Abstract
This chapter sets out to review shortcomings of accountability and legitimacy in civil society actors operating at the supranational level, and to discuss the extent to which coalitions of such actors may be considered as a remedy to these problems. In order to do so, this chapter defines the concept of accountability by pointing at its diverse aspects, and makes a distinction between two forms of accountability, namely: functional and strategic. This chapter describes how supranational coalitions of civil society actors attempt to be perceived as functionally and strategically accountable, e.g. by limiting the exposure to donors’ influence, or by introducing self-monitoring mechanisms. The second part of this chapter discusses the issue of legitimacy. This chapter attempts to counter the opinion that the (presumed) illegitimacy of supranational regulators is due to the absence of democratic mandate by global civil society. In this respect, this chapter briefly introduces the “Global Reflexive Interactive Democracy” (GRID) model to understand how it may anticipate the role played by the supranational coalitions of civil society actors in supporting the legitimacy of supranational regulators. The conclusive remarks of this chapter recollect the issues that are left unresolved by the attempts to enhance accountability and legitimacy through cooperation between supranational regulators and the supranational coalitions of civil society actors. It is explained that the latter thus far provide the best, and perhaps the only, answer to the problems of accountability and legitimacy of the former.
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Notes
- 1.
See also, from the same author, “Cooption and Resistance: Two Faces of Global Administrative Law” (2005) IILJ Working Paper 16, available at www.iilj.org. On imperialism and international law See E. Jouannet, “Universalism and Imperialism: The True-False Paradox of International Law?” (2007) 3 European Journal of International Law 379. More generally on the problem of accountability in IOs See J.M. Coicaud, V. Heiskanen (eds.), The Legitimacy of International Organizations (New York, United Nations University Press, 2001); R. Mulgan, Holding Power to Account, Accountability in Modern Democracies (London, Palgrave Publisher, 2003); C. Harlow, R. Rawlings, “Promoting Accountability in Multi-level Governance: A Network Approach” (2007) 4 European Law Journal 542; K. Heede, “Enhancing the Accountability of Community Institutions and Bodies: The Role of the European Ombudsman” (1994) 4 European Public Law 587.
- 2.
See World Bank , Civil Society-Backgrounds (Washington D.C., 2009).
- 3.
Following pressure from environmental organizations, in 1987 the WB reorganized its internal structure: a central environmental department was created, and each of the four regional offices of the WB was sided by an environmental unit. In 1992 the WB added a central vice presidency for environmentally sustainable development, and in 1993 created the IP. See A. Fox, L.D. Brown (eds.), The Struggle for Accountability: The World Bank, NGOs, and Grassroots Movements (Cambridge MA, MIT Press, 1998); C. Caufield, Masters of Illusion: The World Bank and the Poverty of Nations (New York, Henry Holt & Co, 1997); F.R. Mikesell, L. Williams (eds.), International Banks and the Environment: From Growth to Sustainability, an Unfinished Agenda (San Francisco, Sierra Club Books, 1992). More generally, on global institutions and democracy See J.S. Nye, “Globalization’s Democratic Deficit. How to Make International Institutions More Accountable” (2001) 8 Foreign Affairs 1; T. Franck, Fairness in International Law and Institutions (Oxford, Oxford University Press, 1994).
- 4.
As an example, one may regard the new “adaptive governance” developed by the WTO in certain areas. Adaptive governance responds as far as possible to the values, interests, and concerns of all stakeholders in order to produce better outcomes. See R. Cooney, A.T.G. Lang, “Taking Uncertainty Seriously: Adaptive Governance and International Trade” (2007) 3 European Journal of International Law 523; S.C. Schreck, The Role of Non-governmental Organizations see chapter 4 n 2. More generally on NGOs and WTO See A.L. Perrotti, “ WTO Relations with Non-State Actors: Captive to Its Own Web?” (2006) 6 Global Jurist Advances article 3; R. Buchanan, “Perpetual Peace or Perpetual Process: Global Civil Society and cosmopolitan Legality at the World Trade Organization” (2003) 16 Leiden Journal of International Law 673; R.B. Stewart, M. Ratton Sanchez, “The World Trade Organization and Global Administrative Law” (2009) IILJ Working Paper 7, available at www.iilj.org. The evolution of the debate on non-state actors participation found explicit acknowledgement in the 2007 World Trade Report (available at: www.wto.org/english/res_e/booksp_e/anrep_e/world_trade_report07_e.pdf). The report recognizes that a more constructive relationship based on mutual cooperation on substantive issues has replaced the previous one-dimensional approach.
- 5.
The Global Compact aimed at tackling contentious issues such as the protection of the environment, and the protection of human and workers’ rights. Albeit designed as a voluntary initiative, the Global Compact invited subscribing companies to make a clear statement of support towards its principles and to publish it on its websites. Failure to comply with such requests within 2 years of becoming a signatory to the Compact resulted in removal from the list of participants. See generally www.unglobalcompact.org.
- 6.
See Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance (1995). For commentary on the report See R. Falk, “Liberalism at the Global Level: The Last of the Independent Commissions” (1995) 24 Millennium 563. For more general thoughts about the Global compact and its predecessor, the “Millenium Report”, See J.D. Aston, “The United Nations Committee on Non-governmental Organizations: Guarding the Entrance to a Politically divided House” (2001) 5 European Journal of International Law 943. More generally on NGOs’ involvement in the UN system See T.G. Weiss, L. Gordenker (eds.), NGOs the UN, and Global governance, see chapter 2 at section 2.3; D. Otto, “Non-governmental Organizations in the United Nations System: The Emerging Role of International Civil Society” (1996) 18 Human Rights Quarterly 107.
- 7.
See, for instance, the Commission Communication SEC 92 2272 def. (1992), titling “An Open Structured Dialogue between the Commission and Special Interest Groups; the Commission Discussion Paper COM (2000) 11 Final, titling “The Commission and Non-Governmental Organisations, Building Stronger Partnerships”, the Commission Communication COM (2002) 704 Final, titling “Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission”, and the Commission White Paper COM (2001) 428, titling “European Governance: A White Paper”. For general discourse on non-governmental participation in European governance See I. de Jesus Butler, “Non-governmental Organisation Participation in the EU Law-making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council” (2008) 5 European Law Journal 558; S. Mazey, J. Richardson, Lobbying in the European Community (Oxford, Oxford University Press, 1993); R. Geyer, “Can European Union (EU) Social NGOs Co-operate to Promote EU Social Policy ?” (2001) 30 Journal of Social Policy 477; M. Cowles, “Non-State Actors and False Dichotomies: Reviewing IR/IPE Approaches to European Integration” (2003) 10 Journal of European Public Policy 102; R. Bennett, “ Business Routes of Influence in Brussels: Exploring the Choice of Direct Representation” (1990) 47 Political Studies 240. For academic debate on democracy and the EU See A.G. Menéndez, “The European Democratic Challenge: The forging of a Supranational Volonté Générale” (2009) 15 European Law Journal 277; C. Scott, “Governing Without Law or Governing Without Government? New-ish Governance and the Legitimacy of the EU” (2009) 15 European Law Journal 160; A. Reale, “Representation of Interests, Participatory Democracy and Law-making in the European Union: Which Role and Which Rules for the Social Partners?” (2003) Jean Monnet Working Paper 15, available at www.centers.law.nyu.edu/jeanmonnet; K.A. Armstrong, “Civil Society and the White Paper – Bridging or Jumping the Gaps?” (2001) Jean Monnet Working Paper 6, available at www.centers.law.nyu.edu/jeanmonnet. On problems related to civil society participation in European decision-making processes See R. Bellamy, “Still in Deficit: Rights, Regulation and Democracy in the EU” (2006) 6 European Law Journal 725; G. Majone, “Europe ’s Democratic Deficit: The Question of Standards” (1998) 4 European Law Journal 5; A. Moravcsik, In Defence of the “Democratic Deficit”, see chapter 1 at section 7.2.
- 8.
Exemplary is the case of the NGO Steering Committee of the UN Commission on Sustainable Development. The Committee created an elaborate self-regulatory framework for promoting civil society involvement in UN work on environment and development. The process, however, become increasingly burdensome and collapsed in 2001.
- 9.
See also R. Dahl, Can International Organizations be Democratic, see chapter 1 at section 7.3; E.B. Bluemel, “Overcoming NGO Accountability Concerns in International Governance” (2005–2006) 31 Brooklyn Journal of International Law 139. A. Ebrahim, E. Weisband (eds.), Global Accountabilities: Participation, Pluralism, and Public Ethics (Cambridge, Cambridge University Press, 2007). Alnoor Ebrahim criticizes the “audit model” culture of accountability and favours a system of reflective accountability. This, according to Ebrahim, should focus on organization’s mission and capacity to respond to the needs of communities.
- 10.
There is vast literature on the accountability problem in civil society actors. See M. Edwards, D. Hulme, Beyond the Magic Bullet: NGO Performance and Accountability in the Post-Cold War World (London, Kumarian Press, 1996); A. Fowler, Striking a Balance: A Guide to Enhancing the Effectiveness of Non-Governmental Organisations in International Development (London, Routledge, 1997); D. Lewis, The Management of Non-Governmental Development Organisations: An Introduction (London, Routledge, 2001); L. Jordan, P. Van Tuijl, NGO Accountability: Politics, Principles & Innovations (London, Routledge, 2006); M. Kaldor, “Civil Society and Accountability” (2003) 4 Journal of Human Development 5; R.E. Goodin, “ Democratic Accountability: The Third Sector and All” (2003) John F. Kennedy School of Government, Working Paper no. 19. On the concept of accountability in global governance See P.B. Stephan, “The New International Law-Legitimacy, Accountability, Authority, and Freedom in the New Global Legal Order” (1999) 70 University of Colorado Law Review 1555; J. McGann, M. Johnstone, “The Power Shift and the NGO Credibility Crisis” (2004–2005) 11 Brown Journal of World Affairs 159; K. Anderson, “The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organisations and the Idea of International Civil Society” (2000) 11 European Journal of International Law 91; P. Kilby, “Non-governmental Organizations and Accountability in an Era of Global Anxiety” (2004) 5 Seton Hall Journal of Diplomacy and International Relations 67; R.C. Blitt, “Who Will Watch the Watchdogs? Human Rights Non-governmental Organizations and the Case for Regulation” (2007) 5 International Journal of Civil Society Law 8. For discourse on indicators for measuring NGOs, IOs and governments’ policies See D.H. Lempert, “A Dependency in Development Indicator for NGOs and International Organizations” (2009) 9 Global Jurist Advances article 6.
- 11.
See R. Baldwin, M. Cave, Understanding Regulation: Theory, Strategy, and Practice (Oxford, Oxford University Press, 1999). The authors explicate accountability by presenting five key principles to sound regulation. These are: a legislator acting under a sufficient mandate; the acknowledgement of participatory rights to the affected parties; the possession of sufficient technical knowledge by the decision-maker; the presence of a flexible regulatory framework that allows a flexible response on certain issues, and thus permit to allocate efficiency; and, of course, accountability towards the community. See also A. Buchanan, R.O. Keohane, “The Legitimacy of Global Governance Institutions” (2006) 20 Ethics & International Affairs 405. Keohane and Buchanan distinguish between a narrow and a broad accountability. While narrow means that accountability is considered only in its formal context, broad accountability encompasses those who presently receive the accounts, such as states, and those who might wish to contest accountability, such as NGOs and populations. Narrow accountability does not ensure meaningful participation by those affected by IOs’ rules or due consideration of their legitimate interests. Broad accountability, on the contrary, contains effective provisions for holding institutional agents accountable. The difference between the two forms of accountability described by Buchanan and Keohane can be tested against the concept of transparency. If transparency means merely the availability of accurate information about how IOs work, it is insufficient even for narrow accountability. The ends of narrow accountability is served by transparency only when information about how IOs operate are accessible at reasonable cost, properly integrated and interpreted, directed to the accountability-holders, and the latter are adequately motivated to use it properly in evaluating the performance of the relevant institutional agents. Yet, broad accountability is present only in the moment in which the IO sets institutional practices and normative principles that can be revised in the light of critical reflection and discussion with actors in transnational civil society.
- 12.
See D. Curtin, A. Nollkaemper, “Conceptualizing Accountability in International and European Law” (2005) 36 Netherlands Yearbook of International Law 3. The two authors draw from existing literature on the theme by pointing at retrospective accountability (accountability as giving account) and, on the other side, prospective accountability (accountability as holding to account). The former is the act of disclosing information and justifying behaviour. The latter, in addition to the disclosure of information and the justification of behaviour, also requires the establishment of a mechanism by which account can be rendered. In Curtin’s and Nollkaemper’s opinion, current accountability must be measured against multi-levelled systems of governance. The discussion on accountability in the EU, for instance, may be inspiration for the emerging debate on accountability in the international legal order.
- 13.
See R.W. Grant, R.O. Kehoane, “Accountability and Abuses of Power in World Politics” (2005) 2 American Political Science Review 1. The authors distinguish between two models of accountability: participation and delegation. In the participation mode, people with power ought to be accountable to those who are affected by their decisions. In the delegation model, people with power ought to be accountable to those who have entrusted them with it. Most importantly, Grant and Keohane seek to develop a concept of accountability at the global level that is capable of overcoming the limitations deriving from a conception based on domestic models. Global accountability, in their reasoning, includes forms of hierarchical, supervisory, and legal accountability, backed by pressures from markets and from peers, by financial controls, and by public reputational dynamics. Global accountability, Grant and Keohane posit, can also be applied to private actors (NGOs or firms, to make an example).
- 14.
Both the 2004 “Accountability of International Organisations” Report from the International Law’s Association (See International Law Association, Berlin Conference – 2004): Accountability of International Organisations, available at www.ila-hq.org/en/committees/index.cfm/cid/9) and the Global Accountability Project (GAP) of the One World Trust look towards a more expansive view of accountability. The latter in particular was the first initiative aimed at measuring and comparing the accountability of 30 transnational actors from the intergovernmental, the non-governmental and the corporate sectors. The GAP defines accountability as a process “through which an organisation makes a commitment to respond and balance the needs of stakeholders in its decision-making processes and activities, and delivers against this commitment”. A definition that emphasises the need to balance among different accountability claims from both internal and external stakeholders. The GAP identifies four dimensions for accountability: transparency, i.e. the provision of accessible and timely information to stakeholders; participation, i.e. the active engagement of stakeholders (internal and external) in the decisions that affect them; evaluation, i.e. the monitoring and review of the organization’s goals and objectives; and complaint, i.e. the opportunity for stakeholders to file complaints on the organization’s decisions and actions. See also D.H. Rached, “Doomed Aspiration of Pure Instrumentality: Global Administrative Law and Accountability” (2014) 3 Global constitutionalism 338.
- 15.
See State of the Evaluation, available at www.innonet.org/resources/files/innonet-state-of-evaluation-2012.pdf.
- 16.
See Haiti: Where did the Money Go? Available at www.filmat11.tv/projects/haiti-where-did-the-money-go/.
- 17.
See the report from WeGov and The Engine Room, “Measuring Impact On-The-Go”, available at www.theengineroom.org/wp-content/uploads/engnroom_monitoringguide_finalmay14.pdf.
- 18.
See more generally B. Yontcheva, “Hierarchy and Authority in a Dynamic Perspective: A Model Applied to Donor Financing NGO Proposals” (2003) IMF Working Paper n. WP/03/157.
- 19.
See generally www.alnap.org.
- 20.
- 21.
- 22.
- 23.
See M. Kaiser, National Forest Programmes and Environmental Non-Governmental Organisations: Participatory Overkill or Real Opportunity for Strengthening Ecological Needs of Forest Related Policies, available at www.greenpeace.com.
- 24.
See A. Contu, E. Girei, “NGOs Management and the value of “partnership” for equality in international development: What’s in a name?” (2014) 67 Human Relations 216. Contu and Girei illustrate the relationship between NNGOs and SNGOs in terms of imposition and influence. Imposition means that NNGOs have more experience and more technical means than its Southern partners, which puts it in a superior, even though non-hierarchical, position. Influence, in turn, means that NNGOs influence and redesign the Southern partners projects in order to fit with what the donor’s priorities are or what the funding market needs. Other authors have described the civil society North-South divide through the lens of IOs. Phillip Jones and David Coleman for instance, observed how the replacement of the NGO-WB Committee with the WB-Civil Society Forum, has pitted northern and southern NGOs against one another, and ultimately reduced the influence of civil society on WB’s policies. For further details See P.W. Jones, D. Coleman, The United Nations and Education: Multilateralism, Development and Globalisation (Abingdon, Routledge, 2005).
- 25.
See C. Mahoney, J. Beckstrand, Following the Money: EU Funding of Civil Society Organizations, paper prepared for presentation at the 2009 Annual Meeting of the American Political Science Association in Toronto, 2009.
- 26.
These accountability standards have been theorized for single NGOs by R.O. Kehoane, J.S. Nye, “ Democracy, Accountability and Global Governance” (2001) Harvard University Politics Research Group Working Paper No. 01-4, available at www.ksg.harvard.edu/prg/nye/ggajune.pdf. See also R.O. Kehoane, J.S. Nye, Transnational Relations in World Politics, see chapter 1 at section 6.1.
- 27.
See S. Sapra, The WTO System of Trade Governance, see chapter 1 at section 6.3.
- 28.
Arthur Benz and Yannis Papadopoulos have pointed out that governance through networks is based on the acceptation of rules from its participant. See A. Benz, Y. Papadopoulos, “Is Network Governance Democratic? Different Assessments for the National and International Level” (2003) Centre for Democratic Governance Working Paper available at www.demnetgov.ruc.dk/conference/papers/HelsingoerAB-YPI.pdf.
- 29.
In terms of resignation, the Charter governing the coalition limits its validity to the fact that “all the obligations to CAN or to a (Regional) Node have been fulfilled”. This is meant to avoid the possibility that members could join and then operate in absolute freedom, against the goals of the coalition. Rules on expulsion are particularly interesting. To begin with, expulsion is provided when a member violates the Code of Conduct of the coalition. In order to finalize the expulsion, however, at least three members of CAN, or the National or Regional Nodes, have to apply for it to the Secretariat, indicating the motivations of the requested expulsion. The Secretariat transfers the request to the CAN board, which in turn appoint an Ethic Committee to hear the matter of expulsion. Not only must the Ethics Committee provide the member whose expulsion is in discussion the opportunity to be heard or to remedy any actions complained of in the application – and, to this extent, it has to determine the procedure to be followed based on the rules of natural justice and fairness – but, also, an expelled member may appeal to the CAN Board. In the event of an appeal, the CAN Board is convened to hear the appeal. As for the Ethics Committee, the CAN Board has to provide the respect of the principles of natural justice and fairness. Besides that, is not the CAN Board, but the General Assembly, to which the final decision is referred, that formally approve the expulsion. The procedure may seem a bit complicated and time-consuming. Yet, if seen from a different perspective, it also shows a strong commitment of the coalition to the basic principles of democratic governance.
- 30.
Scientific literature on legitimacy is vast. For a general discourse on legitimacy in international organizations See M. Suchman, “Managing Legitimacy: Strategic and Institutionals Approaches (1995) 20 Academy of Management Review 571.
- 31.
There is also an “ethical legitimacy”, i.e. a standard of moral rightness applied to make moral claims about law and the exercise of power. Indeed, all dimensions of legitimacy play a role in the context of GCS’ actors. Anne Peters mentions the case of a given NGO (See A. Peters, L. Koechlin, T. Forster, G Fenner Zinkernagel (eds.), Non-state Actors as Standard Setters, see chapter 3 n 18, chapter 4 n 11 and n 32, at 19. This may be socially legitimate because it enjoys popular support; it may be ethically legitimate because it commits to global values such as the protection of the environment; and, finally, it may possess a legal legitimacy because of it accredited status towards some IO.
- 32.
Ulrick Beck (See U. Beck, La società cosmopolita, Prospettive dell’epoca post-nazionale – Bologna, 2003) describes globalization as a social experience, where the territorial identity of societies fades and a new sense of cosmopolitanism emerges. By contrast, Saskia Sassen (See S. Sassen, Territory, Authority, Rights. From Medieval to Global Assemblages – Princeton, Princeton University Press, 2006); “The State and Globalization: Denationalized Participation” (2004) 25 Michigan Journal of International Law 1158) understands globalization mostly as a vehicle for de-nationalization. Thus, under the conceptual construct of Sassen, globalization signifies the departure from the traditional conception of legitimacy based on compliance with national laws and rules. On the contrary, Beck’s assumption is that globalization magnifies the process of achieving legitimacy because it relies on universalistic standards shared among regimes.
- 33.
On multi-level governance See, ex multis, B.G. Peters, “Governance: A Garbage Can Perspective”, in E. Grande, L.W. Paul (eds.), Complex Sovereignty: Reconstituting Political Authority in the Twenty-first Century (Toronto, University of Toronto Press, 2005), at 68; H. Yanacopulos, “Patterns of Governance: The Rise of Transnational Coalitions of NGOs” (2005) 19 Global Society 247. See also the 1995 Report of the Commission on Global Governance, available at www.libertymatters.org/chap1.htm. See also F.E. Johns, “Global Governance: An Heretical History Play” (2004) 4 Global Jurist Advances article 3. The author’s claim is that modern systems of governance might be compared and understood in confrontation with sixteenth century Venice. On post-modern governance See A. Negri, “Postmodern Global Governance and The Critical Legal Project” (2001) 1 Global Jurist Advances article 2.
- 34.
See A. Buchanan, R.O. Keohane, The Legitimacy of Global Governance Institutions, see text n 11, at 407.
- 35.
See also D. Bevilacqua, “La regolazione degli OGM. La multidimensionalità dei problemi e le soluzioni della democrazia amministrativa” (2007) 15 I frutti di Demetra 59.
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Sgueo, G. (2016). Cooperation Between Supranational Regulators and Interlocutory Coalitions. Issues of Accountability and Legitimacy. In: Beyond Networks - Interlocutory Coalitions, the European and Global Legal Orders. Studies in European Economic Law and Regulation, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-28875-8_5
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