The Role and Limits of Global Administrative Law in the Security Council’s Anti-Terrorism Programme

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Citation: 2009 Acta Juridica 32
• Author: CH Powell
• Pages: 32-67

The Role and Limits of Global

Administrative Law in the Security

Council’s Anti-Terrorism Programme

C H POWELL*

University of Cape Town

I INTRODUCTION

On the one hand, casting global governance in administrative terms might

lead to its stabilization and legitimation in ways that privilege current power-

holders and reinforce the dominance of Northern and Western concepts of

law and sound governance. On the other hand, it might also create a platform

for critique. As the extent of global administrative government becomes

obvious (and framing global regulation in traditional terms of administration

and regulation exposes its character and extent more clearly than the use of

vague terms such as governance), the more resistance and reform may f‌ind

points of focus. Thus, from the perspective of smaller developing countries,

global regulatory institutions including the WTO, IMF,World Bank, and UN

Security Council might already appear to be ‘administering’ them at the

bidding of the industrialized countries, which are generally subject to far less

intrusive external regulation. Confronting these issues in administrative terms

may highlight the need to devise strategies for remedying unfairness associated

with such inequalities.

1

Global administrative law (GAL) is presented as a solution to the

imbalance of power between certain global bodies

2

and individuals,

private entities and even less powerful states.

3

In Simon Chesterman’s

terms, GAL can, if consolidated, ‘improve both the quality of decision-

making and the ability of those affected by decisions to protect their

legitimate rights and interests’.

4

* Senior Lecturer, Faculty of Law,University of Cape Town.

1

See B Kingsbury, N Krisch & R Stewart ‘The emergence of global administrative law’

(2005) 68 Law and Contemporary Problems 15 at 27.

2

The f‌ive types of GAL identif‌ied by Kingsbury et al are found in formal international

organizations, in ‘transnational networks of cooperative arrangements between national regula-

tory off‌icials’, in what they term ‘distributed administration’, which is conducted by national

regulators under treaty, network, or other cooperative regimes, in hybrid intergovernmental-

private arrangements, and in private institutions which exercise regulatory functions. See

Kingsbury et al (n 1).

3

N Krisch & B Kingsbury ‘Introduction: global governance and global administrative law

in the international legal order’ (2006) 17 European Journal of International Law 1 at 3–4;

S Chesterman ‘Globalization rules: accountability,power, and the prospects for global adminis-

trative law’(2008) 14 Global Governance 39.

4

Chesterman (n 3) 40.

32

2009 Acta Juridica 32

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At the same time, global administrative law is criticised by the South,

and less developed stakeholders in general, for cementing that very power

it claims to constrain.

5

Critics object, in particular, to GAL’s privileging of

procedure over substance, that is, its tendency to insist on a particular

procedure for decision-making while ignoring the underlying value

structure in which the decisions are taking place. Through this focus, it is

argued, GAL manages to create the impression of a neutral exchange,

while actually serving to further largely western and northern values.

6

In this paper, I investigate and critique the procedural emphasis of the

discipline. Part II attempts to provide a sketch of the ambit of GAL and

analyse its self-limitations. Part III demonstrates the problems which

follow from such limitations through a case study: the United Nations

(UN) Security Council’s anti-terrorism programme.

II GLOBAL ADMINISTRATIVE LAW

The boundaries of GAL are not clear, because its very conception, and

therefore its underlying principles and scope, are still contested.

7

The

following section attempts to delineate both the core content and the

outer boundaries most commonly adopted by GAL scholars.

(1) The concept and boundaries of global administrative law

The outer boundary of GAL is suggested by the very name of the

discipline: it conf‌ines itself to administrative action by administrative bodies,

fencing itself off quite expressly from legislative and judicial activity. Thus

Kingsbury, Krisch and Stewart introduced the discipline in the following

terms:

Conceptually, we believe, administrative action can be distinguished from

legislation in the form of treaties, and from adjudication in the form of

episodic dispute settlement between states or other disputing parties. As in the

domestic setting, administrative action at the global level has both legislative

and adjudicatory elements. It includes rulemaking, not in the form of treaties

negotiated by states, but of standards and rules of general applicability adopted

by subsidiary bodies. It also includes informal decisions taken in overseeing

and implementing international regulatory regimes. As a matter of provisional

delineation, global administrative action is rulemaking, adjudications, and

other decisions that are neither treaty-making nor simple dispute settlements

between parties.

8

5

C Harlow ‘Global administrative law: the quest for principles and values’ (2006) 17

European Journal of International Law 187; B Chimni ‘Co-option and resistance: two faces of

global administrative law’IILJ Working Paper 2005/16; Krisch & Kingsbury (n 3) 4.

6

Harlow (n 5); Chimni (n 5).

7

Kingsbury et al (n 1); Krisch & Kingsbury (n 3); Harlow (n 5).

8

Kingsbury et al (n 1) 17. See also Krisch & Kingsbury (n 3) 3.

33SECURITY COUNCIL’S ANTI-TERRORISM PROGRAMME:ROLE AND LIMITS OF GAL

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This description of GAL does not exclude rule-making, but it distin-

guishes between legislation in the form of treaties and rule-making by

‘subsidiary bodies’. The picture that emerges is that administration is the

process of regulating and implementing laws and programmes which have

been created by primary bodies. The reference to treaty-making suggests

that the primary bodies are states; on the other hand, GAL scholars warn

against the rigidif‌ied parameters of traditional international law, proposing

a more f‌lexible global legal system which includes subjects other than

states.

9

The primary rule-maker might therefore be an international

organisation or transnational grouping. From the description of Kings-

bury et al, however, it appears that global administrative law steps in once

the international regime is in place. As a result, it can be used to challenge

only the regulations and decisions of an administrative body, not the

underlying (legislative or constitutional) framework within which this

body operates.

At the symposium,

10

I therefore argued that GAL did not deal with

international legislation – in my case study, legislation by the UN Security

Council. One response to my argument rejected the line I had drawn

between legislation and administration. The objection was that what I

had presented as ‘legislation’ might instead be conceived as regulation –

that is, subordinate legislation, carried out within the enabling framework

of the UN Charter, and therefore falling within the ambit of administra-

tive action.

11

As such, it would be subject to the principles of GAL.

This objection goes deeper than nomenclature. Global administrative

law scholars see domestic administrative law as merely one of the sources

of global administrative law,

12

and warn against attempts to structure

global governance in too blind and unref‌lective a manner after the

domestic constitutional system.

13

Am I not, then, simply imposing a limit

on GAL by giving one particular (domestic) title to Security Council

action?

I submit that the limits are derived not so much from the formal

categorisation of the activity under review, but from the nature of the

tools which GAL offers for critique and analysis. As David Dyzenhaus’

contribution to this volume shows, even within the discipline of adminis-

trative law, GALnarrows its focus to one particular type of subject matter.

9

Kingsbury et al (n 1) 31.

10

GlobalAdministrative Law Workshop, University of Cape Town, March 2008.

11

I thank Halton Cheadle for this point, and my SJD colleagues at the University of

Toronto,Michael Fakhri and Umut Özsu, for their comments on this issue.

12

Kingsbury et al (n 1) 31–37 and 53ff.

13

Kingsbury et al (n 1) 26; 28–29.

34 GLOBAL ADMINISTRATIVE LAW

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