The International Law of Global Governance

Session 2: The Law Regulating the Authority of Global Governance Institutions

Eyal Benvenisti The Hague

9 July, 2013

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

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.

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.

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)

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

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

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

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?

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)?

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)

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”

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