EJIL on global administrative law
The European Journal of International Law’s most recent issue contains a symposium on global administrative law, an area of vigorous scholarly interest of late, premised on the observation that, as Benedict Kingsbury and Nico Krisch put it, “much of global governance can be understood as regulation and administration.” Because this sort of governance – ranging from informal international agreements among regulators to the procedures adopted by secretariats set up to monitor treaties – is growing apace, and, as K&K note, introduces new sources and subjects of international obligation, it is something of a challenge to the traditional conception of international law. Three questions accordingly leap to mind: is global administrative law for real? What can it tell us about the Basle Committee on Banking Supervision’s revisions to the capital adequacy accord? And, is global administrative law a helpful (which to me often means “parsimonious”) way of thinking about international legal relationships?
A review of the symposium should assure readers that global administrative law gets at something that attention paid only to ambassadors, the Vienna Conventions, and the United Nations would neglect. Errol Meidinger reports on the forestry rules that increasingly constrain companies – or at least those companies who want to use “good stewardship” brands created by public and private agreement on appropriate forestry practices. Carol Harlow notes that water providers who send their product across boundaries have to deal with domestic regulators who apply internationally developed standards of investment protection, internationally created technical water provision standards (this would be the ISO process), and a possible emerging human right to water. And the other articles contain other interesting case studies of what sees to me like regulation, and, what’s more, regulation that isn’t rooted in APA-style rulemaking or treaty obligations.
Geoffrey Miller and Michael Barr’s review of the administrative procedures and political pressures on the Basle Committee is the icing on the cake. Their paper shows both that regulators are adopting some familiar administrative procedures when they act internationally, even the hitherto secretive central bankers trying to develop international bank reserve standards. But it also shows the importance and limitations of US pressure to get those standards (I thought this piece was a winner, but, full disclosure, I write about the Basle Committee too).
That last question – about whether global administrative law can be thought about synthetically and parsimoniously, rather than only through case by complex case – that is one that the symposium, I think, leaves open. We know that accountability and democracy can be sacrificed when regulators act internationally (though the sacrifice hasn’t been too onerous in the case of Basle). But those terms are very context dependent. One descriptive observation about the case studies that do appear in EJIL: global administrative remedies are rather adjudicative. The rulemaking process is rather ungeneralizable. But if a set of practice-based global administrative law norms are developed, the first tranche may particularly lean on adjudicative process – ICSID and more ad hoc panels of neutrals – as a remedy for the problems created by internationally-minded bureaucrats. Global adlaw might – might – first look more court-like than agency-like.