International Law Happens: Executive Power, American Exceptionalism, and Bottom-Up Lawmaking

This essay introduces “bottom-up transnational lawmaking” in the context of contemporary ideological and theoretical debates regarding the breadth and depth of executive power vis-à-vis international law. In an era of globalization, with a proliferation of transnational actors and regulatory instruments, the international lawmaking universe is disaggregating into multiple, sometimes overlapping, lawmaking communities. Neither the President nor others in the “political leadership” sits at the center of many of these communities. Thus, the nationalist critique of international law, rooted in an all-powerful executive who controls international law, creating it and using it instrumentally, in furtherance of the “national interest,” ignores a vast universe of transnational lawmaking activity. Bottom-up transnational lawmaking is just one of many polycentric lawmaking processes. Bottom-up lawmaking features non-state actors and mid-level bureaucrats who grapple with the day-to-day technicalities of their trade. On the basis of their on-the-ground experiences, these transnational actors create, interpret and enforce their rules; over time, these initially informal rules embed in more formal legal systems. Whereas nationalists conceive of international lawmaking as a process of law internalized as practice, bottom-up lawmaking is a process whereby practices and behaviors are externalized as law. Bottom-up lawmaking, as a soft, non-choreographed path to hard, legal results, thus challenges the assumptions at the heart of the nationalist critique—diplomats as lawmakers, the treaty as the preeminent form of law, and lawmaking as a deliberate, executive choice. This essay offers three bottom-up lawmaking vignettes—export subsidies, climate change regulation, and corporate social responsibility initiatives. In each of these realms, spontaneous interactions among private parties, mid-level bureaucrats, sub-state actors, and NGOs seemingly inadvertently spark a normative process in spite of contrary executive decisions or conspicuous executive inaction. Thus, executive power in transnational lawmaking is limited, in this instance not by the strictures of the Constitution or the structure of international law but by the reality of multiple lawmaking processes unfolding beyond the executive’s command