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The Principle of Effectiveness
5. Institutions Involved All the government institutions are involved in the development of the principle of effectiveness. The legislator is involved because of the codification of the principle of effectiveness in, for example, the Financial Account Acts. Since norms can be found in such acts for the administration in relation to the development of the different types of audits, the effectiveness aspect has a place in the legal regime. In the controlling phase, the Court of Audit looks to the effectiveness aspects, especially in the frame of the policy audits. This can be seen as the traditional scope of effectiveness. However, there is more in international and European law where different institutions can have a task in relation to the effectiveness approach. We first give a short overview and then come to conclusions in relation to the institutions involved at different levels.
(a) Effectiveness in international law Effectiveness is a concept often referred to in international law literature. Birnie and Boyle write that effectiveness of different regulatory and enforcement techniques is largely determined by the nature of the problem.36 Saito is of the opinion that the effectiveness of international law rests on the recognition it receives from the governments of the world.37 From another perspective, it is said that the validity and effectiveness of international law depends on the continuing consent and support of nation states.38 The effectiveness of international law largely depends on the flexibility of the international law-making processes, as well as its ability to combine new concepts and techniques.39 There is a strong relation between the international and local level inferred in the statement that the effectiveness of international law as its capacity to be implemented at the international and national levels is ultimately measured according to its enforcement at the local level.40 In the Encyclopedia of Public International Law attention is paid to the substantial aspects of effectiveness in international law by Hiroshi Taki.41 He writes: The term ‘effectiveness’ has been used in international law since the mid-20th century, at times ambiguously, and with various meanings. Primarily, it refers to the efficacy (actual observance) of law as distinguished from the validity (binding force) of law. An example of this use of ‘effectiveness’ can be seen in the phrase ‘The principle that a legal order, as a whole, must be by and large effective in order to be valid is itself a norm,’ i.e. ‘a norm of positive international law, the principle of effectiveness prevailing within this law’. The principle of effectiveness is sometimes used to denote a rule for treaty interpretation. Beyond these meanings however, many writers in international law seem to use this principle to express the following state of affairs: a factual situation (reality) has a stronger and more widespread effect on a legal norm than it does in municipal law.
From this quotation, we can conclude the following three meanings of the principle of effectiveness in international law: (1) the efficacy of law as an actual observance; (2) to denote a rule for treaty interpretation; and (3) to express that a factual situation
37 38 Birnie and Boyle 2002, 10. Taylor Saito 1998. Shen 2000. 40 Limpitlaw 2001. Giraud-Kinley 1999. 41 Max Planck Encyclopedia of Public International Law (MPEPIL) online edition, edited by Rüdiger Wolfrum. 36 39
