International organizations as law-makers

Tags: Central Actors Multiple, Constructivism, Koskenniemi, Realism, Orly Lobel, Informal Central Actors State, Mitrany, Organization Horizontal, Morgenthau, International Law, International Organizations, Law Changes, Global Administration, Intellectual History Functionalism, participation, International Law Change
Content: international organizations as Law-Makers Josй E. Alvarez
Description Theory Prescription
Thesis: Change in Sources of international law Change in Content of International Law Change in Legally Relevant Actors Producing: Changing Conceptions of Compliance / Enforcement New Forms of Challenges to Legitimacy of Both IOs and International Law Vertical Horizontal Ideological
Examples of New IO-Sources of Law Changes in Treaty Making UN Treaty Making Conferences Treaty Making by Experts Managerial Treaty Making Treaty Making with Strings Attached
Other Kinds of IO Law Security Council resolutions The Codex Alimentarius ICAO Standards & Recommended Practices IO Codes of `best practices' ILO Recommendations IAEA Standards The FAO's Food Additives Regime UNEP's Prior Consent Regime for Pesticides WTO Soft Law WHO's Code on Marketing Breastmilk Substitutes World Bank Guidelines IMF Conditionality One result: Emerging Global administrative law
intellectual history Functionalism (example: Mitrany) Realism (example: Morgenthau) Disaggregationalists (example: Slaughter / Moravcsik) Crits (examples: Kennedy / Koskenniemi / Anand / Mutua) Constructivism (examples: Wendt / Chayes) Crucial idea: states IOs
Based on Orly Lobel, The ReNew Deal, 89 Minn. L. Rev. 342 (2005)
Traditional Regulation Nature of Law Centralized Command & control Rigid & fixed Uniform rules Generalized
IO Governance Nature of Law Decentralized Coordination / orchestration Flexible & adaptable Diversity Contextualized variances
Organization Top-down hierarchy Formal
Organization Horizontal network Informal
Central Actors State / public
Central Actors Multiple levels of government Multiple public and private participation Decentralization and principle of subsidiarity
Based on Orly Lobel, The Renew Deal, 89 Minn. L. Rev. 342 (2005)
Traditional Regulation
IO Governance
Law-making Process Static One-shot Rigid & fixed
Law-making Process Dynamic Iterative / repeat learning Experimental Promotes innovation
Adjudicative Approach Reactive After-the-fact judgment
Adjudicative Approach Ongoing benchmarking
Global Administrative Law (From Benedict Kingsbury, Nico Kirsch, and Richard B. Stewart, The Emergence of Global Administrative Law, 68 L. & Contemp. Probl. 15 (2005)) Definition: Global administrative action is rulemaking, adjudications, and other decisions that are neither treaty-making nor simple dispute settlements between parties.
Global Administrative Law Categories: Administration by formal IOs Administration based on collective action by transnational networks of national regulatory officials Distributed administration conducted by national regulators under treaty, network, or other cooperative regimes Administration by hybrid intergovernmental-private arrangements Administration by private institutions with regulatory functions
Subjects of Global Administration States Individuals Corporations NGOs and Other Collectivities
Emerging Principles Procedural participation and transparency Reasoned decisions Review Substantive standards: Proportionality Means-ends rationality Avoidance of unnecessarily restrictive means Legitimate expectations Restricting immunities of IOs and their officials
A Taxonomy of Ways to Apply the Principles Domestic institutions as checks on global administration Internal global mechanisms for participation and accountability Global disciplines on distributed administration © Josй E. Alvarez 2008

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