Thursday, April 1, 2010

The Strange Normativity of IOs: Part I

A recurring question by those less familiar with the field of global administrative law is precisely why, and in what regard, the claim - central to the field - that international organizations can now be viewed as public administrative bodies can be made and defended. The stock answer is that they exercise public power that cannot be accurately described as either legislative or judicial in nature. "Administrative" then becomes something of a negatively-defined catch-all.

Many, however, seem to find this unsatisfactory; and indeed, it does appear to me to be at best only half of a definition. I thought it might be useful, therefore, to start a small series of posts (perhaps a series of one; we'll see how things go) on the "strange normativity" of international organisations: that is, the ways in which their activities take on important normative characteristics, or impact upon the existing "hard" legal orders, whether at the global, regional or national levels. While this will not - at least initially - provide the missing "half" of the definition discussed above, it will I hope provide some examples of the reasons why it is suggested that the activities of international organisations that fall short of actual law creation (as most do) nonetheless have important public normative characteristics - and thus flesh out a little what is meant by this category of global "administrative" power.

To kick off the series, an interesting example of the interplay between the activities of IOs and domestic constitutional law in my new home, Australia. As many will know, Australia is a federal state; and - as almost always is the case in federal states - the issue of the division of competences between the federal and state governments is often the cause of controversy. The issue is regulated by s51 of the Australian Constitution, which lists what are known as the "federal heads of power". Perhaps the most important of these is contained in s51(xxix.), which vests the power to legislate over matters involving "External Affairs" in the Commonwealth Parliament.

Of particular interest to me here, however, is the expansive interpretation that this has been given by the Australian High Court. In Commonwealth v. Tasmania (1983), it held that

It is preferable that the circumstances in which a law is authorized by the external affairs power be stated in terms of what is sufficient, even if the categories overlap, rather than in exhaustive terms. To be a law with respect to external affairs it is sufficient that it:

(a) implements any international law; or
(b) implements any treaty or convention whether general (multilateral) or
particular; or
(c) implements any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, The United Nations Education, Scientific and Cultural Organization, The Food and Agriculture Organization or the International Labour Organization;

And further that:

It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation.

The "soft law" activities of IOs - of global administrative bodies - therefore have a direct normative impact on Australian constitutional law, in affecting the division of competencies between the Commonwealth and State parliaments. One interesting example, I thought, of the strange normativity of IOs...

1 comment:

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