Parishi Jain
‘In England, we know nothing of Administrative Law and we wish to know nothing about it.’
– Lord Denning
Administrative Law has remained as an invisible and integral arm of the otherwise mundane public laws. Contrary to what Lord Denning had insisted, administrative law found basis and continued to grow, not only in England but in most countries across the globe. It includes adjudication by agencies of the executive arm of the government, regulations made by them, and the legal relationship between different agencies, the government, and the public at large. However, this branch of the public is yet to be formalized in India, unlike in countries like the USA where it is codified in the form of the Administrative Procedure Act, 1946.
On a national level, administrative law may include the regulation of as simple as the quality of butter that we apply on our bread (regulated by the Food Safety and Standards Authority of India) or the cost of a call made to our friend (regulated by Telecom Regulatory Authority of India). Meanwhile on a global scale, the scope becomes much wider to include regulation of doping in sports, organizing Olympic Games, controlling epidemics, international finance, and world trade, global warming etc.
In his 1986 paper, Michael Schweitzer explained why it is called ‘Global Administrative Law’ instead of ‘International Administrative Law.’ He insisted that international public law mainly deals with the relations between governments; this makes it too narrow to cover the full regulatory needs of a global economy and its multitude of private economic players. Similarly, Eyal Benvenisti, professor of International Law at the Cambridge University, has called it a law of global governance. He has given the reasoning that the advent of globalization and the opening up of economies, has given birth to a Global Administrative Law because global problems require global solutions.
The Global Administrative Law has developed quickly losing its embryonic characters and developing unique features against the State Administrative Law – as it does not render constitutional backing. It is for this reason that Christoph Moellers, professor of Public Law at Humboldt University, has called it a private law framework of public institutions.
To administer this Global Administrative Law, there are certain Global Administrative Law Tribunals already in place that deal with particular aspects of Global Administrative Laws, including, the Dispute Settlement Body of the World Trade Organization which has settled disputes pertaining to the Agreement on Trade Related Aspects of IPR, International Centre for Settlement of Investment Disputes, WIPO’s Mediation Centre amongst other and comprehensive rules for governing such as the UNCITRAL Arbitration Rules.
It is true that having a body applying uniform set of rules over Global Administrative Law actions will certainly lead to a more cohesive functioning of various bodies in the global arena. However, the author disagrees with the extent of having one umbrella organization or one Global Administrative Law Tribunal as the author does not deem it either necessary or feasible to be established. For the same, the author would raise the following questions –
1. There will always remain an issue of accountability in the absence of an executive vertex. Therefore, to what extent the decisions of such courts be susceptible to judicial review, in the dearth of constitutional backing?
2. What would be the repercussions if one party fails to adhere to the directives given by the Global Administrative Law Tribunal? This is taking into consideration the almost redundant existence of the International Criminal Court and the International Court of Justice of the United Nations and how nations consistently disobey their orders without facing any sanctions for their actions with the most recent and notable miscarriage of duty by Russia wherein it did not withdraw its troops following the directive by the International Court of Justice. Their legal representative did not even show up when the directive was being delivered by the court.
3. Global Administrative Law Tribunal’s decisions can never be an exclusive product of global institutions, rather they cohabit with the national and global space. In such a case what relation ought to be established between the National Courts and the Global Administrative Law Tribunal?
4. The USA being a federal state follows ‘enabling legislation’ system wherein administrative agencies are authorized to promulgate regulations that have the same force as a statutory law. India following a quasi-federal structure follows the ‘delegated legislation’ system. France follows the system of ‘Droit Administratif’. China, being a communist country, has minimal judicial intervention in its administrative actions wherein the chance of success against challenging an administrative action is not very high. Since all the countries have a different approach towards their government structure, separation of powers, and implementation of administrative laws, what would ever entice them into coming to a consensus on having one Global Administrative Law Tribunal which would apply a uniform set of rules over their actions? Furthermore, catering special status of veto to the P5 countries to allure them would essentially make it another failed United Nations.
It is for this reason that Global Administrative Law in itself has survived and succeeded however, a Global Administrative Law Tribunal is bound to fail.
1Michael Scheitzer, Staatsrecht III: Staatsrecht, Völkerrecht, Europarcht (1986).
2Carol Harlow, Global Administrative Law: The Quest for Principles and Values, The European Journal of International Law, (2006) (Vol. 15, No. 1).
3Benedict Kingsbury, Megan Donaldson, Global Administrative Law, Oxford Public International Law Max Planck Encyclopaedia of Public International Law (2011).
4Seth C. Turner, The Assurance of Impartiality: Due Process Mechanisms and the Development of Global Administrative Law in International Administrative Tribunals, Georgetown Journal of International Law (2019) (Vol. 49).
5Sabino Cassese, Administrative Law without the State? The Challenge of Global Regulation, NYU Journal of International Law and Politics (2005) (Vol. 37).
6Jeffrey L. Dunoff and Mark A Pollack, Global Administrative Law, International Legal Theory: Foundations and Frontiers by Cambridge University Press (2019).
The author is a 4th Year LL.B./B.L.S. (Rev.) student at SVKM’s Pravin Gandhi College of Law, University of Mumbai.
Image Credits: ipleaders
Constitutional Law Society 
Leave a comment