Tuesday, September 23, 2008

NYU Panel Discussion on the Kadi judgment

What follows is an abridged account of a Panel discussion at NYU on the Kadi judgment, held in the framework of the IILJ’s Hauser Colloquium on Globalization and Legal Theory, 17th September 2008. Involved in the discussions were the following professors and visiting faculty at NYU: Benedict Kingsbury (moderator), Richard Stewart, Thomas Franck, Eric Posner, Mattias Kumm, Robert Keohane, Robert Howse, Sujit Choudhry, David Dyzenhaus and Eyal Benvenisti. As I didn’t obtain advance permission to publish comments beforehand, here I have, for the moment at least, made available an abridged and unattributed version of some of the key points of what was a wide-ranging and high quality set of exchanges. I have added some brief thoughts of my own at various points – these are in italics. For an account of the judgment itself, see here; for some comment on the Advocate General's opinion, written prior to the judgment itself, see here and here.

Discussions were opened with the observation that the Kadi judgment represented the “Texasization” of the European Union in its relations to the international law (a reference, of course, to the SCOTUS judgment in Medellin v. Texas). Secondly, it was noted that the ECJ had left itself considerable room for manoeuvre its decision, by allowing the Regulation to stay in effect for three months while the rights violations were corrected, and by mooting the possibility that new procedures at the Security Council could lead to a more deferential approach.

This speaker underlined the importance of the Security Council’s role, and the need for secrecy in the process, while acknowledging that the Council had, to date, got the security/rights balance badly wrong. He concluded with a proposal – presently being seriously considered by US authorities – focusing on the idea of establishing “probable cause” for freezing funds, rather than “proof” that they will be used to finance terrorism, stressing in doing so that, firstly, the measures taken by the Security Council are temporary, not permanent; and secondly, that they involve merely a freezing of funds and not an expropriation, so that title to the property stays with the suspected individual. The country seeking the listing of an individual or organization would give the name of perhaps 6 individuals, prominent legal scholars who do not work for the government in question and have not done so for a significant period of time, who would be cleared to see all of the evidence against the suspected individual, and could then give an opinion to the Sanctions Committee as to whether probable cause existed. Given that, in, for example, extradition cases, a finding of probable cause by one legitimate authority is usually accepted by others without the need for further investigation, this speaker hoped that such a system might “pass muster” before the ECJ even in terms of providing effective review of the action taken.

A couple of interesting points arise from this contribution from a GAL perspective. Firstly, it underlines just how diverging the lenses of public international law and global administrative law can be. When viewed from the former perspective, the Kadi case does indeed resemble Medellin, with a domestic constitutional court refusing to apply international law over conflicting national constitutional standards. However, from the standpoint of global administrative law, the two cases appear as opposites: in Medellin, a domestic court refused to apply the administrative law standards contained in an international treaty (the requirement to offer consular protection to those accused of crimes); in Kadi, the “domestic” court insisted upon the application of internationally recognized administrative law standards that had been ignored by the international lawmaker. In terms of global administrative law as requiring mutual recognition of certain requirements of “publicness” in administrative action, then, it is clear that the ECJ and the SCOTUS adopted quite different positions.

Secondly, it is of real interest to hear – from a leading scholar – that the US authorities are already seriously considering their options for ensuring that the listing procedure respects fundamental rights – a situation that would have been unthinkable without the ECJ’s intervention. Of course, it remains to be seen what, if anything, they come up with (and just how stringent any future review by the ECJ will in fact be), but for the time being, we have a dramatic example of the dynamism of the “bottom up” approach to GAL in action.

The second speaker drew attention to the use of strong constitutional language by the ECJ, and in particular para. 285, which states that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”. He suggested that what we have witnessed is further evidence of the maturing of the European State, and identified four sets of potential consequences:

1) There was a real risk that it would weaken international law, undermining its coherence and favouring instead increased fragmentation. However, it may have the opposite effect: if the EU is indeed emerging and beginning to act as a single, powerful state, then its traditionally strong support for international law could ultimately lead to a strengthening of the system.
2) The judgment also raised significant questions over the issue of European constitutionalism. Given that recent attempts to bring an actual “European Constitution” into force have been rejected by the publics of a number of different EU Member States, it is perhaps surprising to see the ECJ rely so heavily on the idea of “constitutional principles” of the European legal order in this judgment.
3) There is a risk that the judgment might undermine the putative universality of human rights law, as the ECJ relies only upon the European human rights regime.
4) Lastly, there is a sense in which the European criticism of the US Supreme Court, and its frequent refusals to consider international law as a factor in its judgments, now rings hollow.

Although interesting, and in many respects persuasive, I can’t help but wonder about the premise that drives at least some of the projected implications. I’m not at all convinced that it is helpful to simply assume that the ECJ’s strong – yet nuanced – affirmation of Europe’s autonomous, constitutional legal order is in any way “proof” of it emerging as a sovereign State. Of course, it might still move in that direction, but my feeling is that this does not represent a radical departure from previous judgments (indeed, the ECJ noted that it had already reviewed a Community measure implementing a Security Council resolution in an earlier – if less dramatic – case).

The next contribution argued that the Kadi judgment cannot be easily categorized either as fundamentally monist or dualist in character. Rather, it adopted an approach that has been central to the European integration project more generally – an approach that respects the principles of European law, but also recognizes and interacts with the wider context in which these are situated in a complex and jurisdictionally sensitive manner. The ECJ both referred to and acknowledged the special role of the Security Council in maintaining international peace and security – it did not simply ignore the Council, but rather sought to engage in dialogue with it. In this way, it represents a third way of interacting with international law that can be reduced neither to monist or dualist categories. The judgment does contain elements of a very statist approach, but these are immediately attenuated by language that recognizes the role of the Security Council, and the need to take “special consideration” of its views.

Secondly, this commentator noted some of the institutional/political reasons for the Court acting as it had: the ECJ has thus ensured that Member States cannot use Community institutions to circumvent national constitutional protections: in many Member States, national constitutional courts may well have struck down implementing legislation that had been introduced domestically – but, in most circumstances, actions of Community institutions are not subject to judicial review by national constitutional courts. Moreover, a different decision by the ECJ may have led some of these national courts – such as, for example, the German Constitutional Court – to challenge the authority of the ECJ by refusing to recognize its judgment. The Kadi decision, then, serves to protect the ECJ’s authority within the European regional framework.

This was, to my mind at least, an excellent analysis of the judgment, and one that influenced my own reading in my earlier post. Its central idea – of a “third way” between monism and dualism, characterised by a dialogical, open and accommodating pluralism, again captures for me one of the basic advantages that a global administrative law perspective can bring: by insisting on certain requirements of publicness, agreed upon internationally, but at the same time situating these in their wider institutional and substantive context, the ECJ in effect proposed the use of GAL as a language for mediating and defusing conflict between itself and the Security Council. Again, the difference between the perspective of GAL and that of traditional public international law – or why Kadi isn’t (or needn’t be) Medellin – is brought out quite strongly in this contribution.

The next speaker introduced a political science perspective to the discussion, noting that sometimes one of the most important consequences of a court decision is to open up a political process that had previously become frozen, suggesting that this may well lead to changes in the US-led listing procedures. Another speaker then suggested that the ECJ could have followed an alternative path to its result, using principles of clear statement used by the U.S. Supreme Court in dealing with congressional statutes delegating very broad discretion to the executive, which exercised the discretion, e.g. to deny passports to asserted Communist sympathizers or denying them security clearances without a hearing, in ways that infringed basic liberty interests. Rather than ruling these actions unconstitutional, the Court found that they had not been authorized by the statutes in question. It stated that notwithstanding their apparent breadth, they should be construed narrowly where basic rights are at risk, thus “remanding” the matter to Congress if it chose to enact more specific legislation. In Kadi, the Security Council resolution was broad in terms but did not specifically prohibit states from providing due process hearing rights to those listed. The ECJ might thus have applied clear statement principles to conclude that those rights were not excluded, effectively requiring the Security Council to address the issue explicitly, perhaps generating a modified resolution that explicitly provides for a measure of procedural protections for listed individuals, while reserving the opportunity to address the “constitutional” relation between Security Council resolutions and Community law on a later occasion if required.

This last suggestion was picked up by the next speaker, who argued that a careful reading of the Kadi judgment suggests that the ECJ is hinting that there may be a hermeneutic solution to the problem. He cited para. 296 of the judgment, in which the Court states that “…the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations” in relation to measures taken to implement Security Council Resolutions. It is thus open for the Community institutions, interpreting human rights protection as forming part of the goals of the UN and thus of any action taken by the Security Council, to assume that any implementing legislation must not violate those rights. Thus, para. 296 opens up the possibility for the EU to interpret the Security Council’s intentions as being to act in accordance with human rights, forcing the Council into explicitly stating the contrary should it so desire. The judgment contains no actual statement from the ECJ that the Security Council has obliged States to act in a manner that violates human or fundamental rights.

Another speaker reaffirmed this point, arguing that the ECJ is thus careful not to state that there is a direct conflict between the requirements of international law and those of the European human rights regime in this case. He suggested that the UK House of Lords reached a similar decision in its judgment in the Al Jedda Case, in which it had found that a Security Council authorization to UK and US forces in Iraq to detain suspects without trial “where necessary for imperative reasons of security” did not entirely override Article 5(1) of the European Convention on Human Rights (on the right to liberty and protection against arbitrary detention), but rather merely modified or qualified its application. (This speaker also suggested that certain paragraphs of the judgment could be read as implying a doctrine of ultra vires applicable to Security Council actions; others, however, disagreed, arguing that there was little in the judgment to support such a controversial position, and a number of passages that worked against it).

The next speaker read from an old English case, Cooper v. The Board of Works for the Wandsworth District (1893), in which the Court held that “although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”. The Court recalled an even older case, in which it was pointed out that even God had given Adam a hearing before casting him out of the Garden of Eden (“Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?”). Again, then, this seemed to provide further support for the idea, already suggested by a number of commentators, that an intention to grant a hearing to the accused should be attributed to any legislator, unless the latter explicitly states to the contrary.

These “hermeneutic” solutions fit well into the older categories of national and international law, and there is little need or possibility to re-conceive of them in GAL terms. However, they ultimately only postpone, rather than solve, the issue of conflict, particularly should the Security Council move on to institute a procedure that the ECJ still finds insufficient…

The last speaker, referring to the likelihood that the Kadi judgment would lead to the creation of some kind of hearings and review mechanism within the Sanctions Committee, argued that what we are witnessing is not (or not only) the birth of the European State, but also the Europeanization of the UN system. In further support of this, he referred to Advocate General Maduro’s suggestion, in his Opinion in the Kadi case and which displayed, in some respects at least, the same logic as that relied on by the Court, that all Member States are compelled, in all of their activities, to act in accordance with the basic principles of European law. “As Members of the United Nations, the Member States, and particularly – in the context of the present case – those belonging to the Security Council, have to act in such a way as to prevent, as far as possible, the adoption of decisions by organs of the United Nations that are liable to enter into conflict with the core principles of the Community legal order. The Member States themselves, therefore, carry a responsibility to minimise the risk of conflicts between the Community legal order and international law” (see para. 32 of the Opinion). This could, if it is an accurate reflection of EU law, have huge implications for the future direction of the UN.

As a number of others pointed out, the ECJ itself is absolutely silent on this proposition; and given its thoroughly radical potential (as I noted in my post on the Advocate General’s opinion), it would seem excessive to interpret this silence as anything other than rejection on the part of the Court of this suggested doctrine. In remaining silent, however, it has left open the possibility of a challenge along these lines at some point in the future. However, such would, one suspects, be the proverbial “long shot”…

IBM demands GAL at the ISO: Fallout from the OOXML affair

I posted a number of months ago, in April of this year, on the controversy that arose within the International Organization for Standardization around its fast-track procedure for approving Microsoft's Office Open XML (OOXML) standard, and in particular over whether that company had been able to exert undue influence over the procedures of ISO. From today's New York Times, we learn that IBM - obviously one of Microsoft's biggest competitors - has announced (as a direct result of the OOXML affair) that it will "[r]eview and take necessary actions concerning its membership in standards organizations", in terms of its new corporate policy aimed at ensuring that technical standards are adopted as the result of a transparent and fair process.

The press release, entitled "To Encourage Improved Tech Standards Quality and Transparency, and Promote Equal Participation of Growth Markets in Globally Integrated Economy", makes plain the relevance of this move to the broader field of global administrative law:

The tenets of IBM's new policy are to:

- Begin or end participation in standards bodies based on the quality and openness of their processes, membership rules, and intellectual property policies.
- Encourage emerging and developed economies to both adopt open global standards and to participate in the creation of those standards.
- Advance governance rules within standards bodies that ensure technology decisions, votes, and dispute resolutions are made fairly by independent participants, protected from undue influence.
- Collaborate with standards bodies and developer communities to ensure that open software interoperability standards are freely available and implementable.
- Help drive the creation of clear, simple and consistent intellectual property policies for standards organizations, thereby enabling standards developers and implementers to make informed technical and business decisions.

It will be interesting to see how this plays out. On one hand, it seems clear that ISO already views its commitment to transparency and due process as one of the fundamental principles of the ISO system - see, for example, the Code of Ethics of the Organization, which provides, inter alia, that ISO Members are committed to "ensuring fair and responsive application of the principles of due process, transparency, openness, impartiality and voluntary nature of standardization". On the other hand, the controversy over the OOXML standard suggests that this might not be functioning flawlessly; and IBM's move is a timely reminder of how powerful private actors - including multinational corporations - can themselves be major players in increasing demand for the establishment of effective administrative law mechanisms within the institutions of global governance.

Monday, September 22, 2008

Kadi, the ECJ and the UN Security Council: A watershed moment for GAL?

For an account of the developments since this case was published, see here; and see here for a transcript of an NYU Colloquium on the case.

The long-awaited judgment by the ECJ in the Kadi case was handed down on the 3rd of September 2008. As we had hoped, the Court overruled the judgment of the Court of First Instance, holding that the EU Regulation implementing the Security Council Resolution that had placed Kadi on the list whose funds were to be frozen on suspicion of financing terrorism did not sufficiently respect certain fundamental rights of the appellant, namely his right to be heard, his right to property, and his right to an effective legal remedy. (In fact, a significant proportion of the judgment is concerned with other questions of EU law, and in particular the legal basis for the adoption of the contested Regulation. The ECJ did make different findings from the CFI in this regard, but arrived at the same results; in any event, this aspect of the judgment is of no real relevance from a global administrative law perspective).

In some respects at least, then, the ECJ largely followed the advice given by Advocate General Maduro in his Opinion on the case (and on which I blogged earlier here) – at least inasmuch as it held that the contested Regulation should be struck down on the basis of its failure to respect fundamental rights, despite the fact that it was intended to give effect to a Security Council Resolution that all EU Member States were obliged to implement.

In deciding that Community actions, regardless of whether taken in execution of an international obligation, must respect fundamental rights, the Court followed this basic argumentative path:

1) The Community is based on the rule of law, and neither Community Members and Institutions can avoid review of their actions for compliance with the “basic constitutional charter”, the EC Treaty (para. 281) – and the “general principles of law” of the charter include fundamental human rights (para. 283);
2) The allocation of powers or the autonomy of the European legal order, established by the Treaties, cannot be altered by any international agreement;
3) European case law has established that “measures incompatible with respect for human rights are not acceptable in the Community (para. 284);
4) Therefore, “…the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”, including respect for human rights (para. 285).
5) Any judgment by Community courts that a Community implementing measure did not respect a “higher rule of law in the Community legal order” speaks only to the Community measure, and does not affect the primacy of the international measure under international law.

(It is worth noting here also that the Court rejected the possibility, kept alive by the CFI, that Security Council action could itself be reviewed, even if only in terms of compliance with norms of jus cogens, holding instead that its jurisdiction is entirely limited to review of Community acts - para. 287).

So far, so Maduro: as I noted in my earlier post, the Advocate General’s opinion had in effect proposed that the European legal order should be treated in the same way as a dualistic domestic order; and that thus, regardless of the international liability of the EU or any of its Member States, the ECJ was bound to apply only Community law to Community measures (and thus effectively adopting the same stance towards the Security Council as had the German Constitutional Court towards the ECJ in the famous Solange case). Perhaps the most striking aspect of the ECJ’s decision is that, the above reasoning notwithstanding, they chose not to do so.

Instead, the Court went on to consider in detail the “the relationship between the international legal order under the United Nations and the Community legal order” (para. 290), attaching special importance to the role of the Security Council in maintaining international peace and security (para. 294), and engaging in legal analysis that allowed it to reach two conclusions that seem unnecessary in the light of its earlier assertions – unnecessary, that is, from a strictly dualist perspective at least. Firstly, the Court concluded that

…it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations (para. 299).

Secondly, and perhaps more boldly, the Court also considered the recent ECtHR jurisprudence, such as the controversial Behrami decision, and found that

In the instant case it must be declared that the contested regulation cannot be considered to be an act directly attributable to the United Nations as an action of one of its subsidiary organs created under Chapter VII of the Charter of the United Nations or an action falling within the exercise of powers lawfully delegated by the Security Council pursuant to that chapter (para. 314).

(This finding is, of course, all the more striking considering what the ECtHR had considered directly attributable to the UN in Behrami...)

The ECJ thus decided on the basis of the “constitutional guarantees” enshrined in the European legal order, and in particular the right to be heard, the right to an effective legal remedy, and the right to property, that the contested Regulation should be struck down. Crucially, however, it did this on the basis of an analysis of a mixture of EU, other European regional and public international law.

The Court went on to accept the view that greater deference may be shown to the implementing Regulation should the Security Council take steps to address the rights violations in its listing procedure before the Sanctions Committee; it rejected out of hand, however, the suggestion that the recently improved “re-examination procedure” was sufficient to bring such considerations into play (para. 318-322). The Court specified its concerns in terms that are of striking relevance for the global administrative law project more generally:

... although it is now open to any person or entity to approach the Sanctions Committee directly, submitting a request to be removed from the summary list at what is called the ‘focal’ point, the fact remains that the procedure before that Committee is still in essence diplomatic and intergovernmental, the persons or entities concerned having no real opportunity of asserting their rights and that committee taking its decisions by consensus, each of its members having a right of veto.

The Guidelines of the Sanctions Committee, as last amended on 12 February 2007, make it plain that an applicant submitting a request for removal from the list may in no way assert his rights himself during the procedure before the Sanctions Committee or be represented for that purpose, the Government of his State of residence or of citizenship alone having the right to submit observations on that request.

Moreover, those Guidelines do not require the Sanctions Committee to communicate to the applicant the reasons and evidence justifying his appearance in the summary list or to give him access, even restricted, to that information. Last, if that Committee rejects the request for removal from the list, it is under no obligation to give reasons. (paras. 323-325).

The ECJ then considered in a little more detail the “rights of defence” within the European context, the right to be heard and the right to effective judicial review, holding that they were “patently not respected” in the formulation of the Community implementing Regulation (para. 334). They acknowledged the need for balancing security concerns with the rights of the individuals involved (para. 344), and in particular rejected the idea that the relevant evidence should have been communicated to the suspects before the Regulation was effected, as the element of surprise could be paramount (paras. 340-342). However, this did not mean that all terrorism or security-related regulations fell effectively outwith the scope of judicial review. On the contrary,

Because the Council neither communicated to the appellants the evidence used against them to justify the restrictive measures imposed on them nor afforded them the right to be informed of that evidence within a reasonable period after those measures were enacted, the appellants were not in a position to make their point of view in that respect known to advantage. Therefore, the appellants’ rights of defence, in particular the right to be heard, were not respected.

In addition, given the failure to inform them of the evidence adduced against them and having regard to the relationship, referred to in paragraphs 336 and 337 above, between the rights of the defence and the right to an effective legal remedy, the appellants were also unable to defend their rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that their right to an effective legal remedy has also been infringed.

The Court cannot, therefore, do other than find that it is not able to undertake the review of the lawfulness of the contested regulation in so far as it concerns the appellants, with the result that it must be held that, for that reason too, the fundamental right to an effective legal remedy which they enjoy has not, in the circumstances, been observed (paras. 348-351).

(It’s worth noting that this last finding might be regarded as quite a bold move on the part of the Court: they are, in effect, claiming the right to review the substantive evidence against each listed individual if they are to find that the right to an effective legal remedy has been discharged. This can be contrasted to the position adopted by the UK House of Lords in the Al Jedda case – see my previous post here. See also the brief account of the panel discussion on the Kadi case held at NYU last Wednesday (17/9), in the next post, for a proposal on how this might be circumvented at the Security Council level).

The Court also found that, although security issues could give rise to legitimate restrictions on the right to property, it must “determine whether a fair balance has been struck between the demands of the public interest and the interest of the individuals” in applying its proportionality test (para. 360). It then went on to find that, as Kadi had no chance to put his case to the relevant authorities, the contested Regulation “constitutes an unjustified restriction of his right to property” (para. 370).

This case, as I speculated previously, may thus well turn out to be one of the single most significant advances that the emerging field of global administrative law has yet witnessed. The ECJ has insisted on the respect for certain human rights-based administrative law standards even in that most unlikely of settings: the Security Council’s fight against global terrorism. Of great interest now will be how the Security Council itself reacts: and in particular, if it will seek to correct these violations in its listing procedure before the Sanctions Committee. The smart bet, I think, is that it will. Watch this space…


... for the lack of action on here over the last couple of months. I had hoped to be able to post at least a little while on summer break - the proverbial triumph of hope over experience - and, inevitably, it didn't turn out that way. Things will be moving again from here on in, beginning with a couple of posts on the hugely important Kadi judgment handed down on the 3rd of September (again, predictably enough, right in the middle of my break...). Better late than never.