Decentralized Administrative Law in the Organization for Economic Cooperation and Development
Salzman, James, Law and Contemporary Problems
When one thinks of international organizations whose administrative processes legal scholars should understand, the European Union and the World Trade Organization come to mind without a moment's hesitation. A bit later, perhaps, one might also come up with the Montreal Protocol secretariat, Codex Alimentarius, or the International Organization for Standardization. It will probably take a good while before the Organization for Economic Cooperation and Development (OECD) comes to mind. In some respects this is hardly surprising, for the OECD is neither a well-known nor well-studied international organization (and is certainly not known as a lawmaking institution). Located in Paris and best known for its research reports, the OECD has a "secret life" that goes well beyond that of policy analysis. Indeed, a number of its activities influence domestic agency action far more than is generally realized.
The OECD provides a wonderful example for the study of global administrative law for the simple reason that it is a hybrid organization. Through its many diverse activities, the OECD shares characteristics with primarily lawmaking international bodies, such as the European Union, primarily standard-setting bodies, such as the World Health Organization, and primarily data gathering and research organizations, such as the U.N. Conference on Trade and Development. Perhaps surprisingly, there is no uniform administrative law in the OECD. In managing this constellation of activities, the OECD has chosen largely to decentralize its administrative law down to subject-specific directorates who develop administrative procedures on an ad hoc basis. Thus, in studying administrative law at the OECD, one is effectively studying multiple administrative law systems under one roof.
This article commences with a description of the OECD. Since the organization does not garner much attention from scholars or the public, Section II describes the organization's origins and operations, and offers examples of its activities. Section III then provides four case studies that examine the OECD's multiple roles and how these bear on the development of the organization's administrative law. The cases range from traditional treaty-making, to consensus development of standards, to quasi-judicial review of the actions of multinational enterprises. Each of these examples relies on different types of administrative mechanisms to address the core concerns of transparency, responsiveness, and accountability. The concluding section builds off of these case studies, exploring whether administrative law safeguards should apply to OECD activities that, while not lawmaking themselves, exert important influence on domestic lawmaking and underscores why the OECD has adopted a decentralized model of administrative law.
THE ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT
A. History of the OECD
The predecessor to the OECD, the Organization for European Economic Cooperation (OEEC), was created in April 1948, amidst the rubble of World War II's devastation. The OEEC's explicit charge was to administer the Marshall Plan for the reconstruction of Europe. Housed in the Chateau de la Muette in Paris with representatives from its founding eighteen member countries, the OEEC's name expressed well the organization's goals--the promotion of cooperation and commerce among Europe's reconstructed economies, the development of a European customs union, and, ultimately, a free trade area. The OEEC's initial work focused on the effective allocation of the Marshall Plan's grants and credits. With the unexpected end of Marshall Plan aid in 1952, the OEEC remained active by directing its energies to European economic development and thus helping lay the groundwork for the creation of the European Economic Community.
With the establishment of the European Economic Community in 1957, the original impetus for creation of the OEEC no longer existed. …