Sunday, March 28, 2010

Did the WHO "Cry Wolf" Over Swine Flu?

The World Health Organization (WHO) is fast becoming one of the more controversial international organizations within the UN family, with a number of allegations (or, depending on your viewpoint, commendations) that it has developed a penchant for operating ultra vires, or beyond its mandate. The most striking (but by no means the only) example of this was in relation to the SARS crisis, where the WHO took certain steps to control the disease - such as the issuance of travel advisory warnings in relation to affected States - which had a significant impact on the economies of the States in question, but for which the Organization had no explicit mandate.

While the WHO actions with regard to SARS was not without its critics, it has been largely viewed as a good example of a global administrative body asserting its independence and acting rapidly to avert a global crisis. That, however, may be changing: following the prominent role played by the WHO in the swine flu scare, and the low levels of infection that have since been observed, the behaviour - and processes - of the Organization in this and other putative health crises is being revisited. (See here for the Daily Mash's inimitable take on WHO and the swine flu pandemic).

Via the Guardian, we learn that a draft report being prepared for the Parliamentary Assembly of the Council of Europe (PACE), by UK Labour MP Paul Flynn, is very critical of the WHO's handling of the swine flu outbreak, effectively accusing the Organization of "crying wolf" over the issue, and thus risking public confidence in future cases:

In the United Kingdom, the Department of Health initially announced that around 65,000 deaths were to be expected. In the meantime, by the start of 2010, this estimate was downgraded to only 1,000 fatalities. By January 2010, fewer than 5,000 persons had been registered as having caught the disease and about 360 deaths had been noted...

This decline in confidence could be risky in the future... When the next pandemic arises many persons may not give full credibility to recommendations put forward by WHO and other bodies. They may refuse to be vaccinated and may put their own health and lives at risk.

Interestingly, at a public hearing of PACE's Committee on Social, Health and Family Affairs, Flynn has expanded his comments to previous actions taken by the WHO:

The world has been frightened by a serious of health scares – SARS, Avian 'Flu and now Swine 'Flu. We now know, in hindsight, that the fears that were aroused do not appear to be justified. So we want to know how decisions on pandemics are taken – are they taken on the best scientific, epidemiological evidence, or are they influenced by other interests? That is the basis of this complaint. With H1N1, did the WHO, once again, frighten the world without any substantial evidence?

It is, of course, this focus on decision-making procedures that is of most interest to us from a GAL perspective; as the Guardian article notes,

Flynn's draft accuses the WHO of a lack of transparency. Some members of its advisory groups are flu experts who have also received funding, especially for research projects, from pharmaceutical companies making drugs and vaccines against flu.

This ties in to claims that are being made in other fields, most notably that of climate change and the recent travails of the IPCC (on which more soon): given that the production of scientific knowledge is now such a crucial part of global governance in a number of very high-profile fields, are we to see the traditional models of academic scientific accountability (most notably peer review) make way for more robust provisions modelled on - indeed, representing a discrete branch of - administrative law?

Monday, March 15, 2010

BITS, Fair and Equitable Treatment and the Cross-Pollination of GAL

I wanted to flag an interesting post by Roger Alford over on Opinio Juris, in which he notes that a New York court has given Chevron leave to bring an arbitration claim against Ecuador under the US-Ecuador Bilateral Investment Treaty, despite the fact that Chevron is currently fighting a 17 year old lawsuit in Ecuador over rain forest contamination (an issue that it acquired when it bought Texaco in 2001). Of key interest here is the fact that Chevron wants to go to arbitration over, inter alia, a claim that it has been denied due process in the Ecuadorean courts. More generally, they are seeking a finding that

...Ecuador has breached the 1194, 1995, 1996 and 1998 investment agreements and the Ecuador-United States BIT, including its obligations to afford fair and equitable treatment, full protection and security, an effective means of enforcing rights, non-arbitrary treatment, non-discriminatory treatment, national and most favoured nation treatment, and to observe obligations that it entered into under the investment agreements.

Of course, it is not certain that an arbitration proceeding would have any impact on the cae in Ecuador; or, indeed, that the panel would find that it had jurisdiction to hear the case. However, Alford notes that "In the hearing this week, counsel for plaintiffs in the underlying Ecuadorian litigation described the arbitration as 'a collateral attack' on a future Ecuadorian judgment"; and there would seem to be some risk of this, given that Chevron are also seeking a finding that

...Claimants have no liability or responsibility for environmental impact, including but not limited to any alleged liability for impact to human health, the ecosystem, indigenous cultures, the infrastructure, or liability for any unlawful profits, or for performing any further environmental remediation arising out of the former Consortium.

Of most interest to me here, however, is Alford's analysis of why Chevron is pursuing this course of action; which, if correct, provides an interesting insight into the way in which recourse to GAL mechanisms in one context can - at least, it is hoped - lead directly to improvements in administrative law protections at other levels of governance, and can also impact upon domestic implementation of awards from other jurisdictions:

My sense is that Chevron is bringing this action not only in an attempt to succeed on the merits of its due process claim, but also to send a signal to the Ecuadorian court that any future action that denies Chevron basic due process will be subject to international scrutiny. The Ecuadorian court now faces the unpleasant prospect of knowing that the Ecuadorian government may be on the hook financially for any improper judgment rendered against Chevron.

I also think it is quite plausible that the BIT arbitration is an opening salvo in future attempts by Chevron to challenge the enforcement of the Ecuadorian judgment in foreign courts. If a BIT arbitration panel concludes that Chevron has been denied due process, this would significantly bolster arguments that the foreign judgment should not be enforced in the United States under the Hilton v. Guyot standard.

Has the Secretary General been barred from bringing claims before the UN Dispute Tribunal?

The answer, it seems, is yes; until, at least, he does what he's told, says sorry and promises not to do it again...

A quick post to highlight a fascinating stand-off currently playing out in the new UN Dispute Tribunal (something I will post on in more detail when I get a minute, as it really is an important development in terms of more traditional international administrative law).

The case in question is Bertucci v. Secretary General of the United Nations, currently being heard by Judge Adams in New York. In his Order No. 40 (NY/2010) of 3 March 2010, he ordered the respondent (the Secretary General) to submit to the Tribunal certain documents pertaining to the case in question. On 7 March 2010, the Respondent entered a submission stating that it declined to submit the documents required of it, and giving reasons for this.

Judge Adams was, perhaps understandably, less than enamoured with this course of action. In Order No. 42 (NY/2010), he notes:

4. To disobey an order of the Tribunal is undoubtedly contempt. Whether it is so described matters not. A deliberate decision to disobey is a direct attack upon the jurisdiction of the Tribunal and its power to undertake the responsibilities with which it has been entrusted in its Statute by the General Assembly.

5. The Tribunal will not accept the legitimacy of disobedience of its orders...

8. This problem has been considered in the common law and the position is clear. Time does not permit me to discuss the relevant cases. But they do not represent any peculiarity of the common law, merely the consequences of the courts controlling their own procedures in the face of contempt-here the willful disobedience of an order of the court-by exercising its necessarily inherent power to vindicate the integrity of its jurisdiction. In my view, a party who has willfully disobeyed a direct order of the Tribunal is not entitled to appear in the Tribunal to advance its case, nor to call any evidence whilst that party remains disobedient and until that disobedience has been purged...

10. The third question is this: why should the respondent be entitled to appear in any proceedings before the Tribunal whilst it is in willful disobedience of an order of the Tribunal? Counsel for the respondent submitted that it should suffer its exclusion only in this case. I decided to reserve the question for the present, but I cannot think that the respondent can be permitted to say, in effect, that it cares about outcomes in different cases differently and only complies with orders where it wants to defend a case. I do not think the Tribunal can be subjected to such a process. But, for now, until my order is complied with, I will not hear the respondent. The applicant is entitled to proceed, on the basis that none of the respondent's material will be considered.

Counsel for the Secretary General then sought to argue that they should be heard in relation to other cases while the dispute over Order No. 40 was ongoing. Judge Adams clarified has since clarified his position, in Order No. 43, in the following terms:

8. Counsel for the respondent contended that it would, in effect, undermine the· administration of justice to deny the respondent a hearing. Of course, this would generally be the case. But the respondent is not being denied the opportunity to be heard, which is the correct statement of the principle. The respondent has it in his hands to take advantage of the opportunity to be heard by obeying the orders of the Tribunal. It is the respondent's own acts that must have the effect of excluding him. Counsel's argument essentially is that the respondent should be able to be heard in the Tribunal whilst denying the obligation to obey the orders of the Tribunal. This is an untenable position.

9. In my view, it would entirely undermine the authority of the Tribunal if the respondent could continue to invoke the jurisdiction of the Tribunal in cases where there were no orders to which he objected, but was indifferent to what occurred in cases where there were orders he decided he would disobey. It would leave the Tribunal in the position that it would never know whether its orders would be complied with or not in the face of the undoubted legal obligation to obey the Tribunal's orders. Accordingly, the Secretary-General will not be heard in the accountability case and he should have fair notice that should his counsel make application to be heard in the other cases before me, my present inclination is that until the disobedience of the Secretary-General is purged by producing the documents I have required to be produced, accompanied by an apology to the Tribunal and an undertaking not to disobey an order again, the respondent will not be entitled to appear, before me.

10. The fundamental purpose is not to punish the respondent, but to make clear that the respondent does not get to decide which orders he will comply with and which he will ignore. There is no other way the jurisdiction and integrity of the Tribunal can be upheld. I regard the refusal as a direct and brazen attack on the rule of law created by the General Assembly and solemnly embodied in the Statue of this Tribunal. The Secretary-General can either comply with the rule of law, or he can defy it, but it should be understood, that if ·he defies it, he cannot expect that the Tribunal will be prepared to listen to what might be said by him or on his behalf. I trust the matter is now clear.

It is hard not to like Judge Adams, who it seems is causing something of a stir in UN circles with his principled stand in these latest orders; the idea that the Secretary General is really bound by the decisions of the Tribunal has apparently come as a bit of a shock. In his latest order on this issue, Adams notes that the Secretary General has requested a week for "further consideration" to be given to the orders; refusing to back down, rhe eplied that "The question of principle is simple and easily understood. I am unable to see how any reasonable consideration of it could take so long." Updates on this case can be found here as it unfolds.

He also notes that "At the close of the day's proceedings, the Tribunal ordered that the officer who made the decision that Tribunal's Order 40 (NY 12010) would not be complied with is to appear before me at 10:00 a.m., Wednesday, 10 March 2010."

Shame I'm not still in New York - would have been fun to have been a fly on the wall at that one...

**UPDATE** Brilliantly, the officer in question didn't show up. Probably best just to give you Judge Adams' reaction in his own words:

It is clear that the decision to disobey the Tribunal's Order No. 40 (NY/2010) as to production of documents was taken by an officer of the Organization. Accordingly, yesterday I also ordered (Order No. 44 (NY/2010)) the officer who had made the decision to disobey the order, whose identity has not been disclosed, to appear in the Tribunal this morning at 10:00am, expecting that counsel for the respondent then in court would take appropriate steps to ascertain that person's identity and inform him or her of the order to appear...

At shortly after 9:30am this morning the Registry was informed in a document entitled "submission" and signed by a legal officer and the Chief of the Administrative Law Section of the Office of Human Resources Management as follows-

In response to Order No. 2010/44, the respondent notifies the Tribunal that the officer referred to ... will not be appearing before the Tribunal at 10.00am on 10 March 2010...

As I have already said, the refusal to obey the Tribunal's Order is a brazen attack upon the rule of law embodied in the Tribunal and cannot be disregarded. In other jurisdictions, serious personal penalties would apply to officials who willfully disobeyed the order of a court. That sanction is not. available to the Tribunal except through misconduct proceedings. It follows therefore that the Tribunal must use other means of enforcing the jurisdiction which has been entrusted to it by the General Assembly under the Charter and pursuant to its Statute. The Tribunal has an inherent jurisdiction to safeguard its own proceedings, to ensure that they are not abused by any party and to ensure, so far as possible, that its orders are obeyed. A party which is in willful disobedience of an order cannot at the same time expect that he, she or it will be permitted to invoke the jurisdiction of the Tribunal to vindicate their contractual rights. The Tribunal is no respecter of persons. The Organization, which is represented by the Secretary-General, is a mere contracting party before the Tribunal, with no status greater or better than that of the staff member, and is subject to the same rules.

When counsel was directed to convey my Order to the decision-maker, she informed me that she needed to "talk to her bosses" and could only convey my Order "through my hierarchy". I informed counsel, "Your bosses should understand that, if my Order is not obeyed, I will expect a person to appear tomorrow morning to explain why. It is the professional obligation of a lawyer to convey decisions of the court to the client. I expect that obligation to be fulfilled. If there is a question about whether it is fulfilled or not, I will expect an explanation."

That, I think, is quite clearly fighting talk.