Implementation of the Good Governance Principles on the International Level

By the end of the twentieth century, the concept of good governance was applied in specific policy fields like international environmental law and in the more general frame of policy by the international organizations. The good governance perspective has also been developed in the context of globalizing administrative law. At present, the implementation of good governance has a much broader meaning than it did twenty years ago. The concept is clearly in development and transition. Elements such as propriety, transparency, participation, accountability, accountability and human rights have been added to the concept. All these elements have been incorporated into several documents over the course of time. Within the framework of the Council of Europe, the ECtHR develops its own interpretation of the principle of good governance in the review of government action. We see that the principles of international law and more specifically the principle of effectiveness and the principle of legitimate expectation have been applied by the WTO Dispute Settlement Body. At the grassroots of international law, good governance has been accepted as a principle of law, in national legal systems, and from there in regional and international institutions. So, it functions as a norm for the administration and the court uses elements of the principle in its review. The concept is applied as such and in the different policy fields. In describing the conditions for principles of international law we conclude that the good governance principle is a principle of international law.

Implementation of the Principles of Good Governance on the National Level outside the EU

In this chapter, the focus is on the implementation of good governance norms in three countries outside Europe: Australia, Canada, and South Africa. Relating to the implementation of the good governance principles in Australia, we start with the historical background and good governance approaches in the country. There is a classical rule of law and separation of powers but also new administrative law reforms and including the position of the fourth power. Important is the role of the Ombudsman and the relation between good governance and human rights. Especially the principles of participation, transparency and accountability have been worked out. The idea of integrity goes beyond matters of simple ‘legality’. Important is the influx of integrity commissions, ombudsmen and means of judicial and merit review. Although Canada does not have specific legislation that explicitly outlines good governance principles, it is clear that Canada has put them into practice. The Constitution guarantees Canadian citizens ‘peace, order, and good government’. The rule of law provides that every person must abide by the law and Section 15 guarantees equality rights to Canadian citizens. The judiciary is also a source for good governance. Finally, administrative officials are held accountable by judicial review, section 24 of the Charter, and with the ombudsmen. Nevertheless, there is still room for improvement. South Africa has extensively integrated good governance principles into its legal system, but faces the same problems that other developing countries in Africa have. Thus, although South Africa has a sound legal foundation for good governance, lessons can still be learned on how to translate these legal norms into practical application.

The Principle of Properness

In general, the (sub)principles of properness have (in most countries) the longest history of the six principles of good governance. These principles were developed because the traditional formal approaches to legality were too narrow for adequate control of the government. These principles were often developed by the judiciary as unwritten principles, as well as by the ombudsman or as policy principles in policy papers. Several of these principles have been codified in the laws of different countries. In many countries, the process of codification of unwritten norms is at a different stage, but the foundations of these principles are often comparable. Different courts developed a rather sophisticated way of protecting the rights of individuals: sometimes by developing unwritten principles or by having a more extensive interpretation of the law. The lines of development of the principles of properness were illegality, irrationality, and then impropriety. The following step was the specification of (sub)principles, such as equality, legal certainty, carefulness, and motivation. Each of these categories was specified by means of a principles-based approach and a rights-based review. This development sometimes went faster under the influence of international human rights treaties. However, the innovation of judicial review went through by formal and material principles. In the principles of properness, we distinguish the following elements: formal carefulness (hearing as part of natural justice), abuse of power (abuse of discretion), rationality (substantial carefulness), proportionality, legal certainty, legitimate expectations, and equality and reasoning.

Democracy and Good Governance

Democracy is about government and governance by the people in different forms. Democracy is direct or by representation. Sovereignty of the people, however, is not the same as democracy. The position of minorities related to majorities, in a democracy, is not always easy to regulate. This situation has made clear that democracy also has qualitative contents and it is even clearer when we speak about democracy in the sense of a liberal democracy or of a social democracy. Two key elements in and topics related to democracy are the participation of the people and the elections by the people and the transparency of the government. There are some restrictions in a representative democracy and, for that reason, participation will be necessary to maintain the connection between the government and the people. But to have an adequate functioning of this participation and of the elections, transparency on behalf of the government is a necessary condition for a democracy.

The Rule of Law and Good Governance

The concept of the rule of law has different—common law and continental—historical roots and traditional perspectives. The common law tradition is more focused on limiting the powers of the state, whereas the continental tradition focuses on not just to limit but also to empower the government. But both systems have a focus on the rule of law. The rule of law in the classical liberal tradition is based on four elements: legality, division and balance of powers, independent judicial control, and protection of fundamental rights. The differences between rule of law and rechtsstaat are: different concepts of the state, mixed legal systems and different approaches of a constitution, and different perspectives on human rights. There are two levels of development: a model in which law is a way of structuring and restricting the power of the state, the second level is more subjective and has important individual positions. The concept of good governance related to these developments makes clear the need to broaden the concept of the rule of law.

An Overview of Good Governance

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.

Conclusions on Good Governance

Good governance is a legal concept and a cornerstone of the modern state and presented in the book as the third cornerstone of a modern stone (alongside the rule of law and democracy). We concluded in relation to the development of the concept of good governance in part I that principles of good governance can only be legal principles when they have been somehow codified legal effect. The good governance principles became more concrete by enumerating six groups of principles (properness, transparency, participation, effectiveness, accountability, and human rights) which are found in many documents of national, regional, and international context. From the legal theory approach on good governance we discussed the character of these principles. In part II we specified the principles of good governance and starting with the principle of properness, which has also been developed under the name of the principle of natural justice. The second, the principle of transparency, is connected to the principle of participation which both have roots in the concept of democracy. The principles of effectiveness and accountability both have a relationship to the institutional structure and functioning. The last principle is the human rights principle which is linked to the rule of law but also to democracy. Several principles of good governance were already developed in regulations and in codes which are the building blocks for the development of the right to good governance. The implementation of good governance and the comparison between countries were explained in Part III. After that, the regional level was discussed—the European Union and the Council of Europe were chosen as models as far as it was comparable. The last chapter was about the implementation on the international level.

Implementation of Good Governance Principles on the European Level

In this chapter the focus is on the implementation of the principles of good governance by the European Union administrative institutions and the controlling institutions like the European Court of Justice and the European Ombudsman. The Treaty of Lisbon contains rules and obligations in respect of the implementation of these principles. The principle of transparency has found its expression in article 1 paragraph 2 TFEU. The principles of political participation are embodied in article 11 TEU. The right of access to documents of the Union’s institutions is a fundamental rule in article 15 TFEU. Furthermore, according to article 16 paragraph 8 TEU, the European Council of ministers must meet in public when acting as a legislator. These Treaty principles are complemented by the Charter of Fundamental Rights of the European Union which has entered into force with the final ratification of the Lisbon Treaty and its chapter on citizen’s rights like the right to good administration in article 41. In search for a better quality of administrative proceedings, a code on good administrative practise, a soft law instrument based on the logic of best practise has ultimately been adopted.

The Principle of Effectiveness

The (sub)principles of effectiveness is rather new for many lawyers. This novelty is partly because these principles are related not only to law from a more classical perspective but also to academic fields like social sciences and economics. Modern textbooks on administrative law are sometimes split into two parts: one part on administration and law and another part on law and administration. The first part is, from an administrative law perspective, the most innovative. It is mainly focused on policy, constitutional, and organizing aspects of the administration. The approach is contextual, and it draws on different disciplines. It deals with administrative developments, centralized and decentralized administration, the different types of administration, the management aspects of administration, the development of agencies, the different methods of internal and external coordination, and the position of the key players in the field of the administration. The second part concerns the analysis of the principles of judicial review as they have been developed by the courts, the ombudsman, and other controlling institutions. These principles are applied to control and structure the administration. It also takes full account of the legislative and political initiatives that are relevant for the development of administrative law, including the role played by the different powers in the state. In this chapter, we integrate these two parts of ‘administration and law’ and their corresponding approaches. This reflects the interdisciplinary nature of the development of the principles in general and more specifically in the (sub)principles of effectiveness. These principles can also be applied mutatis mutandis in other contexts that restrict the perspective of the administration in a narrow sense, like the administrative court and the fourth power institutions.

The Principle of Participation

Participation is the active involvement of a group of individuals in a collective process on actual or intended actions of administrative authorities. Participation can refer to taking part in preliminary arrangements, influencing decision-makers, or taking part in actual decision-making processes. But participation can also be justified from the point of view of a sensible government finding out potential flaws and realizing ownership. The term ‘public participation’ presumes that the initiative and procedures are in the hands of citizens, the participation process is generally managed by public entities. The participation principle can be also about participation as a right, and the question of what consequences are there for the direct and guiding function of the administration. Participation is important under the democratic rule of law as well. Public participation can be motivated by democratic, constitutional, corporatist, or administrative motives. While the distinction between these motives for participation is not always unequivocal, these do offer an indication of the various perspectives—and consequently motives—of the parties involved in public participation. With regards to participation, a distinction can be made between the type and the level of participation achieved, ie form and degree of participation. Forms of participation are popular initiatives, the citizen’s panel, the referendum, and the community level forms. The degree of participation is quantified by using indicators, including the number of individuals, the time invested in and the frequency of participation, the involvement of individuals, the extent of influence on the process with respect to the issues addressed by the public authority and the level of participation that citizens are entitled to. Citizens could play different roles, for example one of co-decision-making, co-producing, counselling, consultation, or of distributing information.