CYIL 2014

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW

the appropriate use of private regulation. These findings leave TPR students with

a daunting challenge to revise current theories.

4. Four theoretical approaches and their relation to one another

Legal scholarship is progressively attempting to embrace the changes taking place

in global governance structures and the developments in transnational administrative

processes resulting from these. The four theories discussed above, first, aim to order

transnational regulatory processes. In a second phase, all of them have examined

questions concerning how to keep these activities legitimate, accountable, and

democratic. Since the methodologies introduced are relatively new, research is

still ongoing. Not all issues have been tackled in sufficient detail and considerable

differences are to be discerned: problems are framed differently and, consequently,

so are the proposed solutions. The awakening of legal scholarship has not resulted

in a ready-made, let alone be a one-size-fits-all framework for all non-traditional

lawmaking. Rather, the scholarship has been explanatory and has proposed guidelines

in a dispersed manner. It is high time that the various approaches start interacting

more thoroughly with each other and that the respective merits and limitations

of each of them be critically assessed. Without any attempt at completeness, it is

worthwhile to point to a number of significant (dis)similarities with regard to scope

of research, the stance vis-à-vis PIL, and accountability questions.

First, with regard to the scope, each of the methodologies appears to have

a particular focus: IN-LAW concentrates on public and informal international norms,

GAL on public and private global administrative norms, IPA on public and private

norms through which public authority is exercised, and TPR on regulatory initiatives

of private actors. This culminates in clear distinctions. IPA and GAL share an interest

in both formal and informal lawmaking at the international level. GAL and IN-

LAW both employ multiple axes (output, actors, and processes) to determine global

governance activities. Conversely, IPA emphasizes the output of global governance

activities whereas the public or private nature of an actor is a determining criterion in

the TPR scheme. Across the methodologies, the central research question is to what

extent output unilaterally can influence individual behaviour, regardless its legally

binding force.

Second, the relationship of the four discussed theories with PIL and sources

doctrine remains complicated. GAL and IPA have a clear mission to integrate law

in the study on non-traditional norms, although their focus is on different bodies of

law (respectively administrative law and general public law). Whereas GAL stresses

the features of transnational policy-making that resemble administrative law, IPA,

conversely, considers the impact of global governance activities (authority) more

important than their design. In other words, in IPA the ‘concept of law is dissociated

from and complimented by, a concept of international public authority’.

When

comparing a third theory, IN-LAW, disagreements are even clearer. IN-LAW

Goldmann, op. cit. 43, p. 338.