Constitutionalizing multilevel governance?

International Journal of Constitutional Law

Volumn 6, Issue 3-4, 2008, Pages 457-479

  Picciotto, Sol ^a  

^a LANCASTER UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 65649146893     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mon017     Document Type: Conference Paper

References (113)

1. See, e.g., THE POLITICS OF REGULATION: INSTITUTIONS AND REGULATORY REFORMS FOR THE AGE OF GOVERNANCE (Jacint Jordana & David Levi-Faur eds., Edward Elgar 2004)
2. MODERN GOVERNANCE: NEW GOVERNMENT-SOCIETY INTERACTIONS (Jan Kooiman ed., Sage 1993)
3. PUBLIC GOVERNANCE IN THE AGE OF GLOBALIZATION (Karl-Heinz Ladeur ed., Ashgate 2004)
4. Sol Picciotto, The Regulatory Criss-Cross: Interaction between Jurisdictions and the Construction of Global Regulatory Networks, in INTERNATIONAL REGULATORY COMPETITION AND COORDINATION 89 (William W. Bratton et al. eds., Clarendon Press 1996)
5. R. A. W. RHODES, UND ERSTANDING GOVERNANCE: POLICY NETWORKS, GOVERNANCE, REFLEXIVITY, ACCOUNTABILITY (Open Univ. Press 1997)
6. Inger-Johanne Sand, Understanding the New Forms of Governance: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions, 4 EUR. L. J. 271 (1998)
7. ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (Princeton Univ. Press 2004).
8. Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN AFF. 183, 186 (1997).
9. See, e.g., Philip Alston, The Myopia of the Handmaidens: International Lawyers and Globalization, 8 EUR. J. INT'L L. 435 (1997)
10. Sol Picciotto, Fragmented States and International Rules of Law, 6 SOC. & LEGAL STUD. 259 (1997).
11. Anne-Marie Slaughter, The Accountability of Government Networks, 8 IND. J. GLOBAL LEGAL STUD. 347, 348-350 (2001).
12. A NEW WORLD ORDER, supra note 1, at 230-260.
13. Id. at 240.
14. Anne-Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracies, in PUBLIC GOVERNANCE IN THE AGE OF GLOBALIZATION 121, 148-152 (Karl-Heinz Ladeur ed., Ashgate 2004).
15. See, e.g., Robert A. Dahl, Can International Organizations Be Democratic? A Skeptic's View, in DEMOCRACY'S EDGES 19 (Ian Shapiro & Casiano Hacker-Cordón eds., Cambridge Univ. Press 1999).
16. Emanuel Adler & Peter M. Haas, Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program, 46 INT'L ORG. 367, 378 (1992).
17. See MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF IN TERPRETIVE SOCIOLOGY 1403 (Univ. of Cal. Press 1978).
18. When technocracy loses its basis in social values, and its rationality becomes merely instrumental, it is known as the "iron cage problem." See Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95, 146-150 (2003).
19. E.g., Giandomenico Majone, The Rise of the Regulatory State in Europe, 17 W. EUR. POL. 77 (1993)
20. Martin Loughlin & Colin Scott, The Regulatory State, in 5 DEVELOPMENTS IN BRITISH POLITICS 205 (Patrick Dunleavy et al. eds., Macmillan 1997)
21. John Braithwaite, The New Regulatory State and the Transformation of Criminology, 40 BRIT. J. CRIMINOLOGY 222 (2000).
22. Jon Pierre, Introduction: Understanding Governance, in DEBATING GOVERNANCE 1, 2-7 (Jon Pierre ed., Oxford Univ. Press 2000).
23. DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERNMENT: HOW THE ENTREPRENEURIAL SPIRIT IS TRANSFORMING THE PUBLIC SECTOR 25 (Addison-Wesley 1992).
24. Michael Reed, From the 'Cage' to the 'Gaze'? The Dynamics of Organizational Control in Late Modernity, in REGULATION AND ORGANIZATIONS: INTERNATIONAL PERSPECTIVES 17 (Glenn Morgan & Lars Engwall eds., Routledge 1999).
25. Nikolas Rose & Peter Miller, Political Power Beyond the State: Problematics of Government, 43 BRIT. J. SOC. 173, 174 (1992 ).
26. Peter Miller & Nikolas Rose, Governing Economic Life, 19 ECON. & SOC. 1, 10 (1990).
27. See Sol Picciotto, Regulatory Networks and Multi-Level Global Governance, in RESPONSIBLE BUSINESS: SELF-GOVERNANCE AND LAW IN TRANSNATIONAL ECONOMIC TRANSACTIONS 315 (Olaf Dilling, Martin Herberg & Gerd Winter eds., Hart 2008).
28. Debates about regulatory competition and the "race to the bottom" (or to the top), such as those discussed in DALE D. MURPHY, THE STRUCTURE OF REGULATORY COMPETITION: CORPORATIONS AND PUBLIC POLICIES IN A GLOBAL ECONOMY (Oxford Univ. Press 2004), have tended to overlook the many ways in which regulatory regimes are interdependent and coordinated.
29. See Picciotto, Regulatory Criss-Cross, supra note 1, at 91-92.
30. This concept has been analyzed mainly in relation to powerful states - that is, governments - and in connection with norm creation. See John Braithwaite & Peter Drahos, Forum-shifting and Contests of Principles, in GLOBAL BUSINESS REGULATION 564 (Cambridge Univ. Press 2000) (discussing how lawyers acting for private parties developed forum-shopping as a tactic). It has been extended beyond litigation to the selection of jurisdictions of convenience in order to structure international business activities for optimal regulatory exposure. Examples include such strategies (many of them driven by business lobbies) as the use of havens for tax avoidance, flags of convenience for shipping, and offshore finance centers for financial activities.
31. LUC BOLTANSKI & EVE CHIAPELLO, LE NOUVEL ESPRIT DU CAPITALISME [THE NEW SPIRIT OF CAPITALISM] 444-455 (Gallimard 1999).
32. See HUGH COLLINS, REGULATING CONTRACTS (Oxford Univ. Press 1999)
33. Jody Freeman, The Contracting State, 28 FLA. ST. U. L. REV. 155 (2000)
34. Peter Vincent-Jones, The Regulation of Contractualisation in Quasi-Markets for Public Services, 1 PUB. L. 303 (1999).
35. Colin Scott, Private Regulation of the Public Sector: A Neglected Facet of Contemporary Governance, 29 J. LAW & SOC. 56 (2002).
36. MICHAEL MORAN, THE BRITISH REGULATORY STATE: HIGH MODERNISM AND HYPER-INNOVATION (Oxford Univ. Press 2003) (using the term "club rule").
37. Even the EU, with its strong institutional framework, has resorted to the "open method" of coordination on sensitive issues such as social policies and taxation. See James S. Mosher & David M. Trubek, Alternative Approaches to Governance in the EU: EU Social Policy and the European Employment Strategy, 41 J. COMM. MKT. STUD. 63 (2003).
38. PENELOPE CANAN & NANCY REICHMAN, OZONE CONNECTIONS: EXPERT NETWORKS IN GLOBAL ENVIRONMENTAL GOVERNANCE (Greenleaf 2002).
39. Another example is the Internet Engineering Task Force (IETF), whose province is internet regulation. See A. Michael Froomkin, HabermasΔiscourse.Net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 749, 810-811 (2003). The commitment of the IETF community is not to a closed apolitical technicist task, but to the much broader normative value of ubiquitous global communication.
40. Sol Picciotto, Offshore: The State as Legal Fiction, in OFFSHORE FINANCE CENTRES AND TAX HAVENS: THE RISE OF GLOBAL CAPITAL 43 (Mark P. Hampton & Jason P. Abbott eds., Macmillan 1999)
41. see also RONEN PALAN, THE OFFSHORE WORLD: SOVEREIGN MARKETS, VIRTUAL PLACES, AND NOMAD MILLIONAIRES (Cornell Univ. Press 2003).
42. With U.S. support, Panama had seceded from Colombia in 1903 to facilitate construction of the Panama Canal. William Cromwell, of the New York law firm Sullivan & Cromwell, became Panama's representative in the U.S.; he also acted for the shipowners. Cromwell was succeeded in this role by John Foster Dulles, the future secretary of state. See RODNEY P. CARLISLE, SOVEREIGNTY FOR SALE 16 (Naval Inst. Press 1981).
43. The Liberian International Ship and Corporate Registry is run from Vienna, Virginia, continuing an arrangement originally devised by a group headed by Edward R. Stettinius, a former executive at General Motors and U.S. Steel who served as U.S. secretary of state under Franklin D. Roosevelt. In 1947 he formed Stettinius Associates with former State Department colleagues and established various development projects in Liberia in partnership with the Liberian government. The ship registry was to be the longest lasting of these projects; by 1955, Liberia's was the leading flag of convenience. The Stettinius group drafted Liberia's Maritime Code, which provides for the administration of the ship registry to be subcontracted to a U.S.-based company. CARLISLE, supra note 28, at 115-119.
44. During the 1990-96 civil war, the registry's contribution to the Liberian national budget increased from 10-15 percent to 90 percent. In 1996, rebel leader Charles Taylor, by this time a member of a six-person Council of State, initiated legal action against the administrator, from which he had been unable to obtain funds during the civil war. Aided by U.S. lawyer Lester Hyman, Taylor sued Virginia-based International Registries Inc. (IRI) in the U.S. courts, alleging that IRI was diverting shipowners to another registry and had failed to account properly to Liberia for its receipts. Once Taylor became president, his government contracted with Hyman to establish the Liberian International Shipping and Corporate Registry (LISCR), which took over the business in 2000. See Report of the Panel of Experts Pursuant to Security Council resolution 1343 (2001), paragraph 19, concerning Liberia, U.N. Doc. S/2001/1015 (2001). LISCR makes profi ts mainly from the corporate registry side of the business, which essentially facilitates tax avoidance. Telephone interview with Jill Keohane, senior vice-president of LISCR, Oct. 16, 2006.
45. Ten such bodies have formed the International Association of Classification Societies (IACS), which in December 2005 adopted a set of Common Structural Rules for ship classification and approval. See http://www.liscr.com/(Liberian Registry)
46. see also http://www.iacs.org.uk (IACS).
47. The first regulatory network was established by twenty maritime authorities covering Europe and the North Atlantic, based on the Paris Memorandum of Understanding. See Paris Memorandum of Understanding, available at http://www.parismou.org.
48. This network has been followed by Asia-Pacific, Caribbean, and Latin American groups. The ITF also maintains an international network of inspectors who liaise with the Port State Control system. INTERNATIONAL TRANSPORT WORKERS' FEDERATION, CAMPAIGN AGAINST FLAGS OF CONVENIENCE AND SUBSTANDARD SHIPPING: ANNUAL REPORT 5-7 (2004) (counting 131 inspectors in 43 countries in 2003); Interview with Graham Young, ITF Special Seafarers' Department (June 1, 2006).
49. See generally ALASTAIR D. COUPER ET AL., VOYAGES OF ABUSE: SEAFARERS, HUMAN RIGHTS AND INTERNATIONAL SHIPPING (Pluto Press 1999)
50. SEEFAHRT IM ZEICHEN DER GLOBALISIERUNG [SEAFARING AS A SIGN OF GLOBALIZATION] (Heide Gerstenberger & Ulrich Welke eds., Westfalisches Dampfboot 2002)
51. DALE D. MURPHY, THE STRUCTURE OF REGULATORY COMPETITION: CORPORATIONS AND PUBLIC POLICIES IN A GLOBAL ECONOMY 45-71 (Oxford Univ. Press 2004).
52. Ronen Palan, Tax Havens and the Commercialization of State Sovereignty, 56 INT'L ORG. 151 (2002).
53. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, March 25, 1957, art. 133(4), 111 U.N.T.S. 11.
54. Claudio M. Radaelli, The Code of Conduct against Harmful Tax Competition: Open Method of Coordination in Disguise?, 81 PUB. ADMIN. 513 (2003).
55. The April 1998 meeting called by the G7 was attended by finance ministers and central bank governors from Argentina, Australia, Brazil, Canada, China, France, Germany, Hong Kong SAR, India, Indonesia, Italy, Japan, Korea, Malaysia, Mexico, Poland, Russia, Singapore, South Africa, Thailand, the U.K., and the U.S., as well as the heads of the Bank for International Settlements, International Monetary Fund, World Bank, and OECD; with some changes in membership, this meeting later became semiformalized as the G20.
56. The FSF Secretariat prepares a paper for the biannual FSF meetings which surveys ongoing work and regulatory initiatives relating to financial market supervision, going well beyond the twelve existing compendium standards.
57. The negotiations to launch a new trade round at the Third WTO Ministerial Conference (Seattle, Nov. 30-Dec. 3, 1999) collapsed ignominiously amid sharp disagreements in closed sessions, while anti-WTO demonstrators fought police in the streets outside the convention center.
58. Mike Moore, The Backlash against Globalization? (speech presented in Ottawa, Canada on Oct. 26, 2000), available at http://www.wto.org/ english/news_e/spmm_e/spmm39_e.htm (last visited Jan. 27, 2001).
59. Kenneth O. W. Abbott et al., The Concept of Legalization, 54 INT'L ORG. 401, 404-406 (2000).
60. Martha Finnemore & Stephen J. Toope, Alternatives to "Legalization": Richer Views of Law and Politics, 55 INT'L ORG. 743 (2001).
61. Kenneth O. W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421, 426-427 (2000).
62. Joel P. Trachtman, The Domain of WTO Dispute-Resolution, 40 HARV. INT'L L. J. 333, 346 (1999)
63. Petros C. Mavroidis, Come Together? Producer Welfare, Consumer Welfare, and WTO Rules, in REFORMING THE WORLD TRADING SYSTEM 277, 282 (Ernst-Ulrich Petersmann ed., Oxford Univ. Press 2005).
64. Sol Picciotto, The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance, 18 GOVERNANCE 477 (2005) (developing this analysis in greater detail).
65. JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 299 (MIT Press 1989) (framing the word "constitution" with inverted commas)
66. see also JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTERNATIONAL ECONOMIC RELATIONS 339-340 (MIT Press 1997) (developing the concept more and sometimes removing the inverted commas).
67. Pascal Lamy, The Place and Role of the WTO and Its Law in the International Legal Order, 17 EUR. J. INT'L L. 969, 977 (2006).
68. Id. at 978.
69. Id. at 982.
70. STEPHEN GILL, POWER AND RESISTANCE IN THE NEW WORLD ORDER 132 (Palgrave Macmillan 2003).
71. DEBORAH Z. CASS, THE CONSTITUTIONALIZATION OF THE WORLD TRADE ORGANIZATION: LEGITIMACY, DEMOCRACY, AND COMMUNITY IN THE INTERNATIONAL TRADING SYSTEM 21-22 (Oxford Univ. Press 2005).
72. Eric Stein, Lawyers, Judges, and the Making of a Transnational Constitution, 75 AM. J. INT'L L. 1 (1981)
73. Joseph H. H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1991).
74. Laurence R. Helfer & Anne-Marie Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 YALE L.J. 273, 277 (1997).
75. Joseph H. H. Weiler, The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement, 35 J. WORLD TRADE 191, 202 (2001).
76. Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 AM. J. INT'L L. 535, 538 (2001).
77. VIENNA CONVENTION ON THE LAW OF TREATIES, art. 31, May 23, 1969, 1155 U.N.T.S. 331.
78. WTO staff members have published academic articles on the subject. See, e.g., Hoe Lim, Trade and Human Rights: What's at Issue?, 35 J. WORLD TRADE 275 (2001)
79. Gabrielle Marceau, WTO Dispute Settlement and Human Rights, 13 EUR. J. INT'L L. 753 (2002). Although, of course, they stress that the views expressed are strictly their own and do not bind either the WTO secretariat or its member states, it is nevertheless interesting to note that article by Hoe Lim, a member of the External Affairs division, appeared a year after the WTO's sharp response to the UN Office of the High Commissioner for Human Rights. The so-called "nightmare" report said the WTO rules were based on grossly unfair assumptions, reflected an agenda that served only to promote dominant corporatist interests, and that "for certain sectors of humanity, particularly the developing countries of the South, the WTO is a veritable nightmare."
80. See U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Sub-Comm. on Promotion & Prot. of Human Rights, Preliminary Report: The Realization of Economic, Social and Cultural Rights: Globalization and its Impact on the Full Enjoyment of Human Rights, U.N. Doc. E/CN.4/Sub.2/2000/13 (June 15, 2000) (prepared by J. Oloka-Onyango & Deepika Udagama).
81. Lim, supra note 56, at 284.
82. Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.702, (July 18, 2006).
83. Id. ¶17.
84. See Appellate Body Report, Guatemala-Antidumping Investigation Regarding Portland Cement from Mexico, ¶65, WT/DS60/AB/R (Nov. 5, 1998), indicating that this approach means that a state may be unable to exercise a right created under international law subsequent to the WTO agreements,
85. cited in Pauwelyn, supra note 54, at 551.
86. Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products, -pa 123, WT/DS26/AB/R, WT/DS48/AB/R (Feb. 13, 1998) (focusing mainly on the agreement on Sanitary and Phytosanitary Measures (SPS))
87. Panel Report, European Communities-Measures Affecting the Approval and Marketing of Biotech Products, ¶7.89, WT/DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29 2006) (following this view).
88. Lorand Bartels bases this on treating articles 3.2 and 19.2 of the Dispute Settlement Understanding (DSU) as a "conflicts" rule, since they specify that DS decisions cannot add to or diminish rights or obligations of WTO members, panels and the Appellate Body must apply the WTO rule in case of a confl ict. Lorand Bartels, Applicable Law in WTO Dispute Settlement Proceedings, 35 J. WORLD TRADE 499, 499-500 (2001)
89. contra Marceau, supra note 56 (disagreeing with this reasoning but coming to the same conclusion). Pauwelyn, supra note 54, at 564, says that these provisions actually aim at reining in the DS system from expansive or adventurous interpretations of WTO trade rules, but he provides only a very egregious example of a situation in which a panel might be obliged to find a WTO rule invalid, viz., if the WTO were to conclude a slave-trading agreement.
90. Marceau, supra note 56, at 767.
91. David Palmeter & Petros C. Mavroidis, The WTO Legal System: Sources of Law, 92 AM. J. INT'L L. 398, 413 (1998).
92. Trachtman, supra note 43, at 343.
93. Agreement on Technical Barriers to Trade (hereinafter TBT), Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, art. 2(4), available at http://www.wto.org/english/docs_e/legal_e/ legal_e.htm; and Agreement on the Application of Sanitary and Phytosanitary Measures, art. 3(1) (idem.).
94. Thus the Appellate Body has ruled on whether food-labeling regulations complied with a Codex standard; Appellate Body Report, European Communities-Trade Description of Sardines, WT/DS231/AB/R (Sept. 26, 2002)
95. and the WTO Panel has ruled on the validity of copyright exceptions under the "three-step test" of the Berne Copyright Convention, Panel Report, United States-Section 110(5) of the U.S. Copyright Act, WT/DS160/R (June 15, 2000).
96. Marceau, supra note 56, at 34.
97. Lim, supra note 54, at 280.
98. See, e.g., Ernst-Ulrich Petersmann, National Constitutions and International Economic Law, in NATIONAL CONSTITUTIONS AND INTERNATIONAL ECONOMIC LAW 3 (Meinhard Hilf & Ernst-Ulrich Petersmann eds., Kluwer 1993)
99. Ernst-Ulrich Petersmann, How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society?, 20 MICH. J. INT'L L. 1 (1998)
100. Ernst-Ulrich Petersmann, The WTO Constitution and Human Rights, 3 J. INT'L ECON. L. 19 (2000)
101. Ernst-Ulrich Petersmann, Constitutionalism and WTO Law: From a State-Centered Approach Towards a Human Rights Approach in International Economic Law, in THE POLITICAL ECONOMY OF INTERNATIONAL TRADE LAW 32 (Daniel L. M. Kennedy & James D. Southwick eds., Cambridge Univ. Press 2002)
102. Ernst-Ulrich Petersmann, Time for a United Nations 'Global Compact' for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 EUR. J. INT'L L. 621 (2002)
103. Ernst-Ulrich Petersmann, Human Rights and the Law of the World Trade Organization, 37 J. WORLD TRADE 241 (2003)
104. Ernst-Ulrich Petersmann, The 'Human Rights Approach' Advocated by the UN High Commissioner for Human Rights and by the International Labor Organization: Is It Relevant for WTO Law and Policy?, 7 J. INT'L ECON. L. 605 (2004)
105. Ernst-Ulrich Petersmann, Human Rights and International Trade Law: Defining & Connecting the Two Fields, in HUMAN RIGHTS AND INTERNATIONAL TRADE 29 (Thomas Cottier, Joost Pauwelyn & Elisabeth Bürgi Bonanomi eds., Oxford Univ. Press 2005).
106. For a discussion of ordoliberalism and its relation to classical liberalism, from a neoliberal perspective, see RAZEEN SALLY, CLASSICAL LIBERALISM AND INTERNATIONAL ECONOMIC ORDER (Routledge 1998).
107. Petersmann, How to Constitutionalize International Law, supra note 70, at 26.
108. Petersmann, National Constitutions and International Economic Law, supra note 70.
109. Petersmann, The WTO Constitution and Human Rights, supra note 68, at 22.
110. John O. McGinnis & Mark L. Movsesian, The World Trade Constitution 114 HARV. L. REV. 511, 515 (2000).
111. Petersmann, Human Rights and International Trade Law: Defining & Connecting the Two Fields (2005), supra note 70, at 87.
112. Generally, they would restrict collective action through the state by protecting unrestricted private property rights. For more detail, see generally DAVID SCHNEIDERMAN, CONSTITUTIONALIZING ECONOMIC GLOBALIZATION: INVESTMENT RULES AND DEMOCRACY'S PROMISE (Cambridge Univ. Press 2008).
113. Paolo Carrozza, Constitutionalism's Post-Modern Opening, in THE PARADOX OF CONSTITUTIONALISM: CONSTITUENT POWER AND CONSTITUTIONAL FORM 169, 186 (Martin Loughlin & Neil Walker eds., Oxford Univ. Press 2007).