Some thought on E-GAL, Edinburgh 2009

Next things next, a brief account and a few reflections on the E-GAL event in Edinburgh on Tuesday the 17th of June. It was, as I suspected it would be, a huge pleasure to be involved in this event, not least of all because it was the first time since I returned to Edinburgh University in an official(ish) capacity since graduating almost ten years ago. More importantly, I think I am correct in saying that this is the first global administrative law event in whose organization neither NYU nor the IRPA in Rome played any role whatsoever. GAL has, of course, had to date some fairly serious institutional backing from some fairly serious institutions, and there can be no doubt that this has played a major role in its increasing prominence; however, if it is really to establish itself as a genuine field of research and study, the ideas and framework it proposes must stand or fall on their own, entirely independently of its initial institutional backers. Events such as these are a crucial next step in testing whether this is in fact possible.

And if this event is anything to go by, it is indeed possible. The organizers (Kasez Lowe, Pierre Harcourt and Danielle Rached) did a first class job of selecting the abstracts for presentation, and of inviting a good mix of those with some experience of the GAL field on one hand and those largely new to it on the other. Amongst the presentations, for example, were (excellent) contributions by Matthias Goldmann and Tiago Fidalgo de Freitas, both of whom have been involved in the GAL project for longer than I have; and, amongst professorial contributors, having the continued, challenging input of Neil Walker (who, incidentally, has a provocative new paper on postnational constitutionalism up on SSRN) was, as always, a real plus; unfortunately, Professor Janet MacLean from Dundee – another who was contributing to the GAL literature prior to my own involvement – had to pull out at the last minute due to illness. Hope she got well soon.

Many of the contributors, however, had no prior knowledge of the GAL project, and were weighing its usefulness as a frame of analysis within their own fields. It is here that GAL – if it is to flourish – must provide real traction. The various contributions provided, in my view at least, real grounds for optimism in this regard. It was also of real interest to have the input of Professor Alan Miller, Chair of the Scottish Commission for Human Rights; he sounded both interested in and cautious about the potential for GAL to drive progressive developments in his own field.

The abstracts of all of the papers are available here; for ease of reference, here is a list of the titles of presentations given:

Unpacking the "Concept" of "Global Administrative Law": Some Reflections on Form, Substance and Pedigree by Nuhaila Carmouche, European University Institute.

The Challenge of Global Governance to the Concept of International Law: Refurbishing Legal Positivism by Matthias Goldmann, Max Planck Institute.

The Added Value of Global Administrative Law by Tiago Fidalgo de Freitas, European University Institute.

The Dilemma of the People and Pluralist Approach in the Global Perspective by Younsik Kim, University of Edinburgh.

GAL, Investment Law and Equality by Jarrod Hepburn, Oxford University.

The Protection of Cultural Heritage: Between the European Legal Order and the Global One by Carmen Vitale, University of Bologna.

Good Governance and Electric Sector Reform in Nigeria: A Critique from a Human Rights Perspective by Oche Onazi, University of Edinburgh.

Weak Judicial Review: Lessons for Global Administrative Law? by Aruna Sathanapally, Oxford University.

If I was to make one minor critical comment about the event, it was that these abstracts, and not fully fledged papers, were all that was circulated in advance; I always find it difficult, under these circumstances, to engage fully and in detail with the arguments being made – particularly when they are as advanced and as complex as they were here – and that the actual “conferring” suffers as a result. In the event, the quality of the papers and the presentations went some considerable distance to offsetting this problem; however, there is to my mind ultimately no substitute for the possibility to read the substance of the arguments to be made in detail in advance.

A quick recap of what seemed to me some of the major points, in conclusion. Professor Alan Boyle (who I think could fairly be described as a traditional-European-international-lawyer-and-GAL-sceptic) raised the issue of what he called GAL’s “lack of focus”, and suggested that this was one of the major obstacles to it achieving more widespread adherence. By this, I think he intended the fact – to which I alluded in my previous post on Viterbo – that GAL can sometimes appear (indeed, be presented) as all things to all people; as a simple catch-all under which all global governance can be subsumed, and which consequently lacks in analytical clarity and bite. There is something of a fine line that must be tread in this regard; one one hand, I can but agree: those writing in the field of GAL must have a clear idea of what the “added value” of this framework is, and not allow it simply to become a placeholder for “global governance” (Tiago’s paper did examine precisely this issue of added value, but did so with reference to the global constitutionalist and international public authority projects; it did not discuss the other side / the added value of GAL as opposed to simply “governance”). On the other hand, there has been a real effort within the GAL project – and rightly so in my view – not to be too proprietorial about the definitions of the field, in order that it might be informed by as many different perspectives as there are national administrative laws. This balance has not yet been ideally struck.

Another theme that emerged from discussions, related to the above, was the difference between the “US” and the “European” conceptions of global administrative law (as an aside, an interesting point about the sociology of GAL: the project seems to be mostly popular with international lawyers in the US, and with administrative lawyers in Europe, where most international lawyers remain skeptical. This can be seen even in the two major institutional backers of the GAL project: the Institute for International Law and Justice at NYU and the Institute for Research on Public Administration in Rome). A useful distinction was introduced in a working paper by David Dyzenhaus to encapsulate this: administrative law can, he argued, be either “constitutive” (i.e. the actual rules establishing administrative bodies, delineating powers within them, etc.), “procedural” (i.e. the rules by which these bodies operate) or “substantive” (i.e. the norms, regulations and decisions that they actually produce). The US vision of GAL is limited fairly strictly to the second, procedural form (mirroring largely the limitations on the discipline of administrative law within the US academy); the European version, on the other hand, explicitly includes at least the first two elements, and often also the third (in Sabino Cassese’s work, for example, there is often a degree of slippage between the terms “global administrative law” and simply “global law” – indeed, I on occasion have the impression that for him these two terms are largely interchangeable). The extent to which these need to be reconciled before GAL can become a discrete “field” of study is, of course, an open question.

A third theme, and one that I addressed in my own paper, and was picked up by Tiago and Neil Walker, was that of the relationship between GAL and “global” constitutionalism. Neil insisted – I think probably correctly – that a legitimate GAL can ultimately not afford to ignore the issue of the “constitutive moment” of the bodies that it seeks to regulate; and – again, probably correctly – that there is no need to think of GAL and constitutionalism as in competition (I would agree entirely on this point, despite the manner in which I sometimes present the issues: I would, however, insist that GAL and global constitutionalism are different and not necessarily complementary projects, and that the image of community ultimately implied in the latter need not inform the former). A general level of agreement was, I think, reached on the idea that while any future global constitutionalism would need a global administrative law, the inverse did not hold; and that there was no need to view GAL as in any way opposed to the deployment of constitutional discourse in particular postnational regimes.

Other key themes touched upon in the presentations and in the discussion was that of the concept of “law” that informs GAL (Nuhaile Carmouche did a good job of critically mapping the various contenders, while Matthias made a strong argument in favour of using a “refurbished” notion of legal positivism); the various ways in which GAL might – and might not – contribute to the increasing legitimacy of global regulatory governance; and of the need for GAL to actually result in tangible improvements in concrete cases if practitioners are going to take it at all seriously (Alan Miller’s contribution was particularly illuminating on this point).

Unfortunately, memory dictates that I will have to stop at that point, which even I find entirely unsatisfactory given the amount of rich discussion that this brief recollection has omitted – particularly in terms of the more concrete papers (relating to investment arbitration, cultural heritage, etc; Jared Hepburn, for example, made an intriguing argument as to the interaction between the global and domestic levels in the interpretation of “fair and equitable treatment” in investment disputes). In any event, congratulations to the organisers on putting together a first-rate symposium; and I very much hope to get a chance to read the assorted presentations in more detail in the not-too-distant future. Again, if anyone present wants to add to or correct this account, please do leave a comment below!

Krisch: GAL and the Constitutional Ambition

Nico Krisch, formerly of LSE and now at the Hertie School of Governance in Berlin, and one of the co-authors of the paper that launched the entire GAL project, has a new paper up at SSRN: "Global Administrative Law and the Constitutional Ambition" (a subject that I am hoping to publish something on myself relatively soon). Here's the abstract:

The emergence of global governance has called into question many of the tools and concepts by which the traditionally dichotomous spaces of national and international politics and law were ordered, and various structuring proposals are competing to take their place. In this paper I examine two such proposals - global constitutionalism and global administrative law. Both represent distinct visions of how to approach the challenge, their key difference lying in their respective ambitions: constitutionalist visions set out to describe and develop a fully justified global order, while global administrative law is more limited in scope, focusing on particular elements of global governance and confining itself to the analysis and realisation of narrower political ideals, especially accountability. Such a limited approach raises serious problems, most prominently difficulties in separating 'administrative' from 'constitutional' issues and the risk of legitimising illegitimate institutions. But it also bears significant promise as it allows to focus on, and begin to answer, crucial questions of global governance without leaping to grand designs borrowed from dissimilar contexts and likely at odds with the fluid and diverse character of the postnational polity.

It's an extremely interesting paper for those interested in what we might mean when we talk about the emergence of GAL in a general sense, and how this might differ from the emergence of a global constitution (I have discussed one passage from it already, in an earlier post). Well worth a read.

The new EJIL:TALK! blog: GAL gets an early mention

Quick post to flag what promises to be an extremely interesting new blog for things international and legal - the European Journal of International Law's new EJIL:Talk! experiment (hat tip to Opinio Juris). They kick of with a (spirited) discussion between Ernst-Ulrich Petersmann and Rob Howse over Petersmann's latest EJIL article, entitled "Human Rights, International Economic Law and 'Constitutional Justice'". The discussion very much picks up - in both tone and content - from the 2002 discussion of an earlier article by Petersmann, again involving Howse, and also Philip Alston. Both are a fun read...

I just want to pick up on one quick point here: in his latest "rejoinder" to Howse, Petersmann notes:

Like most North American supporters of ‘global administrative law’ based on ‘constitutional nationalism’, Howse remains sceptical of European proposals that multilevel governance for the collective supply of international public goods requires multilevel constitutionalism. Yet, Hobbesian ‘principal-agent theories’ describing diplomats as the real masters of international organizations need to be challenged by ‘cosmopolitan constituencies’ (P. Lamy) and constitutional conceptions of citizens as ‘democratic owners’ of international governance institutions.

This raises the question of whether, and the extent to which, support for global administrative law is based on "constitutional nationalism", by which I take to mean the claim that the discourse of constitutionalism has no place outwith the context of the nation-state. (I am unsure whether Petersmann is claiming here that GAL itself if based on such constitutional nationalism, or only North American support for it - his formulation is a little unclear on this point).

The relation of constitutionalist discourse to global administrative law has been a major area of focus for me in the last couple of years, and a topic on which I hope to have a few things published in the near future (one early version of such a paper can be found here). In this post, however, I just want to challenge the idea that GAL is necessarily - indeed, at all - premised upon a"constitutional nationalism" of the type that Petersmann suggests.

This is an issue that I, along with Eran Shamir-Borer, have sought to address in detail of late (an early draft of our paper can be found here). In that paper, although we do style the administrative law and constitutional approaches to global governance as in many ways competing conceptions, we also stress the important ways in which they can be complementary.

Firstly, we distinguish between two different variants within the constitutionalist discourse:
1) The "extra-national" variant: these are the authors that argue that certain international bodies or regimes (almost always either the European Union or the WTO) now exhibit certain features that entitle us to refer to them as "constitutional; and
2) The "universal" variant: this group of authors (to which Petersmann himself undoubtedly belongs) see not a plurality of heterarchically arranged constitutional sites ("constitutional pluralism", to use Neil Walker's phrase), but that all of these sites are (or are becoming) themselves part of a universal heirarchy within a globally constituted polity.

(Actually, there is a third variant of "global constitutionalist" discourse: the "domestic" variant, in which global rules are seen as providing as source of domestic constitutional law. Although widespread, it's not massively relevant here.)

Next, we argue that any attempt to regulate global governance (as both the administrative and constitutional approaches do) will have to confront 3 main challenges:
1) Institutional diversity: characteristic of global governance has been the explosion of new types of actors within the global legal arena;
2) Fragmentation: these diverse actors and regimes are not - as yet, at least - all contained within one clear heirarchy of authority that is global in scope; and
3) Value pluralism: there appears to be irreducible difference between different conceptions of the "good" within the global legal order, notwithstanding the advent and proclaimed universality of human rights.

We make the following 3 points with regard to these challenges:

1) Constitutional discourse in its "extranational" variant limits itself to a tiny group of organizations and regimes - the EU, the WTO, occasionally the UN and perhaps the law of the sea. One of the main drivers of the global administrative law project is that the institutional diversity of contemporary global governance renders this a hopelessly inadequate discourse for encapsulating the activity of the vast majority of important governance actors. For every EU or WTO to whom a constitutionalist discourse can be plausibly applied, there are hundreds of ISOs, FATFs, Basel Committees, etc., in which the same discourse simply seems entirely inapplicable.

2) "Global" constitutionalism - of the type that Petersmann espouses - contains an appeal to unity that is simply not present within the contemporary global legal order. That order is, instead, fragmented, and shows no sign of becoming heirarchically arranged within a single authoritative structure, despite Petersmann's predicitions in this regard. This is not, of course, to say that such a move will not happen, or is a concpetual impossibility; far from it. But GAL has no need of the type of unity to which global constitutionalism requires; instead, it can work with the fragmented system "as is", rerpesenting each site at which public power is exercised as a battleground for increasing public control and accountability.

The combined effect of these two arguments is, firstly, that global administrative law can - indeed, must - exist alongside the limited constitutional discourses of the EU, WTO and others, in order to help regulate the activities of all of the other bodies that are playing important roles in the exercise of public power beyond the nation-state; and secondly, that GAL will precede global constitutionalism within the global legal order, and, importantly, will continue to exist even if we never move towards a single constitutional order at the global level. If we do move towards such an order, however, it seems clear that, given the depth and complexity of global administration, GAL will continue to be necessary as a complement to any eventual global constitutional law, fulfilling a role much more closely analogous to that of administrative law domestically.

3) The third issue, that of value pluralism, raises in many regards both the most important and the most difficult questions of the three. Almost all global constitutionalists rely - and Petersmann is no different in this regard, even if the content of what he proposes is more radical than others - of the existence of genuinely universal values. This, however, simply seems to be empirically untenable in the contemporary global order. While neo-Kantians such as Petersmann would insist that any disagreement from a fundamental (Western) orthodoxy is ultimately a failure of reason rather than an expression of legitimate and radical pluralism, many if not most internationalists would baulk at such an affirmation, fearing the specter of hegemony, imperialism and domination. Global administrative law, although emphatically not value neutral, tackles this issue in a different way, and one that is better calibrated to respecting legitimate and radical pluralism: through focusing, in large part at least, on a commitment, not to outcome but to voice, to procedural rather than substantive imperatives that seek to ensure that all positions are taken into consideration and none are disregarded without pre-empting the results of administrative processes.

Of course, these types of procedural protections are themselves far from perfect, and can lead in many cases to façade legitimation of actual domination (see here for B.S. Chimni's argument to this effect). This is a consideration of vital importance, and must be kept absolutely central in all efforts to make the extremely hard yet unavoidable move from the abstract potential of GAL to a normatively justifiable pratice. This problem, however, remains preferrable, in my view at least, to simply presuming then imposing a putative global consensus that finds precious little supporters - and a great many detractors - in actual practice.