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SANDERIJN DUQUET – JAN WOUTERS
CYIL 5 ȍ2014Ȏ
set of administrative rules and it is unlikely that agreement on this will ever be
found. Challenges are clear: transnational or global administrations were not
founded on the basis of a common legal tradition, nor do they necessarily share
a set of predetermined constitutional principles.
37
GAL researchers do not shy away
from this debate: the identification of common principles and standards in global
administrative lawmaking is a recurring theme in research. Results, however, have
been unsatisfactory. Scholars disagree on if and how efforts have to be undertaken
to select, define, and further develop principles and values at the global plane.
38
On
the one hand, the further elaboration of common administrative rules seems crucial,
not just for a proper administration of justice for individuals, but more broadly for
the legitimacy of transnational and international administrative action in general.
39
On the other hand, a main strand in literature suggests that the finding of agreement
on a universal set of administrative law principles should not be a priority for GAL.
Either way, problems related to the selection of principles of global administrative
law emerge. Given the variety in international institutions, regimes, and networks,
it has been argued that diversity and pluralism are preferred ways to cope with
this issue.
40
The latter approach, however, may leave the impression that the GAL
framework, as it stands, is not fully living up to its potential. Although, at first glance,
it provides a concrete and useful methodology to order non-traditional norms at
transnational and international levels, GAL’s comprehensiveness tends to decelerate
the development of common global administrative principles.
3.3 International Public Authority
Studies conducted in the framework of the research project at the Max Planck
Institute in Heidelberg on the ‘Exercise of International Public Authority’ (IPA)
emphasize the notions of governance and public law in global governance activities.
The prevailing hypothesis is that ‘governance’ is about creating (public) order.
41
The
IPA methodology enables the identification of all those international governance
phenomena it believes public lawyers should study. The concrete benchmark
used is whether public authority is exercised by international actors.
42
The IPA
37
For further reading, see Kuo, M.-S., “Between Fragmentation and Unity: The Uneasy Relationship
between Global Administrative Law and Global Constitutionalism”,
San Diego International Law
Journal
, 2009, Vol. 10, No. 2, pp. 439-467.
38
Harlow, C., “Global Administrative Law: The Quest for Principles and Values”,
European Journal of
International Law
, 2006, Vol. 17, No. 1, pp. 187-214.
39
Wouters, J., Duquet, S., “Reasonableness as a Standard of Judicial Review: Comparative, European and
International Perspectives”,
Rivista Trimestrale di Diritto Pubblico
, 2014, Vol. 64, No. 1, pp. 33-74.
40
For further reading, see Robalino-Orellana, J., Rodriguez-Arana Munoz, J.,
Global Administrative Law:
Towards a Lex Administrativa
, Folkstone: CMP Publishing, 2010; Harlow, op. cit. 38.
41
Peters, B.G., Savoie, D.J.,
Governance in a Changing Environment
. Montreal: McGill-Queen’s Press,
1995, at 15.
42
Von Bogdandy, Dann, Goldmann, op. cit. 21, pp. 11-12.