Download - The International Law of Global Governance
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The International Law of Global Governance
Session 2: The Law Regulating the Authority of Global Governance Institutions
Eyal Benvenisti The Hague9 July, 2013
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The main questions:
1. What are the sources of GAL?
2. How GAL is being developed? History of evolution of GAL and challenges to it
3. Legal hindrances: non-justiciability, immunities
4. GAL in informal/private GGIs
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1. The Sources of GAL
Normative grounds in domestic law:
1. The formal rule of law approach mirrored in the doctrine of ultra vires (abus de droit).
2. Agency theory of governance: the public authority as a trustee of the citizens.
3. Accountability as a human rights issue: due process rights, protection of individual rights.
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1.2 International parallel: lost in translation?
The problem: No concept of a Global Rule of Law; no doctrine of ultra vires in the global context
In fact – just the opposite! Formal IOs have unfettered discretion, based on a set of doctrines of international law:
1. IOs have independent legal personality. Hence not bound by treaties of member states unless parties.
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1.2 International parallel: lost in translation? (cont.)
2. Powers are delimited (but not limited) – the doctrine of
attributed powers
3. But “powers” are widely interpreted: interpretive doctrines
that are bent on “effective” interpretation or “effet utile”
4. IOs have implied powers
5. and enjoy immunities
6. and operate in a fragmented legal space (“self-contained”
regimes)
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1.2 The underlying assumptions informing this approach:
• Any IO is improvement on previous state of affairs• IOs are well-meaning• IOs are weak; legal burden is counterproductive• States’ control of IOs is sufficient to reign in IO
executives
But since 1990s increasingly clear that the assumptions are problematic
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1.3 New Legal Responses to Tame IOs1. The “reasonable alternative protection” as an IO
obligation (obligations possibly derived from member states’ obligations – the Waite & Kennedy jurisprudence vs. Germany v. Italy)
2. IO founding treaty interpreted as subject to GAL obligations
3. The independent IO obligation to comply with CIL:a) IOs are subject to CIL and General Principles of lawb) HRs are part of CIL/GPLc) GAL as derived from HRL
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1.4 How HRL is relevant to GAL?
• Access to information & Transparency as an independent right
• Administrative justice as a human right (e.g. Article 6(1) ECHR)
• Information and accountability as a remedial right
• The right to effective review
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2. How GAL is being developed? History of Evolution of GAL and challenges to it
• Historically, administrative law develops as a tool of controlling decision-makers by those with interest and ability
• Who has an interest in developing GAL? – State parties? • to control other state parties? • to control the bureaucracy?• To control the principals?
– The bureaucracy?
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2. How GAL is being developed? (cont.)
• Third parties: other IOs/GGIs? National legislatures and courts? Civil society?
• Why did DARIO refrain from endorsing the doctrine of equivalent protection (Waite and Kennedy, Bosphorous)?
• What are the prospects of a truly global AL (as opposed to internal norms within each IO)?
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3. Legal hindrances• Non-Justiciablity: UNSC and the ICJ – the Lockerbie
Case
• Sui generis/self-contained regimes
• Immunity regained: – ICJ’s indirect rebuke to Waite and Kennedy in Jurisdictional
Immunities of the State (Germany v. Italy: Greece Intervening) (2012)
– Mothers of Srebrenica v. Netherlands and United Nations, Netherlands Supreme Court (2012); and ECtHR (2013)
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4. The law on informal/Private GGIsSubstantive Law: What law applies to private standard setters? Bases for applying public norms to private actors:1. “State Action” doctrine: the private actor as public
authority
2. Interpretation of private law obligations of individuals: – New York Times v. Sullivan (civil rights inform the
interpretation of the responsibilities of individuals)– The German doctrine of human rights “Drittwirkung”
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4. The law on informal/Private GGIs (cont.)
3. The responsibility of the court toward litigants (e.g. use of forum non conveniens doctrine to review dispute settlement procedures in foreign GGIs)
4. Functionality: The ECJ and the indirect applicability of Community law to ensure the effectiveness of community law (e.g., Meca-Medina)
Institutional Perspective: Who enforces these norms?1. State Executives?2. National Courts