Spot the GAL...

GAL is everywhere; or at least, the demand for it is. From the fantasy football world of the UEFA Champions League (via the Guardian):

The Arsenal striker Eduardo has been banned for two Champions League matches by Uefa having been found guilty of diving during the second leg of their play-off against Celtic.

Uefa's disciplinary panel made the ruling after a teleconference. The panel said the Brazil-born Croatia forward deceived the referee when he was awarded a penalty after a challenge by Artur Boruc, the Celtic goalkeeper, last Wednesday.

Arsenal this evening condemned the "arbitrary" nature of Uefa's decision, but have not yet revealed whether they will contest the ban. A statement on their website read: "The club is disappointed with Uefa's decision to suspend Eduardo. We have been informed that we will receive a "reasoned decision" from Uefa by Thursday of this week. Once we receive Uefa's rationale, we will make a decision on the next steps.

"We have been deeply frustrated by the perfunctory and apparently arbitrary process that Uefa has followed in this instance. We believe it is imperative that Uefa's explanation for its decision provides clear and comprehensive standards that will be consistently enforced. It is also critical that Uefa provides specific details of the processes it plans to adopt in reviewing all games under its jurisdiction."

Anyone interested in the actual incident that has caused this controversy can see it here. Seems a pretty clear cut case of "simulation" (the preferred euphamism of the Italians for this particular form of cheating); Arsenal's point, however - which seems to be that given the prevalence of this sort of thing in the sport, UEFA are going to have a busy time in the future in their efforts to adopt a consistent and coherent line on this - is both true and interesting...

Post-Kadi progress within the EU?

The second post that I wanted to flag today from over at the EJIL:Talk! blog is an excellent round-up and analysis of post-Kadi developments by Devika Howell: 'A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi'. The author discusses Kadi's new appeal, the Kadi case as precedent in the Othman judgment, and the proposal by the European Commission, on the 22nd of April 2009, for a new Council regulation.

Howell is more positive on the transformative potential last of these than I am at present. On one hand, she is correct in noting that

The proposed regulation provides for ‘a listing procedure ensuring that the fundamental rights of defence and in particular the right to be heard are respected’ in the case of all individuals and entities listed by the UN. The proposed regulation would replace the current system of automatic listing with a duty upon the Commission to consider the appropriateness of the listing independently. It also provides for a method by which to consider classified information of the UN and other member states. Due in large part to the failure of the Security Council to provide satisfactory due process protections, this proposed measure threatens to take decision-making about sanctions out of the hands of the Security Council and into the hands of a regional body.

On the other hand, however, as I have already blogged previously, the proposed regulation is little if anything more than a general formalisation of the - fairly paltry - concessions made to the individuals concerned in the light of the Kadi judgment: a short statement of reasons, an opportunity to make representations, and a promise to take these into consideration. As before, the really interesting question is whether or not the ECJ will view these as significant enough changes to fulfil human rights obligations; as it stands, I feel it is not a massively important adjustment.

GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

Abdelrazik v. Canadian Minister of Foreign Affairs: A Challenge to the Security Council's 1267 Regime?

The first of two quick posts today to flag some interesting and (relatively) recent posts (yeah, I've been on holiday...) over at EJIL:Talk!, both dealing in some way with the Kadi judgment and subsequent reactions to the UN' s sanctions listing mechanism. The first post that I want to discuss briefly is by Antonios Tzanakopoulos, and discusses a recent judgment from a Canadian Federal Court - Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada - which involved a claim by a Canadian/Sudanese citizen, trapped at the Canadian Embassy in Sudan, that Canada had violated his Charter right to return to Canadian soil. The interesting part for our purposes here is that Abdelrazik has been listed by the Security Council's 1267 Committee, and as such – Canada argued – he could not be allowed to return to Canada without violating the travel ban.

Tzanakopoulos' post, entitled 'An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation', gives a full account of the factual background to the case, and the legal arguments raised. In my view, however, he reads too much into it in suggesting that this is in any real sense a challenge to the Security Council's sanctions regime (although there is some dicta that makes the judge's distaste for that regime plain), or that it somehow 'goes further' than did the ECJ in Kadi. Two quick points in this regard.

Firstly, Tzanakopoulos argues that 'In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law'. Certainly, the judge did state openly, after listing the now/familiar problems with the UN system, that 'I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights (para. 51), and that 'is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion' (para. 54). These strong statements, however, and the many others like them, are all in the 'legal background' section of the judgment; I could find little to suggest that they were more than obiter dicta, forming part of the actual substantive basis of the judgment other than a passage that notes that 'in light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court' – para 53). In that sense, this judgment is nothing like as important an indictment of the procedural deficiencies of the listing mechanism as was Kadi.

Tzanakopoulos seems to acknowledge this, arguing instead that these statements indicate the 'underlying rationale' of the judgment: the 'international ilegality of the 1267 regime'. Again, however, I find this to be overreaching somewhat. While there is no doubt of the judge's disdain for the sanctions regime, it is equally clear that he was at pains to point out that compelling Canada to return Abdelrazik would not in fact violate the Security Council Resolutions in question. Far from mounting a legal challenge to the 1267 regime then, the judge in effect reaffirmed it (even if through gritted teeth), and simply dismissed a pretty flimsy Canadian attempt to use the travel ban to circumvent its domestic constitutional obligations.

Canada had argued that it was the Security Council listing, not Canada itself, that had prevented Abdelrazik's return, as Canada was bound by the Security Council Resolutions in question. In response to this, the judge simply noted that

The UN 1267 travel ban provides that States shall “prevent the entry into or transit through their territories” of listed individuals, “provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified.” (para. 121)

In response to Canada's argument that to get him back onto Canadian soil from Sudan he would have to transit through the airspace ('territory') of a number of other States, thus violating the travel ban, the judge first noted that such an interpretation of the Resolution ran contrary to that previously expressed by Canada itself; and that, in any event,

...the respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution. (para. 127).

As I said, this is more a reaffirmation of the primacy of the Security Council resolutions – procedural warts and all – than any sort of challenge to them. Moreover, it is achieved not through any interpretative gymnastics, but rather on an entirelyreasonable and persuasive reading of the text in question. An interesting case then, and Tzanakopoulos' post is worth reading in full; but Kadi it ain't.

EU Terrorist Listing in a post-Kadi world: Othman v. Council

A quick post to update on some more post-Kadi developments within the European Union (hat tip to Amaury Reyes for passing this one on): on June 11th this year, the Court of First Instance handed down its judgment in the case of Omar Mohammad Othman v. Council and Commission. The case was so similar in legal and factual context to that of Kadi that it had twice been suspended pending judgment in the later case, first at first instance and then on appeal before the ECJ.

The Council and Commission (and the UK as intervener) basically made the same arguments as they had in Kadi. With basically the same result:

83. With regard, first, to the procedure leading to the adoption of the contested regulation, it must be pointed out that the Council at no time informed the applicant of the evidence adduced against him…

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

86. In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship… between rights of defence and the right to an effective legal remedy,the applicant was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed.

89. It must, therefore, be held that the contested regulation, in so far as it concerns the applicant, was adopted without any guarantee being given as to the communication of the inculpatory evidence against him or as to his being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the applicant’s rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed.

The Court also noted that the infringement had not been remedied by the time of the judgment: the Council noted that they had made (some) efforts to do so (i.e. giving him some reasons and inviting his comments), but this had not yet been effected, and nor were they able to state when it would be. Therefore, the Court held that it had no choice but to annul the contested regulation as it applied to the applicant.

Basically the same result as Kadi; but not quite. The Council, Commission and the UK had argued strongly that, even if the Court should find in this manner and annul the regulation, it should, as the ECJ had done, maintain its effects for a period of time to allow for violations to be corrected, as “annulment with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that regulation and which the Community is required to implement” (para. 79).

This, however, the Court declined to do:

95. In the circumstances of the case, there are no grounds for allowing the request made at the hearing by the Council and the interveners seeking to have the effects of the contested regulation maintained for a short period pursuant to Article 231 EC.

96. The period already elapsed since the delivery of the judgment in Kadi on appeal, on 3 September 2008, far exceeds the maximum period of three months from the date of delivery of that judgment considered reasonable by the Court of Justice in order to allow the Council to remedy the infringements found in that case, while taking account of the considerable impact of the restrictive measures concerned on the rights and freedoms of the persons concerned (see, to that effect, Kadi on appeal, paragraphs 375 and 376).

97 Although that period was determined by reference only to the case of the two persons involved in the cases giving rise to Kadi on appeal, namely, Mr Kadi and the Al Barakaat International Foundation, the fact remains that the Council could not have been unaware that the applicant’s situation, which is in all respects comparable (see paragraph 82 above), necessarily called for the same response on its part. Furthermore, the institutions that are parties to these proceedings have stated that they have taken steps, in particular by approaching the Sanctions Committee, immediately after the delivery of that judgment, for the purpose of making the Community fund-freezing procedures consistent with the principles laid down in that judgment (see paragraphs 72 and 73 above).

(Although the Court also noted that, in any event, Community procedures meant that the Council would have a period of some two months from the date of notification of the judgment in which to pass a new restrictive measure on the applicant).

No real surprises here. However, the Court decided not to confront – in any way – what is surely the most important issue at stake here in broader terms: that of whether the “steps taken” by the Council since Kadi are sufficient to satisfy the rights claims of listed individuals. I blogged on these earlier here; but here they are again, summarised nicely by the Court (para. 71):

In its observations… the Council acknowledged that, following Kadi on appeal, it was necessary to provide the applicant with a statement of reasons, to allow him an opportunity to comment on it and to take those comments into consideration before adopting a new decision to freeze funds affecting him.

Necessary, yes; but sufficient? I have my doubts. Presumably, however, the CFI is going to leave that question to the ECJ in the next installment of the Kadi saga.

More on the ski-jumping...

I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.

Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.

The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.

As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.

(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)

The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:

53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.

54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.

56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.

61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.

62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.

63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.

Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)

The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.

113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.

It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:

121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.

123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.

124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.

132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.

An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...

Some thought on E-GAL, Edinburgh 2009

Next things next, a brief account and a few reflections on the E-GAL event in Edinburgh on Tuesday the 17th of June. It was, as I suspected it would be, a huge pleasure to be involved in this event, not least of all because it was the first time since I returned to Edinburgh University in an official(ish) capacity since graduating almost ten years ago. More importantly, I think I am correct in saying that this is the first global administrative law event in whose organization neither NYU nor the IRPA in Rome played any role whatsoever. GAL has, of course, had to date some fairly serious institutional backing from some fairly serious institutions, and there can be no doubt that this has played a major role in its increasing prominence; however, if it is really to establish itself as a genuine field of research and study, the ideas and framework it proposes must stand or fall on their own, entirely independently of its initial institutional backers. Events such as these are a crucial next step in testing whether this is in fact possible.

And if this event is anything to go by, it is indeed possible. The organizers (Kasez Lowe, Pierre Harcourt and Danielle Rached) did a first class job of selecting the abstracts for presentation, and of inviting a good mix of those with some experience of the GAL field on one hand and those largely new to it on the other. Amongst the presentations, for example, were (excellent) contributions by Matthias Goldmann and Tiago Fidalgo de Freitas, both of whom have been involved in the GAL project for longer than I have; and, amongst professorial contributors, having the continued, challenging input of Neil Walker (who, incidentally, has a provocative new paper on postnational constitutionalism up on SSRN) was, as always, a real plus; unfortunately, Professor Janet MacLean from Dundee – another who was contributing to the GAL literature prior to my own involvement – had to pull out at the last minute due to illness. Hope she got well soon.

Many of the contributors, however, had no prior knowledge of the GAL project, and were weighing its usefulness as a frame of analysis within their own fields. It is here that GAL – if it is to flourish – must provide real traction. The various contributions provided, in my view at least, real grounds for optimism in this regard. It was also of real interest to have the input of Professor Alan Miller, Chair of the Scottish Commission for Human Rights; he sounded both interested in and cautious about the potential for GAL to drive progressive developments in his own field.

The abstracts of all of the papers are available here; for ease of reference, here is a list of the titles of presentations given:

Unpacking the "Concept" of "Global Administrative Law": Some Reflections on Form, Substance and Pedigree by Nuhaila Carmouche, European University Institute.

The Challenge of Global Governance to the Concept of International Law: Refurbishing Legal Positivism by Matthias Goldmann, Max Planck Institute.

The Added Value of Global Administrative Law by Tiago Fidalgo de Freitas, European University Institute.

The Dilemma of the People and Pluralist Approach in the Global Perspective by Younsik Kim, University of Edinburgh.

GAL, Investment Law and Equality by Jarrod Hepburn, Oxford University.

The Protection of Cultural Heritage: Between the European Legal Order and the Global One by Carmen Vitale, University of Bologna.

Good Governance and Electric Sector Reform in Nigeria: A Critique from a Human Rights Perspective by Oche Onazi, University of Edinburgh.

Weak Judicial Review: Lessons for Global Administrative Law? by Aruna Sathanapally, Oxford University.

If I was to make one minor critical comment about the event, it was that these abstracts, and not fully fledged papers, were all that was circulated in advance; I always find it difficult, under these circumstances, to engage fully and in detail with the arguments being made – particularly when they are as advanced and as complex as they were here – and that the actual “conferring” suffers as a result. In the event, the quality of the papers and the presentations went some considerable distance to offsetting this problem; however, there is to my mind ultimately no substitute for the possibility to read the substance of the arguments to be made in detail in advance.

A quick recap of what seemed to me some of the major points, in conclusion. Professor Alan Boyle (who I think could fairly be described as a traditional-European-international-lawyer-and-GAL-sceptic) raised the issue of what he called GAL’s “lack of focus”, and suggested that this was one of the major obstacles to it achieving more widespread adherence. By this, I think he intended the fact – to which I alluded in my previous post on Viterbo – that GAL can sometimes appear (indeed, be presented) as all things to all people; as a simple catch-all under which all global governance can be subsumed, and which consequently lacks in analytical clarity and bite. There is something of a fine line that must be tread in this regard; one one hand, I can but agree: those writing in the field of GAL must have a clear idea of what the “added value” of this framework is, and not allow it simply to become a placeholder for “global governance” (Tiago’s paper did examine precisely this issue of added value, but did so with reference to the global constitutionalist and international public authority projects; it did not discuss the other side / the added value of GAL as opposed to simply “governance”). On the other hand, there has been a real effort within the GAL project – and rightly so in my view – not to be too proprietorial about the definitions of the field, in order that it might be informed by as many different perspectives as there are national administrative laws. This balance has not yet been ideally struck.

Another theme that emerged from discussions, related to the above, was the difference between the “US” and the “European” conceptions of global administrative law (as an aside, an interesting point about the sociology of GAL: the project seems to be mostly popular with international lawyers in the US, and with administrative lawyers in Europe, where most international lawyers remain skeptical. This can be seen even in the two major institutional backers of the GAL project: the Institute for International Law and Justice at NYU and the Institute for Research on Public Administration in Rome). A useful distinction was introduced in a working paper by David Dyzenhaus to encapsulate this: administrative law can, he argued, be either “constitutive” (i.e. the actual rules establishing administrative bodies, delineating powers within them, etc.), “procedural” (i.e. the rules by which these bodies operate) or “substantive” (i.e. the norms, regulations and decisions that they actually produce). The US vision of GAL is limited fairly strictly to the second, procedural form (mirroring largely the limitations on the discipline of administrative law within the US academy); the European version, on the other hand, explicitly includes at least the first two elements, and often also the third (in Sabino Cassese’s work, for example, there is often a degree of slippage between the terms “global administrative law” and simply “global law” – indeed, I on occasion have the impression that for him these two terms are largely interchangeable). The extent to which these need to be reconciled before GAL can become a discrete “field” of study is, of course, an open question.

A third theme, and one that I addressed in my own paper, and was picked up by Tiago and Neil Walker, was that of the relationship between GAL and “global” constitutionalism. Neil insisted – I think probably correctly – that a legitimate GAL can ultimately not afford to ignore the issue of the “constitutive moment” of the bodies that it seeks to regulate; and – again, probably correctly – that there is no need to think of GAL and constitutionalism as in competition (I would agree entirely on this point, despite the manner in which I sometimes present the issues: I would, however, insist that GAL and global constitutionalism are different and not necessarily complementary projects, and that the image of community ultimately implied in the latter need not inform the former). A general level of agreement was, I think, reached on the idea that while any future global constitutionalism would need a global administrative law, the inverse did not hold; and that there was no need to view GAL as in any way opposed to the deployment of constitutional discourse in particular postnational regimes.

Other key themes touched upon in the presentations and in the discussion was that of the concept of “law” that informs GAL (Nuhaile Carmouche did a good job of critically mapping the various contenders, while Matthias made a strong argument in favour of using a “refurbished” notion of legal positivism); the various ways in which GAL might – and might not – contribute to the increasing legitimacy of global regulatory governance; and of the need for GAL to actually result in tangible improvements in concrete cases if practitioners are going to take it at all seriously (Alan Miller’s contribution was particularly illuminating on this point).

Unfortunately, memory dictates that I will have to stop at that point, which even I find entirely unsatisfactory given the amount of rich discussion that this brief recollection has omitted – particularly in terms of the more concrete papers (relating to investment arbitration, cultural heritage, etc; Jared Hepburn, for example, made an intriguing argument as to the interaction between the global and domestic levels in the interpretation of “fair and equitable treatment” in investment disputes). In any event, congratulations to the organisers on putting together a first-rate symposium; and I very much hope to get a chance to read the assorted presentations in more detail in the not-too-distant future. Again, if anyone present wants to add to or correct this account, please do leave a comment below!

Some brief reflections on Viterbo V

I am moving house (again) this week, having not long returned from my GAL European Tour (well, Viterbo and Edinburgh – I certainly can’t complain), and so do not have a huge amount of time. I wanted, however, to post some reflections on the two events, while they are still (relatively) fresh in my mind. I’ll begin with Viterbo in this post, and move on to the Edinburgh meeting in the next. I won’t go ionto huge detail, however; in the hope that someone will produce a report in the not-too-distant future.

First things first: it was, as always, a huge pleasure to be present at the Viterbo event. The organisers – led, as usual, by Professors Sabino Cassese, Giulio Vesperini and Doctor Martina Conticelli – by now have things down to a fine art form. A selection of photos from the conference is available here. I know of no other event that manages to establish and maintain such a sense of community amongst ist participants; nor, for that matter, that succeeds in attracting people back year after year, even if they are not formally participating. The obvious attractions of Italy in June only account for a small part of the reason for this. I certainly hope to attend next year; employer permitting, of course.

On to the papers themselves, which are available here: all were to some degree preliminary (some, of course, more than others); all, however, seemed to be very promising, touching on some important – and often understudied – themes, under the broad heading of “Legality Review in the Global Administrative Space”:

Review Bodies in Multilateral Environmental Agreements. Competences, Coherence, Coordination
Dionysia-Theodora Avgerinopoulou

Implications Of Transparency In The International Civil Aviation Organization’s Universal Safety Oversight Audit Programme
Jimena Blumenkron

Proactive Strategies in the Global Legality Review
Gianluca Sgueo

Deference in U.S. Domestic Courts and Implications for Legality Review
Catherine Sweetser

Beyond Multilateralism and Regionalism. Analysis of the Review Process of Global Trade Dispute Resolution
Blake C.Y. Wang

What Makes Networks Effective: Evidence from the SEC
David Zaring

As will be immediately clear from the titles of the pieces, all of the authors used a very broad understanding of what constitutes “legality review” in the so-called “global administrative space” (as an aside, this latter term, I confess, causes me some discomfort; although it was postulated by Kingsbury, Krisch and Stewart in the Project framing paper, I have yet to see much beyond postulation in support of its existence. To me it implies a much more unitary space than as yet exists). This is, to my mind at least, at once an indication of both the strength (in terms of its institutional and forms of activity coverage) and weakness (in terms of its frequent lack of hard legality) of the GAL framework more generally.

The papers, for the most part, do pretty much what they say on the tin: Dionysia Avgerinopoulou gives a useful, if basic, overview of the wealth of different review bodies established by international environmental treaties, and the different roles they play; Jimena Blumenkron has an in-depth analysis of the transparency rules relating to the production of Standards and Recommended Practices by the International Civil Aviation Organization; Gianluca Sgeuo asks the intriguing question of why an increasing number of global review bodies are insisting upon “proactive” (i.e. programmatic), rather than reactive, sanctions-based solutions to breaches of legality; Cathy Sweetser looks at how different doctrines of deference by courst to administrative decisions in US law might be applied in the context of global institutions, and what the effects of this might be; Blake Wang, who unfortunately couldn’t attend the meeting due to illness (thankfully, rumours of “swine flu” proved to be premature…), looks at relations between the WTO and regional FTAs, asking whether we might envuisage the creation of a Court of International Trade; and finally David Zaring, a long-time contributor to the GAL Project, in his paper looks to propose an answer to the important issue of why some regulatory networks “work” (in his terms, why some are able to produce standards or regulation with real applicability and “bite”) and why others fail to reach this standard.

If you can only read two, and have no specific interest in any of the particular organisations or regimes focused upon, then I would recommend the pieces by Zaring and Sgeuo (the English in the latter is a little clunky, but worth the effort. And the fact that it is clunky is largely my fault, as I didn’t have time to make good on a promise to edit it…). Both tackle relatively new issues within GAL, general in scope, and make a number of interesting propositions with regard to each; as yet, I’d say, more provocative than persuasive, but that’s very much the point of events such as these.

The rest of the Friday session was largely taken up with general and specific comments to the authors of the papers, and with their responses thereto. There were some interesting exchanges, but as I didn’t take particularly copious notes, we will have to wait for the (hopefully) forthcoming report to give a fuller account of these. Perhaps inevitably, a number of comments focused on the extent to which the subject-matter of the papers could be accurately characterised as “legality” review. One comment in particular that I wanted to flag, however, was that made by Mario Savino in his role as discussant of three of the papers: he went beyond challenging the “legal” nature of the reviews in question, and raised directly a broader, but related issue: how does global administrative law differ from global governance? Specifically, what is the “added value” of adopting a public law approach to these issues? Savino’s concern was that this particularly public law element was missing from many of the papers; my view is that it is missing from many of the articles and discussions of global administrative law more generally, and is perhaps more than any other factor responsible for the feeling – very widespread amongst many academics – that GAL is too lacking in focus, spread to thin, to be an analytically useful framework or tool.

The next and final session, which took place on the Saturday morning, was devoted to short talks by Professors Armin von Bogdandy, Richard Stewart and Eyal Benventisti, before discussion, led by Professor Sabino Cassese, moved on to the date and substance of next year’s event. As would be expected, all contributions here were thoughtful and provocative: none more so than the remarks by von Bogdandy, who spoke on “international courts in a discourse theoretical perspective”. In some ways, this can be seen as a continuation of the impressive Max Planck project on international public authorities that he led, and was successfully completed last year; as always with discourse theory, however, if it is to be at all persuasive the audience is required to have swallowed a fairly large chunk of Habermas prior to listening; those who have doubts about the Habermasian approach find those transferred to whoever relies upon it. More concretely, although I found myself in broad agreement with much of what Professor von Bogdandy had to say, and in particular on the “perils” of applying constitutionalist rhetoric to the global sphere, I felt that his talk overplaed the importance of democratic forms of legitimacy in global governance (that is, overplayed not just how important they are, but how important they can and should be). As I have argued elsewhere, democracy is in my view but one of many justifiable bases upon which legitimate global governance could rest; and, given the difficulty of making international institutions genuinely accountable to hundreds of different demoi simultaneously, the almost complete absence of any viable post-state demos (excluding perhaps the EU), and the certain absence of anything like a truly global demos, it is not now and nor should it be a particularly important one. (This is an argument that I developed at greater length in the paper that I gave at Edinburgh – I’m currently toying with the idea of putting it on SSRN, will link to it if I decide to).

Unusually, neither the date nor the topic for next year’s seminar was definitively fixed: sometime in mid-June (either the 11-12 or the 18-19) 2010 seems almost certain; potential topics cover a much wider range, so there isn’t a huge amount of point in speculating. I will post on this further when I hear that the decision has been taken.

Lastly, if I were to have any quibble at all with the manner in which this part of the conference was structured, it would be that there was perhaps slightly insufficient time devoted to the discussion of the individual papers: these were presented by the discussants in two back-to-back sessions, then there was a break, and then a general discussion on all six contributions. Only at the very end were the authors given a chance to respond, and this meant that formal opportunities for actually “conferring” were kept to a minimum (although this, of course, was largely compensated for by the informal opportunities that came with dinner and drinks afterwards). My own view is that perhaps another session could have been added; that discussion could have focused on each of the sets of three papers individually, and allowed for more back-and-forth between authors and audience. The conference itself – running from 3pm to 6.30 on Friday, and from 9.30am to 1pm on Saturday – was anything but overlong, and could perhaps have benefitted from an extra hour or two. Then again, perhaps it’s no bad thing to leave us wanting more…

In, then, not-quite-so-short-as-I-had-intended, it was, as anticipated, an extremely worthwhile event; I’m looking forward to reading future iterations of the papers as they develop over the coming months. If anyone wants to add to - or, indeed, correct - this account of the event, please feel free to leave a comment below!

Viterbo V papers up...

The 5th annual Global Administrative Law seminar will take place in Viterbo, as always, on Friday and Saturday of this week (11-12 June). I'm fortunate enough to be going this year - it always is a fantastic event, attended by a great mix of younger and more experienced scholars (many of whom continue the day's discussions in the less formal setting of one of the city's wine bars in the evening, showing an impressive commitment to what we might call the "bottoms-up" approach to GAL...). And, of course, mid-June is a not-entirely-unpleasant time to visit Italy...

This year's topic is "Legality Review in the Global Administrative Space", and most of the papers are already available here.

I will post up some reflections on this - and on the GAL event in Edinburgh that immediately follows it - upon my return from the latter.

EJIL:Talk! discussion on the role of courts in the international system

A quick post to flag a discussion coming next week over at EJIL:Talk! which will undoubtedly contain much of real interest from a GAL perspective:

Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the current anniversary issue of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “National Courts, Domestic Democracy, and the Evolution of International Law“ and Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”. Both are available here.

Professors Benvenisti and Downs in particular have written directly on GAL issues (see here for some of Benvenisti's solo work on the development of GAL in international institutions, and here and here for work by him and Downs together on fragmentation and on checks and balances in global governance respectively). Definitely worth both reading the articles in question, and keeping an eye on what is sure to be an interesting exchange at EJIL:Talk!.

A little more still on the fallout from Kadi

Thanks to Mathias Vermeulen over at the excellent blog The Lift, we have the (belated) news of the steps proposed by the European Commission to address, in general terms, the concerns regarding the terrorist listing mechanism expressed by the ECJ in the Kadi case. These are contained in COM(2009) 187 final, and are in essence simply a general expression of the particular measures relating to Kadi that I had blogged about previously here.

5. The revised procedure should include providing to the listed person, entity, body or group the reasons for listing as transmitted by the UN Al Qaida and Taliban Sanctions Committee, so as to give the listed person, entity, body or group an opportunity to express his, her or its views on those reasons. The purpose of Regulation (EC) No 881/2002 is to freeze the funds and economic resources of persons, entities, bodies and groups included in the Al Qaida and Taliban list drawn up by the UN. As the relevant UN Security Council Resolutions provide that such freezing has to take place “without delay”, such measure must, by its very nature, take advantage of a surprise effect. Therefore, the Commission should be able to take a provisional decision before informing the person, entity, body or group concerned of the reasons for listing. The reasons for listing should, however, be notified to that person, entity, body or group without undue delay, after that decision has been published, to give the person, entity, body or group concerned an opportunity to make effectively his, her or its point of view known.

And that - together with some recognition of the need for a similar procedure backdated to those who are already on the list - is more or less that. Remains to be seen, however, whether these fairly cursory tweaks will be sufficient to placate the ECJ in the next installment of the saga. I would suspect - and hope - not; indeed, I wouldn't be surprised if they were a little miffed by what might well be styled as a pretty blunt challenge to their authority...

Accountability and humanitarianism...

From the Global Governance Watch website, we learn of an interesting development in terms of the rising demand for global administrative law within the fields of humanitarian aid and intervention. The Humanitarian Accountability Partnership (HAP) has released its 2008 Humanitarian Accountability Report. It assesses a wide range of different organisations, from IGOs (the World Bank, the UNHCR, IOM, NATO, IAEA, amongst others), NGOs (Transparency International, ICRC, IOC, again amongst many others), and transnational corporations (amongst which are Haliburton, Goldman Sachs, Royal Dutch Shell and Carrefour); and it contains the following five chapters:

Chapter 1: An Overview of Humanitarian Accountability in 2008. The opening chapter provides an overview of materials relevant to humanitarian accountability published in 2008. The purpose of the annual humanitarian accountability essay is to offer an informed and independent view of progress made by the humanitarian system towards meeting HAP’s strategic vision of “a humanitarian sector with a trusted and widely accepted accountability framework, which is transparent and accessible to all relevant parties”.

Chapter 2: Survey of Perceptions of humanitarian accountability. This chapter reports on the fourth annual survey of perceptions of humanitarian accountability.

Chapter 3: Voices of disaster survivors. During 2008, HAP staff held extensive discussions with communities affected by disasters. Some of the direct quotes recorded at various locations are presented here.

Chapter 4: Members’ Accountability Workplan Implementation Reports. In preparing for the 2009 General Assembly, most of HAP’s members prepared summary accountability workplan implementation reports. These are presented in tabulated form in this chapter.

Chapter 5: The HAP Secretariat Annual Report. This chapter was prepared by HAP staff and provides a self-assessment of progress achieved against the objectives set out in the 2008 workplan and the headline targets described in the 2007-2009 medium term strategic plan.

According to GGW, the general conclusion is that the major players in the field could do better:

The organization’s 2008 report reveals that there is room for improvement across the humanitarian sector. The report cites a study completed by One World Trust, which annually compares a select grouping of NGOs, IGO, and corporations, underscoring the need for UN accountability reform. In particular, UNICEF and UNHCR scored less than 30 points out of a possible 100 on organizational transparency.

Actually, digging a little deeper, the HAP is itself an extremely interesting body from a global administrative law perspective. It styles itself "the humanitarian sector's first international self-regulatory body", and, amongst other things, develops standards for measuring accountability and quality of service within humanitarian aid institutions, and "certifies those members that comply with the HAP Standard in Humanitarian Accountability and Quality Management". Its 2007 Standard in Humanitarian Accountability and Quality Management, "a quality assurance tool for humanitarian organizations", sets out the following six "benchmarks":

1. The agency shall establish a humanitarian quality management system.
2. The agency shall make the following information publicly available to intended beneficiaries, disaster-affected communities, agency staff and other specified stakeholders: (a) organisational background; (b) humanitarian accountability framework; (c) humanitarian plan; (d) progress reports; and (e) complaints handling procedures.
3. The agency shall enable beneficiaries and their representatives to participate in programme decisions and seek their informed consent.
4. The agency shall determine the competencies, attitudes and development needs of staff required to implement its humanitarian quality management system.
5. The agency shall establish and implement complaints-handling procedures that are effective, accessible and safe for intended beneficiaries, disaster-affected communities, agency staff, humanitarian partners and other specified bodies.
6. The agency shall establish a process of continual improvement for its humanitarian accountability framework and humanitarian quality management system.

Haven't had time to look into this in much detail, but it is certainly a striking example of the kind of dual-natured global administrative body that are becoming more and more common - that is, an entity that is at once an oversight body and an administrative body in its own right (i.e. insofar as it develops standards, grants certifications, etc.). The other immediately striking feature of the report and the Standard is the apparent focus on the managerial side of accountability (as opposed to a more robustly legal side). I have blogged on this focus within the field of humanitarianism before, on the issue of the Save the Children report on sexual abuse of children by aid workers; this HAP Report seems to take a very similar approach (indeed, the Save the Children report is itself reffered to with approval). A quick search of the 204-page report, for example, reveals that the term "criminal" does not appear, and there do not seem to be many - if any - real references to legal accountability mechanisms at all (for example, at p. 17 we learn that the "an organisation’s accountability capabilities [one of the categories in the table provided at the outset to this post, which can be found at p. 17] are measured by assessing the integration of key good practice principles in policies and procedures and the existence of management systems to support their implementation"). The key issue remains: managerial forms of accountability are certainly necessary; but are they - in this of all fields - even remotely sufficient?

Recent GAL events: Quick round-up

To get the ball rolling, a quick round up of some of the recent major NYU-sponsored GAL events that have been taking place throughout the world:

1) Practical Legal Problems of International Organizations: A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights (Geneva, March 20-21, 2009).

This conference was jointly organized and sponsored by the Department of Public International Law and International Organization at the University of Geneva Law School and the New York University (NYU) Institute for International Law and Justice. The event was also sponsored by the Swiss Federal Department of Foreign Affairs, the Carnegie Corporation of New York, and the Institute for Research on Public Administration of Rome.The purpose of the meeting was to raise, analyze, and discuss important operational issues that confront major international organizations (IOs) that may not as yet have been sufficiently addressed in systematic fashion. In order to do so, the conference brought together leading experts – both practitioners and academics – in the field.

A conference report is avaible here; some photos here. This was the only one of these events that I was actually able to attend; I will post some reflections later in the week, on the assumption that late is indeed better than never...

2) IILJ-Hauser Abu Dhabi Conference on “Climate Change: Financing Green Development” (May 3-5, 2009)

NYU Law School held a conference in Abu Dhabi May 3-5, 2009 on Climate Change: Financing Green Development. The conference, held with the support of the Abu Dhabi government, addressed the legal and regulatory elements of carbon markets, climate finance, and climate-related investment in developing countries. The issues for discussion included market-based climate regulatory programs, the design, governance and linkage of carbon markets, climate-related conditions on various forms of development finance, international trade and investment law governing domestic climate regulation including of emissions trading and climate assets, and tax and distributional issues.

Conference participants included leading representatives of the climate finance industry, carbon market regulators, developing countries, multinational businesses, sovereign wealth funds, international organizations, and NGOs as well as academic experts. NYU faculty, other academics, regulators, and expert practitioners presented papers on key legal, regulatory, and policy issues associated with climate finance and development in order to frame discussion and debate among all participants.

The conference blurb/agenda can be found here; as soon as I locate a report, I'll post a link.

3) IILJ GAL Workshop in Beijing: "Legal Issues in the Process of Globalization: Globalization and Legal Governance” (May 22-23, 2009)

The IILJ held a GAL conference in Beijing on May 22-23, in collaboration with Tsinghua University School of Law. This event was also sponsored by The International Development Research Centre, Canada The event was another important part of the ongoing effort to actively encourage the participation of developing country scholars and institutions within the GAL Project, which has laready seen conferences held in Buenos Aires, Cape Town and Delhi over the last few years.

Participants from NYU presented papers on various topics, ranging from the theoretical framework of GAL to its application in particular regulatory areas, such as climate change, financing development, sovereign wealth funds, and international trade and intellectual property. The participating Chinese scholars also applied a GAL approach in examining China’s participation in global governance, with a particular focus on the use of administrative law mechanisms to address urgent regulatory and institutional reform issues in response to financial turmoil, climate change and trade protectionism.

A number of different global partners of the GAL project – from Argentina, Brazil, Canada, Colombia, India and South Africa – also attended this conference, and contributed their expertise from a comparative legal perspective. In addition, the IILJ is committec to developing a future research agenda for the GAL project with global partners and sponsors in Beijing.

Again, if/when I find a link to a report, I'll post it here.

4) Round Table on Global Administrative Law (Monterrey, Mexico, April 25 , 2009)

Don't know much about this one. It was convened by the IILJ in conjunction with meetings of the International Association of Administrative Law and the Mexican Administrative Law Association. More info (for those who read Spanish at least) can be found here.

Now we just have the 5th annual GAL seminar in Viterbo (always an extremely worthwhile event) and the GAL conference at Edinburgh to look forward to next month. I am going to both, so will post up reflections on them here shortly afterwards.

Sleep no more!

Methought I heard a voice cry "Sleep no more!
Macbeth does murder sleep," the innocent sleep,
Sleep that knits up the ravell'd sleave of care,
The death of each day's life, sore labour's bath,
Balm of hurt minds, great nature's second course,
Chief nourisher in life's feast—
...
Still it cried "Sleep no more!" to all the house:
"Glamis hath murder'd sleep, and therefore Cawdor
Shall sleep no more; Macbeth shall sleep no more."

Right, apologies for having let things get so stale on here recently; life has quite literally overtaken me of late, in the shape of a very small, brand new person. However, in a doubtless ill-fated attempt to get back to some semblance of normality (not to mention re-establish myself as the dominant male in the household), I'm going to kick things off on here again. For the rest of this week (at least), I'll be playing catchup. Bear with me.

Kadi: Recent Developments

I thought that, given I had already suggested that it might prove a "watershed" moment for global administrative law, leading to the "bottom up" creation of due process rights with respect to the UN Security Council's terrorist listing mechanism, I should give an update of developments in the Kadi case before the ECJ. Although it does seem likely that Security Council members were considering taking such action in the aftermath of the Kadi judgment (see e.g. the comments by Thomas Franck at the NYU colloquium on the subject here), it appears that they have decided - for the moment at least - that the measures taken immediately prior to the ECJ's decision in Security Council Resolution 1822/2008 would be sufficient from its end. Mattias Vermeulen over at The Lift blog noted as follows, in December of last year:

JAN GRAULS (Belgium), speaking as Chair of the Al-Qaida and Taliban sanctions Committee said that resolution 1822 (2008) - a milestone in the life of the Committee established pursuant to resolution 1267 (1999) on Al-Qaida and the Taliban - had introduced several important innovations with regard to the listing and de-listing procedures, the notification of sanctioned individuals and entities, the posting of narrative summaries of reasons for listing on the Committee’s website and the review mechanisms. Those improvements had added to the transparency, fairness and clarity of the sanctions regime.

However, the Chair of the Committee also, it seems, signalled that there was considerable room for improvement:

He said Committee members had committed themselves to transposing resolution 1822 (2008) in a new framework for the practical implementation of the new mechanisms before the end of the year. The new framework would form a solid basis for the next Chair. However, one could not ignore the international context in which those developments had occurred. Security Council sanctions regimes, increasingly under pressure, had recently been questioned, especially in light of the need for fair and clear procedures for listing, de-listing and granting of humanitarian exemptions. The Al-Qaida and Taliban sanctions Committee had not made significant progress in that regard... More must be done to ensure that the right individuals and entities were targeted. Due respect for fair and clear procedures could only increase the effectiveness of the sanctions regimes.

So what does the "milestone" Resolution 1822/2008 actually provide? Here are, for me, the relevant passages relating to the due process concerns relevant to GAL and the Kadi case:

- Para. 12, which "reaffirms" that, where proposing an individual or entity for listing, Member States shall provide a detailed statement of case, indicating which parts may be made publicly available;
- Para. 13, which "directs" the Committee to make available on its website a "summary narrative of reasons" for any decision to list;
- Para. 16, which "underlines" the need for prompt updates of the consolidated list on the Committee's website;
- Para. 16, which "demands" that Member States notify individuals not only that they have been listed, but also provide the reasons for listing that are publicly available, a description of the effects of listing, and information on the de-listing procedure;

There then follow (paras. 19-22) some provisions effectively reiterating and welcoming the provisions of Resolution 1730 (2006) on the establishment of the "focal point" to which listed individuals can make requests for delisting; there is little if anything new here, however. The few remaining paragraphs of relevance (24-26) provide that the Committee should carry out a review of all names on the list by 30 June 2010, and subsequently annually on all names that have not been reviewed for three or more years, "in order to ensure the Consolidated List is as updated and accurate as possible and to confirm that listing remains appropriate".

That there isn't a huge amount of progress here in terms of due process seems a fairly banal assertion; however, the remainder of Resolution 1822 (2008) - which precedes the above procedural tweaks - makes clear that the obligations relating to listed individuals are to be implemented regardless. The very first paragraph of the Resolution "[d]ecides that all States shall take the measures as previously imposed" with regard to individuals on the consolidated list, and, in case we had forgotted, para. 8 "[r]eiterates the obligation of all Member States to implement and enforce the measures set out in paragraph 1 above, and urges all States to redouble their efforts in this regard".

The UN Security Council thus appears to have decided - for the time being at least - that Kadi is Europe's problem; how, then, is Europe dealing with it? With the remarkable Commission Regulation EC 1190/2008, which aims to remedy the infringements found by the ECJ in the Kadi judgment. The Commission, it seems, has decided that these infringements were not particularly serious at all:

3. In order to comply with the judgment of the Court of Justice, the Commission has communicated the narrative summaries of reasons provided by the UN Al-Qaida and Taliban Sanctions Committee, to Mr Kadi and to Al Barakaat International Foundation and given them the opportunity to comment on these grounds in order to make their point of view known.
...
6. After having carefully considered the comments received from Mr Kadi in a letter dated 10 November 2008, and given the preventive nature of the freezing of funds and economic resources, the Commission considers that the listing of Mr Kadi is justified for reasons of his association with the Al-Qaida network.

That's it. They sent Kadi a summary of reasons for his listing, "carefully considered" his comments, and decided that they had been right all along. And this is to remedy the infringements of the "constitutional guarantees" of the EU in relation to individual rights to be heard, to an effective legal remedy, and to property found by the ECJ in one of its highest profile cases of recent years.

Not entirely surprisingly, on the 26th of February 2009, a new action was brought by Kadi:

First, the applicant submits that the contested regulation lacks a sufficient legal basis because it appears to amend Regulation 881/2002 without relevant determination by United Nations which, in the applicant's opinion, is precondition for the amendment of that regulation.

Second, the applicant claims that the contested regulation violates his rights of defence, both the right to an effective hearing and the right to effective judicial protection, and fails to remedy the infringements of those rights as found by the Court in joined cases C-402/05 and C­415/05. He further contends that the contested regulation provides no procedure for communicating to the applicant the evidence on which the decision to freeze his assets was based, or for enabling him to comment meaningfully on that evidence.

Third, the applicant submits that the Commission failed to provide compelling reasons for maintaining the asset freeze against the applicant, in violation of its obligation under Article 253 EC.

Fourth, it claims that the Commission failed to undertake an assessment of all relevant facts and circumstances in deciding whether to enact the contested regulation and therefore manifestly erred in its assessments.

Fifth, the applicant contends that the contested regulation constitutes an unjustified and disproportionate restriction on his right to property which is not justified by compelling evidence.

This promises to be an interesting test, firstly of the credibility of the ECJ, and (if it passes that) secondly of just how far it is prepared to push its defence of the due process rights within the EU in the face of strong pressure from Member States and from the Security Council. Although it is always risky to make predictions in cases such as these, I am not sure how, in the light of its previous judgment, the ECJ could accept these extremely superficial "corrections" made by the Commission as genuine remedies of the infringements it identified whilst retaining credibility. If it does so, rather than being an important decision for the development of global administrative law, the Kadi judgment may becomes rather an important illustration of GAL's "dark side": of how, with remarkably little effort, violations of established rights can be legitimated by a superficial veneer of due process and administrative law talk. (For a similar argument in a different context, that of the WTO's Shrimp/Turtle decision, see this excellent article by B.S. Chimni). To be honest, however, I can't see this happen here.

However, even if it does reject them as insufficient, it may well feel itself compelled to specify more clearly precisely what is required in order to ensure compatibility with the constitutional guarantees of the European Union; and, given that it left itself significant "wiggle room" in its previous judgment, these may fall well short of what some might hope or expect. In this regard, Kadi's first claim above - that the judgment cannot be enforced while he remains on the Security Council's list - strikes me as a bit of a non-starter, given how reluctant the ECJ was to suggest any power over the Security Council in the previous case. The rest, however, seem fairly compelling...

Anyway - here we go again. Hat tip to Professor Monica Claes at the University of Tilburg for bringing this to my attention.

Krisch: GAL and the Constitutional Ambition

Nico Krisch, formerly of LSE and now at the Hertie School of Governance in Berlin, and one of the co-authors of the paper that launched the entire GAL project, has a new paper up at SSRN: "Global Administrative Law and the Constitutional Ambition" (a subject that I am hoping to publish something on myself relatively soon). Here's the abstract:

The emergence of global governance has called into question many of the tools and concepts by which the traditionally dichotomous spaces of national and international politics and law were ordered, and various structuring proposals are competing to take their place. In this paper I examine two such proposals - global constitutionalism and global administrative law. Both represent distinct visions of how to approach the challenge, their key difference lying in their respective ambitions: constitutionalist visions set out to describe and develop a fully justified global order, while global administrative law is more limited in scope, focusing on particular elements of global governance and confining itself to the analysis and realisation of narrower political ideals, especially accountability. Such a limited approach raises serious problems, most prominently difficulties in separating 'administrative' from 'constitutional' issues and the risk of legitimising illegitimate institutions. But it also bears significant promise as it allows to focus on, and begin to answer, crucial questions of global governance without leaping to grand designs borrowed from dissimilar contexts and likely at odds with the fluid and diverse character of the postnational polity.

It's an extremely interesting paper for those interested in what we might mean when we talk about the emergence of GAL in a general sense, and how this might differ from the emergence of a global constitution (I have discussed one passage from it already, in an earlier post). Well worth a read.

Transparency and investment arbitration

Ineresting article in The Economist here, on the growing demand for transparency with respect to international investment arbitration. It notes that Canada and the US are pushing strongly for more openness with regard to these proceedings, but that many - in Europe in particular - are very reluctant to follow suit:

However, sticklers for secrecy may not be able to blind the public with legal science for much longer. Luke Eric Peterson, editor of the Investment Arbitration Reporter, a trade publication, expects a “pitched battle” to break out soon between backers and opponents of transparency. In part this will reflect pressure on governments from citizens and NGOs who want to know more. For example, some Germans, at least, want details of the €1 billion ($1.3 billion) arbitration claim that Vattenfall, a Swedish power firm, has brought against their government under the Energy Charter Treaty.

Hat tip to Peter Spiro over at Opinio Juris, who also makes an interesting point about the institutional competitiveness of investment arbitration:

The fact that international arbitration is institutionally competitive adds an element here not present where tribunals have a decisionmaking monopoly (as in the WTO). I’m not sure which way that cuts, though. Over the long run, arbitration platforms that are open and allow broad participation will enjoy greater legitimacy; in the short, corporate and state arbitral litigants might just prefer to keep things quiet.