CHAPTER 02

Dimensions of Global
Administrative Low
1
Mr. Saksham Agarwal, 2Mr. Shreet Raj Jaiswal
1,2
Student faculty of law, university of Lucknow
ABSTRACT:

INTRODUCTION:
Globalization and the ascend of global governance are
transforming the arrangement of jurisprudence of international law.
From the perspective of classical international law, global
governance may still appear just as a quantitative increase in
international legal instruments, at times coupled with stronger
enforcement mechanisms viz. accompanied by some changes in
procedures of treaty-making.
The focus of this paper, approaches changes from a specific
angle. It starts from the examination of the fact that much of global
governance can be understood as regulations and administration,
and that we are witnessing the appearance of a ‘global
administrative space’: a space in which the strict dichotomy between
domestic and international law has hugely broken down, in which
administrative functions are performed in frequently complex
interactions between officials and institutions on different levels. In
practice, the increasing use of the public power in these
arrangements has given rise to serious concerns about legitimacy,
transparency and accountability, giving rise to many serious
concerns in many areas of global governance. Accountability
problems are addressed through transparency, through rule-making,
and through judicial and administrative review, in a vast array of
distinct areas, such as:-
 global banking regulation,
 Security Council sanctions administration,
 the international administration of refugees, or
 The domestic regulation of transboundary environmental
issues.
Global administrative law proposes drawing together these
dispersed practices and understand them as part of a common,
growing trend towards administrative law type mechanisms for
holding global regulatory governance accountable, and to inquire
into the challenges this set of issues poses to both domestic
administrative law and international law. Global administrative law
can be understood as comprising the legal rules, principles, and
institutional norms applicable to processes of ‘administration’
undertaken in ways that implicate more than purely intra-State
structures of legal and political authority.

THE CONCEPT OF GLOBAL ADMINISTRATIVE LAW:

The concept of global administrative law emerges from the
idea that much of the global governance can be understood as
administration, and that administration is generally organized and
shaped by principles of an administrative law character.1 The term
‘global administrative law’ came into use during the first decade of
the 21 century. It encompasses most of the subject-matter addressed
by jurists in the 19 and 20 centuries under the rubric of ‘international

1
For a detailed exposition of global administrative law, see Kingsbury,
Krisch and Stewart, The Emergence of Global Administrative Law, 68:3 Law
& Contemporary Problems 15 (2005)
administrative law’ and, like this early work, it proceeds from a view
of what constitutes ‘administration’ beyond a purely domestic
context, including some activities of national administrative
agencies, and many activities of international organizations. But this
newer term is preferred to avoid the misleading implication that the
field is simply a branch of general international law and thus can be
structured in terms of traditional (and now much-contested) criteria
for → sources of international law and → subjects of international
law.2
With the emergence and spreading of the concept of global
governance, many regulatory and administrative functions are now
performed in a global rather than national context, yet through a
great number of different forms, ranging from binding decisions of
international organizations to nonbinding agreements in
intergovernmental networks and to domestic administrative action
in the context of global regimes. Examples include UN Security
Council decisions on individual sanctions; World Bank rule-making
for developing countries; the setting of standards on money
laundering by the Financial Action Task Force; or domestic
administrative decisions on market access of foreign products as part
of the WTO regime. Many regulatory functions in global governance
are also performed outside such formally public, governmental
structures, namely by hybrid private-public or purely private
institutions, such as ICANN, the Internet Corporation for Assigned
Names and Numbers, or the International Organization for
Standardization (ISO).3
Despite these widely varying forms and institutions, we can
observe in all these examples the exercise of recognizably
administrative and regulatory functions: the setting and application
2
See, Benedict Kingsbury & Megan Donaldson, Global Administrative Law,
Oxford Public International Law (2011)
3
See, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance
and Global Administrative Law in the International Legal Order, 17 EJIL
(2006)
of rules by bodies that are not legislative or primarily adjudicative in
character.4 If similar actions were performed by a state agency, there
would be little doubt as to their administrative character.
In many areas of global governance, and in highly
variegated forms, mechanisms are emerging that seek to enhance the
participation in the accountability of global administration and
regulatory decision-making. The composition, constitutional and
organizational similarities between many of these disparate
phenomena are striking: they testify to a growing trend of building
mechanisms analogous to domestic administrative law systems to
the global level; transparency, participation, and review are central
among them. This trend is reflected, for instance, in the Inspection
Panel set up by the World Bank to ensure its compliance with
internal policies; in notice-and-comment procedures adopted by
international standard-setters such as the the OECD; 5 in the
inclusion of NGOs in regulatory bodies like the Codex Alimentarius
Commission; or in rules about foreign participation in domestic
administrative procedures as set out in the Aarhus Convention. Thus
the fact becomes clear that this is a general trend of practice toward a
global administrative law.6
Further, we describe this field of law as ‘global’ rather than
‘international’ to reflect the linkage of domestic and international
regulation, the inclusion of a large array of informal institutional
arrangements (many involving prominent roles for non-state actors),

4
For similar characterizations, see C. Tietje, Internationalisiertes
Verwaltungshandeln (2001); S. Battini, Amministrazione senza stato (2003);
J. E. Alvarez, International Organizations as Law-makers (2005), at
244–245; D. Sarooshi, International Organizations and Their Exercise of
Sovereign Powers, 14–17 (2005)
5
See Salzman, Decentralized Administrative Law in the Organization for
Economic Cooperation and Development, 68:3 Law & Contemporary
Problems 189 (2005)
6
See, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance
and Global Administrative Law in the International Legal Order, 17 EJIL
(2006)
and the foundation of the field in normative practices, and
normative sources, that are not fully encompassed within standard
conceptions of international law.

POSSIBLE SOURCES OF GLOBAL ADMINISTRATIVE LAW:

Global administration is diverse and fragmented. It takes
place in a global administrative space in which clear separations
between national and international administration are not easily
maintained. Global administrative law can thus be approached from
several different legal perspectives7:-
(a) Public International Law:- Some global administrative law is
part of, or derives from, standard sources of public
international law, most obviously → treaties. However, many
of the features of global administration are not required or
specified by treaty provisions, and have instead evolved as
part of the practice of international organizations, networks, or
other bodies involved in global administration. Some of this
institutional practice, including, for example, some measure of
transparency about administration, and some measure of
procedural participation, might be thought to have a
normative dimension or effect, either because institutions
establish these arrangements out of some sense that they are
required or highly desirable, or because the practice of some
institutions with these arrangements is then taken by others as
a model.

(b) IUS Gentium:- Bearing in mind the significance of

institutional practice, global administrative law might be
thought to consist in part of elements of a ius gentium
encompassing norms emerging among a wide variety of actors
in diverse settings, mirroring to some extent law-making
procedures in fields such as the → lex mercatoria
7
See, Benedict Kingsbury & Megan Donaldson, Global Administrative Law,
OXFORD PUBLIC INTERNATIONAL LAW (2011)
 (c) International Public Law:- One important approach seeks to
identify, develop, and apply general principles of public law
to any exercise of international public authority. Acts of public
authority, including use of specific administrative instruments
such as national policy assessments, attract the application of
these regulative public law principles where significant effects
on individual autonomy are felt. Where the authority is
exercised by States or organizations empowered by States, it is
argued that application of public law principles flows with the
source of the authority.
(d) National Administrative or Public Law:- An increasing body
of work considers the extension or adaptation of national
administrative law (or → European Administrative Law) to
deal with effects of global regulatory governance or other
external acts. Moreover, the increasing implication of domestic
agencies in global administration, and the fact that global
administration may affect the rights of individuals, means that
national legal orders and jurisprudence may have a significant
practical effect on the development of global administration.
National rules and mechanisms have been significant models
for extra-national administrative institutions on matters
ranging from public contracting and procurement to → public
private partnership[s], → ombudsperson[s], and information
disclosure regimes. This ‘bottom-up’ approach is of great
practical significance, as rulings of national courts of other
national agencies may both shape national governmental
responses to global administration, and shape the conduct of
private actors in the global administrative space.8

GENERAL FEATURES:
Global administration is of growing significance as both a
result and a shaping feature of global ordering. Global

8
See, Benedict Kingsbury & Megan Donaldson, Global Administrative Law,
OXFORD Public International Law (2011)
administration can have serious effects on individuals and their
rights, and on possibilities of national or local democracy or
autonomy, as well as other deeply held values. Understanding the
processes and trajectories of global administration thus has
substantial practical and normative importance. Such an
undertaking is rendered challenging by the massive volume,
polycentricity, and obscurity of the interactions which constitute this
administration. The patterns of power and authority in global
administration are much less structured than those underpinning
major parts of many domestic administrative systems. Institutional
differentiation is less complete, roles are not clearly assigned,
hierarchies are not highly specified, and bright lines do not exist
between the spheres of administration and legislation or between
administrative and constitutional principles and review authorities.9

THE DIMENSIONS OF GLOBAL ADMINISTRATIVE LAW:

In administrative law’s two hundred years of history, the
most important change has been the development of Global
Administrative Law (or GAL, through the inception of 2,000 global
regulatory regimes, 60,000 international non-governmental
organizations, over 100 international courts, and a similar number of
quasi-judicial bodies – as against ‘only’ 193 States). GAL is partly
linked to the State, and partly connected with global institutions. The
development of global regulators and of global rules altered this
traditional picture: State administrative law was monistic, while
GAL has a dualistic dimension. State administrative systems
diverge, while GAL has some unitary features and drives national
administrative systems towards convergence. As noted above, GAL
has a double relationship – one with national governments, and one
with global regulatory regimes. However, contrary to a commonly
held opinion, GAL is not a layer of regulation that is superimposed
upon State regulation, and administrative law is not a multi-level
system, because global regulation percolates into national legal

9
Ibid
orders and the result is a mixture of national and global measures.
GAL captures three dimensions: civil societies (and not only
national rulers and ruling bodies); national institutions (but not as
part of a unitary legal person); and supranational, international and
transnational institutions. From this perspective, GAL is
characterized not only by a ‘trilateral’ relationship (between civil
societies, national institutions and institutions beyond the State), but
also by the emergence of ‘new alliances’: as local and global interests
converge, global institutions establish alliances with individuals or
national civil societies against States. For example, the regimes for
the protection of the global environment or cultural heritage use civil
society members as ‘fire alarms’ against the action of national
governments. Choosing the term ‘global’ instead of ‘international’ is
not, therefore, a matter of mere terminology, because the former
refers to the world as an interconnected whole.10

THE NORMATIVE POTENTIAL AND PROBLEMS OF GLOBAL

ADMINISTRATIVE LAW:
There appears a series of questions which needs to be
answered before recognizing global administrative law as a separate
module of study that

 Whether the global administrative law produce normatively

positive outcomes, and for whom?

10
On GAL in general, see Benedict Kingsbury, Nico Krisch and Richard B
Stewart, The Emergence of Global Administrative Law 68(3–4) Law and
Contemporary Problems 20 (2005); Eleanor D Kinney, The Emerging Field of
International Administrative Law: Its Content and Potential 54(1)
Administrative Law Review 415 (2002); Bhupinder S Chimni, Co-Option
And Resistance: Two Faces of Global Administrative Law 37(4) Journal of
International Law And Politics 799 (2005); Carol Harlow, Global
Administrative Law: The Quest for Principles and Values 17(1) European
Journal Of International Law 187 (2006
  What are the normative grounds for deciding whether the
pursuit of global administrative law approaches to global
governance is desirable or undesirable in particular cases?
 Is it desirable to pursue global administrative law as an
integrated agenda, an abstraction calculated to spill over and
make unpredictable connections between one case or place
and another apparently quite different case or place? And
 Is the administrative law model adequate in the circumstances
of global politics and society?

THE BOUNDARIES OF GLOBAL ADMINISTRATIVE LAW:

There arises a serious question while exploring the
boundary of global administrative law that whether any distinction
between administrative law and public law in general is warranted
in a context in which the distinction between government (based
directly on electoral legitimacy) and administrative actors (resting on
a more indirect basis of legitimacy) has broken down. It might be
useful to look to private law rather than public law for the answer of
this question. Private law might have stronger resources for holding
decentralized private actors accountable – actors who should be held
accountable because, on the global plane, they exercise ‘public
power’. This brings up another question on a different note that
whether any distinction between public and private law should be
maintained in the global order. The rule-making powers or
regulatory practices of international organizations possess such
authority as to constitute a distinct system of administrative law’,
but they see value in describing in public law terms international
mechanisms that check state administrative action. 11
Limits to Universality
The growth of global administrative law must be with

11
See, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance
and Global Administrative Law in the International Legal Order, 17 EJIL
(2006)
considerable caution and must be guarded as to the universal
applicability of some of its elements. Example can be seen of the
interplay of WTO government procurement rules and local
dynamics in Malaysia.12 The global administrative law demand for
transparency in government procurement, and for mechanisms by
which unsuccessful foreign bidders could challenge a contract award
in local courts or administrative proceedings, has been resisted by
the Malaysian government, which sees such demands as a threat to
its bumiputera policy that overtly favors ethnic Malays in
government contracting. This policy has been part of a social bargain
in which ethnic Chinese Malaysians have retained a significant
economic position, but have not enjoyed full political equality.
Whether the government contracting practices have in fact been
beneficial to most Malays, or to the country, are not questions for
which there is an agreed metric on which to base an answer. The
case is complex but it attests that there might be good reasons for
rejecting such principles as transparency and review in particular
circumstances, and that global administrative law can at most make
a much attenuated claim to universal reach.13
Challenges for Classical Models of International Law
Global governance does not smoothly fit into the web of
inter-state, classical, consent-based models of international law; too
much of it operates outside the traditional binding forms of law.
Some of the basic challenges towards the issue of global
administrative law are:-
 The blurred distinction between domestic and international
law. In the global administrative space, the line that separates
the domestic and the international orders is often indistinct.
12
McCrudden and Gross, WTO Government Procurement Rules and the
Local Dynamics of Procurement
Policies: A Malaysian Case Study’ [151–185].
13
See, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance
and Global Administrative Law in the International Legal Order, 17 EJIL
(2006)
 Regulators come together in global institutions and set
standards that they then implement in their domestic capacity;
and individuals or private entities are often the real addressees
of such global standards and follow them even where no
formal legal implementing act has been undertaken by the
regulator.
 The questioning of the legitimacy of international law. The
separation between domestic and international law has long
been a means for limiting the legitimacy demands on
international law. States could organize their domestic
institutions according to their various, widely diverging
visions of political order; and the international order could, in
abstract principle, rest on the consent of the various states.14
 Towards a global public law? Given the diversity of forms of
law and processes of rule-making, the importance of various
sorts of institutions in them, and the increasingly blurred line
between the domestic and the international, it is necessary to
inquire whether a new global public law is emerging. Some
argue that all forms of law-making and regulation in global
governance are exercises of public power, and seek to theorize
their status, effects and limits on the basis that any exercise of
public power demands a particular public justification,
whether or not it produces binding law or decisions. Others
doubt that the core concepts of public law are adequate for
complex and variegated global regulatory regimes of the kinds
addressed in many of these papers. Work on global
administrative law, of the sort represented in this symposium,
may provide one foundation for this wider inquiry15

CONCLUSION:

14
See Kingsbury, Sovereignty and Inequality, 9 EJIL 599 (1998)
15
See, Nico Krisch & Benedict Kingsbury, Introduction: Global Governance
and Global Administrative Law in the International Legal Order, 17 EJIL
(2006)
 As noted above, the global space is replete with rules that
impose transparency, as well as affirmations of the right of
stakeholders to a hearing, the right to be informed and consulted, the
duty to provide reasons, and the right to a judge and to the judicial
review of decisions. Procedural rights are more broadly present in
some contexts, and more limitedly in others. One of the most striking
features of the global legal space is the speed at which principles of
the rule of law have developed within the different legal orders. 16
Institutions that took decades or even centuries to develop within
States quickly expanded beyond the State, sometimes even more
proficiently than in the State context. It is likely that the reason for
this rapidity lies in the fact that all States have experienced a
historical phase of absolutism, during which the principle of
authority prevailed and no administrative rights were granted to
citizens. It took centuries for certain basic rights to be recognized
against the executive agencies of national governments.
One may conclude that due process principles, when transplanted
into the global space, become different from the analogous
procedural rights established by national rules against national
authorities – that they are not new, but rather become different in a
new context.

16
Jorge Agudo Gonzalez, The Evolution of Administrative Procedure Theory
in “New Governance” Key Point, 6(1) Review of European Administrative
Law 73 (2013)