NYU Journal of International Law and Politics, Vol. 37 (2005)

Co-option and Resistance: Two Faces of Global Administrative Law

B.S. Chimni

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This Article addresses some issues relating to the emergence of global administrative law from a third world perspective. The essential idea is to determine the nature, character, and limits of an evolving global administrative law (GAL). In order to do so, this Article departs from a formalistic and narrow definition of global administrative law that excludes the content of substantive rules from its ambit entirely, confining it to β€œthe operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, participation, and assurance of legality in global governance.” This Article instead seeks to assign GAL a more expansive meaning in the context of the changes that are transforming the nature and character of international law and institutions in the era of globalization. A strict separation of the content of substantive rules and GAL, which is largely procedure, is not tenable as states slowly evolve into administrative agencies of international institutions (as, for example, in the case of World Trade Organization (WTO)), and because the operation of GAL can impact the content of substantive rules or be co-opted and subverted by them. The principal aim of this Article, however, is to explore the conditions in which GAL can act — in however limited a way — as a tool of resistance and change in the international system.

Part II of this Article argues that an evolving GAL is an inextricable part of contemporary international law and of institutions that have an imperial character. Therefore, in the absence of criticism and reform of those substantive laws and institutions, GAL has only a limited potential to further the cause of democracy and justice. Indeed, without a concurrent concern with substantive law, GAL may only legitimize unjust laws and institutions. By focusing exclusively on GAL, a false impression may arise that existing international institutions are becoming more participatory and responsive to the concerns of developing countries and their peoples. Therefore, GAL needs to be re-conceptualized in a manner that does not dictate the complete separation between substantive and procedural administrative rules.

Part III explores the conditions in which GAL can advance the global democratization and justice agenda by looking at the national experience of a developing country — India — in the context of the functioning of administrative law. The experience tends to confirm the intuitive understanding that power plays a key role in the framing, invocation, and implementation of administrative law — for the disadvantaged and marginal populations, the use of administrative law is often a mere theoretical possibility. However, the experience also suggests that there are conditions in which administrative law principles can serve as instruments of change. These conditions include the design of appropriate participatory structures of administrative bodies, the presence of social movements and non-governmental organizations (NGOs) that support the causes of ordinary citizens, and the existence of a right to information-access laws that can be used to compel the transparency and accountability of administrative bodies. What is true of the disadvantaged and marginal populations in India is true of many other developing countries in their relations with global administrative bodies.

Part IV illustrates the need for appropriate participatory structures with reference to the Codex Alimentarius Commission that sets international food standards with implications for the trade of third world countries. The case study reveals, among other things, that at the international level a participatory structure has meaning only if third world states and relevant NGOs are provided with the financial and technical assistance necessary to effectively participate in the work of an international body. Part V of this Article examines the case of refugee status determinations conducted by the Office of the United Nations High Commissioner for Refugees (UNHCR) and suggests that GAL can most effectively serve as an instrument of resistance and change if the relevant substantive regime has a progressive character and possesses a human rights dimension that can be deployed to critique decisionmaking by an international body. GAL can be effectively implemented in such contexts only if a watchdog role is played by Global Social Movements (GSMs) or concerned NGOs. Thus, the lesson learned from the implementation of administrative law at both the domestic and international levels is that, in the face of unequal power, it is left to social movements and concerned NGOs to demand transparency, accountability, and responsiveness from states and global agencies. This is especially true in the international context, where judicial intervention is not normally available.

Part VI concludes with some final reflections and lists the conditions in which GAL can act as an instrument of resistance and change.