Almost exactly one decade ago, Law and Contemporary Problems published a highly influential symposium entitled The Emergence of Global Administrative Law. The articles in that issue described rapidly changing patterns of transnational regulation, identified an emerging “global administrative space,” and explored normative questions raised by shifts in authority to transnational administrative processes. At roughly the same time, network scholars described a “new world order,” in which transnational governance networks increasingly conducted regulatory functions across a wide variety of issue areas. Both literatures introduced new conceptualizations of trends in international cooperation and standard-setting.
This symposium’s focus on “international regulatory cooperation” revisits themes explored in the global administrative law and networks literatures. Broadly conceived, international regulatory cooperation consists of arrangements to promote cooperation in the design, monitoring, and enforcement or ex post management of regulation, with a view to supporting the consistency of rules across national borders. The topic has returned to the center of the diplomatic and scholarly agenda, in part as a result of the regulatory failures that contributed to the global recession. Indeed, as this symposium goes to press, the European Union (EU) and the United States are engaged in EU–U.S. Transatlantic Trade and Investment Partnership negotiations, which are focused on promoting regulatory coherence, and a lively debate has emerged over how best to implement an executive order promoting international regulatory cooperation. Thus, this symposium could not be more timely.
The contributions to this symposium substantially advance scholarly understanding of the strategies governments use to promote more consistent and coordinated rules. Notably, although the articles diverge on a number of critical issues, they share a common understanding of the phenomena under investigation. International regulatory cooperation, under this shared view, involves domestic officials from different jurisdictions jointly addressing issues of mutual concern. This activity is characterized as international because it involves activities between or among officials from different states.
Despite the important insights found in these articles, the focus on interactions among domestic regulators from different jurisdictions has the unintended and unfortunate effect of obscuring other important forms of international regulatory cooperation, including, specifically, regulatory interactions among actors from different international organizations and legal regimes. These activities, analyzed in more detail below, are “regulatory” in the sense that they involve sustained and organized efforts to modify the behavior of target actors to advance social or collective ends, through rules or norms and, often, mechanisms of implementation and enforcement. Moreover, these regulatory activities result from “interactions,” meaning they are a product of the myriad ways that international actors and institutions engage with and react to one another.
To be sure, international organizations also interact with firms, nongovernmental organizations, and other civil society actors in ways that produce novel and important forms of regulation. However, in recent years, a large and sophisticated literature has analyzed both hybrid public–private bodies and private transnational regulation. Ironically, the same amount of scholarly attention has not been devoted to regulation resulting from interactions involving more familiar international actors, namely international organizations. The inattention to international regulatory cooperation, however, is particularly significant for several reasons.
First, international regulatory cooperation is commonly used to address a wide variety of issues. In areas as disparate as peacekeeping, fighting HIV/AIDS, monitoring trade in dangerous chemicals, offering debt relief, protecting endangered species, coordinating international criminal enforcement, and providing humanitarian assistance, actors from different international organizations and regimes routinely collaborate to jointly address issues of common concern. As a result, the failure to attend to this activity compromises dominant approaches to conceptualizing international regulatory cooperation. Conversely, attention to the variety, number, and importance of these forms of coordination, collaboration, and, at times, competition among international bodies is essential to understanding the promise and limits of international regulatory cooperation.
Second, the quantity and significance of these forms of international regulatory cooperation will increase, as traditional forms of cooperation— prominently including efforts to create general rules via multilateral treaty—are seen as increasingly cumbersome and ineffective. The rapid rise of new powers has rendered multilateral negotiations more difficult. Moreover, existing international bodies—frequently designed in light of very different distributions of power—are often paralyzed by dysfunctional but difficult-to-change decision making processes. Together, these difficulties contribute to a growing sense that traditional legislative and regulatory mechanisms are unable to meet current needs. As a result, new forms of multi-stakeholder and nontreaty governance are emerging. The impact and reach of the nontraditional mechanisms highlighted here will only increase over time.
Third, the emergence of new forms of international regulatory cooperation raises challenging conceptual, doctrinal, and normative issues. As an analytic matter, what are the drivers, mechanisms, and pathways that determine the frequency and intensity of regulatory interactions? Under what circumstances are interactions likely to lead to cooperative behavior, and when do they lead to competition? How should we characterize, measure, and evaluate the outputs and impacts of regulatory interactions? As a doctrinal matter, what rules govern the production of legal norms through interactions among actors from different international bodies? Are these activities subject to judicial review or to other institutional checks and balances? Finally, as a normative matter, in what sense are norms produced by international bureaucrats legitimate? To whom are actors in different international organizations accountable? What role do power and inequality play in determining whether and how international regulatory cooperation takes place?
Fourth, international regulatory cooperation has not been systematically explored in the scholarly literature. For example, although network theorists have illuminated the informal arrangements created when regulatory officials cooperate with counterparts in other jurisdictions, to date, they have not addressed the network-style interactions that take place among officials from different international bodies. Although some global administrative law writings usefully address interactions among international organizations, this literature rarely, if ever, foregrounds the dynamic, ongoing, relational regulatory interactions detailed below. And, although the literature on regime complexes helpfully describes the institutionally dense environment within which international organizations exist, it has not developed an analytic typology to clarify the various types of interactions that take place. As a result, scholars know little about these actions and their role in contemporary global governance.
This article seeks to extend the existing literature, provide greater analytical traction to the study of international regulatory cooperation than existing approaches do, and advance understandings of how, why, and when international regulatory cooperation occurs. To do so, this article maps the various ways international organizations cooperate, collaborate, and at times, compete in the design, interpretation, and implementation of international rules, regulations, standards, and guidelines. The analysis proceeds in three parts, followed by a brief conclusion.
Part II provides a very short overview of the structural factors that give rise to interactions among international organizations. The article briefly describes a decentralized and fragmented international order consisting of multiple international legal regimes with functional, and at times overlapping, responsibilities. This material will be familiar to many readers, but it provides a necessary background and context for the analysis that follows.
Part III, the heart of the article, develops a preliminary typology of the various ways actors from different international organizations engage in regulatory cooperation. In particular, the article identifies two different axes to categorize these interactions. One axis focuses on the various forms interactions can take, which centers on the activity or function being coordinated. The second axis focuses on the nature of the interaction, which spans a continuum from rationalization of parallel or overlapping efforts, to expansions of powers or jurisdiction, to competitive and conflictual interactions. Considered together, these axes can be conceptualized as a three-by-three matrix that captures much of the universe of international regulatory cooperation. The purpose of illuminating and mapping this world of international regulatory cooperation is not simply to clarify systematically the different modes of interaction. Just as importantly, it is intended to open up a fruitful new research agenda for those who wish to understand and critique this activity.
Thus, part IV, identifies some of the positive and normative issues raised by international regulatory cooperation. As a positive matter, future studies can do much to identify patterns in international organization interactions, including the factors that contribute to successful or unsuccessful international regulatory outcomes and whether they differ across different issue areas. Future research should also explore normative concerns raised by international regulatory cooperation, including issues of accountability and legitimacy, as well as the role of power in shaping the frequency and content of international regulatory cooperation.
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