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The Legitimacy of IO Rule-Making

Published online by Cambridge University Press:  22 March 2019

José E. Alvarez
José E. Alvarez*
Affiliation:
New York University School of Law.
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Extract

The rules international organizations (IOs) make deviate considerably from the traditional sources of international law in Article 38 of the International Court of Justice's (ICJ) Statute and the ways those are understood: as generated, enforced, and interpreted by states based on their consent. As this panel demonstrates, IO “rules” take various forms—e.g., guidelines, recommendations, and standards—and are promulgated by not only traditional interstate organizations but public/private hybrids, transnational networks involving agencies inside states, private associations of industry or other experts, or subsidiary committees of the parties (COPs) or meetings of the parties (MOPs). These rules enjoy varying degrees of authoritativeness, often purport to have some impact on state and non-state actors, and depart, sometimes quite openly, from reliance on state consent. And even when IOs turn to the traditional sources—treaties, custom, general principles—these take untraditional forms that blur distinctions between binding and non-binding law. Whether these governance efforts are described as systems of “global administrative law,” “global constitutionalism,” or “transnational legal orders” or as new forms of “international public law,” they are certainly different from your grandmother's public international law. Like “soft” law before it, these governance efforts have drawn the ire of legal positivists who ask, with some justice, what is meant by “law” if everyone (public, private, and in-between) is a potential “lawmaker” and no one can be certain about whether their efforts entail legal responsibility and, if so, for whom.

Type
Rule-Making by International Organizations
Information
Proceedings of the ASIL Annual Meeting , Volume 112 , 2018 , pp. 275 - 278
Copyright
Copyright © by The American Society of International Law 2019 

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Footnotes

This roundtable was convened at 3:00 p.m., Friday, April 6, 2018, by its moderator, Gian Luca Burci of the Graduate Institute of Geneva, who introduced the panelists: José Alvarez of New York University School of Law; Nicola Bonucci of the Organisation for Economic Co-operation and Development; Tomi Kohiyama of the International Labour Organization; and Mary Saunders of the American National Standards Institute.

References

1 See, e.g., Kingsbury, Benedict, Kirsch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 L. & Contemp. Prob. 15 (2005)Google Scholar; Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer eds., 2015); The Exercise of Public Authority by International Institutions (Armin von Bogdandy, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann & Matthias Goldmann eds., 2010). See generally, José E. Alvarez, The Impact of International Organizations on International Law (2017).

2 See, e.g., Mallard, Grégoire, Governing Proliferation Finance: Multilateralism, Transgovernmentalism, and Hegemony in the Case of Sanctions Against Iran, in Oxford Handbook on International Economic Governance (Brousseau, Eric, et al. eds., 2017)Google Scholar.

3 See, e.g., Pauwelyn, Joost, Wessel, Ramses A. & Wouters, Jan, When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking, 25 Eur. J. Int'l L. 733 (2014)CrossRefGoogle Scholar.

4 See, e.g., Abram Chayes & Antonia Chayes, The New Sovereignty (1995); de Búrca, Gráinne, Human Rights Experimentalism, 111 AJIL 277 (2017)CrossRefGoogle Scholar.

5 See, e.g., Druzin, Bryan H., Why Does Soft Law Have Any Power Anyway?, 7 Asian J. Int'l L. 361 (2017)Google Scholar.

6 See, e.g., Howse, Robert & Teitel, Ruti, Beyond Compliance: Rethinking Why International Law Really Matters, 1 Glob. Pol'y 127 (2010)Google Scholar; Goodman, Ryan & Jinks, Derek, How to Influence States: Socialization and International Human Rights Law, 54 Duke L.J. 621 (2004)Google Scholar.

7 See, e.g., Kennedy, David, Challenging Expert Rule: The Politics of Global Governance, 27 Sydney L. Rev. 2 (2005)Google Scholar.

8 See, e.g., Alvarez, José E., International Organizations and the Rule of Law, 14 N.Z. J. Int'l L. 3 (2016)Google Scholar.