Research note by Gianluca Sgueo
This volume (“Beyond Networks – Interlocutory Coalitions, the European and Global Legal Orders” – Springer, 2016) has an admitted affinity with the works of leading scholars on globalisation of administrative law, such as Sabino Cassese, Richard Stewart, Benedict Kingsbury, Eyal Benvenisti and Daniel Etsy. However, this volume does not attempt to rehash what are by now well-known principles of administrative law operating at the supranational level. Rather, it seeks to portray two of the most controversial aspects of globalisation of administrative law. The first relates to the convergence between administrative rules pertaining to different supranational regulatory systems. Traditionally, the spread of methods of administrative governance has been depicted primarily against the background of the interactions between the domestic and the supranational arena, both from a top-down and bottom-up perspective. However, the exploration of interactions occurring at the supranational level between legal regimes is still not grounded on adequate empirical evidence. This book attempts to supplement this angle of inquiry by focusing on the interactions between the European administrative law and the administrative principles of law pertaining to other supranational regulatory regimes and regulators such as the World Bank, the World Trade Organization, the United Nations, the Organisation for Economic Co-operation and Development, the Asian Development Bank, the Council of Europe and so forth. Factors of historical, political and legal significance drive the spill over of methods of democratic governance across these systems. The European administrative space relies on a set of principles and legal standards pertaining the Member States’ legal systems. These include transparency, public liability, the granting of adequate procedural rights to the parties involved and judicial review. Increasingly, the same elements can be found in global regulatory regimes. Transparency in rule-making, due process in decisions affecting private parties and review mechanisms to ensure legality are considered key to promoting accountability and legitimacy of supranational regulators. At the political level, the array of contractual relations and political dialogues between the European institutions and their supranational partners – ranging from functionally specific terms that address specialised transnational goals to broad alliances which address general common needs – have encouraged the globalisation of certain European rules and at the same time have provided incentives for EU administration to act in compliance with global rules. A third crucial element that is driving interactions between the European administrative space and global administrative systems is the jurisprudence of the handful of courts and arbitration tribunals that currently reside and operate in the international and the European legal environments.
Yet these factors do not cover the whole spectrum of the relevant phenomena that encourage the convergence between European and supranational, or global, administrative rules. This volume argues that the role of civil society actors must also be addressed if a more representative picture of the spill over of methods of administrative governance across the European and the global arenas is to be achieved. Civil society actors operating at the supranational level are understood and described in this volume as one of the mechanisms supporting the interactions between supranational legal regimes. However, they are also portrayed as the second controversial aspect of globalisation. This book attempts to describe the importance of deliberative fora – or coalitions – of non-state actors for framing shared strategies towards European and supranational regulators. It is argued that transnational activism from single civil society’s actors is not necessarily cosmopolitan in orientation and does not necessarily intend to promote transnational democracy, while the activism promoted by supranational coalitions of civil society actors opens up possibilities for more democratic supranational governance.
At first glance, the proposition that convergence of supranational governance may be achieved through the advocacy of supranational coalitions of civil society may strike many scholars as implausible. Not infrequently, scholarly observation of the involvement of civil society actors in supranational decision-making has stressed the variation – rather than the convergence – of participatory patterns in global legal regimes. This volume breaks with this interpretation of civil society’s involvement in global governance. To this end, a distinction between the contribution given by single non-state actors and by coalitions of civil society actors to the evolution of the supranational legal order is presented (and, in doing so, this volume also takes into account the widespread disagreement as to whether civil society actors can be viewed as contributors to supranational policy-making). This volume suggests that two forms of convergence of administrative governance, namely, attractiveness and imposition, are encouraged by the cooperation between supranational coalitions of civil society actors and supranational regulators. Hence an important differentiation may be made between the described cooperation and what international legal doctrine commonly defines as “regime complexes”. Regime complexes are described as higher-order governance arrangements that replace integrated international regimes in specific issue areas, e.g. refugee policy, anti-corruption, climate change and food security. Such regimes include various mixes of states, sub state units, international organisations and civil society actors. Cooperation between coalitions of non-state actors and supranational regulators is tighter in its scope, since it refers to the area of activity of the given regulator, and broader in its effects, since it seems to drive harmonisation of administrative governance.
Two last points remain to be clarified. First, this volume does not seek to answer all the challenges and problems regarding civil society coalitions in the global legal order. Rather, it focuses on a very specific aspect of their activity. More research and debate will be needed to complete the puzzle. Second, and relatedly, this volume does not argue that supranational coalitions of civil society currently solve the problem of participatory democracy at the supranational level. The issues contained herein are so new that changes will occur even as this book goes to press or soon thereafter. Nevertheless, it is hoped that this volume will provide some useful insights and clarity on the topic of globalisation of administrative governance as well as on the democratic potentials possessed by coalitions of civil society and that it will help to reframe on-going debates on this fascinating topic.
- “Beyond Networks – Interlocutory Coalitions, the European and Global Legal Orders” – Springer, 2016
About the Author
Professor “Media, Activism & Democracy” – New York University Florence; policy analyst – European Parliament; Department Director – I-Com.