The Exercise of Public Authority Through Informal International Lawmaking: an Accountability Issue? (original) (raw)
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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.
Introduction and Key Issues Surrounding Informal International Lawmaking
Chemical Communications, 2012
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.
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.
It has been common in recent years to contrast modern and classical international law-making, depicting the former as dynamic and heterogeneous, and the latter, as state-centric and “doctrinal.” This doctrinal image is characterized as state-centric both in terms of the actors involved in rule-making processes and the nature of the rules themselves. In short, an actor’s ability to make law is limited by their international legal personality, whilst the rules which result have legal “pedigree” only if traceable to one or more of the formal sources of international law. Accordingly, doctrinal understandings are often depicted negatively as cementing the hegemony of the state as (almost) the sole international law-maker. However, the argument that I wish to defend in this paper is that these kinds of characterization of doctrinal approaches not only fail to grasp the openness of international law to other actors as participants in international law-making processes, but also miss what is important about doctrine in the context of international law. Accordingly, the central question posed in this paper is how international law should accommodate the increasingly complex array of actors involved in normative standard setting (rule-making) within the international legal system, including how it absorbs or understands the nature of those rules themselves. In particular, I want to consider to what extent one can retain a formalist (doctrinal) understanding of the subjects and sources of international law yet at the same time account for the array of actors involved in post-national rule-making. I will argue that any attempt to absorb within international law the range of actors and forms of normativity that exist as a result of the increasing “institutionalization” that has occurred throughout the twentieth and twenty-first centuries creates a significant tension between legal form and function, particularly with regard to the roles which many of these regimes and institutions have come to fulfil within the international system. Nevertheless, I will argue that this tension between form and function is an important part of securing some measure of legal accountability in a decentralized legal order such as international law.
Journal of World Sociopolitical Studies, 2020
The traditional approach to international law granted states an absolute monopoly in making international law and it discussed the rights and powers of states as a sole subject of international law. However, the proliferation of norms made by non-state actors raises questions with regard to the status of the actors as well as the legitimacy of the norms in the international fora, while it also challenges the state-centric orientation of international law. In consideration of the foregoing, customary law-whichwas traditionally comprised of two statebased elements of practice and opinio juris, as an important source of international law-has been faced with a strand of inquiry: can non-state actors generate international customs? Through 1) an in-depth survey of scholarly arguments regarding law-making in certain circumstances that could also belong to private parties; and 2) a close examination of the lex mercatoria as an example of existing international customs developed by non-state actors, this article tries to clarify a) the legitimacy crisis of a more inclusive approach to international law and b) proposes opportunities whereby non-state actors could participate in the law-making process.
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.