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NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW
The question whether administrative control has to be organized at the international
or domestic level, and how control has to be organized, remains open.
A global administrative space has been identified consisting of the sum of these
transnational administrative mechanisms, principles, and practices. This space is
characterized by diversity and fragmentation since global administrative bodies were
not created equal. Global administrative actors range from international agencies,
subsidiary organs such as general assemblies, Conferences of the Parties, special or
functional committees, and/or private actors. The output overlaps to a great extent
with IN-LAW, whereas GAL also studies decision-making processes, guidelines,
policy harmonization, and standardization activities.
33
However, major differences
are also to be noted in terms of scope. First, other than IN-LAW, GAL does not
exclude private standard-setting from its scope. Second, GAL also takes account
of formal and legally binding output of traditional international organizations. An
activity does not have to be ‘informal’ to be subject to a GAL analysis. GAL thus
takes a rather inclusive view on what constitutes ‘global administrative action’.
34
An interesting consequence of the GAL approach is the evaporation of the sharp
separation of the domestic and the international.
35
Reasons are twofold. First, it
can be noted that administrative law has entered international relations because of
altered models of national representation in international affairs. States increasingly
have delegated tasks to administrative agencies and regulators. Within the mandate
accorded to them by national parliaments and/or governments, the latter may act at the
international plane. Second, at the global level, a considerable number of international
institutions perform functions that resemble national administrative action.
36
A main advantage of taking an administrative law perspective on non-traditional
norms is the theoretical framework offered to explain and categorize international
rulemaking. Clear procedural advantages emerge, which on their turn may strengthen
accountability standards. Introducing administrative procedures to global regulatory
action can ensure that administrative bodies also adequately integrate standards of
transparency, participation, and effective review. However, given the large number
of fundamentally very different transnational initiatives that are considered to be
part of the global administrative phase, it has proven difficult to discern common
characteristics, left alone to decide on the legal principles to guide future administrative
action. The global administrative space does not consist of a coherent and clear
33
Von Bernstorff, J., “Procedures of Decision-Making and the Role of Law in International Organizations”,
German Law Journal
, 2008, Vol. 9, No. 11, pp. 1939-1964; Kingsbury, Casini, op. cit. 31.
34
Dann Ph., von Engelhardt, M., “Legal Approaches to Global Governance and Accountability: Informal
Lawmaking, International Public Authority, and Global Administrative Law Compared”. In:
Informal
International Lawmaking
, op. cit. 19, pp. 106-121, at 107.
35
Kingsbury, B., “The Concept of ‘Law’ in Global Administrative Law”,
European Journal of International
Law
, 2009, Vol. 20, No. 1, pp. 23-57, at 25.
36
Krisch, Kingsbury, Stewart, op. cit. 30; Krisch, N., Kingsbury, B., “Introduction: Global Governance
and Global Administrative Law in the International Legal Order”,
European Journal of International
Law
, 2006, Vol. 17, No. 1, pp. 1-13.