WPS 2014-05: Legal Regulation of the Decision-Making Process within Global Governance Bodies

Eyal Benvenisti

The following is the text of Chapter 4 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 outline the legal constraints on the decision-making process of global governance bodies. The underlying assumption is that the decision was issued by a body that has competence to issue such decisions, so possible ultra vires concerns have been ruled out. Tracking the decision-making process sequentially, the chapter first discusses the norms regulating the identity of the decision-maker, where they exist, and the general demands of independence and impartiality. The second part focuses on the decision-making process itself, examining in particular the requirement of a structured fact-finding and decision process, as well as the obligation to hear affected parties, to ensure their participation or representation, and in general to provide a transparent  process. The third part covers the regulation of the decision, which includes the obligation to pursue legitimate goals (and only those goals) and the need to respect and protect individual rights, balance conflicting interests and seek proportionality.

Eyal Chapter 4 WPS 5-14