LOTF2011 | Ramses A. Wessel

Law of the Future Conference 2011

23 – 24 June 2011 / Peace Palace / The Hague

Prof. Ramses A. Wessel

wrapping-up: informal international law-making as

the law of the future?


HiiL’s Law of the futureoGlobalisation affects societies and, with

that, the way in which legal systems function and interact

oPredictability and certainty as a function of law

o Towards a global legal environment: the mechanisms underlying authoritative rule-making, rule-enforcement, and dispute resolution beyond national borders

o Two major shifts in the global legal environment

• From a predominantly national to a predominantly international legal environment

• From a predominantly public legal regime to a mixed public-private regime or even predominantly private regime


HiiL’s Three Scenarios

o Global Constitution | An expansion of international rules and institutions, of a predominantly public nature.

o New Legal Borders | If the process of expansion of international rules and institutions reverses, we may expect a thickening of legal borders, dominated by state-made law (at national or regional level).

o Legal Internet | International rules and institutions can also further expand as part of a process of shifting emphasis from law created and enforced by state-connected institutions to private governance mechanisms and private legal regimes. If they do, the global legal environment will be characterised by a growing body of international rules and institutions with an increasingly public-private or even private nature.


IN-LAW: an additional scenario?

o To what extent do the findings in the IN-LAW project fit the LOTF scenarios?

o IN-LAW is about:– the “organization of global rulemaking”– the emergence of regulatory networks and

‘international agencies’• regulation beyond the state

– the impact of new normative processes on States and even on individuals and businesses

– A reassessment of international law• lawyers “continue to pour an increasingly rich

normative output into old bottles labeled ‘treaty’, ‘custom’, or ‘general principles’” (Alvarez)


Informal international law-making (IN-LAW)

o Informal?– The informality is related to (and/or) output,

process or actors involved

o International?– Transnational, ‘beyond the state’

o Law-Making?– the presumption is that the international

cooperation, albeit less formal, falls within the remit of international law

– The question is whether it concerns an exercise of international public authority (Von Bogdandy et al)


Reasons for Informal International Law-MakingIN-LAW perceived as ‘second best’

o Formal law-making is ‘too burdensome’

o Formal law-making is ‘un-attainable’

o Formal law-making is ‘technically impossible’

o IN-LAW to favour the powerful

o IN-LAW to counter formal law-making


Reasons for Informal International Law-MakingIN-LAW Perceived as ‘First-Best’

o IN-LAW as ‘cheaper’ alternative to achieve the same goal

o Formal law-making as ‘outdated’

o IN-LAW as a ‘cultural practice’ (the Asian Way)

o IN-LAW as a ‘technical necessity’


Public? Private? The exercise of public authority

o The ‘exercise of international public authority’– “any 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”.

o ‘Authority’ – “the legal capacity to determine others and to

reduce their freedom, i.e. to unilaterally shape their legal or factual situation”


AssessmentoDo lawyers need to rethink certain

traditional aspects of international law (sources, actors)?

o In many cases international public authority is exercised through ‘unconventional’ international cooperation

oQuestions related to legitimacy and accountability; for lawyers ‘constitutional questions’ (cf. GAL and international constitutionalism, pluralism)– It is clear that there is no way back and that

‘global governance’ developed, either in the shadow of existing arrangements, or simply ‘bottom up’ through cooperation between national regulators.


Does IN-LAW fit the LOTF scenario’s?o Starting points in scenario 1 (global

constitution):–A continued growth of international law

and international legal institutions. The rules and institutions have a predominantly public nature.

o IN-LAW fit: yes, but the focus should be more on informal institutions than on formal organizations. Not so much a development towards a ‘global EU’; rather a more fragmented set of different regulatory regimes


o Starting points in scenario 2 (new legal borders):– The process of the expansion of international

rules and institutions reverses and legal borders thickens. Those borders will almost by definition be dominated by state-made law. Regional organisations emerge as a key part of developing legal borders to insulate against the global legal environment that has developed to date.

o IN-LAW fit: no. IN-LAW points to an increase of international rules and institutions, albeit that the actors, process and output differs. This happens both at regional levels and at the global level. State-made law will be less dominant


o Starting points in scenario 3 (legal internet):– A growth of international rules and institutions,

which go hand in hand with a growing dominance of public – private or even private governance mechanisms.

o IN-LAW fit: yes. But not all private mechanisms are relevant. IN-LAW takes the ‘exercise of public authority’ into account and has an eye for the law-making process. It also raises questions related to the (changing?) sources of international law


EMERGING QUESTIONS

o IN-LAW may be seen as fitting most parts of the scenarios

o But:– What about HiiL’s focus on formal international

organizations, including the UN as a global EU– Do we need to rethink international law-making

(process, actors, output)– Isn’t it more about the exercise of ‘public

authority’ than about a private/public divide?– Do we need to rethink the sources and subjects

of international law– What about (domestic) accountability measures

in relation to IN-LAW

LOTF2011 | Ramses A. Wessel

Documents

future conference

global legal

predominantly

private governance

international

informal international

legal borders

public authority