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3.2 Global Administrative Law
Non-traditional international norms can be assessed through the lens of
administrative law. Researchers affiliated with the Global Administrative Law (GAL)
research project at the New York University School of Law, have prominently done so.
The endorsement of administrative principles and administrative law-type mechanisms
in global governance is the primary premise of the methodology.
29
This is clearly
reflected in the work of Benedict Kingsbury, Nico Krisch, and Richard B. Stewart,
who define GAL as comprising:
30
[T]he mechanisms, principles, practices and supporting social understandings
that promote or otherwise affect the accountability of global administrative
bodies, in particular by ensuring they meet adequate standards of transparency,
participation, reasoned decision and legality, and by providing effective review of
the rules and decisions they make.
Global administrative law, fundamentally, understands and analyses global
governance as administrative action. In other words, administrative law is used
to order international relations and its output. Similar to what other students of
changing international rulemaking have observed, a distinction is made between
treaty-making and the creation of customary international law on the one hand,
and regulatory action that does not fit these labels, on the other. The former are
considered to be the equivalent of legislative processes at the national level and
formal sources of international law. The latter are intended to manage economic
and social life through specific decisions and rulemaking.
31
The GAL framework
does not challenge the fundamental basics of general public international law in
contrast to the processual understandings of PIL as discussed above. Quite to the
contrary, GAL complements PIL and offers insights in regulatory action that is not
law in the narrow, positivist, sense.
32
One of GAL’s strongest features indeed is its
legal approach. Consistently, the law is brought back in the study of norms that
are formally non-binding, which has enhanced the development of a theoretical
body for accountability. GAL scholars have convincingly argued that, because of
its administrative characteristics, for a large part of global governance at the very
minimum some form of judicial or administrative redress must be made available.
29
Kingsbury, B., “The Administrative Law Frontier in Global Governance”,
American Society of International
Law
, Vol. 99, No. 1, pp. 143-153.
30
Krisch, N., Kingsbury, B., Stewart, R.B., “The Emergence of Global Administrative Law”,
Law and
Contemporary Problems
, 2005, Vol. 68, No. 3, pp. 15-68, at 17.
31
Krisch, Kingsbury, Stewart, op. cit. 30, distinguish these forms of administrative action from adjudication.
See also: Kingsbury, B., Casini, L., “Global Administrative LawDimensions of International Organizations
Law”,
International Organizations Law Review
, 2009, Vol. 6, No. 2, pp. 319-358.
32
See, however, Kingsbury and Casini, who argue that many legal questions posed necessitate a broadening
and probably even a rethinking of the field of international institutional law; Kingsbury, Casini,
op. cit. 31, at 356.