Divergent legal conceptions of the state: Implications for global administrative law

Law and Contemporary Problems

Volumn 68, Issue 3-4, 2005, Pages 167-186

  McLean, Janet ^a  

^a UNIVERSITY OF AUCKLAND   (New Zealand)

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EID: 30944453287     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (84)

1. This is reflected in the focus of David Dyzenhaus, Emerging from Self-Incurred Immaturity (Institute for International Law and Justice, Global Administrative Law Series, Working Paper 2005/1).
2. There are, of course, many exceptions. For example, consultation processes are commonly imposed by legislation in New Zealand; environmental and planning regimes confer broad notification and participation rights. See, e.g., Resource Management Act, 1991 R S vol 32 ss93-95 (N.Z.).
3. Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int'l L.J. 1, 1-7 (1999);
4. Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966). The number of states has been vastly expanded in the post-colonial era.
5. Executive government was not territorially defined - at least as far as the law was concerned. According to colonial law, the sovereign governed his subjects outside his territory and could, by charter, confer on them exclusive rights to trade or to settle outside territory that were enforceable at English law (The Great Case of Monopolies 36 Car. II 1684). It still was not clear as late as 1698 whether the Crown needed Parliament's agreement to confer such charters. For example, statute 9 & 10 Gul. III c. 44, created a new East India Company. In form, the legislation did not directly threaten the Crown's prerogative. It did not directly grant an exclusive right to trade on the East India Company but instead created the corporation to whom the King was to grant Charters. This allowed the King's prerogative rights to be retained at the same time as recognizing a role for Parliament. See Sir W. W. Hunter, A History of British India 317-20 (1900). The Crown was regarded in law as a single and indivisible entity throughout the Empire. The Crown, represented by a single person and single office, was sovereign in relation to the whole of the British Empire (notwithstanding the differing democratic and constitutional status of the various territories). Political practice was quite another matter. Executive power was jealously guarded as a measure of political independence in the colonies long before domestic parliaments achieved fun law-making powers.
6. Phillips v. Eyre, 6 Eng. Rep. 1, 18 (Q.B. 1870);
7. Campbell v. Hall (1774), 1 Cowp. 204, [1558-1774] All ER Rep 251, 98 ER 1045.
8. In Campbell, 1 Cowp. 204, 98 Eng. Rep. 1045, Lord Mansfield concluded that a mere proclamation could effect a binding promise. Upon winning Grenada from the French, for example, the English articles of capitulation promised the inhabitants that they should pay no higher duties than those imposed by the French King until the new King's pleasure be known. By a subsequent proclamation and letters patent the Crown stated that an assembly would be the institution to make laws for the territory and appointed a Governor to summon such assembly. Before the Governor had been dispatched from England, the King issued a further proclamation increasing the duty. Lord Mansfield held that the latter proclamation was void to the extent that it contradicted the earlier undertakings. They had binding effect within the territory.
9. Mayor of Lyons v. East India Co (1836) 1 Moo PC 175, 287.
10. See, e.g., the New Zealand case of Wi Parata v. Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, 78 in which Judge Prendergast suggested that the Treaty of Waitangi between Maori and the British Crown was "a simple nullity." Contrast, R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All ER 118, 124 per Judge Denning citing Judge Laskin in Calder v. Attorney-General of British Columbia (1973) 34 DLR (3d) 145 at 203 suggesting that the promises by the King to the Native American peoples should be treated as "analogous to the status of the Magna Carta" and "as a fundamental document upon which any just determination of original rights rests."
11. See, e.g., Te Heu Heu Tukino v. Attorney-General [1999] 1 NZLR 98, deciding that the Treaty is binding on the Crown but not on state-owned enterprises.
12. Some Maori also argue that as a collective entity they should be viewed as an international legal person who continues to treat with the Crown. This conception of the Crown is reflected in the parliamentary practice of enacting settlements between government and particular tribes without amendment. See, e.g., Ngai Tahu Claims Settlement enacted as Ngai Tahu Claims Settlement Act 1998 No. 97 (N.Z.).
13. See M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2001);
14. Anghie supra note 3, at 1-7.
15. See, e.g., R v. Home Secretary ex parte Brind [1991] 2 WLR 588, 591 H per Lord Bridge.
16. 2002 no. 49 (N.Z.).
17. Convention for the protection of Industrial Property signed at Paris on 20 March 1883 as revised or amended from time to time and Agreement on Trade related Aspects of Intellectual Property rights set out in Annex 1C to the WTO Agreement, as revised or amended from time to time. See s 5, 2002 no. 49 (N.Z.).
18. 2002 no. 40 (N.Z.). The English text of the Protocol to the U.N. Framework Convention on Climate Change done at Kyoto on 11 December 1997 appears in Schedule 2.
19. Section 51, 2002 no. 40 (N.Z.).
20. See M. Shapiro & A. Stone Sweet, On Law, Politics and Judicialization 266-67 (2002) (explaining why member states never overturned the ECJ's interpretation of treaties).
21. Of course, administrative law also serves other instrumental and normative purposes, some of which will be discussed in a later section.
22. Tavita v. Minister of Immigration [1993] 2 N.Z.L.R. 257;
23. Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273 (Austl.);
24. and Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817.
25. On the latter see the book of a conference devoted to consideration of the case: The Unity of Public Law (David Dyzenhaus ed., 2004).
26. David Dyzenhaus, Murray Hunt & Michael Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation, 1 Oxford U. Commonwealth L.J. 5 (2001).
27. Teoh (1995) 183 C.L.R. 273 (Austl.).
28. Tavita [1994] 2 N.Z.L.R. 257.
29. Baker [1999] 2 S.C.R. 817.
30. Claudia Geiringer, Tavita and all That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law, 21 New Zealand U. L. Rev. 66 (2004). The interaction between the wording of the convention in the Teoh, Tavita, and Baker cases and the context of the statutory discretion (a dispensing power) makes it difficult to suggest that the Convention could act as a constraint on the scope of the power here, though one can think of other cases in which the wording would not be so constraining. Indeed, the UNCRC indicates that the interests of the child are a matter to be weighed as "a [primary] consideration" (Article 3).
31. See, e.g., Soren J. Schonberg, Legitimate Expectations in Administrative Law (2000);
32. Robert Thomas, Legitimate Expectations and Proportionality in Administration Law (2000).
33. Mayo Moran, Authority, Influence and Persuasion: Baker, Charter Values and the Puzzle of Method, in The Unity of Public Law 389, 404 (David Dyzenhaus ed., 2004).
34. Id. at 402,
35. quoting Minister of State for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273, 291 (Austl.) per Mason CJ and Deane J.
36. Tavita v. Minister of Immigration [1994] 2 N.Z.L.R. 257, 266;
37. Moran, supra note 26 at 402.
38. Refugee Council v. Attorney-General [2003] 2 N.Z.L.R. 577, 650 per Glazebrook J.
39. Justice Glazebrook treated the UNHCR guidelines as having the same status as judicial decisions from other jurisdictions. Refugee Council, 650.
40. Treasa Dunworth, Public International Law, New Zealand L. Rev. 411, 415-18 (2004).
41. [2003] 2 N.Z.L.R. 577, 612, per McGrath J.
42. The Committee currently has 66 members including India, Pakistan, Lebanon, and Thailand who are not parties to the Convention: http://www.unhcr.ch/cgi-bin/texis/vtx/excom. (My thanks to Treasa Dunworth for assistance on this point).
43. The Unity of Public Law 1 (David Dyzenhaus ed., 2004).
44. This is not a controversy triggered exclusively by the question of what role international treaty law should play. The changing internal organization of government, privatization, outsourcing, and new methods of regulation mean that this question matters in other contexts as well - in order to apply administrative law doctrines to entities that are not based on statute but are nevertheless sufficiently "public." See, e.g., R v. Panel of TakeOvers and Mergers, ex parte Datafin plc [1987] 1 QB 815, 848.
45. Richard Stewart's transmission belt theory still retains its adherents in the British Commonwealth. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1671-76 (1975).
46. Lord Steyn describes the "principle of legality" in these terms: "In the absence of contrary indications it must be presumed that Parliament entrusted the wide power to make decisions [to the Home Secretary] on the supposition that the Home Secretary would not act contrary to such a fundamental principle of our law." R v. Secretary of State for the Home Department, ex parte Pierson [1998] 1 AC 539, 590.
47. For Lord Cooke of Thorndon the "common law by itself is being recognised as a sufficient source of the fundamental right": R v. Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, ¶ 30-31.
48. Audrey Macklin, The State of Law's Borders and the Law of State's Borders, in The Unity of Public Law 173, 175 (David Dyzenhaus ed., 2004) (describing the process from a Canadian perspective). We should notice, however, that the Canadian Charter does not protect the rights of children but the Supreme Court nevertheless found a way to give effect to children's interests in Baker.
49. Articles 2, 14, and 18 ICCPR and s15 and s2 CCRF respectively.
50. E.g., Adler v. Ontario [1996] 3 S.C.R. 609;
51. Public School Boards Association v. Alberta (A-G) [2000] 2 SCC 410;
52. Waldman v. Canada, 7 IHRR 368 (2000);
53. Re: An Act to Amend the Education Act [1987] 1 SCR 1148 [Bill 30 Act] (Can.).
54. Re: An Act to Amend the Education Act [1987] 1 S.C.R. 1148 (Can.).
55. Id. at 1198.
56. Id. at 1197-98.
57. Id. at 1206.
58. Though it is, latent in the reasoning, some calculation of the risk of Quebec succession may have been operating.
59. See Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting),
60. cited in Martin Loughlin, The Idea of Public Law 91 (2003).
61. Waldman v. Ontario Human Rights Committee 67th Session 1999. CCPR/C/67/D/ 694/1996. Notice that subsequently in Ontario English Catholic Teachers' Ass'n v. Ontario [2001] 1 S.C.R. 470, 494, 510, Justice Iacobucci described Section 93 as animated by principles of "religious freedom and equitable treatment" and as guaranteeing similar rights to those protected by Section 23 of the Charter.
62. Id. at ¶ 8.3.
63. Id. at ¶ 10.4.
64. Case of Refah Partisi (The Welfare Party) and Others v. Turkey, European Court of Human Rights Grand Chamber, hearing 19 June 2002, Application numbers 41340/98, 41342/98, and 41344/98.
65. Id. at para 86.
66. Id. at para 89.
67. Id. at para 91.
68. Id. at para 96.
69. Id. at para 99.
70. Refah Partisi (The Welfare Party) and Others v. Turkey, Third Section Judgment of 31 July 2001, at para 62.
71. Of course there are more nuanced versions within the international law tradition. See, e.g., M Koskenniemi, The Gentle Civilizer of Nations: The rise and Fall of International Law 205-06 (2001).
72. Refah Partisi (The Welfare Party) and Others v. Turkey, Third Section Judgment of 31 July 2001, at para 62.
73. Another example of when the difference in domestic and international conceptions of the state matters is when the fragmented parts of the state are unified for the purpose of bringing a human rights claim but a government entity might itself wish to bring an administrative law challenge against another part of the state on the basis that it had overreached its powers.
74. Neil Walker, Postnational Constitutionalism and the Problem of Translation, in European Constitutionalism Beyond the State 27-54 (J. H. H. Weiler & Marlene Wind eds., 2003).
75. This is a question that David Dyzenhaus addresses in The Rule of (Administrative) Law in International Law (Institute for International Law and Justice, Working Paper 2005/1, Global Administrative Law Series).
76. In terms of Kingsbury, Krisch, and Stewart's ideal types it is an example of distributed administration and may also indirectly give rise to collective action by government officials. See Benedict Kingsbury, Nico Krisch, & Richard B. Stewart, The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15 (Summer/Autumn 2005).
77. Kingsbury et al., supra note 63.
78. See, e.g., the divestment of formerly public owned and operated utilities in the U.K., Australia, Canada, and New Zealand.
79. See also Janet McLean, Government to State: Globalization, Regulation, and Governments as Legal Persons 10 Ind. J. Global Legal Stud. 173, 186-88 (2003).
80. Mercury Energy v. Electricity Corporation of New Zealand [1994] 1 WLR 521 [PC]
81. reversing Auckland Electric Power Board v. Electricity Corporation of New Zealand [1994] 1 N.Z.L.R. 551, 559 [CA].
82. [1987] 1 QB 815.
83. Id. at 842 D.
84. Eyal Benvenisti, The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions, 68 L. & Contemp. Probs. 319 (Summer/Autumn 2005).