Thursday, January 29, 2009

New website: Public Contracts in Legal Globalisation

Just a quick post to flag the newly-established website of the research network on Public Contracts in Legal Globalisation, led by another GAL partner institution, Sciences Po Paris, and in particular by the Chaire Mutations de L'Action Publique et du Droit Public (MADP) under Prof. John-Bernard Auby:

The network... is composed of an international group of experts who work on the theme of public contracts. These experts are as well researchers as practitioners, Europeans and Non-Europeans, what makes it possible to work as well on a civil law as on a common law basis. The research can also be based on the theoretical model of the public contract that has been developed in single legal systems, for instance in France.

The network’s interest covers all legal aspects of public contract law. That implies that it works not only on public procurement law, but focuses on all public contracts (regulation contracts, contracts between public bodies…). The aim is to embrace all aspects of contractual life, and not only the procurement aspects. A large part of the research will be devoted to contractual litigation, and research will also be developed on the very question of the use of contract in public action.

The network organises, amongst other things, a number of different seminars, workshops and conferences, the next of which will be in Speyer, Germany, on the 3-4 April, 2009, on "The Internationalisation of Public Contracts Law".

Call for papers: Global and European Administrative Law

One of the leading research institutes within the GAL project, the Institute for Research on Public Administration (Istituto di ricerche sulla pubblica amministrazione - IRPA - led by Prof Sabino Cassese in Rome), has begun a new research project on global and European administrative law, which is scheduled for completion in September 2010. They have published a call for papers on the following subject: "The relationship between global administrative law and European administrative law":

Little attention has been paid to the relationships between European administrative legal order and global regulatory regimes. Yet, such relationships can raise a number of problems. To name but a few: can global law be used in evaluating the legitimacy of European acts, and within which limits? How does European law filter the relations among the EU member States and global regulation? And what principles govern the co-existence among the various components of the legal discipline?

The call for papers details four seoparate research themes that the project will address. Accepted texts will be published firstly on the IRPA website, with the possibility of a print publication - particularly for articles written in English - at a later date. Deadline for submission of abstracts is February 29, 2009.

Wednesday, January 28, 2009

A little more on networks...

Following up on my earlier post below, I wanted to flag quickly an interesting contribution by Kenneth Anderson over at Opinio Juris on "The On-Going Debate Over Transnational Governmental Regulatory Networks, Global Governance, and Legitimacy". He makes a number of important points, prime among which, for me, is the following:

...accountability and democratic legitimacy have become somewhat confused in the literature on networks, governmental and NGO advocacy networks. They are, after all, separate things and separate political/moral values. You can have democratic legitimacy and yet have very poor accountability mechanisms. And you can have excellent accountability mechanisms, yet not through democratic mechanisms, but instead through legally enforceable governance standards, courts of law, efficient bureaucratic oversight, etc. So saying that intergovernmental regulatory networks of the kind praised in A New World Order often lack transparency or accountability is important, but it is not always, and not always most importantly, because of a lack of democratic legitimacy. The question of democratic legitimacy is there independently. So is the question of accountability.

The rest of Anderson's post is essentially an argument in favour of restricting the functions of transnational networks of government networks to that of "coordination" between States (presumably excluding, then, the type of normative production that characterises the activity of, say, the Basel Committee), on the grounds that it is only in doing so that the members of such networks can remain sufficiently tied to the (national) democratic legitimacy that alone can justify their exercise of public power. What I think this argument - important though it undeniably is - misses is that, when we make the necessary distinction between accountability and democratic legitimacy, we are also, to my mind at least, opening up space for at least the possibility that there may be valid forms of legitimacy that are not democratic in nature, and that may be able to justify a more extended role for networks beyond that which democratic considerations alone could do.

The existence of these different forms of legitimacy is perhaps most important within the sphere of global governance; indeed, for some time now I have been convinced that notions of democracy can only at present (and for the foreseeable future) play a fairly limited role in justfying the adoption of global administrative law rules, and that appeal thereto should consequently be limited. Amongst other things, it is far too simple to criticise, and basing the entire project thereon makes its normative basis appear far more vulnerable than it actually is.

The key reason for this is that there exists no global (or, indeed, regional, with the possible exception of the European Union) demos to which "democratic legitimacy" can refer. All attempts to decrease the democracy deficit in global governance, then, must do so by reference back to national, or perhaps local, constituencies, by strengthening the "delegation" between them and the global governance bodies in question. That this is extremely difficult - even in the context of highly formalised international organisations - is by now almost universally agreed; however, there is significantly less agreement on the proposition that no administrative activity can be undertaken by IOs that is not justified by a strong chain of democratic delegation or representation (which strikes me as the logical consequence of Anderson's position). On the contrary - and this is one of the central insights of the GAL project to date - legitimacy can be improved by increasing the responsiveness of global governance bodies to the interests of those upon whom their activities impact. This is, in many ways, an "interest representation" model of administrative law, removed from the domestic context in which it was developed and writ global; and it is ultimately justified not on the basis of a claim to democratic legitimacy, but rather on an appeal to fairness and/or individual rights.

Nor is this the only form of non-democratic legitimacy that may be of relevance. Like it or not, a legitimate - indeed, important - goal of global governance is that it be effective. Informal networks of governmental officials often have siginifcant advantages over the more cumbersome, traditional IOs in this regard; and, where these bodies are generating high-quality and effective regulation, particularly in the less politically charged fields, then this alone might, in some circumstances, be sufficient to render such bodies legitimate, even if there is no apparent democratic justification for their activities - at least, I see no conceptual reason why that should not be the case. Unless, of course, we begin with the premise that all public power can only be legitimated democratically; this, however, is far from self-evident normatively, and clearly false historically and empirically. It would leave little if any conceptual room for legitimating the governance by global administrative bodies of the type that is so widespread today.

Of course, as I pointed out in my previous post, the advantages brought by the flexibility and adaptability of such networks are (at least) counterbalanced by the risks of the same - without appropriate safeguards, including transparency and accountability mechanisms, there is little to suggest that they will not be flexed and adapted in thoroughly inappropriate ways. As Anderson importantly points out, however, the very presence of these protections does not eo ipso increase democratic legitimacy; indeed, in most GAL situations, describing them even as "democracy surrogates" strikes me as misleading. Accepting this, however, is only the start - and not the end - of a difficult discussion on the legitimacy of global governance structures, networks included.

Conference on Debates in Aid Evaluation at NYU

Another piece of information shamelessly stolen from the new Aid Watch site - which looks like it'll be a goldmine of useful information for me here - is that NYU's Development Research Institute is to hold a conference entitled "What Would The Poor Say: Debates In Aid Evaluation" on the 6th of February next week. William Easterly will give a lecture on "The Big Picture on Aid Accountability", and there is an entire panel devoted to "Issues in Transparency and Accountability". I hope that I'll have time to attend next week; if so, I'll post up some reflections on any GAL-related elements afterwards.

UNHCR overstepping its mandate at the World Economic Forum?

... Unless, of course, it has a mandate for sponsoring crass, if well intentioned, activities.

Which it probably does. We can only assume that last year's promotion - "Experience Darfur!" - in Trafalgar Square, London, was a roaring success. That, at least, was not billed as a VIP-only event...

New blog: Aid Watch

In a somewhat circuitous fashion, we learn from Opinio Juris about a new blog on development aid - Aid Watch - that has been started by Prof William Easterly, a professor of economics here at NYU. His first post, reflecting on the two recent editorials written by World Bank President Robert Zoellick (one in the New York Times last Friday, and the other in Saturday's Financial Times), strongly suggests that there will be much of GAL-related interest in his musings and analyses: it is entitled "Everyone Should Be Responsible...(except the aid agencies)", and contains the following reflection:

President Zoellick does mention briefly the critical issue in both the NYT and FT: some “safeguards to ensure that the money is well spent,” which don’t currently exist. In the FT, he makes the inspirational call for an “Age of Responsibility,” but the Responsibility seems to apply only to rich donors, there is nothing about holding the World Bank responsible.

If you are not accountable for promises, if you try to do everything and focus on nothing, and if you obsess about aid money raised rather than results achieved, haven’t you already told us that the money will not be “well spent”?

The field of development aid is, of course, one of the most important focal points of the GAL project, particularly as the IILJ has just launched a major research programme on "financing development", which will have a major global administrative law component. We very much look forward, then, to reading and commenting on Prof Easterly's contributions on these matters, and hope to perhaps even have some fruitful inter-blog interaction in the near future.

Monday, January 26, 2009

GAL at the World Economic Forum?

An interesting short post over at the Guardian politics blog on the forthcoming World Economic Forum in Davos, Switzerland, entitled "shaping the post-crisis world". Under normal circumstances, the glitzy, invitation-only event might not seem to be a particularly promising place to be looking for improvements in increased participation, transparency and accountability; as the Guardian post points out, however, these are not normal circumstances:

Last year's co-chairman of the forum, the Indian software tycoon B Ramalinga Raju, was arrested earlier this month in connection with allegations that company accounts were falsified. And among the names on the steering committee for the WEF's keynote report on economic prospects was the Merrill Lynch chief executive, John Thain, who resigned last week – shortly after his stricken bank was taken over by Bank of America – amid allegations of hiring celebrity decorators to revamp his office at a cost of $1.2m (£880,000).

The mighty are definitely fallen, and Davos will be debating how hard they should be kicked: the future of international banking regulation is expected to be the dominant theme...

If a new economic world order is going to be built from the ruins, the horse-trading will not come until later – starting with the meeting of the G20 industrialised nations in April – but the foundations could well be worked out here. Even the major corporate delegates are talking about the need for tighter regulation, more transparency and accountability.

As always, it remains a case of waiting-and-seeing for the time being; but this is, once again, yet more proof that the demand for GAL - in some form - is increasing across the fields of global governance, and amongst all of the various actors involved.

Friday, January 23, 2009

Developing countries and the World Customs Organization: demand for GAL grows

From the always excellent Intellectual Property Watch site, we get this interesting little vignette: the World Customs Organization has disbanded its working group on intellectual property enforcement standards after a number of developing country members complained that "the group’s work on standard-setting might be used as a means of enlarging the obligations imposed on countries by the WTO TRIPS Agreement" (according to the WCO Policy Commission). Brazil and Argentina, for example, had circulated in October 2008 a document entitled "Ensuring transparency and a legitimate, member-driven process in the SECURE Working Group" (available here, p. 14), which included a complaint that documents were developed without sufficient public participation. These concerns have clearly been brought to a head with the discontinuation of the working group.

A new body has been proposed that will focus more heavily on technology transfer and capacity building. IP Watch also reports, however, that this new body is causing concerns among the same members, primarily because, even if the substance of the agenda looks more developing-country friendly, the same issues relating to procedure - in particular transparency, voice and accountability - have not been addressed.

This illustrates two points nicely: firstly, that developing countries are very much alive to the "administrative" nature of standard-setting bodies, and to the fact that their activities can have real normative implications in terms of international obligations; and secondly, that they are increasingly turning to GAL-type demands as a means of ensuring that their voices are, and will continue to be, heard.

Thursday, January 22, 2009

The rise and rise of informal networks as a mode of governance?

I wanted to make just a short post with some brief reflections on the news that Anne-Marie Slaughter has taken leave from her post as Dean of Woodrow Wilson School of Public and International Affairs at Princeton in order to head the US Department of State's Office of Policy Planning, an "internal think tank for the Department of State - undertaking broad analytical studies of regional and functional issues, identifying gaps in policy, and initiating policy planning and formulation to fill these gaps". (Hat tip to Opinio Juris.)

In October of last year, Dean Slaughter gave a lecture here at NYU, entitled “America’s Edge: A Global Country in a Global Century”. The crux of her interesting and provocative talk was focused on the idea of and potential for informal networks as a mode of governance in the 21st century. Her argument was that there would be something of a sea-change in the way the dominant modes of governance structures were organsied: from heirarchical, top-down arrangements to heterachical webs. In her view, the US is no longer well-placed to hold on to its place at the top of the heirarchical structures of global governance, faced as it is by challenges from India and China in particular. However, such structures are of rapidly diminishing importance; and America's edge is, in her view, the fact that it is uniquely well calibrated to take its place at the center of the web of networks that will dominate the governance landscape of the next century.

Slaughter offered a number of different reasons for her optimism in this regard; some persuasive, others less so. That her focus is on governance by networks will come as a surprise to no-one who is familiar with her most famous book, A New World Order, published in 2004, which focused on government networks as the main constitutents of that order. It is not, however, the empirical claim that networks are of the importance that she suggests that I want to raise here; and nor is it her particular reasons for insisting that the US is best placed to influence the governance activities that they carry out. Rather, it is her general, not-quite-but-nearly unbridled optimism regarding the structure itself that I want to note.

The first thing that it is, in my view, important to recall is that "informal networks" have been around as a mode of governance for as long as governance itself: those in power have always used such loose stuctures in order to get things done (think, for example, of the "old boys networ" in the UK - and doubtless elsewhere). What is new, in the work of Slaughter and others like her, is that networks are now overwhelmingly presented as a solution to one of the challenges of good governance rather than an obstacle that must be overcome. Networks used to be the problem; now, it seems, they are (being presented as) the cure.

It is not difficult to see why networks have been viewed as problem rather than solution in the past. They are often secretive; opaque; their membership unknown and closed to outsiders; and largely unaccountable to any public constituency (usually as a direct result of their secretive nature). Take the recent scandal of the Conservative Party Shadow Chancellor allegedly actively seeking an illegal donation from a Russian multimillionaire on the private yacht of another millionaire - this too is a form of "informal governance network", and one that it is much harder to portray in a positive light. And it should be recalled that the only reason we found out about this one was because Nat got mad at George for blabbing about the nasty things that Peter had said about Gordon at dinner - without this, we would simply never have known.

Slaughter's work does illustrate well the potential benefits to be gained from structuring governance around networks of government actors, rather than in the old heirarchical model; and this aspect of her work cannot simply be ignored. However, it is imperative that networks are viewed not only as a mode of but also a problem for good governance - that we seek to develop ways of harnessing their potential whilst lessening their shortcomings. It is this dual issue that the conceptual framework provided by the GAL project brings so sharply into focus: since the outset, networks have been counted as one of the key types of global administrative body currently in existence; and yet the whole purpose of the project is to pose the hard questions that must be asked of such structures: questions of transparency, of participation, and of accountability.

Of course, Slaughter is aware of these problems, and she devotes a chapter of A New World Order (Ch. 6, "A Just World Order") to outlining how they might be resolved, with many of her solutions fitting perfectly into the agenda and substance of the GAL project. She has long been an influential figure; and her new post will undoubtedly make her even more so. Congratulations, then, to Dean Slaughter on her appointment, and good luck to her in her new role; and, to the extent that she does seek to help fulfil her own prophecy of the future of "the network" as a governance structure, let's hope she bears in mind that it is at once - and in roughly equal parts - part of the solution and part of the problem.

Of course, if she was also to frame things explicitly in terms of an emerging global administrative law, we wouldn't be too upset...

Tuesday, January 20, 2009

GAL - and The End Of The World As We Know It

Now read on...

When does it start?

There are very few starts. Oh, some things seem to be beginnings. The curtain goes up, the first pawn moves, the first shot is fired (probably at the first pawn) – but that’s not the start. The play, the game, the war is just a little window on a ribbon of events that may extend back thousands of years. The point is, there’s always something before. It’s always a case of Now Read On.

Much Human ingenuity has gone into finding the ultimate Before. The current state of knowledge can be summarized thus:

In the Beginning, there was nothing, which exploded.

(Terry Pratchett, Lords and ladies (1993) p. 7)

Picture the scene: a group of shadowy individuals hollow a huge underground chamber beneath the Swiss Alps, and within its depths construct a machine capable of smashing particles together at unfathomable speeds (a machine, incidentally, that, as the second picture clearly demonstrates, bears an uncanny resemblance to the big laser in the Death Star). They proudly display a statue of the Hindu deity Shiva, the destroyer of worlds, doing an end-of-the-universe dance (as seen in the first picture); proving that, whatever else, at least someone involved has a sense of humour.

Their stated goal is to reconstruct the conditions existing at the time of the mother of all explosions - the Big Bang itself. Their ends are benevolent - unsatisfied with he current state of scientific knowledge on the subject (as unforgettably described by Pratchett above), they seek only (but nothing less than) enlightenment on the beginning of all things; however, the lust for knowledge that drives them has led them to the conclusion that the risks inherent in their project - the danger that their machine will create black holes that will devour the entire planet and everything on it - are risks worth running. They are beyond the reach of the courts. The day is rapidly approaching when they will press the big red button that may signal the End of history (really, though, this time)...

Science fiction or science fact? Almost entirely the former, it seems (although some director will doubtless try to pass it off as "based on a true story" at some point). For anyone who doesn't already know, the situation sketched above is the doomsday scenario portrayed by a number of critics of the Large Hadron Collider at the European Organization for Nuclear Research (CERN). Firstly, CERN isn't particularly shadowy; indeed, you can even take a tour of their facility just outside Geneva (which, incidentally, comes highly recommended). And the existence of the "big red button" for turning the machine on appears, amusingly, to be rather the creation of the media's willful ignorance of the science on which they report. However, the scale and ambition of the project is indeed breathtaking:

The Large Hadron Collider (LHC) is a gigantic scientific instrument near Geneva, where it spans the border between Switzerland and France about 100 m underground. It is a particle accelerator used by physicists to study the smallest known particles – the fundamental building blocks of all things. It will revolutionise our understanding, from the minuscule world deep within atoms to the vastness of the Universe.

Two beams of subatomic particles called 'hadrons' – either protons or lead ions – will travel in opposite directions inside the circular accelerator, gaining energy with every lap. Physicists will use the LHC to recreate the conditions just after the Big Bang, by colliding the two beams head-on at very high energy. Teams of physicists from around the world will analyse the particles created in the collisions using special detectors in a number of experiments dedicated to the LHC.

A number of critics - including some scientists - have raised a variety of concerns over the safety of the project, prime among which is indeed - believe it or not - the possibility that the LHC will create miniature black holes that will sink to the Earth's core and eventually devour the entire planet and everything on it. Everyone seems to accept that the first part of this - the creation of little black holes - is a theoretical possibility. Almost everyone - and everyone qualified in the field of particle physics itself - appears to agree that even if this does occur, however, the black holes would be unstable and would evaporate, due to "Hawking radiation", which explains why the planet hasn't yet been devoured by the black holes that are theoretically created by the cosmic rays that frequently strike the earth at the same velocity that will be generated by the LHC.

Apologies in advance to those to whom my inevitably simplistic, doubtlessly reductive and quite possibly inaccurate account of the scientific issues above will have caused offence. There are (a few) actual scientists in the critics' camp, but they appear to have no formal training in the relevant field. This page is a good resource for those interested in taking reading on the issue further, including the papers in which the concerns are raised and those containing expert rebuttals of the points made. The science is, of course, entirely beyond me; but falling back instead on lawyerly instincts and arguments, it is worth making the point that the overwhelming weight of authority insists that there is absolutely no cause for concern. To give one example, here are some of the comments made by Prof. Dr. Hermann Nicolai, Director of the Max Planck-Institut für Gravitationsphysik, on speculations raised by Professor Otto Rössler about the production of black holes at the LHC:

…[T]here is also not the slightest reason from the point of view of a theorist specialized in relativity to take these considerations seriously, since - in my view - they are based on an elementary misunderstanding of the theory of general relativity.
To conclude: this text would not pass the referee process in a serious journal.

This is a topic I have been meaning to post on for a while now, after having read an excellent five-part analysis of the legal issues to which it gives rise over at PrawfsBlawg by Eric Johnson (part 1, part 2, part 3, part 4, part 5). Each part is worth reading in full,(comments included), providing a reflection upon a different aspect of the (largely hypothetical) case. Johnson also makes some extremely interesting suggestions, to which I will return briefly below. However, one thing that struck me while reading his posts was the lack of any general conceptual structure within which to frame the issues that he identifies, or the recommendations that he makes. Another thing that struck me was how well-calibrated global administrative law appears to precisely this task.

There have, as far as I can tell, been 2 legal challenges to date, seeking an injunction against the operation of the LHC. Both were, it seems, dismissed for a lack of jurisdiction: one in the US (Sancho v. DOE), dismissed because the US Government's contribution of over $500 million dollars was not sufficient, and did not buy sufficient control, to qualify as a "major Federal action" under the National Environmental Policy Act; and a European Court of Human Rights preliminary judgment that appears to have disappeared without a trace (the complaint, in German, is here; it seems that the complainants were arguing that an earlier case, in which a contractual dispute against CERN was rejected on the grounds of the Organization's immunity from suit before the domestic tribunals of Member States, meant that the requirement to "exhaust domestic remedies" had effectively been obviated).

There are three aspects of Johnson's analysis that I want to look at here from a GAL perspective (contained in parts 4, 3, and 5 respectively; part 2 offers a more detailed outline of the science involved than I have above): technocracy and review, procedure, and immunity. and jurisdiction I'll deal with each briefly in turn.

Technocracy and review
One of the key arguments against any form of legal evaluation of profoundly complex scientific issues is, of course, that few if any judges or lawyers can understand them well enough to formulate any sort of well-informed judgment upon the substance of such debates. This leads easily to the view that courts and lawyers simply shouldn't be involved in scientific debates, creating a kind of "scientocracy" in which majority views of scientists are placed beyond the scope of judicial review. Of course, within the broader field of GAL, it is often simply impossible for them not to be so involved - as the recent EU-Hormones decision of the WTO's Appellate Body amply demonstrates, there are very often occasions in which science and regulation are so inextricably interlinked that a reviewing tribunal cannot but consider scientific issues if it is to be able to perform its functions at all.

This is not true, however, in the case of the LHC; here, lawyers and judges could simply leave CERN and its activities to the scientists (which is, in fact, what it does at present). Given what is at stake in this and other cases - public interest issues par excellence, usually also involving the commitment of vast amounts of public funds - can we really rely on what is effectively an exclusively technocratic mode of governance and be sure that all of the relevant issues are being satisfactorily addressed? Martin Shapiro - amongst many others - has cast doubt on the asumptions underlying the preference for technocratic deliberation:

There are a number of reasons to be agnostic if not atheistic about deliberation. Most fundamentally, there is little reason to believe that people with substantial, long-term, material interests in achieving a particular outcome are going to abandon those interests and their dedication to those outcomes as sweet reason emerges from the talk fest.

It may be argued that science is different: the pursuit of truth can be distinguished clearly from the pursuit of interest; and the relative strength of a proposition can be evaluated in its own terms, divorced from the preferences and politics of those involved. This may be true - to an extent at least - in certain areas of science and with regard to certain issues (although again, as the Hormones saga has shown, where science isn't certain, politics can and should begin to colour the concept of "precaution"). Perhaps most importantly, however, it should be pointed out that the review mechanism upon which most scientists rely when faced with questions such as these - peer review - is often, even in the most respected of journals - much less of a profound and in-depth affair than most lay people suspect. Again, it is reasonable to ask whether, when the science involved speaks to the great political issues of our time or impacts upon matters of profound public interest, whether this type of essentially self-regulation is sufficiently robust.

Johnson puts the matter succinctly, noting that current discourse within the scientific community

... would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.

When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in....[But] the argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.

This argument strikes me as persuasive; and nor is it difficult to see how it dovetails with the agenda of the GAL project more generally. In many ways, the essence of GAL is obviated if exclusively "technocratic" governance modes are adopted. As it becomes increasingly accepted, however, the discourse of global administrative law will provide both a language and a framework within which demands for this type of review of important scientific activities - not to mention contribute greatly to the creation of a culture in which they are likely to be successful.

We are still, however, left with a significant problem - the undeniable fact that, in many if not most cases, judges and lawyers are singularly ill-equipped to pronounce on the validity of one scientific proposition over another. Moreover, the normal lawyerly response to this - expert testimony - may be unsatisfactory in a number of circumstances: for example, where the science is hotly contested among experts; or, as arguably is the case with the LHC, where the community of experts capable of understanding and evaluating the issues is so small that we cannot be sure that a consensus has been achieved in a genuinely independent and autonomous manner.

Johnson's suggestion for overcoming this issue is essentially procedural (broadly understood) in nature, again dovetailing nicely with the GAL project (in its current form, at least):

While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made.

As I said, this passage is talking about an investigation into the "procedures" rather than the substance of scientific agreement in the broadest sense of the former term; and yet Johnson seems correct in his suggestion that there is nothing per se unreasonable about the idea of a court examining and evaluating such "psycho-social" processes in order to reassure itself that they were not subject to any pathologies or perversions that could have distorted the outcome. Any causes for concern could lead to a preliminary injunction against the activity in question, until they had been satisfactorily addressed.

We might even go further than this, and suggest that a more mature global administrative law would be able to develop and insist upon broad sets of procedural guarantees designed to weed out such pathologies ex ante, thus obviating the need for a reviewing judge to resort to ad hoc categories and tests in evaluating the ways in which agreement has been generated. The idea of a "global administrative law of science" is, of course, far from being realised, and would present a huge challenge to our collective institutional imagination, and yet it strikes me that it is one area that may well be interesting to pursue. I'll return to it in a later post.

For the moment, it is worth noting that, in the case in question the issue of the safety of CERN's activities appears to be left almost entirely for CERN itself to investigate and decide upon. I do not, of course, mean to imply by this that they have not done a full and thorough job in their investigations; to the contrary, as far as I can tell (not, admittedly, very far), the two recent safety reviews (the first in 2003, by a broup of independent scientists at the LHC Safety Study Group, then updated in 2008 by the LHC Safety Assessment Group to take account of new criticisms that had been raised) seem to be detailed and thorough, and at least confront head-on the concerns of critics with an impressive array of authority.

What is striking about CERN's activity in this regard, however, is the almost complete absence of any sense that procedural guarantees might be useful in securing and enhancing the legitimacy of conclusions. The reports have been reviewed and endorsed by The LSAG report has been reviewed and endorsed by CERN’s Scientific Policy Committee, a group of external scientists that advises CERN’s governing body, the Council. The Terms of Reference for the Committee, however, again give no real sense that processes are of any great import:

Decision-making processes

9. Except in the cases specified in paragraphs 5 (d) and 6 above, the SPC shall take its decisions by simple majority of its members present and voting (abstentions not counted). Consensus is desirable.

It is certainly arguable that in failing to set and keep to a more robustly-formulated set of procedural guarantees, CERN is missing a trick - and this on a number of levels. Firstly, it is losing a key opportunity to present itself as a transparent and accountable organization - two claims that would certainly increase its general legitimacy - and perhaps decrease some of the hysteria that has been generated over the LHC - without any real apparent risk of any adverse outcome for the project. Secondly, it loses the chance that any court that did agree to a review of the processes through which the scientific consensus had been reached will defer to its own procedural setup, thus potentially missing out on an opportunity to control the direction of judicial review. And thirdly, relatedly, it risks that an unsympathetic judge will create ad-hoc categories that fail to capture the degree to which the science really is settled, and undermine a consensus that had in fact been genuine and sound. Even if such a judgment would be extremely difficult to enforce, it could put significant pressure on CERN and the LHC, giving critics unwarranted ammunition in the process. If, on the other hand, CERN had in place a robust set of procedural guarantees ensuring transparency, participation and a genuinely independent process, then these risks woudl all be greatly reduced - particularly if they could point to the standards that they were applying as part of a more mature and generally accepted global administrative law of science.

Immunity and Jurisdiction
This brings us on nicely to last point that I wanted to discuss arising from Johnson's excellent blogs on the LHC: the related questions of immunity and jurisdiction. From a global administrative law perspective, there are two main possibilities for judicial review of the activities of an international organizations such as CERN: either by national courts or by an international body. The former appears certainly the most likely; indeed, Johnson's posts are mostly framed in terms of a hypothetical challenge before a US court. There are, however, two main difficulties with this route in the context of the LHC.

Firstly, as noted above, the challenge before the Swiss courts failed because of the Protocol on the Privileges and Immunities of the European Organization for Nuclear Research of March 2004, which provides in Article 5(1) that, excluding a few narrowly-defined exceptions, "in the exercise of its official activities, the Organization shall enjoy immunity from legal process" before the courts and tribunals of CERN Member States. This is a very common obstacle to the review of the activities of international organizations by domestic courts. Although there have been recent moves by a number of domestic and regional courts to discard this immunity should there not be a substantially equivalent access to justice mechanism available at the international level (see this paper by August Reinisch for more detail), these have to date been confined to staff disputes within international organizations. While the explicitly human rights rationale relied upon in many of these cases might lead us to expect that such an approach to immunity might be extended to the vexed issue of the impact of the activities of international organizations on third party rights, I am as yet unaware of any decision in which this has occurred. It is hard to imagine a more profound potential impact on third party rights than the destruction of the planet and all life on it; it would be interesting indeed to see whether a Swiss court would be as absolutist on the issue of immunity in this context as it was in the earlier contractual dispute.

Even if a domestic court did decide, however, to issue an injunction against the operation of the LHC, there would still be - as Johnson fully acknowledges - almost insurmountable problems of enforcement; indeed, it seems likely that only a Swiss court could make such an order effective. Certainly, courts may be able to stem the flow of funding from national sources, but would in all likelihood be insufficient to stop the machine being switched on at this stage. Short of military action (and Marko Milanovic over at ESIL:Talk! has sketched for us the entertaining - if probably exaggerated - argument that the way in which the US Government's legal advisors had framed the idea of "preventive self-defence", with the amount of "imminence" of a threat required inversely proportional to its "magnitude", would in fact entitle it to bomb Switzerland if it refused to turn off the LHC...), it is difficult to see what steps a foreign court could take to have its judgment enforced. CERN activities are different from many of those of other international organizations in this regard, in that they do not themselves require the mediation of national actors in order to be effective.

These issues combine to create the impression that, in this regard at least, national courts would not be the best fora in which to review the CERN's evaluation of the safety of its own operations. Of course, the other option - the creation of a supranational body with jurisdiction to do so - would solve all of these problems; it has the significant drawback, however, of not actually existing. To my mind, however, again here it is arguable that CERN is missing a trick, and again it is the general GAL framework that enables us to see clearly why this is so. Firstly, it would an independent review body would further strengthen the Organization's claims to accountability, thus increasing its legitimacy and decreasing the strength of opposition it faces. Perhaps most importantly, however, the creation of such a body would make it extremely unlikely that any domestic court would look to waive CERN's immunity and review its activities. This would result in more benefits along the lines suggested above - reducing the risk of unsympathetic judges giving unwarranted ammunition to critics, increasing skepticism among publics and perhaps even impeding the flow of funding. On the other hand, if the science is a clear as it seems to be, then CERN has little to fear from a genuinely independent and impartial scrutiny by a single international body of the ways in which that consensus has come about .

Unless, of course, the tribunal is as unnerved as I am by the Death Star thing...


My wife, who has much more practical experience with the mysterious functionings of IOs than I do, has pointed out that most privileges and immunities protocols also make specific provision for the settlement of private disputes. I went back to the CERN Protocol, and sure enough:


Disputes of a private nature

1. The Organization shall make provision for appropriate modes of settlement of:

a) disputes arising from contracts to which the Organization is a party;

the Organization shall include, in all written contracts into which it enters, other than those referred to in paragraph 1 d) of this Article, an arbitration clause under which any disputes arising out of the interpretation or execution of the contract shall, at the request of either party, be submitted to arbitration or, if so agreed by the parties, to another appropriate mode of settlement;

b) disputes arising out of damages caused by the Organization or involving any other non-contractual liability of the Organization;

c) disputes involving an official of the Organization who enjoys immunity from legal process, if such immunity has not been waived in accordance with the provisions of Article 5 of this Protocol;

d) disputes arising between the Organization and its officials;

the Organization shall submit all disputes arising from the application and interpretation of contracts concluded with officials of the Organization on the basis of the Staff Rules and Regulations of the Organization to the jurisdiction of the International Labour Organization Administrative Tribunal (ILOAT) or to any other appropriate international administrative tribunal to the jurisdiction of which the Organization is submitted following a decision by the Council.

2. For disputes for which no particular mode of settlement is specified in paragraph 1 of this Article, the Organization may resort to any mode of settlement it deems appropriate, in particular to arbitration or to referral to a national tribunal.

3. Any mode of settlement selected under this Article shall be based on the principles of due process of law, with a view to the timely, fair, impartial and binding settlement of the dispute.

Make of that what you will. On one hand, it seems to create a massive amount of wiggle-room for the Organization, in particular in relation to non-contractual damages and liability, where it doesn't even refer necessarily to third-party or judicial dispute settlement, but only what the Organization deems appropriate. On the other hand, it does seem to create some obligations, particular to settle disputes in a manner "based on the principles of due process of law"; it is certainly arguable that the "dispute settlement" measures taken by CERN to date - the commissioning of independent reports on the safety of the LHC - does not fulfil this. Of course, how one (and, indeed, who) might go about enforcing such an "obligation" in the face of CERN's recalcitrance remains an open question.

Here, incidentally, is CERN's own take on its own immunities, why they are there, how they came about, and what the new Protocol obliges them to do in terms of dispute settlement. Worth a read.

Thursday, January 15, 2009

International organizations and mandate issues: controversy over the WHO's Right to Health "fact sheet"

One of the key roles of "global administrative bodies" - one of the clearest ways in which, we argue, they are exercising identifiably public power - is in the contribution that they make to normative development, most often through the drafting and promulgation of "soft" law standards that harden either through becoming accepted practice over time, or by being relied upon as authoritative by a different treaty regimes or tribunals. Another method - perhaps less common, but certainly not unimportant - is when certain international organizations issue putatively authoritative interpretations (for example, the General Comments of the old Human Rights Committee) or statements of what current international law on a given right or subject actually is.

In June 2008, the World Health Organization, in conjunction with the Office for the High Commission for Human Rights, published its "Fact Sheet 31" on the Right to Health, which purports

... to shed light on the right to health in international human rights law as it currently stands, amidst the plethora of initiatives and proposals as to what the right to health may or should be. Consequently, it does not purport to provide an exhaustive list of relevant issues or toidentify specific standards in relation to them.

Emphatically not, then, to be read as a hopeful expression of de lege ferenda, the document in question is the official position of the WHO and the OHCHR on the lex lata of the human right to health, binding on all States as a matter of general international law. This, of course, is suggested strongly by the title - somewhat odd, in my view - of "fact sheet" for an overtly normative endeavour. The document makes a number of strikingly strong claims for what the current status and content of this right actually currently is:

The right to health contains entitlements. These entitlements include:

- The right to a system of health protection providing equality of opportunity for everyone to enjoy the highest attainable level of health;
- The right to prevention, treatment and control of diseases;
- Access to essential medicines;
- Maternal, child and reproductive health;
- Equal and timely access to basic health services;
- The provision of health-related education and information;
- Participation of the population in health-related decision-making at the national and community levels.

(Eagle-eyed readers will, of course, have spotted the "distributed administration" GAL provision in the above excerpt - the suggested requirement that governments allow public participation in health-related decision-making domestically...).

A further important indicator of the public nature of the action taken here by the WHO/OHCHR is in their view of the role of the treaty monitoring bodies established to oversee the implementation of the various international human rights treaties. Consider the following passage:

...the treaty bodies that monitor the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child have adopted general comments or general recommendations on the right to health and health-related issues. These provide an authoritative and detailed interpretation of the provisions found in the treaties.

This claim is particularly significant in this context because many of the assertions of the Fact Sheet are based to a large degree on General Comment 14 of the Committee on Economic, Social and Cultural Rights. The WHO/OHCHR have thus, with this document, sought to issue a putatively authoritative account of the current status and content of the - notoriously hard to pin down - international human right to health.

From the Global Governance Watch site we learn that - perhaps unsurprisingly, given its continuing reluctance to become a party to the ICESCR, one of the three major pillars of the so-called International Bill of Rights - the US has recently (October 15, 2008) issued a set of official Observations on Fact Sheet 31, and called for the document to be rescinded. Despite what Gobal Governance Watch suggests, however, the US Observations are not explicitly formulated as an allegation that the WHO has acted ultra vires, beyond its mandate in purporting to issue an authoritative statement of "fact" on the right to health (incidentally, here is an earlier critical piece at the same site criticising the Fact sheet on precisely those grounds - not surprising, then, that they chose to read it in this manner); perhaps to do so would have risked suggesting that the document is of greater potential significance than the US at present wants to acknowledge. It contents itself, therefore, with the accusation that the fact sheet is misleading and wrong, with the occasional hint at mala fides on the part of the WHO/OHCHR:

3. As a general matter, the United States observes that the "Fact Sheet" is, in spite of its name, replete with unwarranted legal conclusions and opinions. The United States considers it misleading to sryle such a document as a "fact sheet", which conveys an impression to readers that the document contains factual information not reasonably open to doubt. Instead, the document contains sweeping and far reaching conclusions relating to the "right to health" and the associated obligations of States.
16. General comments and other documents issued by treaty monitoring bodies express the opinions of individuals acting in their expert capacities; such documents are not the results of deliberations among States. While the views of treaty monitoring bodies are entitled to respect and should be considered carefully by States Parties, they do not create legal obligations or "requirements".
18. Furthermore, the pronouncements of treaty monitoring bodies are directed only to the
States Parties of the relevant treaty. The authors of the "fact sheet", perhaps inadvertently, repeatedly characterize the statements of the treaty bodies as applying to "States", regardless of whether a particular State has ratified the relevant treaty.

Although the claim that WHP/OHCHR have acted beyond their mandates is not explicitly formulated (the claim here rather seems to be "they have got it wrong"), it does seem to be implied throughout the US observations - that the WHO/OHCHR have no right to issue a document presenting controversial claims as settled fact (although it is certainly worth noting that the US does not assert that the Organizations have no right to issue such documents in general). The key question from a GAL perspective is, of course, What can the US do to ensure that these Organizations are held accountable for remaining within their mandates? To whom can their grievance be addressed? Thus far, all we know is that they have requested that the fact sheet be rescinded. I had a look on the websites of both the WHO and the OHCHR, but there was nothing I could find on either that shed light on what, if any, procedures were currently underway. I was unable to find the Fact Sheet on the WHO site (although I did find an earlier, shorter version from August 2007, helpfully filed under "T" for "The Right to Health"). Fact Sheet 31 is, however, available at the OHCHR's site, along with the interesting information that Fact Sheets Nos. 1, 8 and 15 are "no longer issued". It will be interesting to see whether No. 31 is similarly disappeared at some point in the next few months...

Tuesday, January 13, 2009

Feeds n' emails...

After a period of inevitable incompetence on my part, the email subscription function to the blog seems to be working. Those of you reading this in an email will, of course, know this already. If anyone has tried to sign up and is still having problems, drop me a line at the email address at the top left of the blog, and I'll try to sort it out.

In another flash of incompetence, I changed the feed address for the site, so any subscribers will have to resubscribe. The address is now as follows:

Please do resubscribe - I promise I won't change it again. Not on purpose, anyway...

Saturday, January 10, 2009

The relation of the domestic to the global in administrative law: Inspiration, model or cage?

In order to further my new year's resolutions (both in "post count" and "respond to comments" terms), I thought I would pick up on an anonymous comment made to a quick post of mine noting some GAL-type issues to which the recent EC-Hormones Appellate Body decision gave rise, which I unfortunately didn't have time to respond to at the time. It's a thoughtful contribution, and voices a concern that a number of others working in the field have begun to raise: the question of the relation of the domestic to the global within the GAL project. Here is the comment, worth republishing in full (I have added a few paragraphs, for ease of reading):

Just a little thought on the characterization of standard of review, due process etc. discussed in Hormones as 'global administrative law' issues. My lingering feeling is not as much about the individual concepts themselves, but how unconsciously these have become GAL paradigms. I believe the project in its earliest days, over three years ago, refused to confuse itself with domestic administrative law in theoretical underpinnings and modus operandi. I will be quick to add that when I say 'theoretical underpinnings', I don't deny the strong normative case made for a supra-national administrative law on the basis of the success of domestic administrative law principles and institutions. And when I talk of modus, I refer to the fact that it was open-ended and for debate if a GAL should draw from domestic law systems. What I rather intend to convey is the chastely observance of the typical international law tradition in the theoretical framework for the subject in those days: the compelling needs of modern international law, the powers of globalization and the state as a receding actor, those classical concepts upon which a purpose-oriented discussion was initiated. That accountability and transparency could be the domain of GAL without administrative law principles that we are so often tempted to revert to was a possibility that made the subject cutting-edge and left a whole lot of scholarship to brew.

What I think may happen with this (albeit justified) fetish for bracketing of instances like these as breakthroughs for GAL is a possibility that more theoretical explanations will have to be advanced to embrace a somewhat direction-less course for the subject. May be too strong a usage, but I see two far ends in the GAL colloquy that need to be bridged, a set of scholars who are making advances in the theory of the subject (like Dyzenhaus) while on the other, a group of scholars who have inadvertently narrowed the scope of the subject to a review of domestic administrative law-like happenings in the international field. A conceptual vacuum is left, one that may not be in need of an explanation, but that seems to exacerbate the two differently-headed GAL premises.

With the advantage of having seen the AB shift its leanings over the years, I believe this decision is opening yet another floodgate to litigation, not for having found new rights and duties, but for making a lengthy discussion that trade lawyers will have fun in putting up as issues before future panels. The one incident when there was real ad law happening in the AB was when it let amicus briefs in. Look at what happened: the AB incurred the wrath of the membership and went back to square 1 practically, accepting briefs but dismissing almost all of them as 'not relevant' to deciding the dispute(s). While I am unsure how this happening can be put within a theoretical framework other than the immediate realpolitik explanation that surfaces, the biggest reform that the AB is in need of is to make amicus briefs meaningful. Of course, then comes the issue of public hearings towards which we are moving at a fast pace. These are, in my opinion prime GAL candidates, not the standard of review or the burden of proof that are of an interpretative nature of the covered agreements, having nothing to impact directly the stakeholders in the WTO (people really affected by trade rules).

It would indeed be interesting to see in which direction GAL's theoretical scholarship will move in the coming days. Perhaps I personally am unable to handle the simplicity with which the second group of scholars are talking the subject (modern academic scholarship is more about being less arcane, one could say). I may ultimately be wrong in perceiving there is a kind of fissure in the direction for the subject, but it seems to me, at least now, that a more unified approach to the subject is necessary.

A similar point has been (or will be) raised by Nico Krisch (one of the founding fathers of the GAL Project) in his contribution to a forthcoming volume on postnational constitutionalism, which he has kindly allowed me to quote from in this post (and again worth quoting at some length):

GAL seeks to explore and map existing and emerging accountability practices, and it does so in a framework borrowed from administrative law. Here again, like constitutionalist models, it draws on domestic concepts for the understanding and construction of global structures. However, in GAL this move does not imply the prescriptive assumption that the tools of domestic administrative law ought to be transferred into the institutions of global governance, e.g. by establishing judicial review mechanisms wherever individuals are directly affected or by instituting public participation whenever global administrative bodies are engaged in rule-making. Instead, administrative law serves mainly as an inspiration and contrast: it serves as a framework for identifying converging and diverging developments in institutional practice, and it helps us sharpen our sensitivity for the problems and possibilities of establishing accountability mechanisms on the global level. Through reflection on the transferability of domestic concepts, the similarities and dissimilarities in both institutional structures and environmental conditions come into much clearer view.

B.S. Chimni’s work on the Codex Alimentarius Commission is a case in point: by studying the costs and benefits of stakeholder participation in its regulatory functions, we gain a more precise idea of the limits of using certain administrative law tools and with it a better sense for the conditions under which such tools may further broader normative goals. Using domestic administrative law as a background rather than as the basis for prescription also reflects the variations in administrative law structures from country to country. GAL scholarship has largely used the prism of US administrative law but has also drawn on other sources , and the resulting comparative angle also allows a sharper understanding of the differences in background assumptions between administrative law systems. Thus, turning to administrative law for inspiration is mainly an attempt to expand the intellectual and practical resources for thinking about global governance, for bringing out similarities and differences, rather than prescribing particular institutional solutions.

Both of these comments raise, in slightly different terms, what seems effectively the same issue: that of the the way in - and extent to - which global administrative law should draw on the experiences, rules, mechanisms and principles of its domestic counterpart. My own difficulty with raising the issue - important though it undoubtedly is - in abstract terms such as these is that we perhaps risk loading the words we use with more signficance than they might otherwise convey (what precisely does "inspiration" mean in Nico's quote above - does it preclude, should the circumstances so warrant, direct transplantation?); and, on the other hand, in setting up a straw man of those from whom the authors wish to distance themselves.

This second point strikes me as the crucial one. While it is certainly true that some authors have proposed using domestic frameworks as a model for GAL, I know of none that have even suggested that the application of these frameworks from the domestic to the global will be anything other than challenging. I take it as entirely uncontroversial that, as I have argued elsewhere, GAL will be at once recognisable by analogy to its domestic counterpart (indeed, it is this that justifies the choice of the "Administrative Law" moniker for the project) and at the same time something fundamentally new. That global administrative law will, must, be at one and the same time the same and not the same as domestic administrative law is clear; this is also, however, probably as much as we can say about the issue in the abstract - the precise contours of the sameness, or lack thereof, will and should vary from case to case, according to the specificities and the exigencies of each concrete situation.

Take, for example, what I have referred to as the "domestic coordinate" of GAL, and which the framing paper discussed as "distributed administration" - when national administrative bodies administer global regimes, or are otherwise subject to global rules. There is clearly a different dynamic at work here - and one that would perhaps more readily favour simple transplatation of familiar domestic administrative law rules and principles than there is in the case of, say, the Basel Banking Committee, ICANN or ISO. Nor does the result of this dynamic necessarily render GAL any more or lesss "cutting edge" in one context or another - while it may be less controversial to apply administrative law to state bodies than to networks of legislators, one of GAL's key advantages is to bring these two disparate situations within one (reasonably) coherent conceptual framework.

The risk here is that, in stressing the primacy of the new, positions like those adopted above might underplay the need for continuity with, and the potential of, the old; might underestimate the extent to which the domestic can - indeed must - inspire the global. In particular, even if the mechanisms and rules will of necessity change from one context to the next, the principles of domestic administrative law - accountability, transparency, participation, and the like - must remain the key considerations at the global level. Indeed, it is only through the transferral of these principles from the domestic to the global setting that we can identify what constitutes administrative law in the latter - that, however different the concrete manifestations are, GAL is primarily concerned with that which speaks to the accountability and transparency of, and participation within, global administrative bodies. (Unless of course, we adopt the European approach, where GAL is simply "the law of global administration" - neat in one sense, but brings a whole lot of problems of its own - not the least those of delimitation).

On there other hand, there is - and this is what both comments that I have quoted above are really driving at - a real risk of complacency involved in such transplantation; that rules and mechanisms that are not particularly well suited to the institutional or substantive context to which they are to be applied will be used simply through reliance upon some crude and unreflective domestic anaolgy. The point here is not that such instances are "not-GAL", but rather that they are bad GAL, or at least GAL that fails to live up to its potential. This is an ever-present possibility, to which proponents of the field must be constantly aware; but it is a possibility that can only ever be evaluated in context.

I want to conclude by making a few final observations on some of the other interesting points raised in the anonymous comment above, particularly in relation to the perceived "fissure" in the project, and the suspected need for unity. My own view on this is quite different. Indeed, I wonder if the term "project" is still appropriate to describe what is happening in GAL (if, indeed, it ever was), conveying, as it does, a sense of a relatively discrete research agenda directed by a relatively small group of institutional actors. GAL, to the contrary, is - perhaps always was - better encapsulated in the idea of an "emerging field": a field to which anyone with an interest can contribute, whose structure and boundaries are fluid and contestable, and - perhaps most importantly - in respect of which no one person or institution has authoritative definitional power.

To put the matter somewhat differently, while the commentator is undoubtedly correct in his/her observation that a number of GAL scholars have focused on theoretical issues, while others have been more empirical in their approach, there is no great degree of homogeneity within these two groups: not all of those writing in theory agree with the direction, or even with the major preoccupations, of Dyzenhaus (indeed, this is in some ways precisely his most recent point); and the empirical analyses betray a wide range of differing conceptions of what GAL "is", each of them integrating their theoretical presuppositions to a greater or lesser, more or less explicit degree. In this way, the debates that the commentator seemed to suggest above are non longer "up for grabs" remain every bit as open as they did three years ago; and conceiving of GAL as a field rather than a "project" helps us see that they will likely remain that way for some considerable time to come.

In any event, a belated thank you to the anonymous author for leaving such a throughtful and provocative comment; and to Nico for allowing me to quote from his forthcoming piece.

Monday, January 5, 2009

The UN Ethics Office and administrative law

To get things rolling in 2009, a quick link to an interesting article in the Wall Street Journal on recent UN efforts to curb internal misconduct and corruption, including allegations of retaliation against legitimate whistleblowers. The article is generally negative in tone (a subsequent letter to the editor provides a brief corrective). It discusses, amongst other things, the relatively recent establishment of a New-York based UN Ethics Office, led by Robert Benson:

Canadian attorney Robert Benson says that when he arrived at the U.N. in May 2007 he assumed that his New York-based Ethics Office had jurisdiction over the entire organization. But he soon learned it only oversaw the U.N. Secretariat - the U.N.'s main administrative body. Assorted agencies and funds opted to set up their own ethics bureaus.

"I wasn't a student of the United Nations," said Mr. Benson in an interview. "Would it be better to have one office? Absolutely."

The UN says it has no immediate plans to consolidate the various ethics bureaus, but it is finalizing one set of ethical standards to be followed by all its agencies...

The UN... set up Mr. Benson's office to foster "a culture of ethics, transparency and accountability."

The link between administrative law and professional ethics is made absolutely clear in the final sentence. One key question that arises here, however, is the extent to which the unified "ethical standards" that the Ethics Office is elaborating are to have legal force. While it is unlikely that they will themselves be formally binding (as the use of "standards" terminology suggests), it does seem likely that they will be intended to aid interpretation of terms such as "misconduct" in the course of legal proceedings (before, for example, the new UN Disputes and/or Appeals Tribunals). As with so many international standards, then, it would be entirely misleading to assume that because they are formally non-binding they are thus deprived of all legal force or significance.

The Ethics Office thus seems to be one of those hybrid bodies that are increasingly common within global administration: not only is it to function as an administrative body in its own right (through, e.g., the development of standards and other administrative activities) but also as an accountability mechanism, through its general oversight role over the actions of UN officials, and of those of the disparate Ethics Committees. The Terms of Reference of the Ethics Office make this dual function clear:

3.1 The main responsibilities of the Ethics Office are as follows:

  1. Administering the Organization’s financial disclosure programme;
  2. Undertaking the responsibilities assigned to it under the Organization’s policy for the protection of staff against retaliation for reporting misconduct and for cooperating with duly authorized audits or investigations;
  3. Providing confidential advice and guidance to staff on ethical issues (e.g., conflict of interest), including administering an ethics helpline;
  4. Developing standards, training and education on ethics issues, in coordination with the Office of Human Resources Management and other offices as appropriate, including ensuring annual ethics training for all staff;
  5. Such other functions as the Secretary-General considers appropriate for the Office.
It will be interesting to watch the development of the Ethics Office (by following, for example, the updates on the excellent Center for UN Reform Education website), and perhaps in particular the content of its unified ethical standards, the extent to which these contain administrative-law type considerations relating to transparency and accountability, and whether and how these standards are relied upon in proceedings before the UNDT and UNAT in the coming months and years. And it is not impossible that such standards could even begin to permeate those organizations outwith the UN system, in particular if they were to be picked up and relied upon by the ILOAT. In the meantime, the Ethics Office's "Whistleblower Protection Policy", in effect since January 2006 can be found here; the financial disclosure statement referred to above is here; and here is the Secretary General's report on the first 6 months of the Office's activities.

** Update ** Pursuant to a comment below by Carlos Ivan Fuentes, pointing out the extent to which the recent changes in the UN system follow the recommendations of the “Report of the Redesign Panel on the United Nations system of administration of justice”, here is a link to the Report itself, and here, courtesy again of the Center for UN Reform Education website, is a summary.

Happy New Year!

All the best to all readers of the GAL blog for 2009!

As far as resolutions go, I have resolved to add new content to the blog (at least) 3 times per week in 2009 - things got a little slow on here towards the end of last year. We'll see how this one goes (hopefully better than last January's "3 times per week at the gym" equivalent - but the less said about that the better...)

Another resolution is to respond to any and all comments that are left, hopefully in order to stimulate discussion here on some of the issues raised in the posts. Unfortunately, I missed a couple of chances to do so last year. So please feel free to leave make any constructive observations or criticisms that spring to mind!