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.

The WHO: What it's going to do, and how it's going to do it...

For those interested in global health governance, or in precisely why we insist that international organizations can now be viewed as now exercising public administrative power more generally, it's worth having a look at the WHO's Medium-Term Strategic Action Plan 2008-2013, in which the Organization sets out the strategic objectives that will guide its activities over the next six years, and, in some detail, the ways in which these will be met and the lessons learned from past endeavours. Amongst the activities that it will be carrying out include the "development, modification, validation and dissemination of standards and operating procedures"; increased research and data collection on various different health issues; providing guidance and other forms of technical assistance to governments in dealing with these; compiling evidence on cost-effective interventions; building the necessary capacity (at both the national and international levels) for enabling rapid responses to health emergencies as they emerge; and otherwise fulfilling what it styles as its "global leadership role" in the field.

There is also ample evidence of the increasing awareness of the importance of global administrative law in its activities - both in encouraging mechanisms of accountability and transparency in WHO member states (what I call the "domestic coordinate" of GAL), and in applying these also to its own activities (the "extranational coordinate"). As an example, consider the following two passages, the first referring to health governance in member states, the second to the governance of the WHO:

Although there is no single universal model for organizing service delivery, there are some well established principles. First, measures should be taken to prevent exclusion and ensure universal coverage with integrated services; second, the full range of providers, both public and private, have to be taken into account; third, unnecessary duplication and fragmentation needs to be avoided; and fourth, effective accountability mechanisms that involve civil society and include communities should be in place (p. 83).

…

The governing bodies need to be serviced effectively, and their decisions implemented in a responsive and transparent way. Clear lines of authority, responsibility and accountability are needed within the Secretariat, especially in a context where resources, and decisions on their use, are increasingly decentralized to locations where programmes are implemented (p. 101).

Hat tip to the Global Governance Watch website, for whom this document represents (yet another) “significant threat” to national sovereignty (indeed, no less than the rise of the "nanny UN"). Of course, to the extent that by this they mean the exercise of public power impacting upon national governments by extranational organizations, I can but agree; but surely the interesting question now is not how to stop this trend (that ship sailed some time ago), but how to regulate, confine and direct it.

GAL and... women's ski-jumping

As if to prove that there is almost no conceivable field of human activity that is not of at least potential interest to us here at the GAL blog, an interesting situation is developing in Canada with regard to its hosting the 2010 Winter Olympics. In a nutshell, a group of female ski-jumpers has brought a claim before the Supreme Court of British Columbia, claiming that the fact that men can compete in this event at the Olympics while women can't is discriminatory, and in particular in violation of Canada's Charter of Rights and Freedoms.

The International Olympic Committee (IOC) argues that the women's sport is not developed enough tobe included in the Olympics. The Vancouver Olympic Organizing Committee argues that the decision was made by the IOC, which is immune from jurisdiction before Canadian courts. According to the BBC, the key issue will be showing that the Canadian government has effective control over the Organizing Committee, which will thus render the Canadian Charter applicable. The Plaintiffs' Memorandum of Argument can be found here. Certainly, much time is spent arguing that VANOC is controlled and financed by the Canadian Government. Just as much time, however, is spent on the discrimination claim itself, and the fact that the women train and sacrifice just as much as the men, and thus deserve equal recognition. And it does not shy away from emotive language: "At its core, VANOC's failure to plan, organize, finance and stage even one ski jumping event for women is an affront to the human dignity of the Plaintiffs" (para. 181).

Loads of interesting issues here: the discrimination claim; the immunity claim; the role of domestic courts in effectively applying domestic law to decisions of an international organisation; the public-private dimension ever-present in controversies involving the IOC; and the liability of domestic members of global organisations for activities and decisions of the latter. What is the legal nature of the Vancouver Organizing Committee? Is it a Canadian Government Agency? An autonomous NGO? An IOC "field mission"? We'll be keeping a close eye on this one...

More on regulatory networks (from Opinio Juris and beyond...)

A quick post to flag some interesting exchanges over at Opinio Juris on the subject of transnational regulatory networks. Firstly, in the context of their regular Virginia Journal of International law symposia, GAL-veteran David Zaring has responded to an article by Pierre-Hugues Verdier on "Transnational Regulatory Networks and Their Limits". Verdier's response can be found here. Also, Ken Anderson has a post up on the same topic (in which he kindly links here), highlighting a further paper of interest on SSRN: Chris Borgen's "A Tale of Two Networks: Terrorism, Transnational Law, and Network Theory".

Well worth a look for those interested in the field.

More on the UN sanctions listing mechanism: The Sayadi case before the Human Rights Committee

Did I say that last week would be busier on here? This week. I meant this week. Now, to get the ball rolling, a quick link to a subject that I have been meaning to post on for months: the Sayadi case before the Human Rights Committee (hat tip to Marko Milanovic over at EJIL:Talk!). It is not a massively important issue, and there isn't a huge amount of GAL in it, but it should provide an interesting footnote for those interested in the issues that arose in the Kadi judgment, and the Security Council's sanctions listing mechanism more generally. The text of the decision is available via the PHD Studies in Human Rights blog.

The case involved the listing of certain Belgian nationals on the basis of information provided to the Committee by the Belgian Government. The individuals involved challenged their listing before the Belgian Courts, who, interestingly, ordered that the Belgian Government "urgently initiate a de-listing procedure with the United Nations Sanctions Committee and to provide the petitioners with proof thereof, under penalty of a daily fine of €250 for delay in performance". The Belgian Government requested delisting, but at the time of the Communication to the HRC, this had been unsucessful. The Belgian courts also, incidentally, cleared the individuals involved of guilt in any alleged criminal activities.

The HRC was thus compelled to consider the relation between the ICCPR and the UN Charter, and Security Council resolutions in particular. It did so in the following passage, reminiscent at least in part of the ECJ's Kadi decision:

Although the parties have not invoked article 46 of the Covenant, in view of the particular circumstances of the case the Committee decided to consider the relevance of article 46. The Committee recalls that article 46 states that nothing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations. However, it considers that there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the Charter of the United Nations. The case concerns the compatibility with the Covenant of national measures taken by the State party in implementation of a Security Council resolution. Consequently, the Committee finds that article 46 is not relevant in this case.

Most striking here, however, is that there is no mention of Article 103 of the UN Charter, which of course establishes the supremacy of UN obligations over all others. Indeed, although Belgium raises art. 103 in its own submissions, the HRC seems to ignore it entirely (although it does arise frequently in the dissenting opinions appended to the decision).

The complainants alleged the violation of a raft of ICCPR provisions, including the right to an effective remedy, the right to travel freely, the right not to be subject to unlawful attacks on their honour and reputation, the principle of legality of penalties, respect for the presumption of innocence and the right to proceedings that afford procedural and structural guarantees (para. 10.4). Of these, the HRC foudn a violation of the right to travel freely and the right not to be subject to unlawful attacks on reputation.

The reasoning behind this is intruiging, although perhaps, as Milanovic notes, more for its odd rather than its compelling nature. In the case of the right to travel freely, the Committee noted that Article 12 could be restricted for certain purposes, amongst which was certainly compliance with UNSC resolutions; but that it retained nevertheless the right to "to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council" (para. 10.6). It then held, in a passage worht quoting at a little length,

The Committee notes that the obligation to comply with the Security Council decisions adopted under Chapter VII of the Charter may constitute a "restriction covered by article 12, paragraph 3, which is necessary to protect national security or public order. It recalls, however, that the travel ban results from the fact that the State party first transmitted the authors’ names to the Sanctions Committee. The proposal for the listing, made by the State party on 19 November 2002, came only a few weeks after the opening of the investigation on 3 September 2002. According to the authors, this listing appears to have been premature and unjustified. On this point, the Committee notes the State party’s argument that the authors’ association is the European branch of the Global Relief Foundation, which was placed on the sanctions list on 22 October 2002, and the listing mentions the links of the Foundation with its European branches, including the authors’ association. The State party has furthermore argued that, when a charitable organization is mentioned in the list, the main persons connected with that body must also be listed, and this has been confirmed by the Sanctions Committee. The Committee finds that the State party’s arguments are not determinative, particularly in view of the fact that other States have not transmitted the names of other employees of the same charitable organization to the Sanctions Committee (see paragraph 9.2 above). It also notes that the authors’ names were transmitted to the Sanctions Committee even before the authors could be heard. In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban (para. 10.7).

The Committee then held (para. 10.8) that the fact that Belgian courts had dismissed the criminal case against the complainants, and that Belgium had requested de-listing from the Sanctions Committee, meant that these resolutions could no longer be viewed as a legitimate grounds for restricting freedom under Article 12(3) of the ICCPR, as "the facts, taken together, do not disclose that the restrictions of the authors’ rights to leave the country were necessary to protect national security or public order". A similar argument was used to support the finding that Belgium was responsible for an unlawful attack on the honour or reputation of the individuals involved (para. 10.13).

Here, the Committee seems to have argued that the internationally wrongful act of the Belgian Government under the ICCPR was not the implementation of the Security Council Resolution itself, but rather the act of communicating the individuals' names to the Sanctions Committee without sufficient evidence to do so, and without giving them the right to be heard. Over at ESIL:Talk, Milanovic is dismissive of this claim ("[t]his is not reasoning, not even result oriented jurisprudence – this is simply the Human Rights Committee’s wishful thinking"). I'm not entirely sure that it can be dismissed so easily - I see no a priori reason why an act of a State in initiating a process without sufficient grounds to do so should not be wrongful, particularly where that process both denies the basic human rights of the accused and is irreversible by the initiating State alone - but the fact it is the UN Security Council acting under Chapter VII certainly complicates matters. Indeed, this may be the key point, if the HRC's decision relies on the implication that the UN procedure violates human rights, as this in turn implies a power to review Security Council proceedings - a possibility that the Committee did not entertain here. Milanovic is thus undeniably correct that the decision would have benefitted massively from addressing this point in general, and the Article 103 problem in particular, at massively greater length than it did.

The HRC ordered that Belgium do everything in its power to secure de-listing, and pay compensation to the complainants (para. 12). To end on a miscellaneous point of interest, the HRC rejected the complainants' claim that the action taken by Belgium represented a criminal charge or punishment under Article 14 of the ICCPR (para. 10.11).

New article: The Concept of "Law" in GAL, by Benedict Kingsbury

Many apologies for the lack of action on here of late - time flies when you are moving house for the third time in a month. This week will be much more lively, as I try to catch up with all of the important developments that have happened in the last fortnight or so. To get the ball rolling, I wanted to flag a new article just published in the European Journal of International Law by Benedict Kingsbury: "The Concept of 'Law' in Global Administrative Law":

What constitutes ‘law’ in the efflorescent field of ‘global administrative law’? This article argues for a ‘social fact’ conception of law, emphasizing sources and recognition criteria, but it extends this Hartian positivism to incorporate requirements of ‘publicness’ in law. ‘Publicness’ is immanent in public law in national democratic jurisprudence, and increasingly in global governance, where it applies to public entities rather than to identifiable global publics. Principles relevant to publicness include the entity's adherence to legality, rationality, proportionality, rule of law, and some human rights. This article traces the growing use of publicness criteria in practices of judicial-type review of the acts of global governance entities, in requirements of reason-giving, and in practices concerning publicity and transparency. Adherence to requirements of publicness becomes greater, the less the entity is able to rely on firmly established sources of law and legal recognition. ‘Private ordering’ comes within this concept of law only through engagement with public institutions. While there is no single unifying rule of recognition covering all of GAL, there is a workable concept of law in GAL.

The field of global administrative law has, since its inception, faced three recurring challenges of central importance: "Global"? "Administrative"? and, predictably enough, "Law?". Each of these terms is hugely important, and heavily rhetorically charged - and yet none of them have been the subject of much in the way of sustained exposition within the Project to date. It is for this reason that this article is so important: here we have the first sustained attempt - by one of the "founding fathers" of GAL, no less - to account for why the signifier "law" is justified in relation to the Project. I will post some more reflections on this piece later in the week, when i have had a chance to read the final draft; on the basis of the earlier version presented at an NYU colloqiuim earlier this year, however, I can already say that it's well worth a read...