The Duty to Give Reasons for Administrative Decisions in International Law

Abstract

As scholars in the Global Administrative Law project have recognized, doctrines familiar from domestic administrative systems are beginning to appear, in nascent forms, in some areas of international law. This article makes a first attempt to examine the appearance of one such doctrine, the duty to give reasons for administrative decisions, in international case-law. The existence of and rationales for this duty have been contentious in many domestic jurisdictions. The article thus considers the extent to which these debates have been replicated amongst adjudicators at the international level. The focus is on cases in the areas of WTO law, investment law and human rights law. It is found that the case law is not yet extensive, and (perhaps as a result) that no coherent picture emerges. In contrast to domestic systems, the areas examined in international law demonstrate some agreement on the desirability of the duty. However, different international adjudicators have recognized different rationales for the duty, with only limited consensus even within each area of international law studied.

Transparency in fisheries governance: Achievements to date and challenges ahead

“…As international organisations have acquired more decision-making powers and emerged as global public administrators [18], this has been accompanied by normative standards as well as procedures for decision-making. Transparency is one such normative standard, alongside participation, review, accountability, and reason-giving [19,20]. In the words of Donaldson and Kingsbury, '[t]he spread of formal transparency policies is part of a broader pattern by which global governance is increasingly being made subject to procedural norms that, at least in loose and functional terms, reflect basic principles of administrative law as it exists within States' [21, see also 18,22].…”

Imposing Regulation on Advanced Algorithms

“…28 See, e.g., . 29 In the case of administrative decisions in international law, a legal duty for administrators appears to be contentious; see Hepburn (2012), p. 641. 30 On the justification of judicial decisions see Shuman (1971).…”

International Law and European Administrative Procedure: Interaction and Mutual Impact

“…60 The ECtHR has extended the requirement to give reasons to restrictions of other rights where such a duty is not explicitly mentioned, such as free speech. 61 Along these lines, international refugee law establishes duties to inform refugees of the decisions about their status, and also to provide guidance and interpretation etc. 62 In such constellations, the right to be heard and the duty to give reasons seem to constitute an essential aspect of the human right which is at stake.…”