Laws As Shackles: Freedom's Antithesis

The phrase when the laws become shackles is used to describe the phenomenon of stagnation in international lawmaking. This stagnation is observed in terms of both quantity and quality, with a shift from formal to informal international lawmaking. This shift involves new actors, processes, and outputs, such as the emergence of transnational networks and a complex knowledge society. While formal international law is based on state consent, informal lawmaking can offer more flexibility and adaptability, but it also raises concerns about accountability and legitimacy. The key challenge is to balance the interests of internal and external stakeholders while ensuring that international cooperation is effective and legitimate.

Informal international lawmaking can be a shackle, limiting freedom

The concept of informal international lawmaking has been critically assessed by Joost Pauwelyn, Ramses Wessel, and Jan Wouters in their book, which was published on 25 November 2012. They define informal international lawmaking as:

> Cross-border cooperation between public authorities, with or without the participation of private actors and/or international organizations, in a forum other than a traditional international organization (process informality), and/or as between actors other than traditional diplomatic actors (such as regulators or agencies) (actor informality) and/or which does not result in a formal treaty or other traditional source of international law (output informality).

The book addresses the question of how to benefit from the effectiveness of informal international lawmaking without jeopardising the accountability necessary in the process of making law.

In their article, "When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking", Pauwelyn, Wessel, and Wouters argue that formal international law is stagnating in terms of both quantity and quality. They claim that it is being superseded by informal international lawmaking, which involves new actors, processes, and outputs. They suggest that the traditional structures of formal lawmaking have become shackles, limiting freedom.

The authors propose that informal structures can also become shackles and restrict freedom. They introduce the concept of "thick stakeholder consensus", which they argue is a normatively superior benchmark to the validation requirements of traditional international law ("thin state consent"). They highlight the need for accountability in informal lawmaking to ensure that it does not limit freedom.

Pauwelyn, Wessel, and Wouters present options for responding to the stagnation of formal international lawmaking and the rise of informal lawmaking. They suggest that international law can either adapt and incorporate new forms of cooperation or entrench itself in traditional typologies. They acknowledge that informal lawmaking can offer legitimate forms of cooperation and challenge the notion that it is inherently illegitimate or undemocratic.

Informal international lawmaking can be a shackle, limiting freedom

While formal international lawmaking is stagnating in terms of both quantity and quality, it is being superseded by informal international lawmaking. This involves new actors, processes, and outputs, in fields such as finance, health, internet regulation, and the environment.

The traditional structures of formal lawmaking have become shackles, and informal structures can also become shackles and limit freedom. Procedural meta-norms are deduced from practice, against which informal cooperation is increasingly checked ('thick stakeholder consensus'). This benchmark may be normatively superior to the validation requirements of traditional international law ('thin state consent').

International law must be kept accountable, and informal lawmaking must be kept accountable through tailor-made accountability mechanisms, especially towards stakeholders not involved in the network but affected by it.

While formal international law is stagnating, informal international lawmaking is the international legal system's dynamic face.

Informal international lawmaking can be a shackle, limiting freedom

The stagnation of formal international lawmaking has led to the rise of informal international lawmaking, which involves new actors, processes, and outputs. This shift has been observed in various fields, including finance, health, internet regulation, and the environment. While the traditional structures of formal lawmaking have become shackles, it is important to recognize that informal structures can also become shackles and limit freedom.

Informal international lawmaking must be held accountable through tailor-made accountability mechanisms, especially towards stakeholders who are affected by it but not involved in the network. Procedural meta-norms, such as "thick stakeholder consensus," are necessary to ensure that informal cooperation is checked and limited. This benchmark may even be normatively superior to the validation requirements of traditional international law, which relies on "thin state consent."

The book "Informal International Lawmaking" by Joost Pauwelyn, Ramses Wessel, and Jan Wouters critically assesses the dangers inherent in informal international lawmaking, including concerns related to accountability, transparency, and effectiveness. It provides a multi-disciplinary analysis by addressing economic, political, international relations, and legal theory perspectives. The book also examines the legal nature and impact of informal international lawmaking at the national and international levels.

Understanding Informal International Lawmaking

Informal international lawmaking can be understood through three axes: output informality, process informality, and actor informality. Output informality refers to novel types of norms, while process informality involves norm-making in networks outside international organizations. Actor informality includes the involvement of public agencies, regulators, private actors, and international organizations in the lawmaking process.

Impact and Accountability

The impact of informal international lawmaking is significant, and it interacts with formal international lawmaking. However, one of the key concerns is ensuring the accountability of this process. The book "Informal International Lawmaking" offers insights into the domestic elaboration and implementation of informal international law, addressing how to balance effectiveness and accountability. It provides a typology of informal international lawmaking mechanisms and their distinct accountability gaps.

While informal international lawmaking can bring flexibility and adaptability, it is crucial to recognize its potential limitations on freedom. To ensure accountability, it is essential to have mechanisms in place, such as "thick stakeholder consensus," which may even surpass the validation requirements of traditional international law.

Informal international lawmaking can be a shackle, limiting freedom

While formal international lawmaking has its own limitations, the rise of informal international lawmaking has also led to concerns about accountability, transparency, and effectiveness. The involvement of diverse actors and the creation of new processes have resulted in a move away from societies of individuals and territorial states towards a network society. This has led to a multiplication of the types of actors and processes involved in cross-border cooperation, challenging the traditional structures of formal lawmaking.

The output or type of cooperation in informal international lawmaking has also changed, with a shift from carefully negotiated and stable treaties to more flexible norms or guidelines. These norms are based on expertise, knowledge, or acceptance by affected stakeholders, and are continuously corrected to adapt to new developments. While informal international lawmaking can offer benefits such as flexibility and adaptability, it is important to ensure sufficient domestic oversight and meaningful participation of all stakeholders to address potential limitations on freedom.

Informal international lawmaking can be a shackle, limiting freedom

International law is stagnating in terms of both quantity and quality. It is being superseded by informal international lawmaking, which involves new actors, processes, and outputs. This form of lawmaking is increasingly becoming a shackle, limiting freedom.

Informal international lawmaking involves cross-border cooperation between public authorities, with or without the participation of private actors and/or international organisations. This takes place outside traditional international organisations (process informality) and involves actors other than traditional diplomatic actors (actor informality). It does not result in a formal treaty or other traditional sources of international law (output informality).

The traditional structures of formal lawmaking have become shackles. Informal lawmaking must be kept accountable through tailor-made accountability mechanisms, especially towards stakeholders not involved in the network but affected by it.

Procedural meta-norms, or 'thick stakeholder consensus', are deduced from practice. This benchmark may be normatively superior to the validation requirements of traditional international law ('thin state consent').

Informal lawmaking can be more accountable and responsive to a broader audience, adapting better to the needs of modern society. It can offer the best of both worlds: norms that are adapted and tested to domestic needs, while avoiding the imposition of externalities on outsiders.

However, the core challenge for new forms of cooperation is taking into account the interests of external stakeholders. Coalitions of the willing may be created, but their impact often extends beyond their membership. Increased participation of external stakeholders is a hallmark of recent reforms.

In conclusion, informal international lawmaking can be a shackle, limiting freedom. While it may offer advantages over traditional international lawmaking, constant vigilance is required to ensure sufficient domestic oversight and meaningful participation of all stakeholders.

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