WPS 2014-06: The Potential and Limits of Global Regulation of Sovereign Discretion

Eyal Benvenisti

The following is the text of Chapter 5 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.

Directly or indirectly, global governance bodies limit the discretion of national regulators. In myriad ways – by imposing different kinds of requirements on states, or setting standards that determine how individual providers of goods and services act – these global institutions affect the life opportunities of all of us as individuals. This chapter begins by briefly offering a typology of this multitude of ways in which global bodies shape national policies and personal decisions, and then explores the justifications for such interventions and their limits.

Eyal Chapter 5 WPS 6-14