The interplay between actors as a determinant of the evolution of administrative law in international institutions

Law and Contemporary Problems

Volumn 68, Issue 3-4, 2005, Pages 319-339

  Benvenisti, Eyal ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 30944438264     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (109)

1. Martin Shapiro, The Institutionalization of European Administrative Space (Center for Culture, Org. & Pol., Working Paper No. 2000-09, 2000) (on file with Law & Contemp. Probs.), at http:// ist-socrates.berkeley.edu/~iir/culture/abstracts/ Shapiro.html (last visited Feb. 18, 2005).
2. Eyal Benvenisti, Exit and Voice in the Age of Globalization, 98 Mich. L. Rev. 167 (1999).
3. In explaining the legality of the Security Council's establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the tribunal noted that "the constitutional structure of the United Nations does not follow the division of powers often found in national constitutions." Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, at ¶ 143 (Int'l Crim. Trib. Former Yugoslavia 1995) (on file with Law & Contemp. Probs.), available at http://www.un.org/icty/tadic/appeal/ decision-e/51002.htm (last visited Feb. 18, 2005).
4. I thank Benedict Kingsbury for this suggestion.
5. See J.H.H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, Jean Monnet Working Paper No. 9 (2000) ("From interviews with many delegations I have conducted it is clear that, as mentioned above, they saw the logic of the Appellate Body as a kind of Super-Panel to give a losing party another bite at the cherry, given that the losing party could no longer block adoption of the Panel. It is equally clear to me that they did not fully understand the judicial let alone [the] constitutional nature of the Appellate Body."), at http:// www.jeanmonnetprogram.org/papers/00/000901-04.html#P158_56413;
6. Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 Am. J. Int'l L. 247, 251 n.27 (2004) ("A few WTO DSU negotiators contemplated the possibility that in interpreting WTO agreements, the Appellate Body would engage in expansive lawmaking. However, most trade ministers consistently underestimated or dismissed that possibility, focusing instead on the virtues of its function of applying the rules.... After the Uruguay Round agreements were signed, some members of the U.S. Congress expressed serious concern about the potential for judicial lawmaking, Senator Robert Dole going so far as to propose the establishment of a special U.S. commission to review certain Appellate Body decisions.").
7. Matthew D. McCubbins, Roger C. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243 (1987);
8. see also McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. Econ. & Org. 180 (1999).
9. U.S.C. § 551.
10. McCubbins et al., supra note 6, at 244.
11. Id. at 255.
12. Murray J. Horn, The Political Economy of Public Administration 9 (1995) (describing the dependency of the legislator on the executive in a Westminster parliamentary system).
13. Eyal Benvenisti, Party Primaries as Collective Action with Constitutional Ramifications: Israel as a Case Study, 3 Theoretical Inquiries in Law 175 (2002) (describing the impact of the introduction of party primaries in Israel on the power relations between the executive and the legislature).
14. See Mark Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, 23 J. Legis. Stud. 721 (1994).
15. Roger Cotterrell, The Sociology of Law 169-171 (2d ed. 1992);
16. Gerald Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1334 (1984).
17. See also Tom Ginsburg, Dismantling the "Developmental State"? Administrative Procedure Reform in Japan and Korea, 49 Am. J. Comp. L. 585, 597 (2001) (suggesting that the motivation for the enactment of the Korean Administrative Appeals Act of 1984 was President Chun Doo Hwan's attempt to gain legitimacy for his government).
18. See, e.g., J. Mark Ramseyer & Minoru Nakazato, Japanese Law: An Economic Approach 217-18 (1999) (describing how politicians of the ruling LDP party sought control over local bureaucracy through judicial review of local government).
19. Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?, 13 Int'l Rev. L. & Econ. 349, 361-62 (1993).
20. Cf. Ginsburg, supra note 13, at 613-14 ("Parties that govern for an extended period have less need to rely on independent courts as monitors because they will be able to manipulate bureaucrat[s'] careers and develop other alternative means of control.");
21. see also McCubbins et. al., supra note 6.
22. See supra note 7.
23. Shapiro, supra note 1, at 11.
24. See generally Ramseyer & Nakazoto, supra note 14, at 191-219 (analyzing the evolution of Japanese administrative law in a system in which judges are controlled by politicians).
25. See John Ferejohn, The Law of Politics: Judicializing Politics, Politicizing Law, 65 Law & Contemp. Probs. 41, 55-60 (2002) (explaining that the "fragmentation of power" within the political branches has led to increased judicial activism);
26. see also Nicos C. Alivizatos, Judges as Veto Players, in Parliaments and Majority Rule in Western Europe 566 (Herbert Doering ed., 1995) (documenting statistically the legislative impasse).
27. See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int'l Org. 427 (1988) (All states play a "two-level game.").
28. On the interaction between domestic interests groups across political boundaries, see Benvenisti, supra note 2.
29. J. H. H. Weiler, supra note 5.
30. A recent example of this in the area of trade can be seen in the WTO panel ruling in favor of Antigua and against the U.S. WTO Panel Rules in Favour of Antigua, Barbuda in Gambling Dispute, Bridges: Weekly Trade News Digest, Nov. 17, 2004 (on file with Law & Contemp. Probs.), at http://www.ictsd.org/weekly/04-11-17/story5.htm (last visited Feb. 15, 2005);
31. Christina L. Davis, Do WTO Rules Create a Level Playing Field? Lessons from the Experience of Peru and Vietnam, Paper Presented at the Annual Meeting of the American Political Science Association (2003) (describing instances in which the WTO dispute resolution rules helped to level the playing field for developing countries) (on file with Law & Contemp. Probs.), at http://www.princeton.edu/~cldavis/files/ davis_WTO∠d_developing_countries.pdf (last visited Feb. 15, 2005).
32. See David M. Malone, The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the U.N. Charter, 35 N.Y.U. J. Int'l L. & Pol. 487, 503-04 (2003) (describing the adoption by the Permanent Five of private deliberations closed to other members of the Security Council);
33. see also infra Part IV.C (on the evolution of administrative law within the U.N.).
34. The U.N. Administrative Tribunal (UNAT) was established by the General Assembly Resolution 351 of 9 December 1949 as an independent organ to pass judgments relating to the governance of U.N. staff members. G.A. Res. 351, U.N. GAOR, 4th Sess., U.N. Doc.A/RES/351(IV) (1949). In fact, several international institutions (including the World Bank, the IMIF, and the League of Arab States) have created tribunals to deal with internal labor disputes, and the International Labour Organization's Administrative Tribunal is also authorized to hear disputes arising from other institutions. Jan Klabbers, An Introduction to International Institutional Law 269-73 (2002)
35. see also Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations 323-67 (1996) (discussing the law of employment relations in international institutions).
36. See, e.g., infra Part IV. C (on the role of the ICJ as the judicial organ of the U.N.).
37. Benvenisti, supra note 2, at 177-89.
38. Under this procedure, the President agrees to involve Congress in the negotiation phase of trade agreements in return for a bicameral congressional commitment to vote the agreement up or down without amendment. Congress's involvement at the negotiation phase limits the discretion of government negotiators in the international bargaining process and provides more voice to groups that are less influential with the Executive, although the President continues to control the agenda. Benvenisti, supra note 2, at 186-87;
39. see also Harold H. Koh, The Fast Track and United States Trade Policy, 18 Brook. J. Int'l L. 143 (1992) (describing the "Fast Track" procedure, its role in NAFTA trade talks, and its future viability).
40. Richard B. Stewart, U.S. Administrative Law: A Resource for Global Administrative Law 24 (Jan. 17, 2004) (discussion draft) (on file with Law & Contemp. Probs.), at http://www.law.nyu.edu/kingsburyb /spring04/ globalization/ stewart_012604.pdf (last visited Feb. 15, 2005).
41. Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 Eur. J. Int'l. L. 159 (1993);
42. Mattias Kumm, International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model, 44 Va. J. Int'l L. 19 (2003).
43. In the wake of the collapse of the London-based International Tin Council, claims of individual debtors were rejected owing to the immunity enjoyed by the organization. See J.H. Rayner Ltd. v. Dep't of Trade & Indus., [1990] 2 A. C. 418 (H.L. 1990).
44. Slobodan Milosevic v. The State of The Netherlands, 41 I.L.R. 86 (Dist. Ct. Civ. L. Div. 2001) (The Hague).
45. On the possible development of such rules, see infra Part V.
46. Judith Goldstein & Lisa L. Martin, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int'l Org. 603, 606 (2000).
47. Id.
48. For criticism of these opaque procedures, see Jose E. Alvarez, Hegemonic International Law Revisited, 97 Am. J. Int'l L. 873, 874-78 (2003).
49. Giacinto della Cananea, Beyond the State: The Europeanization and Globalization of Procedural Administrative Law, 9 Eur. Pub. L. 563 (2003);
50. Francesca Bignami, Three Generations of Participation Rights in European Administrative Proceedings, Jean Monnet Working Papers No. 11 (2003), at http://www.jeanmonnetprogram.org/papers/03/031101.pdf;
51. see also Francesca Bignami, The Administrative State in a Separation of Powers Constitution: Lessons for European Community Rulemaking from the United States (Jean Monnet Working Papers No. 5, 1999), at http://www.jeanmonnetprogram.org/papers/99/990501.html.
52. Shapiro notes that "judicial activism in administrative review comes fairly easily to courts that are active in constitutional review." Shapiro, supra note 1, at 18.
53. On this trade-off see Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, Inst. Int'l L. Jus. Working Paper 2004/7 (on file with Law & Contemp. Probs.), at http://www.iilj.org/ papers/2004/2004.7%20Grant %20Keohane.pdf (last visited Feb. 16, 2005).
54. Federal Constitutional Court's Decision Concerning the Maastricht Treaty, of October 12, 1993, 2BvR 92, 2134 (F.R.G.), translated in 33 I.L.M. 388, 420 (1994).
55. Id.
56. Id.
57. For recent analyses of the AB's lawmaking capacities and their constitutional implications, see Weiler, supra note 5;
58. Steinberg, supra note 5.
59. WTO General Council, Guidelines for Arrangements on Relations with Non-Governmental Organizations, Decision adopted by the General Council on 18 July 1996, WT/L/162 (July 23, 1996) (on file with Law & Contemp. Probs), available at http://docsonline.wto.org/ gen_home.asp?language=1&_=1.
60. See Jeffrey L. Dunoff, The Misguided Debate over NGO Participation at the WTO, 1 J. Int'l Econ. Law 433 (1998).
61. For an appraisal of the debate see Eric Stein, International Integration and Democracy: No Love at First Sight, 95 Am. J. Int'l. L. 489, 504-09 (2001).
62. Eyal Benvenisti & George W. Downs, Distributive Politics and International Institutions: The Case of Drugs 13-15 (Tel Aviv University Law Faculty Working Paper No. 6, 2005) (on file with Law & Contemp. Probs.), at http://law.bepress.com/cgi/ viewcontent.cgi?article=1005&context=taulwps (last visited Feb. 16, 2005).
63. WTO General Council, General Council Informal Consultations on External Transparency, Submission from the United States, WT/GC/W/413 (Oct. 10, 2000), available at http://docsonline.wto.org/ gen_home.asp?language=1&_=1 (on file with Law & Contemp. Probs.);
64. WTO General Council, WTO External Transparency, Informal Paper by Canada, WT/GC/W/415 (Oct. 17, 2000) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/gen_home.asp? language=1&_=1;
65. WTO General Council, External Transparency, Communication from Norway, WT/GC/W/419 (Nov. 2, 2000) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/ gen_home.asp?language=1&_=1.
66. See in particular the Canadian paper, supra note 46.
67. See, e.g., WTO General Council, WTO: External Transparency, Communication from Hong Kong, China, WT/GC/W/418 (Oct. 31, 2000) (describing the position of Hong-Kong, China on this matter and elaborating on the distinction between external transparency and direct participation) (on file with Law & Contemp. Probs.), available at http:// docsonline.wto.org/gen_home.asp?language=1&_=1. In particular, the Hong Kong communication states, "We are not convinced of the desirability of adopting proposals which seek to make provisions for direct participation of the civil society in the Organization in this exercise. Such proposals go against the inter-governmental nature of the WTO, risk politicising the operations of the Organization due to sectoral and electoral interests, and undermine the rights and obligations of individual WTO Members." Id. In particular, the Hong Kong communication states, "We are not convinced of the desirability of adopting proposals which seek to make provisions for direct participation of the civil society in the Organization in this exercise. Such proposals go against the inter-governmental nature of the WTO, risk politicising the operations of the Organization due to sectoral and electoral interests, and undermine the rights and obligations of individual WTO Members." Id.
68. See General Council Informal Consultations on External Transparency, Submission from the United States, supra note 46.
69. Report of the Appellate Body, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998) [hereinafter Shrimp-Turtle] (concerning the U.S. prohibition on the importation of certain shrimp and shrimp products that were caught using methods considered by the US to adversely affect the population of sea turtles) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/gen_home.asp? language=1&_=1.
70. For analyses of the Panels' and Appellate Body's authority to consult amicus briefs, see Robert Howse, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence, in The EU, the WTO, and the NAFTA (COLLECTED Courses of the Academy of European Law) 35, 48-51 (Joseph H.H. Weiler ed., 2000);
71. Petros C. Mavroidis, Amicus Curiae Briefs Before The WTO: Much Ado About Nothing, Jean Monnet Papers No. 2 (2001), at http://www.jeanmonnetprogram.org/papers/01/010201.html.
72. See supra note 50.
73. Report of the Appellate Body, United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, at 14 (June 10, 2000) (emphasis added) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/ gen_home.asp?language=1&_=1.
74. Appellate Body Communication, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/9 (Nov. 8, 2000) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/gen_home.asp?language=1&_=1.
75. Report of the Appellate Body, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (Mar. 12, 2001) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/gen_home.asp?language=1&_=1.
76. US in Murky Waters Over Shrimp-Turtle, Bridges Weekly Trade News Digest, Nov. 21, 2000 (on file with Law & Contemp. Probs.), at http://www.newsbulletin.org/ getbulletin.cfm?bulletin_ID=14&issue_ID=1685&browse=1& SID= (last visited Feb. 18, 2005).
77. See, e.g., Decision by the Appellate Body, Statement by Uruguay at the General Council on 22 November 2000, WT/GC/38 (Dec. 4, 2000) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/ gen_home.asp? language=1&_=1.
78. Report of the Appellate Body, European Communities - Trade Description of Sardines, WT/DS231/AB/R, at 35-38 (Sept. 26, 2002) (on file with Law & Contemp. Probs.), available at http://docsonline.wto.org/ gen_home.asp? language=1&_=1. "We find that we have the authority to accept the brief filed by a private individual, and to consider it. We also find that the brief submitted by a private individual does not assist us in this appeal." Id. accept the brief filed by a private individual, and to consider it. We also find that the brief submitted by a private individual does not assist us in this appeal." Id.
79. Final Act Embodying the Results of the Uruguay Round of Mutilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments - Results of th Uruguay Round vol. 1 (1994), 33 I.L.M. 1125 (1994).
80. Id. at 1149.
81. See Shrimp-Turtle, supra note 50, at 72-75.
82. Gregory Shaffer, International Trade-WTO-Quantitative Restrictions-Environmental Protection-Endangered Species-U.S. Import Ban on Shrimp, 93 Am. J. Int'l L. 507, 513 (1999).
83. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954 I.C.J. 47 (July 13).
84. Id. at 57.
85. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, at 45 (June 21) ("Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned.").
86. A sample of this rich debate includes Jose E. Alvarez, Judging the Security Council, 90 Am. J. Int'l L. 1 (1996);
87. Ken Roberts, Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review, 7 Pace Int'l L. R. 281 (1995);
88. Vera Gowlland-Debbas, The Relationship Between the International Court of Justice and the Security Council in Light of the Lockerbie Case, 88 Am. J. Int'l L. 643 (1994);
89. W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 Am. J. Int'l L. 83 (1993);
90. Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int'l L.J. 1 (1993);
91. Thomas M. Franck, The "Powers of Appreciation": Who Is the Ultimate Guardian of UN Legality?, 86 Am. J. Int'l L. 519 (1992);
92. Edward McWhinney, The International Court as Emerging Constitutional Court and the Co-ordinate UN Institutions (Especially the Security Council): Implications of the Aerial Incident at Lockerbie, 1992 Can. Y.B. Int'l L. 261.
93. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.S.), 1992 I.C.J. 2, at 15 (Apr. 14) (Request For The Indication Of Provisional Measures, 14 April 1992).
94. G.A. Res. ES-10/L.16, U.N. GAOR, 10th Emerg. Spec. Sess., U.N. Doc. A/ ES-10/L.16 (2003).
95. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136 (2004).
96. S.C. Res. 1515, SCOR, 58th Sess., 4862d mtg., U.N. Doc. S/RES/1515 (2003).
97. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 69, at ¶¶ 49-50 ("The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine.... This responsibility has been described by the General Assembly as 'a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy' .... The object of the request before the Court is to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions. The opinion is requested on a question which is of particularly acute concern to the United Nations....").
98. See, e.g., Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, at ¶ 43 (Int'l Crim. Trib. Former Yugoslavia 1995) (on file with Law & Contemp. Probs.), available at http://www.un.org/icty/tadic/appeal/ decision-e/ 51002.htm.
99. For criticism of the decision, see Jose E. Alvarez, Nuremberg Revisited: The Tadic Case, 7 Eur. J. Int'l L. 245 (1996).
100. Dusko Tadic, at ¶ 21.
101. Slobodan Milosevic v. The State of The Netherlands, 41 I.L.R. 86 (Dist. Ct. Civ. L. Div. 2001) (The Hague).
102. Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 I.C.J. 7.
103. Id. at 78.
104. Id. at 80.
105. See Eyal Benvenisti, Sharing Transboundary Resources: International Law and Optimal Resource Use 131-55 (2002) (discussing the structure and procedure of institutions for trans-boundary ecosystem management).
106. The preamble to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted in Aarhus, Denmark on June 25, 1998, by member states of the Economic Commission for Europe and other European states, emphasizes these points: "Recognizing that, in the field of the environment, improved access to information and public participation in decisionmaking enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, aiming thereby to further the accountability of and transparency in decisionmaking and to strengthen public support for decisions on the environment...." Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 571.
107. Eyal Benvenisti, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 Am. J. Int'l L. 384, 412-14 (1996).
108. Benvenisti, supra note 78, at 185-86.
109. Eyal Benvenisti, Customary International Law as a Judicial Tool for Promoting Efficiency, in The Impact of International Law on International Cooperation 85 (Eyal Benvenisti & Moshe Hirsch eds., 2004).