The Yale Law Journal

May 2018

International Lobbying Law

International Law

abstract. An idiosyncratic array of international rules allows “consultants” to gain special access to international officials and lawmakers. Historically, many of these consultants were public- interest associations like Amnesty International. For this reason, the access rules have been celebrated as a way to democratize international organizations, enhancing their legitimacy and that of the rules they produce. But a focus on the classic public-law virtues of democracy and legitimacy produces a theory at odds with the facts: Many of these international consultants are now industry and trade associations like the World Coal Association, whose principal purpose is to lobby for their corporate clients. The presence of these corporate lobbyists challenges the conventional view, which I call strong legitimacy optimism, by focusing a set of longstanding critiques: Consultant associations are not always representatives of the “global public” and consultation is not robust participation in governance. Moreover, the access rules both overregulate and underregulate access to lawmakers. This critique is particularly salient in the context of business lobbying, where the access rules do not balance the costs and benefits of business access to international lawmaking and governance.

This Article introduces a theory of international lobbying law. Reframing the international access rules as a body of lobbying regulations delivers explanatory and normative payoffs by identifying (1) the full array of actors who obtain access (public interest and private sector alike); (2) the quantum of access that the current system delivers (informal lobbying, not participation in governance); and (3) new regulatory strategies. Specifically, two regulatory models emerge. One draws on the flawed but best-available registration and disclosure norms of domestic lobbying regulation. The other is a multistakeholder model pioneered by twenty-first-century public-private partnership organizations. The Article develops an original typology to organize and identify features of the international access rules across diverse international organizations, thereby clarifying the regulatory tradeoffs that accompany each choice. Perhaps counterintuitively, reformers should likely eschew the most common middle-of-the-road access models—which are grounded in the flawed legitimacy optimism view—and instead choose among the two divergent regulatory models, with that choice driven by organizational mission.

author. Associate Professor, University of Washington School of Law. For extremely valuable comments and discussions I thank Erez Aloni, Ayelet Berman, Daniel Bodansky, Harlan Cohen, Sarah Dadush, Stavros Gadinis, Maggie Gardner, David Gartner, Catherine Hardee, Paul Heald, Neha Jain, Matthew Jennejohn, Robert Knowles, Sanne Knudsen, Katerina Linos, Lisa Manheim, Marcin Menkes, Jide Nzelibe, Elizabeth Porter, Anita Ramasastry, Arden Rowell, Ryan Scoville, Lesley Wexler, and Verity Winship. Thanks are also due to participants at workshops at UC Berkeley, Arizona State University, the University of Illinois, the University of Georgia, Brigham Young University, Yale Law School, the Junior International Law Scholars Association Annual Meeting, and the American Society of International Law Research Forum at Washington University School of Law. Carolyn White, Kelsey Armstrong-Hann, and the Gallagher Law Library supplied excellent research assistance, and Yume Hoshijima and the Yale Law Journal editorial team offered superb suggestions.