The Rule of (Administrative) Law in International Law

Dyzenhaus, David, Law and Contemporary Problems

I

INTRODUCTION

In common-law legal orders, public power is supposed to be exercised in accordance with the rule of law. Administrative law, the law that governs the exercise of power by public officials, is the body of rules and principles developed by judges to ensure that when public officials act, they act in accordance with the rule of law. Severe tensions can arise within the common-law understanding of administrative law when a legislature enacts a law that meets the legal order's formal criteria for validity, yet purports to exempt officials from the requirements of the rule of law. If those officials' decisions are challenged before a court, should the court declare them invalid simply on the basis that they fail to accord with the rule of law? Judges who adopt positivistic theories of law will generally answer "no" to this question, while judges of a more natural law bent will tend to answer "yes." The former will determine a law's validity based only on the criteria explicitly set out in the positive law of their order, while the latter will think that there is more to the question than positive law--namely, the transcendent moral values of the rule of law.

Although judges of a natural-law bent will likely appreciate the tensions better than positivistically inclined judges, a more sophisticated response to the problem is available than one that simply reduces it to a question of whether a law offensive to the rule of law is or is not a law. That response presupposes a natural-law understanding of the rule of law, one which holds that the value content of the rule of law transcends what any formal source of law declares the law to be. However, such a response does not require that a law is always invalid when it fails to comply with the values of the rule of law. Rather, all it requires is that the tensions created by such a law are understood as tensions internal to legal order, tensions which must be resolved in order for that legal order to sustain its claim to be such--an order constituted by law. Thus, judges are not necessarily always able or even often best suited to resolve such tensions.

An exploration of this response begins with an account of how judges in common-law legal orders have found the norms of international law, in particular international human rights law, helpful in elaborating their understanding of their role in upholding the rule of law. Indeed, international human rights law has helped greatly to clarify the idea of the rule of law on which the judges rely, both in terms of the interactions among its components and the assumptions that hold it together. Judges have found international law particularly useful in ensuring that the rule of law is respected in an area in which traditionally positivistic judges have deemed the rule of law inapplicable--namely, in the exercise of public power, which is based, not on law, but on the prerogative of the executive to deal with immigration and national security as it sees fit. Natural-law judges have been amenable to the influence of international law because their understanding of law and the rule of law rejects positivistic assumptions that lead to the marginalization of international law, even to its very claim to be law. However, international legal bodies have proven capable of introducing the same sorts of tensions--tensions often created in the areas of national security and immigration.

One might say that these natural law judges, working within the common law tradition, have paid international law the compliment of not only recognizing its claim to be law, but also of considering it to be constitutive of their understanding of the rule of law or legality, so that public officials must comply with international law if they are to abide by the rule of law. Thus, it is incumbent on the international bodies charged with making decisions affecting the interests of individuals subject to their legal regimes to repay the compliment. International bodies should put in place mechanisms that will help to ensure that their officials comply with the package of rule-of-law controls. As a corollary, domestic courts should consider decisions of international bodies suspect, though not necessarily invalid, to the extent that these decisions do not comply with such controls.

This article will thus move from the reception of international legal norms (Part II.A.) to the administrative law of common-law countries (Part II.B.1.), and then to the reception of administrative law norms into international law (Part II.B.2.). (1) The theme common to these topics is that the rule of law is not about maintaining a formal separation of powers, but about all institutions of legal order, whether international or domestic, serving the values articulated by the rule of law. (2) The article will close by drawing out theoretical implications of this theme for debates between positivists and natural-law jurists regarding the nature of international law.

II

THE RULE OF LAW, INTERNATIONAL LAW, AND JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS IN FOREIGN AFFAIRS AND SECURITY MATTERS

A. The Common-Law Courts and the Rule of Law

Common-law judges presume that individuals whose interests are affected by the decisions of administrative public officials have certain rights. The package of rights involved depends on many factors, including the way in which doctrine has developed in the particular legal order, the nature of the interest affected, the impact of the decision on the interest, and, assuming the official is acting on the basis of authority delegated by statute, on what the statute actually prescribes. In the abstract, the package at its fullest may include the right to a hearing before a decision is made, the right to have the decision made in an unbiased and impartial fashion, the right to know the basis of the decision so that it can be contested, the right to reasons for the official's decision, and the right to a decision that is reasonably justified by all relevant legal and factual considerations. Except for the last, all these rights are usually grouped into the category of "procedural rights," which pertain to the way in which a decision is made. By contrast, the last-mentioned gives the individual the right to a substantively sound decision. To make these rights effective, one more right must be added to the package--the right to have the validity of the decision tested in a court of law.

When common-law judges uphold official decisions, they are also certifying that the officials acted in accordance with the rule of law. Official compliance with the package of rights thus marks the difference between a rule-of-law society and one in which individuals are subject to the arbitrary rule of men.

In the common law of judicial review, something roughly like the package of rights just described is thought to supply the content of the rule-of-law regime with which judges presume all officials must comply. The qualification "something roughly like" is necessary to indicate that the content of the package is controversial and that the rule of law is an essentially contested concept. (3) However, the terms of that contest can be unpacked in order to illuminate the subject of the rule of (administrative) law in international law. The claim here is that the package fulfills the central aspiration of the rule of law--the subjection of public power to controls that ensure it is exercised in the interests of those affected by it.

Further, in order to have that package, one has to adopt a non-positivist understanding of law and legal order or legality, which, for now, can be described as embracing just three points: First, while the prescriptions of the statute under whose authority an official is acting are most relevant to determining the content of the package, the content is not contingent on the statute's prescriptions. As a well-known judgment put it, "the justice of the common law will supply the omission of the legislature." (4) Put differently, the basis of the rule of law is not in the positive law provided by the legislature, but in what can be thought of as the unwritten or common-law constitution. Second, the common-law constitution applies even when the official's claimed authority is not derived from statute but from the prerogative powers of government--the residuary power of the sovereign, which, as Dicey claimed, is the "residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown." (5) These two points suggest--against the grain of positivist tradition-that the operation of the values of the rule of law does not depend on their prior expression in positive enactments of the legislature. In addition, a third point undermines a more sophisticated kind of legal positivism, one that seeks to recognize judgments as a source of positive law: that judges have developed a common law of judicial review over time is considered the positive law basis for their understanding of the rule of law. The idea is that proponents of the common-law constitution consider judgments to be evidence of the requirements of the rule of law and not the source of those requirements.

The most controversial part of the package is its substantive component, the right to a decision that is reasonably justified by all relevant legal and factual considerations. When judges review on the basis of procedural components, they can claim that because procedure pertains to how a decision is made, not which decision was made, they are not second-guessing the legislature's decision to delegate authority over substance to the officials charged with implementing the statute. This distinction between process and substance is hard to sustain, not only because procedural rights might protect the same values as substantive rights, but also because the connection between procedural and substantive components is very tight. Procedural and substantive rights have what one can think of as a symbiotic relationship. For the moment, however, the focus will be not on the fragility of this distinction, but on the reasons for making it--a judicial concern about the legitimacy of the common law of judicial review.

This concern stems from a formal doctrine about the separation of powers, which holds that Parliament has a monopoly on making law--on the production of legal norms. The rest of the powers necessary to sustain the rule of law are divided between the executive, with its monopoly on implementing the law, and the judiciary, with its monopoly on interpreting the law. When the executive acts, it must act within the limits of its legal authority, that is, within the authority provided by the particular enabling statute. Judges fulfill their role by policing those limits. This doctrine of judicial review, the doctrine of ultra vires, thus holds that the limits on executive discretion in implementing a statutory mandate are only the limits prescribed by statute or by some other supra-authoritative source, for example, a statute prescribing general rules for all administrative bodies or a written constitution.

In democratic theory, Parliament's alleged monopoly on legislative power is rooted in the claim that only the people's representatives have the authority to make law. But justification for the formal doctrine of the separation of powers need not be rooted in democratic theory. It can, for example, reside in a Hobbesian argument about the need to concentrate legislative power in one body. However, for present purposes, it will be assumed that the judicial concern about the legitimacy of intruding upon executive decisionmaking is a democratic one.

Now, the history of the common law of judicial review is a history of judges imposing controls on public officials that are not prescribed by any statute. Not all judges have been comfortable with this history, and so there has been, and continues to be, significant judicial resistance to imposing controls beyond those explicitly contemplated by statute or written constitution. To the extent there has been comfort among such judges, it has rested on the distinction between process and substance: if judges stick to the process side of the distinction, they are not intruding into substance. It is also often claimed that there is a kind of tacit legislative consent to judicial imposition of procedural controls discernable from the legislature's ability, if it chose, either to preemptively exclude such controls or to override them in the wake of a judgment. However, the doctrine of tacit consent cannot be invoked with respect to judicial intrusion into substance, since the very legislative delegation of authority to the executive is taken as an altogether explicit signal to the judiciary of legislative intent.

The formal doctrine of the separation of powers, the doctrine that leads to this judicial discomfort with review, is unhelpful. On its best understanding, the separation of powers is not so much about formal divisions between the competences of the legislative, the judicial, and the executive. Rather, it concerns their roles in ensuring that public power is exercised in accordance with the substantive and procedural values of the rule of law.

B. The Rule of Law: Challenges and Opportunities

1. Domestic Administrative Decisions

The idea of unfettered discretion, that officials are a "law unto themselves" within the limits clearly stated in the statute, has important affinities with the idea of the prerogative as a legally uncontrolled space. There seems to be a family of such ideas in the theory and practice of law in common-law legal orders--ideas that are connected to the Hobbesian idea that the international domain is a lawless state of nature. Foreign affairs or participation by states in that domain is considered to be a matter of uncontrolled prerogative, since states within that domain are seen as analogous to individuals within the state of nature. Similarly, the thought of national security as a matter for the prerogative is connected to the idea that those who threaten the very existence of the state have put themselves into a state of nature with regard to that sovereign. Control over immigration or aliens is thus control over those who wish to enter a civil society from either a state of nature or from another civil society whose relationship with the first is itself in a state of nature. While both immigration and national security are now generally controlled by statute, their history as prerogative powers often looms large in a judge's approach to statutory interpretation, especially when officials are given broad discretionary powers to make security or immigration determinations.

Given this concern about judicial intrusion into substance, it is hardly surprising that many common-law judges have adopted the stance known as "dualism" with respect to the norms of international law other than those of customary international law, which are supposed to have domestic force whether or not the legislature has explicitly incorporated them. Dualists hold that the only legitimate source of legal norms within their legal orders is the legislature. They thus argue that with the exception of customary international law, international legal norms may have force domestically only when the legislature has explicitly incorporated them by statute. It follows that executive ratification of a treaty is a signal to the outside world, but not to the subjects of the domestic legal order. To enforce such norms would be to permit the executive to usurp legislative power, though the instrument of usurpation would not be the executive itself, but judges, who would in substance have incorporated the norms through the back door. (6)

The tale that follows illustrates how common-law judges responsible for bringing international norms into the embrace of the common law of their four jurisdictions--New Zealand, Australia, Canada, and the United Kingdom-understood what they were doing, not as incorporating through the back door, but as updating the values of the rule of law, or "working the law pure." (7) The tale is remarkable in its display of what one could call an international dialogue between judges about the role of international norms in domestic law, particularly in informing their understanding of the controls exercised on public officials by the rule of law.

In the first three countries, the norm that sparked the process was Article 3 of the United Nations Convention on the Rights of the Child (CRC), (8) which all three had ratified but not incorporated. Article 3 provides that, "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." In all three cases, the issue was whether an immigration official's decision to deport a parent with children in the host country had to take into account the interests of the children as a "primary consideration." The legal vehicles for Article 3 were the statutory regimes of the three countries, which required, in various ways, that decisions about whether to deport an individual had to be taken in the light of "humanitarian" or "compassionate" considerations.

The first decision by New Zealand's Court of Appeal, Tavita v. Minister of Immigration, (9) did not formally decide anything because the case was adjourned so that the Minister could reconsider. However, in rejecting the argument put forth by the Crown, which conceded that the Minister had not considered the CRC but contended that the CRC was of no effect in the domestic legal system, the Court stated an important principle, describing this argument as "unattractive, apparently implying that New Zealand's adherence to the international instruments has been at least partly window-dressing." (10) In the Court's view, when an official is making this kind of decision, "the basic rights of the family and the child are the starting point." (11)

This idea of a presumption against hypocrisy was then relied on by the majority of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v. Teoh, (12) which reasoned that the CRC created a legitimate expectation in Teoh and his children that any decision relating to residency or deportation would be made in accordance with the principle in Article 3(1), namely, that the best interests of the children would be a primary consideration. (13) This expectation could be validly defeated only by informing the Teohs that the Convention principle would not be applied and by giving them the opportunity to persuade the decisionmaker to change her mind. (14)

Finally, in Baker v. Canada (Minister of Citizenship and Immigration), (15) Canada's Supreme Court held that although a decision about whether to stay a deportation order on "humanitarian and compassionate grounds" was one the legislature had delegated to the expert discretion of immigration officials, the decision still had to be reasonable, that is, justified by relevant legal considerations. (16) In other words, discretion was no longer viewed as a legal void or state of nature, but as replete with legal values. The Court held that among the legal factors informing its understanding of the content of reasonableness was Article 3 of the CRC. (17) Since the officials had not given sufficient weight to the interests of Baker's children, their decision was thus invalid because it was unreasonable. (18) En route to this holding, the Court also articulated a general duty at common law to give reasons for decisions that affect important interests--the first time the highest court in any one of these four jurisdictions discussed in this section had claimed that such a duty exists. (19)

The duty to give reasons, articulated in the procedural part of the judgment, not only seems premised on the idea of the inherent dignity of the individual, but was considered necessary, in large part, to make possible the kind of reasonableness review described in the substantive part of the judgment. (20) Moreover, while the content given to reasonableness--the idea that the children's interests had to be given special weight--was drawn from sources besides Article 3, namely, the immigration statute and the Immigration Department's own regulations and guidelines, it seems clear that Article 3 was the main and perhaps the only--source of inspiration for the idea. (21)

This is only fitting. Expressed in various ways in the immigration regimes of these countries, the idea that deportable non-citizens are not subject to the completely unfettered discretion of the immigration department, but must be treated in a way that is …

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Publication information: Article title: The Rule of (Administrative) Law in International Law. Contributors: Dyzenhaus, David - Author. Journal title: Law and Contemporary Problems. Volume: 68. Issue: 3-4 Publication date: Summer-Autumn 2005. Page number: 127+. © 2009 Duke University, School of Law. COPYRIGHT 2005 Gale Group.

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