IILJ Working Paper 2004/3 (Global Administrative Law Series)

Public Choice and Global Administrative Law: Who’s Afraid of Executive Discretion?

Eyal Benvenisti

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Delegating authority to administrative agencies is necessary to make up for the generality of the law. The legislature cannot address every contingency. But delegation of authority entails discretion to the administrative agents, and discretion breeds corruption. Administrative law attempts to curb such discretion by structuring the decision-making process, providing for transparency and voice, and by setting up review mechanisms, including judicial review. Such attempts, however, produce new discretionary powers, and so on. The “cat and mouse” game continues indefinitely. As Martin Shapiro says, administrative law is “an endless game of catch- up in which previously granted discretions are brought under rules, even as new discretions are granted, and no discretion granted is ever completely and finally reduced to rules.”

Administrative discretion – exercised by politicians, political appointees and professional bureaucrats – results not only from the inherent limits of primary legislations. It is often a product of a disinterested or captured legislature that surrenders policy-making to the executive. Lawmakers that seek to influence outcomes of executive action use administrative law as one of the tools to increase the likelihood that their wishes are heeded. When lawmakers are actively challenging the executive, we should expect to find quite an elaborate administrative code. In contrast, indifferent lawmakers fail to constrain the executive. This, however, would not necessarily imply that the administrative law would be weak. The executive itself may have an interest in constraining through law at least some agencies within the administration. The court also has a will and means of its own. When lawmakers defer to the executive with no strings attached, it is often the case that courts fill the gap with judicially invented rules. Such judicial activism depends in turn on the level of court involvement that the legislature and executive tolerate. Thus, administrative law, perhaps more than other areas of law, reflects accurately the existing balance of power between the various branches of government.

International institutions constitute another arena for the evolution of administrative law. International institutions do not follow the usual legislative, executive and judicial division of powers that characterize democracies. Hence, certain principles of domestic law will not apply to international bodies. For example, the requirement found in many domestic constitutions that courts will be established by law, a requirement that reflects important democratic guarantees that the legislative process provides, may be irrelevant in the context of an international body, whose constitution and procedures are different. But to the extent that treaties allocate responsibilities to treaty bodies, and delegate decision-making powers to them, similar issues of administrative law concerning the decision-making process may arise. As in domestic administrative law, the administrative law of an international institution will result from enactments of the state parties (in the treaty establishing the institution), from various kids of inputs from their executive organs, and from decisions of their judicial organs. The principal-agent tensions that exist between the lawmaker and the executive in the domestic scene can be found also in the international scene, between the state parties and the different treaty-bodies.

Hence, like domestic administrative law which reflects the domestic political balance of power, the law constraining the discretion of the various actors within the international institution will reflect the specific balance of powers between the state parties and within the institution. This paper attempts to outline the different motivations for the development of administrative law in domestic law (Part II), and on this basis identifies the factors shaping the evolution of administrative law in international institutions (Part III). Part IV examines whether the practice concerning the evolution of international administrative law in the European Communities (EC), the World Trade Organization (WTO) and the United Nations (UN) confirms the theoretical insights. Part V addresses the role of the International Court of Justice (ICJ) in developing international administrative law. Part VI concludes.