The Commission as Agent of States - Essay Example

The Commission as Agent of s In the international arena, attempts at cooperation can be cemented through the establishment of a commission. Suchcooperation may differ in objectives and characteristics and the nature and authority of the commission created for its purpose would be tailored according to these variables. For instance, there is the case of the European Commission, which functions as the executive body of the European Union. Here, countries established an institution to govern their association. Based on its nature, the commission is provided an authority in order to be efficient. The most important of aspect here is the implied consent of cooperating states that, in specifically outlined areas, actions by the commission is tantamount as an act of each of the member states. This paper will examine this principle with the purpose of identifying the extent to which commissions can claim as agents of its member states. This examination will focus on the experience of the European Commission. An understanding of this aspect can provide a roadmap and the dynamics to the responsibilities of the commission as well as the jurisdictional authority, a complicated variable that often creates conflict. Background: What is a Commission? Commissions have different definitions. This is due to the fact that they assume different characteristics as defined by the rules or the laws that govern its establishment. The constitution or by-laws of a commission would often provide an article that defines its nature, mandate, responsibilities and authority. However, a general conception that typifies these organizations is that they are bodies that serve as common agencies of parties that collectively cooperate for specific purposes. For example, the commission organized to resolve the interstate water conflict in the United States is a corporate and political body that serves as an agency for the representatives of the concerned states, serving as commissioners (Sherk, 2000, pp.706). The decisions made and contracts and transactions entered into by the commission are binding for all the states involved. There is also the case of the International Law Commission, which is tasked - by the strength of the commitment given by the member countries - to resolve interstate conflicts according to international laws and conventions. It is a legal animal so to speak, a judicial institution by which members accede. The European Commission is considered a regulatory body, which pervades the ethos of the institution that focuses on quasi-legislative, quasi-judicial as well as the executive component within the Commissions competences (Cini, 2007, p. 32). The European Convention on Human Rights declared its authority in the following terms: The commission further observes that nationals of a state, including registered ships and aircraft, are partly within its jurisdiction wherever they may be, and that authorized agents of a state, including diplomatic and consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property "within its jurisdiction" of that state (Lauterpacht, Greenwood and Oppenheimer, 2008, pp.542). The European Convention on Human Rights, as demonstrated by the above declaration, exercise broad powers and jurisdiction within its mandate and has the full force of authority to represent member states especially in instances of international conflict. Finally, one can also refer to the Interstate Commerce Commission as a model. This was created in 1887 and regulated commerce in the different areas of transportation such as rail, shipping and pipelines (Aldrich, 2007, pp.284). Member states are obligated to follow its regulatory activities and that they provide the resources, legitimacy and policy direction, these are the reasons why their legislative, executive and judicial departments including other governmental agencies, are required to cooperate fully within the commission’s regulatory jurisdiction. For example, a member state adopts ICC statutes by legislating conformity or drafting a similar or complementing domestic transportation law. With the above examples, it is clear how commissions can be viewed as an instrument by which countries formalize their relationship, alliance or joint cooperation. This characteristic is important in jurisdictional authority. Depending on the power stipulated and agreed upon by parties to a commission, it can assume either a limited or a strong mandate as an agent of states. Theoretical Basis The theoretical basis for the establishment and authority of commissions differ across several of its examples. The European Commission is an excellent example of a commission that operates on the basis of the act of state doctrine. This doctrine can be demonstrated in the case of privileges and immunities accorded to the agents of a state. If an act is done by an agent of a state, on authorization by it, in the territory of another, for which the latter has not given its consent, the former state is responsible (Murty, 1989, pp.431). But in the case of the commission, there is an express consent for the actions done in behalf of its members. A commission may also adopt the frameworks of the agency theory. The basic structure of this model begins with a principal who wants something done, and an agent who is tasked or commissioned to carry out specific tasks (Tsoukas and Knudsen, 2005, pp. 378). The agency theory is often employed in private sector for commission-like transactions. But the significance of this theoretical framework is that it captures the conflict that emerges within the relationship between a commission and its member states. The principals are analogous to the states and the agency, the commission. Everything works fine when the interest and purpose of the parties are aligned. But this may not always be the case. A state may find itself in conflict with the commission when its self interest is threatened. This is because the commission will have its own interests as well and could actively work in order to perpetuate it. Most effective commissions are those considered to be independent. That is, its leaders or managers are independent actors that act only according to the interests of its collective constituents. For example, in the case of the European Union, the European Commission treaty prescribes: Members of the Commission shall, in general interest of the Community, be completely independent in the performance of their duties and they shall neither seek nor take instructions from any government or from any other body (Egeberg, 2006, pp.3). From neofunctionalist, institutionalist and principal-agent perspectives, the Commission - with its characteristics and mandate - will work more effectively if it has its own will. The theoretical basis for the establishment and authority of commissions differ across several of its examples. The European Union is an excellent case of a commission that operates on the basis of the act of state doctrine and also works within the agency theoretical framework. There are other theories that apply to the Commission such as intergovernmentalism and functionalism and they all provide their own perspectives on authority and jurisdiction. Authority In international law, there is also a concept called "authority and control". Interstate commissions and their constitution and by-laws would often contain an article or a provision explaining this concept. This is crucial in the issue of jurisdiction. In international setting, the notion of jurisdiction is often tested according to the "authority and control" principle. The European Commission on Human Rights in its decision in Cyprus v. Turkey regarding admissibility in 1975, it interpreted jurisdiction according to this rule (Zwart, 1994, pp.110). This principle highlights the importance of authority and jurisdiction. Commissions must have clearly circumscribed mandate not just to have a clear outline of functions, responsibility and authority but also to provide limitations as to its power, particularly as it functions as an agent of states. The need for such mechanism of control is important for several reasons, the most important of these is the commissioners or the managers behavior. Egeberg (pp.5-6) cited several instances wherein the collegial behavior can work against the interest of member states. These are as follows: 1. If the commission is organized by geography, it is possible that states where a commissioner comes from will be at the forefront in his own portfolio and other assigned duties; 2. most commissioners are affiliated to political parties that can impose particular role expectations; 3. many commissioners are career politicians and their electability in their respective countries could affect their decisions; and, 4. commissioners are contracted on temporary basis and that their career objectives and prospects may affect their decisions. The first factor is one of the most serious as it concerns the questions of nationality and territorial constituencies. Those in high positions could find it hard to be objective or separate decision-making from their nationalities and their countries interests. It is also easy to understand how the above variables can mutually reinforce each other that result in a bigger dilemma in decision-making. Wonka (2008, pp.1147) also discussed this, offering detailed insights as he focused on the experience of the European Commission. He explained that the decision-making within the Commission operates within a four-scenario process: the national party scenario, the transnational party scenario; the national agent scenario and the portfolio scenario. The elements of these scenarios are similar to those provided by Egeberg only that they were further analyzed according to several dimensions: the positions that Commissioners take the rationale behind Commissioners; position-taking and the resulting coalitions and conflicts. Wonka identified the problems as more political in nature whereas Egeberg took a more classical point of view. Nonetheless, both provided valid arguments for the reasons why commissions do not and must not always function as an agent of the state. There numerous other reasons such as how there are commissions that have broad or even ambiguous mandates, which allow commissioners to establish a wide range of regulations, some of them may already be inimical to the interest of a state. Authority It has been cited elsewhere in this paper that the characteristics of commissions are diverse and so are their objectives, authorities and limitations. For the purpose of clearly identifying the aspects wherein a commission is not always an agent of the state, this section will focus on the case of the European Union. Article 17 of the Maastricht Treat or the Treaty on the European Union outlined the authority, responsibilities, function and jurisdiction of the Commission. The provision states that it can draft strategies, enforce treaties, apply the EU law, propose legislations, mediate and facilitate the legislative process, introduce and implement policies, draw up the European Union budget, among other executive and management responsibilities (Official Journal 2010). As Sbragia (1993, pp. 32) stated, the agency prods, cajoles, and generally tries to lead the members in making decisions and representing them in relevant treaties and conventions both for the purpose of integration and the safeguarding of the community’s interest. To demonstrate how the Commission exercises its powers, there is the example provided by a draft notice of cooperation published in September 1996. The notice involved the implementation of Articles 85(1) and 86, including the cooperation for non-implementation or for non-compliance by member states (Van Miert, 1997, pp.20). The Commission required its members to recognize the agency’s authority over cases that falls within the cited provisions. The notice was intended to address competition of authority and ensure national governments to cease adopting decisions that are incompatible to the Community law. The Commission established several mechanism to ensure compliance such as penalties and close monitoring and liaison initiatives. Van Miert (pp.20) reported that the response was generally positive both from the legal community and the national authorities. The scope of the Commission’s authority as agent of its members states are mostly in the area of economy and trade. A study on decision-making patterns within the Commission by Kaeding and Selck (2006, pp.280) listed specific areas addressed such as agriculture, development, employment, energy, fisheries, telecom, among other industries, in addition to social, health and cultural issues. An actual example is when the Commission – representing the EU - filed a lawsuit against Greece back in 1994 when the latter imposed a trade embargo against the Former Yugoslav Republic of Macedonia. The argument was that Greece violated the community’s legal regime, specifically, its prohibition of unilateral measures involving trade policies (Court of Justice of European Communities). Section 1 of the previously cited Article 17 explicitly provides that the Commission shall represent the member states in treaty negotiations and other bilateral and multilateral transactions that involve the European Union except in areas of common foreign policy and security policy. This is an expressed provision of limitation. These areas are reserved for the European Council within a framework called Common Foreign and Security Policy (CFSP) (Cini, pp.240) Another exception in the Commissions authority over EU’s economic governance and trade representation concerns fiscal policy. Collignon (2007, pp. 155) explained that while monetary policy is under the control of the community, budget decisions and policies are decentralized and taken in the context of national constituencies. Also, the European Treaties restricted the ability of the Commission to delegate its authority to a federal independent regulatory agency that is why it is forced to network national agencies and experts within umbrella organizations at the supranational level (Sabel and Zeitlin, 2010, pp.37). Conclusion All in all, the extent by of the Commission’s authority to represent the member states rests on its objective, which, fundamentally, is all about pursuing the European interest. The limitations to its role as representative of its member states are clearly defined: It cannot encroach on the common foreign and security policies, including certain areas of sovereignty that national authorities are not willing to cede to the European Union. The nature of the restrictions reflects the fact that the ability of the Commission as a supranational agent is limited by the political dynamics of regulatory governance. This variable is critical and could affect the ability of the Commission to adapt. As a public bureaucracy, it has a capacity to respond to multiple stimuli such as discrete events, ongoing developments and changes in the tone of relations between political actors and the bureaucracy. (Smith, 2001, pp.220) The Commission has been adept in perpetuating its power and recent literature has recognized, particularly its role the steady evolution of the European Union (Grande, 1996). The mandate by which the Commission is allowed to operate is broad. But the political dynamics at work in the territorial constituencies of its member states remain as the strongest challenge to the present and potential authority and jurisdiction of the agency. References Aldrich, H., 2007. Organizations and Environments. 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