The paper’s goal is to compare the effect of lowly and highly legalized institutions on their opportunities of participation. This endeavour can be located in a new normative turn in the legalization debate. Many authors regard in particular the lack of democratic participation as a major democratic deficit. For democratic rule-making to adapt to the international level, it is crucial that those affected by rules are at least meaningfully represented in the decision-making process. This task is fulfilled primarily by state actors who continue to be an important channel of representation, but is also often supplemented by non-state actors. Therefore, both groups of actors are examined while also taking their heterogeneity into consideration. To explore international legalization’s specific features, the independent variable is disaggregated into legality, formalization, and delegation. Participation encompasses who (access) can how (involvement) influence international rule-making. I propose a critical institutional design approach that takes into consideration legalization’s structure-inherent and actor-dependent effects. Structure-inherent effects mainly center on the two categories of costs and flexibility. It is assumed that costs are mostly generated by legality and delegation while flexibility varies with the degree of formalization. Being aware of these structure-inherent effects and depending on their interests and power status, actors prefer different degrees of legalization to pursue their goals. Against this background, it is hypothesized that the higher costs of legality and delegation decrease powerful actors’ willingness to make commitments with regard to participation. Formalization is expected to increase these actors’ capacities to restrict participation by creating institutional barriers that leave fewer opportunities to influence the rule-making process. By means of qualitative case studies in the field of biotechnology-related intellectual property rights, I will give an overview of the patterns that can be observed between institutions with variation across the legalization dimensions – including CBD, FAO, ITPGR, UPOV, WHO, WIPO, and WTO – and their de jure and de facto possibilities of participation. Operating at the intersection of IR, normative theory, and international legal theory, several disciplines are considered for providing initial explanations.
