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.

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 Symposium Informal International Lawmaking: A comment by Chris Brummer

by Chris Brummer

[Chris Brummer is Professor of Law at Georgetown University Law Center]

Joost Pauwelyn, Ramses Wessel and Jan Wouters have assembled a remarkable cadre of leading intellectuals to tackle some of the toughest issues of international law—what explains informal international lawmaking, what are the legal questions flowing from it, and, as my comments will discuss, examining the key concept of accountability. With the great talent behind it, Informal International Lawmaking promises to be great reading with a lasting academic impact.

Opinio Juris has asked me to address the topic of accountability in informal international lawmaking. For the most part, theoretical models of accountability have applied the concepts of output and input legitimacy to what the book rightly describes as “traditional” international organizations. However, as I have recently explained in my own work on international financial regulation, soft law’s accountability challenge, often arises at the interstices of both international law and modern administrative practice, namely where treaty-ratification processes are routinely swapped out, or replaced, with administrative procedure. Notice and comment by extension redefines the role of the legislature and executive in the implementation of informal international agreements, and thus test and redefine our conceptions of both legitimacy and accountability and even the role of various governmental bodies in international affairs.

Many scholars at least intuitively feel uneasy about this change in international rulemaking. Claire Kelly and Sungjoon Cho, for example, have rightly raised the question of missing “epistemic communities” in the rulemaking progress. But the lackluster participation of such communities is often as much a consequence of dispersed stakeholder (especially consumer) interests as it is efforts to exclude relevant parties; plus they inform domestic “hard law” treaty ratification processes as much as they do soft law.

Like the editors of this volume, I, too, have ended up at a more optimistic point than where I began when first researching the global financial system. IN-Law can, under the right challenges, indeed be readily adapted to challenging circumstances while at the same time provide as much and in some cases even more transparency and accountability than many fields of traditional international law. There are, to be sure, important deficits in many existing IN-Law regimes, a point the book explores in considerable depth. But many of these deficits arise not only in informal organizations, but also in treaty-based forums like the European Union. Moreover, as I have observed in my own work, where we do see obvious democratic deficits, informal organizations are much more likely and capable of undertaking change than their hard law counterparts—from the G-20s usurpation of the G-7’s leadership role, to the formal inclusion of regional consultative bodies in the FSB’s new and revised 2012 Charter. Thus one of the book’s lessons, that accountability can be achieved by both old and new groupings, and depends on the actual mechanisms in place and not a black or white distinction between formal and informal networks, deserves highlighting.

That said, the interplay of traditional and non-traditional actors in informal rulemaking can be an important query. International financial forums are, for example, often embedded in or related to other regulatory processes. The Financial Stability Board gets its direction and reports to the G-20 central bank governors, finance ministers, and heads of state. This kind fragmented system creates plenty of opportunities for dysfunction, something Greg Shaffer (one of the book’s contibutors) and Mark Pollack have wisely noted elsewhere. But as I have noted in the soft law context, a fragmented architecture can also generate its own advantages. For example, in the larger financial regulatory system, the fact that the Basel Committee reports directly to not only central bankers but also finance ministers and heads of state introduces political accountability in ways that can’t necessarily be divined if one just looks at the Basel Committee’s membership. Moreover, heads of state now routinely set the agenda for financial rulemaking and in some cases even “ratify” the most important decisions of international bureaucracies. Collectively, their presence forces us to rethink not only issues of political economy, but also concepts of legitimacy and accountability.

The big question, and one that I am especially eager to explore in the future, is the role of courts in IN-Law. In some ways, the easy question is whether informal institutions, networks and organizations
should incorporate international law. Intuitively, it would seem that formal norms (recognized as international law) should take higher precedence than informal ones. The harder issue is to what extent informal norms should be espoused by formal institutions and courts, especially where they are explicitly concluded in ways to not create legal obligations or commitments. Contributors in the volume make the smart (and accurate) observation that the role of courts depends for the most part on the way IN-LAW is implemented domestically. That said, it’s hard to talk about courts without talking about concomitant issues of compliance and obligation. We only care about legitimacy to the extent to which international law “matters”—and that actors should be (or are) obligated to comply with it. And to the extent it matters, we want to be sure that legitimate rules are obeyed and that illegitimate rules are either ignored or made legitimate. As I have discussed elsewhere, how courts would ensure either is difficult where informal rules are involved since they are often explicitly non-binding, and thus generate no formal legal obligation, yet still exhibit a compliance pull due to market preferences, institutional sanctions and even reputational consequences for actors. But because they are not formal legal obligations, courts are sidelined, in the case of international financial law, often from both the standpoint of expertise and jurisdiction. Thus to address the role of courts requires rethinking what IN-Law means as not only for international rule-making, but domestic law as well.

Book Discussion Informal International Lawmaking: Accountability and Domestic Implementation of IN-LAW

by Jan Wouters

[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).]

Once we conclude that IN-LAW is not devoid of impact and cannot be ignored as a normative process, the question of the accountability of the involved actors, processes, and output may be raised. This question is addressed in Part IV. Eyal Benvenisti (Chapter 13) ‒ one of the inventors of the term ‘informal international law’ ‒ kicks off by mapping the different informal lawmaking mechanisms and by distinguishing among the various actors that initiate and take part in informal international lawmaking. The purpose of his exercise is to contribute to the assessment of possible ‘accountability gaps’ of IN-LAW, by taking into account the notion that different lawmaking mechanisms may benefit certain actors and constituencies while they disadvantage others. Who are the disregarded constituencies whose accountability deficit must be accounted for? And how can we address the accountability gaps of the IN-LAW processes?

The next step is taken by Tim Corthaut, Bruno Demeyere, Nicholas Hachez, and Jan Wouters (Chapter 15), who follow-up on the analysis by Benvenisti by assessing whether − and to what extent – such IN-LAW mechanisms are subject to some form of accountability and, if so, in what form. This chapter is used to operationalise accountability within the IN-LAW framework. The authors pinpoint some of the structural weaknesses when it comes to accountability of IN-LAW mechanisms, both at the level of the mechanism as such, and the accountability of the actors that operate within them. They suggest ways to strengthen IN-LAW accountability.

Fabian Amtenbrink (Chapter 15) takes it from there and develops a conceptual framework based on which the (democratic) accountability of IN-LAW actors can be assessed. He uses macroeconomic policy and financial market regulation as a case study to explore this question. The author explores whether and to what extent benchmarks (indicators) for the accountability of IN-LAW actors may be constructed based on such a framework and, moreover, whether such a framework could allow for a comparative assessment of IN-LAW actors in different policy fields. The purpose is to establish whether and to what extent the organisational function of constitutional systems, that is the legitimation of the exercise of public power through a system of checks and balances and mechanisms of democratic accountability, actually apply to IN-LAW.

Although purely private cooperation falls outside the scope of the project, participation of private actors in IN-LAW networks otherwise populated by public officials is a phenomenon that should not be neglected. Harm Schepel (Chapter 16) addresses the question of whether the distinction between public and private actors is of much import for issues of accountability and legitimacy of the output of private or hybrid regulatory bodies. After all, in some instances the exercise of public authority is in play and issues of accountability are likely to arise. Schepel develops his argument along two lines: the ‘bright line’ option (in which a strict separation is maintained between the spheres of law and ‘private norms’) and the ‘grey zone’ option (which operates on a rather more fluid notion of law and regulation, and recognises informal norms as legitimate if and when certain conditions are fulfilled). The author uses the role of ‘international standards’ in the World Trade Organization’s Technical Barriers to Trade and Sanitary and Phytosanitary Agreements to illustrate the role of ‘private’ standards in international lawmaking.

While these questions may be relatively new for international lawyers, for more than four decades similar questions have been at the core of some debates in European Union law. European agencies (with networks reaching far beyond the ‘public’ arena) are often part of both formal and informal networks. The ‘agencification’ process at the global level (see Berman and Wessel above) shows some resemblance to the earlier developments in the European Union, in particular in relation to the question of accountability. Ellen Vos (Chapter 17) seeks to identify what kind of mechanisms have been created to control European agencies and hold them accountable, and to reveal what kind of deficiencies there still are. The author uses this analysis to draw some lessons as regards accountability processes for IN-LAW.

The contributions in the preceding Parts frequently point to the domestic elaboration and implementation of IN-LAW. Indeed, the effects of IN-LAW are mostly felt at the domestic level, which is both the appropriate level for the emergence and implementation of the norms and the level where possible conflicts of norms become apparent. At the same time we should not forget that IN-LAW bodies are in most cases composed of (representatives of) national public authorities. As a result, domestic mechanisms are likely to play a crucial part in keeping IN-LAW accountable. Part V (Domestic Elaboration and Implementation of IN-LAW) is devoted to these questions.

In addressing the ‘two-way’ street as an essential characteristic of IN-LAW, Lorenzo Casini (Chapter 18) analyses the role of domestic public authorities within global networks. According to the author, the very idea of IN-LAW cannot be understood without considering the interplay between national and global actors. The chapter thus examines how public bodies (referred to as domestic ‘terminals’) take part in the global networks and how this participation affects domestic legal orders. At the same time, Casini picks up a point made by Schepel as well: many of the global networks are in fact hybrid public-private networks and the role of private actors is obvious. Two main issues guide the analysis: the institutional and procedural design of global networks, especially in terms of their domestic dimension; and the existing accountability and review mechanisms.

Answers to the question of the accountability of IN-LAW actors can indeed be found (also) at the domestic level. Focusing on Swiss law, Alexandre Flückiger shows how domestic law has introduced various mechanisms to ensure their legitimacy and control. The author reveals that as a result of these developments accountability mechanisms have gradually formalized non-binding acts, so that they are no longer merely informal themselves. Flückiger’s starting point is that since accountability is called for when States use non-binding acts to shape the behaviour of individuals, the same is required also in respect of IN-LAW which has similar effects.

To some, however, the ultimate answer as to the nature and effects of IN-LAW is to be found in the way that it is applied by domestic courts. While formal legal proceedings are but one way of dealing with accountability, an application of IN-LAW rules by a court would strengthen the idea that IN-LAW forms part of the legal system. The actual role domestic courts can play, partly depends on the way IN-LAW is (to be) implemented domestically. As the case studies show, some IN-LAW instruments are far more complex, also in relation to their domestic implementation, than formal international agreements and decisions. One particular example is formed by the Basel II Accord on banking supervision. As indicated by Pierre-Hugues Verdier (Chapter 20), Basel II is a central case of IN-LAW. It is informal along all three dimensions identified in the first Chapter of this volume: it is a non-binding policy framework, rather than a treaty; it was adopted by the Basel Committee, a transnational regulatory network; and national banking regulators, rather than traditional diplomatic actors, were the principal participants. In the absence of formal accountability regimes at the level of the Basel Committee, the author investigates whether domestic oversight compensates for this ‘accountability deficit’.

As a follow-up, Ayelet Berman (Chapter 21) examines the role domestic administrative law may or should play in the accountability of Transnational Regulatory Networks (TRN). Many TRNs are composed of domestic regulatory authorities, which triggers the role of domestic administrative law in the accountability of TRNs. The author develops an analytical framework which she applies to a case study of the International Conference on the Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) examined from a US administrative law perspective. It is argued that domestic law is significant in establishing the accountability of TRNs towards internal stakeholders, and has some role to play, albeit limited, in offsetting the problem of disregard towards external stakeholders.

Book Discussion Informal International Lawmaking: Legality and Normativity – A Reaction to Tai-Heng Cheng

by Ramses Wessel

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

First of all many thanks to Prof. Tai-Heng Cheng for taking the time to respond so eloquently to the parts on legality and normativity in our book on Informal International Lawmaking. Because of his knowledge of the area (as for instance reflected in his excellent book When International Law Works), his comments are very valuable. In fact, the comments touch upon an essential debate that was started by the book, but which is far from finished.

The comments underline that one of the most difficult questions in relation to informal international lawmaking concerns the legal nature of the norms. It is well accepted that not all law or legal norms impose or proscribe specific behaviour or legally binding rights and obligations. Normativity must not be confused with imperativity. This notion lies at the back of our analysis as well. Indeed, the debate between those who argue in favour of a bright line between law and non-law and those arguing for the existence of a grey zone is well-known. In practice the divide may not always be clearly visible. Yet, large parts of the debate have been devoted to the establishment of one or more criteria to decide what makes an instrument law (be it sanctions, formalities, intent, effect, substance, or belief). Thus, depending on how one distinguishes between law and non-law, informal law output may or may not be part of international law. If formalities or intent matter, a lot of the informal output would not be law. If, in contrast, effect or substantive factors decide, a lot would be law.

While Prof. Tai-Heng Cheng argues that claims about the concept of law are inevitably premised on assumptions and motivations that are not conceptual, it became clear during our debates that we nevertheless needed to depart from the assumption that we are at least dealing with law-making and that we somehow needed to conceptualise this. Would this not be the case, then – for most lawyers − psychologically, the project would be very difficult to handle. It then is a small step to raise the question whether it is not possible (or perhaps even more logical) to view these prima facie non-legal phenomena as law.

A key element here may be the notion of ‘presumptive law’. This notion was developed by Prof. Jan Klabbers in his important publication ‘Law-making and Constitutionalism’ in his co-edited volume The Constitutionalization of International Law. In building his argument, Klabbers departs from the more or less pragmatic concept of law developed by Tamanaha: law is “whatever people recognize and treat as law through their social practices”. Indeed, as Klabbers holds, this is less open-ended than it seems as people generally do not regard all rules they live by as ‘law’. The validity problem that would emerge out of this approach could be solved by including Fuller’s eight desiderata to ensure that the law would be both morally acceptable and procedurally sound. Yet, as Klabbers rightfully concludes: in the end we cannot escape the need for a formal criterion. And this may bring us back to familiar territory: “It is difficult to imagine the formal validity criterion to be anything other than a consent-like criterion, whether consent be expressed directly or indirectly, as is the case when it comes to binding [sic] majority decisions within international organizations.” Yet, we need to be able to establish whether the actors expressing their consent (democratically, legitimately) represent the subjects of the new rules. This is where Klabbers proposes to focus on how the norms are received by their possible addressees: “One possible approach might be to propose what can be labelled ‘presumptive law’: normative utterances should be presumed to give rise to law, unless and until the opposite can somehow be proven”. Obviously, this presumption could be rebutted, but the idea is to reverse the burden of proof.

The notion of ‘presumptive law’ may be helpful to solve a dilemma underlying the informal international lawmaking project. In particular in the case of actor informality, the norms are not enacted by states or state representatives, but by persons sitting in international/transnational boards and councils because of their specific expertise. Everything that is produced can be labelled under the heading ‘normative utterances’, but the fact that in many cases we are not dealing with formal international organizations, or with state representatives with a national public mandate, makes it difficult to square with the traditional sources doctrine. Yet, it is clear that, irrespective of their ‘informal’ nature, the norms may be hard and do play a role in legal orders.

During the debates on the legal nature of informal international lawmaking we continued to be confronted with the sources question, or at least with the question of the source of the authority which seems so clearly exercised by the actors involved. Klabbers argues that to come to terms with the idea that somehow ‘consent’ should be at the basis of ‘law’, we may need to rethink representative decision-making. Again, this could be done by focusing not so much on the input, but rather on the output: “rethink the way law is recognized”. Obviously this can lead to an acceptance as law of a large (indefinite?) number of normative utterances, and only when the presumption is rebutted this would lead to the conclusion that we are dealing with a non-legal phenomenon. Based on the many case studies (which will be published separately in a series of our sponsor, the Hague Institute for the Internationalisation of Law – HiiL) it seems safe to argue that the presumption that we are indeed dealing with law is quite difficult to rebut.

We may indeed have to focus more on the actual effects and the acceptance of the norms as playing a role in legal orders. At the same time, we feel that acceptance cannot be decoupled from the origin of the norms both in terms of the authority (or authorities) they emanate from and their procedural pedigree. Many of the case studies in the informal international lawmaking project indicate that the acceptance of the norms – and perhaps their legitimacy – is based on the fact that they are created by people who know what they are talking about and in such a way that takes account of all affected stakeholders. ‘Expertise-based legitimacy’ or ‘executive authority’ are not new phenomena but may very well form a key to a more inclusive understanding of international legal norms. Again this is not ground breaking. Yet, in the case of informal international lawmaking, it is not about authority to make secondary norms on the basis of primary legislation (which is usually the case when we talk about the role of experts in decision-making), it is in fact about primary norms. This may make it difficult to apply the ‘executive authority’ argument in our case.

When turning to ‘expertise’ as a possible source or authority in many of the informal international law cases, we are bound to run into the classic debates related to expert-based legitimacy (the 1931 paper by Laski seems to have been written today). This, obviously, may have consequences for the extent to which the expert norm-setters can actually be seen as representing the final addressees of the norms. On the basis of which (procedural and substantive) criteria do we select the actors in informal international lawmaking?

Traditional international law would generally become valid in domestic legal orders only after (prior or ad hoc) approval by a parliament. In informal international lawmaking, democratic legitimacy would be at stake. Yet, in a (so far) unpublished paper we argue that this could well be compensated by other procedural meta-norms against which new cooperation forms ought to be checked. We refer to this as ‘thick stakeholder consensus’, imposing limits in respect of actors (authority), process and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined as ‘thin state consent’. The argument we try to build to escape the dilemma presented by accepting informal international law as ‘presumptive law’, irrespective of the fact that it is difficult to square with the traditional sources doctrine, is indeed to put the democratic and legitimate nature of traditional law into perspective. Whether this will ultimately lead us to accepting Prof. Tai-Heng Cheng’s thesis that there is no purely conceptual answer to whether a decision-making process or norm is legal remains to be seen.

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.

Book Discussion Informal International Lawmaking: Legal Nature and Impact

by Ramses Wessel

[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.

Book Discussion Informal International Lawmaking: A comment by David Zaring

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.

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.

Book Discussion: Informal International Lawmaking

by An Hertogen

Over the next three days we are bringing you a discussion of a brand new book, edited by Joost Pauwelyn (Graduate Institute of International and Development Studies, Geneva), Ramses Wessel (University of Twente, The Netherlands) and Jan Wouters (University of Leuven, Belgium), on Informal International Lawmaking, published by Oxford University Press. Here is the abstract provided by the publisher:

Many international norms that have emerged in recent years are not set out in formal treaties. They are not concluded in formal international organizations. They frequently involve actors other than formal state representatives. In the realm of finance, health, security, or the environment, international lawmaking is increasingly ‘informal': It takes place in networks or loosely organized fora; it involves a multitude of stakeholders including regulators, experts, professional organizations and other non-state actors; it leads to guidelines, standards or best practices. This book critically assesses the concept of informal international lawmaking, its legal nature, and impact at the national and international level. It examines whether it is on the rise, as is often claimed, and if so, what the implications of this are. It addresses what actors are involved in its creation, the processes utilized, and the informal output produced.

The editors will discuss and summarize their finding in three parts. Today, Joost Pauwelyn will introduce the conceptual approaches of their research and their conclusions. Tomorrow, Ramses Wessel will discuss the legal nature and impact of informal international lawmaking, and on Thursday, Jan Wouters will discuss accountability and domestic implementation and elaboration of informal international lawmaking. Comments will be provided by David Zaring, Christopher Brummer, Tai-Heng Cheng and Paul Schiff Berman, and hopefully also by you, our readers!

Finally, we are delighted that Oxford University Press has decided to offer our readers the opportunity to purchase the book at a reduced price, which you can claim by clicking on the ad on the right.