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The International Law of Global Governance

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:. What are the sources of GAL? How GAL is being developed? History of evolution of GAL and challenges to it

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The International Law of Global Governance

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  1. The International Law of Global Governance Session 2: The Law Regulating the Authority of Global Governance Institutions Eyal Benvenisti The Hague 9 July, 2013

  2. The main questions: • What are the sources of GAL? • How GAL is being developed? History of evolution of GAL and challenges to it • Legal hindrances: non-justiciability, immunities • GAL in informal/private GGIs

  3. 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.

  4. 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.

  5. 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)

  6. 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

  7. 1.3 New Legal Responses to Tame IOs • 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 law b) HRs are part of CIL/GPL c) GAL as derived from HRL

  8. 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

  9. 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?

  10. 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)?

  11. 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 inJurisdictional 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)

  12. 4. The law on informal/Private GGIs Substantive Law: What law applies to private standard setters? Bases for applying public norms to private actors: • “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”

  13. 4. The law on informal/Private GGIs (cont.) 3. The responsibility of the court toward litigants (e.g. use of forum non conveniensdoctrine 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? • State Executives? • National Courts

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