Benedict Kingsbury and Richard B. Stewart
Read PDFRead PDF
Much global regulatory governance — in fields as diverse as trade and investment, financial and economic regulation, environment and labor, intellectual property, international security, and human rights, as well as the internal management of international organizations — can now be understood as administration. The shift of regulatory authority and activity from domestic to global bodies has outstripped traditional domestic and international law mechanisms to ensure that regulatory decision makers are accountable and responsive to those who are affected by their decisions. In response to these deficits, regulatory decision making by global bodies is increasingly being held to norms of an administrative law character, including requirements of transparency, participation, reasoned decision and decisional review, with a view to ensuring greater accountability and responsiveness.
The rise of administrative law-type principles and mechanisms to channel and discipline global regulatory decision making is the focus of the Global Administrative Law Project at NYU School of Law. The project, which engages academics and practitioners in North America, Europe, Latin America, Africa, Asia, and the Pacific region, seeks to study this burgeoning field of practice and theory systematically, with a view to analyzing its elements and shaping its inevitable future development so as to help realize such potential as it offers for justice and effectiveness in global regulatory governance. More than 100 papers mapping and analyzing these phenomena have now been written under the auspices of the project. Although the landscape is highly variegated, the overall picture these papers present is of the formation of a thickly populated global administrative space, and the development of principles and practices that may be termed Global Administrative Law.
This paper highlights some implications of analyzing administrative tribunals of international organizations (including appeals boards, appeals tribunals and the like) as part of the administration of global governance and in particular as contributors to, and subjects of, the emerging global administrative law. These administrative tribunals reach their decisions by reference to such sources as: staff employment contracts; staff rules and regulations; internal orders, circulars, handbooks and practices of the organization; the constituent instruments of the relevant organization and of the specific tribunal; and a somewhat open-ended range of other sources including, in particular, general principles of law. Through their decisions on the use of these sources and their interpretations of particular principles they are producers of global administrative law materials. These materials are directly relevant to claimants and to the administration of the institutions each tribunal directly regulates; they are also relevant to other institutions and tribunals (indirectly) through the development of a corpus juris among different international organizations; and they have a wider impact in helping shape and refine concepts of general legal importance such as due process, discrimination, reviewability of discretionary decisions, a duty of care toward staff, and publicness. At the same time, these tribunals are themselves exercising public power in global governance, and thus they are increasingly subject to demands that the organizational design (matters such as appointment of members, enforceability of orders, and appeals) and the operations of these tribunals (fair hearings, reasoned judgments, etc.) conform to emerging standards of global administrative law. Moreover, while the jurisdiction of these tribunals is typically limited to matters concerning the staff of the particular organization involved, their design, jurisprudence and experience have implications for other initiatives to broaden the accountability of intergovernmental organizations, particularly to third parties these organizations may harm.
The next section of this paper sets out in more detail the case for viewing much global governance as administration, and the basic elements of the global administrative law approach. The subsequent sections briefly explore a few of the ways in which a global administrative law approach may help international organizations, and specifically international administrative tribunals, to meet effectively some current challenges of legitimacy and accountability.