CYIL Vol. 5, 2014

SANDERIJN DUQUET – JAN WOUTERS

CYIL 5 ȍ2014Ȏ

3.1 Informal International Lawmaking The concept of ‘informal international lawmaking’ (or IN-LAW) has been introduced by a research project consisting of legal scholars affiliated with the Graduate Institute in Geneva, the Leuven Centre for Global Governance Studies, and the University of Twente and sponsored by The Hague Institute for the Internationalisation of Law (HiiL). In order to be able to describe the precise object of research as well as the notion of informal international lawmaking itself, the researchers adopted a flexible and problem-oriented approach and proposed the following definition: 25 Cross-border cooperation between public authorities, with or without the participation of private actors and/or international organizations, in a forum other than a traditional international organization ( process informality ), and/or as between actors other than traditional diplomatic actors (such as regulators or agencies) ( actor informality ), and/or which does not result in a formal treaty or traditional source of international law ( output informality ). The term ‘informal’ international lawmaking is used in contrast and opposition to ‘traditional’ international lawmaking. IN-LAW is ‘informal’ in the sense that it dispenses with certain formalities traditionally linked to international law. These formalities may have to do with output , process , or the actors involved. First, in terms of output , international cooperation may be ‘informal’ when it does not lead to a formal treaty or any other traditional source of international law, but rather to a guideline, standard, declaration, or even more informal policy coordination or exchange. The focus is on a lack of certain formalities, not lack of legal ‘bindingness’ as such. Second, in terms of process , international cooperation that occurs in a loosely organized network or forum rather than a traditional international organization is considered to be informal. Such process or forum informality does, however, not prevent the existence of detailed procedural rules, permanent staff, or physical headquarters. Nor does process informality exclude IN-LAW in the context, or under the auspices of, a formal organization (for example, the Guidelines for Multinational Enterprises or the PISA standards that are created under the auspices of the OECD). Third, in terms of actors involved, international cooperation is ‘informal’ when it engages ministries, domestic regulators, agencies, sub-federal entities, or the legislative or judicial branch. Private actors may participate in these processes too besides public actors and/or international organizations. Purely private cooperation with no public authority involvement, on the other hand, is not covered by IN-LAW. Research primarily has been occupied with the claim that the informal nature of this type of lawmaking, or, in other words, the ‘circumvention’ of formalities under international and/or domestic procedures results in IN-LAW not being sufficiently

25 Pauwelyn, J., Wessel, R. A., Wouters, J., “An Introduction to Informal International Lawmaking”. In: Informal International Lawmaking , op. cit. 19, p. 21-22.