Global Administrative Law: Implications for National Courts

Global Administrative Law: Implications for National Courts

Description

How should a legal or governance institution appraise an administrative rule or decision concerning global regulatory governance made by an institution or agency that is not part of the same politico-legal system? In this essay I address one sub-set of these situations: the question of how a national court should appraise a governance decision or administrative rule adopted by an external institution even though that decision or rule may have no binding force in international law nor any formal status in the law of the forum. As with many topics in the emerging field of global administrative law, the issue is only just coming to be clearly delineated. As such, there is no standard line of analysis of the problem among national courts. However, the number of cases raising such questions can be expected to grow rapidly in parallel with the rapid proliferation of global governance norms. This essay therefore suggests the possibility of a standardised approach that can be informed by concepts and ideas from global administrative law. In their 1997 decision rejecting a complaint by the Air Line Pilots' Association that certain disclosures from the cockpit voice recorders of a crashed aeroplane would be inconsistent with the Annex on Aircraft Accident and Incident Investigation to the Chicago Convention on International Civil Aviation of 1944, Justice Kenneth Keith and his colleagues on the New Zealand Court of Appeal were, in effect, dealing with, and participating in, a form of global regulatory governance. A state party can elect to depart from, or not to apply in domestic law, the Standards and Recommended Practices that appear in Annexes to the Chicago Convention and are revised regularly. However, the actual practical operation of the different Standards and Recommended Practices does not follow the uniform system that determines their formal legal status, but varies depending on the topic and phrasing of the particular Standard or Recommended Practice, and on market or bilateral pressures such as the threat of exclusion from United States airspace for non-compliance with some provisions. The approach taken by Ken Keith and his colleagues on the Court of Appeal has led New Zealand Air Line Pilots' Association v Attorney- General (Air Line Pilots' Association) typically to be classified as a decision on “international treaties in national law”. To be sure, it is rightly regarded as a robust and sophisticated example in this category: the Court's careful handling of clause 5.12 of Annex 13 on cockpit voice recordings included fine-grained distinctions between this and other Standards and Recommended Practices as well as close analysis of the relevant New Zealand legislation. We can also see this case in a slightly different way, as one of many situations where a national court determines how it will appraise, and what weight to give to, a governance decision or administrative rule adopted by an external institution. It is of course important to consider the status in international law of the relevant rule or decision, and the effect given to this category of rule or decision in the national law of the forum. But inquiry may also be needed into other questions. What formal authority and status does the rule or decision have in the system within which it was made? How was it made (issues of process)? How does the governance regime actually work and how is it understood by its main participants or constituencies? How does this align with the public policy of the forum, and perhaps with broader public and governmental interests? What role could properly and usefully be played by the national court? The national court has responsibilities to its national public and to the State for its exercise of power; but the court may also have a functional if unarticulated role in the relevant global governance regime, and may even have responsibilities to others involved in that regime or affected by it who are not parties to the particular case. Operationalising this broader contextual view of the governance of the issue can be very difficult. How can the court be confident that it is well-informed on those broader issues? What are the sources of norms to be applied within such a governance system and, in any case, to what extent, if at all, should these governance considerations displace the outcome that would result from application of the formal law of the forum (including international law where the forum's law provides for that)? It may be thought that the problems in operationalising this broader “governance” approach mean it should not be pursued. In my view, these problems must be faced no matter what framing is used. Thus, although it certainly does not use the language of governance, we can see the Court of Appeal in Air Line Pilots' Association grappling with some of these questions—trying to determine how the Chicago Convention system of global governance works, and what weight different elements of it should have for a New Zealand court if the formal status of these elements has not already been precisely worked out in New Zealand law, as well as what the consequences might be if the New Zealand courts act in a particular way.

Source Publication

Seeing the World Whole: Essays in Honor of Sir Kenneth Keith

Source Editors/Authors

Claudia Geiringer, Dean R. Knight

Publication Date

2008

Global Administrative Law: Implications for National Courts

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