ASIL 2018 Recap: Rule-Making By International Organizations

By Caitlin Hunter

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Rule-Making By International Organizations, on Friday, April 6th, explored the key role specialized international organizations play in creating highly influential soft law. A wide variety of international organizations create rules, including:

1. The International Labour Organization (ILO): Tomi Kohiyama (Deputy Legal Adviser, ILO) described how the ILO sets labor standards that protect the basic rights of workers, including their 1998 Declaration on Fundamental Principles and Rights at Work and 2008 Declaration on Social Justice for a Fair Globalization. The ILO standards are routinely incorporated into trade treaties. Additionally, the ILO supervises member states’ reports on their compliance with labor standards. José Alvarez (Professor, NYU Law) said that ILO was also a pioneer in its efforts to challenge state centrality, regulating private organizations and individuals directly through documents such as the Maritime Labor Convention.

2. The International Organization for Standardization (ISO): Mary Saunders (Vice-President for Government Relations and Public Policy, American National Standards Institute) explained that the ISO has developed over 2000 standards, including anti-bribery and social responsibility standards. National standards bodies from over 161 countries participate in creating standards that are designed to function in both mature and developing economies.

3. The World Health Organization (WHO): Both Alvarez and Nicola Bonucci (Director for Legal Affairs, Organisation for Economic Cooperation and Development) noted the influence of WHO guidelines. Although WHO guidelines are not directly binding, they are routinely cited in both national and international adjudication. In particular, WHO guidelines and amicus briefs played a key role in obtaining judgments against Phillip Morris. Fearing a similar negative impact, the sugar industry strenuously attempted to initiate a backlash against WHO sugar guidelines.

4. The Organisation for Economic Co-operation and Development and the International Finance Corporation, which provide guidance on economic and social development issues that include agriculture, the environment, and gender equality.

5. The Basel Committee, which sets widely followed banking standards.

6. The United Nations High Commissioner for Refugees, whose refugee status determinations are binding in all but name.

The panelists made the following points:

1. The distinction between soft and hard law is weakening. Hard law is softening, as treaties increasingly provide non-binding guidelines and allow states to achieve the substantial equivalent of obligations. On the other hand, soft law is hardening due to the increasing organizational obsession with benchmarking. It’s no longer accurate to claim that courts and police are necessary to enforce international law. Monitoring, reporting requirements, peer pressure, and naming and shaming are often (although admittedly not always) effective in ensuring compliance. When advising client or seeking to establish international norms, attorneys must consider both hard and soft law.

2. Inclusiveness is vital to maintaining legitimacy. Many traditional international organizations are not necessarily effective at consulting and informing stakeholders and decisions may be dominated by the stakeholders with the loudest voices. In contrast, ISO strives to include all materially interested affected parties from all of its member states. Standards bodies from developing countries make up the vast majority of ISO members and serve as a key source of ideas. Of course, inclusiveness is not always easy and Saunders acknowledged that some countries were better at getting stakeholder input than others. Likewise, Kohiyama noted that ILO members have a mandate to collaborate but sometimes lack the political will.

3. Responsiveness to change is also vital to maintaining legitimacy. ISO reviews its standards every five years to ensure that they are current. The ILO recently reformed its constitution and standing orders to better reflect the modern world, abrogating obsolete standards for jobs that have not existed since the early 1900s.

4. Coordination between soft law organizations is not always easy. Alvarez noted that international organizations have differing paths and goals and often attempt to defend their turf. He also pointed out that many organizations that create soft law ignore soft norms intended to regulate international organizations. In contrast, Bonucci defended the importance of competition, emphasizing that the free market of ideas creates a wide variety of options.

Clearly, the details of soft law rule-making are continually evolving. Just as clearly, however, soft law is taking on an increasingly important role in international law.

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