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This chapter, addressed primarily to legislative bodies considering repealing or enacting common law marriage or other cohabitation legislation, discusses the reasons that support these legal solutions and considers which may be relevant in the future. It attempts to objectively present and critically examine the arguments both for and against common law marriage and other cohabitation legislation, primarily for the purpose of giving legislators and policymakers a basis for future assessments.

Offering a law and economics perspective, this chapter uses the database of US ‘international agreements’ (defined in the US Case Act as legally binding agreements other than ‘treaties’ in the sense of Article II:2 of the US Constitution) to analyse to what extent we can see an increase of informality away from formal treaties (in the sense of the US Constitution) to international agreements (who remain binding under international law but do not require advice and consent by the US Senate by a two-thirds majority). More broadly, the chapter analyses from an economic perspective, the choice between formal and informal international lawmaking (IN-LAW) by a traditional actor: the State. It is argued that the emerging picture is at best mixed. Informality differs over time and largely depends on the subject area.

Informal international Lawmaking (IN-LAW) has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. This implies that, in studying the impact of IN-LAW, the interaction between formal and informal law should be taken into account. This chapter raises two sets of questions. First, why would States choose to address any given issue in a formal or an informal lawmaking setting — and why might they do both simultaneously? Second, once two or more formal and informal lawmaking processes are underway, how do formal and informal law and lawmaking interact in practice?

By drawing some general lines with regard to the implications of informal international lawmaking (IN-LAW) for the further development of international law, this chapter raises the question of whether IN-LAW can be seen as part of a broader set of phenomena indicating the stagnation, rather than the further development, of international law. As insiders looking at new players joining the scene, international lawyers have focused their attention on whether these new forms are legitimate or even law in the first place. What has been neglected is an internal reflection on what these new forms tell us about traditional international law. It is argued that there is a need to reassess some of the fundamental starting points in traditional international law. If we want to keep both the field and its students sociologically relevant we will need to look beyond the four corners of traditional actors, processes, and outputs.

This chapter addresses one of the fundamental issues in the research on informal international lawmaking (IN-LAW): ‘Is it International Law or Not, and Does it Even Matter?’. The universe of norms is larger than the universe of law. At the same time, within the realm of law, not all law imposes or proscribes specific behaviour or legally binding ‘rights and obligations’. The question of the distinction between ‘law’ and ‘non-law’ has kept legal theorists busy for ages, but it continues to pop up when lawyers feel the need to mark their territory. The main question raised (and answered) in this chapter is whether ‘output informality’ implies that IN-LAW output is not international law.

Informal international lawmaking is informal in the sense that it dispenses with certain formalities traditionally linked to international law. This chapter introduces and frames the topic and lays down the conceptual basis for research on informal lawmaking. It defines the notion of ‘informal international lawmaking’ (IN-LAW) — as it is used throughout this book — by pointing to a number of characteristics. To which extent is it different from ‘soft law’ or ‘global administrative law’? The argument developed is that — although elements of the traditional debates are quite helpful in understanding informal international law — the complexity of the notion requires a broader perspective which takes into account output, process, and actor informality. The chapter also defines the IN-LAW project’s approach to, and definition(s) of, accountability and effectiveness, and provides the argumentation for the case study selection.

The question of the ‘uniqueness’ of informal international lawmaking (IN-LAW) is essential in assessing whether it is someting new. This chapter points to a clear relationship with other concepts and projects that have recently received abundant attention in the literature, including the Global Administrative Law initiative based at the New York University (NYU) School of Law, and the Heidelberg project on the exercise of international public authority (IPA). The chapter reveals the common basis of the different approaches (dealing with the conceptualization of the variety of actors, processes, and instruments through which global governance activities take place), and uses this comparison to raise the question of how the three legal approaches conceptualize and ultimately harness ‘accountability’ in response to the legitimacy deficits of global governance.

Accountability requires some yardstick, and in the conduct of global affairs the most obvious yardstick is that of international law. This chapter discusses the position of international courts and tribunals in respect of informal international lawmaking (IN-LAW) instruments. In doing so, the chapter empirically tests the plausibility of what is termed ‘presumptive law’, the argument being that in international affairs, emanations that are of normative significance and that are based on some form of consent by the relevant actors, must be presumed to be legally binding, if only because the alternative (non-bindingness) makes no sense. The chapter tests this assumption on the basis of case law of the International Court of Justice, complemented by some references to decisions of the European Union’s courts and the non-compliance procedure set up under the Kyoto Protocol.

Informal lawmaking is characterized by an involvement of non-traditional actors. This chapter analyses actor informality by looking at two key forms: ‘international agencies’ and ‘harmonization networks’. International agencies are international bodies that are based on a decision by an international governmental organization. Harmonization networks are international networks of national public regulatory authorities that are in the business of harmonizing their rules or setting standards or other norms. The purpose of the chapter is to define the status of bodies involved in informal international lawmaking (IN-LAW) and to argue why clarity about legal status is important in relation to the question of accountability.

This chapter aims to map the different informal lawmaking mechanisms and to distinguish among the various actors that initiate and take part in informal international lawmaking (IN-LAW). The purpose of his exercise is to contribute to the assessment of possible ‘accountability gaps’ of IN-LAW, by taking into account the notion that different lawmaking mechanisms may benefit certain actors and constituencies while they disadvantage others. Who are the disregarded constituencies whose accountability deficit must be accounted for? And how can we address the accountability gaps of the IN-LAW processes?

This chapter assesses whether — and to what extent — informal international lawmaking (IN-LAW) mechanisms are subject to some form of accountability and, if so, in what form. This chapter is used to operationalize accountability within the IN-LAW framework. The authors pinpoint some of the structural weaknesses when it comes to accountability of IN-LAW mechanisms, both at the level of the mechanism as such, and the accountability of the actors that operate within them. The chapter suggests ways to strengthen IN-LAW accountability.

Answers to the question of the accountability of actors involved in informal international lawmaking (IN-LAW) can be found (also) at the domestic level. Focusing on Swiss law, the chapter shows how domestic law has introduced various mechanisms to ensure their legitimacy and control. The chapter reveals that as a result of these developments accountability mechanisms have gradually formalized non-binding acts, so that they are no longer merely informal themselves. The chapter’s starting point is that since accountability is called for when States use non-binding acts to shape the behaviour of individuals, the same is required also in respect of IN-LAW which has similar effects.

While to lawyers — trained to think in terms of neatly separated legal boundaries — governance phenomena and transnational relations may feel uncomfortable, international relations (IR) theory has addressed transnational, non-State, cooperation from the outset. This chapter argues that IR scholars have to some degree overlooked the changing character of network-based informal cooperation among public actors. It seeks to fill this gap by proposing a typology of bodies involved in informal international lawmaking. The chapter further reveals some lessons to be learned from IR theory, particularly the principal-agent model, for informal international lawmaking (IN-LAW).

This chapter departs from the presumption that informal international lawmaking (IN-LAW) is law. What arguments does legal theory offer when we indeed wish to include the IN-LAW processes in our legal thinking? Using institutional legal theory, the chapter asks whether it is not possible (or perhaps even more logical) to view the prima facie non-legal phenomena as law. Using one of the case studies as and illustration, they argue that we may need to reassess the sources of international law to the extent that consensus within an international professional community on the best available knowledge and expertise can offer a foundation for legal powers to issue hortations enjoying validity under international law.

This chapter aims to warn us that international legal scholars studying the normative activities taking place outside the traditional remit of international law are often induced to loosen their concept of international law with a view to broadening the span of their discipline. In the view expressed in this chapter it is not needed or even preferred to attempt and encompass all ‘new’ normativity in legal terms. ‘[W]hy not com[e] to terms with the interdisciplinarity of such an endeavour and recognize that, even as international legal scholars, we can zero in on non-legal phenomena without feeling a need to label them law’. It is argued that the aim of the informal international lawmaking (IN-LAW) project should not be to stretch the boundaries of law.

This chapter evaluates the impact of transnational regulatory networks on the basis of a case study on the International Competition Network (ICN), an extensive but highly informal network, which was set up particularly since States could not agree on a formal legal antitrust regime. The chapter assesses whether we can nevertheless observe the emergence of alternative norm-enforcement mechanisms and the formalization of certain tools of learning or knowledge transfer. If anything, the chapter reminds us of the limits of informal international lawmaking (IN-LAW) and the need, in particular subject areas, for more formal commitments if cooperation is to be effective.

In addressing the ‘two-way’ street as an essential characteristic of informal international lawmaking (IN-LAW), this chapter analyses the role of domestic public authorities within global networks. According to the chapter, the very idea of IN-LAW cannot be understood without considering the interplay between national and global actors. The chapter thus examines how public bodies (referred to as domestic ‘terminals’) take part in the global networks and how this participation affects domestic legal orders. Many of the global networks are in fact hybrid public-private networks and the role of private actors is obvious. Two main issues guide the analysis: the institutional and procedural design of global networks, especially in terms of their domestic dimension; and the existing accountability and review mechanisms.

The actual role domestic courts can play in relation to informal international law partly depends on the way these rules are (to be) implemented domestically. Some informal international law (IN-LAW) instruments are far more complex, also in relation to their domestic implementation, than formal international agreements and decisions. One particular example is formed by the Basel II Accord on banking supervision. As indicated by the chapter, Basel II is a central case of IN-LAW. It is informal along all three dimensions identified in the first chapter of this Volume: it is a non-binding policy framework, rather than a treaty; it was adopted by the Basel Committee, a transnational regulatory network; and national banking regulators, rather than traditional diplomatic actors, were the principal participants. In the absence of formal accountability regimes at the level of the Basel Committee, the chapter investigates whether domestic oversight compensates for this ‘accountability deficit’.

In the framework of the informal international law (IN-LAW) project, this chapter examines the role domestic administrative law may or should play in the accountability of Transnational Regulatory Networks (TRN). Many TRNs are composed of domestic regulatory authorities, which triggers the role of domestic administrative law in the accountability of TRNs. The chapter develops an analytical framework which is applied to a case study of the International Conference on the Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH) examined from a US administrative law perspective. It is argued that domestic law is significant in establishing the accountability of TRNs towards internal stakeholders, and has some role to play, albeit limited, in offsetting the problem of disregard towards external stakeholders.