Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority

Abstract

This article suggests a tentative model for the legal conceptualization of the great variety of instruments by which international institutions exercise public authority, brought to light by the thematic studies of this project. If one were to display this variety of instruments on a scale that ranges from binding international law to non-legal instruments, hardly any thinkable step on this scale would remain empty. Situated at the top end of the scale one would find binding instruments such as international treaties, periodic treaty amendments, decisions on individual cases with binding effect or decisions having the potential to become binding by way of domestic recognition. While these instruments clearly have external legal effects, other instruments seem to be purely internal rules of procedure, although they have in fact considerable repercussions for national administrations. Next come various types of soft, i.e. non-binding legal instruments. Some of these instruments operate in the shadow of binding instruments. Others are kept in purely soft form, like product standards or codes of conduct, but also decisions concerning individuals. In the lower part of the scale one would find instruments containing non-binding rules that are foremost aimed at facilitating consultation, or soft private law instruments. At the bottom end one would discover non-legal instruments that are devoid of any deontic elements, but nevertheless have a high legal or political impact on the affected policy area. Examples of this class of instruments include factual assessment reports, indicators, reports on implementation and compliance, and databases.

For comments on earlier drafts I am grateful to Armin von Bogdandy, Eyal Benvenisti, Giacinto della Cananea, Jan Klabbers, Russell Miller, Christian Walter, as well as the fellow participants in this project and in the German- Israeli Minerva School on Global Public Policy and the Law of International Administration, Tel Aviv, March 2008. I am further indebted to Lewis Enim and Eva Richter for their diligence with language and editing. All errors are mine.