Global Administrative Law: Can it Bring Global Governance to Account?*
| Author | John Farnik,Andrew D Mitchell |
| DOI | 10.22145/flr.37.2.3 |
| Published date | 01 June 2009 |
| Date | 01 June 2009 |
| Subject Matter | Article |
GLOBAL ADMINISTRATIVE LAW:
CAN IT BRING GLOBAL GOVERNANCE TO ACCOUNT?*
Andrew D Mitchell
±
and John Farnik
±±
I INTRODUCTION
In recent years, scholars worldwide have begun organising and developing a coherent
framework and research agenda focused on the emerging field of 'global
administrative law'.1 This nascent body of law, unlike domestic or national forms of
administrative law, does not operate within the bounds of unitary nation states, and
unlike traditional accounts of public international law, it does not arise exclusively
between nation states. Instead it operates in a transnational or global space occupied
by a vast variety of administrative actors responsible for trans-governmental
regulation and administration; the field of 'global governance'.2 To combat growing
concerns that there are crucial legitimacy, accountability and democratic deficiencies
inherent in this system of global governance, numerous administrative law type
mechanisms and principles have been developed by global administrative bodies.
Global administrative law embodies the totality of these various mechanisms and
principles. While this body of law is still in its infancy, and is yet to be wholly
systematised or coherently organised, it is already populated with examples from a
_____________________________________________________________________________________
* This paper was first presented at the 2008 National Administrative Law Forum,
Melbourne, 7–8 August 2008. The authors would like to thank Alice Ashbolt, Georgina
Dimopoulos, Sarah Ganz and Besma Grifat for their suggestions and ideas on earlier
versions of this paper.
± PhD (Camb), LLM (Harv), Grad Dip (Int Law) (Melb), LLB (Hons) (Melb), BCom (Hons)
(Melb); Associate Professor, Melbourne Law School, The University of Melbourne; Barrister
and Solicitor, Supreme Court of Victoria and High Court of Australia; Fellow, Tim Fischer
Centre for Global Trade & Finance, Bond University. Email <a.mitchell@unimelb.edu.au>.
±± LLB (Hons) (Melb), BA (Melb); Graduate, Blake Dawson. Email
<john.farnik@blakedawson.com>.
1 The most conspicuous example of this body of scholarship is the Global Administrative
Law Project of the NYU School of Law found online at <http://www.iilj.org/GAL/> at 1
September 2009.
2 See, eg, Benedict Kingsbury, Nico Krisch and Richard B Stewart, 'The Emergence of Global
Administrative Law' (2005) 68(3) Law and Contemporary Problems 15; Benedict Kingsbury,
'The Administrative Law Frontier in Global Governance' (2005) 99 American Society of
International Law Proceedings 143.
238 Federal Law Review Volume 37
____________________________________________________________________________________
spectrum of regulatory areas.3 This paper examines the rise of global administrative
law, its ramifications for domestic administrative law in Australia, and its challenges,
limitations and promise.
II GLOBAL GOVERNANCE
Global administrative law is intrinsically intertwined with the expansion of global
governance. The former presupposes the existence of the latter.4 More importantly,
global administrative law has emerged as a response to the accountability challenges
peculiar to this 'global administrative space'.5 This space has been created through the
coordination of transnational regulation in response to the increasing
interconnectedness and interdependence of nation states flowing from the
'globalisation' movement towards economic and social integration, which has gathered
pace since World War II.6 Regulation and administration is no longer chiefly the
domain of national governments with a domestic focus; these bodies now coexist
alongside a complex global system or field of governance.7
Perhaps the key feature of the field of global governance is the fact that it is not
populated by a homogenous set of entities. Contrary to the state-centred
conceptualisation of global level interaction which underpins the classical
understanding of international law as jus inter gentes, the unified nation state is not the
key actor in the global governance model, and treaties between states are no longer the
exclusive expression of substantive global administrative decision-making.8 Instead,
regulatory authority is shared by an interconnected web of mixed and distinct entities
including trans-governmental networks and public international organisations in
addition to national governments.9 Further, the shift from a state-centred regulatory
approach towards market forms of regulation10 has seen, inter alia, non-governmental
bodies increasingly involved, despite their 'private' identity, in the quintessentially
'public' task of regulation and administration.11
Considering the wide variety of entities participating in the system of global
governance, attempts to categorise these entities into a closed list risks obscuring their
complex diversity. Notwithstanding this, some scholars have attempted such a
_____________________________________________________________________________________
3 Eleanor Kinney, 'The Emerging Field of International Administrative Law: Its Content and
Potential' (2002) 54 Administrative Law Review 415, 416–17.
4 Kingsbury, Krisch and Stewart, above n 2, 18-19.
5 Ibid.
6 Kinney, above n 3, 417–8.
7 Ibid, 419.
8 Kingsbury, above n 2, 143.
9 Kinney, above n 3, 419.
10 Alfred C Aman Jr, 'The Limits of Globalization and the Future of Administrative Law:
From Government to Governance' (2001) 8 Indiana Journal of Global Legal Studies 379.
11 See generally Matthew Diller, 'Introduction: Redefining the Public Sector: Accountability
and Democracy in the Era of Privatisation' (2001) 28 Fordham Urban Law Journal 1307; Anne-
Marie Slaughter, 'Global Government Networks, Global Information Agencies, and
Disaggregated Democracy' (2003) 24 Michigan Journal of International Law 1041; David
Zaring, 'Informal Procedure, Hard and Soft, in International Administration' International
Law and Justice Working Paper 2004/6 (Global Administrative Law Series). See further
Part IV below.
To continue reading
Request your trial