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Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius

36 Pages Posted: 19 May 2006  

Michael A. Livermore

University of Virginia School of Law

Abstract

In this Note, Livermore examines an important and controversial facet of globalization - the increased prominence and power of international institutions - through a study of the Codex Alimentarius. The Codex is an international food standard-setting body created in 1964 which experienced a significant increase in its authority in 1994 when its standards were incorporated into the World Trade Organization (WTO) regime through the Agreement on the Application of Sanitary and Phytosanitary Measures and Agreement on Technical Barriers to Trade. Standards that had once been entirely voluntary now have the bite of law in the global trade system. This change has challenged the Codex by subjecting its decision making processes to a higher standard of accountability while at the same time undermining the deliberations which were at the heart of its successful functioning and claim of legitimacy. This Note argues that deliberation within the Codex alone is unlikely to solve this legitimacy dilemma but that the structure of the WTO regime, which divides power between multiple independent bodies, creates the possibility of an external check on the Codex in the form of judicial review exercised by the WTO Appellate Body. Livermore proposes that the Appellate Body review the decision making of the Codex for procedural fairness and appropriate consideration of the views of minority states. Livermore also considers lessons that the successes and difficulties of the Codex have for the design of international regimes in the future.

Keywords: World Trade Organization, WTO, GATT, SPS/TBT, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Appellate Body, Global Administrative Law, International Institutions, International Organizations, Trade, Food Safety, Food Regulation, Codex

Suggested Citation

Livermore, Michael A., Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the Codex Alimentarius. New York University Law Review, Vol. 81, p. 766, 2006. Available at SSRN: https://ssrn.com/abstract=903408

Michael A. Livermore (Contact Author)

University of Virginia School of Law ( email )

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