Summary Global Administrative Law (book by Cassese), Sintesi del corso di Diritto Amministrativo

Scarica Summary Global Administrative Law (book by Cassese) e più Sintesi del corso in PDF di Diritto Amministrativo solo su Docsity! S. Cassese Global Administrative law I. THE GLOBALIZATION OF LAW (pag. 47-67) 1. Some motivating questions: the circulation and spread of legal institutions A. Can democracy be exported to Iraq by military force? Our common understanding of democracy is that of a complex set of institutions which have developed over time in the Western world, first in the United States, and then elsewhere. Is it right to consider these institutions as superior to others, and to transplant them into countries with different traditions? B. Can the WTO standardize government procurement? Originally conceived as a means for promoting the free circulation of goods and services, this agreement requires that government suppliers be chosen on the basis of open tendering procedures applied in a non-discriminatory manner. It requires: -Transparency - Competition -Equal treatment - Reasoned decision on the award of the contract These principles also apply in countries where the awarding of government contracts is aimed at pursuing specific goals, such as the development of disadvantaged areas, or assistance to socio-economically disadvantaged populations. How can we reconcile the requirements of global free trade with helping the disadvantaged? C. Can all nations be asked to respect a single catalogue of human_ rights? The question refers to the 1948 International (later “Universal’) Declaration of Human Rights (codified by the 1966 Covenants on Civil and Political Rights and Economic, Social and Cultural Rights) Born as a common ideal to be pursued the Declaration has become a parameter for evaluating behaviour, thereby becoming increasingly exposed to criticism. Universality has been emphasized as a myth. The legal protection of human rights varies according to cultural traditions and political structures. D. Can the United States require that consultation procedures be adopted by International Organizations? The United States have been accused of “legal imperialism” due to its demand that international organizations adopt consultation procedures modelled on the American ones. When decisions are made by an international organization, private actors see their right of participation under domestic law evaporate. The United Stated, therefore, argue that international organizations also ought to guarantee an analogous right of participation by consulting interested parties. In this regard, is it fair to require that international organization, whose frameworks are defined by informality and negotiation, adopt American style of adversarial procedure? E. Can free trade induce the rule of law in China? How may the rule of law take root in legal systems where the authority of the judiciary is constrained and not extend to ideas such as political freedom? 2. Phases and modes of legal globalization All the previous questions have one thing in common, they address the circulation of legal institutions among national systems and their spread from the national to the global level and vice versa. This problem takes five different forms: 1. The direct transfer of institutions from one national legal system to another; 2. The imposition of a global legal principle upon national public administration; 3. The imposition by a global judicial body of a common legal principle, not only upon States, but also within national legal systems; 4. Legal systems which are transplanted from national legal systems to the global level; 5. Institutions may spill over into other contexts at the global level; Legal thought is the first area affected by the circulation and spread of law. In the eighteen century it began to distinguish “local jurisprudence” from “universal jurisprudence” or “particular jurisprudence” from “general jurisprudence”. Universal or general legal thought drew on principles common to several systems of positive law. In the twentieth century, the universality of legal thought widened its scope because people no longer discussed between particular and universal jurisprudence. Twentieth century legal thinkers are positivists, and they assumed that universal law requires a single sovereign and a single worldwide legal community. The last phase of law development continues to this day. It is characterized by transfers from one domestic legal context to another, as well as to the universal level, and it also includes the repercussions of such transfers in domestic legal systems. Mutual recognition agreements illustrate well the transfer of legal institutions from one country to another. On the basis of such agreements, a product that can be sold in one country can also be sold in another, under same conditions. They carry their national laws with them when they change country. 3Mutual recognition agreements do not consist in the mere acceptance by one State of the law that applies to goods, services and business in another State in a given moment. They may also provide that the other State’s rule changes. Moreover, if a State enters into a mutual recognition agreement with another State, and the latter enters into one with another State, the agreement will have transitive force, favouring the circulation of institutions. >With mutual recognition, national laws mix together, increasing the need for common standards implemented by multilateral organizations. Examples of transfer from the national to the universal context: labour protection, criminal justice and government-citizens relations. A. Labour protection Some countries export goods that have not been produced in conformity with the internationally recognized standards for labour protection set by the International Labour 2. Another concern is the dynamic growth of the global legal patrimony of institutions, rules and principles. Legal globalization is the consequence of problems that no national legal order can solve on its own. 3. Emerging balance among domestic legal systems within the global order. An institution or principle introduced in one sector, quickly spreads into others. 4. Studying the global legal order 1. How do we study and what is the relationship with national law of the global concepts that operate at the global level? 2. Role of the rule of law in the global legal order 3. Role of judges in the global legal system 4. To what extent globalization can tolerate governance without government 5. Conclusion A unitary cosmopolitan legal system is not on the horizon, anyway we can recognize the existence of shared principles in some sectors. II. GOVERNING THE WORLD (pag. 67-85) 1. The paradoxes of globalization “The international economic system has become global, while the political structure of the world has remained based on the nation-State” (Kissinger) >Dilemma of the contemporary world: a process of globalization is developing. This process is binding on national governments, but it is mainly economic, and at the meantime States are no longer in command. 3Who runs the world? Is there a world government? National barriers to the economy are being destroyed and world policies are successful. On the other and globalization is not equally distributed. We currently live in an era of semi-globalization and the world is not being taken over by giant companies. What we call “globalization” is a plurality of phenomena. 2. Globalization as a shared governance In such a context, power is shared between national and supranational rulers. Examples: = 1997 Kyoto Protocol > it conferred upon the United Nations Framework Convention on Climate Change the power to limit the amount of pollutants that each nation can emit. Countries that emit less, can sell emission credits to polluting countries. = Exclusive Economic Zone (EEZ) in the Artic 3The surrounding states can use marine resources only in this zone. > Global problems cannot be solved nationally, and they require the establishment of global rules and regulatory bodies. Furthermore, national cooperation is necessary, both among States and with global regulators 3. The “marbled” structure of global governance Areas where global regulations are needed: - Global warming - Artic exploitation - Health security - Global terrorism - Control of fishing - Nuclear waste transportation In the interaction with global regulators national States are both masters and servants. They establish global regulators and confer upon them public tasks, control them, but at the same time they are controlled by them and act as their agents, implementers or enforcers. Principles of global law enter into national legal orders as rules, but they are limited to specific areas. However, they can be easily transplanted to adjacent areas and influence the entire national legal order. The global legal space is not an additional layer with respect to the national level. The two levels are not distinct but rather intertwined. States are not only the subjects, but they combine with other subjects and lose their unity. States are at the same time: - Stronger: they operate in the global space beyond their territory; - Weaker: within international organizations, they must share powers with other States and non-State institutions and because global rules directly impact their national legal system without any need for State intermediation; State sovereignty has been reshaped by globalization How can the combination of national and supranational be explained? * High politics/low politics split > the first remains under the control of the States, while the second is delegated to global regulatory regime. e Economics/politics line > economics in the domain of global regulators and politics in the hands of states (Stiglitz “economic globalization has outpaced political globalization”). 4. The global space Since in the global legal space there is no supreme authority, how does it operate? 1. Transnationalism > the global legal space developed vertically (from the national to the global level) and horizontally (connecting national authorities and global agencies); 2. Cooperation > two examples are the consultative and deliberative committees of international organizations, and mutual recognition agreements; As occurs in the EU, the global legal space presents several committees of international organizations with representatives of national administrations. These representatives present a three-fold role: - Instrument for informing global bodies. - Conduit for transmitting the decisions of the latter to the national level. - Means to ensure dialogue and negotiation between national administrations. The transnational component of global legal space originates from the very limitations of legal globalization. The more national markets open to one another, the more conspicuous the asymmetries and contrasts become. To reduce them, global rules establish general principles, but they cannot govern every detail. 3This component reduces the verticality of the global legal space, but it creates a dense network of horizontal relations of contractual nature; A strict application of the transnational system would require global decisions to be taken unanimously, however unanimity is tempered in various ways. Horizontal and vertical relations of the global system are not hierarchical or based on strict separation but based on the logic of collective action. ® Vertical relations + established in the case of concurrent competences which require mixed procedure In conclusion, while national governments are unitary and have an executive body at their centre, in the global sphere there are different regulatory regimes and there is no single executive. The normative entities are all sector based and there is no general set of rules that operates as a unifying element. The global legal space compensates to the disadvantages of this sectorialism: 1. Process of accretion and accumulation of legal principles; 2. Establishment of horizontal connections between different normative bodies; 3The various regulatory bodies are distinct but not separate Rules produced by global institutions address national administration or national civil society directly. For example, global institutions can have the task of keeping national administrations in check (the WTO imposes various obligations upon national administrations such as that of transparency, and equivalence). When global norms address private subjects, the national administration can be used as a tool for implementation trough coercions and sanctions. Otherwise spontaneous implementation can occur, prompted by market-based incentives. The global legal space does not possess a set of general and common rules, but it is subject to general principles. Is there a global rule of law? 5. Looking to the future National governments are part of the global space and at the same time they are constrained by global rules that oblige them to negotiate and to comply with global judicial and quasi-judicial bodies. They can reach new areas and control new phenomena, but their sovereignty is extremely limited. According to Kissinger the reconstruction of the international system is the ultimate challenge to statesmanship in our time and that a new culture is necessary to translate divergent cultures into a common system. III. DOES A “GLOBAL CONSTITUTION” EXIST? 1. The development of global constitutionalism: not an undisputed phenomenon At the global level, a process of constitutionalization is currently underway (strengthening of an international civil society, the creation of a global public sphere, a growing number of transnational networks and the proliferation of international courts). However, this higher law is only of administrative nature, and the constitutional foundations are at an early stage of development. 2. Globalization challenges constitutionalism Features of constitutionalism: 1. A unitary legal order and a centralised authority; 2. A political community and a dialogue between civil society and the rulers; 3. A “pouvoir constituant”; 4. A body endowed with the power to legislate; functions, like allocation of scarce resources, assistance and provision of services, and protection. The organizational structure can usually be broken down into four parts: 1. Assembly > collegial body in which all the participants are present; 2. Council + more restricted collegial body in which members are elected by the assembly; 3. Secretariat > executive body made up of regular employees of the organization; 4. Committees + made up of functionaries of national administrations; Anyway, this structure varies from one organization to another. While States have a stable division of powers between their different organs, global institutions have, at most, a division of functions between the different organs. There are even organs made up of the same participants but have different capacities and tasks. The lines distinguishing participants from non-participants and States from private organizations are also unclear. The line between public and private becomes more and more unclear. From the organizational standpoint, the global legal order does not follow a single model, but it adapts to the functions to be performed sector by sector (“ad-hoc- cracy”). 5. The joint decision-making technique Global administration does not exist in isolation from the national level. There is a mixed, grey area between global regulatory system and national regulators. This can serve the States and the global system in making their voices heard in the global system, and the global system in penetrating States to reach civil society and local actors. The global and domestic administrative levels depend on each other in the sense that decision-making processes begin at the global level (with preliminary examination or a decision), and they conclude at the national level (with a decision or with the implementation of the global decision). In the first case the domestic decision depends on preliminary examination carried out by the international organization. In the second case, the effectiveness of the decision adopted by an international organization depends on the implementation by national offices (most common). 6. The global and the domestic are not two separate levels There is no clear line of separation between the global and the national. The continuity between the two orders is clear if we consider the relationship between citizens (persons belonging to a nation) and global administrations. Global administrative law ascribes two fundamental rights to citizens: the right to participation (chance to intervene in global administrative procedures) and the right to defence (citizen’s right to appeal to a global judicial authority for the review of national or global decisions). 7. An administration with no constitutional foundation The absence of constitutional foundation raises the issue related to accountability. The absence of an executive vertex, accountable before a representative body, increases the pressure on global administrative law towards greater openness, participation and transparency. 8. The legalization of global administrative networks: towards a universal rule of law? General principles: - Principle of legality -. Right to participate in the formation of norms - Duty of consultation - Right to be heard - Right to access to administrative documents - Duty to give reasons for administrative acts - Right to decisions based upon scientific and testable data - Principle of proportionality The global development of these principles is rooted in traditional administrative law right (participation, transparency, reasoned decision, proportionality, reasonableness) which creates a paradox. On the other hand, the greater the weight of civil society and the direct relations between private actors and global organizations, the greater the need to introduce and respect such principles. Another important aspect of the penetration of law into the global arena concerns the judicial review. Who ensures legal protection for those affected by such decisions? Another interesting phenomenon is the increase of global administrative courts. Some of these have jurisdiction over decisions adopted by national administrations, others over administrative decisions adopted by global authorities. These adjudicating bodies are characterized by the fact that they resolve disputes between States (thus resemble international law) which are, at the same time, transnational conflicts (thus resemble administrative law). II. IS THERE A GLOBAL ADMINISTRATIVE LAW? (pag. 140-155) 1. An important intellectual exercise Scholars are working on global law, and this work has three main features: I. Itisa truly globaleffort, jurists from all over the world are engaged in such research. II. They deal with a new subject-matter. The body of law is confusing, at least when viewed through the lens of traditional criteria. II. One cannot rely upon the usual paradigms of public law. 2. Bogdandy on the legal nature and principles of the global arena Bogdandy's paper on “Principles of International Public Authority” examines principles on international law and the legal nature of the global arena. Five assumptions: 1. To exercise public authority means to unilaterally govern the conduct of third parties even without their consent. 2. There exists no single and unitary body of law, nor a legal order nor a legal space that can be called global. 3. The direct exercise of authority by international institutions over individuals is extremely rare, and the decisions of international institutions do not unilaterally affect private parties, but are addressed to national administrations. 4. The relationship between international institutions and national legal systems is based on two principles: autonomy and delegation. 5. International institutions are subject to the principle of attributed competence: they cannot acquire powers on their own initiative. Their competences are attributed to them by national governments. Five conclusions: 1. Some principles regulating international public authority are emerging. 2. A hierarchy of the sources of law is establishing itself. The founding treaty of each institution operates as the framework for the law that it produces. 3. International institutions are subject to the principle of cooperation in their relations both with national governments and with other global bodies, and to specific procedural duties (inform affected parties, the right to be heard...). 4. The protection afforded to individuals against actions taken in violation of their rights is at the moment unsatisfactory, but it is changing. 5. The relevant global legal principles remain under-developed due to the fact that only a few international institutions are subject to direct judicial review. 3. What is law in the global arena? In domestic legal orders there is a clear-cut dichotomy between legal and non-legal prescriptions because there is a higher authority that says what is and what is not law. This picture changes when we move into the global arena. For example, many World Bank “legal’ instruments are simply referred as “policy” documents. A second dichotomy is the one between binding and _non-binding law. Is a formally binding commitment to obey a rule the only means of producing rule-conforming behaviour? An example is the Codex Alimentarius Commission. These are not compulsory, but they are given binding force by the World Trade Organization (one authority produces rules, and another endows them with binding force). The rule is not binding in itself, and in this case, it is binding in the field of global trade but not in other areas. A third point is related to authority. Power can be exercised trough authoritative means (command and control), but also trough agreements, contracts, incentives, standards and guidelines. 4. The global legal space A general unitary body of global law is missing. Given that the global legal order is fragmented there are no general legal principles common to all, but some common understandings are developing: duty to respect human rights and rule of law, obligation to inform and hear interested parties before decisions are taken, and duties related to the principles of fairness and reasonableness. 5. The global legal space as a “marble cake”: shared powers There is no cut clear separation of competences between national governments and global institutions. The global order can be illustrated as the metaphor of the marble cake. There are no clear dividing lines between layers (national and global) and (global) sectoral regimes; the two worlds are linked both vertically and horizontally trough complex relations and networks. 6. Legitimacy through the law Differences when we move from the national to the global context: = Global bodies do not normally exercise power through authority (they influence the behaviour of national bureaucracies and private parties through a variety of different mechanisms. = Globalbodies are usually established to keep national governments under control, to provide services or to pursue goals that government alone are unable to. There are many different kinds of international administrative norms. These can have either an ad hoc character or a permanent one. Examples of ad hoc norms are the World Bank Operational Policies, which require public consultation on the environmental assessment of projects proposed for the Bank financing. Under these policies, national law is obliged the principle of private participation in administrative proceedings. More interesting are the permanent norms. They are set forth in the following legal instruments: Application of a Sanitary and Phytosanitary Measures (SPS agreement); Agreement on Technical Barriers to Trade (TBT agreement); General Agreement on Trade in Services (GATS); Principles for Food Import and Export Inspection and Certification (FIEIC); The first three belong to the legal system of the WTO, the fourth was adopted by the Joint FAO/WHO Food Standards Program Codex Alimentarius Commission; Common characteristics: 1. 2. 3. The norms are aimed at ensuring balances of conflicting interests These instruments establish a link and require a balance among collective public interests, one of which is international trade. They contain five types of common provisions related to transparency, harmonization, equivalence, consultation and control procedures. . They ensure harmonization. They encourage national administrations to base their measures on international standards, guidelines or recommendations. These norms are formally not binding, but measures based on them are presumed to be consistent with the relevant international provisions of the treaties. . To ensure equivalence, all four agreements provide that members should accept the measures of other States as equivalent if the exporting State objectively demonstrates that its measures achieve the importing State’s level of protection. If no international standards, guidelines, or recommendations exist, or if a national measure does not respect the international standard guideline, the Members shall follow a procedure of notification and consultation. . These four international agreements set restrictions on national procedures of certification and control. They must respect: (i) equivalence of assessment and control procedures for imported and domestic products (ii) expedient execution of the procedures and (iii) the avoidance of undue delay in considering an application. 4. The regulators Agreements: Agreements between states > disciplining State administration are acts of self- restraint undertaken by the States themselves. They are the work of national governments and are ratified by legislative bodies. Standards established by the collegial bodies of international organizations > they represent an external limitation even if State representatives belong to these bodies. They are made up of national civil servants (ex. Committee on Sanitary and Phytosanitary Measures or the Committee on Technical Barriers to Trade). International agreements do not themselves fix the standards; they route this job to other international bodies using a technique called “borrowing regimes”. Therefore, there is a schism between the regulators and the authors of the regulation. Example: the WTO on the one hand avails itself of the Codex Commission’s work for the harmonization of national regulations. On the other hand, the standards of the Codex Commission are not in themselves binding upon States, but their observance increased their application by the dispute resolution bodies of the WTO. The agreements require that the Members designate a government authority responsible for performing the activity subject to international obligations or designate an enquiry point. 5. The regulated It has a vertical effect (address directly national public administration). International regulations are directed at States, sub-States entities and to private ones. International regulation also produces a horizontal effect in the sense that it requires a dialogue between States. This dialogue is done in two different ways: 1. National public administrations are required to compare continuously their own and other countries’ measures 2. National public administrations are encouraged to enter into equivalence or mutual recognition agreements. Global regulation not only imposes itself vertically on States, but it also requires States to open themselves up reciprocally This two-fold effect (vertical and horizontal) and the relationship between international organizations and states can be seen in the EU. Here too harmonization is required from on high and is accompanied by mutual recognition 6. The regulatory process State obligations deriving from international regulations are related to procedures — obligations such as consultation and discussion, respect for the principles of reasonableness and proportionality and the duty to give response within a fixed period. The regulatory process at the international level incorporates the practice of mutual recognition. This practice enables the national authority to make decisions that have direct effects in other national legal systems. In the EU it was developed by the European Court of Justice (ECJ), while at the global level it is the outcome of interstate agreements and is thus a matter of voluntary consent. The notice and comment procedure has been borrowed from other legal systems. In the national level the actor that notifies, receives comments and decides is a State authority and is superior to the commenting party. At the international level is a State that listens another State and there is no higher authority that decides. 7. The legal status of the rules Rules created by international organs do not create direct legally binding obligations on the States. Still, it cannot be said that global standards will have no effect until they are incorporated into an international treaty. The decisions of international bodies have direct legal consequences even before they are incorporated into international treaties. Thus, global standards produce their effects in different and more complicated ways than national standards do. 8. Conclusion The parts of the global legal system examined here appear as a network of sectoral regulators. These regulators, however, are not separate but rather reinforce each other mutually. V. THE DEVELOPMENT OF GLOBAL ADMINISTRATIVE LAW (pag. 191-213) 1. The dimension of global administrative law Until a few decades ago, both administrative systems and administrative law developed in the specific context of the nation-State. Public administrations were conceived of as belonging to the national communities and as being structurally dependent upon national governments. Administrative law was fundamentally state law. The development of global regulators and global rules altered this traditional picture: * State administrative law > monistic = GAL > dualistic dimension and it has some unitary features and drives national administrative systems toward convergence » State administrative system > diverge GAL has a double relationship: one with national governments and one with global regulatory regimes. However, GAL is not a layer of regulation that is superimposed upon State regulation and administrative law is not a multi-level system. Another problem is the use of the adjective “global” rather than “international”. Historically: - International > used with reference to inter-State relations assuming the paradigm of State as a unit - Global > refers to civil societies and to the fragmented State GAL captures three dimensions: e Civil societies e National institutions e Supranational, international and transnational institutions From this perspective, GAL is characterized not only by a “trilateral” relationship, but also by the emergence of “new alliances”. Choosing the term “global” instead of “international” is not a mere matter of terminology, because the former refers to the world as an interconnected whole. 2. Administration without a constitution? One of GAL’s peculiarities is the fact that it is much more developed than its constitutional foundations. Therefore, the world is more united by the global administrative standards established, rather than constitutional principles. This differentiates GAL from national administrative law which is subject to a process of constitutionalization. Another peculiarity derives from the absence of a single government and a single comprehensive legal order at the global level. However, a process of convergence of the different regulatory regimes is under way. 3. The “marbled” structure of global administration: the role of global regulatory regimes Steward has classified global regulators into four basic types: