Informal International Lawmaking: An Assessment and Template to Keep it Both Effective and Accountable
INFORMAL INTERNATIONAL LAWMAKING, J. Pauwelyn, R. Wessel, J. Wouters, eds., Oxford University Press, 2012
Posted: 16 Mar 2012
Date Written: March 15, 2012
This paper summarizes the findings of a two-year research project on "informal international lawmaking" (IN-LAW), that is, cross-border normative activity involving non-traditional actors, processes and outputs. We evaluate the likely reasons for the rise of IN-LAW and weigh possible options in response. We then assesses the legitimacy of both new forms of cooperation and traditional international law, also tackling the questions of whether new forms benefit powerful actors and how to keep activity accountable. Finally, focusing on the short to medium term, we question whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are (or could be) interacting before international courts and tribunals. In this respect, we propose certain procedural meta-norms against which new 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'.
Keywords: informal international lawmaking, private regulation, soft law, legitimacy, accountability, state consent, fragmentation, international courts and tribunals
Suggested Citation: Suggested Citation