IILJ Working Paper 2014/2 (Global Administrative Law Series)

Addressing Problems of Disregard in Global Regulatory Governance: Accountability, Participation and Responsiveness

Richard B. Stewart

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Global regulatory administrative authorities systematically give greater regard to the interests and concerns of some actors and lesser regard to those of others in making their decisions. Because of deep-seated structural factors, they tend overall to give greater consideration in weight to the interests of powerful states and well-organized economic actors, and disregard the interests and concerns of more weakly organized and less politically powerful groups and vulnerable individuals. This article refers to these disfavored groups and individuals as the disregarded. The overall pattern of global regulation reflects a similar bias. The most powerful global regulatory regimes promote the objectives of dominant states and economic actors, while regimes to protect the disregarded are weak or virtually nonexistent. This constitutes structural disregard. A result of these two forms of disregard, the powerful actors in global regulatory governance enjoy disproportionate benefits from international cooperation while the disregarded suffer deprivation and often serious harm.

This article has two related objectives. First, it examines, as a matter of positive analysis, the institutional mechanisms for global regulatory decision-making and the institutional structures that generate disregard. It presents a new conceptualization of these mechanisms, distinguishing three basic types: decision rules, accountability mechanisms, and other regard promoting measures. In doing so it unpacks notions of accountability and participation — so widely and often indiscriminately invoked as remedies for global governance ills — and clarifies their respective roles. Second, the article uses this conceptual framework to explain how existing governance arrangements systematically generate disregard and identify strategies that the disregarded can use in order to promote regard for their interests and concerns and thereby secure a more just system of global regulatory governance.