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Participatory Transnational Governance
Abstract
In textbooks and in theory, law is a product of democratic procedures. In reality, however, theplace of law production has moved to a significant degree from the domestic sphere into an emerging domain of supranational and international institutions, bodies, and organizations,public or private, which constitute and enforce global law without a state (G. Teubner). These developments appear to undermine the very foundations of democratic theory andpractice. A global democracy is not in sight. But if we still take the concept of law seriously, and, with it, the normative assumption that norms need to be legitimised in order to be called ‘law’, then it is worth examining the possible functional equivalents to the norm-generating setting of thenation-state: participatory arrangements ensuring the involvement of civil society actors, stakeholders, and the public, in the arguing, bargaining, and reasoning processes oftransnational regulation, procedural rights safeguarding these procedural positions, and courts or court-like institutions that flank these arrangements. These potential functional equivalents– as elements of a deliberative constitutionalism - do not replace the democratic process necessary for a production of legitimate law, but they might narrow the legitimacy gapbetween the ongoing process of transnational social regulation and democratic constituencies. This essay focuses on legal patterns of civil society participation in transnational regulationand asks whether the EU, as the most advanced supranational entity with an evolving legal framework in the fields of transparency, accountability, and participation, can be taken as apositive model for global law production.
... 6. For a critical analysis, see Van den Bosche (2008); Nanz (2006); Steffek and Kissling (2006);Nickel (2006). 209 See Bexell et al. (2008). ...
One of the major advancements in the legal regime of international trade with the transition from GATT to the WTO was the constitution of a more sophisticated and efficient dispute settlement system (DSS). The institutional design of dispute settlement was negotiated heavily during the Uruguay Round and is eventually set out in the Dispute Settlement Understanding (DSU) forming part of the Agreement Establishing the WTO. By linking the international legal regime of intellectual property (IP) with that of international trade through the TRIPS Agreement, the DSU becomes applicable also to disputes based on alleged violations by Members of their obligations concerning IP rights as laid down in TRIPS.This paper provides in a first step a concise description of the evolution and main components of the WTO dispute settlement system. Taking a comparative institutional approach, it conceptualises the DSS as one among many interlocked arenas for decision-making on global IP policy issues. International adjudication thus presents an alternative to international and national political and administrative processes, but also to unfettered global markets for information goods. The paper looks closer into the institutional modalities that condition participation of interested actors (private entities and states) in dispute settlement proceedings and compares these with participation modalities of alternative decision-making processes. The paper concludes with some pragmatic proposals that link issues of governance with the evolution of IP law at the international level.In the paper the argument is made first, that implicit in every discussion on substantive IP law and policy is the question of choosing the appropriate level and institution for IP decision-making in a multi-level system of IP governance. Secondly, it is argued that substantively just and efficient outcomes are intrinsically linked to and dependent on the institutional design of law and policy making processes. Given the public good nature of information and knowledge, which are at the core of IP rights, the norms for attribution and enforcement of such rights are of relevance for broad interests of citizens, researchers, and users of information goods. Hence, the capacity of IP institutions to ensure adequate representation and participation of affected actors and interests is decisive for accommodating new interests as they emerge and for facilitating change and regime flexibility. Any future reform of TRIPS should therefore not only deal with substantive rules but should also consider the need for change in procedural and institutional modalities.
Even though the Lisbon Treaty avoids the constitutional foundation of the European Union, it contains the same strategies as the Constitution for Europe to strengthen its democratic legitimacy. This article explores the Lisbon Treaty’s ‘Provisions on Democratic Principles’ and, particularly, the strategies of democratization based on the participation of citizens and organized civil society in European governance. The article provides a legal analysis of the principles of participatory democracy and the rules governing civil dialogue, external consultations and citizens’ initiative.
In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.
Karsten Nowrot focusses in his contribution, Evolving Hierarchies in Transnational Financial Networked Governance: The Relationship between the International Accounting Standards Board, the Financial Stability Board and the G-20, on the structural features of and in particular the interrelationships between a number of influential transnational steering networks in one notable segment of the international financial architecture, namely the international standard-setting activities in the realm of financial reporting; an area of economic and business law that is frequently and rightly considered to be of central importance for transnational business. Following an introductory discussion of the functions as well as limits of the network concept as an analytical tool for the description and conceptualization of transnational steering regimes in the international economic system, the main part of the contribution is devoted to an analysis of the recently emerging hierarchical relationships between three transboundary steering networks, the private International Accounting Standards Board (IASB), the intermediate Financial Stability Board (FSB) as well as the intergovernmental Group of 20 (G-20). On the basis of the findings made in this section, the final part is devoted to an evaluation of the underlying reasons for and motives behind the evolution of these hierarchical structures, prominently among them the efforts by state actors to establish—or rather re-establish—governmental steering capacity vis-à-vis the activities of private international standard-setting bodies, thereby providing, on the basis of mechanisms of public accountability, for a certain remedy to the legitimacy challenges these non-governmental networks are frequently confronted with.
The European Commission, in its White Paper on European Governance, believes that ‘good governance’ requires participation of the stakeholders, and that their involvement in political processes strengthens the confidence of citizens in the institutions. The related keyword addressed and questioned in this article is the term ‘participation’. This term also represents the core of the White Paper and is associated with great expectancy with ‘good governance’. This article discusses the academically, as well as politically interesting question whether the participation promises of the White Paper by the European Commission and of the EU Treaty are in fact redeemed, and whether consultation processes can be assessed in this sense as a real and effective identification practice within the EU legislative process, or whether consultation processes merely serve to suggest additional input-legitimacy at the EU level, which turn out to be a Potemkin village upon closer inspection.
This book develops a sociologically informed theory of constitutionalism in the global realm, addressing both national and transnational forms of constitutional ordering. The book begins with the argument that current approaches to constitutionalism remain tied to a state-based conception of constitutions, and overlooks underlying structural transformations that trigger the emergence of constitutional forms of ordering. Poul F. Kjaer aims to address this shortcoming by offering a sociological and historically informed analysis of the evolution of constitutionalism in the face of globalisation. The analysis contextualises on-going constitutional developments through the use of a long-term historical perspective, which is capable of highlighting the impact of deeper structural transformations unfolding within society.
The book looks at the ways in which national and transnational legal forms have evolved alongside one another. It demonstrates that the formation of global constitutions has not resulted in a corresponding decrease in the power of nation states, but instead, legal and political aspects of both the nation state and the transnational have been reconfigured and intensified in a mutually supportive manner.
In combining insights from a range of fields, this interdisciplinary book will be of great interest to students and scholars of constitutional law, sociology, global governance studies, and legal, social and political theory.
Poul F. Kjær: Constitutionalism in the Global Realm – A sociological approach, Routledge April 2014, ISBN 978-0-415-73373-1
Church organizations are engaged in a constant dialogue with the European Commission. The Commission saw this interaction as part of its wider framework of consultations with third parties, based on an open and all-inclusive understanding of participation. On the other hand, Church groups pressed for a more systematic and institutionalized dialogue, based on the special characteristics of Church associations. This article looks at how the dialogue between the European Commission and Church organizations has evolved throughout the years and assesses to what extent it is emblematic of the overall evolution of the framework of interactions between the Commission and interest groups. It concludes that the recent emphasis on the dialogue with Church groups in the Constitution and the Lisbon Treaty can be seen as a sign of changing patterns of interaction. The open, horizontal, soft-instrument based dialogue seems to be evolving towards a more institutionalized, partner-specific and instrument-based interaction.
In recent decades, financial markets have become increasingly international in scope, while the focus of financial regulation and supervision has largely remained limited to the domain of national jurisdictions. This article applies the doctrine of multilayered governance to financial markets, thereby addressing the discrepancy between international financial activities and nationally oriented financial regulation and supervision. It identifies core values that are widely shared within the international community, including the regulatory goals of financial stability and market integrity and the importance of confidence in the functioning of financial markets. The article argues that the scope of financial activities, the importance of regulatory objectives and the level of detail could serve as criteria for assessing how financial regulation should be allocated to the different levels of governance. In the proposed setting, standards could be a key to establishing multilayered governance as they allow for flexible adaptation of internationally agreed rules to national or regional particularities. Regarding financial supervision, the article highlights the importance of supervisory colleges or peer review procedures as a layer in between nationally based supervision and international supervisory standards. Oxford University Press 2010, all rights reserved, Oxford University Press.
In order to cope with transnational law, we have to abandon hierarchical legal models which, up to the present, have dominated western legal discourse. In the emergence of a new world society, law is undergoing a mutation. This mutation is here understood as a new form of interaction with legal texts. While law has been interpreted until now with regard to auctoritas, i.e. to an external reference (e. g. God, the King, the Pope, the Legislator), this mode of interaction with the legal text can no longer grasp new normative phenomena which in the recent literature have been subsumed under the concept of transnational law. The authors take inspiration from the Jewish model of interpretation of legal texts – as an example of an alternative and more adequate approach to global legal phenomena – and try to elaborate this argument on the basis of European private law.
I N POLITICAL SCIENCE terms, legitimacy is crucial for the functioning of democratic decision-making at nation-state level; however, what it may mean for decision-making at international level is far less clear. Studies in Inter national Relations (IR) have been traditionally premised on a clear distinction between the legitimacy of a domestic political government and international legitimacy, the latter being dependent upon a proper foundation for the former. Structural changes of political authority have since affected this distinction and made obsolete the model of international politics as interstate diplomacy, based on functionally specific mandates to bureaucracies. 1 States, though still important actors in the international order, are 'disaggregated': they relate to each other through parts of states, such as regulatory agencies, ministries, legislature and courts. 2 Moreover, international institutions 3 increasingly make decisions in areas formerly reserved to sovereign states, for example, in environmental, economic and health and safety agreements. These regulations take effect behind national I would like to thank Robert Howse, Christian Joerges, Friedrich Kratochwil and Jens * Steffek for their helpful comments. This, chapter was completed during my Fellowship at the Wissenschaftskolleg zu Berlin. R Keohane and J Nye, 'The Club Model of Multilateral Cooperation and the World 1 Trade Organisation: Problems of Democratic Legitimacy' in R Porter et al. (eds), Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium (Washington, DC: Brookings Institution Press, 2001). AM Slaughter, A New World Order (Princeton, NJ: Princeton UP, 2004). 2
The open method of co-ordination's (OMC's) emphasis on transpar-ency, democratic participation and learning has led to a particular interest in this governance mechanism from the perspective of deliberative democracy. This article analyses the 'democratic' dimension of the OMC from a normative and an empirical perspective. We first present relevant theories of deliberative democracy, from which we derive a list of normative criteria, which we then use to explore the democratic quality of the OMC in the areas of employment and pensions. The empirical analysis reveals that there are important differences in the democratic quality of the OMC between these two areas, but that, ultimately, the OMC (as yet) does not live up to its own democratic ambitions. KEY WORDS Deliberative democracy; employment; learning; open method of co-ordination (OMC); participation; pensions; public debate; transparency.
The analysis of European integration is informed by deeply-anchored views of the ways in which public policy unfolds at the European level. The interpretation of the treaties, shaped by decades of decisions of the European Courts, has given birth to a kind of vulgata that is rarely called into question. Interaction among the main institutional players - the Commission, Parliament and the Council - is held to be the key element in the decision-making process. Hence, inter alia, the importance of the concept of `institutional balance' (discussed in the contribution of Lenaerts and Verhoeven in this volume). Adoption of legislative instruments is the integration technique par excellence: it was through the 300 or so directives contained in the 1985 White Paper on the Single Market that barriers to intra-Community trade were to be dismantled and, even today, legislative activity is the main parameter by which we measure the growth in the scope of EU activities. 1 Implementation of EU policies is constrained by choices made in the legislative phase; it is thus perceived to be of secondary importance and generally receives less attention. Classical views about institutional balance simply stress that, in theory, the implementation of EU policies remains in the hands of national administrations. 2 This legislative bias is equally pervasive in normative assessments of EU policies. One generally discusses legitimacy issues in relation to legislative activities: the classical description of the `democratic deficit' rests entirely on the role played by legislative assemblies in decision-making procedures. 3 The European Court of First Instance has also made the clear suggestion that alternative forms of legitimization - such as the participation of management and labour representatives in decision-making processes - mattered only `in the absence of the participation of the European Parliament in the legislative process'. 4 However, a gradual shift has occurred in European gove
This article argues that the irresistible rise of Comitology is an institutional response to the deep-seated tensions between the dual supranational and intergovernmentalist structure of the Community on the one hand, and its problem-solving tasks on the other. Comitology has accordingly provided a forum in which problems are addressed through evolving and novel processes of interest formation and decision-making. However, neither legal nor political science have been able properly to evaluate the workings of the committee system, both disciplines remaining trapped within normative structures and traditional methodologies ill-suited to the analysis of these institutional innovations. As a consequence, this article advocates the trans-disciplinary study of Comitology, and furthermore argues that the two disciplines might be drawn together by the concept of deliberative supranationalism: being on the one hand a normative approach which seeks both to preserve the legitimacy of national democracies and to set limits upon the traditional Nation State within a supranational community; and on the other, a theoretical tool which is nonetheless responsive to and accomodating of real-world phenomena.
In a series of rulings, beginning with the notorious Shrimp/Turtle dispute, the high court of the WTO, the so-called Appellate Body, has ruled that it, as well as the panels of first instance, may, on a discretionary basis, accept and consider amicus curiae briefs from, inter alia, non-governmental organisations and private individuals. This has been highly controversial and subject to wide and intense criticism by trade diplomats who are the political representatives of WTO Member states in Geneva; the officials have reacted with anger and hostility to the notion that governments are not exclusive gatekeepers of access to the WTO dispute settlement tribunals. This article shows that the decision that amicus briefs are admissible at the discretion of the adjudicator has a sound basis in the legal framework for WTO dispute settlement, as well as conforming to trends in the practice of international courts and tribunals more generally. The article examines various ‘due process’ issues concerning the modalities for acceptance and consideration of amicus briefs and how they have been so far dealt with by the Appellate Body, as well as how they are handled in certain proposals for reform of the legal framework of WTO dispute settlement, the Dispute Settlement Understanding (DSU).
No Legitimacy Without Politics – Comments on Jens Steffek
- A Menendez
A. Menendez' definition of the democratic principle: A. Menendez, " No Legitimacy Without Politics –
Comments on Jens Steffek ", in: Ch. Joerges/I.-J. Sand/G. Teubner (supra note 34), 109.
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters
- See
See, especially, the Arhus " Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters ", http://www.unece.org/env/pp/treatytext.htm, supra note 73.