Coalitions of the Willing" and the Evolution of Informal International Law (original) (raw)
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Introduction and Key Issues Surrounding Informal International Lawmaking
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The current architecture of global governance includes a variety of different forms of bilateral and multilateral cooperation. At the global level, Ayelet Berman is a Ph.D. Candidate in the International Law Unit at the Graduate Institute of International and Development Studies in Geneva and a Research Associate at the Centre for Trade and Economic Integration (CTEI). Before her Ph.D. studies, Berman was an Associate at Herzog, Fox and Neeman in Tel Aviv, Israel, and at Sidley Austin LLP in Geneva. Previously, she also held teaching and research assistantship positions in constitutional and administrative law at the Hebrew University of Jerusalem, Israel. She holds a LL.B. magna cum laude from the Hebrew University of Jerusalem, and a D.E.A. in International Law from the Graduate Institute. ** Sanderijn Duquet (Master of Laws, Ghent U. and LL.M. International Legal Studies, American U. Washington College of Law) is a Ph.D. candidate at the Leuven Centre for Global Governance Studies and the Institute for International Law, University of Leuven, Belgium, where she works as a research fellow of the Policy Research Centre on Foreign Affairs, International Entrepreneurship and Development Cooperation for the Flemish Government.
The Stagnation of International Law
SSRN Electronic Journal, 2012
Traditional international law and its instruments are stagnating both in terms of quantity and quality. New, alternative forms of cross-border cooperation, in particular processes of informal international lawmaking, have emerged and gained prominence since the 2000s in response to an increasingly diverse, networked, and knowledge-based society. This transformation impacts on the three axes of actors, processes and outputs in the international legal order. We challenge the assumption that traditional international law is, by definition, legitimate and that this would not be the case for new forms of informal lawmaking: whereas traditional international law is often based on "thin state consent", a "thick stakeholder consensus" underlies many of the new forms of cooperation. It is submitted that the evolution in the international legal order demands an adjustment of models to keep both new forms of cooperation and traditional international law in check. This paper thereto assesses the legitimacy of international legal processes, tackling also the question whether new forms benefit powerful actors and how to keep activity accountable, both domestically and internationally, towards internal and external stakeholders, through ex ante, ongoing and ex post control mechanisms, involving not only managerial or administrative checks and balances but also political and judicial oversight. The paper furthermore examines whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are (or could be) interacting before international courts and tribunals. To conclude, a redefinition of the academic discipline of international law to keep both the field and its students sociologically relevant is proposed.
The Exercise of Public Authority Through Informal International Lawmaking: an Accountability Issue?
SSRN Electronic Journal, 2011
An increasing number of fora and networks have been recognised to play a role in international or transnational normative processes. While lawmaking by formal, intergovernmental international organizations received abundant attention over the past years, we know less about a phenomenon that this paper refers to as 'informal international lawmaking' (IN-LAW). Lawyers struggle with the new and extensive normative output in global governance. We nevertheless use the term 'law' to connote the exercise of public authority, as opposed to what is often referred to more broadly as 'regulation' (covering both public and private regulation). IN-LAW, as we define it, can include private actor participation, but excludes cooperation that only involves private actors. The present paper thus purports to introduce the concept of 'informal international lawmaking' and it will present some findings based on case studies in the IN-LAW project related to the reasons for actors to opt for informal lawmaking. We also analyse whether − and to what extent-IN-LAW bodies are subject to some form of accountability and, if so, in what form and at what level. Finally, we will look at some consequences of informal international lawmaking, in particular in relation to the changing role of law in global governance.
Informal International Lawmaking, 2012
actors. In some areas, States even have even ceased to play a role in governance and transnational actors have taken over. Recently, Koppell sketchedboth empirically and conceptuallythe organisation of global rule-making. Even in the absence of a centralized global State, the population of what he refers to as GGOs is not a completely atomized collection of entities. 'They interact, formally and informally on a regular basis. In recent years, their programs are more tied together, creating linkages that begin to weave a web of transnational rules and regulations.' 13 This resulted in a network of multiple GGOs consisting of a variety of governmental, nongovernmental and hybrid organisations, which have as their main objective the crafting of rules and standards for worldwide application. 14 Third, the informality of so many of these global bodies has raised many accountability and legitimacy concerns, and it is this concern that is at the basis of the IN-LAW project. In a nutshell, the concern is that States, companies and individuals are confronted by rules that are adopted in settings that exercise a de facto decision-making power beyond the reach of the accountability measures of domestic or international law. 15 And several cases in the present book have indeed related informality to a lack of accountability and effectiveness. 16 IN-LAW, as defined above, includes a large number of bodies. From within the plethora of bodies active at the global level, in the following sections we will take a closer look at two kinds of informal international law-making bodies: harmonisation networks and international agencies. Although both types of bodies differ substantially, we feel that they both represent trends that make the implications of IN-LAW quite visible. C. Harmonisation networks 1.
Informal International Law-Making as a New Form of World Legislation?
International Organizations Law Review, 2011
Law-making by formal, intergovernmental international organizations received abundant attention over the past years. The aim of the present contribution is to investigate whether the notion of 'word legislation' would also be appropriate in the case of 'informal international law-making'. It is argued that this could be the case when international public authority is exercised, in which case 'informal' rules have effects similar to domestic legislation.