Book Symposium Informal International Lawmaking: A comment 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.