Globalization Rules: Accountability, Power, and the Prospects for Global Administrative Law
Chesterman, Simon, Global Governance
In the space of a generation, the term globalization has passed from neologism to cliche. As a commercial phenomenon and a political reality, the elision of traditional borders between countries has opened economies and transformed the context within which political decisions are made. Analysis and critique tend to focus on these two aspects of globalization: the economic winners and losers, and the removal of traditional governments accountable to a fixed population from much of politics. This is understandable since international agencies, expert committees, and hybrid interest-driven networks increasingly make decisions that affect large numbers of people. As formerly public responsibilities have been assumed by these new entities, however, there is evidence of an emerging normative context within which such activity takes place, characterized by a demand for accountability in decisionmaking. Responses to this demand have been piecemeal, sometimes inconsistent, and frequently inadequate. But seen as a whole, those responses have begun to coalesce into an entirely new area of law that may provide a set of rules for accountability in globalization: a global administrative law. (1)
The emerging set of rules referred to here as "global administrative law" encompasses procedures and normative standards for regulatory decisionmaking that falls outside domestic legal structures and yet is not properly covered by existing international law, which traditionally governs state-to-state relations rather than the exercise of regulatory authority with direct or indirect effects on individuals. The standards that are being imported into this new sphere of regulatory activity draw upon existing administrative law principles common in many jurisdictions, such as transparency, participation, and review. (2) As a response to the demand for accountability in globalization, then, this is distinct from demands that globalization be made more democratic; instead, these developments aim to make it more reasoned. Though much of the discussion here is descriptive of existing phenomena, it will be argued that the consolidation of these moves would improve both the quality of decisionmaking and the ability of those affected by decisions to protect their legitimate rights and interests.
The fragmented nature of activity in this area to date is easily seen. The forums in which regulatory decisions are being made range from formal treaty-based organizations such as the United Nations and the World Trade Organization (WTO) to networks of government officials such as the Basel Committee of national bank regulators. In addition to government representatives, the actors include experts such as the technical committees of the International Organization for Standardization (ISO) and the nonprofit Internet Corporation for Assigned Names and Numbers (ICANN). And, increasingly, less formal networks of interested parties play a role in developing standards in areas as diverse as "fair trade" coffee and "dolphin-friendly" tuna. Participation in these disparate decisionmaking processes varies widely, but there is rarely a general right for affected parties to challenge a decision; frequently it is not possible even to seek reasons as to why a particular decision was made.
The disparate regimes may overlap--sometimes quite intentionally--as the market comes to be regulated by a market of regulation. In some areas, competing standards may be adopted on a "voluntary" basis, though the global marketplace quickly leads to standards becoming mandatory as a commercial reality if not a legal requirement. Mechanisms that have sought to regulate these activities tend to come from traditional governance institutions operating at the limits of or beyond their traditional boundaries. At the national level, courts and legislatures have increasingly asserted a capacity to review domestic implementation of global standards and national officials' participation in global administrative decisions. …