Administrative self-regulation (“Innenrecht”) and Global Administrative Law
Auto-regulação administrativa (“direito interno”) e Direito Administrativo Global
Resumo: Uma nova categoria de “direito” está a desenvolver-se: o Direito Administrativo Global (GAL). O objetivo desta nova categoria passa por captar e incorporar o discurso sobre a governança global e trazê-lo para o campo normativo. Uma questão controversa que tem sido debatida consiste em saber se todos esses novos fenómenos categorizados como governança global podem ser considerados verdadeiramente como direito. O presente artigo recorre ao conceito de direito desenvolvido por Benedict Kingsbury e, bem assim, ao conceito alemão de direito administrativo para procurar lançar alguma luz sobre a questão da validade e peso. Kingsbury distingue entre estas duas categorias. Em contrapartida, o Direito Administrativo alemão distingue entre direito interno (apenas “direito” em casos excepcionais) e direito externo (direito em sentido próprio). Uma comparação entre o conceito de direito de Kingsbury para o GAL e a abordagem alemã pode, portanto, melhorar a nossa compreensão do direito no espaço global.
Palavras chave: Direito Administrativo Global, conceito de direito, directrizes administrativas, direito interno, gestão de resíduos.
A new category of “law” is developing, Global Administrative Law (GAL). The goal of this new strand of literature is to capture and embed the discourse
about global governance and bring it into the legal realm. One controversially debated question is whether all of these new phenomena categorised as global governance can be called proper law. This paper uses the concept of law developed by Benedict Kingsbury as well as the German administrative law concept to
shed some light on the question of validity and weight. Kingsbury distinguishes between these two categories. In contrast, German administrative law distinguishes between internal law (only “law” in exceptional cases but weight attached) and external law (law in the proper sense). A comparison between Kingsbury's concept of law for GAL and the German approach can therefore enhance our understanding of law in the global space.
Keywords: Global Administrative Law, concept of law, Verwaltungsvorschriften, Innenrecht, waste management
The separation of power doctrine, the three branches of government, legislative, judicative and administrative branch, well-known in political theory and
reality in nation states today, has been nearly absent at the international level for almost one century. After Lorenz von Stein’s early introduction of
international administrative law in the second half of the 19th century,2 the global
administration has been more or less neglected. International administrative law has lived and operated in the shadow and has not played a significant role
in international law scholarship. In the beginning of the 20th century, the administration was reintroduced by the Global Administrative Law
(GAL) project, stating that “emerging patterns of global governance are being shaped by a little-noticed but important body of global administrative
law”.3 Terms were coined like the powerful “administrative hinterland” of the WTO. 4 All this brought global public administration again back to scholarly attention.
That we can detect a phenomenon called global governance is not really disputed any longer. However, the question is whether this global administration is
governed by law. Kingsbury/Krisch and Stewart define GAL as the law that “covers all the rules and procedures that help ensure the accountability of global
administration, and it focuses in particular on administrative structures, on transparency, on participatory elements in the administrative structures, on
principles of reasoned decisionmaking, and on mechanism of review”5. The key theme, in their understanding
of GAL, is securing accountability. This very restrictive and controlling perspective of GAL might be due to a narrow understanding of administrative law
in general. It resembles a perspective also common in national administrative law scholarship. Here, national administrative law is created as a sphere of
law concerned with the relationship between the citizens versus the state. This picture might have held true during a time where administration was merely
in charge of law and order and did not perform all the governance tasks we usually associate with administrative tasks, at least in modern welfare states,
today, like social benefits, planning tasks for infrastructure and so forth.6 Nowadays, it is less them vs.
us. The administration is much more interlinked with and part of the society today.
This new role of the administration in the 20th century has created a necessity of more and more administrative action. Some of this administrative action
appears in the form of quasi-legislation, administrative provisions or guidelines. Even so an overall comparison of public law in all jurisdiction is still
missing; some kind of quasi-legislation is known and used in many jurisdictions.7 Generally, this kind of
administrative action is not binding and only regarded as “Innenrecht” (internal or organisational law), instead, other kinds of administrative action are
binding upon third parties and are regarded as “Außenrecht” (external law). The focus of GAL on the “accountability deficit” highlights the external law
part, but neglects the internal or organisational law part. However, the concept of law for GAL as presented by Kingsbury hints towards internal law
through highlighting that for GAL not only validity is important but also weight. The paper will show that administrative behaviour in nation states,
particular in welfare states like Germany, as well as at the global level has two features: the controlling one, which the GAL project has focused on so
far, the so called “Außenrecht” (external law) but also the internal law one. The internal law part, the paper argues, deals with similar questions of
validity and weight. It can be used as a field of inspiration and to enhance our understanding of GAL. To illustrate this claim, a neglected field of
administrative cooperation in the German Federal Republic will be used as a case study, the “Länderarbeitsgemeinschaft (LAGA) Abfall”, state-federal
working group in waste management.
As a background, the paper will start with a description of the features, characteristics and functions of the administration in general, followed by the
waste sector and the global administrative space in particular. In the subsequent part, it will be argued that national settings provide a good starting
point for a comparative approach for some of the questions the GAL project is concerned with. With this in mind, chapter four will contrast the role and
the functions of administrative law as set out in the GAL literature with a broader concept of administrative action in German administrative law. The
fifth part will illustrate this broader concept by using the guidelines issued by the LAGA waste management, a federal-state working group, as an example.
The paper does not argue for unreflective borrowing from national settings. Instead, national law should be categorized as one source of inspiration for
the further development of the GAL approach. However, the internal law part and the LAGA example might lead us to the conclusion that some of these new
international phenomena might not be entirely new but might be old wine in new bottles and that there is a wide range of national settings and debate we
can fruitfully apply to the global sphere. The weight of a norm might not only be due to “publicness” but also due to a room to manoeuvre of the
administration and its gained expertise in a certain field.
2. Searching for a definition of the administration
Let us start with a definition of the term administration. Definitions are important. They define what we are looking at and also what we are looking for.
They set the perspectives, the scene and determine the boundaries between what is regarded as to fall into the definition and what is outside of the
definition. How we define something is crucial for the focus of our analysis. Defining administration has been a difficult task in the past; some have even
claimed an impossible one.8 Nevertheless and due to the importance of a definition this paragraph describes
and defines the term public administration, first more general and then with a view towards waste management.
2.1 The administration in general terms
Before going into depth about a definition for public administration, it has to be kept in mind that any definition of public administration is closely
linked to a certain vision of the division of powers in a nation state. Harlow and Rawlings famously distinguish two competing schools of thought with
regard to public administration: red and green light theories.9 The red light theorists believe that the
administration needs to be kept in check by the law. In addition, liberty is perceived as the right to be left alone. In contrast, the green-light
theorists believe “that public administration is not a necessary evil to be tolerated, but a positive attribute to be welcomed”. 10 Here, liberty is perceived as something that is either constituted or at least facilitated by the
state and ultimately depends upon the state.
Keeping these two theories in mind, we start our definition with a look into the Oxford online dictionary. Here, administration is defined as running a
business, an organisation or something similar. This paper is only concerned with one particular organisation, the state or, at the international level,
the public in general and therefore with public administration. To conclude, the literal meaning of public administration is running or operating a state
or the public in general.
In legal scholarship one often referred description for public administration is a negative one. For running or operating a state, usually three powers are
necessary: legislative power, adjudicative power and administrative power. According to the negative description of public administration, public
administration is everything that is neither a legislative action nor a judicative one.11 All the
leftovers in a state that are neither regarded as being legislative in nature nor judicative are pooled as being administrative. The GAL literature also
refers to this negative definition. “As a matter of provisional delineation, global administrative action is rulemaking, adjudications, and other decisions
that are neither treaty-making nor simple dispute settlements between parties.”12 The question, however,
is whether such a vague description is sufficient to work with. Can an analysis of the administration be built on such a definition? Aren’t administrative
tasks more than just neither legislative tasks nor judicative tasks? And how helpful is such a definition in a global setting where there is no world
Generally, the negative description can be turned around to a more positive one. So it has been argued, at least for German administrative law and more in
line with the green theorists, that leftovers to be solely decided by the administration are necessary. Article 20 III of the basic law for the Federal
Republic of Germany states that the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. The
legislator has to decide a clear road map that can be followed by the administration. The legislator has to set goals and has to regulate essential and
crucial matters. The administration has to implement these goals. In order to do so, it needs to decide about how to implement. It needs to interpret the
law, concretise the law, define typologies and develop guidance for the implementation. All these not so crucial matters have to be left for the
administration to deal with.13 Coming back to the definition given at the beginning, the administration
needs to make sure that the state is running smoothly. So we moved from a negative description to the fact that there needs to be some room to manoeuvre or
discretion for the administration to decide and regulate particularly not so essential issues on its own.
What is the substance of this room? One possibility to define the substance could be a description of the administration in more positive and functional
ways. What are the functions of the administration? For Henry “public administration is a broad ranging and amorphous combination of theory and practice;
its purpose is to promote a superior understanding of government and its relationship with the society it governs, as well as to encourage public policies
more responsive to social needs and to institute managerial practices attuned to effectiveness, efficiency, and the deeper human requisites of the
citizenry.”14 In other words, the public administration has to be responsive to the needs of the
citizens. It is their function to fulfil these needs effectively and efficiently. They have to act and implement the law in the public interest. They have
to organise the state in accordance with the public interest. The legislator might set policy goals, but the function of the administration is to reach
those goals. In order to do so, the administration needs a room to manoeuvre or discretion. To sum up, this paper adheres to the green theory of public
administration. The administration plays an active role in the public interests. It implements, enforces and shapes policies. It monitors the
implementation of policies and it builds expertise in several different areas relevant for running a state or the global space.
2.2 The Administration in Waste Management
These more vague positive functions of the administration in general are more specific when it comes to waste management. Waste Management is concerned
with the provision of public goods to the citizens. Unregulated waste disposal causes a threat to human health, the environment and can increase climate
change.15 Waste Management is therefore concerned with “waste handling at the source, collection,
transport processing, transformation, and disposal”.16 The legislator will set goals, procedures or
standards which than have to be operationalized, implemented and organised by the administration in a cost-efficient manner. Especially in environmental
law and even more so in a field like waste management that is highly technical and developing very fast, the goals set by the legislator cannot be
implemented straight away. Precise guidance on how to implement and an ongoing and consistent exchange about the different technical possibilities,
solutions and new developments is necessary.
The functions of the administration in waste management are generally twofold: implementation and monitoring. The administration will, for example, define
different categories of waste. The administration will organise the collection of waste, the transport and the planning of landfills or incinerators. It
can fulfil these tasks by itself, e.g. the collection of waste; it can also use third parties in order to do so, like private waste collecting companies.
But not only is the administration in charge for implementing goals set by the legislator, like planning landfills. The administration is also in charge of
monitoring the goals set by the legislator, for example preventing that hazardous waste is dumped somewhere in the countryside or that a landfill does not
fulfil the requirements of the law and the best available practice. In order to fulfil this specific task, a room to manoeuvre and the exchange of
knowledge and best practices are necessary. Freedom from hazardous waste or environmental damage, to turn it positively, a life under healthy environmental
conditions can only be reached through a well-functioning administration. The legislator itself as well as the adjudicator itself cannot reach this goal on
2.3 The global administrative space
As has been described, public administration exists at the national level. The question remains whether it also exist in the global arena.
Kingsbury/Stewart and Krisch point out that many “international lawyers still view administration largely as the province of the state or of exceptional
interstate entities with a high level of integration, such as the European Union.” In this view, “international action might coordinate and assist domestic
administration, but given the lack of international executive power and capacity, does not constitute administrative action itself.” 17 Due to the lack of enforcement power, they conclude that such a thing as global administrative bodies
does not exist. This vision mirrors the view of state/administration vs. the people. As described above, enforcement is just one task carried out by the
administration. There are several other tasks global administrative bodies could fulfil, for example, knowledge exchange. In addition, what about all the
international and transnational regimes like the OECD networks and committees, the committees of the WTO, the World Bank, the Basel Convention and so
forth? All these bodies administer action to some degree. Do they fall outside the scope of “normal” administration?
In contrast to this perception, Kingsbury/Krisch and Stewart argue for a global administrative space which already exists. They come up with five different
ideal types of administrative bodies at the global level: “(1) administration by formal international organizations; (2) administration based on collective
action by transnational networks of cooperative arrangements between national regulatory officials; (3) distributed administration conducted by national
regulators under treaty, network, or other cooperative regimes; (4) administration by hybrid intergovernmental–private arrangements; and (5) administration
by private institutions with regulatory functions.”18
All these administrative bodies can have different functions and act in different environments.19 For
example, the aim of an administrative body can be to achieve desired changes in private conduct by imposing regulatory obligations. To implement these
obligations in national administrative procedures, guidelines might be necessary. One example in the area of waste management is the implementation and
compliance committee of the Basel Convention of the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The objective of the
committee is to assist Parties to comply with their obligations under the Convention and to facilitate, promote, monitor and aim to secure the
implementation of and compliance with the obligations under the Convention (Article 15, paragraph 5 (e) of the Convention). One of the ways in which the
committee assist the member states in improving the implementation of and compliance with paragraph 4 of Article 4 and paragraph 5 of Article 9 of the
Convention is considering an expansion of the checklist for the legislator and the development of strategies to promote full legislative implementation. In
addition, in 2013 the committee issued a “Methodological guide for the development of inventories of
hazardous wastes and others wastes under the Basel Convention”.20 This guide explains how to set up a
hazardous waste inventory that would ultimately lead to national hazardous waste legislation which is in compliance with the convention. Similar to
national waste management, the committee is in charge of monitoring and implementing. It can issue guidelines or reports. There is also a compliance
mechanism21 which can be described as a weaker form of enforcement.
To conclude, something is out there that administers the global space. It comes in different shapes but the tasks are similar to national administrations.
Global administrative bodies govern the global space via reports and guidelines, but also issue decisions, monitor compliance and so forth.
3. Reflective borrowing from national settings
If the administration plays a huge part in modern day societies, the next question that arises is: What kind of law should govern administrative practices?
Do we need an administrative law framework at the global level or is it possible to compare and to borrow from national settings? To enhance our
understanding about global administrative law, it is worth looking towards national administrative law. National regulatory structures can be used as a
field of inspiration, as indicators or a starting point. However, it has to be kept in mind that such a comparison has limits, as both levels are
different. They act in different environments. They have different institutional settings, different capacities and so forth. Fortunately, those
differences are not so huge to render a comparison irrelevant.
The GAL literature is well aware of the approach to use national administrative law as a source of inspiration for the construction of GAL principles. They
call it the “bottom-up” approach. However, they also highlight the challenges such an approach faces. “The transposition of tools and approaches from
domestic administrative law to global governance issues may be productive, but it faces important limits, stemming mostly from the different structure of
global administration – from the relative informality of many of its institutions, its multi-level character, and the strength of private actors in it.” 22 Those are the cautious words of someone who tries to highlight the exceptionalism of law in the global
arena. When it comes to the concept of law, the words are even more cautious as Kingsbury points out that many of the phenomena that occur in GAL are not
included in the administrative law concepts at the national level.23 As will be shown, particularly in
the area of quasi-legislative administrative provisions and administrative self-regulation, the limits of borrowing as described above might be less
relevant and therefore less problematic.
In these settings, we can also find informality and the inclusion of private bodies and stakeholder. Especially with regard to the concept of law,
Somek provocatively states: “Aside from the ostensible lack of coolness associated with relying on domestic analogies, it is difficult to understand
why GAL should ignore the important conceptual lessons which can be learned from the evolution of its domestic predecessor. 24
4. Administrative law
After a definition has been given for the functions and features of the administration and the fruitfulness to compare different concepts of administrative
law, the question arises: What is the law that organises and guides the administration? What constitutes administrative law and is there a difference
between global administrative law and national administrative law? In the GAL literature, the concept of law referred to is in most cases not stated
clearly. Cassese points out that we can find the “entire arsenal of administrative law, as it is known to national governments” in the global space. 25 However, he stresses that this does not mean that GAL and national administrative law are identical.
He identifies three differences: “First, global administrative law is not hierarchical: there is no single regulatory regime that has supremacy”. And
second GAL should be distinguished from international law, “as this law is mainly based on transactions, while global law has developed a more robust
hierarchy of norms.” “Third, global administrative law is sectoral, due to the presence of many different global regulatory regimes.” 26
Other publications engage with the question why law should regulate global governance and therefore GAL in general. Coming to the conclusion that law
should restrain global actors in the same way as judicial oversight is available for measures of domestic administrative agencies. 27 As Benvenisti points out: “There is therefore no reason to maintain a romantic view about global
governance bodies in whatever shape or form. But there is no reason to be negative about them either. Just as domestic governance is indispensable, so is
global governance. The challenge that remains is how to tame power, level the institutional playing field and ensure that all affected interests are
adequately represented or at least taken into account. This was the task of domestic law – to counter domestic power – and is now the task of the law that
regulates global governance.”28
The degree to which the objective of national administrative law is to counter power and enable effective oversight is controversially debated in national
settings as well. It depends upon the political culture and the different schools of thought present. As has been outlined above, the views with regard to
judicial oversight differ between adherers of the green vs. the red theories.29 In addition, the concept
of administrative law more generally also changes over time. As Jerry Mashaw points out for the administrative constitution of the US, in the 21st century
our sources of administrative law tend to be solely based on principles being developed by judicial review. He concludes: “Our forms of law have shifted in
ways that make prior practices appear to be not a different system of administrative law, but no law at all.” 30
A detailed analysis of all these debates lies outside of the scope of this paper. We should just keep in mind that there are several and competing concepts of law, especially with regard to administrative law. In this paper, one particular path to explore the concept of law in GAL is chosen: the concept of law developed by Benedict Kingsbury in his article from 2009.31 In this article, he argues for a mixture of Hart’s law as social fact combined with the criterion of publicness. In a second step, this concept is contrasted with the German concept of administrative law especially the law quality of administrative internal self-regulation “Verwaltungsvorschriften”. It will be shown that, even in national settings, it is difficult to draw the line between law and non-law and weight also matters.
4.1 GAL: Publicness and the “social fact” of law
What is global administrative law? First of all, it is not international administrative law. The word “global” was explicitly chosen to distinct global
administrative law from the sources of law usually referred to in international law, e.g. international treaties, customary international law and general
principles (Article 38 (1) ICJ Statute), as the sources of GAL go beyond this.32 Instead of using the
international law sources, Kingsbury argues for a combination of Harts rule of recognition and “publicness”. In short, law is a social fact and therefore
what courts, relevant state officials and entities exercising international public authority regard as law. And second, it has to fulfil the requirement of
publicness. Kingsbury’s proposed concept of law seems like legal positivism with a pinch of natural law theory. 33
In a first step, Kingsbury highlights that any concept of GAL “involves not only questions of validity (‘is this a valid legal rule?’), but also
assessments of weight (‘what weight should Public Entity X give to a norm set by Public Entity Y?’). Whereas positivist thought within a unified legal
system has focused on the binary validity/invalidity, or binding/nonbinding, the absence of a very organized hierarchy of norms and institutions in global
governance, and the dearth of institutions with authority and power to determine such questions in most cases, means the actual issues in global
administrative law often go to the weight to be given to a norm or decision. Law is a social practice, and it is a feature of the particular social
practices involved in GAL that both validity and weight are important. A useful concept of law in global administrative law must elucidate both aspects.” 34
In a second step, Kingsbury chooses one specific model for the concept of law: Hart’s model of law. For him, this model is an obvious choice for two
reasons. First, Hart’s positivistic model of law does not have the state at its centre, like for example Hobbes’s command theory of law. As we do not have
a global world state, a model that does not depend on the state seems much more suitable. And second, Kingsbury agrees that we live in a pluralistic world.
In such a pluralistic world, there is no room for one natural law theory based on one set of right and just principles, as the views on what is right and
just differ. Therefore choosing positivistic approaches for international law “may well be the best way to promote basic order”. 35
From Hart’s theory of law, Kingsbury focuses on the “social fact condition” of the concept of law and the rule of recognition. What is the social fact
condition of law? In Kingsbury's reading of Hart, the social fact condition means that part of the concept and therefore the existence of law itself is
that it is regarded as law. For the emergence of GAL “the internal attitudes actually held by leading participants and by those dealing with and critically
evaluating them and their practice”36 are decisive. Those attitudes of relevant officials like states,
courts and entities exercising international public authority are essential to establish law. He comes to the conclusion that “Hart thus provides a
methodology for empirical identification of law”37. Does this mean that by asking officials on specific
rules we are able to detect law? Kingsbury’s answer to this question is: no. Analysing attitudes of officials to find out whether something is regarded as
law by them is necessary, but not sufficient to call something law; we also need “publicness”.
Kingsbury claims that only “rules and institutions meeting these publicness requirements immanent in public law (and evidenced through comparative
materials) can be regarded as law”.38 In his view, it is even under modern democratic conditions not
sufficient to define a source to call something law, instead, the fulfilment of the publicness criterion is crucial for calling something “law”. Publicness
is the essential feature of public law. But what does it entail? Here, Kingsbury borrows from Waldron39 and describes publicness as “the claim made for law that it has been wrought by the whole society, by the public, and the connected claim that law
addresses matters of concern to the society as such.”40 The indicative list provided by him for
publicness looks as follows: the principle of legality, the principle of rationality, the principle of proportionality, the rule of law and human rights.
Can the criteria of publicness be included into Hart’s concept of law? To answer this question we have to explain Hart’s concept of law in more detail.
Hart divides the different rules in a legal system into two categories: primary and secondary rules.41 Primary rules are those rules that lay down how people are obliged to behave. Secondary rules, instead, are those rules that lay down how primary rules are
established, changed and applied. One of these secondary rules is the rule of recognition. This rule tells us how to recognize that some other rule is a
legal rule. Kingsbury is of the opinion that his criteria for publicness can be included into Hart’s concept of law via the rule of recognition. He states,
“if the rule of recognition is understood as including a stipulation that only rules and institutions meeting these publicness requirements immanent in
public law (and evidenced through comparative materials) can be regarded as law”, publicness can be included into Hart’s concept of law. 42 He concludes: “It may thus be possible to be a Hartian positivist, at least in a loose sense, and also
to accept these publicness requirements as necessary to law.”43 In other words, “Kingsbury embeds the
substantive notion of publicness in the practice of law.”44
Whether a legal positivist, an adherer to Hart’s concept of law, would follow Kingsbury’s line of argumentation, will not be discussed in this paper. The
question, we ask instead, is: If we follow Kingsbury’s line of argumentation, do we already have global administrative law? Here Kingsbury has to admit
that “GAL as a social practice has not yet gone so far: typically, compliance with publicness considerations becomes more and more important in determining
weight (perhaps even rising to be requirements of validity) the less the established sources criteria are met, the more doubt there is about recognition,
the greater the levels of resistance, and the greater the extent to which individuals or other private actors and their basic rights and welfare are
affected.”45 To conclude, we are not there yet. Even Kingsbury admits that from his own concept of law we
are still at the pre-stage of law. The question is still one of weight and not one of validity in general. The binary code of law/non-law has become less
black and white and includes another category – grey. Grey is non-law that has some weight and might at some point become law if the legal community will
accept its legal status.
4.2 Administrative Law: Innenrecht vs. Außenrecht
Grey administrative law or administrative law in-between is something also the German administrative law literature is well aware of. The German
administrative law scholarship distinguishes between „Innenrecht“ (internal law) and “Außenrecht” (external law). 46 This distinction is not drawn along the lines of the sources of law but along the lines of the
different functions of law and the subject or addressee of the law. If the law regulates the internal organisational matters, the state structure in
general or the relationship between different administrative agencies, all this broadly falls within the category of internal law. On the other hand, if
the state interacts with its citizens and not only with itself, this is called external law. However, there is a huge area of grey in between and a long
standing debate about the possibility of internal law becoming external law.
The distinction between those two different categories of law is not new, but rather old. It was drawn by Georg Jellinek and Paul Laband in the 19 th century. Both scholars developed the so called “Impermeabilitätstheorie“, the theory of impermeability. According to this theory, the entity
state was impermeable for law. The argument was that law can only exist in relationships between different legal subjects. Different legal subjects could
be entitled to various claims, like paying damages. Just one legal subject on its own, like the state, cannot sue itself for damages or a restraining
order. In their view, the state was only one legal entity, therefore, the law regulating the internal structure of the state and the relationships between
its different parts was not law.47 This distinction was more or less an attempt to diminish the power of
the monarch and the power of the administration, which was controlled by the monarch. It was, however, severely criticized. The state cannot be this one
entity, if so, with regard to international law, the citizens of a state would be included in the entity state. The state-citizen relationship would not be
guided by law, only the interstate relationship at the international level would be guided by law: international law. In addition, it is not clear why an
administrative regulation of some sort, being compulsory for an administrator to follow, should not be called law. 48 Even so, it constitutes the guiding principles the administrator has to follow.
Modern German administrative law still distinguishes between internal and external law. 49 In the
literature, the legal status of administrative guidelines belonging to the category of internal law is debated controversially. Some call those
administrative guidelines the “ungesicherte dritte Kategorie des Rechts”50 (unsecured third category of
law). Some scholars are of the opinion that administrative guidelines are only internal law, they do not bind third parties and therefore have no external
effect towards the citizens.51 In contrast, other claim that internal law provisions which develop,
supplement or elaborate the law, such as administrative guidelines, are also law and have and should have external effects.52 Last but not least, Matthias Knauff claims that we should view administrative guidelines as soft law. 53
The internal law category uses different forms for self-ordering. The most common one is called “Verwaltungsvorschrift” administrative guideline or
quasi-legislation. Germany is not the only country with such a tradition of administrative self-governing norms. Such “rules” can also be found in other
jurisdictions.54 These administrative guidelines lay down the organisational internal structure of an
administrative agency. They also set out a framework for the normal course of business and the collaboration with other administrative bodies. Such
provisions or guidelines can come in different shapes and can have several functions. Generally, they will be enacted by a higher administrative body to
guide the behaviour of the subordinate administrative body. This is particularly important when it comes to the process of implementation of statutes.
Generally, executive agencies have explicit enforcement authority, sometimes, however, that authority needs to be further refined or explained. In such
cases, an administrative agency may develop and implement policies and write guidance to assist the subordinate agency in the implementation of the law.
These administrative guidelines enable the administration to fulfil the function of implementing the law, gathering expertise, knowledge exchange and so
forth. The competence to enact “Verwaltungsvorschriften” rests generally in the administrative room to manoeuvre and in the hierarchical structure of the
administration. Higher administrative bodies have the competence to give order to their suobordinates.55
Generally, “Verwaltungsvorschriften” are less formal than other categories of administrative law, for example the directive. They are divided into
different categories. First, we have those administrative guidelines that lay down the organisation and the internal structure of an administrative
body. In addition, those provisions also include the budget and the distribution of resources towards the different divisions. Generally, these kinds of
provisions are not regarded as having any external effect. 56 Even so, which resources are given to a
certain divisions within an administrative body may very well have an influence on citizens.57
In the second category (norminterpretierende Verwaltungsvorschriften), we can find administrative guidelines on how to interpret the law. 58 These kinds of provisions are usually enacted by a higher administrative body and should help other
administrative bodies to apply the law. They define terms and substantiate undefined legal concepts. Generally, they are not regarded as law, due to the
fact that interpreting the law is the competence of courts and not the administrator.
The third category (ermessenslenkende Verwaltungsvorschriften) is similar to the second category. 59 Here, criteria are laid down for the application of the discretionary power in a regulation. Such
rules should not only help the administrative agency to apply the law, but to apply the law in a coherent manner. Still, these administrative guidelines
are not regarded as law. However, through the non-discrimination principle laid down in Article 3 of the German Basic Law the administration is compelled
to comply with its own rules. It is not regarded as pure law, but weight is given to these kind of administrative guidelines. The courts usually protect
legitimate expectations if such administrative guidelines have been in place.
The fourth category (gesetzesvertretende Verwaltungsvorschriften) includes administrative guidelines in areas where law does not yet exist. In such
cases administrative guidelines are in place instead of law.60 They are only permitted if the area they
regulate is not essential, otherwise law enacted by the legislator is necessary. Everything that touches upon human rights is usually regarded as essential
and requires legislative action. Therefore, the scope for these kinds of provisions is very limited. Due to the fact that those administrative guidelines
are in place instead of law, courts and the legal scholarship regard them as law.
The fifth category contains (normkonkretisierende Verwaltungsvorschriften) administrative guidelines that concretise norms. 61 This category has been created by the judiciary and is regarded as binding and therefore recognized as
law. In these cases, the judiciary argues that there is a room to manoeuvre for the administration. This room enables them to enact law. Usually, we find
this special room to manoeuvre in environmental law matters or other more technical areas where the administration is acknowledged to have special
expertise. The acknowledgement, however, is only the first step. In a second step, the court assesses whether the administration considered all other
enacted laws and legal principles as well as the current state of the art of experiences and knowledge in that particular field. Furthermore, an extensive
participatory process has to take place to secure that the guideline mirrors the experience gained and the present state of the art in that field. 62 This requirement comes close to the “publicness” criterion as proposed by Kingsbury.
The standard example referred to in such norm-concretising cases, is the technical circular air, first enacted in 1974. It is the first administrative
instruction to implement the law on protection against pollution. The competence to enact such provisions is laid down in § 48 Federal Immission Control
Act (BImSchG). According to this and after hearing the parties concerned (section 51), the Federal Government shall issue, with the consent of the Bundesrat, general administrative provisions for the implementation of this act. German case law establishes that this circular, unlike other
administrative guidelines which only interpret a legal rule, is binding on administrative courts within the limits laid down by the legal rule itself. 63 Interestingly, the European Commission as well as the ECJ were not convinced that this circular was a
sufficient implementation of Council Directive 80/779/EEC. The ECJ stated “that, in the particular case of the technical circular 'air', the Federal
Republic of Germany has not pointed to any national judicial decision explicitly recognizing that that circular, apart from being binding on the
administration, has direct effect vis-à-vis third parties. It cannot be claimed, therefore, that individuals are in a position to know with certainty the
full extent of their rights in order to rely on them, where appropriate, before the national courts or that those whose activities are liable to give rise
to nuisances are adequately informed of the extent of their obligations”.64 So even in this small area,
where the German judiciary gives legal force to administrative provisions, this legal force is disputed by the ECJ.
Not even in national settings, the law quality of administrative guidelines or quasi-legislation is easy to assess. Due to the lack of a global state, GAL
cannot be the same as national administrative law, however, it can learn from national administrative law and it could learn even more if the whole range
of national administrative law were looked at, including internal administrative law or non-law. Opening up the concept of GAL to those settings would
overcome some of the general issues raised in the GAL literature concerning the possibility of a comparison with national settings. Internal administrative
law also includes more informal structures. It deals with cooperation between different administrative agencies at different levels. It addresses the
question of self-ordering and the possibilities thereof. It includes stakeholders and other private parties.
5. Case Study: LAGA in waste management
As has been argued internal administrative law and self-ordering of the administration could be another source of inspiration for the discussion about
administrative law at the global level. Here, some of the concerns and shortcomings for comparing GAL to national settings do not apply. The “law” in these
cases is usually also less formal. As we will see, stakeholders can be involved and multi-level governance does also exists. This argument will be explored
in more depth by analysing one example: the LAGA (Landesarbeitsgemeinschaft) waste management and their respective reports. The LAGA is a federal-state
working group dealing with waste management. When looking at some of the administrative provisions enacted by the LAGA we can clearly see that similar
questions are raised. Is this law? Is there an obligation to include stakeholders into the discussions before an administrative guideline is enacted? What
is the legal weight that we should attach to administrative guidelines and so forth? Studying the work of the LAGA in more depth should therefore be
fruitful for global discussions about administrative measures and guidance and it shows us that not everything that happens at the global level is
exceptional and does not have a national predecessor. It also shows us that the range of administrative measures in national-settings is broader than only
enforcement. It reaffirms Kingsbury’s publicness requirement with regard to the law quality of administrative provisions, at the same time , it questions
this requirement with regard to weight and adds knowledge and expertise.
5.1 LAGA waste management
As a background, waste management law in Germany is mostly enacted at the federal level, nowadays with a huge influence from the EU. The application and
administering of the law is done by individual states (Länder). The LAGA waste was founded a long time ago in 1967, which is even before Germany enacted
its first federal waste management statute in 1972. The goal of the LAGA is a coherent implementation of the federal law in waste management. It also
serves as a platform for knowledge exchange between the individual states. In addition, the LAGA discusses developments in waste management and issues
proposals and statements for the development of the federal waste management regime. Furthermore, the LAGA gives its views and expertise for a common
German position with regard to developments in international or EU waste management regime developments. 65 To some extent the LAGA waste management is similar to the Committees of the Basel Convention.
The internal structure of the LAGA is laid down in their rules of procedure (Geschäftsordnung).66 The
LAGA consists of a general committee, which usually meets twice a year, and three subordinate committees, the committee for product responsibility, the
committee for waste technology and the committee for waste regulation usually also meeting twice a year. In addition, it is possible to establish ad-hoc
working groups for one year. Both levels of governance, the federal and the state level, are considered equal in the committees. Members of the committee
are the heads of the waste authorities in the individual states as well as the head of the federal waste authority. Every member has one vote. Resolutions
are passed with simple majority. Through four different means the LAGA can assist the individual states in their implementation process: guidelines,
directives and information materials as well as model administrative provisions which can be used by the individual states to implement the law. Especially
in waste management, there is a necessity for guidance on specific issues. The first waste law for example only stated that waste disposal should not
impair public welfare. Which kinds of waste disposal would not impair public welfare was left to the administrators to decide. To assist them in their
decision, the LAGA issued guidelines. All these guidelines and information, which have been issued so far, are very technical and dense. Most of this is
regarded as internal law.
The functions and the structure of the LAGA are therefore similar to other international/global committees or administrative bodies. The “law” is informal.
We have a multi-level setting and to a limited extend the inclusion of stakeholders or other private parties.
5.2 Validity and Weight of LAGA report number 20
Are the reports, guidance and information materials, which are issued by the LAGA, law? In 2005, the Federal Administrative Court of Germany, the highest
court for administrative matters, had to decide whether guidelines issued by the LAGA waste are administrative provisions that concretized a norm and,
therefore, binding upon the court and the parties. The administrative guideline relevant in this case was report number 20 (Mitteilung Nr. 20) 67 Technical Rules "Requirements on the material recycling of mineral residues/wastes”. In this case, a
company in charge for filling an unused mine had applied for an extra permission to use some specific waste as filling material. The first permit for
filling the mine included as filling materials construction rubble and excavation waste. While filling the mine, the company detected that much more
filling material than expected was necessary. Therefore, they applied for an extra permit to also use industrial residual waste specified as Z2 in the LAGA
report number 20. The administrative body issued this extra permit. In their assessment of the risk related to filling a mine with this industrial residual
waste, they relied on the LAGA report number 20 and followed the requirements laid down in this guideline. The Federal Administrative Court declared that
just applying those non-binding rules is not sufficient for a risk assessment as required in § 48 BBergBG together with the requirements in BBodSchG. The
Federal Administrative Court was of the opinion that the LAGA report was not an administrative guideline that concretized a norm and was, therefore,
non-binding upon the parties. Only relying on these norms was not appropriate.68
After the decision was issued, several lower courts highlighted that the Federal Administrative Court did not state that the report number 20 was of no
value at all. Lower courts claimed that it was still possible to give weight to the report because this report was seen as a provision that was issued by a
committee of experts. If no other rules concerning a special situation are available, the report number 20 can still be used. However, the courts did not
go so far as to make them binding again by claiming that the report belongs into the fourth category (gesetzesvertretende Verwaltungsvorschriften),
administrative guidelines, in areas where law does not yet exist, however, they gave them considerable weight in their judgements and referred to them as
Other courts claimed that the report could be used as an instrument to interpret legal terms. The reason given here was that the report was issued by a
committee of experts and, therefore, includes special expertise in the area of waste management as well as the legal concepts and terms used in this area. 70 To conclude, after the decision of the Federal Administrative court the LAGA report number 20 could no
longer be regarded as law, however, the courts still attached some significant weight to the report.71
The concept of validity and weight is, therefore, something also known and relevant in German administrative law. This weight was not given because of the
fulfilment of Kingsbury’s “publicness” criterion, but because of a certain expertise of the administrative body. It also showed that, especially in the
field of administrative “law”, grey-law is part of an overall concept of administrative law.
The paper has argued administrative law consists of two features: internal and external law. By just viewing global administrative law through an external
law prism or even reducing it to enforcement and accountability, we don’t see the whole picture. The concept of law in global administrative law should,
therefore, also look towards internal law of the administration. Even so, this internal law might not even be called law in national administrative law
settings either. It makes us aware of the fact that non-law like administrative provisions, circulars or quasi-legislation are also part of administrative
behaviour and part of global governance and part of a global understanding of administrative law. Legal analysis of global governance do not have to stop
when something is not external law, but can also analyse, criticise and include features of global governance which belong to the internal law category.
To illustrate this claim the paper has chosen the federal working group (LAGA) in waste management as a case study. Here the different levels of governance
come together and exchange their knowledge about different ways to implement waste regulations. The LAGA issues guidelines similar to other committees at
the global level. Those guidelines are generally not perceived as law, but they are given weight in the legal discourse. The reasons for giving weight are
closely related to expertise and knowledge. Special expertise and knowledge is something that so far does not play a crucial role in Kingsbury’s concept of
law. Besides his criterion of “publicness”, expertise and knowledge might be candidates also to include into the concept of GAL. The lack of this aspect,
so far, might also be due to the solely negative description of the functions and features of public administration. A more positive definition at the
global level might lead to a room to manoeuvre where expertise and knowledge can have a value.
Generally, administrative guidelines are not categorized as law, at least not as external law. However, administrative provisions that concretise norms,
were categorized as being binding upon the administration by German courts. Similar to Kingsbury’s publicness criterion, here the courts require that the
administration considered all other enacted laws and legal principles as well as the current state of the art of experience and knowledge in that
particular field and an extensive participatory process has to take place to secure that the guidelines include the experience gained so far in that field
and the present state of the art in the field. For all other administrative guidelines, the inclusion of stakeholders is usually not a requirement.
However, transferring this fact unto the global level might be misleading. At the global level, the participation of stakeholders and a transparent process
might be a functional equivalent for the national embedded public administration. Even if the LAGA is not as inclusive as one might hope for, nonetheless,
it is embedded in the German state and the German public.
The paper has also shown that the whole “new” debate about soft law, guidelines and global governance might in some respects be old wine in new bottles. If
we dive deep into the organisational structure of public administration in particular administrative self-governance, we can find similar features like
reports, guidelines and so forth at the national level. We also find similar discussions about the law quality of all these provisions. However, the paper
has only focused on one particular case in German administrative law, more comparative research is necessary to draw broader conclusions. In addition, we
might look out for the limits to a national-global comparison.