Levelling Down, Levelling Up, And Governing Across Three Responses To Hybridization In International Law

The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved .......................................................................................... Levelling Down, Levelling Up, and Governing Across: Three Responses to Hybridization in International Law Veerle Heyvaert* Abstract This article investigates developed countries’ financial and technical assistance commitments under the Stockholm Convention on Persistent Organic Pollutants. It shows that their organization is secured through the establishment of a hybrid implementation network, involving the cooperation of state and transnational actors, and argues that institutional hybridization affects the quality and status of treaty norms. The norms defy a classification into either hard or soft law, but contain elements of both. Institutional and normative hybridization is at once a productive response to the emergence of global risks, and a source of new challenges. The article identifies the diffusion of accountability, the complication of enforcement, and the dilution of the communicative role of international law as challenges flowing from hybridization, and develops three responses: ‘levelling down’, which emphasizes the contractual nature of international agreements; ‘levelling up’, which strengthens state accountability; and ‘governing across’, which constitutionalizes the transnational actors in the implementation network. The advantages and drawbacks of each response are reviewed, and suggestions for reform developed. 1
Introduction International lawyers widely agree that the description of international law as ‘the body of binding norms freely entered into between sovereign States’ short-changes * London School of Economics. I am grateful to Jonathan Golub, Nico Krisch, Richard Stewart, and Joseph Weiler for comments on an earlier draft. All mistakes are mine. Email: [email protected] EJIL (2009), Vol. 20 No. 3, 647–674 doi: 10.1093/ejil/chp037 648

EJIL 20 (2009), 647–674 their field of expertise by a considerable amount.1 International law is undergoing a transformation affecting both constituent parts of its essence: the role of states as sole authors of international norms and the binding nature of norms. Both the proliferation of ‘decentred’ forms of international regulation, emanating from non-state actors2 and the explosive growth of aspirational, coordinating, or facilitating instruments which only partially correspond to the ideal type of the binding norm enforceable through coercion3 push the study of international law in new and challenging directions. This article contributes to the literature on the transformation of international law by investigating the complex relationship between Treaty member states and nonstate actors involved in the implementation of international agreements. Increased reliance on non-state actors for the furtherance of Treaty obligations fosters the development of hybrid networks,4 linking public, intergovernmental, and/or private bodies and resulting in the dispersion and diffusion of accountability. The article will show that the hybrid nature of institutional networks can lead, in turn, to normative hybridization, in that the norms supported by the network defy a classification as either hard or soft law, but combine elements of both. Hybridization is a productive response to the challenge of establishing legal duties to tackle complex global problems. At the same time however, it can problematize the effectiveness and legitimacy of international treaty regimes, and this needs to be addressed. This article takes a first step in the direction of analysing and responding to hybridization in international treaty law.<