Whose Administrative Law Is It Anyway? How Global Norms Reshape the Administrative State

44 Pages Posted: 19 Jul 2013 Last revised: 20 Mar 2014

Daphne Barak-Erez

Tel Aviv University - Buchmann Faculty of Law

Oren Perez

Bar-Ilan University - Faculty of Law

Date Written: July 18, 2013

Abstract

The emergence of global norms of administrative law reshapes the administrative state. In many areas, covering diverse topics such as trade, financial regulation, public health and the environment, various international agencies have acquired increasing influence over domestic regulatory processes. The integration with the global arena requires the state to forgo some of its regulatory powers. This Article focuses on the normative challenges posed by this new reality. Part I explicates the way in which the argument presented differs from the global administrative law literature. Whereas global administrative law studies the meta-norms that regulate the activities of global administrative bodies, we focus on the way in which international norms reshape decision-making processes within domestic bureaucracies. This Article develops an analytical schema that captures the distinct impacts of global administrative law on the domestic level. This schema distinguishes between three forms of influence: the substitution of domestic administrative discretion by global standards, the emergence of universal standards of administrative due process, and the globally inspired transference of enforcement responsibilities. Part II maps the various mechanisms through which transnational regulatory processes intervene in the local realm, reshaping the contours of domestic administrative law. The Article takes a pluralistic approach by highlighting the diverse sources and paths through which global law influences the domestic realm. Thus we focus both on the influence of the WTO system, as reflected in the three recent rulings against the U.S. (the Tuna-Labeling, Clove Cigarettes and Country of Origin Labeling (COOL) Requirements cases) and on the influence of private transnational institutions such as the International Organization for Standardization, certification bodies such as Social Accountability International (SAI), and regulatory scientific institutions such as the International Commission on Non-Ionizing Radiation Protection (ICNIRP). Part III proceeds to examine the normative challenges posed by these transnational regulatory processes. We start by exploring the hidden ideological agendas of this new global normative body, highlighting especially its neo-liberal, capitalist origins. We then move to discuss the problematic of fragmented accountability regimes. These reflections question the legitimacy of the new body of globalized administrative law and point to the need to adapt our democratic conceptions and practices to this new reality. In this context, our approach steers a middle course between the extremes of sovereign exceptionalism and global constitutionalism, focusing on the potential of administrative law for democratic innovativeness.

Suggested Citation

Barak-Erez, Daphne and Perez, Oren, Whose Administrative Law Is It Anyway? How Global Norms Reshape the Administrative State (July 18, 2013). Forthcoming, Cornell International Law Journal, Vol. 46, No. 3, 2013. Available at SSRN: https://ssrn.com/abstract=2295550 or http://dx.doi.org/10.2139/ssrn.2295550

Daphne Barak-Erez

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Oren Perez (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel
+972-3-5317798 (Phone)
+972-3-5351856 (Fax)

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