The Emergence of Global Administrative Law
01 Jan 2013-Iss: 1, pp 37-58
TL;DR: Global Administrative Law (GAL) as mentioned in this paper is an emerging field of international regulatory law that is influenced by international organizations, intergovernmental networks, distributed administration, and both hybrid public/private and private transnational regimes.
Abstract: Emerging administrative law mechanisms are influencing decision making and rule making in the growing variety of global regulatory structures. These include international organizations, intergovernmental networks, distributed administration, and both hybrid public/private and private transnational regimes. We define Global Administrative Law (GAL) as the principles, procedures, and review mechanisms emerging to govern these bodies’ decision making and rulemaking, largely leaving aside the substantive content of rules and considering GAL’s sources more broadly than classical sources of public international law. We examine these and the doctrinal principles of transparency, participation, reasoned decision-making, review, and substantive standards that have developed. We next consider conceptions of GAL’s normative foundations from pluralist, solidarist, and cosmopolitan approaches to international ordering, and discuss possible biases inherent in GAL. We then consider different institutional design strategies for constructing GAL given the challenges and opportunities presented by shifting from the domestic to the transnational regulatory space. We conclude that the field of Global Administrative Law is an important and distinct emerging phenomenon deserving systematic study and development.
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TL;DR: The notion of the right to rule is subject to stronger and weaker interpretations, but for now it will suffice to say that an institution is legitimate in the sociological sense when it is widely believed to have the right.
Abstract: ‘Legitimacy’ has both a normative and a sociological meaning. To say that an institution is legitimate in the normative sense is to assert that it has the right to rule — where ruling is promulgating rules and attempting to secure compliance with them by attaching costs to noncompliance and/or benefits to compliance. Ruling in this broad sense does not require that the rules be backed by coercion, much less that the rulemaker claims a rightful monopoly on coercion within a jurisdiction, so it does not presuppose the state. Later we will see that the notion of the right to rule is subject to stronger and weaker interpretations, but for now it will suffice to say that an institution is legitimate in the sociological sense when it is widely believed to have the right to rule.1 When people disagree over whether the WTO is legitimate, they are not disagreeing about whether they or others believe that institution has the right to rule; they are disagreeing about whether it has the right to rule.
858 citations
TL;DR: In this paper, the authors argue that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making, and they trace its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorisation, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.
Abstract: This article argues that current widespread characterisations of EU governance as multi-level and networked overlook the emergent architecture of the EU's public rule making. In this architecture, framework goals (such as full employment, social inclusion, 'good water status', a unified energy grid) and measures for gauging their achievement are established by joint action of the Member States and EU institutions. Lower-level units (such as national ministries or regulatory authorities and the actors with whom they collaborate) are given the freedom to advance these ends as they see fit. But in return for this autonomy, they must report regularly on their performance and participate in a peer review in which their results are compared with those pursuing other means to the same general ends. Finally, the framework goals, performance measures, and decision-making procedures themselves are periodically revised by the actors, including new participants whose views come to be seen as indispensable to full and fair deliberation. Although this architecture cannot be read off from either Treaty provisions or textbook accounts of the formal competences of EU institutions, the article traces its emergence and diffusion across a wide range of policy domains, including telecommunications, energy, drug authorisation, occupational health and safety, employment promotion, social inclusion, pensions, health care, environmental protection, food safety, maritime safety, financial services, competition policy, state aid, anti-discrimination policy and fundamental rights.
696 citations
01 Mar 2007
TL;DR: The present and future of disclosure are examined in detail in 18 major cases: Eighteen major cases of information-based regulation, Governance by transparency, and the future of disclosures.
Abstract: 1. Governance by transparency 2. An unlikely policy innovation 3. Designing information-based regulation 4. What makes disclosure work 5. What makes disclosure policies sustainable? 6. International transparency 7. Toward collaborative transparency 8. The future of disclosure Appendix: Eighteen major cases.
688 citations
TL;DR: The Earth System Governance Project (ESGP) as discussed by the authors is a 10-year global research effort endorsed by the International Human Dimensions Programme on Global Environmental Change (IHDP), which aims to develop strategies for Earth System management.
Abstract: The Earth System Science Partnership, which unites all major global change research programmes, declared in 2001 an urgent need to develop “strategies for Earth System management”. Yet what such strategies might be, how they could be developed, and how effective, efficient and equitable such strategies would be, remains unspecified. It is apparent that the institutions, organizations and mechanisms by which humans currently govern their relationship with the natural environment and global biochemical systems are not only insufficient—they are also poorly understood. This article presents the science programme of the Earth System Governance Project, a new 10-year global research effort endorsed by the International Human Dimensions Programme on Global Environmental Change (IHDP). It outlines the concept of earth system governance as a challenge for the social sciences, and it elaborates on the interlinked analytical problems and research questions of earth system governance as an object of study. These analytical problems concern the overall architecture of earth system governance, agency beyond the state and of the state, the adaptiveness of governance mechanisms and processes as well as their accountability and legitimacy, and modes of allocation and access in earth system governance. The article also outlines four crosscutting research themes that are crucial for the study of each analytical problem as well as for the integrated understanding of earth system governance: the role of power, knowledge, norms and scale.
304 citations
TL;DR: In this paper, the authors argue that before developing even more proposals, we need to pay far greater attention to the dynamics of accountability and legitimacy relationships, and to how regulators respond to them.
Abstract: The legitimacy and accountability of polycentric regulatory regimes, particularly at the transnational level, has been severely criticised, and the search is on to find ways in which they can be enhanced. This paper argues that before developing even more proposals, we need to pay far greater attention to the dynamics of accountability and legitimacy relationships, and to how regulators respond to them. The article thus seeks to develop first, a closer analysis of the significance of the institutional environment in the construction of legitimacy, the dialectical nature of accountability relationships, and the communicative structures through which accountability occurs and legitimacy is constructed. Secondly, it explores how regulators respond, or are likely to respond, to multiple legitimacy and accountability claims, and of how they themselves seek to build legitimacy in complex and dynamic situations. This analysis, as well as being of intrinsic interest, could be of use to those trying to design accountability relationships or seeking to build them on the ground. For until we understand the implications of the pressures for accountability and legitimacy, the 'how to' proposals which are proliferating risk being simply pipe dreams: diverting, but in the end making little difference.
283 citations
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TL;DR: In this article, the authors identify seven types of accountability mechanisms and consider their applicability to states, NGOs, multilateral organizations, multinational corporations, and transgovernmental networks, and identify opportunities for improving protections against abuses of power at the global level.
Abstract: Debates about globalization have centered on calls to improve accountability to limit abuses of power in world politics. How should we think about global accountability in the absence of global democracy? Who should hold whom to account and according to what standards? Thinking clearly about these questions requires recognizing a distinction, evident in theories of accountability at the nation-state level, between “participation” and “delegation” models of accountability. The distinction helps to explain why accountability is so problematic at the global level and to clarify alternative possibilities for pragmatic improvements in accountability mechanisms globally. We identify seven types of accountability mechanisms and consider their applicability to states, NGOs, multilateral organizations, multinational corporations, and transgovernmental networks. By disaggregating the problem in this way, we hope to identify opportunities for improving protections against abuses of power at the global level.
1,137 citations
TL;DR: The lack of citizen participation in the global institutions that shape people's daily lives is a crucial aspect of the rising disaffection with globalization as mentioned in this paper, and social commentators and leaders of citizens' and intergovernmental organiza tions are increasingly taking heed.
Abstract: One crucial aspect of the rising disaffection with globalization is the lack of citizen participation in the global institutions that shape people's daily lives. This public frustration is deeper and broader than the recent street demonstrations in Seattle and Prague. Social commentators and leaders of citizens' and intergovernmental organiza tions are increasingly taking heed. Over the past 18 months, President Clinton has joined with the secretary-general of the United Nations, the director-general of the World Trade Organization (wto), the managing director of the International Monetary Fund (imf), and the president of the World Bank to call for greater citizen participation in the international order.
184 citations
TL;DR: In this article, the introduction of Security Council targeted financial and travel sanctions against individuals involves a qualitative change in Security Council sanctions policy, which has previously been directed against governmental entities, and there is no international legal mechanism for checking or reviewing the accuracy of the information forming the basis of a sanctions committee blacklisting or the necessity for, and proportionality of, measures adopted.
Abstract: The introduction of Security Council targeted financial and travel sanctions against individuals involves a qualitative change in Security Council sanctions policy, which has previously been directed against governmental entities. Targeted sanctions can be a useful weapon in the international community's attempts to pressurize repressive regimes into accepting change. However, there is a problem in using against individuals, a powerful international law mechanism designed for pressurizing states. Individuals' rights under domestic and international law can be severely affected by such sanctions. The blacklists created under Resolutions 1333 and 1390 cause particular problems, as these are quasi-criminal in nature and in practice entail an allegation that the targeted persons are terrorists or terrorist associates. However, there is no international legal mechanism for checking or reviewing the accuracy of the information forming the basis of a sanctions committee blacklisting or the necessity for, and proportionality of, measures adopted. The implementation against non-governmental or quasi-governmental entities of targeted Security Council sanctions in European states is almost certainly contrary to European human rights norms, in particular, the right of access to court under Article 6 ECHR. There is thus a conflict between obligations under the United Nations Charter (UNC) on the one hand and the ECHR (and for EU states, EC law) on the other. Mechanisms can, however, be created which provide a broadly similar level of protection to that provided by Article 6 ECHR while maintaining whatever effectiveness targeted sanctions possess, so there is no logical incompatibility between obligations under the ECHR and Security Council sanctions.
36 citations