Book Discussion Informal International Lawmaking: Conceptual Approaches

[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.