The Challenge of International Rule Making
Chapter 3: Analytic Frameworks
The outstanding characteristic of international rule making is that it blurs all conventional boundaries and demarcation lines. It blurs geographical boundaries because policy proximity between policy makers becomes as important as geographical proximity; it blurs political and jurisdictional lines between what is domestic and what is international because policies are drawn from both internal and external sources; it blurs divisions between what is state and what is private because the private sector exercises authority alongside the state; it blurs distinctions between what belongs to international public law and what belongs to private law because they may be used as substitutes; it blurs what is law and what is not law because instruments such as codes may have legal effect without taking legal form; and it blurs professional distinctions as a fast-changing world forces professional boundaries to become more open and permeable. This chapter therefore examines in greater detail the two frameworks for analysing international rule making, referred to in the introduction, each of which avoids over-reliance on conventional distinctions. The first framework examined is known as ‘multi-level governance’. This framework addresses in particular the blurring of political boundaries between different jurisdictions, between what is domestic and what is international and between what is public and what is private. The second framework explored is provided by the series of analytic distinctions that underlie what is known as diffusion theory. This places the emphasis on a different set of distinctions – that of the different actors involved at different stages in international rule...
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