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

[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.