How are such things as organizations, institutions, movements and markets coordinated and regulated in an increasingly globalized world?

Authors Nico Krisch and Benedict Kingsbury argue that international governance has become increasingly administrative. The international legal order has changed. It is no longer adequate to think of the international legal order in terms of inter-state, consent based law.

The new international legal order is increasingly defined in terms of administrative law.

What Is Administrative Law?

What makes global administrative law different than the classic understanding of international law?

In the classic notion of international law, norms are agreed upon by states, and states were free to accept or reject these laws. In order to be effective, international laws needed to be ratified and implemented at the domestic level.

However, administrative law differs from what Kirsch and Kingsbury call the “classic” notion of international law. For global administrative law, rules are made by bodies that are not legislative or primarily adjudicatory. Administrative rules that have a deep impact on global actors and processes are not agreements between states. In fact, states need not even be involved in administrative law making.

Is Administrative Law Global or International?

It makes more sense to talk of administrative law as global rather than international. International law indicates law between or among states. It is based on inter-state consent. Administrative law, however, can have a global reach without the explicit consent of states. So, administrative law can be global without being international.

The Symptoms of Global Administrative Law

How do we know that administrative law is becoming more important in the global legal order? Several features indicate that administrative law is becoming more important.

• The distinction between domestic and international law has become blurred. Regulators come together in international forums to hammer out administrative standards and procedures and then make these a part of domestic policy. These policies do not need to be formally implemented as domestic law, though they have a powerful effect on domestic regulation. In the other direction, domestic courts may be beginning to exercise some judicial oversight of global regulation.
• States are no longer equal partners. Even though differences in power have always been important in international law, the doctrine of the sovereignty of states at least put all states on an officially level field. With the spread of administrative law, global institutions set regulations that can bypass official state sovereignty. For instance, institutions such as the Financial Action Task Force work to change practices of nonmember states without formal treaties. This can magnify inequalities in state influence in global regulation. Powerful states can set formal and informal administrative rules that weaker states have little choice but to follow.
• The basis for the legitimacy of international law is changing. International law used to be considered legitimate when it rested on the agreement of sovereign states. Domestically, however, states were free to organize institutions as they saw fit. However, it has become less important for states to ratify and implement international law. Domestic institutions are subject to international regulations that they did not officially agree to. But, if the state did not agree to the law, then how is it legitimate? Global administrative law begins to look like foreign powers setting the terms for domestic institutions without the state's consent.
• International law comes from new sources. International regulation now flows from sources other than states. Sources like public-private or even purely private institutions now serve to create global law. Additionally, international judicial bodies define and extend international law. At one time, international regulation generally counted as “formal law” when it originated in agreements among states. However, it no longer makes sense to limit the term “law” to formal state agreements or widespread conventional practices. Increasingly, non-state actors are involved in coordinating and regulating global activity.

Core Questions for Administrative Law

Increasing globalization has brought about a change in the global legal order. Administrative law is now more important for understanding global coordination and regulation. However, administrative law is complex and ranges across a wide variety of issues and takes a number of forms. Is there a common set of core ideas?

Krisch and Kingsbury identify four questions that lie at the core of understanding global administrative law.

• Does administrative law produce positive outcomes? If so, for whom?
• How do we decide whether pursuing regulation by administrative law is desirable in particular cases?
• Should the study of administrative law pursue an integrated agenda? In other words, is it worth trying to understand global administrative law in terms of a set of universal characteristics and processes?
• To what degree is administrative law adequate for understanding global politics and society?

The study of global administrative law is not yet able to supply answers to these questions. However, these questions serve as reference points as research on global administrative law goes forward.

Challenges of Administrative Law

The globalization of international law poses a number of challenges.

• Accountability/Transparency. If administrative law is no longer “checked” by legislative or judicial review, then the public may be largely excluded from law making. Regulations that have huge effects on the lives of domestic audiences may be set by elite groups of global regulators without any public oversight or understanding of the process.
• Participation. Because administrative law is formed outside the context of state parliamentary institutions, the public may have little say in the policies. This problem may be particularly urgent when administrative law is made by private actors.
• Review. When administrative rules are put in place without being officially obligatory, then it may be more difficult to subject the rules to judicial or public review. The rules appear to be voluntary.

However, ways of addressing these challenges can produce another set of problems.

• Accountability can decrease effectiveness,
• Mechanisms for increasing participation can result in capture by special interests,
• Transparency may lead to justice being sacrificed to populist sentiments.

The exercise of administrative law in the global arena varies greatly by issue area (for example, forestry versus banking) and by the institutions and organizations involved. Because of this, it is not likely that there is any single model of administrative law that will work universally (either in theory or practice).

Bottom Line

Globalization makes administrative law more important. Because global regulation is less and less defined in terms of agreements among states, the nature of the international legal order is changing. Public-private or simply private actors become more important in defining global norms.