Introduction

Abstract

Based on its chapters, this introduction of International Actors and the Formation of Laws observes the discourse that creates, modifies, and reshapes the law as well as addresses actors that participate in that discourse. After addressing the point of departure shortly (Sect. 1), it first sets forth different international actors and their impact on the formation of laws (Sect. 2), and second, introduces the authors and the material scope of each chapter (Sect. 3). The introduction illuminates, the point demonstrated by the book, that in contemporary world law is mobile and emerges in the intersection of domestic, European, international, and even transnational legal regimes. It explains how the space for traditional domestic lawmaking shrinks and how the remaining bit becomes profoundly influenced by nondomestic factors. The book demonstrates that the product, the forming law, nevertheless bears the handprint of the actors participated in its formation. By noting the background of the authors as members of the Finnish Branch of International Law Association (ILA), the introduction acknowledges that the book presents pragmatism inherent to Nordic legal tradition.

1 Lawmaking and International Actors: Point of Departure

International Actors and the Formation of Laws observes the discourse that creates, modifies, and reshapes the law, as well as addresses actors that participates in that discourse. With the collective expertise and knowledge of the membership of the Finnish Branch of the International Law Association (ILA), the book examines the intersection between domestic, European, international, and even transnational legal regimes, where new law emerges as a product of this discourse. As the book focuses on the actors operating in legal regimes and their subtly, bluntly, or even outright aggressive impact on the formation of laws, it provides insights into the work and influence of discourse participants and novel perspectives on the interplay between them and the forming law. In accordance with the wide mandate of the ILA, the book collects contributions from authors experienced in judiciary, academia or as lawyers in public or/and private sectors, and thus by building on this versatile ground, overcome the barriers created by separate and even isolated perspectives on lawmaking. ¹

The book provides enlightening examples of diverse legal fields influenced by international, nondomestic actors. By exploring these actors, the book stresses their objectives and driving forces behind their efforts to influence law. Followingly, the book reveals an array of diverging methods used by international actors to influence law. Indeed, some of these actors strive for uniformity of norms within their legal fields, while others share a more limited ambition of establishing only minimum standards or just setting goals for future regulation, depending, among others, on their competence, the substantive fields they are operating on, and the practicalities they are facing. The forming law always bears the handprint of the actors participated in its formation.

The book contributes to the understanding of the mobility of law and contemporary law’s interactive nature.² It demonstrates how the space for traditional domestic lawmaking shrinks and how the remaining bit becomes profoundly influenced by nondomestic factors. The book shows how the traditional idea of the nation-state model of law no longer coincides with the reality of lawmaking.³ Lawmaking hierarchies that once constituted part of the development of the law of the nation-state nevertheless continue to operate but in a far limited manner.⁴

The book inevitably resonates with studies of global governance since it accepts the latter’s impact on the formation of laws. However, the book does not merely address nonnational lawmaking. Similarly, it does not aim to develop theories of international lawmaking nor to provide explanations of the underlying global or transnational processes.⁵ Instead, it illuminates the diffusion of legal ideas from the international arena to domestic legal systems—and vice versa—nevertheless, while being linked to studies on nonnational lawmaking.

As International Actors and the Formation of Laws well acknowledges, there are obvious benefits of working together internationally since many of the most pressing concerns of our time do not recognize national borders but must be addressed jointly.⁶ However, as demonstrated by the Brexit or the development of rule of law in Poland,⁷ many countries across the globe are opting for nationalist approaches and viewing international cooperation with skepticism or even disdain, and needed mutual trust between States is decreasing. In addition, many actors that aim to tackle cross-border issues are set under pressure, their motivations being questioned, and their funding reduced.⁸ This development is particularly problematic since nonnational actors continue to have an undeniable impact on global justice, among others, by giving a voice to vulnerable or disenfranchised groups.⁹ Hence, discourse relating to fundamental and human rights in law emerges as an important nominator through the chapters of this book.¹⁰

Since international actors now play an undeniable role in the formation of laws, there is a pressing need to adopt an actor-based perspective. The book acknowledges that the way actors work is not uniform, their purposes and abilities being different. Through their work, they nevertheless keep adding new versatile layers to the existing regulatory environment. These include vertical top-down mechanisms for securing state compliance with international norms, horizontal market-led initiatives targeting firms as economic actors, or bottom-up grassroots incentives that rely on networking and mobilization to advance civil causes.¹¹ Followingly, each chapter of this book examines an actor at a time and captures its method of interaction with law.

Since the book has been prepared under the auspices of the Finnish Branch of the ILA, many of the authors have Finnish legal education. It exerts an unavoidable influence on their legal thinking despite their experience with and knowledge of international and European laws in more general. Therefore, the book unavoidably shares examples of a somewhat Finnish understanding of law heavily affected by international and European development and resonating with the understanding of law in other Nordic states. The “Nordic legal mind” can be illustrated by reference to “pragmatism, realism, absence of formality, an uncomplicated and understandable legal style, transparency, equality, and avoidance of extremes.”¹² It is true that Nordic legal professionals often strive for pragmatic solutions and operate with general principles of law related to the legal field under scrutiny. Additionally, the book highlights Nordic commitment to rule of law and equality as it criticizes extremes that sometimes emerge in international fora.¹³ Finally, this commitment to Nordic legal tradition also explains why authors in addition to Finnish examples use Nordic examples in many chapters of this book.

2 International Actors Addressed

Illustrating a wide range of objectives, motivations, and interests involved, the chapters of this book address a host of actors that operate in an international arena. Among these, the European Union (EU), the Council of Europe (CoE), the Financial Action Task Force (FATF), the European Space Agency (ESA), the International Centre for Settlement of Investment Disputes (ICSID), and the ILA itself are addressed. The chapters will shed light on their different purposes, mandates, compositions, working methods, and legal powers and, thus, provide a unique platform for discussion.

As Chapters “European Union Law and National Law: A Common Legal System?” and “Reflections on the Principle of Mutual Trust in EU Law and Judicial Dialogue in Europe” of this book illustrate, the two lawmaking giants in Europe—the EU and the CoE—participate with other involved actors in an ongoing dialogue that creates, modifies, and reshapes the law.¹⁴ The EU’s decision-making powers and extensive competence, as well as its effective judicial enforcement, its direct effect, and the primacy of its legislation over national legal orders, make it a highly developed international organization or, as often characterized, a sui generis legal order.¹⁵ In a similar vein, the CoE as a regional organization for the advancement of human rights serves also as a proper example of a nondomestic actor participating in the formation of laws. Its most important instrument, the European Convention on Human Rights (ECHR), exerts a significant influence on European legal systems, in particular through its enforcement mechanism. The European Court of Human Rights (ECtHR) exercises de facto judicial power. Its jurisprudence has not only sought to ensure the continuity and consistency of the application of the ECHR but also has adopted a dynamic and evolutive interpretation of the rights provided by the Convention, simultaneously widening the Convention’s scope of protection.¹⁶

Additionally, two less renowned actors that lack explicit powers to impose binding norms but nevertheless wield a significant influence on their Member States and their domestic legislation are introduced by this book followingly. Chapter “The European Space Agency’s Contribution to National Space Law” examines how the ESA, an intergovernmental organization that is simultaneously both a spacecraft developer and operator, contributes significantly to the development of domestic space laws and administrative practices within its Member States.¹⁷ In addition, it describes vividly how the advice and assistance provided by the ESA to its Member States at the same time contribute to the role, rule and further development of international law. Chapter “The FATF and Evolution of Counterterrorism Asset Freeze Laws in the Nordic Countries: We Fought the Soft Law and the Soft Law Won” for its part illustrates how the FATF as an intergovernmental standard-setter is able to impose its will on its Members through soft law instruments.¹⁸ In this context, it lays bare the role that individual states may play in the formation of laws through international organizations. This applies especially to organizations that operate on topics related to the fundamental interests of states—such as internal and external security—where the interests of global superpowers may dominate the work of the organization and lead almost to forced implementation of some legal concepts seen as foreign by the adopting jurisdictions.¹⁹

In a similar vein, alternative dispute resolution mechanisms may exert a strong influence on law, as Chapter “Host States’ Labour Regulation in the Aftermath of International Investment Disputes: Five Levels of Impact and Interaction” focusing on ICSID arbitration well exemplifies. Given the multiple reasons for claims under international investment agreements concluded to foster foreign investment, investor-state dispute settlement (ISDS) affects a broad spectrum of domestic law, such as labor law—the center of attention of this chapter. ²⁰ Similarly, national court decisions may have an impact on ISDS, illustrating influence in both directions from international to domestic and the other way around.

Moreover, Chapters “Strengthening the Right to Personal Autonomy and Protection of Vulnerable Adults: from Human Rights to Domestic and European legislation on Voluntary Measures” and “The Role of the ILA in the Restatement and Evolution of International and National Law Relating to Indigenous Peoples” provide illuminating examples of how civil society actors motivated by their professional expertise or some personal causes can contribute to lawmaking on both national and international levels when the rights of persons in vulnerable situations are on the agenda.²¹ Chapter “Strengthening the Right to Personal Autonomy and Protection of Vulnerable Adults: from Human Rights to Domestic and European legislation on Voluntary Measure” highlights intertwined work of different actors. It provides fascinating viewpoint on the interactions taking place simultaneously between actors operating on the international, regional, and domestic levels to improve the rights of vulnerable adults. Chapter “The Role of the ILA in the Restatement and Evolution of International and National Law Relating to Indigenous Peoples” examines how the ILA an international nongovernmental organization with a consultative status in number of United Nations specialized agencies affects the substance of law relating to Indigenous Peoples through its committee work. Insightfully, this chapter highlights how academics together as a professional expert group can strengthen the body of international law.

3 Substantive Scope of the Book

The relationship between EU law and national law is one of the most intriguing interactions between national and supranational legal systems. This theme is central to the contribution of a former judge of the European Court of Justice (CJEU), Allan Rosas, in Chapter “European Union Law and National Law: A Common Legal System?”. While the fundamental impact of EU law on the domestic legal systems of the Union’s Member States has been extensively researched, Rosas provides a fresh perspective by examining also the role that domestic laws play at the EU level and how it impacts EU law. The examination includes looking at the different functions that Member State national laws have in an EU law context by examining the relevance of national material, procedural, and institutional laws at the EU level. He argues that Member State national laws have directly impacted, and continue to impact, the substance of EU law, and the relationship between EU law and domestic law is fundamentally different from the traditional dichotomy between public international law and domestic law. In his opinion, the way in which EU law instrumentalizes domestic laws—in particular domestic institutional law—for its own purposes and harnesses national administrative bodies to the same end suggests that EU and national laws are best understood as forming a single complex system of multilevel governance. He argues that EU law and the national law of the EU Member States are so closely interwoven that they may be viewed today even as forming part of the same legal system.

In addition to the EU, the CoE and especially its ECHR with its unique enforcement mechanism, the ECtHR, have had a major impact on European legal systems. Interestingly, in Chapter “Reflections on the Principle of Mutual Trust in EU Law and Judicial Dialogue in Europe”, former judge of the ECtHR Matti Pellonpää combines these two actors and their roles in the development of human rights law in Europe. Pellonpää addresses the principle of mutual trust in EU law and judicial dialogue in Europe. He observes that the principle of mutual trust has played an important role in EU law, especially in the area of freedom, security, and justice. In its opinion on the potential accession of the EU to the ECHR, the CJEU held that the draft agreement was incompatible with EU law, especially since it did not sufficiently take into account the principle of mutual trust. As a reaction, Pellonpää argues that the case law of the two European courts, the ECtHR and the CJEU, does not confirm the existence of any inherent incompatibility but instead demonstrates a constructive judicial dialogue between the two. Pellonpää further observes the contributions that national courts, such as the German Federal Constitutional Court, have given to that dialogue. He notes that while the true nature of the principle of mutual trust in EU law remains subject to debate, close scrutiny reveals it as more a rebuttable presumption rather than a full-fledged legal principle. He concludes that, ultimately, the European and domestic courts involved are shown to have engaged in a constructive judicial dialogue, which has influenced the shaping of the principle of mutual trust in a manner that can be regarded as satisfactory from the point of view of both the ECHR and the EU. In his opinion, these keen observations deserve to be taken into consideration in the continuing debate over the potential accession to the ECHR by the EU.

In Chapter “Strengthening the Right to Personal Autonomy and Protection of Vulnerable Adults: from Human Rights to Domestic and European legislation on Voluntary Measure”, Senior researcher Katja Karjalainen on the basis of her previous research continues examining the role of the CoE, this time in the field of adult protection, while simultaneously expanding the review to other international actors that have made an impact on this field of law. Drafting and concluding the United Nations Conventions on the Rights of the Persons with Disabilities (UNCRPD) show the significance of civil society actors in the field of law. The focus of this chapter being on voluntary measures, Karjalainen investigates CoE recommendations 1999(4) and 2009(11), as well as Article 12 of the UNCRPD. She looks at selected domestic solutions and the way in which they reflect the goals and objectives set at the international level. The Finnish Law on Continuing Powers of Attorney (2007) and the British Columbian Representation Agreement Act (2000) serve as illustrative case examples in her contribution. Additionally, she notes that it is possible that the EU will start implementing measures also in the area of law that deals with the protection of vulnerable adults.

Human rights are also addressed in Chapter “The Role of the ILA in the Restatement and Evolution of International and National Law Relating to Indigenous Peoples”, which deals with the rights of the Indigenous peoples and sheds light on the work of the ILA and its committees. Professors Timo Koivurova, Federico Lenzerini, and Siegfried Wiessner, the authors of this chapter have all participated in the ILA Committee work (2006-2012, 2014-2020) that dealt with the rights of indigenous peoples examine how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was established and what its basic contents are. In this context, they explore the ILA’s role in the restatement of the rights of Indigenous peoples and the ongoing evolution of these rights in both international and national laws. Insightfully, the authors emphasize importance of ILA Resolution No. 5/2012 in this process. However, they also shed light among others, on the rights in operation as well as good practices when they refer to the findings of the final report of the second ILA committee.

The book then turns its focus on the work of intergovernmental organizations. In Chapter “The European Space Agency’s Contribution to National Space Law”, Jenni Tapio, Chief Specialist at the Ministry of Economic Affairs and Employment of Finland specializing in space law, and Alexander Soucek, Head of the International Law Division at the ESA, discuss the interaction between this intergovernmental mechanism and a national administration. Capitalizing on the example of Finland and its novel domestic space law (2018), they show why and how international mechanisms can become facilitators of national lawmaking for the benefit of legislative and executive branches and nongovernmental norm addressees alike. In their contribution, Tapio and Soucek highlight the dual role of the ESA. It both represents a mechanism of international cooperation among its Member States and acts as a partner in international space cooperation on a global scale. From a functional perspective, the ESA is both a spacecraft developer and an operator with an accumulated unrivaled technical expertise and an impact on the development of laws.

In a similarly unique and persuasive vein as the ESA, the FATF serves as a standard-setter for its Member States. In Chapter “The FATF and Evolution of Counterterrorism Asset Freeze Laws in the Nordic Countries: We Fought the Soft Law and the Soft Law Won”, Aleksi Pursiainen, who has extensive work experience in the field of international sanctions and export control both from private and public sector, offers a critical assessment of the impact of the FATF on the development of counterterrorism asset freeze laws in Nordic countries. In his stimulating contribution, Pursiainen concentrates on one of the FATF’s profoundly influential 40 Recommendations, which requires states to implement United Nations Security Council Resolution 1373(2001) and retraces its historical development through an analysis of FATF documentation. Combined with an analysis of the FATF’s “mutual evaluations” in Nordic countries, this chapter reveals how the FATF adopted an expansive interpretation of UNSCR 1373(2001) and how it appears to ultimately succeed in enforcing compliance with the recommendation in the face of Nordic opposition despite the “soft law” nature of the FATF’s Recommendations.

Finally, in Chapter “Host States’ Labour Regulation in the Aftermath of International Investment Disputes: Five Levels of Impact and Interaction”, Johanna Silvander with her profound work experience of both the International Labour Organization (ILO) and the United Nations Conference on Trade and Development (UNCTAD) addresses the question of how international law in the form of bilateral investment agreements (IIAs) affects and reforms domestic labor law in countries hosting foreign investment. The chapter builds on a qualitative study made on the database of the ICSID. It offers a unique insight into the impact that international arbitration awards can have on the domestic legal stage. Silvander’s analysis indicates that while labor-related claims raised in arbitration were rarely successful, they very often had a discernible impact at the national level. These impacts range from direct changes in national legislation, induced by ISDS judgments, to a mirror effect where national court decisions came to impact ISDS outcomes.