Good governance at the supranational scale: globalizing administrative law.

AuthorEsty, Daniel C.

ARTICLE CONTENTS INTRODUCTION I. THE SUPRANATIONAL GOVERNANCE PROBLEM A. Defining Governance B. The Logic of Supranational Governance C. Distance Matters: Why Supranational Governance Is Problematic 1. Delegated Decisionmaking 2. Community Spirit 3. Federalism and Subsidiarity 4. Efficacy 5. Accountability 6. Lost National Sovereignty D. Legitimacy in Question E. Balancing the Costs and Benefits of Supranational Governance II. FOUNDATIONS FOR SUPRANATIONAL GOOD GOVERNANCE A. Democratic Legitimacy B. Results-Based Legitimacy C. Order-Based Legitimacy D. Systemic Legitimacy E. Deliberative Legitimacy F. Procedural Legitimacy III. BUILDING GLOBAL ADMINISTRATIVE LAW A. A Global Administrative Law Toolbox 1. Controls on Corruption, Self-Dealing, and Special Interest Influence a. Conflict of Interest Rules b. Inspections and Audits c. Lobbying Disclosure 2. Systematic and Sound Rulemaking a. Published Drafts with Notice and Comment b. Clearly Identified Decisionmaker and Process c. Documented Decisions 3. Transparency and Public Participation a. Hearings and Other Opportunities for Public Participation b. Public Docket, Structured Factfinding, and Option Evaluation c. Access to Information d. Metrics and Measurement 4. Power-Sharing a. Divided Authority b. Review Mechanisms c. Principles of Derogation and Declination B. Special Challenges for Global Administrative Law 1. Divided Responsibility 2. Informality 3. Role of Private Actors 4. Governments and Governance 5. Institutional Weakness 6. What Is the Public Interest? 7. A Western Bias? 8. Political Objections IV. CURRENT PRACTICE IN GLOBAL ADMINISTRATIVE LAW A. International Trade 1. The World Trade Organization 2. The Organization for Economic Cooperation and Development B. Global Public Health: The World Health Organization C. Supranational Environmental Governance 1. The United Nations Evironment Program 2. The North American Commission for Environmental Cooperation CONCLUSION INTRODUCTION

From the 9/11 tragedy to the global panic engendered by the 2003 outbreak of SARS to the bird flu in 2005, the interdependence of our globalized world has become painfully evident in recent years. National governments alone cannot address a range of critical issues, including terrorism, trade liberalization, economic integration, infectious diseases, and worldwide environmental issues such as climate change. Scholars have highlighted the need for international policymaking for years, (1) and the theoretical logic of organizing collective action on a scale proportional to these threats is well understood. (2)

Yet the nation-state remains the dominant structure in international relations, and skepticism about "global governance" runs deep, particularly in the United States. (3) Distrust of international institutions is a hallmark of neoconservative and sovereigntist thinldng, (4) and a parallel degree of skepticism about global-scale policymaking can also be found on the political Left. (5) Many consumer advocates, environmentalists, and antiglobalization activists decry the "faceless bureaucrats" at the World Trade Organization (WTO) in Geneva, whom they see as undermining American democracy, sovereignty, and regulatory autonomy. (6)

How does one square the demonstrable need for structured international cooperation in a world of interdependence with the political strain that arises whenever policymaking authority is lodged in global institutions? In this Article, I look at this puzzle through the lens of administrative law. I trace the doubts of American political leaders and the broader public about the value of international policymaking back to the suspicions that accompanied the founding of the American administrative state in the 1930s: the perceived lack of democratic legitimacy, concerns about lost national sovereignty, unhappiness about the delegation of important policy choices to distant and unaccountable officials, and dissatisfaction with decisionmaking processes. (7) I argue that just as domestic policymakers and administrative law scholars have devised rules and procedures to bolster the legitimacy of administrative agencies, global policymakers might look to the first principles of administrative law to remedy the democratic deficit and legitimacy concerns at the transnational level.

While I stress the growing reality of global-scale interdependence (8) and the resulting need for functioning mechanisms of international cooperation, my central goal in this Article is not to make the normative case for more supranational governance. (9) More modestly, I argue that, whether the decisionmaking role assigned to international bodies is narrow or broad--supporting mere intergovernmental exchange or full-scale supranational decisionmaking (10)--these institutions must adopt basic administrative law procedures to achieve better results and bolster public confidence in the choices they make and the policies they advance. This argument has both an empirical element, drawn from a close review of the performance of existing international institutions, and a normative logic, derived from political theory and the functioning of administrative law on the national level.

My argument for globalizing administrative law unfolds in several stages. Part I examines the logic of global governance and the controversies that surround international policymaking. As a purely descriptive matter, I note that supranational governance is expanding. (11) Governments are increasingly working together to address the thinning of the ozone layer and other environmental issues, confront public health threats, reduce trade barriers, and promote economic growth. What is contested is how much reliance should be placed on international officials and entities, particularly when exercising political judgment as autonomous decisionmakers. In addressing this issue, this Part both spells out the potential benefits of global governance and catalogues the risks and costs of delegating decisionmaking to international officials. I conclude that the procedural rigor of administrative law is a critical tool for refining international governance and legitimizing the exercise of supranational authority.

In Part II, I develop a taxonomy of legitimacy, drawing on several established bases for the acceptance of governing authority, including (1) elections and majority will, building on Rousseau's democratic theory; (2) expertise and the ability to generate "right answers," drawing on the logic of Weber's writings on bureaucratic decisionmaking; (3) order and the stability and predictability of the rule of law, building on Hobbes's political theory and extending Lon Fuller's more recent writing; (4) systemic legitimacy of the sort Madison advocated, in which a particular decisionmaker's authority derives from being part of an overarching governance structure with checks and balances; (5) dialogue and deliberation which, as Habermas has made clear, fundamentally shape how readily people accept the decisions and policies that emerge; and (6) the institutional design of the policymaking process itself. To conform to this last "good governance" principle, a global decisionmaking body must adhere to a set of rules and procedures of the sort that are embodied in administrative law.

In the realm of supranational governance, where the democratic underpinnings for rulemaking are particularly weak, the legitimacy-enhancing potential of procedural safeguards takes on special significance. Although administrative law cannot completely compensate for the absence of an electoral connection between the governed and their officials, a refined system of procedures can promote decisionmaking based on the rule of law, participation, rationality, clarity, stability, neutrality, fairness, efficacy, deliberation, efficiency, and accountability. If properly developed and implemented, administrative procedures promote careful rulemaking, efficient delivery of public goods, and fair treatment of both individuals and economic entities.

In Part III, I discuss the concept of good governance as it applies in the international realm, advancing a list of goals that might be desirable and showing how these elements connect to the theories of legitimacy identified in Part II. I also propose a set of global administrative law tools that can be clustered around four core elements of good governance: (1) controls on corruption, self-dealing, and special interest influence; (2) systematic and sound decisionmaking; (3) transparency and public participation; and (4) checks and balances.

In Part IV, I use the template of good governance developed in Part III to assess the existing decisionmaking procedures in the international trade, public health, and environmental policy regimes. In each of these realms, some of the administrative law procedures and mechanisms that are essential to good governance have been adopted, and, as my theoretical framework would suggest, I find that the regime of administrative law has advanced most where the governance is supranational, formal, and addresses normative issues. This raises an interesting question of causation: Do international organizations get authority and gain legitimacy because they have adopted good governance practices? Or do they adopt administrative law as a way to seek legitimacy or protect their authority? Either way, each of the international organizations reviewed falls short of a fully appropriate structure of procedural safeguards and administrative law.

Finally, I offer some tentative conclusions about the challenge of globalizing administrative law. I explain that a Global Administrative Procedure Act with requirements that apply across all international organizations makes little sense. Appropriate governance rules and procedures, however, drawing on the menu of concepts and tools developed in Part III and tailored to the needs of particular global policymaking bodies, promise to...

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