CYIL 2014

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW

accountable.

At the same time, it was taken into account that escaping these same

formalities is what makes IN-LAW more effective. To cope with this apparent

contradiction, the concept of accountability was re-evaluated. For the purposes of

the IN-LAW project, researchers distinguished between accountability mechanisms

strictly defined, pre-conditions for such accountability, and other accountability-

promoting measures. Research also clarified that a distinction between accountability

examined at the international level (e.g. participatory decision-making, transparency,

the existence of a complaints mechanism at the level of the IN-LAW body), as well

as at the domestic level (e.g. domestic administrative or political control over the

participants in the IN-LAW process, domestic review, and notice and comments

procedures before international guidelines are implemented, etc.) was useful.

Notwithstanding significant efforts made by the IN-LAW scholars, many questions

related to the accountability of IN-LAW remain unresolved. For example, if it is the

very nature of IN-LAW to be informal, how can it include formal, institutionalized

accountability mechanisms?

Moreover, the informality of international instruments

raises the question what

actors

should be held accountable, to whom they must be held

accountable, and who is responsible for holding relevant actors accountable. Given

the informal nature of IN-LAW, especially at the international level, little authority

(if any) is formally delegated. Therefore, internal or delegation accountability is less

likely to play out internationally as opposed to domestically (e.g., domestic regulators

participating in IN-LAW being held accountable by their supervising domestic

ministries or parliaments).

IN-LAW scholars have been looking for ways to reconnect international legal

scholarship with the ‘real world’ and the many interesting informal normative

processes that shape it and make it more interconnected and inclusive. This exercise

is vital given the realities of international cooperation in the 21

century, but far from

obvious to operationalize. Accepting a role for informal processes in lawmaking and

global governance is one thing; assessing the impact of fundamental constitutional

principles (such as accountability) in relation to these processes and their output

quite another. The core difficulty when operationalizing accountability of IN-LAW

bodies is that it may be challenging for any actor to be fully accountable. Solutions

proposed by IN-LAW scholars therefore promote both domestic and international

control mechanisms.

Benvenisti, E., “Coalitions of the Willing and the Evolution of Informal International Law”. In:

Calliess, Ch., Nolte G., Stoll, P. (eds.),

Coalitions of the Willing – Avantgarde or Threat?

, Cologne: Carl

Heymanns Verlag, 2007, pp. 1-23; Kingsbury B., Stewart, R., “Legitimacy and Accountability in Global

Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation

of Administrative Tribunals of International Organizations”. In: Flogaitis, S. (ed.),

International

Administrative Tribunals in a Changing World

, London: Esperia Publications, 2008, pp. 193-220.

Corthaut, T., Demeyere, B., Hachez, N., Wouters, J., “Operationalizing Accountability in Respect of

International Informal Lawmaking Mechanisms”. In:

Informal International Lawmaking

, op. cit. 19,

p. 21-22.

Duquet, S., Pauwelyn, J., Wessel, R.A., Wouters, J., “Upholding the Rule of Law in Informal International

Lawmaking Processes”,

The Hague Journal on the Rule of Law

, 2014, Vol. 6, No. 1, pp. 75-95.