A Basis for Governing: Legitimacy, Accountability, and the Value of Uniform Principles for Global Administrative Law

Abstract

One of the most significant developments in international law over the past two decades has been the rise of transnational administrative entities with binding rulemaking and adjudicative power. Their emergence is noteworthy because their authority is not based in a single, traditional source of law, but rather a hybrid of two – international law, characterized by customs and treaties, and administrative law, historically grounded in constitutional and statutory sources. As a result, the doctrine of global administrative law (GAL) has developed over the past decade to explain the background, principles, mechanisms, and social understandings that underpin this new legal construct. A point of contention among GAL scholars, however, has been whether the academy should advocate for a series of “uniform principles” to provide normative and doctrinal foundations for nascent GAL institutions, or whether pluralism is preferable. Additionally, GAL’s critics have repeatedly charged that it lacks political legitimacy to support its legal authority.

This Article is the first to advocate for a series of uniform principles to guide the development of global regulatory organizations. The central claim of the Article is that transnational entities with regulatory authority should adopt due process principles and procedural protections, as well as promote fairness, transparency, and participation. In order to demonstrate the value of these proposed principles, this Article examines the experience of the World Trade Organization (WTO), which is among the most successful examples of the new generation of global governance institutions. Established on January 1, 1995, to provide oversight for the area of international trade, the WTO has emerged as the “ne plus ultra” among supranational regulators because of its nearly universal membership, its well-developed judicial functions, and its significant progress in achieving its core objectives. Further, and important for this Article, the WTO has widely adopted the proposed uniform principles.

The WTO’s experience in applying these principles demonstrates their value in improving two key areas of performance for global governance: utilization and compliance. Moreover, this Article employs international law theory to explain why the WTO’s implementation of the uniform principles has enhanced its effectiveness, and why these same principles should guide the development of other GAL organizations. As the number of transnational entities with binding regulatory and adjudicative power continues to grow, these principles may help bolster their performance and, consequently, serve to advance global “good governance.”

Keywords: Global Administrative Law, GAL, Transnational, Regulation, Regulatory, Principles, Due Process, Fairness, Transparency, Participation, Legitimacy, Accountability, World Trade Organization, WTO, Governance