Book Discussion Informal International Lawmaking: A Reply

[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.