Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities

Abstract

The research project which this article introduces, proposes a distinctly public law approach to the deep transformation in the conduct of public affairs epitomized by the term global governance. We were intrigued to find in many policy fields an increasing number of international institutions playing an active and often crucial role in decision-making and policy implementation, sometimes even affecting individuals. Thus, a private real estate sale in Berlin is blocked by a decision of the UN SecurityCouncil Al-Qaida and Taliban Sanctions Committee; the construction of a bridge in Dresden is legally challenged because the affected part of the Elbe river valley had been included on UNESCO’s list of World Heritage; or educational policies most relevant to our children are profoundly reformed due to the OECD Pisa rankings. These examples illustrate that governance activities of international institutions may have a strong legal or factual impact on domestic issues. This calls upon scholars of public law to lay open the legal setting of such governance activities, to find out how, and by whom, they are controlled, and to develop legal standards for ensuring that they satisfy contemporary expectations for legitimacy. This article sketches out the objective, argument and approach of our project and proceeds in three steps: a first step specifies the object of analysis (B.); a second step discusses how the phenomena thus identified should be approached in a legal perspective (C.); in a third and final step, we explain the concrete methodology of our project (D.).

The authors are grateful to Eyal Benvenisti, Giacinto della Cananea, Sabino Cassese, Stephan Leibfried, Erika de Wet, Jan Klabbers, Stefan Kadelbach, Nico Krisch, Ute Mager, Christoph Möllers, Christian Tietje, Christian Walter, as well as the members of the Max Planck Institute for Comparative Public Law and International Law participating in this project for comments on an earlier version, and to Lewis Enim for language review.