Volume 24 (2018)

Volume 24 (2018) / Issue 3

Cedric Jenart, 'The Binding Nature and Enforceability of Hybrid Global Administrative Bodies’ Norms Within the National Legal Order: The Case Study of WADA' (2018) 24 European Public Law, Issue 3, pp. 411–432

Keywords:
Global Administrative Law; World Anti-Doping Agency; Binding Nature and Enforceability; National Legal Order; Constitutional Law; Dynamic Referral

Abstract

There is growing attention in legal scholarship for global administrative law and the changing nature of public law in general. Still, few authors have bridged the gap between hybrid global administrative bodies, which often construe soft law norms, and nation states, which increasingly make these norms binding and enforceable in the national legal order. The question arises as to how soft law norms are made binding and enforceable within nation states after they were drafted by hybrid global administrative bodies. The manner in which the Flemish federated entity in Belgium incorporates the World Anti-Doping Agency’s norms represents an instructive case study to formulate a tentative response to this research question. The World Anti-Doping Agency is an example of a global hybrid actor that was founded and continues to exist through the partnership between governments and private (sports) organizations.

The article first shows that national legislation may be a necessary method to transpose hybrid global norms in the national legal order. Second – out of at least three techniques to adopt legislation (reception, delegation and dynamic referral) – the latter technique could represent the compromise between efficiency and constitutionality. However, the dynamic referral technique is equally limited by constitutional law and the European Convention on Human Rights. The article concludes with a number of recommendations for national legislatures or executives when they refer dynamically to hybrid global norms as a technique of modern public lawmaking.

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ISSN: 1354-3725
ID: EURO2018024