International Administrative Law- Origin, Elements and Features
International Administrative Law as a branch of law and governance emerged first in the mid-nineteenth century and quickly gained the limelight.
International Administrative Law as a branch of law and governance emerged first in the mid-nineteenth century and quickly gained the limelight. However, in the recent past, the term has been replaced with the term “Global Administrative Law”, which tends to demarcate the field to be more than just a subsidiary field under ordinary International Law. In this article, Ashish Agarwal explains the important aspects of International Administrative Law. I. Origin & Nature ...
International Administrative Law as a branch of law and governance emerged first in the mid-nineteenth century and quickly gained the limelight. However, in the recent past, the term has been replaced with the term “Global Administrative Law”, which tends to demarcate the field to be more than just a subsidiary field under ordinary International Law. In this article, Ashish Agarwal explains the important aspects of International Administrative Law.
I. Origin & Nature
Global International Law is a product of the converging effect of processes of globalization – privatization, disinvestment, and deregulation. As the world becomes more connected with and interdependent, the effects of domestic policy decisions on the rest of the world can no longer be ignored. It needs to be rather adapted and morphed into a well-established mechanism of inclusive decision-making which will facilitate global relations and common development.
So, what is Global or International Administrative Law?
Global Administrative Law can be understood as a branch of law containing the legal rules, institutional norms and principles applied in the processes of administration, undertaken with a mindset and in a manner that represent more than the merely intra-state structure of political and regulatory authority.
It incorporates most of what was contained in the rubric of International Administrative law in the 19th and 20th centuries but emphasizes even national systems and bodies which have an impact on international administration. Thus, Global Administrative Law, in its nature, encompasses all rules and principles of general administration and good governance and uses it from a transnational perspective to feed global interdependence. It thinks outside the restrictive domestic perspective.
II. Sources of International Administrative Law
This branch of law can be said to be an amalgamation of three established branches of law from where it draws its qualities – Public International Law, Administrative Law, and general Public Law of the nation.
Public International Law
A part of global administrative law derives itself from the standard sources of public international law. The traditional examples are Treaties and Conventions. However, many treaties only law the general principles and objectives while not mentioning the specific administrative processes. Hence, institutional practice becomes important to fill some of that gap.
The general rules of practice and administration followed by transnational institutions and state bodies, such as a degree of transparency and procedural participation, get borrowed with the sense that being followed by so many, they must hold some value. However, only those practices and rules may be incorporated that show a large degree of repetition and convergence, such that rules and principles which are varied and fragmented may not be taken up.
Administrative Law
The increasing impact of national institutions and agencies on global administration and the effect of global administration on individual rights have warranted the adaptation, development and subsequent application of the established principles of national administrative law to Global Administration. Hence, the national administrative law governing the use of power by authorities and regulating discretion for decades becomes an important source o global administrative law in so far consistent principles and practices may be applied.
General Public Law or Jus Gentium
Jus Gentium is the law of nations, the general normative guiding principles found common in all administrations. The branch of public law is arguably the skin of global administrative law, it holds it together. It includes not only the law and principles behind public policymaking and public welfare but also comprises principles of natural justice, human rights, customs and indigenous practices, and so on.
III. Elements of International Administrative Law
The development of International Administrative Law can be said to be based on three significant insights.
The Three Insights
- First, transnational administration is similar to national administration and can be analysed as such to apply principles of national administration to it.
- Second, a bifurcated approach in the definition says that first, we define what international administration is. Then we define all laws to be applied to it as International Administrative Law.
- Third, it needs to be realized that the idea of administration includes decision-making and the formation of general and subsidiary rules and regulations. The approach that making rules is a task of the legislature, distinct to administration, is no longer applicable.
Elements
1. Formal International Organisations
International organisations perform internal managerial functions that sometimes impact outside their organisations. However, several organisations are formally directed towards administrative functions on a transnational scope. Best examples of these organisations would be the UN Security Council, the World Bank in its functions to lay down principles of good governance for developing countries as a precondition to monetary help; the UN High Commissioner for Refugees in its functions to administer refugee camps; the World Health Organisation in its functions to set health standards for the world.
2. Other Transnational Networks or Informal Associations of Domestic Agencies
Networks and cooperative associations of domestic agencies exist across the nations which perform administrative functions with global impact. The may be formed within a treaty or without a legal document. These may be sector or industry-based, where the heads and representatives of each unit of a particular industry join to become a transnational voice for global administration, cooperation and facilitation of common interest. For instance, the Basel Committee joins the heads of several central banks. These may also be constituted by bilateral agreements between nations for regulatory cooperation and mutual confirmation of regulatory policies.
3. Private Bodies Having Regulatory Functions
Some private bodies too have established themselves in work of such administrative nature that they often have a global impact. Examples include the ISO, which has set standards for a large range of products. Similarly, many private industries have formed a certification mechanism for laying down standards of quality of products that are internationally traded. Organisations making assessments and records of credit scores uniform are also an example.
IV. Features of International Administrative Law
Transparency and Procedural Participation
Each organization having administrative functions lays down its rules of participation. These govern eligibility, requirements, and procedures and basically determine who may or may not be a part of the organization. The degree of participation these people or members will be allowed in procedural hearings, who has a vote and who does not, are other matters of consideration.
It is imperative for good governance that wide participation from all those who will be affected by an organisation’s decisions should be arranged. This may also be done by indirect participation, such as through notice and comment process. Thus, participation itself can be seen to require transparency. First, transparency regarding the procedure and scope of direct participation (membership) and second, of all necessary information on which comment is sought. Every significant change in administration should also be disseminated to the people.
Reasoned Decisions
Now taken as the third pillar of the principles of natural justice, the requirement of attaching reasons for reaching a particular conclusion by anyone in an adjudicatory position is an integral feature of global administration as well. The availability of good reasons builds trust in the decision and its conformity by the parties.
It is another manner of showing transparency, thereby inciting participation by way of conformity and respect for the decision. Some bilateral treaties also impose the requirement to give reasons behind particular administrative decisions. One such treaty was that of mutual legal assistance between France and Djibouti, considered by the ICJ in Djibouti v. France, 2008. [1]
Review
The scope of review of the decision given or rule made by one body by another body is necessary for stable, impartial administration. Nobody is perfect, and a review allows further discussion on a particular issue without closing it unfairly on one party. A review does this in a far looser way than a formal process of appeal. It checks for the rules and decisions being reasonable, and not arbitrarily prejudiced to any party.
The features of global administrative law are still evolving at a quick pace, but these lay down the foundation on which it currently stands.
V. Landmark Judgments and Significance
Not many judgments exist with a clear reliance on this branch of law. However, there is no dearth of pronouncements in the foundations of natural justice, the rule of law and principles of good governance that make up the branch of law. An important case of the US Supreme Court is Department of Transportation v. Public Citizen [2], wherein the court laid down that the extent of review in international negotiations cannot remain at par with national negotiations, as that would undermine its integrity. It further stated that an administrative agency must remain in line with its promises in an international forum.
Another case is United Mexican State v. Metalclad Corporation [3], wherein the relationship between a national court and an international court was examined on the aspect of what effect does a review of a global court’s decision by a national court has.
Thus, global administrative law is about to acquire the utmost significance in the foreseeable future as its jurisprudence evolves and allows for widespread practice with a degree of uniformity. It might widen to include some aspects is international dispute resolution within itself as decisions and procedures of different administrative units of global impact run into conflict.
References
- Global Administrative Law by Benedict Kingsbury, Megan Donaldson, Oxford Public International Law
- The Future Of International Law: Global Government, by JP Trachtman
[1] [2008] ICJ Rep 37.
[2] 541 U.S. 752
[3] ARB (AF)/97/1