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From The International Law to the Global Administrative Law

The instant piece is aimed at exploring the new frontier of the international law in the form of the Global Administrative Law (GAL) with a brief discussion on its concept, status and kinds. Later, a brief résumé of the use of the GAL in relation to global terrorism has been presented with analytical remarks.

Introduction

Charles Louis Montesquieu, in his Spirit of the Laws (1748), tried to formulate the notion of ‘the law of nations’ in the following words:

“The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests.”

His elucidation has been substantially revised in the modern times. While the law of nations with philosophical inquiries about its nature, enforceability, subjects, sources and basis struggled for recognition, its extant version — the international law — is ever expansive in nature and is all-pervasive.

The Global Administrative Law

Administrative Law is a fully recognized field of national legal systems of many countries. For non-lawyers, a working definition of administrative law will be very useful in appreciating the concept of the Global Administrative Law (GAL). Plainly speaking, it means the law that governs activities of the administrative agencies of a government.

Likewise, in the present scenario, there is a plethora of international agencies performing functions at international level and for their working, the set of rules and regulations is collectively known as Global Administrative Law. The conceptual difference between the conventional international law regime and the GAL regime may be very useful in appreciating the daily international affairs. The conventional international law premised itself on the pacta sunt servanda principle, which means ‘the agreements must be kept’; the essential ingredient of the principle is the consent of the state to submit its sovereignty to the extent of the agreement. Easier said than done. The act of submitting the sovereignty of a nation is not handy in practice and in real terms it’s a very big political issue. That is precisely the reason that there is a lot of debate on enforceability of international treaties.

Strings of cases have been decided by the apex courts of different countries repelling the idea of automaticity of implementation of the international law. For example, in Sanchez-Llamas v. Oregon (2006) and Medellin v. Texas (2008), the Supreme Court of the USA held that a treaty is not a binding domestic law unless the Congress has enacted an enabling statute to implement it. On the other hand, the GAL regime thrives on international organizations’ representatives who, in effect, are mostly unelected. A conspicuous example is the Security Council of the United Nations, which has, since 9/11, resorted to excessive regulation through Security Council resolutions, which are not treaties, obviously.

Another example is the investigation team (comprising nine experts of Organization for the Prohibition of Chemical Weapons and three experts from World Health Organization) sent to Syria in August 2013. The legal basis of the investigation team was not a treaty, but the UNGA resolution No. 42/37 C of 1987. The Resolution had authorized the Secretary General of the UN to appoint a “group of qualified experts”. These experts had then presented their report on 4th of October 1989 in which they outlined how the investigations and the procedure adopted by the investigation team in Syria in 2013 was the one outlined in 1989. It may be noted that the GAL is in the making. Professor Richard B. Stewart of the School of Law, New York University, in his article ‘The Emergence of Global Administrative Law’ in 2005 stated that the GAL is relatively unnoticed and the NYU has initiated a dedicated research project on GAL. They have also identified five kinds of the GAL, which are:

1. Administration by Formal International Organizations

It is characterized by a strong formal decision-making structure. Its examples include UN Security Council, UN High Commissioner for Refugees, World Health Organization, etc.

2. Transnational Networks and Coordinated Arrangements

These are horizontal bodies with no formal binding decision-making structures. Its example, according to the authors, is Basel Committee, which brings together heads of various central banks in order to make decisions on different issues like capital adequacy requirements for banks.

3. Distributed Administration

These are national organizations which collaborate at international level. Examples include environmental and wildlife preservation organizations.

4. Hybrid Intergovernmental-Private Arrangements

These organizations were started by private organizations and persons, but due to their importance, governments too joined them. A relevant example is the Internet Corporation for Assigned Names and Numbers (ICANN) that regulates many aspects on internet.

5. Private International Organizations

These are essentially private international organizations. International Standards Organization (ISO), which has adopted over 13000 standards that are used internationally, is an example. Likewise, the International Court of Arbitration for Sport is another such organization.

The Global Administrative Law & Terrorism

The Global Administrative Law has been frequently used in relation to terrorism. Since 9/11, many resolutions have been passed by the UN Security Council, which constituted an active legal regime about terrorism and obligated states to follow certain measures as part of international law. A recent example is UNSC Resolution 2178 (2014) that was passed by the Security Council during the annual UNGA session. It has over fifteen recitals, and twenty-six measures to deal with ‘foreign terrorist fighters’. The Resolution is a sequel to earlier Security Council Resolutions especially 1267 (1999), 1333 (2000), 1373 (2001), 1624 (2005) and 2129 (2013), all passed under Chapter VII of the UN Charter. Resolution 2178 (2014), in its recital 2, records that ‘the terrorism threat has become more diffuse, with an increase, in various regions of the world’, thus, acknowledging the increase in terrorism despite long wars in Afghanistan and Iraq. The Resolution has not defined ‘foreign terrorist fighter’ and has called upon the Member States to counter ‘the violent extremist narrative’ (in para 16 regarding measures to be taken). The Resolution is hollow as is abstract in its formulation.

Anyhow, like its preceding Resolutions, it is also likely to invite resistance from national and regional judiciary. Not long ago, European Court of Justice (ECJ) in the EU resisted the legality and automaticity of the UNSC Resolutions in Kadi Case in 2005. The brief facts are that the UNSC, through its Resolution 1267 (1999), established a ‘Sanctions Committee’ responsible for designating the financial resources linked to Taliban.

In 2000, through Resolution 1333, the UNSC authorized the Sanctions Committee to maintain a list of the individuals and entities related to Osama bin Laden and obligated the states to freeze funds related to Taliban and Osama. The EU, through its Council Regulation 881/2002, tried to implement the Resolutions 1267 and 1333 and froze assets and funds of two persons named Kadi and Yusuf. Both contested the legality of Council’s Regulation 881/2002 on the basis of their fundamental rights. Their plea was that the Regulation 881/2002 violated their rights to be heard, respect for property, and effective judicial review. The ECJ held that the Council Regulation 881/2002 violated the rights of hearing and of judicial review of Kadi and Yusuf. The net result of the judgement was that the two UNSC Resolutions were not implemented in the EU. The primary condition of no one can be condemned unheard was apparently violated through the Resolutions and the Regulation issued to enforce them.

Concluding Remarks

Many of the UN Security Council resolutions on Kashmir and Palestine are Chapter VI Resolutions, which are per se non-enforceable; whether they make part of the Global Administrative Law, or was the international law the only legal regime available at that time, is a moot point worth legal research project. For a keen student of international law and relations, the emergence of the GAL is very much a reality and it is hoped that this article will help further build understanding on the subject.

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