International Lawmaking by Transgovernmental Networks: Using Domestic Coordination to Address Asymmetries in Participation

Abstract

Drawing on cases from the realm of International Economic Law (IEL), the present article argues that transgovernmental networks that engage in lawmaking induce a hierarchy among states; in this hierarchy, developing countries tend to be placed in a position that is less favorable than if the same discussions were held within 'formal' or 'political' settings. One of the main results of this hierarchy is that transgovernmental networks can serve as vehicles to move international commitments beyond what seems to be acceptable for developing countries at 'formal' institutions.

The present article proposes to focus on an issue that has been neglected so far in debates regarding transgovernmental networks: the effect of domestic-level coordination arrangements on the quality of the participation by a country in a transgovernmental network.

Transgovernmental networks are designed in a way that isolates regulators from the (political) scrutiny of other agencies in their governments. This is because networks tend to limit admission only to regulators (experts) and to operate 'informally' – i.e., at the margins of procedures stipulated by international law. This isolation could be reverted or mitigated by domestic coordination mechanisms, where the external action of the state could be assessed from a broader perspective and defined by the wide range of government agencies that may be affected by a given issue. But these mechanisms are often either lacking or deficient in developing countries, where inter-departmental dialogue is largely absent, as discussed in this article.

Understanding the particular attributes of transgovernmental networks is key to grasp the evolution of international economic law, as a number of 'formal' rules - often adopted following political, inter-sectoral debates - might find themselves altered by decisions taken within a transgovernmental network. This reality is largely absent in the debates concerning transgovernmental networks.

Keywords: International Economic Law, Transgovernmental Networks, Informal Lawmaking