Allocating Authority: Who Should Do What in European and International Law?

Allocating Authority: Who Should Do What in European and International Law?


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The question of which European or international institution should exercise public authority is a highly contested one. This new collection offers an innovative approach to answering this vexed question. It argues that by viewing public authority as relative, it allows for greater understanding of both its allocation and its legitimacy. Furthermore, it argues that relations between actors should reflect the comparative analysis of the legitimacy assets that each actor can bring into governance processes. Put succinctly, the volume illustrates that public authority is relative between actors and relative to specific legitimacy assets. Drawing on the expertise of leading scholars in the field, it offers a thought-provoking and rigorous analysis of the long debated question of who should do what in European and international law.

Product Details

ISBN-13: 9781509911936
Publisher: Hart Publishing
Publication date: 01/11/2018
Pages: 312
Product dimensions: 6.14(w) x 9.21(h) x 0.80(d)

About the Author

Joana Mendes is Professor of Comparative Administrative Law, University of Luxembourg.Ingo Venzke is Associate Professor of International Law, University of Amsterdam.

Table of Contents

List of Contributors xi

1 Introducing the Idea of Relative Authority Joana Mendes Ingo Venzke 1

I Authority in Global Governance 1

II Towards Relative Authority: Comparative Institutional Assessments 7

III Normative Traction: Towards a Framework for Assessment 11

A Legitimacy Claims 11

B The Separation of Powers: Dividing Governmental Functions 13

C Limits of the Separation of Powers and its Potential 15

IV Iterations in Supra- and International Practices 18

V Relative Authority in European and International Law 22

Part I Empirical and Normative Traction

2 Democratic Legitimacy and Executive Rule-making: Positive Political Theory in Comparative Public Law Susan Rose-Ackerman 29

I Positive Political Theory 31

A Presidential Systems 33

B Parliamentary Systems 35

II Judicial Review and the Democratic Legitimacy of Executive Rule-making: Four Cases 37

A The United States 38

B South Africa and Germany 39

i Constitutional Checks on Rule-making Processes 40

a South Africa 40

b Germany 43

C The European Union 46

III Review for Democratic Legitimacy-Old Habits and New Challenges 48

3 In Search of a New Model of Checks and Balances for the EU: Beyond Separation of Powers Eoin Carolan Deirdre Curtin 53

I Introduction 53

II Reconsidering the European Union's Institutional Balance 55

A Institutional Separation: Where are we Now? 55

B Institutional Separation: Where are we Going? 57

i The Broad Case for the Separation of Powers 57

ii The Claim to Effectiveness 58

iii The Claim to Legitimacy 60

C Separated Powers: Where should we Go? 63

D What Values Could a System of Separation Promote Within the EU? 63

III Autonomy and Accountability in the EU's System of Separated Powers 66

A The Impact of Informal Practices on Formal Autonomy 67

B The Impact of Informal Practices on Formal Checks 69

C The Potential of Informal Practices 72

IV A Procedural Model of Checks and Balances? 74

4 Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops can Strengthen the Authority of the European Court of Human Rights Mikael Rask Madsen 77

I Theoretical Framework: Public Authority as Object of Empirical Inquiry 79

II Empirical Analysis: Instances of Controversy and Defiance of the ECtHR 82

III Pathways to Legal Diplomacy: The Cyprus Case 84

IV Head-On Collisions: Judicial Adaptations in France 87

V Irreconcilable Norms: Prison Votes and the Impossibility of Agreement 89

VI 'Constitutional Polities': The Brighton Declaration and its Consequences 92

VII Strengthening Authority by Enhancing Communication and Participation 94

A Different Role for the Committee of Ministers 96

B Increased Participation before the Court 96

C Allowing for Appeals to the Grand Chamber 97

VIII Conclusion 98

5 Authority Monism in International Organisations: A Historical Sketch Jochen von Bernstorff 99

I The Authority Configuration in the First International Organisations 100

II The Evolution of the Authority-configuration in the Twentieth Century 106

III Conclusion-Controls through those 'Affected' by IO Policies 109

6 No Institution is an Island: Checks and Balances in Global Governance Andreas von Staden 115

I Introduction 115

II Types of Checks and Balances in Global Governance 118

A Conceptualising 'Checks' and 'Balances' 118

B Different Types of Checks and Balances 120

i Horizontal versus Vertical Checks and Balances 120

ii Intra- versus Inter-organisational Checks and Balances 121

iii Specific versus General Checks and Balances 121

III Examples of Select Types of Checks and Balances in Global Governance 121

A Horizontal Checks and Balances in Global Governance 122

i Intra-organisational Arrangements 122

ii Inter-organisational Arrangements 126

B Vertical Checks and Balances 130

i Veto Power 131

ii (Threatening) Exit 131

iii Treaty Amendment and Renegotiation 132

iv Non-compliance 133

v Minimalist Compliance 134

IV Explaining the Scarcity of Horizontal Checks and Balances beyond the State 134

A Lack of Consequential Decision-making Authority 135

B Lack of Incentives for Executives to Install Horizontal Checks 136

C Different Characteristics of Principal 137

V Conclusion 138

Part II Iterations in Practice

7 The Role of the Court of Justice in Shaping the Institutional Balance in the EU Bruno De Witte 143

I Introduction 143

II Justification of Institutional Variation: The Treaties and Nothing But the Treaties 145

III Drawing the Borderline between Legislative and Administrative Action 149

IV Umpiring Disputes between the Political Institutions 151

V Legitimising 'Creative' Institutional Practice 153

VI Conclusion 156

8 Refining Relative Authority: The Judicial Branch in the New Separation of Powers Joseph Corkin 159

I Conceptualising Law-making's Diffusion 161

II What of the Elected Hierarchy? 164

III Blending Horizontal and Vertical Accountabilities 168

IV The Role of the Judicial Branch 170

V As Operationalised by the Court of Justice 175

VI Concluding Remarks 180

9 Judicial Review of EU Administrative Discretion: How Far Does the Separation of Powers Matter? Dominique Ritleng 183

I Judicial Review of Administrative Discretion and Separation of Powers Between the Legislature and the Executive 188

A Before Lisbon: Administrative Discretion Equated with Legislative Discretion 190

B After Lisbon: Nothing New Under the Sun 196

i Incentive to Differentiated Judicial Review 196

ii Disappointment 198

C Should There Be Any Difference at All? 201

II Judicial Review of Administrative Discretion and Separation of Powers Between the Judge and the Administration 203

A General or Individual Acts and Judicial Review of Administrative Discretion 205

B Decision-maker, Enactment Procedures and Judicial Review of Administrative Discretion 208

i Delegated and Implementing Acts 209

ii Legal Acts of EU Agencies 211

iii Legal Acts of the European Central Bank 214

113 Conclusion 215

10 First or Second Best? Judicial Law-making in European Private Law Chantal Mak 217

I European Courts in Times of Societal Change 217

II Institutional Constraints: Dividing Powers among Legislatures and Judiciaries 219

A Constitutionalism and Private Law in Europe 219

B Democratic Legitimacy in a Multi-level Order 221

C Input and Output Legitimacy 223

III Institutional Realism: Judicial Law-making in European Private Law 225

A On Spanish Mortgages 225

B Aziz 226

C Sánchez Morcillo 229

D Unicaja Banco and Caixabank 230

E Social Reality and Democratic Ideals 231

IV Institutional Imagination: Rethinking the Role of the Judiciary 231

A Democracy and European Private Law Adjudication 231

B Democratic Experimentalism 234

C Experiments in European Private Law 235

D First or Second Best? 237

V Realists and Visionaries 240

11 Relative Authority in Global and EU Financial Regulation: Linking the Legitimacy Debates Maurizia De Bellis 241

I Global Regulation, the EU, and the New Separation of Powers 241

II A Preliminary Caveat: Global Financial Standards between Soft and Hard Law 245

III The Fragmentation of Powers in the Global Financial Regulatory Architecture 247

A The Evolution of Global Financial Regulators and the Separation of Powers before the Crisis 247

B Concentrating Powers: The FSB as the Centre of Global Financial Governance 249

C The Limits of Concentration: Assessing the G20 Role Vis-à-vis the FSB 252

IV The Distribution of Powers in the EU Financial Regulatory Architecture 254

A The ESFS, the EBU, and the Division of Regulation, Supervision, and Resolution 255

B The Blurring Division of Competences 257

C How 'Relative' is EU Authority in Financial Matters? The Impact of Global Standards on EU Regulation 258

V Global Financial Governance and Legitimacy Concerns 260

A The Limits to a Clear Articulation of Competences 261

B The Legitimacy of Global Financial Regulation: Perspectives and Research Agenda 263

VI The EU Financial Regulatory Architecture and the Global Financial Architecture: Source of Inspiration or Part of the Solution? 265

A Lessons from the EU Architecture for the Global One? 265

B EU Participation in Global Regulation: Addressing the Legitimacy Deficit of EU Agencies' Relative Authority 267

VII Concluding Remarks 269

12 Relative Authority and Institutional Decision-making in World Trade Law and International Investment Law Diane A Desierto 271

I Public Authority in Trade and Investment Rule-making 271

II Trade and Investment Rules, Decisions, and Authoritative Decision-makers 274

III Legitimacy Assets, Accountability, and Reform in Trade and Investment 282

A Internal Checking Functions and External Constraints on Trade Rule-making 284

B Internal Checking Functions and External Constraints on Investment Rule-making 286

IV Conclusion 290

Index 291

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