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NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW
project’s founding fathers define the ‘exercise of international public authority’ in the
following terms:
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[A]ny kind of governance activity by international institutions, be it administrative
or intergovernmental, should be considered as an exercise of international public
authority
if
it determines individuals, private associations, enterprises, states, or
other public institutions.
The Heidelberg project is rooted in an observation that in itself does not differ to
a great extent fromwhat IN-LAWandGAL scholarswitnessed: international institutions
play an active and often crucial role in decision-making and policy implementation,
sometimes even impact upon individual and collective liberty.
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Yet, solutions proposed
are very different: IPA aims to apply, to the greatest extent possible, public law insights
to global governance. Doing so, a functional understanding of public law is adopted:
public law deals with public authority.
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As a result, whenever public authority is
exercised, IPA will apply its methodology. IPA studies both traditional and non-
traditional norms at the global level, although it focuses primarily on the latter
category. In addition, non-traditional norms will only be examined under the IPA
scheme if they bring about ‘traditional’ consequences. That is the case if these norms
unilaterally impact upon an individual or a single state’s situation, or, in other words,
if authority is exercised along the same terms as would be the case with public laws
and regulations.
A strong connection exists between public authority and the desire to keep its
exercise accountable. IPA defines public authority as ‘the legal capacity to determine
others and to reduce their freedom, i.e. to unilaterally shape their legal or factual
situation’.
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Obviously, this requires some sort of control to protect individuals against
the improper exercise of power. While competences have shifted from the national to
the transnational and international, this has thus far not been matched by a shift in
accountability relationships.
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IPA scholars propose to organize accountability for the
exercise of public authority, foremost, by using legal principles as benchmarks. IPA
has been particularly interested to study the further development of international
case law, after having observed that legal, ex-post, forms of accountability for
actions of international organizations remain underdeveloped. While this observation
regarding the shortcomings of international adjudication is fair (in relation to both
traditional and non-traditional norms), it is all the more difficult to appreciate IPA’s
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Von Bogdandy, A., Wolfrum, J., Von Bernstorff, Ph., Dann, M., Goldmann, M.,
The Exercise of Public
Authority by International Institutions: Advancing International Institutional Law
. Heidelberg: Springer
Verlag, 2010, p. 5.
44
Goldmann, M., “We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to
International Soft Law’,
Leiden Journal of International Law,
2012, Vol. 25, pp. 335-368, p. 367.
45
Dann, von Engelhardt, op. cit. 34, at 109.
46
Von Bogdandy, Dann, Goldmann, op. cit. 22, p. 1381.
47
De Wet, E., “Holding International Institutions Accountable: The Complementary Role of Non-Judicial
Oversight Mechanisms and Judicial Review”,
German Law Journal
, 2008, Vol. 9, No. 11, 1987-2010.