From Monitoring to Standard Setting: Transnational Law-Making Coalitions for Human Rights

In order to effectively monitor treaties, expert committees are usually authorized to interpret the treaties' norms. However, a delegation of treaty monitoring to expert committees bears the risk that the interpretation of the treaty's norms runs against the intention of states. The paper proposed for this panel is based on research on the United Nations (UN) human rights treaty bodies and their authoritative interpretations of human rights law, the general comments. It sheds light on the processes leading to such a general comment and how this instrument sets standards for abstract norms. Findings demonstrate that informality of decision-making, meaning the absence of rules of procedures, provides opportunities for non-state actors to become lawmakers themselves and sideline state representatives. Their interaction goes beyond other forms of transnational cooperation and cannot be explained with knowledge about their influence in other phases of the policy cycle. I explain their influence based on two factors: an interest-based exchange of resources between expert bodies and non-state actors and the existence of personal relationships creating trust between individuals. The conceptualization of these rationalist and normative parts of the causal mechanism as Transnational Lawmaking Coalitions (TLCs) contributes to theoretical gaps for the explanation of non-state influence on international lawmaking. These coalitions consist of individuals from expert committees, civil society, and specialized agencies. Lawmaking, understood as a process of complex decision-making, is a phase usually considered less open to or even off-limits for non-governmental influence. Analyzing informal lawmaking reveals how and by whom law is actually made, rather than how and by whom it should be made. The paper presents empirical evidence for the existence and modes of operation of TLCs in different UN human rights treaty bodies over time and discusses preliminary ideas about the normative implications of TLCs for international law. I argue that TLCs are a legitimate actor for human rights lawmaking and assume, based on recent developments in the UN human rights system, that informal processes and the power of human rights norms make transnational lawmaking in international organizations also effective - even when confronted with resistance by states parties.