Informal Procedure, Hard and Soft, in International Administration

Administration has, in many of its most important subject areas, become internationalized. This transformation has removed the regulation of goods and services from domestic rulemaking and transformed it into a matter for supranational agreement. It has taken review away from the courts and made administration an exercise in bureaucratic collaboration. And it has occurred quiedy-not through laws passed by legislatures, treaties agreed to by executives, or mandates lain down by international organizations such as the United Nations. Instead, the internationalization of regulation has happened informally, and the primary impetus for its development has been domestic bureaucracies themselves. Even though areas of rulemaking that affect millions of people have changed, the phenomenon, as a form of procedure, remains largely unexamined. It is not a part of administrative law syllabi, nor is it taught in many international law courses. Scholars have examined particular areas of harmonization with an eye to their substance while neglecting their process, and efforts to look at global administrative practice as a coherent body of lawmaking are still nascent. As for international lawyers, they now recognize that this bureaucratic collaboration exists and have sensed its potential. But they have not drawn any confident conclusions about how the organizations might evolve. In this article, I seek not just to site regulatory cooperation in the framework of international rulemaking, but also to identify the direction in which this cooperation might be going. I go into detail about the types of rules generated by the phenomenon, and I analyze some of its successes. I also identify the real problems with the phenomenon. The problems do not lie, as many observers have argued, with a democratic deficit and a bias in favor of the United States-at least not as those problems are usually defined. Rights of participation in informal international rulemaking are afforded rather broadly across the First World. However, developing countries enjoyed much more limited access, and it is in the developed/developing divide that informal regulatory cooperation is at its perhaps most problematic. [CONT