CYIL Vol. 5, 2014

SANDERIJN DUQUET – JAN WOUTERS

CYIL 5 ȍ2014Ȏ

3.2 Global Administrative Law Non-traditional international norms can be assessed through the lens of administrative law. Researchers affiliated with the Global Administrative Law (GAL) research project at the New York University School of Law, have prominently done so. The endorsement of administrative principles and administrative law-type mechanisms in global governance is the primary premise of the methodology. 29 This is clearly reflected in the work of Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, who define GAL as comprising: 30 [T]he 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. Global administrative law, fundamentally, understands and analyses global governance as administrative action. In other words, administrative law is used to order international relations and its output. Similar to what other students of changing international rulemaking have observed, a distinction is made between treaty-making and the creation of customary international law on the one hand, and regulatory action that does not fit these labels, on the other. The former are considered to be the equivalent of legislative processes at the national level and formal sources of international law. The latter are intended to manage economic and social life through specific decisions and rulemaking. 31 The GAL framework does not challenge the fundamental basics of general public international law in contrast to the processual understandings of PIL as discussed above. Quite to the contrary, GAL complements PIL and offers insights in regulatory action that is not law in the narrow, positivist, sense. 32 One of GAL’s strongest features indeed is its legal approach. Consistently, the law is brought back in the study of norms that are formally non-binding, which has enhanced the development of a theoretical body for accountability. GAL scholars have convincingly argued that, because of its administrative characteristics, for a large part of global governance at the very minimum some form of judicial or administrative redress must be made available. 29 Kingsbury, B., “The Administrative Law Frontier in Global Governance”, American Society of International Law , Vol. 99, No. 1, pp. 143-153. 30 Krisch, N., Kingsbury, B., Stewart, R.B., “The Emergence of Global Administrative Law”, Law and Contemporary Problems , 2005, Vol. 68, No. 3, pp. 15-68, at 17. 31 Krisch, Kingsbury, Stewart, op. cit. 30, distinguish these forms of administrative action from adjudication. See also: Kingsbury, B., Casini, L., “Global Administrative LawDimensions of International Organizations Law”, International Organizations Law Review , 2009, Vol. 6, No. 2, pp. 319-358. 32 See, however, Kingsbury and Casini, who argue that many legal questions posed necessitate a broadening and probably even a rethinking of the field of international institutional law; Kingsbury, Casini, op. cit. 31, at 356.