A GAL analysis of the Security Council Panels of Experts

Just a quick post to flag a new GAL-related publication in the Emerging Scholars Working Papers Series, run by the Institute of International Law and Justice at NYU. Luciana Ricart's paper, entitled "Due Process of Law in the Fact-Finding work of the Security Council’s Panels of Experts: An Analysis in terms of Global Administrative Law", is a detailed analysis of an as yet relatively under-studied area of the global administrative activity carried out under the auspices of the UN Security Council.

Through two case-studies, namely the Panels established with respect to violations of the sanctions regimes in Angola and the Democratic Republic of Congo, Ricart argues that not only are these panels fulfilling an important public function in their fact-finding role, but that they are also, in evaluating the conformity of the facts that they uncover with certain normative standards (e.g. those established by the sanctions regimes), they are also performing a quasi-judicial function that can have profound and far-reaching implications for the individuals and companies involved. On this basis, she finds that far more robust administrative law-type rules and mechanisms must accompany the work of these panels of experts, in order to ensure that the rights of those accused of wrongdoing are adequately protected. Ricart concludes by suggesting what some of these mechanisms might look like, drawing on both international human rights law and the best practices found in domestic constitutional frameworks.

Well worth a look.

GAL and the Intergovernmental Panel on Climate Change.

A couple of interesting posts from the Global Governance Watch website, noting some heavy criticism of the opinion of the Intergovernmental Panel on Climate Change (IPCC) that global warming is a man-made crisis, and rejection of the IPCC's recommendation that CO2 emissions should be drastically cut to combat this. (Where did I leave that salt? Ah yes...)

The first is on the release of the recent Manhattan Declaration on Climate Change, in which around 500 "climate change experts and scientists" who have decided that "human- caused climate change is not a global crisis". (I do not have any of the necessary expertise to evaluate these claims - I just want here, however, to note two points: firstly, in terms of a fairly crude scientist and expert "head count", the 500 or so that signed this declaration seems a pretty paltry figure compared to that marshalled on the other side of the debate; and secondly, that the Declaration was issued by the International Climate Science Coalition, "an organization of scientists, energy and policy experts, and economists seeking to provide an alternative to the IPCC by promoting a "better public understanding of climate change science and policy'".)

More interesting, from a GAL perspective at least, is the earlier post on the results of an independent analysis commissioned by the US Congress to look into alleged inaccuracies in the climate predictions developed by the IPCC, particularly with regard to its earlier report entitled Climate Change 2001: The Scientific Basis. The independent analysis criticised the methodology of some of the research on the basis of which the IPCC reached its conclusions, making a number of recommendations. Three of these are - at least analogically - of interest from a GAL perspective.

The IPCC is an intergovernmental body, set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP), and

established to provide the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct any research nor does it monitor climate related data or parameters. Its role is to assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation.

It is thus a public body, whose output is intended, indeed expected, to have a significant impact on legislative and policy choices taken at the national, regional and global levels. It is not, therefore, much of a stretch to characterise its activity as fundamentally public/administrative in character. The independent analysis, which focuses largely on the standards that should apply when a public body relies on academic scientific research, makes a number of interesting administrative law-type recommendations:

Transparency
The independent analysis found that in many cases in which scientific papers are used as a basis for highly controversial policy documents, "the supplementary material [such as code and data] for academic work is often poorly documented and archived and is not sufficiently robust to withstand intense public debate"; and, moreover, that "[s]haring of research materials, data, and results is haphazard and often grudgingly done", noting in particular that one of the leading academics in the field, upon whose work the IPCC relied heavily, viewed the code that he developed as his own intellectual property, that he was under no obligation to disclose to peers.

The independent analysis recommended that, where academic work is to be used for controversial policy papers, it must be subjected to a much more intense level of scrutiny, involving, inter alia, more disclosure of codes, data, and funding sources.

Participation
One of the central criticisms of the independent analysis is that the academic work upon which the conclusions of the IPCC were based, although relying heavily upon statistical analyses, did not interact with the mainstream statistical community in order to test and validate those analyses. It recommends that, where bodies such as the IPCC are reveiwing academic work with a view to basing their conclusions thereupon, they should ensure the participations of specialist, expert statisticians in that process. Clearly, this kind of participatory requirement is intended to increase the "output legitimacy" (i.e. the quality of the results) of the administrative process in question (in this case, the production of the IPCC's report and findings).

Review
Lastly, and perhaps most tenuously, the independent analysis raised issues that can perhaps be read as a form of accountability: recommendations for strengthening the ex post review process. In this case, however, it is not the review of the administrative activity of global body (the IPCC) itself that is in question, but rather a requirement that it act as a reviewer of the academic work upon which it will base its findings. In this regard, the analysis notes simply that "[e]specially when massive amounts of public monies and human lives are at stake", standard peer review mechanisms are likely to be inadequate; therefore, where it is to be used in service of a political goal, "academic work should have a more intense level of scrutiny and review". Indeed, the previous two issues, relating to transparency and participation, are in many ways simply complementary to this basic strengthening of ex post review. The report suggests, at least implicitly, that where the global body in question fails to discharge this more intensive review function, its own administrative output (the publication of findings and recommendations intended to influence legislative and policy programmes on climate change) should itself be regarded as lacking legitimacy.

As noted above, then, we find in the independent analysis recommendations that bear more than a passing resemblance to certain administrative-law type requirements relating to transparency, participation and review, tailored to meet the specific context of the use of academic work by public administrative bodies in formulating reports and recommendations on matters of political controversy. Are these part of global administrative law? Obviously not yet; however, if they were to be taken on board by bodies such as the IPCC, either formally through the adoption of binding internal procedures, or informally through consistent usage leading to the generation of legitimate expectations, then an argument could certainly be made that they have become rules of GAL. In any event, at the very least, this independent analysis provides us with an interesting example of the ways in which administrative law mechanisms and their analogues are beginning to penetrate the institutions of global regulatory governance, even in highly specific, technical fields.

WIPO DG candidates on increasing accountability

The Intellectual Property Watch site has an interesting article, with a number of useful links for further information, on the recent interaction between the candidates for the position of Director General of WIPO and various concerned civil society representatives, "to discuss how WIPO’s strategies for the future might involve both more transparency and better accountability to stakeholders in environmental, social, and economic issues". Well worth a look; besides the classic accountability/transparency issues, the section on "WIPO in the developing world" is also of interest from a GAL perspective.

New website of interest

From a recent Opinio Juris post, we learn of this interesting new website: Global Governance Watch. Here's the blurb:

Global Governance Watch (GGW) is a joint project of the American Enterprise Institute (AEI) and the Federalist Society for Law and Public Policy Studies. Its goal is to raise awareness of the growing global governance movement and to address issues of transparency and accountability at the United Nations, in NGOs, and related international organizations. In particular, the project monitors issues of national sovereignty and the ways in which the agendas of international organizations influence domestic politics.

It focuses on the role of international organisations in terms of four broad governance themes: development; global regulation; human security (including human rights concerns); and national security. Clearly, then, a potentially important source of information for those looking to keep up with developments in terms of global administrative law, and one that I will doubtlessly mine shamelessly on here in the not-too-distant future.

However, it may also be worth noting - as did Peter Spiro in the original Opinio Juris post - that the keynote speaker at the launch of the initiative was none other than John Bolton, which might indicate something of the politics that will colour the postings on the site. So, a potentially useful resource; but(as with most if not all internet sources) perhaps keep that pinch of salt nearby. Just in case.

New policy report - "The UN Security Council and the Rule of Law "

Just a quick post to flag the release of a new policy report, with recommendations for reform, entitled "The UN Security Council and the Rule of Law", the result of a 4 year initiative of the Austrian Government, supported by the Institute of International Law and Justice at NYU. The report was written by Simon Chesterman, professor of law at both NYU and the National University of Singapore.

Here's a brief blurb:

[T]he report recognizes that the Security Council has grown beyond its initial function as a political forum and frequently serves important legal functions. At the same time, there is a widely perceived need for the Council to ground these new functions in a normative framework that is both legitimate and effective. This report maps out how it might go about doing so, building on four years of meetings with experts and practitioners.

The report is available here (including a preface by the Austrian Minister for European and International Affairs). Chesterman has another, more general reflection on the notion of the rule of law and its application to the international sphere available here. Below, for those interested, I have reproduced the executive summary of the report in full:

Executive Summary

(i) The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

(ii) The "rule of law" is widely embraced at the national and international levels without much precision as to what the term means. At the national level, it requires a government of laws, the supremacy of the law, and equality before the law. Strengthening a rules-based international system by applying these principles at the international level would increase predictability of behaviour, prevent arbitrariness, and ensure basic fairness. For the Council, greater use of existing law and greater emphasis on its own grounding in the law will ensure greater respect for its decisions.

(iii) In addition to post-conflict peacebuilding, the rule of law is now also seen as a tool for preventing or resolving conflicts. The preparedness of Member States to take collective action, through the Council, was endorsed, in limited circumstances, at the 2005 World Summit by the adoption of the Responsibility to Protect. It should be supported by firm opposition to impunity and greater efforts to establish or re-establish the rule of law in fragile States. The rule of law must also apply to those who intervene.

(iv) The Council is a creature of law but there is no formal process for reviewing its decisions; the ultimate sanctions on its authority are political. These include challenges to the Council's authority through the General Assembly, or individual or collective refusal to comply with its decisions. It is in no one's interest to push these political limits. For its part, the Council should limit itself to using its extraordinary powers for extraordinary purposes. When it is necessary to pass resolutions of a legislative character, respect for them will be enhanced by a process that ensures transparency, participation, and accountability. When the Council contemplates judicial functions, it should draw on existing institutions of international law.

(v) Sanctions targeted at individuals have presented a challenge to the authority of the Council: legal proceedings have been commenced in various jurisdictions and there is evidence that sanctions are not always applied rigorously. The Council should be proactive in further improving "fair and clear procedures" to protect the rights of individuals affected by its decisions, complying with minimum standards and providing on its own for periodic review.

(vi) The Security Council is most legitimate and most effective when it submits itself to the rule of law. Though the Council does not operate free of legal limits, the most important limit on the Council is self-restraint. Member States' preparedness to recognize the authority of the Council depends in significant part on how responsible and accountable it is -- and is seen to be -- in the use of its extraordinary powers. All Member States and the Security Council itself thus have an interest in promoting the rule of law and strengthening a rules-based international system.

Need for WIPO reform?

The website Intellectual Property Watch has a couple of interesting news items recently dealing with the travails of the World Intellectual Property Organization, and in particular its efforts to get a budget approved (through lack of full funding) and to appoint a new Director General, with the suggestion that these and other difficulties are causing industry figures to lose trust in the Organization (despite the fact that a budget has now been approved).

Interestingly, one the key areas for reform suggested by commentators refers to the internal transparency and management procedures of the Organization - very much the domain of GAL (and, indeed, of the more limited, traditional sphere of international administrative law). IP Watch has gone so far as to ask the 15 prospective candidates for the post of Director General a set of 5 questions relating to how they see the role and future development of the Organization, one of which is "One year after you take office, what do you expect to have changed in WIPO’s management, staffing and procedures?". The answers, which can be found here, provide some interesting insights into current thinking on the internal administrative law and procedures of international organisations, even if they do not often get past the basic, abstract incantations of transparency, accountability and "good governance" more generally.

ISO controversy over Microsoft OOXML standard

From Aaron Shaw's Weblog, we learn that Microsoft has, it would appear, won the lengthy battle to have its Open Office XML format designated as "standard" by the ISO, which has in effect reversed a vote it took in September 2007 against such a course of action. New York Times has a (very basic) story here; Shaw's blog deals with it in considerably more critical detail here and here.

The New York Times piece does not, in its passing mention of Microsoft's "intense lobbying campaign" and the "pressure" applied by the company on ISO members, do justice in any way to the scale of the controversy surrounding this decision. The Chair of the Norwegian standardisation body, Standard Norge, wrote to the ISO asking for the "yes" vote of the Norwegian delegation to be suspended, as the decision did "not reflect the view of the vast majority of the Norwegian committee, 80% of which was against changing Norway’s vote from No with comments to Yes". (More detail and links on the Norwegian element of the controversy can be found here). Further, Jomar Silva, a Brazilian delegate (one of the countries that still voted against) has posted his own account of what went on, and how the vote was manipulated in favour of Microsoft.

These obviously raise serious GAL issues in terms of the decision-making processes and procedures at the International Organisation for Standardisation, particularly with reference to the rules and mechanisms that it has, as a private body charged with what is in effect a public (standard setting) regulatory function, established in order to protect itself from the risk of regulatory capture by powerful private interests. The global administrative law of the ISO is something that requires careful research (and, indeed, is receiving just that from some scholars already); after this controversy, one suspects that whatever protections against capture are in place, they might not be sufficient.

**UPDATE** It's official.

Basel II rethink in wake of Bear Stearns collapse

The Basel Committee on Banking Supervision (BCBS) has announced that it is to have a rethink on some aspects of the Basel II regulation following the Bear Stearns collapse, in particular its "Sound Practices for Managing Liquidity in Banking Organizations" guidelines. (for more detail, see these posts by David Zaring over on his Conglomerate blog - thanks to Brian Bolin for the links). Zaring's main complaint seems to be that US administrators now have to persuade foreign banking supervisors of the merits of the regulatory changes that they would like to see introduced. This is, of course true, as far as it goes - but such is the nature of global governance; and the highly informal organisational structure of the BCBS means that it is far more likely to be able to respond with the requisite speed and flexibility to the recent "market turmoil".

A more interesting issue, from a GAL perspective at least, is whether perceived failures in the regulatory outcomes (in this case, apparently the level of willingness to count subprime mortgage securities towards capital adequacy requirements) will lead to the establishment of any more robust administrative law mechanisms to regulate the standard-setting process itself, in particular through providing for greater transparency and participation in the proceedings. To date, the BCBS - an informal network of public officials - is almost completely unencumbered by such considerations, its only concession being the introduction of an extremely rudimentary (and scarcely binding) "notice and comment" procedure through publishing proposals on its website and inviting comments from those with the time and expertise to understand them (for a - perhaps overly optimistic - look at the GAL significance of the BCBS and Basel II, see this article by Michael Barr and Geoffrey Millar).

Of course, there is another role in which the BCBS is significant in terms of GAL, and that is a a source of "distributed administration" - through creating global norms that must then be interpreted and applied by domestic administrative bodies (including, in this case, purely private bodies carrying out a public function, such as Credit Ratings Agencies - for more detail, see this paper by Larissa Dragomir). In neither case, however, is it immediately clear how, or indeed if, the current crisis in the sector will affect the global banking regime in terms of those issues most central to the GAL project, namely the increase of participation in and transparency of proceedings, and the establishment of mechanisms for holding those exercising public power to account for the manner in which they do so. Although it should be noted that Zaring has characterised this letter from the US Securities and Exchange Commission as its "justification" of its own supervision of Bear Stearns to the BCBS - could this be the beginnings of a rudimentary accountability mechanism within the sphere of global banking regulation?

Probably not.