The International Law of Global Governance

1. The International Law of Global Governance Session 1: The Emergence of Global Governance Institutions and Global Legal Responses – An Overview Eyal Benvenisti The Hague 8 July, 2013

2. Introduction: Topics covered in the course • The Emergence of Global Governance Institutions and Global Legal Responses • The Authority of Global Governance Institutions • The Law on the Decision-Making Process within Global Governance Bodies • The Limits of Global Regulation of Sovereign Discretion • Reviewing Global Governance Not directly covered: the law regulating state decision-making

3. The main questions: • What are Global Governance Institutions (GGIs)? A brief historical account • What purposes do GGIs serve? • What is Global Administrative Law (GAL)? • What purposes does GAL serve?

4. 1. What are GGIs? The History and Theory of their Evolution Why use the term “Global Governance Institutions” rather than “international Organizations”? The phenomenon: public regulation (legislative, executive and judicial) delegated to or exercised by international and transnational formal and informal, public and private actors. Increasingly, more and more regulatory discretion is delegated or surrendered to non-national actors.

5. The evolution of GG and its typology The trajectory: Decreasing formalization of GG 1.1 Formal IGOs 1.2 Informal inter-governmental networks 1.3 Public-private partnerships 1.4 Private standard setting The normative aspect: increased informality intensifies accountability concerns

6. 1.1 Formal IGOS Characteristics: Treaty-based, independent international legal personality, formal decision-making organs and procedures. Examples: • The first: International Rhine Commission 1804 (in 1856 also the Danube Commission) • The first potentially global: the International Telegraph Union 1865 (1874 also the Bern General Postal Union) • Office International d’HygienePublique 1907

7. 1.1 Formal IGOS (cont.) • The ILO (1919): addressing a crucial internal dimension of a matter of global concern • The League of Nations (1919) – first comprehensive organization (where we also note mission creep) : • Mandate commission • Minority Protection Commission • Refugee assistance • The League’s Economic and Financial Organization (EFO) • The UN: The last comprehensive IO • Thereafter: “fragmentation”

8. 1.2 Informal Inter-governmental Organizations: “Networks” Characteristics: Non-binding understandings between state authorities. Not formalized as legal obligations. Examples: • The Basel Committee on Banking Supervision (BCBS) • Financial Stability Board (FSB) • Financial Action Task Force (FATF) • The Proliferation Security Initiative (PSI)

9. 1.3 Informal Public/Private Institutions Characteristics: Combined effort of government and private actors that are based on domestic law as the legal framework. Examples: • ICH – The International Conference on the Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use • The Global Fund to Fight AIDS, Tuberculosis and Malaria • UNITAID (the “International Drug Purchasing Facility”)

10. 1.4 Private Standard Setting/Monitoring Institutions Characteristics: Standard setting by private actors covering wide variety of domestic and transnational activities. Examples: • Safety standards (products, production processes): International Organization for Standardization (ISO) • Financial markets: The International Accounting Standards Board (IASB); credit rating agencies. • Environment protection: The Marine Stewardship Council, Forestry Stewardship Council

11. 1.4 Private Institutions (cont.) • Labor standards: The Fair Labor Association, social rating agencies, retail chains (e.g. the Ethical Trading Initiative) • Internet: Internet Corporation for Assigned Names and Numbers (ICANN); self-regulation by social and media networks (Facebook, Google, Youtube,Twitter) • Food Standards: The Global Food Safety Initiative, GLOBALGAP, Retail corporations (Walmart, Tesco) • Sports regulation: International Olympic Committee, World Anti-Doping Agency (WADA)

12. 2. What purposes do GGIs serve? 2.1 types of challenges: • Coordination: global need for standards (e.g. the telegraphic union 1865 , Postal Convention 1874, ISO) • Cooperation in overcoming collective action problems: • Overcoming “tragedy of the commons” (unrestricted access to shared resources: Danube Commission, Marine Stewardship Council) • Preventing “tragedy of the anti-commons” (need everyone’s consent to gain access: the “robber barons” and the International Rhine Commission)

13. 2. purposes (cont.) • Preventing "race to the bottom" (Chemical Convention weapons control; ILO/FLA – ensuring labor standards, Basel, IASB – reducing harms of financial mobility, WADA) • Conflict prevention and resolution: • Horizontal conflicts (inter-state: LoN, UN) • Vertical conflicts (intra-state: individual and minority rights LoN’s minority treaties, ECtHR, UN HR bodies) • Promoting welfare and justice • Economic and social development (WB, other development banks) • Health (WHO, Global Fund)

14. 2.2 Tools of GGIs Reasons for Coordination/Collective Action failures: • Conflicting interests • Asymmetric information • Lack of enforcement mechanisms These lead parties to doubt others’ commitment to cooperation. GGIs can potentially: • Reduce conflicts (reach bargains, reduce capture by interest groups, set common standards and policies) • Provide information about compliance • Enforce compliance and resolve inter-state disputes

15. 3. What is GAL? Administrative Law of GGIs: the legal regulation of the exercise of power by GGIs, including through representation and accountability requirements of transparency, participation, reason-giving, and liability. A functional approach: Main focus is on the decision-making process – who decides, how, which considerations – more than on the correctness of outcome. No constitutional vision necessary.

16. 4. What purposes does GAL serve? Law needed to ensure effectiveness and fairness – the belief that institutions are devoid of bias is naïve: • Some powerful states or private actors seek to control others through the IO; • Ubiquitous management issues: bias, mismanagement, corruption; • public participation enhances GGI information, legitimacy and effectiveness Law is also needed to ensure one’s right to take part in decision affecting one's life – a basic human right

17. 4. What are the challenges GAL seeks to address? 4.1 Internal management problems: • inadequate standards of employment • Mismanagement • Lack of independence of office holders 4.2 abuse of authority toward member states and individuals: • Acting ultra vires (“mission creep”) • Lack of transparency, lack of due process • Abuse of discretion (irrelevant goals, double standards, improper balancing, lack of proportionality)

18. Why focus on Procedure? • There is an inherent right to participate • Procedural regularity enhances effectiveness: increases legitimacy and compliance • Ensures the best substantive outcomes. • Sometimes the substantive goals are hard to define or hard to agree upon Concerns: • Rigidness, costs, delays • Secrecy is often more effective • Preemption of national self-determination