Wednesday, December 10, 2008

The new EJIL:TALK! blog: GAL gets an early mention

Quick post to flag what promises to be an extremely interesting new blog for things international and legal - the European Journal of International Law's new EJIL:Talk! experiment (hat tip to Opinio Juris). They kick of with a (spirited) discussion between Ernst-Ulrich Petersmann and Rob Howse over Petersmann's latest EJIL article, entitled "Human Rights, International Economic Law and 'Constitutional Justice'". The discussion very much picks up - in both tone and content - from the 2002 discussion of an earlier article by Petersmann, again involving Howse, and also Philip Alston. Both are a fun read...

I just want to pick up on one quick point here: in his latest "rejoinder" to Howse, Petersmann notes:

Like most North American supporters of ‘global administrative law’ based on ‘constitutional nationalism’, Howse remains sceptical of European proposals that multilevel governance for the collective supply of international public goods requires multilevel constitutionalism. Yet, Hobbesian ‘principal-agent theories’ describing diplomats as the real masters of international organizations need to be challenged by ‘cosmopolitan constituencies’ (P. Lamy) and constitutional conceptions of citizens as ‘democratic owners’ of international governance institutions.

This raises the question of whether, and the extent to which, support for global administrative law is based on "constitutional nationalism", by which I take to mean the claim that the discourse of constitutionalism has no place outwith the context of the nation-state. (I am unsure whether Petersmann is claiming here that GAL itself if based on such constitutional nationalism, or only North American support for it - his formulation is a little unclear on this point).

The relation of constitutionalist discourse to global administrative law has been a major area of focus for me in the last couple of years, and a topic on which I hope to have a few things published in the near future (one early version of such a paper can be found here). In this post, however, I just want to challenge the idea that GAL is necessarily - indeed, at all - premised upon a"constitutional nationalism" of the type that Petersmann suggests.

This is an issue that I, along with Eran Shamir-Borer, have sought to address in detail of late (an early draft of our paper can be found here). In that paper, although we do style the administrative law and constitutional approaches to global governance as in many ways competing conceptions, we also stress the important ways in which they can be complementary.

Firstly, we distinguish between two different variants within the constitutionalist discourse:
1) The "extra-national" variant: these are the authors that argue that certain international bodies or regimes (almost always either the European Union or the WTO) now exhibit certain features that entitle us to refer to them as "constitutional; and
2) The "universal" variant: this group of authors (to which Petersmann himself undoubtedly belongs) see not a plurality of heterarchically arranged constitutional sites ("constitutional pluralism", to use Neil Walker's phrase), but that all of these sites are (or are becoming) themselves part of a universal heirarchy within a globally constituted polity.

(Actually, there is a third variant of "global constitutionalist" discourse: the "domestic" variant, in which global rules are seen as providing as source of domestic constitutional law. Although widespread, it's not massively relevant here.)

Next, we argue that any attempt to regulate global governance (as both the administrative and constitutional approaches do) will have to confront 3 main challenges:
1) Institutional diversity: characteristic of global governance has been the explosion of new types of actors within the global legal arena;
2) Fragmentation: these diverse actors and regimes are not - as yet, at least - all contained within one clear heirarchy of authority that is global in scope; and
3) Value pluralism: there appears to be irreducible difference between different conceptions of the "good" within the global legal order, notwithstanding the advent and proclaimed universality of human rights.

We make the following 3 points with regard to these challenges:

1) Constitutional discourse in its "extranational" variant limits itself to a tiny group of organizations and regimes - the EU, the WTO, occasionally the UN and perhaps the law of the sea. One of the main drivers of the global administrative law project is that the institutional diversity of contemporary global governance renders this a hopelessly inadequate discourse for encapsulating the activity of the vast majority of important governance actors. For every EU or WTO to whom a constitutionalist discourse can be plausibly applied, there are hundreds of ISOs, FATFs, Basel Committees, etc., in which the same discourse simply seems entirely inapplicable.

2) "Global" constitutionalism - of the type that Petersmann espouses - contains an appeal to unity that is simply not present within the contemporary global legal order. That order is, instead, fragmented, and shows no sign of becoming heirarchically arranged within a single authoritative structure, despite Petersmann's predicitions in this regard. This is not, of course, to say that such a move will not happen, or is a concpetual impossibility; far from it. But GAL has no need of the type of unity to which global constitutionalism requires; instead, it can work with the fragmented system "as is", rerpesenting each site at which public power is exercised as a battleground for increasing public control and accountability.

The combined effect of these two arguments is, firstly, that global administrative law can - indeed, must - exist alongside the limited constitutional discourses of the EU, WTO and others, in order to help regulate the activities of all of the other bodies that are playing important roles in the exercise of public power beyond the nation-state; and secondly, that GAL will precede global constitutionalism within the global legal order, and, importantly, will continue to exist even if we never move towards a single constitutional order at the global level. If we do move towards such an order, however, it seems clear that, given the depth and complexity of global administration, GAL will continue to be necessary as a complement to any eventual global constitutional law, fulfilling a role much more closely analogous to that of administrative law domestically.

3) The third issue, that of value pluralism, raises in many regards both the most important and the most difficult questions of the three. Almost all global constitutionalists rely - and Petersmann is no different in this regard, even if the content of what he proposes is more radical than others - of the existence of genuinely universal values. This, however, simply seems to be empirically untenable in the contemporary global order. While neo-Kantians such as Petersmann would insist that any disagreement from a fundamental (Western) orthodoxy is ultimately a failure of reason rather than an expression of legitimate and radical pluralism, many if not most internationalists would baulk at such an affirmation, fearing the specter of hegemony, imperialism and domination. Global administrative law, although emphatically not value neutral, tackles this issue in a different way, and one that is better calibrated to respecting legitimate and radical pluralism: through focusing, in large part at least, on a commitment, not to outcome but to voice, to procedural rather than substantive imperatives that seek to ensure that all positions are taken into consideration and none are disregarded without pre-empting the results of administrative processes.

Of course, these types of procedural protections are themselves far from perfect, and can lead in many cases to fa├žade legitimation of actual domination (see here for B.S. Chimni's argument to this effect). This is a consideration of vital importance, and must be kept absolutely central in all efforts to make the extremely hard yet unavoidable move from the abstract potential of GAL to a normatively justifiable pratice. This problem, however, remains preferrable, in my view at least, to simply presuming then imposing a putative global consensus that finds precious little supporters - and a great many detractors - in actual practice.

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