CYIL 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:

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

Pauwelyn, J., Wessel, R. A., Wouters, J., “An Introduction to Informal International Lawmaking”. In:

Informal International Lawmaking

, op. cit. 19, p. 21-22.