The Separation Of Powers Doctrine And Administrative Law The Hobbesian period of international relations has come to an end, and the age of global rule of law has begun, as shown by recent advancements in international law, which are being hailed as an indication of this transition. One of these changes is the emergence of something called global administrative law. As a departure from the Westphalian tradition, global administrative law is seen as having originated from the pragmatic requirements of transboundary regulation, which were supported by a normative goal to establish a worldwide rule of law. Nevertheless, in order to break with the state consent-centered formalism that is prevalent in international law, a dual issue would emerge: legality and legitimacy.1 The former would be concerned with the question of how to differentiate between law and nonlaw, while the latter would be concerned with the democratic basis of global administrative law. Regarding legality and legitimacy, international attorneys are not unfamiliar with the challenges that they face. In the first place, the issue of what exactly constitutes jus cogens has never been resolved, and this is in addition to the obligatory rules that have been stated in treaties and ruled by international courts. Controversy continues to surround the question of whether or not the assent of states is the necessary condition for the validity of the international legal system. On the other hand, state consent serves as the common ground that academics of many persuasions may agree upon when it comes to determining what is required for the validity of international law. To add insult to injury, the incorporation of jus cogens into national legal systems is decided in light of national constitutions, which are considered to be the ultimate expression of the will of the nation. This is because the issue of legality concerning jus cogens has been translated into one of legal and constitutional interpretation. As a result, the ultimate answer to the concerns of legality and legitimacy that are confronting conventional international law is the permission of the sovereign. However, when seen from the point of view of the contemporary practice in international law, especially global administrative law, state consent is not the answer to the issue of the world order; rather, it is the problem that constitutes the world order. Traditional international law, which was founded on the agreement of states, was ultimately overthrown by state sovereignty. In light of this, the concept of global administrative law is thought of as being independent of state agreement. The fact that global administrative law, which is the paradigmatic example of current international law, deviates from the concept of state consent, on the other hand, calls into question the voluntarist perspective on the international legal system that was previously discussed. Where does the legitimacy of global administrative law come from if it does not have the legal basis of legitimacy that is built in the agreement of states? Furthermore, the constitutionality of global administrative law becomes unclear when it is apart from the sovereign governments that govern it. Because of this, contemporary international law, in general, and global administrative law, in particular, are susceptible to the enchantment of legitimacy deficit and are plagued by the dilemma of how to differentiate between law and non-law. In his article titled "The Concept of "Law" in Global Administrative Law," Benedict Kingsbury makes an effort to provide a solution to this dual problem of legality and legitimacy. He does this by focusing the new paradigm of international law, which is exemplified by global administrative law, on the concept of publicness. This global administrative space is increasingly occupied by transnational private regulators, hybrid bodies such as public-private partnerships involving states or inter-state organizations, national public regulators whose actions have external effects but may not be controlled by the central executive authority, informal inter-state bodies with no treaty basis (including ‘ coalitions of the willing ’ ), and formal interstate institutions (such as those of the United Nations) affecting third parties through administrative type actions. The administration of global governance is characterized by a significant amount of decentralization and lack of systematic execution. In the context of global regulatory control, some organizations are assigned duties that they may not have desired, have been specifically built for, or have been well prepared for. For instance, national courts may find themselves in the position of reviewing the actions of international, transnational, and especially national bodies that are in the process of administering decentralized global governance systems. Furthermore, in certain instances, the national courts themselves may be a part of not only the review but also the actual administration of a global governance regime. Due to the fact that global administrative law is practiced at multiple sites, the analysis is further complicated. This is because GAL norms are also entangled with other sources of obligation that are applicable to that site. These sources may include the national law of the place, the constituent instrument and regulations of the institution that applies the norm, contracts that establish private rights, or rules of international law on other matters. If a claim to 'law' is made in the process of applying the term GAL in some of these cases, it is a claim that diverges from, and may be strongly in conflict with, the traditional models of consent-based inter-state international law and the majority of models of national law. The fact that this is the case makes it all the more important to take measures toward the thorough explanation of the legal concept(s) that are (or are) involved in the general understanding of GAL. The phenomena of globalization, which is the phrase that is frequently used to imply the propensity for commerce, investment, services, labor relations, and migration patterns to be more structured on a worldwide scale, has had a significant influence on the arrangements that nation-states have made for their governments. The question of whether or not globalization has resulted in a weakening of the state is still being vigorously debated. On the other hand, there is no question that it has resulted in the establishment of intricate governmental structures on the national, regional, and worldwide levels. Some academics have argued that we are currently witnessing the emergence of a new institutional configuration that could be referred to as "global administrative law." This is due to the fact that the pattern of governing arrangements that is evolving is becoming more complicated. This is especially true when considering the growth of international and regional bodies that are equipped with a wide range of regulatory powers. Currently, the characteristics that define this global administrative law are rather fluid. Despite the fact that this continues to be the case, many people may question whether the rule-making powers or regulatory practices of international organizations possess sufficient authority to constitute a separate system of administrative law in its own right. Despite this, the problems that are brought about by the expanding regulatory powers of international organizations continue to be essential topics of discussion and investigation. This is not the least of the reasons why these capabilities have the potential to be used in order to exert control over the regulatory authority of national governments. This essay makes a contribution to the current discussion that is taking place. It does this by promoting the thesis that the regime of international investment arbitration, which has been rapidly developing since the 1990s, provides not only a singularly important and under-appreciated manifestation of an evolving system of global administrative law, but that, due to its unique features, it may in fact offer the only exemplar of global administrative law, strictly construed, that has yet to emerge. This is the way that it accomplishes this. Since the late 1960s, and particularly in the 1990s, states have given their approval to an international regime that allows foreign investors (also known as multinational corporations) to have the ability to file and enforce international claims against states in cases where disputes arise as a result of the state's regulation of investor assets. The arrangements that have been made in order to pursue these claims are, in a number of significant aspects, exceptional. There should be a particular emphasis placed on four aspects. The first thing to note is that these kinds of claims are often not subject to the usual constraints that are imposed on individual claims under other kinds of treaties. These limitations include the obligation of a person to exhaust local remedies, which is known as the principle of individualization. Second, according to the damages principle, according to investment treaties, investors have the ability to immediately submit claims for damages, which are given as a public law remedy. Lastly, due to the fact that investment treaties incorporate the procedural framework and enforcement structure of international commercial arbitration, investors have the ability to directly seek enforcement of the awards of arbitration tribunals before the domestic courts of a large number of countries, with limited judicial supervision by domestic courts (this is referred to as the principle of direct enforceability). In conclusion, investment treaties make it easier for investors to pick the forum in which they want to conduct their business. This is accomplished by allowing investors to selectively form holding companies, which in turn broadens the scope of investment arbitration as an international mechanism for adjudicative review (the forum-shopping concept). The impact of this combination of characteristics, which is only seen in investment arbitration, is to submit the regulatory behavior of governments to control via forced international adjudication to a level that is not typical. Investment arbitration should be seen as a powerful species of global administrative law. This is exactly due to the fact that these adjudicative norms and processes that are established on a worldwide scale have the ability to have a significant disciplinary impact on programmes that are administered on a domestic level. The question of the status of the margin of appreciation doctrine has been brought to the forefront of contemporary debates on the legitimacy and effectiveness of international adjudication in general, as well as its capacity to introduce meaningful rule of law restrictions on the actions of powerful states in particular, as a result of three recent decisions made by the International Court of Justice (ICJ): Oil Platforms, Avena, and Wall in the Occupied Palestinian Territory. There is a connection between the question of whether international courts should adopt non-intrusive standards of review and the contemporary discussions on the subsidiary nature of international law. More specifically, the question of whether international law should adopt a centralized or decentralized vision of organization is connected to the question of whether or not international courts should adopt a margin of appreciation type decision-making methodology. In the three decisions that were mentioned earlier, the Supreme Court took a position that was inconsistent with regard to the acceptability of the margin of appreciation doctrine. In the decisions regarding Oil Platforms and Wall in the Occupied Palestinian Territory, the doctrine was rejected, either explicitly or implicitly. On the other hand, in the case of Avena, the Court adopted a more hospitable attitude towards its application. Additionally, this state of uncertainty is further compounded by the fact that some judges of the International Court of Justice (ICJ) have written Separate Opinions in Oil Platforms. These opinions call into question the appropriateness of the approach that was taken by the majority. Additionally, there has been an increased readiness among international courts other than the ICJ to adopt a methodology that is of the "margin of appreciation type." The objective of this article is to provide preliminary guidelines for the future application of the margin of appreciation doctrine, as well as to evaluate the current status of the doctrine under international law, as it is applied by international courts and tribunals, on the one hand, and by national authorities, on the other hand. As a matter of fact, the question of whether or not global administrative law is anything more than an intellectual pipe dream is a rather irrelevant subject. In the course of his discussion of the dense regulatory mass of international standards that is already imposing itself on national administrative law, Cassese is of the opinion that it is at the very least a prospective possibility. Snyder feels more comfortable referring to the concept of a "system of global legal pluralism," which is based on "a variety of institutions, norms, and dispute resolution processes located and produced at different structured sites around the world." Kings bury, Krisch and Stewart, in a paper written for the global administrative law project, suggest five potential sites in which global administrative law may be developed and through which it might be spread: (i) inside formal international organizations, notably the United Nations Organization (UN), the Security Council, or the World Health Organization; (ii) in systems of distributed administration set in place under treaty regimes, notably the GATS and WTO, where autonomous dispute resolution machinery has also been established; (iii) by transnational networks of administrative actors engaged in agenda-setting and other joint (governmental) enterprises; (iv) by groups of private institutions or hybrid groupings, which possess delegated regulatory functions, such as the Commission on Food Safety Standards, responsible for the Codex Alimentarius; and finally (v), as self-regulatory schemes of apparently private bodies, such as the International Olympic Committee, World Anti Doping Agency or International Court of Arbitration for Sport. As a growing number of state duties are carried out on a worldwide scale, the notions that have traditionally served as the foundation for politics and law are coming under increasing amounts of strain. The self-understanding of international law as an order that organizes commonality across very varied value systems is called into question by those who refuse to give up democracy and constitutionalism simply due to the fact that the exercise of public authority has now migrated to the international level. Similarly, the extension of the guiding principles of domestic law and politics to global governance is fraught with significant challenges; these ideas often lose their normative validity as a result of the many political and social situations that exist in the global domain. The purpose of global administrative law is to investigate these challenges from the perspective of accountability. It inquires as to whether or not concepts from domestic administrative law may assist us in resolving issues of accountability in global government, and to what degree this is possible. According to the definition of accountability, which states that "[t]o be accountable means to have to answer for one's action or inaction, and depending on the answer, to be exposed to potential sanctions, both positive and negative," the majority of institutions are accountable. This is most clearly the case for a government that is forced to resign from office after losing elections; but, it also applies to other organizations, such as courts, which are subject to reputational consequences if their decisions are not well received by their peers and the general public, as well as to commercial businesses. Any firm is answerable to the market, and in the most specific example, to the stock market. The board of directors of a corporation is liable to the shareholders of the shareholder company. As a similar point of reference, the majority of global governance institutions are responsible in this way. The will of the nations that are members of the World Bank, particularly those governments that have considerable voting rights, must be taken into consideration by the World Bank. Just as the United Nations Security Council is highly responsible to its members and, in a more dispersed manner, to the wider membership of the United Nations, the Financial Action Task Force (FATF) is intimately related to the narrow circle of its member entities. In other words, the FATF is closely connected to its members. In addition, a private organization such as the International Organization for Standardization (ISO) is responsible not just to all of the organizations who are members of the organization but also to the market, which is required to accept the market's standards. In the 17th century, there were a number of influential people who made considerable references to Jewish sources in their philosophy of the law of nature and nations. The references that are of interest for the historical development of international law and the history of political thought are those that are now unfamiliar beyond a small circle of specialists.1 Several decades ago, my attention was drawn to the work of the late Shabtaï Rosenne, which was titled "The Influence of Judaism on the Development of International Law: A Preliminary Assessment." Rosenne investigated writings from the late 16th century and the early 17th century on (i) issues that were generally considered to be specific to international law, such as the law of the sea (Grotius and Selden), diplomatic law (Gentili), or the law of war (Ayala, Gentili, Grotius, Zouche, and Rachel), and (ii) works of law and philosophy with developments on the law of nature and nations (de jure naturae et gentium) (Selden, Pufendorf, and Rachel). When considering the laws that control states, Rosenne demonstrated that commentators of the period referred not only to natural law, Roman law, and the positive law of the several states, but also to Hebrew law as it emerged from readings of the Bible and post-biblical Jewish sources. This was the case when they were considering the idea of laws that rule states. These scholars either admitted that Hebrew law had some religious authority or believed that a portion of it (the so-called Noa'hide Laws) was the most accurate embodiment of natural law. Both of these interpretations are possible. Rosenne shown, via the examination of Gentili, Grotius, Selden, and Pufendorf, the extent to which these writers, who were among the most influential leaders in the development of international law, had taken Hebrew sources into account. If one were to interpret the term "global administrative law" by analogy with the understandings of its national sister, it would conjure up visions of a world state and the legal norms that regulate the exercise of power by the bureaucrats of that state. The supply of water services in metropolitan areas, on the other hand, conjures up whole new images: hybrid mixtures of public and private players connected in routines of both official and informal engagement at many levels of governance. The purpose of these four brief vignettes, which are sketched in this preamble, is to capture the concrete dynamics of urban water service delivery in a manner that will assist in linking them to the abstractions of global administrative law. These images are essential to an understanding of the emergence of global administrative law as well as its limits. In the first scenario, residents of the province of Tucumán in Argentina have seen an increase in their prices as a result of a private concession deal with the French multinational corporation Vivendi that is for a period of thirty years. As a means of defending their stance, they stop paying their bills and file administrative dispute documents. It is ultimately decided by Vivendi that they will not be shut off, but they do dispute the issue to the regulatory body and the provincial government, and they finally file a lawsuit with an international tribunal. However, political conflicts persist over whether or not to provide power to the water corporation to disconnect water services, despite the fact that the water distribution system in the province has been returned to public control after eight years. The second scenario depicts a situation in which inhabitants of a township in Durban, South Africa, are cut off from their water supplies due to the fact that they have not paid their bills for a number of years. At midnight, "Moonlight plumbers" reconnect them, constitutional challenges are made in court, and there is a widespread presence of direct protest on the streets. It is a local public operator that has been praised for its creative approach to combining financial honesty with social responsibility. The firm in question has garnered honors for this method. In the third scenario, Bolivian residents in and around the town of Cochabamba discover meters affixed to lengthy pre-existing wells by a private concessionaire located in the United States. This concessionaire has signed a 20-year deal with the local government to manage and administer their water services. It is now necessary to pay for the water that is pulled from the well, since the meters are used to assess their water use. It is not the law that the people turn to, but rather the streets, in such great numbers that they cause riots, and within a period of six months, the government has canceled the concession. Within these three vignettes, the social activists are aware of the other tales and derive inspiration from the co-existence of those who are in circumstances that are comparable to their own. The international firms that are engaged in this predicament have also accumulated equivalent and analogous experiences. For example, at least one of them organizes an annual gathering for all of its worldwide subsidiaries to discuss and share techniques for dealing with circumstances like this. In Chile, where water services are totally privatized, the rates of disconnection are modest, and social opposition is also limited. This is shown in the fourth vignette, which offers a different picture. An employee of a trade union makes a sardonic observation in response to this scenario, saying, "Here, it's not like in Argentina, where people are burning things in the streets because the electricity is cut off." To put it simply, folks in Chile go out and get lights and candles. There has been a strong discussion regarding the role that law ought to play in the process of globalization, which has been triggered by the rising integration that is characteristic of the contemporary time of globalization. On the grounds that these procedures are not accountable and legitimate, there are many who criticize the international "law-making" that is carried out by sub-national actors and the "regulatory net works" that are comprised of bureaucrats. Those who subscribe to the "new sovereigntist" school of thought contend that national arrangements of power for law-making at the state and federal levels are wrongly displaced by customary international law. Still others question the emergence of transnational networks that seem to function without any sort of legitimacy or responsibility. They demand for more public engagement and transparency in treaty-based institutions such as the World Trade Organization (WTO). By that term, Kingsbury and his co-authors mean ‘the structures, procedures and normative standards for regulatory decision making...that are applicable to formal intergovernmental regulatory bodies; to informal intergovernmental regulatory networks, to regulatory decisions of national governments where these are part of or constrained by an international interwoven mental regime; and to hybrid public-private or private transnational bodies’. The primary argument is that there is, or ought to be, a global administrative law that governs the behavior of international entities and national governments in international matters, and that in some way responds to the normative desire, which is shared in many ways with domestic administrative law, for accountability, fairness, protection of individual rights, and some sense of democratic decision-making. This is the fundamental contention.