Global Administrative Law - Events
Global Administrative Law Roundtable Discussion, January 2004
Project on Administrative Law and Global Governance
Roundtable January 30, 2004, 12:45-2:45pm, Vanderbilt Hall, Room 313, 40 Washington Square South
Participants:
Charles Beitz, Kevin Davis, Richard Goldstone, David Golove, Andrew Hurrell, Christian Joerges, Bob Keohane, Benedict Kingsbury, Nico Krisch, Mattias Kumm, Ernestine Meijer, Anne-Marie Slaughter, Dick Stewart, Mark Tushnet, Joseph Weiler, Katrina Wyman, David Zaring
Outline of Issues for Discussion:
Thank you very much for taking part in this. The materials for this session are our initial Project Outline on Administrative Law and Global Governance (June 2003), and Dick Stewart’s paper on ‘US Administrative Law: a Resource for Global Administrative Law’ (January 2004), already distributed. We hope participants in the roundtable will be willing to offer critiques and suggestions about the focus and design of the project, and blunt views as to its value (if any!) One big picture question for the roundtable is whether it is useful to turn from the standard international law perspective to a new administrative law perspective on global governance; and, if so, how best to conceptualize and carry out productive research based on an administrative law perspective. Conceptualizing global governance from an administrative law perspective would entail shifts in the definition of the field of study. It would reorient the way we think about the structures and functions of global regulatory regimes, the institutional tools for governance, and the positive and normative criteria to be applied. This brief discussion outline amplifies these points.
The field. Underlying our project is the assumption that it is useful to study those aspects of global regulatory regimes that can be broadly regarded as administrative in character, excluding purely legislative-type activity (e.g. treaty-making) and purely inter-state adjudicative (e.g. traditional ICJ boundary delimitation cases). We focus on regulatory activities: subsidiary norm generation, application and enforcement of norms by transnational institutions, including both formal organizations (treaty-based or otherwise) and informal networks, including those with private sector participation. The premise is that these regimes are ultimately aimed at modifying the behavior of private market actors in order to address problems that can not be satisfactorily resolved through market arrangements structured by private law or decentralized domestic regulation.
Structures. Moving away from the traditional international law approach which sharply separates the inter-state from the intra-state, we would like to discuss whether it is useful to reconceptualize transnational regulatory institutions (for purposes of study and analysis) in terms of three distinct relationships that also underlie structures of domestic administrative law:
- relationships between transnational regulatory institutions and regulated actors as well as regulatory beneficiaries and other private actors and interests affected by regulatory measures and policies.
- intra-institutional relationships: relationships between different bodies within the same transnational regulatory institution, such as the COP, subsidiary administrative bodies, advisory committee, and regime tribunals.
- relationships between regulatory institutions, including both horizontally between different international institutions or institutions of different countries and vertically between international and domestic institutions.
Institutional functions and evaluative criteria. By loose analogy to domestic regulatory and legal institutions, we propose that administrative law arrangements applicable to global regulatory institutions be analyzed from the perspective of several distinct functions and evaluative criteria, such as protection of individual rights; promoting accountability, including legal accountability and accountability to domestic political systems and constituencies or transnational constituencies; regulatory efficacy and administrative efficiency; regulatory equity and justice; and securing and promoting appropriate forms of democracy.
Administrative law tools. An administrative law conceptualization of transnational regulation would consider and evaluate the potential application to transnational regulatory regimes of tools that domestic administrative law has developed to serve the functions outlined above. These include: independent tribunal review of administrative decisions; different forms of participation (notice and comment, structured representation of interests, etc.); transparency of proceedings and public availability of records; requirements of reasoned justification; peer review procedures; tort law; and mechanisms like the Open Method of Coordination or the Comitology system in the European Union. It could also encourage the development of new types of administrative law tools specifically adapted for transnational regulation.
Institutional design and change. This shift in perspective would also encourage and facilitate use of bodies of positive theories of institutional design and change, including factors driving legalization or informality, the incentives of the relevant actors, path dependency, and functionalism.
In accordance with these conceptions, we have begun to encourage research in different directions, and have invited contributions to our colloquium on “Globalization and its Discontents” this spring. This research includes detailed studies of mechanisms of accountability and participation in specific global regulatory regimes (standardization and food safety; OECD regulation of environment, business and laboratory standards; transnational water regulation; global accounting standards; transnational networks; Security Council sanctions regimes; the Clean Development Mechanism under the Kyoto Protocol; the development of coffee and cocoa standards). It also includes studies of the uses of domestic administrative law thinking for global regulatory regimes (e.g. Dick Stewart’s paper that you received before) and the impact of global regulation on domestic administrative law (international standards of domestic administration; the impact of GATS on domestic regulation of services). Finally, we have encouraged a set of papers on broader conceptual and normative issues (accountability and the idea of an international legal order; public choice and global administrative law; accountability and abuse of power; the respective roles of technocratic and democratic approaches in global administrative law).
