Law of the Future Conference 2011

23 – 24 June 2011 / Peace Palace / The Hague

Informal International Lawmaking

(“IN-LAW”)

Prof. Joost Pauwelyn

Graduate Institute, Geneva

Law of the Future Conference 2011

Project Background

• HiiL: Transnational Constitutionality: Democracy and Accountability in the Context of Informal International Public Policy-Making

• HiiL: Problem-focused – “informality” makes activity fall between the cracks of both international and domestic law controls?

• “New” International Law; “Informal” International Lawmaking

Law of the Future Conference 2011

Project Phases

I: Mapping the action (case studies)

II: Incidence & variance (accountability; effectiveness; domestic dimension)

III: Conclusions & suggestions for reform

Law of the Future Conference 2011

IN-LAW Activities to Date

• HiiL Tender, September 2008• IN-LAW Project starts November 2009• Kick-off meeting, Nov. 2009, Geneva• 1st Workshop, June 2010, Geneva - concepts• 2nd Workshop, Nov. 2010, Leuven - case studies• 3rd Workshop, March 2011, NIAS – case studies

& preliminary assessment• 4th Workshop, June 2011, The Hague

- domestic elaboration & implementation

Law of the Future Conference 2011

What is IN-LAW?

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 other traditional source of international law (output informality).

Law of the Future Conference 2011

« Informal »dispenses with certain formalities traditionally linked to

international law • Output informality

does not lead to a formal treaty or any other traditional source of international law, but rather to a guideline, standard, declaration or even more informal policy coordination or exchange - Less domestic oversight?- Is it even international law?

• Process informalityoccurs in a loosely organized network or forum rather than a traditional international organization (think of the G-20, Basel Committee on Banking Supervision or the Financial Action Task Force, versus the UN or the WTO)- Subject of international law?- Less or more accountable?

• Actor informalitydoes 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. - Subject of international law?- Less or more accountable?

Law of the Future Conference 2011

Main Questions• Move away from law and international organizations?• Why & When? (sociological; tactical; normative)• Not whether IN-LAW “is” law but “regulated by” law

(coercion only through law)• Subject to domestic law controls (problem of external

stakeholders)• Subject to international law controls (problem of

consent; outdated & running behind?)• Blurring of domestic v. international, public v. private

divides• Neglected in legal research, law school curriculum

Law of the Future Conference 2011

Definition of Accountability

• Broad definition: responsiveness (v. disregard) to people (both substantively and procedurally) (Slaughter/Stewart)

• Narrow definition: ex post, institutionalized relation between actor and forum (Bovens)

Law of the Future Conference 2011

Lenses to Assess Accountability• International v. Domestic• Internal (delegation) v. External (participation)• Substantive (output) v. Procedural (input)• Democratic (as virtue) v. Neutral (as mechanism) • Preconditions (transparency) v. Mechanisms (narrow

sense: electoral; hierarchical; supervisory; fiscal & legal) v. Other Accountability-Promoting Measures (broad sense: market; peer; reputation)

• Ex ante v. Ongoing v. Ex post Control• Independence v. Accountability• No one-size fit all (spectrum: deficit – overload)

Law of the Future Conference 2011

Calibrating accountability of IN-LAW

1. Need for accountability rises with impact of IN-LAW

2. Accountability can be organized at different levels, be of different types & require different tools

3. Substantive principles against which to be held to account (universal?)

4. Evaluation frameworks to assess accountability regimes

Law of the Future Conference 2011

Accountability of IN-LAW

• Tension informality & ex post, institutionalized accountability

• Compensated by other, novel mechanisms• Not more but better accountability (deficit v.

overload/effectiveness/independence)(timing, level, relationship, mechanism)

• Internal accountability at international level (to extent de jure

or de facto powers; agency) & especially at domestic level (electoral, hierarchical, supervisory, fiscal & legal)

• External accountability especially at international level (less domestically)

Law of the Future Conference 2011

THE IN-LAW ACCOUNTABILITY TABLE

Accountability at theINTERNATIONAL Level

Accountability at theDOMESTIC Level

IN-LAW network as such

Individual participants

Individual participants

IN-LAW network as such

Toward INTERNAL stakeholders‘law-makers’ part of IN-LAW; delegation model

ICH towards ICH members & their constituencies

(voting, transparency etc. at ICH)

FDA towards US people, other internal stakeholders

(de facto application of US law to ICH)

FDA towards US people; FDA bound to US regulations also for international (ICH) activity

ICH towards ICH members & their constituencies

TowardEXTERNALStakeholders‘law-takers’ affected by IN-LAW; participation model

ICH towards non-members & other affected actors

(Brazil gets voice & input at ICH)

FDA towardsBrazilian people

FDA towards Brazilian people

(open notice & comment procedure in US)

ICH towards non-members & other affected actors

Law of the Future Conference 2011

Effectiveness

• Does cooperation materialize?• Does it stick?• Does it solve the problem?• Does it do so in a cost-effective way?

• Accountability = effectiveness (substantive responsiveness; learning dimension)

Law of the Future Conference 2011

Preliminary conclusions• Variable scale and types of accountability depending on effect• Importance of domestic law & accountability• Complement with international accountability especially toward

external stakeholders• Flexible common law set of principles (procedural & substantive)

to achieve accountability of IN-LAW• Effective IN-LAW more accountable than formal international

law? (informalize formal law rather than formalize informal law)• Adjust notion of “law”? (monist countries; interaction; academic

discipline; law school curriculum)• Whether or not “law”, if IN-LAW affects fundamental rights, must

be controlled “by law”