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The International Law of Global Governance. Session 4: The Limits of Global Regulation of Sovereign Discretion Eyal Benvenisti The Hague 11 July, 2013. The main questions. 1. justifications for global limits to sovereign discretion
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The International Law of Global Governance Session 4: The Limits of Global Regulation of Sovereign Discretion Eyal Benvenisti The Hague 11 July, 2013
The main questions 1. justifications for global limits to sovereign discretion 2. Indirect review: IOs/ITs setting domestic administrative procedures 3. Direct review: The proper “Standard of Review” – context dependent 4. Private review agents
1. Justifications for Limits to Sovereign Discretion 1.1 Democracy Enhancing: • Protection of minority and disadvantaged groups – the “discrete and insular” (J.H. Ely) • Reducing internal & external “capture” • Resisting foreign “divide and conquer” pressures • “Democratic Externalities” – Taking outsiders’ interests into account
1. Justifications for Limits to Sovereign Discretion (cont.) But – problematic assumptions: • Are special interests less well represented at the IO level? • Do the IOs mitigate domination by powerful states? • Are IOs and International tribunals (ITs) capable of promoting democracy at the state level? Do they protect democracy or preempt it?
1. Justifications for Limits to Sovereign Discretion (cont.) On Balance: executive domination by powerful countries can be met by IO and IT intervention if IOs/ITs: • Provide necessary information • Reduce leverage of powerful foreign actors • Provide some voice to those otherwise disregarded • While ensuring ample space for domestic deliberations
1. Justifications for Limits to Sovereign Discretion (cont.) 1.2 Global welfare maximization through: • Resolving collective action problems • Promoting global welfare • Promoting egalitarian outcomes: toward global justice?
2. Indirect Review: IO/ITs setting domestic administrative procedures 2.1 Imposing on states rigorous restraints on decision-making: • Trade (Shrimp/Turtle; Sardines, EU – Biotech, Definitive Safeguards Measures on Imports of Certain Steel Products) • Environment (Aarhus CCC) • Domestic rule of law: Anti-bribery (OECD Guidelines for Multinational Enterprises to Responsible BusinessConduct setting up a system of National Contact Points (NCPs)); money laundering (G-8’s FATF) 2.2 promoting regional institutions: • Joint management of shared water resources
3. Direct Review: The proper “standard of review” 3.1 Grounds for “strict scrutiny:” • Correcting democratic failures: • Minorities • Foreign residents • Other foreigners: “trusteeship” obligations? • Resolving collective action problems
3. Direct Review: The Proper “Standard of Review” (cont.) 3.2 Grounds for deference? • Complex internal arrangements • Information asymmetries • Treaty text and other underlying international legal obligations (e.g., the difference between “positive integration” and “negative integration”)
4. Private Review Mechanisms 4.1 Typology of Regulators: • Non profit NGOs (Forest Stewardship Council, Rainforest Action Network) • Consumer groups (GLOBALG.A.P., Fair Labor Organization) • For profit actors (credit rating agencies, Social and environmental rating agencies) • Joint ventures (NGOs and business: Marine Stewardship Council)
4. Private Review Mechanisms (cont.) 4.2 Variety of tools: • Certifications • Standards • Ratings • Indicators
