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!

Recent GAL events: Quick round-up

To get the ball rolling, a quick round up of some of the recent major NYU-sponsored GAL events that have been taking place throughout the world:

1) Practical Legal Problems of International Organizations: A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights (Geneva, March 20-21, 2009).

This conference was jointly organized and sponsored by the Department of Public International Law and International Organization at the University of Geneva Law School and the New York University (NYU) Institute for International Law and Justice. The event was also sponsored by the Swiss Federal Department of Foreign Affairs, the Carnegie Corporation of New York, and the Institute for Research on Public Administration of Rome.The purpose of the meeting was to raise, analyze, and discuss important operational issues that confront major international organizations (IOs) that may not as yet have been sufficiently addressed in systematic fashion. In order to do so, the conference brought together leading experts – both practitioners and academics – in the field.

A conference report is avaible here; some photos here. This was the only one of these events that I was actually able to attend; I will post some reflections later in the week, on the assumption that late is indeed better than never...

2) IILJ-Hauser Abu Dhabi Conference on “Climate Change: Financing Green Development” (May 3-5, 2009)

NYU Law School held a conference in Abu Dhabi May 3-5, 2009 on Climate Change: Financing Green Development. The conference, held with the support of the Abu Dhabi government, addressed the legal and regulatory elements of carbon markets, climate finance, and climate-related investment in developing countries. The issues for discussion included market-based climate regulatory programs, the design, governance and linkage of carbon markets, climate-related conditions on various forms of development finance, international trade and investment law governing domestic climate regulation including of emissions trading and climate assets, and tax and distributional issues.

Conference participants included leading representatives of the climate finance industry, carbon market regulators, developing countries, multinational businesses, sovereign wealth funds, international organizations, and NGOs as well as academic experts. NYU faculty, other academics, regulators, and expert practitioners presented papers on key legal, regulatory, and policy issues associated with climate finance and development in order to frame discussion and debate among all participants.

The conference blurb/agenda can be found here; as soon as I locate a report, I'll post a link.

3) IILJ GAL Workshop in Beijing: "Legal Issues in the Process of Globalization: Globalization and Legal Governance” (May 22-23, 2009)

The IILJ held a GAL conference in Beijing on May 22-23, in collaboration with Tsinghua University School of Law. This event was also sponsored by The International Development Research Centre, Canada The event was another important part of the ongoing effort to actively encourage the participation of developing country scholars and institutions within the GAL Project, which has laready seen conferences held in Buenos Aires, Cape Town and Delhi over the last few years.

Participants from NYU presented papers on various topics, ranging from the theoretical framework of GAL to its application in particular regulatory areas, such as climate change, financing development, sovereign wealth funds, and international trade and intellectual property. The participating Chinese scholars also applied a GAL approach in examining China’s participation in global governance, with a particular focus on the use of administrative law mechanisms to address urgent regulatory and institutional reform issues in response to financial turmoil, climate change and trade protectionism.

A number of different global partners of the GAL project – from Argentina, Brazil, Canada, Colombia, India and South Africa – also attended this conference, and contributed their expertise from a comparative legal perspective. In addition, the IILJ is committec to developing a future research agenda for the GAL project with global partners and sponsors in Beijing.

Again, if/when I find a link to a report, I'll post it here.

4) Round Table on Global Administrative Law (Monterrey, Mexico, April 25 , 2009)

Don't know much about this one. It was convened by the IILJ in conjunction with meetings of the International Association of Administrative Law and the Mexican Administrative Law Association. More info (for those who read Spanish at least) can be found here.

Now we just have the 5th annual GAL seminar in Viterbo (always an extremely worthwhile event) and the GAL conference at Edinburgh to look forward to next month. I am going to both, so will post up reflections on them here shortly afterwards.

A little more on GAL and science...

Just a quick post to highlight an interesting paper just published my Bruce McCullough and Ross McKittrick entitled "Check the Numbers: The Case for Due Diligence in Policy Formation" (hat tip to Steve McIntyre over at Climate Audit). The paper focuses on an issue that I have mentioned once or twice in the past - the transparency of the scientific work upon which major public policy decisions are taken (it is worth noting that one of the authors, McKitrick, was also a co-author with McIntyre on a number of papers critical of the "hockey stick" graph relied upon by the Intergovernmental Panel on Climate Change). Here's the blurb:

Empirical research in academic journals is often cited as the basis for public policy decisions, in part because people think that the journals have checked the accuracy of the research. Yet such work is rarely subjected to independent checks for accuracy during the peer review process, and the data and computational methods are so seldom disclosed that post-publication verification is equally rare. This study argues that researchers and journals have allowed habits of secrecy to persist that severely inhibit independent replication. Non-disclosure of essential research materials may have deleterious scientific consequences, but our concern herein is something different: the possible negative effects on public policy formation. When a piece of academic research takes on a public role, such as becoming the basis for public policy decisions, practices that obstruct independent replication, such as refusal to disclose data, or the concealment of details about computational methods, prevent the proper functioning of the scientific process and can lead to poor public decision making. This study shows that such practices are surprisingly common, and that researchers, users of research, and the public need to consider ways to address the situation. We offer suggestions that journals, funding agencies, and policy makers can implement to improve the transparency of the publication process and enhance the replicability of the research that is published.

The paper discusses a number of cases in which science has formed the basis for important policy decisions and in which, in the authors' view, significant questions have emerged over the full disclosure and transparency of the data and methods used in generating the results. Firstly, and in many ways most strikingly, the authors insist that the pre-publication "peer-review" process, often presented as the arbiter of sound science, is - or should be - only in fact the beginning of the results verification and replication process. They quote the editor of the prestigious journal Science as saying

What we can’t do is ask our peer reviewers to go into the laboratories of the submitting authors and demand their lab notebooks. Were we to do that, we would create a huge administrative cost, and we would in some sense dishonor and rob the entire scientific enterprise of the integrity that 99.9 percent of it has ... it all depends on trust at the end, and the journal has to trust its reviewers; it has to trust the source. It can’t go in and demand the data books.

The most important part begins, then, when articles are published, and other scientists begin to try to replicate the results. It is in order to facilitate this crucial part of the process that, the authors argue, full disclosure of all data, code and methods used is needed to make the replication process as straightforward as possible. Whatever one thinks of the scientific issues raised by the author - and here, as ever, I plead straightforward ignorance - I find it difficult to come up with reasonable counter-arguments against this claim.

From a global administration perspective, there are two points of particular interest: firstly, the authors outline the "hockey stick" controversy, in which the IPCC was a significant player; and secondly, they refer to another case involving climate science relied upon by an international organisation, in a passage worth quoting at some length:

In late 2004, a summary report entitled the Arctic Climate Impact Assessment (ACIA) was released by the Arctic Council, an intergovernmental organization formed to discuss policy issues related to the Arctic region. The council had convened a team of scientists to survey available scientific information related to climate change and the Arctic. Impacts of a Warming Arctic: Highlights (Arctic Council, 2004) was released to considerable international media fanfare, and prompted hearings before a US Senate committee on November 16, 2004 (the full report did not appear until August 2005). Among other things, the Highlights document stated that the Arctic region was warming faster than the rest of the world, that the Arctic was now warmer than at any time since the late 19th century, that sea-ice extent had declined 15 to 20 percent over the past 30 years and that the area of Greenland susceptible to melting had increased by 16 percent in the past 30 years.

Shortly after its publication, critics started noting on web sites that the main summary graph (Arctic Council, 2004, Highlights: 4) showing unprecedented warmth in the Arctic had never appeared in a peer-reviewed journal (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004), and the claims of unprecedented warming were at odds with numerous published Arctic climate histories in the peer-reviewed literature (Michaels, 2004). Neither the data used nor an explanation of the graph’s methodology were made available (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004). When the final report was released eight months later, it explained that they had used only land-based weather stations, even though the region is two-thirds ocean, and had re-defined the boundaries of the Arctic southwards to 60N, thereby including some regions of Siberia with poor quality data and anomalously strong warming trends. Other recently published climatology papers that used land- and ocean-based data had concluded that the Arctic was, on average, cooler than it had been in the late 1930s (Polyakov et al., 2002). But while these studies were cited in the full report, their findings were not mentioned as caveats against the dramatic conclusions of the ACIA summary, nor were their data sets presented graphically.

This example indicates that empirical claims in assessment reports may need to be audited if they present new data or calculations; or to ensure that the findings are based on published, peer-reviewed journal articles (which themselves can be audited) if the mandate of the panel doing the report is confined to citing only published research. It also highlights the importance of timeliness. If a summary document is released to great fanfare, and contradictory information is quietly disclosed eight months later, the later information may not affect the way the issue was framed by the summary.

Of course, it might be argued that even if the presentation of science, or even the science itself, is in specific instances not ideal, this can be overlooked where that science lends support to an overwhelming need to act quickly to avert catastrophe. However plausible this might seem in the realm of climate change (and I leave that an open question), it is open to a very familiar criticism: how can we, in the absence of properly enforced procedural guarantees, ensure that such examples of less-than-desirable method and practice are limited to those that lend their supprot to an overwhelming public policy objective? My suspicion is that this would be well-nigh impossible. Moreover, and more basically, I can't imagine that any scientist would find this type of pragmatic subversion of the scientific method to be an intellectually satisfying solution.

The authors conclude with a number of recommendations designed to increase "due dilligence" (transparency of data, method and code), aimed at journals, researchers, funding bodies, and policy-makers. There seems to me to be no reason that these recommendations could not be framed as requirements where public authorities rely on scientific work in taking important policy decisions, as part of a administrative law of science (indeed, it is worth noting that McIntyre is no stranger to the use of US Freedom of Information Act in order to get access to the data he desires). It may even be that we are beginning to see the emergence of this type of thing globally, as rules are developed on the legitimate use of science by administrative authorities (particularly here by the WTO, and the scientific evidence required to justify the adoption of trade-restrictive measures under either Article XX GATT, or the provisions fo the SPS and TBT agreements). This would be an interesting article, that I hope to have time to write one day...

***DISCLAIMER***
As always, when writing blogs that refer to the Climate Audit site and to other works that might be seen as challenging the broad scientific consensus on climate change, I feel that a short disclaimer might serve to prevent misunderstanding of my position: I have no grasp whatsoever of the science involved in climate change - as discussed on either the Climate Audit or Real Climate sites, for example - and thus rely exclusively upon the weight of scientific authority. Here, it seems clear: that global warning is 1) happening; 2) our fault; and 3) very scary (although it might be worth mentioning in passing that I have never seen McIntyre "deny" any of these points). This is therefore not the place to discuss such issues; and I am not the person to discuss them with.

My interest in the Climate Audit site comes exclusively from the fact that regardless of the science, I find McIntyre's "due diligence" arguments to be compelling, due to a mixture of my interest in global administrative law, which I think could have an important role to play in ensuring that global public policy is based upon sound science; and my increasing amateur interest in what constitutes "good science" in general (which I owe almost entirely to this man).

Easterly on What the Poor Would Say...

I was lucky enough to be able to attend the conference held last Friday by NYU's Development Research Institute entitled "What Would The Poor Say: Debates In Aid Evaluation". I had one or two grumbles about the format - as so often happens at these things, the way in which the presentations were structured meant that there was relatively little actual "conferring" - just a set of fairly heavily truncated Q&A sessions that were too short to develop into exchanges of real interest. This notwithstanding, I found the event - as a series of extremely interesting lectures - to be very worthwhile; perhaps particularly so from the perspective of those who, like me, were not overly familiar with the issues involved from an economics/social science perspective.

In this post, I wanted to discuss Professor Easterly's talk, "The Big Picture on Aid Accountability", and in particular to frame it within a global administrative law perspective (not a particularly difficult task). In it, he confronted squarely the question posed in the title of the conference, although was at pains to stress at the outset that he was in no position to offer a substantive response to "What the Poor Would Say". Rather, he was interested in how the institutional mechanisms of development aid could be recalibrated in order to ensure that this question was both regularly asked and effectively answered; insisting that the question itself was the "basic question" upon which aid should be judged.

Easterly argued that there were three basic components of any effective mechanism of this sort: transparency, feedback (or "voice") and accountability (see, I wasn't lying when I said that it wouldn't take much work to frame this from a GAL perspective...). The basic evidence for his claim was offered in the form of a series of structural analogues drawn from other (relatively) effective institutional frameworks for regulating and directing human endeavour: the provision of private goods (the market); the provision of public goods (democratic governance); and the production of knowledge (the scientific method and community).

Easterly's fundamental argument was that the success of each of these governance frameworks was dependent upon its being able to furnish an answer to the question of "What would people say"? - which in turn is clearly related to the issue of accountability, which he styled as the most important of the three components outlined above. (It should be noted that Easterly is using a farily broad understanding of "accountability" - many examples of such mechanisms that he cites have been rejected by those who have sought to take a more systematic approach to the concept - see e.g. here for Richard Stewart's approach, and here for Grant and Keohane). he then proceeded to give an outline of how each of the components cashes out in the effective frameworks, and contrasted each of these to the world of development aid.

In private markets, for example, Easterly argued that "transparency" was ensured by the fact that businesses advertise what they are selling, and so customers know what their buying options are. Feedback is ensured, inter alia, by the copious amounts of market research that companies do, by consumer choices themselves, and by the emergence of a decentralised form of review through customer opinion pages on a vast range of websites. Accountability is ensured by the fact businesses go bust if they fail to be sufficiently transparent, or to respond to consumer voice. According to Easterly, however, aid agencies have none of these characteristics: there is very scant information on what services are being provided by whom to whom; feedback is limited as target audiences rarely if ever get to choose with what they will be aided or how they are to be developed, and there are no equivalents of the decentralised "customer satusfaction" reports that we find on the internet; and the big aid agencies are never threatened with extinction.

It is worth pausing at this point to head off one potentially important objection that could be made (and I'm grateful to my colleague at the IILJ, Sarah Dadush, for making it). It is of course true that businesses are rarely if ever as transparent as consumers would want them to be; certainly, it is in their interest to advertise their own products, but it may well be equally so to suppress other relevant information. Very frequently, indeed, product advertisements contain entirely misleading claims, to say nothing of the potential presence of unethical business practices, etc. Moreover, do we really want to transfer the logic of the market to the provision of aid? Two quick points to make in this regard, on my own reading at least: firstly, Easterly was not seeking to suggest that the market was in any sense perfect, but rather that it was relatively effective at delivering private goods for consumption, and the existence of transparency, feedback and accountability mechanisms were vital to that. Secondly, and perhaps more importantly, his point was not to argue that market logics of transparency, feedback and accountability should rule supreme in the global governance of aid; but rather that these constitute basic principles of effectiveness that find expression in structurally analogous but substantively different ways within different governance frameworks. While market logics may well have an important role to play, these will have to be sometimes complemented, sometimes contradicted, by other competing logics. It is also worth noting in this regard that his basic contention - that "the poor" and their wants/needs are the relevant constituency for feedback and accountability - is a judgement that will have to be made and defended prior to discussions about institutional developments.

The point about structural analogues was confirmed by the fact that Easterly made a similar comparative analysis for the other two relatively effective governance frameworks that he discussed - for the provision of public goods, and the production of knowlegde. In terms of the former, he focused on democracy, arguing that transparency was provided by laws such as the US Freedom of Information Act; that feedback comes from many sources, such as elections, polls, an independent media, and opposition politicians; and that accountability is ensured by the prospect that unpopular politicians will be removed from power. Again, he argued that the governance of aid was lacking many of the mechanisms that render democracy an effective provider of public goods: indeed, he went so far as to argue that the "Aid State" was effectively totalitarian in nature, never sharing its operational documents with interested parties, and sticking rigidly to a dogmatic consensus that is extremely resistant to conflict and change (thus lacking "opposition politicians"). I have not the experience to know whether this is an accurate reflection of how these agencies operate, but it's a powerful metaphor - and one that cries out for a GAL perspective.

Lastly, Easterly also argued that structural analogues of these successful transparency, feedback and accountability mechanisms are to be found in the production of knowledge. Transparency is ensured through the "centralised" promulgation of regular textbooks, and through the "decentralised" existence of many independent journals. Feedback is ensured through fostering debate on published works, through the mechanism of peer review, and through the fact that anyone - regardless of qualification - can disprove orthodoxy by following the established (scientific) method. Accountability is largely reputational in form; yet not unimportant for that. Again, Easterly found aid agencies wanting in terms of the basic elements of good governance that enable knowledge to be effectively produced: there are only centralised and very partial databases of statistics in aid; there is a lack of scientific freedom of research within aid agencies, and little if any peer review; and there appear to be no penalties for refusal to provide data or other accoutnability mechanisms (including an interesting story about USAID, which I will blog on shortly).

I should note that I have altered the ordering of Easterly's talk a little here in seeking to frame these issues from within a global administrative law perspective. The GAL-relevance of the first two governance frameworks should be clear: GAL rules are very often enforced to ensure that the market is allowed to operate free from governmental distortions: very many administrative law provisions of the WTO agreements - and the TRIPS agreement in particular - are, indeed, explicitly aimed at this objective. Nor is it news that administrative law can be used to entrench democratic protections - or at least "surrogates" - for those individuals upon whose interests the activities of administrative bodies impact. Indeed, these in some ways map fairly neatly onto the different ("efficiency" and "justice") governance logics that I outlined here (although it is worth noting in this regard that Easterly's take on "democratic" governance was itself here largely framed in terms of its "efficiency" in the provision of public goods. While there may well be something to this, my own view is that reliance on this alone can only provide a distinctly impoverished, and deeply inadequate, account of what democracy brings to the legitimacy table).

As I suggested in an earlier post, however, there may be another logic that is based neither upon markets or morals (to use Benedict Kingsbury's formulation), but rather on the technocratic production of knowledge - a "global administrative law of science". This would seek to regulate not any particular substantive outcome, but would rather ensure the the basic elements of the scientific method - its own transparency, feedback and accountability mechanisms included - are enforceable by law. As science becomes increasingly important to policy decisions, and to global administrative action more generally, it seems reasonable to suggest that it to should be subject to some of the "requirements of publicness" (to steal from Kingsbury again) to which we routinely subject our administrative agencies.

As I noted in a previous post, this is one type of reading that can be made of the - hugely controversial - Wegman Report that was critical of some of the science used in one of the IPCC's reports on climate change; and it is a claim that has been made repeatedly by the - equally controversial - critic of much of the "hockey stick" climate science, Steve McIntyre, over on his Climate Audit blog. Indeed, McIntyre was kind enough to link to my previous post, including some thoughtful reflections of his own on the possibility and desirability of applying GAL to the works of global bodies such as the IPCC. Whatever the truth behind the science here(and, like all good lawyers - if not good scientists - I rely exclusively on the "argument from authority" here, placing me firmly behind the weight of scientific opinion that global warming is both real and terrifying), I'd reckon that it must be difficult for lawyers in general, and administrative lawyers in particular, not to feel sympathetic towards McIntyre's "due diligence" arguments relating to full transparency on data and code used in climate reconstructions. Clearly, however, the role of science in global administration - and hence the potential need for a global administrative law of science - goes far beyond the realm of climate change: it is implicated in a great many WTO controversies, for example (see e.g. Chapter 6.3 of the GAL casebook, for example, or the more recent EC-Hormones decision of the Appellate Body); and lies behind some recent concerns over CERN's activities with the LHC.

My key point here is that, although it exhausts none of them, GAL cuts across all three of the relatively effective governance frameworks identified by Easterly, serving to entrench many of the requirements of transparency, feedback and accountability not merely as governance desiderata but as legal obligation. In a field such as the provision of aid - which, in ideal form at least, provides a public good through the provision of private goods based upon robust knowledge of what works and what doesn't - it is clear that different measures of each is required, calibrated differently to each concrete context in which they are to be applied. Global administrative law thus provides an extremely useful framework and vocabulary for discussing the ways in which the law can be implicated, and can assist, in the good global governance of the provision of aid. One way of capturing this may be to acknowledge a third, "technocratic" governance logic to sit alongside the "efficacy" and "justice" logics that I outlined previously.

Easterly's point can thus, I think, be framed in this way, at a very general level: for any governance activity, first decide upon who the relevant "publics" or "constituencies" are, and then determine and apply the appropriate mixture of different transparency, feedback and accountability mechanisms - drawn from the structural analogues to be found in relatively successful public, private and technocratic governance logics - to ensure the effectiveness of the governance in question. Clearly, this does not provide us with a solution to any concrete governance problem; it may well, however, provide us with the outlines of a framework within which effective solutions can be conceived, developed and implemented. And, as I hope this post has shown, GAL can and should play an absolutely central role in this process.

Increasing complexity in the climate change regime: Proposal for the creation of a World Carbon Authority

In a striking example of the increasing complexification of the global regulatory regime on climate change, the International Scientific and Business Congress on Protecting the Climate (a monitoring body of the UN Framework Convention on Climate Change - UNFCC) has written (in April of the year) an open letter to Dr. Rajendra Pachauri, the Chair of the Intergovernmental Panel on Climate Change, proposing the establishment of a World Carbon Authority (WCA) under the auspices of the UNFCC. It suggests that this body should seek to implement and oversee a cap-and-trading scheme with regard to the carbon emissions related to international transportation, thus combining the roles currently undertaken by the International Civil Aviation Organization (ICAO) and the International Maritime Organization (IMO) in relation to aviation and shipping, repsectively.

The letter suggests that the role of the new Authority would be

...to oversee the creation of international carbon markets and the setting of price of carbon that will be reliable for planning long-term investment in low-carbon technologies and products and sufficient to achieve decarbonisation of the global economy by 2050 or earlier.

There will be, however, significant resistance from industry actors to these proposals (a similar European scheme for an emissions trading system has met with strong criticism from the aviation industry), many of whom feel that the ICAO and IMO remain the best fora for developing policy and overseeing implementation of efforts to reduce carbon emissions. The key issue here is, of course, whether a voluntary, market-based scheme will most effectively produce the desired result (as industry actors (claim to) believe), or whether something with a little more binding bite will be required. (See this article on globe.net for more detailed analysis, and some quotes from both sides of the debate; hat tip to Global Governance Watch).

As noted at the outset, this proposal provides us with a good example of the increasing complexity and fragmentation of global administration - here, we have an oversight body recommending to one global administrative body (the IPCC) that another (the WCA) be established, with a remit that in part at least overlaps with that of two more (the ICAO and the IMO) - not to mention the role of the more general Clean Development Mechanism (CDM) of the Kyoto Protocol. Clearly, the relations between these actors, and their respective "jurisdictions", will need to be set out in detail. Another subtext here also concerns the participation of private actors in these various bodies: it seems evident, for example, that one reason that the aviation industry is so keen to keep this issue in the ICAO is thanks to the influence that it has within that Organization through the robust participation rights provided to the International Air Transport Association (IATA - for a detailed account of the role of IATA within the ICAO, see this paper by Tiago Fidalgo de Freitas).

These issues, of complex inter-institutional relations, and of the (not always complementary) relation between private participation and the legitimacy and efficacy of global administrative action, will of course be of central importance to any mature "field" of global administrative law. Whether this proposal, however, would contribute to greater unity, or rather greater fragmentation, within this field remains, however, for the moment an open question.

GAL and the Intergovernmental Panel on Climate Change.

A couple of interesting posts from the Global Governance Watch website, noting some heavy criticism of the opinion of the Intergovernmental Panel on Climate Change (IPCC) that global warming is a man-made crisis, and rejection of the IPCC's recommendation that CO2 emissions should be drastically cut to combat this. (Where did I leave that salt? Ah yes...)

The first is on the release of the recent Manhattan Declaration on Climate Change, in which around 500 "climate change experts and scientists" who have decided that "human- caused climate change is not a global crisis". (I do not have any of the necessary expertise to evaluate these claims - I just want here, however, to note two points: firstly, in terms of a fairly crude scientist and expert "head count", the 500 or so that signed this declaration seems a pretty paltry figure compared to that marshalled on the other side of the debate; and secondly, that the Declaration was issued by the International Climate Science Coalition, "an organization of scientists, energy and policy experts, and economists seeking to provide an alternative to the IPCC by promoting a "better public understanding of climate change science and policy'".)

More interesting, from a GAL perspective at least, is the earlier post on the results of an independent analysis commissioned by the US Congress to look into alleged inaccuracies in the climate predictions developed by the IPCC, particularly with regard to its earlier report entitled Climate Change 2001: The Scientific Basis. The independent analysis criticised the methodology of some of the research on the basis of which the IPCC reached its conclusions, making a number of recommendations. Three of these are - at least analogically - of interest from a GAL perspective.

The IPCC is an intergovernmental body, set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP), and

established to provide the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct any research nor does it monitor climate related data or parameters. Its role is to assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation.

It is thus a public body, whose output is intended, indeed expected, to have a significant impact on legislative and policy choices taken at the national, regional and global levels. It is not, therefore, much of a stretch to characterise its activity as fundamentally public/administrative in character. The independent analysis, which focuses largely on the standards that should apply when a public body relies on academic scientific research, makes a number of interesting administrative law-type recommendations:

Transparency
The independent analysis found that in many cases in which scientific papers are used as a basis for highly controversial policy documents, "the supplementary material [such as code and data] for academic work is often poorly documented and archived and is not sufficiently robust to withstand intense public debate"; and, moreover, that "[s]haring of research materials, data, and results is haphazard and often grudgingly done", noting in particular that one of the leading academics in the field, upon whose work the IPCC relied heavily, viewed the code that he developed as his own intellectual property, that he was under no obligation to disclose to peers.

The independent analysis recommended that, where academic work is to be used for controversial policy papers, it must be subjected to a much more intense level of scrutiny, involving, inter alia, more disclosure of codes, data, and funding sources.

Participation
One of the central criticisms of the independent analysis is that the academic work upon which the conclusions of the IPCC were based, although relying heavily upon statistical analyses, did not interact with the mainstream statistical community in order to test and validate those analyses. It recommends that, where bodies such as the IPCC are reveiwing academic work with a view to basing their conclusions thereupon, they should ensure the participations of specialist, expert statisticians in that process. Clearly, this kind of participatory requirement is intended to increase the "output legitimacy" (i.e. the quality of the results) of the administrative process in question (in this case, the production of the IPCC's report and findings).

Review
Lastly, and perhaps most tenuously, the independent analysis raised issues that can perhaps be read as a form of accountability: recommendations for strengthening the ex post review process. In this case, however, it is not the review of the administrative activity of global body (the IPCC) itself that is in question, but rather a requirement that it act as a reviewer of the academic work upon which it will base its findings. In this regard, the analysis notes simply that "[e]specially when massive amounts of public monies and human lives are at stake", standard peer review mechanisms are likely to be inadequate; therefore, where it is to be used in service of a political goal, "academic work should have a more intense level of scrutiny and review". Indeed, the previous two issues, relating to transparency and participation, are in many ways simply complementary to this basic strengthening of ex post review. The report suggests, at least implicitly, that where the global body in question fails to discharge this more intensive review function, its own administrative output (the publication of findings and recommendations intended to influence legislative and policy programmes on climate change) should itself be regarded as lacking legitimacy.

As noted above, then, we find in the independent analysis recommendations that bear more than a passing resemblance to certain administrative-law type requirements relating to transparency, participation and review, tailored to meet the specific context of the use of academic work by public administrative bodies in formulating reports and recommendations on matters of political controversy. Are these part of global administrative law? Obviously not yet; however, if they were to be taken on board by bodies such as the IPCC, either formally through the adoption of binding internal procedures, or informally through consistent usage leading to the generation of legitimate expectations, then an argument could certainly be made that they have become rules of GAL. In any event, at the very least, this independent analysis provides us with an interesting example of the ways in which administrative law mechanisms and their analogues are beginning to penetrate the institutions of global regulatory governance, even in highly specific, technical fields.