Star Law Analysis
Does global administrative law challenge classical international law?
Not so long ago it was only very recently, in the year 2005 a new project called Global Administrative Law (GAL) was developed by New York University School of Law. During last two years there have been significant developments in the area. Scholars from all across the Atlantic seem to have an interest in developing this new field of law at the global level. There have been number of symposiums where scholarly articles on this particular area were produced. In 2005, Law and Contemporary Problems one of the leading journals of International Law has published an especial issue on GAL. This trend continued in the following years. Both European Journal of International Law and New York University Journal of International Law and Politics have covered this extensively in their special editions in the year 2006. The concept GAL is nevertheless still unclear. The project undertaken by the New York University School of Law was to initiate an effort to systematize studies in diverse national, trans-national and international settings that relate to the administrative law of global governance. This brief article investigates whether there is an existence of any such body of law at the global level, and if so, then how GAL can be defined or at least conceptualized; and whether, as many fear, GAL challenges the idea of classical international law. But first of all let me briefly go through how the concept of GAL emerged.
The emergence of GAL is due to a large increase in the trans-governmental regulation and administration designed to address the consequences of globalized interdependence. Today, it is true that, there are plenty of issues where national government is helpless to regulate and to act on alone. States are, for example, powerless to unilaterally limit the use of greenhouse effect-producing gases, to unilaterally prevent the spread of financial crisis, and also, for instance, to control alone fishing of migratory fish species. In the areas such as these, states benefit by giving up their regulatory powers to other global public authorities. It is apparent from the existence of large area of regulatory bodies that administration at global level is now a matter handled not only by state organs, but also by other sub-state level organs and multifaceted inter-governmental organs. It would be hard to find any area of human activity, which is totally untouched today by the ultra-state global rules. International 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 all these areas are now covered by global regulations.
Take Southern Blufin Tuna case as an example. Southern Blufin Tuan is one of the fish species that has been listed in Annex-I of the United Nations Convention on Law of the Sea (UNCLOS). Article 64 of UNCLOS states that the costal states and other states whose nationals fish in the region for highly migratory species listed in Annex-I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region both within and beyond the exclusive economic zone. For Southern Blufin Tuna, Australia, Japan and New Zealand concluded a voluntary agreement on Tuna fishing in 1985, which was non-binding by its nature. However, in 1993 eventually these three nations signed a binding Treaty Convention for the Conservation of Southern Blufin Tuna (CCSBT), which came into force in 1994. The treaty not only binds the parties but also requires the parties to cooperate in deterring Tuna fishing by nationals, residents or vessels of any state or entity not party to the Convention where such activity adversely affect the attainment of the objectives of the Convention. A monitoring body was established within the Convention called “Commission”. The Commission has legal personality with a Secretariat with Staffs, which includes not only member states but also other fishing entities whose flag ships fish Tuna. The Commission gathers statistical and scientific information, and provides binding decision establishing quota on annual catch limits.
That means the Commission regulates rules governing catch limits on Southern Blufin Tuna limiting state's sovereign right to regulate on Tuna fishing at its coast. When Japan was in conflict with the other contracting parties over its experimental fishing programme, which crossed the quota, the latter sought interim measures from the International Tribunal for the Law of the Sea (ITLOS). The ruling of ITLOS prescribes that Japan's experimental fishing programme had to respect the catch limits decided by the Commission of CCSBT. Now, the distinctive features of administrative law can be found from the case that there is an organization vested with authoritative powers, that the organization adopts administrative decision addressed to both constituent parties and other actors, and that judges are empowered to settle dispute between regulated actors.
Global administrative law has indeed certain fundamental distinctions from national or domestic administrative law. First of all there is a lack of exclusivity among international regimes. For example, rules governing Tuna fishing are rooted in the treaty for the protection of Tuna on one hand; and on the other hand general regime of the law of the sea is also applicable here. The Commission also applies decisions adopted by other international organization such as Food and Agricultural Organization (FAO). That means three different international orders are intertwined. Secondly, GAL has high degree of self-regulation, where regulators and regulated exists on the same plane. They take collective decisions to submit themselves to the shared rules. Thirdly, decisions are made by independent committee in GAL based on scientific criteria. Negotiation plays a very significant role where states, sub-state actors, international and inter-governmental organizations, NGOs participate. Decisions in national or domestic administrative law are made by representative body, which are mainly political decisions based on command and controls. Due to the role played by various organs in the regulation, in GAL issues relating to public and private spheres are hardly clear although one can see the transparency in global administrative rules, where consensus and cooperation are predominant.
As said above, there is a lack of exclusivity in global administrative regulation there is, in fact, more than one regulatory authority in several sectors while each body also has different responsibility within the same sector. For example, regulations on the use of sea are adopted by International Maritime Organization (IMO), International Sea Bed Authority (ISA), International Tribunal for the Law of the Sea (ITLOS), and so on; environmental issues are regulated by World Meteorological Organization (WMO), United Nations Framework Convention on Climate Change (UNFCC), Global Environmental Facility (GEF) and the respective implementing bodies such as UNEP, UNDP and World Bank; regulations on economic and financial areas are conducted by International Monetary Fund (IMF), the World Bank, the Basel Committee on Banking Supervision, Financial Stability Forum (FSF), Financial Stability Institute (FSI), the Committee on Payment and Settlement Systems, the Egmont Group, the Financial Action Task Force on Money Laundering (FATF), the International Organization of Securities Commissioners (IOSCO), the International Association of Insurance Supervisors (IAIS), and the International Accounting Standard Board (IASB). There are also additional coordinating bodies created by these regulatory bodies, for example, Joint Forum was established in 1996 between International Organization of Security Commissioners and International Association of Insurance Supervisors.
The way GAL is conceptualized is the development of cooperation and connections through association in the federative form. Actors include first of all states states associate to form a ultra-state body, for example, United Nations, and then the body itself promote other agreements, for example, IMO promote agreements in the areas of security and protection of marine environment and the maritime transport of nuclear materials. Secondly, sub-state organs may also join to establish international bodies, for example, national bodies for the regulation of financial markets are associated in the International Organization of Securities Commissioners (IOSCO), national insurance regulating bodies come together in the International Association of Insurance Supervisors (IAIS), International Competition Network (ICN) bring together national competition authorities and so on.
At the third level there are global organizations acting either alone or by forming other authoritative body. For instance, the Commission on Phytosanitary Measures was established by FAO; International Centre for Settlement of Dispute was established by the World Bank. Fourthly, different global organizations get together to establish another global organization for example, Financial Stability Institute was set up by the Bank for International Settlements and the Basel Committee on Banking Supervision; the Codex Alimentarius Commission was set up by FAO and WHO; International Trade Centre (ITC) was established by WTO and the United Nations Conference on Trade and Development (UNCTAD).
There are both organizational and functional tie amongst the organizations. Organizational tie can be exemplified in WTO's director general's participation on the Executive Board of the UN, and also in the appointment of the Secretary of UNFCC by the Secretary General of the UN. Functional tie is found, for example, in the network of agreements between the World Intellectual Property Organization (WIPO) and WTO, in close cooperation between Universal Postal Union, the International Civil Aviation Organization and International Telecommunication Union. So different global regimes are connected with each other and become strengthened as each lends their institutions to others for the resolutions of disputes. Global Administrative Law is sharing of rules at the global level, which demonstrates that states capture global organizations and at the same time global organizations also capture states in a cooperative manner.
GAL moves to hold up the global issues that bridges the gap between private and public international law. GAL is a new shift from classical international law since rules are not directly promulgated by states through their direct participation in promulgating legal norms based on free consent in the traditional sense of treaty making. Mainstream international lawyers, thus, fear whether the emergence of GAL will eventually threaten the sovereignty of states in making law at the global level. The development of international law suggests that the theory of consent is being more and more gradually transformed into consensus. Today there are thousands of issues where states cannot act alone. States are now more interdependent on each other than ever. This is for the benefit of the states themselves to solve their global problems at a global level through cooperation. Although global administrative legal order is held up by a complicated system of norms, for example, taking norms arising out of treaties, unilateral norms, externally imposed norms, and norms created by the institutions, international treaties concluded by the states and ratified through appropriate national organs which are still the basis of all global level law making in addition to other sources of international law found in Article 38 of the Statute of International Court of Justice. The basic feature of GAL ensures principles of legality, the right to participation of various actors in formation of norms, duty to be heard from others, the right to access administrative documents, the duty to give reasons for administrative decisions, the right to decide based upon scientific and testable data and the principle of proportionality. In a single word GAL ensures transparency. Thus, although clearly GAL is a shift from classical international law, it is hard to draw a conclusion that the development will at the end threaten sovereignty of states.
Kamrul Hossain, LL.D is working as a Senior Researcher in Northern Institute for Environmental and Minority Law (NIEM), University of Lapland, Finland. The article is produced based on a talk given by the author in the Seminar “Rescued by International Law” held on 21 September 2007 in Arctic Centre, Rovaniemi, Finland.