies get nervous: they assume that the rules will limit them and thereby limit innovation.  The rules I am talking about here are limiting what governments can do and, in general, are there to protect or enable (not restrict) internet-reliant companies.  Although Silk Road describes in detail what has changed and sets out basic principles as to how rules could respond to these changes, I was, at times, missing a level of detail allowing us to make progress on the ground.

I see two main types of governmental actions that need curtailing by trade rules. First, governments restricting the flow or storage of data across/outside their territorial borders (e.g. a country requiring that Google or Citibank store all of its data within the country, or a country stopping or censoring the flow of information/network connection coming from/going abroad).  Second, governments taking, or eavesdropping on, information stored or transferred by companies or individuals in (or even outside) their territory (e.g. a country forcing Facebook to hand over certain data or “spying” on data transferred over the internet).

Are today’s WTO rules able to reign in these two types of government interventions with the toolbox of either rules on “trade in goods” or “trade in services”? (more…)

Book Discussion Informal International Lawmaking: A Reply

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.]

Thank you to Professors David Zaring, Tai-Heng Cheng and Chris Brummer for their truly insightful and extremely helpful comments.

Our book, and this discussion, is clearly only the beginning of a much longer debate on what, I predict, will turn out to be a radical transformation of the international legal system.

On David’s question: Why now? Haven’t we always seen informality?

Yes, but today is fundamentally different.  Firstly, because of technology, the transaction cost of cooperation or networking has fallen dramatically and is empowering new actors (public and private, including formerly voiceless or dispersed interests, think of developing countries, small businesses or consumer organizations) to participate in new, informal ways.  Secondly, given the complexity and pace at which our society operates, traditional forms of cooperation (treaties, formal IOs, state-to-state cooperation) are too rigid, ineffective and not adapted.  So “informal”, as we have defined it, has become cheaper and more effective; “formal”, more costly and ineffective.  I may have spent too much time already in Silicon Valley (on sabbatical at Stanford Law School) but internet and social networks are really a big part of this.  Here is Clay Shirky, writing about Facebook, Flickr and Wikipedia, not the Financial Stability Board or international standard-setting, but the gist is the same:

We now have communications tools that are flexible enough to match our social capabilities, and we are witnessing the rise of new ways of coordinating action that take advantage of that change … we are living in the middle of a remarkable increase in our ability to share, to cooperate with one another, and to take collective action, all outside the framework of traditional institutions and organizations.

(Here Comes Everybody, p. 20-21).

This is no longer just about Slaughter’s governmental networks.  The real “new world order”, thankfully, includes many actors and interests beyond just bureaucrats and experts.  Governments increasingly lack the knowledge and resources to be effective when operating alone; expert opinions need to be weighed and balanced in a broader public forum. And because of the decreasing cost of participation, the private interests heard are no longer just big industry.  This is where effectiveness and legitimacy can meet.  This is also why e.g. the G-20 and the Internet Engineering Task Force (IETF) – though relying on different legitimacy ingredients – can be studied as part of one broader phenomenon (David’s “policing the borders” point).

“If legitimacy is your grail”, says David, “why change the standard by which legitimacy is set”, i.e., traditionally “state consent”.  Here, Chris provides the answer: accountability today “often arises at the interstices of both international law and modern administrative practices”; it can be achieved “by old and new groupings, and depends on the actual mechanisms in place and not a black or white distinction between formal and informal networks”.  Contrary to conventional wisdom, being international law or not (e.g. consented to by states) is no longer decisive on whether something is legitimate or accountable.  Nor is being law or a binding international agreement decisive on whether something has an impact and should therefore be subject to domestic ratification (an assumption still held e.g. in the US Case Act).  As Tai-Heng puts it:  “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”.

This leaves us, however, with Chris’ important point: What is the role of courts in all this?  A truly inspiring lesson comes from a recent WTO Appellate Body report (the WTO not otherwise being a champion of IN-LAW, be it soft law or new actor involvement).  In US – Tuna II, the AB was willing to accept an outside norm as an “international standard” which WTO Members agreed to use “as a basis” for their own regulations, but only on condition that such norm meets a list of criteria linked to the authority of the body issuing the norm (be it public or private), the norm’s recognition both factually and normatively, and the process through which the norm developed (was it open, transparent, coherent, based on consensus etc.).  This is radically different from the one-stop shop of “state consent”.  And here at least, contrary to Chris’ intuition, formal norms (be it the TBT Agreement or a country’s mandatory regulation) do not “take higher precedence than informal ones” (e.g. Codex’s, the ISO’s or the IETF’s international standard). Indeed, this careful assessment by the Appellate Body of whether something amounts to an “international standard” is, in Tai-Heng’s words, based less on “a conceptual theory of law, but a moral theory about law”.

Thanks again, also to Opinio Juris for providing this forum (actually, another form of IN-LAW!) and The Hague Institute for the Internationalization of Law (HiiL) for funding the IN-LAW project.

Book Discussion Informal International Lawmaking: Conceptual Approaches

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law and Co-Director of the Centre for Trade and Economic Integration, Graduate Institute of International and Development Studies in Geneva.]

The result of a two-year research project (involving over forty scholars and thirty case studies), this edited volume addresses a phenomenon we labeled “informal international lawmaking” or IN-LAW.

We chose the word “informal” as it is broad enough to capture several ideas.

IN-LAW is “informal”, first of all, in the sense that it involves “non-traditional” actors, processes and/or outputs.  Indeed, most international norms that have emerged since the late 1990s are not set out in formal treaties. They are not concluded in formal international organizations. They frequently involve actors other than formal or central state representatives. In a diversity of fields – ranging from finance (Basel Accords, Financial Stability Board, Financial Action Task Force), health (International Conference on Harmonization in respect of registration of pharmaceuticals, Global Strategy on Diet), the internet (Internet Engineering Task Force) and the environment (Copenhagen Accord on climate change) to competition (International Competition Network), security (Wassenaar Arrangement on export controls of arms, Proliferation Security Initiative), the world economy (G-20) and human rights (Kimberley Scheme on conflict diamonds, Ruggie Guiding Principles on Business and Human Rights) — international lawmaking is increasingly “informal”: It takes place in networks or loosely organized fora.  It involves a multitude of stakeholders including regulators, experts, central bankers, professional organizations, business, NGOs and other non-state actors.  It leads to guidelines, standards or best practices.

IN-LAW is “informal”, secondly, in the sense that it ostensibly falls between the cracks of domestic and international law.  It is not clear what legal regime, if any, is applicable to them.  This, in turn, leads to the third connotation of “informal”:  the sense, real or perceived, that it dispenses with or circumvents the formal strictures, controls and accountability mechanisms of formal law.  This goes to the heart of IN-LAW: Even though it may be a more effective way of solving cross-border problems, is it, ultimately, an end-run on democracy (more on this by Jan in a third post)?

Part I of the book offers conceptual approaches to IN-LAW from different perspectives: legal (Berman & Wessel), international relations (Andonova & Elsig), economic (Voigt) and comparative (Dann & von Engelhardt).

Are the international agencies and harmonization networks involved in much of IN-LAW subjects of international law?  Berman & Wessel conclude in the negative based on traditional definitions but argue that progressive accounts may lead to a different outcome.  Having legal personality may facilitate accountability.  At the same time, it is not as if formal international organizations (IOs) are models of accountability.  Accountability can be achieved by both old and new groupings and depends on actual mechanisms in place, not a black or white distinction between formal and informal networks.  Actually, many of the IN-LAW networks examined have sophisticated governance structures in place that often are more transparent and responsive than those in formal IOs.

Andonova and Elsig map IN-LAW activity, distinguishing on functional grounds between objective-setting and service provision, and do so across the regulatory cycle.  Using a principle-agent model, they discuss delegation chains, control mechanisms, agent autonomy and costs, and provide a ‘performance optimum’ for IN-LAW activity building especially on examples in the field of climate change.

Voigt discusses the benefits and costs of IN-LAW from an economic perspective focusing on transaction costs and governance structure.  He then tests a number of hypotheses using a dataset of 2289 “international agreements” entered into by the United States over a 30 years period.  He confirms, amongst other things, the move in the United States from “treaties” (to be consented to by 2/3 of US senators) to “international agreements” (adopted by simple majority in both houses) and, more recently (and more difficult to confirm), non-binding arrangements (which do not require notification under the Case Act).  His results also show that around two-thirds of all “international agreements” are concerned with only three policy areas: the military, science and technology, and aid; and that around 40 per cent of all agreements are concluded by a non-traditional actor on the US side, i.e., an actor other than the President or the Secretary of State.

Dann & von Engelhardt compare the IN-LAW project to Global Administrative Law and the Heidelberg Project on the exercise of international public authority.  All three try to grapple with “the substantial extension of inter- and transnational cooperation beyond the traditional forms of international law”.

What we hope this book adds to this broader debate is threefold:

  • an in-depth analysis of the reasons why IN-LAW has emerged and is on the rise (sociologically, strategically, and normatively)
  • an analysis of practical legal questions flowing from IN-LAW (is it law, does it have legal effects, do networks have legal personality, how does informal law interact with formal law, and what does IN-LAW mean for the discipline of international law?);
  • a conceptual framework to assess and improve the accountability of IN-LAW focusing on both international and, in particular, domestic mechanisms, looking not only at “managerial” solutions but also political oversight and judicial review options, and building on lessons learnt from private regulation, domestic law and EU law which face similar problems.

Our bottom-line is more optimistic than where we started:  An in-depth examination of the IN-LAW networks we looked at convinced us that IN-LAW may actually be more adapted to the challenges of our society and, on top of that, also be more transparent and ultimately more accountable than many parts of traditional international law.  That said, continuing vigilance is required in both cases.

VJIL Symposium: Joost Pauwelyn Comments on “Interpretation and Institutional Choice at the WTO”

by Joost Pauwelyn

[Joost Pauwelyn is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva, Switzerland.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

Thank you to Opinio Juris and the Virginia Journal of International Law for inviting me to participate.

This Article, by Greg Shaffer and Joel Trachtman, makes the important point that choices in treaty drafting and judicial interpretation allocate authority. For example, a choice for rules (instead of standards) or reference to non-WTO norms and expert advice (instead of WTO law only) allocates authority, respectively, to negotiators (instead of the judiciary) and to other bodies or experts (instead of the WTO). This is clear and convincing. From there, however, the authors make an extra and less convincing step: after (descriptively) linking choice to authority they then (normatively) link type of authority to welfare and participation levels arguing, for example, that treaty drafters (setting rules) can be presumed to “maximize welfare” and offer more “transparency, accountability, and legitimacy” than the judiciary (applying standards) (p. 111). A similar hierarchy is presumed putting the WTO above standard-setting bodies such as Codex or the ISO, on the view that the latter “evade the need for consensus within the WTO” (p. 113) and are “subject to capture by certain interests” (p. 114).

I find it extremely difficult to make such generalizations about which type of authority is “better” in welfare and participation terms (Instead of gauging the consequences of interpretative choices it may be more productive to think about the underlying reasons for such choices, as I tried to do here with my co-author Manfred Elsig).

Today’s reality is that authority flows from an increasing diversity of sources (national & international; public & private; political, judicial & expertise etc.). Unless one makes the broadest of assumptions (e.g., “if we ignore strategic problems and asymmetric allocation of power”, at p. 111; elsewhere, equating all of WTO law to trade liberalization and on that basis implying that the WTO is more “efficient”, p. 132), it no longer makes sense to presume that one source is, by definition, “better” than another (e.g. that negotiators or the WTO do a “better job” than judges, experts or other institutions). It all depends on the task at hand (for some things politicians are better; for others, judges, experts or the market) and the detailed set up of the authority in question (how does it operate; who is included; what is its reputation and support?), rather than its type. Nor do we have to make a binary choice between this or that authority: the WTO can refer to outside standards yet at the same time exercise judicial control over those standards (as the recent Panel on US – Tuna Label did, checking the inclusiveness and transparency of the standard); it can refer to scientific or economic experts for factual matters, defer to national authorities for appropriate levels of protection but leave decisions on legal criteria in the hands of WTO panels.

Symposium: Discussion of Cogan’s “Non-Compliance and the International Rule of Law”

by Joost Pauwelyn

[Joost Pauwelyn is Professor of Law at Duke Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at the International Economic Law and Policy Blog]

“Noncompliance is necessary to the effective functioning and the continued relevance of the international legal system”. That is Jacob Cogan’s main thesis. Applied to the United States – for whose State Department Cogan used to work – it translates as follows: “international lawyers should acknowledge … the special responsibilities of the powerful in shaping and enforcing international law and not just abiding by it”.

Cogan goes both too far and not far enough. He goes too far by underestimating the flexibilities and exit options that exist within the system of international law. Indeed, most of the examples he gives of “operational noncompliance” are not breach or noncompliance at all. Cogan’s two core reasons for “operational noncompliance” are: (i) the difficulty of adapting international law to “changing community politics”, thus “civil disobedience” or noncompliance to “update” international law must be tolerated; (ii) the absence of effective enforcement of international law by a “community mechanism of control”, thus “vigilantism” or noncompliance to give effect to international law must be tolerated, even promoted.

Yet, the fact that antiquated custom can be changed by deviating state practice (Cogan’s first example of “operational noncompliance”) and the fact that most international law is enforced by self-help or countermeasures (Cogan’s second example of “operational noncompliance”) are proof of the flexibility inherent in international law; not proof that noncompliance with international law is needed because of its rigidity or defects. Put differently, countermeasures (including, according to many, collective countermeasures) are fully legal within the system of international law; there is no need to go outside the system. Equally, the fluidity of custom, based as it is on state practice, enables and inherently permits gradual changes; there is no need to go outside the system. This may mean that international law is too flexible (custom is inherently unstable, enforcement is primitive and rules, even those on the use of force, are vague and subject to contrasting interpretations); it offers no excuse for what are genuine acts of noncompliance (Cogan himself refers to the use of force in Kosovo and may have in mind also the US invasion of Iraq).

This may be a matter of semantics: What I see as flexibilities and exit options perfectly permitted and accepted within international law, Cogan defines as “noncompliance” (mainly because his benchmark is domestic law). To that extent, Cogan is absolutely right to stress the importance of flexibility and exit options in international law. Even in the WTO, harder law is not always better law. For international law to attract participation, support and legitimacy (“voice”) it needs to provide balancing flexibilities (“exit”).

At the same time, Cogan does not go far enough. He simple takes it for granted that ideally “compliance” should always be the goal, if only international law had the enforcement tools to get there. As much as he criticizes the traditionalists’ view that “compliance is sacrosanct”, he ultimately supports their prescriptive or normative goal: “compliance, of course, is and should be the norm … otherwise what does it mean to be a law? … Nor is there doubt that many, if not most, instances of operational noncompliance are unlawful and undesirable”. But that is exactly the problem. Even domestic law does not require “compliance” (broadly defined as Cogan does) or “specific performance” of all of its rules. Domestic law comes in degrees (think of contracts, statutes and constitutions) and is protected and enforced at various levels (think of liability rules, property rules and inalienability; compensation, fines and imprisonment). International law should be no different. Yes, as Cogan argues, international law must give up the “myth” that “compliance is sacrosanct”, that international law must always be complied with, if not, it risks not being law. But it must give up this “myth”, not because of its weaknesses or defects, but because the same happens in any legal system, without claims being raised there that, as a result, US law, for example, is not “law”.

Put differently, the choice is not a binary one, as Cogan seems to think, between compliance and noncompliance, abiding by the law and civil disobedience or vigilantism, between “real law” and “international law”. Rather, it is a choice between varying degrees of normativity, different levels of protection and enforcement of different types of norms, of marrying flexibility and commitment within the law.

As international law matures, it must, indeed, give up the myth of “harder law is better law” and “compliance is sacrosanct” not to replace it with non-law or noncompliance, but with a calibrated system of law where some norms are, for example, best and most effectively protected by a property rule (most treaties), others by a liability rule (some economic and environmental obligations), yet others as inalienable (many human rights).