Posts tagged ‘Eyal Benvenisti’




Dear Noieuropeisti,

today we publish excerpts from the article: “ABOUT” THE LAW OF GLOBAL GOVERNANCE “Eyal Benvenisti. POSSIBLE OBSTACLES TO RULES OF UNIT OF ‘GOVERNANCE’ GLOBAL, in Quarterly Journal of Public Law, fasc.4, 2014, p. 916, Barbara Marchetti, so that you begin to understand the effects of the displacement of the constitutional functions typical of a nation-state, “institutions” or better “entities” multinationals, of higher power, and merged in the related system called ” multi – governance “.

The question is always the same, that  we repeated in other comments in this blog, if  legitimacy is what enables an institution to establish its power, acquire that’ authority from below, who is the king now?

At the time of the King it was expressed by force (Hobbes, the Leviathan), during the parliaments with elections, but quid iuris inside the Era of the global juridical space, with the agencies of the system of multi governances?

In the current system there are more than 40,000 organizations worldwide public-private global regulators of interests that must run their job in the absence of uniform standards and common principles.

The essay discusses the debate between those who, on the one hand, enhances the functions of these supranational agencies, for their role in the “regular” and “judge” equally complex and distinct aspects of the business world, and who on the other hand, doubt the effectiveness of their institutions, their authority, for the fact of not having a public status, to have rules s’, shared by governments, but proposed by the “regulators”, or by even “Rulers” which are often confused with advisors of the players (firms, governments) stakeholders (stake – holders).

One of the problems, mostly unspoken, it is that mechanism of production of decisions and rules, defined system of “Multi Governance”, it is the enormous power assumed by the lobbying and pressure on the various decision-making panels, the mix of their “members “, from scientific careers and inspired by the research institutes and academia.

The article says Marchetti’s thesis on Benvenisti work about obstacles to globalization for the powers of “governances” tout court, tells about what actually these obstacles, namely the lack of global powers to review decisions, the lack of legitimacy and autority , and then as we commented, the lack ( impossibility) of a world public opinion, of  widespread powers of checks and balances, coming from  the renunciation of the rights of national states and the shift of their functional skills, once crucial for the constitution of a state, to over structured bodies of  global legal space, more like a vast sea that made for an order.

These barriers are the reason why citizens of this virtual global legal space, has become a sort of “ignorant”, legibus solutus with “law tables”   flying   over their head.

A subject reduced to the simple role of “Whistleblower”of scandals, beggars unuseful protests in their home or at the newsstand and so helpless spectator paying taxes.

In the new global legal space,  citizen is no longer able to have an influence in front of the different scale of the effects of the decisions  rolling down from  the over structured agencies that affect their daily life (eg authorization drugs – medical cares – governance procedures of insurance- governance & regulations of the financial markets – GMO’s authorizations) and the majestic palisade of the increasingly sophisticated technicalities in which the only people are able to move easily are the Globals, multinational corporations with their hundreds of lawyers.

The global legal space intersects with the power of the sovereign states within the framework of international law and is the subject of the work of Benvenisti, a “giuspubblicista” world famous, which states that the paper ECHR, in particular art. 6 and Article. 13 of the American Conventions on the -human rights, impersonifichino guarantee a Grundnorm of this world system said legal space Multi Governance.

The Marchetti reviews the major themes of the debate around the system of “multi governances” and international law states.

And ‘possible to overcome the space and mix international legal system constraints world halfway between the international law of a bilateral nature, bilateral agreements between states (even informal) and the coercive power that concealed influence the same, in a only right inspiration, uniform and able to legitimize, to report “accountability” to the fragile institutions of the cd agencies of the law?

The Marchetti tries to answer by reviewing accurately the crucial issues of this debate: “regulators”, the principle of “internal review”, the “global judges”, the “global standards”, the ‘authority, the “legitimacy “and ‘” accountability “, international law, the independent authorities, global agencies, companies that have an interest enormous (the so-called globals) and citizens. Please note that S. Cassese (former member of the Italian Constitutional Court) whose work has definitely influenced the ‘author in the article, is cited as the author of works in line with the Benvinisti’s thesis.

In fact the arguments in support of global governance (multi governances ed), also commented on this blog, are expressed from the theoretical of the “administrative organization”, with full abstention from a final judgment by limiting the description of the structural aspects.

Enjoy the reading.

Emiliano Varanini, Lawyer in Rome.


Global governance “, by B. Marchetti.

Moving beyond the state of many public functions – the protection of health, environment, food safety, labor, trade, financial regulation – creates a multitude of problems: they are linked, on the one hand, the lack an anchor to bring these constitutional powers; and second, an absence of mechanisms of participation, accountability and ‘review’ comparable to those built in the state democracies. The result weakened the guarantees of the ‘rule of law’ and techniques of control of global decisions. In addition, next to the traditional international organizations can be found organisms multiform, a mixed or private, for which the logic negozial-diplomatic and traditional mechanisms of production and changes to the rules do not apply. Global action translates more and more often in standard, conventional instruments and “soft law” that penetrate in the legal state through new routes, bypassing national parliaments and their circuits Democrats. I therefore changed the creators of regulation, they have changed the means by which it is realized the comprehensive care of the interests, and have different consequences and addressee of the global action.

Compared to these changes, a critical reflection is felt long as necessary: ​​a number of studies (which are identified under the common label of “Global Administrative Law” – Gal) have highlighted the need to build safeguards and rules to contain the new powers , they tried in national experiences possible antidotes to major diseases and have proposed the transplantation into the global landscape. Benvenisti moves from the moorings of this reflection to proceed. He abandons the specialized approach and sectoral, typical of many studies on the global legal space, to propose the construction of a unitary law applicable to any international regulatory body. The goal is ambitious, it requires extensive knowledge of international reality and the logic that govern it and assumes the partial overcoming the fragmentation of the international order. To achieve this result, Benvenisti performed first to examine the variety of subjects regulators, then look for a possible basis for their common framework, establishes the core of this, in his joints procedural and substantive, and finally fixed the terms of the relationship between global regulators and state sovereignty, identifying reasons, meaning and scope of the mutual influences. What Benvenisti proposes is, therefore, a systematic construction of the unitary and global regulation, in which the action of the regulators is subjected to a core of essential rules, albeit that (still) incomplete, is able to mitigate and contain many inequalities and deficiencies in the “governance” international. Below we propose some critical reflections: they will touch in particular the usefulness of the public / private distinction in the global space, identifying the source of the “procedural obligations” of global institutions, the implications related to the transposition of certain guarantees participatory level International and theme of ‘review’ operated by cd Judges global. A myriad of informal arrangements has created in recent decades regulating agencies are very distant from the traditional model of public international organization. States prefer the way of non-binding agreements and international cooperation informal alongside the “International Governmental Organizations’ (IGO), based on the logic of consensus, they now prefer to network structures, also in semi-public, public organizations / individuals and institutions private. This escape from the public – or rather the classic structure of the international organization, founded on treaties binding on the rule of “consensus” – translates, according to Benvenisti, in an easing of the mechanisms of “accountability” and an accentuation of inequalities between strong states and weak states, the latter unable to balance their economic strength and less commercial. This trend de-formalizzatrice led to the emergence of three types of subjects that flank the traditional international organizations: they are the informal intergovernmental networks, institutions Public / Private and private institutions. Penetrating in numerous examples from the book, however, does not seem entirely clear and unambiguous implications of this classification, to the point that we can wonder about the usefulness and extremely problematic, in the global context, the public / private distinction …. omissis …. The International Conference on the Harmonization, including between the institutions public / private, is composed of Medicines Agencies in certain countries (United States, Japan, European Union) and representatives of the pharmaceutical industry: it the task of establishing the technical requirements for the registration of medicines for human use, influencing the marketing and circulation in the entire world market. His features informal and the presence of multinational pharmaceutical companies make it criticized the action in terms of accountability, transparency of decision-making, inclusion / exclusion of stakeholders, and regulatory capture. ….. Public participation, therefore, does not seem in itself indicative of the presence of collateral own sphere journalism, nor gives it distinctive compared to those used in formally private institutions. Again, the International Financial Corporation (IFC), which is also appointed to draw up standards, has very slow – despite its nature originally public – to accord procedural safeguards and the ‘review’ to those affected by projects financed and did so largely in response to strong pressure from NGOs. The formal nature of the institution and the presence of non-governmental actors seems crucial, therefore, to establish the applicable rules: the construction of the rules on the decision and the process still requires an investigation of the concrete mechanisms of decision, a survey of the interests at stake and a review of the risks of conflict of interest and regulatory capture specifically related to a particular structure of government, regardless of the public or private nature of the body concerned. If the core of the guarantees and principles of Gal can (and therefore must) increase the accountability of global regulators and mitigate inequalities and inefficiencies in the system, you must first find a common basis for the obligation to lend IGO respect. Beyond the reasons that we can move the decision of the individual institutions to submit to such self-discipline – for example in order to make it less indigestible its actions, and thus enhance its effectiveness – Benvenisti identifies the international law of human rights the common source of such an obligation. The reason for this anchor rests on the following topic: Global bodies are subject to the customary international law and general principles of law; the international law of human rights is – in its core – part of customary international law and general principles of law; the LAG, with its guarantees of advertising, participation, justiciability and rationality of decisions, is part of the international law of human rights, and therefore constrains the international regulators. In support of its construction, Benvenisti recalls the American Convention of Human Rights, which in art. 13 protection – even against state powers – the right of access to public information and the Universal Declaration of Human Rights, which in art. 21 states that everyone has the right to take part in the government of his country, directly or through freely chosen representatives. The right to effective protection (Art. 6 ECHR), provided as collateral for violations of civil rights, fonderebbe then the principle of justiciability of decisions …. snip, snip …….. ….. In fact, all the ingredients needed to ensure a good decision are hard to come by in the global context. On the one hand, there remains the difficulty of applying these rules to de-formalized procedures, which do not result in an individual decision, which does not have a trend procedimentalizzato, but that is the result, rather, of informal relations negotiating and diplomatic agreements. On the other hand, often they lack the transparency and public decision-making processes, and appears difficult to control – for extreme technical complexity of the regulation – the content of the overall action. Even if they have the legitimacy necessary to do so, in which way citizens can review the information and make relevant information in the “International Conference on Harmonization”? Or affect the outcome of the approval procedure of financial standards in highly specialized? It is evident that participation can be an empty shell if it is able to affect the final outcome and it is equally obvious that in the global context it needs mostly peculiar organizational channels (S. Cassese, Who Rules the World ?, Bologna Il Mulino, 2013, 100). It was, for example, brought to light the poor are the chances of success of the participation of developing countries in the work of the Codex Alimentarius Commission, not only because of the economic difficulties linked (trivially) the expenses of their representatives (obviated through the creation of a fund), but precisely because of their reduced “expertise.” In addition, not always the line separating the participation of the governed and their attempt to capture the regulators appears clear. Omission ….. …… In the second case, the interference produced outside of a relationship of delegation and the logic of consensus and “compliance” is induced by the need to enter the market and to avoid the high costs of exclusion. Here, the absence of an institutional channel of participation in decision making, is realized a total separation between regulator and regulated, and the subjection of the IGO rules on LAGs decision maker and decision-making is the only way to balance, at least in part, the democratic deficit and accountability of global action. There is also, however, a common problem in both cases, namely the engagement of the decision adopted by the international organizations called to welcome it into: often the solutions taken by the regulatory bodies are the result of a certain legal culture, that of the US, due to the fact that many global decision makers were trained in American universities. It would be appropriate to think of institutions as they are, however, represented the different legal traditions in the world. The Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID), for example, states that in deciding the Panelists President ‘shall pay two regard to The Importance of assuring representation on the Panels of the principal legal systems of the world and of the main forms of economic activity. ” A different instrument, still, is the degree of appreciation guaranteed by the case law of the Strasbourg Court in the system of the ECHR. In short, the global acceptability of interference in state sovereignty and the effectiveness of the rules produced beyond the state should depend not only on compliance with the rules on the decision and the decision mentioned by Benvenisti, but also the ability to take into account the different legal traditions worldwide . Finally, a note on the judges overall. They are the guardians of ” internal review ‘, but also the protagonists of the “peer review”: lay down the rules of recognition and walkways between systems (S. Cassese, The Courts of Babel, Rome, Donzelli, 2009), but resolve the conflicts within a specific regime, balancing the interests and controlling the legality of decisions. If the function is assigned to them to ensure respect for the “rule of law” overall, however, we must question their impartiality and their legitimacy: if we believe that these can be considered only organs that can boast a degree of independence from the decision makers, who base their decisions on legal arguments, which open their procedures to the participation of third parties, who decide in public hearings and adopt binding decisions (A. Von Bogdandy and I. Venzke, On the Democratic Legitimation of International Judicial Lawmaking, 12German LJ (2011) 1341), most of the “panel” and the “Compliance committe” which is responsible for overall review can not be considered as such. All are expressions of a function giustiziale global, but we must make appropriate distinctions: the judgment of the International Court of Justice and the conclusions of the Compliance Advisor / Ombudsman (Cao) are the result of a process giurisdizionalizzazione more or less advanced and organs that enjoy a different degree of independence, to the point that the same “pass” against their decisions by a national law or supranational should not be indifferent. In his first lesson in global law, Maria Rosaria Ferrarese invites scholars to enter into the forest to capture the traits total global legal order, but also calls for study and classify the individual plants. Benvenisti has accepted the invitation and took us to reflect on a possible uniform regulation of the legal space worldwide. This exploration is very useful and interesting, for the thread that runs through it, but it does not negate the need for a thorough study of the individual sectoral regimes. Understanding what is what is weed and plant – in the light of the principles of democracy and legality – remains critical to identify species, learn to treat them and be able to live harmoniously in the forest.