The Administrative Law before the Global Law: the Case of the Mexican Policies on Genetically Modified Maize
Source: LA Times
The Official Gazette of the Federation of February 13, 2023, published the Decree issued by the President of Mexico with regulations on biosafety. Among other measures, the Decree promotes policies restricting the import of genetically modified maize (Third and Fourth Articles) to protect the right to healthy food.
From the Administrative Law perspective, the Decree reflects a typical modality of administrative intervention in the economy, regulating economic activities according to the risks that these may generate on rights such as health. Therefore, Administrative Law provides mechanisms to control the rationality of the Decree, for example, in terms of the integrity of questions of facts and the proportionality of the restrictions imposed. In Mexico, the judicial review of the Decree corresponds to the administrative courts, all of which raise problems regarding the margin of deference that must be kept concerning the regulation adopted by the Decree.
In any case, this Decree is subject to control in the field of International Law, precisely within the framework of the United States, Canada, and Mexico Agreement (USMCA). Thus, the United States Government claims that the Decree violates Article 9 of the Agreement, which applies to sanitary and phytosanitary measures. Specifically, the United States considers that the restrictions imposed by the Decree are not necessary or based on scientific evidence or international standards. In March 2023, the Government of the United States began technical consultations and, in June, formally requested the initiation of consultations to resolve the dispute arising from the Decree under numerals 2 and 4 of Article 31 of the USMCA. If the dispute is not settled amicably, the United States may request the formation of a panel to settle the dispute following Article 31.6.
As can be seen, the Decree is subject to controls, not under Mexican Administrative Law, but under International Law. This demonstrates the growing importance of so-called Global Law in Administrative Law.
The emergence of international organizations that perform functions similar to those deployed by the Public Administration in the domestic sphere led to the proposal of the study of Global Administrative Law applicable to these organizations, considered Global Administrations. We describe this vision as horizontal since it focuses on international organizations interacting with domestic Public Administrations.
But it is equally possible to study the impact of International Law -understood as Global Law- on the domestic activity of Public Administration. This vision is vertical since it emphasizes that, in the 21stcentury, the Public Administration is not only ruled by the domestic legal system but also by the international legal system, interpreted as Global Law.
The relationship between International Law and Administrative Law in the era of globalization is dynamic. Thus, it is common to see treaties applying to relations between firms and Public Administrations based on rules, guidelines, or adjudication decisions issued by international organizations.
International Investment Law is one example of this new dimension of the International Law. The USMCA is another example of how International Law affects relationships usually governed by Administrative Law.
As a result of the above, traditional controls of Administrative Law, such as the questions of facts of administrations, or the rationality or proportionality principles, are also subject to Global Law.
The case of genetically modified maize policies in Mexico demonstrates the need for a new approach between Administrative Law and International Law. If the panel is established to settle this dispute, the traditional sources of International Law that apply to the USMCA will be insufficient to decide what is, in essence, an Administrative Law problem.
Therefore, in the USMCA interpretation, the general principles of law should be considered a supplementary source by Article 38.1.c of the Statute of the International Court of Justice. This source includes the general principles of Administrative Law, which, through the comparative method, can be systematized to extract precise standards that allow measuring the rationality of the Decree or its possible arbitrariness.
In particular, as we have explained elsewhere, the general principles of law, as a supplementary source in the interpretation and application of the treaty, define a rational theoretical framework that favors the balance between the treaty-based standards and Mexico’s right to regulate.
In summary, it is necessary to advance in a Global Administrative Law through the systematization of the general principles that facilitate the control of domestic administrative activity through dispute settlement mechanisms based on International Law, as is the case with the USMCA.