The Role of Experts in the Elaboration of the Cape Town Convention: Between Authority and Legitimacy

• Author: Caroline Devaux
• Date: 01 November 2013
• Published date: 01 November 2013
• DOI: http://doi.org/10.1111/eulj.12070

The Role of Experts in the Elaboration of

the Cape Town Convention: Between

Authority and Legitimacy

Caroline Devaux*

Abstract: Globalisation and the development of fast transport and communications

have multiplied transnational situations that States, at times, appear ill equipped to

handle. Private actors, taking advantage of these new opportunities to claim their

authority, are now key actors in the production of transnational law. Since their place

in the production process does not have legal grounds, this paper intends to

‘transnationalise’ the legitimacy discourse by comparing its fundamental criteria to the

claim to authority of a particular group of private actors—the aviation experts—during

the elaboration of the Cape Town Convention. This article challenges this expertise-

based legitimation process which, despite being grounded on the ability of private actors

to develop effective solutions, reveals a limited output and input legitimacy. Finally, the

article suggests that the EU is well placed to carry out a legitimacy test to block the

reception of undemocratic claims to authority made by influential private actors.

I Introduction

Globalisation has challenged States, forcing them to rethink their role and preroga-

tives in a world more and more interconnected, where the notions of space and time

are shattered. These transformations have impacted on the production of law.1States

are now confronted with the multiplication of transnational situations that they find

it difficult to regulate.2Consequently, various strategies of regulation have flourished,

involving public–private partnerships and sometimes private norms.3Private actors

* PhD candidate, Sciences Po Law School, Paris. caroline.devaux@sciences-po.org. This paper has greatly

benefited from discussions with Professors Horatia Muir Watt, Diego Fernández Arroyo and Fabien

Gélinas. I also would like to thank Francis Snyder and all the participants in the WISH Conference 2012

for helpful comments and insights. All errors remain mine.

1P. Genschel and B. Zangl, ‘Transformations of the State-from monopolist to manager of political

authority’, (2008) TranState Working Papers 76, available online from the website http://www

.sfb597.uni-bremen.de/.

2S. Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press,

1996).

3This is the case of the governance of Internet, international trade or global finance. See for example on

the regulation of the sovereign debt, E. Helleiner, ‘Filling a Hole in Global Financial Governance? The

Politics of Regulating Sovereign Debt Restructuring’, in W. Mattli and N. Woods (eds), The Politics of

Global Regulation (Princeton University Press, 2009), at 89; on the importance of the rules enacted by

private actors such as the International Bar Association or the International Chamber of Commerce in

[Note: Correction added on 7 April 2014 after initial publication on 1 August 2013. The title of the

article has been corrected in this version of the article. It originally appeared as “The Role of Experts in

Experts in the Elaboration of the Cape Town Convention: Between Authority and Legitimacy”.]

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European Law Journal, Vol. 19, No. 6, November 2013, pp. 843–863.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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are now at the heart of the production of transnational law. Despite the proliferation

of these private initiatives, legal theories of international law still do not recognise any

role to private actors in the production of law.4According to the Westphalian tradi-

tion, only the State is authorised to create law. Apart from few exceptions recently

acknowledged by international law,5private actors do not have legal identity in the

production of law. They therefore have to hide behind diverse technical jargon,6and

to find techniques to secure their place in the processes of legal production. Such a

camouflage is dangerous. In fact, it is prone to excesses and misappropriations from

private actors which are not at risk of being controlled or held liable because they

remain invisible to the eyes of the law.7

This article focuses on the private actors’ claims to authority on the transnational

scene.8It attempts to establish how they have succeeded in occupying such a relevant

position in the process of lawmaking, and what are the consequences. Since the place

private actors occupy cannot simply be explained in legal terms, we propose to use the

concept of legitimacy, borrowed from social and political sciences, to analyse the role

played by private actors. We approach legitimacy with a pragmatic perspective,9

consisting in analysing the discourse of a specific category of private actors—the

aviation experts—in the elaboration of the Convention on international interests in

mobile equipment (Cape Town Convention). The article then highlights the potential

role of the EU in the face of this pervasive participation of private actors in the

production of transnational law.

The first section introduces the theoretical framework, associating the concept of

legitimacy with political theories on democracy. Legitimacy is presented as a rhetori-

cal discourse10 between an actor and a target audience, which combines substantial

and procedural elements. The article demonstrates that private actors in their quest

international commercial arbitration, see G. Kaufmann-Kohler, ‘Soft Law in International Arbitration:

Codification and Normativity’, (2010) 1(2) Journal of International Dispute Settlement at 283–299; on the

private codification of international commercial law, see D.P. Fernández Arroyo, ‘La multifacética

privatización de la codificación internacional del derecho comercial’, in J. Basedow, D.P. Fernández

Arroyo and J.A. Moreno (eds), ¿Cómo se codifica hoy el derecho comercial internacional? (Thomson

Reuters, 2010), at 51; see also the role of multinational corporations in the development of a regime of

corporate social responsibility, J.A. Zerk, Multinationals and Corporate Social Responsibility (Cambridge

University Press, 2006).

4There are some theories which do accommodate the role and the instruments created by private actors

but these are the minority. See the interactional theory of law by Lon Fuller, L.L. Fuller, ‘Human

Interaction and the Law’, (1969) 14 American Journal of Jurisprudence 1, the theory of the law of people

by Georges Scelle, G. Scelle, Précis de droit des gens, Principes et systématique (Sirey, 1932) or the

theories on legal pluralism (for a general introduction, see J. Griffiths, ‘What Is Legal Pluralism’, (1986)

24 Journal of Legal Pluralism and Unofficial Law 1).

5Until recently, the quality of subject of international law was exclusively reserved to States. Today,

international organisations may also enjoy an international legal personality. Moreover, individuals have

seen their rights, liberties and obligations recognised at the international level as well as the opportunity

to bring an action before certain international jurisdictions.

6Such as observers, experts, special guests, consultants, rapporteur or amicus curiae.

7H. Muir Watt, ‘Private International Law Beyond the Schism’, (2011) 2 Transnational Legal Theory 347.

8Anne Claire Culter suggests applying the concept of authority to private actors. A.C. Cutler, V. Haufler

and T. Porter (eds), Private Authority and International Affairs (SUNY Press, 1999).

9See the talk by Benoît Frydman at the PILAGG seminar (Private International Law as Global Gov-

ernance) on the 9th of February 2012 at Sciences Po, Paris, ‘Comment penser le droit global?’ available

online on the website http://blogs.sciences-po.fr/pilagg.

10 On the power of rhetorical discourse, see Platon, Gorgias, Présentation et traduction par Monique

Canto-Sperber (Flammarion, 2007).

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