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NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW
[A] new body of rules, practices and processes, created primarily by private actors,
firms, NGOs, independent experts like technical standard-setters and epistemic
communities, either exercising autonomous regulatory power or implementing
delegated power, conferred by international law or by national legislation.
TPR comprises activities of private actors entrusted to perform public functions,
including regulatory ones.
53
The delegation of these functions, often resulting in
norms that resemble public regulation, links TPR to national and international law.
However, TPR also clearly differs both from public law (it is private) as well as from
more conventional forms of private rulemaking such as private codes on merchant
law (its scope is much broader than private contractual governance). Whereas
conventional private regulation focuses on the private sphere comprised of market
processes, competition law, and deregulation exercises, TPR takes a more inclusive
view on the private sphere.
54
It focuses on self-regulatory regimes and policies created
or steered by NGOs, trade unions, firms, and trade associations creating standards.
In food regulation, one can for example think of the Global Partnership for Good
Agricultural Practice (GLOBALG.A.P.) and the Global Food Safety Initiative (GFSI).
55
TPR may even include activities of multi-stakeholder organizations.
The definition introduced above points out that TPR serves as a response to
trends that have reshaped and are still modifying international law. Private regulation
– although not a new phenomenon – has been growing steadily. Its expansion goes
hand in hand with the reallocation of regulatory power from the domestic to the
global sphere and the redistribution that has been taking place between public and
private regulators.
56
Transnational private regulation is grounded in the idea that
rulemaking is not solely based on states’ formal legislation. Yet, public actors are
not completely excluded from transnational private regulation processes either.
Public actors may accept, apply, and enforce TPR. Cafaggi has explained that states
have a role as ruletakers in addition to their traditional role as rulemakers.
57
This
observation even holds true for intergovernmental organizations in a number of
instances.
58
53
Freeman, J., “Extending Public Law Norms Through Privatization”,
Harvard Law Review
, 2003,
Vol. 116, No. 5, pp. 1285-1291.
54
Cafaggi, F., “The Architecture of Transnational Private Regulation”,
Osgoode CLPE Research Paper
,
2012, No. 20.
55
See for an analysis, Duquet and Geraets, op. cit. 54; Van der Meulen, B., “The Anatomy of Private Food
Law”. In: Van der Meulen, B., (ed.),
Private Food Law
, Wageningen: Wageningen Academic Publishers,
2011, p. 105.
56
See for further analysis: Büthe, T., Mattli, W.,
The New Global Rulers: The Privatization of Regulation in
the World Economy
, Princeton: Princeton University Press, 2011.
57
Cafaggi, op. cit. 51, p. 21.
58
See, for example, the WTO Agreement on Technical Barriers to Trade (TBT Agreement), Article 2.4,
which states: ‘Where technical regulations are required and relevant international standards exist or
their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for
their technical regulations except when such international standards or relevant parts would be an
ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued, for instance