17 European Journal of International Law (2006)

Introduction: Global Governance and Global Administrative Law in the International Legal Order

Nico Krisch and Benedict Kingsbury

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Globalization and the rise of global governance are transforming the structure of international law, though much of this transformation takes place beneath the surface of the international legal order and often goes unnoticed. From the perspective of classical, inter-state, consent-based international law, global governance may still appear merely as a quantitative increase in international legal instruments, sometimes coupled with stronger enforcement mechanisms and accompanied by some changes in procedures of treaty-making. Yet central pillars of the international legal order are seen from a classical perspective as increasingly challenged: the distinction between domestic and international law becomes more precarious, soft forms of rule-making are ever more widespread, the sovereign equality of states is gradually undermined, and the basis of legitimacy of international law is increasingly in doubt.

Global administrative law approaches cognate changes from a particular angle. It starts from the observation that much of global governance can be understood as regulation and administration, and that we are witnessing the emergence of a “global administrative space”: a space in which the strict dichotomy between domestic and international has largely broken down, in which administrative functions are performed in often complex interplays between officials and institutions on different levels, and in which regulation may be highly effective despite its predominantly non-binding forms. In practice, the increasing exercise of public power in these structures has given rise to serious concerns about legitimacy and accountability, prompting patterns of responses to those concerns in many areas of global governance. Accountability problems are addressed through greater transparency, through notice-and-comment procedures in rule-making, and through new avenues of judicial and administrative review, in a vast array of disparate areas, such as global banking regulation, Security Council sanctions administration, the international administration of refugees or the domestic regulation of transboundary environmental issues. Global administrative law proposes drawing together these dispersed practices and understand them as part of a common, growing trend towards administrative-law type mechanisms for holding global regulatory governance accountable, and to inquire into the challenges this set of issues poses to both domestic administrative law and international law.