Advanced Introduction To Global Administrative Law

Advanced Introduction to Global Administrative Law
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CASSESE_9781789904215_t.indd 2 21/01/2021 11:39

Advanced Introduction to
Global
Administrative
Law
SABINO CASSESE
Professor of Global Law, LUISS Guido Carli University, Rome, Justice Emeritus
of the Italian Constitutional Court and Professor Emeritus, Scuola Normale
Superiore of Pisa, Italy
Elgar Advanced Introductions
Cheltenham, UK • Northampton, MA, USA
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© Sabino Cassese 2021
All rights reserved. No part of this publication may be reproduced, stored in a

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Contents
1 In the labyrinth of globalization 1

1.1 From the “international” to the “global” 1
1.2 The world was “born global” 3
1.3 Resurgence of the state, or globalization? 4
1.4 The interplay of global problems and national policies 10
1.5 The benefits and imbalances produced by
globalization12
1.6 The system of global powers 16
1.7 About this book 17
2 The global legal space at a glance 19

2.1 Lawmaking, administration and jurisdiction 19
2.2 The shape of the global legal space 20
2.3 Global standards and cooperation 23
2.4 The global executive bodies 25
2.5 Global courts 26
2.6 Is there a global democratic deficit? 27
3 The global legal space in detail 28

3.1 The rapid development of the global legal space 28
3.2 States and global networks: a multilevel ordering? 28
3.3 Rulers without a government 30
3.4 The empire of “adhocracy” 32
3.5 An absolute government? 33
3.6 Judicial globalization 34
3.7 The global constitution 37
3.8 The globalization of democracy 38
3.9 Cui prodest? 40
4 Administrative globalization 41
4.1 Globalization today 41
4.2 An “administrative” form of globalization 42
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vi ADVANCED INTRODUCTION TO GLOBAL ADMINISTRATIVE LAW
4.3 The global regulators/national administrations

dialectic43
4.4 The chameleon state 44
5 The global administrative machine 45

5.1 Global actors and their networks 45
5.2 How the global administrative machine works 47
6 Regulation, adjudication and dispute settlement beyond the

state53
6.1 The globalization of regulation 53
6.2 Global adjudication 57
6.3 Settling disputes through courts 58
7 National administrative cultures and global regulators 61

7.1 Transplanting national institutions into the global
space61
7.2 The origins and the evolution of international
secretariats63
7.3 The establishment and development of the
International Civil Service Commission 66
8 The international role of domestic bureaucracies 69

8.1 The impact of globalization on national
bureaucracies69
8.2 The distribution of international affairs among
national agencies 71
8.3 The permanent missions as brokers between national
and international administrations 72
9 Global administrative law: the principles 74

9.1 Does a global rule of law exist? 74
9.2 Administrative law in the liberal state 75
9.3 The right to be heard in global administrative law 76
9.4 The global duty to give reasons 77
9.5 Global judicial review 78
9.6 The development, limits and original features of the
global rule of law 80
10 Global administrative law: the implementation of

principles 82
10.1 Is international law immature? 82
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CONTENTS vii
10.2 The pervasiveness and complexity of legal

globalization: five cases 83
10.3 The rule of law at national and global levels 90
11 Towards global justice and democracy? 92

11.1 Public authority in modern legal systems 92
11.2 Quod omnes tangit, ab omnibus approbetur 93
11.3 Does legal globalization reduce democracy? 93
11.4 Fundamental rights between global law and state law 95
12 National governments and globalization 98

12.1 The end of states? 98
12.2 The system of world powers 98
12.3 States in the globalized world 99
12.4 The erosion of the state: an irreversible trend? 100
12.5 The state reacts 103
12.6 In conclusion 105
Further reading 109

Index119
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CASSESE_9781789904215_t.indd 8 21/01/2021 11:39
1 In the labyrinth of globalization1
1.1 From the “international” to the “global”
Traditionally, beyond the law of the state, there existed the body of law
known as jus gentium (or jus inter gentes). This definition survives in
the German term Völkerrecht, but was eventually replaced by the word
“international”, coined by the English philosopher Jeremy Bentham.2
Bentham used the term to indicate interactions between one nation
and another (both of which are sovereign).
The international legal space has long been considered as a source of

“higher” law due to the medieval notion of imperium romanum, which
persists to the modern era. With the development of nation-states and
the concept of state sovereignty, international law became a transac-
tional law, that is, one resulting from agreements– e ither conventions
or treaties– between states. A sharp divide between domestic law and
international law was thus established.3
By the beginning of the twentieth century, and especially after World

War I, a wealth of new concepts and words had emerged:
1. international administrative law, meaning the law relating to

international unions, in the early phase of their history;4
1 I wish to thank Bruno Carotti, Martina Conticelli, Maurizia De Bellis, Elisa D’Alterio, Elisabetta
Morlino and Valentina Volpe for their comments on a previous version of this book and Sarah
Pasetto for her linguistic and editorial work.
2 J. Bentham, Principles of International Law, Bowring Edition of Bentham’s Works, vol. 2, 1843.
3 H. Triepel, Völkerrecht und Landesrecht, Leipzig, C.L. Hirschfeld, 1899 (Italian translation, Turin,
1913).
4 The German and Italian debates on the concepts of international administrative law and
administrative international law are summarized in U. Borsi, “Carattere ed oggetto del diritto
amministrativo internazionale” (1912) Rivista di diritto internazionale 368 ff. See also Y. Okitsu,
“International Administrative Law, a Precursor of Global Administrative Law?”, in J.B. Auby
(ed.), Le futur du droit administratif, Paris, LexisNexis, pp. 445 ff; S. Battini, “International
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2 ADVANCED INTRODUCTION TO GLOBAL ADMINISTRATIVE LAW
2. administrative international law (or institutions), the law

regulating the relationships between international organizations
and their officials;
3. international institutional law, the law regulating the internal
machinery of international organizations;
4. supranational law (or institutions), the law of organizations
standing above states, such as the European Union (EU);
5. transnational relations, which are “cross-border interactions
involving non-state actors– multinational corporations, non-
governmental organizations, epistemic communities and
advocacy networks”;5
6. post-national governance, a term that has supplanted “global
governance”, as most international institutions are far from
global in nature (for example, not all members of the United
Nations– UN– are members of the World Trade Organization
–W TO);
7. transgovernmental networks, or networks of national regulators;
8. non-governmental organizations (NGOs) and non-state
actors: “[w]hile the terms ‘NGO’, ‘private organization’ and
‘independent sector’ are generally synonymous,. . . ‘non-state
actor’ tries to embrace civil society, private persons, business
enterprises, and pressure groups, at the international, regional,
sub-regional, or even local and grassroot levels . . .”;6
9. global law (or institutions), the higher level of autonomous
law relating to international organizations (however, it is to
be noted that scholars in the French tradition tend to prefer
the word mondialization and certain authors prefer to talk of
“cosmopolitan law”);
10. the global administrative space, the regulatory space that
transcends international law and domestic administrative law,
and is separate from interstate relations;
11. global administrative law, that is, “the mechanisms, principles,
practices, and supporting social understandings that promote
or otherwise affect the accountability of global administrative
bodies, in particular by ensuring they meet adequate standards
Organizations and Private Subjects: Towards a Global Administrative Law?” (2005) 3 Rivista
trimestrale di diritto pubblico 359 ff.
5 T. Risse, “Transnational Actors and World Politics”, in W. Carlsnaes, T. Risse and B. Simmons
(eds), Handbook of International Relations, London, Sage, 2002, p. 268.
6 E. Riedel, “The Development of International Law: Alternatives to Treaty-making? International
Organizations and Non-state Actors”, in R. Wolfrum and V. Roeben (eds), Developments of
International Law in Treaty Making, Berlin, Springer, 2005, p. 301.
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IN THE LABYRINTH OF GLOBALIZATION 3
of transparency, participation, reasoned decision, and legality,

and by providing effective review of the rules and decisions they
make”;7
12. private administrative law, the law’s recognition of private
governance at the global level (for instance, the public
enforcement of standards established by private standard-setting
bodies);
13. regional institutions, organizations that are not worldwide in
scope but rather cover a region, such as Europe, North America,
South America or Southeast Asia; and
14. global regulatory regimes, that include not only international
organizations, but also networks of supranational regulators and
even hybrid and private global regulators.
These new concepts all correspond to new developments in interstate

relations. In particular, they undermine the dualist paradigm envisag-
ing a clear separation between domestic and international law. There
are no longer two separate worlds: rather, international law penetrates
into the national sphere, relying on domestic agencies for its imple-
mentation but also keeping them in check.
Therefore, the traditional approach to international law, which

privileges states over global organizations and treaties over the rules
produced by global institutions, cannot account for the full picture.8
Global administrative law becomes an essential tool to understand
the regulation, adjudication and dispute settlement that takes place
beyond the state (as well as within the state and among states).
1.2 The world was “born global”
World history is a shared story. Civil societies have always maintained

relations with one another and local communities have always been
open. There have always been borders, but these were made to be
overcome, and indeed they were. Historians are becoming increasingly
7 B. Kingsbury, N. Krisch and R. Stewart, “The Emergence of Global Administrative Law” (2005) 68
(3–4) Law and Contemporary Problems 17.
8 International lawyers are rethinking the concept of international law: see P. Schiff Berman, “From
International Law to Law and Globalisation” (2005) 43 Columbia Journal of Transnational Law
1009; A. Marx and J. Wouters (eds), Global Governance, Cheltenham and Northampton, MA,
Edward Elgar Publishing, 2018, and J.-B. Auby, Globalisation, Law and the State, Oxford, Hart,
2017.
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aware of this, and are discovering global history as a discipline: for

example, they now compare Spain’s enduring colonization of Mexico
with the failure of Portuguese penetration into China in the early 1500s.
Only when states and statist nationalism developed did we reconceive

the world as being divided by barriers. The state needed to glorify itself,
and did so by rethinking the world as divided into states. This narra-
tive of the world endured until 30 years ago, when new relations were
established between states, giving rise to what is called globalization.
In fact, globalization is but the continuation of a long history, one that
was interrupted by the formation of states and the rise of nationalism.
Today, over 3 per cent of the world population lives in countries other
than those of their birth, and one-fifth of the global population crosses
the borders of their own country each year.
The usual approach must be reversed: it is not globalization that

prevails over states; on the contrary, states have stood in the way of
globalization in the past few centuries, slowing it down. Its pace is now
resuming, thanks to the movements of the world’s population, mone-
tary and financial exchanges and world trade, as well as, unfortunately,
phenomena on a global scale such as terrorism and global warming.
1.3 Resurgence of the state, or globalization?
According to the Organization for Economic Cooperation and

Development (OECD), in 2018, global foreign direct investment had
dropped by 27 per cent, reaching the lowest levels since 1999. This was
largely due to the tax reform enacted in the United States of America,
which prompted parent companies located there to repatriate earn-
ings held through foreign affiliates. International trade is declining,
and tariff barriers are rising. There is a strong trend towards economic
nationalism throughout the world (as certain countries adopt a grow-
ing number of protectionist measures), and dissatisfaction with supra-
national governments, such as the EU, is expanding. Global regulatory
regimes are criticized for not being entirely “global” (in fact, only some
of them include all national governments); for not placing their member
states on an equal footing; for being too incisive; or, on the contrary,
for being too weak. The WTO is struggling, because the US is pulling
back. Antagonism between the United States and China is dividing the
world. Radical right-wing populists, who support state sovereignty, are
now in power in several countries, such as the United States, Hungary,
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Poland, Turkey, the Philippines, Brazil and Italy. Populist national-

ism is on the rise in many countries, and in countries such as China,
Hungary and Poland, nationalist authoritarianism is too. Global elites
are being criticized for their selfishness, and globalization is under
fire for having produced new inequalities. Public opinion is becoming
increasingly hostile to globalization. Multinational corporations are
accused of disregarding the public interest and of not paying taxes. All
around the world, symbols of nationalism and signs of de-globalization
are on the rise, and national tamers cannot keep global tigers under
control.9
According to Benedict Kingsbury, one of the founding scholars of

global administrative law, in recent years there has been “active resist-
ance” to global governance:
Donald Trump campaigned successfully in 2016 on opposition to [the Trans-

Pacific Partnership, or] TPP and a whole set of other trade agreements.
His administration energetically extracted the US from commitments to
the Paris Climate Agreement of 2015, the UN Educational, Scientific and
Cultural Organization, and the Arms Trade Treaty. It largely opposed
investor-state dispute settlement during the North American Free Trade
Agreement renegotiations, so that its role in the 2018 Canada-Mexico-US
Agreement (USMCA) is much diminished; the US acted assertively against
any glimmers of International Criminal Court action directed to the US;
and (in continuation of Obama-era approaches) it obstructed the WTO
Appellate Body’s replenishment. President Jair Bolsonaro, inaugurated as
President of Brazil in early 2019, employed similar rhetoric on some inter-
national issues (including the Paris Climate Agreement). Within the EU,
nationalist (and in some cases populist) leaders in several countries took
sceptical positions on what had previously been received ideas about the
9 M. Billig, Banal Nationalism, London, Sage, 1995; D. Rodrik, Has Globalization Gone Too Far?,
Washington, Institute for International Economics, 1997; D. Rodrik, The Globalization Paradox:
Democracy and the Future of the World Economy, New York, London, Norton, 2011; H. James,
The End of Globalization. Lessons from the Great Depression, Cambridge, MA, Harvard University
Press, 2001; V. Popov and P. Dutkiewicz (eds), Mapping a New World Order. The Rest beyond
the West, Cheltenham and Northampton, MA, Edward Elgar Publishing, 2017; F. Saccomanni,
Managing International Financial Instability. National Tamers versus Global Tigers, Cheltenham
and Northampton, MA, Edward Elgar Publishing, 2008; R. Baldwin, The Great Convergence.
Information Technology and the New Globalization, Cambridge, MA, Harvard University Press,
2016; P.A.G. van Bergeijk, Deglobalization 2.0: Trade and Openness during the Great Depression
and the Great Recession, Cheltenham and Northampton, MA, Edward Elgar Publishing, 2019;
R. Baldwin, The Globotics Upheaval: Globalisation, Robotics, and the Future of Work, London,
Weidenfeld and Nicolson, 2019.
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European project. . . [We live in times when] the UN Charter order and the
subsisting North Atlantic global governance legacy coexist with re-assertive
nationalism and even deglobalisation in the North Atlantic region, a power
shift away from that region, new ordering forms such as the Chinese infra-
structure-based Belt and Road Initiative, and a tilt in US practice toward
transactional governance and against institutionalized governance and mul-
tilateral treaties.10
Finally, due to the 2020 Covid-19 pandemic, borders are closed, fewer
people are crossing them, the number of air passengers has plum-
meted, opposition to free trade is growing, firms are reshored, global
trade is shrinking, supply chains are brought back “home”, factories are
repatriated, and foreign investments are placed under state control. A
new era of economic self-reliance is opening. States must respond to
the crisis and therefore become the dominant actors once again.
Is a retreat from globalization currently under way? Or are we experi-

menting a different form of globalization? Will a collapse of globalism
produce a rise in radical ideologies, a regression of democracy, and a
drift towards war?11
Let us examine the other side of the coin. According to the latest fig-
ures from the World Bank, the percentage of people living in extreme
poverty globally fell to a new low of 10 per cent in 2015, down from
11 per cent in 2013.12 Jim Yong Kim, President of the World Bank
Group, stated that “over the last 25 years, more than a billion people
have lifted themselves out of extreme poverty”.13 Globalization has
reduced inequalities: hundreds of millions of people in China, India,
Africa and Latin America are less poor thanks to globalization. Millions
of migrants have found shelter in other countries, supported by better
communication and transportation systems and more conducive global
10 B. Kingsbury, “Frontiers of Global Administrative Law in the 2020s”, in J.N.E. Varuhas and S.W.
Stark (eds), The Frontiers of Public Law, Oxford, Hart Publishing, 2020, pp. 50 and 67.
11 H. James, The End of Globalization. Lesson from the Great Depression, Cambridge, MA, Harvard
University Press, 2001. See also P.A.G. van Berjeiik, “Should We Be Afraid of Deglobalization?”,
Elgar Blog, 25 April 2019.
12 World Bank, “Poverty”, 2019, available at https://data.worldbank.org/topic/poverty accessed 11
October 2020.
13 J.Y. Kim, “Remarks by World Bank Group President Jim Yong Kim at the 2018 Annual
Meetings Plenary”, Bali, Indonesia, 12 October 2018, https://www.worldbank.org/en/news/
speech/2018/10/12/remarks-by-world-bank-group-president-jim-yong-kim-at-the-2018-annual-
meetings-plenary.
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rules. Global tourism is booming, as is digital globalization. The world

is richer because of multilateralism, open markets and growth in world
trade. On 27 February 2017, Jeff Immelt, the chairman and chief execu-
tive officer of the multinational conglomerate General Electric, declared
that “over 60 per cent of our orders come from global markets” and
that “when we win globally, we benefit the US as well”.14 In April 2018,
Mark Zuckerberg, the president and chief executive officer of Facebook,
stated that in many ways, Facebook, with its community of 2 billion
users, is more like a government than a traditional company. Global
value chains run across national borders and unite the world. Synergies
achieved by partnering with competitors (“coopetition”) are progress-
ing. If, in order to fight the pandemic, borders have been closed, in the
effort to produce a vaccine for Covid-19 an agreement has been reached
whereby firms in Italy and the United Kingdom will take care of the
development, companies in the United Kingdom and the Netherlands
will be in charge of production and private entities in India will manage
distribution. Even defence, the activity that most traditionally pertains
to national governments has become globalized. Under the UN and the
North Atlantic Treaty Organization (NATO), there are approximately
120,000 troops, of various nationalities, operating in many parts of the
world, as garrisons, peacekeeping or interposition. The 2020 COVID-
19 pandemic has brought to the fore the high degree of globalization
in the areas of industrial production (in the Wuhan area, in China, 20
billion US dollars’ worth of foreign investments were made in the last
few years, while 4 billion passengers travel through it annually), tourism
(30 million persons travel on cruises every year), religion (for example,
Qom, in Iran, is an important pilgrimage site) and trade fairs (10,000
fairs and exhibitions are held globally every year). Globalization has
changed our approach to many problems. History is no longer con-
ceived of as a purely national affair and historians engage in studying
global history. Comparative lawyers no longer base their inquiries on
the assumption that nations are diverse, but rather look for similarities
between national customs, traditions and legal orders.15
Today, the economy and the armed forces– as many other human
activities– a re organized in wider forms that transcend the state, to
14 J. Immelt, Letter to shareowners: Leading a Digital Industrial Era, in General Electric Company,
Leading a Digital Industrial Era: Annual Report 2016, Boston, MA, USA, 2017, p. 3 (https://www.
annualreports.com/HostedData/AnnualReportArchive/g/NYSE_GE_2016.pdf).
15 J.C. Tate, J.R. de Lima Lopes and A. Botero-Bernal (eds), Global Legal History. A Comparative
Law Perspective, New York, Routledge, 2019.
CASSESE_9781789904215_t.indd 7 21/01/2021 11:39

solve problems that they could not face otherwise. Three recent exam-
ples are international terrorism, global warming and the protection of
cultural heritage. The first cannot be fought by individual states alone.
Therefore, since 2001, with Security Council Resolution No. 1373,
the UN has made provision for carrying out global counter-terrorism
action. Among other things, this consists in identifying persons
suspected of terrorism and in communicating their names to states,
which then implement instructions given by the UN Security Council
(UNSC) to seize the suspects’ funds.
The same is true for global warming. This cannot be reduced (only) by
individual states. Joint action is needed. An agreement was thus reached
whereby the main polluting countries are assigned an emissions limit.
They must enforce this limit, imposing further restrictions on individual
national polluting plants. Within this mechanism planned at the global
level, the agreement also introduces an “emissions trading” system.
As for cultural heritage, in some areas this cannot be preserved with-

out a certain degree of international cooperation and without global
rules. Examples are the holy sites in Jerusalem and the archaeological
site of Palmyra.
Is state sovereignty reasserting itself, or is globalization advancing? Or

– as seems more likely– are sovereignty and globalization proceeding
in parallel? Consider the example of foreign direct investments. In this
area, international courts are being replaced by national courts, arbitral
discretion is minimized and national scrutiny of foreign investments is
growing. However, international bilateral or multilateral agreements
are proliferating, national agencies have become the “implementation
agencies” of international agreements, and domestic courts apply for-
eign law. Therefore, it can be concluded that as globalization advances,
so do the attempts by states to control it. There is a resurgence of the
state, but also a progress of globalization.
Similar conclusions may be reached with regard to the sphere of migra-

tion: while the construction of walls and establishment of b arriers
is accelerating, parallel to this reassertion of territorial sovereignty,
there is also growing pressure to establish or reinforce global rules on
migrations.
On 16 March 2020, Kristalina Georgieva, the executive director of the

International Monetary Fund (IMF), declared:
CASSESE_9781789904215_t.indd 8 21/01/2021 11:39

While quarantining and social distancing is the right prescription to combat

COVID-19’s public health impact, the exact opposite is needed when it
comes to securing the global economy. Constant contact and close coor-
dination are the best medicine to ensure that the economic pain inflicted
by the virus is relatively short-lived. Many governments have already taken
significant steps, with major measures being announced on a daily basis
– including yesterday’s bold, coordinated moves on monetary policy. But
clearly, even more needs to be done. As the virus spreads, increased coor-
dinated action will be key to boosting confidence and providing stability to
the global economy.16
The Covid-19 pandemic has brought to the fore another global issue,
for which the solution– the establishment, in 1946–1948, of the World
Health Organization and the international law of public health and
diseases– has turned out to be unsatisfactory and requiring additional
regulations.17
Finally, while in certain areas the 2020 pandemic has caused deglo-
balization to grow, in others, the contrary is true: interconnectedness
is increasing in the food sector, the flow of information is thriving,
technology advances and continues to drive globalization, and coop-
erative efforts are ever more necessary to avert the risks of diseases and
cyberattacks.
Global solutions are needed to solve global problems, but states are
far from leaving the scene. Quite to the contrary, they participate in
the constituent phase of the new regime and become implementers of
global rules, acting as agents of global rulers.
However, it is undeniable that tensions between the two poles– the

national and the supranational– a re rising, because globalization is a
bidirectional process: national governments cannot always act effec-
tively by themselves, but they must also abide by global standards.18
16 K. Georgieva, “Policy Action for a Healthy Global Economy”, IMF Blog: Insights and Analysis on
Economics and Finance, 16 March 2020, https://blogs.imf.org/2020/03/16/policy-action-for-a-
healthy-global-economy/.
17 See A. von Bogdandy and P.A. Villareal, “International Law of Pandemic Response: First
Stocktaking in Light of the Coronavirus Crisis”, Max Planck Institute Research Paper Series, No.
2020-07.
18 On the globalization process, see S. Al Din Al Hajjaji, “Review of the New Global Law by
Rafael Domingo” (2014) 32(1) Berkeley Journal of International Law 268–280; M. Xifaras,
“The Global Turn in Legal Theory” (2016) 29(1) Canadian Journal Law and Jurisprudence
CASSESE_9781789904215_t.indd 9 21/01/2021 11:39

1.4 The interplay of global problems and national

policies
Symmetry between problems and solutions is indeed somewhat

rare in the global arena. Globalization clashes with the fact that the
governments are organized on a national level. Thus, circumstances
do not unfold as they might in a well-managed company, in which
“higher levels” exist to address any problems that may become
bigger.
Instead, there are at least four possible scenarios. The first is this: when
a problem arises that states cannot tackle alone, some states, due to
internal pressures, take national solutions. These have often limited–
and at times only symbolic– effectiveness.
The second derives from national resistance to globalization. This pro-

duces benefits, but also imposes constraints that, however, some states
refuse to accept, and try to escape.
In the third, national policies produce global problems, which retro-

actively create problems for the countries that generated those same
policies.
Finally, as economies globalize faster than politics, asymmetries arise

between the global economy and national policies.
215–243; “Constitutionnalisme Globale” (2018) January Jus Politicum – Revue de droit politique;
M. Delmas-Marty, “La grande complexité juridique du monde” , in Etudes en l’honneur de Gérard
Timsit, Brussels, Bruylant, 2004, pp. 89 ff ; B. Kingsbury and L. Casini, “Global Administrative
Law Dimensions of International Organizations Law” (2009) 6 International Organizations
Law Review 319–358 ; M.C. Ponthoreau, “Trois interprétations de la globalisation juridique”
(2006) January AJDA 20 ff. On the different approaches to globalization, J. Goldstein, M. Kahler,
R.O. Keohane and A.M. Slaughter, “Introduction: Legalization and World politics” (2000) 54(3)
International Organization 385 ff; C. Moellers, A. Vosskuhle and C. Walter (eds), Internationales
Verwaltungsrecht. Eine Analyse anhand von Referenzgebieten, Mohr Siebeck, Tübingen, 2007;
R. Howse, “The End of the Globalization Debate: A Review Essay” (2008) 121(6) Harvard Law
Review 1528–1554; A. von Bogdandy, R. Wolfrum, J. von Bernstorff, P. Dann and M. Goldmann
(eds), The Exercise of Public Authority by International Institutions, Berlin, Springer, 2010; N.
Krisch, “Global Governance as Public Authority: An Introduction” (2012) 10(4) International
Journal of Constitutional Law 976–987; G. Hellmann (ed.), Theorizing, Global Order. The
International, Culture and Governance, Frankfurt-New York, Campus Verlag, 2018; “La globalisa-
tion du droit administratif” (2019) 5 Revue française de droit administratif 915 ff, and (2019) 6
Revue française de droit administratif 975 ff.
CASSESE_9781789904215_t.indd 10 21/01/2021 11:39

Three examples can be made for the first scenario: the first two con-
cern global warming, while the third regards the exploitation of work-
ers abroad.
In September 2006, the State of California initiated an action for dam-

ages before the District Court for Northern California against the six
largest car manufacturers in the United States. California complained
that car manufacturers contribute indirectly to the emission of carbon
dioxide into the atmosphere because they produce millions of cars.
This leads to an increase in global temperature, rising sea levels, pol-
lution in large cities, a heightened danger of wildfires, a reduction in
the water available for domestic use and, consequently, an increase
in government spending. Therefore, the problem, although global in
nature, is dealt with locally; not at the national level, but by California
alone. The “exemplary” intent of the legal action is evident. In any case,
in September 2007 the District Court rejected the action, stating that
the issue is one that should be addressed by governments and parlia-
ments, both nationally and globally.
The second example arises in Massachusetts v. Environmental

Protection Agency, a case decided by the Supreme Court of the United
States (No. 05-1120, of 2 April 2007), which was followed by a judg-
ment issued by the US Court of Appeals, District of Columbia Circuit
on 26 June 2012. In this case, 12 states and a number of local adminis-
trations and private organizations had challenged the Environmental
Protection Agency (EPA), ten further states and six industrial asso-
ciations. The Supreme Court rejected the EPA’s argument that United
States’ federal law aims to limit local pollution, and not pollution in the
Earth’s atmosphere. It established that the EPA must address the prob-
lem of global warming, or at least explain why it refused to establish
whether greenhouse gases produce or contribute to climate change. In
the Supreme Court’s view, the damage to the State of Massachusetts
consisted in its loss of coastland, which is being engulfed by rising sea
levels. However, a minority of justices noted that the dispute was not
justiciable, as the parties were not entitled to bring the case before the
Court (as they did not possess legal standing) and it was impossible to
define the damage suffered.
Here too, a global effect is traced back to a local cause and a national
solution is identified (limits on the emission of greenhouse gases in the
United States, on the part of the EPA) to solve– o r at least to contrib-
ute to solving– a global problem.
CASSESE_9781789904215_t.indd 11 21/01/2021 11:39

The third example regards “anti-sweatshop legislation”, laws adopted

against the exploitation of workers. The first rule of this type, applicable
also to foreign workers, was adopted by the city of New York in 2002.
The law provides that textile products offered for sale must come from
a “responsible manufacturer”, that is, a producer that pays wages allow-
ing a family of three to live above the minimum subsistence threshold.
Workers employed by companies operating outside the United States
must be paid according to the same benchmark, taking into account
the living standards prevailing in the foreign country. The purpose of
the rule is to protect both workers subject to the “core labour stand-
ards” established globally19 and national companies forced to compete
with foreign producers, as the latter, by exploiting very cheap labour,
are able to offer goods at submarket prices. Other cities later adopted
similar measures. An example is Los Angeles, which enacted slightly
different provisions, but nevertheless sought to provide a local solution
to a global problem– that of labour standards.20
Two aspects of these examples are emblematic. First, global environ-

mental and labour standards are established by international organi-
zations (such as the International Panel on Climate Change– IPCC
– and the International Labour Organization– ILO). Second, local
interests are tied to global interests.
1.5 The benefits and imbalances produced by

globalization
Globalization has many beneficial effects. One of these concerns
freedom of information, which is protected by Article 19 of the
International Covenant on Civil and Political Rights (ICCPR, 16
19 On the notion of core labour standards and related problems, see the interesting debate between
P. Alston, B.A. Langille and F. Maupain: P. Alston, “‘Core Labor Standard’ and the Transformation
of the International Labour Rights Regime” (2004) 15(3) European Journal of International
Law 457 ff; B.A. Langille, “Core Labor Rights– The True Story (Reply to Alston)” (2005) 16(3)
European Journal of International Law 409 ff; F. Maupain, “Revitalization Not Retreat: The Real
Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights” (2005)
16(3) European Journal of International Law 465 ff; P. Alston, “Facing Up to the Complexities of
the ILO’s Core Labor Standards Agenda” (2005) 16(3) European Journal of International Law 480
ff.
20 A. Barnes, “Do They Have To Buy From Burma?: A Preemption Analysis of Local Antisweatshop
Procurement Laws” (2007) 107(2) Columbia Law Review 432 ff.
CASSESE_9781789904215_t.indd 12 21/01/2021 11:39

December 1966).21 Today, the main means to guarantee this freedom

is the Internet.
States that limit freedom of information are in a difficult position.

They can certainly adopt practices or measures aimed at limiting it.
However, in doing so, they conflict with a technology that is present
worldwide and that by its very nature is difficult to contain.
According to reports, in China 30,000 people work in censorship,

blocking access to websites that the Chinese Government deems
unwelcome.22 To get around censorship, proxy servers have been
developed, which redirect data from a different server. Furthermore, to
circumvent censorship-blocking proxies, a free-of-charge software has
been developed that makes it difficult for censors to determine what
information is sent, the party sending it and who reads it.
In Thailand, the law on lèse-majesté is severe and strictly enforced.

On 29 March 2007,23 a Swiss citizen was sentenced to a prison term of
ten years for having defaced a portrait of King Bhumibol in northern
Thailand. A Thai citizen living in the United States posted on YouTube
a video mocking the King. For the Thai Government, it was not enough
to block the website, because viewers in Thailand could circumvent the
obstacle by connecting to foreign servers. Thus, it asked YouTube to
censor the video; the server denied the request, but nevertheless com-
mitted to finding a solution.24
These two examples show the imbalances that can be produced by

globalization. While globalization offers benefits that were previously
unthinkable, it guarantees these benefits in the same way to all, and
thus clashes with more restrictive national policies. This gives rise to
the need to strike new balances. These may be accommodated both
through the versatility of the global network and through limitations.
21 The second paragraph of this article states that “each individual has the right to freedom of
expression; this right includes the freedom to search, receive and disseminate information and
ideas of all kinds, regardless of frontiers, orally, in writing, through the press, in art form or
through any other means of its choice”.
22 A. Segal, “When China Rules the Web: Technology in Service of the State” (2018) 97(5) Foreign
Affairs 10 ff.
23 “Technology and Society: Techniques to Evade Censorship of Internet Traffic Are Improving, to
the Chagrin of Authoritarian Regimes” (2 December 2006) The Economist, Technology Quarterly
3.
24 “Bangkok vs YouTube” (7 April 2007) Corriere della sera 17.
CASSESE_9781789904215_t.indd 13 21/01/2021 11:39

However, these can scarcely be successful if they are arranged at the

local level alone.
The distribution of the benefits of globalization is extremely unequal.

The advantages enjoyed by rich and poor countries are very different.
However, even more worthy of note are those cases in which national
policies produce global effects that cause those policies to backfire
against their very authors.
The first example of this concerns the national policies adopted by

wealthy countries (generally, in the northern hemisphere) to subsi-
dize or otherwise support national farmers. These policies damage the
economies of developing countries, which are based predominantly on
agriculture, and force them to focus on basic products such as cotton,
coffee and cocoa. However, these are produced in ever greater quanti-
ties, which has the effect of lowering their prices; this, in turn, leads to
a growing number of people in developing countries being pushed out
of the market. This contributes to ever larger migratory flows, which
place pressure on the borders of many wealthy states, for example
European countries and the United States of America. National prob-
lems and policies produce global effects that backfire on developed
economies, which are thus forced to absorb the negative consequences
of their own choices.
A second example comes from the EU. The labour legislation of many
European countries is so rigid as to push factories to relocate produc-
tion to other countries such as China, from where goods are then
exported to their own national markets. This exposes the companies
that have delocalized production to the reaction of the EU, national
governments, and competing domestic producers, but national distri-
bution chains (the interest of which lies in importing products at low
prices) support the move. Therefore, the concepts of “national inter-
est” and “community interest” become empty, and must be redefined.25
Third example: according to a news article published on 2 March 2007

in India:
25 European Commission, Comunicazione della Commissione. Europa globale. Gli strumenti euro-
pei di difesa del commercio in un’economia globale in mutamento– Libro verde destinato alla
consultazione pubblica, COM (2008) 763, 6 December 2006. See “The Perils of Protectionism”
(9 December 2006) The Economist 78.
CASSESE_9781789904215_t.indd 14 21/01/2021 11:39

in the last 18 months, 1,200 [cotton] farmers have taken their own lives by
not knowing how to honor debts with moneylenders. They were in debt to
dig wells or buy “bio-tech” seeds, investments that often did not yield the
desired returns, also because the price of cotton, whose world production
is driven by subsidies in rich countries, especially in America, fell about
12% in the previous year. The Indian government called for the removal
of subsidies in the US (the world price would rise) and the introduction of
safeguard clauses that limited imports if they threaten the survival of local
production. But measures of this kind could damage the textile industry,
which was expanding rapidly in the country, which instead benefited from
low-cost imported local cotton.26
In this case, a national policy (adopted in the United States) harmed

one sector of the Indian economy, cotton production; however, it
benefited another one, the textile industry. The Indian government
was faced with the dilemma of asking the WTO to take compensatory
measures against the US subsidies for cotton production, to protect its
domestic producers, or to refrain from intervening, thus favouring the
Indian textile industry.
The national interest therefore disaggregates, making it difficult to

decide how to protect the national interest and undermining the para-
digm of the unity of the state. At the same time, the national interests
of one country converge with national interests in other countries,
thereby giving rise to an ultranational network.
The final asymmetry relates to the globalization of economics, on the

one hand, and of politics on the other. The former is “going global”
more rapidly than the second, thus producing an imbalance. Joseph E.
Stiglitz observed:
We have a chaotic, uncoordinated system of global governance without

global government, an array of institutions and agreements dealing with a
series of problems, from global warming to international trade and capital
flows. Finance ministers discuss global finance matters at the International
Monetary Fund– IMF, paying little heed to how their decisions affect the
environment or global health. Environment ministers may call for some-
thing to be done about global warming, but they lack the resources to back
up those calls. . . Governance– problems in the ways decisions get made
in the international arena– a re at the heart of the failures of globalization.
26 G. Barba Navaretti, “Una WTO stretta tra le lobby” (2 March 2007) Il Sole 24 Ore.
CASSESE_9781789904215_t.indd 15 21/01/2021 11:39

How decisions get made, what gets put on the agenda, how disagreements
are resolved, and how the rules are enforced are, in the long run, as impor-
tant as the rules themselves in determining the outcome of the international
trade regime– and whether it is fair to those in the developing world. This is
as true in the arena of trade as it is elsewhere.27
1.6 The system of global powers
The system of global powers is no less complex than state ones.

However, the global level has three shortcomings. It lacks a unitary
legal order and a government, popular investiture or legitimacy, and
effectiveness.
The global legal space contains several self-contained regulatory

regimes, each with its own system of norms and an executive organiza-
tion called upon to enforce them. There are no general, overarching
principles and rules, and there is no central executive body.
Second, approximately 2,000 global regulatory regimes28 operate in

the global space. Some were established by national governments,
which give an initial form of popular legitimacy to the global bodies.
However, subsequently, these bodies’ action exceeds the state setting
and requires a new source of legitimacy.
Third, the power to implement and enforce global decisions is left

to collaborative efforts between states, to the interplay of conflicting
interests, and to complicated “retaliatory” mechanisms. Compliance
procedures are weak.
To remedy these regulatory shortcomings, the global regulatory

regimes are interconnected, giving rise to “linkages” and to “regime
complex”. For example, to enforce labour or food security standards,
links with trade are established.29
27 J.E. Stiglitz, Making Globalization Work, New York, Norton, 2006, pp. 21 and 97. For a different
hypothesis that focuses on the current and future benefits of globalization, see J. Bhagwati, In
Defense of Globalization, Oxford University Press, 2007.
28 See M. Noortmann, Enforcing International Law– From Self-help to Self-contained Regimes,
Aldershot, Ashgate, 2005.
29 On the development of reciprocal connections in the global arena, see S. Cassese, “Il diritto
amministrativo globale: una introduzione”, in S. Cassese, Oltre lo Stato, Rome-Bari, Laterza, 2006,
p. 46. On the role that international economic organizations, including the WTO, could play in
CASSESE_9781789904215_t.indd 16 21/01/2021 11:39

1.7 About this book
Global problems that are addressed locally; global benefits that pro-
duce local problems; local problems that produce global or local effects
(although in other areas) and end up being to the detriment of those
who originated them in the first place (but affect different national
interests); economic globalization that proceeds faster than political
globalization. How many of these imbalances produce obstacles and
how many, instead, lead to incentives? Is it possible to say that all of
these imbalances and asymmetries slow down the progress of globali-
zation, or, rather, that they act as “a machine that runs of itself”?30
Is there a body of global administrative law? If yes, what are its basic
principles?
This book seeks to answer these questions, and is organized as

follows.
First, the essential features of the global legal space and its characteris-
tics will be illustrated, first at a glance and then in detail.
Second, administrative globalization will be examined, followed by

administrative forms of protection and their implementation.
Third, the problem of democracy and justice in the global space will
be explored.
Fourth, the relations between states and globalization will be

illustrated.
relation to so-called “trade ands” or “non-trade issues”, see the opposing opinions of two authors:
E.U. Petersmann, “Time for a U.N. ‘Global Compact’ of Integrating Human Rights into the Law
of Worldwide Organizations: Lessons from European Integration” (2002) 13(3) European Journal
of International Law 621 ff; P. Alston, “Resisting the Merger and Acquisition of Human Rights
by Trade Law: A Reply to Petersmann” (2002) 13(4) European Journal of International Law 815
ff; E.U. Petersmann, “Taking Human Dignity, Poverty and Empowerment of Individuals More
Seriously: Rejoinder to Alston” (2002) 13(4) European Journal of International Law 845 ff. On
linkages between trade and human rights, G. Soros, On Globalization, New York, Public Affairs,
2002 (Italian translation: Globalizzazione, Milan, Ponte alle Grazie, 2002) and comments by J.
Stiglitz, “On Globalization– by George Soros –, A Fair Deal for the World” (2002) 49(9) The New
York Review of Books.
30 James Russell Lowell used this expression in 1888 to criticize the misplaced trust in the mechani-
cal perfection of the Constitution of the United States of America; the criticism was later taken up
by G. Silverstein, “Globalization and the Rule of Law: ‘A Machine that Runs of Itself?’” (2003) 1(3)
International Journal of Constitutional Law 427 ff.
CASSESE_9781789904215_t.indd 17 21/01/2021 11:39

The following pages combine an analysis of cases with an examination

of the relevant institutions and procedures. This approach was chosen
to provide an account of the variety and richness of global institutions
and of the novelty in their modes of operation.
CASSESE_9781789904215_t.indd 18 21/01/2021 11:39

2 The global legal space at a
glance
2.1 Lawmaking, administration and jurisdiction
Is there a legal order beyond the state? To answer this question, it

is necessary to ascertain whether the constituent elements of a legal
system exist there: legislation, an administration and jurisdiction. This
is an essential step before we attempt to answer two questions: How do
global actors obtain legitimacy? To whom are they accountable?
To address these issues, I will start by discussing a case related to

the World Bank. Mumbai, the capital of the State of Maharashtra,
in India, and the country’s most populated city, was beset by serious
urban transportation problems. For millions of inhabitants, the insuf-
ficient transportation options available would give rise to dramatic
difficulties. In 2002, Maharashtra elaborated an urban transportation
project, the Mumbai Urban Transport Project (MUTP), entailing the
construction of large road and rail transport routes across Mumbai’s
metropolitan area. The World Bank provided substantial funding.
The project, approved in June 2002, required the “resettlement” of

thousands of people, who were forced to leave their homes and move
about 30 kilometres away. The inhabitants of the affected areas assem-
bled into two associations and sought the advice of legal experts to
verify the legitimacy of both the decisions taken and of the procedures
followed.
According to the World Bank Policy on Disclosure of Information,1

before taking a decision, the Bank must afford affected communities
an opportunity to be heard. If this does not happen, the communi-
ties can seek a review of that decision before the Inspection Panel, a
body established for the purpose within the World Bank itself. The
1 This Policy, dated March 1994, has now been superseded by that issued on 1 July 2015, the Access
to Information Policy.
19
CASSESE_9781789904215_t.indd 19 21/01/2021 11:39

Inspection Panel can make recommendations addressed to the World

Bank (not directly to the state), thus exercising quasi-judicial functions.
Therefore, just as in national legal systems, there are three powers

within the World Bank– legislative, administrative and jurisdictional:
the World Bank adopts policies, provides finance for public works and
settles disputes. The “higher” legal system penetrates into a “lower”
legal order, addressing standards to national administrations, and
providing citizens with the right to participate in administrative pro-
cedures that take place locally, as well as with a remedy in case of its
violation.
All this raises two further queries: where does the World Bank obtain
the power to establish that Indian citizens have the right to participate
in administrative procedures?2 Are there enough safeguards for Indian
citizens vis-à-vis the World Bank authorities? To answer these ques-
tions, we must first examine the shape of the global legal space.
2.2 The shape of the global legal space
Today, 193 states are members of the UN. There are over 2,000 global
regulatory regimes. NGOs– civil society organizations and organiza-
tions of producers, consumers, etc.– number approximately 60,000.
As a rule, international organizations have an assembly and a secre-

tariat. The former is made up of representatives of states.
In the early stages of international organizations’ development, two

models of secretariat were proposed. The first, suggested by Sir Eric
Drummond, was later adopted by the League of Nations; the second
was proposed by Albert Thomas and was introduced in the ILO.
Drummond conceived of the secretariat as a body whose members were
“faceless figures”, much like the English civil service; a body of officials
that was neutral, far removed from politics and chosen according to
the merit system. Drummond thus brought his personal experience
as a higher-ranking British civil servant into the global space, with one
peculiarity: for international civil servants, neutrality was required not
only with respect to politics, but also with respect to nations. Thomas,
2 On these problems, D. Archibugi, “La democrazia cosmopolitica: una prospettiva partecipante”

(2005) 2 Rivista italiana di scienza politica 261–288.
CASSESE_9781789904215_t.indd 20 21/01/2021 11:39

THE GLOBAL LEGAL SPACE AT A GLANCE 21
instead, believed that secretariats should be multinational and com-

posed of people representing the point of view of their own country.
Most international organizations have chosen the first model, but due
to political pressure by developing countries, national quotas were
subsequently introduced.
The world of global regulators features highly diverse types of bodies.3

Many of these were established by national governments. However,
some organizations were not established by states, but comprise
states among their members. An example is the Codex Alimentarius
Commission.
Second, many international organizations are not formed by states,

but rather by bodies within states. This is the case of the International
Competition Network (ICN), established by national antitrust authori-
ties, or of the International Organization of Securities Commissions
(IOSCO), established by national exchange authorities.
Third, some international organizations are private, in terms of their

legal nature. For example, the Internet Corporation for Assigned
Names and Numbers (ICANN), which deals with Internet protocols
and domain name management (Domain Name System, or DNS) is–
as we will see later– a “non-profit corporation” under United States’
law, and is incorporated in California in accordance with the applica-
ble state rules. ICANN is private in nature, but performs a public func-
tion as a regulator of regulators, because it manages the primary root
server and controls the architecture of the Internet. No other area is as
highly (and rapidly) globalized as the Internet (consider that half of the
world’s population uses the Internet).4 Another example in this respect
is the International Organization for Standardization (ISO), which sets
international standards. The ISO is composed of both public and pri-
vate national regulators.
The governing bodies of global regulators decide by “consensus”. On

the one hand, strict application of the unanimity principle would risk
3 On international organizations and how they were established, see the seminal essay by S. Battini,
Amministrazioni senza Stato. Profili di diritto amministrativo internazionale, Milan, Giuffrè,
2003, which provides one of the first and most important analyses of the development of global
administrative law.
4 B. Carotti, Il sistema di governo di Internet, Milan, Giuffré, 2016.
CASSESE_9781789904215_t.indd 21 21/01/2021 11:39

paralyzing the activity of global organizations; on the other, adoption of

the majority principle would excessively limit each state’s sovereignty.5
However, calls for decisions to be taken by qualified majority are
increasing.
In addition to an assembly and a secretariat, the structure of interna-

tional organizations often includes committees, which are composed
of representatives of national administrations. Their function is to act
as a bridge between national bureaucracies and global bodies. Dialogue
between the states and global organizations is guaranteed, therefore,
not only through political representatives, but also through adminis-
trative bodies.
Committees of this type exist in both global and regional organiza-

tions. The EU’s so-called comitology6 comprises several hundred
committees. In addition, there are the committees of the Council and
committees of experts, thus bringing the total to over 1,000. The main
task of comitology committees is to assist the Commission in carry-
ing out the tasks relating to the issuance of secondary legislation and
administration that are conferred on it by the Council.
As for the functions of international organizations, four types can be

distinguished. First, there are organizations that operate as agents of
states. The latter confer tasks and can revoke them; they control the
exercise of those tasks and can perform them concurrently. Second,
there exist organizations that act on the basis of delegations of power
given by the states. In this type of organization, the states are in the
same position as in the first case, but they cannot control how the
tasks delegated to the international organization are organized. Third,
there are the organizations to which states operate a full transfer of
powers. In this case, the states strip themselves of the tasks. The fourth
category includes organizations that carry out tasks that states do not
and could not perform individually. In this case, states establish or
5 On the majority principle, see E. Ruffini, Il principio maggioritario. Profilo storico, Milan, Adelphi,
1987. In medieval collegial bodies, decisions were taken unanimously. Where, especially in reli-
gious matters, the controversy could not be settled by agreement, there was the possibility of itio
in partes (i.e. members could leave). Subsequently, even when unanimity was largely replaced
with the majority principle, an exception was made for the decision processes of international
organizations; in this case, adoption of the majority principle entailed the risk of decisions being
taken potentially against the will of a member state.
6 See M. Savino, “Comitology”, in S. Cassese (ed.), Dizionario di diritto pubblico, Milan, Giuffrè, vol.
2, 2006, pp. 989–999.
CASSESE_9781789904215_t.indd 22 21/01/2021 11:39

contribute to the establishment of the international organization, and

collectively recognize its power to rule.7
The global space has a complex structure. There is no clear division

of responsibilities and there may be partial overlaps. The process of
global decision-making is mixed: supranationalism takes the form of
a network, giving rise to a stable relationship with national bureaucra-
cies. Rather than two separate spheres, there are interrelated goals and
duties, as in the case of cooperative federalism systems. The metaphor
introduced in political science in the early 1950s, to compare dual
federalism to cooperative federalism, might apply: the global space is
a “marble cake” (as opposed to a “layer cake”). The expression “multi-
level constitutionalism”8 suggests an interpretation that overlooks the
complexity of global structures and decision-making processes.
The dialogue between global bodies and national civil societies (as well
as the global civil society) presents even more problems. It would be
difficult to assemble a cosmopolitan parliament, given the size of the
world population, as well as to find ways for civil society to participate
in the decision-making processes of global institutions. Nevertheless,
global bodies have established direct and indirect relationships with
civil society, for example by ensuring that NGOs are involved in treaty-
drafting procedures.
2.3 Global standards and cooperation

Traditionally, international standards are established in treaties or
conventions (“transactional law”). In addition to these, global regula-
tors and international organizations produce rules. These rules may
be binding by virtue of their source or through another international
institution. For example, since 1995, the standards established by the
Codex Alimentarius Commission have acquired greater legal force
because the WTO refers to them.
7 For further details on this typology, see D. Sarooshi, International Organizations and their Exercise
of Sovereign Powers, Oxford, Oxford University Press, 2005, and the review by J.E. Alvarez, in
(2007) 101(3) American Journal of International Law 674 ff.
8 On the theory of “multilevel constitutionalism”, see I. Pernice, “Multilevel Constitutionalism
and the Treaty of Amsterdam: European Constitution-making Revisited” (1999) 36(4) Common
Market Law Review 703 ff; I. Pernice, “Multilevel Constitutionalism in the European Union”
(2002) 27(5) European Law Review 511 ff.
CASSESE_9781789904215_t.indd 23 21/01/2021 11:39

The global legal space develops not only along vertical lines– f rom the
national to the global level and vice-versa– but also along horizon-
tal lines, because it is a system based largely on cooperation. The EU
principle of mutual recognition is a good example of the latter type of
relationship. Based on mutual recognition,9 a French bank complying
with the requirements of its home state on the exercise of banking
activities can operate in another EU member state (the host state),
such as Italy, as if it had been authorized by the host state itself on the
basis of its own internal rules. Multiple mutual recognition agreements
produce uniformity in regulations and lead to their harmonization.
The porousness of legal systems is not a new phenomenon.10 Between

the sixteenth and eighteenth centuries, one of the first examples of
lateral openings between legal systems could be seen in the practice
of the major European courts: these could resort to a lex alius loci
or extera whenever, in the lex loci and in the common law, the sub
iudice case was not decisus or was controversial. Thus, foreign law was
“incorporated” through the work of the courts.
However, as already noted, the global space lacks a fundamental

element of the state experience: a body of general rules. There are
(alongside a small number of customary rules) only sectoral rules.11
Different regimes are in place for fishing, water use, transport of haz-
ardous materials, environmental protection, maritime navigation, air
transport, etc.
This marked sectorialism in the global legal space is balanced in

various ways. The first and most common is a process of growth and
accumulation deriving from the juxtaposition of the various regulatory
regimes.12
9 For an analysis of the principle of equivalence in the European context, see L. Torchia, Il governo
delle differenze, Bologna, Il Mulino, 2006.
10 See G. Gorla, L’interpretazione del diritto, Milan, Giuffrè, 1941; “I ‘Grandi Tribunali’ italiani fra
i secoli XVI e XIX: un capitolo incompiuto della Storia politico-giuridica d’Italia”, in Quaderni
del Foro Italiano, 1969; Diritto comparato e diritto comune europeo, Milan, Giuffrè, 1981; “Iura
naturalia sunt immutabilia”. I limiti al potere del “principe” nella dottrina e nella giurisprudenza
forense tra i secoli XVI e XVII, Florence, Leo S. Olschki, 1982.
11 On which see S.D. Krasner (ed.), International Regimes, Ithaca, NY, Cornell University Press,
1983.
12 See e.g. the Arbitral Tribunal provided for the Convention on the Law of the Sea: “[t]he current
range of international legal obligations benefits from a process of accretion and cumulation”,
Arbitral Tribunal (Annex VII Unclos), SBT Case, No. 52, 14 August 2000 (see S. Cassese, Oltre lo
Stato, Bari, Laterza, 2006, p. 16, note 22).
CASSESE_9781789904215_t.indd 24 21/01/2021 11:39

The second is the constitution of horizontal connections between the

different bodies of rules (“connecting regimes”). For example, in order
to prevent a state from imposing a technical barrier to trade, such
as by setting food standards that would make it difficult to import
foreign products, the WTO requires compliance with minimum safety
requirements established by another global authority. A connection is
thus established between free trade on the one hand and health on the
other.
The third way sectorialism is balanced is through the participation of

interested parties in decision-making processes affecting them.13 Thus,
for example, in the US-Shrimp case, the Appellate Body of the WTO
came to the conclusion that the United States, by failing to provide a
certification for each requesting state,14 a formal possibility to be heard
and to reply during the relevant proceedings, committed “an arbitrary
and unjustifiable discrimination between the members of the WTO,
contrary to the requirements of Article XX [of the General Agreement
on Trade and Tariffs]”.15
In conclusion, the global legal space consists of horizontal and vertical

relationships. The rules governing these relationships do not form a
general and unitary body, but are, rather, sectoral. Finally, sectorialism
can be offset through processes of accretion and accumulation, which
connect the different bodies of rules and let governments and people
participate in the relevant decision-making processes.
2.4 The global executive bodies
Global executive bodies perform a double role: they provide impulse

for action, guidance and stimulus on the part of national administra-
tive systems acting on their behalf, and verify their compliance. For
example, in the well-known case of Ali Ahmed Yusuf, a UN Sanctions
Committee– a global authority– had drawn up a list of suspected
13 On private participation in administrative proceedings, see S. Cassese, “Il privato e il procedi-

mento amministrativo. Un’analisi della legislazione e della giurisprudenza”, in Arch. giur., 1970,
n. 1-2, pp. 25 ff.
14 A document confirming that the exporting country protects sea turtles during shrimp fishing,
according to criteria set by the United States.
15 WTO Appellate Body, United States– Import Prohibition of Certain Shrimp and Shrimp Products,
AB-1998-4, WT/DS58/AB/R, 12 October 1998.
CASSESE_9781789904215_t.indd 25 21/01/2021 11:39

terrorists. In accordance with EU Regulation No. 881/2002,16 Swedish

authorities had frozen the bank funds owned by the suspect. Thus,
global, European and national actors worked together in a single
process.
Global administrative activity is conducted in various ways. Global

organizations take care of budget and personnel management directly.
They also cooperate with other global organizations and with national
administrations. Finally, they perform control activities, for example
to ensure that national administrations perform the tasks assigned to
them, while compliance committees and other semi-judicial bodies
verify that national authorities implement global standards.
2.5 Global courts
Today, there are just over 100 international courts,17 the majority
having criminal jurisdiction. Only some of them are administra-
tive, constitutional and civil courts. Outside national legal systems,
multipolar litigation is the rule.18
In addition to courts, the global arena contains several quasi-judicial

bodies to which private individuals or states may apply to verify the
implementation of global decisions. These bodies are partially inde-
pendent. They abide by the “right to a hearing” rule and issue decisions
that are binding upon the parties.
However, in the global space, there are no ways to guarantee enforce-

ment. Retaliatory measures, under the control of the judge, are mere
16 Council Regulation (EC) No. 881/2002 of 27 May 2002 imposing certain specific restrictive meas-
ures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida
network and the Taliban, and repealing Council Regulation (EC) No. 467/2001 prohibiting the
export of certain goods and services to Afghanistan, strengthening the flight ban and extending
the freeze of funds and other financial resources in respect of the Taliban of Afghanistan.
17 See the Project on International Courts and Tribunals, launched in 1997 by the Center on
International Cooperation of New York University and by the Centre for International Courts
and Tribunals of University College London, as well as iCourts, the Danish National Research
Foundation’s Centre of Excellence for International Courts. See also E. D’Alterio, La funzione di
regolazione delle corti nello spazio amministrativo globale, Milan, Giuffré, 2010 and L. Boisson
de Chazournes, “Plurality in the Fabric of International Courts and Tribunals: The Threads of a
Managerial Approach” (2017) 28(1) The European Journal of International Law 13–72.
18 The phrase “multipolar litigation” may be traced to L.L. Fuller, “The Forms and Limits of
Adjudication” (1978) 92 Harvard Law Review 353 ff.
CASSESE_9781789904215_t.indd 26 21/01/2021 11:39

surrogates. If, for example, companies in the United States adopt

dumping practices that damage the EU, the WTO Dispute Settlement
Body might allow the EU to apply measures increasing duties on goods
originating in the United States, but only to a specific extent and for a
limited time.19
2.6 Is there a global democratic deficit?
The traditional answer to the question of how global regulatory bodies

derive their legitimacy is that the global space is based on a system of
indirect legitimation, through the nation-states. This leaves a demo-
cratic deficit, that is, however, mitigated by alternative mechanisms
to confer legitimation. These mechanisms include the committees
– composed of representatives of national administrations or of civil
society– that support global decision-making processes; NGOs that
work in close contact with global institutions to evaluate, encourage
and control their activity; and, finally, the participation of interested
parties in their decision-making processes (so-called “deliberative
democracy” or “participatory democracy”).20 We are currently witness-
ing an increase in the complexity of the forms of private participation
in administrative processes, and the emergence, within states, of an
intricate procedural “network”.
19 In general, on international courts, see P. Sands, Lawless World, London, Penguin, 2005.
20 See S. Battini, “Organizzazioni internazionali e soggetti privati: verso un diritto amministrativo
globale?” (2005) 2 Rivista trimestrale di diritto pubblico 359 ff.
CASSESE_9781789904215_t.indd 27 21/01/2021 11:39

3 The global legal space in detail
3.1 The rapid development of the global legal space
The global legal space developed very quickly.1 Faced with problems
that cannot be solved by unilateral action– such as the hole in the
ozone layer, pandemics, Internet governance, nuclear and chemical
dangers, terrorism, the depletion of fish stocks– n
ational governments
have hastened to equip themselves with shared tools that transcend
the state. Alongside territory-based public powers, at the supranational
level, there is a veritable swarm of functional or sectoral global public
bodies, each having its own specialized task.
In analysing these new legal orders, it is necessary to answer the fol-

lowing questions: to what extent are states still the protagonists of the
global legal space, which lays over them as a second level, in a hier
archy of public bodies? What are the consequences of the absence of a
central global government and of the division of the global legal space
into several subsystems? How do global (sectoral and self-contained)
regulations operate, in the absence of a body of general rules common
to the different sectors? Can it be said that a global constitution exists,
alongside national charters? Is there a cosmopolitan democracy, albeit
at a nascent stage? Finally, who benefits from legal globalization?
3.2 States and global networks: a multilevel ordering?
The global legal space is usually described as being on a higher plane

than the one comprising states. Governments themselves are now
1 On the history of globalism, M. Mazower, Governing the World. The History of an Idea, 1815 to the
Present, New York, Penguin, 2012; O. Rosenboim, The Emergence of Globalism. Visions of World
Order in Britain and the United States, 1939–1950, Princeton, NJ, Princeton University Press,
2017; G. Sluga and P. Clavin (eds), Internationalism. A Twentieth-century History, Cambridge,
Cambridge University Press, 2017; Q. Slobodian, Globalists. The End of Empire and the Birth of
Neoliberalism, Cambridge, MA, Harvard University Press, 2018.
28
CASSESE_9781789904215_t.indd 28 21/01/2021 11:39

THE GLOBAL LEGAL SPACE IN DETAIL 29
“multilevel”, as they operate at the local, national and global levels. The
first level contributes to the formation of the second.
Is this representation of the global legal space correct? Formally, the

members of the international community are equal: a small republic
is no less sovereign than the most powerful kingdom. However, more
than half of the countries in the world have fewer inhabitants than
Massachusetts (around 6 million people), while six of the ten richest
nations in the world have less than a million people. And this is with-
out considering the differences between states in terms of economic
and military power. Therefore, the second level contains pronounced
disparities.
Third, not all international organizations were established by states,

and global organizations may comprise not only states, but also supra-
national powers such as the EU (which is a member of the WTO and
of the International Olive Council, for example), other regional bodies,
private organizations (such as ICANN) and various types of observers.
Therefore, not all global organizations are “intergovernmental”.
Moreover, in the global legal space, state bodies frequently operate

autonomously from one another, establishing specialized networks
(such as those between the authorities overseeing competition, finan-
cial markets or insurance). States do not act always in a unitary way.
Finally, in the multilevel model, the state retains a monopoly over

relations with civil society, while international organizations hold a
monopoly over the relations with states. One would imagine that civil
society forms the basis of the state, just as states form the basis of
global organizations. Instead, the latter have established both direct
and indirect relationships with civil society (such as the World Bank
and its Inspection Panel, mentioned above). A paradox arises: states
are at once both stronger and weaker. They are stronger, because they
operate in the global arena both as a unit, through national govern-
ments, and through individual authorities, which act independently in
part. Conversely, they are weaker because in international organiza-
tions, they must share power with non-state institutions, and because
the regulations produced at the global level are imposed directly within
the domestic space, often without the need for state mediation.
Therefore, there is no layer of global legal orders over that comprising

the states. Indeed, it cannot be said that there are two separate levels.
CASSESE_9781789904215_t.indd 29 21/01/2021 11:39

Inequalities and fragmentation are strong; states are not the only sub-
jects (regional, subnational) taking part in global regimes, states them-
selves are not united, and no single “level of government” maintains
a monopoly over relations with its subjects. As previously noted, the
cake we are dealing with is marbled, not layered.
3.3 Rulers without a government
At the centre of the state as an entity, there is the government, also

known as the executive power. This represents the head and the
“engine” that drives states. In the global legal space, instead, there is
neither a higher authority nor the hierarchy that characterizes states.
States obey the paradigm of “the state as a unit”. This means that there
is a body of general rules, which give a uniform basis to its structure
and operations. As noted above, the global space comprises several dif-
ferent regulators, each subject to ad hoc rules. Under these conditions,
how does the global administrative machine operate?
The first condition for its very existence and functioning is transna-
tionalism. As we have already seen, the global legal space is an order
founded largely on cooperation, both at the interstate level and at the
global level. Cooperation among national authorities is an essential
element. This produces a decentralized system consisting of state
officials, on one hand, and the consultative and deliberative commit-
tees of international organizations (and mutual recognition agree-
ments) on the other. The system plays a threefold role: an information
tool for global bodies, a medium to transmit their decisions to the
national level, and a means to ensure dialogue and negotiation between
national administrations.
The more national markets open up to one another, the more asym-
metries appear. To reduce these and level the playing field, global
regulations might establish principles, but refrain from regulating
matters in detail. In this way, room is made for mixed transnational
committees and mutual recognition agreements. This component of
the global legal space reduces its vertical character, because the “supe-
riority” of global authorities is based on a dense network of horizontal
contractual relations. On the other hand, it facilitates the transfer or
transplantation of institutions from one domestic order to another and
stimulates the search for functional analogies that may be concealed by
CASSESE_9781789904215_t.indd 30 21/01/2021 11:39

formal differences between national systems. Finally, the transnation-

alism of the global legal space suggests that caution is required when
declaring that the state is in crisis: in fact, the dynamics of the global
administrative system are largely dependent on the state.
Two additional features are connected to the multinational compo-

nent of the global space. The first is “transactionalism”: the working
methods of the global system are based on transactions. For example,
many international treaties provide that conflicts between national
administrations must be resolved by means of negotiation, investiga-
tion, mediation and conciliation. If these fail, then the way is open to
arbitration, judicial decisions or other forms of third-party dispute set-
tlement. In short, treaties provide for contractual or semi-contractual
ways of resolving conflicts.
A strict application of the transnational principle would call for una-

nimity when taking global decisions. However, while required by some
treaties, unanimity is mitigated in various ways. International stand-
ards oblige collective bodies to make every effort to reach agreements
by consensus. If this cannot be achieved, then the decision can be taken
by means of a majority vote (usually two-thirds or simple majority).
The horizontal and vertical relationships that make up the global

system are intertwined. However, the vertical relationships are non-
hierarchical and are based on the logic of collective action, rather than
on a rigid separation.
First, vertical relationships are established on the basis of competing

functions, which require mixed procedures. For example, the Patent
Cooperation Treaty of 1970 (PCT) provides for the possibility of a
preliminary examination, to be conducted at the international level
through discussions with the applicant. This ends with a preliminary
investigation, which is transferred to the national authority, entrusted
with the final decision. The proceedings are therefore partly global and
partly national. The two “levels of government” share their powers.
Second, the heterogeneity of the regimes, which differ by sector, and

the complexity of the global space, require the establishment of func-
tionally differentiated relationships, depending on the various spheres
of activity (for example, environmental protection or food safety), on
the nature of the national citizenry, and on the existing structures at
global level.
CASSESE_9781789904215_t.indd 31 21/01/2021 11:39

The latter variable is of particular interest, because there are many differ-
ent types of global administration. Alongside those formally established
as international bodies, as will be analysed further, there are adminis-
trations consisting of networks of national authorities, “distributed”
administrations guided by national regulators, “hybrid” administrations,
which are semi-public, and private administrations, which perform
regulatory functions commonly recognized as being public in nature.
Briefly, while the area of domestic legal orders is characterized by a

unitary government equipped with a general panoply of instruments
for action, the strength of which lies in its position of pre-eminence,
global regulators are organized in networks, where roles are fluid and
there is no single centre of government.
3.4 The empire of “adhocracy”
As mentioned, in domestic legal systems, a body of general rules gives

consistency and uniformity to the various branches. This is not the case
at the global level. Almost all human activities are governed by global
norms, from forest conservation to arms control, from food security
to the protection of refugees. These global regulatory regimes are very
different from one another. Some only establish frameworks, to be
fleshed out subsequently by state regulatory activities. Others provide
guidelines for national authorities. Some regimes impose standards
directly on private parties. Some call on other authorities (national
or global) to implement and enforce their rules. Other regimes pro-
vide for tools for the judicial resolution of conflicts, while yet others
envisage negotiation or national adjudication only. The world of global
regulatory bodies and regulation is therefore the empire of “adhoc-
racy”, without a common pattern or uniformity, very much like the
feudal anarchy of the Middle Ages.
As mentioned, the global legal space addresses the drawbacks of sec-

torialism in various ways. One is to develop basic principles through
a process of accumulation, as in the first decision of the International
Tribunal established by the Convention on the Law of the Sea. Another
– as already seen– is to establish horizontal connections between the
different regulatory bodies.
The standards produced by global institutions are addressed either

to domestic administrations or to national civil society directly. For
CASSESE_9781789904215_t.indd 32 21/01/2021 11:39

example, the WTO imposes a range of obligations on national admin-

istrations, such as ensuring transparency, guaranteeing equivalence,
and introducing consultation procedures. When global standards are
addressed to private parties, compliance is secured either by national
administrations acting on behalf of global regulators, or through spon-
taneous implementation, which may be encouraged by the market
(an example being banks’ financial statements, which are presented
according to standards set at international level).
3.5 An absolute government?
The global legal space lacks a body of general and common rules. Can
one say that there is a global “rule of law”?
This question can be answered in the affirmative. One of the most

striking aspects of the global legal space is the speed at which the
principles of the rule of law have developed. These principles include
transparency, the duty to hear interested parties, the duty to provide
reasons for decisions, and judicial review. Rules that took decades–
sometimes centuries– t o develop in states, rapidly became entrenched
and expanded beyond the state, at times finding even broader applica-
tion. This rapidity is probably explained by the fact that almost all
states have experienced a historical phase characterized by absolutism,
in which the principle of authority prevailed over that of liberty. The
rule of law, on the contrary, thus found a smoother path in the global
space. The principles of the rule of law had already been experienced
inside states and were easily transplanted into the global regulatory
regimes.
The principle of transparency, the right of defence, the duty to give

reasons, and judicial review are frequently established in global norms.
However, it is interesting to examine which parties these norms are
imposed on, and which parties they benefit.
First, global regulations impose these measures on national adminis-

trations, to the benefit of private individuals. Thus, global regulations
strengthen similar national provisions– where they exist– but also
widen their scope, because they benefit citizens of other countries too.
Second, global regulations also impose these norms on global organi-

zations, in favour of national administrations. In this case, global
CASSESE_9781789904215_t.indd 33 21/01/2021 11:39

administrations themselves are required to submit to the rule of law,

to the benefit of states
Third, global standards directly subject global institutions to the rule

of law in favour of private parties, regardless of the national legal order
to which these belong. In this case, the rule of law is structurally similar
to its national equivalent.
Fourth, global standards impose the rule of law on national adminis-

trations vis-à-vis other national administrations, and on global admin-
istrations, to the benefit of other global bodies.
This taxonomy illustrates the greater richness of the rule of law in

the global space, compared to its national equivalent. The rule of law
can operate vertically, in which case private parties can interact with
national and global administrations, and national administrations with
global administrations. It also operates horizontally, in favour of both
national and global administrations vis-à-vis other national and global
administrations.
The global norms in question give rise to a variety of ties between the dif-
ferent “levels of government”, and between these levels and civil society.
In conclusion, the global legal space is not at a primitive stage of devel-

opment. According to some critics, it is an order based on negotiations,
in which parties do resort to the “law”, which, however, cannot be
considered such in the full sense of the word. And yet, the fact that the
global space does contain binding rules addressed to private parties, an
institutional framework, courts and quasi-judicial bodies suggests that
it is indeed subject to the rule of law.
3.6 Judicial globalization
Three phases in the development of global (administrative) justice can

be seen.2 The first is the dyadic, horizontal stage. This is based on
2 On global courts and judicial globalization, J.S. Martinez, “Towards an International Judicial
System” (2003) 56 Stanford Law Review 429–529; A.-M. Slaughter, “A Brave New Judicial World”,
in M. Ignatieff (ed.), American Exceptionalism and Human Rights, Princeton, NJ, Princeton
University Press, 2005, pp. 277–303; K.J. Alter, “Delegating to International Courts: Self-binding
vs. Other Binding Delegation” (2008) 71 Law and Contemporary Problems 37–76; Y. Shany,
“No longer a Weak Department of Power? Reflections on the Emergence of a New International
CASSESE_9781789904215_t.indd 34 21/01/2021 11:39

cooperation between the parties, which adopt countermeasures and

similar instruments. The second stage can be defined as the triadic one,
as it is based on arbitrations and panels, third-party dispute settlement
mechanisms, no longer allows for optionality (and is therefore manda-
tory), undergoes a process of “juridification” and envisages the use of
sanctions. In the third stage, rights and duties deriving from interna-
tional obligations are protected and assume constitutional relevance.
Since 1990, the number of global courts has grown rapidly. Before
then, there were only six such bodies: the global legal space could be
said to have a law, but no judges. Today, there are over 100 courts that
may be defined as global. An adjudication system has developed in
which one party can bring an action before an impartial body, which
issues decisions that are binding on the other party to the dispute.3
The rapid development of global judicial systems is exemplified by the

experience of one of the most complex jurisdictions existing today,
that of the WTO.4 In 1948, during the GATT negotiations, diplomats
had excluded lawyers from the bodies of the new institution and
opposed any legal form of dispute resolution. In 1950, a triadic system
of dispute resolution emerged, in the form of “panels” of three to five
members (usually diplomats), operating on the basis of the agreement
of the parties to the dispute. In the 1970s and 1980s, however, the
system became judicialized. Increasingly, the litigating parties were
states. The panels began to use the GATT as a set of binding rules,5 to
Judiciary” (2009) 20(1) The European Journal of International Law 73–91; S. Cassese, I tribunali
di Babele. I giudici alla ricerca di un nuovo ordine globale, Rome, Donelli, 2009; B. Kingsbury,
“International Courts: Uneven Judicialisation in Global Order”, in J. Crawford, M. Koskenniemi
and S. Ranganathan (eds), The Cambridge Companion to International Law, Cambridge,
Cambridge University Press, 2012, pp. 203–227; R. Howse, “The World Trade Organization 20
Years On: Global Governance by Judiciary” (2016) 27(1) European Journal of International Law
9–77; L. Boisson de Chazournes, “Plurality in the Fabric of International Courts and Tribunals: The
Threads of a Managerial Approach” (2017) 28(1) The European Journal of International Law 13–72.
3 See A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe, Oxford, Oxford
University Press, 2000; F. Stroink and E. Der Linden (eds), Judicial Lawmaking and Administrative
Law, Cambridge-Antwerpen, Intersentia, 2005; T. Ginsburg, “International Judicial Lawmaking”, in
S. Voigt, M. Albert and D. Schimdtchen (eds), International Conflict Resolution, Heidelberg, Mohr
Siebeck, 2006, p. 172; A. von Bogdandy and I. Venzke (eds), International Judicial Lawmaking,
Berlin, Springer, 2012.
4 Notwithstanding the aggressive “war” launched by the United States of America on the global
trading system in 2018.
5 A. Stone Sweet, “Judicialization and the Construction of Governance” (1999) 32(2) Comparative
Political Studies 164.
CASSESE_9781789904215_t.indd 35 21/01/2021 11:39

demand compliance. Their interpretation of the rules became authori-

tative, and jurists and trade specialists took the place of the diplomats
on the panels. The process generated the conditions necessary for the
emergence of an adjudicatory system– the one currently in force.
Four elements of global judicialization are important: judicial speciali-

zation, the parties that can appear before the courts, the legal effects of
decisions, and their implementation.
As for the first aspect, the global legal space is still rudimentary. There
are no constitutional judges, civil law judges or administrative law
judges. Only criminal judges have emerged as a separate and special-
ized group, while other global courts have mixed jurisdictions– partly
constitutional, partly civil and partly administrative.
As for the parties, the situation is far from uniform. National authori-
ties can appear before the International Tribunal of the Law of the
Sea. Individuals and the World Bank can initiate proceedings before
the World Bank’s Inspection Panel. Only private parties may appear
before the Administrative Panel of the Arbitration and Mediation
Center of the World Intellectual Property Organization (WIPO), even
if its decisions produce effects on national systems. As for the Arbitral
Tribunal of the International Centre for Settlement of Investment
Disputes (ICSID), states party to the agreement in question and private
individuals belonging to other contracting countries can appear before
it. These few examples show that disputes before global judicial or
quasi-judicial bodies do not concern the interstate level alone, but also
reach national civil society, and that they are frequently legal disputes
having a polycentric nature.
As a rule, the decisions of national judicial and quasi-judicial bodies are

directly effective, because they do not need other decisions to produce
effects. A good example is the International Tribunal of the Law of the
Sea. Other times, decisions require further compliance. This is the case
with the WTO Appellate Body, whose decisions must be adopted by
the Dispute Settlement Body (which is the WTO’s General Council in
another capacity).
Generally, global judicial and quasi-judicial bodies do not have enforce-

ment and sanctioning powers, and rely on state bodies for these pur-
poses. However, they may also resort to further mechanisms, such as
that adopted by the WTO: dispute settlement bodies can compel states
CASSESE_9781789904215_t.indd 36 21/01/2021 11:39

to pay compensation and, conversely, allow them to adopt retaliatory

measures. Thus, a form of “private justice” is used. However, while
states can “take the law into their own hands”, they must also submit to
detailed rules– subject to judicial control– governing the grounds for
retaliation, its proportionality, and how it is to be calculated.
The rapid judicialization of the global legal space does not mean that
there is a perfectly developed judicial system beyond the state. There is
a strong continuity between the new form of third-party settlement of
disputes and the traditional system of negotiation through diplomatic
channels. Finally, the process of global judicialization is further com-
plicated by competition between judicial systems and by the interac-
tion between domestic and global judicial systems.
3.7 The global constitution
If the global legal space has its public institutions, does it also have a
constitution? Is constitutionalism limited to domestic law, or does it
also extend to the global arena?6
As noted above, the global space does contain the three branches of
government known to the national arena: the legislative, the executive
and the judiciary. A lawmaking power has developed, consisting of
both “unconventional” (“non-contractual” or “non-treaty lawmaking”)
standards and customary rules. Less developed is the executive power,
which consists of many sectoral bodies performing even minute tasks.
6 On constitutional globalization, A. Fischer-Lescano, “Die Emergenz der Globalverfassung” (2003)

63 Zeitschrift für ausländisches öffenliches Recht und Völkerrecht 717 ff; C. Joerges, I.J. Sand and
G. Teubner (eds), Transnational Governance and Constitutionalism, Oxford, Hart Publishing,
2004; A. Peters, “The Globalisation of State Constitutions”, in J. Nijman and A. Nollkaemper
(eds), New Perspectives on the Divide between National and International Law, Oxford, Oxford
University Press, 2007, p. 251; M. Kumm, “The Cosmopolitan Turn in Constitutionalism: On
the Relationship between Constitutionalism in and beyond the State”, in J.L. Dunoff and
J.P. Trachtman (eds), Ruling the World?: Constitutionalism, International Law, and Global
Governance, Cambridge, Cambridge University Press, 2009, pp. 258–325; J. Klabbers, A. Peters and
G. Ulfstein (eds), The Constitutionalization of International Law, Oxford, Oxford University Press,
2009; M.C. Ponthoreau, “La métaphore géographique. Les frontiers du droit constitutionnel dans
le monde global” (2016) 2 Revue international de droit comparé 1–18; A.F. Lang Jr. and A. Wiener
(eds), Handbook on Global Constitutionalism, Cheltenham and Northampton, MA, Elgar, 2017;
M.C. Ponthoreau, “‘Global Constitutionalism’, un discours doctrinal homogénéisant. L’apport du
comparatisme critique” (2018) January Jus Politicum– C onstitutionnalisme Globale 105–134;
L. Antonini, “Globalizzazione e nuove sfide del costituzionalismo” (2019) 2 Diritto pubblico 319–339.
CASSESE_9781789904215_t.indd 37 21/01/2021 11:39

Finally, there are a considerable number of courts, each of which con-

stitutes a separate system and recourse to which does not depend on
obtaining the consent of the parties to the disputes. This may be pre-
sumed to lead to frequent disagreements. Instead, courts often invoke
each other’s precedents, thus establishing a constructive dialogue that,
through mutual enrichment, leads to the formation of a common body
of law.
Additional signs of this process of constitutionalization are the

strengthening of a global civil society, the development of a global
public sphere and the growing number of transnational networks. Civil
society in the global dimension is developing because, as mentioned
above, a growing number of problems can be solved only in global
terms, and the mass media bring global problems to the national level.
Also, anti-globalization movements themselves reinforce globaliza-
tion, to the extent that they bring globalization to the fore in public
opinion. The demand for public interventions at the ultranational level
also produces, as already seen, the formation of global “ad hoc” net-
works. Finally, national branches of government (for example in the
spheres of competition, insurance and banking) establish connections
and networks with one another.
3.8 The globalization of democracy
Do– or should– global institutions enjoy direct or indirect democratic

legitimacy? Are– or should– global bodies and networks be account-
able to a community or a body representing it?
These questions raise the problem of global democracy, which was

already examined above from the point of view of the democratic
deficit. This problem has two different manifestations. On one hand,
there is the problem of the democratic legitimacy of global regula-
tory regimes. On the other, there is the question of global regulatory
regimes as a vehicle for the democratization of national governments.
As for the first problem, the traditional answer to the question of

whether global regulatory regimes enjoy legitimacy (that is, whether
there exists a demos providing them with legitimacy) was that the same
states that establish international organizations and regulate them
endow them with legitimacy. Thus, on this view, global regulatory
regimes enjoy indirect legitimacy.
CASSESE_9781789904215_t.indd 38 21/01/2021 11:39

However, to the extent that global regulatory regimes become auton-

omous from states and establish direct links with civil society, this
legitimacy appears to be insufficient. For example, how can a global
regulatory regime that was not established by states but by other inter-
national organizations be legitimized by states? On the other hand, if
these regimes have established direct ties with citizens and companies
within individual states, groups of states, or all states, imposing obliga-
tions upon them and controlling their activities, should they not be
accountable to these citizens?
Global regulatory regimes do suffer from a democratic deficit and from

a dominant role played by the Western and most developed coun-
tries, but this must be considered in the light of three elements. First,
unlike most states, they are not rooted in authoritarian or absolutist
traditions. Therefore, there is less need for democracy, which in the
state tradition originally served to counter the power of the executive
branch. Parliaments developed to keep governments under control,
before they assumed the role of giving the people a voice.
Second, while global regulatory regimes can issue orders and impose
obligations, in most cases they operate by setting standards and incen-
tives. Therefore, their coercive powers are limited and there is less
need to keep them under control.
Third, because it is difficult to establish a cosmopolitan parliament

or other democratic institutions on such a vast scale, the authorities
governing global regulatory regimes are developing a wide range of
accountability mechanisms (along the lines of the so-called delibera-
tive democracy model).
The second aspect of global democracy concerns global regulatory

regimes as facilitators, exporters or promoters of national democ-
racy. These regimes can foster the spread of democracy, facilitate the
transplantation or development of democratic institutions in national
systems where such institutions are non-existent or weak, and, some-
times, impose democracy from the outside, as occurred in World War
II.7
7 A. Marx and J. Wouters, Global Governance, Cheltenham and Northampton, MA, Edward Elgar
Publishing, 2018.
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3.9
Cui prodest?
Who benefits the most from globalization? Does the global legal
space lead to further privileges for developed states, to the detriment
of “pariah states”, or does it reinforce the imperialist position of the
United States of America alone as the greatest world power, in that it
facilitates the exportation of American law? Or is globalization a factor
in the circulation of legal models, because it also spreads institutions
and procedures that have been tested in developed nations?8
Legal globalization is full of ambiguities. Consider the role of the

United States. On the one hand, the country enjoys a superior posi-
tion in several respects. For example, as noted, ICANN, which has
global control of the DNS, is an American company. On the other
hand, global rules that may favour American multinational corpora-
tions, also constrain American trade. Global standards championed
by the United States to promote its companies’ foreign investments
are now used to compel their compliance with environmental and
health standards. If the United States wishes to protect its investments
abroad, it must accept that its domestic decisions may be under the
jurisdiction of global courts. If it wishes to protect endangered animal
and plant species around the world, then it must allow global judges to
check their relevant domestic policies. In other words, the strength of
global law lies in the fact that selective application of norms is difficult,
because it clashes with the principle of reciprocity. Global law is a two-
way street. States that dominate the world stage seek to exploit global
law to their advantage. However, at the same time, they must abide by
global norms themselves.
Finally, global regulation acts as a bridge for the circulation of some

legal cultures, especially “court-centred” legal cultures, which espouse
a “remedial” approach to law and “adversarial legalism”.
8 M. Bussani, Il Diritto dell’Occidente, Turin, Einaudi, 2010.
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4 Administrative globalization
4.1 Globalization today
While globalization is not a new phenomenon, its contemporary

manifestation has peculiar characteristics.
This new phase of globalization has four main characteristics. The first is
the growth and strengthening of multilateralism, which was previously
limited to certain areas. Multilateralism entails joint action and a greater
stability, and leads to the creation of supranational and global organiza-
tions. These developments do not prevent bilateralism, which has con-
tinued to proliferate especially since 2016–2017, due to the resurgence
of nationalisms, the growth of populism, and the global economic crisis.
The second feature of the new phase of globalization is the widespread

diffusion of global regulatory regimes. There is now at least one such
regime in every area, each with different competences, to balance the
need for uniformity with respect for national and sectoral diversities
(for example, the disposal of nuclear waste cannot be dealt with in the
same way as health control).
The third feature is “governance by goals”, consisting in the determina-

tion of long-term goals and the subsequent organization and oversight
of roles, activities and time.
Finally, just like the ruled/rulers dialectic is central to states, the cur-
rent form of globalization has a global regulation/states/civil societies
dialectic at its core. As a rule, but not always, states are the founders
and “masters” of supranational organizations. They exercise this func-
tion collectively (and this is the first difference they present compared
to the Westphalian concept of state). However, states are also the
addressees of the guidelines, standards and norms issued by global
regulatory authorities. Therefore, they are both masters and “servants”.
In addition, a significant proportion of supranational standards exerts
41
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pressure on states themselves, from the bottom up (an example is the

United Nations Democracy Fund (UNDEF), which finances civil soci-
ety organizations and can exert pressure on national governments to
promote transparency, participation, free elections and universal suf-
frage). Global organizations and civil society pool forces against states,
triggering a tripolar conflict.
4.2 An “administrative” form of globalization
At the core of this phase of globalization lie administrative bodies,

governed by detailed rules and procedures on functions, structures,
staff, and judicial or quasi-judicial review.
Administrative bodies are central to this phase of globalization because

the functions performed at the ultra-state level– such as regulating
fishing in non-territorial waters, resolving trade disputes, adopting
standards that prohibit forced labour, contrasting the spread of pan-
demics, identifying and adopting measures against persons suspected
of terrorism, fighting global warming, regulating sport and organizing
Olympic Games– pertain to the administrative function.
However, there are also other reasons. It is easier to create global

regulators from the bottom up. They operate at “lower” levels, meeting
social needs– such as environmental protection, food safety, control
of air navigation, protection of marine species, and air pollution– t hat
concern large communities. It is more difficult to move at the higher
levels, which involve the allocation of constitutional powers, thus call-
ing politics into play and limiting state sovereignty.
What are the characteristics of administrative globalization? First,

while national administrations are generally multi-purpose in nature,
global administrative regulators are examples of “single-issue” organi-
zations, each subject to ad hoc rules without there being an overarch-
ing structure of general and uniform regulations and a superior body.
It follows that administrative staff consists mainly of sectoral special-
ists. However, contradictory norms have emerged, as, on one hand,
recruitment should be carried out on a global scale and there should
be no barriers to entry, but on the other, as mentioned, states require
the observance of national staff quotas. While international civil serv-
ants should be independent from states, a certain number of seats is
reserved to developing countries.
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ADMINISTRATIVE GLOBALIZATION 43
The financing of global regulatory bodies is almost entirely depend-

ent on nation-states, as global regulators do not have the power of
taxation.
Many global regulators act according to open procedures: the duty

to inform, the timely circulation of draft measures, the right of their
addressees to be heard and the duty to give reasons are cornerstones of
global procedural regulation. These ensure “justice in administration”
and dialogue between the citizen and the administration, by establish-
ing direct relations between global regulators and civil societies, and
bypassing national states. These participatory rights act as surrogates
of representative democracy.
An administrative system is not complete without a mechanism for

judicial review. In the global space, on one hand, there exist verit
able administrative courts; on the other, however, there are numerous
quasi-judicial bodies. The latter have more limited powers, but wider
functions. Their powers are limited because they provide opinions to
decision-making bodies (in a role similar to that of the French Conseil
d’État between 1800 and 1872, when it was only an advisory, and not a
judicial, body). Their functions are broader, however, because they are
not only “reactive” but also “proactive” (they provide advice for future
situations, and promote and prepare programmes to address the issues
that had given rise to wrongful acts and the related complaints).
4.3 The global regulators/national administrations

dialectic
Relations between global administrations and national administrations
are an essential component of administrative globalization. On the one
hand, national administrations contribute to the establishment and
operation (through consultation and cooperation) of global regulatory
bodies. On the other, global regulatory bodies issue directives, guide-
lines and standards; they set criteria; and establish methods of action,
addressed mainly to national administrations.
As noted above, however, these are not only two-way relationships,

because their ultimate recipients are always citizens, who are relevant
in various ways. For example, they may be recipients of the benefits of
global organizations. A case in point is that regarding the World Bank
and the city of Mumbai, which we have already explored above. Three
CASSESE_9781789904215_t.indd 43 21/01/2021 11:39

levels interacted: Indian civil society, Indian regional and state govern-
ments and the global level.
Citizens’ intervention as an “alarm” system is common in global

administrative law. It ensures two important functions: protecting
citizens against state decisions, when these affect global principles, and
ensuring that states comply with global standards.
The weakness of global organizations lies in enforcement, as states

retain a monopoly over the legitimate use of force. Therefore, once a
decision has been reached, global regulators must refer to the states
for implementation. For example, if the UNSC’s Sanctions Committee
designates a person as a suspected terrorist and provides for the sei-
zure of his assets, national measures must enforce those provisions
through national police authorities. On the basis of the 1945 Charter,
the UN’s important peacekeeping function is carried out by states.
Global regulators have powers of enforcement only in certain areas,
such as the WTO’s aforementioned “retaliation” procedure.
4.4 The chameleon state
This analysis would not be complete without returning to the subject

of the state. Acting collectively (and therefore multilaterally), states
create global regulators, legitimizing, influencing and controlling them.
At the same time, states are among the addressees of global standards
and their sovereignty is constrained, because they must submit to the
dictates of “higher” organizations.
These links between states and global organizations also produce

a verticalization of power (approximately one-quarter of the work-
ing time of top-ranking national administrative staff is dedicated to
problems that once would have fallen under foreign policy); a shift of
the power to allocate functions from the national to the global level
(global regulators often establish which internal body of the state has
competence over certain affairs); and a blurring of the divide between
domestic and foreign policy.
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5 The global administrative
machine
5.1 Global actors and their networks
As mentioned, from a formal point of view, all members of the interna-

tional community are legal equals. But there are important differences
in terms of power and influence. It follows that states are not, in fact,
equally sovereign.
Global actors include states as well as national agencies. Most global

regulations develop from the interaction between domestic agencies
and global regimes. In the global arena, there is a dis-aggregation of the
state. The paradigm of “the state as a unit” is lost.
In addition, as noted, members of international organizations com-

prise not only states, but also non-national institutions. It is therefore
advisable to avoid the common description of these organizations as
“intergovernmental” in nature.
As observed by prominent scholars of global administrative law:
Five main types of globalized administrative regulation are distinguishable:

administration by formal international organizations; administrations based
on collective action by transnational networks of governmental officials;
distributed administration conducted by national regulators under treaty
regimes, mutual recognition arrangements or cooperative standards;
administration by hybrid intergovernmental-private arrangements; and
administration by private institutions with regulatory functions. In practice
many of these layers overlap or combine . . .1
Recent initiatives are “designed to include civil society– defined as all

interest and identity associations outside the state– in the g overnance
1 B. Kingsbury, N. Krisch and R. Stewart, “The Emergence of Global Administrative Law” (2005) 68
(3–4) Law and Contemporary Problems 20.
45
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activity of international organizations. . . when the [World] Bank issues

a loan for a specific development project such as a dam, it requires that
the recipient government consult with the local residents and Non
Governmental Organizations– NGOs– to design relocation plans and
environmental preservation measures”.2
Also, “Non Governmental Organization– NGO– involvement in

all processes of International Governmental Organizations– IGO–
activities, ranging from monitoring treaty obligations, treaty-genera-
tion processes, and treaty implementation processes at the national
level, has been crucial and indispensable. . . they have creatively fed
their knowledge and expertise into the decision-making processes at
all levels”.3
The global legal space, while pervasive, is not entirely universal. Some
states are not members of all international organizations. In fact, the
area of influence of some global institutions is merely regional in scope.
In several areas, there are multiple global regulators. For example,

the environmental sphere alone includes the following interna-
tional organizations: the International Whaling Commission, the
International Tropical Timber Organization, and secretariats for
each of the United Nations Framework Convention on Climate
Change, the United Nations Environment Programme (UNEP), the
Convention on Biological Diversity, the Convention on International
Trade in Endangered Species of Wild Flora and Fauna, the United
Nations Convention to Combat Desertification, the UNEP Convention
on Migratory Species, and the Food and Agriculture Organization
(FAO) and UNEP Secretariat on the Rotterdam Convention on Prior
Informed Consent.
Several conclusions may be drawn from the above observations.

International organizations do not rely on states alone, as they have
established direct dialogue with civil society. States are more powerful
than is usually thought, because they play a twofold role in the global
2 F. Bignami, “Civil Society and International Organizations: A Liberal Framework for Global
Governance”, Duke Law Faculty Scholarship Paper No. 1126/2007, p. 3.
3 E. Riedel, “The Development of International Law: Alternatives to Treaty-Making? International
Organizations and Non-State Actors”, in R. Wolfrum and V. Roeben (eds), Developments of
International Law in Treaty Making, Berlin, Springer, 2005, p. 317; see also the comment of
S. Hobe on Riedel’s article, ibid, p. 328.
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THE GLOBAL ADMINISTRATIVE MACHINE 47
legal space: they act according to the state-as-unit paradigm, and they
also act through their own agencies, according to the fragmented-state
paradigm. However, at the same time, states are also less powerful than
we may commonly think, in that they share their role within global
institutions with NGOs. To say that states are equally sovereign does
not correspond to reality. National and global governance cannot be
presented as a two-level system, as civil society organizations, domes-
tic agencies and supranational organizations all play a role as global
actors. Finally, global regulators– w
hich cannot be considered mere
agents of states or national agencies– p enetrate domestic agencies,
which therefore lose their independence.
International and regional organizations, states and non-state actors

are involved with one another and follow the logic of collective action.
This:
is becoming a heterogeneous, multilayered logic, derived not from one

particular core structure, such as the State, but from the structural com-
plexity embedded in the global arena. Globalization does not mean that
the international system is any less structurally anarchic; it merely changes
the structural composition of that anarchy from one made up of relations
between functionally differentiated spheres of economic activity, on the one
hand, and the institutional structures proliferating in an ad hoc fashion to
fill the power void, on the other.4
5.2 How the global administrative machine works

As mentioned, the global legal space does not feature a higher author-
ity. Also, the hierarchy present in domestic governments cannot be
found. Nor is there uniformity, as some global regimes are more devel-
oped than others. Given these conditions, how can the global machine
work? What are the principles and rules on which it is based?
As already observed, the first rule of the global machine is trans-

actionalism.5 An example is Article 16.1 of the Convention for the
Conservation of Southern Bluefin Tuna (20 May 1994):
4 P.G. Cerny, “Globalization and the Changing Logic of Collective Action” (1995) 49(4) International
Organization 620.
5 J.H.H. Weiler, “The Geology of International Law– Governance, Democracy and Legitimacy”
(2004) 64(3) Zeitschrift für ausländisches öffenliches Recht und Völkerrecht 547 ff.
CASSESE_9781789904215_t.indd 47 21/01/2021 11:39

If any dispute arises between one or more of the Parties concerning the
interpretation or the implementation of this Convention, those Parties shall
consult among themselves with a view to having the dispute resolved by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement
or other peaceful means of their own choice.
Note the importance of governance by contract: a convention provides

for contractual means of conflict resolution.
All six methods of dispute resolution mentioned are worth studying,

but the handling of international disputes by means of inquiry is espe-
cially interesting, as demonstrated by the Red Crusader case between
Denmark and the United Kingdom (1962). In this case:
Two traditionally friendly countries, members of the same military alliance,

searching for a speedy way to settle their dispute . . ., found that the set-
ting up of a commission of inquiry would be the most suitable method of
meeting the exigencies of the situation. The commission lived up to their
expectations by providing them with the basis for a satisfactory settlement.6
The second rule of the global machine is that it is based on a blend

of consensus, unanimity and various types of majoritarian principles.
For instance, all intergovernmental bodies of the United Nations
Conference on Trade and Development (UNCTAD) take decisions
by consensus. Article 11 of the International Agreement on Olive Oil
and Table Olives (1986) prescribes decision-making by consensus in
the International Olive Council. Article 15 of the Rules of Procedure
of the Committee for Environmental Protection (of the Antarctic
Treaty) provides that “where decisions are necessary, decisions on
matters of substance shall be taken by consensus of the members of
the Committee participating in the meeting”. If decisions regard pro-
cedural matters, a simple majority is enough. If the Committee must
determine whether a question is substantive or procedural, it must
decide by consensus.
The bodies of some global institutions require unanimity. For instance,

the Rules of Procedure of the Commission for the Conservation of
the Southern Bluefin Tuna (21 April 2001), Article 6.1, provides that
6 N. Bar-Yaacov, The Handling of International Disputes by Means of Inquiry, Oxford University

Press, 1974, p. 195; see also H. Lauterpacht (ed.), International Law Reports, vol. 35, London,
Butterworths, 1967, p. 485.
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“[d]ecisions of the Commission shall be taken by a unanimous vote of

the Members present at the Commission meeting”.
Consensus is a rigid rule that produces inertia, as in the historical

case of the Polish Diet. However, as seen above, the regulations issued
by global institutions also provide for ways to soften or escape this
rigidity. In the first case, what is usually required is the consensus of
the members participating in the meeting, and not of all members of
the organization. Let us also consider the following three provisions.
The Rules of Procedure (2013) of the Executive Committee of the High
Commissioner’s Programme of United Nations for Refugees (UNHCR),
Article 26, provides that “the Chairperson will, in the ordinary course
of business, ascertain the sense of the meeting in lieu of a formal vote.
If the Committee proceeds to a vote, each representative shall have
one vote. Decisions of the Committee shall be made by a majority
of the members present and voting . . .”. The Rules of Procedure of
the Codex Alimentarius Commission, Article X.2, provides that “[t]he
Commission shall make every effort to reach agreement on the adop-
tion or amendment of standards by consensus. Decisions to adopt or
amend standards may be taken by voting only if such efforts to reach
consensus have failed”. The International Plant Protection Convention
(1997), with regard to the Commission on Phytosanitary Measures,
Article XI.5, provides the following: “the contracting parties shall
make every effort to reach agreement on all matters by consensus. If
all efforts to reach consensus have been exhausted and no agreement
is reached, the decision shall, as a last resort, be taken by a two-third
majority of the contracting parties present and voting.”
Consensus can also be used for a different purpose, such as in the case
of reverse consensus. For example, the WTO Dispute Settlement Body
must reach a consensus to reject a Report of the WTO Appellate Body.
Finally, consensus is not an absolute rule. The General Rules of the Office
International des Epizooties, Article 6, requires decisions to be taken by
a simple or absolute majority (only modifications of the Agreement
establishing the Office and of its Organic Statutes require “common
consent”). A majority of the members present is necessary for deci-
sions made by the International Association of Insurance Supervisors
(IAIS), and for decisions that do not concern the adoption or amend-
ment of standards within the Codex Alimentarius Commission (Rules
of Procedure, Article VI.2); while a two-thirds majority is required
by Article 15 of the Constitution of the International Civil Defence
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Organization (1966). The Montreal Protocol on Substances that

Deplete the Ozone Layer states that a two-thirds majority may adopt
“adjustments” to the Agreement’s reduction schedule, which are then
binding on all parties to the original instrument.
The third rule is that the global “machine” is the result of a mixture
of market forces and planning. Two good examples are the anti-
dumping duties and the retaliatory measures of the WTO system.
As for anti-dumping duties, in order to offset or prevent dumping, a
contracting party may levy on any dumped product an anti-dumping
duty not greater in amount than the margin of dumping in respect of
such products. With regard to retaliatory measures, Article 22 of the
Understanding on Rules and Procedures governing the Settlement of
Disputes (DSU) provides that, in the event that the recommendations
and rulings of the WTO Dispute Settlement Body are not implemented
within a reasonable period of time, decisions regarding compensation
and the suspension of concessions or other obligations can be adopted.
Note that in the first case, a national government reacts to a foreign
company’s decision, while in the second case, a national government
reacts to a foreign government’s decision.
The fourth rule of the global machine is that of transnationalism.

Global governance focuses on vertical links and on horizontal rela-
tionships. This transgovernmental cooperation produces a form of
administration that operates by means of agreements made beyond
the state. As for the first, “[i]nter-agency co-operation in international
economic law is a central element of global economic governance”.7 As
for the second, government networks “[a]t the most general level. . .
offer a new vision of global governance: horizontal rather than verti-
cal, decentralized rather than centralized, and composed of national
government officials rather than a supranational bureaucracy”.8
A good example of horizontal links are mutual recognition agreements.

The Agreement on Mutual Recognition between the United States of
America and the European Community (1997), Article 2, provides that
“each Party will accept or recognize results of conformity assessment
procedures, produced by the other Party’s conformity assessment
7 C. Tietje, “Global Governance and Inter-agency Co-operation in International Economic Law”

(2002) 36(2) Journal of World Trade 515.
8 A.-M. Slaughter, “Governing the Global Economy through Government Networks”, in M. Byers
(ed.), The Role of Law in International Politics, Oxford, Oxford University Press, 2000, p. 193.
CASSESE_9781789904215_t.indd 50 21/01/2021 11:39

bodies or authorities, in assessing conformity to the importing Party’s

requirements . . .”. Mutual recognition “consists in intermingling
domestic laws in order to ‘constitute’ the global”.9
It is important to highlight the reasons for and effects of transnational-

ism. As for the reasons, the more national markets open up to one
another, the more evident the asymmetries are. To reduce these asym-
metries and level the playing field, global rules can establish general
principles, but cannot regulate matters in detail. Therefore, mutual
agreements play an important role.
The reliance of the global legal space on horizontal linkages and net-
works produces three effects. As noted earlier, it reduces the “verti-
cality” of the global machine, because the superioritas of the higher
authorities rests on an intricate web of horizontal and contractual rela-
tions.10 As mentioned, it facilitates the political transfer or transplant
of institutions from one national legal order to another11 and stimu-
lates the search for functional analogies hidden by formal differences
in national systems.12
The transnational component of legal globalization suggests caution

in hypothesizing the withering away of the state or the flight of power
beyond the state, because the dynamic of global administrative law is
largely dependent on the state or state fragments.
The fifth rule of the global machine is that of shared powers. An

example may be found in the PCT, which establishes a mechanism for
cooperation between national and global authorities. As mentioned
previously, proceedings are partly global and partly domestic. The two
levels of government share powers with one another.
The sixth rule of the global machine is that hybrid regulatory and
9 K. Nicolaidis and G. Shaffer, Managed Mutual Recognition Regimes: Governance without Global
Government, IILJ NYU Law School Working Paper, No. 6, 2005, p. 8.
10 On the metaphor of “verticality”, see P. Costa, “Immagini della sovranità fra medioevo ed età
moderna: la metafora della ‘verticalità’” (2004) 31 Scienza e Politica 9.
11 On the import/export of institutions, see P. Pombeni, “I modelli politici e la loro ‘importazione’
nella formazione dei sistemi politici europei” (2004) 31 Scienza e Politica 69. Transplants, in
turn, favour “contagions”, as once legal principles and institutions have been introduced into a
particular sector, they spread via analogy and court action and become general.
12 This was the purpose of the “Cornell Common Core Project”, launched and carried out in the
early 1960s by Rudolf Schlesinger.
CASSESE_9781789904215_t.indd 51 21/01/2021 11:39

administrative governance prevail. “Standardisation is being privat-

ized throughout the developed world to facilitate the harmonization
of technical specifications.” At the same time, “[n]ational standards
bodies themselves. . . are rapidly losing power in the emerging system
of private ‘supranationalism’”. The result is “the emergence of a rela-
tively autonomous system of law making beyond the State”, the “con-
stitution of private governance”. In this system, “the public/private
distinction ceases to make sense”.13
What helps the global machine work, given such a confused picture,
is the lack of a fixed role for global actors. This gap emphasizes their
power-maximizing role because it attaches incentives to their actions
as power-seekers.
To sum up, the domestic arena is dominated by hierarchies and estab-

lished roles, a monopoly over relations with civil society on the inside,
and contractual relations with other states on the outside. On the con-
trary, the global arena is dominated by networks, fluid roles and shift-
ing alliances. In the global arena, the “winners” are those that establish
direct links with civil society, thus breaking the monopoly of the states.
The loosely structured global machine produces a great deal of fluctua-

tion, but also a rapid evolutionary process; in fact, most of the develop-
ments in the global space occurred only in the last 30 years.
13 H. Schepel, The Constitution of Private Governance. Product Standards in the Regulation of

Integrating Markets, Oxford, Hart Publishing, 2005, pp. 405 and 414. See also J.D. Donahue and
R.J. Zeckhauser, Collaborative Governance. Private Roles for Public Goals in Turbulent Times,
Princeton, NJ, Princeton University Press, 2011.
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6 Regulation, adjudication and
dispute settlement beyond the
state
6.1 The globalization of regulation
Almost all human activities are subject to some form of global regula-
tion. As seen above, this is unsurprising, given that global regulatory
regimes affect an enormous range of fields, from forest preservation to
the control of fishing, water, environmental protection, arms control,
standardization and food safety, financial and accounting standards,
Internet governance, pharmaceutical products, intellectual property,
refugee protection, coffee and cocoa standards, labour standards, anti-
trust, and more.
As noted, these regulatory regimes are vastly different from one

another. Some simply provide a framework for state action, others
establish guidelines for domestic agencies, and others direct their
action towards national civil societies. Some regulatory regimes create
their own implementation agencies, while others rely on national
or regional authorities for their implementation. To settle disputes,
some regulatory regimes have judicial bodies, while others resort to
negotiation.
Taken together, these regulatory regimes present five main problems.

First, there is significant overlap between them. Second, they have a
strong impact on domestic regulatory powers. Third, they establish
standards for private parties, bypassing national regulatory authorities.
Fourth, their provisions are often binding. Finally, their enforcement is
seriously problematic.
The first of these problems is that of interconnection between regimes.

As observed by the International Tribunal for the Law of the Sea,
“there is frequently a parallelism of treaties” and “the current range
of international legal obligations benefit from a process of accretion
53
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and cumulation”,1 an interconnection that has been called the “regime

complex”.2
As noted above, “the Codex Alimentarius Commission (CAC) has

changed after the World Trade Organization (WTO) referred to it as
the reference point for the elaboration of international food standards”.
Before 1995, “it was entirely voluntary for member states to base their
national regulations on Codex standards”. After 1995, a state wishing
to implement more stringent food standards than those imposed at
global level must demonstrate the scientific basis for its measure and
its compliance with the level of protection established by the CAC.3
The two global regulatory regimes thus reinforce each other.
The separation of standard-setting from standard enforcement gives

rise to new problems relating to accountability: “[i]f third parties
enforce standards, it will be especially difficult for the standard users
to hold the standard setters accountable for the consequences of those
standards”. Again, “decoupling rule making and enforcement is the key
to the accountability deficit of standards”.4
The principle that WTO rules are not to be interpreted in isolation

from other general rules of public international law was established
by the first WTO Appellate Body decision.5 It follows that the many
regulatory regimes are not self-contained, because they do not exist
in isolation from other rules of global law. Therefore, for example,
trade rules must be interpreted while taking into consideration rules
on environmental protection.
Global regulatory regimes have a far-reaching impact on national

regulation. Global law removes functions from the national field and
asserts control over national agencies. For example, many WTO agree-
1 International Tribunal (Annex VII UNCLOS), SBT Case, No. 52, 14 August 2000.
2 K. Raustiala and D.G. Victor, “The Regime Complex of Plant Genetic Resources” (2004) 58
International Organization 277; on “connecting regimes”, see also S. Battini, Amministrazioni
senza Stato. Profili di diritto amministrativo internazionale, Milan, Giuffrè, 2003, pp. 232 ff.
3 F. Veggeland and S. Ole Borgen, “Negotiating International Food Standards: The World Trade
Organization’s Impact on the Codex Alimentarius Commission” (2005) 18(4) Governance 683
and 701.
4 D. Kerwer, “Rules That Many Use: Standards and Global Regulation” (2005) 18(4) Governance
623–624.
5 WTO Appellate Body, US Standards for Reformulated and Conventional Gasoline, WT/DS2/
AB/R, 20 May 1996, p. 17.
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REGULATION, ADJUDICATION AND DISPUTE SETTLEMENT BEYOND THE STATE 55
ments impose obligations on national authorities to ensure transpar-

ency, provide harmonization, guarantee equivalence, and introduce
consultation and control procedures.6
As global regulation arises out of heterogeneous and fragmented

regimes, the interaction between the many conflicting global regimes
and the great variety of domestic regulations raises one major problem:
how can such a fragmented legal order command compliance on the
part of domestic governments? The answer lies in the new opportuni-
ties that global regulation provides for national regulatory agencies,
while at the same time imposing new obligations on them. There is
also another side to the coin: national legal and administrative cultures
use global regulation to capture new fields. For instance, American
adversarial legalism– in particular, the requirement to consult before
taking decisions, notice and comment procedures, and the right to a
hearing– is rapidly conquering the world through global regulation.
Global regulation has direct effect, inasmuch as it directly affects par-

ties regulated at the national or local level. An example is the quota
system for tuna fishing and the control of tuna importation. The
Convention for the Conservation of Southern Bluefin Tuna– S BT (20
May 1994), provides at Article 8.3 that “[f]or the conservation, manage-
ment and optimum utilization of SBT: a) the Commission shall decide
upon a total allowable catch and its allocation among the Parties . . .”;
its Article 8.7 continues by providing that “[a]ll measures decided upon
under para.3 above shall be binding on the Parties” (that is, Australia,
Japan, New Zealand, the Republic of Korea and Taiwan, Province of
China). Articles 1.1 and 1.4 of the SBT Statistical Document Program
(approved by the Commission for the Conservation of Bluefin Tuna
– CCBST– in October 2003) states that “[f]or the importation into
the territory of a Member, all southern bluefin tuna shall be accompa-
nied by a CCSBT– SBT Statistical Document . . .”. “The Commission
requests the appropriate authorities of exporting/fishing entities to
make the requirements under this Program known to their exporters.”
Consequently, domestic fishing entities are directly affected by the
CCBST’s decisions.7
6 S. Cassese, “Global Standards for National Administrative Procedure”, in “The Emergence of

Global Administrative Law” (2005) 68(3–4) Law and Contemporary Problems 7.
7 On the direct effect of global decisions, S. Battini, Amministrazioni senza Stato. Profili di diritto
amministrativo internazionale, Milan, Giuffrè, 2003, pp. 246 ff.
CASSESE_9781789904215_t.indd 55 21/01/2021 11:39

Global financial standard-setting agencies adopt standards that are

implemented directly by national private entities, such as banks. Those
standards penetrate into the national regulatory context and, while not
legally binding, are complied with in practice at the national level.8
Global regulatory decisions are binding. Even when they are not for-
mally binding, compliance is nevertheless monitored. And even when
they are not binding and compliance is not monitored, the decisions
are often complied with (“[e]ven if it is non binding, what does it
matter, if it is obeyed?”9).
Global regulation may sometimes be directly enforced by suprana-

tional regulators. Again, the SBT Convention provides a good example
of direct enforcement of global regulation. The Action Plan of the
CCSBT (21–23 March 2000) establishes the relevant rules. According
to Article 1, “[t]he Commission requests non-Members catching
SBT to cooperate fully with the Commission in implementing the
measures applicable to Members for conservation, management and
optimum utilization of SBT . . .”. Article 3 states that “[t]he Chair of
the Commission shall request those non-Members identified pursu-
ant to para. 2 to rectify their fishing activities so as not to diminish
the effectiveness of the conservation and management measures . . .”.
According to Article 5, “[t]he Commission will review. . . actions taken
by those non-Members to which requests have been made pursuant
to para. 3 and para. 4 and identify those non-Members which have
not rectified their fishing activities”. In Article 6, it is stated that “[t]he
Commission may decide to impose trade-restrictive measures consist-
ent with Members’ international obligations on SBT products, in any
form, from the non-Members identified pursuant to para. 5”. This
shows how non-members of the Convention can also be affected by
decisions taken by the Commission.10
8 S. Battini, “L’impatto della globalizzazione sulla pubblica amministrazione e sul diritto ammin-
istrativo: quattro percorsi” (2006) 3 Giornale di Diritto Amministrativo 339 ff; see D. Kerwer,
“Rules That Many Use: Standards and Global Regulation” (2005) 18(4) Governance 618 on the
many ways to enforce global financial standards. For an overview of financial regulation, see
M. De Bellis, La regolazione dei mercati finanziari, Milan, Giuffré, 2012.
9 D. Zaring, “Informal Procedure, Hard and Soft, in International Administration” (2005) 5(2)
Chicago Journal of International Law 547–603.
10 See F. Cafaggi (ed.), Enforcement of Transnational Regulation. Ensuring Compliance in a Global
World, Cheltenham and Northampton, MA, Edward Elgar Publishing, 2012.
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6.2 Global adjudication
Principles such as the right to a hearing, the duty to provide a reasoned

decision and the duty to disclose all relevant information have also devel-
oped and are enforced in the global arena. The development of these
procedural principles has had a twofold impact: they apply to global
decision-making processes and they can also affect domestic proceedings.
Basic principles for global procedures have been established by trea-

ties, statutory instruments, secondary legislation and global courts. In
the Juno Trader case (No. 13, 18 December 2004), the International
Tribunal of the Law of the Sea established that “[t]he obligation of
prompt release of vessels and crews includes elementary considera-
tions of humanity and due process of law. The requirement that the
bond or other financial security must be reasonable indicates that a
concern for fairness is one of the purposes of this provision” (para.
77). Note that the Tribunal held that respect for fairness and the due
process of law are obligations incumbent upon the national authorities
of Guinea-Bissau. Not only had these authorities detained the ship’s
crew; they had also failed to inform the shipowner that the bond paid
was unreasonable.
Article 34 of the PCT– as already observed– establishes the rights of the
applicant to communicate orally and in writing with the International
Preliminary Examining Authority, amend its claims, receive a written
opinion from the Authority, and respond to this written opinion. In
this case, procedural rules are imposed on global agencies.
Article 6.2 of the Agreement on Implementation of Article VI of the

GATT 1994 (Anti-Dumping Agreement) provides that “[t]hrough
the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests. To this end, the authori-
ties shall, on request, provide opportunities for all interested parties
to meet those parties with adverse interests, so that opposing views
may be presented and rebuttal arguments offered”. Article 6.4 of the
Agreement provides that “[t]he authorities shall whenever practica-
ble provide timely opportunities for all interested parties to see all
information that is relevant to the presentation of their cases . . .”. In
this case, the duty to provide interested parties with an opportunity to
obtain the relevant information and to be heard is imposed on national
agencies, to facilitate reactions on the part of foreign companies that
have dumped their products.
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Article 3.1 of the GATT Safeguard Measures and Article XIX of the
GATT establishes the duty to provide a reasoned and adequate deci-
sion, with explanations, to importers, exporters and other interested
parties (including foreign governments). In this case, global law sets
procedural rules for national agencies, and grants not only private par-
ties, but also foreign governments, the right to an explanation.
Article 7 of the Agreement on the Application of Sanitary and

Phytosanitary Measures (SPS Agreement) provides that “[m]embers
shall notify changes in their sanitary and phytosanitary measures and
shall provide information on their sanitary or phytosanitary measures
in accordance with the provisions of Annex B”. Paragraph 1 of this
Annex provides that “[m]embers shall ensure that all sanitary and
phytosanitary regulations which have been adopted are published
promptly in such a manner as to enable interested members to become
acquainted with them”.11 Here, the transparency principle is imposed
on individual national authorities mainly to benefit national authori-
ties in other states.
The global due process of law, compared to its domestic version, is

richer but also less effective. It is richer in that openness, participa-
tion and consultation are taken into consideration; it is less effective
because transparency, the requirement to provide reasoned decisions
and judicial review are not always granted; and when they are granted,
the decisions sometime cannot be enforced.12 Therefore, in the global
arena, not all aspects of the rule of law are developed.
6.3 Settling disputes through courts
In the global legal space, dispute settlement has developed through

arbitration, tribunals, panels and the like.13 Diplomacy has been
accompanied by third-party dispute settlement. The number of inter-
national courts and tribunals has grown rapidly.14
11 On this provision, see WTO Appellate Body, Japan– Measures affecting agricultural products, 22
February 1999, WT/DS76/AB/R.
12 See Y. Shany, Assessing the Effectiveness of International Courts, Oxford, Oxford University Press,
2016.
13 See H. Ruiz Fabri and E. Stoppioni, International Law and Litigation: A Look into Procedure,
Baden-Baden, Nomos, 2019.
14 See A.M. Slaughter, “Judicial Globalization” (2000) 40 Virginia Journal of International Law 1103
ff.
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One of the most important global dispute settlement bodies is the

WTO. Alec Stone Sweet aptly summarizes its development:
When GATT (1948) entered into force and was institutionalized as an

organization, “anti-legalism” reigned. . . Diplomats excluded lawyers from
GATT organs and opposed litigating violations of the Treaty. In the 1950s,
triadic dispute resolution emerged in the form of the Panel System. Panels,
composed of 3–5 members, usually GATT diplomats, acquired authority
through the consent of two disputing states. In the 1970s and 1980s, the
system underwent a process of judicialization. States began aggressively
litigating disputes; panels began treating the treaty as enforceable law, and
their interpretation of that law as authoritative; and jurists and trade spe-
cialists replaced diplomats on panels. The process generated the conditions
necessary for the emergence of the compulsory system of adjudication now
in place in the WTO.15
Let us now examine four examples of courts or quasi-judicial bodies.

First, we shall discuss the World Bank’s Inspection Panel. This body
protects the rights of interested parties that have been, or are likely
to be, affected by a failure of the Bank to follow its own operational
policies and procedures. This body is a hybrid between an admin-
istrative tribunal (in the British sense of the word) and a court. Its
task is to review decisions or sets of decisions taken by international
organizations.
A second example is that of Article 1904 North American Free Trade

Association (NAFTA) Binational Panels. This global court has jurisdic-
tion to review decisions taken by national agencies. It decides disputes
in accordance with national law, not international trade rules. It is an
international court for the judicial review of national agencies.16
A third example is from the WIPO, in particular its Administrative

Panels and its Arbitration and Mediation Centre for Uniform Domain
Name Dispute Resolution. These have the power to review decisions
taken by national authorities, or registrars, although only private indi-
viduals can be parties to the disputes.
15 A. Stone Sweet, “Judicialization and the Construction of Governance” (1999) 32(2) Comparative
Political Studies 164–165.
16 NAFTA is now being replaced with the “New NAFTA”, the United States–Mexico–Canada
Agreement (USMCA), which was signed on 30 September 2018 and came into effect on 1 July
2020.
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The fourth example is the ICSID Arbitral Tribunal. The ICSID

Convention provides that an Arbitral Tribunal shall decide “any legal
dispute arising directly out of an investment” (Article 25). The parties
must consent to arbitration and the award is binding on them (Articles
53 and 27). The Tribunal decides disputes in accordance with such
rules of law as may be agreed by the parties; if there is no such agree-
ment, it decides according to the law of the contracting state that is
party to the dispute and such rules of international law as may be
applicable (Article 42).
The judgments handed down by global courts penetrate into national

law, lifting its veil, as seen in the Juno Trader decision issued by the
International Tribunal for the Law of the Sea.
As for enforcement, an interesting example is provided by the WTO

Dispute Settlement Body. Enforcement– as already observed– takes
place through the reaction of the damaged party, which can obtain
compensation or retaliate. The adoption of retaliatory measures must
abide by specific regulations and, as noted, under judicial control. This
method of enforcing the decisions taken by global courts is established
at Article 22 of the WTO Dispute Settlement Understanding (DSU).
Another example is the NAFTA Commission for Labour Cooperation.

In this case, Article 41 NAFTA provides that, where a party fails to pay
a “monetary enforcement assessment” due to a “persistent pattern of
failure” to enforce labour standards, the complaining party may sus-
pend the application of NAFTA benefits “in an amount no greater than
that sufficient to collect the monetary enforcement assessment”. An
arbitral panel determines if the suspension is “manifestly excessive”.
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7 National administrative
cultures and global regulators
7.1 Transplanting national institutions into the global

space
The most important global regulatory regimes are international gov-

ernmental organizations, such as the UN, the ILO, and the WTO.
International organizations do not develop in a vacuum. Originally,
they were the result of decisions taken by a small number of powerful
nations. In their initial stages, Great Britain and France contributed
to shaping their administrative machinery; at a later stage, the United
States of America also played a major role in this process. As interna-
tional organizations become truly international in character, the con-
tributions of other countries and multinational entities become more
prominent.
The organization, procedures, management style, and budgeting policy

of international administrations develop under pressure by national (or
multinational) cultures. In regional organizations such as the EU, the
transplants originating from national cultures are even more evident.
In this context, the main questions concern the adoption and use of
national, regional and multinational practices and institutions; their
combination with other national institutions; the changes they undergo
as a result of evolving environments (such as the global world); their
encounter and merger with other types of organizations; and their cir-
culation due to their adoption at international level. In this regard, it is
interesting to examine the influence of the increasingly multinational
composition of international staff on national institutions, and to con-
sider whether, due to diffusion through international administrations,
the world is moving towards an administrative koine, a multicultural
world.
National cultures influence other countries. An example is the estab-

lishment of the Council of State, which originated in France, Italy,
61
CASSESE_9781789904215_t.indd 61 21/01/2021 11:39

Belgium and many other countries; other examples are the impact
of the British Empire on Asian bureaucracies, and the adoption of
civil and criminal codes and laws having a French or German imprint
in certain Arab and South American countries. However, national
cultures may also bear an impact on international administrations,
which avail themselves of organizational and procedural patterns that
originate at the national level.
The transplant of national institutions into international organizations

is a phenomenon of significant dimensions.1 As already noted, the idea
of an international secretariat was first conceived and developed in
the League of Nations by Sir Eric Drummond, in accordance with the
British administrative tradition of neutrality. The UN Administrative
Tribunal, introduced in 1949, is a product of French administrative
culture that may be somewhat incomprehensible to jurists of the
common law tradition, just as the Council of State, a special judicial
body, is indeed foreign to that common law (in 1953, in the United
States, the UN Administrative Tribunal was considered “an obscure
body”).2 In 1968, a Joint Inspection Unit was established within the
UN upon suggestion of the French Inspection générale des finances.
In 1975, the International Civil Service Commission (ICSC) was estab-
lished within the UN, promoted and supported by the United States,
which succeeded in shaping it along the lines of the United States
Civil Service Commission. In the UN, the financial and personnel
management procedures in place are similar to those in force in the
United States’ civil service. In addition, ombudsmen in the Swedish
tradition have been introduced in many international organizations.
The Council for Mutual Economic Assistance (COMECON) followed
Soviet organizational and operational styles.
At the EU level, the European Coal and Steel Community (ECSC)

was influenced to a great extent by the French Commissariat au Plan,
and the structure and functions of the European Atomic Energy
Commission (Euratom) were borrowed from the French Commissariat
de l’Energie Atomique. The EU Commission is organized on the
example of the German Bundeswirtschaftsministerium. The Treaty of
Brussels of 1975 establishing the European Court of Auditors follows
1 See A. Watson, Legal Transplants: An Approach to Comparative Law, Athens, GA, University of
Georgia Press, 1993.
2 S. Bastid, “Le tribunal administratif des Nations Unies”, in Conseil d’État, Études et documents,
1969, p. 15.
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NATIONAL ADMINISTRATIVE CULTURES AND GLOBAL REGULATORS 63
the example of the German Bundesrechnungshof, which has strictly

administrative tasks (and not also judicial ones, unlike its French and
Italian counterparts). However, in some ways, the European Court of
Auditors also appears to have undergone the influence of the French
administrative system: for instance, the European Court of Auditors
advises the European Parliament on controlling the implementation
of the budget.
From the examples listed, it is clear that international organizations

borrow procedural and management styles from national cultures and
organizations. The outcome could have been different. International
organizations are relatively young and are not conditioned by their
past. Moreover, they developed after World War II, when large private
organizations were already well established. International organiza-
tions could have taken private organizations as the models for their
own structures. However, the overwhelming majority of international
civil servants came from the civil service in their home countries,
especially civil servants from industrialized nations. This is the main
reason why the public-sector organizational and operational schemes
of certain countries were adopted.
7.2 The origins and the evolution of international

secretariats
How do national institutions adjust to the new environment? Do they

change, or do they remain the same? If they change, is this only because
they were lifted from a constitutionally homogeneous structure and
placed in a multicultural context?
National models change when they are transplanted into the new
global setting. After some time, they may even be difficult to recognize,
and it is not easy to identify the factors of change. It may be said that
there is no one factor, but rather a combination of active “ingredients”
that produce adaptation and change. The institutions themselves react
differently to new situations. External factors of change and the nature
of the national elements in question combine and react in many differ-
ent ways, and lead to varying results. The example of the secretariats of
global regulators will illustrate this point.
When the International Secretariat of the League of Nations was first

established, there was no precedent to follow: “the secretariats of the
CASSESE_9781789904215_t.indd 63 21/01/2021 11:39

pre-war international offices were either supplied by the country in

which they were established or consisted of national officials tempo-
rarily lent for special purpose”.3 Maurice Hankey, who would become
the League’s first Secretary General, “had proposed that the work
should be entrusted, under supervision of the Secretary General, to
nine national Secretaries, one from each Council state, who would
have their own staffs and would perform in turn the office of Secretary
to the Council”.4
In the end, Hankey did not accept the job and Sir Eric Drummond was
appointed. Drummond followed the British examples of the Secretariat
of the Committee of Imperial Defense (CID) and of the Cabinet Office
(which was established after World War I, and which played a central
role in running the British government and its foreign affairs) to design
“an expert and impartial organization”.5 The League’s Secretariat was
to be responsible only to the Secretary General, and not to national
governments. In this way, Drummond transferred “to an international
environment. . . an essentially British concept”.6
However, this British concept later changed under the influence of

different national cultures. The first change was brought about by
Albert Thomas, the head of the ILO Secretariat, and by Joseph Avenol,
Drummond’s successor. Thomas, “a fighting Socialist politician”,7
“made it clear that he considered that the organization and running of
the Office was to be his affair and his alone”.8 For Thomas, the ILO
Secretariat was an “instrument of action, not just a machine for col-
lecting and shifting information”.9 He consequently set up a “political
division” and “tried to deny the Assembly’s right to do any more than
vote on the budget which the governing body had approved”.10
3 F.P. Walters, A History of the League of Nations, 2 vols., Oxford, Oxford University Press, 1952,
p. 76.
4 Ibid.
5 R.S. Jordan, “The Influence of the British Secretariat Tradition in the Formation of the League of
Nations”, in Robert S. Jordan (ed.), International Administration: Its Evolution and Contemporary
Applications, Oxford, Oxford University Press, 1971, p. 27.
6 R.R. James, “The Evolving Concept of the International Civil Service”, in Robert S. Jordan (ed.),
International Administrations: Its Evolution and Contemporary Applications, Oxford, Oxford
University Press, 1971, p. 51.
7 Walters, A History of the League of Nations, p. 195.
8 E.J. Phelan, Yes and Albert Thomas, London, The Cresset Press, 1949, p. 38.
9 James, “The Evolving Concept”, p. 51.
10 Walters, A History of the League of Nations, p. 196.
CASSESE_9781789904215_t.indd 64 21/01/2021 11:39

At the League of Nations too, there was a “shift to the French system”,11
with greater centralization, when Avenol was appointed Secretary
General. At this point, the international civil service became “a mix-
ture of the British and French systems”.12
A second change came with the UN Charter and the NATO Secretariat,
created in 1952. In these cases, the American influence produced
stronger secretariats with more responsibilities, and endowed their
secretaries general with political as well as administrative powers. Dag
Hammarskjöld, speaking of the UN Secretary General, stated that it
“is a reflection, in some measure, of the American political system,
which places authority in a chief executive officer who is not simply
subordinated to the legislative organs but who is constitutionally
responsible alone for the execution of legislation and in some respects
for carrying out the authority derived from the constitutional instru-
ment directly”.13
Later on, the far-reaching processes to recruit the staff of international

organizations, which are generally open to candidates from the whole
world, and the further contacts with an increasing number of national
administrative cultures led to new changes. In recent years, in the UN,
the very concept of an international civil service has increasingly come
under threat, because in a number of new member states, the notion
of an independent civil service is not widely recognized. As such, and
with the support of Eastern European countries, which also look upon
such independence as anathema, they are exerting pressures to expand
national controls over the secretariats, mainly through the organiza-
tion’s recruitment and promotion processes. These pressures have
developed to the point of endangering the integrity of the international
civil service.14
11 E.F. Ransnshofen-Wertheimer, The International Secretariat– A Great Experiment in

International Administration, Washington, Carnegie Endowment, 1945, p. 52.
12 G. Langrod, The International Civil Service: Its Origins, Its Nature, Its Evolution, Dobbs Ferry, NY,
Sijthoff, Leyden-Oceana Publ., 1963, p. 54.
13 D. Hammarskjöld, The International Civil Servant in Law and in Fact, Lecture delivered to
Congregation at Oxford University, 30 May 1961, https://www.unssc.org/sites/unssc.org/files/
ics_100_no_4_oxfordspeech.pdf.
14 H. Reymond, “The Coordination of Personnel Policies and Administration in the United Nations
System” (1982) 1 Revue internationale des sciences administratives 31.
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7.3 The establishment and development of the

International Civil Service Commission
Another interesting example of interaction between national admin-

istrative traditions and the global space is the ICSC. In its report of
12 November 1945, the UN Preparatory Commission recommended
the establishment of an international civil service commission, to
advise the Secretary General “on the methods of recruitment for the
Secretariat and on the means by which common standards of recruit-
ment in the Secretariat and the specialized agencies may be insured”.
At first, in 1948, only an International Civil Service Advisory Board
(ICSAB) was established. Still, concern for impartiality in the recruit-
ment of international civil servants did not fade; quite to the contrary,
it grew.
In 1970, the ICSAB and the Federation of International Civil Servants’

Associations reintroduced the proposal for an international civil ser-
vice commission. At the end of that year, a high-ranking civil servant of
the United Nations Educational, Scientific and Cultural Organization
(UNESCO) drafted a preliminary study on the form that the commis-
sion could take, and submitted it to the UN Secretary General.
As mentioned above, it is clear from the documentation on the genesis

of the ICSC15 that its proponents (in both 1945 and 1970) had the
United States Civil Service Commission in mind. This was a body of
three members, appointed by the President of the United States, which
enjoyed a broad jurisdiction. The main purpose of the Commission
was to strengthen the merit system in the civil service. Its roles were
those of “public protector of the merit system”16 and “watchdog against
political activity”.17 It marked “the beginning of the merit system in the
Federal Service”.18
15 Y. Beigbeder, “La Commission de la fonction publique internationale” (1975) 1 Revue internation-

ale des sciences administratives 385–393; Y. Beigbeder, Tendances de la fonction publique inter-
nationale dans les organisations des Nations Unies, paper presented at the INEDIP Conference,
Paris, June 1983; Reymond, “The Coordination of Personnel Policies”.
16 D.R. Harvey, The Civil Service Commission, New York, Praeger, 1970, p. 8.
17 D.I. Pugliese, “Presidential Control and Management of Regional Agencies and Intergovernmental
Relations through Civil Service– The Opportunities of the Reforms of 1883 and 1978”, in D.H.
Rosenbloom (ed.), Centenary Issues of the Pendleton Act of 1883– The Problematic Legacy of Civil
Service Reform, New York, Dekker, 1982, p. 13.
18 Office of Public Affairs, Biography of an Ideal– A History of the Federal Civil Service, Washington,
U.S. Government Printing Office, 1974, p. 44.
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As the weakest aspect of the international civil service (as far as the
merit system is concerned) was (and continues to be) recruitment, it
is easy to see why recruitment received so much attention. The only
objective proposed by the 1945 Preparatory Commission for the ICSC
concerned recruitment; recruitment also became the ICSAB’s primary
task and the subject of its first substantive report. Recruitment was at
the centre of heated debates, going so far as to become, in 1974, the
subject of vigorous criticism in a paper prepared under the auspices
of the Ralph Bunche Institute; and, in 1977, of constructive proposals
submitted by Maurice Bertrand in a report by the Joint Inspection Unit
of the UN System.19
Despite the attention paid to the issue in both the report of the Special
Committee for the Review of the UN Salary System (1972) and in
the ICSC Statute (1975), recruitment was not designated as the new
agency’s main task. The ICSC has powers ranging from the condi-
tions of service to salary scales. However, problems regarding the pay
scale are by far the most important (in terms of volume) dealt with
by the Commission; job classifications and recruitment are, thus, sec-
ondary concerns. To explain this shift, it must be considered that the
Commission was established by the UN General Assembly (Resolution
No. 3042 of 19 December 1972) when it became involved in the thorny
issue of adjusting the pay scale. On one hand, there were the inter-
national civil servants and their local and worldwide organizations;
on the other, there were the administrations under the UN family.
Budgetary constraints were certainly another source of problems.
Under the pressure of these circumstances, instead of referring the

problems to the overburdened UN Secretariat, the UN General
Assembly chose to establish a semi-independent agency that could
act as a “technical filter” to tackle the question of the salaries of inter-
national civil servants. Thus, the ICSC Statute provides that “the
Commission shall be responsible as a body to the General Assembly”
(Article 6 of the statute), as “un organe subsidiaire de l’Assemblée”.20
More importantly, “the only field in which no coordination has

been achieved is that of recruitment, notwithstanding the fact that
it was the primary aim originally assigned to the future c oordination
19 Reymond, “The Coordination of Personnel Policies”, 29.

20 S. Bastid, “Sur quelques problèmes juridiques de coordination dans la famille des Nations Unie”,
in Mélanges offerts à Paul Reuter, Paris, Pedone, 1981, p. 99.
CASSESE_9781789904215_t.indd 67 21/01/2021 11:39

machinery”.21 The tasks of the ICSC are related to the cost of living,
salaries and allowances, and human resources policies. Its main
concerns are pensionable remuneration, pensions and conditions of
service. Job classifications and standards of recruitment are gradually
gaining attention, but with some difficulty. The Commission itself has
noted that the recommendations are “preliminary to a full examination
of all major aspects of recruitment”.22
In conclusion, a national institution was chosen because of its good

track record and in order to introduce a greater degree of neutrality
into the international civil service; the result was then adjusted to the
international environment. Its “position” changed (it was attached to
the legislative body, and not to the executive), and therefore also its
role (from being an advocate for neutrality to being a “clearing house”
for conflicting interests on salaries).23
To conclude, international organizations are designed on the model of

(conflicting) national cultures. They are melting pots, and the different
layers reflecting their roots in various national agencies are hard to
recognize. The influence of national governments and of their admin-
istrative culture was therefore lost, over a short period of time.
21 Reymond, “The Coordination of Personnel Policies”, p. 29.

22 Report of the International Civil Service Commission, U.N. General Assembly, 37th Session,
Suppl. No. 30 (A/37/30), New York, United Nations, 1982. p. 722. On the subsequent develop-
ments, see E. Newman, “The International Civil Service: Still a Viable Concept?” (2007) 21(3)
Global Society 429–447 and E. Newman and E.J. Ravndal, The International Civil Service, Oxford,
Oxford University Press, 2019.
23 These are just two examples of transplant from the national setting into the global space.
Another example is the regulation of procurement procedures, which are transplanted from
national governments into international organizations, where their dynamics change: see
E. Morlino, Procurement by International Organizations. A Global Administrative Law
Perspective, Cambridge, Cambridge University Press, 2019.
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8 The international role of
domestic bureaucracies
8.1 The impact of globalization on national

bureaucracies
As international administrations develop, an increasing number of

national bodies become involved in international affairs and establish
direct relations with international organizations. Almost every branch
of national government– defence, currency control, police powers,
rail transportation, postal services, health, sea and air travel, seabed
and space use, environment, meteorology, energy, labour, social policy,
trade, economic development, science and nuclear power– engages
with international administrations. As a result, it becomes difficult to
draw a clear line between domestic and foreign issues: they become
interrelated. There is continuity between foreign policy and home
affairs. This also means that it is increasingly difficult to define and
implement an overarching, coordinated national foreign policy.
Consequently, on the one hand, national bureaucracies, which previ-

ously only played a role in home affairs, have now become international
actors: the relationships among national bureaucracies and between
them and international administrations are as important as diplomatic
relations among states once were. On the other hand, d iplomats no
longer monopolize foreign affairs: foreign ministries have lost full
control over foreign policy, but they have gained more control over
domestic issues (as they are called upon to weigh the internal conse-
quences of international actions).
In other words, the governors of central banks, top-ranking military

personnel and the most senior national civil servants have become the
“new ambassadors”. National agencies often have “ad hoc” bureaus to
manage their relations with international organizations.
In turn, the charters or regulations of many international organizations

(such as the Universal Postal Union, the World Health Organization,
69
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the ILO or the IMF) establish fairly strict guidelines on how their
members are to be represented. Take for instance the IMF Agreement,
Article V: “[e]ach member shall deal with the Fund only through its
Treasury, Central Bank, stabilization fund or other similar fiscal agency,
and the Fund shall deal only with or through the same agencies”.
This interdependence between international and national adminis-

trations gives rise to a dispersion of power, to which governments
must adapt. No country has succeeded in simplifying the intricate web
arising from the increasing involvement of all branches of national
governments in international organizations’ affairs, nor in restoring
the authority of one single agency as having overall control.
It is clear that the more national administrative bodies are involved in

international bargaining and management, the less governments act as
a unit. There is not only a multiplication of actors, but also a growing
number of points of intersection between the many different national
and international policies. As a result, while national governments
attempt to influence international organizations to the greatest extent
possible, in practice, they appear weak and uncoordinated. Legally,
states are considered a unit. In fact, however, they act as if they were
simply a federation of agencies.
A way to control this process is to establish intermediary bodies that

act as clearing houses and are useful to both sides. These bodies are
neither a part of the intergovernmental organization in question, nor
of national governments. Here, the distinction between national and
international administrations is blurred.
While governments try to overcome their weaknesses by expanding the

role they play within the secretariats of international organizations, the
latter try to leverage national agencies’ lack of coordination. However,
they also know that beyond a certain point, the shortcomings of gov-
ernment action have negative effects on the international apparatus
too. This is a reason why international organizations are seeking to
introduce an entire panoply of means of consultation and coordina-
tion, and are currently expanding their efforts in this direction.
As collaboration increases at all levels, the functions of international

bodies become more fragmented, their decisions become sequential
(because they must deal with conflicting demands), and complexity
becomes their main feature.
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THE INTERNATIONAL ROLE OF DOMESTIC BUREAUCRACIES 71
With reference to the relationships between secretariats and national

delegations, it has been observed1 that throughout most of the his-
tory of large intergovernmental organizations, secretariats have
sought to “transnationalize” national delegates (holding meetings in
conferences/assemblies, councils or executive boards), teaching them
to think in terms of the world as a whole; conversely, national delegates
have tried to “nationalize” secretariats by introducing methods such as
secondments, short tenures, returns to governmental posts rather than
pursuit of careers in other international secretariats, etc.
This sequence is not always followed. In some international agencies,

despite engaging in frequent relations with governments, there is no
interpenetration between the representatives of national agencies and
the staff of international secretariats. In these cases, national influences
derive only from the governing body; the neutrality of the secretariat is
fully respected.
In particular, it has been noted that in the IMF, “the predominant

dimension has been intergovernmental interaction and, correspond-
ingly, the image of rational, cohesive nation-states as actors remains a
better first approximation for explaining international monetary policy
in the 1960s”. In addition, “[n]ation state attributes provide moder-
ately reliable guides to patterns of interaction with the international
group”.2
8.2 The distribution of international affairs among

national agencies
Foreign affairs has a growing impact on national government, as do
international organizations on governments’ internal affairs. It is
increasingly difficult to distinguish foreign from domestic affairs. As
noted, national bureaucracies adapt to this new situation by multi-
plying the number of offices managing relations with international
organizations. Foreign affairs concern not only ministries of foreign
affairs, but other national bureaucracies too.
1 J. Galtung, “Nonterritorial Actors: The Invisible Continent”, in G. Abi-Saab (ed.), The Concept of
International Organization, Paris, UNESCO, 1981, p. 74.
2 R.W. Russell, “Transgovernmental Interaction in the International Monetary System: 1960–1972”
(1973) 27 International Organization 463 and 451.
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As mentioned, national governments cope with the difficulties aris-

ing from this situation in different ways. In some countries, special
bodies have been set up within ministries of foreign affairs to deal with
international organizations. In other countries, each branch of govern-
ment has been empowered to deal with the international organizations
relevant to them (with the ministry of foreign affairs sometimes being
granted a balancing power). In many countries, interministerial com-
mittees have been set up to ensure coordination.
Many international issues require technical judgments and bureau-

cratic regulations, and are closely linked with national objectives. For
this reason, they tend to be defined and resolved by national bureau-
cracies, rather than by the ministries that traditionally handle foreign
affairs.
National agencies having bureaus that deal with international affairs

exist in several fields: agriculture, trade, defence, energy, justice, labour,
finance, etc. International affairs are handled differently in different
ministries. In some, they are centralized in an office having overall
competence over such matters. In other ministries, the competent
bodies are located in various divisions or subdivisions. In others yet,
international matters are unevenly distributed among multiple divi-
sions. The rationale for distribution within ministries varies: relations
with international organizations are allocated by issue or by type of
international organization.
The role of national ministries of foreign affairs has become less rel-
evant. It is greater during negotiations on international treaties and
when politically important matters are involved; it is less prominent on
decisions of an economic or technical nature.
8.3 The permanent missions as brokers between

national and international administrations
Various devices have been tested to overcome the shortcomings

stemming from the involvement of many different departments in
international politics, and to provide ways for governments at various
levels to liaise with one another. The most important of these devices
is the establishment of permanent missions to international organiza-
tions. These missions play an important role in the relations between
national administrations and international organizations.
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THE INTERNATIONAL ROLE OF DOMESTIC BUREAUCRACIES 73
Permanent representatives and their missions maintain relations with

the secretariats of the international organizations to which they are
accredited; make the necessary representations to the secretariat;
attend meetings of the organization or otherwise ensure that the
national government is properly represented in such meetings; and
cooperate with other permanent representatives in the preparation
and taking of decisions of the governing bodies of the organization.
Permanent missions do not only facilitate contacts between interna-

tional organizations and national administrations. They are also an
important element in the organizations’ decision-making processes.
Because the members of the missions work and live in the same geo-
graphical area as the members of the organization’s secretariat, they
can meet frequently and maintain contacts. Often, permanent rep-
resentatives and their staff not only represent the interests of their
country vis-à-vis the international organization, but also– thanks to
their intimate knowledge of the working, problems and political con-
stellations of the international organizations– act as advocates for the
international organization vis-à-vis their own government. They can
resolve misunderstandings, smoothen procedures and pave the way
for compromises. On the other hand, they can work to create ongoing
understanding for the positions of their government within the secre-
tariat and among other delegates.
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9 Global administrative law: the
principles
9.1 Does a global rule of law exist?
In 2005, the General Court of the EU held that when the UNSC, acting
on the basis of Chapter VII of the UN Charter, orders through the UN
Sanctions Commission the freezing of assets held by persons suspected
of terrorism, it can proceed without hearing the suspect first; in these
cases, there is no mandatory rule requiring that suspects be heard.
However, the European Court of Justice reversed the decision. It held
that the Union has “a complete system of legal remedies and proce-
dures designed to enable the Court of Justice to review the legality of
acts of the institutions” and concluded that “the rights of the defence,
in particular the right to be heard, and the right to effective judicial
review of those rights, were patently not respected”.1
As seen above, although the UN Convention on the Law of the Sea

does not require hearings, in 2004 the International Tribunal for the
Law of the Sea established that the administrative procedures for seiz-
ing a ship and detaining its crew for having committed illegal acts in
territorial seas do require a hearing, according to the principles of due
process and fairness.2
Does the rule of law exist beyond the state? There is no doubt that an
ultra-state or global administrative law exists. There is a conspicuous
body of legislation to this effect; numerous public organizations; and
direct relationships between these and national civil societies. Each
of these elements possesses characteristics that set it apart from its
national counterparts. For example, beyond the state, the legislation
1 Court of First Instance of the European Communities, T-306/01, Ahmed Ali Yusuf and Al
Barakaat International Foundation v. Council of the European Union and Commission of the
European Communities, 21 September 2005; European Court of Justice, Joined Cases C-402/05
and 415/05, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the
European Union and Commission of the European Communities, 3 September 2008.
2 International Tribunal of the Law of the Sea, Juno Trader, No. 13, 28 December 2004.
74
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THE PRINCIPLES 75
is not a unitary corpus, but rather consists of many distinct regulatory

regimes. This makes the global administrative world similar to a feudal
anarchy, an empire of adhocracy (as seen above), with no common
patterns and no uniformity but several interconnections. Its organiza-
tion is not hierarchical, but rather cooperative. It cannot be defined
as “public” in the sense of the term used in nation-states, because its
legitimacy is indirect and is hybrid in nature. Negotiations are more
common than orders and third-party dispute resolution. Standard-
setting prevails over implementation and enforcement. While the rela-
tionships between global administrative law and private parties may
be direct, they require state action for enforcement. Although global
administrative law is less developed than national administrative legal
orders, it has a highly developed set of procedural regulations, which
grew more rapidly than its national equivalents.
However, does global administrative law have the same features of the
administrative law of absolutist states– as one might think, reading the
judgment of the General Court of the EU mentioned above– o r did it
develop along the lines of the administrative law of liberal and demo-
cratic states, which protects the rights of citizens against administra-
tions, as the above-described judgment of the International Tribunal of
the Law of the Sea might indicate?
To answer this question, one must first identify which institutions are
characteristic of a “liberal” form of administrative law, and then see
whether they exist in global administrative law. Then, it is necessary
to identify the characteristics they take on in global administrative
law, and which differentiate them from their equivalents in national
administrative law.
9.2 Administrative law in the liberal state
Administrative law, over its two centuries of life within nation-states,

has experienced two phases. In the first, it was a “machine for obedi-
ence”. Special rules ensured the supremacy of public authority over
private parties. In the second phase, this initial core was joined by
another, which sought to secure citizens’ fundamental rights vis-à-vis
the executive.
This second phase of domestic administrative law has three main

components: the right of the affected parties to be heard; the duty of
CASSESE_9781789904215_t.indd 75 21/01/2021 11:39

administrative authorities to provide reasons; and judicial review of

administrative decisions.
In terms of historical evolution, administrative justice developed first,

then the duty to give reasons, and the participation of interested per-
sons developed last. However, the three components form a single
body. Private parties can defend themselves before an administrative
decision is taken through their right to participate, and later by filing
an appeal before a judge. As the administration is under a duty to take
into account the arguments advanced by the parties and explain why
it took (or omitted to take) them into consideration, the private party
may make counter-arguments when bringing the case before a court.
In short, there are many functional links between the three elements.
This explains why national courts contributed to the development
of the first two principles, before they were enshrined in legislation
enacted by national parliaments.
It is now time to examine whether the three components exist in global

administrative law and which, if any, variations they have undergone.
9.3 The right to be heard in global administrative law
As mentioned above, the PCT establishes a special mixed procedure,

that is half global and half national. The first part, which may be defined
as a preliminary international examination, is aimed at ascertaining
whether the invention has already been patented and at assessing the
possibility of obtaining a patent, before entering the national phase.
The PCT then provides that the global authority must communicate its
position to the applicant, allowing the applicant to respond. A report is
then prepared and sent to the competent national office.3
The World Bank’s Operational Policies provide that the national

authorities benefiting from its loans for works that require environ-
mental impact assessments and new settlements should consult the
communities concerned, providing timely and understandable infor-
mation and offering alternatives. The national authorities must then
take into account the opinions expressed in the consultations.4
3 Articles 34–36 PCT.

4 On these rules, see the Report and Recommendation of the World Bank’s Inspection Panel on
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THE PRINCIPLES 77
The GATT 1994 and the Anti-Dumping Agreement allow for the
introduction of anti-dumping tariffs. However, this can only occur
after preliminary investigations have been conducted, with the partici-
pation of all interested parties. To this end, the domestic authorities
wishing to introduce anti-dumping tariffs must provide all relevant
information in good time and give all affected parties the opportunity
to meet stakeholders with conflicting interests. For these purposes,
parties are the governments of exporting countries, foreign exporters
or producers, their associations, and the producers and producers’
associations of similar goods in the importing country.5
These three examples6 show that participation of affected parties in

administrative proceedings is provided for and regulated in global
administrative law. In particular, this is envisaged in individual pro-
ceedings, such as those to obtain a patent; in collective proceedings,
such as those to assess the environmental and social impact of large
public works; and in transnational proceedings, such as those seeking
to impose duties on exporters who practice dumping.
Second, the right to be heard is granted both to individuals, for example

in patent applications, and to communities, as in the case of the World
Bank; in addition, the right is also available in multipolar disputes, such
as in the case of anti-dumping duties.
9.4 The global duty to give reasons

The WTO allows states to react to subsidies granted by other states
to their home industries– considered an illegal practice– by impos-
ing tariffs designed to offset the effect of those subsidies (Article XIX
GATT 1994 and the GATT Safeguard Measures). Article 3 of the
Measures provides that these tariffs must be established with reasoned
decisions, providing explanations to importers, exporters and other
interested parties, including the foreign governments concerned.
the Mumbai Urban Transport Project, 2 September 2004. The regulation in force from 1 October
2018 is titled Environmental and Social Policy for Investment Project Financing (see para. 53).
5 Article 6 of the Anti-Dumping Agreement. On this article, see WTO Appellate Body Report, WT/
DS/219/AB/R of 28 August 2003.
6 More examples are provided in S. Cassese, “A Global Due Process of Law?”, in G. Anthony,
J.B. Auby, J. Morison and T. Zwart (eds), Values in Global Administrative Law, Oxford, Hart
Publishing, 2011, pp. 17–60 and S. Cassese, The Global Polity. Global Dimensions of Democracy
and the Rule of Law, Seville, Global Law Press– Editorial Derecho Global, 2012.
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Here, too, global regulations impose standards on proceedings before

administrative authorities to safeguard the right of private individuals
(as well as of other national administrations) to a reasoned decision.
The WTO Appellate Body, called upon to determine the extent and
quality of the explanation to be provided by those who take counter-
measures, has stated that the duty to give reasons is necessary not only
to guarantee the transparency of public decisions and to explain the
decisions taken by one government to others, but also to allow it to
control the legitimacy of governments’ decisions.7
9.5 Global judicial review
The most important development of global administrative law is that

it grew to include administrative justice. As seen above, over the
past three decades, a growing number of quasi-judicial and judicial
bodies, permanent or temporary, voluntary or mandatory, for the
resolution of disputes arising from administrative globalization was
established. Negotiation, the traditional means of resolving disputes
in the global area, is slowly being replaced by third-party dispute
resolution.
Global administrative justice takes many forms, but three main types
can be identified: administrative bodies with judicial tasks, non-per-
manent ad hoc bodies and administrative judges. Parties can file cases
before bodies in the latter two categories without needing to seek the
consent of the opposing party (or parties).
An example of the first type of global administrative justice is the

World Bank’s Inspection Panel, already mentioned above in relation
to the MUTP case. Established in 1993, the Panel is independent of
the World Bank’s administration. An inspection procedure may be
requested by the interested parties, provided that these comprise of
two or more persons. Anyone with an interest in the outcome of the
decision can take part in the inspection procedure, which includes
hearings. The Panel reviews actions or omissions of the World Bank in
light of the Bank’s own policies and procedures.
The Panel’s task is to control the Bank’s decisions, and not those of
the national governments receiving funding from it. However, in fact,
7 WTO Appellate Body Report, WT/DS 248, 249, 250, 251, 252, 253, 254, 258, 259/AB/R.
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THE PRINCIPLES 79
it also examines the decisions of the latter, to ascertain whether they

comply with the World Bank’s guidelines.8
Examples of the second type of global administrative court are the

many arbitral tribunals created in the global space: the International
Tribunal of the Law of the Sea; the panels of the WIPO Arbitration and
Mediation Center, which provide dispute resolution services; and the
ICSID Arbitral Tribunal. In the latter case, both parties to the dispute
must agree to the use of arbitration and choose the applicable law; the
Tribunal’s decision is binding upon the parties.
A special type of global administrative court is the NAFTA Binational

Panel, which developed in response to the series of conflicts between
Canada and the United States of America that arose starting in 1975.
That year, the United States increased the anti-dumping tariffs and
safeguards against Canada, which in 1985 reacted by enacting leg-
islation that allowed similar tariffs and safeguards to be applied on
goods from the United States. To resolve the conflict, Chapter 19 of
the NAFTA treaty was introduced. This provides for a form of global
administrative justice aimed at reviewing the decisions of national
administrative bodies. The review is conducted on the basis of national
law. Individuals can request that Panels be established. Each Panel is
composed of five people (two for each of the two governments plus
one, alternately indicated by one government). The decisions taken
by Panels are alternative to those taken by domestic courts; the par-
ties before them can be private legal entities affected by the meas-
ures and the administrative authority of the country adopting the
countermeasures.9
As seen above, examples of the third type are the International

Tribunal for the Law of the Sea and the WTO Appellate Body. The
parties before the first body are, formally, states (the government of
owner of the ship and the ship’s flag state). The procedures before the
second court are more complex. After the parties have consulted with
one another, a court of first instance (called a “Panel”) is established.
A standing body of seven members, the Appellate Body, hears appeals
from the decisions issued by the Panels. The Appellate Body’s reports
are then adopted by the WTO’s Dispute Settlement Body.
8 As in the case of the Report and Recommendation for the Mumbai Urban Transport Project, 3
September 2004.
9 As already noted, the NAFTA is being replaced by another agreement, the USMCA.
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The mechanisms for judicial or quasi-judicial dispute resolution avail-

able in the global arena are far from perfect,10 due to the deficiencies of
the implementation and enforcement systems seen above.
9.6 The development, limits and original features of

the global rule of law
As noted earlier, some of the institutions that characterize the admin-
istrative rule of law can be found in the global legal space. Here, they
developed quickly, presenting significant imperfections but also sev-
eral peculiarities.
There are two main reasons for this rapid development. As observed
above, global regulatory systems have not experienced absolutism.
Therefore, it was easier and faster for procedural safeguards to be
introduced and subsequently develop.
As for the imperfections of the institutions pertaining to the rule of

law in the global space, the duty to hear the interested parties is not
always followed by an obligation to take the results of the hearing into
account and to give reasons. The World Bank’s Inspection Panel is an
independent body but is administrative, not judicial, in nature; as such,
it can only make recommendations. Decisions handed down at first
instance and on appeal by the WTO’s courts must be adopted by the
Dispute Settlement Body, albeit through reverse consensus. There is
no clear divide between judicial resolution and the negotiated settle-
ment of disputes. The same rules provide for an obligation to negotiate
before and after the judicial decisions have been taken, in addition to a
requirement to refrain from committing unilateral acts.
However, these are not the main shortcomings of the institutions

called upon to enforce the rule of law in the global space. As already
observed, the global administrative system consists of a plurality of
distinct regulatory regimes, even if they are not completely separate
from one another. National legal systems, instead, consist of a general
body of law, because they originated and developed from and around
a core– the executive power– that does not exist in the global space.
10 An additional problem is that of the recruitment of international judges: see R. Mackenzie,

K. Malleson, P. Martin and P. Sands, Selecting International Judges, Oxford, Oxford University
Press, 2010.
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THE PRINCIPLES 81
Despite the connections between global regimes and the process of

accumulation, transplant and “contagion” between regimes, the rules
that govern the global legal space are not general, but always “ad hoc”
and special. They concern only one regime, and not others. In short,
the global legal-administrative space does not have unitary characteris-
tics. The scope of the rules governing each regime is therefore limited;
they do not give rise to a system of fundamental principles, unlike the
case with national governments.
Global rule of law has the peculiarity of being multipolar. Global

regulations require national and global administrations to hear private
individuals and other national administrations, as well as citizens and
businesses from other states, and likewise impose duties to give rea-
sons. Therefore, in global administrative law, there is a vertical compo-
nent and a horizontal, transnational, one. Because of this labyrinthine
structure, global administrative law is richer than national adminis-
trative law and provides, for individuals belonging to states with less
effective participation and accountability mechanisms, the advantage
of higher standards of participation and accountability.11
11 S. Battini, “La globalizzazione del diritto pubblico” (2006) 2 Rivista Trimestrale di Diritto Pubblico
325 ff.
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10 Global administrative law: the
implementation of principles
10.1 Is international law immature?
The state is no longer the main protagonist of the legal scene. In 1918,
the Italian legal philosopher Giuseppe Capograssi1 wrote that the state
is a “poor, uncrowned giant”; that same year, the Italian constitutional
law scholar Santi Romano wrote that the law does not emanate only
from the state, because of the plurality of legal systems.2 In 1941, the
Austrian jurist Hans Kelsen recognized the existence of an inter
national legal order, but added that:
International law is real law, but it is primitive law. This is so especially

because the reaction against the delict, the execution of the sanction, is
left to the state itself, the very subject whose rights are infringed, instead of
being delegated to a central organ as is in the national legal order. Thus the
international legal order is radically decentralized, and for this reason the
international community constituted by international law is not a state, but
only a union of states. A certain degree of centralization is essential to the
state. Similarly the completely decentralized community of a primitive tribe
is not a state, although there is no doubt that the order constituting it is a
legal order.3
The immaturity of international law can be explained– on one view

– as the failure of international organizations to implement the rule
of law.4 According to another view, the regulatory dimension of inter-
1 G. Capograssi, Saggio sullo Stato, Milan, Bocca, 1918, now in G. Capograssi, Opere, Milan, Giuffré,
1959, vol. 1, pp. 3–347.
2 S. Romano, L’ordinamento giuridico, Florence, Sansoni, 1918.
3 H. Kelsen, “The Pure Theory of Law and Analytical Jurisprudence” (1941) 55(1) Harvard Law
Review 66–67.
4 D. Dyzenhaus, “Emerging from Self-incurred Immaturity”, paper presented at the Globalization
and Its Discontents Colloquium, New York University School of Law, Spring 2004, now in
New York University, International Institute of Law and Justice, Working Papers, Global
Administrative Law series, 2005.
82
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THE IMPLEMENTATION OF PRINCIPLES 83
national law led to the emergence of a global governance that includes

proceduralization at the international level; this, in turn, influences
internal proceduralization.5
The question to be answered is: how does the rule of law6 beyond the
state work? If, as Stiglitz7 claims, economic globalization has devel-
oped faster than political globalization, producing an institutional gap
and a democratic deficit, what can be said about legal globalization? To
answer this question, five cases and the problems they each raise will
be examined.
10.2 The pervasiveness and complexity of legal

globalization: five cases
10.2.1
In France, Sect. R645-1 of the Criminal Code prohibits the display of
Nazi symbols, including through the sale of objects.8 In May 2000, the
Ligue contre le Racisme et l’Antisemitisme (Licra), together with an
association of French Jewish students, the Union des Etudiants Juifs
de France, brought an action before a French court against Yahoo! Inc.
for violating that national provision. An investigation was opened
and the Tribunal de Grande Instance of Paris ascertained that there
were indeed more than 1,000 Nazi objects for sale via Yahoo! Inc.’s
online platform and that any French citizen could have bought them.
As the practice was contrary to the provisions of the French Criminal
Code, the Court ordered Yahoo! Inc. to take all necessary measures to
prevent access to the online sale.9 Despite Yahoo! Inc.’s protests over
the technical impossibility of implementing the ruling, the ban was
confirmed in two subsequent decisions.10 Fearing that the claimant
5 S. Cassese, Oltre lo Stato, Bari, Laterza, 2006, p. 122. See also J.H.H. Weiler, “The Geology of
International Law: Governance, Democracy and Legitimacy” (2004) 64 Zeitschrift für ausländis-
ches öffenliches Recht und Völkerrecht 547–562.
6 The term Rechtsstaat is of German origin and appears in some of Gerber’s writings. The expres-
sion does not coincide with the “rule of law”, which was used instead by Dicey. Casavola observes
that Rechtsstaat and the rule of law are not equivalent (F.P. Casavola, Dal diritto romano al diritto
europeo, Naples, Editoriale Scientifica, 2006, p. 15). Here, however, the two terms are used as
synonyms.
7 J.E. Stiglitz, Making Globalization Work, New York, Norton, 2006.
8 Sect. R 645-1, French Criminal Code.
9 Tribunal de Grande Instance de Paris, Ordonnance de référé du 22 mai 2000.
10 For a further analysis of the Yahoo! Inc. case, see S. Cassese et al. (eds), Cases and Materials of
CASSESE_9781789904215_t.indd 83 21/01/2021 11:39

associations would apply for implementation of the French decision in

the United States, Yahoo! Inc. turned to the District Court of Northern
California to obtain a ruling that declared the French decision unen-
forceable in the United States. The District Court held that the issue
should be decided on the basis of the law of the United States and
applied the First Amendment (protecting freedom of speech), ruling
that it was not obliged to enforce the French decision in the United
States. Against this decision, the two French associations appealed to
the Court of Appeal for the Ninth Circuit, which decided that the case
was not ripe for adjudication, because it was “highly speculative”.11
Finally, the French associations appealed to the Supreme Court, which
denied certiorari. In the end, Yahoo! Inc. removed the Nazi memora-
bilia from its site.
This case raises the problem of the compatibility between two oppos-
ing trends: globalization’s need for general rules and each country’s
cultural and legal specificities. How can general rules coexist with
national norms? Is there a higher authority capable of resolving these
conflicts, balancing the global network’s need for universal openness
and the specificities of each national body of law?
10.2.2
In August 1993, Mexico, the United States and Canada concluded
the North American Agreement on Environmental Cooperation
(NAAEC). The general objectives of the NAAEC, which complements
the NAFTA, are sustainable development, the promotion of pollution
prevention policies, and compliance with national environmental
regulations. Furthermore, Article 1(h) promotes “transparency and
public participation in the development of laws, regulations and envi-
ronmental policies”. The NAAEC also establishes a Commission for
Environmental Cooperation (CEC),12 which checks the implementa-
tion of the agreement and of the relevant state regulations. In this
Global Administrative Law, available on the website of the New York University, International
Institute of Law and Justice– NYU, IILJ.
11 United States Court of Appeals for the Ninth Circuit, Yahoo! Inc., a Delaware Corporation,
Plaintiff-Appellee v La Ligue contre le Racisme et l’Antisemitisme, a French Association, l’Union
des etudiants juifs de France, a French Association, Defendants-Appellants, 433 F.3d 1199 (9th Cir
2006).
12 The CEC is formed by a Council, a Secretariat headed by an Executive Director and a Joint
Advisory Committee (JPAC). The JPAC is composed of 15 citizens (five for each state, represent-
ing a wide range of interests) and is the permanent locus for public participation in the CEC’s
CASSESE_9781789904215_t.indd 84 21/01/2021 11:39

capacity, the CEC can hear complaints from organizations or individu-

als and performs a quasi-judicial function. Article 14 states that “[t]he
Secretariat may consider a submission from any non-governmental
organization or person assessing that a party is failing to effectively
enforce its environmental law”. This process can lead to the publica-
tion of a factual record by the Council, the CEC’s governing body.
In June 2000, the Comisiòn de Solidaridad y Defensa de los Derechos

Humanos, Asociación Civil (COSYDDHAC), a Mexican association
for the protection of human rights, intervened against the massive
deforestation under way in the Sierra Tarahumara and filed an action
against Mexico for non-fulfilment of its NAAEC obligations. The
COSYDDHAC argued that Mexico had failed to enforce its own envi-
ronmental legislation effectively and had prevented the indigenous
communities of the Sierra Tarahumara from accessing the jurisdic-
tional remedies provided by Mexican environmental laws.
Mexico’s response to the CEC (15 February 2002), contained several

points. First, it noted that between 1998 and 2000, about 139 com-
plaints concerning the Tarahumara case had been examined (and only
34 had not been taken into consideration). Second, it observed that
since 2000, meetings had been held to inform the indigenous commu-
nities. Third, Mexico declared that it intended to establish committees
to allow the communities to participate.
On 21 December 2005, the CEC issued Council Resolution 05-09 con-

taining the final factual record and the parties’ comments. The factual
record found that procedural flaws had been committed.
In this case, a local civil society organization turned to a supranational

body to ascertain whether a state had fulfilled a procedural obliga-
tion (the duty to provide a hearing) instrumental to meeting global
standards. How could the interests of the international community,
of the states and of the local communities be reconciled? A national
interest in exploiting the area of the Sierra Tarahumara for economic
purposes conflicted with the collective right to respect for forest areas
and to survive as a community, and with the cosmopolitan interest in
the protection of the environment.
activities: the JPAC’s public sessions are held in rotation in each of the three NAAEC member
states.
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10.2.3
In the Asilomar Conference on Genetically Modified Organisms, held
in 1975, the scientific community defined guidelines for the safe appli-
cation of DNA modification techniques. However, while the United
States left a fairly wide margin to freedom of experimentation, Europe
was more cautious. This divergence became clear in an action brought
by the United States, Canada and Argentina against the EU. In 1998,
the EU suspended the examination of applications for the approval of
genetically modified products. In May 2003, the three countries asked
the WTO to set up a Panel, claiming that the EU had infringed the SPS
Agreement, a WTO agreement. The disputed measures would have
been “de facto” measures leading to the suspension of various appli-
cations without sufficient scientific evidence or a proper risk assess-
ment13 and would have resulted in an unjustified restriction on the
international trade of genetically modified food.
On 29 September 2006, the Panel presented its conclusions, accepting

the applicants’ arguments that there had been a violation of Articles 2
and 5 of the SPS Agreement. According to Article 2(2), the members
must ensure that sanitary and phytosanitary measures are based on sci-
entific criteria. The Panel observed that a decision by national govern-
ments to protect the health of individuals must have a scientific basis
and cannot be arbitrary. Conversely, in prohibiting the importation of
certain products, it argued that the EU had “in no case. . . provide[d]
an assessment of the risks to the human health and the environment
meeting the requirements of the SPS Agreement”. In light of these
considerations, the Panel concluded that the measures adopted by the
EU member states did not fulfil the obligations assumed by the EU
under the SPS Agreement.14
This case is a good example of conflict between interests of a different

nature: on one hand, free trade, and on the other health protection
– which can be interpreted in various ways. One might ask whether
a conflict between trade and health interests is better resolved by a
WTO court than by an ordinary national court.
13 This was expressed in Argentina’s request of 21 May 2003, WT/DS293/1. However, in this regard,
see also the requests of the United States and Canada (respectively WT/DS291/1 and WT/
DS292/1).
14 WTO DS291 European Communities– M easures affecting the Approval and Marketing of Biotech
Products. See also WTO Status Report by the European Union, 18 February 2020.
CASSESE_9781789904215_t.indd 86 21/01/2021 11:39

10.2.4
In 1987, Crown Butte Mines Inc., a Canada-based mining manage-
ment company, sought to develop the New World Mining Project near
Yellowstone National Park. The mine was to be developed on privately
owned land, about three miles away from the northeast corner of the
park (in the pre-park area). The project was expected to yield approxi-
mately 500,000 tons per year of gold, silver and copper. The project
included the construction of an underground mine, a plant, a pond for
residue storage, a site for waste rock, access roads and transmission
lines.
The project drew protests by environmental groups due to the poten-

tial effects on the hydrogeological structures of the area and, in par-
ticular, of the park. The American states of Montana and Wyoming
supported the project for reasons of economic policy, because it would
have created new jobs.
In 1993, an environmental impact analysis (Environmental Impact

Statement, or EIS) of the project was launched, as required by the
federal National Environmental Policy Act (NEPA) of 1969 and by
the Montana Environmental Policy Act. The protesting environmental
groups, however, believed that they had not been given a full oppor-
tunity to be heard during the project’s evaluation and approval pro-
cedures. Even before the EIS was concluded, they decided to take the
issue from the state/federal level to the supranational level, turning
to the UNESCO’s World Heritage Committee: indeed, in 1978, the
Yellowstone Park had been included in the World Heritage List, a list
of cultural and natural heritage assets of universal value. The Greater
Yellowstone Coalition and thirteen other environmental groups peti-
tioned the relevant UNESCO bodies to open an investigation into the
potential danger to the park. The Assistant Secretary of the American
Department of the Interior wrote to UNESCO in support of the envi-
ronmental groups’ position.
In December 1995, the World Heritage Committee included

Yellowstone Park on the List of World Heritage in Danger, which com-
prises world heritage sites whose survival and integrity are in danger
and must receive special protection.
Under these pressures, the United States reached an agreement with

Crown Butte Mines, Inc. to abandon the original project.
CASSESE_9781789904215_t.indd 87 21/01/2021 11:39

This case raises the problem of identifying which entity is responsible

for deciding national conflicts. Can these be global authorities, in the
name of a global interest? To what extent? In 1872, when, President
Ulysses S. Grant inaugurated Yellowstone National Park, he called it
“a pleasuring-ground for the benefit and enjoyment of the people”.
In a globalized world, where interests cross national borders, are the
“people” Grant had in mind American citizens alone?
10.2.5
In the 2000s, a young man named Yusuf, who was born in Somalia
but had become a Swedish citizen and resident, had his bank account
“frozen” (subjected to seizure), because the UN Sanctions Committee
had “listed” him as a suspected terrorist. This was done on the basis
of UN resolutions to combat international terrorism, that had been
implemented by the EU and individual states. The UN resolutions
had also established a Sanctions Committee, charging it with moni-
toring the application of the measures. Implementing the provision,
the Council of the EU adopted Common Position 1999/727/CFSP and
Council Regulation (EC) No. 337/2000, which imposed a flight ban and
a freeze of funds and other financial resources in respect of the Taliban
of Afghanistan. The above-mentioned UNSC resolution was followed
by several others, based on which the EU adopted Common Position
2001/154/CFSP and Council Regulation No. 467/2001.15 Ali Ahmed
Yusuf had also been included in the list of individuals hit by the meas-
ures. Therefore, the case developed on several levels: the “higher” rules
issued by the UNSC and by the EU, and the national rules adopted to
implement them.
Yusuf brought an action before the General Court of the EU for the
annulment of the EU regulations, inter alia because they infringed
15 In particular, these are Council Common Position of 27 May 2002 concerning restrictive measures
against Usama bin Laden, members of the Al-Qaida organization and the Taliban and other indi-
viduals, groups, undertakings and entities associated with them and repealing Common Positions
96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP; Council Regulation (EC) No.
1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use
items and technology; Council Common Position of 26 February 2001 concerning additional
restrictive measures against the Taliban and amending Common Position 96/746/CFSP; and
Council Regulation (EC) No. 467/2001 of 6 March 2001 prohibiting the export of certain goods
and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and
other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC)
No. 337/2000.
CASSESE_9781789904215_t.indd 88 21/01/2021 11:39

upon his fundamental rights. Yusuf argued that the regulation failed
to respect his right to dispose of his own assets and his procedural
rights of defence. The latter, enshrined in Article 6 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), had been violated because the measures imposed
sanctions without providing him with the opportunity to be heard or
to defend himself, nor with the reasons for the penalties imposed, the
allegations against him, or the evidence held by the authorities. Finally,
Yusuf argued that his right to judicial review had been breached, as
none of the bodies involved (European Commission, the European
Council, the UNSC and its Sanctions Committee) are judicial bodies.
The General Court accepted the views of the Council and the
Commission and held the appeal unfounded. Yusuf appealed to the
European Court of Justice, which decided:
Because the Council neither communicated to the appellants the evidence

used against them to justify the restrictive measures imposed on them nor
afforded them the right to be informed of that evidence within a reason-
able period after those measures were enacted, the appellants were not in
a position to make their point of view in that respect known. Therefore,
the appellants’ rights of defense, in particular the right to be heard, were
not respected. In addition, given the failure to inform them of the evidence
adduced against them and having regard to the relationship,. . . between the
rights of the defense and the right to an effective legal remedy, the appel-
lants were also unable to defend their rights with regard to that evidence
in satisfactory conditions before the Community judicature, with the result
that it must be held that their right to an effective legal remedy has also been
infringed.16
The Court also found the restrictions on property rights to be unjustifi-

able. The UN’s rules of procedure were subsequently adjusted to reflect
this decision.
The cases examined thus far have highlighted different problems

concerning the rule of law. In the Yahoo! Inc. case, this was the rec-
onciliation of two opposing needs: the uniformity of the global rules,
on one hand, and the peculiarity of state regulations, on the other. The
story of the Sierra Tarahumara stems from a conflict between interests
at various levels of government: local, state and global. The contro-
16 C-402/05P and C-415/05P, pp. 348–349.
CASSESE_9781789904215_t.indd 89 21/01/2021 11:39

versy over the international trade in genetically modified organisms

reveals the difficulties linked to the coexistence of several regulatory
regimes. The clash between environmentalists and developers about a
mine adjacent to Yellowstone Park demonstrates how global rules can
affect national conflicts. Finally, the case of Ali Ahmed Yusuf reveals
the weaknesses of the rule of law at the intersection of global, supra
national and national decisions. In general, there is a danger of asym-
metry between national and global law. Fundamental rights cannot
simply evaporate when national governments surrender decisions
to global regulators. On the contrary, global regulators may require
national governments to recognize fundamental rights that do not find
space in national law.
The five cases examined above also illustrate the magnitude of legal
globalization: courts were involved from Paris to San Jose, from
Mexico to Canada, from the United States to the EU, from Wyoming
to Geneva, and finally from Somalia to Europe, passing through
New York. Problems that arise in one part of the world are solved in
another. A network of legal relationships connects the various parts of
the world: Ali Ahmed Yusuf turns to European courts and American
environmental associations ask for UNESCO’s intervention. These
conflicts involve the great problems of humanity– Nazism and the
Jewish question, deforestation, genetic engineering, terrorism– a nd
they cannot be tackled and resolved within states alone.
Third, there is a variety of subjects– the WTO, UNESCO, the UN, the
EU– t hat, however, share the common characteristic of being supra-
national entities that interfere in national affairs and contribute to the
regulation of freedom of expression, protection of the environment,
the right to health and the right to defence in court.
10.3 The rule of law at national and global levels
In light of the analysis carried out thus far, it can be concluded that the
rule of law has established itself in the global space, but that there are
important differences between its national and global manifestations.
First: the rule of law at global level is imperfect. As already observed,

the global legal system is not unitary, but consists of a plurality of
distinct regulatory regimes. From this structure, it follows that the
rules governing the global rule of law are not general, but apply to one
CASSESE_9781789904215_t.indd 90 21/01/2021 11:39

global regime and not to another. While national legislation on admin-

istrative procedure sets principles that all branches of government
must comply with, this does not happen in the global space. Therefore,
global principles have weaker expansive force than national ones.
Second, despite its still rudimentary character, the global rule of law
has one peculiarity that the national rule of law does not: it expands
from a binomial relationship (that between the state and the citizen)
to a multipolar one. For example, the WTO requires that national gov-
ernments’ decisions be supported by reasons, to the benefit of both pri-
vate parties (national and foreign) and other national administrations.
CASSESE_9781789904215_t.indd 91 21/01/2021 11:39

11 Towards global justice and
democracy?
11.1 Public authority in modern legal systems
Is it possible to transplant the principles of the modern state beyond

the state?1 Contemporary nation-states have three essential compo-
nents: democracy, justice (the rule of law) and authority (executive
power). Democracy is the rule of popular consent: decisions are taken
by a body that represents the people, and this body is periodically
renewed through elections. Democracy developed in the nineteenth
century especially, with the diffusion of universal suffrage. The rule of
law indicates– as mentioned– a set of principles and procedures that
developed in the eighteenth century as a result of liberalism: initially,
these comprised personal freedom and the (partial) independence of
judges; then, judicial control over the constitutionality of laws was
added; and at a third stage, as mentioned, the legality of administra-
tive action, transparency and the participation of private parties in
administrative proceedings were also included.2 The third component
of the state, authority, is much older. Modern governments developed
out of powerful executives that were equipped with coercive tools, the
power to wage wars, bodies empowered to maintain public order, and
special procedures.
1 On domestic democracy, sovereignty and globalization, J.S. Barkin and B. Cronin, “The State
and the Nation: Changing Norms and the Rules of Sovereignty in International Relations”
(1994) 48(1) International Organization 107; E. Benvenisti and G.W. Downs, “National Courts,
Domestic Democracy, and the Evolution of International Law” (2009) 20(1) The European Journal
of International Law 59–72; A. Somek, “The European Model of Transnational Democracy: A
Tribute to Ernst-Wolfgang Böckenförde” (2018) 19(2) German Law Journal 436–459; G. Teubner,
“Quod omnes tangit: Transnationale Verfassungen Ohne Demokratie?” (2018) 57(2) Der Staat
171–194; H. Heller and D. Dyzenhaus, Sovereignty: A Contribution to the Theory of Public and
International Law, Oxford, Oxford University Press, 2019; E. Dubout, “Transnationaliser la
démocratie? L’espace européenne et les frontières de la démocratie” (2019) July–September
RTDEur 589–602.
2 On the rule of law at the global level, S. Cassese, Oltre lo Stato, Bari, Laterza, 2006, pp. 109–119;
E. Denninger, The Rule of Law or “rule of law”: What Is It Today?, in A. Jellamo and F. Riccobono
(eds), In ricordo di Vittorio Frosini, Milan, Giuffrè, 2004, p. 74.
92
CASSESE_9781789904215_t.indd 92 21/01/2021 11:39

TOWARDS GLOBAL JUSTICE AND DEMOCRACY? 93
When administrative tasks are deferred to the global level, above the
state, what happens to the first and the second components (the third
being structurally absent from the global space)? To answer this ques-
tion, we must take a step back and explore the historical origins of
democracy and of the adversarial principle, to better understand the
distinctive features of the modern state.
11.2
Quod omnes tangit, ab omnibus approbetur
In national legal systems, the people have the power to choose their
rulers and to control them, and neither judges nor administrative
bodies can proceed without hearing the interested parties first. These
principles both originated in the same principle of Roman private law,
which later became a part of the public law of the Roman Catholic
Church: quod omnes tangit, ab omnibus approbetur (what affects all
must be approved by all). Its most recent evolution can be traced back
to the American Revolution, when, in reaction to the adoption of the
Stamp Act in 1765, the colonial elites invoked the principle of “no
taxation without representation”.3 The “no taxation without represen-
tation” principle, which gave rise to the American Revolution, marks
the highest stage of development of the ancient Justinian institution. A
few years later, the principle became one of the main cornerstones of
the French Revolution.
11.3 Does legal globalization reduce democracy?

Do global legal orders meet the two criteria of popular consent and rule
of law? Or, on the contrary, does legal globalization reduce democracy
and the rule of law?
In the previous pages, the first question has been answered as follows.
Global regulators each have their own characteristics because unlike
states, they do not have a democratic history. They are distant from the
people. They lack direct popular consent, accountability and shared
values (in that they are bearers of “sectoral” interests). Also, global
3 The phrase “no taxation without representation” was coined by Reverend Jonathan Mayhew in
a sermon held in Boston in 1750. Subsequently, it was linked to a local politician, James Otis, to
whom the somewhat different phrase “taxation without representation is tyranny” is attributed.
CASSESE_9781789904215_t.indd 93 21/01/2021 11:39

regulators do not have the power to impose themselves on states.4

They are elitist, because there is no democratic control. Finally, they
need the consent of their member states.
As for the second question, the answers diverge. Some believe that glo-
balization does not threaten states’ essential characteristics and even
reinforces democracy within them; others, on the contrary, affirm that
the existence of global organizations causes “a lessening of the power
and effectiveness of domestic governance” and “undermines the qual-
ity and legitimacy of democratic governance”.5
Supporters of the first hypothesis believe that global regulators

respond to a series of criteria called the Complex Standard, and that
they do not lack democratic legitimacy.6 This standard is based on
an extensive notion of democracy that does not correspond to mere
popular-electoral control, but to a series of guarantees and principles
falling among the forms of “constitutional self-government”. On this
view, global regulators help national democracies prevent the “tyr-
anny” of the elite and of the majority, protect the rights of minorities
and facilitate the representation of excluded interests. In addition,
these regulators reinforce “epistemic virtues” and increase the protec-
tion of public goods of global value.7 Ineffectiveness remains the most
important distinguishing factor between global and national systems.
Supporters of the second hypothesis believe that global organizations

lack democratic legitimacy8 and reduce the sovereignty and democ-
racy of states. In particular, legal globalization infringes upon national
4 One may speak of “toothless authorities”. This expression is used in relation to the EU: see G. della
Cananea, “The EU and the WTO: A Relational Analysis”, paper presented at the conference on
New Foundations for European and Global Governance, Vienna, 29–30 November 2004. By the
same author, see “The Public Authorities in the Global Legal Space” (2003) 1 Rivista trimestrale di
diritto pubblico 1–35.
5 J.A. Rabkin, Law without Nations? Why Constitutional Government Requires Sovereign States,
Princeton, NJ, Princeton University Press, 2005. A similar point of view in M. Goodhart,
Democracy as Human Right: Freedom and Equality in the Age of Globalization, New York,
Routledge, 2005.
6 See A. Buchanan and R.O. Keohane, “The Legitimacy of Global Governance Institutions” (2006)
20(4) Ethics and International Affairs 405–437.
7 R.O. Keohane, S. Macedo and P. Pettit, “Democracy– Enhancing Multilateralism” (2009) 63
International Organization 24–41.
8 In particular, reference is made to the IMF, the WTO and the World Bank. Concern about
the costs imposed on national democracies by the development of global organizations is also
expressed by R.A. Dahl, “Can International Organizations Be Democratic? A Skeptic’s view”, in
CASSESE_9781789904215_t.indd 94 21/01/2021 11:39

democratic traditions, as it is insensitive to democratic needs and

indifferent to local values and interests.9 “If the United States can
be subject to the will of outside powers, it cannot be governed by the
schemes ordained in the Constitution.”10 Globalization, “by striking
at State sovereignty, threatens popular rule within democracies, and
in so doing uncovers the weakness of modern democratic theory in a
growingly borderless world”.11 Thus, globalization “undermines the
principles of both the democratic state and the rule of law”.12
11.4 Fundamental rights between global law and

state law
How does global law impact national state/civil society relations? We

will consider two emblematic cases to provide an empirical answer to
the question of whether globalization is compatible with democracy
and justice. The first of the two cases concerns Turkey, the second, the
state of Tasmania, in Australia.
The process for Turkey’s accession to the EU started in the late 1950s,
when Turkey asked to join the European Economic Community (EEC,
as it was then known) as an associate member. In 1963, an Association
Agreement was signed (the Ankara Agreement) to bring Turkey into
a customs union with the EEC in view of its accession. Subsequently
(in 1970), an additional protocol and a second financial protocol were
signed in Brussels, paving the way to the establishment of the customs
union. Following a long period of consolidation of economic relations
between the member states of the EEC and Turkey, the latter asked to
become a full member of the EEC in 1987. The request was rejected due
I. Shapiro and C. Hacker-Cordón (eds), Democracy’s Edges, Cambridge, Cambridge University

Press, 1999, pp. 19–36.
9 According to E. Posner, in his review of J.A. Rabkin, Law without Nations? (quoted in (2006)
4(2) American Political Science Association, “Perspectives on Politics” 432): “global governance
undermines sovereignty and thus undermines the rule of law and freedom as well”.
10 Rabkin, Law without Nations?, p. 266.
11 J. Pubantz, review of M. Goodhart, “Democracy as Human Rights” (2006) 5(3) American Political
Science Association, “Perspectives on Politics” 674.
12 This approach recognizes, however, that this “sacrifice” on the part of states is necessary to the
regulation of certain global interests, such as the protection of the environment, the prevention
and repression of international terrorism, and economic cooperation. In these sectors, states
cannot act autonomously; therefore, the intervention of global organizations is necessary. The
sacrifice is thus legitimized and justified by the interests of universal value, which translate into
benefits for the world’s entire population.
CASSESE_9781789904215_t.indd 95 21/01/2021 11:39

to the country’s difficult economic and social context and its human
and minority rights record. In 1999, in Helsinki, the European Council
gave Turkey the status of a candidate country, after the European
Council meeting held at Luxembourg two years earlier had only recog-
nized its “eligibility”. Between 2001 and 2002, several national measures
were adopted in view of Turkey’s accession to the EU: for example, the
Turkish government presented a national programme for the adop-
tion of the acquis communautaire; it approved a constitutional reform
to meet the political criteria established in Copenhagen, which were
necessary to obtain EU membership; and it prepared a series of reforms
to strengthen respect for human and political rights.
The European Commission’s Recommendation on Turkey’s progress

towards accession (October 2004) acknowledged Turkey’s compliance
with the Copenhagen criteria and recommended starting accession
negotiations, which then opened on 3 October 2005. However, many
member states raised concerns about the accession process. This led
Turkey to propose a review of the partnership and a Communication
on civil society dialogue between the EU and the candidate countries,
to strengthen ties with civil society.
Several meetings on the criteria and conditions for accession were

held, with specific reference to the principles of democracy and the
rule of law in the administrative and judicial sphere, to the protection
of human rights and the protection of minorities, as well as to a set of
economic guarantees (especially in the public services sector). On 18
February 2008, the Council adopted the revised Partnership for the
accession of Turkey. On 29 November 2015, the heads of state and
government of the EU member states held a meeting with their Turkish
counterparts. On 7 March 2016, another such meeting took place, to
strengthen cooperation on the migration and refugee crisis. The last
ministerial-level meeting of the Accession Conference with Turkey
was held on 30 June 2016, and launched negotiations on Chapter
33, concerning financial and budgetary provisions. At the European
Council meeting of 19 October 2017, the EU leaders held a debate on
relations with Turkey. On 26 March 2018, EU leaders and the Turkish
President discussed EU-Turkey relations. The 54th EU-Turkey
Association Council was held in Brussels on 15 March 2019, review-
ing the state of EU-Turkey bilateral relations. On 29 May 2019, the
Turkey Report was presented, together with a Communication of the
European Commission, which stressed the points pending for agree-
ment (the political system, reform of public administrative bodies, the
CASSESE_9781789904215_t.indd 96 21/01/2021 11:39

fight against corruption and organized crime, migration and asylum

policy, economic criteria, and the ability to fulfil the obligations of
membership).
The second case we will examine concerns legislation adopted by the

Australian state of Tasmania. In the first half of the 1990s, the state of
Tasmania– c ounter to the course chosen by the other Australian states
– decided to refuse to implement the federal Human Rights (Sexual
Conduct) Act 1994, which removed some forms of discrimination
against homosexual individuals. This prompted groups of Australian
homosexual activists to claim international recognition of their rights
through the UN Human Rights Committee. In 1991, the Committee
recognized that Tasmania had violated the ICCPR. In November
1995, the same activist groups filed an appeal with the Australian High
Court for the annulment of Tasmania’s state legislation, arguing that
it contrasted with federal law. However, the turning point came when
the federal government invoked the ICCPR to annul the regulation
of Tasmania. Upon pressure by the federal government, which called
for enforcement of an international obligation, Tasmania adopted the
Green Party’s gay law reform bill in March 1997.
These cases highlight how global regulatory regimes interact with

national governments. In the first case, the EU promoted democracy
and the rule of law in a national system. In the second, a federal state
resorted to global principles to protect fundamental rights against the
discriminatory legislation of a federated state.
The first case is also a good example of the failure of supranational

organizations to impose democratic principles on national govern-
ments, or at least promote them.
Supranational and global regulators contribute to the development of

democracy and rule of law at the national level, although they are not
entirely democratic themselves. This democratic deficit is balanced
by the principles of openness, participation, multipolarity, checks and
balances, and countervailing powers, so that it is possible to speak of
“multilateralism enhancing democracy”.13
13 See R.O. Keohane, S. Macedo and P. Pettit, “Democracy– Enhancing Multilateralism” (2009)
63 International Organization 29: “as international bodies come into interaction with national
centers of power, they can check abuses by those national centers or even subnational centers. . .
and force them into a better level of democratic performance”.
CASSESE_9781789904215_t.indd 97 21/01/2021 11:39

12 National governments and
globalization
12.1 The end of states?
One of the most common mistakes is to think that as globalization

proceeds, states lose importance and are destined to disappear.
With globalization, states have attained stability, and expanded their
scope of action, to an unprecedented extent. Globalization produces
the development of supranational and global legal orders, but also a
considerable strengthening of the world system of states. States, in
turn, must adapt to a new context, which– like the traditional one
– is composed of interstate agreements (treaties), but also of multi-
lateral agreements establishing global regulators that issue standards
and guidelines addressed to the participating states. As said earlier,
national governments are, at once, masters and servants of globaliza-
tion. It is therefore important to examine the new context and how
states have adjusted to it.
12.2 The system of world powers

Globalization is a cumulative set of processes of trade expansion,
finance and production. However, it also involves fashion, commu-
nications, the media, transport, demographic movements, the risks
inherent in new technologies, the environment, health, organized
crime and terrorism. These processes denationalize institutions and
procedures that are national in origin. The state itself, once the prod-
uct of the will of a people, is now also legitimized by the global system
of states.1
1 See J. Habermas, Divided West, Malden, MA, Polity Press, 2006, p. 175 and S. Sassen, Territory,
Authority, Rights: From Medieval to Global Assemblages, Princeton, NJ, Princeton University
Press, 2006, p. 1.
98
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NATIONAL GOVERNMENTS AND GLOBALIZATION 99
In the last 50 years, a peculiar system of powers has emerged in the

global space. As already noted, this system is not unitary, does not have
a centre, and is without a government.
Globalization gives rise to a composite system, which is slowly taking

the place of the state-centric system. Globalization has no mechanisms
for direct legitimacy or accountability like those existing within states,
because neither a world demos nor a global public opinion have entirely
developed yet. This absence is offset by a legitimacy obtained through
law (with the application of the principles of transparency, participation,
the duty to give reasons and judicial review) and a horizontal form of
accountability. Finally, globalization also acts as a passerelle, a footbridge,
that makes it easier to transplant legal principles and institutions from
one legal system to another, facilitating their gradual approximation.2
12.3 States in the globalized world
Previously, the main problem of states was to understand how to dia-

logue with their own populations. Now, they are caught in a tension
between two poles: the civil society they represent, and the globalized
world they need. Hence, a series of paradoxes arises.
The first paradox is illustrated by the role played by the external factor,
globalization, in the constitution and development of states. The UN
supports states as members of the international community. The
traditional relationship between states and international community
is reversed: states establish global organizations, and these legitimize
states.
The second paradox concerns the erosion of state sovereignty. States,

which previously controlled the markets, are now controlled by the
markets (see for example the ratings given to national debts); also,
they must respect standards established by global regulators. National
governments lose part of their sovereignty but can broaden their scope
of action, because their voices can also be heard in matters of money
laundering, international terrorism, global warming and fishing on
the high seas, even if these areas far transcend the territory of each
individual state.
2 See A. Lindroos and M. Mehling, “Dispelling the Chimera of Self-contained Regimes. International
Law and the WTO” (2006) 16(5) European Journal of International Law 857–877.
CASSESE_9781789904215_t.indd 99 21/01/2021 11:39

The third paradox concerns the national interest. Following the devel-
opment of globalization, this has become divided. For example, after
China joined the WTO, national textile producers around the world
supported imposing restrictions on imports from China, while large
distribution chains were, rather, in favour of opening to the Asian
giant. National governments were therefore faced with conflicting
interests.
The fourth paradox involves citizens’ rights. These were once safe-
guarded only at the national level, by national constitutions. As national
governments did not always act in conformity with their own legal
provisions, the international community has introduced an increas-
ing number of treaties, charters and conventions recognizing human
rights (not only citizens’ rights), imposing on national governments
the obligation to comply with them.
12.4 The erosion of the state: an irreversible trend?
Sovereign states used to be the dominant political actors in the world.

Today, this is only partly true.
Modern states and their extraordinary development during the nine-

teenth century are the result of war. The Bank of England originated
from England’s needs in the war with France. The first income taxes
were imposed to finance wars. The levée en masse was introduced
due to the French Revolution, in a state of tension with all European
powers.3 In 1876, the English Home Office had 36 employees; in
the decade that followed, 80 per cent of the English national budget
was devolved to military expenses. However, all this changed in the
second half of the twentieth century.4 The percentage of overall public
expenditure devoted to military spending has progressively decreased
globally (with the exception of the United States). Mandatory military
service was suppressed first in Japan, then in the United Kingdom
(1960), the United States (1973), Belgium (1994), France (1996) and
Italy (1999). Thus, states have reduced their commitment to the use of
force. Furthermore, such as in the case of Kosovo, defence from being
3 M. van Creveld, The Rise and Decline of the State, Cambridge, Cambridge University Press, 1999,
pp. 336 ff.
4 At least in developed countries: C.S. Maier, “Il ventesimo secolo è stato peggiore degli altri? Un
bilancio storico alla fine del Novecento” (1999) 6 Il Mulino 995 ff.
CASSESE_9781789904215_t.indd 100 21/01/2021 11:39

a national function has become a supranational task (from a “national

public good” to a “club good”), entrusted to NATO or the UN.5
Technology, the state’s principal tool, escapes the state. The press,
road networks, railways and telecommunications were once tools of
the state. Now, they transcend the state. Air transportation is regu-
lated by relevant industry associations (including the International
Air Transport Association, or IATA) more than by states. The
International Telegraph Union, the International Telecommunication
Union, the Universal Postal Union and the International Bureau of
Weights and Measures issue standards that states enforce. While states
once ruled and controlled interstate communications between indi-
viduals, through the Internet, these can now establish direct relations
with each other, and create networks, associations and international
groups without interference by national governments.6 Initiatives to
globalize cybersecurity governance are progressing.7
States (at least developed ones) once governed the economy. Markets
themselves were the product of state regulations. Today, multinational
corporations operate in several states, under the jurisdiction of each of
them, while at the same time transcending them. There is a “reversed
functionality between state and markets: more and more states tend
to become functional to the markets”. Also, “[t]he borders of states
no longer mark the boundaries of markets”.8 This “universal inter-
dependence of nations” had already been noticed by Karl Marx and
Friedrich Engels in their Communist Manifesto of 1848.9
5 See also K.J. Greenberg, Reimagining the National Security State: Liberalism on the Brink,
Cambridge, Cambridge University Press, 2020.
6 On network structures and politics, see C. Ansell, “The Networked Polity: Regional Development
in Western Europe” (2000) 13(3) Governance 303.
7 H. Moynihan, “The Application of International Law to State Cyberattacks: Sovereignty and Non-
Intervention”, Chatham House International Law Programme, December 2019.
8 M.R. Ferrarese, Le istituzioni della globalizzazione. Diritto e diritti nella società transnazionale,
Bologna, Il Mulino, 2000, pp. 14, 23, 41, 53, 59; see also S. Cassese, Oltre lo Stato: i limiti dei
governi nazionali nel controllo dell’economia, in F. Galgano, S. Cassese, G. Tremonti and T. Treu
(eds), Nazioni senza ricchezza, ricchezza senza nazione, Bologna, Il Mulino, 1993, p. 35.
9 K. Marx, F. Engels, Manifesto of the Communist Party, available online at https://socialistworker.
org/2012/01/13/chasing-over-the-globe accessed 11 October 2020: “The need of a constantly
expanding market for its products chases the bourgeoisie over the entire surface of the globe. It
must nestle everywhere, settle everywhere, establish connections everywhere. The bourgeoisie
has through its exploitation of the world market given a cosmopolitan character to produc-
tion and consumption in every country. To the great chagrin of Reactionists, it has drawn from
under the feet of industry the national ground on which it stood. All old-established national
CASSESE_9781789904215_t.indd 101 21/01/2021 11:39

In addition, states are caught in a network of supranational regulators,

which they themselves created. International organizations numbered
123 in 1951, 280 in 1972 and 395 in 1984; today, they number in the
thousands and continue to increase. However, as noted above, global
governance goes far beyond intergovernmental organizations. There
exist in nuce global regulators, according to the so-called “Hanging
Together” model, which consists of summits gathering heads of state
or government.10 There are regulatory regimes that do not follow the
Drummond model,11 such as the Paris Club. There are international
courts: criminal jurisdictions (ad hoc ones, such as those established
in 1993 and 1994, the International Criminal Tribunal for the former
Yugoslavia, and the International Criminal Tribunal for Rwanda; or
general courts, such as the International Criminal Court), the Dispute
Settlement Body of the WTO, and the International Tribunal on the
Law of the Sea.12 There are networks created “from the bottom up”,
by means of agreements– between competition authorities, monetary
and banking authorities, and financial market control authorities–
that establish standards to be implemented locally.13 Finally, there are
international NGOs.
As previously noted, this supranational world is not monopolistic.

It features a plurality of lawmakers;14 it acts predominantly through
soft law, which is often negotiated and devoid of rigid formulas.
However, it disaggregates the states,15 breaking the paradigm of the
industries have been destroyed or are daily being destroyed. They are dislodged by new industries,
whose introduction becomes a life and death question for all civilized nations, by industries that
no longer work up indigenous raw material, but raw material drawn from the remotest zones;
industries whose products are consumed, not only at home, but in every quarter of the globe. In
place of the old wants, satisfied by the production of the country, we find new wants, requiring for
their satisfaction the products of distant lands and climes. In place of the old local and national
seclusion and self-sufficiency, we have intercourse in every direction, universal interdependence
of nations.”
10 On which R. Putnam and N. Bayne, Hanging Together. The Seven-Power Summits, London,
Heinemann Educational Books Ltd, 1984.
11 S. Cassese, “Relations between International Organizations and National Administrations”,
in International Institute of Administrative Sciences– IISA, Proceedings, XIX International
Conference, Berlin, 1983.
12 P.M. Dupuy, “La multiplication des jurisdictions internationales menace-t-elle le maintien de
l’unité de l’ordre juridique international?”, in Université de Paris II, Clès pour le siècle, Paris,
Dalloz, 2000, p. 1221.
13 A.M. Slaughter, “The Real New World Order” (1997) 76(5) Foreign Affairs 183.
14 W. Reinicke, Global Public Policy: Governing without Government?, Washington, Brookings
Institute Press, 1998.
15 M.R. Ferrarese, Le istituzioni della globalizzazione. Diritto e diritti nella società transnazionale,
CASSESE_9781789904215_t.indd 102 21/01/2021 11:39

state as a unit. The unitary political bond between the citizen and
the state is also lost, giving way to a “Balkanization” of belonging and
identity.16
12.5 The state reacts

If states retreat and global governance expands, does this mean that
states are destined to disappear, in the long run? The tension between
the state and globalization conceals several ambiguities.
Civil servants have grown in number, from constituting about 10 per

cent to approximately 25 per cent of the workforce in Western coun-
tries by the second half of the twentieth century. Over the same period,
public spending (as a proportion of gross domestic product) increased
from about 30 to about 40 per cent in the West.17 Therefore, if there
has been a retreat, only some areas were affected, not the state in its
entirety. On the contrary, the state has increased its dimensions.
States have assumed new tasks, even becoming “market builders”: on

the one hand, certain sectors of the economy owe their development
to the state (advanced technology, space and defence, the biomedical
sector); on the other, new and mostly independent bodies are set up to
regulate sectors in which state competence used to be episodic or was
badly organized (such as the fields of telecommunications, the stock
exchange or financial markets).18
States try to keep global regulators under control through “re-

nationalization”. In this way, “infranationalism”19 develops. The most
important example in this respect are the EU committees. As already
noticed, these also respond to the needs of member states to keep the
Bologna, Il Mulino, 2000, especially pp. 61 ff, 71 ff and 94 ff. Previously, S. Cassese, “Relations
between International Organizations and National Administrations”, in International Institute of
Administrative Sciences– IISA, Proceedings, XIX International Conference, Berlin, 1983.
16 J. Chevallier, L’Etat, Paris, Dalloz, 1999. See also F. Tamassia, “Nazione, Stato, Europa, in
Democrazia, Nazione e Crisi delle Ideologie” (1997) IX Annali della Fondazione Ugo Spirito 57.
17 M. van Creveld, The Rise and Decline of the State, Cambridge, Cambridge University Press, 1999,
pp. 361 ff.
18 A.M. Sbragia, “Governance, the State, and the Market: What Is Going On?” (2000) 13(2)
Governance 243.
19 The word has been used by J.H.H. Weiler, The Constitution of Europe, Cambridge, Cambridge
University Press, 1999, pp. 96 ff.
CASSESE_9781789904215_t.indd 103 21/01/2021 11:39

EU under control through “middle-range officials”, who establish a

“meso” level of governance.
The tensions produced by these ambiguities and contradictions require

mutual adaptation, which is achieved through forms of cooperation,
coordination and interdependence– much like in the past, when
jus commune and jura propria coexisted;20 when England governed
through indirect rule; or in the age of compound states (Respublica
composita, according to Samuel von Pufendorf’s expression), such
as the Kaisertum Österreich or the Ottoman Empire. These were
made up of multinational states with multiple components (Austria,
the Kingdoms of Bohemia and Hungary, Silesia, Craina, Galicia,
Transylvania, Slavonia, Croatia, Tyrol, Lombardy, Veneto, Moravia,
Styria, Carinthia, in the first case; and Turkey, Serbia, Greece, Bulgaria,
Algeria, Tunisia, Libya, Iraq, Egypt, Syria, in the second) and a few
common bodies. These common bodies were arranged in multilevel
structures, with precarious and continuously negotiated balances.21
These overlapping legal orders and the need for continuous adapta-
tions made the balance within national binary systems22 precarious and
increased their complexity; however, it did not prevent the Habsburg
and Ottoman Empires from lasting between six and nine centuries.
In conclusion, the state, eroded and diminished by a higher law, seems

to return to the fore, in an evolution without irreversible results.23
Outside Europe, to travel from one country to another, a passport and
many local currencies are necessary. But Phileas Fogg travelled around
the world in 80 days– a ccording to Julius Verne’s novel– w ith only
gold coins and no passport.
20 On this phenomenon, on which there is a rich body of literature, with reference to EU law, see
J. Gaudemet, “Du ius commune au droit communautaire”, in Université de Paris II, Clès pour le
siècle, Paris, Dalloz, 2000, p. 1011.
21 Aside from the composite character of these entities, it is interesting to note that they dominated
large spaces but relatively few people (at least according to contemporary criteria): the first com-
prising about 50 million inhabitants, the second 40 million.
22 D. Truchet, “La structure du droit administratif peut-elle demeurer binaire?”, in Université de
Paris II, Clès pour le siècle, Paris, Dalloz, 2000, p. 443.
23 V. Wright and S. Cassese (eds), La recomposition de l’Etat en Europe, Paris, La Découverte, 1996.
CASSESE_9781789904215_t.indd 104 21/01/2021 11:39

12.6 In conclusion
Beyond national governments, there is a dense structure of rules,

public bodies and procedures. Each responds to the growing need for
cooperation due to the interdependence of national regulators. The
need to open the way to world trade and to airline passengers travelling
from one country to another; to regulate the flows of migrants; to keep
under control global warming, global terrorism, the fishing of highly
migratory species of the sea– all of these functions require collabora-
tion. Global problems call for global solutions. Even the most unilat-
eral action by a national government has multilateral effects: duties
established by the United States on goods imported from China have a
multilateral chain effect in the European single market.
Therefore, as noted, global regulatory regimes are established because

a growing number of problems cannot be addressed or solved by
national governments. There is growing recognition of supranational
and global law on the part of national constitutions (see for exam-
ple those of Germany, Argentina, South Africa, France and Spain).
Therefore, it is certainly reasonable to “think of statehood as a product
which is produced by the state in association with other actors. . .
It is sufficient to think of who provides security in Afghanistan or
Tajikistan, domestic authority in Kosovo or Bosnia, or public services
in Mozambique or Burundi. There are also international institutions
and organizations in place to assume these functions– think of the UN
transitional administration, the international forces in Afghanistan, or
of the World Bank’s suggestion to set up so-called ISAs (Independent
Service Authorities) in low income countries under stress (LICUS).”24
The global space is structured as follows: there is no single global

legal order, but rather, in the global space, there are numerous global
regulatory regimes. There is no unique common pattern, because the
global space is the empire of adhocracy. Global regulatory regimes
are not uniform, because they must balance national diversity and
global standards. In a vertical sense, there is continuity between
the global level and the national level: there is no clear dividing line
between the local and the global (national governments establish and
control global institutions; conversely, global institutions use national
governments as implementers and have established direct links with
24 C. Zürcher, “When Governance Meets Troubled States”, in M. Beisheim and G.F. Schuppert
(eds), Staatszerfall und Governance, Baden Baden, Nomos, 2007, p. 11.
CASSESE_9781789904215_t.indd 105 21/01/2021 11:39

national civil societies). The global legal space is neither hierarchical

nor layered, but “marbled”, in that it presents a mixture of global,
transnational, supranational and national planes. Horizontally, the dif-
ferent global regulatory regimes are self-contained (because the global
legal space is fragmented), but they establish mutual connections and
linkages with one another. Together, they give rise to an enormous
conglomeration of interdependent legal orders. The public-private
divide is blurred (as the domestic paradigms of governments regulat-
ing businesses do not apply). Rulemaking and enforcement powers are
separated from one another: global bodies set standards and monitor
compliance but lack enforcement power; the global legal space relies
on surrogates, and implementation and enforcement is usually left to
national governments that act as instruments of global institutions.
Global regulatory regimes impose the rule of law on national govern-
ments, which is to be implemented in their relations with each other. A
body of administrative law principles has developed at the global level,
comprising the principles of fair procedure, the right to be informed
and consulted, the right to a hearing, the duty to give reasons and the
right to a judge. However, both procedural fairness and judicial review
are influenced by the new context and thus open to change.
The global legal space is becoming a “machine that runs of itself”,

because national governments establish global regulators, which are
activated by interested citizens. These, acting as a “fire alarm”, are
strengthened by associating with parallel regulatory regimes (for
example, regarding the environment and human rights), which are
implemented by means of a mechanism that is capable of breaking the
unity of the state (and therefore the paradigm of “the state as a unit”)
and advancing the process of globalization. National governments and
civil societies accept globalization because it is advantageous for vari-
ous reasons, first of all economic.
This customary approach to globalization could be reversed by admit-

ting that at the global level, there is now a composite constitution,
with many “feudal lords”, both territorial and general (national gov-
ernments), or functional and specialized (international governmental
organizations) in nature. National governments retain a monopoly
over the use of force (they obtain obedience through the threat of
sanctions). However, global bodies use surrogates to implement
their standards. This may be done as follows: establishing a “regime
complex” (linking one regime to another); authorizing controlled self-
enforcement (retaliation); introducing incentives for compliance (pro-
CASSESE_9781789904215_t.indd 106 21/01/2021 11:39

viding additional rights); or ensuring imitation (self-standardization).

There is, therefore, a double implementation system: obedience is
compelled by national governments through enforcement; compliance
is induced by global regulatory regimes.
In practice, in the global space, there is a division of labour: national

governments retain the power to solve highly political disputes through
negotiation or other political or military means; global courts are
entitled to solve disputes implicating “low politics”. However, courts
establish secondary circuits, through which they extend the rule of law
in the global arena.
Globalization penetrates into national governments, disaggregating

unitary national legal orders and establishing networks that act either
as mere forums, such as the ICN, or as regulators, such as the Basel
Committee. These interconnections create a double accountability for
the national bodies, which also act as components of global regulatory
regimes.
Globalization has an impact on national legal orders. It does change

the geometry of national governments, because it reduces hierarchies
and establishes horizontal links, in that national bodies must respond
not only to their national constituencies but also to foreign bodies
(examples are the Polish and Hungarian governments vis-à-vis the EU).
Globalization does influence national sovereignty (which is shared,
and therefore limited), state borders (for instance, it provides protec-
tion to migrants), and national citizenships (creating plural identities).
It opens national legal orders to the transplantation and circulation
of institutions that are “strangers” to one another but acquire citizen-
ship in the new context, where they are re-semantized. It establishes
a dialogue between legal orders, which are called upon to respect the
principle of equivalence, harmonize their rules, give explanations to
other states and respect a certain degree of uniformity.
Globalization also has an impact on regional aggregation: the “flatter”

the world becomes, the more it is necessary to establish wider aggrega-
tions at the regional level, going beyond the state. Otherwise, how
could small countries be heard? As a result, new regional federations,
confederations and unions are being established.
State sovereignty and globalization, which are frequently opposed to

one another, are on the contrary progressing side by side. National
CASSESE_9781789904215_t.indd 107 21/01/2021 11:39

governments establish global networks and place them under their

control. Global bodies issue standards that states must respect. There
is tension between the two poles, not opposition. The growth of glo-
balization does not mean that states are disappearing or will disappear:
quite to the contrary, they expand their area of action, while in the
meantime, they are caught in the net of globalization. Even those who
defend national sovereignty (i.e. those who support souverainism) do
not refuse all forms of supranational networking.
Could this state of affairs be improved? The answer is in the affirma-

tive. At the global level, a cosmopolitan system of government could be
established. We could work towards achieving less unilateralism and
negotiations, and more rulemaking and adjudication. This incremental
development makes it easier to establish a higher system of powers.
CASSESE_9781789904215_t.indd 108 21/01/2021 11:39

Further reading
1 On the global space
Cassese, S. A World Government?, Sevilla, Global Law Press, 2018.

Kissinger, H. World Order, London, Penguin Books, 2014.
Mazower, M. Governing the World. The History of an Idea. 1815 to the Present, London,
Penguin Books, 2012.
2 On the evolution of international law and global history
Anghie, A. Imperialism, Sovereignty and the Making of International Law, Cambridge,

Cambridge University Press, 2005.
Gruzinski, S. L’histoire, pour quoi faire?, Paris, Fayard, 2015.
Koskenniemi, M. The Gentle Civilizer of Nations. The Rise and Fall of International Law
1870–1960, Cambridge, Cambridge University Press, 2002.
Koskenniemi, M. “The Fate of Public International Law: Between Techniques and
Politics”, (2007) 70(8) The Modern Law Review 1–30.
Sinclair, G.F. To Reform the World. International Organizations and the Making of
Modern States, Oxford, Oxford University Press, 2017.
Tate, J.C., J. Reinaldo de Lima Lopes, and A. Botero-Bernal (eds), Global Legal History, A
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3 On sovereignty and globalization
Battini, S. Amministrazioni nazionali e controversie globali, Milan, Giuffrè, 2007.

Ku, J., and J. Yoo. “Globalization and Sovereignty” (2013) 31(210) Berkeley Journal of
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109
CASSESE_9781789904215_t.indd 109 21/01/2021 11:39

4 On the relationships between globalization and law
Bryst, A. (ed.), The Politics of the Globalization of Law. Getting from Rights to Justice,
London, Routledge, 2013.
Cassese, S. “Universalità del diritto”, in ID, Oltre lo Stato, Rome-Bari, Laterza, 2006, pp.
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5 On the sphere of public law and the formation of ultra-national

legal space
Auby, J.B. La globalisation, le droit, l’État, Paris, Montchrestien, 2003.

Cassese, S. Oltre lo Stato, in ID., Lo spazio giuridico globale, Rome-Bari, Laterza, 2003.
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Koch, C.H. “Introduction: Globalization of Administrative and Regulatory Practice”
(2002) 54(1) Administrative Law Review 409–414.
Koch, C.H. “Judicial Review and Global Federalism” (2002) 54(1) Administrative Law
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Shapiro, S.A. “International Trade Agreements, Regulatory Protection, and Public
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6 On the economic and political science approaches to

globalization
Esty, D.C. “Good Governance at the Supranational Scale: Globalizing Administrative

Law” (2006) 115 Yale Law Journal 1490 ff.
Ferrarese, M.R. Le istituzioni della globalizzazione. Diritto e diritti nella società transna-
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FURTHER READING 111
Held, D., and M. Koenig-Archibugi, Taming Globalization. Frontiers of Governance,

Cambridge, Polity Press, 2003.
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7 On global governance
Cassese, S. The Global Polity, Sevilla, Global Law Press, 2012.

Mansbach, R.W. “The Limits of Globalization and Global Governance in Producing
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Schütze, R. (ed.), Globalization and Governance. International Problems, European
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8 On fragmentation in international law
Andenas, A., and E. Bjorge (eds), A Farewell to Fragmentation: Reassertion and

Convergence in International Law, Cambridge, Cambridge University Press, 2015.
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Conforti, B. “Unité et fragmentation du droit international: glissez, mortels, n’appuyez
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Dupuy, P.-M. “A Doctrinal Debate in the Globalization Era: On the ‘Fragmentation’ of
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9 On international organizations
Alvarez, J.E. International Organizations as Law-makers, Oxford, Oxford University

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Klabbers, J. “The Transformation of International Organizations Law” (2015) 26(1) The

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10 On non-governmental organizations
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100(348) American Journal of International Law 348–372.
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11 On inter-agency cooperation, transnational relations and

interaction of legal systems
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12 On the role of states and individuals in the global arena
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13 On global regulatory regimes and private governance
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Emergence of Global Regulatory Governance” (1999) 6(425) Indiana Journal of
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Krasner, S.D. (eds), International Regimes, Ithaca NY and Cambridge MA, Cornell
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FURTHER READING 113
Noortman, M. Enforcing International Law. From Self-Help to Self-contained Regimes,

London, Routledge, 2016.
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of Integrating Markets, Oxford, Hart Publishing, 2005.
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14 On global constitutionalism
Altwegg-Boussac, M. “Le constitutionnalisme global, quels espaces pour la discussion?”

(2018) 19 Jus Politicum 7 ff.
Amato, G. “Il costituzionalismo oltre i confini dello Stato” (2013) 1 Rivista trimestrale di
diritto pubblico 1–8.
Auriel, P. “La démocratie au-delà de l’État. La nécessité d’une constitution internationale
et européenne dans l’œuvre de Jürgen Habermas” (2018) 19 Jus Politicum 41 ff.
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de Frouville, O. “Une théorie non constitutionnaliste de la Constitution internationale”
(2018) 19 Jus Politicum 95 ff.
De Wet, E. “The International Constitutional Order” (2006) 55(5) International and
Comparative Law Quarterly 51–76.
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Fassbender, B. “The United Nations Charter as a Constitution of the International
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Joerges, C., I.J. Sand, and G. Teubner (eds), Transnational Governance and
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Global Legal Studies 397 ff.
Peters, A. “Le constitutionnalisme global: Crise ou consolidation?” (2018) 19 Jus
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Poiares Maduro, M. “From Constitutions to Constitutionalism: A Constitutional
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Ponthoreau, M.C. “La métaphore géographique. Les frontières du droit constitutionnel
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Silvestri, G. “Costituzionalismo e crisi dello Stato– n azione. Le garanzie possibili nello
spazio globalizzato” (2013) 4 Rivista trimestrale di diritto pubblico 905 ff.
St. John Macdonald, R., and D.M. Johnston (eds), Towards World Constitutionalism.
Issues in the Legal Ordering of the World Community, Leiden, Martinus Nijhoff, 2005,
pp. 103 ff.
Suami, T., A. Peters, D. Vanoverbeke, and M. Kumm (eds), Global Constitutionalism
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from European and East Asian Perspectives, Cambridge, Cambridge University Press,
2019.
Teubner, G. “Constitutionnalisme sociétal: Neuf variations sur un thème de David
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Ponthoreau, M.C. “‘Global Constitutionalism’, un discours doctrinal homogénéisant.
L’apport du comparatisme critique” (2018) 19 Jus Politicum 105 ff.
Xifaras, M. “Conclusions” (2018) 19 Jus Politicum 135 ff.
15 On the rule of law in the global space
Cassese, S. Il diritto globale. Giustizia e democrazia oltre lo Stato, Torino, Einaudi,

2009.
Denninger, E. “The Rule of Law or ‘rule of law’: What Is It Today?”, in A. Jellamo and F.
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Dyzenhaus, D. “The Rule of (Administrative) Law in International Law” (2005) 68(127)
Law and Contemporary Problems 127 ff.
Silverstein, G. “Globalization and the Law of Law: ‘A Machine that Runs of Itself?’”
(2003) 1(429) International Journal of Constitutional Law 427–445.
16 On the global judges
Allard, J., and A. Garapon, Judges and Globalization. The New Revolution of Law,
Bucharest, Rosseti Education, 2010.
Boisson de Chazournes, L. “Plurality in the Fabric of International Courts and Tribunals:
The Threads of a Managerial Approach” (2017) 28(1) The European Journal of
International Law 13–72.
Cassese, S. I tribunali di Babele. I giudici alla ricerca di un nuovo ordine globale, Rome,
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Craig, P. UK EU and Global Administrative Law. Foundations and Challenges,
della Cananea, G. Due Process of Law beyond the State. Requirements of Administrative
Procedure, Oxford, Oxford University Press, 2016.
Garapon, A., and C. Guarnieri, “La globalizzazione giudiziaria” (2005) 1 Il Mulino 16 ff.
Howse, R. “The World Trade Organization 20 Years On: Global Governance by Judiciary”
(2016) 27(1) The European Journal of International Law 9–77.
Sands, P. Lawless World. Making and Breaking Global Rules, London, Penguin, 2005.
Shany, Y. The Competing Jurisdictions of International Courts and Tribunals, Oxford,
Shany, Y. Regulating Jurisdictional Relations between National and International Courts,
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Treves, T. “Judicial Lawmaking in an Era of Proliferation of the International Courts
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FURTHER READING 115
and Tribunals: Development or Fragmentation of International Law?”, in R. Wolfrum

and V. Röben (eds), Developments of International Law in Treaty Making, Springer,
Berlin, Heidelberg, New York, 2005, pp. 587 ff.
17 On the problems of accountability and democracy in the

international space
Aman, A.C. Jr., “Globalization, Democracy and the Need for a New Administrative Law”
(2003) 10(125) Indiana Journal of Global Legal Studies 125 ff.
Andreatta, F. “Democrazia e politica internazionale: pace separata e democratizzazione
del sistema internazionale” (2005) 2 Rivista italiana di scienza politica 213 ff.
Delbrück, J. “Exercising public authority beyond the State: transnational democracy and
/ or alternative legitimation strategies?” (2003) 10(1) Indiana Journal of Global Legal
Studies 29 ff.
Keohane, R.O. “Nominal Democracy? Prospects for Democratic Global Governance”
(2015) 13(2) International Journal of Constitutional Law 343–353 and the subsequent
discussion in (2016) 14(4) International Journal of Constitutional Law 925–940.
Keohane, R.O., and J.S. Nye Jr., Power and Interdependence: World Politics in Transition,
Boston, Little Brown, 2001.
Reinisch, A. “Securing the Accountability of International Organization” (2001) 7(131)
Global Governance 131 ff.
Stein, E. “International Integration and Democracy: No Love at First Sight” (2001)
95(489) American Journal of International Law 489–534.
Teubner, G. “Quod omnes tangit: transnationale Verfassung ohne Democratie?” (2018)
57 Der Staat 171–194.
von Bogdandy, A. “Demokratie, Globalisierung, Zukunft des Völkerrechts – Eine
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853–876.
von Bogdandy, A., and I. Venzke, In Whose Name?: A Public Law Theory of International
Adjudication, Oxford, Oxford University Press, 2014.
Wolfrum, R., and V. Röben (eds), Legitimacy in International Law, Berlin, Heidelberg,
New York, Springer, 2008.
18 On cosmopolitan participatory and deliberative democracy
Archibugi, D. “La democrazia cosmopolitica: una prospettiva partecipante” (2005) 2

Rivista italiana di scienza politica 88–261.
Archibugi, D. The Global Commonwealth of Citizens. toward Cosmopolitan Democracy,
Princeton, Princeton University Press, 2008.
Benhabib, S. Another Cosmopolitanism, Oxford, Oxford University Press, 2006.
Cassese, S. “La partecipazione dei privati alle decisioni pubbliche. Saggio di diritto com-
parato” (2007) 1 Rivista trimestrale di diritto pubblico 11 ff.
Elster, J. (ed.), Deliberative Democracy, Cambridge, Cambridge University Press, 1998.
CASSESE_9781789904215_t.indd 115 21/01/2021 11:39

Held, D. Models of Democracy, 3rd edn., Cambridge, Polity Press, 2006.

Held, D. Cosmopolitanism. Ideas and Realities, Cambridge, Polity Press, 2010.
19 On democratic legitimacy of global institutions
Barnett, M. “Bringing in the New World Order, Liberalism, Legitimacy and the United
Nations” (1997) 49(4) World Politics 526–551.
Boisson de Chazournes, L. “Changing Roles of International Organizations: Global
Administrative Law and the Interplay of Legitimacies” (2009) 6 International
Organizations Law Review 655–666.
Buchanan, A., and R.O. Keohane, “The Legitimacy of Global Governance Institutions”
(2006) 20(4) Ethics and International Affairs 405, 437.
Coicaud, J.M., and V. Heiskanen (eds), The Legitimacy of International Organizations,
New York, United Nations University Press, 2001.
Fox, G.H., and B.R. Roth (eds), Democratic Governance and International Law,
Franck, T.M. The Power of Legitimacy among Nations, Oxford, Oxford University Press,
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American Journal of International Law 46 ff.
Goodhart, M. Democracy as Human Rights: Freedom and Equality in the Age of
Globalization, London, Routledge, 2005.
Meny, Y. Popolo ma non troppo. Il malinteso democratico, Bologna, il Mulino, 2019, pp.
22, 150 and 209.
Rabkin, J.A. Law without Nations? Why Constitutional Government Requires Sovereign
States, Princeton, Princeton University Press, 2005.
Schneider, C. The Challenged Legitimacy of International Organisations: A Conceptual
Framework for Empirical Research, paper presented at the 2005 Berlin Conference
on the Human Condition of Global Environmental Change, Berlin, 2–3 December
2005.
von Bogdandy, A. “Legitimacy of International Economic Governance: Interpretative
Approaches to WTO law and the Prospects of its Proceduralization”, in S. Griller (ed.),
International Economic Governance and Non-economic Concerns: New Challenges for
the International Legal Order, Vienna/New York, Springer, 2003.
von Bogdandy, A., and I. Venzke, “International Judicial Institutions in International
Relations: Functions, Authority and Legitimacy”, in B. Reinalda (ed.), Routledge
Handbook of International Organization, London: Routledge, 2013.
Wouters, J., A. Braeckman, M. Lievens, and E. Bécault (eds), Global Governance and
Democracy: A Multidisciplinary Analysis, Cheltenham and Northampton MA,
Edward Elgar Publishing, 2015.
Zaum, D. (ed.), Legitimating International Organizations, Oxford, Oxford University
Press, 2013.
Zaum, D. “International Organizations, Legitimacy, and Legitimation”, in D. Zaum (ed.),
Legitimating International Organizations, Oxford, Oxford University Press, 2013.
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FURTHER READING 117
Zaum, D. “Legitimacy”, in J. Katz Cogan and I. Hurd (eds), Oxford Handbook of

International Organizations, Oxford, Oxford University Press, 2016.
20 On global administrative law in general
Battini, S. Amministrazioni senza Stato. Profili di diritto amministrativo internazionale,

Milan, Giuffrè, 2003.
Cassese, S. “Il diritto amministrativo globale: una introduzione”, in ID., Oltre lo Stato,
Rome-Bari, Laterza, 2006, pp. 38 ff.
Cassese, S. (ed.), Research Handbook on Global Administrative Law, London, Edward
Elgar Publishing, 2016.
Cassese, S., and M. Conticelli (eds), “Diritto e amministrazioni nello spazio giuridico
globale” (2006) 2 Rivista trimestrale di diritto pubblico.
Casini, L. “Diritto amministrativo globale”, in S. Cassese (ed.), Dizionario di diritto pub-
blico, Milan, Giuffrè, 2006, ad vocem.
Casini, L. Potere globale. Regole e decisioni oltre gli Stati, Bologna, il Mulino, 2018.
Casini, L. “Global Administrative Law”, in J.L. Dunoff and M.A. Pollack (eds),
International Legal Theory: Foundations and Frontiers, Cambridge, Cambridge
Kingsbury, B., R.B. Stewart, and N. Krisch, “The Emergence of Global Administrative
Law” (2005) 68(3–4) Law and Contemporary Problems 15 ff.
Stewart, R.B. “Global Administrative Law” (2005) 3 Rivista trimestrale di diritto pubblico
633 ff.
21 On the contemporary problems of global administrative law
Benvenisti, E. “Upholding Democracy Amid the Challenges of New Technology:

What Role for the Law of Global Governance?” (2018) 29(1) European Journal of
Benvenisti, E. “Algorithmic Checks and Balances: A Rejoinder” (2019) 29(4) European
Journal of International Law 1087–1090.
Casini, L. “Googling Democracy? New Technologies and the Law of Global Governance:
Afterword to Eyal Benvenisti’s Foreword” (2018) 29(4) European Journal of
McGregor, L. “Accountability for Governance Choices in Artificial Intelligence:
Afterword to Eyal Benvenisti’s Foreword” (2018) 29(4) European Journal of
22 On national administrations in the global environment
Kim, S., S. Ashley, and W.H. Lambright (eds), Public Administration in the Context of
Global Governance, London, Edward Elgar Publishing, 2014.
CASSESE_9781789904215_t.indd 117 21/01/2021 11:39

Wenander, H. “A Toolbox for Administrative Law Cooperation beyond the State”, in

A.S. Lin and J. Reichel (eds), Administrative Law beyond the State. Nordic Perspectives,
Stockholm, Nijhoff, 2013, pp. 47 ff.
CASSESE_9781789904215_t.indd 118 21/01/2021 11:39

Index
adhocracy 32–3 comitology 22

adjudication 57–8 community interest 14
administrative globalization 41–4 consensus 21–2, 48–50
characteristics of 42 constitutionalism, multilevel 23
features of 41–2 Constitution of International Civil
global vs. national administrations 43–4 Defence Organization 49–50
justice in administration 43 Convention on Biological Diversity 46
administrative international law 2 Convention on International Trade in
Agreement on Application of Sanitary Endangered Species of Wild Flora
and Phytosanitary Measures (SPS and Fauna 46
Agreement) 58 core labour standards 12
Agreement on Implementation of Article Council for Mutual Economic Assistance
VI of GATT 1994 57 (COMECON) 62
antagonism 4 court-centred legal cultures 40
Antarctic Treaty 48 COVID-19 pandemic 7, 9
Anti-Dumping Agreement 57, 77 cui prodest 40
anti-legalism 59
anti-sweatshop legislation laws 12 deliberative democracy 27, 29
arbitral tribunals 79 democracy
Arms Trade Treaty 5 deliberative 27, 29
Avenol, Joseph 64 globalization of 38–9
legal globalization 93–5
Belt and Road Initiative 6 multilateralism enhancing 97
Bentham, Jeremy 1 participatory 27
Bertrand, Maurice 67 digital globalization 7
Bolsonaro, Jair 5 diplomacy 58
dispute settlement through courts 58–60
CAC see Codex Alimentarius distributed administration 32
Commission distribution of international affairs 71–2
Canada-Mexico-US Agreement domestic administrative law 75–6
(USMCA) 5 domestic bureaucracies 69–73
Capograssi, Giuseppe 82 domestic law vs. international law 1
citizens’ rights 100 Drummond, Sir Eric 20, 62, 64
Codex Alimentarius Commission (CAC)
21, 23, 49, 54 ECSC see European Coal and Steel
COMECON see Council for Mutual Community
Economic Assistance emissions trading system 8
119
CASSESE_9781789904215_t.indd 119 21/01/2021 11:39

Engels, Friedrich 101 of democracy 38–9

Environmental Protection Agency (EPA) global problems and national policies
11 10–12
EPA see Environmental Protection from international to global 1–3
Agency judicial 34–7
EU Regulation No. 881/2002 26 of regulation 53–6
European Coal and Steel Community resurgence of state 4–9
(ECSC) 62 system of global powers 16, 98–9
European Court of Auditors 62–3 global judicial review 78–80
European Court of Justice 74, 89 global law 2
executive bodies 25–6 fundamental rights 95–7
state law vs. 95–7
FAO see Food and Agriculture global legal space
Organization adhocracy 32–3
Federation of International Civil Servants’ administration 19–20
Associations 66 comitology 22
Fogg, Phileas 104 complex structures 23
Food and Agriculture Organization connecting regimes 25
(FAO) 46 democratic deficit 27
foreign affairs 71–2 global bodies vs. national civil societies
fundamental rights 95–7 23
global courts 26–7
GATT Safeguard Measures 58, 77 global executive bodies 25–6
General Agreement on Trade and Tariff global regulations 33–4
25 global standards and cooperation
Georgieva, Kristalina 8 23–5
global administrative law horizontal and vertical relationships
definition of 2–3 31
in liberal state 75–6 international organization functions
right to be heard 76–7 22–3
scholars of 45 jurisdiction 19–20
global administrative machine 45–52 lawmaking 19–20
consensus 48–50 legislation 19–20
hybrid regulatory and administrative multilevel constitutionalism 23
governance 51–2 multilevel ordering 28–30
market forces and planning 50 principle of transparency 33
shared powers 51 rapid development of 28
transactionalism 47–8 representation of 29
transnationalism 50–51 rule of law principles 33
global administrative space 2 rulers without government 30–32
global constitution 37–8 sectorialism 24–5
global governance self-contained regulatory regimes 16
active resistance to 5 shape of 20–23
definition of 2 supranationalism 23
globalization global regulators 43–4, 46–7, 61–8
administrative 41–4 global regulatory regimes 3, 4, 16, 20, 32,
benefits and imbalances 12–16 33, 38, 39, 41, 53, 54, 61, 97, 105–7
CASSESE_9781789904215_t.indd 120 21/01/2021 11:39

INDEX 121
global rule of law international institutional law 2

development, limits and original International Labour Organization (ILO)
features of 80–81 12
existence of 74–5 international law immaturity 82–3
global tourism 7 international law of public health and
global value chains 7 diseases 8
Grant, Ulysses S. 88 international legal space 1
International Monetary Fund (IMF) 8–9,
Hammarskjöld, Dag 65 15
Hankey, Maurice 64 International Organization for
Hungary 4 Standardization (ISO) 21
hybrid administration 32 International Organization of Securities
Commission (IOSCO) 21
ICANN see Internet Corporation for International Panel on Climate Change
Assigned Names and Numbers (IPCC) 12
ICCPR see International Covenant on International Plant Protection
Civil and Political Rights Convention 49
ICN see International Competition International Preliminary Examining
Network Authority 57
ICSAB see International Civil Service International Secretariat of the League of
Advisory Board Nations 63–4
ICSC see International Civil Service international secretariats, origins and
Commission evolution of 63–5
ICSID Arbitral Tribunal 60 International Tribunal by Convention on
IGO see International Governmental the Law of the Sea 32, 53, 74
Organizations International Tropical Timber
ILO see International Labour Organization 46
Organization International Whaling Commission 46
IMF see International Monetary Fund Internet Corporation for Assigned
Immelt, Jeff 7 Names and Numbers (ICANN) 21,
imperium romanum 1 29, 40
implementation agencies 8 IOSCO see International Organization of
infranationalism 103 Securities Commission
international administration 72–3 IPCC see International Panel on Climate
international administrative law 1 Change
International Agreement on Olive Oil ISO see International Organization for
and Table Olives 48 Standardization
International Civil Service Advisory Italy 5
Board (ICSAB) 66
International Civil Service Commission judicial globalization 34–7
(ICSC) 62, 66–8 jurisdiction 19–20
International Competition Network jus gentium/jus inter gentes 1
(ICN) 21 justice in administration 43
International Covenant on Civil and
Political Rights (ICCPR) 12 Kelsen, Hans 82
International Governmental Kim, Jim Yong 6
Organizations (IGO) 46 Kingsbury, Benedict 5
CASSESE_9781789904215_t.indd 121 21/01/2021 11:39

lawmaking 19–20 NEPA see National Environmental Policy

legal globalization Act
complexity of 83–90 NGOs see non-governmental
pervasiveness of 83–90 organizations
reducing democracy 93–5 non-governmental organizations (NGOs)
legislation 19–20 2, 20, 27, 46
non-profit corporation 21
Marx, Karl 101 North American Agreement on
Massachusetts v. Environmental Environmental Cooperation
Protection Agency 11 (NAAEC) 84
modern legal systems 92–3 North American Free Trade Association
Montana Environmental Policy Act 87 (NAFTA) Binational Panels
Montreal Protocol on Substances that 59
deplete the Ozone layer 50 North Atlantic Treaty Organization
multilateralism enhancing democracy (NATO) 7
97
multilevel constitutionalism 23 OECD see Organization for Economic
multilevel ordering 28–30 Cooperation and Development
multinational corporations 5 Organization for Economic Cooperation
mutual recognition and Development (OECD) 4
agreements 50–51
EU principle of 24 pariah states 40
Paris Climate Agreement 5
NAAEC see North American Agreement participatory democracy 27
on Environmental Cooperation Patent Cooperation Treaty of 1970 (PCT)
NAFTA Commission for Labour 31
Cooperation 60 PCT see Patent Cooperation Treaty of
national administration 72–3 1970
national administrative cultures 61–8 permanent missions 72–3
national bureaucracies 69–71 populist nationalism 5
National Environmental Policy Act post-national governance 2
(NEPA) 87 principle of rule of law 33
national governments principle of transparency 33
citizens’ rights 100 private administrative law 3
constitution and development of states public authority 92–3
99
end of states 98 quod omnes tangit, ab omnibus
erosion of state 100–103 approbetur 93
erosion of state sovereignty 99
national interest 100 radical right-wing populists 4–5
system of world powers 98–9 regional institutions 3
national institutions, transplanting 61–3 regulation 53–6
national interest 14, 15, 100 retaliatory mechanism 16
national policies 10–12 right to hearing rule 26
national resistance 10 Romano, Santi 82
NATO see North Atlantic Treaty rule of law
Organization global 74–5, 90–91
CASSESE_9781789904215_t.indd 122 21/01/2021 11:39

INDEX 123
at national level 90–91 UNESCO’s World Heritage Committee

principles of 33 87
UN Human Rights Committee 97
sectorialism 24–5 United Nations Conference on Trade and
Security Council Resolution No. 1373 8 Development (UNCTAD) 48
standards and cooperation 23–5 United Nations Convention to Combat
state law vs. global law 95–7 Desertification 46
state sovereignty 1, 8, 99 United Nations Democracy Fund
Stiglitz, Joseph E. 15 (UNDEF) 42
supranationalism 23 United Nations Educational, Scientific
supranational law 2 and Cultural Organization
Supreme Court of United States 11 (UNESCO) 66
Sweet, Alec Stone 59 United Nations Environment Programme
system of global powers 16, 98–9 (UNEP) 46
United Nations Framework Convention
Thomas, Albert 20, 64 on Climate Change 46
tourism, global 7 United States Civil Service Commission
TPP see Trans-Pacific Partnership 62
transactionalism 31, 47–8 universal interdependence of nations 101
transactional law 23 Universal Postal Union 69
transgovernmental networks 2 UN Preparatory Commission 66
transnationalism 50–51 UN Sanctions Committee 25–6, 74, 88
transnational relations 2 UNSC see UN Security Council
Trans-Pacific Partnership (TPP) 5 UN Security Council (UNSC) 8, 44
transparency, principle of 33 US Court of Appeals 11
transplanting national institutions 61–3 USMCA see Canada-Mexico-US
Treaty of Brussels (1975) 62 Agreement
Trump, Donald 5
World Bank 6, 43
UN Administrative Tribunal 62 Inspection Panel 20, 29, 36, 59, 78, 80
UN Convention on the Law of the Sea 74 Operational Policies 76
UNCTAD see United Nations Policy on Disclosure of Information
Conference on Trade and 19
Development World Health Organization 9, 69
UNDEF see United Nations Democracy World War I 1
Fund World War II 39
UN Educational, Scientific and Cultural WTO Appellate Body 49, 78, 79
Organization 5 WTO Dispute Settlement Body 27, 49,
UNEP see United Nations Environment 79, 80
Programme WTO Dispute Settlement Understanding
UNEP Convention on Migratory Species 60
46
UNEP Secretariat on the Rotterdam Yusuf, Ali Ahmed 25, 88, 90
Convention on Prior Informed
Consent 46 Zuckerberg, Mark 7
CASSESE_9781789904215_t.indd 123 21/01/2021 11:39

Titles in the Elgar Advanced Introductions series include:
International Political Economy Comparative Constitutional Law

Benjamin J. Cohen Mark Tushnet
The Austrian School of Economics International Human Rights Law

Randall G. Holcombe Dinah L. Shelton
Cultural Economics Entrepreneurship

Ruth Towse Robert D. Hisrich
Law and Development International Tax Law

Michael J. Trebilcock and Mariana Reuven S. Avi-Yonah
Mota Prado
Public Policy
International Humanitarian Law B. Guy Peters
Robert Kolb
The Law of International
International Trade Law Organizations
Michael J. Trebilcock Jan Klabbers
Post Keynesian Economics International Environmental Law

J.E. King Ellen Hey
International Intellectual Property International Sales Law

Susy Frankel and Daniel J. Gervais Clayton P. Gillette
Public Management and Corporate Venturing

Administration Robert D. Hisrich
Christopher Pollitt
Public Choice
Organised Crime Randall G. Holcombe
Leslie Holmes
Private Law
Nationalism Jan M. Smits
Liah Greenfeld
Consumer Behavior Analysis
Social Policy Gordon Foxall
Daniel Béland and Rianne Mahon
Behavioral Economics
Globalisation John F. Tomer
Jonathan Michie
Cost-Benefit Analysis
Entrepreneurial Finance Robert J. Brent
Hans Landström
Environmental Impact Assessment
International Conflict and Security Angus Morrison-Saunders
Law
Nigel D. White
CASSESE_9781789904215_t.indd 124 21/01/2021 11:39

Comparative Constitutional Law Planning Theory
Second Edition Robert A. Beauregard
Mark Tushnet
Tourism Destination Management
National Innovation Systems Chris Ryan
Cristina Chaminade, Bengt-Åke
International Investment Law
Lundvall and Shagufta Haneef
August Reinisch
Ecological Economics
Sustainable Tourism
Matthias Ruth
David Weaver
Private International Law and
Austrian School of Economics
Procedure
Second Edition
Peter Hay
Randall G. Holcombe
Freedom of Expression
U.S. Criminal Procedure
Mark Tushnet
Christopher Slobogin
Law and Globalisation
Platform Economics
Jaakko Husa
Robin Mansell and W. Edward
Regional Innovation Systems Steinmueller
Bjørn T. Asheim, Arne Isaksen and
Public Finance
Michaela Trippl
Vito Tanzi
International Political Economy
Feminist Economics
Second Edition
Joyce P. Jacobsen
Benjamin J. Cohen
Human Dignity and Law
International Tax Law
James R. May and Erin Daly
Second Edition
Reuven S. Avi-Yonah Space Law
Frans G. von der Dunk
Social Innovation
Frank Moulaert and Diana National Accounting
MacCallum John M. Hartwick
The Creative City Legal Research Methods

Charles Landry Ernst Hirsch Ballin
International Trade Law Privacy Law

Michael J. Trebilcock and Joel Megan Richardson
Trachtman
International Human Rights Law
European Union Law Second Edition
Jacques Ziller Dinah L. Shelton
CASSESE_9781789904215_t.indd 125 21/01/2021 11:39

Law and Artificial Intelligence Mental Health Law
Woodrow Barfield and Ugo Pagello Michael L. Perlin
Politics of International Human Law and Literature

Rights Peter Goodrich
David P. Forsythe
Creative Industries
Community-based Conservation John Hartley
Fikret Berkes
Global Administrative Law
Global Production Networks Sabino Cassese
Neil M. Coe
CASSESE_9781789904215_t.indd 126 21/01/2021 11:39

Advanced Introduction To Global Administrative Law

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Advanced Introduction To Global Administrative Law

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Advanced Introduction to Global Administrative Law

CASSESE_9781789904215_t.indd 1 21/01/2021 11:39

The aims of the series are two-fold: to pinpoint essential principles of

Privacy Law Global Production Networks

International Human Rights Law Mental Health Law

CASSESE_9781789904215_t.indd 2 21/01/2021 11:39

Elgar Advanced Introductions

Cheltenham, UK • Northampton, MA, USA

CASSESE_9781789904215_t.indd 3 21/01/2021 11:39

All rights reserved. No part of this publication may be reproduced, stored in a

Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2020950953

This book is available electronically on Elgar Advanced Introductions: Law

ISBN 978 1 78990 421 5 (cased)

Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

1 In the labyrinth of globalization 1

2 The global legal space at a glance 19

3 The global legal space in detail 28

CASSESE_9781789904215_t.indd 5 21/01/2021 11:39

4.3 The global regulators/national administrations

5 The global administrative machine 45

6 Regulation, adjudication and dispute settlement beyond the

7 National administrative cultures and global regulators 61

8 The international role of domestic bureaucracies 69

9 Global administrative law: the principles 74

10 Global administrative law: the implementation of

CASSESE_9781789904215_t.indd 6 21/01/2021 11:39

10.2 The pervasiveness and complexity of legal

11 Towards global justice and democracy? 92

12 National governments and globalization 98

Further reading 109

CASSESE_9781789904215_t.indd 7 21/01/2021 11:39

1.1 From the “international” to the “global”

The international legal space has long been considered as a source of

By the beginning of the twentieth century, and especially after World

1. international administrative law, meaning the law relating to

CASSESE_9781789904215_t.indd 1 21/01/2021 11:39

2. administrative international law (or institutions), the law

CASSESE_9781789904215_t.indd 2 21/01/2021 11:39

of transparency, participation, reasoned decision, and legality,

These new concepts all correspond to new developments in interstate

Therefore, the traditional approach to international law, which

1.2 The world was “born global”

World history is a shared story. Civil societies have always maintained

CASSESE_9781789904215_t.indd 3 21/01/2021 11:39

aware of this, and are discovering global history as a discipline: for

Only when states and statist nationalism developed did we reconceive

The usual approach must be reversed: it is not globalization that

1.3 Resurgence of the state, or globalization?

According to the Organization for Economic Cooperation and

CASSESE_9781789904215_t.indd 4 21/01/2021 11:39

Poland, Turkey, the Philippines, Brazil and Italy. Populist national-

According to Benedict Kingsbury, one of the founding scholars of

Donald Trump campaigned successfully in 2016 on opposition to [the Trans-

CASSESE_9781789904215_t.indd 5 21/01/2021 11:39

Is a retreat from globalization currently under way? Or are we experi-

CASSESE_9781789904215_t.indd 6 21/01/2021 11:39

rules. Global tourism is booming, as is digital globalization. The world

CASSESE_9781789904215_t.indd 7 21/01/2021 11:39

As for cultural heritage, in some areas this cannot be preserved with-

Is state sovereignty reasserting itself, or is globalization advancing? Or­

Similar conclusions may be reached with regard to the sphere of migra-

4.3 The global regulators/national administrations

10.2 The pervasiveness and complexity of legal

1.1 From the “international” to the “global”

1.2 The world was “born global”

1.3 Resurgence of the state, or globalization?

Is state sovereignty reasserting itself, or is globalization advancing? Or

However, it is undeniable that tensions between the two poles– the

1.4 The interplay of global problems and national

1.5 The benefits and imbalances produced by

1.6 The system of global powers

1.7 About this book

2.1 Lawmaking, administration and jurisdiction

2.2 The shape of the global legal space