Is Global Administrative Law the Answer for AI Regulation?
- Afonso Oliveira Fachada
- May 25
- 4 min read
Introduction
The increase in the use of AI raises a major question: how to regulate the use of these technologies? For example, its use within administrative procedures is increasingly discussed, and this possibility is already recognized in various legal systems, such as the German administrative system – fully automated administrative acts are admitted in § 35a of the Federal Administrative Procedure Act(1), assuming there is no margin of discretion or assessment by the administrative authority.
In the article “A Global Administrative Law for an Era of AI”, by José Ignacio Hernández G.(2), the author states that a set of global problems is related to AI and, therefore, cooperation between States is necessary. To this end, the author argues that, to ensure this harmonization, it is necessary to consolidate Global Administrative Law and create an agency with regulatory powers.
Global Administrative Law and Artificial Intelligence
Global Administrative Law is seen as a set of rules and principles applied to administrative procedures that operate in a legal and political structure that goes beyond the intra-state level(3). One of the constitutive elements of Global Administration is the possibility of regulation, in a global context, of global problems.
The concept of Global Administrative Law began to be used in the 21st century – previously, during the 19th and 20th centuries, the concept used was that of International Administrative Law, and the concept of Global Administrative Law is preferable as it ensures that this branch of Administrative Law is not confused with a branch of Public International Law.
Now, although there are various possible definitions of AI, we can propose the following simplified definition: a set of computational technologies inspired by the way humans learn, think, reason, and act(4).
There is always interest in the possibility of using AI in the public sphere, as it can contribute to faster and more consistent procedures.
Critical View
In the article “A Global Administrative Law for an Era of AI”, the author argues that, in view of the problems generated by AI, a coordinated response from States is necessary – for this, Hernández states that it is necessary to look to a traditional solution: Administrative Law, but in its global form.
The author creates a three-step plan, being:
i) Systematization of the general principles of Administrative Law, as these are the main source of Global Administrative Law;
ii) Promotion of cooperation between governments and civil society through the use of Soft Law;
iii) Creation of an international agency with regulatory powers over the use of AI at the global level.
So, it is necessary to develop and consolidate a Global Administrative Law, based on the general principles of Administrative Law, ensuring cooperation and the creation of an international agency for AI with regulatory powers – this possibility is defended not only by Hernández but also by other authors and authorities in the subject.
However, I do not agree at all with this possibility. Although I am an enthusiast of Global Administrative Law, I do not believe that in the context of such an important issue, this is the solution.
Firstly, the creation of an international agency with regulatory powers to deal with global AI problems is politically impossible.
For such an agency to have this type of power, a transfer of sovereignty from the States is necessary – that is, they must agree to give away their regulatory capacity on this matter to an international organization. We can easily imagine that several States, especially those with major technological development, would oppose this solution – if that is the case, we can no longer speak of international cooperation, and the legitimacy of such an agency would be compromised.
Next, the rationale behind the quantitative leap that occurs from the 2nd to the 3rd stage of the plan presented by the author is highly open to debate. He proposes the use of soft law in an intermediate phase to consolidate cooperation between States – this type of instrument, with rare exceptions, is ineffective. We may consider that the first two steps could serve as a foundation for the establishment of Global Administrative Law, but not enough for the creation of an agency with regulatory powers.
Therefore, this proposal has little chance of being implemented and is far from today’s political reality. Although it is possible to recognize that the use of Global Administrative Law and the creation of an international agency are interesting ideas, they are not sensible. The creation of an agency with regulatory powers depends on an abdication of sovereignty by States. Also, the idea of using soft law as a way to consolidate Global Administrative Law and transition to a binding legal regime is unrealistic.
Thus, the question arises: what is the solution?
Well, I believe the solution lies in a more traditional and realistic approach – it lies in the creation of a dedicated AI agency and its regulation by each State; that is, the solution is nothing more, nothing less, than Administrative Law.
In this regard, we can take into account the position of Simon Chesterman(5)– this author suggests, considering the political reality, that the best solution is the consolidation of regulatory structures and the creation of national agencies dedicated to AI, starting from Administrative Law to create clear and effective regulation, always maintaining an attempt at cooperation between States.
We can also consider what is established in Regulation 2024/1689 of the EU(6), where the need for each State to create its own agency is also defended.
Conclusion
The proposal defended by José Hernández and other figures, although desirable and interesting, is unrealistic, with structural and political obstacles leaving this idea aside.
Thus, the solution still does not lie in Global Administrative Law, but in internal Administrative Law. That is, the regulation of States in this matter must be promoted internally, preserving their sovereignty and adapting the regulatory need to geopolitical reality, without discarding international cooperation to harmonize this regulation.
References
VwVfG, § 35ª.
José Ignacio Hernández, “A Global Administrative Law for na Era of AI” (2024). The Regulatory Review.
Benedict Kingsbury e Megan Donalson, “Global Administrative Law” (2011). Max Planck Encyclopedia of Public Internacional Law.
Stanford University, “Artificial Intelligence and Life in 2030: One-hundred-year study on artificial intelligence” (2016). Report of the 2015 Study Panel.
Simon Chesterman, “The Tragedy of AI Governance” (2024) (accessed on 27/04/2025:
6. Regulation (EU) 2024/1689 of the European Parliament and of the Council, of 13 June 2024.
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