Pauwelyn, Wessel, & Wouters: Informal International Lawmaking: An Assessment and Template to Keep it Both Effective and Accountable

Joost Pauwelyn (Graduate Institute of International and Development Studies - Law), Ramses A. Wessel (Univ. of Twente - Law), & Jan Wouters (Katholieke Universiteit Leuven - Law) have posted Informal International Lawmaking: An Assessment and Template to Keep it Both Effective and Accountable (in Informal International Lawmaking, J. Pauwelyn, R. Wessel, & J. Wouters eds., forthcoming). Here's the abstract:

This paper summarizes the findings of a two-year research project on "informal international lawmaking" (IN-LAW), that is, cross-border normative activity involving non-traditional actors, processes and outputs. We evaluate the likely reasons for the rise of IN-LAW and weigh possible options in response. We then assesses the legitimacy of both new forms of cooperation and traditional international law, also tackling the questions of whether new forms benefit powerful actors and how to keep activity accountable. Finally, focusing on the short to medium term, we question whether some of the new outputs of international cooperation could already be seen as part of traditional international law and how traditional and new forms are (or could be) interacting before international courts and tribunals. In this respect, we propose certain procedural meta-norms against which new cooperation forms ought to be checked, which we refer to as 'thick stakeholder consensus' imposing limits in respect of actors (authority), process, and output. Intriguingly, this benchmark may be normatively superior (rather than inferior) to the validation requirements of traditional international law, coined here as 'thin State consent'.