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The International Law of Global Governance

The International Law of Global Governance. Session 3: The Law on the Decision-Making Process within Global Governance Bodies Eyal Benvenisti The Hague 10 July, 2013. The main questions: exploring the legal constraints on decision-making. 1. The decision-maker

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The International Law of Global Governance

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  1. The International Law of Global Governance Session 3: The Law on the Decision-Making Process within Global Governance Bodies Eyal Benvenisti The Hague 10 July, 2013

  2. The main questions: exploring the legal constraints on decision-making 1. The decision-maker 2. The decision-making process 3. The decision

  3. 1. The decision-maker 1.1 Internal authority: internal ultra vires of organs 1.2 Independence of decision-maker 1.3 Impartiality

  4. 1.1 Internal authority • The founding treaty as an internal constitution: internal ultra vires of organs? • Constitution of the Maritime Safety Committee (1960) vs. • Certain Expenses (1962) Q: simple treaty interpretation? or constitutional attention to minority interests? • Ostensible authority toward 3rd parties?

  5. 1.2 Independence Definition:agent’s discretion is not unduly influenced by the principal’s interest Examples: • The ICJ and the UNSC • the Bustani case What makes a decision-maker independent? Formal and informal guarantees: • No reappointment • Nomination procedures • Ensuring compliance with decisions

  6. 1.3 Impartiality • No personal interest in the outcome Example: WHO and representatives of pharma • No institutional conflict of interests Example: Private Security Companies and IHL compliance How to secure impartiality? • Rules on avoiding personal conflicts of interest Example: Oversight protocol for the International Code of Conduct for Private Security Service Providers March (2012( • Protection of internal “whistleblowers” • Checks and balances as an institutional safeguard

  7. 2.The regulation of the decision-making process Goals: Transparency & participation (effective two-way communications) Means: 2.1 Structured decision-making, public process 2.2 Right to be heard (the “all affected principle”) 2.3 Access to information 2.4 Public participation

  8. 2.1Structured, public process Examples: “Notice and Comment” procedure: • OECD • Basel Committee on Banking Supervision • ICANN • Equator Principles

  9. 2.2The right to be heard Who has a right to be heard:The state? The individual? Others? • UNSC “Smart sanctions” listing & de-listing • WBIP in Mumbai transportation project • WTO DSB amicus briefs by NGOs • FATF, WADA • ILO’s “tripartite” system • Accreditation of NGOs: Codex Alimentarius The “all affected principle:” the Aarhus Convention

  10. 2.3Access to information Specific Informational Tools: • Environmental impact assessment • The precautionary principle • Structured measurements (indicators)

  11. 2.4 Public participation • Basel Committee on Banking Supervision informal consultation with financial industry • International Accounting Standards Committee Foundation • Environmental IOs: Montreal, Aarhus, more

  12. 3. The regulation of the decision 3.1 Reason giving 3.2 Exercising proper discretion 3.3 Balancing and proportionality 3.4 Standard of Review/Margin of Appreciation

  13. 3.1 Reason giving • Example:Targeted Sanctions regime

  14. 3.2 Exercising proper discretion • Pursuing legitimate goals: • weighing only relevant considerations • weighing all relevant considerations WBAT in de Merode’s case WTO and Article XX GATT Examples: • WBIP Mumbai Transportation Project • UNESCO’s World Heritage Committee

  15. 3.3 Balancing and proportionality • Improper balancing: Examples: • WHO Swine Flu emergency vaccination • The Mangold Case (2010) German Constitutional Court • Proportionality: Examples: • UNSC Targeted Sanctions (Kadi) • WBIP and Mumbai transportation project Standard of Review/Margin of Appreciation: Session 4

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