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PROJECT SUBMITTED FOR THE ASSESSMENT IN THE SUBJECT OF

ADMINISTRATIVE LAW

ON THE TOPIC OF

ADVANCEMENT OF GLOBAL ADMINISTRATIVE LAW WITH EMERGING


INTERNATIONAL TREATIES

DATE OF SUBMISSION: 24-09-2018

SUBMITTED BY: SUBMITTED TO:

CHANDAN BHATI (1432) PROFESSOR I.P. MASSEY

ARYAN TYAGI (1428) DEAN, FACULTY OF LAW

SEMESTER- V NATIONAL LAW UNIVERSITY, JODHPUR


ACKNOWLEDGEMENT

We feel highly elated to work on this project topic. The practical realization of this
project has obligated the assistance of many persons. We would like to thank my faculty
especially Professor I.P. Massey who gave us an opportunity to work on this project,
for his valuable guidance & support.
We would also like to thank the University & the Vice Chancellor for providing
extensive database resources in the library & through internet.
We would be grateful to receive comments & suggestions for further improvement and
of this project report.

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TABLE OF CONTENTS

Acknowledgement .................................................................................................................................. 2
Introduction ............................................................................................................................................ 4
The Emergence and Structure of the Global Administrative Law........................................................... 7
Types of Global Administration ............................................................................................................ 10
Treaty and executive Agreements- The Global Administrative Actors................................................. 10
Subjects of Global Administration ........................................................................................................ 13
Sources of Global Administrative Law .................................................................................................. 15
Doctrinal features of Global Administrative Law .................................................................................. 18
[A] Procedural Participation and Transparency ................................................................................ 19
[B] Reasoned Decisions ..................................................................................................................... 20
[C] Review ......................................................................................................................................... 21
[D] Substantive Standards: Proportionality, Means-Ends Rationality, Avoidance of Unnecessarily
Restrictive Means, Legitimate Expectations ..................................................................................... 22
[E] Exceptions: Immunities ............................................................................................................... 23
[F] Exceptions: Special Regimes for Certain Issue Areas? ................................................................. 24
Approaches to the Development of the Global Administrative Law .................................................... 25
[A]. The Bottom-Up Approach .......................................................................................................... 25
[B]. The Top-Down Approach............................................................................................................ 28
Case Study No. 1: How the International Treaties (Specifically establishing WTO) have established the
Global Administrative Law? .................................................................................................................. 29
[A] Does the Global Administrative Law exist in WTO? .................................................................... 29
[B]. The WTO Administrative Bodies and Global Administrative Law .............................................. 32
[C]. Whether WTO establishes Global Administrative Law?............................................................. 38
Case Study No. 2 – Administrative regulation by Supranational Bodies .............................................. 45
Recommendations and Conclusion ...................................................................................................... 48

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INTRODUCTION

The emerging patterns of global governance are being shaped by a little noticed but important
and growing body of global administrative law. This body of law is not at present unified and
indeed, it is not yet an organized field of scholarship or of practice. This Project is an effort to
systematize studies in diverse national, transnational, and international settings that relate to the
administrative law of global governance.

Using ideas developed in the first phases of this project, we begin the task of identifying, among
these assorted practices, some patterns of commonality and connection sufficiently deep and far
reaching as to constitute an embryonic field of global administrative law. We point to some
factors encouraging the development of common approaches, and to mechanisms of learning,
borrowing, and cross-referencing, that are contributing to a degree of integration in this field. We
also note some major constraints and enduring reasons for non-convergence.

We begin to assess the normative case for and against promotion of a unified field of global
administrative law, and for and against some specific positions within it. This draws on
publications by project contributors and others in this area, and seeks to carry this collective
enterprise forward; but the results remain preliminary. Underlying the emergence of global
administrative law is the vast increase in the reach and forms of trans-governmental regulation
and administration designed to address the consequences of globalized interdependence in such
fields as security, the conditions on development and financial assistance to developing
countries, environmental protection, banking and financial regulation, law enforcement,
telecommunications, trade in products and services, intellectual property, labour
standards, and cross-border movements of populations, including refugees.1

Increasingly, these consequences cannot be addressed effectively by isolated national regulatory


and administrative measures. As a result, various transnational systems of regulation or
regulatory cooperation have been established through international treaties and more
informal intergovernmental networks of cooperation, shifting many regulatory decisions
from the national to the global level.2 Further, much of the detail and implementation of such
regulation is determined by transnational administrative bodies including international
organizations and informal groups of officials that perform administrative functions but are not
1 David Zaring, International Law by Other Means: The Twilight Existence of International Financial
Regulatory Organizations, 43 TEX. INT’L L.J. 281, 287-91 (2015).
2 Paul S. Reinsch, International Administrative Law and National Sovereignty, 3 AJIL 1 (1990).

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directly subject to control by national governments or domestic legal systems or, in the case of
treaty-based regimes, the state’s party to the treaty.3

These regulatory decisions may be implemented directly against private parties by the global
regime or, more commonly, through implementing measures at the national level. Also
increasingly important are regulation by private international standard-setting bodies and by
hybrid public–private organizations that may include, variously, representatives of businesses,
NGOs, national governments, and intergovernmental organizations.4

This situation has created an accountability deficit in the growing exercise of transnational
regulatory power, which has begun to stimulate two different types of responses: first, the
attempted extension of domestic administrative law to intergovernmental regulatory decisions
that affect a nation; and second, the development of new mechanisms of administrative law at
the global level to address decisions and rules made within the intergovernmental regimes.

A somewhat different but related issue arises when regulatory decisions by a domestic authority
adversely affect other states, designated categories of individuals, or organizations, and are
challenged as contrary to that government’s obligations under an international regime to which it
is a party.5 Here one response has been the development by intergovernmental regimes of
administrative law standards and mechanisms to which national administrations must conform in
order to assure their compliance and accountability to the international regime. In order to
boost their legitimacy and effectiveness, a number of regulatory bodies not composed exclusively
of states hybrid public–private, and purely private bodies have also begun to adopt
administrative law decision making and rulemaking procedures.6

3 Krisch, ‘More Equal Than the Rest? Hierarchy, Equality and US Predominance in International Law’, in
M. Byers and G. Nolte (eds), United States Hegemony and the Foundations of International Law (2003)
135, at 149–159.
4 Kingsbury, ‘Omnilateralism and Partial International Communities: Contributions of the Emerging
Global Administrative Law’, 104 Journal of International Law and Diplomacy (2005) 98. See also
Kingsbury, Krisch and Stewart, supra note 2, 29–31
5 Ibid.
6 A. Trebilcock, “Implications of the UN Convention against Corruption for International Organizations:
Oversight, Due Process, and Immunities Issues”, in this symposium on “Global Administrative Law in
the Operations of International Organizations” (ed. L. Boisson de Chazournes, L. Casini, and B.
Kingsbury), 6:2 International Organizations Law Review (2009).

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These developments lead us to define global administrative law as comprising the mechanisms,
principles, practices, and supporting social understandings that promote or otherwise affect the
accountability of global administrative bodies, in particular by ensuring they meet adequate
standards of transparency, participation, reasoned decision, and legality, and by providing
effective review of the rules and decisions they make.7 Global administrative bodies include
formal intergovernmental regulatory bodies, informal intergovernmental regulatory networks and
coordination arrangements, national regulatory bodies operating with reference to an
international intergovernmental regime, hybrid public–private regulatory bodies, and some
private regulatory bodies exercising transnational governance functions of particular public
significance.8

In proposing such a definition, we also propose that much of global governance can be
understood and analysed as administrative action: rulemaking, administrative adjudication
between competing interests, and other forms of regulatory and administrative decision
and management.9 Domestic law presumes a shared sense of what constitutes administrative
action, even though it may be defined primarily in the negative as state acts that are not
legislative or judicial and even though the boundaries between these categories are blurred at the
margins.

Beyond the domain of the state, no such agreed functional differentiation prevails; the
institutional landscape is much more variegated than in domestic settings. Yet many of the
international institutions and regimes that engage in “global governance” perform functions that
most national public lawyers would regard as having a genuinely administrative character: they
operate below the level of highly publicized diplomatic conferences and treaty-making, but in
aggregate they regulate and manage vast sectors of economic and social life through specific
decisions and rulemaking.10

Conceptually, we believe, administrative action can be distinguished from legislation in the form
of treaties, and from adjudication in the form of episodic dispute settlement between states or

7 D’Aspremont, “Abuse of the Legal Personality of International Organisations and the Responsibility of
Member States”, International Organizations Law Review (2007) pp. 91–119.
8 L. Boisson de Chazournes, “Le panel d’inspection de la Banque Mondiale: a propos de la
complexification de l’espace public international”, 105 Revue Générale de Droit International Public
(2001) pp. 145–162
9 Supra note 2.
10 Ibid.

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other disputing parties. As in the domestic setting, administrative action at the global level has
both legislative and adjudicatory elements.11

It includes rulemaking, not in the form of treaties negotiated by states, but of standards and rules
of general applicability adopted by subsidiary bodies.12 It also includes informal decisions taken
in overseeing and implementing international regulatory regimes. As a matter of provisional
delineation, global administrative action is rulemaking, adjudications, and other decisions that are
neither treaty-making nor simple dispute settlements between parties.13

In this project, we seek to develop an approach to global administrative action by delineating and
elaborating what we believe is a nascent field of global administrative law. We survey major
issues and challenges in this nascent field, and begin to sketch elements of a research agenda for
its further development. We organize the paper by exploring, seriatim, five kinds of questions
that are central to current practice and further work: (1) questions about the basic structural
patterns of global administration, and how variance among them is shaping emerging
accountability mechanisms; (2) methodological and empirical questions concerning the
scope and sources of global administrative law, the mechanisms of accountability, and
the doctrinal principles that are currently in place or emerging in practice;(3) normative
questions about how to justify and defend such mechanisms;(4) institutional design
issues as to how such mechanisms should be designed in order to ensure accountability
without unduly compromising efficacy; and (5) positive political theory questions about
the emergence and design of such mechanisms and which factors may be conducive to
their success.

THE EMERGENCE AND STRUCTURE OF THE GLOBAL ADMINISTRATIVE LAW

The conceptualization of global administrative law presumes the existence of global or


transnational administration.14 We argue that enough global or transnational administration

11 A Global Administrative Law Bibliography, 68 L. & CONTEMP. PROBS. 357 (Summer/Autumn


2005).
12 David Zaring, Informal Procedure, Hard and Soft, in International Administration, 5 CHI. J. INT’L L.
547 (2005).
13 Krisch and Kingsbury, 'Introduction: Global Governance and Global Administrative Law in the
International Legal Order', 17 EJIL (2006) 1.
14 'Global Standards for National Administrative Procedure', 68:3 Law & Contemporary Problems (2005)
109, at 112-113.

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exists that it is now possible to identify a multifaceted “global administrative space” populated by
several distinct types of regulatory administrative institutions and various types of entities that
are the subjects of regulation, including not only states but also individuals, firms, and NGOs.
But this view is certainly contested.15 Many international lawyers still view administration largely
as the province of the state or of exceptional interstate entities with a high level of integration,
such as the European Union.16

In this view, which is complemented by what has hitherto been the largely domestic or
E.U. focus of administrative lawyers, international action might coordinate and assist
domestic administration, but given the lack of international executive power and
capacity, does not constitute administrative action itself.17 This view, however, is
contradicted by the rapid growth of international and transnational regulatory regimes with
administrative components and functions.18 Some of the densest regulatory regimes have
arisen in the sphere of economic regulation: the OECD networks and committees, the
administration and the committees of the WTO, the committees of the G-7/G-8,
structures of antitrust cooperation, and financial regulation performed by, among others,
the IMF, the Basle Committee and the Financial Action Task Force.19 Environmental
regulation is partly the work of non-environmental administrative bodies such as the World
Bank, the OECD, and the WTO, but increasingly far-reaching regulatory structures are being
established in specialized regimes such as the prospective emissions trading scheme and the
Clean Development Mechanism in the Kyoto Protocol.20

Administrative action is now an important component of many international security


regimes, including work of the U.N. Security Council and its committees, and in related
fields such as nuclear energy regulation (the IAEA) or the supervision mechanism of the

15 Ibid.
16 Supra note 5.
17 Karl Neumeyer, Internationales Verwaltungsrecht: Völkerrechtliche Grundlagen, in 1 Wörterbuch Des
Völkerrechts Und Der Diplomatie 577, 577-81 (Karl Strupp ed., 1924); see also Gascón y Marin, supra
note 8, at 9-24.
18 Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship
in Germany and France, 1920s–1950s, 113 YALE L.J. 1341 (2004).
19 Sidney Shapiro, International Trade Agreements, Regulatory Protection, and Public Accountability, 54
ADMIN. L. REV. 435, 453-57 (2002).
20 WTO Appellate Body, United States—Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R Doc. No. 98-3899 (Oct. 12, 1998).

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Chemical Weapons Convention. Reflection on these illustrations immediately indicates that
the extraordinarily varied landscape of global administration results not simply from the highly
varied regulatory subject areas and correlative functional differentiations among institutions, but
also from the multi-layered character of the administration of global governance.21

In this heading, We seek to provide some conceptual tools for organizing the analysis of these
diverse phenomena by identifying the different structures and subjects of global administration
and by positing the notion of a global administrative space.22This enterprise in some measure
builds on conceptions of international administration and international administrative
law that developed from the midnineteenth century and became prevalent in the 1920s
and 1930s.23 The idea of analyzing transnational governance as administration subject to
distinctive administrative law principles appears, for instance, in the work of late-nineteenth
century social reformers and institution builders, as in Lorenz von Stein’s conception of
international public health work in administrative terms.24 This administrative approach was
spurred by the rise of international regulatory institutions, “international unions,” dealing with
such matters as postal services, navigation, and telecommunications, sometimes with significant
powers of secondary rulemaking that did not require national ratification to be legally effective.25

21 J.L. Brierly, Règles générales du droit de la paix, 58 RECUEIL DES COURS 5, 47-52 (1936).
22 Martin Shapiro, The Institutionalization of European Administrative Space, in THE
INSTITUTIONALIZATION OF EUROPE 94 (Alec Stone Sweet et al. eds., 2001); DER
EUROPÄISCHE VERWALTUNGSRAUM (Heinrich Siedentopf ed., 2004).
23 Anna Leander, Conditional Legitimacy, Reinterpreted Monopolies: Globalisation and the Evolving
State Monopoly on Legitimate Violence, COPRI Working Paper 2002/10, 18, at
http://www.ciaonet.org/wps/lea04.pdf; Elke Krahmann, Private Firms and the New Security
Governance, 5 CONFLICT, SECURITY AND DEVELOPMENT (2005); Peter W. Singer, War, Profits,
and the Vacuum of Law: Privatized Military Firms and International Law, 42 COLUM. J. OF
TRANSNAT’L L. 521 (2004).
24 Michel Foucault, Governmentality, in T HE FOUCAULT EFFECT: STUDIES IN
GOVERNMENTALITY 87 (Graham Burchell et al. eds., 1991); see also Christian Joerges, The Turn to
Transnational Governance and its Legitimacy Problems: The Examples of Standardization and Food
Safety,
http://www.law.nyu.edu/kingsburyb/spring04/globalization/Joerges%20Draft4%20%20g%20Feb%200
4.doc.
25 Supra note 10.

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The cooperation of domestic administrative actors that took place in the framework of these
unions, and the centrality of domestic actors for the success of the regimes in question, led some
authors to adopt broad notions of “international administration” that included both international
institutions and domestic administrative actors when taking actions with transboundary
significance. Our conceptualization of global administration seeks to revitalize the broader vision
that lay behind those earlier approaches.26

TYPES OF GLOBAL ADMINISTRATION

There are five main types of globalized administrative regulation are distinguishable:(1)
administration by formal international organizations; (2) administration based on collective
action by transnational networks of cooperative arrangements between national regulatory
officials; (3)distributed administration conducted by national regulators under treaty,
network, or other cooperative regimes; (4) administration by hybrid intergovernmental–
private arrangements; and (5) administration by private institutions with regulatory functions.
In practice, many of these layers overlap or combine, but we propose this array of ideal types to
facilitate further inquiry.27

The “administrative tribunals” of international organizations, and associated review mechanisms,


have long been concerned with a narrow but important aspect of international administration
relating to the rights of staff members of these organizations and to general issues concerning
the international civil service.28

TREATY AND EXECUTIVE AGREEMENTS- THE GLOBAL ADMINISTRATIVE ACTORS

26 Ibid.
27 Andrew Moravcsik, Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 39
GOVERNMENT AND OPPOSITION 336 (2004).
28 Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship
in Germany and France, 1920s–1950s, 113 YALE L.J. 1341 (2004).

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In international administration, formal inter-governmental organizations established by treaty or
executive agreement are the main administrative actors.29A central example is the U.N.
Security Council and its committees, which adopt subsidiary legislation, take binding
decisions related to particular countries (mostly in the form of sanctions), and even act
directly on individuals through targeted sanctions and the associated listing of persons
deemed to be responsible for threats to international peace. Similarly, the United
Nations High Commissioner for Refugees has assumed numerous regulatory and other
administrative tasks, such as conducting refugee status determinations and
administering refugee camps in many countries.30Other examples include the World Health
Organization’s assessing global health risks and issuing warnings, the Financial Action Task
Force’s assessing policies against money-laundering and sanctioning violations by specific states
of the standards it has adopted, the compliance mechanisms of the Montreal Protocol under
which subsidiary bodies of an administrative character deal with non-compliance by Parties to
the Protocol, and the World Bank’s setting standards for “good governance” for specific
developing countries as a condition for financial aid.31 Transnational networks and coordination
arrangements, by contrast, are characterized by the absence of a binding formal decision making
structure and the dominance of informal cooperation among state regulators.32 This horizontal
form of administration can, but need not, take place in a treaty framework.

For example, the Basle Committee brings together the heads of various central banks,
outside any treaty structure, so they may coordinate on policy matters like capital
adequacy requirements for banks.33The agreements are non-binding in legal form but can be
highly effective. A different example is the pressure WTO law exerts for mutual recognition of
regulatory rules and decisions among member states, thus establishing a strong form of
horizontal cooperation through which regulatory acts of one state automatically gain validity in
another. National regulators also develop, on a bilateral basis, arrangements for mutual

29 Gerhard Hoffmann, Internationales Verwaltungsrecht, in BESONDERES VERWALTUNGSRECHT


781 (Ingo von Münch ed., 6th ed. 1982).
30 L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in
Germany and France, 1920s–1950s, 113 YALE L.J. 1341 (2004).
31 Ibid.
32 Benedict Kingsbury, The Administrative Law Frontier in Global Governance, 99 PROC. AM. SOC.
INT’L L (2009).
33 Supra note 21.

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recognition of national regulatory standards or conformity procedures and other forms of
regulatory coordination, such as regulatory equivalence determinations.34

In distributed administration, domestic regulatory agencies act as part of the global


administrative space: they take decisions on issues of foreign or global concern. An example is
in the exercise of extraterritorial regulatory jurisdiction, in which one state seeks to regulate
activity primarily occurring elsewhere.35 In some circumstances, such regulation is subject to
substantive limitations and even procedural requirements established internationally, as has
become evident from the WTO Appellate Body’s 1998 ruling in United States Import
Prohibition of Certain Shrimp and Shrimp Products (Shrimp–Turtle).36But even domestic
administration without immediate extraterritorial effects may be part of the global administrative
space, especially when it is charged with implementing an international regime.37

National environmental regulators concerned with biodiversity conservation or greenhouse gas


emissions are today often part of a global administration, as well as part of a purely national one:
they are responsible for implementing international environmental law for the achievement of
common objectives, and their decisions are thus of concern to governments (and publics) in
other states, as well as to the international environmental regime they are implementing.
Arrangements for mutual recognition of standards and certifications between particular national
regulators might also have some of the qualities of distributed administration, although opinions
vary sharply as to how best to understand the mosaic of mutual recognition agreements and
comparable cooperative approaches.38

34 James Salzman, Seattle’s Legacy and Environmental Reviews of Trade Agreements, 31 ENVTL. L. 501
(2001).
35 Public Citizen v. United States Trade Representative: The (Con) Fusion of APA Standing and the
Merits under NEPA, 19 HARV. ENVTL. L. REV. 157 (1995)
36 Ibid.
37 For the Security Council’s general procedure see Guidelines of the Security Council Committee
Established Pursuant to Resolution 1267 (1999) for the Conduct of its Work, Nov. 7, 2002 as amended
April 10, 2003, at http://www.un.org/Docs/sc/committees/1267/1267_guidelines.pdf. For
commentary on the de-listing decision, see Per Cramér, Recent Swedish Experiences with Targeted U.N.
Sanctions: The Erosion of Trust in the Security Council, in REVIEW OF THE SECURITY COUNCIL
BY MEMBER STATES 85, 94-95 (Erika de Wet & André Nollkaemper eds., 2003).
38 Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the
Relationship Between the German Federal Constitutional Court and the European Court of Justice, 36
COMMON MARKET L. REV. 351 (1999).

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SUBJECTS OF GLOBAL ADMINISTRATION

Correlatively, global governance is the governance of states’ behaviour with regard to other
states. Increasingly however, regulatory programs agreed to at the international level by states
are effectuated through measures taken by governments at the domestic level to regulate private
conduct.39 Coordinated regulation of private conduct is often the very purpose of the
international scheme in fields such as regulation of pollution or financial practices. In classical
theory the domestic regulatory measures are the implementation by states of their international
obligations. Private actors are formally addressed only in the implementation stage, and that is
solely a domestic matter. But the real addressees of such global regulatory regimes are now
increasingly the same as in domestic law: namely, individuals (as both moral agents and
economic and social actors) and collective entities like corporations and, in some cases, NGOs.40

This characterization is most powerful when international bodies make decisions that have direct
legal consequences for individuals or firms without any intervening role for national government
action.41 Examples include certification of CDM projects by the Kyoto Protocol Clean
Development Mechanism, UNCHR determinations of individuals’ refugee statuses, and
certification of NGOs by U.N. agencies as being specifically authorized to participate in their
procedures.42 The notion that private actors are the subjects of global regulation is also evident
in much of the regulatory governance accomplished through networks, wherein the national
regulatory officials perform both an international-level role, deciding collectively with
counterparts on regulatory requirements applicable to private firms (for example, commercial
banks), and a domestic-level role in implementing and enforcing those same norms with respect
to the regulated firms within their jurisdiction.43 This is even more evident in the case of private
governance arrangements such as ISO, wherein most standards are designed for implementation
by private firms, even if they may also be implemented in national law. In other situations, the
aim of the international regime is to achieve desired changes in private conduct by imposing

39 Henri Labayle et al., Droit administratif et Convention européenne des droits de l’homme, 11 REVUE
FRANÇAISE DE DROIT ADMINISTRATIF 1172 (1995)
40 Ngaire Woods & Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF
and the World Bank, 53 INT’L SOC. SCI. J. 569 (2011).
41 Ibid.
42 J.L. Brierly, Règles générales du droit de la paix, 58 RECUEIL DES COURS 5, 47-52 (1936).
43 Ibid.

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regulatory obligations on states and supervising the manner in which states regulate the private
actors subject to their jurisdiction.44

These arrangements are similar to models of multi-level governance that have been developed to
understand the European Union and the “European administrative space.” Examples include
the Convention on International Trade in Endangered Species (CITES), the Montreal Protocol
on ozone layer depletion, the Basel Convention on hazardous wastes, and the Conventions of
the International Labour Organization (ILO).45The international administrative bodies
responsible for promoting and supervising implementation often play a major regulatory role,
outside of and contrary to the classical theory. In many instances, the administrative bodies in
question have assumed a mixed public–private governance structure in which firms and NGOs
participate along with representatives of states; this builds on the longstanding approach
exemplified by the tripartite governance structure of the ILO based on national delegations
representing governments, employers, and labour.46

In yet other areas, states are the primary subjects of global regulation, which is undertaken to
protect or benefit distinct groups of individuals, private market actors, or social interests.
Examples include the “good governance” and rule of law standards and the environmental
standards imposed by agencies such as the World Bank as conditions for financial assistance to
developing countries, including requirements for environmental impact assessments for
development projects.47

Finally, in some areas of regulatory administration, such as international security, the classical
view that global governance is directed at the behavior of governments toward other
governments, rather than toward private actors, still has great force. However, even here the
growing privatization of international security activities, like the growing use of private
contractors to carry out traditional state functions in situations such as the military occupation of
Iraq, is beginning to erode the classical view.

44 Martin Shapiro, The Institutionalization of European Administrative Space, in THE


INSTITUTIONALIZATION OF EUROPE 94 (Alec Stone Sweet et al. eds., 2001); DER
EUROPÄISCHE VERWALTUNGSRAUM (Heinrich Siedentopf ed., 2004).
45 Ibid.
46 Peter W. Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law,
42 COLUM. J. OF TRANSNAT’L L. 521 (2004).
47 Andrew Moravcsik, Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 39
GOVERNMENT AND OPPOSITION 336 (2014).

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These various examples suggest that differences in the subjects of global administrative
regimes—in some cases individuals or firms, in others both states and market actors, in others
states with distinct groups of individuals, market actors, NGOs, or social interests as the
beneficiaries, and in still others states alone might depend on differences in the subject area, the
objectives of regulation, and the functional characteristics of the regulatory problem.48

SOURCES OF GLOBAL ADMINISTRATIVE LAW

The formal sources of global administrative law include the classical sources of public
international law treaties, custom, and general principles but it is unlikely that these sources are
sufficient to account for the origins and authority of the normative practice already existing in
the field. Only rarely do treaties directly address issues of administrative law.49

Insofar as they spell out principles of administrative procedure, they are usually addressed to and
binding on states, not international institutions or intergovernmental networks of national
officials. Customary international law is still generally understood as being formed primarily by
state action and thus for the time being does not fully incorporate the relevant practice of non-
state actors, such as global administrative bodies. Finally, the use of “general principles of law”
as a source of international law has been limited mainly to internal needs of international
institutions or to norms on which there is a high degree of worldwide convergence. The
acceptance of general principles in the practice of formal international law has been low and is
unlikely to be extended quickly to the diverse and fragmented contexts of global administration.

It may be that a better account of the legal sources of existing normative practice in global
administration could be grounded in a revived version of jus gentium that could encompass
norms emerging among a wide variety of actors and in very diverse settings, rather than
depending on a jus inter gentes built upon agreements among states.50 This approach would
mirror, to some extent, law-making procedures in other fields of law beyond the state, such as

48 Peter L. Lindseth, The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship
in Germany and France, 1920s–1950s, 113 YALE L.J. 1341 (2004).
49 James Salzman, Seattle’s Legacy and Environmental Reviews of Trade Agreements, 31 ENVTL. L. 501
(2001).
50 Ibid.

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the lex mercatoria, based on the practices of commercial actors worldwide. Yet the foundations
for possible development of a jus gentium of global administration.51

If it is proposed to reflect not a natural law approach but one founded upon practice, uncertainty
remains about the basis for determining such norms and their legal status. That general
principles of law require such a high convergence of legal systems reflects a strong commitment
to inclusiveness, and to preventing impositions by one group of states on the rest.52 The jus
gentium, however attractive a category it may be for global administrative law, will have to face
this challenge too. Yet even among the traditional sources of public international law, there
might be room for development of norms relevant to global administrative law.53 In the case of
treaty law, it might be possible to adopt the approach developed by the European Court of
Human Rights (ECHR), which has had to deal with the problem that the European Convention
on Human Rights (ECHR) does not formally bind intergovernmental organizations or the
European Union.54

The ECtHR requires member states to ensure that the institutions on which they confer powers
provide a level of protection equivalent to the protection provided by the ECHR. Applying such
an approach more broadly would supply at least a basic set of standards for global administrative
bodies, but it would not solve problems of how to transplant or adapt rich sets of domestic
norms to transnational and inter-state institutions, much less hybrid private–public or purely
private bodies. A final problem of sources concerns the status of domestic law.55

Domestic law is a controlling source of law for domestic administration and thus for national
administrative agencies either implementing global law or acting as a part of global administrative
structures, or both. Domestic courts may also provide a forum for redress when global
administrative bodies act directly on private parties. Through these means, domestic law can
help ensure accountability of global administration; and a subtle architecture of accountability

51 Jane A. Restani & Ira Bloom, Essay, Interpreting International Trade Statutes: Is the Charming Betsy
Sinking? 24 FORDHAM INT’L L.J. 1533 (2001).
52 Mattias Kumm, Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the
Relationship Between the German Federal Constitutional Court and the European Court of Justice, 36
COMMON MARKET L. REV. 351 (1999).
53 Ibid.
54 Matthews v. United Kingdom, App. No. 24833/94, 28 Eur. H.R. Rep. 361, para. 32 (1999).
55 Supra note 54.

Page | 16
centred on domestic mechanisms might be a means to reflect the varying normative
commitments of each national society and thus accommodate diversity.56

Yet domestic mechanisms established and operated according to local predilections might not
meet the functional needs for a degree of global commonality in principles and mechanisms, and
for responsiveness to the particular features of specific global administrative regimes. Conflicts
between domestic law, particularly constitutional law, and these global needs might be difficult to
resolve except by pragmatic temporary accommodations.57 It is too soon to know how the
regular and robust application of domestic law to national participation in transnational or global
administrative bodies, or directly to decisions of such bodies, would affect the functioning of
these bodies.58

On the balance to be struck in administrative law proceedings in U.S. courts between upholding
international law rules were subject to diverse national requirements, procedural as well as
substantive, the bodies might have great difficulty operationalizing the commonality necessary
for effective regulation and management.59 Varying domestic controls might also hamper the
ability of domestic regulatory officials to participate effectively in global regulatory
decisionmaking. Since the traditional dualist separation between the domestic and the
international is not sustainable in the integrated global administrative space, the relationship
between these requires both continuous pragmatic readjustment and deeper re-theorizing.60

Even if agreement were reached on identifying the formal sources of global administrative law,
in terms of either traditional international law or a revived ius gentium approach, it is unlikely
that a definitive and detailed body of rules and principles governing global administration could
presently be formulated, even in relation to formal intergovernmental arrangements. Written
intergovernmental instruments concerning such norms are scattered and relatively sparse, the

56 Peter Gutherie, Security Council Sanctions and the Protection of Individual Rights, 60 N.Y.U. ANN.
SURV. AM. L. 491, 512-14 (2004).
57 James Salzman, Decentralized Administrative Law in the Organization for Economic Cooperation and
Development, 68 L. & CONTEMP. PROBS. 189 (Summer/Autumn 2005).
58 John Ruggie, Taking Embedded Liberalism Global: The Corporate Connection, in TAMING
GLOBALIZATION: FRONTIERS OF GOVERNANCE 93, 105-06 (David Held & Mathias Koenig-
Archibugi eds., 2010).
59 See Shrimp–Turtle, supra note 16.
60 Ngaire Woods & Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF
and the World Bank, 53 INT’L SOC. SCI. J. 569 (2001).

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practices of global administrative bodies are fragmented, and formal domestic norms vary
considerably even if some convergence is occurring. Hybrid and private global regulatory
arrangements are not directly subject to many of these rules and principles, and the status of the
emerging administrative legal principles and practices in relation to such hybrid and private
systems is largely undetermined.61

Moreover, under a jus gentium approach, disagreement is inevitable about whose practices to
count and who’s not to count for the emergence of a rule, and as to how much consistent
practice might be necessary to generate a strong pull for adhesion. Should the adoption (or non-
adoption) of accountability mechanisms in an international institution count more toward (or
against) a new norm than adoption (or non-adoption) in an informal inter-governmental network
or in a hybrid institution with private participation? Such questions of methodology require
considerable future work.

DOCTRINAL FEATURES OF GLOBAL ADMINISTRATIVE LAW

Emerging Principles and Requirements In addition to its variety of institutional mechanisms,


global administrative law comprises some basic legal principles and requirements of both a
procedural and substantive character.62Given the fragmentation of practice in global
administration and the limited state of integrated knowledge about it, we cannot here venture
claims about the doctrinal elements governing this field as a whole. But some candidates can be
preliminarily identified, even though their reach may at present be limited. It will be a central
task for further research to show the extent to which these and other elements are in fact
reflected in global administrative practice, and the extent to which they could be applied or
adapted to areas of international or transnational regulation, in which administrative law is
currently rudimentary or non-existent.63

61 Ibid.
62 Steve Suppan, Consumers International’s Decision-Making in the Global Market, Codex Briefing Paper
(2004), at http://www.tradeobservatory.org/library.cfm?RefID=36988.
63 Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice
in Environmental Matters, June 25, 1998, 38 I.L.M. 517 (entered in force Oct. 30, 2001) [hereinafter
Aarhus Convention].

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[A] PROCEDURAL PARTICIPATION AND TRANSPARENCY

In domestic settings, the right of affected individuals to have their views and relevant
information considered before a decision is taken is one of the classical elements of
administrative law. Versions of such a principle are increasingly applied in global administrative
governance, as a few examples illustrate. Regarding administrative action by one state affecting
another, the WTO Appellate Body observed in the Shrimp–Turtle case that the United States
had provided none of the states whose exports of shrimp products to the United States had been
curtailed by domestic U.S. administrative regulations with a “formal opportunity to be heard, or
to respond to any arguments that may be made against it,” and required the United States to
provide mechanisms for procedural participation.64

Regarding administrative action by an intergovernmental body affecting particular states, even


non-Member States have been provided an opportunity for comment before they are placed on a
list of non-compliant states by the Financial Action Task Force. Regarding individuals, an
opportunity to be heard is emphasized in the IOC’s recent World Anti-Doping Code, in which
normative principles of administrative law are applied to constrain administrative decision
making in a private institutional setting. In contrast, in the context of U.N. Security Council
economic sanctions against states that will affect individuals and groups living or doing business
within those states, no structure has been established for participation by such potentially
affected groups prior to a sanctions decision, although in the special case of people listed for
asset-freezing under anti-terrorism resolutions, a limited form of subsequent challenge and
review has been instituted. Participation in global administrative proceedings has not been
confined to individuals or states targeted by decisions.65

In the area of standard-setting and rulemaking, several bodies, such as the Codex Alimentarius
Commission, have sought to include in their work NGOs representing affected social and
economic interests. Domestic regulators, too, have begun to give notice of proposed standards
being considered in global negotiations in which they participate. However, participation rights
in rulemaking have been afforded in only a limited number of instances and areas. Decisional
transparency and access to information are important foundations for the effective exercise of

64 Supra note 66.


65 Supra note 66.

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participation rights and rights of review.66 They also promote accountability directly by exposing
administrative decisions and relevant documents to public and peer scrutiny. Increasingly,
international bodies such as the World Bank, the IMF, and the WTO are responding to criticism
of decision making secrecy by providing wider public access to internal documents.
Involvement of NGOs in decision making, as in the Codex example, is another means of
promoting transparency. 67 Regulatory networks, such as the Basle Committee and IOSCO, have
developed web sites that contain abundant material on internal decision making and the
information and considerations on which decisions are based. Similar steps have been taken by a
variety of hybrid public–private global regulatory networks, such as those dealing with
sustainable forestry certification. These developments are generally voluntary for the regime in
question. There have also been some international agreements providing for transparency at
both the level of global regimes and of domestic administration, especially in the environmental
field. The public access to environmental information provisions of the Aarhus Convention,
which apply both to international organizations and to states that are parties, is a prominent
example. The WTO, the World Bank, and the IMF are examples of international bodies that
have developed transparency requirements for national administrations.

[B] REASONED DECISIONS

The requirement of reasons for administrative decisions, including responses to the major
arguments made by the parties or commenters, has been extended from domestic law into some
global and regional institutions.68 The international practice outside adjudicatory tribunals is
relatively thin, partly because the number of decisions by global administrative agencies directly
affecting particular persons is, although growing, still limited.69 The Shrimp–Turtle decision and

66 John Joseph Cremona, The Proportionality Principle in the Jurisprudence of the European Court of
Human Rights, in RECHT ZWISCHEN UMBRUCH UND BEWAHRUNG 323 (Ulrich Beyerlin et al.
eds., 1995).
67 Ibid.
68 Ibid.
69 Krabbe v. IAAF et al., Oberlandesgericht Munich, 17 May 1995, cited in GABRIELLE KAUFMANN-
KOHLER, ANTONIO RAGOZZI & GIORGIO MALINVERNI, LEGAL OPINION ON THE
CONFORMITY OF CERTAIN PROVISIONS OF THE DRAFT WORLD ANTI-DOPING CODE

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subsequent WTO case law are of central importance in establishing principles of reasoned
decision making for global administrative regulation, as is the Security Council’s decision to
require, at least internally, some kind of justification by the proposing country before an
individual is included in the lists of those whose assets are to be frozen.70 Similarly, in the global
anti-doping regime, a written, reasoned decision has been made a requirement for measures
against a particular athlete. In the area of rulemaking, however, it does not seem to have become
a practice of global administrative bodies to give reasons, though some organizations provide
them in order to strengthen the acceptability of their actions to affected interests.71 The Basle
Committee, for example, has established a web-based dialogic process in developing its new
capital adequacy requirements for banks; drafts are posted, comments are invited, and reasons
are given by the Committee in connection with new and revised drafts. The World Bank’s
International Finance Corporation has followed a similar procedure for revision of its safeguards
policies.72

[C] REVIEW

An entitlement to have a decision of a domestic administrative body affecting one’s rights


reviewed by a court or other independent tribunal is among the most widely accepted features of
domestic administrative law, and this is to some extent mirrored in global administration.73 An
entitlement to review by national authorities was mentioned in the Shrimp–Turtle decision.
Acceptance of the importance of review is reflected in the establishment of the World Bank
Inspection Panel, and also in the right of appeal to the Court of Arbitration for Sport from
doping decisions. Some international human rights instruments treat access to a court to
challenge detrimental decisions as a human right, as, for example, Article 14 of the International

WITH COMMONLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW 32, 121 (2013),


available at http://www.wada-ama.org/rtecontent/document/kaufmann-kohler-full.pdf.
70 Fogarty v. United Kingdom, App. No. 37112/97 34, Eur. H.R. Rep. 302 (2001).
71 Waite and Kennedy v. Germany, 30 Eur. H.R. Rep. 261 (1999).
72 Ibid.
73 Iain Cameron, UN Targeted Sanctions, Legal Safeguards and the European Convention on Human
Rights, 72 NORDIC J. OF INT’L L. 159 (2003).

Page | 21
Covenant on Civil and Political Rights, and Articles 6 and 13 of the ECHR (although each of
these provisions circumscribes its operation in various ways).74

In several cases, the European human rights bodies have confirmed the importance of this right
in relation to administrative decisions by intergovernmental bodies.75 Under both Article 6 and
Article 13 of the ECHR, state parties must ensure that the procedural standards of the
international organizations of which they are members are equivalent to their domestic
standards. As for staff employment issues, most international organizations have established
review mechanisms, often involving independent tribunals. How far a right of review is accepted
in different governance areas and with what limitations, and what institutional mechanisms it
encompasses in such areas, are all unresolved questions.76

Despite strong calls for effective review mechanisms in several important areas, these have not
been instituted. For example, the Security Council has failed to establish an independent body to
scrutinize its sanctions decisions. Similarly, the UNHCR has so far accepted only internal
mechanisms of supervision. Even in the transitional administration of territories such as Bosnia,
Kosovo, or East Timor, international organizations have not been willing to accept a right of
individuals to obtain review of intergovernmental agency actions before courts or by other
independent bodies with greater powers than ombudspersons.77

[D] SUBSTANTIVE STANDARDS: PROPORTIONALITY, MEANS-ENDS RATIONALITY,


AVOIDANCE OF UNNECESSARILY RESTRICTIVE MEANS, LEGITIMATE EXPECTATIONS

Especially when individual rights are placed at the forefront, global administrative law might be
expected to embody substantive standards for administrative action, like those applied in a
domestic context such as proportionality, rational relation between means and ends, use of less

74 Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in STATES,
NATIONS, AND BORDERS: THE ETHICS OF MAKING BOUNDAIRES, 275, 278-87 (Allen
Buchanan and Margaret Moore eds., 2003).
75 B. Martenczuk, The Security Council, the International Court and Judicial Review: What Lessons from
Lockerbie? 10 E.J.I.L. 517 (1999).
76 Jose E. Alvarez, Judging the Security Council, 90 A.J.I.L. 1 (1996).
77 Ibid.

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restrictive means, or legitimate expectations.78 Proportionality is a central issue in the
jurisprudence of some international human rights regimes: in the ECHR, for example,
interference with many individual rights can be justified, but only if (inter alia) the interference is
proportionate to the legitimate public objective pursued. The proportionality principle is
reflected also in some national court decisions on global governance, such as a German court
decision critical of a ruling by an international sports federation in a doping case because it
imposed disproportionate sanctions. Similarly, restrictions conflicting with the general rules of
free trade under the GATT are allowed only if they meet certain requirements designed to ensure
a rational fit between means and ends, and employ means that are not more trade-restrictive than
reasonably necessary to accomplish the relevant regulatory objective.79 Yet in many other areas
of global administration, the application of such requirements has so far been minimal.

[E] EXCEPTIONS: IMMUNITIES

Regarding the immunity of foreign states, national courts have long taken account of the
competing interests of private parties, in particular by excluding purely commercial activities
from the realm of immunity and thus allowing, for example, for the enforcement of contracts. 80
The law on immunities of international organizations in national courts has not yet integrated
such a range of competing values, although there are fragmentary signs of the beginnings of a
shift in this direction. In Waite and Kennedy v. Germany, applicants to the ECtHR complained of a
German court decision refusing to reach the merits of the applicants’ labour law claim against
the European Space Agency (ESA) on the grounds that the ESA, as an inter-governmental
organization, enjoyed immunity from suit under German law.81

The ECtHR held that the German court decision did not violate Article 6 § 1 (right of access to
a tribunal) of the ECHR. However, the ECtHR applied a test of proportionality and weighed in
the balance the possibility of internal remedies for the applicants within the ESA, as well as

78 Benedict Kingsbury, People and Boundaries: An “Internationalized Public Law” Approach, in


STATES, NATIONS, AND BORDERS 298, 299-302.
79 Graeme B. Dinwoodie and Rochelle Cooper Dreyfuss, International Intellectual Property Law and the
Public Domain of Science, 7 J. INT’L ECON. L. 431 (2014).
80 Metalclad Corp. v. Mexico, 40 I.L.M. 55, para 33. (NAFTA/ICSID (AF), 2001); see also Aguas del
Tunari S.A. v. Republic of Bolivia, Case No. ARB/02/3, pending before the ICSID Tribunal.
81 Supra note 130.

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possible remedies against private firms contracting to supply the applicants’ labour to the ESA.
This approach of balancing human rights claims against immunity claims creates pressures for
such agencies to adopt adequate alternative procedures for vindication of human rights.82 In a
later case, Fogarty v. United Kingdom, the ECtHR concluded: Measures taken by a High
Contracting Party which reflect generally recognised rules of public international law on State
immunity cannot in principle be regarded as imposing a disproportionate restriction on the right
of access to court as embodied in article 6(1).83 Just as the right of access to court is an inherent
part of the fair trial guarantee in that article, so some restrictions on access must likewise be
regarded as inherent, an example being those limitations generally accepted by the community of
nations as part of the doctrine of State immunity.

This recognizes that public international law entails some restrictions on remedial protections for
human rights, but the reference to the proportionality concept asserts that traditional immunities
may no longer be absolute.84

[F] EXCEPTIONS: SPECIAL REGIMES FOR CERTAIN ISSUE AREAS?

In national administrative law, not all mechanisms of accountability apply to the whole range of
domestic administrative actors.85 Exceptions, or at least lower standards, commonly apply, for
instance, to matters of national security and to the decisions of central banks. Careful
consideration is needed as to the extent to which such exceptions ought to be replicated in global
administration.86In security matters, the Security Council sanctions regime has established

82 Francesca Bignami, Three Generations of Participation Rights before the European Commission, 68 L.
& CONTEMP. PROBS. 61 (Winter 2010).
83 Martin Shapiro, “Deliberative,” “Independent” Technocracy v. Democratic Politics: Will the Global
Echo the E.U.? 68 L. & CONTEMP. PROBS. 341 (Summer/Autumn 2005).
84 Ibid.
85 For a similar problem in the E.U. context, see Renaud Dehousse, Beyond Representative Democracy:
Constitutionalism in a Polycentric Polity, in EUROPEAN CONSTITUTIONALISM BEYOND THE
STATE 135 (Joseph H.H. Weiler & Marlene Wind eds., 2003).
86 Ibid.

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minimal standards for participation, reason-giving, and review, but it has not entirely brushed
aside the demands for stronger accountability mechanisms.87

As for central banks, the European Central Bank has stimulated transnational debate on balances
of accountability and independence. In the related area of bank supervision, the Basle
Committee has already made significant efforts at broader participation, and national legislatures
have begun to press for reports from the national participants in various intergovernmental
regulatory regimes before these participants agree to any new recommendations. Reflecting the
enormous variations across different global governance arrangements, the current practice is
highly variegated. Even in a single organization with multiple areas of competence such as the
OECD, different standards of procedural openness prevail in different issue areas, often
reflecting the respective cultures in the different issue areas prevalent in national
administrations.88

APPROACHES TO THE DEVELOPMENT OF THE GLOBAL ADMINISTRATIVE LAW

[A]. THE BOTTOM-UP APPROACH

The bottom-up approach attempts to ensure legality, accountability, and participation in global
administration through extending (and adapting) the tools of domestic administrative law.
Pressures for such extension arise when it appears that transnational or global governance
institutions are taking over formerly national administrative functions that were previously
subject to domestic administrative law mechanisms of transparency, participation, and review,
but are not so constrained at the global level.89 Such pressures intensify when it appears that
national regulators participating in this extra national governance are using it to shelter their
actions from effective review at the domestic level. In order to remedy this circumvention of
domestic administrative law safeguards, the bottom-up approach would apply requirements of
transparency, notice-and comment procedures, and review not only to the international

87 Benedict Kingsbury, Sovereignty and Inequality, 9 E.J.I.L. 599 (1998).


88 Supra note 21.
89 Matthew D. McCubbins, Roger Noll, & Barry R. Weingast, The Political Origins of the Administrative
Procedure Act, 15 J.L. ECON. & ORG. 180 (1999).

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components of domestic administrative decisions, but also to the participation of domestic
administrators in global regulatory decision making and it would require decision-making
transparency in order to support such participation. It would allow for scrutiny of the
international regulatory process in judicial review of domestic administrative action that aims at
implementing international decisions, and possibly also scrutiny of the positions developed by
domestic officials before and even during their participation in global-level decision making. It
would also extend the review powers of domestic courts to include international decisions
directly affecting individuals, with the possibility of setting them aside if they infringe upon
individual rights or show procedural flaws.

Different standards of procedure and review than those applying to the domestic level would be
conceivable here.90 Thus, less demanding procedural requirements and a greater level of
deference by reviewing bodies might be applied to decisions taken by national officials in the
context of global decision making than to analogous purely domestic administrative decisions
because of the imperatives of confidentiality, flexibility, and speed in international negotiations.
Alternatively, more rigorous requirements and less deference might be applied, on the premises
that global administrative policymaking is inherently more opaque and less susceptible to
informal mechanisms of participation and review than comparable domestic policymaking, and
that it is not embedded in a parliamentary framework that would exercise control.91

Since, in many of its parts, global administration is made up of domestic regulators cooperating,
and since it often depends for its effectiveness on domestic implementation, such a bottom-up
approach might actually be effective in ensuring accountability, and it might be a powerful tool
to link global administration to democratic procedures.92 However, it also faces important
limitations and problems. As noted above, this approach could be implemented rather easily in
the case of global decision making by intergovernmental networks, but it will be much more
difficult to apply to formal international organizations or to hybrid or private governance
arrangements.
90 Eyal Benvenisti, Public Choice and Global Administrative Law: Who’s Afraid of Executive Discretion?
68 L. & CONTEMP. PROBS. 319 (Summer/Autumn 2005).
91 Jose E. Alvarez, Judging the Security Council, 90 A.J.I.L. 1 (1996); see also B. Martenczuk, The Security
Council, the International Court and Judicial Review: What Lessons from Lockerbie? 10 E.J.I.L. 517
(1999).
92 Benedict Kingsbury, Omnilateralism and Partial International Communities: Contributions of the
Emerging Global Administrative Law, 104 KOKUSAIHO GAIKO ZASSHI (“THE JOURNAL OF
INTERNATIONAL LAW AND DIPLOMACY”) 1 (2005).

Page | 26
It is difficult to see how it could be applied at all to distributed administration by other states.
Further, implementing this approach would require some way to order the diversity of
techniques that are bound to develop when different countries establish their own procedures
and thus seek to influence global administrative bodies in diverging ways.93Implementation of the
bottom-up approach would also be confronted by serious objections that powerful states have
far greater influence on global administration than do weaker states. And those seeking to
implement the approach will have to deal with the question of the relevant constituency: to
which public or publics should global administration be accountable? If the relevant public is
global or trans-border in character and different from the sum of the national publics, domestic
procedures may be insufficient, at least in their traditional form. This might also be true for the
application of domestic administrative law to distributed global administration: here, too, it
might be necessary to devise ways to include a broader set of interests than just the national
public. The bottom-up approach is fundamentally constrained because, while domestic
administrative law systems provide valuable ideas, they are not generally applicable as direct
models for understanding and problem-solving in the quite different conditions presented by the
global administrative space. Most domestic systems of administrative law address the issue of
executive branch officers or administrative agencies (whether or not politically independent)
exercising authority delegated to them by a parliamentary statute.94 In exercising this authority,
agencies are required to follow particular procedures involving the participation of affected
parties or a broader public. If a person with standing decides to contest a decision, the case is
subject to review by independent, mostly judicial bodies by reference to procedural and
substantive legality.95

This model does not fit easily with the structures of international law and global governance, for
reasons mentioned above: the lack of a democratic anchor through a central plenary law-making
authority or a delegation of powers from national democratic organs; the wide-spread absence of
specific participatory and review mechanisms and the mostly non-binding character of global
regulation; and the state-centered structure of international law that renders individual

93 Ibid.
94 Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in STATES,
NATIONS, AND BORDERS: THE ETHICS OF MAKING BOUNDAIRES, 275, 278-87 (Allen
Buchanan and Margaret Moore eds., 2003); Benedict Kingsbury, People and Boundaries: An
“Internationalized Public Law” Approach, in STATES, NATIONS, AND BORDERS 298, 299-302.
95 Iain Cameron, UN Targeted Sanctions, Legal Safeguards and the European Convention on Human
Rights, 72 NORDIC J. OF INT’L L. 159 (2003).

Page | 27
participation and standing difficult.96 Therefore, global administrative law, while drawing some
concepts from domestic administrative law, must start from different structural premises in
order to build genuinely global mechanisms of accountability.97 This may imply a different
normative starting point one that would perhaps not rely so much on justification through
individual rights and democracy, but, in a pluralist conception, on firmer accountability of global
administrators to international regimes and participating states or, in solidarist or cosmopolitan
conceptions, on ensuring accountability to the emerging international community as such. And it
may involve different institutional mechanisms that are in some cases perhaps entirely detached
from democratic foundations and represent more pragmatic means of checking the power of
administrative actors.98

[B]. THE TOP-DOWN APPROACH

The second strategy for constructing global administrative law, the top-down approach, would
more closely resemble contemporary international law patterns, and would thus avoid some of
the problems involved in applying domestic mechanisms of administrative law to global
institutions and actors. It would build accountability mechanisms at the global level: individuals,
groups, and states would participate in global administrative procedures; review of decisions
would be performed by independent international bodies, and this would include the review of
domestic decisions forming part of distributed global administration.99 But this would also pose
new difficulties: it would require legalization and institutionalization of administrative regimes
that are at present informal, which is difficult to achieve without losing the benefits of informal
modes of cooperation; and powerful states and economic actors will generally be suspicious of
strongly legalized regimes because they reduce their discretionary influence.100 Moreover, a top-
down approach might produce far greater democratic problems than one based, at least in part,
on accountability in domestic fora. Also, a top-down strategy for constructing global

96 Supra note 133.


97 Supra note 112.
98 Report of the Financial Action Task Force on Non-Cooperative Countries or Territories, at
http://www.fatf-gafi.org/dataoecd/57/22/33921735.pdf, at para. 41.
99 Waite and Kennedy v. Germany, 30 Eur. H.R. Rep. 261 (1999).
100 Droit administratif et. Convention européenne des droits de l’homme, 11 REVUE FRANÇAISE DE
DROIT ADMINISTRATIF 1172 (1995).

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administrative law must confront many of the same difficult challenges as a bottom-up
approach, including the diffusion of decision making in a multi-level system, the often indirect
effects of global administrative decisions, the difficulty of providing non-state actors with rights
of participation and review within the state-centred orientation of many global administrative
regimes, and the significant private element in global administration.101

Both the bottom-up and top-down approaches to constructing global administrative law present
significant problems. It is therefore necessary to consider other possible models.

CASE STUDY NO. 1: HOW THE INTERNATIONAL TREATIES (SPECIFICALLY ESTABLISHING


WTO) HAVE ESTABLISHED THE GLOBAL ADMINISTRATIVE LAW?

[A] DOES THE GLOBAL ADMINISTRATIVE LAW EXIST IN WTO?

The World Trade Organization (WTO) is one of the most acclaimed and condemned of
international organizations. It has enjoyed considerable success in implementing the Marrakesh
accords, extending trade liberalization beyond goods, dealing with non-tariff regulatory barriers
to trade, and securing intellectual property rights.102 Yet the WTO has also been subject to
stringent criticism by civil society organizations and some members for closed decision making,
an unduly narrow trade focus, domination by powerful members and economic and financial
interests, and disregard of social and environmental values and the interests of many developing
countries and their citizens. These divergent reactions reflect the largely successful expansion of
the WTO’s trade liberalization agenda, the consequent increase in the social and economic issues
encompassed by its trade disciplines, the deepening penetration of those disciplines into
domestic administration, and the character of the WTO’s governance institutions and its
interactions with other international regimes.103

101 Ngaire Woods & Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF
and the World Bank, 53 INT’L SOC. SCI. J. 569 (2001).
102 Jens Steffek and Claudia Kissling, ‘Why Cooperate? Civil Society Participation in the WTO; in C.
Joerges and E.U. Petersmann, eds, Constitutionalism, Multilevel Trade Governance and Social Regulation
(Hart Publishing, Oxford and Portland Oregon 2006)[hereinafter Joerges & Petersmann] p.135.
103 Debra P. Steger, Introduction to the Mini Symposium on Transparency in the WTO, 11(4) J. Int’l
Econ. L. 705 (2008); Peter Van den Bossche, NGO Involvement in the WTO: A Comparative
Perspective, 11(4) J. Int’l Econ. L. 717 (2008).

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Administering more than 2,000 rules on international trade, the WTO has a relatively unusual
tripartite governance structure, with distinct legislative, administrative and adjudicatory branches.
The relatively highly legalized dispute settlement branch enjoys considerable independence, but
the other two branches operate through relative closed consultation and negotiation among the
member states, reflecting a “member-driven” ethos. The organization and its components are
deeply challenged by twin imperatives: 1) continually adapting international trade regulatory
disciplines in order to expand and secure liberalized trade 2) bolstering it institutional legitimacy
against attacks by critics faulting it for secretive decision making and disregard of non-trade
interests and values.104 This examines these challenges in the context of Global Administrative
Law (GAL) for multilevel regulatory governance. It argues that the challenges faced by the WTO
can be addressed by greater application of GAL decision- making mechanisms of transparency,
participation, reason giving, review, and accountability to the WTO’s administrative bodies
including its councils and committees and the Trade Policy Review Body. This chapter also
examines how the WTO has instilled GAL disciplines in member state administration, and the
potential for extending them to other global regulatory bodies as a condition of WTO
recognition of their standards.

The WTO exemplifies the pervasive shift of authority from domestic governments to global
regulatory bodies in response to deepening economic integration and other forms of
interdependency. The growing density of regulation beyond the state enables us to identify a
multifaceted global regulatory and administrative space populated by many distinct types of
specialized global regulatory bodies, including not only formal international organizations like the
WTO but also transnational networks of domestic regulatory officials, private standard setting
bodies, and hybrid public-private entities. The ultimate aim of many of these regimes is to
regulate the conduct of private actors rather than states; private actors including NGOs and
business firms and associations as well as domestic government agencies and officials also play a
major role in shaping the decisions of these regimes. The various bodies and actors are
fragmented yet linked by manifold interactions in a complex pattern of multilevel governance.

Traditional domestic and international law legal and political mechanisms are inadequate to
ensure that these diverse global regulatory decision makers are accountable and responsive to all

104 Robert Wolfe, Decision-Making and Transparency in the ‘Medieval’ WTO: Does the Sutherland
Report have the Right Prescription? 8 J. Int’l Econ. L. 631 (2005).

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of those who are affected by their decisions.105 The current reality requires a reframing of the
interstate paradigm of traditional international law to a more pluralistic and cosmopolitan
framework. At the same time, we believe that the divisions and differences in regimes, interests
and values are too wide and deep to support, at this point a constitutionalist paradigm for global
governance. Current conditions however, are compatible with and indeed call for development
of a global administrative law, which can be applied to particular global regulatory bodies, and
their relations with domestic administrations to enhance regulatory governance without positing
an encompassing global legal order.106

Much global regulatory governance – especially in fields as trade and investment, financial and
economic regulation – can now be understood as administration, by which term we include all
forms of law making other than treaties or other international agreements on the one hand and
episodic dispute settlement on the other.107 Decision making authority in global bodies is
increasingly exercised by bureaucracies, committees, expert groups, and networks of domestic
officials and private specialists. In response to the need to ensure greater accountability and
responsiveness in the exercise of regulatory authority, these bodies are increasingly being held to
norms of an administrative law character, including requirements of transparency, participation,
reasoned decision and decisional review. 108

We are accordingly witnessing the rise of a Global Administrative Law (GAL). At this juncture,
however, GAL cannot be regarded as a single universal system of well-defined norms and
practices. The practices are still evolving and applied quite unevenly in different components of
the global administrative space.109

105 Daniel C. Esty, Good Governance at the World Trade Organization: Building a Foundation of
Administrative Law, 10(3) J. Int’l Econ. L. 779 (2007).
106 Richard Blackhurst and David Hartridge, "Improving The Capacity Of WTO Institutions To Fulfill
Their Mandate," Journal of International Economic Law (2004), 7:3, 705-71.
107 Ibid.
108 Andreas R. Ziegler and Yves Bonzon, How to Reform WTO Decision-Making? An Analysis of the
Current Functioning of the Organization from the Perspectives of Efficiency and Legitimacy, NCCR
trade regulation, Swiss National Center of Competence in Research, Working Paper No. 2007/23, May
2007. Claus-Dieter Hermann and Luther Erring, The Authoritative Interpretation Under Article IX:2 of
the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible
Improvements, J Int’l Econ. L., December 2005; 8: 803-824.
109 Ibid.

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The WTO offers a prime example of the most important axes of GAL: the development of
mechanisms for transparency, participation, and reason-giving in the internal administrative
decision-making processes of global regulatory bodies; the absorption of global administrative
law norms in states’ domestic administrative structures and procedures; and the legal issues
presented by increasingly close linkages among different global regulatory institutions. The
following three sections of this chapter analyse the current and potential future development of
GAL mechanisms with respect to each of these three dimensions:

1. The internal dimension of the governance of the WTO, most particularly its
administrative branch;
2. The vertical dimension of the relations between the WTO and its members’
domestic administrations, which it regulates; and
3. The horizontal dimension presented by the recognition by the WTO of
regulatory standards issued by other global regulatory bodies.

This analysis is in part descriptive, examining the extent to which GAL principles and practices
have been adopted in each area, and in part prescriptive, outlining the potential for GAL’s
further development and application in global trade regulation. A concluding section summarizes
the analysis and briefly assesses its significance for legal theory in relation to the rise of global
administrative law patterns, contrasting it with the alternative possibility of a constitutionalist
paradigm of law for global governance.110

[B]. THE WTO ADMINISTRATIVE BODIES AND GLOBAL ADMINISTRATIVE LAW

While episodic Ministerial Conferences and associated processes are responsible for high level
rule-making, the daily life of the organization is carried out by the Director General and
Secretariat, a few councils, and a large number of committees, which together compose the
WTO’s administrative component.111

110 Gregory Shaffer, “The role of Director-general and Secretariat: Chapter IX and Sutherland Report”.
World Trade Review (2005), 4: 3, 429-438.
111 WT/DS58 – United States: Import Prohibition of Certain Shrimp and Shrimp Products
(Complainants: India; Malaysia; Pakistan; Thailand), filed on 8 October 1996. The Appellate Body held
that panels had inherent authority to accept non-party submissions including those by non-members,
stating that panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports
while not unduly delaying the panel process." (WT/DS58/AB/R, par.105). For discussion, see Gabrielle

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The General Council holds an overall supervisory authority over Councils for Trade in Goods,
Trade in Services and TRIPS. It deals with the internal budget and administration of the
organization, defines the distribution of competencies among the other councils and the
committees, and coordinates cross-cutting issues. The three specialized councils, in turn, oversee
various committees relating to their own particular parts of the various multilateral and
plurilateral agreements. In addition, the important Trade Policy Review Body (TPRB) monitors
members’ performance in implementing agreements, addresses questions of application that
arise, and facilitates improved implementation of the agreements.112

The most important functions of the specialized councils, committees and the TPRB, pursuant
to Article III of the WTO Agreement, are to review, supervise and promote transparency and
accountability in members’ domestic trade and trade-related regulatory policies and
administration. The Secretariat is responsible for supporting these bodies’ activities, gathering
information on members’ trade policies and measures. In addition, many WTO agreements
require members to notify specified WTO administrative bodies of relevant changes in domestic
measures that may affect other members. For example, the Anti-Dumping Committee receives
notifications about all new investigation processes and measures adopted by members; the
notifications are compiled and publicly available at WTO’s website.

The TPRB is even more proactive in exercising its reviewing function. The Secretariat not only
gathers information for the TPRB regarding member practices but prepares a draft of a report
on each member under evaluation (after consultation with that member); the draft is available to
all other members. The value of the TPRB process in providing evaluation and guidance is
reflected by the fact that many members affirmatively requested that the TPRB review measures
which they adopted in response to the 2008 financial crisis, rather than simply notifying the
measures to the respective committees and councils.113

Marceau and Jenifer Morrissey, Trade and agriculture: negotiating a new agreement? (2001), p. 143-194;
Ernesto Hernandez-Lopez, (2001). "Recent trends and perspectives for non-state actor participation in
the World Trade Organization disputes", Journal of World Trade, v. 35, pp. 469-98.
112 Ibid.
113 WT/GC/38 (2000) (Uruguay), TN/DS/W/15 (2002) (Kenya representing an African group),
TN/DS/W/18 (2002) (Cuba, India, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe) e
TN/DS/W/25 (2002) (Taiwan, Penghu, Kinmen and Matsu).

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The Director-General and Secretariat have also launched initiatives on the international trade
regulatory implications of the financial crisis and domestic measures reflecting the increasingly
proactive of WTO administrative bodies.114

The administrative functions carried out by the councils, committees and TPRB include
significant normative components. For example, the General Council and the Councils on Trade
in Goods, Trade in Services, and TRIPS are authorized to grant, under certain conditions, time
limited waivers from otherwise applicable WTO disciplines.115 But for the most part, the
administrative bodies lack power to make decisions with authoritative legal effect. Nonetheless,
their review and supervision of members’ implementation of the agreements will necessarily
involve discussions of the meaning and application of provisions in the WTO agreements,
efforts at clarification, and development of working mutual understandings of the most
appropriate way of implementing members’ commitments in particular contexts, including issues
of domestic institutional structure and procedure as well as substantive norms.116

The administrative bodies also provide technical assistance to developing country members in
implementing their WTO commitments and in participating in international standard setting
bodies. This assistance will inevitably involve exemplars of good practice, blending in some cases
into interpretation and application of governing legal norms.117 Taken together, these activities
involve a range of normative practices that have appreciable practical significance and influence.
All WTO members have a seat on these administrative bodies. Many smaller and less developed
country members with small delegations in Geneva complain that they have serious difficulties in
keeping abreast of the increasing number of administrative activities, much less actively
participating in all of them. Decisions are taken by consensus through a process of information-
sharing, discussion, and negotiation. Each body has its own internal rules of organization and
procedure regulating such matters as meetings, meeting agendas, who may attend (including in
some cases observers), decisional rules, and other matters. The activities of the committees are
subject to review by their respective councils, and in turn by the Genera Council, which issues an

114 Ibid.
115 Ibid.
116 WT/DS320 – United States: Continued Suspension of Obligations in the EC — Hormones Dispute
(Complainant: EC), 8 November 2004; WT/DS 321 – Canada: Continued Suspension of Obligations in
the EC — Hormones Dispute (Complainant: EC), 8 November 2004.
117 Supra note 231.

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annual report compiling the activities and main decisions reached by all of its subordinate
bodies.118

These processes of internal administrative review has implications beyond simple compilation of
the activities undertaken by the subordinate bodies, As acknowledged in recent annual reports by
the General Council, through the General Council review process statements made by members
in informal meeting, such as TNC meetings, became public, increasing transparency, both
internally and externally. In addition, during the review process the supervising council acts as a
second level of decision when it evaluates the discussions and decisions in the body being
reviewed, which it can approve or disapprove.

This process has occurred, for example, with respect to the implementation of sensitive matters
to be accomplished within certain deadlines; when the deadline was not met, the General
Council was called upon to decide on extensions and in doing so reviewed the work of the
subordinate body. Examples can be found in discussions on the Transparency Mechanism for
Regional Trade Agreements and the Protocol amending the TRIPS Agreement.119

Thus, administrative review increases transparency among WTO administrative bodies as well to
members and even the public, promoting GAL objectives.

Nonetheless, from the external perspective the WTO administrative bodies operate in a relative
opaque and closed fashion, notwithstanding the broader normative significance of their activities.
The administrative law-making functions carried out by these organs are eminently suitable and
ripe for application of GAL procedures for transparency, participation, reason giving, and
review, yet, in practice; such procedures are almost wholly absent. Transparency is still limited.120
While the WTO has adopted general rules for the automatic publication of internal documents,
there is an exception for the minutes of council and committee meetings – the bodies in charge
of the daily activities of the WTO - which are restricted from public circulation for 45 days. The
WTO administrative bodies have not taken further steps to improve the participation or
effective engagement by non-members in their work, unlike administrative bodies in many other

118 Panagiotis Delimatsis, “Due Process and ‘Good’ Regulation Embedded in the GATS: Disciplining
Regulatory Behaviour in Services through Article VI of the GATS”, 10 Journal of International
Economic Law (2006) 13.
119 Supra note 165.
120 Panagiotis Delimatsis, “Due Process and ‘Good’ Regulation Embedded in the GATS: Disciplining
Regulatory Behaviour in Services through Article VI of the GATS”, 10 Journal of International
Economic Law (2006) 13.

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international organizations.121 There are no legal provisions for the WTO administrative bodies
to state public reasons for their actions, nor is there any established system for publicity and
review of specific interpretations and guidance. The decision making norm is seen as one of
discussion and negotiation solely among member representatives.122

Demands by NGOs and other outsiders for greater openness by the WTO administrative bodies
have been sparse. This may reflect the circumstance that these bodies exercise considerably less
authority than the WTO’s other branches. They have a relatively low level of independence from
members’ short-term political strategies, and shy away from contentious topics, such as the rules
of origin regulation and the regional trade agreements exception which have been postponed
indefinitely with no foreseeable resolution. While the legislative and adjudicatory branches
exercise binding legal authority, the normative output of the administrative bodies is informal
and interstitial, although nonetheless significant in the aggregate.

We submit that the WTO could appreciably promote both its effectiveness and its legitimacy by
undertaking two related initiatives. First, encouraging the administrative bodies to assume a more
explicit law making role, including by giving the norms that they generate greater weight within
the WTO regime.123 Second, applying GAL norms of transparency, participation and review to
the administrative decisional processes. The Director General and the Secretariat would play an
important role in these transformations. The Appellate Body could also play an important role.
There has already been one case in which a recommendation of a WTO committee has been
used as an applicable legal norm to guide interpretation by a dispute settlement panel of a WTO
Agreement.

The Appellate Body could accord significant deference to the administrative bodies’
interpretations of the WTO agreements, but do so on the condition that they afford notice and

121 In EC – Selected Customs Matters, para. 200, the Appellate Body overturned the traditional
interpretation of Article X, which limited its application to the administration of laws, holding instead that
it could be applied to the “the substantive content of a legal instrument” if it itself “regulates the
administration of a legal instrument.” 46 WTO Appellate Body Report, Japan – Measures Affecting
Agricultural Products (Japan – Agricultural Products II), WT/DS76/AB/R (adopted 19 March 1999).
122 WTO Panel Report, Canada – Term of Patent Protection (Canada – Patent Term), WT/DS170/R
(adopted 12 October 2000). 48 WTO Panel Report, Argentina — Definitive Anti-Dumping Duties on
Poultry from Brazil (Argentina – Poultry Anti-Dumping Duties), WT/DS241/R (adopted 19 May 2003).
123 Committee on Sanitary and Phytosanitary Measures, Recommended Procedures for Implementing the
Transparency Obligations of the SPS Agreement (Article 7), G/SPS/7/Rev.3 (20 June 2008).

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opportunity for public input to their decisions and provide reasoned justifications for their
interpretations in relation to materials generated by the decisional processes. This is the general
practice followed by U.S. federal courts, pursuant to the Chevron doctrine, in determining
whether or not to accord strong deference to interpretations by federal administrative agencies
of statutes that they administer.124

In addition to promoting transparency, participation, and reason giving, Appellate Body scrutiny
of the substantive interpretations and views generated by administrative bodies as well as their
decision making procedures would provide review, another key component of GAL, and
promote reasoned decision making and accountability. These steps would enhance the
independence and authority of the WTO administrative bodies.125Strengthening the lawmaking
authority of the WTO’s administrative bodies would enable the organization to discharge its
regulatory functions more effectively by adapting trade regulatory norms to new conditions and
issues, rather than relying on the protracted Ministerial process or the hazard of case-by-case
litigation.126 Almost all other major international regulatory organizations have developed strong
administrative capacities to that ensure regulatory norms are systematically developed, updated
and implemented by specialized officials exercising an important authority and substantial degree
of independence. If the WTO were to emulate this practice, it would achieve a better
institutional balance among its three branches, relieve some of the excess demands on the
Ministerial and dispute settlement processes, and help ensure that WTO trade disciplines are
systematically updated and adjusted.127Adopting GAL procedures for transparency, participation
and reason giving would enhance both efficacy and legitimacy by ensuring that the administrative
development and application of trade regulatory norms is informed by a wider range of evidence,
analysis, and interests. It would promote the more effective engagement of WTO norms with
other social and economic values embedded in trade regulation. Such innovations would
encounter resistance from members, including the emerging economies that are rapidly acquiring
political power in the organization commensurate with their burgeoning economic power. Yet,

124 Ibid.
125 Sylvia Ostry, “China and the WTO: The Transparency Issue”, 3 UCLA Journal of International Law
and Foreign Affairs (1998) 1, at p. 2.
126 Sabino Cassese ‘Global Standards for National Administrative Procedure, 68 Law and Contemporary
Problems (2005) 109.
127 C. Harlow, “Global Administrative Law: The Quest for Principles and Values”, 17 European Journal
of International Law (2006) 187, at p. 207.

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such a shift, which could be undertaken in gradual stages, seems essential for the long-run health
of the organization.128

[C]. WHETHER WTO ESTABLISHES GLOBAL ADMINISTRATIVE LAW?

The WTO provides a rich case study in the different dimensions and applications of global
administrative law and its key elements of transparency, participation, reason giving and
review.129Their actual or potential application to the WTO’s internal governance, to the domestic
administrative practices of its members, and to the WTO’s relations with other global standard
setting bodies illustrate some of the various ways in which largely procedural GAL norms can be
flexibly and productively applied to different elements of the fragmented global regulatory
system.

In the WTO’s internal governance, decision making by its administrative bodies the Secretariat,
councils, committees and Trade Policy Review Board remains largely closed and inaccessible to
non-members including NGOs and other non-state actors. In order to meet the twin challenges
of efficacy and legitimacy, the WTO should strengthen the normative authority of these
administrative bodies and at the same time secure transparency, participation and reason giving
in their decision making.130

These steps would establish a more effective balance among the WTO’s three branches and
better enable the organization to adapt trade regulatory norms to changing circumstances, such
as the current financial crisis and the steps taken by governments to protect their industries, and
to non-trade interests and values impacted by trade disciplines. The development by other major
international organizations of significant administrative law making capacities suggests that the
effort by WTO members to micromanage implementation of trade regulatory norms is in the
longer run dysfunctional and counterproductive. At the same time, if the organization’s
administrative bodies obtain more authority and independence; they need to be disciplined by
GAL accountability mechanisms for the benefit both of members and of non-member interests.
The Appellate Body should encourage this evolution by according substantial deference in to the

128 Ibid.
129Supra note 122.
130K. Nicolaidis, ‘Legitimacy and Global Governance: Why Constitutionalizing the WTO is a Step Too
Far.” In RB Porter eat al. Efficiency, Equity, Legitimacy: The Multilateral Trading System at the
millennium (Washington D.C. Brookings Institution Press 2001) 227.

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administrative bodies’ interpretations of the WTO Agreements, provided those interpretations
are reached through decision making procedures that allow opportunity for outside input and are
supported by sound reasons.131 Such an institutional transformation would require a shift in
strategy by members from seeking to maximize immediate gains through decision making by ad
hoc bargain in favour of longer term gains flowing from a more effective WTO that enjoys
broader legitimacy. The members, including the most powerful, accepted a similar institutional
bargain in creating the WTO dispute settlement system.132

As regards the vertical dimension, the WTO has imposed strong requirements of transparency,
participation, reason giving and review on members’ domestic administrative bodies in order to
protect foreign nations and economic actors against local regulatory protectionism and to secure
intellectual property rights.133 These domestic bodies form the distributed administration of the
global trade regime. These GAL requirements, constituting what is probably the most highly
developed set of global procedural norms, have had significant impact on domestic
administration in many countries. They have served not only secure implementation of the
substantive norms of liberalized trade but also promote broader goals including open
administration, even-handed treatment of foreign citizens, and the rule of law. Notwithstanding
the burdens on developing countries associated with these disciplines, , and their potential to be
exploited by well-organized economic actors they appear on balance to have improved domestic
trade regulatory governance and contributed to the more general development of administrative
law with benefits to local citizens.134

The horizontal dimension for GAL finds potential for development in the WTO TBT and SPS
Agreements, which provide a presumptive legal “safe harbor” for member states against
challenges to domestic regulatory measures that have been based on international standards
adopted by other global bodies. Here GAL issues are at present only incipient, yet potentially
significant. If the WTO, though its administrative and dispute settlement bodies, were to
condition recognition of other global bodies’ regulatory standards upon their observance of

131Pauwelyn, Conflict of Norms in International Law: How WTO Law Relates to Other Rules of
International Law (Cambridge, Cambridge University Press, 2003).
132Ibid.

133E.-U. Petersmann, Multilateral Trade Governance in the WTO Requires Multilevel Constitutionalism,
in C. Joerges Petersmann, p. 5, 45-54; E.-U. Petersmann, Multilevel Judicial Governance of International
Trade Requires a Common Conception of Rule of Law and Justice, 10 J. Int’l Econ. Law 529 (2007).
134Ibid.

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GAL norms of transparency, participation, and reason giving, that would help to ensure that the
standards to be accorded recognition are well informed and reflect a fair consideration of the
interests at stake. Such a development, which would involve horizontal review by one global
regulatory body of another’s standards and procedures, would manifest the “inter-public”
character of global administration and law and create a platform for the further diffusion of
GAL norms throughout the global administrative space.135 This approach does not exclude the
possibility of recognizing more than one international standard to govern a particular matter,
which would enhance the ability of states to choose standards appropriate for their
circumstances.

As regards a normative assessment, the adoption of GAL practices by global regulatory bodies,
including those examined in this chapter, serves overall to ensure that public authority is
exercised through open processes with opportunity for input by affected interests on the basis of
public reasons, thereby promoting accountability and responsiveness to a broader range of
affected interests and a more cosmopolitan normative perspective. By promoting these
decisional procedures and norms in lieu of bargain and ad hoc expediency, GAL seeks to
provide safeguards against abuse of power, counter factional capture, and temper the tunnel
vision of specialized regulatory bodies.136 In the specific case of domestic regulation, GAL
disciplines helps cure political externalities by protecting foreign citizens and firms against local
discrimination and exploitation, and may have a more general beneficial effect on domestic
administration and law.

Notwithstanding, critics, especially in developing countries, have challenged any such optimistic
assessment by contending, with some evidence in support, that may work to the benefit of
private financial interests and other well-organized actors.137

Ultimately, the performance and normative implications of GAL cannot properly be assessed
across the board. GAL’s operation and consequences must be analysed in relation to particular
types of regimes, issues, and applications. The types of the decisional body in question
(international organization, global network, global private or hybrid, domestic), its function, its
founders and governance arrangements, and the ability of different relevant players to use GAL
tools are all relevant. Further, major global regulatory bodies must now operate in a highly
charged political environment. The WTO faces far ranging challenges, including the rise of large

135Supra note 118.


136Supra note 222.
137Supra note 198.

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emerging developing country economics, the rise of bilateral and unilateral agreements, systems
of preferential tariffs, and the growth of new political constellations of opposition to liberalized
trade.

Dealing with these changes may require fundamental strategic and structural changes in the
global trade regulatory regime. Nonetheless, based on the analysis in this chapter, we nonetheless
conclude that in the case of the WTO the net impact of GAL on domestic (distributed)
administration and law is quite positive. We further conclude that GAL’s application to the
WTO’s administrative bodies and as a criterion for recognition of international standards
adopted by other global bodies will be also be beneficial, albeit for reasons particular to each
context.

Finally, in terms of legal theory, we submit that GAL promises to be a more suitable and
productive framework for addressing the legal issues posed by global regulatory governance than
the alternatives.138 They include, on the one hand, the traditional doctrinal categories of
domestic, international, and transnational law, and, on the other, constitutionalist concepts. The
fragmented character of global regulation, its many specialized and quasi-autonomous
components, the multiplicity of public and private actors that populate the global administrative
space and the complex relations among all these elements can hardly be understood within the
traditional doctrines. At the same time, these elements are too diverse, fluid and unruly, and
reflect too many deep differences in interests and values, to support a constitutional order.139

Proposals for a constitutionalist legal frame for global government have widely varying
conceptual and normative formulations. Given the compass of this chapter, we focus on two
prominent representatives.140 The most ambitious version of constitutionalism is global and
fundamentalist. It is universal in its ambition, positing an encompassing global legal order that
allocates decisional competence and procedures among institutions, secures universal human
rights, and provides authoritative arrangements to resolve conflicts among competing interest
and values. As analysed by Nico Krisch, this fundamentalist model would “seek to give the
current, largely unstructured, historically accidental and power-drive order of global governance a
rational, justifiable shape in which the powers of institutions and their relationship with one

138C. Harlow, “Global Administrative Law: The Quest for Principles and Values’ (2006) 17 European
Journal of International law 187.
139Padideh Ala’i, From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency
and Good Governance, 11(4) J. Int’l Econ. L. 779 (2008).
140Ibid.

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another are clearly delimited.”141This conception is fundamentalist in that it would replicate at the
global level the essential features of liberal democratic constitutional systems in advanced liberal
democracies. Given the global fragmentation of political authority and deep divisions in values
and worldviews among nations and peoples, attempting to achieve such an order would be
highly infeasible and equally undesirable, an invitation to the most powerful states to entrench
their power and interests.

A more circumscribed and far more plausible “post-national” version of constitutionalism would
focus on development of a constitutional order for particular regimes that were established by
states to promote joint national interests in given sectors but which have since gained substantial
autonomy.142 This model rejects the global fundamentalist vision as beyond reach, although in
some versions it is seen as an intermediate stage in the eventual emergence of a single global legal
order. As part of the “turn to constitutionalism” in WTO scholarship, a number of writers have
found postnational constitutional elements in the global trade regulatory regime. This order is
formulated with varying degrees of ambition. Professor Petersmann advocates the most
farreaching version, proposing the WTO as a system of “multilevel constitutionalism” to
explicitly include human rights norms, separation of powers, general principles of substantive
law and the project of post-national constitutionalism for particular regimes and sectors is, at
least in its less ambitious versions, more feasible and potentially more suitable for the current
and foreseeable future of governance beyond the state than the global, fundamentalist notion yet
it raises important problems.143 Without a global meta-order, there is no means of resolving
uncertainties or conflicts among the subsystems’ different norms and competencies.

This problem is likely to be exacerbated by legal constitutional “hardening” of the different


fragmented sectoral regimes. Also, the strongest states and sector regimes may exploit the
constitutionalist project to extend and entrench their power. For example, enlarging and
deepening the WTO’s competence and authority to resolve and enforce a wide range of
traderelated regulatory issues in the name of constitutionalism risks fostering a trade-centred

141Ibid.

142WT/DS332 – Brazil: Retreated Tyres case, in which neither Brazil nor the EC accepted a public
hearing of their oral statements. Brazil - Measures Affecting Imports of Retreaded Tyres - Report of the
Panel 12/06/2007 (WT/DS332/R).
143Gabrielle Marceau and Jenifer Morrissey, Trade and agriculture: negotiating a new agreement? (2011),
p. 143-194.

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global hegemony dominated by the most powerful states. Interests potentially threatened by such
developments should resist the constitutionalist enterprise.144

GAL, by contrast to constitionalism, proceeds at “retail” rather than “wholesale”. As this WTO
case study indicates, administrative law concepts and tools derived from domestic or
supranational practices can be tailored and suitably adapted to the circumstances of different
global regulatory bodies and complexes in order to make incremental but nonetheless significant
progress in improving governance. Understanding much global governance as administration
allows us to develop a more rigorous conceptual schema of the various institutional structures
and relations involved in the notoriously slippery notion of global governance.145 It does so by
focusing the question of accountability in the more precise terms of administrative law,
providing us with a set of basic tools for transparency, participation, reason-giving application of
these tools can be suitably adapted for application in a wide variety of global institutional settings
without insisting on any single design or order. Because courts in the administrative context are
often much more comfortable with imposing procedural disciplines rather than substantive
overruling, GAL more readily engages both domestic and international courts in reforming
global regulatory governance. The willingness of courts to impose procedural checks is especially
strong where individuals face sanctions or deprivations as a result of decisions by global bodies
such as the Security Council 1267 Committee, but is also increasingly evident in the much more
typical situation involving general regulatory norms. Also, the rather technical character and
more limited ambition of GAL may enable it to win growing acceptance in a variety of
institutional contexts.146

GAL’s reliance on the procedural elements of administrative law, its focus on particular regimes
and relations between them rather than the more general system, and its bracketing of larger
issues of global democracy are, however, not without their own difficulties. The GAL tools are
derived primarily from domestic administrative law in advanced democracies, which operates
against the background of a democratic constitutional order with strong mechanisms of electoral
representation and political as well as legal accountability; these are absent in the global setting.
Also, judicial review is much more episodic in the global than the domestic context. Procedural
mechanisms alone may be relatively ineffective in overcoming disparities in power and the biases

144Ibid.

145Ibid.

146Ibid.

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of specialized mission-oriented organizations.147 Also, powerful states and well-organized and
financed interested are well equipped to use procedural mechanisms to advance their interests.

Further, in deploying procedural tools to promote accountability and responsiveness, GAL must
confront the question of accountability and responsiveness “to whom”? The answer will shape
the procedures selected, their design and accessibility. The answers can include the entities
(states, international organizations, NGOs, firms, groups of such entities) that found and govern
the global body in question; domestic constituencies; the international community of nations, or
(in a cosmopolitan vision) individuals or social and economic interests worldwide. The
potentially open-ended character of accountability entails uncertainty and invites contestation.
But these circumstances may well be strength rather than a weakness, given the fluid evolving
circumstances of global regulatory governance and the dangers in attempting to lock in a global
meta-order or to constitutionalize specific sectoral regimes.

The normative ambitions of global administrative law are more limited than those of
constitutionalism, yet they are by no means insignificant. Subjecting traditional processes of
power and bargain to the rule of law and securing transparency and participation for a greater
range of affected interests is an important goal and achievement. Even accounting for the
differences in context, domestic experience suggests that the regular practice of transparency,
participation reason giving and review in administrative decision making often has beneficial
systematic effects including promoting adherence to legality. GAL may also foster a degree of
normative integration, especially if, as is already emerging, courts through deciding individual
cases not only common procedural principles but also general substantive norms such as
rationality, proportionality, legitimate expectations, and protection of human rights. To the
extent GAL procedures enable a broader range of social and economic actors and interests,
especially those that tend to be disregarded, to more effectively scrutinize and have input to
decisions, and also foster broader discussion and debate, they may also promote a democratic
element in global regulatory governance.148

147Constantine Michalopoulos, “Developing countries' participation in the World Trade Organization,


World Bank Policy Research Working Paper No. 1906, march 1998; Håkan Nordström, Participation of
developing countries in the WTO, mimeo, 2006 (available at <
www.noits.org/noits06/Final_Pap/Hakan_Nordstrom.pdf>, June 2009).
148Supra note 221.

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Ultimately, however, we should not draw too sharp a contrast between GAL and post-national
versions of constitutionalism applied to particular regimes or sectors. 149 The GAL disciplines,
especially to the extent that they systemically promote adherence to the principle of legality and
spawn reviewing court development of common substantive as well as procedural norms, can
potentially encourage and support the growth of more ambitious legal foundations for given
components of global governance. And, by focusing on the decisional linkages between regimes
and the procedural criteria for inter-regime norm recognition, GAL can counter the sectoral
fragmentation which post-national constitutionalism might exacerbate.150

CASE STUDY NO. 2 – ADMINISTRATIVE REGULATION BY SUPRANATIONAL BODIES

It is trivial to observe that, as globalization progresses, domestic regulators, facing global


problems, have to exercise collectively their powers in order to overcome their intrinsic territorial
limit. Therefore, just like in domestic legal orders Parliaments delegate rule-making and
adjudicatory powers to administrative agencies, so states delegate similar powers to supranational
bodies. These bodies, ranging from formal international organizations to informal networks of
domestic public or private actors, become thus a source of a huge mass of regulatory decisions,
which could be best conceptualized, according to the GAL perspective, as administrative
regulation. Such regulation, however, today affects individual freedom more directly than it is
believed according to the dualistic paradigm: domestic authorities, rather than the recipients of
decisions adopted at the international level, are often just an enforcement tool of global decisions
against private subjects.151 A couple of examples could clarify the concept. The first example is
drawn from environmental regulation of civil aviation and refers to administrative rulemaking.
The second example is drawn from anti-terrorism regulation and refers to administrative
adjudication.

First example. The International Civil Aviation Organization (ICAO) adopts environmental
standards in order to reduce emissions from aircraft and aircraft engines. The ICAO standards

149Supra note 105.


150B. Kingsbury, N. Krisch, and R. B. Stewart, The Emergence of Global Administrative Law, 68 Law and
Contemporary Problems 15 (2005).
151S. Cassese, Administrative Law without the State? The Challenge of Global Regulation, 37 NYU J. Int’l
L. & Pol 663 (2005).

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are not formally binding. States are free to adopt different standards, if they so decide. However,
if a member state adopts a standard which is not “equal to or above” the ICAO standard, other
member states do not have to allow aircrafts belonging to that state to travel through their
airspace. On the other hand, if a member state adopts a standard which is above the ICAO
standard, it results in an additional economic burden to domestic airlines, not applicable to air
carriers belonging to states adopting a lower standard.152

In 1999, the ICAO adopted a higher standard. In 2003, the US regulator (EPA), according to the
Administrative Procedure Act, started a “notice and comment” procedure in order to modify the
domestic standard. Some environmental organizations proposed to adopt a standard above the
level set by ICAO.153 The EPA, however, decided to match exactly the level of environmental
protection defined by the international organization.

The reasons given for such a decision, however, did not focus on environmental or health
concerns; rather, the reasons focused on market harmonization: “because aircraft and aircraft
engines are international commodities, there is commercial benefit to consistency between U.S.
and international emission standards. Manufacturers would only have to design to one emission
standard globally, and air carriers would only need to be concerned with making sure the engines
installed on their aircraft meet one standard. Such harmonization has economic and record
keeping (and reporting) benefits”.

In such a context, are the participatory rights granted by the Administrative Procedure Act to
domestic environmental organization still useful, once the domestic decision is substantially
(though not formally) pre -packaged at the supranational level ? However, as a partial redress to
such a loss of due process rights, ICAO grants to international coalitions of environmental
organizations the observatory status which implies a set of participatory rights directly referring
to the supranational decision-making process: the right to propose the adoption of new
standards or the modification of the existing ones; the right to make comments to be taken into
account by the deciding authority, and so on: overall, “a right to participate in the formation of
SARPs [ICAO standards], made up of several other more precise rights”.154

152Ibid.

15317 Eur. J. Int’l L. 1 (2006); 6:2 Int’l Org. L.R. (2009).


154Judgement of The European Court of Justice (Grand Chamber), 3 September 2008, in Cases C-402/05
P and C415/05 P.

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Second example. As is well known, a specific UN body (the Sanctions Committee) has been
entrusted with the power to designate and place on a list (Consolidated List) individuals and
entities associated with Al-Qaida.155 UN member States are bound to freeze the financial assets
of any individual or entity designated by the Committee.156 However, in an important and well-
known judgment of 2008, the European Court of Justice set aside the European Council
decision to freeze the assets of Mr Kadi, who had been designated by the UN Committee, on the
grounds that his rights to a hearing and to an effective judicial remedy were patently
disregarded.157

As a partial redress to that decision, in 2009, the Security Council issued a Resolution which
imposed a sort of duty to give reasons upon the UN Committee and provided for a sort of
independent and impartial administrative review of listing decisions.158

Therefore, in the first example, we have non domestic rules, contained in ICAO agreements,
which: (a) on the one hand, substantially give a supranational organization rulemaking powers in
order to set the level of environmental and health protection referring to the air pollution caused
by emissions from aircraft and aircraft engines; and (b) protect the interests of affected people
and firms by granting them the right to participate in a “notice and comment” procedure
referring to the supranational decision making process.159

In the second example, we have now non-domestic rules, contained in UN Resolutions, which:
(a) on the one hand, give a supranational organization adjudicatory powers in order to limit the
property rights of private subjects; and (b), on the other hand, protect the property rights of the
affected persons by granting them due process guarantees, such as the duty to give reasons and
the right to an independent review. What kind of law is that? We could stipulate, for peace of
some international law scholars, that this is still International Law. However, we should admit
that such International Law is very much removed from its traditional and original paradigm,

155S. Charnovitz, Transparency and Participation in the World Trade Organization, The George
Washington University Law School Public Law and Legal Theory Paper n. 142.
156P. M. Gerhart, The Two Constitutional Visions of the World Trade Organization, 24 U. Pa. J. Int’l
Econ. L. 1 2003.
157R. Dolzer, The Impact of International Investment Treaties on Domestic Administrative Law, 38
N.Y.U. J. Int’l L. & Pol., vol. 37 (2010), p. 953.
158Ibid.

159S. W. Schill, Revisiting a Landmark: Indirect Expropriation and Fair and Equitable Treatment in the
ICSID Case Tecmed, in Transnational Dispute Management, vol. 3 (2) April 2006.

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according to which it is a law “among the States” and its subjects are “States and only States”.
We could also stipulate, for peace of some administrative law scholars, that this is not
Administrative Law. However, if this is not Administrative Law, we should admit that it seems as
if it were.

RECOMMENDATIONS AND CONCLUSION

Firstly, with regard to the WTO’s internal governance, decision making by its administrative
bodies the Secretariat, councils, committees and Trade Policy Review Board remains largely
closed and inaccessible to non-members including NGOs and other non-state actors. In order to
meet the twin challenges of efficacy and legitimacy, the WTO should strengthen the normative
authority of these administrative bodies and at the same time secure transparency, participation
and reason giving in their decision making.160 These steps would establish a more effective
balance among the WTO’s three branches and better enable the organization to adapt trade
regulatory norms to changing circumstances, such as the current financial crisis and the steps
taken by governments to protect their industries, and to non-trade interests and values impacted
by trade disciplines.161

The development by other major international organizations of significant administrative law


making capacities suggests that the effort by WTO members to micromanage implementation of
trade regulatory norms is in the longer run dysfunctional and counterproductive. At the same
time, if the organization’s administrative bodies obtain more authority and independence; they
need to be disciplined by GAL accountability mechanisms for the benefit both of members and
of non-member interests. The Appellate Body should encourage this evolution by according
substantial deference in to the administrative bodies’ interpretations of the WTO Agreements,
provided those interpretations are reached through decision making procedures that allow
opportunity for outside input and are supported by sound reasons. Such an institutional
transformation would require a shift in strategy by members from seeking to maximize

160G. Van Harten and M. Loughlin, Investment Treaty Arbitration as a Species of Global Administrative
Law, European Journal of International Law, Vol. 17, No. 1, pp. 121-150, 2006 Available at SSRN:
http://ssrn.com/abstract=907655.
161S. Charnovitz, Transparency and Participation in the World Trade Organization, The George
Washington University Law School Public Law and Legal Theory Paper n. 142.

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immediate gains through decision making by ad hoc bargain in favor of longer term gains
flowing from a more effective WTO that enjoys broader legitimacy. The members, including the
most powerful, accepted a similar institutional bargain in creating the WTO dispute settlement
system.

As regards the vertical dimension, the WTO has imposed strong requirements of transparency,
participation, reason giving and review on members’ domestic administrative bodies in order to
protect foreign nations and economic actors against local regulatory protectionism and to secure
intellectual property rights. These domestic bodies form the distributed administration of the
global trade regime.162 These GAL requirements, constituting what is probably the most highly
developed set of global procedural norms, have had significant impact on domestic
administration in many countries.163 They have served not only secure implementation of the
substantive norms of liberalized trade but also promote broader goals including open
administration, even-handed treatment of foreign citizens, and the rule of law.164
Notwithstanding the burdens on developing countries associated with these disciplines, , and
their potential to be exploited by well-organized economic actors they appear on balance to
have improved domestic trade regulatory governance and contributed to the more general
development of administrative law with benefits to local citizens.165

The horizontal dimension for GAL finds potential for development in the WTO, TBT and SPS
Agreements, which provide a presumptive legal “safe harbor” for member states against
challenges to domestic regulatory measures that have been based on international standards
adopted by other global bodies.166 Here GAL issues are at present only incipient, yet potentially
significant. If the WTO, though its administrative and dispute settlement bodies, were to
condition recognition of other global bodies’ regulatory standards upon their observance of
GAL norms of transparency, participation, and reason giving, that would help to ensure that the
standards to be accorded recognition are well informed and reflect a fair consideration of the
interests at stake. Such a development, which would involve horizontal review by one global
regulatory body of another’s standards and procedures, would manifest the “inter-public”

162Ibid.

163Ibid.

164Ibid.

165P. M. Gerhart, The Two Constitutional Visions of the World Trade Organization, 24 U. Pa. J. Int’l
Econ. L. 1 2003.
166Supra note 122.

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character of global administration and law and create a platform for the further diffusion of
GAL norms throughout the global administrative space. This approach does not exclude the
possibility of recognizing more than one international standard to govern a particular matter,
which would enhance the ability of states to choose standards appropriate for their
circumstances.

Finally, in terms of legal theory, we submit that GAL promises to be a more suitable and
productive framework for addressing the legal issues posed by global regulatory governance than
the alternatives. They include, on the one hand, the traditional doctrinal categories of domestic,
international, and transnational law, and, on the other, constitutionalist concepts. The
fragmented character of global regulation, its many specialized and quasi-autonomous
components, the multiplicity of public and private actors that populate the global administrative
space and the complex relations among all these elements can hardly be understood within the
traditional doctrines. At the same time, these elements are too diverse, fluid and unruly, and
reflect too many deep differences in interests and values, to support a constitutional order. 167

Proposals for a constitutionalist legal frame for global government have widely varying
conceptual and normative formulations.168 The most ambitious version of constitutionalism is
global and fundamentalist. It is universal in its ambition, positing an encompassing global legal
order that allocates decisional competence and procedures among institutions, secures universal
human rights, and provides authoritative arrangements to resolve conflicts among competing
interest and values. As analyzed by Nico Krisch, this fundamentalist model would “seek to give
the current, largely unstructured, historically accidental and power-drive order of global
governance a rational, justifiable shape in which the powers of institutions and their relationship
with one another are clearly delimited.” This conception is fundamentalist in that it would
replicate at the global level the essential features of liberal democratic constitutional systems in
advanced liberal democracies. Given the global fragmentation of political authority and deep
divisions in values and worldviews among nations and peoples, attempting to achieve such an
order would be highly infeasible and equally undesirable, an invitation to the most powerful
states to entrench their power and interests.169

Given these challenges, it is improbable that a traditional vision of international law as essentially
a contractual order of equal states is even theoretically operable; all the more so if, under the

16737:4 NYU J. Int’l L. & Pol. (2005).


168Ibid.

169Supra note 127.

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contractual paradigm, forms of rule-making other than treaty and custom can only be treated as
either delegation or non-law. Given the diversity of forms of law and processes of rule-making,
the importance of various sorts of institutions in them, and the increasingly blurred line between
the domestic and the international, it is necessary to inquire whether a new global public law is
emerging.170 Some argue that all forms of law-making and regulation in global governance are
exercises of public power, and seek to theorize their status, effects and limits on the basis that
any exercise of public power demands a particular public justification, whether or not it produces
binding law or decisions.

170 James Salzman, Seattle’s Legacy and Environmental Reviews of Trade Agreements, 31 ENVTL. L. 501
(2001).

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