1. The International Law of Global Governance Session 3: The Law on the Decision-Making Process within Global Governance Bodies Eyal Benvenisti The Hague 10 July, 2013

2. The main questions: exploring the legal constraints on decision-making 1. The decision-maker 2. The decision-making process 3. The decision

3. 1. The decision-maker 1.1 Internal authority: internal ultra vires of organs 1.2 Independence of decision-maker 1.3 Impartiality

4. 1.1 Internal authority The founding treaty as an internal constitution: internal ultra vires of organs? Constitution of the Maritime Safety Committee (1960) vs. Certain Expenses (1962) Q: simple treaty interpretation? or constitutional attention to minority interests? Ostensible authority toward 3 rd parties?

5. 1.2 Independence Definition: agent’s discretion is not unduly influenced by the principal’s interest Examples: – The ICJ and the UNSC – the Bustani case What makes a decision-maker independent? Formal and informal guarantees: No reappointment Nomination procedures Ensuring compliance with decisions

6. 1.3 Impartiality No personal interest in the outcome Example: WHO and representatives of pharma No institutional conflict of interests Example: Private Security Companies and IHL compliance How to secure impartiality? Rules on avoiding personal conflicts of interest Example: Oversight protocol for the International Code of Conduct for Private Security Service Providers March (2012( Protection of internal “whistleblowers” Checks and balances as an institutional safeguard

7. 2. The regulation of the decision-making process Goals: Transparency & participation (effective two-way communications) Means: 2.1 Structured decision-making, public process 2.2 Right to be heard (the “all affected principle”) 2.3 Access to information 2.4 Public participation

8. 2.1 Structured, public process Examples: “Notice and Comment” procedure: OECD Basel Committee on Banking Supervision ICANN Equator Principles

9. 2.2 The right to be heard Who has a right to be heard: The state? The individual? Others? UNSC “Smart sanctions” listing & de-listing WBIP in Mumbai transportation project WTO DSB amicus briefs by NGOs FATF, WADA ILO’s “tripartite” system Accreditation of NGOs: Codex Alimentarius The “all affected principle: ” the Aarhus Convention

10. 2.3 Access to information Specific Informational Tools: Environmental impact assessment The precautionary principle Structured measurements (indicators)

11. 2.4 Public participation Basel Committee on Banking Supervision informal consultation with financial industry International Accounting Standards Committee Foundation Environmental IOs: Montreal, Aarhus, more

12. 3. The regulation of the decision 3.1 Reason giving 3.2 Exercising proper discretion 3.3 Balancing and proportionality 3.4 Standard of Review/Margin of Appreciation

13. 3.1 Reason giving Example: Targeted Sanctions regime

14. 3.2 Exercising proper discretion Pursuing legitimate goals: – weighing only relevant considerations – weighing all relevant considerations WBAT in de Merode’s case WTO and Article XX GATT Examples: – WBIP Mumbai Transportation Project – UNESCO’s World Heritage Committee

15. 3.3 Balancing and proportionality Improper balancing : Examples: – WHO Swine Flu emergency vaccination – The Mangold Case (2010) German Constitutional Court Proportionality: Examples: – UNSC Targeted Sanctions (Kadi) – WBIP and Mumbai transportation project Standard of Review/Margin of Appreciation: Session 4