Direito Administrativo Global: um novo ramo do Direito ou a demanda de um Gral académico?
Global Administrative Law: a new branch of law or a quest for an academic Grail?
Resumo:O presente artigo debruça-se sobre a questão de saber se é possível discernir no conceito de Direito Administrativo global um novo ramo do Direito ou se, ao invés, se trata de um simples projecto académico e doutrinal que não pode ser qualificado como Direito, ainda que constitua uma abordagem relevante face a um fenómeno que carece de análise e reflexão teórica e doutrinal. Empenhado em fundamentar um conceito amplo de Direito, que inclua no seu seio códigos de conduta, meras recomendações e outras práticas e instrumentos que não se enquadram nas fontes tradicionais do Direito Internacional, Kingsbury preconizou uma aplicação modificada e ampla da teoria positivista de H.L.A. Hart, a qual, contudo, está longe de ser convincente.
Concluímos no sentido de que não é possível afirmar perante o actual status quo a existência de um Direito Administrativo Global, nem mesmo numa
acepção restritiva que ignore a ausência de regras e princípios gerais de Direito administrativo substantivo e organizacional, uma vez que não é possível identificar sequer um corpo unitário mínimo de regras administrativas procedimentais.
Em suma, consideramos que a expressão de Direito Administrativo Global é equívoca e susceptível de induzir em erro já que, no mínimo, a designação adoptada deveria ser usado na forma plural (Direitos administrativos globais), realçar que se reporta não apenas a fontes legais mas também a simples práticas
(Direitos e práticas administrativas globais) e, acima de tudo, constitui uma espécie de Santo Graal jurídico: um projecto doutrinário que visa garantir a submissão da actuação dos actores no espaço global a um conjunto de princípio procedimentais e alguns de cariz substantivo independentemente da sua consagração em fontes de Direito internacional ou do Direito interno.
É inegável que o projeto Gal tem o mérito de promover uma análise cujo enfoque não se circunscreva às fontes formais de direito e a outras formas de
concertação formal, salientando a necessidade de obter um conhecimento mais vasto e profundo sobre o modo como o fenómeno de regulação global está efectivamente a desenrolar-se e a urgência em o submeter a análise doutrinária e reflexão teórica. No entanto, não compartilhamos a visão de que projeto GAL é a única via para lidar com as questões e desafios que a regulação global suscita.
Para fazer face a estas questões revela-se da máxima importância reconhecer a necessidade de incentivar a adaptação do Direito administrativo interno e do
Direito constitucional, bem com do Direito internacional às novas realidades emergentes. Em particular, preconizamos uma reconceptualização da noção clássica de costume internacional a fim de superar o dogma enraizado sobretudo nos ordenamentos anglo-saxónicos de conferir apenas relevância às práticas estaduais como elemento do uso, o que deixou de ser aceitável, tendo em consideração a crescente dinâmica de desnacionalização. Outra via que poderá ser explorada passa por convocar a noção de princípios gerais de direito internacional de modo a poder induzir da existência de determinados princípios procedimentais em determinados regimes internacionais e no direito interno de diversos Estados a sua consagração como princípios gerais do direito internacional.
Palavras chave: o conceito de Direito administrativo global; conceito de lei na teoria de Hart; projeto político e doutrinal; Direito internacional público; costume internacional e princípios gerais de Direito internacional.
The present article discusses whether is possible to recognize in the concept of ‘global administrative law’ (GAL) a new field of law or it is simply an academic and doctrinal project that cannot be qualified as ‘law’, although it can set up a valuable approach to a phenomenon that needs doctrinal analysis and theoretical reflection. Endeavoring to support the concept of law in GAL project, as including also codes of conduct, mere recommendations and other practices and instruments that are not encompassed within standard conceptions of ‘international law’, Kingsbury has proposed to use a positivist theory of law based on H.L.A. Hart doctrine with some extensions or modifications, view which is, however, far from convincing.
We conclude that it not possible to declare at the present day the existence of a Global administrative law, even in a stricter sense, bypassing the lack of general constitutive or substantive administrative rules, since it cannot be stated the existence of a unitary body of global procedural law. In sum, we argue that the expression GAL is inaccurate and misleading since, as a minimum, the designation adopted should be used in the plural form (‘Global administrative laws’) and highlight that it concerns not only laws but also simple practices (‘Global administrative laws and practices’) and above all it should be accurately characterized we as a kind of a legal holy GRAIL (Goals Required to a kind of Administrative International Law): a doctrinal project which aims to ensure the placing under a set of procedural principles and some substantive standards the actions of actors in the global space regardless of their consecration in sources of international law or domestic law.
It is undeniable that Gal project has the merit of promoting research centered not only in formal sources of law and formal arrangements, emphasizing the need to get a wider and deeper understanding of how the phenomenon of global regulation is actually being developed and the urgency in subjecting this phenomenon to doctrinal analysis and theoretical reflection. Nonetheless, we do not share the view that GAL project is the only way to address problems and challenges that global governance has risen up. To address these issues proves to be of utmost importance to recognize the need to promote the adaptation of internal administrative law and constitutional law, as well of international law to the new emerging realities. In particular, we advocate a new conceptualization of the classical notion of international custom in order to overcome the current dogma of conferring relevance only to state practices as evidence of a general practice, which is no longer acceptable, considering the increasing dynamism of denationalization.
Another possibility that deserves further investigation is the recourse to the notion of general principles of law in order to aloud the recognition of the main principles of procedure law in certain global regimes and in major legal systems as general principles of international law.
Keywords: the concept of Global administrative law; the concept of law in Hart Theory; doctrinal and political project; International law; international custom and general principles of international law.
1. Introduction; 2. Presenting the announced concept of Global administrative law; 2.1. First premise: Global governance as administrative action; 2.2.
Second premise: the existence of an increasing body of procedural principles and mechanisms of an administrative law type which must be respected within global and national administrative actions; 3. The concept of law in GAL project; 4. Preliminary and general conclusions: GAL as a GRAIL (Goals Required to a kind of Administrative International Law; 5. The role of GAL and the need to recognize an important role to the development and adaptation of domestic administrative law and constitutional law, as well to international law.
It has been announced almost a decade ago ‘the emergence of a Global Administrative Law’ 2. Ever since 2004, when KINGSBURY, KRISCH and STEWARt proposed the concept of
‘global administrative law’ to designate a new and emerging field of study, it has been subject to legal scholarly research not only in United States of
America but also elsewhere3.
Naming this field of studies as ‘Global administrative law’ induces to believe it is possible to declare at the present day the existence of a new global
order, a whole organized and systematic set of general constitutive, substantive and procedural administrative rules and principles, seemingly counterposed
to domestic administrative orders and distinctive of the classical international law.
However, global law founders propose to define ‘global administrative law’ as comprising “the mechanisms, principles, practices, and supporting social
understandings that promote or otherwise affect the accountability of global administrative bodies in particular by ensuring they meet adequate standards
of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make” 4.
Therefore, it becomes essential to define clearly the concept of Global administrative law.
Secondly, the present article discusses whether is possible to recognize in the concept of ‘global administrative law’ (GAL) a new branch of law or it is
simply an academic and doctrinal project that cannot be qualified as ‘law’, although it can set up a valuable approach to a phenomenon that needs doctrinal
analysis and theoretical reflection.
2. Presenting the announced concept of Global administrative law
The concept of GAL is based on two fundamental assumptions.
First of all, it departs from the premise of that much of what is usually termed “global governance” can be reappointed as administrative action.
Secondly, that such action is itself often being shaped by administrative law-type principles, rules and mechanisms 5.
2.1. First premise: Global governance as administrative action
Regarding the first premise it has an underlying implicit assumption that not only is conceivable the exercise of administrative function beyond domestic
orders but also that is possible to regard as administrative entities global bodies since they perform activities in matters that are accomplished by the
administration on the national level. “
One of the key factors in identifying the administrative nature of the organization and activities of these global regulatory institutions is the
absence of any effort to make them legislative or judicial in nature (within the traditional conceptual structures of international law)”
The central idea is that ‘administrative’ actions and regimes are in fact being developed in the ‘global space’ by a wide and diversified range of entities 7.
The point of departure is the realization that regulatory functions, encompassing especially rule-making but also adjudications and other specific
decisions related with management, overseeing and implementation “that are neither treaty-making nor simple dispute settlements between parties’” 8, are pursued no longer exclusively by domestic entities but also by transnational and global bodies.
Since “global problems (such as terrorism, the environment, and trade) require global solutions”9 the state has lost his monopoly on regulatory power and the administrative law that rules the relationship between citizens and domestic administrative
bodies is nowadays a ‘multipolar administrative law’10 established and shaped by multiple national,
infra-national, supra-national bodies, both public and private, that reflects an interaction, and at times fusion, of domestic and international
administrative law and action or even solely international law and activities.
On the other hand, the states are no longer the main subjects of global regulatory regimes that are addressed also to individuals, corporations and
non-governmental organizations11 and sometimes without any intermediation of the national entities. There
are even cases where genuine private regulatory bodies set up rules, develop standards and certification mechanisms directly addressed to other privates,
without any intervention of public authorities, domestic or international, phenomenon that has been pointed as international ‘private governance’.
The Project has identified five main types of globalized administrative regulation, although emphasizing that many of them may often be combined or
(1) International Administration by formal international organizations, which corresponds to the traditional model of intergovernmental
international institutions established by treaty or executive agreement (e.g., the UN, WHO, ILO, UNICEF, IOM)
(2) Network Administration, based on collective action by transnational networks and cooperative and coordination arrangements between
national regulatory officials (e.g., the G-8, Basel Committee of national bank regulators and mechanisms of mutual recognition of national regulatory
standards based on a bilateral arrangement between national regulators or promoted by WTO), whose distinctive feature lays in the informality of
cooperation and the absence of a binding formal decision-making structure ;
(3) Distributed Administration conducted by national regulators under treaty, network, or other cooperative regimes (e.g., the Basel
Convention on transboundary movement of hazardous wastes), characterized by domestic action on issues of foreign or even global concern such as domestic
regulation with extraterritorial effects or implementation of international regimes by domestic agencies. The main characteristic is the complexity of the
involvement of actors at the international and at the domestic levels and the fact that they are subjected to mechanisms and procedures established by
informal or multi-level global regulatory regimes.
(4) Hybrid Administration, by hybrid intergovernmental-private arrangements (e.g., the Internet Corporation for Assigned Names and Numbers –
ICANN - and the Codex Alimentarium Commission) that combine governmental and private actors in the composition of the entities or in the exercising of its
(5) Private Administration, by genuine private institutions with regulatory functions (e.g., International Organization for Standardization – ISO
- and the World Anti-Doping Agency).
The presented taxonomy reveals a broad understanding of the concept of administrative bodies at which underlies a generous conception of regulatory
functions or administration as including not only formal recognized or assigned powers to regulate in a binding form (e.g. treaty norms, authority
decisions adopted by International Organizations either taking the form of specific decisions either of general rules) but also non-binding agreements,
guidelines, recommendations, informal norms, best practices, informal interpretations and technical advice 13. It is stated unequivocally that “
with some exceptions, global administration consists mostly of administrative bodies with the power to make recommendations but not binding rules, or
of regulatory networks or other intergovernmental cooperative arrangements with informal decisionmaking procedures
Within this framework, it becomes clear the reason why founders of the global administrative law consider that traditional sources of public international
law, based on State consent as expressed through treaties or custom and general
principles, although being recognized as suitable sources of this new field of law, are no longer capable nor “sufficient to account for the origins and authority of the normative practice already existing in the field” 15.
Thus, given the existence of a ‘global administration’ that plays functions pointed as administrative that are intended to rule the action of states,
individuals, firms and NGO, the next step is the recognition of a ‘global administrative space’, a regulatory space that transcends international law and
domestic administrative law, “
distinct from the inter-State relations governed by international law and the domestic regulatory space governed by domestic administrative law,
although encompassing elements of each
Nevertheless, the emergence of a global administrative space was not followed by the institution of a general and unitary body of global administrative
law. Quite the contrary, it is well recognized that global administrative law is characterized by being sectoral and fragmented due to the existence of
various types of regulatory regimes of different nature that covers several areas and the presence of distinctive actors that perform highly decentralized
As clarified by Cassese: “There is no global government, but rather several global regulatory regimes (from health to labor, to trade, to sea, to banking),
without one single hierarchically superior regulatory system. The Global Polity is the empire of “ad-hoc-cracy”: global regulatory regimes do not follow a
common pattern. This highly a-systematic system has been nicely encapsulated in the formulation “governance without government” (a formulation which
already dates back twenty years). What unifies this mosaic of legal orders is the wechselseitige Eigennutz (reciprocal interest)” 17.
2.2. Second premise: the existence of an increasing body of procedural principles and mechanisms of an administrative law type which must be respected
within global and national administrative action
The increasing powerful regulation performed by global administration bodies and the lack of a coherent system of global law raises severe problems of
legitimacy in global governance. In fact, unlike domestic administration that is entirely subjected to administrative law - which rules the legal
constitution and the institutional organization of administrative entities, defining and delimitating its tasks and competencies and, in particular, the
conditions that enable the exercise of public authority by private entities under delegated powers (constitutive administrative law), the functioning and
the procedure itself of acting (procedural administrative law) and the relationship between administration bodies and other administrative entities and
private actors, namely the assigned regulatory powers to the former (substantive administrative law) - global administration bodies are often solely
subjected to the fragmented rules that were established by its founders and without any delegation of state powers able to trace a warrant for their
actions on behalf of the people that will be affected and, thus, without the inherent democratic mechanisms of political and legal accountability.
This concern leads to the key question presented by the global law project: the question of the accountability of global administration and the need of
conceptualizing mechanisms that can ensure legal control of global regulation in the contemporary world to mitigate democracy deficits.
Therefore, the second premise of global administrative law project is that global entities and global regimes have already established an increasing body
of procedural principles and mechanisms of an administrative law type which must be respected within global and national administrative procedures 18. This means that global regulation bodies are not just developing administrative functions but, at the
same time, they are using and being regulated to some extent by typical processes of an administrative law character teleologically directed to promote
greater accountability in decisionmaking and rulemaking19.
These include rules and mechanisms requiring transparency (e.g. the duty to disclose information and the duty to give reasons), procedural
participation and consultation (e.g. adoption of notice-and-comment procedures in rule-making and the recognition of the right to be heard),
decisions review (e.g. entitlement to have administrative decisions reviewed by a court or by other independent body) and some substantive standards
as proportionality, means-end rationality, avoidance of unnecessary restrictive means and legitimate expectations.
Some of these procedural principles and mechanisms are established by national administrative law and are applied by the domestic courts when reviewing
global regulations, by the parliaments when implementing global rule-making or overseeing over administrative action developed by national officials in
global administrative networks or by administrative bodies themselves when participating in these networks 20.
Others are enshrined in treaties and are applied by international courts21 (e.g., European Court
of First Instance in the European Union – ICFI- and the European Court of Human Rights) or global administrative reviewing bodies (e.g. the WTO
Appellate Body22) upon domestic administrations and global administrations.
The main example are World Trade Organization (WTO) agreements, that establish requirements to disclose information (e.g. concerning antidumping
duties) and promote transparency (which is a general principle of the original GATT - article X - e.g. concerning subsidies and countervailing
measures, expanded to the new realms of GATS23 - article III - and TRIPS 24 - article 63º -), the duty to give reasons (e.g. relating to definitive safeguard measures),
the duty to follow a notice and comment procedure (e.g. relating to setting standards for product safety), the duty to conform to requirements of
reasonableness, proportionality, confidentiality and fair process (e.g. concerning certification and control proceedings as for foreign products).
It is argued that besides these cases, “more fragmentary but significant normative practice is already evident, and may be expected to develop further, in
the practice of many other bodies”, such as intergovernmental agencies and nongovernmental agencies whose actions affect private parties directly 25.
The functions of the World Bank Inspection Panel is presented as an example of the former26, as it may
issue reports and recommendations in cases of allegations of non-compliance with the WB policies presented by individuals or collective entities, although
cannot halt or modify non-conforming projects.
Review mechanisms and procedural principles established in the International Olympic Committee´s drug code under the supervision of the World Anti-Doping
Agency are the most impressive example of adopting of voluntary codes of conduct by the latter, but it is recognized that most of the nongovernmental
organizations and private entities are not subject to any procedure or accountability mechanisms or its practice is episodic and fragmented and relies in a
“The pattern that emerges from these and other, often embryonic mechanisms is not yet coherent: such mechanisms and principles operate in some areas and
not in others, and diverge widely in their forms. Yet the overall picture is of widespread, and growing, commitment both to principles of transparency,
participation, reasoned decision and review in global governance, and to tempered but reasoned principles related to protecting security information,
commercial confidentiality, and negotiating effectiveness”27.
In sum, the main purpose of the ‘Global Administrative Law’ movement is to discover and to promote the application and developing of such principles and
mechanisms of accountability in global space through the “ building of a global administrative law”28.
Different normative conceptions of the role of Global Administrative law, related to different models of international ordering (pluralism, solidarism and
cosmopolitanism patterns) are, thus, presented: insurance of internal administrative accountability, protection of private rights (which may include the
rights of states) and promotion of democracy29. Nonetheless, they all share the same scope: assessing
“the operation of existing or possible principles, procedural rules, review mechanisms, and other mechanisms relating to transparency,
participation, reasoned decisionmaking, and assurance of legality in global governance”30.
As stressed by DAVID DYZENHAUS, “GAL scholars have focused on equivalents or potential equivalents to procedural administrative law, thus neglecting
constitutive or substantive administrative law. Moreover, that focus has been couched in an idiom of accountability. From the perspective of a domestic
administrative lawyer, it seems then that GAL scholars operate with the implicit assumption that global bodies are public legal authorities that make
substantive legal decisions, so that they can turn to the question of how best to make the bodies accountable” 31.
Indeed, the field of global administrative law does not encompass the totally of global rules governing global administrative action, being clearly assumed
that it does not cover constitutive or substantive administrative law, option that is justified by the argument that “conceiving the field in such broad
terms would likely generate an unmanageable research agenda at this early stage in its development, and would obfuscate the normative commitments entailed
in work on global administrative law”32.
3. The concept of law in GAL project
It has been noted that GAL researchers for a long time have adopted a pragmatic approach, assuming that a global administrative law exists and directing
their attention into case studies and area-analyses focused exclusively in assessing the question of the accountability of the global administration
entities, bypassing the question of the concept of GAL and its legal status33 and other theoretical
However, since it is argued that global administrative law sources are not limited to the formal sources of international law – treaty, custom and general
principles of law – and also “includes informal institutional arrangements (many involving prominent roles for non-state actors) and other normative
practices and sources that are not encompassed within standard conceptions of ‘international law’”, such as “norm-guided practices that are in some cases
regarded as obligatory, and in many cases are given some weight, even where they are not obviously part of national (state) law or standard inter-state law ”35 , to ground the normative basis for this assumption has revealed to be crucial.
Endeavoring to support the concept of law in GAL project, KINGSBURY has proposed to use a positivist theory of law based on H.L.A. HART doctrine, avoiding,
for obvious reasons, classical models of positivist theories which clearly distinguishes legal orders from other normative orders (as religion and moral
order) and legal authority from other sources of authority or relevant influence based on the concept of a command power of a determinate sovereign backed
by efficacious and legal sanctions.
Accordingly to the Hartian theory, the legal system is a system of social rules36 and there is no
logically necessary connection between law and coercion or law and moral. The law nature and its functions can only be understood considering the viewpoint
of the community whose law it is. A legal system comprises two elements: primary rules and secondary rules. Primary rules are standards of behavior
for the society, rules that impose duties or obligations on individuals. Secondary rules are concerned with the primary rules and include: (i) rules
of recognition, (ii) rules of change and (iii) rules of adjudication. The character of a legal system derives, therefore, from the union of primary rules
with the secondary rules.
‘Rules of recognition’ are necessary in order to provide an authoritative statement of all the primary rules and to delimit the boundaries with
moral, etiquette or private wish. Hart states that the foundations of a legal system consist of adherence to, or acceptance of, an ultimate rule of
recognition which determines which rules are binding and by which the validity of any primary or secondary rule may be evaluated rule 37. Every legal system inevitably contains one, and only one, rule of recognition. According to Hart, a
simplest version of the rule of recognition in the English system is whatever the Queen in the Parliament enacts is law. Legal laws are binding because
rules of behavior are commonly obeyed by the citizens and they are accepted by the community (or at least, by a substantial part of it, namely by
officials), in the sense that the rule of recognition that sets out the criteria of legal validity is commonly accepted from ‘the internal point of view’, i.e., the inner point of view of individuals who are governed by the rules of the legal system and who accept these rules as standards of conduct
(and not as just habits)38.
The function of ‘rules of change’ is to allow legislators to create, modify or extinguish primary rules if these rules are found to be defective or
inadequate or to assign private parties the right to create or alter primary obligations. Besides conferring this power of changing the primary rules on a
person or institution, these rules usually establish the procedures to be used in exercising that power39 .
‘Rules of adjudication’ enable courts to resolve disputes over the interpretation and application of the primary rules, i.e., to determine whether a
rule has been satisfied or violated on a particular occasion according to a specified method40.
Departing from the consciousness that ‘Global administrative law’ is not an established field of normativity and obligation in the same way as
‘international law’ and that “there is no single legal system of GAL or global governance law with a common rule of recognition” - as a “convincing rule of
recognition for a legal system that is not simply the inter-state system has not been formulated” - Kingsbury argues that there are “different rules of
recognition within different social-institutional-sectoral groupings in specific practice areas of global administrative law” 41.
The central idea is that the lack of a general rule of recognition is not an obstacle to a positivist approach since it is possible, by an extension or
modification of the Hartian theory, to regard the rule of recognition as encompassing not only the classical sources of international law (treaties,
customary international law and general principles of law) but also the key concept of ‘publicness’. By ‘publicness’ “is meant the claim made
for law that it has been wrought by the whole society, by the public, and the connected claim that law addresses matters of concern to the society”. So,
the rule of recognition is understood as including “a stipulation that only rules and institutions meeting publicness requirements immanent in public law
(and evidenced trough comparative materials) ” may be considered as law, as, for example, the principles of legality, rationality, proportionality, rule of
law and protection of human rights42.
KINGSBURY’s view is far from convincing. First of all, as ALEXANDER SOMEK has pointed, the amendment to the rule of recognition by an additional element of
publicness “infuses GAL with a natural law component” and the result is a kind of “natural administrative law, or NAL” 43.
We are not rejecting the possibility of a jus naturalae approach neither stating that the definition of law must be strictly positivist. We just are
emphasizing that KINGSBURY’s proposal to consider ‘publicness’ as a rule of recognition is not conceivable in HART’s theory 44 due to the fact that HART’s rule of recognition is a rule of positive law, not just an extra-legal
juristic hypothesis. In fact, the existence of a rule of recognition is the feature which distinguishes which things are law and which are not, and also
provides a means for identifying the law in a morally neutral approach.
According to KINGSBURY’s theory, it seems that simple practices are regarded as law, even when we cannot find an authoritative source and a rule of
recognition, just because they were produced in a way that is regarded as promoting values of publicness and accountability at the global space. On the
contrary, if there is a practice that does not fit in the goals required by GAL project, it seems it cannot be considered as a social fact originating law
although it consists in an established practice accepted by the global regulators and the public affected. KINGSBURY clearly states that the rule of
recognition is understood as including « a stipulation that only rules and institutions meeting publicness requirements immanent in public law (and evidenced trough comparative materials»
may be considered as law45. However, we stand that it could not follow from the mere fact that a rule
does not fit publicness that it is not law.
Secondly, and most important perhaps, KINGSBURY recognizes himself that there is no common rule of recognition in GAL or global governance law – which is
critical when endorsing HART’s theory of law as a social fact since the HART’s thesis that a rule of recognition, and only one, exists in every legal
system is the distinctive mark of his positivistic theory of law.
Thirdly, some practices of GAL entities can be regarded as a social rule and, thus, as a legal rule, as long as they generate an internal sense of
obligation felt by addressees which “is justified (and perhaps required) by what is intrinsic to public law as generally understood” 46. The addressees seem to be identified among the regulators and not among individuals subject to
regulation or other interested parties47, which would be hardly compatible with HART’s theory. The truth
is that there is some ambiguity in the presentation of the theory and it is doubtful which is actually the position sustained.
On one hand, it is claimed that both “ internal attitudes actually held by leading participants and by those dealing with and critically evaluating them and their practices” is a basic
presupposition of the existence of law48. On the other hand, it is stated that it is required “an internal sense of obligation toward it, as well as agreement among key officials that the source from which it comes is a source capable of generating legal rules” and that
operationalization “in terms of entities rather than publics is likely to be juridically much more practicable” despite global public entities are
not commonly an adequate representative of the relevant publics which are affected49.
Applying this concept of law, it is stated, for example, that the guidelines, recommendations, best practices, informal committee or secretariat
interpretations produced by international organizations can be regarded not as soft law but instead as legal norms based on HART’s theory of law. “
To be a legal norm, the norm must originate in an authoritative source, which ordinarily involves creation or endorsement of the norm by an inter-state
organ (IO) and/or some acceptance of the norm by states (thus the sectoral normative order may be significant in practice for the status of a
particular norm which is part of that order, or falls outside it.) As to relatively technical areas of very specific IO practice the set of
authoritative sources and their application in doubtful cases may be determined by the recognition practice of the key actors in the specific community
of expertise on the subject matter and normative regime involved. Thus there is a rule of recognition in Hart's sense, but for these purposes it is not
a general rule of recognition covering the whole of international law, but a rule of recognition among a narrower set of specialized actors. Where the
norm-generation or norm-acceptance is only shakily related to the will of states, a relevant factor for outsiders in deciding what weight to give to
the norm may be the ways in which it was produced, that is adherence to standards of publicness and desiderata of GAL” 50.
Fourthly, we think that is useful and necessary to distinguish legal norms and non-legal norms, binding (‘hard’) and non-binding (‘soft’) law, as it is
indispensable to separate the level of how each global regulatory entity actually develops its activities and how ‘it ought to be’ developed.
Referring to the clear-cut dichotomy between legal and non-legal prescriptions in domestic orders, Cassese raises the issue whether in the global space we
must concede “that anything that is not binding is, ipso facto, not law”, holding that if “there is an area of law in which the Latin motto “ubi societas, ibi ius” holds true, then surely this must be the global arena”51. As respects to the dichotomy binding (‘hard’) and non-binding (‘soft’) law he argues that “ a formally binding commitment to obey a rule” is not “the only means of producing rule-conforming behavior”, sustaining that even
“in domestic legal orders, not all rules are binding or compulsory. National legislation also establishes incentives and issues guidelines; it seeks
not only to compel, but also to promote, to correct, to educate, and so on”
In our opinion this is a misleading way of putting these questions. The issue of the legal or non-legal nature of a certain act or instrument and its
bindingness or non-bindingness is not merely an academic exercise of classification. A legal rule creates a legal situation or a legal relationship which
involves the application of a legal regime. The law creates legal rights and legal duties. Once there is a legal duty the addressed is obligated to comply.
Once there is a legal right it is recognized the power to demand their respect by the others subjects or, at least, the right to damages compensation
There is a great difference between accomplishing procedural requirements policies in a voluntary basis and be subjected to the legal duty to do so. If,
for example, the World Bank decides not to perform an environmental impact assessment or other procedural requirements that are established in policy
instruments, it has not committed an unlawful act of which may emerge civil liability or other legal mechanism of legal review. The fact that Private
parties are allowed to ask for compliance does not mean that they have the legal right to demand compliance as all depends on the will of the author of the
policy to prosecute it or not, as well to establish or maintain internal mechanism designed to ensure it.
The concept of soft law is well known by International law practitioners, albeit its status, existence and utility are highly controversial and debated 53. But one thing is certain. Rather than attempting to qualify every single practice as hard
international law, it is assumed the need for assessing, case by case, the legal nature of an instrument using substantial, procedural and formal criteria.
For instance, if a memorandum of understanding is agreed by the International Monetary Fund (IMF) and a State in the context of its request for financial
support from the IMF54, the nature assigned to the agreement is crucial in order to determine the rules
applicable to that relationship, particularly what are the consequences in case of non-compliance and whether is possible to either party unilaterally
modify the conditions contemplated for implementing of financial support.
The dominant thesis argues that there isn’t any agreement and thus the funding is based in mere unilateral acts of the State and the Fund 55. Sir Joseph Gold, the formal Legal Counsel of the IMF, has declared letters of intent avoid using
promissory language because the Fund’s stand-by arrangements are not considered to be a contract, but an instrument of soft law, which lacks agreed legal
bindingness. Thus, if the letter of intent sent by the government to IMF in request of the exercise of its rights to utilize the general resources of the
IMF bore the characteristics of being an unilateral act by the government and the Fund arrangements shares the same nature, these acts would be unilateral
acts with a mere political nature, not formally binding the State or the IMF. Hence, a unilateral act may be revoked unilaterally by its author.
On the contrary, if the State intended to make a public declaration that it should become bound according to its terms, the International court of Justice
considers that an intent to be bound, “
confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent
with the declaration
”56 and thus cannot be revoked unilaterally.
It is also possible to consider that, regarding the intense negotiations and the need to reach to an agreement between both sides, the State and IMF
actually conclude a treaty, in which case they are subjected to the pacta sunt servanda principle and cannot revoke or modify the conditions
established in the agreement without mutual consent.
Thus, it seems clear that a binding or non-binding act or agreement produces different effects and has distinctive consequences. The consequences of
non-compliance with the conditions prescribed by an act or agreement of nature policy are just political. The injured party for breach of conditions can
employ means of extra-juridical sanctions, such as public criticizing in the media, breaking off of diplomatic relations or interruption of current
negotiations and other forms of retorsion but surely cannot demand civil liability or require in a judicial court compliance with the conditions that were
Regarding the argument that the law does not have the monopoly of producing rule-conforming behavior, it is undeniable that there are several
non-legal means to promote compliance and that they can be extremely effective. For example, standards produced by private entities are implemented by the
introduction of incentives for compliance and certification and accreditation mechanisms. But standards are not law.
Indeed, there are distinctive types of authority. The private authority in global governance exercised by non-state actors namely, ‘market authorities’ ( e.g., private market institutions engaged in the setting of international standards) and ‘moral authorities’ (e.g., environmental
non-governmental organizations), is non-state based (it is not a public authority nor derives from any power delegation of the state) and its origin does
not come from law but from legitimacy. They have (i) ‘discursive power’, related to the (re)framing of discourses, i.e., the power to influence and
embody international relationships and politic discourse with the values, ideas and concepts that they defend, (ii) ‘decisional power’, concerning to
policy making and political influence and (iii) ‘regulatory power’, referring to rule-making and standard-setting. They take decisions, make rules, and
develop policies and practices that are recognized as legitimate by the subjects, as they were entitled to do so, due to factors such as credibility,
persuasion, expertise and trust57.
The fact that the State also develops its functions by non-authority models of command and control, using instruments to incentive and promote conducts
that not have a binding or compulsory nature is not comparable to this phenomenon. First and foremost because the state action relies not from the referred
forms of authority based on legitimacy but on the law and the accomplishment of its public functions (legal authority). When the State gives subsidies or
concludes contracts this activity is ruled by specific legal norms and is subjected to the general principles, constraints, limits and controls of the
administrative activity. Furthermore, at least in legal systems that have an administrative law, the States make use of the same forms and techniques
developed historically to command and control activities: the practice of administrative acts, the emission of administrative rules and the celebration of
administrative contracts. By virtue to the legality principle, the informal or non-binding arrangements have a very limited and narrow scope of action.
4. Preliminary and general conclusions: GAL as a GRAIL (Goals Required to a kind of an Administrative International Law)
In this regard, we must conclude that it not possible to declare at the present day the existence of a Global administrative law 58, in the sense that there is not a coherent and systematic set of legal rules and principles,
counterposed to domestic administrative laws, governing the creation and organization of the entities that act in the transnational space, defining the
scope of its responsibilities and regulatory competencies and the means and forms of the exercise of powers and duties.
On the contrary, we must be aware that GAL merely names an academic project to promote and develop a new global order ruled by procedural principles of
transparency, participation, review and accountability.
Even in a stricter sense, bypassing the lack of general constitutive or substantive administrative rules, it cannot be stated the existence of a unitary
body of global procedural law59. There are some entities acting in the international or global field,
besides the domestic administrations, that are subject to some accountability mechanisms and some who are not. Within the former case, some are legal
mechanisms, some are voluntarily adopted and others derive merely from non-binding practices. Identified and positive legal mechanisms are not uniform and
vary according to the applicable legal regime.
Thus, there is not a global administrative law but a range of global administrative laws or legal regimes and practices. At a minimum, the designation
adopted should be used in the plural form (‘Global administrative laws’) and highlight that it concerns not only laws but also simple practices (‘Global
administrative laws and practices’).
On the other hand, GAL project is built on two types of analysis: a descriptive analysis of the status quo - related to the observation and
description of the phenomenon of global regulation by other entities besides the states and the emergence of some principles and mechanisms governing its
action - and a normative analysis. The normative analysis is concerned with ‘what it ought to be’ (and, thus, argues the referred phenomenon should be
pointed as administrative regulation and the existing principles and mechanisms should be regarded as administrative ones) and ‘how it ought to be’
controlled: by the applicability or adaptation , whether through domestic or non-national institutions, of procedural (and some substantive) tools and
techniques developed in domestic administrative law (in a bottom-up approach) or at the global level (in a top-down approach) to guarantee participation,
transparency, accountability, and review, including the construction of “ wholly new techniques and approaches that utilize basic administrative law ideas and values”60.
Considering the normative thesis, we argue that the adoption of the expression GAL is inaccurate and misleading and should be accurately
characterized as a sort of an academic holy GRAIL: Goals Required to a kind of an Administrative International Law.
5. The role of GAL and the need to recognize an important role to the development and adaptation of domestic administrative law and constitutional law, as
well to international law
It is common ground that globalization has brought radical changes not only in economy, social and culture matters but also at the international relations
level and its legal order and practices that affected deeply the domestic legal orders. Globalization has implied the opening of both local and
international perspectives to a broader outlook of an interconnected and interdependent world which rules do not depend anymore structurally on state
governments. In particular, if historically administrative law has sprung from national states and was thus fundamentally state law, nowadays we assist to
a denationalizing dynamic caused by regional integration phenomena, such as European integration, the development of international law towards models not
based in state consent and the rise of private actors playing in the global space that has blurred the traditional dichotomies of national and
international law, on the one hand, and public and private law, on the other.
The discovery of complex and transnational legal relationships is not however new. In 1956 Philip Jessup presented the definition of transnational law as
“all law which regulates actions or events that transcend national frontiers”61, pointing out the
emergence of complex legal structures of cross-border relationships and the need to integrate and consider the role of supra-states or sub-states entities
and private actors (individuals, corporations and associations) in the international legal field. Mindful that “the term of international is misleading
since it suggests that one is concerned only with the relations of one nation (or state) with other nations (or states)” 62, he proposed the term ‘Transnational law’ that “includes both civil and criminal law aspects, it
includes what we known as public and private international law, and it includes national law, both public and private”63 “and other rules which do not wholly fit with those standards categories” 64.
The idea itself of a ‘global law without the State’ was defended earlier in consideration of the emergence of private law regimes creating private codes of
conduct and even private ‘constitutions’ regulating their own law-making procedure65.
The proclamation of GAL as a new field of law postulates, therefore, the need to justify its autonomy by reference to existing ones and to define and
clarify boundaries between GAL and other branches of law, such as International Law, International Institutional Law (or, as it is also designated,
International Administrative Law) and even other normative theories, as Transnational Law and Global Constitutionalism. Indeed, it is of utmost importance
formulating their relationship to GAL in terms of strict separation or, on the contrary, recognizing, as we argue, an interconnection and even an
overlapping of field of studies.
Unlike the GAL proponents usually argue, International Law can be no longer identified with the law established between the governments of States to
regulate relations between States. Indeed, the large majority of international public law scholars also recognize that the term ‘international law’ is not
exclusively applicable to inter-governmental relations, although it can be observed that Anglo-Saxon scholars tend to sustain a rather restrictive approach
in this matter.
First, the latter part of the 20th century was signalized by the growth of Inter-governmental organizations (IOs), civil society groups or movements as
well as the rise of individuals as subjects of international law, such a way that many advocates that is should be defined as the law that rules the
international community, or, in another point of view, the international society. A tendency towards recognizing even to NGO’s or private companies
international legal personality and a legal status in modern doctrine is visible66.
Second, the normative structure of the international order is currently characterized by an interconnected plurality or network of entities and sources of
law. It cannot be stated no longer that international law is exclusively a consent-based system. Several manuals of international law dedicate particular
attention to the normative decisions produced by International organizations in the chapters concerning sources of international law67 and their role as law-makers has been subject to specific studies 68. We cannot subscribe, thus, the view that the field of studies that is specialized in the analysis of
the law of international organizations, usually known by the expression ‘international institutional law’ or ‘administrative international law’, is focused
mainly in their “internal features (like the relations between international organizations and their employees)” 69. Moreover, it has been proposed recently that ‘international institutional laws’
is a broader and more generous concept than the expression ‘law of international organizations’ since it allows into its scope not just formal
organizations but rather all sort of institutions that exercise public authority at the international level 70.
On the other hand, the role of non-governmental organizations and other private actors in the making of international law is also being debated 71. It is also important to stress that general principles of international law were conceived
historically as a new source of international law that cannot be traceable back to expressions of consent by states since they have their roots in human
society. As pointed out by ANTONIO CASSESE, the Permanent Court of International Justice and the International Court of Justice “relied on principles of
legal logic or general jurisprudence” that “were not identified through a detailed investigation of the legal systems of the various members of the
international community” and thus, “they were not applied qua general principles obtaining in foro domestico, but as general tenets capable
of being induced from the rules of international law or deduced from legal logic”72.
Third, the subject-matter of international law has continuously expanded over the past decades and entered into several and most distinctive areas such as
the regulation of migration and employment, telecommunication, transport, education, environment, health care, food, animal protection, energy networks,
licensing of medicines, consumer protection, to name but a very few, that largely go beyond traditional intergovernmental relationships. Though,
international public law covers the vast normative framework concerning all the different subjects of international law and matters that are object of
In our opinion, the main problem of Global administrative law project is that it seeks to find a unity of problems and solutions for phenomena which main
feature is precisely the fragmentation, the sectoral nature of the regimes and the broad range of entities involved. The differences are remarkable in
terms of the nature of the actors (private and public, national, infra-national or supra-national), the addressees of the global regimes (states, domestic
agencies or officials or directly individuals and corporations), the powers (rule-making, adjudications, control, supervision, management, coordination,
cooperation, participation, implementation), the forms of acting involved (treaty norms, non-binding agreements, unilateral normative decisions,
guidelines, recommendations, best practices, informal interpretations) and the different degrees of regulation density and correlative diversified needs to
supplementary regulation and implementation mechanisms (created among global administration or relied on national authorities).
We argue that it is not convenient and may even prove to be harmful and counterproductive to deal with realities that are not identical and, thus, deserve
differentiated solutions, as they could share the same nature. As Prosper Weil has once stated: “At a level of global comparison all human being resemble:
at the level of fingerprints no man is similar to another”73. Precisely for that reason, we consider that
others approaches are preferable, as the one proposed by Max Plant researchers, focused in developing a legal framework for the legal analysis of the
public authority exercised by international institutions or , as we argue, the development of international law.
Our proposal to plainly distinguish the legal rules and non-legal rules does not involve, yet, that we should adopt a restrictive view of the global
phenomena and focus exclusively in the analyses of classic international sources of law or domestic laws in a rigid and compartmentalized way.
The GAL project has undoubtedly highlighted a new field of studies and therefore, has catch the attention of legal experts and also of global actors to
serious questions and concerns about the legitimacy and the legality of the new global order and boosted the development of hundreds of studies on specific
issues that tended not to be addressed or were treated in vague terms.
Nonetheless, we do not share the view that GAL project is the only way to address problems and challenges that global governance has risen up. To address
these issues proves to be of utmost importance to recognize the need to promote the adaptation of internal administrative law and constitutional law, as
well of international law to the new emerging realities.
Eberhard Schmidt-Aßmann made a plea to a reconstruction and reshaping of national and international law in order to achieve a redefinition of the
expression of ‘international administrative law’, understood as the administrative law originating under international law 74.
This does not mean by no way that the solution consists exclusively in turning back to the reinvigoration of the state or the role of the law, although in
some matters it may be the right path to follow. For instance, in certain areas where issues of enormous importance and impact are being treated by
informal arrangements, without any substantial and legitimate ground for it, a legal framework or a greater institutionalization should be established
either by the state (or by other subject of international law), either by legal experts and researchers (e.g., formulation of doctrinal criteria to
requalify an agreement deemed to be political in a treaty)75.
We suggest that the branch of international law, including the study of international organizations, has an important role to perform in the analyses of
the global entities activities on the global space. As is stressed by JAN KLEBBERS, the exercise of authority, on the global level, outside regular legal
structures “pose challenges not just by throwing up new fields for regulation, but also, more fundamentally, by forcing international lawyers to rethink
the tools of their trade, as “many of the classic concepts and categories of international law (…) have become outdated” 76.
In particular, we advocate a new conceptualization of the classical notion of international custom in order to overcome the current dogma of conferring
relevance only to state practices as evidence of a general practice, which is no longer acceptable, considering the increasing dynamism of
denationalization. In particular, we suggest that it should be explored the possibility of non-state practices, namely acts accomplished by global
regulators (e.g., IO’s, ONG and private actors), to acquire the force of law (opinio iuris) and thus, being recognized as
international customary law77. The notion of ‘bilateral’ or ‘local’ custom, understood as a practice
accepted as law by a circumscribed circle of key actors, well-known and accepted in International Law as a legitimate source of international custom, can
be developed to cover these cases.
Another possibility that deserves further investigation is the recourse to the notion of general principles of law in order to aloud the recognition of the
main principles of procedure law in certain global regimes and in major legal systems as general principles of international law.
In sum, GAL project has the merit of promoting research centered not only in formal sources of law and formal arrangements, emphasizing the need to get a
wider and deeper understanding of how the phenomenon of global regulation is actually being developed and the urgency in subjecting this phenomenon to
doctrinal analysis and theoretical reflection.
However, besides the descriptive thesis, we disagree with the normative thesis underlying GAL due to the fact that it seems too much general and suffers in general from a lack of rigor. We consider that GAL is not a global order distinct from International law and domestic law. It cannot be also restricted as a branch of international law as it encompasses the activity of actors at the domestic levels. Thus, GAL should be understood as a field of studies that is based upon a multidisciplinary perspective as long as it is recognized it is not centered in the concept of law. GAL researchers can provide a major contribution to the gathering and processing of information from existing practices and non-binding instruments on which to base the emergence of a custom or a general principle of law and even another normative theories78 to react against the phenomenon of global governance and the exercise of public authority that threats individual rights and collective self-determination without any constraints and