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preoccupation with international courts as main mechanism to hold transnational
actors to account. As Jean d’Aspremont rightly observes:
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Why would accountability be more efficiently achieved if a norm-making process
or an exercise of public authority is brought within the remit of international
law? In other words, why would international law provide a better framework
of accountability since international law lacks binding and generally available
accountability mechanisms?
These questions on the accountability of international courts have only been
addressed in part so far. Where legitimacy deficits in the practice of international
courts have been unfolded, the proposed solutions hinted toward an increased
role for domestic constitutional courts while developing pluralistic accountability
mechanisms at the international level.
49
Similar to IN-LAW and GAL researchers,
students of IPA also acknowledged that these pluralistic solutions may involve
other means than purely legal ones to hold non-traditional lawmakers to account.
Oversight can be organized by combining judicial mechanisms with instruments of
non-judicial review, which can be political, administrative or financial.
50
The legal conceptualization of international public authority offers an interesting
way to integrate legal scholarship and global governance actions. It legitimizes the
use of legal insights and mechanisms. It thereto draws on the functional criterion: if
a formal rule of public and
international law and an exercise of public authority bring
about similar consequences (i.e. they unilaterally impact upon individual behaviour),
techniques and methodologies of the former may be used with regard to the latter
category of norms. Ultimately, however, the IPA framework still struggles to discern
what the elements of public law are that may apply when public authority is exercised
at the international level and how international courts can apply these.
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3.4 Transnational Private Regulation
A final framework presented in this contribution focuses on the involvement of
private actors in international norm-setting. The project on ‘Transnational Private
Regulation: Constitutional Foundations and Governance Design’ (TPR) was set up
to tackle questions on the emergence of mixed (public-private) regulatory regimes
in transnational governance. According to the project’s initiators TPR constitutes:
52
48
D’Aspremont, op. cit. 6, p. 198.
49
Von Bogdandy, A., Venzke, I, “In Whose Name? An Investigation of International Courts’ Public
Authority and its Democratic Justification”,
European Journal of International Law
, 2012, Vol. 23,
No. 1, pp. 7-41.
50
De Wet, op. cit. 46, p. 1988.
51
Goldmann, M., “Inside Relative Normativity: From Sources to Standards Instruments for the Exercise
of International Public Authority”. In: von Bogdandy
et al
., op. cit. 42.
52
Cafaggi, F., “New Foundations of Transnational Private Regulation”,
Journal of Law and Society
, 2001,
Vol. 38, No. 1, pp. 20-49, at 20-21.