Philipp Dann

Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities

The research project which this article introduces, proposes a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. We were intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Thus, a private real estate sale in Berlin is blocked by a decision of the UN SecurityCouncil Al-Qaida and Taliban Sanctions Committee; the construction of a bridge in Dresden is legally challenged because the affected part of the Elbe river valley had been included on UNESCO’s list of World Heritage; or educational policies most relevant to our children are profoundly reformed due to the OECD Pisa rankings. These examples illustrate that governance activities of international institutions may have a strong legal or factual impact on domestic issues. This calls upon scholars of public law to lay open the legal setting of such governance activities, to find out how, and by whom, they are controlled, and to develop legal standards for ensuring that they satisfy contemporary expectations for legitimacy. This article sketches out the objective, argument and approach of our project and proceeds in three steps: a first step specifies the object of analysis (B.); a second step discusses how the phenomena thus identified should be approached in a legal perspective (C.); in a third and final step, we explain the concrete methodology of our project (D.).

The Exercise of Public Authority by International Institutions

Concept.- Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities.- From Public International Law to International Public Law: A Comment on the #x201C Public Authority#x201D of International Institutions and the #x201C Publicness#x201D of their Law.- To Tame and to Frame.- International Bureaucracies from a Political Science Perspective #x2013 Agency, Authority and International Institutional Law.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Decisions.- The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?.- WIPO#x2019 s International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties.- International Institutions and Individualized Decision-Making: An Example of UNHCR#x2019 s Refugee Status Determination.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Recommendations.- Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivduals - Information.- The Administration of Information in International Administrative Law #x2013 The Example of Interpol.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Decisions.- Flexibility and Legitimacy #x2014 The Emissions Trading System under the Kyoto Protocol.- The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy-Gaining International Institution.- The UNESCO Regime for the Protection of World Heritage.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Recommendations.- Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities.- Thematic Studies: The Exercise of Public Authority through Instruments Concerning Indivdual States - Information.- Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work.- The WTO Committee on Trade in Financial Services: The Exercise of Public Authority within an Informational Forum.- The Exercise of Public Authority through General Instruments: Secondary Law.- The Administration of the Vocabulary of International Trade: The Adaptation of WTO Schedules to Changes in the Harmonized System.- Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) #x2013 Conservation Efforts Undermine the Legality Principle.- The Exercise of Public Authority through General Instruments: International Public Standards.- Legal Challenges of Non-binding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries.- Why Would International Administrative Activity Be Any Less Legitimate? #x2014 A Study of the Codex Alimentarius Commission.- The Exercise of Public Authority through General Instruments: Public Authority through Private Law Instruments.- ICANN #x2013 Governance by Technical Necessity.- International Administration of Holocaust Compensation: The International Commission on Holocaust Era Insurance Claims (ICHEIC).- Cross-Cutting Analyses.- Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority.- Goldmann Variations.- General Principles of International Public Authority: Sketching a Research Field.- Is There a Global Administrative Law?.- Procedures of Decision-Making and the Role of Law in International Organizations.- The Contributions by Jochen von Bernstorff and by Maja Smrkolj.- The Enforcement Authority of International Institutions.- The Enforcement Authority of International Institutions #x2013 Some Remarks and Suggestions for Further Analysis.- Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review.- International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority.- International Composite Administration.- Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed Authority, the International Maritime Organization (IMO) and International Fisheries Organizations.- Context.- The Internationalization of Administrative Relations as a Challenge for Administrative Law Scholarship.- Procedural Due Process of Law Beyond the State.

The Internationalized Pouvoir Constituant - Constitution-Making Under External InfluenceIn Iraq, Sudan and East Timor

I. Framing External Influence: Concepts and Categories 1. The Traditional Concept of Constitution-Making 2. Categories of External Influence II. Describing External Influence: Three Case Studies 1. Constitution-Making Under International Administration – East Timor a. Factual Context b. Legal Framework for the Constitution-Making c. Actual Process of Constitution-Making 2. Constitution-Making Under Foreign Occupation – Iraq a. Factual Context b. Legal Context c. Actual Process of Constitution-Making aa. Which Actors? bb. Which Ideas? 3. Constitution-Making through International Moderation – Sudan a. Context b. The Peace Negotiations c. Executing the Peace Agreement: The Process of ConstitutionMaking III. Assessing External Influence: Legality and Legitimacy 1. The Legality of External Influence a. Applicable Law and Legal Regime b. Whether Existing Rules are Respected in Practice

Accountability in Development Aid Law: The World Bank, UNDP and Emerging Structures of Transnational Oversight

The article analyzes accountability mechanisms in development aid law, defining development aid law as the legal regime regulating the transfer of official development assistance. It focuses on the rules of two multilateral donor institutions, the World Bank and the United Nations Development Program. It also examines the accountability mechanisms pertaining to the recipients of aid, since the transfer of aid involves not only a donor but also a recipient.The article first conceptualizes the notion of ‘accountability’ for legal analysis and flashes out the non-legal context of the transfer of development aid. On that basis it goes on to argue that there is a surprising plenitude of accountability mechanisms that go well beyond the conventional mechanisms of supervisory control of International Organizations by member states. Instead, such mechanisms involve several actors, standards and types of sanctions. However, the article also asks whether these mechanisms add up to a coherent system, give voice and access to the relevant constituencies and thus achieve a satisfactory standard of accountability. Finally, the article connects its findings to the wider discussion on the emergence of an international or global administrative law.

International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority

The administration of the traditional nation-state used to operate as a rather closed system to the outside world. Today, cooperation between the public authorities of different States and between States and international bodies is a common phenomenon. Yet the characteristics and mechanics of such cooperation can hardly be understood using the concepts domestic public law or public international law currently on offer. Conventional concepts, such as federalism, confederalism or Statecentered “realism” hardly fathom the complexity of interactions or reflect the changed role of the State, while more recent concepts, such as multi-level systems or networks, seem to encompass only parts of the phenomena at hand. Given this void, we propose to explore the notion of “composite administration” (Verbundverwaltung) and argue that it offers a concept which can combine more coherently the seemingly diverging legal elements of cooperation and hierarchy that distinguish administrative action in what often is called a multi-level administrative system. Even though the concept of composite administration was originally designed and further developed with respect to the largely federal European administrative space, we suggest testing the concept in the wider context of international cooperation. We believe that it offers valuable insights and raises critical questions, even though we do not intend to insinuate any proto-federal prospects of the institutions discussed in this paper.