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CIAO DATE: 06/06
2005 (Volume 17 Issue 1)
Articles
Global Administrative Law: The View from Basel By Michael S. Barr* and Geoffrey P. Miller**
* Assistant Professor, University of Michigan Law School.
** William T. and Stuyvesant P. Comfort Professor of Law, New York University School of Law.
Email: msbarr@umich.edu.
Email: geoffrey.miller@nyu.edu
International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of global administrative law inherent in the Basel process that could be a model for international law-making with greater accountability and legitimacy.
The Administrative Law of Global Private-Public Regulation: the Case of Forestry By Errol Meidinger*
* Professor and Vice Dean of Law for Research, Adjunct Professor of Sociology, State University of New York at Buffalo, USA and Honorary Professor of Forestry and Environmental Science, University of Freiburg, Germany.
Email: eemeid@buffalo.edu.
An important ensemble of transnational, transgovernmental regulatory institutions has emerged in the forestry sector over the past decade. These ‘forest certification' programmes set global standards for proper forest management and apply them through institutionalized licensing and inspection programmes. Similar programmes are appearing in other sectors. Developed largely by environmental NGOs and industry associations rather than governments, forest certification programmes are nominally voluntary, but are becoming increasingly mandatory in practice. They are also gradually linking with government regulatory and management programmes in various ways, while remaining in tension both with each other and with government programmes. The overall regulatory system is thus highly dynamic, as the programmes compete with each other for business and also with government regulatory programmes for public acceptance. This paper describes and assesses the administrative law – i.e., the requirements for rule-making and rule application – of the emerging global forest regulatory system. It finds that while the certification programmes are becoming increasingly transparent and participatory, often comparing favourably with government programmes, some of them still need considerable improvement and all of them face serious challenges. It concludes with a discussion of the problem of accountability, outlining the possibility that the programmes exemplify an emerging new kind of ‘learning accountability'.
Non-Electoral Accountability in Global Politics: Strengthening Democratic Control within the Global Garment Industry By Terry Macdonald* and Kate Macdonald**
* Merton College, Oxford University.
** St Antony's College, Oxford University.
E-mail: terry.macdonald@merton.ox.ac.uk
E-mail: kate.macdonald@st-antonys.oxford.ac.uk
This article challenges the widespread view that democratic accountability is unattainable in global politics because of the impracticality of establishing global elections. Instead, it argues that global democratic accountability can potentially be achieved by instituting non-electoral mechanisms that perform equivalent accountability functions through more workable institutional means. This argument is defended at a theoretical level, and further illustrated by analysing an empirical case study of the institutions through which labour standards in the global garment industry are determined. The article first explains why electoral mechanisms are no longer a viable means for achieving democratic accountability in political contexts such as the global garment industry, that are characterized by the decentralized dispersion of public decision-making power among a range of organizationally disparate state and non-state actors. It then identifies the key democratic function of electoral accountability as that of ensuring a reasonable degree of public control over public decision-making, and argues that this normative function can, in principle, be legitimately performed through non-electoral as well as electoral mechanisms. Finally, it elaborates the key institutional features of a legitimate framework of non-electoral accountability – public transparency and public disempowerment – and illustrates how these functions could potentially be achieved in practice, with reference to the example of the global garment industry.
Investment Treaty Arbitration as a Species of Global Administrative Law By Gus Van Harten and Martin Loughlin*
* Both of the Law Department, London School of Economics and Political Science.
Emails: H.H.Van-Harten@lse.ac.uk
M.Loughlin@lse.ac.uk
The article outlines a simple thesis: that international investment arbitration – pursuant to regional and bilateral investment treaties – offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.
WTO Government Procurement Rules and the Local Dynamics of Procurement Policies: A Malaysian Case Study By Christopher McCrudden* and Stuart G. Gross**
* Professor of Human Rights Law, Oxford University; Fellow, Lincoln College, Oxford.
** Associate, Shearman & Sterling LLP, New York; JD University of Michigan Law School, 2004.
Email: christopher.mccrudden@law.ox.ac.uk
Email: stugross@hotmail.com
This article examines efforts to create binding international rules regulating public procurement and considers, in particular, the failure to reach a WTO agreement on transparency in government procurement. The particular focus of the discussion is the approach taken by Malaysia to these international procurement rules and to the negotiation of an agreement on transparency. Rules governing public procurement directly implicate fundamental arrangements of authority amongst and between different parts of government, its citizens and non-citizens. At the same time, the rules touch upon areas that are particularly sensitive for some developing countries. Many governments use preferences in public procurement to accomplish important redistributive and developmental goals. Malaysia has long used significant preferences in public procurement to further sensitive developmental policies targeted at improving the economic strength of native Malays. Malaysia also has political and legal arrangements substantially at odds with fundamental elements of proposed global public procurement rules. Malaysia has, therefore, been forceful in resisting being bound by international public procurement rules, and has played an important role in defeating the proposed agreement on transparency. We suggest that our case study has implications beyond procurement. The development of international public procurement rules appears to be guided by many of the same values that guide the broader effort to create a global administrative law. This case study, therefore, has implications for the broader exploration of these efforts to develop a global administrative law, in particular the relationship between such efforts and the interests of developing countries.
Global Administrative Law: The Quest for Principles and Values By Carol Harlow*
* Emeritus Professor of Law, London School of Economics.
There is currently much interest in the question whether a global administrative law is coming into being and, if so, whether this is desirable or otherwise. This paper addresses the question of principles for a global administrative law. It considers four potential sources and their suitability as a foundation for a global administrative law system: first, the largely procedural principles that have emerged in national administrative law systems, notably the principle of legality and due process principles (Section 3); second, the set of rule of law values, promoted by proponents of free trade and economic liberalism (Section 4); third, the good governance values, and more particularly transparency, participation and accountability, promoted by the World Bank and International Monetary Fund (Section 5); and finally, human rights values (Section 6). The paper ends on a sceptical note, concluding that a universal set of administrative law principles is difficult to identify and not especially desirable. First, administrative law is primarily a Western construct, protective of Western interests. It may impact unfavourably on developing economies. Secondly, the evolution of global administrative law in adjudicative forums is leading to an undesirable ‘juridification of the political process'. The paper concludes that diversity and pluralism are preferable.
Turning Off the Tap: Urban Water Service Delivery and the Social Construction of Global Administrative Law By Bronwen Morgan*
* Professor of Sociolegal Studies, University of Bristol, UK.
Email: B.Morgan@bristol.ac.uk.
This article explores the development of a cross-border dimension to the delivery of urban water services as an arena for the social construction of global administrative law. When companies from one country deliver water services in another country under decades-long concession contracts, the ensuing political and legal struggle engages one of the central strands of administrative law traditionally understood: the question of participation in decision-making processes that affect vital individual interests. Moreover, it does so in an arena that embeds public and private actors in hybrid routines of both formal and informal participation at multiple levels of governance. Using Argentinian and South African case studies, the article teases out in detail the interplay between international and domestic levels of the forms and processes (both formal and informal) that facilitate participation in transnational urban water services governance. The process of socially constructing global administrative law is centred in iterative interaction between formal legal and informal political modes of participation, especially social protest and political negotiations. It is a process with two modes, political and technical, and the political salience of global administrative law is shaped first by differential capacities to deploy both modes, and secondly by the capacity to switch between national and international levels of governance.
The Pluralism of Global Administrative Law By Nico Krisch*
* Merton College, Oxford University.
Email: nico.krisch@merton.ox.ac.uk.
As public power is increasingly exercised in structures of global governance, principles of domestic law and politics are extended to the global level, with serious repercussions for the structure of international law. Yet, as this article seeks to show for the emerging global administrative law, this extension is often problematic. Using administrative law mechanisms to enhance the accountability of global regulation faces the problem of fundamental contestation over the question of to whom global governance should be accountable. National, international and cosmopolitan constituencies are competing for primacy, and this results in an often disorderly interplay of accountability mechanisms at different levels and in different regimes. This pluralist structure, based on pragmatic accommodation rather than clear decisions, strongly contrasts with the ideals of coherence and unity in modern constitutionalism and domestic administrative law. However, given the structure of global society, it is likely to endure and it is also normatively preferable to alternative, constitutionalist approaches. It helps avoid the friction that may result from a federal-type distribution of powers and the practical problems of a consociational order, and by denying all constituencies primacy it reflects the legitimacy deficits of each of them. Mirroring divergent views on the right scope of the political order, it also respects everybody's equal right to political participation. A pluralist global administrative law thus presents an alternative to problematic domestic models for ensuring accountability in the circumstances of global governance.
To Do Away with International Law? Some Limits to ‘The Limits of International Law' By Anne van Aaken*
* Senior Research Fellow, Max Planck Institute for Research on Collective Goods
Email: vanaaken@coll.mpg.de.
Different methodological approaches to international law abound. Recently the rationalist, game-theoretical approach in the law and economics tradition has gained much prominence, certainly so in the United States. Within this tradition the volume by Professors Goldsmith and Posner purports to set a milestone by providing a comprehensive explanatory theory of international law with normative lessons in order to put international law and its scholarship on a more solid foundation. In principle, the combination of careful doctrinal description and consequentialist social science theory is to be welcomed. The way in which the authors pursue that goal is, however, questionable. They sometimes show a biased understanding of rationality, use only basic game theory, and give ad hoc explanations and examples, failing to account for more recent developments in international law. Not pursuing international law and economics any further, however, would amount to throwing out the baby with the bathwater. Instead, more sophisticated, constructive and thoughtful rationalist approaches to international law ought to be further developed. Even though the Goldsmith-Posner critique of international law scholarship is an opportunity to critically reflect on some of international law's institutional and conceptual limitations, ‘The Limits of International Law' have not yet been reached.