Saturday, January 10, 2009

The relation of the domestic to the global in administrative law: Inspiration, model or cage?

In order to further my new year's resolutions (both in "post count" and "respond to comments" terms), I thought I would pick up on an anonymous comment made to a quick post of mine noting some GAL-type issues to which the recent EC-Hormones Appellate Body decision gave rise, which I unfortunately didn't have time to respond to at the time. It's a thoughtful contribution, and voices a concern that a number of others working in the field have begun to raise: the question of the relation of the domestic to the global within the GAL project. Here is the comment, worth republishing in full (I have added a few paragraphs, for ease of reading):

Just a little thought on the characterization of standard of review, due process etc. discussed in Hormones as 'global administrative law' issues. My lingering feeling is not as much about the individual concepts themselves, but how unconsciously these have become GAL paradigms. I believe the project in its earliest days, over three years ago, refused to confuse itself with domestic administrative law in theoretical underpinnings and modus operandi. I will be quick to add that when I say 'theoretical underpinnings', I don't deny the strong normative case made for a supra-national administrative law on the basis of the success of domestic administrative law principles and institutions. And when I talk of modus, I refer to the fact that it was open-ended and for debate if a GAL should draw from domestic law systems. What I rather intend to convey is the chastely observance of the typical international law tradition in the theoretical framework for the subject in those days: the compelling needs of modern international law, the powers of globalization and the state as a receding actor, those classical concepts upon which a purpose-oriented discussion was initiated. That accountability and transparency could be the domain of GAL without administrative law principles that we are so often tempted to revert to was a possibility that made the subject cutting-edge and left a whole lot of scholarship to brew.

What I think may happen with this (albeit justified) fetish for bracketing of instances like these as breakthroughs for GAL is a possibility that more theoretical explanations will have to be advanced to embrace a somewhat direction-less course for the subject. May be too strong a usage, but I see two far ends in the GAL colloquy that need to be bridged, a set of scholars who are making advances in the theory of the subject (like Dyzenhaus) while on the other, a group of scholars who have inadvertently narrowed the scope of the subject to a review of domestic administrative law-like happenings in the international field. A conceptual vacuum is left, one that may not be in need of an explanation, but that seems to exacerbate the two differently-headed GAL premises.

With the advantage of having seen the AB shift its leanings over the years, I believe this decision is opening yet another floodgate to litigation, not for having found new rights and duties, but for making a lengthy discussion that trade lawyers will have fun in putting up as issues before future panels. The one incident when there was real ad law happening in the AB was when it let amicus briefs in. Look at what happened: the AB incurred the wrath of the membership and went back to square 1 practically, accepting briefs but dismissing almost all of them as 'not relevant' to deciding the dispute(s). While I am unsure how this happening can be put within a theoretical framework other than the immediate realpolitik explanation that surfaces, the biggest reform that the AB is in need of is to make amicus briefs meaningful. Of course, then comes the issue of public hearings towards which we are moving at a fast pace. These are, in my opinion prime GAL candidates, not the standard of review or the burden of proof that are of an interpretative nature of the covered agreements, having nothing to impact directly the stakeholders in the WTO (people really affected by trade rules).

It would indeed be interesting to see in which direction GAL's theoretical scholarship will move in the coming days. Perhaps I personally am unable to handle the simplicity with which the second group of scholars are talking the subject (modern academic scholarship is more about being less arcane, one could say). I may ultimately be wrong in perceiving there is a kind of fissure in the direction for the subject, but it seems to me, at least now, that a more unified approach to the subject is necessary.

A similar point has been (or will be) raised by Nico Krisch (one of the founding fathers of the GAL Project) in his contribution to a forthcoming volume on postnational constitutionalism, which he has kindly allowed me to quote from in this post (and again worth quoting at some length):

GAL seeks to explore and map existing and emerging accountability practices, and it does so in a framework borrowed from administrative law. Here again, like constitutionalist models, it draws on domestic concepts for the understanding and construction of global structures. However, in GAL this move does not imply the prescriptive assumption that the tools of domestic administrative law ought to be transferred into the institutions of global governance, e.g. by establishing judicial review mechanisms wherever individuals are directly affected or by instituting public participation whenever global administrative bodies are engaged in rule-making. Instead, administrative law serves mainly as an inspiration and contrast: it serves as a framework for identifying converging and diverging developments in institutional practice, and it helps us sharpen our sensitivity for the problems and possibilities of establishing accountability mechanisms on the global level. Through reflection on the transferability of domestic concepts, the similarities and dissimilarities in both institutional structures and environmental conditions come into much clearer view.

B.S. Chimni’s work on the Codex Alimentarius Commission is a case in point: by studying the costs and benefits of stakeholder participation in its regulatory functions, we gain a more precise idea of the limits of using certain administrative law tools and with it a better sense for the conditions under which such tools may further broader normative goals. Using domestic administrative law as a background rather than as the basis for prescription also reflects the variations in administrative law structures from country to country. GAL scholarship has largely used the prism of US administrative law but has also drawn on other sources , and the resulting comparative angle also allows a sharper understanding of the differences in background assumptions between administrative law systems. Thus, turning to administrative law for inspiration is mainly an attempt to expand the intellectual and practical resources for thinking about global governance, for bringing out similarities and differences, rather than prescribing particular institutional solutions.

Both of these comments raise, in slightly different terms, what seems effectively the same issue: that of the the way in - and extent to - which global administrative law should draw on the experiences, rules, mechanisms and principles of its domestic counterpart. My own difficulty with raising the issue - important though it undoubtedly is - in abstract terms such as these is that we perhaps risk loading the words we use with more signficance than they might otherwise convey (what precisely does "inspiration" mean in Nico's quote above - does it preclude, should the circumstances so warrant, direct transplantation?); and, on the other hand, in setting up a straw man of those from whom the authors wish to distance themselves.

This second point strikes me as the crucial one. While it is certainly true that some authors have proposed using domestic frameworks as a model for GAL, I know of none that have even suggested that the application of these frameworks from the domestic to the global will be anything other than challenging. I take it as entirely uncontroversial that, as I have argued elsewhere, GAL will be at once recognisable by analogy to its domestic counterpart (indeed, it is this that justifies the choice of the "Administrative Law" moniker for the project) and at the same time something fundamentally new. That global administrative law will, must, be at one and the same time the same and not the same as domestic administrative law is clear; this is also, however, probably as much as we can say about the issue in the abstract - the precise contours of the sameness, or lack thereof, will and should vary from case to case, according to the specificities and the exigencies of each concrete situation.

Take, for example, what I have referred to as the "domestic coordinate" of GAL, and which the framing paper discussed as "distributed administration" - when national administrative bodies administer global regimes, or are otherwise subject to global rules. There is clearly a different dynamic at work here - and one that would perhaps more readily favour simple transplatation of familiar domestic administrative law rules and principles than there is in the case of, say, the Basel Banking Committee, ICANN or ISO. Nor does the result of this dynamic necessarily render GAL any more or lesss "cutting edge" in one context or another - while it may be less controversial to apply administrative law to state bodies than to networks of legislators, one of GAL's key advantages is to bring these two disparate situations within one (reasonably) coherent conceptual framework.

The risk here is that, in stressing the primacy of the new, positions like those adopted above might underplay the need for continuity with, and the potential of, the old; might underestimate the extent to which the domestic can - indeed must - inspire the global. In particular, even if the mechanisms and rules will of necessity change from one context to the next, the principles of domestic administrative law - accountability, transparency, participation, and the like - must remain the key considerations at the global level. Indeed, it is only through the transferral of these principles from the domestic to the global setting that we can identify what constitutes administrative law in the latter - that, however different the concrete manifestations are, GAL is primarily concerned with that which speaks to the accountability and transparency of, and participation within, global administrative bodies. (Unless of course, we adopt the European approach, where GAL is simply "the law of global administration" - neat in one sense, but brings a whole lot of problems of its own - not the least those of delimitation).

On there other hand, there is - and this is what both comments that I have quoted above are really driving at - a real risk of complacency involved in such transplantation; that rules and mechanisms that are not particularly well suited to the institutional or substantive context to which they are to be applied will be used simply through reliance upon some crude and unreflective domestic anaolgy. The point here is not that such instances are "not-GAL", but rather that they are bad GAL, or at least GAL that fails to live up to its potential. This is an ever-present possibility, to which proponents of the field must be constantly aware; but it is a possibility that can only ever be evaluated in context.

I want to conclude by making a few final observations on some of the other interesting points raised in the anonymous comment above, particularly in relation to the perceived "fissure" in the project, and the suspected need for unity. My own view on this is quite different. Indeed, I wonder if the term "project" is still appropriate to describe what is happening in GAL (if, indeed, it ever was), conveying, as it does, a sense of a relatively discrete research agenda directed by a relatively small group of institutional actors. GAL, to the contrary, is - perhaps always was - better encapsulated in the idea of an "emerging field": a field to which anyone with an interest can contribute, whose structure and boundaries are fluid and contestable, and - perhaps most importantly - in respect of which no one person or institution has authoritative definitional power.

To put the matter somewhat differently, while the commentator is undoubtedly correct in his/her observation that a number of GAL scholars have focused on theoretical issues, while others have been more empirical in their approach, there is no great degree of homogeneity within these two groups: not all of those writing in theory agree with the direction, or even with the major preoccupations, of Dyzenhaus (indeed, this is in some ways precisely his most recent point); and the empirical analyses betray a wide range of differing conceptions of what GAL "is", each of them integrating their theoretical presuppositions to a greater or lesser, more or less explicit degree. In this way, the debates that the commentator seemed to suggest above are non longer "up for grabs" remain every bit as open as they did three years ago; and conceiving of GAL as a field rather than a "project" helps us see that they will likely remain that way for some considerable time to come.

In any event, a belated thank you to the anonymous author for leaving such a throughtful and provocative comment; and to Nico for allowing me to quote from his forthcoming piece.

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