CYIL Vol. 5, 2014

SANDERIJN DUQUET – JAN WOUTERS CYIL 5 ȍ2014Ȏ preoccupation with international courts as main mechanism to hold transnational actors to account. As Jean d’Aspremont rightly observes: 48 Why would accountability be more efficiently achieved if a norm-making process or an exercise of public authority is brought within the remit of international law? In other words, why would international law provide a better framework of accountability since international law lacks binding and generally available accountability mechanisms? These questions on the accountability of international courts have only been addressed in part so far. Where legitimacy deficits in the practice of international courts have been unfolded, the proposed solutions hinted toward an increased role for domestic constitutional courts while developing pluralistic accountability mechanisms at the international level. 49 Similar to IN-LAW and GAL researchers, students of IPA also acknowledged that these pluralistic solutions may involve other means than purely legal ones to hold non-traditional lawmakers to account. Oversight can be organized by combining judicial mechanisms with instruments of non-judicial review, which can be political, administrative or financial. 50 The legal conceptualization of international public authority offers an interesting way to integrate legal scholarship and global governance actions. It legitimizes the use of legal insights and mechanisms. It thereto draws on the functional criterion: if a formal rule of public and international law and an exercise of public authority bring about similar consequences (i.e. they unilaterally impact upon individual behaviour), techniques and methodologies of the former may be used with regard to the latter category of norms. Ultimately, however, the IPA framework still struggles to discern what the elements of public law are that may apply when public authority is exercised at the international level and how international courts can apply these. 51 3.4 Transnational Private Regulation A final framework presented in this contribution focuses on the involvement of private actors in international norm-setting. The project on ‘Transnational Private Regulation: Constitutional Foundations and Governance Design’ (TPR) was set up to tackle questions on the emergence of mixed (public-private) regulatory regimes in transnational governance. According to the project’s initiators TPR constitutes: 52 48 D’Aspremont, op. cit. 6, p. 198. 49 Von Bogdandy, A., Venzke, I, “In Whose Name? An Investigation of International Courts’ Public Authority and its Democratic Justification”, European Journal of International Law , 2012, Vol. 23, No. 1, pp. 7-41. 50 De Wet, op. cit. 46, p. 1988. 51 Goldmann, M., “Inside Relative Normativity: From Sources to Standards Instruments for the Exercise of International Public Authority”. In: von Bogdandy et al ., op. cit. 42. 52 Cafaggi, F., “New Foundations of Transnational Private Regulation”, Journal of Law and Society , 2001, Vol. 38, No. 1, pp. 20-49, at 20-21.