1. Building understanding of the variety of international instruments

The international rule-based system is characterised by a fast-growing body of international instruments designed to support countries in addressing their policy challenges. The international organisations (IOs) that have been collaborating within the remit of the IO Partnership – some 50 to date (see Annex A) – are estimated to have collectively produced some 70 000 international instruments of varying denominations, nature and legal effects (OECD, 2016[1]) (OECD, 2019[2]). These instruments are the result of international regulatory co-operation within a multilateral setting, following specific decision-making processes agreed upon by members. Ultimately, these instruments help feed into countries’ domestic rulemaking with international evidence, expertise and co-ordinated approaches. However, in the diverse landscape of IOs, the terminologies and legal effects of international instruments vary from one organisation to another. Navigating the ecosystem of international instruments is not an easy task for IOs or their constituencies. For the ultimate beneficiaries of these international instruments, the heterogeneity of the international normative framework maintains the image of a nebulous list of distant principles or rules.

A clearer picture of existing international instruments and their legal effects is vital to supporting IOs in making more informed decisions as to which instrument to develop and why. A typology on the families of instruments can help IOs co-ordinate with each other more easily on joint instruments despite their different legal and institutional contexts. This will also support national policy makers to navigate the complex international landscape and use different instruments more systematically in support of their domestic policy objectives.

This section of the Compendium of IO Practices provides clarity to the global rulemaking landscape, by distilling the multiplicity of international instruments into various groups or ‘families’ building on considerations from past analytical work carried out with IOs (OECD, 2016[1]) (OECD, 2019[2]). This paves the way for a consideration of their defining features, benefits and challenges, to build understanding among IOs, their constituencies and the broader community of policy makers on what can be expected from a specific international instrument.

The international landscape is marked by a diversity of instruments and vocabularies, reflecting a diverse global governance system. A variety of IOs have emerged throughout the years to engage various constituencies in the pursuit of different policy objectives. Each IO is founded by its specific constituent instrument and exercises the powers attributed to it by this document within the areas under its purview (Combacau and Sur, 2016[3]). A corollary of this is that each IO has its own decision-making processes agreed on by its members and develops its own style of normative instruments, often several different types within a broad “ecosystem” of normative instruments (OECD, 2019[2]). Overall, with limited exceptions, there is no common understanding across IOs of the key features and legal effects of different instruments. As most instruments adopted by IOs have no commonly defined status, the same descriptive term for an instrument can have different features depending on the international organisation developing it, while different labels may cover the same types of instrument.

The multiplicity of international instruments and differences in approaches among IOs may result in uncertainty and confusion as to the key features and legal effects of such instruments. Different types of instruments reflect specific benefits and responses to different situations and challenges, and the ways in which they are developed varies accordingly. For instance, Legally binding international instruments such as international agreements, conventions and decisions, which can be adopted by intergovernmental organisations’ governing or decision-making bodies or by ad hoc negotiating groups (e.g. negotiating conferences) specifically set up for this purpose. They are addressed to states, who – if any necessary procedures to become parties to them have been completed - will have an obligation under international law to implement them (OECD, 2019[2]). Non-binding international instruments may be used to capture a commitment to policy principles or best practices but without creating a legally binding obligation to implement these in any specific manner. International technical standards, as understood by the current report,1 are commonly developed in response to a targeted need expressed by stakeholders through a bottom-up approach and are voluntarily adopted by states if they are perceived as necessary (OECD, 2016[1]).

The variety of international instruments may be challenging for different regulators and policy makers to navigate, countering the very objective of supporting countries in enhancing good governance and their own rulemaking processes. Countries are members of more than 50 IOs on average (OECD, 2013[4]). States and other potential members and users have a multiplicity of international instruments to understand and use in their own regulatory contexts. At the same time, this multiplicity is often grounded in the particular history and functioning of each organisation and may also arise from a desire by countries to respect these specificities and avoid a “one size fits all” approach. Binding international treaties to which countries are parties are generally well-known by central governments and legislators, and often made accessible in public repositories. But such consolidated information is usually not available on all international instruments applicable across different sectors and resulting from different international bodies. In addition, international organisations have developed organically, leading to mandates and rules that may overlap and that are not always fully consistent with each other. Understanding this international landscape is essential to identifying the international rules that can best address national and local challenges and understanding how to use them effectively, not least because of their varying legal effects. Acquiring this knowledge can bolster local rulemaking capacities, and support the alignment and co-ordination of approaches across constituencies (OECD, 2018[5]). Improving understanding of the ecosystem of international instruments is therefore fundamental to ensuring that they are well-used by IO constituencies.

Differences in terminology used in relation to international instruments can also pose a challenge for collaboration between IOs. In particular, these differences need to be taken into account in agreements on the joint use of instruments, or referencing or endorsing other organisations’ instruments. Common understandings, definitions and aligned processes can help IOs work together to achieve common goals, and to overcome differences in rulemaking procedures without necessarily going as far as developing joint instruments (see Chapter 5). The definition of key terms used in the UN Treaty Collection,2 for example, outlines some general characteristics and purposes of treaties, conventions and declarations and helps to bring clarity into how these terms are used within the UN framework. Similarly, the WTO/TBT’s Six Principles for International Standards frame the process for developing “international standards” (within the understanding of the WTO) across a variety of standard-setting bodies (OECD/WTO, 2019[6]).

Within the diverse landscape of international instruments, some patterns can be identified across the various instruments adopted by IOs, which allows them to be grouped into broad families with shared characteristics (Figure 1.1 and Table 1.1).3 The figure and table below provide an overview of the families of instruments and their defining features, benefits and challenges. However, specific modalities and definitions may vary between IOs and the typology presented is not intended as an exhaustive categorisation of every type of instrument. There are significant fluidity and overlaps across families. International instruments form a continuum rather than a series of distinct categories. For example, treaties and conventions can be complemented by incentive instruments, supporting instruments or policy instruments, and international technical standards can serve as a basis for drafting treaties and conventions.

IOs adopt a wide variety of international instruments with external normative value. While the approaches to international rulemaking vary across IOs and the ability to design and develop an international instrument depends on their respective mandates, the following categories of international instruments can be identified in the broader international normative landscape (OECD, 2016[1]) (OECD, 2019[2]):

  • Legally binding instruments that are directly binding on contracting parties either upon signature or upon ratification depending on the provisions of the instrument (e.g. treaties and conventions, agreements, decisions and other forms of prescriptive instruments);

  • Non-legally binding instruments which by nature or wording are not intended to be legally binding.

    • Where States transpose these instruments (or some of their provisions) into domestic legislation or recognise them in international legally binding instruments such as treaties, the relevant instruments or provisions acquire legally binding value (e.g. Mutual Recognition Agreements, model laws, legislative guides)

    • Statements of intent or guidance which are aimed specifically at encouraging certain behaviours and pooling experiences, or framing priorities and expressing commitments (e.g. declarations, guidelines, best practices).

It is worth noting that the proportionate use of non-legally binding instruments over those which are legally binding has increased, and continues to do so (OECD, 2016[1]) (OECD, 2019[2]). This is all the more the case that all the IOs adopting legally binding instruments also adopt non-legally binding ones (OECD, 2016[1]).

The variety of instruments is also present within individual IOs. Most IOs adopt many different types of instruments, and this can range from one type of instrument (e.g. ASTM International standards) to 16 types of instruments (2018 IO Survey) (OECD, 2016[1]). The selection and use of different instruments are systematic for certain IOs, but merely the result of living practice and ad-hoc processes for others. The extent of systematisation frequently depends on the membership characteristics, governance arrangements, rulemaking areas, founding mandates, and organisational objectives of IOs. For instance, intergovernmental organisations (IGOs) adopt a wider range of instruments than international private standard-setting organisations – which focus primarily on issuing international technical standards – and trans-governmental networks of regulators (TGNs), which generally develop best practice documents and guidelines (OECD, 2016[1]) (Abbott, Kauffmann and Lee, 2018[7]). With the exception of treaties, which are defined under international law and notably the Vienna Convention on the Law of Treaties,4 there is no common denomination and/or definition of the various international instruments produced by IOs. This variety is reflected in the multiple terms used by IOs to qualify the same type of instrument, and in that a single label may cover instruments with different attributes (OECD, 2016[1]).

For example, the term “recommendation” is typically understood very differently across IOs. While some commonalities can be identified, recommendations are most often used as non-legally binding instruments, embodying characteristics of different “families” of instruments by different IOs (Figure 1.1), whether policy, incentive or supporting instruments (Box 1.1).

Beyond the definitions provided under international law, IOs themselves do not necessarily define their instruments. They sometimes rely on the texts of founding documents, or following practice over time to develop an understanding (2018 IO Survey). Because of this absence of definitions at the international level and at the level of individual IOs, there has not been any generally-accepted typology of IO international instruments to date.

Nevertheless, looking at international instruments holistically, there is a complementarity between the different types of instruments, forming an overall “ecosystem of instruments”. In this sense, Some instruments can be considered as “primary”, in that they provide a broad framework for operation (typically treaties and conventions), whereas other instruments can be thought of more as “secondary” or “accessory to a primary instrument”. The latter either prepare the ground ex ante (for example by building political momentum via declarations) or support implementation ex post (i.e.through “supporting instruments”) (Box 1.2).

While there is a widespread use of all families of instruments, the families of instruments that are non-legally binding (e.g. policy instruments, incentive instruments, international technical standards, and supporting instruments) tend to be used much more often than legally binding ones. This may be explicable in that non-legally binding families of instruments are often emanations of treaties or prescriptive instruments which lay down the foundational core of legally binding obligations (OECD, 2016[1]).

The process for developing and adopting instruments generally varies from one organisation to another (OECD, 2016[1]) (OECD, 2019[2]). The heterogeneity of international instruments and rulemaking processes is partly explained by the diversity in the types of IOs and their activities, developments in the international organisations’ environments and in changing global circumstances (OECD, 2019[2]).

Treaties, prescriptive instruments and policy instruments such as recommendations and political declarations, as well as incentive instruments such as model laws, are mainly adopted by IGOs and secretariats of conventions (OECD, 2016[1]). International technical standards are typically developed by international private standard-setting organisations which tend to focus on those instruments. However, a number of open-membership IGOs also produce such standards (e.g. IAEA, WMO) (OECD, 2016[1]).

These rulemaking processes also display substantial variations within organisations themselves (OECD, 2019[2]) (2018 IO Survey). On the one hand, IGOs and secretariats of conventions adopt a wide variety of instruments. On the other hand, TGNs and international private standard-setting organisations tend to adopt fewer families of instruments (OECD, 2016[1]). This can be generally attributed to the various mandates of different types of IOs. While the subject matter covered by IGOs is broad in nature, the activities of TGNs foreground information-sharing, issuing best practices and producing guidance, and international private standard-setters (unsurprisingly) develop international technical standards.

The variety of international instruments, together with the sheer volume of such instruments today (which exceeds 70 000) (OECD, 2016[1]), may be challenging for those wishing to navigate the international normative landscape. Authorities regulating at the national level may struggle to identify the international instruments existing in their area of work, and thus to make use of them. Countries tend to have repositories of treaties that they are parties to, but rarely – if ever – possess broader repositories of all international instruments that exist in different sectors and that could apply to them (OECD, 2018[29]) (OECD, 2020[30]) (OECD, 2016[1]).

According to the 2018 IO Survey, 19 IOs have processes for developing, adopting or revising instruments that emerge from living practice,5 and three IOs6 do not follow any specific process (OECD, 2019[2]). The lack of clear, pre-established processes for developing and adopting international instruments may cause additional uncertainties, including for IOs themselves, due to reduced visibility and predictability of successive steps in the process.

The variety of terminology used and approaches followed also results in differences in legal effects, and corresponding uncertainty for members as to what process applies to their use, adoption and potential transposition in national jurisdictions. Treaties and conventions typically follow a well-established procedure of signature, ratification and entry into force, envisaged in particular in the Vienna Convention on the Law of Treaties (UN, 1969[31]). On the other hand, whether a treaty automatically becomes domestically binding once it has come into force internationally, or whether domestic transposing legislation is required, is a matter of varying national laws. The process is much less clear for other international instruments, particularly those that are voluntary such as policy instruments, incentive instruments, international technical standards and supporting instruments. The results of a survey across OECD Members recently confirmed that the majority do not have a standardised approach to incorporating international instruments, which are not treaties or conventions, into domestic legislation (OECD, 2018[32]).

IOs are increasing their efforts to provide greater clarity on the types of instruments they issue and their relevant rulemaking processes to their membership, as well as to the general public. These include general databases on all their instruments made available in a single source to facilitate easy access to their normative framework (Box 1.3). Some IOs also provide information on the status of legal instruments, thus supporting the overall predictability of the international normative framework (Box 1.3).

IOs have also put in place different procedures to help foster coherence within their overall normative framework. Some IOs have developed procedures that apply across the corpus of instruments (e.g. IEC), while others have specific coherence mechanisms in place (e.g. IFAC, IUCN). A few IOs prescribe a specific duration for the development and adoption of international instruments, beyond which a formal request must be submitted (e.g. ILO, Box 1.3). This encourages the time-efficient development of IOs’ instruments.

The variety of rulemaking processes and what has long appeared as strict normative frameworks have demonstrated flexibility in the context of COVID-19. The exchange of experiences among IOs, in particular within a series of webinars on COVID-19 and international rulemaking, have underlined the shared challenges faced despite different governance structures and procedures and highlighted the benefits of mutual learning for improving the flexibility and resilience of international rulemaking (OECD, 2019[2]). IOs typically operate under strict normative frameworks which set long-term mandates and are enabled by governance modalities and decision–making practices that are heavily reliant on face-to-face interactions among different actors. These interactions and procedures were heavily impacted during the COVID-19 pandemic, with lockdown measures and travel restrictions.

Ensuring continuity of normative activities became one of the key challenges faced by IOs during the COVID-19 crisis (OECD, 2020[33]). While few organisations had pre-existing experience in remote decision-making, most IOs managed to rely on their existing normative frameworks to pivot to remote operations and adapt their rulemaking procedures (Box 1.5). The digitalisation of some IOs’ rulemaking activities is likely to remain in place after the crisis. Going forward, IOs would benefit from intensified efforts to ensure that their frameworks and rules of procedure are suitable for remote operations, including normative activities, and to tap into the potential of these changes to improve their rulemaking practices.


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← 1. What this report refers to as “international technical standards” for descriptive purposes are sometimes referred to as “international standards” by some IOs, though not all. For example, in the context of the World Trade Organisation, to provide some guidance on the term, the Committee on Technical Barriers to Trade has adopted a Decision which sets out six principles for the development of international standards, including: i) transparency; ii) openness; iii) impartiality and consensus; iv) effectiveness and relevance; v) coherence; and vi) the development dimension. In addition, WTO case-law provides some guidance. According to such case law, for an instrument to be considered an “international standard” under the TBT Agreement it must both: constitute a “standard” (i.e. a document approved by a recognised body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory) and be “international” in character, i.e. adopted by an international standardising body. (OECD/WTO, 2019[6]).

← 2. https://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml.

← 3. The figures are provided a for analytical purposes, and are not intended to create definitions.

← 4. Article 2 (a) of the Vienna Convention on the Law of Treaties provides the following definition: “ “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

← 5. APEC, BIPM, CITES, ICRC, IEA (for communiqués, recommendations, joint statements), IFAC, ILAC, ILO, IOSCO, IUCN (for standard, best practice guidance, guidelines), OECD, OIE, OTIF,PIC/S, UNECE, UNFCCC, UNIDO, WCO, WMO.

← 6. IEA (for principles, best practice guidelines or best practices), IFRC (notably for the Code of Conduct for the International Red Cross and Red Crescent), IUCN (for the model treaties, declarations and principles).

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