Feeds n' emails...

After a period of inevitable incompetence on my part, the email subscription function to the blog seems to be working. Those of you reading this in an email will, of course, know this already. If anyone has tried to sign up and is still having problems, drop me a line at the email address at the top left of the blog, and I'll try to sort it out.

In another flash of incompetence, I changed the feed address for the site, so any subscribers will have to resubscribe. The address is now as follows:

http://feeds.feedburner.com/http/globaladminlaw

Please do resubscribe - I promise I won't change it again. Not on purpose, anyway...

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.

The UN Ethics Office and administrative law

To get things rolling in 2009, a quick link to an interesting article in the Wall Street Journal on recent UN efforts to curb internal misconduct and corruption, including allegations of retaliation against legitimate whistleblowers. The article is generally negative in tone (a subsequent letter to the editor provides a brief corrective). It discusses, amongst other things, the relatively recent establishment of a New-York based UN Ethics Office, led by Robert Benson:

Canadian attorney Robert Benson says that when he arrived at the U.N. in May 2007 he assumed that his New York-based Ethics Office had jurisdiction over the entire organization. But he soon learned it only oversaw the U.N. Secretariat - the U.N.'s main administrative body. Assorted agencies and funds opted to set up their own ethics bureaus.

"I wasn't a student of the United Nations," said Mr. Benson in an interview. "Would it be better to have one office? Absolutely."

The UN says it has no immediate plans to consolidate the various ethics bureaus, but it is finalizing one set of ethical standards to be followed by all its agencies...

The UN... set up Mr. Benson's office to foster "a culture of ethics, transparency and accountability."

The link between administrative law and professional ethics is made absolutely clear in the final sentence. One key question that arises here, however, is the extent to which the unified "ethical standards" that the Ethics Office is elaborating are to have legal force. While it is unlikely that they will themselves be formally binding (as the use of "standards" terminology suggests), it does seem likely that they will be intended to aid interpretation of terms such as "misconduct" in the course of legal proceedings (before, for example, the new UN Disputes and/or Appeals Tribunals). As with so many international standards, then, it would be entirely misleading to assume that because they are formally non-binding they are thus deprived of all legal force or significance.

The Ethics Office thus seems to be one of those hybrid bodies that are increasingly common within global administration: not only is it to function as an administrative body in its own right (through, e.g., the development of standards and other administrative activities) but also as an accountability mechanism, through its general oversight role over the actions of UN officials, and of those of the disparate Ethics Committees. The Terms of Reference of the Ethics Office make this dual function clear:

3.1 The main responsibilities of the Ethics Office are as follows:

1. Administering the Organization’s financial disclosure programme;
2. Undertaking the responsibilities assigned to it under the Organization’s policy for the protection of staff against retaliation for reporting misconduct and for cooperating with duly authorized audits or investigations;
3. Providing confidential advice and guidance to staff on ethical issues (e.g., conflict of interest), including administering an ethics helpline;
4. Developing standards, training and education on ethics issues, in coordination with the Office of Human Resources Management and other offices as appropriate, including ensuring annual ethics training for all staff;
5. Such other functions as the Secretary-General considers appropriate for the Office.

It will be interesting to watch the development of the Ethics Office (by following, for example, the updates on the excellent Center for UN Reform Education website), and perhaps in particular the content of its unified ethical standards, the extent to which these contain administrative-law type considerations relating to transparency and accountability, and whether and how these standards are relied upon in proceedings before the UNDT and UNAT in the coming months and years. And it is not impossible that such standards could even begin to permeate those organizations outwith the UN system, in particular if they were to be picked up and relied upon by the ILOAT. In the meantime, the Ethics Office's "Whistleblower Protection Policy", in effect since January 2006 can be found here; the financial disclosure statement referred to above is here; and here is the Secretary General's report on the first 6 months of the Office's activities.

** Update ** Pursuant to a comment below by Carlos Ivan Fuentes, pointing out the extent to which the recent changes in the UN system follow the recommendations of the “Report of the Redesign Panel on the United Nations system of administration of justice”, here is a link to the Report itself, and here, courtesy again of the Center for UN Reform Education website, is a summary.

Happy New Year!

All the best to all readers of the GAL blog for 2009!

As far as resolutions go, I have resolved to add new content to the blog (at least) 3 times per week in 2009 - things got a little slow on here towards the end of last year. We'll see how this one goes (hopefully better than last January's "3 times per week at the gym" equivalent - but the less said about that the better...)

Another resolution is to respond to any and all comments that are left, hopefully in order to stimulate discussion here on some of the issues raised in the posts. Unfortunately, I missed a couple of chances to do so last year. So please feel free to leave make any constructive observations or criticisms that spring to mind!

ICANN, accountability and capture

The folks over at Intellectual Property Watch have a couple of extremely interesting (if not very recent) pieces detailing recent discussions and ongoing controversies regarding participation, accountability mechanisms and the role for - and risk of capture by - governments in the Internet Corporation for Assigned Names and Numbers (ICANN). Key to these seem to be the role of the US Government in overseeing the formally private regulatory body. ICANN itself seems keen to distance itself from this oversight, while many industry actors, on the other hand, see it as essential to providing effective accountability for ICANN decisions, and to staving off the risk of capture by other foreign governments, and thus losing the benefits of genuinely private regulation.

In the meantime, to add to this complex set of tensions, some states and other public actors - such as, for example, the UN's International Telecommunications Union - have been highly critical of the current role afforded to governments other than the US through the ICANN's Government Advisory Committee, claiming that its contribution is merely "cosmetic". Which, of course, for the most part suits both industry and the US Government down to the ground.

Few cases exemplify better the "added value" that the shift to understanding global regulation as global administration can bring; or the complexities and tensions of the putatively emerging "global administrative space". We have a formally private body clearly performing a public governance function; its activities are the site of ongoing struggles over the best and most effective way of allocating participatory rights and accountability mechanisms between a wide range of different public and private actors; and its administrative activity - the regulation of the internet - is both evidently a necessarily global endeavour (which simply cannot be accomplished by individual states alone) and one that combines the logics of national security, market efficiency and morality (privacy, fairness, obscenity, etc.) in almost equal measure.

Much more research is needed on this particular topic: the IPWatch articles are, however, a good place to start, as are the chapters by Lorenzo Casini and Bruno Carotti (2.1, 5.4 and 5.5) in the GAL Casebook.

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.

ISO standardizes pasta cooking times

It has been a bit slow on here of late; apologies for that. To kick things off again, some good news for those dismayed by setback to the transnational standardization process represented by the sad news that the EU was to repeal its laws banning the sale overly-bendy bananas (and some 25 other types of fruit and vegetables inflicted with some aesthetic deformity). To reassure us that the global standardization community remains as productive and worthwhile as ever, the International Organization for Standardization has proudly presented ISO 7304-2:2008:

A new ISO standard offers the ingredient of objectivity to the delicate debate on the cooking of pasta which is so dependent on subjective taste: what is nice and firm for one is undercooked for the other, too this or too that…

Now, ISO 7304-2:2008... describes a test method for laboratories to determine a minimum of cooking time for pasta.

This International Standard specifies a method for assessing, by sensory analysis, the quality of cooked alimentary pasta in the form of long, solid strands (e.g. spaghetti) or short, hollow strands (e.g. macaroni) produced from durum wheat semolina, expressed in terms of the starch release, liveliness and firmness characteristics (i.e. texture) of the pasta. It does not apply to pasta in the form of small strands usually consumed in soups.

Gone are the days, then, of throwing bits of linguine at the wall; sighs of relief all round, I should think...

Shame about the soup, though.