CYIL Vol. 5, 2014

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW While this may have resulted in more desirable, detailed and effective regulation, a number of concerns have arisen from a legal point of view: scholars point to the risks of infringements of the principles of the rule of law and good governance and to the uneasy fit of such non-traditional norms within traditional systems of democratic accountability and checks and balances. 5 The present contribution argues that international legal concepts have insufficiently been adapted to fully grasp these exciting developments. Its aim is to provide an overview of the different approaches and methodologies that have been developed in legal scholarship to guide legal research related to non-traditional international lawmaking. Doing so, we build on the work of those who have sought to analyse and categorize the aforementioned non-traditional regulatory practices. We contend that legal scholarship has an important role to play in ordering, explaining, and critically scrutinizing non-traditional international lawmaking and indicate how this role can be further advanced to fully serve this purpose. First, we elaborate on how legal analyses can benefit the study of cross-border cooperation. Second, four approaches that have emerged to study non-traditional international norms will be presented and critically reviewed. a third section makes a cross analysis of the theoretical approaches and their usefulness to contemporary debates. We end with some recommendations for future legal scholarship. 2. Non-traditional norms and traditional international law 2.1 The doctrine of sources of international law The interest of legal scholarship in studying global policy processes, by itself, is odd. It is far from established that norms originating from transnational administrative practices can be regarded as (a form of ) law. 6 Moreover, the type of governance studied in this contribution has moved deliberately away from the rigid framework of sources of public international law (PIL). Indeed, the choice of a soft instrumentum indicates that transnational administrations did not intend for flexible norms, standards, and declarations to create legal obligations under international law. 7 However, while the lion’s share of the output of transnational administrative and policymaking practices is considered to be of a voluntary nature and legally non-binding, uncertainty may 5 Wallach, op. cit. 3. 6 On this debate, see Jennings, R.Y., “What is International Law and How Do We Tell it When We See it?’, Schweizerisches Jahrbuch für Internationales Recht , 1981, Vol. 37, pp. 59-88; Weil, P., “Towards Relative Normativity in International Law?”, American Journal of International Law, Vol. 77 , No. 3, 1983, pp. 413-442; Klabbers, J., “The Undesirability of Soft Law”, Nordic Journal of International Law, Vol. 67, No. 4, 1998, pp. 381-391; D’Aspremont, J., Formalism and the Sources of International Law. a Theory of the Ascertainment of Legal Rules , Oxford: Oxford University Press, 2011. 7 Aust defines an “informal international instrument” as “an instrument which is not a treaty because the parties to it do not intend it to be legally binding”; Aust, A., “The Theory and Practice of Informal International Instruments”, International and Comparative Law Quarterly , Vol. 35, No. 4, pp. 787-812, at 787.