The concept of 'law' in global administrative law

European Journal of International Law

Volumn 20, Issue 1, 2009, Pages 23-57

  Kingsbury, Benedict ^a  

^a NONE

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EID: 65149092512     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chp005     Document Type: Article

References (112)

1. Vogel, 'Administrative Law: International Aspects,' in R. Bernhardt (ed.), Encyclopedia of Public International Law (1992) 22, at 23.
2. One of the clearest statements by Lorenz von Stein of his own approach is von Stein, 'Einige Bemerkungen über das internationale Verwaltungsrecht', 6 Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reich (1882) 395.
3. On work on international administration in this period and its legal theory, see M. Vec, Recht und Normierung in der Industriellen Revolution: Neue Strukturen der Normsetzung in Völkerrecht, staatlicher Gesetzgebung und gesellschaftlicher Selbstnormierung (2006).
4. For cautions about lack of a clear legal structure and about over-extension in GAL approaches see, e.g., Schmidt-Aßmann, 'The Internationalization of Administrative Relations as a Challenge for Administrative Law Scholarship', 9 German Law Journal (2008) 2061
5. and von Bogdandy, 'General Principles of International Public Authority: Sketching a Research Field', 9 German Law Journal (2008) 1909, esp. at 1918-1921. Bogdandy also criticizes GAL approaches for embracing a proto-federalism which is unrealizable outside special situations such as the EU, and for seeking to distinguish administrative activities from other activities of international public authorities whereas such authorities tend not to be characterized by such a differentiation in practice.
6. This methodology is articulated, e.g., in Cassese, 'Administrative Law without the State: The Challenge of Global Regulation', 37 NYUJILP (2005) 663
7. and Stewart, 'The Global Regulatory Challenge of U.S. Administrative Law', 37 NYUJILP (2005) 695.
8. Different jurisprudential approaches underlying divergent orientations to these questions are surveyed in Michaels and Jansen, 'Private Law Beyond the State?: Europeanization, Globalization, Privatization', 54 AJCL (2006) 843.
9. See also the contributions to C. Möllers, A. Voßkuhle and C. Walter (eds), Internationales Verwaltungsrecht (2007), including Ladeur, 'Die Internationalisierung des Verwaltungsrechts: Versuch einer Synthese', in ibid., 375,
10. and Ruffert, 'Perspektiven des Internationalen Verwaltungsrechts', in ibid., 395.
11. Notable studies to pursue such an undertaking include Yamamoto, 'The Positive Basis of International Administrative Law' (English summary), 76:5 Kokusaiho Gaiko Zasshi (1969), at 152 (at 680 of continuous volume pagination), in which the stated objective is 'to clarify the autonomous and positive basis of international administrative law'.
12. Kingsbury et al., 'Foreword: Global Governance as Administration', 68:3-4 Law & Contemp Probs (2005) 1.
13. Kingsbury, 'Weighing Global Regulatory Decisions in National Courts', Acta Juridica (2009).
14. Kingsbury, Krisch and Stewart, 'The Emergence of Global Administrative Law', 68:3-4 Law & Contemp Probs (2005) 15.
15. See Krisch and Kingsbury, 'Introduction: Global Governance and Global Administrative Law in the International Legal Order', 17 EJIL (2006) 1, at 10.
16. An argument for this view is presented in Kingsbury, 'Legal Positivism as Normative Politics', 13 EJIL (2002) 401.
17. The last few sentences are much influenced by ideas in Liam Murphy's work, including 'The Political Question of the Concept of Law', in J. Coleman (ed.), Hart's Postscript (2001), 371
18. Murphy, 'Concepts of Law', 30 Australian Journal of Legal Philosophy (2005) 1
19. and Murphy, 'Better to See Law this Way', 83 NYU Law Review (2008) 1088.
20. On political issues relating to GAL, see Harlow, 'Global Administrative Law: The Quest for Principles and Values', 17 EJIL (2006) 187.
21. Malcolm, 'Hobbes's Theory of International Relations', in N. Malcolm, Aspects of Hobbes (2002), at 432-456.
22. Dyzenhaus, 'Hobbes's Constitutional Theory', in I. Shapiro (ed.), Leviathan (forthcoming 2009).
23. See also Gauthier, 'Hobbes: The Laws of Nature', 82 Pacific Philosophical Quarterly (2002) 258.
24. Leviathan, ch. 26, at 189 (R. Tuck (ed.), 1996.) Hobbes asserted that 'auctoritas, non veritas, facit legem', Joseph Raz's influential view that the concept of law cannot and should not be based on any political theory, but must instead be defended by reference to other concepts, culminates in a concept of law resting on authority. In many global governance situations legal authority seems to exist without an author, and indeed Joseph Raz's account of authority does not appear strictly to require an author. This raises a question calling for further scholarly exploration, as to the validity of the assumption in much legal theory that an author is a necessary predicate for legal authority.
25. H.L.A. Hart, The Concept of Law (1961). The approach taken to international law in chapter 10 of The Concept of Law does not seem to provide the basis for a concept of international law now. It was perhaps tenable to say in 1961 that a set of rules, not unified by any rule of recognition and hence not a 'system' in his sense, might nevertheless be a bounded set, given that the rules he addressed were associated with perhaps 100 states and a small number of signifi cant inter-state organizations. The dominant line among international lawyers now is to update chapter 10 by proposing a rule of recognition and developing the institutional capacities for adjudication and change, so as to render international law a unified system, rather than the mere set of rules Hart concluded it was.
26. See also Capps, 'Methodological Positivism in Law and International Law', in K. E. Himma (ed.), Law, Morality, and Legal Positivism (2004), 9
27. and Ulrich Fastenrath, Lücken im Völkerrecht (1991).
28. Kingsbury, 'Legal Positivism as Normative Politics', 13 EJIL (2002) 401.
29. A positivist concept of law framed in Razian rather than Hartian terms could also be defended.
30. Hart also emphasized the separability of law from morals, and the importance of efficacy of the legal system as a whole; both of these issues are of considerable importance to the concept of law in GAL, but they will not be further considered in this paper.
31. Kingsbury, 'International Law as Inter-Public Law', in H. Richardson and M. Williams (eds), Moral Universalism and Pluralism (2009), 167,
32. and the commentaries on that paper by Scheuerman, '"The Center Cannot Hold": A Response to Benedict Kingsbury' (ibid., 205)
33. Baynes, 'Cosmopolitanism and International Law' (ibid., 219)
34. and Sreenivasan, 'Democracy and International Law: A Peril from the "Public"' (ibid., 240).
35. See also von Bogdandy, Dann, and Goldmann, 'Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities', 9 German Law Journal (2008) 1375.
36. J. Waldron, 'Can There Be a Democratic Jurisprudence?', November 2008 version, NYU PILT Research Paper 08-35 (SSRN).
37. This claim seems to sit uneasily with the role of many national democratic legislatures in adjusting entirely particular and private matters by legislation - the vast number of private bills in the US Congress and state legislatures, for instance. But these private bills are classified as private, in the US Congressional Record for example, precisely to distinguish them from public laws, which do indeed present themselves as oriented in the direction of the public good.
38. Social Contract (trans. Cole), Bk II, ch. 6.
39. Yamamoto, supra note 5.
40. A quite different set of principles is developed for a similar purpose in von Bogdandy, supra note 2. He sees 'a future for general principles of international public authority, less as a source of law, but as condensed comparative legal arguments' (at 1938).
41. See generally D. Dyzenhaus (ed.), The Unity of Public Law (2003),
42. esp. Taggart, 'The Tub of Public Law', in ibid., 455.
43. An illustration is Fallon, 'The Rule of Law as a Concept in Constitutional Discourse', 97 Columbia Law Review (1997) 1.
44. Dworkin, 'Political Judges and the Rule of Law', in R. Dworkin, A Matter of Principle (1985) 12.
45. Waldron, 'The Rule of Law as a Theater of Debate', in J. Burley (ed.), Dworkin and His Critics (2004), 319, at 323.
46. See Dyzenhaus, 'Aspiring to the Rule of Law', in T. Campbell, J. Goldsworthy and A. Stone (eds), Protecting Human Rights: Instruments and Institutions (2003).
47. Dyzenhaus, 'The Concept of (Global) Administrative Law', Acta Juridica (2009).
48. On the irreducible plurality of approaches to these problems, see Walker, 'Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders', 6 ICON (2008) 373.
49. See, e.g., Cohen and Sabel, 'Global Democracy?', 37 NYUJILP (2005) 763.
50. Such a critique of the EC/EU is the subject of recent work by J.H.H. Weiler.
51. WTO Appellate Body, 12 Oct. 1998, (1999) 38 ILM 121.
52. This argument has been explored by Jeremy Waldron in a draft paper, 'Are Sovereigns Entitled to the Benefit of the International Rule of Law?' (October 2008).
53. L. Fuller, The Morality of Law (rev. ed., 1969).
54. This summary distillation is quoted from D. Dyzenhaus, "The Concept of (Global) Administrative Law', IILJ Working Paper 2008/7, www.iilj.org.
55. Dyzenhaus, 'The Concept of (Global) Administrative Law', supra note 30.
56. Thus, Dyzenhaus is able to argue in this and other works that rule by law depends on there being rule of law.
57. Whereas individuals in it, such as José Bustani when he was dismissed arbitrarily as Director-General of the Organization for the Prohibition of Chemical Weapons in 2002, have personal rights to protection under basic ROL principles; rights which in his case were to some extent vindicated by the ILO Administrative Tribunal, which covers OPCW staff. In re Bustani, ILO Administrative Tribunal Judgment No. 2232, 16 July 2003, awarding damages (he had not sought reinstatement). For commentary see Klabbers, 'The Bustani Case Before the ILOAT: Constitutionalism in Disguise?', 53 ICLQ (2004) 455
58. Dunworth, 'Towards a Culture of Legality in International Organizations: The Case of the OPCW', 5 International Organizations Law Review (2008) 119.
59. T-228/02, 16 Dec 2006.
60. A pplication for Review of Judgment No. 158 of the United Nations Administrative Tribunal (1972-1973), Advisory Opinion of 12 July 1973. Its jurisdiction in relation to UNAT was eventually terminated (later, in 2009, UNAT became the United Nations Appeal Tribunal).
61. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. USA), ICJ Reports (1994) 6.
62. See also Brownlie, 'The Decisions of the Political Organs of the United Nations and the Rule of Law', in R. St. J. Macdonald (ed.), Essays in Honour of Wang Tieya (1994), 95.
63. Bothe, 'The WHO Request', in L. Boisson de Chazournes and P. Sands (eds), International Law, the International Court of Justice, and Nuclear Weapons (1999) 103.
64. Case Concerning Arbitral Award of July 31, 1989, 1991 ICJ 53. See Dissenting Opinion of Judge Weeramantry, at 164-165: 'The necessity for reasons in an arbitral award is of course obvious as it removes any appearance of arbitrariness in the Tribunal's decision. It is a long-established and well-respected rule... There have been occasional instances of major international arbitrations in which no reasons have been given for the award, as for instance in the Portendick arbitration of 1843 between France and Great Britain in which the arbitrator was the King of Prussia. However, such award without reasons immediately attracted criticism from learned publicists even at that early stage in the evolution of international arbitral law. The Portendick arbitration was criticized by Fauchille, and in 1897 when President Cleveland failed to give reasons for his decision in the Cerruti arbitration between Colombia and Italy, this was criticized by Darras.' (Footnotes omitted.)
65. Behrami and Behrami v. France, ECHR (Grand Chamber). Application Number 71412/01, (2007) 45 EHRR SE10.
66. Conseil d'Etat, 9 June 1999, No. 198344, Mme Hamssaoui.
67. Conseil d'Etat, 9 June 1999, No. 190384, M et Mme Forabosco.
68. Communication 1454/2006, 11 Sept. 2007, at para 7.2.
69. Communication 1015/2001, 20 July 2004.
70. Lederbauer, para, 8.1.
71. No. 112/1981, 8 Apr. 1986.
72. Concurring Op. Graefrath, Pocar and Tomuschat, in YL, para. 3.
73. Indiv Op. Wedgwood, in Lederbauer, paras 4.1-4.10.
74. No. 28541/95, 8 Dec 1999.
75. Article 6 of the European Convention on Human Rights in its French text closely tracks the French text of the second sentence of Article 14 of the ICCPR - the rights apply in 'contestations sur ses droit set obligations de caractère civil'. The English text, however, retains the word 'civil' which was dropped during the drafting process of the English text of the ICCPR: 'In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reas, able time by an independent and impartial tribunal established by law.'
76. For an extensive discussion reviewing numerous arbitral awards, see B. Kingsbury and S. Schill, 'Investor-State Arbitration, Fair and Equitable Treatment, Proportionality, and the Emerging Administrative Law of Global Governance' (ICCA, 2009).
77. Pope & Talbott Inc v Canada, NAFTA Arbitral Award on the Merits of Phase 2, 10 April 2001, www.naftaclaims.com/disputes_canada_pope.htm
78. NAFTA Free Trade Commission Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001: Pope & Talbott v Canada, NAFTA Arbitral Award in Respect of Damages, 31 May 2002, www.naftaclaims.com/ disputes_canada_pope.htm.
79. J. Ferejohn, 'Accountability in a Global Context' (International Law and justice Working Paper IILJ 2007/5, Global Administrative Law Series. Institute for International Law and Justice, New York University School of Law, 2007) www.iilj.org.
80. Djibouti v. France, ICJ, 2008, para 147.
81. Ibid., at para 152.
82. Charnovitz, 'The Emergence of Democratic Participation in Global Governance (Paris, 1919)', 10 Indiana Journal of Glocal Legal Studies (2003). 45
83. Charnovitz, 'Two Centuries of Participation: NGOs and International Governance', 18 Michigan Journal of International Law (1997) 183.
84. M. Dowdle (ed.). Public Accountability: Designs, Dilemmas and Experiences (2006).
85. Elster, 'Deliberation and Con stitution-Making', in J. Elster (ed.), Deliberative Democracy (1998) 97.
86. R. Goodin, Motivating Political Morality (1992).
87. Goodman. 'Humanitarian Intervention and Pretexts for War', 100 AJIL (2006) 107.
88. See generally Goodman and Jinks, 'Incomplete Internalization and Compliance with Human Rights Law', 19 EJIL (2008) 725.
89. Société Française pour le Droit International, Colloque de Genève, La pratique et le droit international (2004).
90. In 2005 the Appellate Body for the first time held such a session in public, with the agreement of the disputing parties, and it repeated the experiment in 2008. Many other international rule-making and decision-making bodies try to find a way of both being jurisgenerative and not too constrained by the public, by avoiding publicity for their documents and proceedings while also not keeping them formally secret - they want to be part of international law, but they fear that their good work as technocratic experts will be slowed down by NGO agitators or self-serving industrialists.
91. I. Kant, Perpetual Peace (1795), Appendix, in H. Reiss (ed.), Kant's Political Writings (1991), 125 and 126. The phrase 'transcendental principle of the publicity of public law' is used in other translations but not Reiss's.
92. Gosseries, 'Publicity', in Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/publicity (first published 12 Jan. 2005)
93. As Kant points out, the person who has decisive supremacy has no need to conceal maxims.
94. Kant, supra note 69
95. Appendix, in Reiss, supra note 69, at 126.
96. Luban, 'The Publicity Principle', in R. Goodin (ed.), The Theory of Institutional Design (1996) 154.
97. Leviathan, supra note 14. at 197.
98. Alexander Somek, 'Kelsen Lives', 18 EJIL (2007), 409.
99. Waldron, 'Can There Be a Democratic Jurisprudence?', supra note 20.
100. Dicey, 'Droit administratif in Modern French Law', 18 LQR 303 (1901)
101. A.V. Dicey, An Introduction to the Study of the Law of the Constitution (8th edn., 1915), especially chapters 4 and 12.
102. See J.W.F. Allison, A Continental Distinction in the Common Law (1996), at 18-22 and 152 et seq., on Dicey and subsequent English debates on the role of the general courts in a rule of law system, and on the need to preserve their independence and the separation of powers, in tension with the need for much more specialist expertise than the general courts have to both regulate and sensibly facilitate good public administration.
103. Dicey's denunciation of administrative law was really focused only on 'the principles which governed disputes between the State and its subjects as determined by courts other than the regular courts applying the civil and criminal law (contentieux administratif)' - E.C.S. Wade, 'Preface', in A.V. Dicey, Law of the Constitution (9th edn., 1950 printing), xvi-xvii.
104. Jennings, 'International Lawyers and the Progressive Development of International Law', in J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krysztof Skubiszewski (1996) 413, at 422.
105. Teubner, 'Global Private Regimes: Neo-spontaneous Law and Dual Constitution of Autonomous Sectors?', in K.-H. Ladeur (ed.), Public Governance in the Age of Globalization (2004). 71
106. G. Teubner (ed.), Global Law Without a State (1997).
107. One response has been to revive a sources-based definition of private law, and of public law, then to call, for a dialectical relationship between them. See, e.g., in Moellers, 'Transnational Governance without a Public Law?', in C. Joergs, I.-J. Sand and G. Teubner (eds), Transnational Governance and Constitutionalism (2004) 329, at 337: 'The discussion on transnational constitutionalism can be reconstructed by a distinction between two forms of laws. A private law framework defines law as the result of spontaneous co-ordination efforts. A public law framework defines law as the result of a political process which is not autonomous, but is internationally steered... But an adequate theory of law needs a dialectical synthesis of both approach.'
108. See also Michaels and Jansen, supra note 4.
109. Cf institutionalist approaches to theories of law, such as M. Hauriou, La tho̧rie de l'institution et de la fondation (1925)
110. S. Romano, L'ordinamento giuridico(1917).
111. Consider the slowness of international law, and indeed of many national public law systems, to deal in a sophisticated way with political parties.
112. Thanks to Jeremy Waldron for discussion of these issues.