Academic journal article Missouri Law Review

Dealing with Trans-Territorial Executive Rule-Making

Academic journal article Missouri Law Review

Dealing with Trans-Territorial Executive Rule-Making

Article excerpt

ABSTRACT

This Article discusses the reality of executive rule-making procedures with trans-territorial effect, with other words, the creation of non-legislative rules which have an effect outside the territorial limits of the jurisdiction of origin. It maps the phenomenon, discusses some of its central challenges for the realization of general principles of law and considers possible legal approaches addressing these. One of the most important issues thereby is to find workable solutions in the context of the pluralism of sources of law--national, supranational and international.

I. INTRODUCTION

Executive rule-making is characterized by the creation of acts which, albeit often legislative in character, do not follow a formal parliamentary legislative process. Executive rule-making powers are generally powers delegated to administrative bodies and institutions or, for example in the area of standard setting, hybrid public-private actors. In many instances, rule-making powers are also delegated to supranational or international bodies. This is a phenomenon not only in the quasi-federal system of the European Union but, as further discussed in this article, a reality in many areas such as international environmental law setting rules on fisheries, forestry and air pollution as well as in mattes such as food safety with the codex alimentarius or banking regulation with standards being set by the Basel committee. Such delegation, in turn, often in practice leads to an almost mandatory application of the content of foreign rules in the domestic legal system--both in the form of rules established on the international or supranational level, as well as in the form of mutual recognition and enforcement of rules established in foreign jurisdictions. Examples for such obligations arise from the WTO's TBT and SPS agreements. An important phenomenon of modern public law is thereby the permeation of the link between rule-making and the territorial reach of the law of a jurisdiction. (1) This Article therefore discusses various aspects and consequences of the phenomenon of de-territorialization of executive rulemaking.

At issue is whether there are any standards for trans-territorial rulemaking which could ensure compliance with key values of public law such as the rule of law, respect for fundamental rights, participatory forms of governing, and accountability of actors. In recent years, much thoughtful scholarship has been developed on "global administrative law". This scholarship seeks to understand the regulatory framework of international administrative cooperation as well as international organizations active in matters traditionally regarded as matters belonging to administrative law. (2) But these discussions also pre-date the coining of the phrase "global administrative law" in the academic literature. Many of the more traditional concepts addressing aspects of public law that transcend the territorial reach of public law have already been questioned in the context of the discussion of transnational law. (3) "Transnational law" is a term which is slightly misleading when it comes to public law, (4) because the link between the law and its applicability is not the "nation" given that many states are composed by multiple nations but the territorial reach of a jurisdiction. For this reason, focusing on executive rulemaking outside of states, this Article uses the more precise but less common term "trans-territorial." In any case, "transnational" and "trans-territorial" both look specifically at those matters which "trans"-cend the traditional dichotomy of distinguishing between national versus international law and a clear delimitation of these spheres. The reality what one might describe as post-Westphalian trans-territorial public law is that it transcends territorial limits of jurisdictions. The jurisdictional reach appears increasingly more akin to a continuum in which the purely national and the purely international--i. …

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