1. Introduction
1.1 Background
‘It does not encourage migration, nor does it aim to stop it. It is not legally binding. It does not dictate. It will not impose. And it fully respects the sovereignty of States.’Footnote 1 Such reassuring statements appeared repeatedly in the later part of 2018 when the Global Compact on Safe, Orderly and Regular Migration (GCM) was about to be adopted.Footnote 2 The GCM, which had been negotiated in a routine manner, was suddenly facing intense opposition. Particularly anti-immigration groups and media began to claim that this ‘UN’s Sinister Blueprint for Globalist Migration Hell’ was a treaty in disguise and restricting the sovereignty of states,Footnote 3 despite its explicit non-legal bindingness.Footnote 4 This led many to question whether the GCM should have been submitted for parliamentary approval.Footnote 5
Several states abandoned the GCM, citing its potential effects and restrictions on sovereignty as their motivation.Footnote 6 Yet it appeared that the reassurances on the non-bindingness and harmlessness of the GCM had been successful in keeping most states on board. On 10 December 2018, 164 states adopted the GCM. Nine days later in the UN General Assembly (UNGA), 152 states endorsed the GCM, with five states voting against, and 12 abstaining.Footnote 7
The ‘non-binding, no worries’ argument was a logical answer to the misguided claims about the formal status of informal international instruments. What the argument did not do, however, was answer three questions: what effects may informal instruments produce, do they give reason for concern from the perspective of constitutionalist democracy, and if they do, what can be done to legitimize the instruments? This is where the article embarks on its analysis of the relationship between democracy and non-binding international regulation.
1.2 Purpose and approach
This article analyses the effects and legitimacy of informal international instruments. Informality is defined as dispensing of the traditional formalities of law-making.Footnote 8 Understood broadly, informality can cover non-state regulation by private actors and by international organizations.Footnote 9 This article, however, focuses specifically on intergovernmental instruments.
The premise of the article is that governance should rest on democratic principles to be legitimate.Footnote 10 Above all, people should have ways to influence decisions that affect their lives by participating themselves or by having their interests accommodated in decision-making.Footnote 11
Informal instruments are problematic from this perspective. Whereas in many democracies, treaties maintain some connection with the people through parliamentary approval, informal instruments are generally not approved. As such, while a convoluted ‘chain of legitimacy’ can be traced from the people through the parliament to the representatives of the state in international decision-making,Footnote 12 the chain is disrupted with informal instruments. Informality escalates de-constitutionalization resulting from globalization,Footnote 13 and may increase the power of the executives to govern domestic matters through international arrangements by weakening parliamentary control over the foreign matters of the state.Footnote 14
Adding to the problem, international decision-making is undemocratic. Only some state representatives are democratically elected. International decision-making is generally opaque and difficult to observe by outsiders. Negotiations are often conducted by expert bureaucrats who are accountable to their executive superiors rather than the people.Footnote 15 State interests, determined quite freely by the executives, may not always align with those of the citizens. This may have been unproblematic when international decisions mostly concerned international relations, but contemporary international governance increasingly affects non-state actors as well.Footnote 16 Thus, the more effects informal instruments have, the more imperative it becomes to address the democratic deficit resulting from the isolation of parliaments and the undemocratic nature of international decision-making.
In its descriptive part, the article departs from previous literature by observing informal instruments as being or as relating to legal and political communications, and by illustrating how they manifest diverse effects in legal and political systems through networks of interpretation, argumentation, and social meaning-making. By employing sociological perspectives, the approach goes beyond the familiar legal descriptions of the effects of informal instruments and can help explain how and why they affect interpretative practices and may develop into binding law or orient policy decisions. Communications in this context may be understood in two ways: firstly, with informal instruments and subsequent communications referring to them as being legal or political communications in themselves or acting as external irritations to legal or political systems that are given meaning in the operations of the social systems,Footnote 17 or secondly, as being communicated by knowing subjects, to influence subsequent decision-making and contribute to shared understandings about the world and specific communicative systems.Footnote 18 The approaches, often considered competing,Footnote 19 are employed where appropriate.
In its normative part, the article argues that the legitimation of informal instruments should primarily be pursued by enhancing the quality of micro-level interactions rather than by seeking major institutional reforms.Footnote 20 The approach is twofold. Firstly, at the domestic level, the concept of feedback loops is employed to signify better engagement of parliamentarians by establishing a continuing deliberative process between the parliament and the government in the formation and modification of positions before and during international negotiations. This may be supported by the parliamentary approval of important informal international instruments. Secondly, at the international level, the concept of culture of deliberativism is conceived, understood as the embrace of deliberative democratic standards for better representation and consideration of public opinions. Together the measures are envisioned as a ‘democratic-striving’ approach to gradually enhance the democratic quality and legitimacy of international decision-making and its products, including informal instruments.Footnote 21
A position that international decision-making can be integrated on shared values approximates a constitutionalist reading of international law and governance.Footnote 22 Pursuing constitutionalization is not the crux of this article, however. The article engages with democratic ideals and the legitimate creation of international rules rather than the issues of proper state conduct, rights-based international order and its future, and hierarchy of norms, which are often the focus of international constitutionalist literature.Footnote 23 On one hand, the approach of the article is pragmatic in that it engages with improving existing forms and structures of international decision-making, and on the other hand, critical–normative in the sense that the article analyses these forms and structures critically and offers normative suggestions for their improvement from a democratic perspective.
However, where rules on publicity, transparency, and reporting are called for, the article may contribute to the reformation of the formal bases of international decision-making, and thus to international constitutionalization when understood as a continuing discourse pointed towards future possibilities,Footnote 24 rather than as an empirical concept.Footnote 25 This could, in time, work towards the recognition of intergovernmental informal instruments as a type of ‘standard instruments’ with their specific legitimate rule-making procedures.Footnote 26 The danger of further retreat to informality must be taken into consideration, however.Footnote 27
The pragmatist approach is presumed on the unlikelihood of cosmopolitan democratization development.Footnote 28 A formal state-centred democratic order would need to consist of states that democratically represent their citizens.Footnote 29 Recent democracy data does not give reason for optimism in this regard. The number of democratizing countries (18) is clearly being outnumbered by autocratizing countries (42).Footnote 30 While a slight majority of countries are democracies,Footnote 31 the majority of the world’s population lives in autocracies.Footnote 32 Formal global democracy may even be undesirable due to a lack of demos,Footnote 33 and could lead to the lines of delegation derived from the people becoming too extended.Footnote 34
The issue of (non-)democratization has implication for the emergence of more considerate deliberation as well, and the article thus shares the potential challenges of state engagement and lack of political will.Footnote 35 However, the article argues that the required deliberative move is not drastic. This particularly applies to the international regimes that already base their decisions on consensus, which may be utilized to induce democratic sensibility into international decision-making. While it has been argued that deliberation cannot be a ‘real substitute’ to formal democracy,Footnote 36 I consider it to provide one of the more plausible processes of democratization at the international level. We should also be cautious of forcing democracy, as a noble idea can easily turn sour for its implementation is necessarily political.Footnote 37
It has been argued that due to globalization and functional fragmentation of societies the political systems of states cannot fully control other systems anymore, particularly the global economy. This has led to initiatives such as ‘societal constitutionalization’ to challenge state-centred constitutionalism by instead arguing for self-regulation in different functional areas.Footnote 38 However, by analysing what can be done within and in relation to the existing forms of international decision-making, this article focuses on an area that states still have primary control over. In the end, the extent to which improving the existing system is preferable to a more radical transformation or to focusing on alternative settings of global decision-making will be left to the reader to judge.
While the primary contribution of this article lies in a discussion of the effects and legitimacy of informal international instruments from a democratic perspective, the analysis of deliberation is also relevant for other contexts of decision-making. These include hybrid public-private settings and even purely private forms of decision-making. This is based on the presumption that individuals generally have the capability for genuine deliberation and communicative rationality, although they are also potentially restricted by acting as the representatives of institutions and possibly bound by the specific rationalities adhered to in different social systems.Footnote 39 Such conceptions of rational deliberation aiming at consensus have been charged for preserving status quo and prescribing as equal and consensual processes that are biased and conflictual.Footnote 40 The article argues that such concerns are alleviated by the context of international decision-making as a form of elite deliberation, while the prescriptions of deliberative ideals make conflicts a matter of deliberation in themselves.
The rest of the article consists of three sections. Section 2 examines the effects of informal instruments as legal and political communications. Section 3 discusses approaches to legitimize informal instruments. Section 4 concludes by remarking on the previously misguided debate on informal instruments and the debate going forward.
2. Effects of informal international instruments
2.1 Interpretive practice
Courts increasingly use informal instruments in the interpretation of law. What this section argues is that courts are largely forced to utilize non-binding sources due to the complexity of legal questions, increasing international informalization, and the courts’ requirement to adjudicate. The point is not to criticize the judiciary, but to illustrate that the dynamics of international regulation and legal interpretive practice emphasize the need to legitimize the underlying international instruments.
The legal relevance of informal instruments presents a boundary problem for law. If a thing that is not formally law is legally relevant, then another thing must be legally non-relevant. Courts constantly draw such distinctions, and law can thus be considered a communicational process that determines what is part of the legal system and what is not.Footnote 41
Because law is often not clear, but courts cannot generally decide to not adjudicate,Footnote 42 courts must draw from various sources to decide on a valid interpretation of the substance of a vague law. In doing so, courts often make use of informal instruments.Footnote 43 When substance is drawn from an informal source, the underlying vague rule acts as a ‘legal hook’ on which to metaphorically hang the informal source on.Footnote 44 Informal instruments are usually described to ‘solidify’, ‘clarify’, or ‘concretize’ the interpretation of the rule in this respect.Footnote 45
Extreme vagueness can give a binding effect to informal instruments. In Milieudefensie et al. v. Royal Dutch Shell,Footnote 46 the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) was used by the District Court of the Hague to give substance to an unwritten standard of due care in Book 6 Article 162 of the Dutch Civil Code. According to Paragraph 1 of Article 162, a person who commits a tortious act against another person that can be attributed to them must repair the damage that the other person has suffered as a result thereof. Paragraph 2 includes in its definition of tortious acts also those acts or omissions which are in violation of what according to unwritten law has to be regarded as proper social conduct, if the behaviour is not justified.
The Court determined that within the context of Royal Dutch Shell’s contribution to climate change and its human rights obligations, the unwritten standard included violations of the rights to life and respect for private and family life.Footnote 47 The Court then decided to follow the UN Guiding Principles, effectively determining that it is unlawful in the Netherlands for a business to act against the instrument. According to the Court, the UN Guiding Principles is ‘an authoritative and internationally endorsed “soft law” instrument’, ‘in line’ with other ‘widely accepted soft law instruments’ and reflected ‘current insights’.Footnote 48 The Court also noted that the European Commission had expected EU businesses to adhere to the instrument. Although Royal Dutch Shell had explicitly supported the UN Guiding Principles, the Court deemed this fact irrelevant.Footnote 49
The existence of the unwritten standard was essential since international human rights law cannot be directly invoked against businesses.Footnote 50 The relative indeterminacy of the rights to life and private and family life was also a contributing factor. These factors made the UN Guiding Principles effectively binding on Royal Dutch Shell. The lawyers from the side of the Milieudefensie called this effect ‘reflexive’ and ‘deciding on the scope of a [Shell’s] duty of care to contribute to the prevention of dangerous climate change’.Footnote 51
There is a trend in climate litigation of increasing legal effect of informal instruments.Footnote 52 The link between human rights and climate change has been either noted by courts or by petitions for opinions on the questions posted to them.Footnote 53 Thus, while the Milieudefensie case reflected peculiarities of the Dutch legal system, there is potential for informal instruments to gain importance elsewhere with regard to vague legal rules.
This potential rests on the requirement to decide. If courts were permitted to determine that they were unable to ‘find’ the law and thus to adjudicate, they would not be forced to act in a way that can be accused of ‘law-creation’.Footnote 54 What also matters is whether a structural bias in relevant interpretive institutions provides ‘a professional consensus or mainstream answer’ to the legal problem at hand.Footnote 55
These factors, that courts try to align their decisions with the past but are also required to adjudicate anew, lead to a Janus-faced condition of conservatism and progress in law. When drawing new distinctions and reacting to changing world, law contributes to determining what kind of future legal communications are considered valid. It is this evolutionary process of the legal system through which international informal instruments become legally relevant and on which arguments of their legal relevance is ultimately based. Dworkin used the metaphor of law as a ‘chain novel’ written by individual judges to justify this condition.Footnote 56 Habermas emphasized the intersubjectivity of the discursive formation of law while also recognizing the fallibility of individual judges.Footnote 57
We can look at informal instruments and speculate how they may contribute to interpretation. For instance, the GCM comprises numerous commitments that are much more descriptive of expected actions and behaviour than prior international law.Footnote 58 While the UN Guiding Principles as an instrument created by an international organization requires ‘international recognition’ before becoming authoritative, including state endorsement,Footnote 59 an instrument like the GCM, having been negotiated and adopted by states, can be assumed to be authoritative immediately.
Informal instruments may weaken existing legal standards. The GCM includes a new formulation of the principle of non-refoulement that requires higher probability of serious adverse consequences than the standard outlined in the Convention Against Torture.Footnote 60 The GCM’s sister instrument the Global Compact on Refugees may similarly dilute the principle.Footnote 61 The concern over weakening of international obligations is logical, since if informal instruments were without effects, there would be no point for states to go through the trouble of reformulating existing legal standards in them. Informal instruments are indeed used to advocate for preferred new norms and interpretations.Footnote 62
Relatedly, the legal hooking technique is also a political argumentative device. Questions such as how to find suitable hooks to make informal instruments binding on states are being asked by activists.Footnote 63 This strategy is often prompted by frustration when states do not adopt legally binding obligations, with informal instruments often containing more ambitious norms than states would incorporate in treaties.
The active verb ‘hook’ echoes purpose and implies a temporal order where an informal source comes first and then a suitable formal vessel is found for its realization. This relates to the question of distinguishing between treaty interpretation and judicial activism. It is certainly possible for judges to make conscious activist interpretations. Yet surely not every judgment in which an informal instrument receives a central role should be assumed to constitute judicial activism. The point is that the influence of informal instruments through judicial decision-making emphasizes the need to legitimize them. Otherwise, informal instruments may be used to mould the likely interpretations of international law as a sort of ‘backdoor law’ insulated from democratic scrutiny.Footnote 64
2.2 Informal instruments as political communications
The kind of language that is used to assert, declare, or describe issues guides how they are understood and the solutions that are preferred for them. Utterances can be understood not just as transmission of information, but as action with intentional and unintentional effects on people.Footnote 65 From this perspective, informal instruments are not just codifications of agreements among states, but communications that shape or are used to shape understandings and preferences among relevant audiences.
Central in this regard is how informal instruments frame issues. Frames are ‘schemata of interpretation’ that ‘allow a user to locate, perceive, identify, and label’ a situation.Footnote 66 Frames can diagnose issues as problematic and in need of alteration (diagnostic framing) and propose specific solutions to them (prognostic framing).Footnote 67 They ‘define the terms of debate in strategic ways’.Footnote 68 Producing dominant understandings and solutions can affect how an issue is governed, and conversely, how an issue is governed can solidify the predominance of specific expectations. Accordingly, political actors try to mobilize and shape the understandings of others around a specific point of view,Footnote 69 not least since international institutions tend to adhere to agreed framings.Footnote 70 Such description and redescription of aspects of the world can determine who has the power to decide on issues.Footnote 71
Informality itself can be understood as a structural framing. By choosing informal arrangements, states frame issues as something to be managed rather than legislated. This goes even beyond the managerialism which envisages international law as a purposive instrument,Footnote 72 as it abandons the normative expectations and safeguards that come with binding law, being more about the materialization of power through administrative practices than its restriction by the rule of law. Relatedly, with the adoption of the Global Compact on Refugees, the most comprehensive and detailed international instrument on refugees is now legally non-binding, which is at odds with traditional emphasis on inviolable human rights and legality. Whether existing standards and processes change over time in this regard should be followed with interest.Footnote 73
Informal instruments can also shape language. Experts use specific vocabularies to communicate with each other. When certain terms and concepts are used consistently, their use can become habitual and expected by a professional group. Legal competence itself is about learning a specific language and thinking in a specific way.Footnote 74
An illustrative example are the terms ‘regular’ and ‘irregular’ in migration governance. At least since the early 2010s there has been an active campaign to promote their use in place of the legal/illegal migration terminology to prevent migrants from being associated with illegality.Footnote 75 The regularization terminology was institutionalized with the adoption of the GCM in 2018. The instrument makes no reference to legal or illegal migration, while regularization of migration is a central tenet in it.Footnote 76 States now largely abstain from referring to migration as legal/illegal at least in formal GCM related meetings.Footnote 77
The terminology has not changed because of the GCM alone. However, it can be inferred that ‘the correct way’ of talking about migration in formal interactions has been settled for now. It remains to be seen if the changing language affects actual perceptions on migration. Pushing for new language is not always as successful, as shown by the presence of the term ‘natural disasters’ in the GCM in spite of a continuing effort to end its use by disaster risk reduction experts.Footnote 78
Informal instruments may also facilitate overcoming domestic political stalemates and act as blueprints of domestic political reform.Footnote 79 As such, informal instruments may allow governments to create beneficial operational environments for themselves through international actions while simultaneously circumventing the parliament in the process.
Informal instruments as political communications can also affect domestic legal systems. As discussed in the previous section, legal systems react to changes in their environments. However, political communications must be translated to legal communications to make sense of them in the legal system.Footnote 80 Arguing in a court that not adhering to an informal instrument would threaten the achievement of non-binding global political targets would not go off well but stating that the instrument confirms certain acts as illegal would be immediately understood as a valid legal argument. Also, ‘frames in the legal sphere operate in a similar fashion to the public opinion realm. An established frame influences ensuing discussions, decision making, and policy outputs of other elites who must communicate using established terminology.’Footnote 81 In this regard, informal instruments as both political and legal communications can contribute to the formation of professional legal consensuses.Footnote 82
The effects relate to what political scientists call ‘soft power’. New ideas are constantly introduced, lobbied, and discussed in international institutions. These ‘intellectual tides’ or ‘webs of dialogue’ can shape understandings and decisions on all levels.Footnote 83 International professionals may adopt and transfer the ideas to different international and national forums and thus institutionalize their use, which can contribute to norm diffusion.Footnote 84 Elite discourse and framings may also affect public conceptions through different media.Footnote 85
The meanings communicated via informal instruments matter. States can spend years arguing whether the world should ‘transition away’, ‘phase down’, or ‘phase out’ fossil fuels in a legally non-binding decision,Footnote 86 with each having different implications on the intensity and timing of expected actions. In this respect, the remark by COP28 President Al Jaber that ‘[w]e are what we do, not what we say’ is only partly true.Footnote 87 The Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) also noted the power of language by remarking that the ‘success of climate-related migration as an adaptive response is shaped by how migrants are perceived and how policy discussions are framed’.Footnote 88
The varying communicative machineries are essential to understanding the potential effects of informal instruments. These effects, then, emphasize the need to consider how to make informal instruments more legitimate from the perspective of the people affected by them. Accordingly, the next section discusses approaches that may enhance the democratic legitimacy of the instruments by addressing the two primary problems of the isolation of parliaments and the undemocratic nature of international decision-making.
3. Democratic legitimation of informal international instruments
3.1 Parliamentary approval of informal international instruments
Many democracies subject treaties to parliamentary approval to protect the authority of the legislator from constraining international obligations.Footnote 89 To secure approval by the parliament, the government may need to consult the parliament and try to achieve negotiation targets that the parliament sees as desirable.Footnote 90 Parliaments may benefit from their budgetary power in this regard.Footnote 91
The parliament loses this control with informal instruments as they do not require parliamentary approval. Extending parliamentary approval to informal instruments could thus strengthen parliamentary control over the foreign matters of the state and allow public debate on the instruments.
Parliaments do scrutinize informal instruments at times. For example, the parliaments of Estonia and Germany debated and voted on the GCM.Footnote 92 However, regularizing parliamentary scrutiny is complicated by the diversity of informal instruments. Some informal instruments are bilateral, others regional or multilateral. Some are self-standing, while others initiate processes. Some stipulate clear commitments, while others contain guidelines. Hence, there would be no point or time to approve all informal instruments. A standard would be needed to determine which instruments merit approval.
There are such standards for treaties. For example, in Finland approval is not required if an international obligation is deemed insignificant enough.Footnote 93 Since all international obligations are, formally speaking, equally binding, the qualification of the constraining potential is also tied to the subject area of the obligation.Footnote 94 However, legal instruments are generally approved because legal bindingness usually means that the obligation is relevant to the functions of the legislator.
With informal instruments a similar standard would have to be simply grounded in their significance. This introduces complex questions. What kind of effects may the instrument have? At what level and in what systems would those effects emerge? What effects are significant enough, and what does ‘significance’ entail? Does the instrument affect the state or are its effects rather felt in the private sphere? These are conceptually and empirically complex questions and necessarily require the evaluation of abstract concepts such as normativity and political as well as moral constrain.Footnote 95
A simplifying standard could focus on whether the instrument contains committing language while simultaneously taking its subject matter into consideration. D’Aspremont has proposed a theory of ascertaining international law based on linguistic indicators, as states sometimes use certain language when they want to create binding law. For example, the UN Security Council ‘decides’ when it intends for a decision to be binding.Footnote 96
To compare, the GCM ‘expresses [states’] collective commitment to improving cooperation on international migration’,Footnote 97 and includes 23 detailed objectives, each starting with the words ‘we commit’. All 56 Actions of the similarly non-binding Pact for the Future include the phrase ‘[w]e decide’, whereas the annexed Global Digital Compact and Declaration on Future Generations use committing language.Footnote 98 This highlights the potential need for linguistic harmonization, as one may ask, how is the language of deciding in the non-binding Pact for the Future different from that used by the Security Council for binding law?
The use of informal instruments can be a deliberate choice by states to insulate international governance from domestic scrutiny and to avoid restrictions of formal law-making.Footnote 99 And here lies a paradox of the standardization of informal instruments: if parliaments would start approving informal instruments with specific linguistic indicators in them, states could simply start to avoid that language. Standardization is essentially formalization and could thus lead to a further retreat to informality.Footnote 100 Instead, states could use even more informal arrangements, perhaps turning towards the use of bureaucratic ‘managerial technologies’ rather than juridico-political instruments.Footnote 101
The benefits of parliamentary approval are limited, however. Continuing international rule-making can extend far beyond what could have been predicted when the parliament approved the underlying treaty.Footnote 102 Parliaments are largely given take-it-or-leave-it deals after the instruments have been already negotiated, with little influence on their substance. As such, parliamentary approval should be treated as a complementary solution to enhance the role of the parliaments after the adoption of the instruments. Accordingly, the next section considers how to better engage the parliaments before and during international negotiations.
3.2 Deliberative feedback loops and parliamentary engagement
In parliamentary systems, parliamentarians are the representatives of the people. In this role, the parliamentarians can transfer the will of the people into international decision-making by bringing ‘complicated and technical questions … into their proper perspective in relation to their underlying political implications’.Footnote 103 Fulfilling this potential requires that the parliamentarians can provide input and feedback (legislator–executive interface), and that the parliamentarians listen to and accommodate opinions by the people (legislator–citizen interface).
Parliamentary input is typically possible when the government informs the parliament about international negotiations. This is at times done with informal instruments. For example, in June 2018 the Government of Finland informed the Parliament of Finland about the GCM and the Global Compact on Refugees as a matter of their consideration by EU organs.Footnote 104
Informing and requesting statements from parliaments should be done at an adequate time. For example, at the time of informing the Parliament of Finland about the Compacts on 5 June 2018, the last GCM revision before the final draft was already being finalized in the fifth round of intergovernmental negotiations at which point most of the eventual contents of the GCM were already in place.Footnote 105 Interestingly, the parliament did not issue a statement on the GCM, which shows that input opportunities are not necessarily utilized.
A more ambitious process could be pursued to allow more effective input from the parliaments when they wish to engage. This could take the form of a deliberative feedback loop process between the government and the parliament,Footnote 106 where national positions would be formed and fine-tuned based on changing negotiation circumstances. This could take place through inclusive parliamentary settings representative of the parliamentary assembly, such as committees with members from different parties. The aim would be to pursue consensus and for the government to provide arguments for its positions. Importantly, national positions should not necessarily have to be formally approved by the parliament, since such a requirement would tip the balance of power in countries where the government is constitutionally mandated to lead the foreign policy of the state.
The feedback loop process would strengthen the connection of international governance with domestic democracy and enhance its democratic legitimacy particularly in the countries where the approach is implemented. Widespread parliamentary engagement could also enhance the legitimacy of international regimes in general by diversifying the opinions fed into international decision-making.
However, the approach requires a functional process and relationship between the parliament and the government. Preserving trust among international negotiators may necessitate withholding information from outsiders, including parliamentarians.Footnote 107 Compromises between states may necessitate that representatives are not equipped with strictly predetermined positions, and representatives could feel pressured to hold onto positions that have been agreed through domestic deliberations. A feedback process can be cumbersome and require time that is often limited in international negotiations. Particularly in the EU countries, the fact that the EU and its members try to negotiate collectively may limit the extent to which a member state can form individual positions through domestic deliberations. If the executive has the mandate to lead foreign affairs, the feedback process requires either utilizing constitutionally available channels for parliamentary participation or modifying the constitution to enhance the participatory rights of the parliament.
Effective engagement may require educating interested parliamentarians who have no prior experience of foreign politics and international law. The enigmatic legal and political nature of informal instruments presents a distinct educational need. Education could help prevent significant informal instruments from being processed simply based on the question of their legal bindingness, if at all.
To further support parliamentary input, parliamentarians could become more directly engaged with the foreign matters of the state. In this respect, the parliamentarians could act as ‘well-informed critics’ of the state’s foreign policy, which could also contribute to more effective deliberations at the domestic level.
When parliamentarians participate in international decision-making, they typically act as observers. While there are historical examples of parliamentarians acting as full delegation members with the purpose of enhancing societal representation and legitimation,Footnote 108 acting as observers may better support the role of parliamentarians as well-informed critics since a negotiating role could lead to the parliamentarians also practicing secrecy to avoid domestic scrutiny and accountability.Footnote 109 In fact, parliamentarians may be content with having expert bureaucrats at the reins of the negotiations,Footnote 110 with the latter in turn being defensive about expanding parliamentary diplomacy in an area they see as their own.Footnote 111 The main downside of an observing role is that the executives may exploit information imbalances if the parliamentarians cannot observe closed meetings.Footnote 112
The parliamentarians must be responsive to deliberative principles for the feedback loops to fulfil their purpose. They must also be receptive to citizens’ interests and opinions as a precondition of a credible democracy.Footnote 113 We can assess this as the extent to which substantive representation occurs. Parliamentarians are not required to invariably reflect the wishes and interests of their voters at least if we consider political compromising a necessity. Parliamentarians, however, generally try to represent the interests of their voters to a sufficient degree to secure re-election. Hence, parliamentarians can be generally expected to be receptive to citizens’ opinions.
However, not all people vote or are able to vote, and thus parliamentarians may prioritize the interests of the most active citizens. As such, parliamentarians or candidates should not only deliberate with their immediate voters to figure out their preferences, but also deliberate with political oppositions and by themselves on what the implications of specific policies would be to the wider populace. This is, of course, an ideal picture of individual parliamentarians and collective parliamentary representation, but the legitimacy of the parliament does rest on the notion that it represents the whole citizenship to a sufficient degree.
In parliamentary democracies the ministers serving in the government are often elected members of the parliament themselves. They are thus also accountable to voters, although there is a sense that when representing the ministerial and state institutions, they are expected to act on behalf of the abstract interest of the state which may not align with those of their voters. To the extent ministers or other officials are not elected members of the parliament, they are mainly accountable to the government institution and the parliament, not the citizens. Here, too, deliberative feedback loops may enhance the connection between citizens and foreign matters of the state by enabling deliberations between government representatives and members of the parliament.
Domestic political struggles are an obstacle to feedback loops and foreign engagement of parliamentarians, particularly those from opposing parties, as the party (or parties) in power may not be willing to engage with their political competitors. As such, the establishment and maintaining of the dynamics may require revisiting constitutional provisions on parliamentary rights of participation. However, parliamentary politicians generally understand the ideological and political value of parliamentarianism, and those in power realize that they will likely be in the opposition at some point in time themselves, which may help obtain enough political support for expanding the role of the parliament.
Enhancing the legislator–citizen and legislator–executive interfaces carry the potential to strengthen the links between international decision-making and citizens. It is another question, however, if the mediated public opinions are expressed and considered in international decision-making. As the final decisions are often reached in the late hours of the last day of international negotiations, behind closed doors, and between a limited number of state representatives, it is evident that these are the situations when it truly matters whose voice is made heard.
3.3 Deliberation in international decision-making
Insofar as the international order continues to be dominated by state executives, substantive representation of public opinions by decision-makers emerges as the modus of improving the democratic quality of the decision-making processes. The question is then how these opinions are expressed and considered so that they can influence international decisions, with implications for both legally binding and non-binding international instruments.
Following the logic of focusing on micro-level interactions, deliberative democratic literature has departed from the traditional democratic understanding that voting is the cornerstone of a well-organized and functioning democracy.Footnote 114 Instead, deliberative democracy focuses on the exchange of ‘good arguments’ aiming at a rationally motivated consensus.Footnote 115
In this view, reasonable and legitimate decisions are the result of successful communication. According to Habermas, humans maintain themselves through communicative action, that is, socially co-ordinated action aimed at reaching understandings. Rational discourse satisfies the conditions of rationality of propositional truth, normative rightness, and subjective truthfulness,Footnote 116 and is thus more multifaceted than instrumental rationality. Interaction can be linked with democratic legitimacy since ‘democratic will-formation draws its legitimating force … from the communicative pre-suppositions that allow the better arguments to come into play in various forms of deliberation and from the procedures that secure fair bargaining processes’.Footnote 117
Hence, the quality of international decision-making can be analyzed by reference to different conditions of democratic deliberation, for example:
Conditions of deliberationFootnote 118
As the conditions suggest, ideal deliberation is free of coercion; only the force of a better argument may be exercised.Footnote 119 Since the better argument should prevail, all participants must not have an equal effect on the outcome of the deliberation. Deliberation should be oriented towards common good and be sincere. Yet self-interest may be acceptable as long as it is constrained by fairness, while insincerity in, for example, pragmatic compliments and greetings can facilitate further deliberation.Footnote 120
While deliberation should ideally be open and public, a closed meeting may facilitate genuine deliberation on controversial questions and make the participants more willing to retreat from positions when faced with a better argument. Whereas transparency better ensures that the participants propose and hold on to positions preferred by their constituents, it can also introduce inflexibility and aggressive bargaining and even lead to breakdown of negotiations by preventing compromises.Footnote 121 Deliberation should be inclusive, but too many participants quickly leads to speech-making instead of genuine deliberation.Footnote 122 Where consensus cannot be reached, deliberation may be followed by bargaining,Footnote 123 or a vote if allowed by the procedural rules of the relevant institution.Footnote 124
The exclusivity of intergovernmental decision-making means that it cannot be deliberatively democratic in the ideal sense. Deliberative democracy works best in a limited setting where the people who are affected by the decisions can directly participate. Instead, international decision-making can at best be a form of elite deliberation, not committed to mass participation but to ‘indirect filtration’ of public opinions.Footnote 125
The prevalence of consensus decision-making in international regimes implies that state representatives are already versed in deliberation to some degree. To illustrate, in the UN Framework Convention on Climate Change (UNFCCC) decisions by the Conference of the Parties are based on consensus. The perspectives of states most affected by climate change are pitted against states that are arguably most responsible for it. The states have access to the most up-to-date information on climate change through the regular reports of the scientific Intergovernmental Panel on Climate Change,Footnote 126 as well as civil society actors who actively participate in climate negotiations as observers.
These factors should facilitate genuine deliberation on diverse perspectives and positions backed by scientific evidence and subjective experiences. However, intergovernmental consensuses should be treated with healthy scepticism. For example, small island developing states disproportionally affected by climate change were not in the room when the final decisions of COP28 in Dubai were gavelled in late 2023.Footnote 127 This did not prevent the negotiated result from being called the ‘UAE consensus’.Footnote 128 The consensus related complications within the UNFCCC are largely the result of its inability to adopt a formal definition for consensus,Footnote 129 which opens the door to coercion and exclusion by powerful states against smaller states or marginalized groups.Footnote 130
When consensus is used to make reaching decisions difficult or as a concealed veto mechanism, it can be criticized for favouring the status quo.Footnote 131 In this regard, majority voting may better facilitate social change in contentious issues, which, however, is also the reason why it is rarely applied by states. Majority voting may, however, democratically delegitimize decisions and lead to political struggle for the required majorities.Footnote 132 Here, genuine deliberation should not be confused with pseudo-consensuses which merely mask political coercion or power.Footnote 133 Even more so, majority voting itself should be preceded by genuine deliberation with the purpose of making the vote unnecessary.
Inclusivity is a major challenge for international decision-making. The number of people who have opinions about or are affected by global issues is enormous. It is impossible to accommodate them all.Footnote 134 Thus, the requirement of inclusivity in international decision-making cannot pertain to people but to curated ideas. Deciding what public opinions to deliberate must be a matter of deliberation itself. The deliberated views cannot merely comprise majority or mainstream opinions because that would exclude affected but marginal groups and diverging public opinions.
But how to facilitate genuine deliberation? The main issue is getting the formal decision-makers, state representatives, on board. The willingness of at least some executives to champion better deliberation could be utilized to pursue a ‘culture of deliberativism’ in international decision-making, meaning the embrace and pursuance of ideal deliberation with concomitant social attitude. A cultural change should be emphasized, since introducing formal rules of deliberation runs the risk of overburdening the participants, being perceived as the forcing of ‘Western ideals’, or resulting in bureaucratization which could detract the participants from genuine deliberation.
External pressure on states to address the problems of international decision-making could result in a compliance deficit which then could lead to institutional changes. The power of political pressure was exemplified by the number of states withdrawing from the GCM process in 2018.Footnote 135 The pressure would mainly emerge from civil society actors which can circumvent the convoluted chains of communication from the people to state representatives in domestic political systems.Footnote 136 Civil society actors can also monitor international decision-making and distribute information to the public for increased transparency.Footnote 137 Such opportunities may be enabled by the opening up of international organizations to dialogue with civil society organizations.Footnote 138 For example, international organizations have increasingly established so called Dialogue Forums to engage with civil society actors, however, they have been criticized as being mere talking-shops rather than forums of genuine deliberation.Footnote 139
In this regard, intergovernmental deliberations should be understood as coupled with other deliberations in and around international institutions.Footnote 140 Parliamentarians can also contribute to the deliberative culture as critics of their state’s foreign policy. The Parliamentary Assembly of the Council of Europe, the most institutionalized and influential parliamentary forum associated with international organizations,Footnote 141 acts as an exemplary of the potential of parliamentary engagement. While not a formal body, the Inter-Parliamentary Union organizes meetings at the annual climate negotiations with the purpose of influencing the executives and engaging domestic parliaments.Footnote 142
Here a global ‘public sphere’ can be conceptualized. For the form and structures of the international system, the global public sphere in question would comprise in non-governmental discursive opinion-formation that is peripheral to formal governmental decision-making,Footnote 143 in other words, a network for communicating opinions to the decision-makers.Footnote 144
The presence of civil society actors does not ensure that this public sphere is necessarily inclusive. Just as the historical bourgeois model of public sphere originally analysed by Habermas was exclusionary with regard to gender and class,Footnote 145 so may the representativeness of global civil society be limited. Only some civil society actors have the capacity and resources to engage with international institutions which may lead to cultural and geographical imbalances and the reproduction of existing biases.Footnote 146 Their representatives are rarely elected to their positions, and while they usually claim to represent the public, civil society actors may not themselves be open to genuinely consider valid but differing opinions.Footnote 147
The claimed public sphere must then be critically assessed so that sufficient substantive representation of the people can actually be satisfied and not merely declared. Fraser argues that there are many public spheres, and accordingly, effective opinion formation may require nourishing parallel deliberative settings at domestic and local levels to allow different social groups to produce their specific discourses and to organize for effective input at the international level.Footnote 148 So-called deliberative Citizens’ Assemblies could be used to model public opinion formation and mediation to support international decision-making.Footnote 149
The legitimating function of deliberation could act as an incentive for states to conduct themselves in a certain manner in international institutions. States regularly use international law to legitimize their actions and present the justificatory discourses in institutions that confer the most legitimacy to them.Footnote 150 International organizations also utilize democratic narratives to legitimize their operations.Footnote 151 The legitimacy of instruments produced through deliberation could thus exert influence on subsequent state behaviour.Footnote 152 Deliberation may create a virtuous cycle where the institution’s enhanced legitimacy acts as a pull factor for more decision-making to be conducted there.
All things deliberative seem objective and equalizing. However, deliberative approaches have also been criticized. One prevalent criticism has concerned the mode of deliberation expected for realizing communicative rationality and the high burden it places on the participants. The participants should be knowledgeable and capable of expressing themselves in a proper manner and listening attentively, without prejudices. However, in reality people are often swayed by rhetoric and style, and as Young notes, those who do not perform as well in these areas are at threat of being dismissed if this dimension of argumentation is not given adequate attention.Footnote 153
Habermas’s purpose in conceptualizing communicative action and rationality was to redeem modernity and the rational ideals of the enlightenment from the critics of subject-centred reason.Footnote 154 A related criticism has been to charge communicative rationality as an immanently European or occidental idea.Footnote 155 Merawi emphasizes that modernity and its rationalities should not be observed in a historical vacuum, as doing so would threaten to express as universalist an inherently European hegemonic conception of the world and disregard the role that reason has played in injustices.Footnote 156
The elite deliberation form of international decision-making should alleviate such concerns to some degree. The differences in personal capacities and capabilities are smaller within the participants of the international political system than in the wider society. Regarding this subjective dimension, claiming that genuine deliberation is immanently biased towards Western participants would reduce the agency of non-Western participants and result in their unjustified ‘othering’ by claiming that they are not able to equally engage in rational discourse. Rather, the potential political biases relate primarily to the established structures of international decision-making, and in this regard pursuing genuine deliberation should relax structural biases rather than exacerbate them. Deliberation as an ideal is a process which calls for genuine participation of those who are needed to create a ‘common universe of discourse’.Footnote 157
A challenge is that the deliberative conception assumes that it is possible for participants to come together and deliberate as if they were equals. Yet gaping social and economic differences exist in the world. Fraser argues that this calls for thematizing the inequalities in deliberations, which aligns with Habermas’s later conceptions of communicative ethics.Footnote 158 Conflict precedes unity in understanding, in communication and in democracy. We observe such thematization at times in international deliberations. For example, small island developing states are often given a special role of expressing concerns about climate change. The problem is that these expressions should not be treated as a mere theatre that validates whatever decisions are made. The problem with rational deliberation is not about its European origin or claimed universality, but its political implementation.Footnote 159
It should be reiterated that the validity dimensions of normative rightness and subjective truthfulness should facilitate unbiased determination of reasonable outcomes as far as the participants are conscious of them. At the same time these dimensions must count towards the ‘totality’ of reason that is backed by scientific knowledge (theoretical truth). In finding global solutions to global problems, it is hard to imagine a more objective frame of reference.
Some practical obstacles stand in the way of the deliberative turn. External scrutiny depends on information shared by the executives and the contents of the resulting instruments. Without transparency we cannot be sure if some views were genuinely considered but were deemed less persuasive than others. Thus, at least some publicity is imperative.Footnote 160 Requiring detailed reporting on how different positions were taken into consideration would force states to produce reasoned arguments for their positions. This could also strengthen the accountability of the decision-making process,Footnote 161 and thus enhance its perceived legitimacy.
States may perceive non-participation as preferable to a process in which they cannot utilize political leverages. However, pragmatic approaches to deliberation allow bargaining and compromising when consensus cannot be reached through genuine deliberation. Also, rational deliberation may alleviate concerns by states since an unreasonable demand without merit will not succeed and states can simply make reasoned arguments in favour of alternatives.
The emerging deliberative practices may require procedural rules to maintain them,Footnote 162 as cultural transformation is vulnerable to power fluctuations such as changes of governments and international as well as domestic political struggles. It is also dependent on the qualities and preferences of the people participating in the decision-making processes at a specific time. Rules, however, may be interpreted as an attempt to formalize informal instruments, with the lack of formal restrictions often being specifically the reason for states to adopt informal instruments.Footnote 163 Also, as mentioned earlier, too many and strict rules may detract participants from genuine deliberation.
The suggested approach should be understood as a democracy-striving process where genuine deliberation is constantly realized to the fullest extent possible. In time, this discursive process may work towards a more systemic democratization development in international decision-making. In the short term, it acts as a continuing reminder of the diversity of public opinions and affected individuals. If realized, the process will not justify declaring international decision-making democratic, but it is the best available course of action within the existing structures of the state-centred and executive-led order.
4. Conclusions
The debate on the legal status of the GCM in 2018 focused on the wrong problem. It moved attention away from the real ‘phantom menace’ of informal international instruments, that is, their subtle legal and political effects and democratic deficit which remain outside public attention if debate focuses simply on the questions of legal bindingness and parliamentary approval.
In this context, the backlash surrounding the GCM may have reflected anxieties towards globalization and elite governance in general.Footnote 164 Such anxieties, however justified, are not helped by democratically unchecked international governance with effects on private lives. When such governance proliferates in number and kind,Footnote 165 the need to address the democratic deficit of informal instruments is apparent also from the perspective of addressing domestic political turmoil.
This article has argued for a twofold approach to enhance the democratic legitimacy of informal instruments. At the domestic level, parliaments should not only approve significant informal instruments but be more engaged in the formation and observation of national positions before and during international negotiations. At the international level, a turn to deliberation is envisioned with the purpose of enhancing substantive representation and genuine consideration of public opinions in international decision-making.
Debate should continue on if improving the existing system is preferable or if a more radical restructuring is in place, although the latter is necessarily confronted with the question of state will. On the other hand, more debate is called for on the continuing complexity of the globalized world and more fragmentation-sensitive approaches on transnational governance in and through functionally differentiated social systems,Footnote 166 including whether such development is sociologically inevitable.Footnote 167 In the end, informal international instruments are only one form of new modes of global governance and the problem of the distancing of political power from the populace.
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