5. Good Governance on the International Level

Public authorities shall have regard to efficiency, effectiveness and service orientation. Within European administrative procedures due respect must be given to the principles of subsidiarity, sincere cooperation, and clear allocation of responsibilities.

(c) ReNEUAL Model Rules on EU administrative procedure in six chapters The ReNEUAL Model Rules of administrative procedure are organized into six ‘books’. These books are designed to reinforce general principles of EU law and identify—on the basis of comparative research—best practices in different specific policies of the EU. Book I addresses the general scope of application of the model rules, their relation to sector-specific rules and the member state’s law, and the definitions of wordings applied in all the summary of principles, which guide administrative behaviour, and the interpretation of all subsequent norms in Books II to VI. The latter books cover more in-depth administrative procedures in the EU that have the potential to directly affect the interests and rights of individuals. The books address non-legislative implementation of EU law and policies by means of: rulemaking (Book II), single case decisionmaking (Book III), contracts (Book IV), and, very important for the composite nature of EU administration, procedures of mutual assistance (Book V), and information management (Book VI).

5. Good Governance on the International Level

The issue of good governance has for a long time been an important issue in the international forum. Two policy fields form the starting point of the discussion on good governance: development aid policy and financial policy. The UN is especially involved in the development aid policy and the IMF and World Bank are the leading international institutions in relation to countries’ financial policy.

National representatives negotiate agreements between countries, but it is the international organizations that have become more important. In the context of international law, we see the development of elements of international administrative law. Good governance is becoming more and more important for these international organizations. In the beginning, countries which received support from these international organizations had to fulfil these norms of good governance. Of course, it is important that these organizations also abided by the norms of good governance. Indeed, this gap was addressed.91 In the following, the role of several international organizations in the development of good governance is explained. International organizations are, for our purposes, the UN, the IMF, the World Bank,92 and the OECD.93

(a) International level, different policies On the international level, different policies of various international institutions are concerned with good governance. First, we outline the definitions of good governance on the international level. Second, we examine the practical content of these norms

91 Esty 2007. 92 World Bank 1997, 1–4. 93 OECD, Development Assistance Committee, Final Report of the ad hoc working group on participatory development and good governance, Paris 1997.

for the World Bank and the OECD. Third, we compare the national and regional approaches.

The discussion on good governance is not a typical European law discussion. In international law and national law, we find similar debates, but these discussions are not always recognized as good governance discussions because the terminology varies. All the same, comparable tendencies in the discussions on good governance are recognizable in three fields of law: administrative law, European law, and international law.

(b) Relevance of different definitions on international level In relation to the international law debate, we would like to reiterate that different definitions of good governance are used by different international institutions,94 although all work with the notion of good governance. An elaboration on this follows in the next section. This broad international discussion on good governance started at the end of the 1980s and it is still ongoing.95 It was—at least in the beginning—linked with development aid and the relations between more or less developed countries. Here, the principles of good governance act as an external field of normative reference, which is the primary function of these principles.

The character of the discussions often seems more political than legal, even though the legal aspect is of viable importance as to the actual activities of the administration. Further, the link with legal theory is then more easily made.96

So, we need to pay attention to the legal norms of good governance. The resulting question is, what is the content of the legal norms for the administration from the perspective of the legislator, the administration, the judiciary, and other controlling institutions? This is one of the central questions in administrative law. What can be found in the constitution and in other legislation, and which norms have been developed in the case law of the judiciary and other independent controlling institutions like the Ombudsman and the Court of Audit? Is the codification of such case law necessary? The developments in international law and European law and their consequences at the national level make it necessary to redefine the content of the principles of good governance, including proper administration.

(c) Definitions of good governance on the international level Here is a brief overview of definitions of good governance. Please note that these definitions are presented not chronologically, but rather substantially.

In 1997, the IMF published a paper on the role of the IMF and the Good Governance concept.97 It stated that good governance is important for countries at all stages of development. The IMF approach is to concentrate on those aspects of good governance that are most closely related to surveillance over macroeconomic policies—namely, transparency of government accounts, the effectiveness of public

94 UNDP, Governance for Sustainable Human Development. A UNDP policy document, United Nations Development Programme January 1997; UNCHR Resolution 1998/72; OECD Development Assistance Committee, Part I and Part II, Paris 1997; OECD, Governance in the 21st Century, Paris 2001; IMF, The IMF and Good Governance, 2002; and World Bank, Corruption and Good Governance, 1997. 95 Botchway 2000. 96 Réne Foqué who used the terms ‘General Principles of Good Global Governance’: see Foqué 1998, 39. 97 IMF 2018.

resource management, and the stability and transparency of the economic and regulatory environment for private sector activity.

In 1994, the UNDP gave their description of good governance.98 They stated that good governance covers mainly participation, transparency, and accountability and that it is effective, equitable, and promotes the rule of law. It ensures that political, social, and economic priorities are based on a broad consensus in society and that the voices of the poorest and the most vulnerable are heard just as well in decision-making process on the allocation of development resources.

In 1998 and 2005, the UNCHR wrote that good governance comprises of democracy, respect for human rights and fundamental freedoms, including the right to development, transparent and accountable governance in all sectors of society, as well as active participation by the civil society, as an essential part of the necessary foundations for the realization of social and people-centred sustainable development.99

In 1994 and 2000, the World Bank described good governance as predictable, open, and enlightened policymaking,100 a bureaucracy imbued with a professional ethos acting in furtherance of the public good, the rule of law, transparent processes, and a strong civil society participating in public affairs. Poor governance, on the other hand, is characterized by arbitrary policymaking, unaccountable bureaucracies, unenforced or unjust legal systems, the abuse of executive power, a civil society unengaged in public life, and widespread corruption.

The OECD’s Development Assistance Committee (DAC),101 concluded, that good governance is linked with participatory development, human rights, and democratization. They also identified the rule of law, public sector management, controlling corruption, and reducing excessive military expenditure as important dimensions of good governance.

(d) Good governance norms from international organizations to countries International financial organizations apply requirements of good governance mainly in relation to governments of developing countries. Why was it, from a legal perspective, difficult to introduce requirements of good governance to these countries? Ryngaert and Wouters contended that this was difficult because these financial organizations had only the promotion of financial or economic purposes written down in their statutes.102 The promotion of requirements of governance fell outside these purposes because governance is a non-economic, political element. So, the World Bank and the IMF could not put legal requirements on these countries. The solution was to define good governance in a way that it made a link with governance without being too politically outspoken: ‘good order that is necessary for a positive investment climate and the efficient allocation of resources’.103

How did these institutions nevertheless become an example of good governance in a more political sense? The definitions of several donor states in other international organizations were more to the point. The DAC and in practice the World Bank had elaborated more political assumptions. We can conclude that financial institutions set the standard for good governance because of the need to impose borrowing conditions

98 UNDP 1994. 99 UNHCHR 2007. 100 World Bank 1994. 101 OECD 1995. 102 Wouters and Ryngaert 2005, 72. 103 Ibid; Binda 2015, 3.

on governments. Subsequently, these norms have been taken out of their economic origin and put into more non-economic terms.

Wouters and Ryngaert104 conclude that the OECD is the most active organization in encouraging both member and non-member countries to implement good governance in all its aspects. The principles of good governance would transform not only the relationship between governments, citizens, and parliaments, but also the effective functioning of governments themselves. Wouters and Ryngaert listed these principles, since the OECD’s expertise and guidelines are generally acknowledged as objective, reliable, and useful for member and non-member countries. The following aspects of good governance are regarded by these authors as useful: respect for the rule of law; openness, transparency, and accountability to democratic institutions; fairness and equity in dealing with citizens, including mechanisms for consultation and participation; efficient and effective services; clear, transparent, and applicable laws and regulations; consistency and coherence in policy formation; and high standards of ethical behaviour.

In their conclusions, they showed that a number of international organizations have pushed through reforms aimed at enhancing good governance standards within their own organizations over the last years, especially in light of their long-standing secrecy. A need exists for a continuous dialogue with the civil society (citizens, companies, NGOs) which still criticizes the process. But these international organizations are blind to the efforts towards participation and transparency, especially in the case of international financial institutions. Pervasive corruption and chronic mismanagement are often targets of thorough good governance reforms and UNESCO is a good example. International organizations have already come a long way in the areas of good management and public transparency. As far as participatory governance is concerned, much remains to be done.

(e) International organizations: internal effect of good governance Apart from applying the concept of good governance to governments of countries, international organizations apply this concept to their own organizations as well. How do the World Bank and the IMF try to meet requirements of good governance in relation to their own organizations? Both have recently created agencies and procedures to enhance horizontal accountability. Accountability was formerly applied only by means of an executive board. Such a board of executive directors represent a group of countries, though the most influential have their own director. In practice, most decisions were not really made by the board, but by the staff and senior management in cooperation with the most influential countries. Nowadays, these boards frequently apply the principles of good governance.

The IMF has created an Office for Independent Evaluation, and the World Bank has constituted an Inspection Panel in order to consider complaints on alleged detriments caused by the Bank’s failure to follow its own policies or procedures. They have stimulated a closer collaboration with NGOs. A considerable point of critique is that some NGOs influence the executive board more by means of lobbying than some small countries. The board should control the work of their staff more intensively by developing a transparent set of rules and an open process concerning the appointment of the head of organization.

104 Wouters and Ryngaert 2005, 76.

(f) A modern view on principles of international law and good governance The concept of good governance has grown into the system of international law as a consequence of developments in both international law and national legal systems.105 This concept has clear links with the concepts of the rule of law and democracy.106 And in these concepts links are also made with good governance.107 At the grassroots of international law, good governance has been accepted as a principle of law in national legal systems first, and from there in regional institutions as well. Important to mention is that although the concept is not related to a few policy fields, neither is it implemented in all policy fields. Sometimes this concept is included in general regulations but most of the time only some aspects of good governance are actually included in the law and in practice these principles are developed by administrative authorities and the judiciary. So, their function as a norm for the administrative authorities and the judiciary uses elements of the principle in its review. The concept is applied as such and in different policy fields and made concrete in different types of norms. In policy papers this notion can be found, but in different types of directives and regulations the concept is worked out at the EU level. Other regional (economic) organizations are frequently working with this concept. Notably, at the EU level a right to good administration has been elaborated and concretely applied in judicial procedures. Lastly, at the EU level it is not only about one or two policy fields as it has been used in several policy fields by both administrative authorities and judiciary.

At the international level, the concept of good governance has been accepted and further developed in different treaties related to economic and environmental issues. Both courts and dispute settlement institutions have applied the principle of good governance.

The question then relates to the two approaches—narrow and broader—of principles of international law. From the narrow scope, four conditions are linked to general principles of international law: (a) the principle must be general; (b) the principle, which is a norm, can be neither a rule nor a general practice accepted as law; (c) chronologically, it must have already been recognized; and (d) this recognition is attributed to civilized nations.

In describing these conditions related to the principles of good governance, the following aspects are relevant. We speak about general principles of good governance because these principles are not restrictive to one or two policy fields; these principles are applied in the broader framework of the administrative authorities and the judiciary. These principles are norms, legal norms in the sense that although sometimes elements have indeed been codified into the law, in other situation these still represent unwritten norms. These principles are recognized in a broad sense, so that this condition has been fulfilled. Finally, these principles are accepted by civilized nations. Therefore, from the broader perspective, and keeping in mind the different functions of principles, the principles of good governance should be recognized as principles of international law.

In international law, we see a growing interaction between the sources of national and international law in both the instrumental as well as the protection aspects of international law: the principle(s) of good governance have been discovered. As a consequence of internationalization and globalization, the importance of the principles of international law has increased; the principles of international law are in transition.

105 Addink 2015c, 288–303. 106 See Chapters 5 and 6. 107 Zum, Nollkaemper, and Peerenboom 2014; Orellana 2009, 671–94.