www.steunpuntiv.eu
www.globalgovernancestudies.eu
PAPER NR. 11, FEBRUARY 2014
THE STATUS OF NON-TRADITIONAL NORMS AT
THE INTERNATIONAL LEVEL. A REVIEW OF
METHODOLOGICAL APPROACHES
Sanderijn Duquet
Prof. Dr. Jan Wouters
1
THE STATUS OF NON-TRADITIONAL NORMS AT THE INTERNATIONAL LEVEL
A REVIEW OF METHODOLOGICAL APPROACHES
Sanderijn Duquet
Prof. Dr. Jan Wouters
SAMENVATTING
Literatuuronderzoek en ontwikkeling van een wetenschappelijk
internationale niet-traditionele rechtscheppende processen
kader
voor
Internationaal recht komt tot stand via verdragsprocedures of door de vaststelling van
internationaal gewoonterecht. Hoewel deze traditionele wijzen om recht te maken uitermate
relevant blijven in het formalistische rechtssysteem, wordt er door verschillende actoren
gezocht naar alternatieve wijzen om transnationale overeenstemming te bereiken. Deze
paper onderzoekt hoe de rechtswetenschap verschillende, minder formalistische, vormen
van internationale rechtsschepping ‒ zoals richtlijnen, normen en verklaringen ‒ bestudeert.
Doorheen de paper wordt de analyse van methodologische benaderingen en de
academische literatuur toegepast op niet-traditionele rechtsscheppingsprocessen die een
impact hebben in Vlaanderen.
Verschillende actoren zijn betrokken in processen die kunnen leiden tot niet-traditionele
rechtsvorming. Als dusdanig hebben zij belangrijke rollen opgenomen ter coördinatie van
beleid op supra-Statelijk niveau. De academische benaderingen besproken in dit onderzoek
richten zich zowel op publieke (internationale organisaties, organen als algemene
vergaderingen, conferenties van de partijen en/of speciale of technische commissies) als
private actoren (bedrijven, economische sectoren, ngo’s).
Na een eerste, inleidend, gedeelte wordt in een tweede deel verantwoord waarom de paper
een juridische benadering aanhoudt om internationale regulering te analyseren. Er wordt
besloten dat niet-traditionele internationale samenwerkingsvormen normen hebben
gecreëerd die mondiaal een dubbelzinnige positie bekleden. Formeel hebben ze geen
juridisch bindende werking en volgens artikel 38 van het Statuut van het Internationaal
Gerechtshof kunnen ze niet worden beschouwd als een bron van internationaal publiekrecht.
Echter, de afkondiging van internationale normen en standaarden brengt wel degelijk
belangrijke rechtsgevolgen met zich mee, onder andere door de hoge motivatie van
deelnemende actoren om de normen in te willigen en na te leven. Effecten in nationale
rechtsordes zijn merkbaar, wat doet vermoeden dat eenzelfde conclusie zal kunnen
gemaakt worden met betrekking tot de Vlaamse sectoren en bevoegdheidsdomeinen. Deze
observering is niet neutraal. Het impliceert dat de correcte toepassing van juridische
principes in relatie tot deze niet-traditionele rechtsscheppingsprocessen noodzakelijk is.
Rule of law garanties voor rechtsonderhorigen en rekenschapsverplichtingen voor diegenen
die normen opstellen, implementeren en/of toepassen, vinden op deze wijze ingang in het
debat.
In een derde deel van de paper worden vijf methodologische benaderingen doorgelicht. Ten
eerste herbekijkt de paper het internationaal publiekrecht en een klassieke benadering van
bronnen in de rechtswetenschap. Vervolgens worden vier juridische methodes besproken:
de informal international lawmaking theorie; de global administrative law theorie; de theorie
over de uitoefening van public authority; en de private transnational regulation theorie.
2
Voor elk van deze wordt onderzocht hoe niet-traditionele internationale normen
geïdentificeerd en gedefinieerd worden. Daarnaast vormt de benadering van internationale
en nationale rekenschapsplichten (accountability) een thema in het onderzoek. Ten slotte
wordt gekeken naar de praktische relevantie van de besproken theorieën voor de Vlaamse
wetgever en beleidsmaker. De paper put daartoe uit concrete voorbeelden van niettraditionele rechtsscheppingsprocessen waarvoor reeds werd gesteld dat zij zeer
waarschijnlijk doorwerken in Vlaanderen. Het betreft voorbeelden geselecteerd uit een reeks
case studies die worden uitgevoerd in opdracht van de Vlaamse overheid. Voor het
beleidsdomein economie gaat het om de Richtlijnen voor Multinationale Onderneming van
de Organisatie voor Economische Samenwerking en Ontwikkeling (OESO) en standaarden
opgenomen in de Overeenkomst inzake technische handelsbelemmeringen (TBTOvereenkomst) en de Sanitaire en Fytosanitaire Overeenkomst (de SPS-Overeenkomst),
beide tot stand gekomen in de context van de Wereldhandelsorganisatie. In het kader van
het bevoegdheidsdomein sport betreft dit de diverse juridische initiatieven van het Wereld
Anti-Doping Agentschap (WADA) en UNESCO ter bestrijding van dopinggebruik in
sportcompetities. Met betrekking tot Vlaamse bevoegdheden inzake werk vormen de
standaarden en normen gecreëerd in het kader van de Internationale Arbeidsorganisatie
(ILO), alsook in de particuliere initiatieven in dit domein het voorwerp van onderzoek.
Duurzame ontwikkeling en milieu is een vierde focus, met name de
standardiseringsactiviteiten van de International Organization for Standardization (ISO). Ten
vijfde is de invloed van informele normen en standaarden zeer merkbaar in het onderwijs
dankzij het Programme for International Student Assessment (PISA). Ten slotte werden voor
het beleidsdomein gezondheid de verordeningen en normatieve activiteiten van de
Wereldgezondheidsorganisatie geselecteerd.
In een vierde deel bespreekt de paper twee vormen van internationale samenwerking,
relevant voor de Vlaamse regelgever. Ten eerste is er de open method of coordination.
Deze reguleringstechniek werd oorspronkelijk vooral toegepast in de context van de EU,
maar kent ondertussen een ruime praktijk in tal van internationale organisaties. Staten
maken hierbij gebruik van indicatoren en benchmarking of wisselen goede praktijken uit. Een
tweede reguleringsmethode is network governance. Deze faciliteert informele coördinatie
binnen netwerken van economische actoren of internationale agentschappen.
Volgend op deze analyse van de academische literatuur ter zake worden
onderzoeksresultaten samengebracht. Een vijfde deel van de paper stelt een
grensoverschrijdende analyse van de geïntroduceerde methodes voor. Dit laat toe om de
verschillen tussen, alsook sterke en zwakke punten van de methodes te belichten. Opnieuw
is er bijzondere focus op Vlaanderen. De paper behandelt de vraag waar de
rechtswetenschap nieuwe inzichten kan verschaffen, alsook welke academische methodes
bij voorkeur worden gebruikt door Vlaamse actoren die geconfronteerd worden met
internationale niet-traditionele normen. Een zesde deel besluit.
3
ABSTRACT
States, sub-state entities, and private actors increasingly interact across national borders. At
the global level, alongside the more traditional way to draft international law through the
conclusion of treaties, there is an emerging tendency to engage in alternative methods to
generate international agreement. Both public and private actors are involved in formulating
norms ‒ such as guidelines, standards, and declarations ‒ and in informal policy coordination activities. International standardization and rulemaking exercises also have taken
place in policy areas for which Flanders is given competences – amongst others in
sustainable development, economy, environment, work, sport and health. The present paper
builds on the work of those who have sought to categorize and analyze international and
transnational interactions. It provides a broad overview of theoretical approaches to nontraditional lawmaking and specifically elaborates upon the study of non-traditional norms that
are likely to have an impact upon the Flemish region. The research paper concludes by
discussing how the global theoretic framework and the literature can be applied by Flemish
law- and policy-makers.
KEY WORDS
Public international law, sources of law, soft law, informality, global governance processes,
accountability
AUTHORS
Sanderijn Duquet is PhD Fellow at the Research Foundation – Flanders (FWO), the
Leuven Centre for Global Governance Studies and the Institute for International Law (KU
Leuven).
Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance, Full
Professor of International Law and International Organizations and Director of the Leuven
Centre for Global Governance Studies and the Institute for International Law (KU Leuven).
ADDRESSES FOR CORRESPONDENCE
Sanderijn.Duquet@law.kuleuven.be
Jan.Wouters@ggs.kuleuven.be
© 2014 by Sanderijn Duquet and Jan Wouters. All rights reserved. No portion of this paper
may be reproduced without permission of the authors.
Working papers are research materials circulated by their authors for purposes of
information and critical discussion. They have not necessarily undergone formal peer review.
Het onderzoek dat aan de basis ligt van dit rapport kadert in het programma ‘Steunpunten
voor Beleidsrelevant Onderzoek’ dat gefinancierd wordt door de Vlaamse Overheid. Wij
danken de Vlaamse Overheid voor de financiële steun en interesse in het onderzoek.
4
THE STATUS OF NON-TRADITIONAL NORMS AT THE INTERNATIONAL LEVEL
A REVIEW OF METHODOLOGICAL APPROACHES
Sanderijn Duquet
Prof. Dr. Jan Wouters
1.
Introduction .......................................................................................................
2.
2.1.
2.2.
2.3.
3.
6
Non-Traditional Norms: A Legal Point of View ................................................
7
The origin of non-traditional norms at the international level ................................ 7
International Law and non-traditional sources: An overview of legal scholarship . 8
The approach taken in this paper ...................................................................... 10
The Study of Non-Traditional International Norms ......................................... 11
3.1.
The doctrine of sources of international law ....................................................... 11
3.1.1.
Introducing public international law and its sources........................................ 11
3.1.2.
The doctrine of sources of international law ................................................... 12
3.1.3.
Conclusion ..................................................................................................... 13
3.2.
Informal international lawmaking ....................................................................... 13
3.2.1.
Introducing informal international lawmaking ................................................. 13
3.2.2.
The informal international lawmaking framework ........................................... 14
3.2.3.
Conclusion ..................................................................................................... 16
3.3.
Global administrative law ................................................................................... 16
3.3.1.
Defining global administrative law .................................................................. 16
3.3.2.
The global administrative law framework ....................................................... 17
3.3.3.
Conclusion ..................................................................................................... 20
3.4.
International Public Authority ............................................................................. 21
3.4.1.
Introducing the exercise of international public authority ................................ 21
3.4.2.
The international public authority framework .................................................. 22
3.4.3.
Conclusion ..................................................................................................... 24
3.5.
Transnational Private Regulation ....................................................................... 24
3.5.1.
Introducing transnational private regulation .................................................... 24
3.5.2.
The transnational private regulation framework .............................................. 25
3.5.3.
Conclusion ..................................................................................................... 28
4.
4.1.
4.2.
4.3.
4.4.
International Governance Mechanisms ........................................................... 28
Introduction ....................................................................................................... 28
The open method of coordination ...................................................................... 29
Network governance ......................................................................................... 30
Conclusion ........................................................................................................ 31
5.
Cross-Analysis of the Different Theoretical Approaches ...............................
32
6.
Concluding Thoughts .......................................................................................
35
5
1. INTRODUCTION
The study of global governance draws on the idea of increased interactions across borders
among citizens, society, markets, and the State. 1 The analysis of the forms of these
interactions is an arduous undertaking because of the high number of actors involved.
Together with States and sub-State entities, less traditional actors ‒ including international
governmental organizations, private actors, enterprises, and NGOs ‒ have expanded their
influence at the global level. 2 Governance on an international level, furthermore, is
considered to be a constantly evolving discourse.3 State and non-State actors may opt in or
out of global initiatives and can flexibly endorse dynamic standards and declarations.
These developments obviously challenge existing realities in international law. Most norms
and standards concluded have a somewhat vague legal status since the lion’s share of that
output is considered legally non-binding and of a voluntary nature. Moreover, it has been
observed that a particular type of governance was born that has deliberately moved away
from the public international law (PIL) framework. As a result, legal scholars have reported
possible infringements of the principles of the rule of law and good governance. In addition,
they have warned about the uneasy fit of norms in traditional democratic accountability and
checks and balances systems.4
Global governance processes and their outputs are of particular concern to the Flemish
Government.5 Standardization and rulemaking exercises have taken place in policy areas for
which Flanders is given competences – amongst others in sustainable development,
economy, environment, work, sport, and health. Moreover, one can assume that informal
processes impact upon law- and policy-making in the Flemish region in a similar vein as
elsewhere. Crucially, concerns about the upholding of principles of legal protection and
transparency guarantees may also be transposed. As a result, this paper suggests that it is
in the best interest of the Flemish government to take note of the existence of alternative
forms of international rulemaking; to reflect on its strategy integrating these; and, where
relevant, to address accountability issues. As of yet, however, little structural efforts have
been made to systematically analyze informal norms and policy spaces with regard to the
particular Flemish situation.
The aim of this paper is to provide an overview of the methodologies that may guide legal
research related to non-traditional international lawmaking. It seeks to bring together
different approaches of legal scholars to the problems outlined above. Doing so, the paper
attempts to build on the work of those who have sought to categorize and analyze
international and transnational interactions. In particular, it will focus on the legal analysis of
the output that has been produced by global governance processes. The paper seeks to
1
Global governance has been defined as ‘the complex of formal and informal institutions, mechanisms,
relationships, and processes between and among states, markets, citizens and organizations (…) through which
collective interests are articulated, rights and obligations are established, and differences are mediated’ in R.
Thakur, and L. Van Langenhove, ‘Enhancing Global Governance through Regional Integration’ in A.F. Cooper,
Ch. Hughes and Ph. De Lombaerde (eds.), Regionalisation and Global Governance. The Taming of
Globalisation?, Routledge, London, pp. 17-42, at 20; See also Weiss and Thakur’s definition of global
governance: ‘Global governance is the sum of laws, norms, policies, and institutions that define, constitute, and
mediate relations among citizens, society, markets, and the state in the international arena – the wielders and
objects of international public power’, T.G. Weiss and R. Thakur, Global Governance and the UN: An Unfinished
Journey, Indiana University Press, Bloomington, 2010, p. 6.
2
L. Wallach, ‘Accountable governance in the era of globalization: The WTO, NAFTA, and international
harmonization of standards’, U. Kan. L. Rev. 2001-2002, vol. 50, pp. 836-837.
3
A. Piilola, ‘Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation’, Stan.
J. Int’l L., 2003, vol. 39, pp. 207- 252, at 207.
4
Wallach, op. cit.
5
See Section 6.3.1., first recital, Vlaamse Regering, Oproep tot kandidaatstelling. Steunpunten voor
Beleidsrelevant Onderzoek voor de periode 2012-2016, 2011, p. 34.
6
explain how scholarship can bring the ‘law’ (and, correspondingly, rule of law guarantees)
back in without touching upon the flexibility that is fundamental to the non-traditional norms
produced at the global level. Doing so, it will argue that legal scholarship has an important
role to play in ordering, explaining, and legitimizing informal output of global governance
networks.
The argument will proceed as follows. First, the paper will elaborate on how legal analyses
can benefit the study of cross-border cooperation. Second, different methodologies to study
non-traditional international norms will be introduced. The analysis will encompass five
theoretical models: (1) The doctrine of sources of public international law; (2) The informal
international lawmaking theory; (3) The global administrative law theory; (4) The exercise of
public authority theory; and (5) The private transnational regulation mode. In a fourth section,
two international governance methods are introduced: (1) the open method of coordination
and (2) network governance. These methods apply insights from a variety of disciplines,
such as sociology and economics, to develop international regulations and harmonization
efforts. For that reason, they concern legal research as well. Throughout, examples will be
provided of non-traditional norms. These examples are selected based on their relevance for
Flemish areas of competence. Finally, the paper will bring together the research results. This
will result in a cross-analysis of the theoretical approaches and their usefulness across the
wide spectrum of non-traditional norms.
2. NON-TRADITIONAL NORMS: A LEGAL POINT OF VIEW
2.1.
The origin of non-traditional norms at the international level
The mere fact that cross-border cooperation may result in regulatory action is not a new
phenomenon. Yet, informal rulemaking processes have gained prominence since the 2000s
in response to an increasingly diverse and networked society. An important part of research
on non-traditional norms tends to focus on the question where these norms originated from,
or, in other words, on who creates informal rules at the international level. Unlike
international law in a traditional sense, both public and private actors are involved in
formulating norms – such as guidelines, standards, and declarations. A first, admittedly
simplistic, categorization orders public, private, and hybrid forms of norm-making.
First, instances of transnational cooperation between public actors are legio, but modes of
operation as well as their outputs differ to a great extent. International organizations (IOs)
have been primary actors in introducing procedures and instruments that escape the grasp
of established legal concepts. The World Trade Organization provides an interesting
example.6 Its Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) makes
explicit reference to the standards, guidelines, and recommendations of three international
bodies (The Three-Sisters).7 Article 3 of the SPS Agreement encourages WTO Members to
base their SPS-measures on the standards, guidelines, and recommendations of these IOs.8
Other IOs create standards in special or functional committees. 9 The Organisation for
Economic Co-operation and Development (OECD) has established different commissions
6
See for a detailed study: S. Duquet, D. Geraets, ‘Food Safety Standards and Informal International Lawmaking’,
in A. Berman, S. Duquet, J. Pauwelyn, R.A. Wessel, J. Wouters (eds.), Informal International Lawmaking: Case
Studies, TOAEP Publishers, 2012, pp. 397-436.
7
These are the Codex Alimentarius Commission, the Office International des Epizooties (OIE) and the
Secretariat of the International Plant Protection Convention (IPPC).
8
S. Henson and S. Jaffee, ‘Understanding Developing Country Strategic Responses to the Enhancement of
Food Safety Standards’, The World Economy, 2008, vol. 31, no. 4, p. 551.
9
B. Kingsbury and L. Casini, ‘Global administrative law dimensions of international organizations law’,
International Organizations Law Review, 2009, vol.6, pp. 319-358.
7
that deal with Guidelines for Multinational Enterprises, on the one hand, and Programme for
International Student Assessment (PISA), on the other. A third possibility concerns normmaking by Conferences of the Parties. The World Health Assembly, the decision-making
body of the World Health Organization (WHO), for example, systematically formulates
recommendations and standards.
Second, producing norms at the global level, of course, is not exclusively an affair of public
actors. The fight against doping brought about a firsthand example of an issue regulated by
both public and private actors. Indeed, private (World Anti-Doping Agency) and public actors
(primarily UNESCO and the Council of Europe) have taken up an interest in regulating the
sector. The compliance with standards by participants of sports events generally is high,
because of penalties faced.
Third, purely private actors 10 , such as the International Organization for Standardization
(ISO), are responsible for a wide range of international management standards in fields as
information and communication technologies, agri-food, and on social and environmental
issues.
Scholarship has developed critical case studies to analyze public, private, and hydride
initiatives.11 The general trend in the literature has been to suggest that, through these, the
harmonization of law and policy, greater coordination efforts, and an increased effectiveness
have been brought about. However, some have also warned that the existence of a growing
multitude of standards by a large number of actors may ultimately confuse users and
consumers.12
The above categorization gives a broad overview of the standards and guidelines that are
being generated. Legal scholarship draws upon the categorization since questions regarding
binding force and accountability may have to be answered differently depending on the
public, private, or hybrid character of the standards’ creators.
2.2.
International Law and non-traditional sources: An overview of legal
scholarship
The international level lacks a legal framework to order the norms and standards produced
in global settings. Correspondingly, there is no unified review or accountability system in
place. The reason is simple: It is far from established that non-traditional norms can be
regarded as (a form of) law. Therefore, the interest of legal scholarship in studying these
phenomena, by itself, is odd. 13 The prevailing line of thought in legal literature is that
something is either law or it isn’t – the norms studied in this article belonging to the second
10
ISO can be defined as an international non-governmental organization. It also has some hybrid public-private
features, as it functions as a network formed by the National Standards Institutes and delegates from the public
and private sectors of 163 countries.
11
For example, in health and food safety and social and environmental responsibility. See: T. Büthe, ‘The
globalization of health and safety standards: Delegation of regulatory authority in the SPS agreement of the 1994
agreement’, Law & Contemp. Probs., 2008, vol.71, pp. 219-255 and D. Wirth, ‘The International Organization for
Standardization: Private Voluntary Standards as Swords and Shields’, B.C. Envtl. Aff. L. Rev., 2009, vol. 36, pp.
79-102.
12
S. Henson and J. Humphrey, ‘Private standards in global agri-food chains’, in A. Marx , M. Maertens , J.
Swinnen and J. Wouters (eds.), Private Standards And Global Governance Economic, Legal and Political
Perspectives, Edward Elgar Publishers, 2012, at 104 referring to ISO, ‘International standards and private
standards’, 2010, at 8.
13
J. Pauwelyn, R.A. Wessel, and J. Wouters (eds.), Informal international lawmaking, Oxford, Oxford University
Press, 2012, 549 p.
8
category. 14 Moreover, and most likely, the creators of flexible norms, standards, and
declarations never intended for them to be law. This section discusses how strands in legal
scholarship have addressed the rise in informality at the international level.
First, a leading theory in international law, legal positivism, supports the view that none of
the non-traditional norms is law.15 While legal philosophers may have contrasting views on
how to precisely define positivism, they generally agree that the theory reflects the idea that
there has to be a unity of sources of law. Positivists recognize as law only those norms
which are generated by a pre-set legal procedure and independent of the presence of any
inherent value or its merits.16 Obviously, in general, this contravenes with the ways informal
rules and standards are created.17 The approach taken by the legal positivist school is not
without criticism. Scholars have challenged the black-and-white view of the law as presented
by legal positivists. It has been argued that the theory’s hard stance on law seems to ignore
the realities of global governance.18 Furthermore, it has been submitted that positivism does
not put forward any solutions on how to explain and conceptualize regulative processes that
have redefined the international arena.
A second strand specifically addressed these issues by being more solution-oriented. As
such, it expanded the interest area of legal scholarship to non-traditional norms. More
concretely, a variety of scholars introduced a third, in-between, category at the international
level to fill the gap between law and non-law. Reasonable disagreement, however, exists
among scholars with regard to how this third category should be conceptualized. Different
notions have been introduced in literature: ‘non-traditional sources of international law’
(Crawford), the ‘grey area between law and non-law’ (Van Hoof), ‘presumptive law’
(Klabbers),19 or, more generally, ‘soft law’ (Boyle; Dupuy).20
A third body of research has challenged the formalism of public international law altogether.
The changing nature of public international law has evolved into a research topic on its own.
Processual understandings of PIL originated from the New Haven and New International
Legal Process (ILP) Schools. 21 Scholars affiliated with these schools argue that public
14
See: P. Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law vol.
77, 1983, pp. 413-442; J. Klabbers, ‘The Undesirability of Soft Law’, Nordic Journal of International Law vol. 67,
1998, pp. 381-391; J. d’Aspremont, Formalism and the Sources of International Law. A Theory of the
Ascertainment of Legal Rules, Oxford University Press, 2011.
15
Earlier positivist accounts can be found in the writings of Hobbes, Bentham, and Austin. In the twentieth
century, legal positivism was re-conceptualized, amongst others, by the Austrian jurist Hans Kelsen, H.L.A. Hart
(especially his 1961 book on ‘The Concept of Law’) and Joseph Raz. See for a general discussion: M. GarcíaSalmones Rovira, The Project of Positivism in International Law, Oxford University Press, 2013, 435 p.
16
J. Gardner, ‘Legal positivism: 5 ½ myths’, Am. J. Juris., vol. 46, 2001, pp. 199-228.
17
It must be noted that standards may be created following well-established procedures. However, these differ
from those used to create PIL. See infra.
18
See in this regard the works of those subscribing to the theory of ‘Legal Realism’. For a discussion on legal
realism in modern international law, see: G. Shaffer, ‘A Call for a New Legal Realism in International Law: The
Need for Method’, Minnesota Legal Studies Research Paper No. 02, 2009.
19
J. Klabbers, ‘Law-making and Constitutionalism’ in J. Klabbers, A. Peters and G. Ulfstein, The
Constitutionalization of International Law, Oxford University Press, 2009, pp. 81-125. Klabbers (at 115), although
arguing in favor of a bright line between law and non-law, puts it this way: ‘One possible approach might be to
propose what can be labeled ‘presumptive law’: normative utterances should be presumed to give rise to law,
unless and until the opposite can somehow be proven’.
20
See also R. Baxter, ‘International Law in “Her Infinite Variety”’, International & Comparative Law Quarterly, vol
29, 1980, pp. 549-566; and O. Schachter, ‘The Twilight Existence of Nonbinding International Agreements’,
American Journal of International Law, vol. 71, 1997, pp. 296-304.
21
On the New Haven Approach, see: M. Reisman, ‘The View from the New Haven School of International Law’,
American Society of International Law Proceedings, vol. 86, 1992, pp. 118-125; Mary Ellen O’Connell introduced
the NILP in her piece ‘New International Legal Process’, American Journal of International Law, vol. 93, 1999, pp.
334-351. See also on the ‘new’ legal process in a domestic context: H.H. Koh, ‘Transnational Public Law
Litigation’, Yale L.J., vol. 100, 1991, pp. 2347-2402.
9
international law has transformed so that it should no longer be understood as having only a
limited number of categories. The New Haven School, developed by Myres McDougal and
Harold Lasswell at the Yale Law School, defines law as a process of decision that is both
authoritative and controlling.22 The ILP School advocates a legal system that that develops
in line with international society’s values, ‘to resolve society’s rapidly expanding issue’. 23
Moreover, it is argued that international lawmakers should follow dynamic procedures to
develop new legal standards through reasoned elaboration of their decisions.24 Both schools
have that they adhere to processual insights and thus dispose of the use of ‘labels’ in
common. In line with the processualists, certain scholars attempted to rethink the body of
PIL and its sources. 25 Others, such as Tamanaha, have even gone even further by
developing a pragmatic concept of law. In his opinion, law is ‘whatever people recognize and
treat as law through their social practices’.26
2.3.
The approach taken in this paper
The present paper does not propose a final compromise in the debate between those who
argue in favour of a bright line between law and non-law, those arguing for the existence of a
grey zone, and those who value processual understandings of the law. In fact, it rather
argues that, either way, legal scholarship is useful to analyze these processes and their
output. A legal approach focuses on constructing a legal understanding of, and on
developing a legal framework for, non-traditional norms. The justification for this
argumentation is as such: whether formally accepted as a part of law, a special category of
law or plainly as non-law, it cannot be denied that a strong connection exists between public
international law and other forms of regulation in international society.
The following observations make this point clear. First, the number of non-traditional norms
has grown extensively compared to the category of traditional international law. 27 In many
policy fields, moreover, international institutions have taken up an active and often crucial
role in developing the former,28 while States have been less active developing traditional
international law. Second, case studies report that non-traditional norms regulate individual
behavior and influence national legal systems. 29 It is broadly accepted that ‘non-law’
stemming from international governance processes may create legal effects at the
international and/or domestic level. As a result, regulatory roles are exercised using nontraditional norms that, previously, were considered to be inherent to the function of law in a
strict sense of the word. Further research is required to scientifically measure the concrete
22
See for further reading: M; Reisman, S. Wiessner and A.R. Willard, ‘The New Haven School: A Brief
Introduction, Yale Journal of International Law, vol. 32, 2007, at 575.
23
See O’Connell, op. cit., at 339. NLP as developed in the 1980s, acknowledges debt to Professors Chayes,
Ehrlich and Lowenfeld who initiated the International Legal Process (ILP) approach. In the late sixties, they
adapted the theory of American legal process (as developed in the 1950s by Professors Hart and Sacks of
Harvard University) to international legal studies. They were primarily interested in how law worked in
international society and in its actual role in international relations. See: A. Chayes, Th. Ehrlich and A.F.
Lowenfeld, The international legal process: Materials for an introductory course, Harvard Law School, 1967.
24
O’Connell, op. cit., at 339.
25
G.J.H. Van Hoof, Rethinking the sources of international law, Leiden, Kluwer, 1983, 322 p.; H.G. Cohen,
‘Finding international law: rethinking the doctrine of sources’, Iowa L. Rev. (2007-2008), vol. 93, pp. 65-130; see
also the efforts made at the American Society of International Law 2009 annual meeting.
26
B. Tamanaha, B., A General Jusrisprudence of Law and Society, Oxford University Press, 2001, at 67.
27
Pauwelyn, Wessel and Wouters present strong evidence of the fact that the field of traditional international
lawmaking is in a process of stagnation, both quantitatively (number of treaties) and qualitatively (thin state
consent followed by domestic rubber-stamping by parliament) in favor of new, alternative forms of cross-border
cooperation. See J. Pauwelyn, R.A. Wessel, and J. Wouters, ‘The stagnation of international law’, GGS Working
Paper No 97, October 2012.
28
A. Von Bogdandy, Ph. Dann and M. Goldmann, ‘The Exercise of Public Authority by International Institutions’,
Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol. 210, 2010, pp. 3-32.
29
A. Von Bogdandy, Ph. Dann and M. Goldmann, ‘Developing the publicness of public international law: Towards
a legal framework for global governance activities’, German Law Journal, vol. 9, 2008, pp. 1375-1400.
10
impact of non-traditional international law in domestic courts and regulatory schemes. 30
Third, a rule of law argument also pops up. One of the crucial questions when studying
global regulatory processes is how to control these. Research has repeatedly shown that
informal regulatory processes may suffer from accountability deficits. The absence of judicial
review and due process safeguards, even when it is clear that norms may have a deep
impact upon individuals, is striking. 31 This may be remedied by reflecting on how legal
accountability mechanisms could be improved.
3. THE STUDY OF NON-TRADITIONAL INTERNATIONAL NORMS
3.1.
The doctrine of sources of international law
3.1.1. Introducing public international law and its sources
The first method of studying non-traditional international norms requires insights on how
public international law is produced. Indeed, to gain clarity and to understand the role of
newer forms of international agreement, one has to reassess the classic ‘sources’ of
international law. Using this assessment, it can be further explored if and how the study of
non-traditional sources may or may not be integrated in the sources doctrine model.
In traditional legal doctrine, article 38 (1) of the Statute of the International Court of Justice
(ICJ) forms the basis of the discussion on sources of law. This provision, in a way that is
considered to be convenient for international lawmakers, names and orders the sources of
international law. The study of the sources of public international law is critical to legal
scholarship. The doctrine on where to find and how to categorize and use international law
touches upon the most fundamental questions of international lawmaking per se. However,
when compared to other fields of PIL, sources theory still gives rise to reasonable confusion
and controversy.32 A rich body of discussions – both qualitatively and quantitatively – has
thus emerged. The formation of international law has been examined academically33, by the
International Law Commission (ILC)34, and in practice, resulting in a full body of research on
the theoretical underpinnings of the sources doctrine. Unsurprisingly, the vast majority of
handbooks on international law start with a formal assessment of where law is to be found.35
These analyses mirror the structure of the oft-quoted legal basis for sources of PIL.
Consecutively, the reader will find international conventions, customary international law
(CIL), general principles of law, judicial decisions, and academic teachings discussed.
30
A good example being E. Benvenisti and G. Downs, ‘National courts, domestic democracy, and the evolution
of international law’, Eur. J. Int. Law (2009), vol. 20, pp. 59-72.
31
Von Bogdandy, Dann and Goldmann, ‘The Exercise of Public Authority by International Institutions’, op. cit., at
9.
32
Cohen, op. cit.; Y. Radi, ‘Standardization: A dynamic and procedural conceptualization of international lawmaking’, Leiden Journal of International Law, vol. 25, 2012, pp. 283-307.
33
A. Aust, Modern Treaty Law and Practice, Cambridge, Cambridge University Press, 2007, 547 p; D.J.
Bederman, Custom as a source of law, Cambridge, Cambridge University Press, 2010, 266 p.
34
Reference can be made to the continuous work of the International Law Commission on the law of treaties that
has amongst others brought about the 1969 Vienna Convention on the Law of Treaties. At its sixty-fourth
session, in 2012, the International Law Commission decided to include the topic ‘the formation and evidence of
customary international law’ in its programme of work.
35
th
See amongst others: Aust, op. cit.; M. Shaw, International Law, Cambridge, Cambridge University Press, 6
ed., 2008, 1708 p.; J. Crawford, Brownlie’s Principles of Public International Law, Oxford, Oxford University
th
Press, 8 ed., 2012, 840 p.
11
3.1.2. The doctrine of sources of international law
The doctrine of sources is well-established and covers all domains of public international
law. It gains recognition and legitimacy from the collective will of States, the primary actors in
international law. However, in applying it to non-traditional sources, it also shows some
obvious drawbacks. First, the sources doctrine has been developed in a particular context
(that of the ICJ) for a particular reason (to guide the Court in determination of the law).
Indeed, Art. 38 is primarily defined through case law. Therefore, it has been argued that
sources doctrine confuses the role of a lex arbitri with that of a meta-source for all
international law. 36 Second, the doctrine of sources does not recognize non-traditional
sources. Non-legally binding sources currently do not form the object of PIL, as they cannot
be invoked in Court the same way legally binding sources can. Simultaneously, it has
become more difficult to specify what counts as international law and what does not.37 One
conclusion may be that the rise of non-traditional legal norms evidences that Art. 38 ICJ is
not an accurate reflection of the state of international law. This observation has been
problematized in light of the necessity for the law to serve as an instrument for ordering its
own sources, keeping up with the specific context of the ever-more complex society and
resulting in legal certainty.
Since it is obvious that the doctrine of sources of PIL, at least at this point in time, cannot
fully grasp the many standard- and norm-setting activities at the international plane,
alternative methods have to be considered to study and order these. Theoretically, article 38
of the ICJ Statute can be adapted for that matter. The provision was never intended to be
exhaustive and can be changed.38 First, art. 38 ICJ Statute may be interpreted broadly to fit
new developments in international regulation in the described sources of PIL. Second, a new,
possibly subordinate, source of law may be added to the same provision to legitimize
international law-making activities. A third method would be to constructively rethink the law
on the sources and to create a legal basis for the making of PIL that moves away from the
viewpoint of the ICJ and integrates changes in international regulation that have been taking
place. All three of these proposals, however, would require a change in the way PIL has
been studied for many years.
This change is unlikely to take place. Rethinking dominant theories in international law is
challenging, especially when it includes the re-assessment of constitutive elements of the
body of PIL. In addition, States are the masters of the lawmaking processes and the
acceptance of new insights in the normative components thereof will depend on their
agreement. Policy-makers may not be willing to change attitudes to treat many of the
regulatory activities taking place in international fora merely as coordination exercises not
contributing to law or lawmaking. Furthermore, there is no clear added value in attempting to
include non-traditional norms of international agreement in the sources doctrine for two
reasons. First, sources doctrine in itself comes with none or very limited extra accountability
mechanisms. Second, the very systematization of lawmaking initiatives may change the
nature of norms, since they will undoubtedly loose (part of) their informality. The informality
is a constitutive characteristic of the norms and a key reason why these were adopted in the
first place. As a result, the systematization may even result in a decline in effectiveness.
36
J. Kammerhofer, ‘Uncertainty in the formal sources of international law: Customary international law and some
of its problems’, Eur. J. Int. Law, vol. 15, 2004, pp. 523–553.
37
R.Y. Jennings, ‘What is international law and how do we tell it when we see it?’, Schweizerisches Jahrbuch für
Internationales Recht, vol. 37, 1981, pp. 59-88; See also: Cohen, op. cit.; Kingsbury and Casini, op. cit.
38
Pauwelyn, Wessel and Wouters, Informal International Lawmaking, 2012, op. cit.
12
3.1.3. Conclusion
The doctrine of sources of PIL is well-accepted in international law. It has been used
effectively by the ICJ, States, and practitioners. It, furthermore, introduces strong legitimizing
effects and is included in a legally binding instrument. It is, rightly so, recognized as a
statement of where international law is to be found as well as a way to order its sources.
Notwithstanding, processes of globalization have added a new layer to norm-making at the
global level that cannot be explained solely based on the formal sources doctrine. As a result,
scholarship has to look for other ways to study non-traditional sources. The following
sections will discuss selected methodologies that apply legal mechanisms and principles to
non-traditional norms.
3.2.
Informal international lawmaking
3.2.1. Introducing informal international lawmaking
The concept of ‘informal international lawmaking’ (or IN-LAW) has been introduced by a
research project consisting of legal scholars affiliated with the Graduate Institute in Geneva,
the Leuven Centre for Global Governance Studies, and the University of Twente and
sponsored by The Hague Institute for the Internationalisation of Law (HiiL). The project
focused on accountability, legitimacy, and domestic implementation of so-called informal
lawmaking processes. A comprehensive effort has been undertaken to apply legal research
methods to regulatory activities at the international plane. Structures of public international
law have been used to explain IN-LAW. However, the objects studied are informal rather
than formal, clearly contrasting the main characteristic of PIL output and the interpretation of
law by art. 38 ICJ Statute. The methodology enabled the project leaders to draw attention to
omnipresent phenomena in global governance that they considered to be largely neglected
by lawyers.39
In order to be able to describe the precise object of research as well as the notion of informal
international lawmaking itself, the researchers adopted a flexible and problem-oriented
approach. More concretely, the project leaders ‒ Joost Pauwelyn, Ramses A. Wessel, and
Jan Wouters ‒ proposed the following definition:40
Cross-border cooperation between public authorities, with or without the participation
of private actors and/or international organizations, in a forum other than a traditional
international organization (process informality), and/or as between actors other than
traditional diplomatic actors (such as regulators or agencies) (actor informality),
and/or which does not result in a formal treaty or traditional source of international
law (output informality).
The project leaders thus counted as IN-LAW any activity which is ‘informal’ based on the
output, process, or actors involved. As a result, it was found that IN-LAW can be informal in
different ways and to different degrees. In particular, the IN-LAW framework proved to be
useful to examine regulatory or agency networks which do not issue legally binding
documents, as will be explained in the following section.
39
J. Pauwelyn, R.A. Wessel, and J. Wouters, ‘An introduction to informal international lawmaking’, in Pauwelyn,
Wessel and Wouters, Informal International Lawmaking, 2012, op. cit.
40
J. Pauwelyn, ‘Informal international lawmaking: Framing the concept’, in Pauwelyn, Wessel and Wouters,
Informal International Lawmaking, 2012, op. cit., at 21-22.
13
3.2.2. The informal international lawmaking framework
3.2.2.1.
Defining IN-LAW
The term ‘informal’ international lawmaking is used in contrast and opposition to ‘traditional’
international lawmaking. IN-LAW is ‘informal’ in the sense that it dispenses with certain
formalities traditionally linked to international law. These formalities may have to do with
output, process, or the actors involved.
First, in terms of output, international cooperation may be ‘informal’ in the sense that it does
not lead to a formal treaty or any other traditional source of international law, 41 but rather to a
guideline, standard, declaration, or even more informal policy coordination or exchange.
Aust defines an ‘informal international instrument’ as ‘an instrument which is not a treaty
because the parties to it do not intend it to be legally binding’. 42 The IN-LAW definition,
however, does not necessarily equate output informality with not being legally binding. The
focus is on a lack of certain formalities, not lack of legal bindingness per se.
Second, in terms of process, international cooperation may be ‘informal’ in the sense that it
occurs in a loosely organized network or forum rather than a traditional international
organization (IO). Think of the ISO or the G-20 versus the UN. Such process or forum
informality does, however, not prevent the existence of detailed procedural rules (as exist,
for example, for WTO-related standard setting), permanent staff, or a physical headquarter.
Nor does process informality exclude IN-LAW in the context or under the broader auspices
of a more formal organization (for example, the Guidelines for Multinational Enterprises or
the PISA standards that are created under the auspices of the OECD). What is not included
under IN-LAW, however, is what some could consider as the ‘informal’ negotiation or
conclusion of treaties, such as oral agreements or negotiations conducted, or consent
expressed by means of modern technology (internet, fax, etc.). Similarly, the notion of INLAW does not include all international negotiations or contacts that happen behind closed
doors such as ‘informal’ or ‘green room’ meetings in preparation of formal agreements (even
if quite a bit of IN-LAW also happens behind closed doors).
Third, in terms of actors involved, international cooperation may be ‘informal’ in the sense
that it does not engage traditional diplomatic actors (such as heads of state, foreign
ministers or embassies) but rather other ministries, domestic regulators, independent or
semi-independent agencies (such as food safety authorities or central banks), sub-federal
entities (such as provinces or municipalities), or the legislative or judicial branch. Under
Article 7 of the Vienna Convention on the Law of Treaties, for example, only heads of state,
heads of government, foreign ministers, heads of diplomatic missions, or specifically
accredited representatives are presumed to have so-called full powers to represent and bind
a state. 43 The non-traditional nature of the actors involved in IN-LAW may be further
accentuated with the participation of private actors (besides public actors) and/or
international organizations. In some cases, IN-LAW may even consist exclusively of a
network of IOs (think of the UN System Chief Executive Board of Coordination). Purely
private cooperation (that is, cooperation with no public authority involvement such as the
WADA anti-doping standards and certain labour standards), on the other hand, is not
covered under IN-LAW.
41
That is, sources of international law as described in Art. 38 of the ICJ Statute (conventions, custom, general
principles of law), as introduced supra.
42
A. Aust, ‘The Theory and Practice of Informal International Instruments’, International and Comparative Law
Quarterly, vol. 35, 1986, pp. 787-812, at 787.
43
Vienna Convention on the Law of Treaties, adopted 22 May 1969 and entered into force 27 January 1980,
UNTS, vol. 1155, p. 331.
14
3.2.2.2.
The accountability of IN-LAW
The informal nature of lawmaking, or, in other words, the ‘circumvention’ of formalities under
international and/or domestic procedures, generated the claim that IN-LAW is not sufficiently
accountable.44 At the same time, escaping these same formalities is also what is said to
make IN-LAW more desirable and effective. Accountability, traditionally used, has a narrow
meaning. Bovens defines accountability as:
A relationship between an actor and a forum, in which the actor has an obligation to
explain and to justify his or her conduct, the forum can pose questions and pose
judgment, and the actor may face consequences.45
This definition is narrow in two ways: (1) it covers only ex-post activity where information is
given about, and judgment is passed on actions already taken; and (2) it requires an
institutionalized relationship, governed by rules and procedures, between an ‘actor’ to be
held accountable and a ‘forum’ holding the actor accountable, whereby the actor has certain
obligations toward the forum and the forum has certain rights and powers to impose
sanctions or other consequences on the actor. For the purposes of the IN-LAW project,
researchers distinguished between accountability mechanisms strictly defined, preconditions for such accountability, and other accountability-promoting measures. Time-wise,
references are made to ex ante control, ongoing control, and ex post control. Taking this
broader approach, accountability in an IN-LAW context has been defined as:
A dual relationship (operationalized through norms and procedures) between the
public and a body, through which the latter ‘takes account’ of the interests, opinions
and preferences of the former prior to making a decision (responsiveness), and
through which it 'renders account' a posteriori of its activities and decisions, with the
possibility of facing sanctions (control). The effectiveness of such relationship
requires other meta-principles to exist, such as transparency and reason-giving
(which are enablers, but not components of accountability).
When specifying the contours of accountability in an IN-LAW context, a crucial clarification
must be made: accountability must be examined both at the international level (e.g.
participatory decision-making, transparency, the existence of a complaints mechanism at the
level of the IN-LAW body), and at the domestic level (e.g. domestic administrative or political
control over the participants in the IN-LAW process, domestic review, and notice and
comments procedures before international guidelines are implemented, etc.).46
44
See, for example, E. Benvenisti, ‘Coalitions of the Willing and the Evolution of Informal International Law’ in C.
Calliess, C. Nolte and G. Stoll (eds.), Coalitions of the Willing - Avantgarde or Threat?, Carl Heymanns Verlag,
Cologne, 2007; B. Kingsbury and R. Stewart, ‘Legitimacy and Accountability in Global Regulatory Governance:
The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of
International Organizations’, in S. Flogaitis (ed.), International Administrative Tribunals in a Changing World,
2008, at 5, framed this critique as follows: ‘Even in the case of treaty-based international organizations, much
norm creation and implementation is carried out by subsidiary bodies of an administrative character that operate
informally with a considerable degree of autonomy. Other global regulatory bodies ‒ including networks of
domestic officials and private and hybrid bodies ‒ operate wholly outside the traditional international law
conception and are either not subject to domestic political and legal accountability mechanisms at all, or only to a
very limited degree’.
45
M. Bovens, ‘Analysing and Assessing Accountability - A Conceptual Framework’, European Law Review
(2007), 447, vol. 13, at 450 and 465. See also M. Bovens, D. Curtin and P. ‘t Hart, ‘Studying the Real World of
EU Accountability: Framework and Design’, in The real world of EU accountability – What deficit, Oxford
University Press, 2010, pp. 49-52.
46
See: T. Corthaut, B. Demeyere, N. Hachez and J. Wouters, Operationalizing Accountability in Respect of
International Informal Lawmaking Mechanisms, in Pauwelyn, Wessel and Wouters, Informal International
Lawmaking, 2012, op. cit.
15
Notwithstanding significant efforts made by the IN-LAW scholars, many questions related to
the accountability of IN-LAW remained unresolved. If it is the very nature of IN-LAW to be
informal, how could it include formal, institutionalized accountability mechanisms?47 A first
difficulty relates to questions of actors. In the IN-LAW context this encompasses three subquestions: which actors must be held accountable, to whom must they be held accountable,
and who is responsible for holding relevant actors accountable. Given the informal nature of
IN-LAW, especially at the international level, little authority (if any) is formally delegated by
national participants (principles) to an international body (agent or trustee). Therefore,
internal or delegation accountability is less likely to play out internationally as opposed to
domestically (e.g., domestic regulators participating in IN-LAW being held accountable by
their supervising domestic ministries or parliaments). In conclusion, difficulties primarily arise
with regard to the selection of IN-LAW matters for which accountability is due and at what
stage of the IN-LAW process.
3.2.3. Conclusion
The IN-LAW framework provides a useful model to study case studies of non-traditional
regulative action. Non-traditional norms are classified according to their level of formality.
Three axes are used to order lawmaking activities: output informality, process informality,
and actor informality. With regard to the latter, IN-LAW stresses the role of public actors in
informal lawmaking, although it studies hybrid public-private networks too.
The approach taken enables researchers to study informal lawmaking and formal lawmaking
and to apply methodologies used to compare the latter to the former. Indeed, IN-LAW
scholars have been looking for ways to reconnect international legal scholarship with the
‘real world’ and the many interesting informal normative processes that shape it and make it
more interconnected and inclusive. This exercise is vital given the realities of international
cooperation in the 21st century, but far from evident to operationalize. Accepting a role for
informal processes in lawmaking and global governance is one thing; assessing the impact
of fundamental constitutional principles (such as accountability) in relation to these
processes and their output quite another. The core difficulty when operationalizing
accountability of IN-LAW bodies is that it may be challenging for any actor to be fully
accountable. Solutions proposed by IN-LAW scholars therefore promote both domestic and
international control mechanisms. As a result, according to this theory, Flanders has an
interest to reflect upon how it can keep IN-LAW output accountable when it enters the
domestic legal order.
3.3.
Global administrative law
3.3.1. Defining global administrative law
Non-traditional international norms can be assessed through the lens of administrative law.
Researchers affiliated with the Global Administrative Law (GAL) initiative, based at the New
York University School of Law, have prominently done so. The endorsement of
administrative principles and administrative law-type mechanisms in global governance is
47
Elsewhere, we have argued that this formality does not exclude the application of rule of law principles,
including those related to the operationalization of accountability mechanisms. See: S. Duquet, J. Pauwelyn, R.A.
Wessel, and J. Wouters, ‘Upholding the rule of law in informal international lawmaking processes’, The Hague
Journal on the Rule of Law, vol. 1, 2014, forthcoming.
16
the primary premise of the methodology.48 This is clearly reflected in the work of Benedict
Kingsbury, Nico Krisch, and Richard B. Stewart, who define GAL as comprising49:
[T]he mechanisms, principles, practices and supporting social understandings that
promote or otherwise affect the accountability of global administrative bodies, in
particular by ensuring they meet adequate standards of transparency, participation,
reasoned decision and legality, and by providing effective review of the rules and
decisions they make.
The existence of a global administrative space has been identified consisting of the sum of
these mechanisms, principles, and practices. The global administrative space, however, is
characterized by diversity and fragmentation. Global administrative bodies were not created
equal. Because of its broad scope, as indicated by the definition, many different actors,
processes, and contexts of global administration have been studied.50 Moreover, while GAL
scholars agree that ‘principles of administrative law’ apply throughout the global
administrative space, their exact content remains open for discussion.
3.3.2. The global administrative law framework
3.3.2.1.
Defining GAL
Global Administrative Law, fundamentally, understands and analyzes global governance as
administrative action. In other words, administrative law is used to order international
relations. The GAL framework does not challenge the fundamental basics of general public
international law. Quite to the contrary, GAL complements PIL and offers insights in
regulatory action that is not law in the narrow, positivist, sense.51 Like other observers of
changing international rule-making, a distinction is thus made between treaty-making and
the creation of customary international law on the one hand, and regulatory action that does
not fit these labels, on the other. The former are considered to be the equivalent of
legislative processes at the national level and formal sources of international law. The latter
are intended to manage economic and social life through specific decisions and
rulemaking.52
Global administrative actors range from international agencies, subsidiary organs such as
general assemblies, Conferences of the Parties, special or functional committees, and/or
private actors. GAL thus takes a rather inclusive view on global administrative action.53 The
output overlaps to a great extent with IN-LAW, since GAL also studies decision-making
48
B. Kingsbury, ‘The Administrative Law Frontier in Global Governance’, Proc. Am. Soc. Int’l L., vol. 99, 2005,
143-153.
49
N. Krisch, B. Kingsbury and R.B. Stewart, ‘The Emergence of Global Administrative Law’, Law and
Contemporary Problems, 2005, vol. 68, pp. 15-68, at 17.
50
See, for example, S. Cassese, B. Carotti, L. Casini, E. Cavalieri, E. MacDonald, M. Macchia, M. Savino (eds.),
rd
Global Administrative Law: The Casebook, 3 ed., IRPA-IILJ, 2012, 405 p.
51
See, however, also Kingsbury and Casini, who argue that many legal questions posed necessitate a
broadening and probably even a rethinking of the field of international institutional law. B. Kingsbury and L.
Casini, ‘Global Administrative Law Dimensions of International Organizations Law’, International Organizations
Law Review (2009), Vol.6, pp. 319–358, at 356.
52
Ibid.; Krisch, Kingsbury and Stewart furthermore distinguish these forms of administrative action from
adjudication. At the international level, the latter takes the form of dispute settlement between States, although
international adjudication procedures may also include individual parties.
53
Ph. Dann and M. von Engelhardt, ‘Legal Approaches to Global Governance and Accountability: Informal
Lawmaking, International Public Authority, and Global Administrative Law Compared’, in Pauwelyn, Wessel and
Wouters, Informal International Lawmaking, 2012, op. cit., pp. 106-121, at 107.
17
processes, guidelines, policy harmonization, and standardization activities.54 However, major
differences are also to be noted in terms of scope. First, other than IN-LAW, GAL includes
purely private initiatives. As such, it is interesting to observe that GAL is not occupied by the
public/private distinction – a classic way to distinguish law from non-law. Second, GAL also
takes account of formal and legally binding output by traditional IOs. An activity does not
have to be ‘informal’ to be subject to a GAL analysis. For the same reason, some IN-LAW
will be below the radar screen of the GAL project, focused as it is on more formal activity. 55
3.3.2.2.
Administrative law at the global level
The previous paragraphs indicated how GAL departs from public international law in its
intergovernmental and formalistic meaning. Another interesting consequence of a GAL
approach is the evaporation of the sharp separation of the domestic and the international. 56
Reasons are twofold. First, it can be noted that administrative law has entered international
relations because of different national representation models in international affairs.
Countries that were traditionally represented at the international scene by Heads of State or
Ministers of Foreign Affairs and controlled by national Parliaments, have increasingly
delegated these tasks to administrative agencies and regulators. These national agencies
and regulators, by necessity, also have to tackle cross-border questions. As a result, and
within the regulatory mandate accorded to them by national Parliaments and/or
governments, they act at the international plane.57
Second, at the global level, a considerable number of international institutions perform
functions that resemble national administrative action.58 Often, this brings about cooperation
between domestic and international administrations. Emergency actions performed by
international organizations in crisis situations may serve as an example. A variety of
international bodies have received powers to take up such actions.59 Consequently, legal
and administrative frameworks are set up within the organizations to deal with disasters.
This is the case, for example, in global food safety action.60 WHO Member States cooperate
through the International Food Safety Authorities Network (INFOSAN), a joint initiative
between WHO and FAO.61 The network allows for the exchange of routine information on
54
J. Von Bernstorff, ‘Procedures of Decision-Making and the Role of Law in International Organizations’, German
Law Journal (2008), vol. 9, pp. 1939–1964; B. Kingsbury and L. Casini, ‘Global Administrative Law Dimensions of
International Organizations Law’, International Organizations Law Review (2009), Vol. 6, pp. 319-358.
55
J. Pauwelyn, op. cit., at 24.
56
B. Kingsbury, ‘The Concept of ‘Law’ in Global Administrative Law’, Eur. J. Int’l Law (2009), vol. 20, pp. 23-57,
at 25.
57
J. Pauwelyn, R.A. Wessel, and J. Wouters, ‘The Exercise of Public Authority through Informal International
Lawmaking: An Accountability Issue?’, JMWP/ICON paper, Public Authority in Global Governance project (Hertie
School of Governance, Berlin), September 2011.
58
N. Krisch and B. Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the
International Legal Order’, European Journal of International Law (2006), vol. 17, pp. 1-13, at 1; Krisch,
Kingsbury and Stewart, op. cit., at 17.
59
The UN Security Council, for example, has the clear mandate to act, as stated in Article 24 of the UN Charter
to ‘ensure prompt and effective action’ with respect to the maintenance of international peace and security.
Another example would be the competence of the IMF and the World Bank to provide emergency assistance.
60
For further reading, see: S. Duquet and D. Geraets, ‘Food Safety Standards and Informal International
Lawmaking’, in A. Berman, S. Duquet, J. Pauwelyn, R.A. Wessel, J. Wouters (eds.), Informal International
Lawmaking: Case Studies, TOAEP Publishers, 2012, at 423.
61
C. Smith De Waal and G.R. Guerrero Brito, ‘Safe Food International: A Blueprint for Better Global Food
Safety’, Food and Drug Law Journal (2005) vol. 60, p. 396. INFOSAN was officially inaugurated in October 2004
and has both routine and emergency activities. INFOSAN seeks to: (a) promote the rapid exchange of
information during food safety-related events, (b) share information on important food safety-related issues of
global interest, (c) promote partnership and collaboration between countries, (d) help countries strengthen their
capacity to manage food safety risks. See WHO and FAO, “INFOSAN Background Information”, October 2007,
available at http://www.who.int/foodsafety/fs_management/infosan_1007_en.pdf (last accessed:17 November
2013). With globalized food production and trade structures, the probability of the occurrence of international
18
food safety issues, the sharing of experiences and expertise and enables rapid access to
information in case of food safety emergencies.62
3.3.2.3.
Principles and rules common to GAL
The global administrative space does not (yet) consist of a coherent and clear set of
administrative rules. Challenges are clear: transnational or global administrations were not
founded on the basis of a common legal tradition, nor do they necessarily share a set of
predetermined constitutional principles. 63 The global administrative context has provoked
debate on the identification of common principles and standards in global administrative
lawmaking. Indeed, scholars disagree on if and how efforts have to be undertaken to select,
define, and further develop principles and values at the global plane.64 On the one hand,
scholars consider the further elaboration of common administrative rules crucial, not just for
a proper administration of justice for individuals, but more broadly for the legitimacy of
transnational and international administrative action in general. 65 On the other hand, the
main strand in literature suggests that the finding of agreement on a universal set of
administrative law principles should not be a priority for GAL. Given the variety in
international institutions, regimes, and networks, it has been argued that diversity and
pluralism are to be preferred.66
Either way, however, problems related to the selection of principles of global administrative
law emerge. Because of the similarities between national and global administrative law, it is
sometimes suggested that domestic principles may serve as a source of inspiration at the
transnational level. However, transposing rules common to national systems at the global
level comes with certain drawbacks. Major distinctions do still exist between administrative
lawmaking at the national and the international level. Sabino Cassese argues in this sense
that the relationship between the ‘administré’ and the ‘autorité publique’, a typical feature of
national administrative bipolarity, is less strongly present at the global level. 67 In global
arenas, a multitude of political, civil society, and economic actors are interacting with
governmental actors in administrative procedures. Global rulemaking is the result of complex
processes that reflect a multitude of views and interests, including private ones.
Furthermore, as it is often reported, global administrative law encompasses more than just
the transferring of national administrative principles to the global level. It is a self-standing
field of law which requires an independent set of principles and values.68
incidents involving contaminated food has demanded faster international information-exchange mechanisms.
Actors participating in this global network include food safety authorities and emergency and focal contact points
located in 177 Member States. World Health Organization and Food and Agriculture Organization of the United
Nations,
‘INFOSAN
Progress
Report
2004–2010’,
Geneva,
2011,
p.
11,
available
at
whqlibdoc.who.int/publications/2011/ 9789241501286_eng.pdf (last accessed:17 November 2013).
62
See
INFOSAN’s
website
for
further
information,
available
at
http://www.who.int/foodsafety/fs_management/infosan/en/ (last accessed:17 November 2013). See also infra,
section 4.3. on network governance.
63
See for further reading: M.-S. Kuo, ‘Between Fragmentation and Unity: The Uneasy Relationship between
Global Administrative Law and Global Constitutionalism’, San Diego International Law Journal, vol. 10, pp. 439467, 2009.
64
C. Harlow, ‘Global Administrative Law: The Quest for Principles and Values’, European Journal of International
Law, Vol. 17, 2006, pp. 187-214.
65
See, among others, J. Wouters and S. Duquet, ‘The Principle of Reasonableness in Global Administrative
Law’, 2013, Jean Monnet Working Paper No. 12/2013.
66
Ibid. at 207.
67
S. Cassese, ‘New paths for administrative law: A manifesto’, International Journal of Constitutional Law, 2012,
vol. 10, pp. 603-613, at 13.
68
Harlow, op. cit.
19
3.3.2.4.
The accountability of GAL
A main advantage of taking an administrative law perspective on non-traditional norms is the
theoretical framework offered to explain and categorize international rulemaking. More
concretely, clear procedural advantages emerge, which on their turn may strengthen
accountability standards. Indeed, introducing administrative procedures to global regulatory
action can ensure that administrative bodies also adequately integrate standards of
transparency, participation, and effective review. ISO standard-setting, which is often
criticized for its lack of accountability, may provide an interesting example. When being
analyzed using administrative and procedural principles, one may conclude that the ISO has
installed relatively broad participation (from both public and private actors, stakeholders),
along with administrative rules governing decision-making processes, fixed-form procedures,
an appeal procedure for its own standards, transparency of decision making process, and of
the final outcome.69 This is not to say that there are no outstanding accountability issues in
the ISO procedure. The implementation phase of ISO standards at the national level is key
in this, since this is where new accountability issues may arise.
At the international level, GAL provides an accurate framework of reference to discuss ISO
standards. It can be applied to combat growing legitimacy and democracy concerns
commonly associated with non-traditional international norms. 70 GAL is constructed as a
body of law, which implies that its aims to find law-based solutions (e.g. procedural
guarantees or judicial review). The lack of these solutions at various stages of norm-creation
is exactly one of the reasons why non-traditional lawmaking is considered to be
unaccountable.
3.3.3. Conclusion
The Global Administrative Law framework provides a concrete and useful methodology to
order non-traditional norms at transnational and international levels. It is mainly
characterized by its starting point: the application of administrative law to explain a broad
range of actions at the global level. Indeed, GAL has been guiding research on public and
private standard-setting, regulatory activities of agencies and assemblies of international
organizations as well as harmonization exercises performed by networks of domestic and
international administrative agents. GAL’s comprehensive approach is one of its main
weaknesses as it tends to decelerate the development of common global administrative
principles to apply across the GAL spectrum. Its strongest feature, on the other hand, is
GAL’s legal approach. Consistently, the law is brought back in the study of norms that are
formally non-binding. This has enhanced the development of a theoretical body for
accountability. GAL scholars have convincingly argued that, because of the administrative
characteristics, a large part of global governance has at the very minimum some form of
judicial or administrative redress must be made available. The question whether
administrative control has to be organized at the international or domestic level, remains
open.
Nevertheless, the stress on administrative law as a guidance tool for global governance
goes hand in hand with the increase of administrative powers being executed beyond the
69
In a July 2010 panel discussion, the ISO Secretary General stressed the importance of the concepts of
transparency, openness, consensus and impartiality, market relevance and effectiveness, coherence,
development dimension, stakeholder engagement, due process, and national implementation/adoption. See: Rob
Steele (ISO Secretary-General), International Standards, ISO and the WTO, Panel Discussion: Implementing the
future
WTO
commitments
on
trade
facilitation,
Geneva,
5
July
2010,
available
at
http://www.unctad.org/sections/wcmu/docs/itfwcotfp04_en.pdf (last accessed:17 November 2013).
70
A.D. Mitchell and J. Farnik, ‘Global Administrative Law: Can it Bring Global Governance to Account?’, Federal
Law Review, Vol. 37, pp. 237-261, 2009.
20
State level. In the global administrative space, ‘the strict dichotomy between domestic and
international has largely broken down’. 71 Being affected by these trends, the Flemish
government and its agencies increasingly interact with agencies of other States. Global
administrative law insights are valuable in analyzing these interactions. Especially where
administrative powers are executed which previously were subjected to Belgian
administrative law, an accountability gap may surface. GAL insights may assist in subjoining
fundamental principles of administrative law in global administrative action. The Flemish
government could be a frontrunner in systematically scrutinizing its global regulatory
activities against administrative law standards.
3.4.
International Public Authority
3.4.1. Introducing the exercise of international public authority
A third strand in legal literature emphasizes the notions of ‘governance’ and ‘public law’ in
global governance activities. Studies conducted in the framework of the Max Planck Institute
in Heidelberg’s project on the ‘Exercise of International Public Authority’ (IPA), in particular,
have adopted this viewpoint.72 The prevailing hypothesis of researchers affiliated with the
project is that ‘governance’ is about creating (public) order. 73 The ‘public’ dimension in
transnational regulatory activities is essential to see international norm-setting as
‘lawmaking’, even when non-governmental actors are involved. The IPA project’s founding
fathers Von Bogdandy, Dann, and Goldmann define the ‘exercise of international public
authority’ in the following terms74:
[A]ny kind of governance activity by international institutions, be it administrative or
intergovernmental, should be considered as an exercise of international public
authority if it determines individuals, private associations, enterprises, states, or other
public institutions.
This definition, although helpful, by itself does not offer concrete benchmarks to order nontraditional norms. Further guidance is needed and provided by the definition of an important
element of the first definition, that of ‘authority’:
[T]he legal capacity to determine others and to reduce their freedom, i.e. to
unilaterally shape their legal or factual situation”. As such, it becomes clear that the
project is focusing on international activities that unilaterally influence private
behaviour. Interestingly, it has been made clear from the outset of the project that
researchers accept that the determination may or may be not legally obligating: “It is
binding if an act modifies the legal situation of a different legal subject without its
consent. A modification takes place if a subsequent action which contravenes that act
is illegal.75
71
N. Krisch and B. Kingsbury, ‘Introduction: Global Governance and Global Administrative Law in the
International Legal Order’, European Journal of International Law (2006), vol. 17, pp. 1-13, at 1.
72
See A. Von Bogdandy, R. Wolfrum, J. Von Bernstorff, Ph. Dann, M. Goldmann (Eds.), The Excercise Of Public
Authority By International Institutions: Advancing International Institutional Law (Springer, 2010). See in the same
volume also also Matthias Goldmann, Inside Relative Normativity: From Sources to Standards Instruments for
the Exercise of International Public Authority 661-711; and von Bogdandy, Dann and Goldmann, ‘Developing the
Publicness of Public International Law’, op. cit..
73
For example: B.G. Peters, ‘Introducing the topic’, in B.G. Peters and D.J. Savoie (eds.), Governance in a
changing environment, McGill-Queen’s Press, 1995, 334 p.
74
Ibid. at 5.
75
Ibid., at 11-12.
21
The IPA methodology enables the identification of all those international governance
phenomena it believes public lawyers should study. 76 The concrete benchmark used is
whether public authority is exercised by international actors. While this may seem as an
overly broad criterion, it has to be noted that the IPA methodology limits itself to being
applicable only in relationship with activities of international (public) institutions.
3.4.2. The international public authority framework
The Heidelberg’s project methodology is rooted in an observation that in itself does not differ
to a great extent from what IN-LAW and GAL scholars witnessed: international institutions
play an active and often crucial role in decision-making and policy implementation,
sometimes even affecting individuals. Yet, solutions proposed are very different: IPA’s
attempts to apply public law theories to global governance. It does so because global
governance in itself is considered to be a term that insufficiently comprises public law
insights. By now, the project has finished the first two stages of research. In the 2006-2009
period, research centered on international institutions. In a second phase, focus was on
international judicial institutions as law makers (2009-2012). A third phase has been initiated,
in which the key concepts and ramifications of the IPA approach will be carved out in greater
detail.
3.4.2.1.
Defining IPA
IPA aims to apply, to the greatest extent possible, public law insights to global governance.
Doing so, a functional understanding of public law is adopted: public law deals with public
authority. 77 As a result, whenever public authority is exercised, IPA will apply its
methodology. An important consequence is that IPA thus may study both traditional and
non-traditional norms at the global level, although it focuses primarily on the latter category.
In addition, non-traditional norms will only be examined under the IPA scheme if these bring
about ‘traditional’ consequences. That is the case if these norms unilaterally impact upon an
individual or a single State’s situation. Or, in other words, if authority is exercised along the
same terms as would be the case with public laws and regulations.
Non-traditional norms are, according to the IPA scheme, created by international
organizations. ‘Output’ has been defined as ‘instruments of the exercise of international
public authority’, or simply, ‘instruments’. Research suggested the existence of at least these
categories: First, when public authority is exercised through instruments concerning
individual States, IPA studies (1) decisions, (2) recommendations, and (3) information.
Second, when public authority is exercised through general instruments, two instruments are
considered relevant: (1) secondary law and (2) international public standards. A third
category concerns public authority exercised by private law instruments. 78 Applying these
categories to the case studies introduced above, WTO standard-setting activities are
international public standards; the OECD Guidelines for Multinational Enterprises are
recommendations79; the WHO Assembly formulates secondary law, recommendations and
international standards; ILO standards have been labeled ‘information’80. Interestingly, antidoping regulations fit the IPA definition of private law instruments quite well. Public authority
76
Von Bogdandy, Dann and Goldmann, ‘Developing the Publicness of Public International Law’, op. cit.
Dann and von Engelhardt, at 109.
78
Dann and von Engelhardt, at 113; and von Bogdandy, Wolfrum, Von Bernstorff, Dann and Goldmann, op. cit.,
table of contents.
79
For a case study of the Guidelines using the IPA methodology, see G. Schuler, ‘Effective Governance through
Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises’, in von Bogdandy,
Wolfrum, Von Bernstorff, Dann and Goldmann, op. cit., pp. 197-226.
80
E. de Wet, ‘Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental
Principles and Rights at Work’, in von Bogdandy, Wolfrum, Von Bernstorff, Dann and Goldmann, op. cit., 377.
77
22
is clearly exercised by WADA when it decides on the individual cases of men and women
participating in sports events. Another particular example can be found in the OECD’s PISA
programme. PISA consists of large-scale empirical assessments of educational
achievements of students in the participating States. These international assessments
influence national educational policy.81 In IPA’s methodology, National Policy Assessments
are, therefore, being broadly defined as ‘predominantly non-deontic instruments by
international institutions addressed to another entity that are subject to soft means of
enforcement’.82
3.4.2.2.
The accountability of IPA
A strong connection exists between public authority and the desire to keep its exercise
accountable. IPA defines ‘public authority’ (see above) as the actions by public entities which
unilaterally determine or reduce the freedom of others. Obviously, this requires some sort of
control to protect individuals against the improper exercise of power. This principle is widely
recognized. As the International Law Association (ILA) report on accountability of IOs points
out, ‘as a matter of principle, accountability is linked to the authority and power of an IO.
Power entails accountability ‒ that is the duty to account for its exercise’. 83 In other words, if
no public authority or power is being wielded, a problem of accountability is unlikely to arise.
Since IPA studies cases where public authority is being wielded, accountability and
legitimacy questions are at the forefront of research. When international organizations
exercise public authority, they often do so in areas where domestic authorities previously
had exclusive regulatory rights. Although competences have clearly shifted from the national
to the transnational and international, this has thus far not been matched by a shift in
accountability relationships.84 Calls for accountability mechanisms at the global level have
increased, but the existing review mechanisms at the domestic level have not lost their
relevance.
First, accountability for the exercise of public authority can be organized using legal
principles as benchmarks. It is striking that the legal, ex-post, forms of accountability for
actions of international organizations remain underdeveloped. IN-LAW and especially GAL
approaches to the topic have attempted to remedy this. IPA has been particularly interested
to study the further development of international case law. Courts, have a traditional function
in keeping international and transnational action accountable, but also have a lawmaking
function. Indeed, international courts have been shaping the law through adjudication, and
as such, have been exercising public authority themselves. This raises new accountability
questions, especially with regard to how international judicial lawmaking scores when it
comes to democratic legitimation.85
On the other hand, IN-LAW and GAL researches have acknowledged the importance of
other means to hold non-traditional lawmaking to account.86 Similar arguments are produced
in an IPA context. In this regard, Erika de Wet submitted that ‘decentralized judicial review
81
For a case study of the Pisa rankings using the IPA methodology, see: A. von Bogdandy and M. Goldmann,
‘The Exercise of International Public Authority through National Policy Assessments. The OECD’s PISA Policy as
a Paradigm for a New Standard Instrument’, International Organizations Law Review (2008), vol. 5, 241.
82
M. Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of
International Public Authority‘, in von Bogdandy, Wolfrum, Von Bernstorff, Dann and Goldmann, op. cit., p 691.
83
International Law Association, Berlin Conference, ‘Accountability Of International Organisations’, Final Report
(2004), at 5.
84
De Wet, ‘Holding International Institutions Accountable’ op. cit., pp. 856.
85
See: A. von Bogdandy and I. Venzke, ‘In Whose Name? An Investigation of International Courts’ Public
Authority and Its Democratic Justification’, European Journal of International Law 2012, vol. 23, pp. 7-41; A. von
Bogdandy and I. Venzke (eds.), International Judicial Lawmaking, Springer, 2012, 509 p.
86
De Wet, similar to the IN-LAW project, departs from the narrow definition of accountability as presented by
Bovens. See supra.
23
cannot in and of itself ensure the sufficient protection of the rights and interests of private
individuals and other constituencies affected by the norm-setting activities of international
institutions’. 87 In other words, oversight has to be organized by combining non-judicial
oversight mechanisms with mechanisms of judicial review. 88 Non-judicial oversight
mechanisms can be political, administrative or financial, or any combination.
3.4.3. Conclusion
This paper has been highlighted several times, but international organizations and public
and private networks frequently adopt norms that are not considered to be formally legally
binding, yet, clearly impact upon individuals and States. The IPA project takes a public law
approach and applies it to these norms. The legal conceptualization of international public
authority seems to offer an adequate way to integrate legal scholarship to global governance
actions. It legitimizes the use of legal insights and mechanisms. It therefore draws on the
functional criterion: if a formal rule of public and international law and an exercise of public
authority bring about similar consequences (i.e. they unilaterally impact upon individual
behavior), techniques and methodologies of the former may be used with regard to the latter
category of norms.
The IPA framework still struggles to discern what the elements of public law are that may
apply whenever public authority is exercised at the international level. Moreover, the concept
of international public authority has been broadly defined to encompass all instruments of
international institutions, individual and general, legal and non-legal, formal and informal,
private and public. The main shared characteristic is that these all impact upon individual
and collective liberty.89
Under this definition, a considerable part of Flemish regulatory and private actors exercise
public authority at the international level. In some cases, the impact on individuals may be
direct (e.g. sanctioning based on international doping standards), but most often there will be
indirect consequences. Domestic governance is undoubtedly affected and altered because
of international exchanges and harmonization exercises. Since the tension between
unilateral authority and individual freedom is present, the public law approach should also be
according to IPA researchers. In the Flemish context, one may wonder whether a unified
public law regime could capture all these very specific instruments.
3.5.
Transnational Private Regulation
3.5.1. Introducing transnational private regulation
When HiiL launched the IN-LAW project in 2009, it also kicked off a project covering
lawmaking by private actors at the international level. As such, it opted to accept the
dichotomy between public and private law by simultaneously having separate research
networks on both bodies of law.90 The ‘private’ project - in full referred to as ‘Transnational
87
E. de Wet, ‘Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight
Mechanisms and Judicial Review’, in von Bogdandy, Wolfrum, Von Bernstorff, Dann and Goldmann, op. cit., pp.
855-882.
88
Ibid., pp. 867.
89
M.S Goldmann, ‘We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to
International Soft Law’, Leiden Journal of International Law 2012, vol. 25, pp. 335-368, 367.
90
The Hague Institute for the Internationalisation of Law (HiiL) Call for Research Proposals, HiiL Research
Theme on Transnational Constitutionality: Democracy and Accountability in the Context of Informal International
Public
Policy-Making
(September
2008),
available
at
http://www.hiil.org/assets/204/HIIL_n6434_v21_HiiL_Constitutional_Law_Project_-_Tender_Document.pdf (last
accessed:17 November 2013).
24
Private Regulation: Constitutional Foundations and Governance Design’ (TPR) - has been
coordinated by Fabrizio Cafaggi (EUI), Linda Senden (Tilburg University), and Colin Scott
(University College Dublin). The project was set up to tackle questions on the emergence of
mixed (public-private) regulatory regimes in transnational governance. According to the
project’s initiators TPR constitutes91:
a new body of rules, practices and processes, created primarily by private actors,
firms, NGOs, independent experts like technical standard-setters and epistemic
communities, either exercising autonomous regulatory power or implementing
delegated power, conferred by international law or by national legislation.
Interestingly, TPR comprises activities of private actors entrusted to perform public functions,
including regulatory ones.92 The delegation of these functions, often resulting in norms that
resemble public regulation, links TPR to national and international law. However, TPR also
clearly differs both from public law (it is private) as well as from more conventional forms of
private rule-making such as private codes on merchant law (its scope is much broader than
private contractual governance).93
The definition introduced above indicates that TPR responds to two trends that have
reshaped and are still modifying international law. First, private regulation – although not a
new phenomenon – has been growing steadily. Its expansion goes hand in hand with the
reallocation of regulatory power from the domestic to the global sphere. Second, a
redistribution has been taking place between public and private regulators. These
phenomena go beyond the establishment of a lex mercatoria or the finding of responses to
the increasing globalization of economy.
3.5.2. The transnational private regulation framework
3.5.2.1.
Defining TPR
Transnational Private Regulation is based on the idea that rule-making is not solely based
on States’ formal legislation. TPR limits itself to the study of a particular part of nontraditional norms: those created first and foremost by private actors. The effects created by
TPR are to be distinguished from global public regulation, on the one hand, and other forms
of conventional international private regulation, on the other. Both elements require further
definition.
First, TPR focuses on private regulation. However, public actors are not completely excluded
from transnational private regulation processes. Cafaggi has explained that States have a
role as rule takers in addition to their traditional function as rule makers.94 Public actors may
accept, apply, and enforce TPR. Furthermore, private actors interact with intergovernmental
organizations.
Second, there are different forms of private regulation. Conventional private regulation
focuses on the private sphere comprised of market processes, competition law, and
91
F. Cafaggi, ‘New foundations of transnational private regulation’, Journal of Law and Society, 2001, vol. 38, pp.
20–49, at 20-21.
92
This phenomenon has also been described by Freeman; see: J. Freeman, ‘Extending Public Law Norms
Through Privatization’, Harvard Law Review 2003, vol. 116, 1285-1291.
93
Cafaggi, ‘New foundations of transnational private regulation’, op. cit., 21.; Some authors, mostly not
associated with the HiiL TPR project, take the view that transnational private governance is a synonym of the lex
mercatoria. See: P. Zumbansen, ‘Transnational Private Regulatory Governance: Ambiguities of Public Authority
and Private Power’, Osgoode CLPE Research Paper No. 45/2012.
94
Cafaggi, ‘New foundations of transnational private regulation’, op. cit., 21.
25
deregulation exercises.95 TPR takes a more inclusive view on the private sphere. It focuses
on self-regulatory regimes and policies created or steered by NGO’s, trade unions, firms,
and trade associations creating standards. It may even include activities of multi-stakeholder
organizations. As such, TPR has extended the scope of research related to the private
sphere.96
As such, a broad range of norms are studied by TPR. The very outlook of the output created
may be strikingly similar to that of public norms in global governance. TPR to a considerable
extent relies on formal mechanisms, especially contracts. 97 Norms that have been
considered under the TPR framework may take the form of quality control standards (for
example in sectors such as tourism), standards regulating behavior (see for example the
hybrid public and private world anti-doping regime) 98 , and labor and environmental
standards 99 . With regard to the latter, it has been argued that TPR initiatives may be
particularly relevant in contexts where a domestic state labor regulatory regime exists, but it
is inadequate to address the demands of multinationals or other stakeholders that are
engaged with global supply chains.100
In addition, TPR studies cases of regulation that form the private counter-parts of public
initiatives. The emergence and governance of private food regulation is an example of a field
where public and private regulations co-exist. In food regulation, the relationship of private
initiatives with existing public regulation is particularly complicated.101 On the private side,
the Global Partnership for Good Agricultural Practice (GLOBALG.A.P.) and the Global Food
Safety Initiative (GFSI) are well-known regimes, which may be studied under the TPR
framework. The role of the ISO in food regulation is also particularly interesting. ISO is
sometimes termed a multi-stakeholder forum102 for having amongst its actors national bodies
‘most representative of standardization’, which may encompass both public and private
actors. 103 Despite the fact that the ISO is not directly referred to in the Agreement on
Technical Barriers to Trade (TBT Agreement), this agreement nevertheless makes reference
to the ISO/IEC Guide 2, which contains a definition of ‘standardizing bodies’ that can be
applied at the national level. ISO closely cooperates with the WTO to ensure that standards
95
F. Cafaggi, ‘The Architecture of Transnational Private Regulation’, Osgoode CLPE Research Paper 2012, No.
20/2012.
96
Before, the ‘transnational’ terminology primarily has been used to describe aspects of international contract
law. See: Ph. C. Jessup, Transnational Law, Yale University Press. New Haven, 1956; C.M. Schmitthoff, ‘Nature
and Evolution of the Transnational Law of Commercial Transactions’, in N. Horn and C.M Schmitthoff (eds.), The
Transnational Law of International Commercial Transactions, Deventer, 1982, 19-31.
97
M.K. Borowicz, ‘Financial Markets, Regulatory Failures and Transnational Regulatory Safety Nets: The
Building of a Policy-Making Metaphor’, in A. Berman, S. Duquet, J. Pauwelyn, R.A. Wessel, J. Wouters (eds.),
Informal International Lawmaking: Case Studies, TOAEP Publishers, 2012, at 241.
98
L. Casini, The Making of a Lex Sportiva by the Court of Arbitration for Sport, 12 German Law Journal 13171340 (2011); F. Latty, La “Lex Sportiva”: Recherche sur le Droit Transnational, Leiden, Martinus Nijhoff, 2007.
99
For a study of public and private labour standards, consult: K. Kolben, ‘Transnational Labor Regulation and the
Limits of Governance’, Theoretical Inquiries in Law 2011, vol. 12, pp. 404-437, which appeared in a theme issue
entitled ‘Mapping the hard law/soft law terrain: labor rights and environmental protection’.
100
Id., at 408. This point of view has, however, been criticized for being either an insufficient, or perhaps even a
destructive, response to the domestic labor law enforcement gap. See, amongst others, G.W. Seidman, Beyond
the Boycott: Labor Rights, Human Rights, and Transnational Activism, New York: Russell Sage Foundation,
2007, 176 pp.
101
See Duquet and Geraets, op. cit., for a comparison between public and private standards setters in food
safety regulation.
102
ISO’s commitment to reach different categories of stakeholders is also reflected in its cooperation with several
UN agencies, such as the Codex Alimentarius Commission, the International Labour Organization (ILO) and the
World
Health
Organization
(WHO).
For
a
complete
list
consult:
http://www.iso.org/iso/about/organizations_in_liaison.htm (last accessed:17 November 2013).
103
For example, the Netherlands’ member of ISO is the ‘Nederlands Normalisatie-instituut’ (NEN), a private, nonprofit organization founded in 1916. Mexico’s Dirección General de Normas (DGN), on the other hand, is part of
the Ministry of Economy and is thus a typical ‘public’ institution.
26
do not constitute barriers to trade. 104 While WTO standards do not constitute TPR, a
relationship with TPR mechanisms does exist.
3.5.2.2.
TPR and the law
The absence of the word ‘law’ in TPR’s name and definition is striking. 105 There is no
exercise of public authority by transnational private regulations. The authority that is
exercised, if any, is private and extends to other private actors in the network or multistakeholder forum. However, because of the effects created, private regulatory governance
challenges conceptions of public authority, legitimacy, and public regulation.106
The connection with legal principles also emerges from the linkages of TPR with public
regulation. According to Cafaggi the public and private spheres are mutually influential in at
least the two ways.107 First, the ongoing debate on the distribution of hard and soft law, as
introduced in this paper, affects the functions of TPR. Second, the development of TPR
affects and reflects the public international regime. Cafaggi puts it this way: 108
When hard law, including international treaties, is in place, private regulation acts as a
complement to specify rules, tailoring them to specific markets, and frequently, formal or
informal, delegation takes place. When soft law is chosen, private regulation mainly
operates as a vehicle to harden soft law, providing binding force. In the former case it
increases effectiveness, in the latter it confers higher legitimacy. Obviously there are
TPR regimes that operate independently from any public regime and they seek
legitimacy on different grounds.109
TPR has introduced different layers of rules that may affect private regulation. First, certain
principles, including transparency, participation, accountability, proportionality, and judicial
review of regulators, are common to both public and private regulation.110 The second layer
of rules, principles concerning only private regulation, is exclusive to TPR mechanisms. A
third layer is sector-specific. Each of the private regimes has adopted its own set of rules. In
addition, TPR is often influenced by the domestic private law regimes in which it operates.111
TPR scholars have submitted that there is a need for greater complementarity between
public legislation and private regulation in order to achieve legal integration.112
3.5.2.3.
The accountability of TPR
Since TPR, in principle, does not entail the exercise of public power, questions on the
accountability of TPR mechanism differ from those that come up when studying the issuing
of public norms. In the latter case, the development of accountability mechanisms is often
considered necessary precisely because non-traditional norms relate to public law and
enforcement mechanisms. While this connection is less obvious when studying private
ordering mechanisms, accountability and legitimacy do matter in this context as well.113
104
http://www.wto.org/english/thewto_e/igo_obs_e.htm (last accessed:17 November 2013).
Compared to the IN-LAW and GAL methodologies referring to law expressly and compared to IPA, which
draws on public law insights.
106
Zumbansen, op. cit., 14.
107
Borowicz, op. cit., at 230.
108
Cafaggi, op. cit., at 23.
109
Id., at 37.
110
F. Cafaggi, ‘Private Regulation in European Private Law’, in A.S. Hartkamp, M. W. Hesselink, E. Hondius, C.
Mak, E. Du Perron, Towards a European civil code, 4th revised and expanded edition, 1184 p.
111
Id., at 37.
112
Cafaggi, ‘Private Regulation in European Private Law’, op. cit.
113
D. Curtin and L. Senden, ‘Public Accountability of Transnational Private Regulation: Chimera or Reality?’,
Journal of Law and Society 2011, vol. 38, pp. 163–188; Y. Papadopoulos, ‘The challenge of transnational private
105
27
Researchers of the TPR project have discussed weaknesses of private regulation in terms of
accountability. Both aspects of internal and external accountability of TPR have formed the
object of research. Concerns stem from the way TPR mechanisms are organized. Privatized
forms of regulation are a top-down form of governance, in which the regulated subjects have
little input into its content or application.114 It has been argued by Curtin and Senden that the
need for democratic accountability, is greater ‘if a regime is or has become more
compulsory, has more external effects, a higher impact on people’s lives, or involves the
exercise of public power or a public function’.115 However, others challenge the premise that
there a useful role for democratic control mechanisms to monitor activities of private
governance bodies.116 Moreover, if it would be accepted that democratic oversight is needed
for private governance mechanisms, practical issues arise. The external accountability of
private regulatory regimes has proven to be hard to organize.
3.5.3. Conclusion
Transnational private regulation comprises norms and standards created by and for private
actors, in a large number of sectors. It emerged first in commercial activities but has grown
beyond being merely a merchant law. With regard to the Flemish region, it is relevant to
study both commercial norm-creation (e.g. the development of tourism standards) as well as
non-commercial norm-creation (e.g. standards set by trade unions, possibly in the
framework of the ILO). Because of high degree of effectiveness, private regulatory schemes
are on the rise, which is reflected in the Flemish context.
The connection with legal scholarship, however, remains challenging. TPR schemes
describe phenomena that are considered outside law by the majority of scholars. TPR
scholars, in contrast, argue that a legal integration needs to take place in global governance.
As such, they have submitted that the current legal framework is inadequate to stimulate the
appropriate use of private regulation. Legal principles may common to both public and
private regulation.
4. INTERNATIONAL GOVERNANCE MECHANISMS
4.1.
Introduction
This overview paper aims to research how legal scholarship has considered non-traditional
norms at the international level. The methodologies introduced above are relatively new.
They are constituted of scholarly answers to changes in international and transnational
regulation by public and private actors. In doing so, the paper largely disregards the actual
creation processes of the norms and guidelines. This section aims to fill this gap by
introducing two governance models that are applied at the international plane.
The creation of international governance mechanisms is by no mean a strictly legal process.
Legal scholarship predominantly focuses on results of the governance processes, i.e. their
output and legal value, as is reflected in studies grounded in methodologies of public
international law, IN-LAW, GAL, IPA and TPR. In the earlier stages of norm-creation, before
output is produced, other disciplines such as economics, statistics, political science,
governance: Evaluating authorization, representation, and accountability’, LIEPP Working Paper, no. 8, February
2013.
114
Kolben, op. cit, at 408.
115
Curtin and Senden, op. cit., at 174.
116
Papadopoulos, op. cit., 15, referring to the work of Cafaggi, op. cit., and F. Vibert, Democracy and Dissent.
The Challenge of International Rule Making, 2011, Edward Elgar Publishers, 272 p.
28
international relations, development studies, and sociology are applied. The role of these
disciplines in lawmaking is recognized by legal scholarship.117 In a same vein, an expansion
of the scholarship on non-traditional law-making in social sciences other than law can be
witnessed.
A first, particular, method that may result in the creation of informal norms is the ‘open
method of coordination’ (OMC). Originally used in the context of the EU 118 , it has seen
practice in a number of international organizations as a voluntary means to regulate
particular issues. Mechanisms that are used to find international agreement consist of
indicators, benchmarking and sharing of best practice. A second is ‘network governance’, a
method used to install informal coordination of economic and agency activity. Both
governance methods are introduced in the following sections.
4.2.
The open method of coordination
Global governance activities increasingly make use of statistical values, rankings and
quantifications to regulate a particular sector. International organizations such as the World
Bank Group,119 the UN120, and the OECD121, effectively turn statistics into governance tools.
In particular, the use and development of indicators has been expanding. The open method
of coordination does not prescribe guidelines, norms or standards to be implemented.
Rather, it organizes policy learning processes and evaluation – making use of benchmarks,
best practices and indicators.122
A considerable number of contributions in academic literature focus on the governance by
indicators method. Indicators can be used, first, to measure governance of global markets123,
such as the food market, making them relevant in the study of WTO standards.124 Second,
indicators are also used to assess the performance of governance processes, be it national
or international ones.125 As such, indicators may also be used as a tool to measure the
performance rates of Flemish governance. Policies will be ranked and classified, which
117
The IN-LAW, GAL, IPA and TPR schools refer to the importance of multi-disciplinary scholarship. The edited
volumes published by the project leaders of these four methodologies, for example, include the work of
economists and international relations specialists. All of them are open methodologies that value the input of
scholars and ideas from a wide range of backgrounds.
118
For further reading, see: Ch. Sabel and J. Zeiling (eds.), Experimentalist Governance in the European Union,
Experimentalist Governance in the European Union: Towards a New Architecture, Oxford University Press, 2010,
368 p.
119
See the World Bank’s Doing Business Indicators, Worldwide Governance Indicators (WGI) project and the
World Bank’s Good Governance and Rule of Law indicators. For further reading, see D. Kaufmann, K. Aart and
M. Mastruzzi, ‘The Worldwide Governance Indicators: Methodology and Analytical Issues’, World Bank Policy
Research Working Paper No. 5430, 2010.
120
In particular in its Millennium Development Goals, see UN, Department of Economic and Social Affairs,
Indicators for Monitoring the Millennium Development Goals - Definitions, Rationale, Concepts and Sources, UN:
New York, 2003, ST/ESA/STAT/SER.F/95, 115 p.
121
See for a case study: A. von Bogdandy and M. Goldmann, ‘Taming and Framing Indicators: A Legal
Reconstruction of the OECD’s Programme for International Student Assessment (PISA)’, in K. Davis, A. Fisher,
B. Kingsbury and S.E. Merry (eds.), Governance by Indicators: Global Power through Classification and
Rankings, 2012, OUP, 504 p.
122
S. Regent, ‘The open method of coordination: A new supranational form of governance?’, European Law
Journal, vol. 9, 2003, at 191.
123
Ch. Sabel and W. Simo, ‘Minimalism and experimentalism in the administrative state’, Georgetown Law
Journal, vol. 100, at 66.
124
T. Büthe, ‘Beyond Supply and Demand: A Political-Economic Conceptual Model of Measurement Standards
for Global Markets’, in ibid.
125
D. Kaufmann, A. Kraay, and M. Mastruzzi, ‘The Worldwide Governance Indicators: Methodology and
Analytical Issues’, World Bank Policy Research Working Paper No. 5430, September 2010.
29
enables the setting up of comparison exercises with other regions or countries. The OECD’s
PISA program is probably the best-known example in Flanders.126
The use of indicators in global governance, however, is not without criticism.127 Researchers
affiliated with the legal methodologies outlined in previous sections, have been particularly
involved. In general, they have questioned the legal impact of the open method of
coordination and its governance by indicators. According to them, the supplementation or
even the replacement of the proclamation of international norms and standards by these
governance methods has insufficiently been accompanied by systematic comparative
studies. When international organizations use indicators, they equally have to uphold
standards of transparency and review procedures while maintaining independence from
national governments by which they might be captured.128
It is here that interactions between legal scholarship and OMC can be discerned. The open
method of coordination even has been termed a process of soft law by some.129 This paper,
however, rather sees it as a soft mechanism that allows for greater coordination and the
cross- border scientific measuring of regulative initiatives. However, the information it
provides, when turned in normative output, likely will be a form of soft law. As such, legal
scholarship has a role to play in scrutinizing this. In 2012, researchers, some of associated
with the GAL and IPA projects, have published an extensive review of the legal and other
implications, possibilities, and pitfalls of governance by indicators.130 The publication brings
together empirical work and theoretical approaches from several disciplines (combining
insights from law, political science, economics, and anthropology). Others, such as legal
scholars Armin von Bogdandy and Matthias Goldmann, have been promoting German public
law thinking and IPA insights to study PISA indicators.131 This method bears resemblance
with IPA approaches. Moreover, defining indicators in legal terms allows for accountability
theories to be applied as well.132
4.3.
Network governance
Governing by networks is a second governance technique that has caught the attention of
multiple of scholarly disciplines. This governance model makes use of existing networks, be
it between public (e.g. agencies) or private actors (e.g. companies). As a distinct way of
governing, it is based on information and knowledge exchanges between and within
networks, which on its turn results in mutual learning and harmonization.
The need for this type of governance results from globally changing realities. The global
market has seen a decrease in the execution of classic functions by national authorities,
increasingly allowing for private actors and interests to perform these.133 On the public side
of matters, we have seen policy domains being integrated as a result of decentralization
126
K. Martens and A. Jakobi, ‘The OECD as an Actor in International Politics’, in K. Martens and A. Jakobi,
Mechanisms of OECD Governance. International Incentives for National Policy-Making?, Oxford University
Press, 2010.
127
See for example: A. Schäfer, ‘A new form of governance? Comparing the open method of co-ordination to
multiple surveillance by the IMF and the OECD’, Journal of European Public Policy, 2006, vol. 13, at 72.
128
Von Bogdandy and Goldmann, op. cit., 2012.
129
Regent, op.cit., at 191.
130
Davis, Fisher, Kingsbury and Merry, op. cit.
131
As previously explained, the IPA project considers PISA a ‘standard instrument’.
132
J. Cohen and Ch. Sabel, ‘Global democracy?’, NYU Journal International Law and Policy, vol. 37, 2004-2005,
at 782.
133
UNIDO and Leuven Centre for Global Governance Studies, ‘Networks for Prosperity: Achieving Development
Goals
through
Knowledge
Sharing,
November
2011,
available
at
http://ghum.kuleuven.be/ggs/documents/papers_reports/unido-report.
30
processes.134 These shifts have affected global governance and demanded an increase in
collaboration between driving actors and across policy fields. Networks have been
established to deal with the communication and cooperation between those actors.
Network governance – installed for economic sectors, organizations or national agencies –
focuses on what it calls ‘instruments’. These instruments may take the form of all kinds of
norms and policies resulting from international alliances. Two features of the instruments
stand out. First, these are soft or non-coercive. Second, if needed, they may be adapted
constantly according to new experiences and learning processes. As such, they allow for a
high level of flexibility.
Political economists and students of international relations have examined international
networks, in international organizations and in the transnational private context, resulting in a
rich body of literature. The aforementioned disciplines have been preoccupied with the
structures, achievements, and influence of networks.135 Political scientists have added the
‘democracy’ dimension to the scholarship by reviewing problems and merits of governance
networks in relation to normative standards of democracy.136 Legal approaches have also
been adopted. 137 The work of Anne-Marie Slaughter remains ground-breaking. 138 She
introduced ‘transgovernmental regulatory networks’ as well as their accountability issues to
legal scholarship. As Slaughter phrased it, ‘[t]he essence of a network is a process rather
than an entity; thus it cannot be captured or controlled in the ways that typically structure
formal legitimacy in a democratic polity’. 139 She took the unorthodox view that
transgovernmental regulatory networks may also be more accountable to domestic
constituencies than traditional IOs. Slaughter’s argument is that in transgovernmental
networks input and output is channelled directly through domestic actors with a shorter
accountability chain back to the people and no independent international body exists to
which authority has been delegated or which could impose its will on participants.140 These
findings have shaped a large part of legal scholarship that emerged later on, in particular in
IN-LAW theories.141
4.4.
Conclusion
This section has briefly introduced two ways in which international cooperation may result in
informal norms and guidelines. The open method of coordination and network governance
are interesting to study as examples of new governance types. In a next step, their output
may be analyzed by legal methodologies. Both governance methods are considered to be
processes, rather than mechanisms. These are tools to improve communication and
harmonization. The goal, as such, is thus different from creating uniform norms or standards.
134
For an overview of transgovernmental network governance, consult: A-M Slaughter and D. Zaring,
‘Networking goes international: An update’, Annu. Rev. Law. Soc. Sci., 2006, vol. 2, pp. 211-229.
135
See: N. Woods and L. Martinez-Dias (eds.), Networks of Influence?: Developing Countries in a Networked
Global Order, OUP, 2009, 256 p.
136
See: E. Sørensen and J. Torfing (eds.), Theories of democratic network governance, Basingstoke : Palgrave
Macmillan, 2007.
137
See: M. Zinzani, Market integration through network governance: The role of European agencies and
networks of regulators, Antwerpen: Intersentia, 2012; M. De Visser, Network-based governance in EC law : the
example of EC competition and EC communications law, Nijmegen: Wolf legal publishers, 2008.
138
A.-M. Slaughter, A New World Order, Princeton University Press, 2004.
139
A.-M. Slaughter, ‘Agencies on the loose? Holding government networks accountable’, in G. Bermann, M.
Herdegen and P. Lindseth (eds), Transatlantic Regulatory Cooperation, Legal Problems and Political Prospects,
Oxford University Press, 2000, at 525.
140
A.-M. Slaughter, A New World Order Chapter, (Princeton University Press, 2004).
141
See e.g. A. Berman and R.A. Wessel, ‘The International Legal Status of Informal International Law-making
Bodies: Consequences for Accountability’, in Pauwelyn, Wessel and Wouters, Informal International Lawmaking,
2012, op. cit.
31
Academic research on the topic has been descriptive and explanatory. Scholarly reviews of
the use of indicators, for example, have predominantly focus on the technique used and how
it can be improved. With regard to networks, attention was paid to the reasons for creating
networks and the relationships between actors. Legal scholarship has only slowly been
identifying OMC and network governance as an area of interest. In the cases where IN-LAW,
IPA and GAL have taken up such interest, emphasis has been put on legal effects and the
alteration of a government’s policies and accountability. However, it can to a larger extent
focus on the legal consequences at various steps in these processes.
5. CROSS-ANALYSIS OF THE DIFFERENT THEORETICAL APPROACHES
The times they are changing and so are governance structures. States, sub-state entities,
and private actors engage in alternative methods to generate international agreement.
Standards, guidelines, indicators, and best practices are created across national borders
and implemented domestically. These evolutions have challenged legal scholarship. The
scholarly approaches to global governance activities introduced in this paper, first, aim to
order transnational regulatory processes. In a second phase, all of these have examined
questions concerning how to keep these activities legitimate, accountable, and democratic.
The present section brings their findings together. It starts with a general reflection on the
embeddedness of the methodologies in multi-level governance.
Research undertakings presented in this paper have a comparable starting point. Their
observations regarding the patterns emerging in global governance are awkwardly similar.
They all focus on particular, often overlapping, and increasingly complex interactions
between States and non-governmental actors.142 In addition, IN-LAW, GAL, IPA and TPR
theories draw on earlier scholarship with regard to multi-level governance (MLG) as a theory
of public administration. 143 Multi-level governance structures have introduced tools to
generate international norms with features that enable norm-makers to grasp the
complexities of today’s world. Indicators or network-processes, discussed above, are good
examples of such instruments that facilitate the harmonization of national or sub-national
rules and policies.
The main challenge for scholars has been to integrate multi-level governance literature in
legal scholarship. This required a certain level of flexibility in applying legal principles and
methods. In addition, it was necessary for legal researchers to recognize less traditional
actors in international legal processes. The latter recognition is of importance to Flemish
regulatory actors. Scholarship has taken an interest in the role Flanders can play amidst
States and private actors, and within international networks. Furthermore, it may serve as a
framework for the activities of the Flemish region at the international and transnational
levels.
Some remarks, however, are in order. First, the methodologies introduced (IN-LAW, GAL,
IPA, and TPR) are relatively new. Research is ongoing and not all issues have been tackled
in sufficient detail. Second, the methodologies differ considerably. Problems are framed
differently and consequently, so are the proposed solutions. Flemish regulatory actors will
not be able to apply a one-size-fits-all framework for all non-traditional lawmaking it engages
in. Rather, all methodologies propose interesting insights. This is especially true for their
common quest to further develop legal mechanisms to control actors, output, and processes.
142
G. Marks, L. Hooghe and K. Blank, ‘European Integration and the State: Multi-level vs. State Centric
Governance’, Journal of Common Market Studies, vol. 34, pp. 341-378.
143
See also: I. Bache and M. Flinders (eds.), Multi-level governance, Oxford: Oxford University Press, 2005.
32
For those reasons, it appears to be useful at this stage of the paper to bring findings together
in a comparative framework. In the next paragraphs, a number of significant (dis)similarities
with regard to scope of research, the stance vis-à-vis PIL, and accountability questions are
highlighted.
First, with regard to the scope, differences have been stressed extensively throughout this
paper: IN-LAW has concentrated on public and informal international norms, GAL on public
and private global administrative norms; IPA on public and private norms through which
public authority is exercised, and TPR on the role of private actors and their regulatory
initiatives. The foregoing leads to clear distinctions. IPA and IN-LAW both stress the
existence of multiple axes to determine global governance activities, such as output, actors,
and processes. 144 Conversely, IPA puts more stress on the output of global governance
activities. In particular whether this output unilaterally can influence individual behavior,
regardless its legally binding force has been centralized in research. IPA and GAL,
furthermore, share their interest in both formal and informal lawmaking at the international
level.
Second, the relationship of the discussed approaches with PIL and its sources doctrine
remains complicated. GAL and IPA have a clear mission to integrate law in the study on
non-traditional norms, albeit focus is on different bodies of law, respectively administrative
law and general public law. The main difference between GAL and IPA, is that the latter
considers international norm-making activities to be part of (international) public law. IPA
treats public law as a unified body of law, albeit with different sub-branches. This is clearly
not how GAL sees administrative law. To the contrary, central to GAL research has been the
search for common principles and standards. IPA, furthermore, considers the impact of
global governance activities (authority) more important than their design (having features
that resemble administrative law). In other words, the ‘concept of law is dissociated from and
complimented by, a concept of international public authority’. 145 When comparing a third
theory, IN-LAW, disagreements are even clearer. IN-LAW has approached the topic from the
research statement that it is exactly the intention of actors involved to avoid formal, legal,
strictures under domestic and/or international law. 146 TPR has the weakest connection to
PIL, as it takes place outside the public sphere. Moreover, there is no common system in
place with principles and values to be used by private actors. An indirect relationship
between transnational private regulation and public international law, however, exists in the
former being a vehicle to harden soft law, without becoming soft law itself.
Third, at the core of all legal scholarship related to non-traditional law are questions
concerning accountability and effectiveness of individual bodies. 147 When studying the
accountability of non-traditional norms, it emerges that a variety of definitions are used by
scholars. IN-LAW and IPA both distinguish between a narrow and a broad definition of
accountability. Both schools rely on the work of Bovens to do so and have advanced that
theory to fit within their observations related to non-traditional lawmaking. IN-LAW scholars
even adapted Bovens’ definition and developed a specific description of accountability in an
informal context. It includes a variety of mechanisms to hold actors to account before and
after informal norms are adopted, which are not necessarily strictly legal.
144
Dann and von Engelhardt, op. cit., at 113.
M.S Goldmann, ‘We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to
International Soft Law’, Leiden Journal of International Law, 2012, vol. 25, pp. 335-368, 338.
146
Borowicz, op. cit., at 241.
147
Global administrative law has been defined as ‘comprising the mechanisms, principles, practices, and
supporting social understandings that promote or otherwise affect the accountability of global administrative
bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision,
and legality, and by providing effective review of the rules and decisions they make’. Id.
145
33
IN-LAW scholars promote open, well-established and participative deliberation processes.
The most important accountability mechanisms, however, surface when international output
is implemented domestically. As such, responsibilities of State and sub-State actors have
been identified to keep informal norms accountable, through parliamentary processes or by
subjecting them to the review by domestic courts. TPR, likewise, observed the importance of
the domestic sphere to hold actors to account for norms produced. Consequently, the
organization of accountability should also take place at the Flemish regional level.
Undoubtedly, certain accountability mechanisms already are established and applied with
regard to non-traditional lawmaking. Within Flemish region, accountability mechanisms exist
that are hierarchal (exercised by supervisors within the agencies), fiscal (exercised by the
Parliament, the Court of Audit), legal (exercised through complaints or by courts).
Specifically, relevant accountability mechanisms for private regulations entering the
domestic level relate to the market itself (share-holders, manufacturers, and consumers) and
peer private standard-setters. Arguably, public reputational control mechanisms have a role
to play as well. Further research is required to study the actual impact and potential of these
mechanisms in relation to the impact of non-traditional norms in Flanders.
The enhancement of legal accountability mechanisms at the international level has been
placed upfront by the GAL and IPA schemes. GAL scholars have been expressly focusing
on the use of administrative principles internationally—think of participatory decisionmaking, transparency, the existence of complaints mechanisms. In this regard, Benedict
Kingsbury has already observed the ‘growing use of publicness criteria in practices of
judicial-type review of the acts of global governance entities’.148 These, however, can to a
greater extent be strived for. Actors in global administrative processes, such as Flemish
agencies in trans-border activities, can make critical contributions to the development of a
legal culture at the international level. This observation is seconded in the writings of IN-LAW
and IPA scholars, although modalities may be described in different terms. IPA, specifically,
has advocated the further development of strictly legal accountability mechanisms at the
international level. At this stage, however, international courts and administrative tribunals
play a moderate role, reviewing only a small number of lawmaking processes and decisionmaking procedures.
The striving for administrative and public law mechanisms to control non-traditional
lawmaking is something Flemish agencies can contribute to. It is important to recall that
accountability must be examined both at the international level and at the domestic level
(taking the form of domestic administrative or political control over the participants in the
process, domestic review and notice and comments procedures before international
guidelines are implemented, etc.). This section has demonstrated how, at both levels,
Flanders has responsibilities in keeping non-traditional norm-making accountable.
148
Kingsbury, 2009, op. cit.
34
6. CONCLUDING THOUGHTS
Scholarship on non-traditional lawmaking is detailed, varied, and complex - mirroring the
object of research. This paper has discussed the development and the main features of
different strands in legal scholarship. Simultaneously, a number of case studies have been
introduced and integrated as examples of theoretical approaches.
The discussed approaches in scholarship look at the variety of actors, processes, and
instruments through which global governance activities take place. An overlap can be
discerned: many case studies can be approached using two or more theories. The main
differences between the approaches are, therefore, not one of scope, but of emphasis. INLAW, GAL, IPA, and even TPR, in the essence, are variations on the same theme: they aim
to order what the current state of the law cannot order. Scholarly writings, as such, aim to fill
a gap in law that is not filled by lawmakers. Consequently, these scholarly insights have
become influential in legal debates.
Scholarship has also attempted to stop the fragmentation that characterizes non-traditional
lawmaking. The introduction of new concepts, new layers of governance, and new
accountability mechanisms makes the study of non-traditional norms challenging, both for
scholars and practitioners. Flemish regulatory agents are confronted with highly complex
matters. Not all concerns presented in this paper can be addressed instantly. A primary
concern, as has been demonstrated by this paper, relates to the control of lawmaking at the
international level that impacts on individuals. It is the responsibility of Flemish regulatory
actors participating in international networks, agencies, and organizations to guard the
democratic quality and the upholding of rule of law standards.
35
PARTNERS
Het
Leuven
Centre
for
Global
Governance
Studies
(www.globalgovernancestudies.eu) coördineert de derde generatie van het
Steunpunt
“Buitenlands
beleid,
internationaal
ondernemen
en
ontwikkelingssamenwerking” voor de Vlaamse Regering. Een Steunpunt heeft als
doel de wetenschappelijke ondersteuning van Vlaams beleid.
Het project brengt 17 promotoren en 10 junior onderzoekers (waarvan acht
doctoraatsstudenten) samen. Het Steunpunt doet aan (a) dataverzameling en analyse, (b) korte termijn beleidsondersteunend wetenschappelijk onderzoek, (c)
fundamenteel wetenschappelijk onderzoek en (d) wetenschappelijke dienstverlening.
We werken samen met een aantal partners: het Antwerp Centre for Institutions and
Multilevel Politics, de Vlerick Leuven Gent Management School en H.U.Brussel.
Binnen de KU Leuven maken ook collega’s verbonden aan de Faculteit Economie,
het Instituut voor Internationaal en Europees Beleid, de Onderzoekseenheid
Internationaal en Buitenlands Recht, het Instituut voor Internationaal Recht, het
Instituut voor Europees Recht en HIVA - Onderzoeksinstituut voor Arbeid en
Samenleving deel uit van het project.
Het onderzoek is verdeeld over vier thematische pijlers: (i) Internationaal en
Europees Recht; (ii) Internationaal en Europees Beleid; (iii) Internationaal
Ondernemen; en (iv) Ontwikkelingssamenwerking.
Bezoek onze website voor meer informatie: www.steunpuntiv.eu
36