An innovative approach of this research to the global governance of aviation safety is suggesting administrative law type mechanisms for global governance of aviation safety as the GAL theory proposes. Therefore, as part of the administrative structure, national courts may apply global aviation safety standards.
45 John Saba ‘Aviation Safety in Crisis: The Option of the International Financial Facility for Aviation Safety
(IFFAS)’ (2002)Vol.30 Issue 1.Transportation Law Journal 1, 52.
46 Ruwantissa Abeyratne ‘Regulation of Air Transport : The Slumbering Sentinels’ (Springer International
Publishing 2014) 2.
47 See Brian F. Havel ‘Beyond Open Skies; A New Regime for International Aviation’ (Kluwer Law
International 2009) 164.
48 See Steven Truxal ‘Economic and Environmental Regulation of International Aviation: From Inter-national
to Global Governance’ (Kindle ed. Routledge 2017), Brian F. Havel ‘Beyond Open Skies; A New Regime for International Aviation’ (Kluwer Law International 2009)
52
The major issue is addressed as the global governance of aviation safety and the applicability of the administrative structure of global administrative law in the governance of global aviation safety. It is asserted that the global governance of aviation safety is an example of the joint administrative action of international and national public powers through multiple actors, which is an executive structure that the global administrative law theory offers. ICAO is acting as a global regulatory body and its development through cooperation with national administrations and other actors in the international civil aviation field, as well as how this applies to the Global Administrative Law (GAL) theory’s definition of a ‘global
administrative space’.
In order to address the global governance of aviation safety and the applicability of the administrative structure of global administrative law in the governance of global aviation safety, literature review first aimed to cover the complexity of increasing global governance in international legal order and changing role of states in global governance in general. The existing literature on theories reconceptualising the role of states and increasing global governance help to emphasise growing interconnected global governance.49 The claim is the concept of state sovereignty is being transformed, not demolished.50
One analysis that applies to the global governance of aviation safety is that globalised social and economic life makes states willing to share their previously sovereign rights within global governance and, rather than invoke sovereignty51 to resist cooperation.
The emerging legal theories regarding states’ role and sovereignty in the contemporary world are reviewed. Although states remain as the main actors, global rulemaking regimes in global institutions are increasing in many sectoral fields such as intellectual property rights, forest preservation, food safety, financial institutions, environmental protection, labour standards, and antitrust policies taking place in global institutions.52 The aim of a state is to participate inglobal matters, which involves tolerating and accepting the regulations of global
49 See Steven Truxal ‘Economic and Environmental Regulation of International Aviation: From Inter-national
to Global Governance’ (Kindle ed. Routledge 2017)134.
50 See David Held and Anthony McGrew (ed) ‘The Global Transformations Reader; An Introduction to the
Globalization Debate’ (Polity Press 2000)
51 See Chayes, A., & Chayes Handler, A. ‘The New Sovereignty, Compliance with International Regulatory
Agreements’ (Harvard University Press 1995)
52 Joshua Cohen and Charles F. Sabel ‘Global Democracy?’ (2004-2005) Vol.37 Issue 4 New York University
53
institutions.53 Such collaborations among states have resulted in the decreased use of the
traditional consent-based system and the increased adoption of the global common system.54
Empirical evidence and academic reviews are given in the subject of increasing global regulatory regimes in general such as ISA (International Seabed Authority)55, World Bank Inspection Panel56, Codex Alimentarius Codex.57
Accordingly, it is asserted that global regimes can impose legal rules upon individuals and national administrations as their members without requiring advance state authorisation. As Macchia asserts, ‘States and individuals, therefore, are the subjects of the same legal
system.’58 This observation raises the critical issues to justify: the legitimacy of the sources of
global regulations to apply in nation states. The legitimacy of the global safety standards is reviewed through the application of global administrative law principles in global governance of aviation safety. Therefore, transparency, consultation, participation, review mechanisms, and reasoned decision making of ICAO standard setting system are reviewed with the aim to establish the legitimacy and accountability of the aviation safety regulations within the domestic order.
53 Karsten Nowrot ‘Global Governance and International law’(November 2004) Heft 33 <http://telc.jura.uni-
halle.de/sites/default/files/altbestand/Heft33.pdf > accessed 28 March 2019
54 See Karsten Nowrot ‘Global Governance and International law’(November 2004) Heft 33
<http://telc.jura.uni-halle.de/sites/default/files/altbestand/Heft33.pdf > accessed 28 March 2019; also see James N. Rosenau ‘Governance in the Twenty-first Century’ (Winter 1995) Vol. 1, No. 1, 13-43 ,Global Governance <http://www.jstor.org/stable/27800099> 39.
55Aline Jaeckel, ‘Developments at the International Seabed Authority’ (2016) Vol. 31, Issue 4. International Journal of Marine and Coastal Law,706; Caitlyn Antrim, ‘The International Seabed Authority Turns Twenty’ (2015) Vol. 16 Geo. J. OF Int’l. Aff. 188
56Enrique R. Carrasco & Alison K. Guernsey, ‘World Bank’s Inspection Panel: Promoting True Accountability through Arbitration’ (2008) Vol. 41, Cornell International Law Journal, 577
<https://scholarship.law.cornell.edu/cilj/vol41/iss3/1 > accessed 30 August 2019; Peter L. Lallas, ‘Citizen driven Accountability: The Inspection Panel and other Independent Accountability Mechanisms’ (2013) Vol. 107, American Society of International Law,308, 308. <https://www.cambridge.org/core/journals/proceedings- of-the-asil-annual-meeting/article/div-classtitlecitizen-driven-accountability-the-inspection-panel-and-other- independent-accountability-mechanismsdiv/4CADE152ECCCC453FF73A6C36DCBD43F > accessed 6 September 2019
57Michael A Livermore, 'Authority and Legitimacy in Global Governance: Deliberation,
Institutional Differentiation, and the Codex Alimentarius' (2006) Vol.81 NYU Law Review 766; Joost Pauwelyn, Ramses A. Wessel, Jan Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Law Making’ (2014) Vol.25 No. 3 European Journal of International Law 733
58 Marco Macchia ‘The Rule of Law and Transparency in the Global Space’ in Sabino Cassese (Ed.) ‘Research
54
Literature review in the field of GAL theory includes scholars’ law journal articles, and books are reviewed to address how to establish the legitimacy of global regulations of global regulatory organisations in nation states.
The review further explores the ‘publicness’ criterion proposed by the GAL theory, which goes beyond the common interest definition for aviation safety. Generally, global regulatory developments as multi-level international governance in different sectors are controversial. Aviation safety can be considered as a common interest. But the argument is whether or not being a common interest of the international community provides access for individuals, in the case of state non-compliance with aviation safety standards. GAL theory offers a new approach at this point by asking ‘how a community interest of all individuals can be
articulated through, and against, a structure of international law designed to accommodate the interest of states.’59
The scholarly articles that have a critical view regarding the notion of publicness are addressed. Although the definition of publicness is a controversial subject, the researcher applies Huang’s perspective of aviation safety as fundamental human rights - the rights to life. Aviation safety as fundamental human right complies with the perspective of publicness as suggested by Kingsbury ‘the claim made for law that it has been wrought by the whole society, the public, and the connected claim that law addresses matters of concern to the society’.60