Abstract
The common law of the good government has a long history in Europe. It may even be described as a core element of European and, by extension, Western civilization. As such, it also became a constitutive part of the civilization standard that was universalized qua international law in the 19th Century and spread as a part of the latter’s “civilizing mission” to the “rest” of the world. After that, the good government standard was included into the international law of statehood applicable to all States since 1945. It is in the shape of general positive duties of States under international human rights law that the minimal common content of the standard or norm of good government has mostly been specified and consolidated.
Nowadays, however, not only have the terms “good” or “civilized” to qualify a State or government fallen into disrepute in international law, but the universal justification of the standard itself is in question. Regrettably, however, rather than attempting to remedy this, international lawyers have by and large avoided the issue. Instead of resorting to comparative law and working towards the identification of a common law of good government albeit on a truly universal scale this time, most international courts and other interpretive bodies have circumvented the question of the substance of the good government. In lieu, and under the influence of “new public management” methods in particular, they have resorted to ready-made and legalized procedural standards of so-called “good governance”, but also to non-legal, economic or technoscientific, standards or quantitative indicators of how States should be organized or, more exactly, administered. De facto, one may say that the standard of the “good” government or State has been replaced by that of a “developed” or “scientific” State.
The difficulty, however, is that, behind the surface, the universality of those new standards is as questionable as the more substantive ones originally drawn from European public law. More importantly, this retreat from substantive legal reasoning reveals the weakness of international “public” law at a time when international institutions are facing an unprecedented political legitimacy crisis.
To reverse the movement, I propose to explore, in this presentation, what the good government standard could and should mean in international law today. My focus will be not so much on States, although things are related of course, but on the other and newer public institutions now centrally involved in international law-making: international organizations. There is indeed no, or very little, minimal public law internal or common to those organizations (outside the European Union), despite (or maybe, arguably, because of) their institutional continuity with States. At the moment, those organizations are merely expected (and not required under international law) to give evidence of “compliance” with good “governance” (as opposed to “government”) standards and are held “accountable” (as opposed to “responsible”) for it to their “stakeholders” (as opposed to constituents or citizens), for instance through various “audits” and other internal efficiency assessment mechanisms. My central argument will pertain to the alleged “publicness” of those organizations of international law, and to what such a claim implies not only in legal, but also, and most importantly, in institutional terms.
About the speaker
Samantha Besson holds the Chair “Droit international des institutions” at the Collège de France in Paris and is Part-Time Professor of Public International Law and European Law at the University of Fribourg (Switzerland). A dual Swiss/British national, she was educated in Switzerland (Fribourg & Bern), Austria (Vienna), the United Kingdom (Oxford) and the United States (Columbia). She was a Visiting Professor at the Universities of Zurich, Lausanne and Lisbon and at Duke, Harvard and Penn Law Schools and a Research Fellow at the Wissenschaftskolleg zu Berlin. She is a member of the Board of the Swiss Academy of Humanities and Social Sciences and was the first Human Rights Delegate of the Swiss Academies of Arts and Sciences. She taught in various capacities for the Hague Academy of International Law and is the co-chair of the ILA Study Group on the International Law of Regional Organizations.
Samantha Besson’s research interests lie at the intersection of general international law, European Union institutional law and legal philosophy. Her latest monographs are La due diligence en droit international, Collected Courses of the Hague Academy of International Law, Vol. 409, Leiden/Boston: Brill Nijhoff 2020 and Reconstruire l’ordre institutionnel international, Leçons inaugurales du Collège de France, Paris: Fayard/Collège de France 2021.
The lecture is part of a series of public lectures organized by the research project GOODPOL, hosted by the Centre for Advanced Study at the Norwegian Academy of Science and Letters, in order to mark the end of its first year of activities. The lecture series is organized with the assistance of the Norwegian Centre for Human Rights, University of Oslo.
Sign up for the webinar here (cas.oslo.no)