The Concept of Effectiveness
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international law in general and in particular of the obligations undertaken by parties to treaties, declining to have obligations negative by strained interpretation and holding that the maximum of effectiveness should be given to an instrument creating an obligation consistently with the intention of parties.
In both definitions, the focus is on two general meanings of effectiveness: namely the qualities or the ability to produce the desired effects. It can be used either to dictate that the facts adhere to the law (if it operates as a governing principle) or that the new law and legal status adapt the facts (if it operates as an assessment of the factual reality). Both sides of the principle are relevant in the framework of international law, European law, and national administrative law, and are ways of applying in concrete situations the legal concept of the principle of effectiveness. The effectiveness aspects have been developed in the social science fields as well and from which we can learn the effectiveness of law—if not just ‘obedience to a command’—from a variety of mechanisms. Sociology uses various methods of empirical investigation and critical analysis to develop and refine a body of knowledge about human social activity. It is often conducted with the goal of applying such knowledge to the pursuit of social welfare in which the subject matters can range from micro to macro level. For example, in education, sociologists are using effective sociology assessment plans developed by mission statements, learning goals and objectives, and assessment mechanisms. In economics, the terms ‘effectiveness’ and ‘efficiency’ are mostly discussed in the context of the public sector.11 It is important that the public sector provides the services required in the most effective and efficient way possible, which means the highest quality service at the least possible cost. In public administration, where the term ‘effectiveness’ is used, the predominant concept in economics is efficiency. With regard to the public sector, this means reaching a policy goal at minimum costs. One major concept of efficiency in economics is the Pareto criterion for allocative efficiency, which defines a situation as efficient when nobody can be made better off without making anybody else worse off. Other concepts, which are not relevant for our study here, are technical efficiency, productive efficiency, and dynamic efficiency, just to mention some.
3. The Concept of Effectiveness We first explore the general aspects of legal effectiveness and then this principle as a principle of good governance. For a long time, effectiveness was not seen as a legal norm and therefore, at the national level, lawyers were not really interested in the discussion about the contents of the principle of effectiveness. However, in international law and especially in EU law we often speak about the concept of effectiveness or the principle of effectiveness. This principle is also seen in the context of, or as one of, the principles of good governance. Moreover, in EU law there have been strong developments on the good governance principles in different EU institutions. These norms, including the norm of effectiveness, are often seen as parameters for administrative actions, not only at the European level but also at the international level and, due to spill over, also at the national level. These developments will be presented below. There are also examples outside of the EU. For example, within the United States, effectiveness is treated much like accountability. There are many agencies and institutions that audit 11
Mulreany 1991, 7–36.
