Wednesday, June 24, 2009

Some brief reflections on Viterbo V

I am moving house (again) this week, having not long returned from my GAL European Tour (well, Viterbo and Edinburgh – I certainly can’t complain), and so do not have a huge amount of time. I wanted, however, to post some reflections on the two events, while they are still (relatively) fresh in my mind. I’ll begin with Viterbo in this post, and move on to the Edinburgh meeting in the next. I won’t go ionto huge detail, however; in the hope that someone will produce a report in the not-too-distant future.

First things first: it was, as always, a huge pleasure to be present at the Viterbo event. The organisers – led, as usual, by Professors Sabino Cassese, Giulio Vesperini and Doctor Martina Conticelli – by now have things down to a fine art form. A selection of photos from the conference is available here. I know of no other event that manages to establish and maintain such a sense of community amongst ist participants; nor, for that matter, that succeeds in attracting people back year after year, even if they are not formally participating. The obvious attractions of Italy in June only account for a small part of the reason for this. I certainly hope to attend next year; employer permitting, of course.

On to the papers themselves, which are available here: all were to some degree preliminary (some, of course, more than others); all, however, seemed to be very promising, touching on some important – and often understudied – themes, under the broad heading of “Legality Review in the Global Administrative Space”:

Review Bodies in Multilateral Environmental Agreements. Competences, Coherence, Coordination
Dionysia-Theodora Avgerinopoulou

Implications Of Transparency In The International Civil Aviation Organization’s Universal Safety Oversight Audit Programme

Jimena Blumenkron

Proactive Strategies in the Global Legality Review
Gianluca Sgueo

Deference in U.S. Domestic Courts and Implications for Legality Review

Catherine Sweetser

Beyond Multilateralism and Regionalism. Analysis of the Review Process of Global Trade Dispute Resolution
Blake C.Y. Wang

What Makes Networks Effective: Evidence from the SEC

David Zaring

As will be immediately clear from the titles of the pieces, all of the authors used a very broad understanding of what constitutes “legality review” in the so-called “global administrative space” (as an aside, this latter term, I confess, causes me some discomfort; although it was postulated by Kingsbury, Krisch and Stewart in the Project framing paper, I have yet to see much beyond postulation in support of its existence. To me it implies a much more unitary space than as yet exists). This is, to my mind at least, at once an indication of both the strength (in terms of its institutional and forms of activity coverage) and weakness (in terms of its frequent lack of hard legality) of the GAL framework more generally.

The papers, for the most part, do pretty much what they say on the tin: Dionysia Avgerinopoulou gives a useful, if basic, overview of the wealth of different review bodies established by international environmental treaties, and the different roles they play; Jimena Blumenkron has an in-depth analysis of the transparency rules relating to the production of Standards and Recommended Practices by the International Civil Aviation Organization; Gianluca Sgeuo asks the intriguing question of why an increasing number of global review bodies are insisting upon “proactive” (i.e. programmatic), rather than reactive, sanctions-based solutions to breaches of legality; Cathy Sweetser looks at how different doctrines of deference by courst to administrative decisions in US law might be applied in the context of global institutions, and what the effects of this might be; Blake Wang, who unfortunately couldn’t attend the meeting due to illness (thankfully, rumours of “swine flu” proved to be premature…), looks at relations between the WTO and regional FTAs, asking whether we might envuisage the creation of a Court of International Trade; and finally David Zaring, a long-time contributor to the GAL Project, in his paper looks to propose an answer to the important issue of why some regulatory networks “work” (in his terms, why some are able to produce standards or regulation with real applicability and “bite”) and why others fail to reach this standard.

If you can only read two, and have no specific interest in any of the particular organisations or regimes focused upon, then I would recommend the pieces by Zaring and Sgeuo (the English in the latter is a little clunky, but worth the effort. And the fact that it is clunky is largely my fault, as I didn’t have time to make good on a promise to edit it…). Both tackle relatively new issues within GAL, general in scope, and make a number of interesting propositions with regard to each; as yet, I’d say, more provocative than persuasive, but that’s very much the point of events such as these.

The rest of the Friday session was largely taken up with general and specific comments to the authors of the papers, and with their responses thereto. There were some interesting exchanges, but as I didn’t take particularly copious notes, we will have to wait for the (hopefully) forthcoming report to give a fuller account of these. Perhaps inevitably, a number of comments focused on the extent to which the subject-matter of the papers could be accurately characterised as “legality” review. One comment in particular that I wanted to flag, however, was that made by Mario Savino in his role as discussant of three of the papers: he went beyond challenging the “legal” nature of the reviews in question, and raised directly a broader, but related issue: how does global administrative law differ from global governance? Specifically, what is the “added value” of adopting a public law approach to these issues? Savino’s concern was that this particularly public law element was missing from many of the papers; my view is that it is missing from many of the articles and discussions of global administrative law more generally, and is perhaps more than any other factor responsible for the feeling – very widespread amongst many academics – that GAL is too lacking in focus, spread to thin, to be an analytically useful framework or tool.

The next and final session, which took place on the Saturday morning, was devoted to short talks by Professors Armin von Bogdandy, Richard Stewart and Eyal Benventisti, before discussion, led by Professor Sabino Cassese, moved on to the date and substance of next year’s event. As would be expected, all contributions here were thoughtful and provocative: none more so than the remarks by von Bogdandy, who spoke on “international courts in a discourse theoretical perspective”. In some ways, this can be seen as a continuation of the impressive Max Planck project on international public authorities that he led, and was successfully completed last year; as always with discourse theory, however, if it is to be at all persuasive the audience is required to have swallowed a fairly large chunk of Habermas prior to listening; those who have doubts about the Habermasian approach find those transferred to whoever relies upon it. More concretely, although I found myself in broad agreement with much of what Professor von Bogdandy had to say, and in particular on the “perils” of applying constitutionalist rhetoric to the global sphere, I felt that his talk overplaed the importance of democratic forms of legitimacy in global governance (that is, overplayed not just how important they are, but how important they can and should be). As I have argued elsewhere, democracy is in my view but one of many justifiable bases upon which legitimate global governance could rest; and, given the difficulty of making international institutions genuinely accountable to hundreds of different demoi simultaneously, the almost complete absence of any viable post-state demos (excluding perhaps the EU), and the certain absence of anything like a truly global demos, it is not now and nor should it be a particularly important one. (This is an argument that I developed at greater length in the paper that I gave at Edinburgh – I’m currently toying with the idea of putting it on SSRN, will link to it if I decide to).

Unusually, neither the date nor the topic for next year’s seminar was definitively fixed: sometime in mid-June (either the 11-12 or the 18-19) 2010 seems almost certain; potential topics cover a much wider range, so there isn’t a huge amount of point in speculating. I will post on this further when I hear that the decision has been taken.

Lastly, if I were to have any quibble at all with the manner in which this part of the conference was structured, it would be that there was perhaps slightly insufficient time devoted to the discussion of the individual papers: these were presented by the discussants in two back-to-back sessions, then there was a break, and then a general discussion on all six contributions. Only at the very end were the authors given a chance to respond, and this meant that formal opportunities for actually “conferring” were kept to a minimum (although this, of course, was largely compensated for by the informal opportunities that came with dinner and drinks afterwards). My own view is that perhaps another session could have been added; that discussion could have focused on each of the sets of three papers individually, and allowed for more back-and-forth between authors and audience. The conference itself – running from 3pm to 6.30 on Friday, and from 9.30am to 1pm on Saturday – was anything but overlong, and could perhaps have benefitted from an extra hour or two. Then again, perhaps it’s no bad thing to leave us wanting more…

In, then, not-quite-so-short-as-I-had-intended, it was, as anticipated, an extremely worthwhile event; I’m looking forward to reading future iterations of the papers as they develop over the coming months. If anyone wants to add to - or, indeed, correct - this account of the event, please feel free to leave a comment below!

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