Globalization Rules: Accountability, Power, and the ... - SSRN papers

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Global Governance 14 (2008), 39– 52

Globalization Rules: Accountability, Power, and the Prospects for Global Administrative Law c Simon Chesterman

From urban protesters against the World Trade Organization to African nations barred from importing generic HIV drugs, globalization is seen as either brute capitalism or a new and more efficient form of colonialism. But a body of rules is emerging that may both constrain and improve the decisions of the new global bureaucrats. From the United Nations to the Basel Committee of national bank regulators, accountability is on the march. KEYWORDS: globalization, accountability, public law, United Nations, sanctions.

I

n the space of a generation, the term globalization has passed from neologism to cliché. As a commercial phenomenon and a political reality, the elision of traditional borders between countries has opened economies and transformed the context within which political decisions are made. Analysis and critique tend to focus on these two aspects of globalization: the economic winners and losers, and the removal of traditional governments accountable to a fixed population from much of politics. This is understandable since international agencies, expert committees, and hybrid interest-driven networks increasingly make decisions that affect large numbers of people. As formerly public responsibilities have been assumed by these new entities, however, there is evidence of an emerging normative context within which such activity takes place, characterized by a demand for accountability in decisionmaking. Responses to this demand have been piecemeal, sometimes inconsistent, and frequently inadequate. But seen as a whole, those responses have begun to coalesce into an entirely new area of law that may provide a set of rules for accountability in globalization: a global administrative law.1 The emerging set of rules referred to here as “global administrative law” encompasses procedures and normative standards for regulatory decisionmaking that falls outside domestic legal structures and yet is not properly covered by existing international law, which traditionally governs state-to-state relations rather than the exercise of regulatory authority with direct or indirect effects on individuals. The standards that are being imported into this new sphere of regulatory activity draw upon existing administrative law principles common in many jurisdictions, such as transparency, participation, and review.2 As a response to the demand for accountability in globalization, then, 39

Electronic copy available at: http://ssrn.com/abstract=975167


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this is distinct from demands that globalization be made more democratic; instead, these developments aim to make it more reasoned. Though much of the discussion here is descriptive of existing phenomena, it will be argued that the consolidation of these moves would improve both the quality of decisionmaking and the ability of those affected by decisions to protect their legitimate rights and interests. The fragmented nature of activity in this area to date is easily seen. The forums in which regulatory decisions are being made range from formal treatybased organizations such as the United Nations and the World Trade Organization (WTO) to networks of government officials such as the Basel Committee of national bank regulators. In addition to government representatives, the actors include experts such as the technical committees of the International Organization for Standardization (ISO) and the nonprofit Internet Corporation for Assigned Names and Numbers (ICANN). And, increasingly, less formal networks of interested parties play a role in developing standards in areas as diverse as “fair trade” coffee and “dolphin-friendly” tuna. Participation in these disparate decisionmaking processes varies widely, but there is rarely a general right for affected parties to challenge a decision; frequently it is not possible even to seek reasons as to why a particular decision was made. The disparate regimes may overlap—sometimes quite intentionally—as the market comes to be regulated by a market of regulation. In some areas, competing standards may be adopted on a “voluntary” basis, though the global marketplace quickly leads to standards becoming mandatory as a commercial reality if not a legal requirement. Mechanisms that have sought to regulate these activities tend to come from traditional governance institutions operating at the limits of or beyond their traditional boundaries. At the national level, courts and legislatures have increasingly asserted a capacity to review domestic implementation of global standards and national officials’ participation in global administrative decisions. At the international level, accountability may depend on specific mechanisms established for a particular regime, such as the WTO’s inspections panels and Appellate Body,3 or reactive ad hoc bodies, such as the Independent Inquiry Committee into the United Nations Oil-forFood Programme (the Volcker Committee). For many regimes, there is no formal review procedure at all and no means of calling for one.4 Dissatisfaction with these piecemeal and inconsistent regimes is, ironically, one of the reasons why they may be thought of as part of a larger whole. As demands for transparency, participation, and review are made across sectors, similar conversations are taking place in discrete communities of practitioners, advocates, and academics. The term global administrative law does not presume that the normative response to these questions is uniform—or that it should be. But as an emerging area of practice, the concept of a global administrative law can help frame these questions of accountability and sketch out some appropriate responses.

Electronic copy available at: http://ssrn.com/abstract=975167


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This article discusses the practice of global administration before surveying the forms and structures of accountability that are developing. It then addresses some of the key questions of power disparities that affect both the mechanisms created and how they are implemented. The article touches on a range of bodies engaging in what is termed here global administration; significant time, however, is spent on the United Nations as the organization that is most familiar to nonspecialists but also the one whose accountability has been most prominently questioned in recent years. The argument made here is that the whole of these emerging practices may yet make up more than the sum of its parts: global administrative law will not displace calls for greater democratization in global decisionmaking processes, but it can address many of the concerns brought under that large and ill-defined tent while being significantly more likely to achieve traction with the decisionmakers themselves.

Global Administration Global governance was originally understood as regulatory in nature. Though international agencies might generate norms through intergovernmental processes, the execution of these norms was traditionally the purview of states or exceptional entities such as the European Union (EU). This limited view of global governance is no longer tenable. Though most advanced in the economic sphere, areas such as the environment and, increasingly, international security are subject not merely to regulation but to global administrative control as well.5 Much as the EU began life as an economic idea with political implications, economic regulation and administration has led the development of global administrative law. Important structures today include the WTO, the Organization for Economic Cooperation and Development (OECD), the G7 group of major industrial democracies (sometimes expanded to include Russia), the Financial Action Task Force, and the International Monetary Fund (IMF). Environmental regulation—sometimes conceived as administration of the global commons or the common heritage of humanity—has also been the subject of far-reaching regimes, most notably the Kyoto Protocol. But the most rapid recent growth in administration has been in international security. In addition to the assertion of expanding powers over postconflict territory through the 1990s—culminating in the United Nations exercising effective control over East Timor from 1999 to 2002, and ongoing quasi-sovereign control of Kosovo—the sanctions committees of the UN Security Council routinely make decisions with substantial impact on countries and individuals. Since September 11, 2001, the Council has also been the vehicle for swift and extensive powers to be asserted in the fields of counterterrorism and counterproliferation, at times acting as a kind of global legislature.6


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Though such activities are far from uniform, they mark a paradigm shift in the governance activities of bodies that do not fit neatly into historic categories of national or international law. The former typically controls activities within the jurisdiction of one country, the latter the relations between countries. This schema was never particularly neat—a separate body of law deals just with conflicts of jurisdiction—but the activities considered here frequently operate in the interstices between jurisdictions, while encompassing activities that would normally be undertaken by domestic governance authorities.7 Seeing such activity as global administration reflects those qualities and pointedly raises the legitimacy issues that would follow from a government asserting such powers. A government that determines capital adequacy requirements for banks, runs a trading regime for pollution credits, or freezes the assets of a suspected terrorist financier would typically be subject to some form of administrative law process, perhaps requiring varying degrees of transparency, rights of participation, and review of decisions. These procedural remedies do not exist for the Basel Committee, the Kyoto Protocol’s Clean Development Mechanism, or the UN Security Council 1267 Committee (also known as the Al-Qaida and Taliban Sanctions Committee), respectively.8 Whether it makes sense for these activities to be thought of as a coherent whole is an open question. Similarly, analogies between national legal regimes—such as administrative law—and international or transnational law must be drawn carefully. Nevertheless, the increasing demands for accountability are suggestive of the manner in which administrative activity by governments came to be subject to review.9 A prominent example of a demand for administrative law–type reforms in recent years has been the accountability deficit at the United Nations. Accusations of mismanagement in the Oil-for-Food Programme led to the establishment of an inquiry headed by former Federal Reserve chairman Paul Volcker. Responding to an interim report in February 2005, deputy secretarygeneral Louise Fréchette acknowledged that there were weaknesses in UN management but averred also to the UN’s ill-preparedness for such responsibilities in the first place: “Personally, I hope to God we never get another oilfor-food program or anything approaching that kind of responsibility,” she said, “which was tantamount to trying to oversee the entire import-export regime of a country of 24 million people, which was a tall order.”10 When the UN next oversaw the flow of large amounts of money, in the wake of the 26 December 2004 tsunami, it retained the services of the accounting firm PricewaterhouseCoopers to help with financial tracking. Lack of capacity to administer is only rarely the reason for a lack of accountability, however. More commonly, a regime is designed with an accountability deficit in place. This is true, for example, of another recent scandal for the United Nations concerning sexual exploitation and abuse by peacekeepers in the Democratic Republic of Congo. Though blame is often


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targeted at the United Nations itself for such crimes, countries contribute forces to peacekeeping operations on the basis that their troops have immunity from local laws and from any UN disciplinary action other than repatriation. In theory, a wrongdoer’s home government is obliged to investigate and prosecute abuse; in reality, few governments do this, and the United Nations is reluctant even to name and shame such governments for fear that troops might not be sent at all to future peacekeeping operations.11 Other global administrative regimes have been established precisely to avoid national administrative remedies. Foreign investment treaties, for example, may presume the inadequacy of a developing country’s legal regime and allow foreign investors to enforce rights directly before an international tribunal. Allowing a corporation to sue before an international tribunal is itself a departure from classical international law, but a further interesting element is the common inclusion (especially in bilateral investment treaties negotiated by Britain, France, and the United States) of a requirement for “fair and equitable treatment in accordance with international law.” The content of this “international law” is far from clear, but as global administrative law develops over time, it may inform the interpretation of such treaties, which have grown in number from around 500 a decade ago to more than 2,300 today.12 A more basic challenge to importing administrative law principles to global administration is the structure of authority.13 National institutions of governance tend to be organized hierarchically with power distributed in accordance with a constitution or basic law. International and transnational institutions of governance, such as they are, frequently operate in a less structured environment driven by negotiation; formally, much authority comes from the countries whose consent gives them legitimacy. The horizontal organization of certain forms of global administration is most evident in mutual recognition regimes, which provide that a product or service that can be sold lawfully in one jurisdiction may also be sold freely in any other participating jurisdiction. These regimes, which tend to be formulated as treaties, are in turn being overtaken by technology such as satellite television and the Internet, making it increasingly impractical for one country to opt out of the globalized commercial sphere.14

Accountability Deficits Is it possible, then, to have meaningful accountability in this area? There are many ways of holding power to account. Mechanisms do exist at the international level, but they tend to be responsive in nature and ad hoc in structure. Accountability should not simply be a reaction to scandal, however. To be effective it should normally exist as of right, which requires the creation of institutions, the elaboration of standards, and the potential for sanctions.15


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This is not, of course, the only way to constrain power. Other means include negotiation constraints, checks and balances, the threat of unilateral action, and so on. Such constraints fall outside “accountability” as it is used here, but point to an important distinction between legal and political accountability. Legal accountability typically requires that a decisionmaker has a convincing reason for a decision or act. Compliance with a rule will normally be a sufficient reason, though some administrative agencies may be established with a requirement to provide substantive reasons on the merits of a particular decision. Political accountability, by contrast, can be entirely arbitrary. In an election, for example, voters are not required to have reasons for their decision—indeed, the secrecy of the ballot implies the exact opposite: it is generally unlawful even to ask a voter why he or she voted one way or another.16 These forms of accountability may be seen as lying on a spectrum, with other variations possible. In a legislature, for example, individual legislators may have specific reasons for voting in favor of or against a piece of legislation, sometimes demonstrated through speeches made before or after it was adopted. But if such reasons are inconsistent, it may be unclear what significance is to be attributed to them.17 In the absence of political, or what we might loosely term “democratic,” accountability, is it desirable to provide for legal accountability mechanisms? Two concerns immediately present themselves. First, it is unclear that the objective implementation of standards implied by legal accountability can adequately substitute for a democratic deficit: such an approach presumes that holding power to specified standards is a sufficient form of accountability, while ignoring that the standards themselves are contestable.18 Second, the relationship between those making decisions and those affected by them is different in the global administrative sphere than it is in national institutions. In a democracy, power is delegated through elections by the same population that is typically affected by decisions; in global administration there is no corresponding link between those affected and those delegating power. As a result, those with the most leverage to demand and enforce accountability may be those with least interest in doing so.19 It is necessary, therefore, to look more closely at different structures of accountability across the spectrum of legal and political remedies. Ruth W. Grant and Robert O. Keohane have identified seven such structures, reflecting different relationships between those who delegate power, those who make decisions, and those who feel the consequences: (1) hierarchical accountability within a bureaucracy, such as the UN Secretariat; (2) supervisory accountability, such as countries on the executive boards of the World Bank and IMF; (3) fiscal accountability, such as through the Advisory Committee on Administrative and Budgetary Questions (ACABQ) of the General Assembly or the unilateral withholding of UN dues; (4) legal accountability, where a disinterested independent third party, such as a court, is vested with decision-


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making powers—for example, arbitral tribunals set up under the International Centre for Settlement of Investment Disputes (ICSID) or the International Criminal Court; (5) market accountability, where decisions are left to the operation of the market, such as pressure on developing economies to adopt standards attractive to global capital markets or consumer pressure against inadequate labor standards on running shoes; (6) peer accountability, such as the desire of diplomats to maintain credibility and influence among their colleagues; and (7) public reputational accountability, which applies to all the preceding categories but also embraces “soft power” connected with the prestige and esteem of a given country.20 The UN Security Council presents an interesting case study. There is no electoral or political accountability, since the Council is composed of both permanent and elected members—and any implicit political accountability of the latter group is undermined by the rule against immediate reelection. Ad hoc measures draw upon a kind of “expert accountability,” such as the recent International Commission of Inquiry on Darfur and the many reports of the secretary-general and his representatives to the Council, though with limited effectiveness in holding the Council to account when it acts inadequately or fails to act at all. There is a degree of quasi-legal accountability—for example, through the Volcker Committee—though this has not examined the legality of Council actions as such. Public reputational accountability of the Council is problematic because of the willingness of countries that play a lead role on the Council nonetheless to call upon “the Council” or “the UN” to act. Since any such action depends upon state capacities, such calls are often disingenuous.21 More generally, the use of the veto—or the threat of a veto—by a permanent member of the Council distorts decisionmaking processes further, though evidence of this is limited since the vast majority of decisions are made behind closed doors. There is, then, no simple answer to the question of to whom the Security Council is accountable for its actions and those taken in its name. Since it was traditionally understood as the apotheosis of a purely political body, this was not seen as a major concern at the creation of the United Nations or in the course of much of its subsequent history. That situation may be changing, however, as the Council assumes and delegates administrative powers on a more frequent and more far-reaching basis. Pressure for change may come from two directions. First, as the Council makes decisions that increasingly affect individuals, such as including them on lists of suspected terrorist financiers whose assets are to be frozen, national courts (notably in Canada and the European Union) have begun to examine whether they themselves can review Council decisions.22 Second, and more generally, as the Council moves along the spectrum from being a purely political body to assuming more traditionally administrative responsibilities—including, at its most extreme, the governance of territory in Kosovo and East Timor—a more “legal” model of


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accountability, in which the Council is expected to have and give reasons for its decisions, will be demanded by stakeholders more generally, as is happening in response to the Council’s counterterrorist activities.23 An important caveat is to note the danger of a body like the Security Council embracing too many rules and too much accountability. The UN General Assembly is a more representative body than the Security Council, but there is a reason why matters of international peace and security were delegated to a smaller body with special rights accorded to the most powerful countries of the day. If the cost of greater accountability were that the capacity of the Security Council to respond to a crisis suffered, many would argue that the cost would be too great. In this respect, those who urge the Council to make decisions in a transparent manner open to a wide range of contesting viewpoints should be careful what they wish for: the only example of the Council functioning in this manner in recent years is on the handling of the Iraq file during 2002–2003. The rifts to which this gave rise are the reason why reform is on the agenda today. Nevertheless, as the Council’s role continues to evolve, it may be possible to differentiate between appropriately “political” functions and those where more structured forms of accountability are possible. In the Council’s increasingly administrative functions, having and giving reasons for decisions—including, as appropriate, input from countries and other actors not on the Council prior to decisions and responding to challenges after them—would be a useful first step.24 The UN Security Council is unusual for the way in which its powers have expanded over the past decade in particular, but many other bodies are similarly removed from the affected individuals who have the greatest stake in the quality of decisionmaking. The International Accounting Standards Board (IASB), for example, is a privately funded body based in London that develops global accounting standards requiring transparent and comparable financial statements. Its members are appointed by the International Accounting Standards Committee Foundation, a nonprofit corporation incorporated in the US state of Delaware. In 2002, an EU regulation required listed companies, including banks and insurance companies, to prepare their consolidated accounts in accordance with the IASB’s standards from 2005 onward—delegating not only adoption of these standards but their interpretation to a private body. An EU Accounting Regulatory Committee was established to oversee incorporation of the standards but is limited to providing an opinion on proposals to endorse IASB standards. The connection between the standards-setter and those required to implement the standards is a chain of broken links.25 Whether such connections should be more direct—and whether such standards-setters should be accountable to the end users of their product—points to a countermajoritarian problem that frequently arises in economic law and policy. Should such areas of governance be isolated from day-to-day demo-


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cratic processes?26 In other words, in times of quiet can a government establish economic policies that will be protected from political pressure in moments of crisis? Human rights are protected in this way by many constitutions, structured to limit the capacity of a state to derogate from that to which it originally consented. It is less clear that this should apply to economic policy. The European Union has gone furthest in submitting control of the economy to intergovernmental processes, including the adoption of a common currency (something achieved de facto in a “dollarized” country such as Panama). Even so, the limits of transferring economic policy to transnational actors were tested when both France and Germany breached the EU Stability and Growth Pact that requires countries using the euro to keep their deficits below 3 percent of gross domestic product (GDP). A three-year dispute ended in a truce in December 2004, but that was premised on an assumption that both countries would keep their deficits below the ceiling in 2005. Germany, at least, seems likely to violate that agreement, but it is not clear that Europe’s biggest economy will submit itself to the same penalties that were applied to Portugal when it violated the pact in 2001. Accountability, then, depends not only on the relationship between overseer and overseen, but also on the stability of that relationship. In a developed legal system, the rule of law—meaning subjugation to consistent and transparent principles under state institutions exercising a monopoly on coercive power—is intended to avoid arbitrary departures from uniform behavior. The emerging body of global administrative law has few such protections, and accountability mechanisms have frequently been responsive to the realities of power not merely in implementation but in design.

Some Animals Are More Equal than Others During negotiations on the International Criminal Court in 1998, brief consideration was given to including corporations within its jurisdiction. French negotiators pushed to include legal as well as natural persons to make it easier for victims to sue for restitution and compensation. Differences in this form of accountability across jurisdictions—where it exists at all—meant that consensus was impossible, and the language was dropped from its square brackets .27 Six months after the Rome Statute was adopted, at the 1999 Davos World Economic Forum, UN Secretary-General Kofi Annan proposed the Global Compact. This is not a regulatory instrument—it does not “police,” enforce, or measure the behavior or actions of companies. Rather, the Global Compact claims to rely on “public accountability, transparency and the enlightened selfinterest of companies, labor and civil society to initiate and share substantive action in pursuing the principles upon which the Global Compact is based.”28 The emergence of such essentially voluntary codes of conduct is an admission


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that regulation of labor standards through governments and intergovernmental organizations has failed. Though there are reasons to be hopeful about the impact of these voluntary mechanisms, they shift the burden of compliance in large part from the legal division of a corporation to the marketing division. It should come as no surprise that norms and institutions are weaker in labor regulation and, say, environmental law than in trade. The largest multinational corporations now dwarf the economies of many countries and frequently mobilize greater political influence: preserving their freedom of action (while protecting property and contractual rights) is a major reason for the weakness of labor and environmental regimes. At the same time, however, political power has also driven the expansion of global administrative law— most importantly in the export of US regulations and, increasingly, in US support for the judicialization of international economic institutions such as the WTO. Much of the rhetoric within the United States is critical of these developments, but they are frequently encouraged by US regulators and business with a strong interest in the harmonization of global standards and the consistency and predictability of a legally robust trading environment.29 Where possible, this is pursued through the extraterritorial application of US regulations either in law or in fact. A passive example is the adoption of Food and Drug Administration (FDA) standards by pharmaceutical companies outside the United States. A more aggressive approach is evident in the use of certification mechanisms that provide rules for other countries in areas such as abortion, arms control, environmental protection, human rights, narcotics, and terrorism. In each of these areas, Congress requires the US president to provide detailed annual reports that may lead to the imposition of sanctions. It was in response to such unilateralism in pursuing violations of US intellectual property law that developing countries eventually agreed to the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, which came into force in 1995.30 (Such arguments were later turned on their head to weaken the TRIPS regime as it applied to the use of generic drugs to fight HIV/AIDS.) If powerful countries such as the United States are able to inscribe domestic rules on foreign actors, precisely the opposite happens in the weakest countries. The idea of a social contract was traditionally that a state provides basic goods to its citizens in exchange for authority to raise taxes and exercise power on their behalf. Such a relationship is reinforced by democratic structures and reflects the theory (at least) of most industrialized countries. In the developing world, however, many governments are now engaged in what Barnett Rubin has called an external social contract, complying with foreign standards in order to receive official development assistance and gain entry into the global financial system. This relationship may actively undermine democratic processes.31 Inequality of arms may also weaken regimes intended to allow wider participation in global administrative decisionmaking. The participation of non-


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governmental organizations (NGOs) in decisionmaking forums, for example—ranging from civil society observers at intergovernmental processes to participation as amicus curiae in WTO dispute settlement proceedings—in theory ensures greater access. Such access is rarely reflective of a general “public interest,” however.32 In reality, participation rights tend to be exercised by those at the extreme ends of a spectrum of views on a given topic. In national structures, democratic processes may serve as a check on extreme views that are filtered through an electoral process.33 At the international and transnational level, a cacophony of unstructured participation is frequently dominated by the groups that shout the loudest.

Conclusion Global administrative law presently exists as, at most, an idea and a set of questions. Underlying these questions are the two highlighted at the start of this article: Who wins and who loses? And what happens to politics? Put another way, is the goal of developing transparency, participation, and review procedures to exclude politics from these activities or to formalize it? The argument here is that such procedures will improve the quality of decisionmaking and of responsiveness to those affected by decisions. It would be a mistake, however, to assume that all of these problems are technical questions to be resolved by lawyers. Objective implementation of standards is not neutral unless the standards themselves are legitimate. For this reason, purely legal forms of accountability will never be sufficient to bridge the democratic deficit frequently cited in the areas described here.34 An alternative critique is that formalizing these structures will shape global administrative law according to the interests of the industrialized countries and multinational corporations wielding the greatest influence. It probably will. Nevertheless, law’s capacity to restrain power and prevent the cooptation of norms to serve the ends of the powerful has always been questionable. Writing on the development of the rule of law in eighteenth-century England, the historian E. P. Thompson endorsed the Marxist view that law systematized and reified inequality between the classes. Even so, he argued, law also mediated those class relations through legal forms, constraining the actions of the ruling class. For this reason, unusually for a Marxist, he termed the rule of law an “unqualified human good.”35 Global administrative law will not bring about a New International Economic Order, but it might enable those most affected by globalization to hold those with influence to their rhetoric. The goals of a global administrative law go beyond constraining decisionmakers, however. In addition to providing “input legitimacy” to decisionmaking processes, broadening participation, shining light on deliberations, and providing the possibility of revisiting bad or unfair choices should improve the decisions themselves. This may be thought of as “output legitimacy.”36


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The vagueness of the term “legitimacy” in this context is one of the reasons why the language of accountability is normally preferred. In national institutions, such questions merge as both legitimacy and accountability are seen as grounded in the principles and practice of democracy. At the global level, the lack of a global demos means that such a link will never be so clear.37 Instead, legitimacy will have to be negotiated in different ways in different fields, guided by principles that are necessarily contingent, standing or falling by their effectiveness and their responsiveness to the demands of the practitioners and protestors of globalization. Notes Simon Chesterman is global professor and director of the New York University School of Law Singapore Programme, and an associate professor of law at the National University of Singapore Faculty of Law. His books include Law and Practice of the United Nations (with Thomas M. Franck and David M. Malone, 2008), and Secretary or General? The UN Secretary-General in World Politics (2007). This article draws upon preliminary findings from the Project on Global Administrative Law at the NYU School of Law, including a conference convened on 22–23 April 2005. For further information and publications, visit www.iilj.org. The author thanks the directors of the project, Benedict Kingsbury, Nico Krisch, and Richard Stewart, as well as Michael Fullilove, Laura Kurlat, Olivia Maloney, and Antonios Tzanakopoulos for their contributions to earlier drafts of this text. 1. See, generally, Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 15. 2. Ibid., pp. 15–18. 3. See, for example, Dana L. Clark, Jonathan Fox, and Kay Treakle, eds., Demanding Accountability: Civil Society Claims and the World Bank Inspection Panel (Lanham, MD: Rowman & Littlefield, 2003); and David Hunter, “Using the World Bank Inspection Panel to Defend the Interests of Project-affected People,” Chicago Journal of International Law 4 (2003): 201. 4. Benedict Kingsbury, “The Rules and Institutions of Accountability,” paper presented at the seminar “A Rules-Based International Order,” convened by the Institute for International Law and Justice and the Permanent Mission of Austria to the United Nations, UN Headquarters, 5 May 2005. 5. Kingsbury, Krisch, and Stewart, “Global Administrative Law,” pp. 18–20. 6. Ibid., p. 21. 7. Charles Sabel, “Rethinking Law and Democracy in an Age of Global Rulemaking,” paper presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005. 8. On the Basel Committee, in particular, see Michael S. Barr and Geoffrey P. Miller, “Global Administrative Law: The View From Basel,” New York University, 2005, available at www.law.nyu.edu/kingsburyb/fall05/globalization/Miller%20Paper.pdf. 9. Richard B. Stewart, “US Administrative Law: A Model for Global Administrative Law?” Law and Contemporary Problems 68 (2005): 63. 10. Transcript of press conference by deputy secretary-general Louise Frechette at United Nations Headquarters, UN Doc DSG/SM/246, 15 February 2005, available at www.unis.unvienna.org/unis/pressrels/2005/dsgsm246.html.


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11. See now “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,” Report of Prince Zeid to the Secretary-General, UN Doc. A/59/710, 24 March 2005, available at www.un .org/apps/docs/ws.asp?m=A/59/710; “Statement by the President of the Security Council,” UN Doc. S/2005/21, 31 May 2005. 12. See Rudolf Dolzer, “The Impact of Investment Treaties on Domestic Administrative Law,” paper presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005, available at www.iilj.org/ global_adlaw. 13. See Sabino Cassese, “Global Administrative Law: An Introduction,” paper presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005, available at www.iilj.org/global_adlaw. 14. Kalypso Nicolaidis and Gregory Shaffer, “Managed Mutual Recognition Regimes: Governance Without Global Government” Institute for International Law and Justice Working Paper 2005/06, 2005, New York University School of Law, available at www.iilj.org/papers. 15. Kingsbury, “The Rules and Institutions of Accountability.” 16. John Ferejohn, “Comments,” presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005, available at www.iilj.org/global_adlaw; see also John Ferejohn, “Accountability and Authority: Toward a Theory of Political Accountability,” in Adam Przeworski, S. C. Stokes, and B. Manin, eds., Democracy, Accountability, and Representation (Cambridge: Cambridge University Press, 1999), p. 131. 17. Kingsbury, “The Rules and Institutions of Accountability.” 18. Ferejohn, “Comments.” 19. Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99, no. 1 (2005): 1. 20. This categorization draws upon Grant and Keohane, ibid. 21. Kingsbury, “The Rules and Institutions of Accountability.” 22. See, for example, Ahmed Ali Yusuf and Al Barakaat International Foundation and Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Case T-306/01 and Case T-315/01, Court of First Instance of the European Communities, 21 September 2005, available at http://curia.eu.int. 23. Kingsbury, “The Rules and Institutions of Accountability”. 24. Ibid. 25. Cassese, “Global Administrative Law.” 26. Chantal Thomas, “Comments,” presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005. 27. See also Simon Chesterman, “Oil and Water: Regulating the Behavior of Multinational Corporations Through Law,” New York University Journal of International Law and Politics 36 (2004): 307. 28. United Nations, The Global Compact: Overview, available at www.unglobal compact.org. 29. Stewart, “US Administrative Law.” 30. Nico Krisch, “Imperial International Law,” Global Law Working Paper 01/04, New York University School of Law, 2004, available at www.nyulawglobal.org, p. 38. 31. See, for example, Barnett R. Rubin, “Peace Building, State Building: Constructing Sovereignty for Security” (New York: Center on International Cooperation, June 2005). 32. Martín Böhmer, “Who Benefits from Administrative Remedies? Mobilization and Access to Justice in Impoverished Areas,” paper presented at the Global


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Administrative Law Conference, New York University School of Law, 22–23 April 2005, available at www.iilj.org/global_adlaw. 33. Richard Pildes, “Comments,” presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005. 34. See note 18. 35. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth, UK: Penguin, 1977), p. 264. 36. Böhmer, “Who Benefits from Administrative Remedies?”. 37. Olivier De Schutter, “Comments,” presented at the Global Administrative Law Conference, New York University School of Law, 22–23 April 2005, available at www.iilj.org/global_adlaw.