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!

More on regulatory networks (from Opinio Juris and beyond...)

A quick post to flag some interesting exchanges over at Opinio Juris on the subject of transnational regulatory networks. Firstly, in the context of their regular Virginia Journal of International law symposia, GAL-veteran David Zaring has responded to an article by Pierre-Hugues Verdier on "Transnational Regulatory Networks and Their Limits". Verdier's response can be found here. Also, Ken Anderson has a post up on the same topic (in which he kindly links here), highlighting a further paper of interest on SSRN: Chris Borgen's "A Tale of Two Networks: Terrorism, Transnational Law, and Network Theory".

Well worth a look for those interested in the field.

A little more on networks...

Following up on my earlier post below, I wanted to flag quickly an interesting contribution by Kenneth Anderson over at Opinio Juris on "The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy". He makes a number of important points, prime among which, for me, is the following:

...accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability.

The rest of Anderson's post is essentially an argument in favour of restricting the functions of transnational networks of government networks to that of "coordination" between States (presumably excluding, then, the type of normative production that characterises the activity of, say, the Basel Committee), on the grounds that it is only in doing so that the members of such networks can remain sufficiently tied to the (national) democratic legitimacy that alone can justify their exercise of public power. What I think this argument - important though it undeniably is - misses is that, when we make the necessary distinction between accountability and democratic legitimacy, we are also, to my mind at least, opening up space for at least the possibility that there may be valid forms of legitimacy that are not democratic in nature, and that may be able to justify a more extended role for networks beyond that which democratic considerations alone could do.

The existence of these different forms of legitimacy is perhaps most important within the sphere of global governance; indeed, for some time now I have been convinced that notions of democracy can only at present (and for the foreseeable future) play a fairly limited role in justfying the adoption of global administrative law rules, and that appeal thereto should consequently be limited. Amongst other things, it is far too simple to criticise, and basing the entire project thereon makes its normative basis appear far more vulnerable than it actually is.

The key reason for this is that there exists no global (or, indeed, regional, with the possible exception of the European Union) demos to which "democratic legitimacy" can refer. All attempts to decrease the democracy deficit in global governance, then, must do so by reference back to national, or perhaps local, constituencies, by strengthening the "delegation" between them and the global governance bodies in question. That this is extremely difficult - even in the context of highly formalised international organisations - is by now almost universally agreed; however, there is significantly less agreement on the proposition that no administrative activity can be undertaken by IOs that is not justified by a strong chain of democratic delegation or representation (which strikes me as the logical consequence of Anderson's position). On the contrary - and this is one of the central insights of the GAL project to date - legitimacy can be improved by increasing the responsiveness of global governance bodies to the interests of those upon whom their activities impact. This is, in many ways, an "interest representation" model of administrative law, removed from the domestic context in which it was developed and writ global; and it is ultimately justified not on the basis of a claim to democratic legitimacy, but rather on an appeal to fairness and/or individual rights.

Nor is this the only form of non-democratic legitimacy that may be of relevance. Like it or not, a legitimate - indeed, important - goal of global governance is that it be effective. Informal networks of governmental officials often have siginifcant advantages over the more cumbersome, traditional IOs in this regard; and, where these bodies are generating high-quality and effective regulation, particularly in the less politically charged fields, then this alone might, in some circumstances, be sufficient to render such bodies legitimate, even if there is no apparent democratic justification for their activities - at least, I see no conceptual reason why that should not be the case. Unless, of course, we begin with the premise that all public power can only be legitimated democratically; this, however, is far from self-evident normatively, and clearly false historically and empirically. It would leave little if any conceptual room for legitimating the governance by global administrative bodies of the type that is so widespread today.

Of course, as I pointed out in my previous post, the advantages brought by the flexibility and adaptability of such networks are (at least) counterbalanced by the risks of the same - without appropriate safeguards, including transparency and accountability mechanisms, there is little to suggest that they will not be flexed and adapted in thoroughly inappropriate ways. As Anderson importantly points out, however, the very presence of these protections does not eo ipso increase democratic legitimacy; indeed, in most GAL situations, describing them even as "democracy surrogates" strikes me as misleading. Accepting this, however, is only the start - and not the end - of a difficult discussion on the legitimacy of global governance structures, networks included.

GAL at the World Economic Forum?

An interesting short post over at the Guardian politics blog on the forthcoming World Economic Forum in Davos, Switzerland, entitled "shaping the post-crisis world". Under normal circumstances, the glitzy, invitation-only event might not seem to be a particularly promising place to be looking for improvements in increased participation, transparency and accountability; as the Guardian post points out, however, these are not normal circumstances:

Last year's co-chairman of the forum, the Indian software tycoon B Ramalinga Raju, was arrested earlier this month in connection with allegations that company accounts were falsified. And among the names on the steering committee for the WEF's keynote report on economic prospects was the Merrill Lynch chief executive, John Thain, who resigned last week – shortly after his stricken bank was taken over by Bank of America – amid allegations of hiring celebrity decorators to revamp his office at a cost of $1.2m (£880,000).

The mighty are definitely fallen, and Davos will be debating how hard they should be kicked: the future of international banking regulation is expected to be the dominant theme...

If a new economic world order is going to be built from the ruins, the horse-trading will not come until later – starting with the meeting of the G20 industrialised nations in April – but the foundations could well be worked out here. Even the major corporate delegates are talking about the need for tighter regulation, more transparency and accountability.

As always, it remains a case of waiting-and-seeing for the time being; but this is, once again, yet more proof that the demand for GAL - in some form - is increasing across the fields of global governance, and amongst all of the various actors involved.

The rise and rise of informal networks as a mode of governance?

I wanted to make just a short post with some brief reflections on the news that Anne-Marie Slaughter has taken leave from her post as Dean of Woodrow Wilson School of Public and International Affairs at Princeton in order to head the US Department of State's Office of Policy Planning, an "internal think tank for the Department of State - undertaking broad analytical studies of regional and functional issues, identifying gaps in policy, and initiating policy planning and formulation to fill these gaps". (Hat tip to Opinio Juris.)

In October of last year, Dean Slaughter gave a lecture here at NYU, entitled “America’s Edge: A Global Country in a Global Century”. The crux of her interesting and provocative talk was focused on the idea of and potential for informal networks as a mode of governance in the 21st century. Her argument was that there would be something of a sea-change in the way the dominant modes of governance structures were organsied: from heirarchical, top-down arrangements to heterachical webs. In her view, the US is no longer well-placed to hold on to its place at the top of the heirarchical structures of global governance, faced as it is by challenges from India and China in particular. However, such structures are of rapidly diminishing importance; and America's edge is, in her view, the fact that it is uniquely well calibrated to take its place at the center of the web of networks that will dominate the governance landscape of the next century.

Slaughter offered a number of different reasons for her optimism in this regard; some persuasive, others less so. That her focus is on governance by networks will come as a surprise to no-one who is familiar with her most famous book, A New World Order, published in 2004, which focused on government networks as the main constitutents of that order. It is not, however, the empirical claim that networks are of the importance that she suggests that I want to raise here; and nor is it her particular reasons for insisting that the US is best placed to influence the governance activities that they carry out. Rather, it is her general, not-quite-but-nearly unbridled optimism regarding the structure itself that I want to note.

The first thing that it is, in my view, important to recall is that "informal networks" have been around as a mode of governance for as long as governance itself: those in power have always used such loose stuctures in order to get things done (think, for example, of the "old boys networ" in the UK - and doubtless elsewhere). What is new, in the work of Slaughter and others like her, is that networks are now overwhelmingly presented as a solution to one of the challenges of good governance rather than an obstacle that must be overcome. Networks used to be the problem; now, it seems, they are (being presented as) the cure.

It is not difficult to see why networks have been viewed as problem rather than solution in the past. They are often secretive; opaque; their membership unknown and closed to outsiders; and largely unaccountable to any public constituency (usually as a direct result of their secretive nature). Take the recent scandal of the Conservative Party Shadow Chancellor allegedly actively seeking an illegal donation from a Russian multimillionaire on the private yacht of another millionaire - this too is a form of "informal governance network", and one that it is much harder to portray in a positive light. And it should be recalled that the only reason we found out about this one was because Nat got mad at George for blabbing about the nasty things that Peter had said about Gordon at dinner - without this, we would simply never have known.

Slaughter's work does illustrate well the potential benefits to be gained from structuring governance around networks of government actors, rather than in the old heirarchical model; and this aspect of her work cannot simply be ignored. However, it is imperative that networks are viewed not only as a mode of but also a problem for good governance - that we seek to develop ways of harnessing their potential whilst lessening their shortcomings. It is this dual issue that the conceptual framework provided by the GAL project brings so sharply into focus: since the outset, networks have been counted as one of the key types of global administrative body currently in existence; and yet the whole purpose of the project is to pose the hard questions that must be asked of such structures: questions of transparency, of participation, and of accountability.

Of course, Slaughter is aware of these problems, and she devotes a chapter of A New World Order (Ch. 6, "A Just World Order") to outlining how they might be resolved, with many of her solutions fitting perfectly into the agenda and substance of the GAL project. She has long been an influential figure; and her new post will undoubtedly make her even more so. Congratulations, then, to Dean Slaughter on her appointment, and good luck to her in her new role; and, to the extent that she does seek to help fulfil her own prophecy of the future of "the network" as a governance structure, let's hope she bears in mind that it is at once - and in roughly equal parts - part of the solution and part of the problem.

Of course, if she was also to frame things explicitly in terms of an emerging global administrative law, we wouldn't be too upset...

Basel II rethink in wake of Bear Stearns collapse

The Basel Committee on Banking Supervision (BCBS) has announced that it is to have a rethink on some aspects of the Basel II regulation following the Bear Stearns collapse, in particular its "Sound Practices for Managing Liquidity in Banking Organizations" guidelines. (for more detail, see these posts by David Zaring over on his Conglomerate blog - thanks to Brian Bolin for the links). Zaring's main complaint seems to be that US administrators now have to persuade foreign banking supervisors of the merits of the regulatory changes that they would like to see introduced. This is, of course true, as far as it goes - but such is the nature of global governance; and the highly informal organisational structure of the BCBS means that it is far more likely to be able to respond with the requisite speed and flexibility to the recent "market turmoil".

A more interesting issue, from a GAL perspective at least, is whether perceived failures in the regulatory outcomes (in this case, apparently the level of willingness to count subprime mortgage securities towards capital adequacy requirements) will lead to the establishment of any more robust administrative law mechanisms to regulate the standard-setting process itself, in particular through providing for greater transparency and participation in the proceedings. To date, the BCBS - an informal network of public officials - is almost completely unencumbered by such considerations, its only concession being the introduction of an extremely rudimentary (and scarcely binding) "notice and comment" procedure through publishing proposals on its website and inviting comments from those with the time and expertise to understand them (for a - perhaps overly optimistic - look at the GAL significance of the BCBS and Basel II, see this article by Michael Barr and Geoffrey Millar).

Of course, there is another role in which the BCBS is significant in terms of GAL, and that is a a source of "distributed administration" - through creating global norms that must then be interpreted and applied by domestic administrative bodies (including, in this case, purely private bodies carrying out a public function, such as Credit Ratings Agencies - for more detail, see this paper by Larissa Dragomir). In neither case, however, is it immediately clear how, or indeed if, the current crisis in the sector will affect the global banking regime in terms of those issues most central to the GAL project, namely the increase of participation in and transparency of proceedings, and the establishment of mechanisms for holding those exercising public power to account for the manner in which they do so. Although it should be noted that Zaring has characterised this letter from the US Securities and Exchange Commission as its "justification" of its own supervision of Bear Stearns to the BCBS - could this be the beginnings of a rudimentary accountability mechanism within the sphere of global banking regulation?

Probably not.