21 / 532
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.