Where law is lawful, decision-makers must comply with the law. If administrative justice is to be achieved in the global space, administrative decision-makers must be committed to ‘legality’, meaning that their decisions are consistent with the existing body of law. A comparative analysis of prevailing functional understandings of administrative justice reveals that it contains a requirement that administrative decisions be made ‘according to law’. Global administrative justice requires cohesiveness, and cohesiveness implies stability, or an anchor to which standards can be tethered. If a requirement for decisions to be made according to law is incorporated into a model of global administrative justice, that anchor becomes the legal framework under which administrative decisions are made. The existing law in the global space, which is defined as international law, domestic law and institutional law, intersects with the United Nations to create legal obligations for its administrative decision-making.
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Christina Voigt and Zen Makuch
Across the globe, environmental protection is in need of strong governance arrangements: arrangements that comprise effective environmental laws and regulations, a functioning administration and an independent judiciary. Courts, often perceived as the third pillar of power alongside the legislative and executive functions of the State, have an important role to play in defending, upholding and (for judicial activists) creating an environmental rule of law. At the same time, many courts and their judges face significant challenges in doing so effectively. This volume looks at the possibilities and limitations that courts and judges encounter in protecting the environment. Norms that seek to protect the environment, and the common values it represents, are widely dispersed. We find them in thousands of domestic laws and regulations; we find them in international and regional treaties and unwritten customary laws. Sometimes we do not find them at all.
When administrative decision-making is removed from the domestic context and placed somewhere where no framework for administrative law exists, how can we assure that our rights are protected and the rule of law is respected? Administrative law does not exist doctrinally outside of the domestic context, yet administrative decision-making occurs in the ‘global space’ and within the United Nations (UN) in particular. Administrative decisions in the global space are those decisions that are made by international institutions in the exercise of formal power, which create, amend or affect the rights, interests or obligations of individuals or groups, as opposed to States. When the ability to ensure that decisions are lawful, rational, fair, transparent and allow for participation is denied, an accountability deficit emerges. It is suggested that accountability of administrative decision-making within the UN could be conceptualised through the public law concept of administrative justice.
Eljalill Tauschinsky and Wolfgang Weiβ
Lorenza Violini and Antonia Baraggia
Christophe Geiger and Elena Izyumenko
The present chapter provides the first comprehensive overview of the European Court of Human Rights’ case law on IP for the period since the Court’s inception until today. It results from an analysis of more than 90 such cases, many of which have never been discussed before in the literature. This comprehensive overview shows the emergence in Europe of a human rights framework for the intellectual property system, which – in combination with the increasing use of fundamental rights by national courts to solve private-party disputes – is gaining in coherence and relevance when framing the conception and use of IP law.