Non-Binding Instruments and Democratic Accountability
Holly Cullen, Joanna Harrington, Catherine Renshaw (eds), Experts, Networks and International Law (Cambridge University Press), Forthcoming
16 Pages Posted: 9 Jun 2016
Date Written: May 31, 2016
Non-binding recommendations, standards, and guidelines often bring about changes to domestic laws and regulations, even though these instruments only represent political or moral rather than legal commitments by states. Such non-binding instruments are designed to have an impact on domestic legal systems in ways that are functionally similar to binding treaties, despite the fact that they do not require legislative approval, as would be necessary for treaties in most (but not all) democratic states. States are thereby generating international norms that have legal consequences in domestic systems, but they are doing so through non-binding instruments that alleviate the need to seek legislative approval, a process that may be slow, highly political, and generally burdensome. The regular use of non-binding instruments for the creation of international norms raises questions about the political legitimacy of such instruments. Executive-branch officials who negotiate non-binding instruments are seemingly unaccountable to legislatures, which often have a prescribed role in approving treaties. This chapter argues, however, that the loss of accountability that results from the use of non-binding instruments is not as great as it might appear to be at first glance. Oftentimes, an apparent loss of accountability is mitigated by other mechanisms, such as legislative oversight, approval of implementing legislation as opposed to the treaty itself, and public consultation processes.
Keywords: non-binding instruments, democratic accountability
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