Informal International Lawmaking Research Articles

Informal international law-making: A way around the deadlock of international humanitarian law?

AbstractOver the last two decades, international humanitarian law (IHL) has seen a stalling with regard to States’ willingness to adopt treaties or to be formally involved in the development of IHL. This raises the question of whether holding on to the doctrine of sources as laid down in Article 38 of the Statute of the International Court of Justice is the only way to meaningfully further develop IHL. Indeed, in recent years IHL instruments have often dispensed with certain formalities that are traditionally linked to (the formal sources of) international law; this phenomenon is also called “informal international law-making” (IIL). The present contribution will analyze IIL as an alternative way forward in light of the current “deadlock” caused by States’ unwillingness to conclude new IHL treaties or to recognize customary IHL. In this article, we will investigate and assess the opportunities, shortcomings and pitfalls offered by informality by looking into examples of IIL within IHL. More concretely, we will look into State practice in relation to (1) the Safe Schools Declaration, (2) the Tallinn Manual and Tallinn Manual 2.0, and (3) the Montreux Document. Most importantly, our findings will assess whether IIL can overcome one of its alleged main disadvantages: its lack of effectiveness.

Improving Coherence between Climate Change Adaptation and Disaster Risk Reduction through Formal and Informal International Lawmaking

Abstract Resolutions and other key documents adopted in the last few years by the international community provide that greater coherence and integration between law and policies on climate change adaptation (cca) and disaster risk reduction (drr) can lead to more efficient use of available resources, and more effective action in reducing human vulnerabilities and exposure to climate and disaster risks. Moving from the analytical background provided by the ‘informal international law’ theory (in-law), the purpose of this study is to evaluate how the combination of formal and informal law-making processes affects the coherent implementation of different normative instruments defining the current global agenda on climate risk governance. Normative developments in three different institutional contexts (the Intergovernmental Panel on Climate Change; the UN Office for Disaster Risk Reduction – ‘Sendai system’; and the International Red Cross and Red Crescent Movement) will be assessed, in light of recent developments on the drafting, endorsement and implementation of relevant normative instruments. The analysis will be corroborated by references to the effects that greater synergies between these frameworks can generate at the regional and domestic levels, as demonstrated by evidence collected in three different countries (Fiji, the Philippines, and Dominica) between 2019 and 2021.

The Exercise of Public Authority Through Informal International Lawmaking: an Accountability Issue?

An increasing number of fora and networks have been recognised to play a role in international or transnational normative processes. While lawmaking by formal, intergovernmental international organizations received abundant attention over the past years, we know less about a phenomenon that this paper refers to as ‘informal international lawmaking’ (IN-LAW). Lawyers struggle with the new and extensive normative output in global governance. We nevertheless use the term ‘law’ to connote the exercise of public authority, as opposed to what is often referred to more broadly as ‘regulation’ (covering both public and private regulation). IN-LAW, as we define it, can include private actor participation, but excludes cooperation that only involves private actors. The present paper thus purports to introduce the concept of ‘informal international lawmaking’ and it will present some findings based on case studies in the IN-LAW project related to the reasons for actors to opt for informal lawmaking. We also analyse whether − and to what extent ‒ IN-LAW bodies are subject to some form of accountability and, if so, in what form and at what level. Finally, we will look at some consequences of informal international lawmaking, in particular in relation to the changing role of law in global governance

Rethinking Privacy Online and Human Rights: The Internet's Standardisation Bodies as the Guardians of Privacy Online in the Face of Mass Surveillance

There is a growing literature revolving around the role of non-State actors in the international law-making process. The starting point of this article is that although informal international law-making may not be legally binding, it would be unwise to dismiss it as legally irrelevant. Informal law-making can be relevant with respect to conceptualising and applying existing law, as well as guiding future regulation. The present discussion is placed in the context of cyberspace and, more specifically, the Internet standardisation bodies’ informal law-making functions when creating Internet protocols by setting Internet standards. The article addresses the legitimacy and the ongoing work of the Internet Advisory Board and Internet Engineering Task Force in setting Internet standards with the aim to protect Internet users from mass surveillance and serious threats to privacy online. The article makes two main arguments. First, the effective protection of online privacy cannot be understood only in terms of compliance with legal frameworks but – in practice – that also needs to be secured through technological means. Second, in the area of online privacy informal law-making and international law converge in a distinctive way. Internet standards should not necessarily be seen as “living a parallel life” to law or as displacing or merely complementing the law. Technical standards and international law can actively inform one another and converge in their application. The analysis explores the implications of the Internet’s technical features to policy-making and legal reasoning by discussing State and judicial practice. The article demonstrates how the technical perspective on privacy informs and enriches the manner in which the legal advisor argues about privacy, the legislator articulates the interests at stake and the judge and practitioner interpret and apply international human rights law.

Reforming Rulemaking and Enforcement Mechanisms of International Financial Law

International financial law (IFL) is evolving from a situation of acquiesced anarchy (characterised by coordination dilemmas, compliance gaps and unwarranted independence of regulators) towards a more ordinate and coordinated framework. The conceptual crisis of the New International Financial Architecture (NIFA) and the failure of the system of global division of regulatory labour between international financial institutions (IFIs), international setting bodies and national regulatory authorities have left a vacuum of power and mandate. Hints of a shift in the global governance of financial markets are acknowledged in the reform of the Financial Sector Assessment Program (FSAP) and in the potential role of the Reports on Observance of Standards and Codes (ROSCs), jointly administered by the IFIs. The central role of the Financial Stability Board (FSB) as global coordinator has significantly reinforced the functions of monitoring and rationalizing implementation (i.e., with a creative result) of international regulatory standards, in combination with surveillance mechanisms by the International Monetary Fund (IMF). In addition, FSB’s constituency under the G-20 is likely to render its political mandate as more acceptable by Members and stakeholders. However, although the framework created in the aftermath of the financial crisis may allow for coordinated solutions, effective action by governments is - as a matter of fact - missing. This notwithstanding, IFL has largely achieved authoritative characters, in so far as it can determine outcomes and compel obedience. Proceeding from Ernst-Ulrich Petersmann’s posture that international economic law has failed to effectively protect public values and to ensure participatory democracy and global justice, while international law has historically protected individuals from governmental intervention and power abuse, the legitimacy of IFL is critically investigated. To this extent, the Author addresses the superseded theory of Transnational Regulatory Networks (TRNs), which has been partially resumed by the Informal International Lawmaking (IN-LAW) project, the compensatory approach advocated by the Global Administrative Law (GAL) scholarship, and a democratic-striving approach. The Author eventually resorts to public enforcement remedies by virtue of a renovated role of the intergovernmental (‘ministerial’) cooperation and public international law solutions.

Beyond State Consent? International Legal Scholarship and the Challenge of Informal International Law-Making

The article explores scholarly attempts to come to terms with the phenomenon of informal international law-making in its multiple manifestations. It is shown that efforts to radically depart from the existing framework fail to convince to the extent that they create uncertainty about the distinction between law and non-law. By way of contrast, the article demonstrates that the international legal system contains an array of mechanisms for assimilating new developments, thereby attesting to the normative and explanatory force of theoretical approaches that insist on retaining this distinction. At the same time, it is acknowledged that the question of the normative value of output produced by non-State actors remains open. Attempts to grapple with the question of actor informality by evading State consent are examined and rejected on the basis that they either reproduce the problem of uncertainty, or that they simply rehash familiar patterns. The article draws a distinction between ‘direct’ and ‘indirect’ participation in law-making and exemplifies how non-State actors may indirectly influence norm creation. In doing so, the article confirms that traditional legal thinking may be reconciled with new developments while keeping the fundamental architecture of the international legal system unharmed.

The Institutionalization of a Process

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking

Formal international law is stagnating in terms both of quantity and quality. It is increasingly superseded by ‘informal international lawmaking’ involving new actors, new processes, and new outputs, in fields ranging from finance and health to internet regulation and the environment. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over 40 scholars and 30 case studies, this article offers evidence in support of the stagnation hypothesis, evaluates the likely reasons for it in relation to a ‘turn to informality’, and weighs possible options in response. But informal structures can also become shackles and limit freedom. From practice, we deduce procedural meta-norms against which informal cooperation is increasingly checked (‘thick stakeholder consensus’). Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law (‘thin state consent’).

Upholding the Rule of Law in Informal International Lawmaking Processes

New, alternative, forms of cross-border cooperation, in particular processes of informal international lawmaking (‘IN-LAW’), have emerged and gained prominence since the 2000s in response to an increasingly diverse, networked, and knowledge-based society. This transformation impacts on traditional notions of public international law as well as on the conceptualization of an emerging international rule of law. This is all the more the case given the tendency to emphasise the formal characteristics of the latter. The present article, nevertheless, challenges the assumption that informal international law is, because of its informal nature, by definition incompatible with a rule of law approach. The article thereto re-introduces a negative (shielding society from arbitrariness) and a positive (providing requirements for lawmaking) conception of the rule of law. First, it identifies actors and processes of informal international lawmaking and elucidates the extent of their reliance on legal principles as opposed to the wielding of arbitrary power on the international plane. Second, it operationalises a rule of law approach in the three phases of informal lawmaking processes (lawmaking per se, law-application and accountability). As such, it discusses how a number of concrete rule of law requirements related to participation, procedural guarantees, accessibility of norms, and accountability mechanisms are implemented. To conclude, it is submitted that rule of law theories can be reconciled with IN-LAW, without affecting the flexibility that is fundamental to the non-traditional norms produced at the global level

Review Essay: Pluralism, Informality and Transnational Environmental Law - Beyond Constitutionalism: The Pluralist Structure of Postnational Law, by Nico Krisch Oxford University Press, 2010, 384 pp, £53.00 hb, ISBN 9780199228317 - Informal International Lawmaking, edited by Joost Pauwelyn, Ramses A. Wessel & Jan Wouters Oxford University Press, 2012, 584 pp, £80.00 hb, ISBN 9780199658589

AbstractOver the past years, two important challenges to traditional conceptions of international law have come to the fore: pluralism and informality. Pluralism refers to the fact that global society is characterized by multiple legal systems that frequently overlap. Informality refers to the increasing relevance of non-traditional actors, processes and outputs in the realm of international law. Two recent books provide important contributions to enhancing our understanding of these challenges. In the first book, Nico Krisch presents a powerful plea that in a ‘postnational’ context legal pluralism is to be preferred over its alternative, transferring constitutionalism to the global level. In the second book, Joost Pauwelyn, Ramses Wessel and Jan Wouters offer a collection of essays that seek to further knowledge of the concept, legal nature, impacts and accountability of ‘informal international lawmaking’. In reviewing these two books, this review essay seeks to identify avenues for further inquiry in the area of transnational environmental law.

The G20 and Informal International Lawmaking

In recent years, G20 has emerged as a relatively new, yet influential actor on the world stage which brings together the leaders of the twenty systemically most important economies. Its informality and flexible character warrant the use of the term ‘Informal International Lawmaking’ with regard to this global network. ‘Informal International Lawmaking’ (or “IN-LAW”) comprises of networks of global cooperation that are distinct from ‘traditional’ international law as they display less formal characteristics; the actors are not necessarily diplomats or heads of state, the process is not necessarily structured by formal proceedings and the output is not (always) an internationally binding legal instrument. G20 displays many of these characteristics and, as a result, there are concerns as regards the legitimacy and accountability of the network as an actor in Global Governance. The authors argue that as G20 was never intended to produce international legally binding outcomes, its informality results in a setting where world leaders can discuss global issues without having to fear to be immediately bound by legal commitments. This does, however, not mean that we should disregard the concerns raised as regards the accountability and legitimacy of G20. The authors support the proposed initiatives to create a more structured dialogue between G20 and its Members (the internal stakeholders) and those excluded from the network (the external stakeholders).

The Stagnation of International Law

It is a mantra amongst international lawyers that the field of international law is expanding, exponentially. This trend, also referred to as the legalization of world politics, may have been true until a decade ago. It is highly questionable today. Formal international law is stagnating both in terms of quantity and quality. It is increasingly superseded by “informal international lawmaking” involving new actors, new processes and new outputs. On many occasions, the traditional structures of formal lawmaking have become shackles. Drawing on a two-year research project involving over forty scholars and thirty case studies, this article offers evidence in support of the stagnation hypothesis (section 2), evaluates the likely reasons for it in relation to a ‘turn to informality’ (section 3) and weighs possible options in response (section 4). The international legal order has radically transformed in the past, on all three axes of actors, processes and outputs. The conceptual boundaries of how international law may look in the future are wide open. Crucially, however, also informal structures can become shackles and limit freedom. Informal lawmaking must therefore be kept accountable, through tailor-made accountability mechanisms, especially toward stakeholders not involved in the network but affected by it (section 5). Finally, focusing on the short to medium term, the article questions whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are interacting before international tribunals (section 6). In this respect, it proposes certain procedural meta-norms against which informal cooperation forms ought to be checked, which we refer to as “thick stakeholder consensus” imposing limits in respect of actors (authority), process and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined here as “thin state consent”. In this sense, formal international law is stagnating not only in quantity but also quality.

Is it International Law or Not and Does it Even Matter?

Novel, hybrid and informal ways of international and transnational cooperation have emerged. Can the output of this informal cooperation, outside international organizations, involving state and non-state actors and leading to instruments other than formal treaties nonetheless amount to 'international law'? This paper examines whether 'informal international lawmaking' can still lead to international law. Is there a line or grey zone distinguishing law from non-law? What criterion does international law use to distinguish law from non-law? Who has the capacity to make international law? What is the difference between being law, having legal effects and being subject to law? And, perhaps most importantly, does it still matter whether an instrument is classified as inside or outside international law?

Informal International Lawmaking: Framing the Concept and Research Questions

This paper introduces and frames an ongoing research project on international law-making (IN-LAW). It defines what is meant by informal on three axes: output informality, process informality and actor informality. The core substantive question addressed is how to balance the effectiveness of this new model of international cooperation with perceived problems of accountability. The paper offers working definitions of accountability and different lenses through which levels of accountability can be assessed.

Informal International Law-Making as a New Form of World Legislation?

AbstractLaw-making by formal, intergovernmental international organizations received abundant attention over the past years. The aim of the present contribution is to investigate whether the notion of 'word legislation' would also be appropriate in the case of 'informal international law-making'. It is argued that this could be the case when international public authority is exercised, in which case 'informal' rules have effects similar to domestic legislation.