E. Governance Mechanisms
IV. Implementation and Management
As stated initially, rulemaking shall not be considered in an isolated way. Governance implies the implementation of rules; global adminis-trative law encompasses sound administration. Specific methods for the implementation of international rules in science have already been men-tioned: ethics committees, independent expert bodies and funding pro-grammes, to name but a few.
2. Reporting and Benchmarking
The division between legal and social norms and the concomitant issue of the binding quality of rules put aside, what has been described up to this point including the issue of rule implementation could be summed up as governance by rules. The establishment of rules and their imple-mentation is a core target of legal scrutiny, in a way that standards and procedures for control in legal terms are in existence or can be estab-lished following more or less traditional patterns.
Nonetheless, in recent times, international institutions have often used different tools of governance. The mere reporting about the develop-ment in certain States with respect to a particular policy field may
68 Cf. above E. II. 2.
69 Cf. Sebastian Steinecke, (supra note 4), manuscript pp. 383 et seq.
E. Governance Mechanisms 109 tect progress and deficiencies – from the point of view of defined policy aims of the institutions – and encourage or even factually compel the government of the relevant State to take action. The policy aims may be defined in a common benchmarking procedure70.
To a great extent, the activities of the OECD in the field of science are operated alongside these mechanisms. The OECD Convention (1960) only contains scarce provisions carrying this process, and they are, of course, neither limited to nor specified at the field of science:
Article 3
With a view to achieving the aims set out in Article 1 and to fulfill-ing the undertakfulfill-ings contained in Article 2, the Members agree that they will:
(a) keep each other informed and furnish the Organisation with the information necessary for the accomplishment of its tasks;
(b) consult together on a continuing basis, carry out studies and par-ticipate in agreed projects; and
(c) co-operate closely and where appropriate take co-ordinated ac-tion.
On this basis of common consultation and information, the OECD regularly issues reports on the development of science and technology in its Member States71. Statistical data is collected and published bian-nually (Main Science and Technology Indicators – MSTI)72. In the field of governance of public research, six country studies on the main char-acteristics of the public research systems and the recent reforms under-taken in each country have been carried out and proved to be rather in-fluential73. Particular surveys have been undertaken with respect to
70 Cf. generally Dirk Lehmkuhl, Governance by Rating and Ranking, Paper presented at the annual meeting of the International Studies Association, 2005, available at http://www.allacademic.com//meta/p_mla_apa_research_citation/0 /7/0/7/3/pages70738/p70738-1.php.
71 Methodology OECD Country Notes for Science and Innovation (2008) – overview and link list available at http://www.kooperation-international.de/en/
oecd/themes/info/detail/data/37052/?PHPSESSID=c332&cHash=fa1045e23b.
72 http://www.oecd.org/document/26/0,3343,en_2649_34273_1901082_1_1_
1_1,00.html.
73 http://www.oecd.org/document/39/0,2340,en_2649_37417_2507879_1_1_
1_37417,00.html.
E. Governance Mechanisms 110
geting research and development74, respective tax incentives75 and the financing of research and development76. A current project analyses new approaches and governance mechanisms for multilateral co-operations in science, technology and innovation to address global chal-lenges77.
Of course, if shortcomings are detected in such reports and studies, this promotes public debate within the Member State and is likely to bring forward domestic policy changes – effects that could never have been reached by any rulemaking effort of the organisation. When (re-)con-sidering rulemaking and management in the field of science, such effects have to be taken into account to avoid the circumvention of legal cave-ats. It is also to be avoided that domestic representatives chose to im-plement policies via the OECD or other organisations that could not be implemented by way of the usual domestic procedures.
The EU has taken up this mode of governance in a very effective mechanism of governance referred to as co-ordination or sometimes
“open method of co-ordination” (OMC)78. Instead of establishing le-gally binding norms to be respected and implemented by the Member States, the EU fixes benchmarks on the basis of voluntary consulta-tions. Those benchmarks are not necessarily binding, but a continuous monitoring and reporting process reveals in regular terms which level of performance can be detected in the different Member States. The bare knowledge about success or bad performance in one Member State in relation to other Member States can create public pressure which may be at least as effective as binding legislation. It might be discussed
74 Targeting R & D: Economic and Policy Implication of increasing R&D Spending (Working Paper, 2003), OECD Doc. DSTI/DOC(2003)8 of 24 July 2003.
75 Tax Incentives for Research and Development: Trends and Issues, 2003, available at: http://www.oecd.org/dataoecd/12/27/2498389.pdf.
76 Public and Private Financing of Business R&D, available at http://www.
oecd.org/dataoecd/24/63/33719811.pdf.
77 OECD-Project “New governance approaches for multilateral research to address global challenges” – http://www.die-gdi.de/CMS-Homepage/openweb cms3_e.nsf/%28ynDK_contentByKey%29/MSIN-7V3GZD?OpenDocument
&nav=expand:Research%20and%20Consulting\Projects;active:Research%20a nd%20Consulting\Projects\MSIN-7V3GZD.
78 Cf. only Sabrina Regent, “The Open Method of Coordination: A New Supranational Form of Governance?”, European Law Journal 9 (2003), pp. 190-214.
E. Governance Mechanisms 111 that such influence upon legal and political systems of the Member States needed a specific treaty competence and cannot just be applied in shape of the “open method of co-ordination”, but this argument is met by the Lisbon Treaty, as the relevant text of Article 181 provides that
“(1) The Union and the Member States shall coordinate their re-search and technological development activities so as to ensure that national policies and Union policy are mutually consistent.”
and that the Commission may take initiatives
“(2)… aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.”
Similar to the EU’s employment policy, the coordination method ex-plicitly applies to research and technological development.
3. Management by Contract
A final technique to achieve research goals is relating to a legal tool, but not to the establishment of general rules. In some instances, interna-tional organisations are concluding contracts with research institutions whether inside or outside universities. This is a particular method of re-search sponsorship within the European Union79.
79 Matthias Ruffert (supra note 61), Art. 182, para. 8.