Showing papers by "Armin von Bogdandy published in 2008"

Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities

Abstract: This paper develops a comprehensive framework for the legal analysis of global governance phenomena. Global governance is considered as an important analytical perspective which points out new trends in international relations. However, from a normative standpoint it is unsatisfactory, as it does not allow to single out those activities of international institutions which compromise individual self-determination. To this end, the paper proposes the concept of "international public authority", which allows identifying all hard and soft mechanisms that constitute unilateral exercises of power. For such unilateral, public power to be legitimate, it needs to correspond to yet to be defined standards of public law. After discussing current legal approaches like Global Administrative Law and constitutionalism, which all aim at the development of such standards, the paper proposes a comprehensive public law approach, which finds its basis in international institutional law. This approach would avoid the uncertainties surrounding the legal bases of principles of Global Administrative Law and the risk of constitutionalism to fail on its normative ambitions. The paper sets out the framework of a comprehensive research project on the exercise of international public authority by international institutions.

Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law

Abstract: The article addresses the question of whether the metaphor of the “ legal pyramid ” as the structural representation of the relationships between international and domestic law should be deconstructed on account of the internationalization of constitutional law. On a theoretical level, it argues that the pyramid is a concept, linked to Kelsenian monism, which has outlived its usefulness. But dualism should also be overtaken by a theory of legal pluralism. On a doctrinal level, the linkage of the orders by the doctrine of self-executing international norms should be reconstructed and understood as the balancing of constitutional principles. A third thesis refers to the value judgments implicit in the question, holding that it should be answered within the domestic constitutional process, according to the experience, expectations, and convictions of the various constitutional constituencies. Given the state of international law, it would be preferable to have the capacity legally to limit the effect within the domestic legal order of a norm or an act under international law if that norm or act confl icts sharply with constitutional principles

Developing the Publicness of Public International Law: towards a Legal Framework for Global Governance Activities

Abstract: The research project which this article introduces, proposes a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. We were intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Thus, a private real estate sale in Berlin is blocked by a decision of the UN SecurityCouncil Al-Qaida and Taliban Sanctions Committee; the construction of a bridge in Dresden is legally challenged because the affected part of the Elbe river valley had been included on UNESCO’s list of World Heritage; or educational policies most relevant to our children are profoundly reformed due to the OECD Pisa rankings. These examples illustrate that governance activities of international institutions may have a strong legal or factual impact on domestic issues. This calls upon scholars of public law to lay open the legal setting of such governance activities, to find out how, and by whom, they are controlled, and to develop legal standards for ensuring that they satisfy contemporary expectations for legitimacy. This article sketches out the objective, argument and approach of our project and proceeds in three steps: a first step specifies the object of analysis (B.); a second step discusses how the phenomena thus identified should be approached in a legal perspective (C.); in a third and final step, we explain the concrete methodology of our project (D.).

General Principles of International Public Authority: Sketching a Research Field

Abstract: The term principle is ubiquitous in the thematic studies and the crosscutting studies of this research project on the exercise of public authority by international institutions. Apparently its legal analysis and normative framing is difficult to achieve without principles. This is no specificity of this undertaking: Legal research on the public authority of international institutions regularly deals with the issue of principles. General principles for all international institutions are of specific interest as they might tie the various institutions into one legal universe. Yet, precisely their variety, even heterogeneity raises the question if such principles can be anything but “stars which give little light because they are so high.” This quotation from Francis Bacon’s “On the Advancement of Learning” precedes Edward Carr’s classical study on the problems of a sweeping, principled and idealistic approach to international phenomena. The aim of this contribution is therefore not so much a discussion of individual principles, which is done in other studies of this research project. A first aim is to study more closely how principles are used in legal discourses (B.). I will distinguish between structural principles, guiding principles and legal principles. This makes it easier to grasp the various meanings and scholarly agendas pursued under the term principle. In section C. I discuss the impact of emerging principles of international authority on the general evolution of public international law and its scholarship in times of global governance. Thereby I hope to add further support to our general approach and to prepare the ground for the most difficult part of this contribution, the one on the development of general principles (D.). In section D., I will first review possible legal bases of general principles (D.I.), suggesting internal constitutionalization as the best path in light of the heterogeneity and fragmentation of international law. Second (D.II.), I will discuss the roles of international and domestic judges in that process, stressing their common, but differentiated responsibility. Eventually, some individual principles of international institutions will be outlined in light of the principles of the European Union (E.).

The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity - Elements of a Beautiful Friendship

Abstract: Cultural diversity is an important political and legal topos in the European Union. At the same time, the concern for cultural diversity gives reason for grave reservations towards the Union. This article intends to assist, on the basis of international law, in distinguish- ing appearance and reality. The Union will be analysed first as a situation of the applica- tion of the international law of cultural diversity, secondly as the regional executive of this international law, and thirdly as its global promoter. It shows that international law and Union law reinforce each other. The former conveys to the Union instruments to pursue European unification which at the same time serve its own implementation. Furthermore, it does not set limits to European unity since it protects only cultural pluralism but not state-supporting distinctiveness. A prerequisite for this consonance is that the Union's constitutional law allows for political unity without cultural unity and that international law remains mute about important questions on European unification. The international law perspective thus does not fully exhaust the prob- lem: conformity with international law alone cannot dissipate concern for the future of cultural diversity in the Union.

The Exercise of International Public Authority through National Policy Assessment: The OECD's PISA Policy as a Paradigm for a New International Standard Instrument

Abstract: The OECD Programme for International Student Assessment (PISA) is probably the most prominent signpost for the internationalization of educational policy. The PISA reports on the performance of secondary school students have become an important factor for educational policy-making in the developed world. In some states PISA has spurred more educational reforms than anything before it during the last decades. What is more, PISA succeeded in shifting approach and focus in a most sensitive area of domestic policy touching on social justice and the self-understanding of the citizenry: Because of PISA, policy-making in the field of school education changed from normative, input-oriented reasoning to comparative, empirical, output-oriented analysis. The international plane succeeded in establishing itself as indispensable in a field thus far essentially conceived as domestic.PISA owes its impact on educational policy to a mode of governance which we call "governance by information". It describes mechanisms which impact on a given policy field by shaping the cognitive framework of policy-making through the collection, processing and dissemination of information. International and supranational institutions more and more often take recourse to governance by information. This article explores the repercussions of governance by information for international law in an approach that stresses the publicness of public international law and the role of international institutional law in legally framing global governance. Thus far, these questions have been hardly explored, in spite of the enormous impact of PISA on national policy. We hypothesize that this is because the knowledge and experience of international lawyers relate mostly to international treaties and other binding legal instruments. Governance by information, by contrast, determines society indirectly through instruments which establish or contribute to the cognitive setting within which policy-makers operate. But since no legal obligations are imposed upon states or individuals, it escapes the established perspective of international lawyers, just as many other instruments, actors and processes of global governance do.In the article, we first provide an overview of PISA and its legal framework (II). Thereafter, we explain why PISA should be considered an exercise of public authority and why it therefore needs a solid public law framework. This part develops a concept of international public authority that focuses on the social relevance of official acts and their impact on individual freedom (III). Third, we explore on a theoretical level how a legal framework could be established for new forms of public authority. In the tradition of German and Italian public law scholarship we suggest the doctrinal construction of "standard instruments" (Handlungsformen). This doctrinal construction does not rest on the belief that legal concepts automatically evoke legitimacy. Rather, it stresses the communicative function of legal doctrine, which provides a stable basis for the exercise of authority while at the same time serving as a forum for contestation (IV). In the following part, we construct and propose a standard instrument called "National Policy Assessment" (Politikbewertung) which is designed to grasp the thrust of PISA and similar policies in a legally significant manner (V). Subsequently, the legal regime of National Policy Assessment is developed by identifying basic legal elements within the legal framework of PISA which we deem instrumental for the legitimacy and effective functioning of this standard instrument. Those elements relate to the mandate on which National Policy Assessment needs to be based, the respect for scientific standards and the representativeness of expertise, access to the assessment data, and national ownership of the assessment results. After a critical appraisal of these elements, we consider the repercussions of the legal regime of National Policy Assessment thus established for other international institutions venturing in the area of education. The example of PISA demonstrates that governance by information is based on a quite elaborate legal framework. Standard instruments are a useful doctrinal category for abstracting basic legal elements and principles from this legal framework, which adds to the legitimacy and effectiveness of the authority thus exercised. This abstraction also enables criticism from various theoretical vantage points. Moreover, the establishment of standard instruments gives policy-makers in international institutions a resource for transposing this type of governance to other issue areas. Once such a legal regime is sufficiently complex to ensure legitimacy and efficiency, it might be applied to other areas. In this respect, doctrinal conceptualization has a rationalizing and clarifying effect.Lastly, we see National Policy Assessment as a valuable tool for holding national governments accountable for their performance. As performance has an impact on the legitimacy of public authority, it would be worthwhile to consider to what extent national governments might be obliged de lege ferenda to expose themselves to such accountability mechanisms. As states are less and less able to meet the needs of a globalized world, and as their citizens and economies must compete on worldwide markets, the legitimacy of the state-based structure of the international legal order might fade if states do not continue to perform on a high level.

Universalism and Particularism as Paradigms of International Law

Abstract: This contribution seeks to place theories about international law within the framework of their fundamental conceptual preconditions, within their “paradigms”. This should provide a better understanding of, and a more critical perspective on, the diverse and contrasting positions within international legal scholarship. We trace the impressive variety of visions of international law back to two competing paradigms: particularism and universalism. Particularism – from antiquity to structural neo-realism and neo-conservative thought – forms the basis of all theories of international law which assert that true public order is only possible within a homogeneous community. Accordingly, international law can at best provide some containment of disorder. In contrast, universalism – formulated in the stoic-rationalistic and Christian tradition and well alive in authors such as Tomuschat and Habermas – underlies all positions which assert that truly public order is in principle possible on a global scale. Granted, some authors, particularly postmodern ones, try to move beyond the two paradigms. They are not part of the focus of this paper, as the two remain to date powerful conceptual tools providing orientation for many international lawyers. The first chapter is dedicated to the role of theory for international legal scholarship (I.). The second chapter turns to the debate on the legitimacy of today’s international law given its deep encroachments on political self-determination; it develops the two paradigms in this specific context (II). The third chapter presents in more detail the paradigm of particularism (III), the forth chapter that of universalism (IV). In conclusion, we suggest how these paradigms inform concrete interpretations, take a position in favor of universalism, but also indicate how legal scholarship can overcome theoretical divisions (V).

International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority

Abstract: The concept of composite administration has been presented here as a conceptual tool for a better legal understanding of the various and heterogeneous norms con-cerning the exercise of public authority through the interplay between international institutions and national administrations, between various member State adminis-trations as well as between various international institutions. In doing so, the con-cept should demonstrate its usefulness for the legal analysis of such forms of ad-ministrative collaboration, and its difference to the concepts of multi-level systems and networks. The aim of the concept is therefore not one of critique. The legitima-cy of composite administration has not been the central focus. The concept's aim is rather to provide an analytical concept to mark typical elements, name recurrent problems and indicate further areas of research.However, even though the main purpose of the concept is heuristic, it carries a normative component as it is embedded in a normative vision of peaceful co-operation between polities organized by international institutions which live up to their publicness. International administration does not always conform to this vision: distrust, neglect, or hegemonic aspirations are not unfamiliar phenomena. Yet we believe that the vision which underlies the concept of composite administra-tion has a sufficient legal basis in order to inform the construction of positive law and provide a meaningful general idea.

International Composite Administration: Conceptualizing multi-level and network aspects in the exercise of international public authority

Abstract: The administration of the traditional nation-state used to operate as a rather closed system to the outside world. Today, cooperation between the public authorities of different States and between States and international bodies is a common phenomenon. Yet the characteristics and mechanics of such cooperation can hardly be understood using the concepts domestic public law or public international law currently on offer. Conventional concepts, such as federalism, confederalism or Statecentered “realism” hardly fathom the complexity of interactions or reflect the changed role of the State, while more recent concepts, such as multi-level systems or networks, seem to encompass only parts of the phenomena at hand. Given this void, we propose to explore the notion of “composite administration” (Verbundverwaltung) and argue that it offers a concept which can combine more coherently the seemingly diverging legal elements of cooperation and hierarchy that distinguish administrative action in what often is called a multi-level administrative system. Even though the concept of composite administration was originally designed and further developed with respect to the largely federal European administrative space, we suggest testing the concept in the wider context of international cooperation. We believe that it offers valuable insights and raises critical questions, even though we do not intend to insinuate any proto-federal prospects of the institutions discussed in this paper.

Codes of Conduct and the Legitimacy of International Law

Abstract: Fully agreeing with Helen Keller’s paper1 on codes of conduct this comment will develop a further argument in support of its conclusions. It will show that the legitimacy of such codes affects the legitimacy of international law. For that purpose it will address the legitimacy of international law in the light of its lacunae. At issue is whether a legitimate code of conduct can justify a gap in international law and the relevant omission by the international community. A gap in the broad meaning of this contribution exists either because the relevant international law does not apply, or because existing international law is not respected, or because there is no adequate regulation in international law.2