WPS 2014-04: The Normative Basis for the Law Regulating Global Governance Institutions

Eyal Benvenisti

The following is the text of Chapter 3 of my Hague Lectures on “The Law of Global Governance” forthcoming in the 368 Recueil des cours and in the Pocketbook Series of the Hague Academy of International law.

The book argues that the decision-making processes within international organizations and other global governance bodies ought to be subjected to procedural and substantive legal constraints that are associated domestically with the requirements of the rule of law. The book explains why law – international, regional, domestic, formal or soft – should restrain global actors in the same way that judicial oversight is applied to domestic administrative agencies. It outlines the emerging web of global norms designed to protect the rights and interests of all affected individuals, to enable public deliberation, and to promote the legitimacy of the global bodies. These norms are being shaped by a growing convergence of expectations that global institutions adopt rules and institutions that ensure public participation and representation, impartiality and independence of decision-makers, and accountability of decisions. The book explores these mechanisms as well as the political and social forces that are shaping their development by analyzing the emerging judicial practice concerning a variety of institutions, ranging from the UN Security Council and other formal organizations to informal and private standard-setting bodies.

The aim of this Chapter is to ground accountability obligations of global governance bodies toward individuals affected by their policies. Why should, for example, the EU be accountable to non-EU citizens or residents and consider their interests? Why should GlobalG.A.P. and other private actors give take into account the adverse effects of their standards on farmers in faraway countries? I explore three possible principles as possible candidates for such obligations: the rule of law, human rights and trusteeship. Recourse to the principle of the rule of law raises several questions, including a preliminary question of standing: who has standing to demand that a global body comply with the rule of law? The second ground, the obligation to respect and ensure human rights, suffers from similar problems of space and scope: why do global governance bodies owe foreigners human rights-based duties? The chapter argues that the response to those questions, as well as the basis of a third, independent source of obligations, is the concept of trusteeship. States and the institutions states set up or delegate authority to are trustees of humanity, having been authorized by human society to respect and promote the interests of all individuals. The trusteeship concept, which informed the bottom-up evolution of domestic administrative law of many countries, can now serve as the normative bedrock for the emergence of global administrative law.

Eyal Chapter 3 WPS 4-14