The Interaction of Formal and Informal Lawmaking

Abstract:     
Informal international lawmaking (IN-LAW) is an important and increasingly common phenomenon of contemporary international life. IN-LAW, however, has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. Why would states choose to address any given issue through formal or informal lawmaking – and why might they do both simultaneously? Furthermore, once two or more formal and informal lawmaking processes are underway, how do they interact in practice? To get at these questions theoretically, we develop two distinct theoretical models, one functionalist and the other distributive, and derive predictions about the conditions under which formal and informal procedures interact in complementary or antagonistic fashion. Moving from theory to empirics, we apply the theory to a series of cases, including the regulation of genetically modified foods, the protection of cultural diversity, climate change, humanitarian intervention, intellectual property rights and the legality of nuclear weapons, exploring in each case the motivations of states in establishing formal and informal law-making systems, as well as the complementary or antagonistic interaction of these systems in practice.

Number of Pages in PDF File: 30

Keywords: informal international law, hard and soft law, power and international law, WTO, dispute settlement, prisoners dilemma

JEL Classification: F02, F10

Accepted Paper Series