This article is written by Oishika Banerji, an undergraduate law student currently pursuing B.A.LLB (Hons) from Amity Law School, Amity University Kolkata. This is an exhaustive article that analyses the emergence of Global Administrative Law.
In an atmosphere of globalization, the convergent ideology of administrative law has received a palate of opportunities to represent as a global mechanism to regulate governance globally. A more personalized approach towards governance, global administrative law is responsible for changing the concept of both domestic and international laws and associated politics for the people in general. The three concepts that globalization brings along with it are privatization of the nation, deregulation, and disinvestment. While the first concept involves reshaping the existing ownership of state, deregulation, as the name suggests, involves a change in the existing rules and regulations of the nation followed by disinvestment which signifies clearing of the public sector completely to mend ways for private sectors. This change initiates the growth of both victims as well as beneficiaries. Therefore, this calls for a well-built regime of administrative law which will amalgamate economic development along with human growth. Global administrative law has opened gates for transparency, public participation, accountability, socio-economic development for the governance system. A developing field, global administrative law is introducing a new world set to govern on the basis of comprehensiveness and equity.
Global administrative law
It is only in the 21st century that the concept of global administrative law gained its importance. The unique trait this branch of law possesses is replacing the term world with that of the globe. This, in turn, removes the misleading nature of idealising the branch of law as an international perspective only and provides enough space to include divergent thinking on the branch of administrative law. Increase in the development of the global administrative law has been enough to reach out to a prototype transgovernmental form of administration that has been outlined to address the results of interdependence at a global level in spheres ranging from security, economic assistance, migration of population across borders, trade practices and many more. These repercussions cannot be dealt with the help of domestic regulations and administrative assessment only. As an outcome to this loophole, the birth of several multinational systems to carry out regulations and the regulatory procedure has been initiated through international agreements, the formation of informal governmental networks among nations to uplift the decision-making activity from domestic to a global level altogether. The regulations and norms referred here are not bound by any nation and therefore they expand in all corners of the globe.
Broadly, there exist two approaches that can be used in construction purposes of global administrative law namely,
- One of the two approaches refers to the switching of provincial administrative law into the global directive. This approach is used to ensure activeness, legality and adherence in regulation globally.
- Another approach is switching the global directive into the room of domestic administration. This approach aims to bring about divergent ideologies, participation from individuals and adherence in global regulation.
These approaches can be used in bringing solutions to problems ranging from law-making activity, adjudication issues to that of accountability and administrative mismanagement, all at a global level.
Although the efforts involved in developing global administrative law began in the mid 19th century, the entire concept of global administrative law came about just a few years ago. It came under the spotlight during the 1920s and the 1930s. This branch is in a developing stage at present and has already found a reference in the work of several social reformers which eventually disappeared. The coming of this field of law has in one way brought back the golden history. Breaking down traditional views of the administration, global administrative law is in the process of being successful in achieving welfare and efficiency in a global administrative system. Regulation in fields of environment, health, finance, economy, the action task force is all adapting governance at a global level. Some of the major players in the sphere of global governance include,
- An international organization with a formal nature like the World Trade Organisation (WTO), International Monetary Fund (IMF), World Health Organization( WHO), United Nations Organisation (UNO), UNICEF
- Natural regulators carrying out administration
- Private organisations with a function that is regulatory by nature
- Multinational networks of joint arrangements
A reduction in the control of domestic administrative agencies can be viewed as a reflection of the development of global administrative law. What remains is the complete remodelling of the face of administration by adequate use of the elements of clarity, just and fair procedure, review of rules and decisions made and enforcement of these elements as per necessity.
Global administrative law can be referred to as the study of several principles, frameworks and execution which intend to support understanding with a social perspective that in one way stands responsible for affecting the obedience of global administrative organs. This is to keep a check upon the limits of clarity, reasoned decision and legality while executive the rule-making authority. In one way global administrative law accumulates variable fields of law which concerns rule-making activity or has administrative colours in it, which were till now treated individually and specifically. A combination of international administrative law and public law with an international approach is what global administrative law actually signifies.
This field of law has provided a sociological perspective to legal practice thereby hinting that the practice is all about to include within its methods of conservation of several laws with the aim to form a transnational governance system which will somewhat be similar to what administrative bodies execute domestically. The focus of global administrative law, therefore, is a combination of both substantive as well as a procedural set of law for an efficient mechanism of governance at a global platform.
The norms which have been referred above has its roots from three distinguished branches of law namely,
- International law
- Administrative law
- Public law
The reason why international law is one of the sources for the origin of the global administrative law is that when there comes the scenario of formation of rules, regulations and policies, they are made taking into concern ideologies from the regions that are specialized in the same and have been traditionally inclined to the field. The global administrative law also aims to offer responses to the accepted turmoil in the branch of international law. With legitimacy and accountability being the indispensable ground of decision-making activity, there arises a need for reviewing the administrative actions taken by international bodies. This remains an important activity to be carried out by the global administrative law.
Administrative law is one such field of law that involves practicality and application of the textbook rules and law. It deals with the procedure of implementation of already existing norms. The role of this field in global administrative law is immense for the base on which the branch of global administrative law stands is that of administrative law itself. This field required a global perspective in order to have an efficient regulation system of governance.
The branch of public law is the third and the most required branch in the framing of the global administrative law. Public law does not only include public policies and welfare but also principles of natural justice, human rights, customs, distribution of available resources equally, productivity are few others to include within the ambit of public law.
These elements are essential to be included when global administrative law is adopted. Therefore, these are the three fields of law that can collectively be regarded as global administrative law.
What can be inferred from the sources of global administrative law is that this field aims to follow the footsteps of public law subject to review of the same before the framing of final guidelines. Therefore, it can be said that global administrative law has some distinctive features namely;
- A sector-based legal field: Global administrative law being a sector-based law signifies the absence of uniformity of legal application the field has in distinctive domains of framing of policies. This trait of global administrative law is in favour of having a case study approach which is used or can be used across universities as a medium to profess and practice and in the process adopt this field as a field of study and research.
- An interdependency of homogeneity and heterogeneity: Global administrative law is a product of the interplay of both public as well as private laws which further initiates the birth of regulatory regimes that are meant to have its application globally. Participation of both public as well as private elements is necessary for the efficient working of these regulations. This gives a hybrid nature to the global administrative law which is necessary for dealing with fields like that of public health.
- A product of interconnection between two conflicting sectors: Global administrative law acts as a platform of the meeting of different sectors in order to exchange rules, regulation, policies, procedures for carrying out these to bring in variability which helps in framing the outline of global legal policies. Thus out of discussions, debates and conflicts among various administrative bodies arise creation and evolution of laws and policies which can be applied globally for a betterment.
- State influence: Any state in the globe plays an important ingredient for initiating the growth of the field of global administrative law. But a state cannot help in the process of formation of global administrative law alone and therefore self mechanism by global administrative law itself can complete the procedure. The state acts as an experimental device for global administrative law to be implemented and subsequently the consequence of the same help in bringing about changes in the framed rules and regulations if and when required.
Thus, these features lay down the constitution of global administrative law. The list of features are open to experiment and addition for this is an evolving field of law.
Strategies for development
Global administrative law comes with a positive motive, divergent thought, a strong and complex structure. Each day brings about growth and development in the field. But development needs to take shape properly and with the concern to the consequences of such development globally. This introduces the strategies required for the development of global administrative law. A few strategies that must be taken into consideration for a better tomorrow for this field of law is provided below:
- The procedural due process law-making feature of global administrative law should engulf itself with the principles of natural justice, lucidity, consensus resulting from dispute resolution mechanism in order to successfully carry out adjudication procedure in a global platform.
- When it comes to substantive due process law-making, special concerns for worldly developments must be taken which includes public administration of available goods and services, environment concerns, cultivation, standards of labour, human rights, trade of pharmaceutical elements, materialistic developments and others needs.
- The regions beyond the above two where global administrative law should focus on include the aspect of being responsible and accountable in light to administrative grounds necessary to bring in efficiency and fairness.
- The element of accountability must be enforced at various levels of administrative efficacy. The six levels of infusing accountability are as follows:
- Scrutiny of concepts, rules, regulations or policies at both external and internal levels.
- Checking of the relationship the policies possess with the states
- Scrutiny of preventive necessities being taken and adopted
- Substitution of losses or harm caused to the people for the above steps
- Taking into concern humanitarian rights at a global level
- Laying down of state’s responsibility and the matters for which state can be held accountable.
It is not easy to lay down strategies for development of something completely new to the globe. Past incidents and circumstances have brought into concern prevailing inequalities in the globe. Thus, to remove the same above strategies can be adapted but one must not forget that it is only through implications and experience one can learn the apt solution or rather the best ways of global administrative law taking its shape in this world.
The field of global administrative law is evolving in nature and therefore judgements passed on these grounds are extremely rare. Nevertheless, the field is based on the elements of natural justice, fair procedure, human rights and transparency which itself was born of judgments passed by the court of law. In the case of Department of Transportation v. Public Citizen, the Supreme Court of the United States decided that the extent of judicial review cannot be the same as that in case of international negotiation for it undermines the integrity of the same. This case further showcased that any administrative agency must be aligned to the promises it has made in an international forum.
In, United Mexican State v. Metalclad Corporation, the relationship between a domestic court and an international court was led down. The questions that arose was whether it is legitimate for any national court to review the judgement delivered by a global court and whether such review is an obstruction or a scope for development in the arena of global law. The above case laws are two of the landmark cases that show the conflict between laws on grounds of one being global while the other being domestic by nature. This says that the path for global administrative law is long and filled with hurdles for it is not easy to set one adjudicating authority for the entire globe.
The introduction of a globe without impartiality, frauds, anarchy is always welcoming. The emergence of global administrative law is, therefore, a ray of light for a world that is divided. The evolving nature of this field brings in solutions as well as interrogations which are essential for any administrative system to function. The concepts of diversity, equality, fairness are taking birth once again and this time the effectiveness is much more efficient for the functioning of administrative bodies globally.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: