Administrative Law

Global Administrative Law as “Enabling Law”:
How to Monitor and Evaluate
Indicator-Based Performance
of Global Actors

GEORGIOS DIMITROPOULOS
European Public Law Organisation;
Dr. iur. (University of Heidelberg), LL.M. (Heidelberg)

IRPA Working Paper – GAL Series No. 7/2012

                                                                                                              Georgios Dimitropoulos

 
Abstract:The piece explores the relationship between indicators and their framework and identifies the evolution of a “global regulatory system for indicators”. This is a plural system and is part of a broader change in contemporary global governance and administration, which is also signified by the use of indicators. Drawing on examples from the IMF/EU adjustment programmes, the NEPAD African Peer Review Mechanism of the African Union and the evaluation of the EU Common Agricultural Policy by the OECD, it shows that authority in the global legal order is exercised in a non-hierarchical way. Against this background, the final aim of this paper is to show that the best way to monitor performance of rule-implementation based on indicators is the peer review system and other forms of horizontal monitoring.
Keywords: indicators, monitoring, evaluation, IMF, African Union, NEPAD, experimentalism, horizontal governance, peer review

 

 Georgios Dimitropoulos earned his Ph.D. in Law summa cum laude at the University of Heidelberg, Germany, in 2011. He holds an LL.M. from the same University and an LL.B. from the University of Athens, Greece. During 2011-2012 he was a Hauser Research Scholar at New York University (NYU) School of Law, working on a project on “Peer Reviews in Global and European Governance”.
Many thanks to Edoardo Chiti, Kevin Davis, Gráinne de Búrca, Angelina Fisher and Mélanie Samson for comments and discussions on this and similar topics.
A previous version of this paper was presented at the 8th Viterbo Global Administrative Law Seminar “Indicators in Global Governance: Legal Dimensions”, held in Rome (Italy), at the Aspen Institute Italia, on June 14-15, 2012

 Georgios Dimitropoulos earned his Ph.D. in Law summa cum laude at the University of Heidelberg, Germany, in 2011. He holds an LL.M. from the same University and an LL.B. from the University of Athens, Greece. During 2011-2012 he was a Hauser Research Scholar at New York University (NYU) School of Law, working on a project on “Peer Reviews in Global and European Governance”.
Many thanks to Edoardo Chiti, Kevin Davis, Gráinne de Búrca, Angelina Fisher and Mélanie Samson for comments and discussions on this and similar topics.
A previous version of this paper was presented at the 8th Viterbo Global Administrative Law Seminar “Indicators in Global Governance: Legal Dimensions”, held in Rome (Italy), at the Aspen Institute Italia, on June 14-15, 2012

Georgios Dimitropoulos earned his Ph.D. in Law summa cum laude at the University of Heidelberg, Germany, in 2011. He holds an LL.M. from the same University and an LL.B. from the University of Athens, Greece. During 2011-2012 he was a Hauser Research Scholar at New York University (NYU) School of Law, working on a project on “Peer Reviews in Global and European Governance”.
Many thanks to Edoardo Chiti, Kevin Davis, Gráinne de Búrca, Angelina Fisher and Mélanie Samson for comments and discussions on this and similar topics.
A previous version of this paper was presented at the 8th Viterbo Global Administrative Law Seminar “Indicators in Global Governance: Legal Dimensions”, held in Rome (Italy), at the Aspen Institute Italia, on June 14-15, 2012 (http://www.irpa.eu/category/gal-section/gal-seminars/).
Correspondence: Achaiou 16, Athens, GR-106 75, e-mail: gdimitropoulos@eplo.eu.

 

 

Introduction
According to a recent definition, “an indicator is a named collection of rank-ordered data that purports to represent the past or projected performance of different units. The data are generated through a process that simplifies raw data about a complex social phenomenon. The data, in this simplified and processed form, are capable of being used to compare particular units of analysis (such as countries, institutions, or corporations), synchronically or over time, and to evaluate their performance by reference to one or more standards”.1 Briefly: Indicators are collections of processed information used for various purposes. The processed information represents at the same time a simplification of the data. This function is very important in a complex world and society, in which conditions of extreme uncertainty are prevalent. “An indicator provides a transition from ambiguity to certainty; from theory to fact; and from complex variation and context to truthful, comparable numbers”2. Due to the complexity-reducing function of indicators, they are being used as a technology of governance in the sense that they provide a more certain basis for governance decisions.3 In this context, they play a very important role in global governance, where complexity and uncertainty are even greater than in domestic settings. Indicators are responses to uncertainty in global governance since they can give a specific meaning to indeterminate treaty rules and make decision-making easier.
Based on these assumptions, this paper wants to contextualize indicators within the broader frame of global governance and Global Administrative Law (GAL). The first Section describes the role of indicators in contemporary global administration. Indicators are very commonly used in regimes that can be called “experimentalist regimes”. After having identified the role of indicators in experimentalist governance, the article goes on to support the findings with evidence from the practice of the administration and administrative law theory. It draws primarily on the so called “New Administrative Law Science” (Neue Verwaltungsrechtswissenschaft) that has been developed in Germany for the re-interpretation of several administrative phenomena, adopting at the same time a so-called “steering approach” to law.4 It, moreover, draws on case studies from three different regimes that use indicators to measure performance of their actors. The financial and structural adjustment programme implemented in Greece by the International Monetary Fund (IMF) and

 
1 K. E. Davis/B. Kingsbury/S. E. Merry, “Indicators as a Technology of Global Governance”, 46 Law and Society 71, 73-74 (2012); see also M. Ravallion, “Mashup Indices of Development”, Policy Research Paper No. 5432, World Bank. Development Research Group/Director‟s office (2010).
2 S. E. Merry, “Measuring the World. Indicators, Human Rights, and Global Governance”, 52 Current Anthropology (2011) p. S83 (S88).
3 See S. E. Merry, “Measuring the World. Indicators, Human Rights, and Global Governance”, 52 Current Anthropology (2011) p. S83 (S85). On complexity of situations of decision-making see N. Luhmann, “Zur Komplexität von Entscheidungssituationen”, 15 Soziale Systeme (2009) p. 3.
4 See W. Kahl, “What is „New‟ about the „New Administrative Law Science‟ in Germany”, 16 European Public Law (2010) p. 105.

 

6
the European Union (EU) uses several indicators as conditions for loan disbursement, in order to make the results produced by the Greek government and administration measurable; secondly, a recently introduced governance mechanism in the context of the African Union, the so called NEPAD African Peer Review Mechanism, makes use of indicators, in order to measure progress in several aspects of governance in Africa; thirdly, the article briefly sketches out the review of the Common Agricultural Policy of the EU by the OECD.
On that basis, Section 2. introduces the idea of GAL as “enabling law”. A re-interpretation of GAL as enabling law in the global legal order opens the window to the interpretation of the legal nature of indicators and their function for the global administration. The understanding of GAL and indicators as enabling law, gives the possibility in the third Section to give an answer to the question of how to monitor and evaluate the performance of actors in global regimes, especially when indicators are adopted by this regime. This is performance monitoring and evaluation, which is different from traditional forms of review.
Overall, the article explores the relationship between indicators and their framework and identifies the evolution of a “global regulatory system for indicators”5. This is a plural system and is part of a broader change in contemporary global governance and administration, which is also signified by the use of indicators. Authority in the global legal order is being increasingly exercised in a horizontal way, through non-hierarchical means.6 Against this background, the final aim of this paper is to show that the best way to monitor performance of implementation of global rules based on indicators is the peer review system and other forms of horizontal monitoring.
5 S. Cassese/L. Casini, Public Regulation of Global Indicators, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 465 (473).
6 This understanding of authority is based on a sociological conception of governance in general and governance at the global level. In the past, there have been attempts to re-interpret public international law under the lens of sociology; see generally O. Diggelmann, Anfänge der Völkerrechtssoziologie – Die Konzeptionen von Max Huber und Georges Scelle im Vergleich (Schulthess, Zürich, 2000); O. Diggelmann, “The Aaland Case and the Sociological Approach to International Law”, 18 European Journal of International Law (2007) p. 135; for recent approaches see M. Hirsch, “The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System”, 19 European Journal of International Law (2008) p. 277; S. Cho, “Beyond Rationality: A Sociological Construction of the World Trade Organization”, 52 Virginia Journal of International Law (2012) p. 321.

 

1. Indicators in Global Administration
1.1. Administration through Indicators
1.1.1. The Nature of the Administrative Intervention through indicators
The use of indicators is a prominent feature of contemporary governance; their production and use is increasing rapidly.7 Already before their introduction in global governance, indicators have been used in the domestic sphere and very widely in the corporate world.8 The production, promulgation, use and dissemination of indicators is part of a more general function that has been actively exercised by international organisations, namely that of information management. This is a very common and characteristic feature of international organisations and is linked to the historical evolution and the current needs of global governance.9
Information management, and thus governance through indicators, by international organisations has an apparent administrative nature. In the domestic administrative sphere, indicators are used in the effort to rationalise administration.10 The same applies to distributed administration of global administrative regulation.11 Several treaty or other types of regimes provide for the use of indicators at the implementation stage of the rules of a global regime. These governance indicators are introduced in order to measure different aspects of good governance like economic and environmental performance, corruption, the rule of law or even governance itself.12

Administration through indicators takes several forms. Usually, it takes the form of governance “by information” or by persuasion.13 Similar forms of administration are familiar to GAL, for example in the field of production and use of technical standards by international organisations or in the field of private governance. Also in the later cases, the global administrative rules exert their influence through

7 K. E. Davis et al., Indicators as a Technology of Global Governance, IILJ Working Paper 2010/2 (GAL Series) p. 1.
8 S. E. Merry, “Measuring the World”, 52 Current Anthropology (2011) p. S83
9 See also B. Kingsbury, “Indicators and Governance by Information in the Law of the Future”, in M. Frishman/L. Kistemaker/S. Muller/S. Zouridis (eds.), The Law of the Future and the Future of Law (Torkel Opsahl, Oslo, 2011) p. 495 (503).
10 See also on the example of Colombian administrative law R. Urue a, “Internally Displaced Population in Colombia”, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 249 (277).
11 Benedict Kingsbury/Nico Krisch/Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems (2005) p. 15 (21-22).
12 N. K. Dutta, Accountability in the Generation of Governance Indicators, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 437 (438).
13 For the former see K. E. Davis et al., Indicators as a Technology of Global Governance, IILJ Working Paper 2010/2 (GAL Series) p. 20; B. Kingsbury, “Indicators and Governance by Information in the Law of the Future”, in M. Frishman/L. Kistemaker/S. Muller/S. Zouridis (eds.), The Law of the Future and the Future of Law (Torkel Opsahl, Oslo, 2011) p. 495 (504).
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mechanisms of market, public or peer pressure14 or mechanisms of acculturation.15 Beyond these atypical forms of administration – that tend to become typical in global administration –, in other occasions, indicators are used as standards for the allocation of funds to countries and the disbursement of loans that are more typical forms of administration. In both cases, indicators are administrative interventions in their own right.16
1.1.2. Monitoring Implementation
With the gathering of data and their use in a global regime, the data mutates into an instrument of global administration and governance. Because of the primarily atypical nature of the intervention of governance by indicators, many of the recent contributions on indicators express serious concerns about this form of intervention. One principal objection to their use is that science is given prevalence over politics.17 Moreover, the use of indicators by public, international or private bodies for lending to developing countries on the basis of their performance may lead to the paradoxical situation that only those countries receive funding that have been performing well in the indicator-based assessment. On the other side, it is exactly the countries that are performing poorly that are in greater need of receiving funds and attracting investments. In other cases, different factors can lead to the choice of one indicator over the other for a particular assessment, independently of their relevance in the specific case.18 “Lack of measurement equivalence” of the evaluated units might be an additional problem.19 The use of administrative law is an obvious response in order to calm down these concerns.
One indicator relationship consists of at least two parties; the party producing or using the indicator and the other party being evaluated and compared by it.20 Safeguarding principles can regulate both the production and the evaluation process.
14 See G. Dimitropoulos, Zertifizierung und Akkreditierung im Internationalen Verwaltungsverbund, 2012, pp. 232-236.
15 See R. Goodman/D. Jinks, “How to Influence States: Socialization and International Human Rights Law”, 54 Duke Law Journal (2004) p. 621; R. Goodman/D. Jinks, “International Law and State Socialization: Empirical, Conceptual, and Normative Challenges”, 54 Duke Law Journal (2005) p. 983.16 K. E. Davis/B. Kingsbury, “Indicators as Interventions: Pitfalls and Prospects in Supporting Development Initiatives”. A report prepared with support from the Rockefeller Foundation (2011), p. 1 and passim; see also S. Cassese/L. Casini, Public Regulation of Global Indicators, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 465 (466-467).

17 See on the example of human rights A.J. Rosga/M. L. Satterthwaite, “The Trust in Indicators: Measuring Human Rights”, 27 Berkeley Journal of International Law (2009) p. 253 (311-312).

18 See A.J. Rosga/M. L. Satterthwaite, “The Trust in Indicators: Measuring Human Rights”, 27 Berkeley Journal of International Law (2009) p. 253 (308).
19 Jonathan Jackson et al., “Developing European Indicators of Trust in Justice”, 8 European Journal of Criminology (2011) p. 267 (281-282).
20 See R. Urue a, “Internally Displaced Population in Colombia”, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 249 (249).

 

Administrative law regulates primarily the evaluation processes. An observed turn to the “audit society” is the sociological explanation for this mode of regulation.21 Indicators are embedded into the auditing practice of several regimes and are used in order to monitor implementation of the rules of global regimes by the second actor of the indicator relationship.22 In the human rights field, for example, “Committees” are introduced for the monitoring of implementation of the human rights treaties. This is an auditing process that runs primarily within the global or domestic administration.23 As such, governance through indicators forms part of the surveillance function of GAL.24
With the introduction of indicators at the implementation stage of a regime, monitoring takes the form of “performance assessment” or “evaluation”; this can be defined as an “assessment against a set of predetermined criteria of the economy, efficiency and effectiveness with which an organisation carries out a particular activity or range of activities. Organisations may be set regular targets on particular aspects of their performance – financial returns, efficiency, quality of services supplied, etc. – against which their performance is monitored and evaluated”25. In this way, implementation is encouraged through enhanced responsibility of the actors and not enforced.
It is thus important for every regime to answer the “monitoring question”: Which means of monitoring are more effective for policy-implementation with the use of indicators? In the search for an answer to this question and before turning to the three case studies, the following subsection examines shifts and trends in contemporary governance and administration.
1.2. Governance Shifts
1.2.1. Lessons from Experimentalist Governance
Modern governance should enhance the quality of lives of governed in a quantifiable way. This is why indicators are broadly used in contemporary regimes.26 The use of
21 M. Power, The Audit Society (OUP, Oxford, 1997).
22 A.J. Rosga/M. L. Satterthwaite, “The Trust in Indicators: Measuring Human Rights”, 27 Berkeley Journal of International Law (2009) p. 253 (256); J. V. Welling, “International Indicators and Economic, Social, and Cultural Rights”, 30 Human Rights Quarterly (2008) p. 933; B. Kingsbury, “Indicators and Governance by Information in the Law of the Future”, in M. Frishman/L. Kistemaker/S. Muller/S. Zouridis (eds.), The Law of the Future and the Future of Law (Torkel Opsahl, Oslo, 2011) p. 495 (502).
23 There are examples of courts measuring compliance; see R. Urue a, “Internally Displaced Population in Colombia”, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 249 (passim).
24 See Georgios Dimitropoulos, “Global Administrative Order”, 23 European Review of Public Law (2011) p. 433 (454-455).
25 OECD, Glossary of Statistical Terms (OECD Publishing, Paris, 2007) p. 583.
26 See R. O. Keohane, “Governance in a Partially Globalized World”, 95 American Political Science Review (2001) p. 1 (2).

 

indicators represents only one among many conditions of making governance better. Their adoption in governance can only have effects if they are embedded in governance settings that are capable of materialising the results and the knowledge condensed in the indicator.
Indicators are not the only response to uncertainty and complexity in global governance. As a response to these conditions, experimentalist regimes have emerged.27 Experimentalist regimes can be found at the domestic, regional and global level of governance. The EU, for instance, makes broad use of experimentalist governance and indicators, especially in the field of the Open Method of Coordination (OMC).28 At the global level, experimentalist regimes are proliferating in various fields from human rights treaties to global private governance regimes. At this level of governance, the proliferation of experimentalist structures is boosted by the need to find ways to implement the rules of the global regime without the existence of enforcement mechanisms.
In conditions of extreme uncertainty, neither the solution to a governance problem, nor the strategy to cope with it can be pre-defined.29 Experimentalist-style regimes are designed in such a way that it suits the needs of contemporary governance. Governance by experiment proceeds in four steps:

 

  1. 1. The involved actors set collectively framework goals. Examples of such framework goals include “better government performance”, “good political governance”, “improving efficiency”, “good water quality”, “safe food”, an “adequate education”, and “sustainable forests”.
  2. 2. The goals are further elaborated and implemented by local actors. Local actors may be private actors such as firms or territorial authorities. In the GAL context, the local actors will usually be the states, but also decentralised units in the states.
  3. 3. In return of the autonomy of local implementation, the decentralised actors provide data including feedback on the goals and their implementation. Instruments of quantification of the results play a major role in this respect. Monitoring, very often takes the form of a peer review of the local units. The

27 See C. F. Sabel/J. Zeitlin (eds.), Experimentalist Governance in the European Union: Towards a New Architecture (OUP, Oxford, 2010); G. de Búrca, “New Governance and Experimentalism: An Introduction”, Wisconsin Law Review (2010) 227; see also B. Kingsbury, “Indicators and Governance by Information in the Law of the Future”, in M. Frishman/L. Kistemaker/S. Muller/S. Zouridis (eds.), The Law of the Future and the Future of Law (Torkel Opsahl, Oslo, 2011) p. 495 (504). Strategic uncertainty is the basic background precondition of experimentalism; see W. H. Simon, “New Governance Anxieties: A Deweyan Response”, Wisconsin Law Review (2010) p. 727 (728-730).
28 See G. de Búrca, “The Constitutional Challenge of New Governance in the European Union”, 28 European Law Review (2003) p. 814.
29 C. F. Sabel/J. Zeitlin, “Experimentalism in Transnational Governance: Emergent Pathways and Diffusion Mechanisms”, Paper presented at the panel on “Global Governance in Transition”, Annual Conference of the International Studies Association, Montreal, March 16-19, 2011, at p. 7; see also C. L. Ford, “New Governance, Compliance, and Principles-Based Securities Regulation”, 45 American Business Law Journal (2008) p. 1.
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major instrument for the monitoring of implementation performance of the decentralized actors is indicators.

4. Reflexivity of the regime, in the form of periodic revision of the goals in the light of knowledge gained, will also usually be an                         integral part of the system.

This approach responds to the widely acknowledged failures of command-and-control regulation in a turbulent and fast-moving world and is an immanent process of globalisation. For experimentalist governance, the broadest possible participation of the public, like citizens, NGOs and firms, in all stages of the experimentalist design is very important. Framing indicators in experimentalist terms is similar to the “learning by experience process” described by Sabino Cassese and Lorenzo Casini with reference to Oliver MacDonagh in framing the global indicators regime.30 The reliance on local implementation with broad civil society participation and re-shaping of the goals on the basis of the insights of local experimentation operates as a learning process for the design of the indicators. Based on this learning and experience process, global regimes – and indicators – are shaped and re-shaped in a bottom-up way.31
1.2.2. Lessons from Domestic Administration
The move towards experimentalist forms of governance reflects also on the administration. The same needs that have shaped governance strategies at the global level of governance are partly also driving the design of domestic administration. Domestic administration is not isolated from the changing world that surrounds it; it is in communication with its environment in various ways.The reallocation and redistribution of public tasks between state, supra-state and societal actors, an effect of globalization, affects also the way domestic administration operates. It is impossible to regulate both society and public tasks today in a command-and-control way.32 For this reason, the state increasingly uses its administrative apparatus not in order to bring about mere interventions in society, but with the aim of creating free spaces for the actors.33 Modern regulatory strategies of administration show an

30 S.Cassese/L. Casini, Public Regulation of Global Indicators, in K. Davis/A. Fisher/B. Kingsbury/S. E. Merry (ed.), Governance by Indicators (OUP, Oxford, 2012) p. 465 (473-474).

31 See also R. C. Casiple, “Emerging Framework and Approach in Determining ESC Rights-Standards and Indicators: A Philippine Grassroots Experience”, Article presented at the Second Global Forum on Human Development, Rio de Janeiro, 9-11 October 2000 http://www.portal-stat.admin.ch/iaos2000/casiple_final_paper.doc>, visited on 9 May 2012).
32 See W. Hoffmann-Riem, “„Wir stehen am Beginn eines europäisierten Verwaltungsrechts‟. Allein mit Befehl und Zwang kann der Staat nicht mehr regieren”, 40 Zeitschrift für Rechtspolitik (2007) p. 101; see also Christie L. Ford, “Toward a New Model For Securities Law Enforcement”, 57 Administrative Law Review (2005) p. 757, 759 (using examples from the SEC).
33 M. Eifert, “Regulierungsstrategien”, in W. Hoffmann-Riem/E. Schmidt-Aßmann/A. Voßkuhle (eds.), Grundlagen des Verwaltungsrechts (2nd ed., München, Beck, 2012 – to be referenced as: GVwR) I § 19 Rn. 125 et seq.

 

increased reliance and trust upon the ability of both private and public actors to solve their problems in an independent and self-responsible way.34
At the same time, the state and other forms of public authority haven‟t abandoned completely their traditional role of safeguarding the common good.35 This just takes place in a different way than it did in the past. This is one of the reasons that most modern states have been undergoing strategies of re-regulation.36 Modern regulatory strategies set the general rule-of-law frame, in order to let societal and public actors unfold their activity in a self-regulatory mode. They, moreover, create cooperative relationships between the administration and the citizens for the delivery of public goods37 using a mix of forms of cooperation ranging from self-regulation to external sovereign regulation.38
In an effort to locate these changes, German administrative law scholarship has evolved the concept of the “safeguarding state” (Gewährleistungsstaat).39 The safeguarding state is the post-modern evolution of the welfare state, a type of state that makes use of the forces of privates for the delivery of the public good. Based on the paradigm of the safeguarding state, a “safeguarding administration” (Gewährleistungsverwaltung)40 emerges; it has the primary function of regulating the multiple interactions of the public and private actors and streamlining their cooperation.41 A major objective of these strategies is to create trust among the actors.42 Because of the increasing involvement of privates in the activities of the administration, safeguarding administration pursues the common good in collaboration with private parties.43 This leads to a sharing of the responsibility for
34 Cf. also K.-H. Ladeur, “Die rechtswissenschaftliche Methodendiskussion und die Bewältigung des gesellschaftlichen Wandels”, 64 Rabel Journal of Comparative and International Private Law (2000), p. 60 (esp. 100, 101).
35 H. Schulze-Fielitz, “Grundmodi der Aufgabenwahrnehmung”, GVwR I, § 12 Rn. 53.
36W. Hoffmann-Riem, “Tendenzen in der Verwaltungsrechtsentwicklung”, 50 Die Öffentliche Verwaltung (1997) p. 433 (435); re-regulation is contrasted with “de-regulation”.
37 M. Eifert, “Regulierungsstrategien”, GVwR I § 19 Rn. 37.
38 See L. Michael, “Formen- und Instrumentenmix”, GVwR II § 41.
39 See G. F. Schuppert (ed.), – (Nomos, Baden-Baden, 2005); cf. also N. Gilbert and B. Gilbert, The Enabling State: Modern Welfare Capitalism in America, (OUP, New York, 1989); W. Hoffmann-Riem, “From Providing to Enabling: Staat und Informationsgesellschaft”, Kommunikation & Recht (1999) p. I.
40 A. Voßkuhle, “Beteiligung Privater an der Wahrnehmung öffentlicher Aufgaben und staatliche Verantwortung”, 62 Vereinigung der Deutschen Staatsrechtslehrer (2003) p. 266 (304 et seq.); cf. also H. Schulze-Fielitz, “Grundmodi der Aufgabenwahrnehmung”, GVwR I § 12 Rn. 51 et seq.; see also E. Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee (Springer, Berlin, 2004) 3. Ch.Rn. 114 et seq.; F. Schoch, “Gewährleistungsverwaltung: Stärkung der Privatrechtsgesellschaft?”, 27 Neue Zeitschrift für Verwaltungsrecht (2008) p. 241.

41 M. Eifert, “Regulierungsstrategien”, GVwR I § 19 Rn. 52 et seq.
42 See on the example of independent authorities G. Majone, “Mutual Trust, Credible Commitments and the Evolution of Rules for a Single European Market”, EUI Working Paper RSC 1 (95), pp. 19 et seq.
43 E. Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee (Springer, Berlin, 2004) 3. Ch. Rn. 116.

 

the delivery of the public good between the administration and the involved private parties. The administration undertakes a “safeguarding responsibility” (Gewährleistungsverantwortung), which lies between the comprehensive “responsibility to fulfill” (Erfüllungsverantwortung) and the reduced “responsibility to back up” (Auffangverantwortung).44
1.2.3. The Reaction of the Global Administration
The trends that have been identified in experimentalist governance and domestic administration can be also traced in the context of global administration. Global administration has evolved elements of this type of administration that was described as safeguarding administration.45 With the emergence of global public goods46 and the consequent reallocation of public tasks onto the global level of governance, the states are not in the actual position of safeguarding the public good by their own means. This loss of authority on the part of the state is complemented by the increase of the safeguarding responsibility of global organizations: Safeguarding of public goods does not only take place through the cooperation between state and society, but also through the cooperation between global and domestic administration and the cooperation between international organizations and private parties.47
When an international organisation uses indicators, it partly shifts responsibility from the regulator – the international organization itself – to the actors of society or other actors – the subject of regulation –.48 Individuals and countries are made responsible for their own behavior in their effort to comply with the measures of performance articulated in an indicator.49 The global regulator restraints herself to the

44 On these types of state responsibility see W. Hoffmann-Riem, “Tendenzen in der Verwaltungsrechtsentwicklung”, 50 Die Öffentiche Verwaltung (1997) p. 433; Schmidt-Aßmann, Das allgemeine Verwaltungsrecht als Ordnungsidee (Springer, Berlin, 2004) 3. Ch. Rn 109 et seq.
45 See also H. T. Weiß, Die rechtliche Gewährleistung der Produktsicherheit (Nomos, Baden-Baden, 2008) p. 244 (making reference to a “safeguarding public international law” – Gewährleistungsvölkerrecht – and a “safeguarding responsibility” of the states under WTO law – especially the TBT and the SPS Agreements – for the safeguarding of the common good by the standardisation organisations).
46 C. Tietje, “Das Recht ohne Rechtsquellen?”, 24 Zeitschrift für Rechtssoziologie (2003) p. 27 (39 et seq.); see also I. Kaul/P. Conceição/K. Le Goulven/R. U. Mendoza (eds.), Providing Global Public Goods. Managing Globalization, (OUP, Oxford, 2003); S. Barrett, Why cooperate? (OUP, Oxford, 2007).
47 See also C. Tietje, “Begriff, Geschichte und Grundlagen des Internationalen Wirtschaftssystems und Wirtschaftsrechts”, in C. Tietje (ed.), Internationales Wirtschaftsrecht (De Gruyter, Berlin, 2009) § 1 Rn. 135: “Hieraus erwächst die Notwendigkeit, den Schutz und die gerechte Verteilung globaler öffentlicher Güter verstärkt durch kooperative Anstrengungen staatlicher, intermediärer und nicht-staatlicher Akteure zu gewährleisten”. Every level of administration and every actor has its own share in the contribution of the fulfillment of the common responsibility. There are no clearly defined structures of responsibility; cf. E. Pache, “Verantwortung und Effizienz in der Mehrebenenverwaltung”, 66 Vereinigung der Deutschen Staatsrechtslehrer (2007) p. 106 (135).
48 S. E. Merry, “Measuring the World”, 52 Current Anthropology (2011) p. S83 (S88).
49 S. E. Merry, “Measuring the World”, 52 Current Anthropology (2011) p. S83 (S85).

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