Informal International Lawmaking

There was a fascinating discussion on Opinio Juris on a book on  "Informal International lawmaking" and its impact on traditional notions of State consent, accountability and international structures.  Initiated by Joost Pauwelyn it raises important questions on the role of the State, private actors, consent and international law making. I found the debate particularly interesting because of the "State-centrality" of WTO and multilateral trade discourse. The thread of the debate is found here. Though I am not discussing the concept of Informal International law making in detail here, the comment of Joost Pauwelyn on the involvement of the State is interesting.

"The real “new world order”, thankfully, includes many actors and interests beyond just bureaucrats and experts.  Governments increasingly lack the knowledge and resources to be effective when operating alone; expert opinions need to be weighed and balanced in a broader public forum. And because of the decreasing cost of participation, the private interests heard are no longer just big industry.  This is where effectiveness and legitimacy can meet.  This is also why e.g. the G-20 and the Internet Engineering Task Force (IETF) – though relying on different legitimacy ingredients – can be studied as part of one broader phenomenon (David’s “policing the borders” point)."

What are the implications of informal international law making on the multilateral trading system? How should dispute settlement mechanisms react to it? Is State centrality in the WTO seriously being challenged by private players and interests? How democratic, representational and accountable are they? Do we need a new model to engage in multilateral trade negotiations and dispute settlement by broadening the scope of State representation? How are democratic politics, accountability and private actor involvement reconciled?