THE EMERGENCE OF GLOBAL

ADMINISTRATIVE LAW
BENEDICT KINGSBURY, NICO KRISCH & RICHARD B. STEWART

Presentation by Jaroslav Pavlovskij

CONTENT:
1. DEFINITION
2. TYPES OF GLOBAL ADMINISTRATION
3. SUBJECTS OF GLOBAL ADMINISTRATION
4. SPACE AND THE SCOPE OF GLOBAL ADMINISTRATIVE LAW
5. SOURCES OF GLOBAL ADMINISTRATIVE LAW
6. INSTITUTIONAL AND INTERNAL MECHANISMS FOR GLOBAL
ADMINISTRATIVE LAW
7. DOCTRINAL FEATURES OF GLOBAL ADMINISTRATIVE LAW
8. THE NORMATIVE BASES OF GLOBAL ADMINISTRATIVE LAW
9. STRATEGIES AND THEORIES OF INSTITUTIONAL DESIGN
DEFINITION:
Global administrative law law that comprises 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.
INTERNATIONAL OR GLOBAL?
Administrative law differs from what Kirsch and Kingsbury call the classic
notion of international law. For global administrative law, rules are made by
bodies that are not legislative or primarily adjudicatory. Administrative rules
that have a deep impact on global actors and processes are not agreements
between states. In fact, states need not even be involved in administrative law
making.

It makes more sense to talk of administrative law as global rather than

international. International law indicates law between or among states. It is
based on inter-state consent. Administrative law, however, can have a global
reach without the explicit consent of states. So, administrative law can be
global without being international.
TYPES OF GLOBAL ADMINISTRATION
TYPES OF GLOBAL ADMINISTRATION

Five main types of globalized administrative regulation are distinguishable:

1. ADMINISTRATION BY FORMAL INTERNATIONAL ORGANIZATIONS;

Formal inter-governmental organizations established by treaty or executive

agreement are the main administrative actors. As an example is the U.N. Security
Council and its committees.
TYPES OF GLOBAL ADMINISTRATION

2. ADMINISTRATION BASED ON COLLECTIVE ACTION BETWEEN

NATIONAL REGULATORY OFFICIALS
Transnational networks and coordination arrangements are characterized by the
absence of a binding formal decisionmaking structure and the dominance of
informal cooperation among state regulators. This horizontal form of
administration can 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.
TYPES OF GLOBAL ADMINISTRATION

3. DISTRIBUTED ADMINISTRATION
In distributed administration, domestic regulatory agencies act as part of the
global administrative space: they take decisions on issues of foreign or global
concern.

4. HYBRID INTERGOVERNMENTAL-PRIVATE ADMINISTRATION.

Bodies that combine private and governmental actors take many different forms
and are increasingly significant. An example is the Codex Alimentarius
Commission, which adopts standards on food safety through a decisional process
that includes significant participation by non-governmental actors as well as by
government representatives
TYPES OF GLOBAL ADMINISTRATION

5. PRIVATE
Many regulatory functions are carried out by private bodies. For example, the
private International Standardization Organization (ISO) has adopted over
13,000 standards that harmonize product and process rules around the world.
SUBJECTS OF GLOBAL
ADMINISTRATION
SUBJECTS OF GLOBAL ADMINISTRATION
States
Individuals
Corporations
NGOs
Other Collectivities

However in every individual case subjects of global administrative regime are

different. In some cases subjects are 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.
SPACE AND SCOPE OF THE GLOBAL
ADMINISTRATIVE LAW
SPACE AND SCOPE OF THE GLOBAL
ADMINISTRATIVE LAW
Global administrative space - new regulatory space which is emerging, distinct
from inter-State relations, transcending the sphere of influence of both
international law and domestic administrative law.

Global administrative law covers all the rules and procedures that help ensure the
accountability of global administration, and it focuses in particular on
administrative structures, on transparency, on participatory elements in the
administrative procedure, on principles of reasoned decisionmaking, and on
mechanisms of review.
SPACE AND SCOPE OF THE GLOBAL
ADMINISTRATIVE LAW
The focus of the field of global administrative law is not, therefore, the specific
content of substantive rules, but rather the operation of existing or possible
principles, procedural rules, review mechanisms, and other mechanisms relating
to transparency, participation, reasoned decisionmaking, and assurance of legality
in global governance.
SOURCES OF GLOBAL ADMINISTRATIVE LAW
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.

International regulation now flows from sources other than states. Sources like
public-private or even purely private institutions now serve to create global law. It
no longer makes sense to limit the term law to formal state agreements or
widespread conventional practices. Increasingly, non-state actors are involved in
coordinating and regulating global activity.
INSTITUTIONAL AND INTERNAL MECHANISMS
FOR GLOBAL ADMINISTRATIVE LAW
INSTITUTIONAL AND INTERNAL MECHANISMS
FOR GLOBAL ADMINISTRATIVE LAW
Courts are domestic institutions involved in making global administration more
accountable. This is most obvious in attempts by domestic courts to establish their
jurisdiction over the action of international institutions. Therefore national
measures often have the (sometimes intentional) effect of obstructing effective
oversight of global governance.

Taking into account governmental criticism, challenges from domestic

institutions, and efforts by participating states and the managers of global
administrative bodies to strengthen controls over their operations, global
administrative bodies have instituted their own accountability mechanisms. For
example: World Bank Inspection Panel.
DOCTRINAL FEATURES OF GLOBAL
ADMINISTRATIVE LAW
 DOCTRINAL FEATURES OF GLOBAL
ADMINISTRATIVE LAW
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.

1. Procedural participation and transparency

Formal opportunity to be heard, or to respond to any arguments that may be made

against the participating part.
 DOCTRINAL FEATURES OF GLOBAL
ADMINISTRATIVE LAW
2. Reasoned Decisions

Responses and contra arguments have to be presented to the major arguments

made by the parties or commenters. For example in the global anti-doping
regime, a written, reasoned decision has been made a requirement for measures
against a particular athlete.
 DOCTRINAL FEATURES OF GLOBAL
ADMINISTRATIVE LAW
3. Review

An entitlement to have a decision of a domestic administrative body affecting

ones 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. For example: World Bank Inspection Panel,
and also the right of appeal to the Court of Arbitration for Sport from doping
decisions.
 DOCTRINAL FEATURES OF GLOBAL
ADMINISTRATIVE LAW
4. Substantive Standards

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 restrictive
means, or legitimate expectations.
For example: The 24-year-old swimmer Yulia Efimova this year appealed to the
Court of Arbitration for Sport (Cas) after the International Olympic Committee
ruled any Russian athlete who had been sanctioned for doping would be banned
from the Olympic games at Rio 2016. CAS has ruled that athletes cannot be
banned from Rio on the basis that they have been previously sanctioned.
FUNCTIONS OF GLOBAL
ADMINISTRATIVE LAW
FUNCTIONS OF GLOBAL ADMINISTRATIVE LAW

1. Intra-Regime Accountability

The first conception of global administrative law is the normatively least

demanding of the three: it takes a given order for granted and merely seeks to
ensure that the various components and agents within that order perform their
appointed roles and conform to the internal law of the regime.
For example: the World Bank Inspection Panel can be analyzed in this way as a
means for the Board to control management and as a means for central
management to control operational managers.
FUNCTIONS OF GLOBAL ADMINISTRATIVE LAW
2. Protecting rights

The most common rights-based justification of the need for a global

administrative law is based on a conception of individual rights and the
associated idea of the rule of law.
Economic rights and interests of firms and other economic actors in the global
market economy.
Rights of states - tools of administrative law would protect states rights, and they
could serve, for example, to ensure that administrative actors do not overstep their
powers against third states, or that they do not exceed their competences against
member states.
FUNCTIONS OF GLOBAL ADMINISTRATIVE LAW

3. Implementing Democracy

Domestic administrative law serves democracy by ensuring administrative

adherence to parliamentary statutes and providing transparency and the
participation of the public in administrative rulemaking, some would have global
administrative law serve these same functions for administrations that operate
transnationally or internationally.
STRATEGIES AND THEORIES OF
INSTITUTIONAL DESIGN
 STRATEGIES AND THEORIES OF
INSTITUTIONAL DESIGN
The construction of a global administrative law is inevitably shaped and
constrained by existing institutions and principles as well as the shifting patterns
of international ordering and the normative foundations.

Two general approaches to constructing global administrative law are evident in

current practice. One focuses on the application of domestic administrative law to
global administration bottom-up the other on constructing international
mechanisms top-down.
 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.

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.
 TOP-DOWN APPROACH
Top-down approach, is more closely resembling contemporary international law
patterns, and thus avoids some of the problems involved in applying domestic
mechanisms of administrative law to global institutions and actors.

Difficulties: it requires 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.
CONCLUSION
 CONCLUSION
The exercise of administrative law in the global arena varies greatly by issue area
(for example, forestry versus banking) and by the institutions and organizations
involved. Because of this, it is not likely that there is any single model of
administrative law that will work universally (either in theory or practice).
 CONCLUSION
Globalization makes administrative law more important. Because global regulation
is less and less defined in terms of agreements among states, the nature of the
international legal order is changing. Public-private or simply private actors become
more important in defining global norms.
 CONCLUSION
Global administrative law is an emerging field, where certain subjects require much
more research and debate analyzing a wide variety of cases in which administrative
law, or mechanisms, rules, and procedures comparable to administrative law, are
used to promote transparency, participation, and accountability in informal,
cooperative, and hybrid structures and in multi-level systems with shared
responsibility in decision-making.
THANK YOU!