5. Institutions Involved

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

36 Birnie and Boyle 2002, 10. 37 Taylor Saito 1998. 38 Shen 2000. 39 Limpitlaw 2001. 40 Giraud-Kinley 1999. 41 Max Planck Encyclopedia of Public International Law (MPEPIL) online edition, edited by Rüdiger Wolfrum.

has a stronger effect on a legal norm than it does in national law, thus including ‘administrative law’.

These three meanings of the principle of effectiveness have to be explained in more detail to get a better understanding of the content of the principle of effectiveness on the international level. This includes effectiveness as an actual observance, as a rule for treaty interpretation, and as a factual effect of legal norms.

(b) Effectiveness as an actual observance There is a special legal situation in the context of international law which is relevant in relation to the first meaning of the principle of effectiveness. Unlike national administrative law, the international legal order has no central organ that is empowered to apply and enforce law. Such functions are entrusted to the concerned states. Consequently, in the international legal order, the subjects of international law must rely on means of self-enforcement to protect and enforce their own individual rights. In the book Principles of International Law, the first meaning of the principle of effectiveness is seen in the framework of the essential function of international law: the determination of the spheres of validity of the national legal orders as to the legal existence of the state by the international legal order.42

(c) Effectiveness as a rule for treaty interpretation The second meaning of the principle of effectiveness has been developed in the context of international courts in relation to specific ‘interpretative’ articles in the Vienna Convention. Rietiker has recently examined the principle of effectiveness in the jurisprudence of the European Court of Human Rights. He writes of how, in an evergrowing fragmentation of international legal systems, lawyers discuss the same legal question in different fora.43

(d) Effectiveness having a strong factual effect on a legal norm With regard to the third meaning, one must ask: which legal phenomena are to be taken as examples? Opinions vary on this matter, and two extreme lines appear.44 At one extreme, effectiveness is held to refer to all phenomena in which the factual situation affects the legal norm. Effectiveness, from this perspective, is how some writers refer to the phenomenon whereby superpowers have a decisive impact on the establishment of international law, or to the phenomenon where new rules of international law may be formed rapidly by a sudden change of social reality. In truth, the issues addressed (such as the impact of the power relations among states or actual demands in society, on the establishment of international law) really belong to sociology. At the other extreme, many writers construe effectiveness so narrowly as to confine it only to cases where a factual situation corresponding to legal status and legal rights exists. This makes it clear that at the international level the third meaning of the principle of effectiveness includes an argument of factual existence that both proves legal authority and demands legal recognition.

42 Kelsen and Tucker 1967, 420–33. 43 Rietiker 2010. 44 Tucker 1953.

(e) International law Given that the international community has negotiated countless treaties over the last several decades, one would imagine that it would have a clear conception of what constitutes effective international law. But despite its frequent use and the numerous studies that have dealt with the topic, there remains a poor understanding of effectiveness in international law. Just a few of the references to effectiveness in international law demonstrate the wide variety of definitions and understanding of the concept.45

Traditionally, under international law, the principle of effectiveness was employed as a precondition for establishing rights.46 A right was granted if the effectiveness principle could first be proven. The traditional principle of effectiveness focused more on the form and power of treaties rather than on their design or impact.47 The reality of the effectiveness of treaties is quite contrary; design and impact are critical to a treaty’s effectiveness. In the literature, several legal models of effectiveness48 have been developed, such as: (1) rule-based positivist models; (2) social legal models; (3) other legal models; and (4) international relations model. But there is a need for redefining legal approaches to effectiveness in which the following aspects have been developed: (a) resolving measurement perimeters; (b) compliance still matters; (c) robustness as a determinant of legal effectiveness; (d) a treaty’s supporting provisions; (e) external international legal environment; and (f) financing.

The conclusion is that there are various conceptions of the effectiveness of international treaties and that the positivistic notion of legal effectiveness is an overly narrow approach. In the first place, such an approach does not take into account why states behave as they do. This approach also does not take into account modern studies done through legal scholarship that view law as a process instead of a body of neutral rules to be complied with. Studies from the area of social science have taken a broad approach to studying effectiveness, from the standpoint of regimes. Finally, there is a theory that looks to the various components of the treaty itself and argues that there are three critical elements to the measurement of legal effectiveness: (1) performance data compared with its objectives; (2) why states comply with international rules without the enforceability of strong sanctions in the treaty; and (3) review treaties through scientific mechanisms.

In the decisions of international tribunals, the doctrine of restrictive interpretation of treaties, which limits the sovereignty of states, has been no more than just words. The principle of effectiveness has played a prominent and ever-growing part in the administration of international law. The principle of effectiveness in the interpretation of treaties appears in national and international jurisprudence in various forms. In the United States it has been repeatedly invoked and acted upon by the Supreme Court in the form of that Court’s theory of liberal interpretation. In English jurisprudence and practice, the term ‘liberal interpretation’ seems to have been used in a somewhat wider sense as connoting generous rather than pedantic interpretation. International jurisprudence—and particularly that of the Permanent Court of International Justice as well as its successor—has constantly acted upon the principle of effectiveness as the governing canon of interpretation.49

45 Chambers 2004. 46 Döhring 1984. 47 Kelsen 2009. 48 Chambers 2004. 49 Lauterpacht 1949, 48.

(f) European Union law The development of the principle of effectiveness is somewhat different from the other general principles of EU law. It is not directly based on the laws of the member states, but derives its distinct character from EU law, by means of the concept of primacy and direct effect. This makes it the development of a real EU-law principle.50 The proper functioning of the European Union is predicated on the effective and coherent implementation of its rules. Apart from substantive provisions, the national procedural framework is also essential for the effectiveness of EU law. This is because the substantive legal regime greatly depends on the national procedural and institutional framework to develop its full effect.51 Therefore, rules governing the procedural framework are only minimum standards or obligations for the member states. Through the Aarhus Regulation, the procedural framework is not only developed at the national level, but also at the EU level.

We have to be cautious when it comes to the relation between the principle of effectiveness and other general principles of EU law. There is not always a clear difference between the different types of principles. Sometimes principles partly overlap or have a more or less fundamental or general character. The principle of effectiveness is sometimes seen as a background principle, which plays a role in EU administrative law, especially in the framework of the tools of review and compensation in order to hold the administration to account.52 The principle of effectiveness underlies a series of developments in the sphere of judicial protection and has been recognized as a general principle of EU law by the ECJ and its predecessor.53 The origins of the principle of effectiveness lie in the interpretative techniques of the ECJ, which favoured a liberal construction of Treaty provisions so as to ensure the direct effect of directives. Gradually, the Court has placed more emphasis on the affinity of the principle to the fundamental right of judicial protection as guaranteed by articles 6 and 13 ECHR and which is also laid down in article 47 of the EU Charter. In the Charter, we find the right to effective remedy and the right to a fair trial.

A central problem for effective implementation of European legislation is the impact of national administrative traditions, since the formal and practical transformation of the EU law rests mainly at the national level.54 The implementation of effectiveness depends on the ‘institutional scope’ of European adaptation pressure, which is effected by European requirements and the embedding of the respective administrative traditions and national capacities for administrative reform. According to the degrees of adaptation pressure, different paths can be distinguished, for which more or less effective implementation is suggested.55 In cases of high adaptation pressure, implementation is likely to be ineffective since European policies require fundamental institutional changes which cannot be achieved by adaptations following the ‘logic of appropriateness’. In cases of low adaptation pressure, it is assumed that effective implementation is a result of the full compatibility of European requirements and existing national arrangements. In cases of moderate adaptation pressure, where European legislation requires adaptations that remain within the national scope of appropriateness, we find that institutional factors provide no sufficient explanation for the varied implementation results observed in the case studies. 56

50 Tridimas 2006, Ch 9: The Principle of Effectiveness, 418–76, more specific at 418. 51 Craig and De Búrca 2007. 52 Craig 2006, 277. 53 Tridimas 2006. 54 van den Broek 2015. 55 Knill 1998, 1. 56 Ibid, 25.