'In Search of Generally Recognized Standards for Inclusionary Governance: Assessing Global Constitutionalism and Global Administrative Law as Underlying Theories’

Marjolein Schaap

    Research output: Contribution to conferenceConference contributionAcademic

    Abstract

    This paper discusses the possible role for Global Constitutionalism (GC) and/or Global Administrative law (GAL) within the envisaged research project on inclusionary governance for post-conflict situations. The research project focuses on decision-making procedures in individual situations by international territorial administrations (ITAs) specifically and more general by international institution. As typified by the term ‘Global Governance’, a shift of the actor exercising public power has taken place; where previously the states played a dominant role, nowadays various actors exercise public power at the transnational level without a legal framework commensurate to those powers, resulting in a legitimacy deficit. Within ITAs this is particularly evident as in practice citizens are caught between a disfunctioning national legal framework and a political reality in which an international actor exercises public powers that affect their daily lives, but without a legal framework commensurate to those powers being in place. The research project will identify generally recognized standards for inclusionary governance by deploying methods of legal comparison, both horizontal as vertical. Therefore the paper examines the possible role of GC and GAL as underlying theories to address the decision-making by ITAs . GC employs constitutional principles which embraces two sets of norms; the formal norms – mainly the rule of law – addressed to governing authority how to exercise public power and the substantive norms aimed at guaranteeing fundamental rights to individuals. GAL at the other hand focuses on deploying traditional administrative law instruments as analytical tools including procedural fairness, transparency, and accountability addressing these different regimes and relations in the global public (administrative) sphere. Even though there are several differences in the approaches of the schools, common values and standards have developed as being principles part of ‘global public law’. This paper therefore asserts that GC and GAL theoretical approaches need to be used jointly in search for the generally recognized standards of inclusionary governance Furthermore, the context of international territorial administrations in which they operate further warrants a combined approach; ITAs assume all-encompassing authority within a territory, which is ultimate in nature. Within the territory the domestic institutions – if they exist – lack proper mechanisms to guarantee human rights. The ITAs, in other words, seem to operate in a certain legal vacuum where there is uncertainty as to which laws apply. Therefore, GAL and GC will be deployed to provide for formal requirements for the exercise of power within the legal order and offer further principles as to the specific decision-making procedures in individual situations on which the Research Project focuses.
    Original languageEnglish
    Publication statusPublished - 20 Oct 2011
    EventPh.D. Trainingschool 'Vices and Virtues of International Constitutionalism - European University Institute, Florence, Italy
    Duration: 20 Oct 201122 Oct 2011

    Conference

    ConferencePh.D. Trainingschool 'Vices and Virtues of International Constitutionalism
    CityEuropean University Institute, Florence, Italy
    Period20/10/1122/10/11

    Research programs

    • SAI 2010-01-I RRL sub 1

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