Foreword: Global Governance as Administration - National and Transnational Approaches to Global Administrative Law

INTRODUCTION This symposium addresses an emerging but little-studied field of legal theory and practice: Global Administrative Law. It is the first in a series of journal symposia produced by the ongoing Global Administrative Law Research Project, based at NYU Law School. (1) By way of overview, we set out in this Foreword some core elements of the concept of Global Administrative Law that animates this symposium; these ideas are developed in greater detail in the framing paper by Kingsbury, Krisch and Stewart. (2) We then note briefly some of the many elements that are developed in the other nine papers in the symposium. II CORE CONCEPTS The concept of Global Administrative Law begins from the twin ideas that much governance can be understood as administration, and that such administration is often organized and shaped by principles of an administrative law character. The contemporary starting point is thus the rapidly changing pattern of transnational regulation and its administration, a pattern that now ranges from regulation-by-non-regulation (laissez faire), through formal self-regulation (such as by some industry associations), hybrid private-private regulation (for example, business-NGO partnerships in the Fair Labor Association), hybrid public-private regulation (for instance, in mutual recognition arrangements where a private agency in one country tests products to certify compliance with governmental standards of another country), network governance by state officials (as in the work of the Organization for Economic Cooperation and Development (OECD) on environmental policies to be followed by national export credit agencies), inter-governmental organizations with significant but indirect regulatory powers (for example, regulation of ozone depleting substances under the Montreal Protocol), and inter-governmental organizations with direct governance powers (as with determinations by the Office of the U.N. High Commissioner for Refugees of individuals' refugee status, or the WTO dispute resolution system for trade conflicts). Bodies that were not originally envisaged as regulators have increasingly become so. The U.N. Security Council now regulates movements of arms, food and money in areas subject to sanctions, and lists specific individuals whose assets are to be frozen by states under anti-terrorism rules. The World Bank supervises developing countries in their adoption and implementation of very detailed externally-devised standards for matters ranging from the structure of insurance markets to the conduct of environmental assessments. The Forest Stewardship Council, a private entity, has developed detailed sets of criteria for sustainable forest use, and for certification of products from such forests. These evolving regulatory structures are each confronted with demands for transparency, consultation, participation, reasoned decisions, and review mechanisms to promote accountability. These demands, and responses to them, are increasingly framed in terms that have an administrative law character. The growing commonality of these administrative law-type principles and practices is building a unity between otherwise disparate areas of governance. The sense that there is some unity of proper principles and practices across these issue areas is of growing importance to the strengthening, or eroding, of legitimacy and effectiveness in these different governance regimes. Instead of neatly separated levels of regulation, a congeries of different actors and different layers together form a variegated global administrative space that includes international institutions and transnational networks involving both governmental and non-governmental actors, as well as domestic administrative bodies that operate within international regimes or cause transboundary regulatory effects. And, while norms of a regulatory character have been adopted by international treaties or intergovernmental agencies with great frequency since at least the nineteenth century, international administrative roles and capacities until recently evolved slowly (some important early cases excepted). …

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