Case Law Week 7-13 PDF

**[Case law week 7-13]** Week 6: Law of Treaties (II) - Successive Treaties Relating to the Same Subject Matter, Amendment, Invalidity, Termination/Suspension 1. ICJ, Gabcikovo--Nagymaros Project (Hungary/Slovakia) \[1997\] ICJ Rep 1997, 7 In the **Gabcikovo--Nagymaros Project (Hungary/Slova...

**[Case law week 7-13]** Week 6: Law of Treaties (II) - Successive Treaties Relating to the Same Subject Matter, Amendment, Invalidity, Termination/Suspension 1. ICJ, Gabcikovo--Nagymaros Project (Hungary/Slovakia) \[1997\] ICJ Rep 1997, 7 In the **Gabcikovo--Nagymaros Project (Hungary/Slovakia)** case (1997), the International Court of Justice (ICJ) addressed several key legal issues related to the breach of a treaty between Hungary and Slovakia concerning the construction of a dam and related works on the Danube River. - **Paras. 92-97: Arguments of the parties**\ The parties (Hungary and Slovakia) presented their respective arguments. Hungary argued that its suspension of the project was justified due to environmental concerns and the failure of Slovakia to comply with the terms of the treaty. Slovakia countered that Hungary's suspension was an unjustified breach, as the treaty obligations were still in force. - **Paras. 102-103: Impossibility of performance**\ The Court examined whether the impossibility of performance doctrine applied. Hungary claimed that it could not continue the project due to changed circumstances and environmental concerns, but the Court found that the situation did not meet the criteria for impossibility of performance under international law. - **Para. 104: Fundamental change of circumstances**\ The Court also addressed whether a fundamental change of circumstances (as per the doctrine of *rebus sic stantibus*) justified Hungary's suspension of the project. However, the Court concluded that the change was not so drastic as to invalidate the treaty obligations, and Hungary could not invoke this principle as a defense. - **Paras. 105-110: Breach of the 1977 Treaty**\ The Court found that Hungary had breached its obligations under the 1977 Treaty, which committed the parties to the joint execution of the Gabcikovo-Nagymaros project. By unilaterally suspending the project, Hungary had violated its treaty commitments. - **Para. 115: Supervening impossibility of performance**\ In relation to supervening impossibility, the Court concluded that there was no absolute impossibility in continuing the project. The alleged environmental and technical difficulties were not sufficient to justify Hungary's actions under the law of treaties. In sum, the ICJ ruled that Hungary\'s suspension of the project was a breach of the treaty and that the claimed impossibility of performance or fundamental change of circumstances did not provide valid legal justification. Week 7: International Responsibility and Sanctions 2. ICJ, Gabcikovo--Nagymaros Project (Hungary/Slovakia) \[1997\] ICJ Rep 1997, 7 - Paras. 78-87: Circumstances precluding wrongfulness and related conditions of application, as discussed in the context of state responsibility. Week 8: The Reception of International Law in Domestic Legal Orders No case law specified in the recommended reading for this week, but the following materials are important: - E. Denza, \"The Relationship between International and National Law\" in M. D. Evans, *International Law* (6th Ed., Oxford University Press, 2024) Chapter 14 (or earlier editions, such as the 5th Edition, Chapter 13). - **Monism** and **dualism** are two dominant theories that describe the relationship between international and national law. - **Monism**: Holds that international law and national law form a unified system, with international law being automatically incorporated into the national legal system. In monist systems, international law can directly influence or override national law. - **Dualism**: Views international law and national law as separate systems. International law does not have direct effect in national courts unless it is specifically incorporated through national legislation or other formal processes. - Denza explains how these approaches differ and how states might adopt one or the other, or sometimes a combination of both, depending on their constitutional frameworks. - The chapter discusses how different states incorporate or transform international law into their domestic legal systems. - **Incorporation** (in monist systems) often means that once an international treaty is ratified, it automatically becomes part of the domestic law. - **Transformation** (in dualist systems) requires specific domestic legislation to give effect to international treaties or customary international law. - Denza explores how the process of incorporation or transformation works in various legal systems, particularly focusing on constitutional arrangements. - National courts play a critical role in enforcing international law within a domestic context. Denza discusses how courts in different jurisdictions have treated international treaties, customary law, and UN Security Council resolutions. - The chapter examines cases where national courts have either upheld or rejected the applicability of international law, and the judicial reasoning behind these decisions. - The relationship between the courts' interpretation of international law and the political branches (e.g., executive or legislature) is also explored, including potential conflicts between them. - Denza analyzes the constitutional constraints that may affect how international law is applied domestically. This includes the requirement for parliamentary approval for the ratification of treaties in certain countries, or the potential for judicial review of international treaties to ensure they align with constitutional principles. - The constitutional supremacy of national law can sometimes limit or shape how international law is enforced within national borders. - The chapter considers the role of international law in constitutional practice, especially how international law may be used to interpret national constitutions or influence national policy decisions. - For example, certain international human rights conventions may guide domestic courts in interpreting constitutional rights, even if those treaties have not been formally incorporated into national law. - Denza addresses situations in which conflicts arise between national and international law. In such cases, the resolution often depends on the national legal system\'s approach to the relationship between the two bodies of law (whether monist or dualist). - The chapter also considers how such conflicts might be resolved through judicial interpretation, domestic legislation, or international adjudication. - Denza briefly touches on the role of international institutions, such as the United Nations, and how their decisions and resolutions might interact with national legal systems, particularly in cases of state compliance with international norms and obligations. - The chapter also reflects on the impact of globalization on the relationship between international and national law. With increasing interconnectedness, states are more frequently called upon to balance national sovereignty with international obligations, especially in areas such as trade, human rights, and environmental protection. - L. van den Herik, \"Diplomatic vs Judicial International Dispute Settlement\" (Audiovisual, 8 min 33 sec, available here). - Van den Herik introduces the concept of international dispute settlement, emphasizing that there are multiple ways for states to resolve their disagreements on the international stage. These methods generally fall into two broad categories: **diplomatic** and **judicial**. - **Diplomatic methods** include negotiations, mediation, good offices, and conciliation. - These processes are typically informal, flexible, and based on mutual agreement between the parties involved. They allow states to maintain their sovereignty and control over the outcome, often leading to compromises. - **Advantages of diplomatic methods**: - Preserves relationships between states, as they often involve direct communication and negotiation. - Provides flexibility and confidentiality, as parties can avoid public confrontation. - Often faster and less costly than judicial processes. - **Challenges**: - Success depends on the willingness of states to negotiate in good faith. - May be ineffective when parties are unwilling to compromise or when there is an imbalance of power between states. - **Judicial methods** involve resorting to international courts and tribunals, such as the **International Court of Justice (ICJ)**, to adjudicate the dispute. - This process is more formal, structured, and legally binding, with an independent body of judges applying international law to resolve the dispute. - **Advantages of judicial methods**: - Provides a clear, authoritative, and legally binding resolution based on the rule of law. - Reduces the potential for bias or unequal power dynamics, as decisions are made by independent judges. - Ensures consistency in the interpretation of international law. - **Challenges**: - Can be slow, expensive, and complex, with parties having to follow strict procedural rules. - States may be reluctant to submit to judicial settlement, particularly if they fear an unfavorable ruling. - Some states may not comply with the court\'s judgment, especially if they are dissatisfied with the outcome. - **Flexibility vs. Formality**: Diplomatic methods allow more flexibility in negotiations, while judicial methods are governed by strict legal procedures and rules. - **State Control vs. Rule of Law**: Diplomatic methods enable states to retain more control over the outcome, whereas judicial methods rely on a neutral third party to apply international law. - **Enforceability**: Judicial decisions are legally binding, but enforcement can be problematic, as international law lacks centralized enforcement mechanisms. In contrast, diplomatic settlements depend on the voluntary implementation by the parties. - Van den Herik also briefly discusses the potential for **hybrid dispute resolution mechanisms**, which combine elements of both diplomatic and judicial approaches. For instance, some international courts may use mediation or conciliation as part of the judicial process to facilitate negotiations and find mutually agreeable solutions. - The choice between diplomatic and judicial dispute settlement depends on the context, the nature of the dispute, and the willingness of the states involved. While diplomatic methods can offer flexibility and speed, judicial methods provide clarity, consistency, and a binding resolution based on the law. - Van den Herik emphasizes that both methods have their place in the international legal system, and often, a combination of both can be the most effective approach to resolving disputes. Week 9: The International Court of Justice 3. ICJ, The International Court of Justice. Handbook - Pages 21-27, 33-43, 49-70, and 77-78 (Various sections on ICJ's structure, jurisdiction, and proceedings). **Structure of the ICJ (Pages 21-27)** - The ICJ is the principal judicial organ of the United Nations, responsible for settling legal disputes between states and giving advisory opinions on legal questions referred by authorized UN organs and specialized agencies. - The Court is composed of 15 judges, elected for 9-year terms by the **UN General Assembly** and the **UN Security Council**. The judges must represent the principal legal systems of the world, ensuring a diverse body with expertise in international law. - The **President** and **Vice-President** of the Court are elected by the judges themselves. - The **Registry** acts as the Court\'s administrative and clerical body, assisting with the preparation of cases and the management of the Court's operations. **Jurisdiction of the ICJ (Pages 33-43)** - The ICJ has **contentious jurisdiction**, meaning it can hear cases between states on matters such as territorial disputes, human rights violations, and international treaties. For the ICJ to have jurisdiction, the states involved must consent to it, either through a treaty or special agreement. - The Court also has **advisory jurisdiction**, providing legal opinions at the request of UN organs or specialized agencies. - The **Optional Clause** under Article 36 of the ICJ Statute allows states to recognize the Court\'s compulsory jurisdiction, although they can make reservations to limit this. - States may also accept or reject the ICJ's jurisdiction through declarations, meaning that cases often hinge on whether both parties agree to submit to the Court\'s authority. **Proceedings of the ICJ (Pages 49-70)** - The process of initiating a case typically begins with a **written application** to the ICJ, stating the nature of the dispute and the relief sought. - The Court's proceedings include **written pleadings**, where each party submits its arguments in writing, followed by **oral hearings**, where parties present their cases before the judges. - The ICJ operates in a **public** setting, allowing transparency, though confidential information may sometimes be withheld. - The Court deliberates in private after hearings, with judgments made based on the majority view. Opinions of dissenting or concurring judges are published separately. **Enforcement and Final Rulings (Pages 77-78)** - While ICJ rulings are legally binding, enforcement can be a challenge. If a state refuses to comply with a judgment, the other party may seek action by the **UN Security Council** to enforce the decision, though political considerations may complicate this process. - The ICJ's role is mainly judicial; it does not have direct enforcement power, relying instead on state compliance and diplomatic pressure for execution of its judgments. **Summary** These sections provide insight into the **ICJ\'s structure** (composed of 15 judges elected by the UN General Assembly and Security Council), **jurisdiction** (which depends on state consent, either through treaties or declarations), and the **proceedings** (which include written submissions, oral hearings, and deliberations). While the ICJ\'s decisions are binding, enforcement of these rulings often depends on political cooperation and UN Security Council involvement. 4. A. Henriksen, International Law, 4th Edition (Oxford University Press, 2023) - Section 12.4 of Chapter 12 (Overview of ICJ jurisdiction and procedures). 1. **Contentious Jurisdiction**: - The ICJ resolves legal disputes between states that have agreed to its jurisdiction. For the Court to hear a case, the state parties involved must either: - **Agree to the Court\'s jurisdiction** by **special agreement**, where they explicitly submit the dispute to the ICJ. - Be parties to a treaty containing a clause that grants the ICJ jurisdiction over disputes arising from the interpretation or application of that treaty. - Accept the **compulsory jurisdiction** of the ICJ through declarations made under **Article 36(2)** of the **ICJ Statute** (the \"Optional Clause\"). This allows the Court to hear cases if both states involved have recognized the Court\'s jurisdiction over certain matters. 2. **Advisory Jurisdiction**: - The ICJ can give **advisory opinions** on legal questions referred to it by the **United Nations (UN)** or its specialized agencies (e.g., the **World Health Organization**). These opinions are non-binding but carry significant weight in shaping international law. - Advisory opinions are typically sought when UN organs or agencies need the Court's views on legal issues in order to guide their decisions or policies. - **Declaration of Acceptance**: A state may accept the Court\'s jurisdiction on a **general** or **case-by-case** basis. If one party to a dispute has accepted jurisdiction, but the other has not, the ICJ may not have the authority to hear the case unless both parties explicitly agree to it. - **Compromissory Clauses in Treaties**: Some international treaties have **compromissory clauses** that stipulate that disputes arising under the treaty must be submitted to the ICJ. These clauses provide automatic jurisdiction for the Court when the dispute relates to that particular treaty. - **Special Agreement**: States can also submit a dispute to the ICJ by **special agreement**, where both parties agree to bring the matter before the Court. This is common in territorial or maritime disputes. 1. **Filing of the Application**: - The party initiating the case submits an **application** to the ICJ, outlining the nature of the dispute and the legal claims it is making. This application typically includes a statement of facts, the legal grounds of the claim, and the remedy sought. 2. **Written and Oral Pleadings**: - Once the Court has determined it has jurisdiction, the next step is the exchange of **written pleadings**. Each party submits its arguments in writing, which are then made available to the other party. - The Court may schedule **oral hearings**, during which representatives of each party present their case and respond to questions posed by the judges. Oral hearings allow for clarification of legal points and provide the judges with an opportunity to directly engage with the parties. 3. **Deliberation and Judgment**: - After the hearings, the judges retire to deliberate on the case. This process involves reviewing the written submissions, oral arguments, and relevant legal materials, including treaties, customary international law, and prior ICJ judgments. - The **judgment** is usually delivered in a public sitting. The judgment is **binding** on the parties, and it outlines the Court's reasoning and the final decision. 4. **Enforcement of ICJ Judgments**: - While the ICJ's judgments are binding, enforcement is a significant issue. The Court has no **direct enforcement power** and relies on the **UN Security Council** to take measures to enforce compliance, though this is often influenced by political factors. - If a state does not comply with a judgment, the opposing party may ask the Security Council to enforce it under Chapter VII of the UN Charter. - A state may raise **preliminary objections** to the ICJ's jurisdiction before proceeding to the merits of the case. These objections may argue that the Court does not have jurisdiction or that the case is inadmissible. - The ICJ will address these objections before moving on to the substance of the dispute. In some cases, the Court may rule that it does not have jurisdiction, or that the case is not suitable for adjudication. - The ICJ consists of **15 judges** from different countries, who serve **9-year terms**. The judges are independent, and they represent a diverse range of legal traditions and expertise. - In cases where there is disagreement on the Court's judgment, **dissenting** or **concurring opinions** may be issued. These opinions explain the reasons for a judge's differing view on the case but do not affect the final judgment. - **Transparency and Public Access**: ICJ hearings are generally public, and the Court's decisions, including advisory opinions, are published. This transparency is crucial for the credibility of the Court and the development of international law. - **State Representation**: Only states can be parties in contentious cases. International organizations, individuals, or non-state actors cannot bring cases before the ICJ, though they may request advisory opinions on legal matters. 5. UN Charter (1945), Chapter XIV and ICJ Statute, Articles 2-4; 9; 34-38; 41, 43; 59-60; 65 (ICJ-related legal provisions and procedures). 1. **Article 92** -- *Establishment of the ICJ* - This article formally establishes the **International Court of Justice** as the principal judicial organ of the United Nations. - It provides that the ICJ shall function in accordance with its **Statute**. 2. **Article 93** -- *Membership in the ICJ* - All **Member States** of the UN are automatically parties to the ICJ Statute. Non-member states may also become parties to the Statute under specific conditions set by the General Assembly. 3. **Article 94** -- *Compliance with ICJ Decisions* - It requires all UN member states to comply with the decisions of the ICJ in cases to which they are parties. - If a state fails to comply with a judgment, the opposing party can bring the matter before the **Security Council**, which may recommend enforcement actions. 4. **Article 95** -- *Optional Clause* - States may recognize the ICJ's jurisdiction over specific types of cases by making a declaration under Article 36(2) of the ICJ Statute (referred to as the **Optional Clause**), allowing the ICJ to hear disputes without requiring special consent for each case. 5. **Article 96** -- *Advisory Opinions* - The ICJ may also issue **advisory opinions** at the request of the **UN General Assembly**, the **Security Council**, or other UN organs and specialized agencies authorized by the General Assembly. - **Article 2**: The **International Court of Justice** consists of **15 judges**, elected by the **General Assembly** and the **Security Council**. The judges represent the principal legal systems of the world and serve for **9-year terms**. - **Article 3**: Judges are elected by the UN General Assembly and the Security Council, ensuring the Court reflects the diversity of global legal traditions. - **Article 4**: The judges must be of high moral character, impartial, and have recognized expertise in international law. - Judges of the ICJ are independent and are not bound by instructions from any government or external authority. Their duty is to apply international law impartially and in accordance with their own convictions. - **Article 34**: The ICJ can only hear cases brought by states. Individuals, organizations, or private entities do not have standing to bring a case before the Court. - **Article 35**: The Court\'s jurisdiction is based on the **consent of states**, which may be given through a treaty, a special agreement, or by making a declaration under the Optional Clause (Article 36(2)). - **Article 36**: Establishes that the ICJ has **compulsory jurisdiction** for matters where states have agreed in advance to submit disputes to the Court. This is done through the **Optional Clause**, allowing a state to accept the Court\'s jurisdiction for certain categories of disputes. - **Article 37**: If a state accepts the ICJ\'s jurisdiction but other states involved in the dispute do not, the ICJ may have limited jurisdiction, and will need the consent of all parties. - **Article 38**: The Court shall apply **international conventions**, **customary international law**, **general principles of law**, and **judicial decisions** and **teachings** of highly qualified publicists as sources of law in its decisions. - The ICJ may order **provisional measures** to preserve the rights of the parties involved in a dispute while the Court is deciding the case. - These measures can be requested by one party if there is a risk that the rights in dispute might be irreparably harmed before the Court's judgment is issued. - States that are involved in a dispute may agree to use the ICJ\'s **conciliation** or **arbitration** procedures. This allows them to resolve issues without proceeding through the full adjudication process of the Court. - **Article 59**: ICJ decisions are **binding** only on the parties involved in a particular case. The judgment does not extend to other states, even if they are similarly situated. - **Article 60**: If a state fails to implement an ICJ decision, the other party can bring the matter before the UN Security Council for enforcement. This emphasizes the importance of compliance with international judicial decisions. - The ICJ has the power to provide **advisory opinions** to authorized UN organs or specialized agencies. These opinions are not binding but carry significant authority in shaping international law and practice. - **Jurisdiction**: The ICJ can hear cases only when states consent, either through treaties, special agreements, or declarations recognizing its jurisdiction (compulsory jurisdiction under the **Optional Clause**). - **Composition**: The Court consists of **15 judges**, elected for **9-year terms**, representing the world\'s principal legal systems. - **Advisory Opinions**: The ICJ can issue advisory opinions to UN organs and specialized agencies, though these are non-binding. - **Procedures**: Cases are initiated by written application, followed by written and oral pleadings, and a final judgment. The ICJ has the authority to issue **provisional measures** and may request enforcement of its judgments by the **UN Security Council**. - **Judicial Independence**: Judges of the ICJ are independent and must apply international law impartially. 6. List of Declarations recognizing the jurisdiction of the Court as compulsory (available here). Week 10: Introduction to Administrative Law No case law specified for this week. However, the readings are: - B. Kingsbury, N. Krisch and R. B. Stewart, \"The Emergence of Global Administrative Law\" (2005) *Law and Contemporary Problems* 68 (available here). - The concept of **Global Administrative Law (GAL)** refers to the growing body of rules, principles, and procedures that govern the actions of **international institutions**, **global regulatory bodies**, and **transnational agencies** that engage in governance, rule-making, and decision-making on issues that cross borders. - GAL deals with how these institutions regulate global issues (such as trade, human rights, environmental protection, etc.) and the accountability mechanisms they must follow. - GAL reflects the reality of global governance: the increasingly complex system of international institutions, organizations, and actors that make decisions with global implications, often outside the traditional scope of national legal systems. - With globalization, the number of **transnational** problems---such as climate change, international trade, health crises, and financial regulation---has increased. - **Traditional international law** (such as public international law) is often insufficient to regulate or provide oversight of the complex governance processes carried out by international and transnational institutions. - The authors argue that **GAL** has emerged as a response to this governance gap, addressing the need for legal norms that manage the powers and activities of global institutions, especially those in the **World Trade Organization (WTO)**, **UN**, and other multilateral institutions. - **Rulemaking**: GAL is concerned with the process by which international organizations and global institutions make binding rules and policies. This can be through **treaties**, **regulations**, **decisions**, or **standards** that have a significant impact on state sovereignty and the global order. - **Transparency**: A core principle of GAL is that global institutions should operate transparently in their decision-making processes. This includes making information accessible and allowing for public participation or scrutiny in rule-making. - **Accountability**: GAL emphasizes the importance of holding global regulatory bodies accountable for their decisions, ensuring that international institutions operate within their mandates, respect human rights, and adhere to due process. - **Due Process**: GAL requires that decisions made by international institutions adhere to certain standards of procedural fairness. This includes respecting the rights of individuals and states affected by global administrative decisions and ensuring that affected parties have access to review mechanisms. - The article discusses how the **institutional design** of global organizations shapes their administrative functions. In particular, the authors analyze how **global institutions** such as the **World Bank**, **WTO**, and **UN agencies** structure their decision-making processes, often through **multilateral negotiations**. - The effectiveness of GAL depends on **institutional cooperation**, with various international and regional organizations coordinating to create a coherent and integrated approach to global governance. - **Democratic Deficit**: One of the key criticisms of GAL is its **democratic deficit**. Many global institutions lack direct accountability to **electoral constituencies** or public opinion. While these institutions make decisions with wide-reaching effects on citizens, they are often not directly accountable to the people. - **Fragmentation**: Global governance is highly fragmented, with numerous institutions handling different issues in parallel. GAL seeks to provide coherence, but this fragmentation complicates efforts to create unified legal norms. - **Sovereignty**: States are increasingly concerned about **loss of sovereignty** as international organizations make decisions that affect domestic policy. Balancing the need for effective global governance with respect for state sovereignty is a central challenge of GAL. - **Legitimacy**: The legitimacy of global institutions is a key concern for GAL. The article argues that legitimacy comes from transparency, fairness, and **participatory processes**, but these elements are often lacking in practice. - GAL includes a variety of **procedural tools** designed to ensure better governance at the global level: - **Public participation**: Allowing affected parties (including NGOs, corporations, and individuals) to participate in decision-making processes, such as public consultations. - **Access to information**: Requiring international bodies to disclose information about their processes and decisions. - **Judicial Review and Dispute Resolution**: The establishment of **tribunals**, **arbitration mechanisms**, and **judicial review processes** to challenge administrative decisions made by global institutions, such as those in the **WTO** or **World Bank**. - **Accountability frameworks**: Setting up independent bodies to monitor the actions of global institutions, such as **ombudsman offices** or **audit committees**. - The article provides several examples of how GAL principles are applied in practice. Some key cases discussed include: - **WTO Dispute Settlement Mechanism**: How the WTO adjudicates disputes between states and ensures that global trade rules are followed. - **World Bank Inspection Panel**: The creation of independent panels to review the Bank's decisions and their impact on local communities, particularly in areas affected by development projects. - **UN Treaty Bodies**: How UN bodies, such as the **Human Rights Committee**, provide monitoring and enforcement of international human rights treaties. - The article concludes by reflecting on the **future of global administrative law**, noting the increasing necessity for **global legal norms** that regulate institutions responsible for managing global public goods and services. - The authors emphasize that GAL is an evolving field that needs to adapt to the challenges of **global governance** in the 21st century, balancing the growing role of international institutions with the need for accountability and legitimacy. - **Global Administrative Law (GAL)** has emerged to address the governance gap left by traditional international law in managing global issues through international organizations and transnational institutions. - **Key features of GAL** include **transparency**, **accountability**, and **due process**, aiming to ensure that global institutions are legally and ethically accountable for their actions. - GAL addresses challenges such as the **democratic deficit** and **sovereignty concerns** while promoting **participatory governance** at the global level. - The field draws on **judicial review**, **public participation**, and **access to information** as core mechanisms for ensuring that global institutions adhere to legal norms and respect human rights. - C. W. Backes and M. Eliantonio, \"Administrative Law,\" in J. Hage, A. Waltermann, and B. Akkermans (Eds.), *Introduction to Law* (2nd ed., Springer, 2017), pp. 201-208 (available here). - **Administrative law** is the body of law that governs the activities of administrative agencies of government. It involves the regulations and legal rules that apply to the executive branch of government, as well as the procedures used by government agencies to make decisions and enforce laws. - It regulates how **governmental agencies** interact with the public, the decisions they make, and the enforcement of those decisions. It serves as a check on administrative power, ensuring that governmental action is lawful, reasonable, and transparent. - Administrative law can be distinguished from **constitutional law** (which deals with the structure and function of government) and **criminal law** (which deals with violations of the criminal code). - Administrative authorities are governmental bodies that exercise executive powers. They are typically responsible for enforcing laws and regulations, issuing permits, granting licenses, and regulating industries. - Examples include local government agencies, national regulatory bodies (such as health and safety authorities), and international organizations that administer public services or regulations (such as the European Commission in the EU). - These authorities have **discretionary powers**, meaning they often make decisions based on judgment and policy rather than strict legal rules. This makes the study of administrative law crucial to understanding how governmental power is exercised. - **Legislation**: Laws passed by legislatures that give power to administrative agencies to enact regulations and make decisions. For example, in the EU, administrative law is shaped by both EU regulations and national laws. - **Administrative Regulations**: Rules made by administrative agencies that are intended to implement statutory laws. These regulations typically cover specific areas of administrative activity, such as environmental regulation or public health standards. - **Case Law**: Courts also play an essential role in administrative law by interpreting statutes and regulations, often providing judicial review of the actions taken by administrative bodies. - **Conventions and Guidelines**: In some systems, **soft law**---such as guidelines, codes of conduct, and international conventions---may influence administrative decision-making. - One of the core principles of administrative law is **judicial review**, which allows courts to review the actions of administrative authorities to ensure they are acting within the bounds of the law. This ensures that decisions are made based on **legality**, **reasonableness**, and **procedural fairness**. - Courts review administrative decisions based on the following grounds: - **Illegality**: Whether the authority has exceeded its legal powers. - **Irrationality or unreasonableness**: Whether the decision is so unreasonable that no reasonable authority would have made it. - **Procedural fairness**: Whether the decision-making process was fair and transparent. - Judicial review is an important check on administrative power and can provide remedies such as **quashing** (invalidating) decisions or ordering new procedures. - **Legality**: Administrative actions must be based on and authorized by law. - **Transparency**: Administrative bodies must operate in an open manner, making their procedures and decisions accessible to the public. Transparency ensures that decisions can be scrutinized and that the public is informed about government actions. - **Accountability**: Administrative authorities must be held accountable for their actions, particularly when they affect individual rights and interests. This accountability is often enforced through judicial review, transparency, and access to remedies. - **Proportionality**: This principle ensures that administrative decisions are not overly harsh or intrusive relative to the aim they seek to achieve. It requires that any interference with individual rights be justified and proportionate. - **Due Process**: Administrative law provides mechanisms for ensuring that decisions affecting individuals follow a fair process. This includes ensuring that individuals are given notice of decisions, the opportunity to be heard, and access to a fair review of decisions. - **Right to Information**: In many systems, administrative law includes provisions that grant individuals the right to access government records and decisions, which is essential for accountability and transparency. - **Remedies for Unlawful Administrative Action**: If an individual is aggrieved by an administrative decision, they may have access to various remedies, such as: - **Appeals**: The opportunity to challenge an administrative decision within the agency itself or through an external appeals process. - **Judicial review**: As discussed earlier, courts can review administrative decisions to ensure they comply with the law. - **Constitutional Law**: Administrative law is closely tied to **constitutional law**, as it deals with the exercise of executive power within the limits established by the constitution. - **Public Law**: Administrative law is a subfield of **public law**, which governs relationships between the state and individuals. It is distinct from **private law**, which regulates relationships between individuals. - **International Law**: In an international context, administrative law is influenced by international treaties, conventions, and decisions of international bodies. For example, EU administrative law affects member states' legal systems through directives and regulations. - The article notes that **global administrative law** (GAL) has become increasingly relevant as global governance mechanisms, such as **international organizations** and **transnational regulatory bodies**, expand. Examples include the **WTO**, **European Union**, and **United Nations**. - The **principles of administrative law**, such as **accountability** and **transparency**, are crucial in these global settings, where international organizations and agencies often have significant regulatory powers but lack direct democratic accountability. Week 11: Procedural Principles of Administrative Law No case law specified for this week. The readings include: - H. C. H. Hofmann, \"General Principles of EU Law and EU Administrative Law,\" in C. Barnard and S. Peers (eds.), *European Union Law* (Oxford University Press, 2014), pp. 29-30 (available here). - **General Principles of EU Law**: These principles are essential to ensuring that EU law operates fairly, transparently, and effectively. They are derived from **EU treaties**, **case law**, and **international law** and apply across all areas of EU law, including **EU administrative law**. - **EU Administrative Law**: This body of law governs the operation and decision-making processes of the **EU institutions**, particularly the **European Commission**, **European Parliament**, and the **European Council**, as well as agencies and bodies created under EU law. It ensures that administrative actions of the EU are lawful, proportionate, and just. - Legal certainty is vital to the legitimacy of the EU legal system. It ensures that laws are clear, predictable, and accessible to those who are subject to them. - **EU administrative law** relies on this principle to ensure that individuals and businesses know their rights and obligations when interacting with EU institutions. It mandates that the EU's actions should not come as a surprise to the public, and that legal rules must be clear and foreseeable. - This principle dictates that EU actions should not exceed what is necessary to achieve their objectives. In the context of **EU administrative law**, this principle ensures that the actions taken by the **EU institutions** are appropriate and do not cause unnecessary harm or impose excessive burdens on individuals or businesses. - The **EU Courts** (e.g., **Court of Justice of the European Union - CJEU**) consistently apply this principle when reviewing the legality of administrative decisions. - EU administrative law is governed by the principle of **non-discrimination** and **equal treatment**, which ensures that the EU institutions do not unjustly treat different groups or individuals unequally. - This principle is critical in ensuring that administrative decisions, whether in the context of **competition law**, **environmental law**, or **trade law**, are fair and just. It requires that administrative measures and sanctions be applied impartially and without arbitrary distinctions. - The **CJEU** plays a key role in overseeing the administrative actions of EU institutions by ensuring they comply with the general principles of EU law. - Individuals and entities can challenge decisions made by EU institutions or agencies on grounds such as **illegality**, **lack of proportionality**, or **failure to follow due process**. Judicial review ensures that administrative decisions are **lawful**, **reasonable**, and made within the **competence** of the institutions involved. - **Standing**: Under **Article 263 TFEU**, individuals, companies, and member states have the right to challenge EU legislative acts and decisions. This reinforces the accountability of EU institutions and promotes the transparency of administrative decision-making. - **EU institutions** must respect **fundamental rights** in all of their administrative actions, including in **decision-making** and **enforcement**. The **right to an effective remedy** and the **right to a fair trial** are particularly important in this regard, ensuring that individuals have access to **judicial protection** and can challenge decisions that affect their rights. - The **CJEU** plays an important role in safeguarding these rights by ensuring that administrative actions do not violate fundamental freedoms or the principle of proportionality. - **EU Administrative Law** is deeply influenced by the **general principles of EU law**, which include **legal certainty**, **proportionality**, **non-discrimination**, and **fundamental rights**. - These principles guide the **EU institutions** in making decisions, ensuring fairness and predictability. - **Judicial review** by the **CJEU** is an essential mechanism for ensuring the legality and fairness of administrative actions. - The application of **fundamental rights** ensures that EU administrative law respects individual rights and provides avenues for redress. - B. Bugaric, \"Openness and Transparency in Public Administration: Challenges for Public Law\" (2004) *Wisconsin International Law Journal*, 22, 483 (available here). **1. The Concept of Openness and Transparency in Public Administration** Bugaric begins by defining **openness** and **transparency** as essential components of **good governance**. These principles ensure that **public authorities** are **accountable** to the public and act in a way that is **clear** and **understandable**. Transparency allows citizens to know how decisions are made, what information was used, and how public resources are allocated. - **Openness** is understood as the **right to access public information** and the **right to participate** in governmental processes. - **Transparency** involves ensuring that **government activities**, especially decision-making processes, are conducted in a manner that is open and can be scrutinized by the public, including **access to documents** and **explanations of decisions**. **2. The Role of Openness and Transparency in Democracies** Bugaric argues that **openness** and **transparency** are fundamental to the functioning of a **democratic society**. They are critical for ensuring that **public authorities** remain **accountable** to the people they serve. Transparency helps to: - **Prevent corruption** by exposing governmental decisions and the use of public funds to scrutiny. - **Promote participation** by allowing citizens to engage with and understand governmental processes. - **Build public trust**, as citizens are more likely to trust a government that operates openly and makes information available. These principles are linked to **fundamental human rights**, such as **freedom of expression** and the **right to information**. **3. International and National Legal Frameworks for Openness** The article examines how **openness** and **transparency** have been integrated into **international** and **national legal systems**: - **International Law**: The **right to access public information** and the principle of **transparency** have been increasingly recognized in international law. For example, **Article 19 of the Universal Declaration of Human Rights** affirms the **right to seek, receive, and impart information**. - **European Union**: The **EU\'s Treaty on European Union (TEU)** and **Charter of Fundamental Rights** emphasize the importance of transparency in decision-making. The **EU's access to documents regulation** and the **Freedom of Information Directive** are key instruments aimed at enhancing transparency within EU institutions. - **National Legal Systems**: Many democratic countries have adopted **freedom of information (FOI) laws** that guarantee citizens\' right to access information held by public authorities. However, Bugaric points out that the level of **openness** varies significantly between jurisdictions, with some countries lagging behind in implementation. **4. Challenges to Openness and Transparency in Public Administration** While **openness** and **transparency** are recognized as important values, Bugaric highlights several challenges that hinder their full realization: **a) Confidentiality vs. Transparency** - A key tension arises between the need for **confidentiality** (in areas like national security, law enforcement, or diplomatic relations) and the demand for **transparency** in public administration. - Governments often justify withholding information on the grounds of **state security**, **privacy rights**, or **commercial confidentiality**, but Bugaric stresses that this must be balanced with the public's right to know and the principle of transparency. **b) Lack of Effective Legal Frameworks** - Even in jurisdictions with **freedom of information laws**, the **implementation** of these laws is often weak. **Bureaucratic inertia**, **lack of political will**, and **insufficient resources** can prevent the effective enforcement of transparency measures. **c) Institutional Resistance to Transparency** - Public authorities may be **reluctant** to disclose information because of fears of **exposing errors**, **mismanagement**, or **embarrassing disclosures**. Institutional resistance can arise when government officials feel that greater transparency could **undermine their authority** or **policy goals**. **d) Political Resistance** - **Politicians** and **government officials** may resist transparency measures, especially if those measures make it more difficult to **maintain control** over policy narratives or political outcomes. Bugaric highlights how **political interests** can influence decisions about **what information is made public**. **5. Balancing Openness with Efficiency** Bugaric also discusses the **challenge of balancing transparency with efficiency** in public administration. Open government processes often require significant **resources** and can be time-consuming. Public authorities may face difficulties in managing the large volumes of information that transparency demands, leading to delays in **decision-making** or **bureaucratic inefficiency**. - The author suggests that **innovative administrative practices**, such as **digitalization** and **e-government tools**, can improve the efficiency of public administration while maintaining openness. - There is also a call for **better organization** of public information systems to streamline the provision of information to the public. **6. Transparency in Practice: Case Studies and Examples** To illustrate the challenges and successes of transparency in practice, Bugaric refers to case studies from various countries, examining **national efforts** to improve **government transparency** and the **barriers** they face. - Some countries have made significant strides in improving openness through **transparency laws** and **active citizen engagement**. For example, the **Freedom of Information Act (FOIA)** in the United States and similar laws in the UK have established formal mechanisms for ensuring government accountability. - However, in many other jurisdictions, efforts to promote transparency have been met with **institutional resistance**, **lack of enforcement**, and **political opposition**. **7. Conclusion: The Future of Transparency in Public Administration** In the concluding section, Bugaric emphasizes that **openness and transparency** are vital for ensuring that **public administration** operates in a manner that is not only **legally compliant** but also **morally responsible** and **publicly accountable**. - He argues that while significant progress has been made, more needs to be done to enhance transparency globally. - Governments must commit to developing and enforcing effective **legal frameworks**, improve **institutional culture**, and ensure that transparency does not come at the cost of administrative efficiency. Bugaric concludes by suggesting that **international cooperation**, the use of **modern technology**, and the active involvement of **civil society** can help overcome the barriers to transparency and openness in **public administration**. **Summary of Key Points:** - **Openness and Transparency** are crucial principles for good governance and are embedded in both **international law** and **national legal systems**. - These principles ensure **accountability** and help **build public trust**, but they also face significant **challenges** such as institutional resistance, political pushback, and the tension with confidentiality needs. - Governments must adopt more effective **transparency laws**, improve **administrative efficiency**, and utilize **technology** to make information accessible without undermining efficiency. - **Political will** and **civil society engagement** are key to overcoming barriers and ensuring that **public administration** operates in an **open** and **accountable** manner. Week 12: Substantive Principles of Administrative Law No case law specified for this week. The readings are: - C. W. Backes and M. Eliantonio, \"Administrative Law,\" in J. Hage, A. Waltermann, and B. Akkermans (Eds.), *Introduction to Law* (2nd ed., Springer, 2017), pp. 213-218 (available here). - **Administrative law** is the branch of law that governs the activities of **administrative agencies** and **public authorities** in their exercise of executive power. It includes the regulations, legal principles, and procedural norms that control the way government entities interact with individuals and businesses. - Unlike **constitutional law** (which focuses on the structure of government) or **criminal law** (which addresses violations of public norms), administrative law is concerned with the day-to-day functioning of governmental agencies, their decision-making processes, and the rules they apply. - **Regulation of Power**: It defines and limits the powers of public authorities, ensuring that governmental actions are legally justified and not arbitrary. Public bodies must act within the scope of their legal authority. - **Ensuring Accountability**: It holds administrative agencies accountable by setting out clear rules and procedures that govern their decision-making. These rules often provide avenues for individuals to challenge decisions made by administrative bodies. - **Providing Remedies**: Administrative law offers remedies to individuals affected by governmental decisions. These remedies might include judicial review, compensation, or the overturning of unlawful administrative actions. - **Statutes and Legislation**: National laws passed by the legislature grant powers to administrative bodies and establish the framework within which they operate. These laws often specify the procedures and grounds on which administrative decisions can be made. - **Regulations**: These are rules created by administrative agencies themselves, often empowered by primary legislation, to implement specific laws. Regulations fill in the details that make general laws operational. - **Case Law**: Courts play an important role in administrative law by interpreting statutes, regulations, and administrative practices. Through judicial review, courts ensure that administrative agencies adhere to the law and respect fundamental rights. - **Conventions and Administrative Procedures**: In addition to formal laws and regulations, conventions or informal practices also guide administrative decision-making. These may be written guidelines, codes of conduct, or precedents established by administrative bodies. - **Legality**: Administrative authorities must act in accordance with the law. This is often referred to as the **principle of legality**---an administrative body can only exercise the powers explicitly granted to it by law. - **Transparency**: Administrative bodies must act openly and make their processes accessible to the public. Transparency allows for public scrutiny, enabling individuals to understand the rationale behind administrative decisions and to hold authorities accountable. - **Proportionality**: Administrative actions must be proportionate to the aims they seek to achieve. This principle ensures that administrative measures do not exceed what is necessary to achieve a legitimate goal. - **Accountability**: Administrative authorities are accountable for their decisions. This accountability is typically ensured through mechanisms like **judicial review**, where courts assess whether administrative decisions are lawful, reasonable, and procedurally correct. - **Fairness and Due Process**: Administrative law ensures that individuals affected by administrative decisions have access to fair procedures. This includes the right to be informed of decisions, to present evidence, and to challenge decisions through appeals or judicial review. - **Grounds for Judicial Review**: Courts typically review administrative decisions based on three primary grounds: - **Illegality**: Whether the administrative body acted beyond its legal powers. - **Irrationality or Unreasonableness**: Whether the decision made by the administrative body is unreasonable or disproportionate. - **Procedural Fairness**: Whether the decision-making process followed fair procedures, including providing the affected parties with an opportunity to be heard. - **Access to Courts**: In many jurisdictions, individuals who are adversely affected by an administrative decision have the right to access the courts to seek a remedy, such as the overturning of the decision or an order for a fairer process. - Tribunals typically focus on the application of administrative rules and regulations and offer an efficient means of resolving disputes without the need for formal court procedures. In many cases, these bodies operate in a more accessible and flexible manner compared to the formal judicial system. - **Balancing Efficiency and Oversight**: One of the challenges of administrative law is balancing the **efficiency** of government agencies in implementing policies with the need for proper **oversight** to prevent abuses and ensure that decisions are made in the public interest. - P. Craig, *EU Administrative Law* (3rd ed., Oxford University Press, 2018), pp. 694-721 (Chapter 12: \"Precautionary Principle\"). - The principle reflects the need for proactive measures to prevent harm, even when full scientific certainty about the risk is not yet available. - The precautionary principle is especially important in the EU regulatory framework, where public health, safety, and the environment are protected by law, and decision-makers are often faced with uncertainties about the potential harms of new technologies or substances. - Article 191(2) TFEU: The EU\'s environmental policy is grounded in the precautionary principle, which is outlined here as a guide for decision-making in situations involving environmental risks. - Article 168(1) TFEU: This article ensures a high level of human health protection, which has been interpreted to encompass the precautionary principle in public health matters. - The EU Regulation on Chemicals (REACH), and other sector-specific regulations (such as in the food safety and biotechnology areas), often provide specific frameworks for applying the precautionary principle. - The precautionary principle has been further developed in EU case law, particularly through the Court of Justice of the European Union (CJEU). The Court has clarified that the principle allows for regulatory action when there is a reasonable suspicion of harm, even in the absence of definitive scientific proof. - Scientific Uncertainty: There must be scientific uncertainty or lack of full knowledge about the risks involved. The absence of scientific consensus does not automatically justify action, but it opens the door for precautionary measures if there is potential for harm. - Reasonable Grounds for Concern: A risk must be identified, even if not fully quantified. If there is a reasonable suspicion that a substance or action could cause harm to health or the environment, precautionary measures can be adopted. - Proportionality: Measures taken under the precautionary principle must be proportional to the potential risks. This means that the action should not go beyond what is necessary to protect public health or the environment. - Precautionary Action: Even if the scientific data is inconclusive, if the potential harm is significant, precautionary action may be justified. This could include, for instance, banning a substance or restricting its use pending further research. - In environmental protection, the precautionary principle is particularly relevant when dealing with potential environmental risks posed by chemicals, pesticides, and genetically modified organisms (GMOs). - The EU's environmental policies often require that measures be taken to prevent environmental damage, even when the scientific evidence does not fully demonstrate the extent of the risk. - The EU Food Safety Authority (EFSA) and other regulatory bodies are tasked with applying the precautionary principle in cases where there are concerns about food safety, such as the introduction of new additives, foodstuffs, or genetically modified organisms. - Public health measures based on the precautionary principle might include imposing bans on substances suspected of causing harm, requiring further testing before approval, or mandating clear labelling. - The precautionary principle has been a cornerstone of the EU's regulatory framework for GMOs. Despite the lack of definitive proof of harm from GMOs, precautionary measures such as moratoriums or additional safety testing have been applied to limit or prevent their approval for use in agriculture or food production. - Under the REACH regulation (Registration, Evaluation, Authorisation, and Restriction of Chemicals), the EU applies the precautionary principle when evaluating the risks of chemicals. If there is a concern that a chemical might harm human health or the environment, but the evidence is not conclusive, the principle allows for risk management measures to be taken. - Over-Caution: Critics argue that the principle can lead to excessive regulation and an overly cautious approach, which could stifle innovation or prevent the use of beneficial technologies. This is particularly relevant in fields like biotechnology, pharmaceuticals, and agricultural products. - Regulatory Uncertainty: Some argue that the vague and flexible nature of the principle leads to regulatory uncertainty, which can be difficult for businesses and individuals to navigate. - Inconsistency: The application of the precautionary principle can be inconsistent, depending on the area of regulation. The lack of a clear, uniform framework across different sectors may lead to a perception of arbitrariness in decision-making. - Cost of Regulation: The cost of implementing precautionary measures can be significant, especially when the potential risks are uncertain or unclear. - Proportionality: The CJEU has stressed the importance of the proportionality principle, ensuring that precautionary actions do not unnecessarily restrict free trade or innovation. The Court has clarified that measures must be necessary and not based on purely hypothetical risks. - Transparency and Evidence: The Court has emphasized that precautionary measures must be grounded in evidence and transparency. Decisions taken under the precautionary principle must be based on a solid scientific foundation, even if the evidence is not conclusive.