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

[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.