GAL at NYU

A quick post to flag a project that I have recently become involved with: the emerging field of Global Administrative Law, a research project involving a wide network of scholars, based at New York University. The project is driven by two basic insights: firstly, that much of the global or transnational regulation currently viewed under the rubric of "governance" can be properly seen as regulatory administration; and secondly that a body of administrative law is emerging that seeks to regulate that regulation. There is, however, both a descriptive and a prescriptive element to the research agenda: not merely what are the principles of an administrative law character that are shaping global governance, but also what should they be. The website provides the following working definition of the project (which is fleshed out in much more detail in a couple of conceptual papers on the issue):

Much of global governance can be understood as regulatory administration. Such regulatory administration is often organized and shaped by principles of an administrative law character. Building on these twin ideas, we argue that a body of global administrative law is emerging. This is the law of transparency, participation, review, and above all accountability in global governance. We posit an increasingly discernible “global administrative space”, in which the strict dichotomy between domestic and international has broken down, administrative functions are performed in complex relations between officials and institutions not organized in a single hierarchy, and regulation using non-binding forms often proves highly effective in practice. Exercises of public power in the global administrative space are increasingly channeled, and controlled, by mechanisms of an administrative law type. These include rules requiring greater transparency, adoption of notice-and-comment procedures in rule-making, and the opening of new or strengthened avenues of judicial and administrative review. We thus regard global administrative law as encompassing the legal mechanisms, principles, and practices, along with supporting social understandings, that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring these bodies meet adequate standards of transparency, consultation, participation, rationality, and legality, and by providing effective review of the rules and decisions these bodies make. We describe this field of law as “global” rather than “international” to encompass the enmeshment of national and intergovernmental regulation, the increasing roles of private regulators and public-private hybrid bodies, the wide array of informal institutional arrangements that now operate alongside formal institutions, and the foundations of the field in normative practices, and normative sources, that extend beyond international law sources.

The Project distinguished among, but seeks to encompass each of, five main types of globalized administrative regulation. These are: (1) International Administration, by formal international organizations (such as United Nations Security Council individual sanctions programs, or UN administration of territory); (2) Network Administration, based on collective action by transnational networks of cooperative arrangements between national regulatory officials (such as the Basel Committee of national bank regulators); (3) Distributed Administration conducted by national regulators under treaty, network, or other cooperative regimes (such as the Basel Convention on transboundary movement of hazardous wastes); (4) Hybrid Administration, by hybrid intergovernmental-private arrangements (such as ICANN, the Internet Corporation for Assigned Names and Numbers); and (5) Private Administration, by private institutions with regulatory functions (such as the ISO, the International Organization for Standardization).

New systems of administrative procedures, review mechanisms, and decisional principles have arisen to promote greater accountability in decision-making by this rapidly proliferating variety of global regulatory administrative bodies. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and non-governmental organizations. Global Administrative Law is an emerging field of law and practice addressing both the new structures of administrative law and international law that have arisen in these different institutional contexts, and their normative dimensions, including regime integrity, protection of subjects' rights and promotion of democratic values.

It seems to me that, from this useful and provocative working definition, a number of interesting questions immediately arise at an abstract, general level: in what sense can these administrative law principles be justifiably characterised as "global" (in that the negative justification offered, in contradistinction to the "international", may be necessary but insufficient to justify this rhetoric)? Does it really make sense to talk of one unified global administrative space, rather than a plurality of spaces? What is the relationship of global administrative law to the emerging, if at least equally vague, sphere of "global/international constitutionalism"? And how do the administrative law ends of transparency, participation, review and accountability relate, if at all, to notions of democratic governance?

Such issues are only a small, if important, part of the research agenda. Much focus otherwise is on empirical studies of actual administrative regimes, in order to discern what the principles and norms guiding there function are, and what elements, if any, seem to be common among them. The website provides access to a large number of articles and working papers on the issue. As I mentioned, it is a project that I have recently become (heavily) involved with, so any and all comments on it are welcome!