CYIL 2014

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW

new, alternative forms of cross-border cooperation.

In many policy fields, moreover,

international institutions have taken up active roles in finding international agreement

through policy processes, while states have been less active in developing traditional

international law.

Second, case studies report that non-traditional norms regulate

individual behaviour and influence national legal systems.

It is broadly accepted that

‘non-law’ stemming from international governance processes may create legal effects

at the international and/or domestic level. Non-traditional norms are used to exercise

regulatory functions that, previously, were considered to be inherently linked to the

function of law in a strict sense of the word. Further research is required to scientifically

measure the concrete impact of non-traditional international law in domestic courts

and regulatory schemes.

Third, a rule of law element pops up. One of the crucial

questions when studying global regulatory processes is how to control these. Research

repeatedly has shown that informal regulatory processes may suffer from accountability

deficits. The absence of judicial review and due process safeguards, even when it is clear

that norms may have a deep impact upon individuals, is striking.

Consequently,

a gap exists in legal research with regard to the conceptualisation and accountability

of non-traditional norms.

3. The study of non-traditional international norms

The approaches discussed above have offered insight into processes that

underlie international lawmaking. Yet, they appear to fall short in grasping the

totality of new regulatory developments at the international plane. The doctrine

of sources of PIL and approaches derived thereof, at least at this point in time,

are unable to assess the complexity of output of public policy processes at the

international plane. As a result, alternative methods have been considered to study

and order non-traditional norms. A vast body of scholarship has emerged to study

the new layer added to normmaking at the global level. The following section

critically discusses four recent methodologies that have attempted to fill the gap in

legal research. All four draw attention to phenomena in global governance that are

considered to be largely neglected by lawyers. Each of them, however, approaches

the problem from a different angle.

Pauwelyn, J., Wessel, R.A., Wouters, J., “When Structures Become Shackles: Stagnation and Dynamics

in International Lawmaking”,

European Journal of International Law

2014 (forthcoming).

Von Bogdandy, A., Dann Ph., Goldmann, M., “The Exercise of Public Authority by International

Institutions”,

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht

, 2010, Vol. 21, No. 1, pp. 3-32.

Von Bogdandy, A., Dann, Ph., Goldmann, M., “Developing the Publicness of Public International

Law: Towards a Legal Framework for Global Governance Activities”,

German Law Journal

, 2008,

Vol. 9, No. 11, pp. 1375-1400.

For example, as done in Benvenisti E., Downs, G., “National Courts, Domestic Democracy, and the

Evolution of International Law”,

European Journal of International Law

, 2008, Vol. 20, No. 1, pp. 59-72.

Von Bogdandy, Dann, Goldmann, op. cit. 21

at 9.