Transformations of the State

Transcription

1 Transformations of the State Series Editors: Achim Hurrelmann, Carleton University, Canada; Stephan Leibfried, University of Bremen,Germany; Kerstin Martens, University of Bremen, Germany; Peter Mayer, University of Bremen, Germany. Titles include: Joan DeBardeleben and Achim Hurrelmann (editors) DEMOCRATIC DILEMMAS OF MULTILEVEL GOVERNANCE Legitimacy, Representation and Accountability in the European Union Klaus Dingwerth THE NEW TRANSNATIONALISM Transnational Governance and Democratic Legitimacy Achim Hurrelmann, Steffen Schneider and Jens Steffek (editors) LEGITIMACY IN AN AGE OF GLOBAL POLITICS Achim Hurrelmann, Stephan Leibfried, Kerstin Martens and Peter Mayer (editors) TRANSFORMING THE GOLDEN-AGE NATION STATE Kerstin Martens, Alessandra Rusconi and Kathrin Leuze (editors) NEW ARENAS OF EDUCATION GOVERNANCE The Impact of International Organizations and Markets on Educational Policy Making Thomas Rixen THE POLITICAL ECONOMY OF INTERNATIONAL TAX GOVERNANCE Peter Starke RADICAL WELFARE STATE RETRENCHMENT A Comparative Analysis Jens Steffek, Claudia Kissling, Patrizia Nanz (editors) CIVIL SOCIETY PARTICIPATION IN EUROPEAN AND GLOBAL GOVERNANCE A Cure for the Democratic Deficit? Michael J. Warning TRANSNATIONAL PUBLIC GOVERNANCE Networks, Law and Legitimacy Hartmut Wessler, Bernhard Peters, Michael Brűggemann, Katharina Kleinen-von Kőnigslőw, Stefanie Sifft TRANSNATIONALIZATION OF PUBLIC SPHERES Hartmut Wessler (editor) PUBLIC DELIBERATION AND PUBLIC CULTURE The Writings of Bernhard Peters, Jochen Zimmerman, Jörg R. Werner, Philipp B. Volmer GLOBAL GOVERNANCE IN ACCOUNTING Public Power and Private Commitment Transformations of the State Series Standing Order ISBN (hardback) Series Standing Order ISBN (paperback) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBNs quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

2 This illustration is taken from the original etching in Thomas Hobbes Leviathan of Palgrave Macmillan and the editors are grateful to Lucila Muñoz-Sanchez and Monika Sniegs for their help in redesigning the original to illustrate what transformations of the state might mean. The inscription at the top of the original frontispiece reads non est potestas Super Terram quae Comparetur ei ( Job 41.33): there is no power on earth which can be compared to him. In the Bible, this refers to the seamonster, Leviathan. (Original Leviathan image reprinted courtesy of the British Library.)

3 Transnational Public Governance Networks, Law and Legitimacy Michael J. Warning Attorney Bremen, Germany

4 Michael J. Warning 2009 Softcover reprint of the hardcover 1st edition All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act First published 2009 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number , of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin s Press LLC, 175 Fifth Avenue, New York, NY Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN ISBN (ebook) DOI / This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress

5 To My Parents

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7 Contents Series Editors Preface Acknowledgements Abbreviations x xii xiii 1 Introduction 1 Part I Globalization and the State 2 The Changing State 11 Sovereignty and international cooperation 12 Administration in the age of globalization 22 3 Civil Society Actors 26 Types of civil society actors 26 Civil society actors in the international system 27 Governance capacity of civil society actors 31 4 International Institutional Cooperation 32 Creation of IOs 32 Deficiencies of IOs 36 Transnational bureaucracy networks 38 5 Law and Globalization 44 International law 45 Soft law 49 Transnational law 52 6 Conclusion 61 Part II Solving Global Environmental Problems 7 Chemicals: A Global Challenge 65 Chemicals as a global environmental problem 65 Maintaining chemical safety 69 National responses 71 vii

8 viii Contents 8 The System of International Chemical Safety 75 Actors 75 Activities 92 9 Connections 125 National participation 125 Legal integration 127 Interaction with world trade law Conclusion 134 Part III The System of Transnational Public Governance 11 Analysing the System of International Chemical Safety 139 Institutional structures 139 Instruments Evaluation 161 State and administration 161 IOs and transnational bureaucracy networks 163 Civil society actors 166 Law Conclusion 173 Part IV The Legitimacy of Transnational Public Governance 14 Concepts of Legitimacy 179 Legitimacy as a sociological and political concept 179 Legitimacy as a legal concept 184 Constitutionality Legitimacy and Law Beyond the State 190 Legitimacy and supranational contexts 190 Legitimacy and foreign relations power 194 Conclusion Legitimacy and Technical Standards 205 Technical standards and the state 205 Technical standards in supranational settings 217 Conclusion 225

9 Contents ix 17 Legitimacy of Transnational Public Governance Prospects 236 Bibliography 238 Cases 262 Legal Acts and Documents 265 International Primary and Secondary Law 265 International and Transnational Documents 270 Stockholm 1972 United Nations Conference on the Human Environment 270 Rio de Janeiro 1992 United Nations Conference on Environment and Development 270 IPCS 270 IFCS 270 ICCM 271 IOMC 271 UNCETDG/GHS UNSCEGHS UNSCETDG 271 Ad Hoc Joint Working Group on Enhanced Cooperation among the Basel, Rotterdam and Stockholm Convention 271 Statutes 272 European Union/European Community 272 Germany 274 Japan 276 New Zealand 276 USA 276 Government and Parliamentary Documents 276 Germany 276 European Union/European Community 277 USA 278 Interviews 279 Index 281

10 Series Editors Preface Over the past four centuries, the nation-state has emerged as the world s most effective means of organizing society, but its current status and future are decidedly uncertain. Some scholars predict the total demise of the nation-state as we know it, its powers eroded by a dynamic global economy on the one hand and, on the other, by the transfer of political decisionmaking to supranational bodies. Other analysts point out the remarkable resilience of the state s core institutions and assert that even in the age of global markets and politics, the state remains the ultimate guarantor of security, democracy, welfare, and the rule of law. Do either of these interpretations describe the future of the OECD world s modern, liberal nation-state? Will the state soon be as obsolete and irrelevant as an outdated computer? Should it be scrapped for some new invention, or can it be overhauled and rejuvenated? Or, is the state actually thriving and still fit to serve, just in need of a few minor reforms? In an attempt to address these questions, the analyses in the Transformations of the State series separate the complex tangle of tasks and functions that comprise the state into four manageable dimensions: the monopolization of the means of force, the rule of law, as prescribed and safeguarded by the constitution, the guarantee of democratic self-governance, and the provision of welfare and the assurance of social cohesion. In the OECD world of the 1960s and 1970s, these four dimensions formed a synergetic constellation that emerged as the central, defining characteristic of the modern state. Books in the series report the results of both empirical and theoretical studies of the transformations experienced in each of these dimensions over the past few decades. Transformations of the State? (Stephan Leibfried and Michael Zürn (eds), Cambridge 2005) and Transforming the Golden-Age National State (Achim Hurrelmann, Stephan Leibfried, Kerstin Martens, and Peter Mayer (eds), Basingstoke 2007) define the basic concepts of state transformation employed in all of these studies and provide an overview of the issues addressed. Written by various interdisciplinary teams of political scientists, lawyers, economists, and sociologists, the series x

11 Series Editors Preface xi tracks the development of the post-world War II OECD state. Here, at last, is a state-of-the-art report on the state of the state and, we hope, a clearer view of its future. ACHIM HURRELMANN, STEPHAN LEIBFRIED, KERSTIN MARTENS, AND PETER MAYER Series Editors

12 Acknowledgements This book is a revised and updated version of my dissertation Transnational Law Through Bureaucracy Networks The Case of Hazardous Chemicals, which I prepared while working at the Transformations of the State Collaborative Research Centre at the University of Bremen. I would like to express my gratitude to my supervisor, Prof. Dr. Gerd Winter. I greatly benefited from his advice, knowledge, and experience and I very much appreciated the opportunity of working with him on various projects. I would also like to thank Prof. Dr. Josef Falke, who prepared the second review of the dissertation an instructive and valuable basis for the improvement of the manuscript. I would like to acknowledge Prof. Dr. Alfred Rinken, President of the Constitutional Court of the Free Hanseatic City of Bremen, for sparking my interest in public law during my first semesters at law school. Very special thanks go to Prof. Dr. Leibfried, Antje Spalink, Dr. Dieter Wolf, and my colleagues both at the Research Centre for European Environmental Law and the Transformations of the State Collaborative Research Centre. I particularly wish to thank Dr. Martin Herberg, with whom I conducted the interviews for this book. I wish to thank Annette for her friendship, patience, and encouragement and I am grateful for the support and confidence of my parents, Elisabeth and Winfried. xii

13 Abbreviations ACC AGS APA AU BIAC CAS CEFIC CFC CG/HCCS CICAD CISG CoP CSCE CU CWM DDT DIN DRP EC ECE ECJ ECOSOC ED EDF EDG EHC EHS EPOC EU FAO FRB American Chemistry Council Ausschuß für Gefahrstoffe (Committee for Hazardous Substances) Administrative Procedure Act administrative union Business and Industry Advisory Committee Chemical Abstracts Service Conseil Européen des Fédérations de l Industrie Chimique (European Chemical Industry Council) chlorofluorocarbon Coordinating Group for the Harmonization of Chemical Classification Systems Concise International Chemical Assessment Documents UN Convention on Contracts for the International Sale of Goods Conference of the Parties Conference for Security and Co-operation in Europe Central Unit Chemicals and Waste Management Dichloro-Diphenyl-Trichloroethane Deutsches Institut für Normung (German Institute for Standardization) Detailed Review Paper European Community Economic Commission for Europe European Court of Justice Economic and Social Council endocrine disruptor Environmental Defense Fund Electronic Discussion Group Environmental Health Criteria Environmental Health and Safety Environmental Policy Committee European Union Food and Agriculture Organization Final Review Board xiii

14 xiv Abbreviations FSC Forum Standing Committee GATT General Agreement on Tariffs and Trade GHS Globally Harmonized System of Classification and Labelling of Chemicals GLP Good Laboratory Practice HCB hexachlorobenzene γ-hch hexachlorocyclohexane, Lindane HEDSET Harmonized Electronic Data Set HPV High Production Volume HSG Health and Safety Guides IAIS International Association of Insurance Supervisors ICC Intersecretariat Coordinating Committee ICCA International Council of Chemical Associations ICCM International Conference on Chemicals Management ICCS International Conference on Chemical Safety ICEM International Federation of Chemical, Energy, Mine and General Workers Unions ICJ International Court of Justice IFCS Intergovernmental Forum on Chemical Safety IFRO International Financial Regulatory Organizations ILO International Labour Organization IMO International Maritime Organization INC Intergovernmental Negotiating Committee IO international organization IOCC Inter-Organization Co-ordinating Committee IOMC Inter-Organization Programme for the Sound Management of Chemicals IOSCO International Organization of Securities Commissions IPCS International Programme on Chemical Safety IRPTC International Register of Potentially Toxic Chemicals ISO International Organization for Standardization KTA Kerntechnischer Ausschuß (Nuclear Safety Standards Commission) MAD Mutual Acceptance of Data MoU memorandum of understanding MEPC Marine Environment Protection Committee OECD Organisation for Economic Co-operation and Development OEEC Organisation for European Economic Co-operation OSCE Organization for Security and Co-operation in Europe PAC Programme Advisory Committee PCB polychlorinated biphenyl

15 Abbreviations xv PCP pentachlorophenol PIC Prior Informed Consent POP persistent organic pollutants RoP Rules of Procedure SAICM Strategic Approach to International Chemicals Management SDS Safety Data Sheet SIAM SIDS Initial Assessment Meetings SIAP SIDS Initial Assessment Profile SIAR SIDS Initial Assessment Reports SIDS Screening Information Data Sets SOP Standard Operating Procedures TBT Technical Barriers of Trade TCG Technical Coordinating Group TNE Transnational Enterprise ToR Terms of Reference TSCA Toxic Substances Control Act TUAC Trade Union Advisory Committee UGB-KomE Umweltgesetzbuch Entwurf der unabhängigen Sachverständigenkommission (Environmental Code Draft by the Independent Experts Commission) UN United Nations UNCED United Nations Conference on Environment and Development UNCETDG United Nations Committee of Experts on the Transport of Dangerous Goods UNCETDG/GHS UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals UNCHE United Nations Conference on the Human Environment UNECE United Nations Commission for Europe UNEP United Nations Environment Programme UNGA United Nations General Assembly UNIDO United Nations Industrial Development Organization UNITAR United Nations Institute for Training and Research UNRTDG United Nations Recommendations on the Transport of Dangerous Goods UNSCEGHS United Nations Economic and Social Council Sub- Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals

16 xvi Abbreviations UNSCETDG United Nations/Economic and Social Council Sub- Committee of Experts on the Transport of Dangerous Goods VCLT Vienna Convention on the Law of Treaties WHA World Health Assembly WHO World Health Organization WNT Working Group of National Coordinators of Test Guidelines Programme WSSD World Summit on Sustainable Development WTO World Trade Organization WWF World Wide Fund for Nature