tag:blogger.com,1999:blog-21113480142294661972024-03-12T20:40:50.655-04:00Global Administrative LawA blog dedicated to the continuing development of the Global Administrative Law (GAL) Project: highlighting new events and publications, and providing a forum for discussion and debate.Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.comBlogger123125tag:blogger.com,1999:blog-2111348014229466197.post-972828044398222502010-04-27T03:45:00.006-04:002010-04-27T04:05:14.291-04:00Transparency at the World Bank<div style="text-align: justify;">This seems like <a href="http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:22547256%7EpagePK:64257043%7EpiPK:437376%7EtheSitePK:4607,00.html">an unqu<span style="font-family:georgia;">alifiedly good move</span></a><span style="font-family:georgia;">:</span><br /><br /><div style="text-align: center;"><span style="color: rgb(153, 0, 0);font-size:85%;" >WORLD BANK GROUP OPENS DATA TO ALL</span><br /></div><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />World Development Indicators, Global Development Finance, Africa Development Indicators, and Global Economic Monitor are now free, open, and easy to access at <a href="http://data.worldbank.org/">data.worldbank.org</a>.<br /><br />Recognizing that transparency and accountability are essential to development, the World Bank Group now provides free, open, and easy access to its comprehensive set of data on living standards around the globe—some 2,000 indicators, including hundreds that go back 50 years. The data is available in Arabic, French, and Spanish in addition to English.<br /><br />“I believe it’s important to make the data and knowledge of the World Bank available to everyone,” said World Bank Group President Robert B. Zoellick. “Statistics tell the story of people in developing and emerging countries and can play an important part in helping to overcome poverty. They are now easily accessible on the Web for all users, and can be used to create new apps for development. ”<br /><br />The open data announcement coincides with the launch of the <a href="https://publications.worldbank.org/ecommerce/catalog/product?item_id=9585416">World Development Indicators</a> (WDI) 2010, the Bank’s popular statistical resource. Apart from giving open access to the WDI, with nearly 1000 indicators, the initiative also opens up the <a href="http://data.worldbank.org/data-catalog/global-development-finance">Global Development Finance</a> (GDF), <a href="http://data.worldbank.org/data-catalog/africa-development-indicators">Africa Development Indicators</a> (ADI), <a href="http://data.worldbank.org/data-catalog/global-economic-monitor">Global Economic Monitor</a> (GEM), and indicators from the <a href="http://www.doingbusiness.org/economyrankings/">Doing Business report</a>.<br /><br />Access to these new resources is available at <a href="http://data.worldbank.org/">data.worldbank.org</a>, a central web site that makes it easier to find, use, and manipulate data. A <a href="http://data.worldbank.org/data-catalog">data catalog</a> lists the available databases. The Bank will continue to add databases in the months ahead. </span><br /><br />It is not, perhaps, the kind of transparency that we immediately think of in relation to the opening up of global administrative bodies (e.g. in terms of decision-making and dispute resolution), but this is nonetheless an important development. So-called "indicators" are becoming increasingly important as a tool of global governance, and the World Bank has been at the very forefront of this move. Opening up its data in this way will not only provide a hugely useful resource for those who want to incorporate it in their own projects; it will also give plenty to chew over for those who approach the "turn to indicators" from a more critical perspective, and seek to unmask the inevitable political choices and interests that lie behind the apparently neutral, technical façade.<br /><br />Incidentally, the IILJ is leading its own Project on <a href="http://www.iilj.org/research/IndicatorsProject.asp">Indicators as a Global Technology</a>, running in parallel to - and overlapping with - the GAL project more generally. Here's the blurb:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >The use of indicators as a technique of global governance is increasing rapidly. Major examples include the World Bank’s Doing Business Indicators; the World Bank’s Good Governance and Rule of Law indicators; the Millennium Development Goals (which inform many indicators); many OECD indicators and rankings; the indicators produced by Transparency International, by Freedom House, and by consultancies specialized in advising investors on political risks; and, the US State Department’s Trafficking in Persons indicators. Human rights indicators are being developed in the UN and regional and advocacy organizations. The burgeoning production and use of indicators has not been accompanied by systematic comparative study of, and reflection on, the implications, possibilities and pitfalls of this practice. What does it mean to use indicators as a technology of governance? How does the increasing use of indicators in global governance affect the distribution of power, and the power of the governed? How does it affect the nature of decision-making about the allocation of resources and efforts to monitor compliance with global standards? This project, directed by Kevin Davis, Benedict Kingsbury, and NYU legal anthropologist Sally Engle Merry, working closely with Meg Satterthwaite, Lewis Kornhauser, Richard Stewart, and other NYU faculty, examines this phenomenon. A framing paper and workshop series are in preparation.<br /></span><br />Some papers are available at the link above; they are well worth a read for those interested (on the World Bank in particular, see Kevin Davis and Michael Kruse, <a href="http://www.iilj.org/research/documents/I.DavisKruse.TakingtheMeasureofLaw.pdf">Taking the Measure of Law: The Case of the Doing Business Project</a>; on the project more generally, Kevin Davis, Benedict Kingsbury, and Sally Engle Merry, <a href="http://www.iilj.org/publications/2010-2.Davis-Kingsbury-Merry.asp">Indicators as a Technology of Global Governance</a>).<br /><br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com12tag:blogger.com,1999:blog-2111348014229466197.post-71770533482893611172010-04-05T23:13:00.003-04:002010-04-06T00:27:19.511-04:00Judge Adams and the Bertucci Case before the UNDT: An Update<div style="text-align: justify;">Following on from my earlier post on the facinating stand-off between the UN Secretary General and Judge Adams of the <a href="http://www.un.org/en/internaljustice/undt/orders-ny.shtml">New York office of the UN Dispute Tribunal</a>, I thought it might be interesting to post a quick update as to the latest developments. As far as I can see, these are to be found in <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-059.pdf">Ruling 59/Rev.1 On Production of Documents (26 March 2010)</a>. This slightly lengthier ruling runs to some 30 pages, but it is worth reading in that Judge Adams begins with a detailed summary of "the story so far" of his orders regarding the production of certain documents and people, and the flat refusal of the Secretary to comply with them.<br /><br />He then (at around para. 13) moves on to the most recent developments, which are, effectively, that the Secretary General has appealed the orders in question to the UN Appeals Tribunal, meaning that, in accordance with <a href="http://www.un.org/staff/panelofcounsel/pocimages/63253e.pdf">Art 7.5 of the Tribunal's Statute (ATS),</a> execution of the specified orders was automatically stayed. Adams' response did not mince words (apologies in advance for all the blockquotes in this post, but part of what makes this so interesting is the tone in which the debate is being conducted):<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />This action should be seen in context. Despite five appearances so far, counsel for the respondent did not intimate that any appeal was contemplated. Had it been under contemplation, it would have been an easy step to have sought a stay from the Tribunal to permit due consideration to be given to the question. Moreover, in respect of the order requiring attendance of the responsible officer, counsel for the respondent explicitly declined to submit either that it was made without jurisdiction or erred in law. And the question in issue is not complicated, either in law or in fact. However, the path chosen was simply to disobey the orders of the Tribunal. This strongly suggests that the appeal is not bona fide but a procedural device to avoid obedience or at least delay it.<br />...<br />[T]he suspension under art 7.5 of the ATS (assuming it to apply) did not deal with the problem of past disobedience and noted that the legal situation is clear beyond debate: an order made by the Tribunal must be obeyed, whether it is legally in error or not. Accordingly, until it is reversed on appeal or stayed, it is extant and compliance by the party to whom it is directed is an undoubted legal obligation. I explained that, at the time of the respondent’s refusal to obey, the orders were relevantly valid and that a suspension under art 7.5 of ATS could only operate prospectively. Thus, even though if (and I did not necessarily accept that this was so) the Tribunal’s orders were presently not executable, this could not change the fact that they were disobeyed at a time when there can be no doubt that they were executable. As I put it, the suspension cannot turn obedience into disobedience.</span><br /><br />There then follows a lengthy discussion of the meaning of the various relevant provisions of the Statutes of the Dispute and Appeals Tribunals respectively. The key elements of Adams' decision seem to be as follows:<br /><br />1) That the Secretary General has no residual discretion as to the production of documents that have been required by the Tribunal:<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />29. The UN Administrative Tribunal itself authoritatively stated on a number of occasions, as I set out in my Order No. 42 (NY/2010), that it would not accept the legitimacy of disobedience of its orders and that it was not for the Secretary-General to decide what would be provided and what would not... The reform of the system of the administration of justice has not increased the powers of the Secretary-General. He was not then a judge in his own cause and is not now. The DTS in art 9 gives power in unqualified language to require the production of documents...<br /><br />There is no reservation to the Secretary-General of any power to withhold documents required to be produced or to unilaterally determine the issue of confidentiality. Indeed, both the Statute and the Rules are manifestly inconsistent with the implication of any such power.</span><br /><br />2) That simply drawing adverse conclusions in the particular case in question was an inadequate response to the Secretary General's failure to comply with the Tribunal's Orders, and the challenge to the administration of justice that this poses (this represents a hardening of Adams' position from previous orders, in which he had only stated his "inclination" not to hear Counsel for the Secretary General in other cases until the disobedience was purged):<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >31. ... As to the consequences of disobedience, in respect of the particular case, the Secretary-General cannot require the applicant to be put to proof of his or her case and at the same time withhold evidence that is relevant to that case and, accordingly, judgment must be given by default to the applicant. In respect of compensation, the Tribunal must draw all available adverse inferences, since the Secretary-General cannot be permitted to profit from his disobedience.<br /><br />32. However, in my view, these outcomes are insufficient to deal with disobedience of an order to produce, since they are confined to the outcome of a particular case and do not vindicate or protect the jurisdiction of the Tribunal from the abuse of its proceedings that disobedience entails. As a matter of fundamental principle it cannot be proper that a party who defies the jurisdiction of the Tribunal can seek to take advantage of it and, in this respect, that must affect every case in which it seeks to do so until that disobedience is purged. This is not a matter of punishment, it is simply the logical consequence of refusing to acknowledge the jurisdiction of the Tribunal...<br /><br />33. Put in another way, a party cannot pick and choose which orders it will obey and which it will not, nor can it purchase the right to disobey by being willing to pay the price of losing the case in which, as it happened, the disobeyed order has been made.<br /></span><br />3) The Tribunal has the right to protect its own integrity, and that of its proceedings from abuse. (This was interesting, in that Adams had initially styled this as the "the common law approach to situations where a party is in defiance of an order of the court", and counsel for the Secretary General had indicated that this was an invalid importation of principles of national law to the UN system):<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >42. ... It follows from first principles that any judicial tribunal with the ability to make legally binding orders must possess inherent powers to control its own processes to protect its jurisdictional integrity, which follow necessarily from the very institution of the tribunal itself. Such a basic proposition does not depend on the national laws of States. As has been shown, the existence of such an inherent power has been asserted by the ILOAT and the UN Administrative Tribunal. The mere fact that the same situation is found in national courts is scarcely surprising, given the fundamental character of the rule and the essential logic that it embodies.</span><br /><br />4) That the Tribunal itself has jurisdiction to decide whether a putative appeal has caused proceedings before it to be stayed:<br /><br /><span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">44. In my opinion, the Tribunal has not only the jurisdiction but the inescapable obligation to determine whether or not its proceedings are stayed... The effect of a decision to leave the matter to the Appeals Tribunal to decide is to grant a stay, the very lawfulness of which is in issue. Of course, the Appeals Tribunal – if the matter needs to be decided there – will have to exercise its own judgment about the matter. But that is what appeals entail.</span><br /></span><br />5) That Orders of the Tribunal are not "judgments" in the sense of Art. 11 of the Statute of the Dispute Tribunal, which provides for appeals, and are thus not subject to appeal. In an interesting - and persuasive - discussion, Adams notes that the requirement for appeals to be filed within 45 days (under Art. 7.5 ATS) would, if applied to all orders in the manner suggested, simply produce absurd results:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >47. Moreover, on the respondent’s contention, no order for production could have a shorter timescale for compliance than 45 days. It is no answer to this (as was submitted during argument) that it could voluntarily be obeyed more quickly... In many instances, the making of such an order occurs during a trial, as when there is an adjournment and witnesses are ordered to attend on the following day or particulars or information are required for the continuation of proceedings. The notion that none of these orders – both conventional and essential for effective case management – and which might well be cascaded could require things to be done before 45 days had expired after each one is so absurd as to lead ineluctably to the conclusion that art 11 and art 11.3 in particular cannot apply to executory orders at all, in particular orders to produce documents.<br /><br />48. It is, of course, necessary to factor in – if these orders can be appealed – the time frames prescribed by the Appeals Tribunal’s Rules of Procedure. Under art 7 and 9 of these Rules, the appellant has 45 days to appeal a decision of the Dispute Tribunal and the respondent has 45 days in which to file an answer. Consequently, three months could well elapse even before the appeal of an order is ready for hearing. Cases interrupted by appeals against procedural orders could therefore experience very substantial delays indeed, possibly years. It is impossible to accept that such a consequence was contemplated, let alone intended, by the General Assembly.</span><br /><br />6) That the Orders for production and identification are not stayed:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >64... Although a stay was not initially sought by the respondent despite its evident availability, I have considered in fairness whether in the present circumstances I should order a stay pending the outcome of the appeal. I do not do so for two reasons. A stay can only be justified for good reasons. Where the essential ground is that the order is subject to appeal, it is necessary to be persuaded that there are substantial grounds for appeal with significant prospects of success, or that irreparable injury would be occasioned, as by destruction of the subject matter of the litigation, or there is some other good reason for doing so. Here, the respondent has not, it appears, yet put its grounds of appeal in final form and will not do so for some time. This is surprising. It may be naïve, but one would have thought that, before deciding to disobey an order of the Tribunal, careful consideration would first have been given to the legal questions involved and a clear conclusion drawn about its legality. That it appears now that the legal issues were not clearly articulated and understood is troubling. It suggests that legality was thought to be immaterial, or at least, not problematical. If they are the same as has been proffered to me, they are not substantial and do not have significant prospects of success. Although it is said that irreparable injury would result, this is not identified. If it means that the Tribunal would be placed in possession of sensitive and confidential material, that is scarcely irreparable, since confidentiality can be maintained by the Tribunal. Any other injury can be corrected by the Appeals Tribunal on the assumption, of course, that the appeal succeeds. Further, the identification of the relevant decision-maker is not an injury of any kind.</span><br /><br />As noted above, this is a fascinating incident; and it may well become something of a test case for the new administration of justice system at the UN. The stance of the Office of the Secretary General is pretty baffling: the refusal to identify the official concerned - indeed, the refusal by counsel to even identify the "bosses" to whom she is answerable (see para. 15) - is fairly preposterous in and of itself; while, barring any strings-pulled, ears-whispered-in travesty, Adams' contention that the chances of any appeal being successful seem remote in the extreme is also persuasive. Precisely why, then, they are not backing down on this issue - when it seems clear that Judge Adams will not - is something of a mystery.<br /><br />There is a further GAL-related subtext to this issue. At the <a href="http://www.iilj.org/GAL/documents/REPORT-GAL_Geneva_2009.pdf">GAL Workshop in Geneva last year on the role of IOs in global governance</a>, one issue that emerged was that head legal officers of international organisations were becoming increasingly concerned over the prospect of national court setting aside their immunities in disputes involving third parties where effective alternatives in terms of access to justice were not made available at the international level (and a concomitant acknowledgment that in many cases, existing arbitration provisions simply amounted to a denial of justice). One idea that was mooted, and received cautious support, was for extending the jurisdiction of administrative tribunals such as the UNDT and the ILOAT to cover third party disputes. So it is not inconceivable that the result of the current stand-off may have repercussion beyond simply the internal administration of the UN.<br /><br />So what next for Judge Adams and the Secretary General? Who will blink first? Will the Appeals Tribunal get involved? Will it make any difference? Stay tuned...<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com20tag:blogger.com,1999:blog-2111348014229466197.post-7120924886039265722010-04-01T02:11:00.002-04:002010-04-01T02:32:05.053-04:00The Strange Normativity of IOs: Part I<div style="text-align: justify;">A recurring question by those less familiar with the field of global administrative law is precisely why, and in what regard, the claim - central to the field - that international organizations can now be viewed as public administrative bodies can be made and defended. The stock answer is that they exercise public power that cannot be accurately described as either legislative or judicial in nature. "Administrative" then becomes something of a negatively-defined catch-all.<br /><br />Many, however, seem to find this unsatisfactory; and indeed, it does appear to me to be at best only half of a definition. I thought it might be useful, therefore, to start a small series of posts (perhaps a series of one; we'll see how things go) on the "strange normativity" of international organisations: that is, the ways in which their activities take on important normative characteristics, or impact upon the existing "hard" legal orders, whether at the global, regional or national levels. While this will not - at least initially - provide the missing "half" of the definition discussed above, it will I hope provide some examples of the reasons why it is suggested that the activities of international organisations that fall short of actual law creation (as most do) nonetheless have important public normative characteristics - and thus flesh out a little what is meant by this category of global "administrative" power.<br /><br />To kick off the series, an interesting example of the interplay between the activities of IOs and domestic constitutional law in my new home, Australia. As many will know, Australia is a federal state; and - as almost always is the case in federal states - the issue of the division of competences between the federal and state governments is often the cause of controversy. The issue is regulated by <a href="http://australianpolitics.com/articles/constitution/chapter-1-part-5-powers-of-the-parliament">s51 of the Australian Constitution</a>, which lists what are known as the "federal heads of power". Perhaps the most important of these is contained in s51(xxix.), which vests the power to legislate over matters involving "External Affairs" in the Commonwealth Parliament.<br /><br />Of particular interest to me here, however, is the expansive interpretation that this has been given by the Australian High Court. In <a href="http://www.austlii.edu.au/au/cases/cth/high_ct/158clr1.html"><span style="font-style: italic;">Commonwealth v. Tasmania</span> (1983)</a>, it held that<br /><br /><p> <span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">It is preferable that the circumstances in which a law is authorized by the external affairs power be stated in terms of what is sufficient, even if the categories overlap, rather than in exhaustive terms. To be a law with respect to external affairs it is sufficient that it:</span><br /></span> </p><blockquote style="color: rgb(153, 0, 0);"><span style="font-size:85%;"> (a) implements any international law; or<br /> (b) implements any treaty or convention whether general (multilateral) or </span></blockquote><span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">particular; or</span><br /><span style="color: rgb(153, 0, 0);"> (c) implements any recommendation or request of the United Nations Organization or subsidiary organizations such as the World Health Organization, The United Nations Education, Scientific and Cultural Organization, The Food and Agriculture Organization or the International Labour Organization;</span></span><br /><br />And further that:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligation.<br /></span><br />The "soft law" activities of IOs - of global administrative bodies - therefore have a direct normative impact on Australian constitutional law, in affecting the division of competencies between the Commonwealth and State parliaments. One interesting example, I thought, of the strange normativity of IOs...<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com1tag:blogger.com,1999:blog-2111348014229466197.post-65995126055361684802010-04-01T02:02:00.003-04:002010-04-01T02:11:48.880-04:00More on Chevron-Ecuador BIT arbitration<div style="text-align: justify;">Via <a href="http://opiniojuris.org/2010/03/31/chevron-wins-round-one-against-ecuador/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29&utm_content=Google+International"><span style="font-style: italic;">Opinio Juris</span></a>, a quick update on my <a href="http://globaladminlaw.blogspot.com/2010/03/bits-fair-and-equitable-treatment-and.html">post below</a>: <a href="http://www.reuters.com/article/idUSN3015829020100331?loomia_ow=t0:s0:a49:g43:r1:c0.500000:b32351268:z0">Chevron have just been awarded damages of circa $700 million</a> by an arbitral panel set up under the US-Ecuador BIT, on the basis that court delatys in rulings on commercial matters constituted a violation of the BIT <span id="articleText">by not providing an effective means of asserting claims and enforcing rights.<br /><br />While this case appears to have largely concerned an issue of judicial, rather than administrative due process, it is not irrelevant from a GAL perspective - not least because <a href="http://www.reuters.com/article/idUSN3014586020100331?loomia_ow=t0:s0:a49:g43:r1:c0.714286:b32359146:z0">Ecuador has rejected the finding of the arbitral panel</a>; a course of action that is not, in international legal terms at least, really open to it. Chevron's <a href="http://www.chevron.com/news/press/release/?id=2010-03-30">own site</a> (so perhaps not the least biased source around) notes that<br /></span><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >Ecuador is defending the second largest arbitration docket in the world with more than 11 claims seeking more than US$6.5 billion in damages. Ecuador has withdrawn from the World Bank's arbitration program, making it the second country ever to do so, and has indicated its intention to cancel scores of bilateral investment treaties that provide for international arbitration of investment disputes.</span><br /><br />It will be interesting to see whether this does indeed come to pass; and, if so, whether Ecuador will remain an outlier, or whether other developing countries may be tempted to challenge the network of bilateral treaties that have been developed to govern international investment.<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2tag:blogger.com,1999:blog-2111348014229466197.post-23671873741172467082010-03-28T21:05:00.005-04:002010-03-29T00:09:43.648-04:00Did the WHO "Cry Wolf" Over Swine Flu?<div style="text-align: justify;">The <a href="http://globaladminlaw.blogspot.com/2009/01/international-organizations-and-mandate.html">World Health Organization</a> (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 <span style="font-style: italic;">ultra vires</span>, or beyond its mandate. The most striking (<a href="http://globaladminlaw.blogspot.com/2009/01/international-organizations-and-mandate.html">but by no means the only</a>) example of this was <a href="http://books.google.com.au/books?id=-Lcu2-eCnfMC&pg=PA31&lpg=PA31&dq=schnur+world+health+organization&source=bl&ots=nLRg8sl1Tt&sig=olBqYwY-Z56Zb2VB0B-5QBYYYR0&hl=en&ei=nRSwS_P7LI6A7QPzv8C2Dw&sa=X&oi=book_result&ct=result&resnum=5&ved=0CBkQ6AEwBA#v=onepage&q=schnur%20world%20health%20organization&f=false">in relation to the SARS crisis</a>, 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.<br /><br />While the WHO actions with regard to SARS was <a href="http://books.google.com.au/books?id=KTIbxACnMgYC&printsec=frontcover&dq=Delegation+and+Agency+in+International+Organizations&hl=en&ei=XRawS-SzIYH66QPnocW_Dw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CDoQ6AEwAA#v=onepage&q=cortell&f=false">not without its critics</a>, it <a href="http://books.google.com.au/books?id=kZRaDr1VzR4C&pg=PA64&lpg=PA64&dq=who+ultra+vires+sars&source=bl&ots=nvKanR5t9u&sig=U2j4gsofx5KQ25Txaj31yj-BKCQ&hl=en&ei=kgKwS9DnHJLk7AOVmuSwDw&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBAQ6AEwAw#v=onepage&q=who%20ultra%20vires%20sars&f=false">has been largely viewed</a> 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 <a href="http://www.thedailymash.co.uk/news/health/-pandemic-obviously-not-what-you-thought-it-was-200904301734/">here</a> for the Daily Mash's inimitable take on WHO and the swine flu pandemic).<br /><br />Via <a href="http://www.guardian.co.uk/world/2010/mar/28/who-public-confidence-flu-pandemic">the <span style="font-style: italic;">Guardian</span></a>, 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:<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />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...<br /><br />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.<br /></span><br />Interestingly, <a href="http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=5209">at a public hearing of PACE's Committee on Social, Health and Family Affairs,</a> Flynn has <a href="http://assembly.coe.int/ASP/APFeaturesManager/defaultArtSiteView.asp?ID=900">expanded his comments</a> to previous actions taken by the WHO:<br /><br /><span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">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?</span></span><br /><br />It is, of course, this focus on decision-making procedures that is of most interest to us from a GAL perspective; as the <span style="font-style: italic;">Guardian </span>article notes,<br /><span style="font-size:85%;"><br /><span style="color: rgb(153, 0, 0);">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.</span></span><br /><br />This ties in to <a href="http://globaladminlaw.blogspot.com/search/label/Science">claims that are being made in other fields</a>, most notably that of climate change and <a href="http://www.guardian.co.uk/commentisfree/cif-green/2010/mar/26/dont-hound-the-climate-scientists">the recent travails of the IPCC</a> (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?<br /><br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com4tag:blogger.com,1999:blog-2111348014229466197.post-46209292246711061372010-03-15T21:30:00.005-04:002010-03-15T22:02:11.815-04:00BITS, Fair and Equitable Treatment and the Cross-Pollination of GAL<div style="text-align: justify;">I wanted to flag an <a href="http://opiniojuris.org/2010/03/12/using-arbitration-to-promote-due-process-and-challenge-foreign-judgments/#comments">interesting post by Roger Alford</a> over on <span style="font-style: italic;">Opinio Juris</span>, in which he notes that a <a href="http://www.google.com/hostednews/ap/article/ALeqM5iduunBQn22jdm_0_ATaX7pPCBKBAD9ECLQAO0">New York court has given Chevron leave to bring an arbitration claim against Ecuador</a> 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, <span style="font-style: italic;">inter alia</span>, a claim that <a href="http://www.google.com/hostednews/ap/article/ALeqM5iduunBQn22jdm_0_ATaX7pPCBKBAD9ECLQAO0">it has been denied due process in the Ecuadorean courts</a>. More generally, they are seeking a finding that<br /><br /><span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">...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.</span></span><br /><br />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<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />...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.</span><br /><br />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:<br /><br /><p style="color: rgb(153, 0, 0);"><span style="font-size:85%;">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. </span></p> <span style="color: rgb(153, 0, 0);font-size:85%;" >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 <a target="_blank" href="http://supreme.justia.com/us/159/113/case.html">Hilton v. Guyot</a> standard.</span><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com1tag:blogger.com,1999:blog-2111348014229466197.post-45664581194638192152010-03-15T02:32:00.009-04:002010-03-15T21:29:58.689-04:00Has the Secretary General been barred from bringing claims before the UN Dispute Tribunal?<div style="text-align: justify;">The answer, it seems, is yes; until, at least, he does what he's told, says sorry and promises not to do it again...<br /><br />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).<br /><br />The case in question is <span style="font-style: italic;">Bertucci v. Secretary General of the United Nations</span>, currently being heard by Judge Adams in New York. In his <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-040.pdf">Order No. 40 (NY/2010)</a> 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.<br /><br />Judge Adams was, perhaps understandably, less than enamoured with this course of action. In <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-042.pdf">Order No. 42 (NY/2010)</a>, he notes:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >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.<br /><br />5. The Tribunal will not accept the legitimacy of disobedience of its orders...<br /><br />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...<br /><br />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.<br /></span><br />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 <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-043.pdf">Order No. 43</a>, in the following terms:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >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.<br /><br />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.<br /><br />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.<br /></span><br />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 <span style="font-style: italic;">really </span>bound by the decisions of the Tribunal has apparently come as a bit of a shock. In his <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-044.pdf">latest order on this issue</a>, 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 <a href="http://www.un.org/en/internaljustice/">here</a> as it unfolds.<br /><br />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."<br /><br />Shame I'm not still in New York - would have been fun to have been a fly on the wall at that one...<br /><br /><br />**UPDATE** Brilliantly, the officer in question <a href="http://www.un.org/en/internaljustice/undt/orders/ny-2010-046.pdf">didn't show up</a>. Probably best just to give you Judge Adams' reaction in his own words:<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />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...<br /><br />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-<br /><br />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...<br /><br />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.<br /><br />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."<br /></span><br />That, I think, is quite clearly fighting talk.<br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com6tag:blogger.com,1999:blog-2111348014229466197.post-28652763934405241812010-02-21T18:43:00.005-05:002010-02-21T19:23:30.390-05:00... And a conference on Private Military Companies<div style="text-align: justify;">As a quick follow up to <a href="http://globaladminlaw.blogspot.com/2010/02/new-publication-on-private-military.html">my earlier post</a>, a conference that may be of interest to readers - particularly Francophone readers - of the GAL blog has been brought to my attention:<br /><br /><div style="text-align: center; font-weight: bold;"><div style="text-align: center;">Colloque<br />Université d’Auvergne - Faculté de droit de Clermont-Ferrand </div><div style="text-align: center;"><span style="font-size:large;">Lucrum in bello</span><i><span style="font-size:large;">:<br />Les entreprises militaires et de sécurité privées dans le monde contemporain </span></i></div>Clermont-Ferrand</div><div style="text-align: center; font-weight: bold;">4-5 mars 2010 </div><br />The full programme is <a href="http://www.droit.u-clermont1.fr/upload/pdf_actu/programme-colloque4-5mars.pdf">available here</a> (and <a href="http://nomodos.blogspot.com/2010/02/colloque-lucrum-in-bello-les.html">here</a>). There is clearly much that will be of real interest from a GAL perspective, with individual sessions on "le cadre juridique des entreprises militaires et de sécurité privées" and "les questions de responsabilité naissant de l'activité des entreprises militaires et de sécurité privées" (both of the Companies themselves and of the entities that make us of them); and a round table on the issue of "Quel contrôle exercer sur les entreprises militaires et de sécurité privées?".<br /><br />As far as I can see, registration is free - just contact christiane.baroukh@u-clermont1.fr. Looks like a very interesting event, for those linguistically and geographically able...<br /><em></em></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-69691427356986179362010-02-21T18:16:00.003-05:002010-02-21T18:42:57.712-05:00New publication on private military companies...<div style="text-align: justify;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjMkfLyjammQi6u6BjDuYRdcGljPVSRigbVCqwyark1SOwLqYN4E35i8BrTEzif7H6nSBVB_yfwKHfcRWqRUluB8THXsiFzI0LwVy2lSbvF5_BjVPIHBfANyCCUjWTxq7MVw9rXV9_X98Gi/s1600-h/9780199574124.jpg"><img style="float: right; margin: 0pt 0pt 10px 10px; cursor: pointer; width: 135px; height: 200px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjMkfLyjammQi6u6BjDuYRdcGljPVSRigbVCqwyark1SOwLqYN4E35i8BrTEzif7H6nSBVB_yfwKHfcRWqRUluB8THXsiFzI0LwVy2lSbvF5_BjVPIHBfANyCCUjWTxq7MVw9rXV9_X98Gi/s320/9780199574124.jpg" alt="" id="BLOGGER_PHOTO_ID_5440846346386683874" border="0" /></a>The issues surrounding the use of private military companies have long been of more than tangential interest to the field of global administrative law; it represents in many ways the paradigmatic example of "outsourcing" of public functions (indeed, the public function <em>par excellence</em>) to private actors.<br /><br /></div><div align="justify"> </div> <div align="justify">The recent volume edited by Simon Chesterman and Angelina Fisher, <em><a href="http://www.iilj.org/publications/documents/PrivateSecurityPublicOrder.pdf">Private Security, Public Order: The Outsourcing of Public Services and its Limits</a> </em>(OUP, November 2009) deals squarely with the GAL aspects of this issue. The introductory chapter is <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1461866">available in full here.</a> This is the second edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies; the first, <a href="https://files.nyu.edu/sc1192/public/books/mercenaries/index.html"><span style="font-style: italic;">From Mercenaries to Market: The Rise and Regulation of Private Military Companies</span></a>, edited by Chesterman and Chia Lehnardt, was published by OUP in 2007.<br /><br />Here is the (edited) blurb from the new volume:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >Private actors are increasingly taking on roles traditionally arrogated to the state. Both in the industrialized North and the developing South, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction...<br /><br />[This volume] looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, the book examines private military and security companies through the wider lens of private actors performing public functions. In the past two decades, the responsibilities delegated to such actors - especially but not only in the United States - have grown exponentially. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally "public" functions. Can and should a government put out to private tender the fulfillment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? This discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.</span><br /><br />And the table of contents:<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />Introduction — Simon Chesterman & Angelina Fisher<br /><br />Part I: Accountability gaps<br />1. The privatization of violence — Michael Likosky<br />2. The responsibility of states — Olivier De Schutter<br />3. Accountability to whom? — Angelina Fisher<br /><br />Part II: Lessons from other sectors<br />4. The privatization continuum — Daphne Barak-Erez<br />5. Private prisons and the democratic deficit — Alfred C. Aman, Jr.<br />6. Regulatory choices in the privatization of infrastructure — Mariana Mota Prado<br />7. Human rights and self-regulation in the apparel industry — Rebecca DeWinter-Schmitt<br /><br />Part III: Limits<br />8. Police informants — Jacqueline Ross<br />9. Intelligence services — Simon Chesterman<br />10. Peacekeeping — Chia Lehnardt<br /><br />11. Conclusion: Private security, public order — Simon Chesterman & Angelina Fisher</span><br /><br />Essential reading for those working in this particular field, and well worth a look for anyone interested in the public/private nexus within the field of GAL.<br /><br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2tag:blogger.com,1999:blog-2111348014229466197.post-15141938261375098992010-02-19T00:27:00.006-05:002010-02-19T01:01:41.624-05:00The Sixth Viterbo GAL Seminar<div align="justify">And in the first post of the New Era, I return to a GAL Blog staple: <a href="http://www.irpa.eu/index.asp?idA=167">the yearly Seminar in Viterbo, Italy</a>. Unfortunately, the deadline for paper submission has, of course, already passed; however, given the importance and topicality of the theme this year, it's sure to be a cracker.<br /><br />This year's event will take place, as always, at the University La Tuscia, Viterbo, and will be held on the 11th-12th of June 2010. Its theme is, in a sense, the only one it could be this year: "The Financial Crisis and Global Regulatory Governance" (<a href="http://globaladminlaw.blogspot.com/2008/11/g-20-statement-from-washington-summit.html">as I have discussed before,</a> one of the striking features of the debates on how to respond to the crisis is the apparent consensus that we will need more global administration). Here is the blurb:<br /><br /><span style="font-size:85%;color:#990000;">The basic models of market regulation that have prevailed during the XX century had been forged in reaction to the crisis of 1929. The responses given to that economic emergency, initially conceived as transient, have deeply shaped the relations between the market and the State for more than fifty years. In the United States, the New Deal has immensely expanded the reach of the public regulatory powers in economic and social matters and has led to the introduction of new modes of interaction between the citizens and the agencies through the 1946 Administrative Procedure Act. Similarly, in Europe, the crisis has expanded the programs of public assistance and the instruments of central planning, thereby subjecting the market to a significant State control.<br /><br />At the international level, the Bretton Woods institutions (IMF, WTO, World Bank) were created after WWII to address various structural aspects of the 1929 crisis as well as states’ “beggar thy neighbor” policy responses to it, and prevent a recurrence of a prolonged global depression.<br /><br />In the last thirty years, widespread convergent processes of liberalization, privatization and internationalization have eroded the State control over the economy and altered the balance between the public and the private sphere. State authorities have begun to lose their centrality, to the advantage of private organisms and supranational institutions. Many aspects of state regulation have been regarded as ineffective or even counterproductive, and have been complemented or partially superseded by private law approaches, by private regulatory initiatives and/or by self-regulation.<br /><br />However, the recent financial crisis has subverted the trend. States have reasserted enormous powers over the market and its actors. On one hand, the bailout of banks and financial institutions – considered “too big to fail” – has paved the way to the reintroduction of public tools to regulate and shape the economy. Some of the crucial developments concern specifically the financial sector, which is increasingly subject to regulatory scrutiny and expanded controls. . Are these tools comparable to techniques used earlier? Though designed for temporary purposes, are they destined to endure and live through the crisis, as happened after the Great Depression? What similarities are there between problems and remedies in earlier crises in different economies, including the general economic crisis which began in 1929, and the current epoch? </span><br /></div><div align="justify"><br /><span style="font-size:85%;color:#990000;">The crisis has also shown the limits of a State-centered regulatory model, inducing the national authorities to intensify their cooperation. At the same time, it has tested the ability of Bretton Woods institutions and other international and supranational consultative or regulatory regimes to deal with the crisis as such or to deal with measures taken by states to limit damage to domestic production and employment. At the global level, as in Europe and other regions, initiatives have been launched to reform the financial institutional setting and expand the reach of their powers. Just to mention one example, the Financial Stability Forum has been institutionalized as Financial Stability Group, in order to fill an evident gap in global regulatory governance. How successful will this and similar attempts be? Is it possible to “redeem” the financial sector from its “vices”? Is the lack of rules the real problem? And is the regulatory system ready to take a sustained statist turn? </span><br /></div><div align="justify"><br /><span style="font-size:85%;color:#990000;">The 6th Viterbo Gal Conference will provide the opportunity to present advanced research projects on the financial crisis and on global regulatory measures to deal with it, including states’ domestic policy responses.. A global administrative law approach will provide the main analytical tools: accordingly, the papers should focus on the structure of the global and regional regulatory governance relating to finance, trade (including questions of state aids) and related aspects of the crisis; on the powers thereby exercised; on their effectiveness and accountability, or on critical or conceptual perspectives on these issues. Given the complexity of the subject, an interdisciplinary exchange will be favoured. Papers may, thus, also address the topic by adopting an historical, economic and/or international relations approach, and/or a legal approach. Historical approaches could include an analysis of responses to past global economic and financial crises. </span></div><div align="justify"><br /></div><div align="justify"><span style="color:#990000;"></span></div><div align="justify">The papers that have been selected are as follows (<a href="http://www.irpa.eu/index.asp?idA=293">I was on the selection panel this year</a>, and these were among the best of a very good bunch of promising abstracts; we would gladly have taken more had financial and organisational constraints not dictated otherwise):</div><div align="justify"><br /></div><div align="justify"><span style="font-size:85%;color:#990000;">“Towards an Institutional and Legal Governance Structure in a Globalizing Securities Market”, Susan Yin (Ph.D. candidate at the Centre for Commercial Law Studies, Queen Mary University of London).<br /><br />“Global Financial Standards and Regulatory Failure”, Maurizia De Bellis (Lecturer, University of Roma “Tor Vergata”)<br /><br />“Credit Rating Agencies: Do We Need Draconian Oversight? A Critical Assesment of Current Reforms Initiatives”, Elisabetta Cervone (Ph.D in Banking and Financial Law at the University of Siena).<br /><br />“Global risk management for transnational markets: developing an effective regulatory system for financial services”, Markus Glaser (Post-doctoral research fellow, Sciences Po Paris, Chair «Mutations de l’Action Publique et du Droit Public»)<br /><br />“Towards a new Bretton Woods system or institutional fragmentation?”, Nikolaos Lavranos (Assistant Professor European Law and Senior Researcher International Law, University of Amsterdam).<br /><br />“The Finance Good Shepherd: How legal intervention will serve the quest for global financial stability as a public good”, Chiara Orlandini (Graduate Institute of International Studies, Geneve).<br /><br />“Protection of Investors in Financial Crises: Lessons of 1929 and 1930”, Martins Paparinskis (Hauser Research Scholar, New York University). </span></div><div align="justify"><br /></div><span style="font-size:85%;color:#990000;"><div align="justify"><br />“Accountability of China's Financial Governance: Moving Forward or Backward”, Miao Xinhao (Assistant Professor of International Law School of Southwest University of Political Science and Law, Xiamen University).<br /><br />“The impact of the financial crisis on institutional transformation”, Myriam Senn (Swiss Federal Banking Commission).<br /><br />“Banking Regulation in Mexico: Lessons from Financial Crises”, Karen B. Sigmond (PhD. Directora de Programa Tecnólógico de Monterrey, Campus Cd. de México).</span></div><div align="justify"><br /></div><p align="justify">It is unlikely - though not impossible - that I will be able to make it this year; something that I very much regret, as it is always an extremely worthwhile event with a sense of continuing community that is second to none.<br /></p>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2tag:blogger.com,1999:blog-2111348014229466197.post-58098119170133600882010-02-19T00:15:00.002-05:002010-02-19T00:27:10.127-05:00The Blog Is (Not Quite) Dead - Long Live the Blog!<div align="justify">OK, so <a href="http://globaladminlaw.blogspot.com/2009/01/happy-new-year.html">last year's resolution</a> did not work out as anticipated; certainly, a five-monthy hiatus was not how I intended the second half of 2009 to go on here. Indeed, I had thought that a period of being "between institutions" (my current favourite euphemism for my nine-months or so of unemployment) would enable me to dedicate more time to the blog. Still not entirely sure why things didn't work out that way...</div><div align="justify"> </div><div align="justify">Things have changed a little, however: alert readers (if indeed there are any readers left) will observe that my email address has changed, a product of my recent move to take up a position lecturing at the University of Sydney. It's a fantastic city and a fantastic institution, and I'm absolutely delighted to be here; I will, of course, begin preaching from the Book of GAL just as soon as I get settled.</div><div align="justify"> </div><div align="justify">I'm also going to try to shake things up a little on here, in particular by getting more contributions from guest authors (you know who you are!), whether on an ad-hoc or more regular basis. Where we do have more detailed guest posts, I will also try to encourage discussion of the points raised, wherever possible.</div><div align="justify"> </div><div align="justify">Anyway, a belated "all the best" for 2010 to whoever is still reading!</div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-18976815915348667642009-09-01T15:54:00.004-04:002009-09-01T16:02:31.083-04:00Spot the GAL...<div style="text-align: justify;">GAL is everywhere; or at least, the demand for it is. From the fantasy football world of the UEFA Champions League (via the <a href="http://www.guardian.co.uk/football/2009/sep/01/eduardo-banned-uefa-diving-arsenal-celtic"><span style="font-style: italic;">Guardian</span></a>):<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />The Arsenal striker Eduardo has been banned for two Champions League matches by Uefa having been found guilty of diving during the second leg of their play-off against Celtic.<br /><br />Uefa's disciplinary panel made the ruling after a teleconference. The panel said the Brazil-born Croatia forward deceived the referee when he was awarded a penalty after a challenge by Artur Boruc, the Celtic goalkeeper, last Wednesday.<br /><br />Arsenal this evening condemned the "arbitrary" nature of Uefa's decision, but have not yet revealed whether they will contest the ban. A statement on their website read: "The club is disappointed with Uefa's decision to suspend Eduardo. We have been informed that we will receive a "reasoned decision" from Uefa by Thursday of this week. Once we receive Uefa's rationale, we will make a decision on the next steps.<br /><br />"We have been deeply frustrated by the perfunctory and apparently arbitrary process that Uefa has followed in this instance. We believe it is imperative that Uefa's explanation for its decision provides clear and comprehensive standards that will be consistently enforced. It is also critical that Uefa provides specific details of the processes it plans to adopt in reviewing all games under its jurisdiction."</span><br /><br />Anyone interested in the actual incident that has caused this controversy can see it <a href="http://www.youtube.com/watch?v=9Az0RTMLB44">here.</a> Seems a pretty clear cut case of "simulation" (the preferred euphamism of the Italians for this particular form of cheating); Arsenal's point, however - which seems to be that given the prevalence of this sort of thing in the sport, UEFA are going to have a busy time in the future in their efforts to adopt a consistent and coherent line on this - is both true and interesting...<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2tag:blogger.com,1999:blog-2111348014229466197.post-56402308989683078002009-08-06T08:05:00.004-04:002009-08-06T08:33:13.211-04:00Post-Kadi progress within the EU?<div style="TEXT-ALIGN: justify">The second post that I wanted to flag today from over at the <span style="FONT-STYLE: italic"><a href="http://www.ejiltalk.org/">EJIL:Talk!</a></span> blog is an excellent round-up and analysis of post<span style="FONT-STYLE: italic">-<a href="http://globaladminlaw.blogspot.com/search/label/Kadi">Kadi</a> </span>developments by Devika Howell: <a href="http://www.ejiltalk.org/a-house-of-kadis-recent-challenges-to-the-un-sanctions-regime-and-the-continuing-response-to-the-ecj-decision-in-kadi/">'A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi'</a>. The author discusses Kadi's new appeal, the <span style="FONT-STYLE: italic">Kadi </span>case as precedent in <a href="http://globaladminlaw.blogspot.com/2009/07/eu-terrorist-listing-in-post-kadi-world.html">the <span style="FONT-STYLE: italic">Othman </span>judgment</a>, and <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0187:FIN:EN:PDF">the proposal by the European Commission</a>, on the 22nd of April 2009, for a new Council regulation.<br /><br />Howell is more positive on the transformative potential last of these than I am at present. On one hand, she is correct in noting that<br /><br /><span style="COLOR: rgb(153,0,0);font-size:85%;" >The proposed regulation provides for ‘a listing procedure ensuring that the fundamental rights of defence and in particular the right to be heard are respected’ in the case of all individuals and entities listed by the UN. The proposed regulation would replace the current system of automatic listing with a duty upon the Commission to consider the appropriateness of the listing independently. It also provides for a method by which to consider classified information of the UN and other member states. Due in large part to the failure of the Security Council to provide satisfactory due process protections, this proposed measure threatens to take decision-making about sanctions out of the hands of the Security Council and into the hands of a regional body.</span><br /><br />On the other hand, however, <a href="http://globaladminlaw.blogspot.com/2009/06/little-more-still-on-fallout-from-kadi.html">as I have already blogged previously</a>, the proposed regulation is little if anything more than a general formalisation of <a href="http://globaladminlaw.blogspot.com/2009/05/kadi-recent-developments.html">the - fairly paltry - concessions made to the individuals concerned</a> in the light of the <span style="FONT-STYLE: italic">Kadi</span> judgment: a short statement of reasons, an opportunity to make representations, and a promise to take these into consideration. As before, the really interesting question is whether or not the ECJ will view these as significant enough changes to fulfil human rights obligations; as it stands, I feel it is not a massively important adjustment. </div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com1tag:blogger.com,1999:blog-2111348014229466197.post-12490574538293137292009-08-06T07:52:00.004-04:002009-08-06T08:04:50.122-04:00GAL fun in the world of international cricket...<div style="text-align: justify;"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiBfRWIrcay1SBCOxlQvwYQuxrXr_gaEZxavPoTVgA9bx7VC1-15YW6LKg_OkKvGA-b7b6M7-a5gA7VO6LmxJqPprRa2T-HYSrnFejFCcV57j2B3Tm60ZuKG_I5L7cVjrE9VgmQFTSbfqO2/s1600-h/bcci.png"><img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer; width: 145px; height: 156px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiBfRWIrcay1SBCOxlQvwYQuxrXr_gaEZxavPoTVgA9bx7VC1-15YW6LKg_OkKvGA-b7b6M7-a5gA7VO6LmxJqPprRa2T-HYSrnFejFCcV57j2B3Tm60ZuKG_I5L7cVjrE9VgmQFTSbfqO2/s200/bcci.png" alt="" id="BLOGGER_PHOTO_ID_5366820424672193506" border="0" /></a>I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: <a href="http://www.bcci.tv/">the Board of Control for Cricket in India (BCCI)</a> - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has <a href="http://www.bbc.co.uk/blogs/gordonfarquhar/2009/08/the_board_of_control_for.html">decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code</a>.<br /></div><div style="text-align: justify;"><br />Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into <a href="http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=273">the UNESCO International Convention Against Doping in Sport.</a> <a href="http://www.bbc.co.uk/blogs/gordonfarquhar/2009/08/the_board_of_control_for.html">According to Gordon Farquhar of the BBC</a>, the <a href="http://timesofindia.indiatimes.com/If-Fedex-ok-with-test-why-not-cricketers/articleshow/4854125.cms">Indian Sports Minister</a> and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of <a href="http://www.iplt20.com/">the new 20/20 Indian Premier League,</a> I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com1tag:blogger.com,1999:blog-2111348014229466197.post-63925227192794298992009-08-06T07:00:00.006-04:002009-08-06T08:33:00.322-04:00Abdelrazik v. Canadian Minister of Foreign Affairs: A Challenge to the Security Council's 1267 Regime?<div style="TEXT-ALIGN: justify"><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhefctC6WJy224dRQyQRntjrKuXlczf4C1lvLN5wWBkNlGGkE-yb6Rd_tP6wHuHb8dCAjNiEE6TuwZVhmO4j7z2bWAz9SqrZKDNCboJVBvTqM0f6_tiIWROTgcZcewcaM7DgrlwsGfUVC0M/s1600-h/kafka.jpeg"><img id="BLOGGER_PHOTO_ID_5366817144540769698" style="FLOAT: right; MARGIN: 0pt 0pt 10px 10px; WIDTH: 125px; CURSOR: pointer; HEIGHT: 200px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhefctC6WJy224dRQyQRntjrKuXlczf4C1lvLN5wWBkNlGGkE-yb6Rd_tP6wHuHb8dCAjNiEE6TuwZVhmO4j7z2bWAz9SqrZKDNCboJVBvTqM0f6_tiIWROTgcZcewcaM7DgrlwsGfUVC0M/s200/kafka.jpeg" border="0" /></a>The first of two quick posts today to flag some interesting and (relatively) recent posts (yeah, I've been on holiday...) over at <em><a href="http://www.ejiltalk.org/">EJIL:Talk!</a></em>, both dealing in some way with the Kadi judgment and subsequent reactions to the UN' s sanctions listing mechanism. The <a href="http://www.ejiltalk.org/an-effective-remedy-for-josef-k-canadian-judge-defies-security-council-sanctions-through-interpretation/">first post that I want to discuss</a> briefly is by Antonios Tzanakopoulos, and discusses a recent judgment from a Canadian Federal Court - <a href="http://decisions.fct-cf.gc.ca/en/2009/2009fc580/2009fc580.html"><span style="FONT-STYLE: italic">Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada</span></a> - which involved a claim by a Canadian/Sudanese citizen, trapped at the Canadian Embassy in Sudan, that Canada had violated his Charter right to return to Canadian soil. The interesting part for our purposes here is that Abdelrazik has been listed by the Security Council's 1267 Committee, and as such – Canada argued – he could not be allowed to return to Canada without violating the travel ban.<br /></div><div style="TEXT-ALIGN: justify"><br />Tzanakopoulos' post, entitled <a href="http://www.ejiltalk.org/an-effective-remedy-for-josef-k-canadian-judge-defies-security-council-sanctions-through-interpretation/">'An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation'</a>, gives a full account of the factual background to the case, and the legal arguments raised. In my view, however, he reads too much into it in suggesting that this is in any real sense a challenge to the Security Council's sanctions regime (although there is some dicta that makes the judge's distaste for that regime plain), or that it somehow 'goes further' than did the ECJ in <a href="http://globaladminlaw.blogspot.com/search/label/Kadi"><span style="FONT-STYLE: italic">Kadi</span></a>. Two quick points in this regard.<br /><br />Firstly, Tzanakopoulos argues that 'In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law'. Certainly, the judge did state openly, after listing the now/familiar problems with the UN system, that 'I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights (para. 51), and that 'is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion' (para. 54). These strong statements, however, and the many others like them, are all in the 'legal background' section of the judgment; I could find little to suggest that they were more than obiter dicta, forming part of the actual substantive basis of the judgment other than a passage that notes that 'in light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court' – para 53). In that sense, this judgment is nothing like as important an indictment of the procedural deficiencies of the listing mechanism as was Kadi.<br /><br />Tzanakopoulos seems to acknowledge this, arguing instead that these statements indicate the 'underlying rationale' of the judgment: the 'international ilegality of the 1267 regime'. Again, however, I find this to be overreaching somewhat. While there is no doubt of the judge's disdain for the sanctions regime, it is equally clear that he was at pains to point out that compelling Canada to return Abdelrazik would not in fact violate the Security Council Resolutions in question. Far from mounting a legal challenge to the 1267 regime then, the judge in effect reaffirmed it (even if through gritted teeth), and simply dismissed a pretty flimsy Canadian attempt to use the travel ban to circumvent its domestic constitutional obligations.<br /><br />Canada had argued that it was the Security Council listing, not Canada itself, that had prevented Abdelrazik's return, as Canada was bound by the Security Council Resolutions in question. In response to this, the judge simply noted that<br /><br /><span style="font-size:85%;"><span style="COLOR: rgb(153,0,0)">The UN 1267 travel ban provides that States shall “prevent the entry into or transit through their territories” of listed individuals, “provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified.” (para. 121)</span></span><br /><br />In response to Canada's argument that to get him back onto Canadian soil from Sudan he would have to transit through the airspace ('territory') of a number of other States, thus violating the travel ban, the judge first noted that such an interpretation of the Resolution ran contrary to that previously expressed by Canada itself; and that, in any event,<br /><br /><span style="COLOR: rgb(153,0,0);font-size:85%;" >...the respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution. (para. 127).</span><br /><br />As I said, this is more a reaffirmation of the primacy of the Security Council resolutions – procedural warts and all – than any sort of challenge to them. Moreover, it is achieved not through any interpretative gymnastics, but rather on an entirelyreasonable and persuasive reading of the text in question. An interesting case then, and Tzanakopoulos' post is worth reading in full; but Kadi it ain't.</div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-78118365372636754432009-07-31T09:33:00.007-04:002009-08-06T07:39:36.887-04:00EU Terrorist Listing in a post-Kadi world: Othman v. Council<div style="text-align: justify;"><meta equiv="CONTENT-TYPE" content="text/html; charset=utf-8"><title></title><meta name="GENERATOR" content="OpenOffice.org 2.3 (Win32)"><style type="text/css"> <!-- @page { margin: 2cm } P { margin-bottom: 0.21cm } --> </style> </div><p style="margin-bottom: 0cm; text-align: justify;"><span lang="de-CH">A quick post to update on some more post-</span><span lang="de-CH"><i><a href="http://globaladminlaw.blogspot.com/2008/09/un-security-council-watershed-moment.html">Kadi</a> </i></span><span lang="de-CH">developments within the European Union (hat tip to Amaury Reyes for passing this one on): on June 11th this year, the Court of First Instance handed down its judgment in the case of </span><a href="http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&numaff=&nomusuel=othman&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher"><span lang="de-CH"><i>Omar Mohammad Othman v. Council and Commission</i></span></a><span lang="de-CH">. The case was so similar in legal and factual context to that of </span><span lang="de-CH"><i>Kadi </i></span><span lang="de-CH">that it had twice been suspended pending judgment in the later case, first at first instance and then on appeal before the ECJ.</span></p><p style="margin-bottom: 0cm; text-align: justify;"><span lang="de-CH">
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; text-align: justify;"><span lang="de-CH">The Council and Commission (and the UK as intervener) basically made the same arguments as they had in </span><span lang="de-CH"><i>Kadi</i></span><span lang="de-CH">. With basically the same result:</span></p><p style="margin-bottom: 0cm; text-align: justify;"><span lang="de-CH">
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; text-align: justify;"><a name="point83"></a><span style="color: rgb(153, 0, 0);font-size:85%;" >83. With regard, first, to the procedure leading to the adoption of the contested regulation, it must be pointed out that the Council at no time informed the applicant of the evidence adduced against him…</span></p><p style="margin-bottom: 0cm; text-align: justify;"><span style="color: rgb(153, 0, 0);font-size:85%;" >
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">85. Because the Council neither communicated to the applicant the evidence used against him to justify the restrictive measures imposed on him nor afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, the applicant was not in a position to make his point of view in that respect known to advantage. Therefore, the applicant’s rights of defence, in particular the right to be heard, were not respected…</span></p><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;"><span lang="de-CH">86. </span>In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship… between rights of defence and the right to an effective legal remedy,the applicant was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed.</span></p><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">89. It must, therefore, be held that the contested regulation, in so far as it concerns the applicant, was adopted without any guarantee being given as to the communication of the inculpatory evidence against him or as to his being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the applicant’s rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed.</span></p><p style="margin-bottom: 0cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">
<br /></span></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; text-align: justify;">The Court also noted that the infringement had not been remedied by the time of the judgment: the Council noted that they had made (some) efforts to do so (i.e. giving him some reasons and inviting his comments), but this had not yet been effected, and nor were they able to state when it would be. Therefore, the Court held that it had no choice but to annul the contested regulation as it applied to the applicant.</p><p style="margin-bottom: 0cm; text-align: justify;">
<br /></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; text-align: justify;">Basically the same result as <i>Kadi</i>; but not quite. The Council, Commission and the UK had argued strongly that, even if the Court should find in this manner and annul the regulation, it should, as the ECJ had done, maintain its effects for a period of time to allow for violations to be corrected, as “annulment with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that regulation and which the Community is required to implement” (para. 79).</p><p style="margin-bottom: 0cm; text-align: justify;">
<br /></p><div style="text-align: justify;"> </div><p style="margin-bottom: 0cm; text-align: justify;">This, however, the Court declined to do:</p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; text-align: justify;"><a name="point95"></a> <span style="color: rgb(153, 0, 0);font-size:85%;" >95. In the circumstances of the case, there are no grounds for allowing the request made at the hearing by the Council and the interveners seeking to have the effects of the contested regulation maintained for a short period pursuant to Article 231 EC.</span></p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;"><a name="point96"></a> 96. The period already elapsed since the delivery of the judgment in <i>Kadi</i> on appeal, on 3 September 2008, far exceeds the maximum period of three months from the date of delivery of that judgment considered reasonable by the Court of Justice in order to allow the Council to remedy the infringements found in that case, while taking account of the considerable impact of the restrictive measures concerned on the rights and freedoms of the persons concerned (see, to that effect, <i>Kadi</i> on appeal, paragraphs 375 and 376). </span></p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;"><a name="point97"></a> 97 Although that period was determined by reference only to the case of the two persons involved in the cases giving rise to <i>Kadi</i> on appeal, namely, Mr Kadi and the Al Barakaat International Foundation, the fact remains that the Council could not have been unaware that the applicant’s situation, which is in all respects comparable (see paragraph 82 above), necessarily called for the same response on its part. Furthermore, the institutions that are parties to these proceedings have stated that they have taken steps, in particular by approaching the Sanctions Committee, immediately after the delivery of that judgment, for the purpose of making the Community fund-freezing procedures consistent with the principles laid down in that judgment (see paragraphs 72 and 73 above).</span></p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; text-align: justify;">(Although the Court also noted that, in any event, Community procedures meant that the Council would have a period of some two months from the date of notification of the judgment in which to pass a new restrictive measure on the applicant).</p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; text-align: justify;">No real surprises here. However, the Court decided not to confront – in any way – what is surely the most important issue at stake here in broader terms: that of whether the “steps taken” by the Council since <i>Kadi</i> are sufficient to satisfy the rights claims of listed individuals. I blogged on these earlier <a href="http://globaladminlaw.blogspot.com/2009/05/kadi-recent-developments.html">here</a>; but here they are again, summarised nicely by the Court (para. 71):</p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">In its observations… the Council acknowledged that, following <i>Kadi</i> on appeal, it was necessary to provide the applicant with a statement of reasons, to allow him an opportunity to comment on it and to take those comments into consideration before adopting a new decision to freeze funds affecting him.</span></p><div style="text-align: justify;"> </div><p style="margin-top: 0.49cm; margin-bottom: 0.49cm; text-align: justify;">Necessary, yes; but sufficient? I have my doubts. Presumably, however, the CFI is going to leave that question to the ECJ in <a href="http://globaladminlaw.blogspot.com/2009/05/kadi-recent-developments.html">the next installment of the <i>Kadi </i>saga</a>.</p><div style="text-align: justify;"> </div><div style="text-align: justify;"> </div> Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com5tag:blogger.com,1999:blog-2111348014229466197.post-16780242848581761552009-07-30T11:27:00.004-04:002009-07-30T11:44:16.945-04:00More on the ski-jumping...<div style="text-align: justify;">I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.<br /><br />Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post <a href="http://globaladminlaw.blogspot.com/2009/04/gal-and-ladies-ski-jumping.html">here</a>). On the July 10th, the Supreme Court of British Columbia in Canada <a href="http://www.vancouver2010.com/dl/00/69/78/-/69784/prop=data/1y2401t/69784.pdf">handed down its judgment</a>: perhaps unsurprisingly, <a href="http://news.bbc.co.uk/sport2/hi/olympic_games/8146013.stm">there will be no women’s ski jumping at the next Winter Olympics</a>. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.<br /><br />The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the <a href="http://www.efc.ca/pages/law/charter/charter.text.html">Canadian Charter of Rights and Freedoms</a>. They recognised the the <a href="http://www.olympic.org/uk/index_uk.asp">International Olympic Committee</a> was not subject to the Charter; however, they argued that the <a href="http://www.vancouver2010.com/en/-/32678/q0c15c/index.html">Vancouver Organising Committee (VANOC)</a> was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.<br /><br />As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.<br /><br />(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really <a href="http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=818144&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649">tell the EctHR…</a>)<br /><br />The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.<br /><br />54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.</span><br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.<br /><br />61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:<br />The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.<br /><br />62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.<br /><br />63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.</span><br /><br />Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)<br /><br />The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.<br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br />113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada. </span><br /><br />It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.<br /><br />123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC</span><span style="color: rgb(153, 0, 0);font-size:85%;" >’</span><span style="color: rgb(153, 0, 0);font-size:85%;" >s control.<br /><br />124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC</span><span style="color: rgb(153, 0, 0);font-size:85%;" >’</span><span style="color: rgb(153, 0, 0);font-size:85%;" >s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women</span><span style="color: rgb(153, 0, 0);font-size:85%;" >’</span><span style="color: rgb(153, 0, 0);font-size:85%;" >s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case. </span><br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.</span><br /><br />An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are c<a href="http://www.ctvolympics.ca/ski-jumping/news/newsid=12786.html">urrently considering an appeal</a>, so it may be tested futher yet...<br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-63669147973107098822009-06-28T09:47:00.004-04:002009-06-28T10:02:34.697-04:00Some thought on E-GAL, Edinburgh 2009<div align="justify">Next things next, a brief account and a few reflections on <a href="http://www.law.ed.ac.uk/conferences/egal/">the E-GAL event in Edinburgh</a> on Tuesday the 17th of June. It was, as I suspected it would be, a huge pleasure to be involved in this event, not least of all because it was the first time since I returned to Edinburgh University in an official(ish) capacity since graduating almost ten years ago. More importantly, I think I am correct in saying that this is the first global administrative law event in whose organization neither <a href="http://www.blogger.com/www.iilj.org">NYU</a> nor the <a href="http://www.blogger.com/www.irpa.eu">IRPA</a> in Rome played any role whatsoever. GAL has, of course, had to date some fairly serious institutional backing from some fairly serious institutions, and there can be no doubt that this has played a major role in its increasing prominence; however, if it is really to establish itself as a genuine field of research and study, the ideas and framework it proposes must stand or fall on their own, entirely independently of its initial institutional backers. Events such as these are a crucial next step in testing whether this is in fact possible.</div><div align="justify"><br />And if this event is anything to go by, it is indeed possible. The organizers (Kasez Lowe, Pierre Harcourt and Danielle Rached) did a first class job of selecting the abstracts for presentation, and of inviting a good mix of those with some experience of the GAL field on one hand and those largely new to it on the other. Amongst the presentations, for example, were (excellent) contributions by <a href="http://www.iilj.org/GAL/documents/GoldmannInfo.doc">Matthias Goldmann</a> and <a href="http://www.iilj.org/GAL/documents/defreitasICAO.pdf">Tiago Fidalgo de Freitas</a>, both of whom have been involved in the GAL project for longer than I have; and, amongst professorial contributors, having the continued, challenging input of Neil Walker (who, incidentally, has <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1393867">a provocative new paper on postnational constitutionalism</a> up on SSRN) was, as always, a real plus; unfortunately, Professor Janet MacLean from Dundee – another who was <a href="http://www.iilj.org/GAL/documents/10120506_McLean.pdf">contributing to the GAL literature</a> prior to my own involvement – had to pull out at the last minute due to illness. Hope she got well soon.</div><div align="justify"><br />Many of the contributors, however, had no prior knowledge of the GAL project, and were weighing its usefulness as a frame of analysis within their own fields. It is here that GAL – if it is to flourish – must provide real traction. The various contributions provided, in my view at least, real grounds for optimism in this regard. It was also of real interest to have the input of Professor Alan Miller, Chair of the Scottish Commission for Human Rights; he sounded both interested in and cautious about the potential for GAL to drive progressive developments in his own field.</div><div align="justify"><br />The abstracts of all of the papers are available <a href="http://www.law.ed.ac.uk/conferences/egal/presentations.aspx">here</a>; for ease of reference, here is a list of the titles of presentations given:</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/ncarmoucheabstract.pdf">Unpacking the "Concept" of "Global Administrative Law": Some Reflections on Form, Substance and Pedigree</a> by Nuhaila Carmouche, European University Institute.</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/mgoldmannabstract.pdf">The Challenge of Global Governance to the Concept of International Law: Refurbishing Legal Positivism </a>by Matthias Goldmann, Max Planck Institute. </div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/tdefreitasabstract.pdf">The Added Value of Global Administrative Law </a>by Tiago Fidalgo de Freitas, European University Institute.</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/ykimabstract.pdf">The Dilemma of the People and Pluralist Approach in the Global Perspective</a> by Younsik Kim, University of Edinburgh.</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/jhepburnabstract.pdf">GAL, Investment Law and Equality </a>by Jarrod Hepburn, Oxford University.</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/cvitaleabstract.pdf">The Protection of Cultural Heritage: Between the European Legal Order and the Global One</a> by Carmen Vitale, University of Bologna. </div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/oonaziabstract.pdf">Good Governance and Electric Sector Reform in Nigeria: A Critique from a Human Rights Perspective </a>by Oche Onazi, University of Edinburgh.</div><div align="justify"><br /><a href="http://www.law.ed.ac.uk/conferences/egal/files/asathanapallyabstract.pdf">Weak Judicial Review: Lessons for Global Administrative Law?</a> by Aruna Sathanapally, Oxford University.</div><div align="justify"><br />If I was to make one minor critical comment about the event, it was that these abstracts, and not fully fledged papers, were all that was circulated in advance; I always find it difficult, under these circumstances, to engage fully and in detail with the arguments being made – particularly when they are as advanced and as complex as they were here – and that the actual “conferring” suffers as a result. In the event, the quality of the papers and the presentations went some considerable distance to offsetting this problem; however, there is to my mind ultimately no substitute for the possibility to read the substance of the arguments to be made in detail in advance.</div><div align="justify"><br />A quick recap of what seemed to me some of the major points, in conclusion. Professor Alan Boyle (who I think could fairly be described as a traditional-European-international-lawyer-and-GAL-sceptic) raised the issue of what he called GAL’s “lack of focus”, and suggested that this was one of the major obstacles to it achieving more widespread adherence. By this, I think he intended the fact – to which I alluded in <a href="http://globaladminlaw.blogspot.com/2009/06/some-brief-reflections-on-viterbo-v.html">my previous post on Viterbo</a> – that GAL can sometimes appear (indeed, be presented) as all things to all people; as a simple catch-all under which all global governance can be subsumed, and which consequently lacks in analytical clarity and bite. There is something of a fine line that must be tread in this regard; one one hand, I can but agree: those writing in the field of GAL must have a clear idea of what the “added value” of this framework is, and not allow it simply to become a placeholder for “global governance” (<a href="http://globaladminlaw.blogspot.com/2009/06/some-brief-reflections-on-viterbo-v.html">Tiago’s paper</a> did examine precisely this issue of added value, but did so with reference to the global constitutionalist and international public authority projects; it did not discuss the other side / the added value of GAL as opposed to simply “governance”). On the other hand, there has been a real effort within the GAL project – and rightly so in my view – not to be too proprietorial about the definitions of the field, in order that it might be informed by as many different perspectives as there are national administrative laws. This balance has not yet been ideally struck.</div><div align="justify"><br />Another theme that emerged from discussions, related to the above, was the difference between the “US” and the “European” conceptions of global administrative law (as an aside, an interesting point about the sociology of GAL: the project seems to be mostly popular with international lawyers in the US, and with administrative lawyers in Europe, where most international lawyers remain skeptical. This can be seen even in the two major institutional backers of the GAL project: the Institute for International Law and Justice at NYU and the Institute for Research on Public Administration in Rome). A useful distinction was introduced in <a href="http://iilj.org/publications/2008-7Dyzenhaus.asp">a working paper by David Dyzenhaus</a> to encapsulate this: administrative law can, he argued, be either “constitutive” (i.e. the actual rules establishing administrative bodies, delineating powers within them, etc.), “procedural” (i.e. the rules by which these bodies operate) or “substantive” (i.e. the norms, regulations and decisions that they actually produce). The US vision of GAL is limited fairly strictly to the second, procedural form (mirroring largely the limitations on the discipline of administrative law within the US academy); the European version, on the other hand, explicitly includes at least the first two elements, and often also the third (in <a href="http://www.iilj.org/GAL/documents/THEGLOBALIZATIONOFLAW.pdf">Sabino Cassese’s work</a>, for example, there is often a degree of slippage between the terms “global administrative law” and simply “global law” – indeed, I on occasion have the impression that for him these two terms are largely interchangeable). The extent to which these need to be reconciled before GAL can become a discrete “field” of study is, of course, an open question.</div><div align="justify"><br />A third theme, and one that I addressed in my own paper, and was picked up by Tiago and Neil Walker, was that of the relationship between GAL and “global” constitutionalism. Neil insisted – I think probably correctly – that a legitimate GAL can ultimately not afford to ignore the issue of the “constitutive moment” of the bodies that it seeks to regulate; and – again, probably correctly – that there is no need to think of GAL and constitutionalism as in competition (I would agree entirely on this point, despite the manner in which I sometimes present the issues: I would, however, insist that GAL and global constitutionalism are different and not necessarily complementary projects, and that the image of community ultimately implied in the latter need not inform the former). A general level of agreement was, I think, reached on the idea that while any future global constitutionalism would need a global administrative law, the inverse did not hold; and that there was no need to view GAL as in any way opposed to the deployment of constitutional discourse in particular postnational regimes.</div><div align="justify"><br />Other key themes touched upon in the presentations and in the discussion was that of the concept of “law” that informs GAL (<a href="http://www.law.ed.ac.uk/conferences/egal/files/ncarmoucheabstract.pdf">Nuhaile Carmouche</a> did a good job of critically mapping the various contenders, while <a href="http://www.law.ed.ac.uk/conferences/egal/files/ncarmoucheabstract.pdf">Matthias</a> made a strong argument in favour of using a “refurbished” notion of legal positivism); the various ways in which GAL might – and might not – contribute to the increasing legitimacy of global regulatory governance; and of the need for GAL to actually result in tangible improvements in concrete cases if practitioners are going to take it at all seriously (Alan Miller’s contribution was particularly illuminating on this point).</div><div align="justify"><br />Unfortunately, memory dictates that I will have to stop at that point, which even I find entirely unsatisfactory given the amount of rich discussion that this brief recollection has omitted – particularly in terms of the more concrete papers (relating to investment arbitration, cultural heritage, etc; <a href="http://www.law.ed.ac.uk/conferences/egal/files/jhepburnabstract.pdf">Jared Hepburn</a>, for example, made an intriguing argument as to the interaction between the global and domestic levels in the interpretation of “fair and equitable treatment” in investment disputes). In any event, congratulations to the organisers on putting together a first-rate symposium; and I very much hope to get a chance to read the assorted presentations in more detail in the not-too-distant future. Again, if anyone present wants to add to or correct this account, please do leave a comment below!</div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-15486461923042246602009-06-24T21:00:00.002-04:002009-06-24T21:08:17.504-04:00Some brief reflections on Viterbo V<div style="text-align: justify;">I am moving house (again) this week, having not long returned from my GAL European Tour (well, Viterbo and Edinburgh – I certainly can’t complain), and so do not have a huge amount of time. I wanted, however, to post some reflections on the two events, while they are still (relatively) fresh in my mind. I’ll begin with Viterbo in this post, and move on to the Edinburgh meeting in the next. I won’t go ionto huge detail, however; in the hope that someone will produce a report in the not-too-distant future.<br /><br />First things first: it was, as always, a huge pleasure to be present at the Viterbo event. The organisers – led, as usual, by Professors Sabino Cassese, Giulio Vesperini and Doctor Martina Conticelli – by now have things down to a fine art form. A selection of photos from the conference is available here. I know of no other event that manages to establish and maintain such a sense of community amongst ist participants; nor, for that matter, that succeeds in attracting people back year after year, even if they are not formally participating. The obvious attractions of Italy in June only account for a small part of the reason for this. I certainly hope to attend next year; employer permitting, of course.<br /><br />On to the papers themselves, which are available here: all were to some degree preliminary (some, of course, more than others); all, however, seemed to be very promising, touching on some important – and often understudied – themes, under the broad heading of “Legality Review in the Global Administrative Space”:<br /><br /><a href="http://www.iilj.org/GAL/documents/V5.Avgerinopoulou.pdf">Review Bodies in Multilateral Environmental Agreements. Competences, Coherence, Coordination</a><br />Dionysia-Theodora Avgerinopoulou<br /><a href="http://www.iilj.org/GAL/documents/V5.Blumenkron.pdf"><br />Implications Of Transparency In The International Civil Aviation Organization’s Universal Safety Oversight Audit Programme</a><br />Jimena Blumenkron<br /><br /><a href="http://www.iilj.org/GAL/documents/V5.Sgueo.pdf">Proactive Strategies in the Global Legality Review</a><br />Gianluca Sgueo<br /><a href="http://www.iilj.org/GAL/documents/V5.Sweetser.pdf"><br />Deference in U.S. Domestic Courts and Implications for Legality Review</a><br />Catherine Sweetser<br /><br /><a href="http://www.iilj.org/GAL/documents/V5.Wang.pdf">Beyond Multilateralism and Regionalism. Analysis of the Review Process of Global Trade Dispute Resolution </a><br />Blake C.Y. Wang<br /><a href="http://www.iilj.org/GAL/documents/V5.Zaring.pdf"><br />What Makes Networks Effective: Evidence from the SEC</a><br />David Zaring<br /><br />As will be immediately clear from the titles of the pieces, all of the authors used a very broad understanding of what constitutes “legality review” in the so-called “global administrative space” (as an aside, this latter term, I confess, causes me some discomfort; although it was postulated by Kingsbury, Krisch and Stewart in the <a href="http://www.iilj.org/GAL/documents/TheEmergenceofGlobalAdministrativeLaw.pdf">Project framing paper</a>, I have yet to see much beyond postulation in support of its existence. To me it implies a much more unitary space than as yet exists). This is, to my mind at least, at once an indication of both the strength (in terms of its institutional and forms of activity coverage) and weakness (in terms of its frequent lack of hard legality) of the GAL framework more generally.<br /><br />The papers, for the most part, do pretty much what they say on the tin: Dionysia Avgerinopoulou gives a useful, if basic, overview of the wealth of different review bodies established by international environmental treaties, and the different roles they play; Jimena Blumenkron has an in-depth analysis of the transparency rules relating to the production of Standards and Recommended Practices by the International Civil Aviation Organization; Gianluca Sgeuo asks the intriguing question of why an increasing number of global review bodies are insisting upon “proactive” (i.e. programmatic), rather than reactive, sanctions-based solutions to breaches of legality; Cathy Sweetser looks at how different doctrines of deference by courst to administrative decisions in US law might be applied in the context of global institutions, and what the effects of this might be; Blake Wang, who unfortunately couldn’t attend the meeting due to illness (thankfully, rumours of “swine flu” proved to be premature…), looks at relations between the WTO and regional FTAs, asking whether we might envuisage the creation of a Court of International Trade; and finally David Zaring, a <a href="http://www.iilj.org/publications/documents/2004.6%20Zaring.pdf">long-time contributor</a> to the GAL Project, in his paper looks to propose an answer to the important issue of why some regulatory networks “work” (in his terms, why some are able to produce standards or regulation with real applicability and “bite”) and why others fail to reach this standard.<br /><br />If you can only read two, and have no specific interest in any of the particular organisations or regimes focused upon, then I would recommend the pieces by Zaring and Sgeuo (the English in the latter is a little clunky, but worth the effort. And the fact that it is clunky is largely my fault, as I didn’t have time to make good on a promise to edit it…). Both tackle relatively new issues within GAL, general in scope, and make a number of interesting propositions with regard to each; as yet, I’d say, more provocative than persuasive, but that’s very much the point of events such as these.<br /><br />The rest of the Friday session was largely taken up with general and specific comments to the authors of the papers, and with their responses thereto. There were some interesting exchanges, but as I didn’t take particularly copious notes, we will have to wait for the (hopefully) forthcoming report to give a fuller account of these. Perhaps inevitably, a number of comments focused on the extent to which the subject-matter of the papers could be accurately characterised as “legality” review. One comment in particular that I wanted to flag, however, was that made by Mario Savino in his role as discussant of three of the papers: he went beyond challenging the “legal” nature of the reviews in question, and raised directly a broader, but related issue: how does global administrative law differ from global governance? Specifically, what is the “added value” of adopting a public law approach to these issues? Savino’s concern was that this particularly public law element was missing from many of the papers; my view is that it is missing from many of the articles and discussions of global administrative law more generally, and is perhaps more than any other factor responsible for the feeling – very widespread amongst many academics – that GAL is too lacking in focus, spread to thin, to be an analytically useful framework or tool.<br /><br />The next and final session, which took place on the Saturday morning, was devoted to short talks by Professors Armin von Bogdandy, Richard Stewart and Eyal Benventisti, before discussion, led by Professor Sabino Cassese, moved on to the date and substance of next year’s event. As would be expected, all contributions here were thoughtful and provocative: none more so than the remarks by von Bogdandy, who spoke on “international courts in a discourse theoretical perspective”. In some ways, this can be seen as a continuation of the <a href="http://globaladminlaw.blogspot.com/2008/11/max-planck-institute-project-on.html">impressive Max Planck project on international public authorities</a> that he led, and was successfully completed last year; as always with discourse theory, however, if it is to be at all persuasive the audience is required to have swallowed a fairly large chunk of Habermas prior to listening; those who have doubts about the Habermasian approach find those transferred to whoever relies upon it. More concretely, although I found myself in broad agreement with much of what Professor von Bogdandy had to say, and in particular on the “perils” of applying constitutionalist rhetoric to the global sphere, I felt that his talk overplaed the importance of democratic forms of legitimacy in global governance (that is, overplayed not just how important they are, but how important they can and should be). As I have argued elsewhere, democracy is in my view but one of many justifiable bases upon which legitimate global governance could rest; and, given the difficulty of making international institutions genuinely accountable to hundreds of different demoi simultaneously, the almost complete absence of any viable post-state demos (excluding perhaps the EU), and the certain absence of anything like a truly global demos, it is not now and nor should it be a particularly important one. (This is an argument that I developed at greater length in the paper that I gave at Edinburgh – I’m currently toying with the idea of putting it on SSRN, will link to it if I decide to).<br /><br />Unusually, neither the date nor the topic for next year’s seminar was definitively fixed: sometime in mid-June (either the 11-12 or the 18-19) 2010 seems almost certain; potential topics cover a much wider range, so there isn’t a huge amount of point in speculating. I will post on this further when I hear that the decision has been taken.<br /><br />Lastly, if I were to have any quibble at all with the manner in which this part of the conference was structured, it would be that there was perhaps slightly insufficient time devoted to the discussion of the individual papers: these were presented by the discussants in two back-to-back sessions, then there was a break, and then a general discussion on all six contributions. Only at the very end were the authors given a chance to respond, and this meant that formal opportunities for actually “conferring” were kept to a minimum (although this, of course, was largely compensated for by the informal opportunities that came with dinner and drinks afterwards). My own view is that perhaps another session could have been added; that discussion could have focused on each of the sets of three papers individually, and allowed for more back-and-forth between authors and audience. The conference itself – running from 3pm to 6.30 on Friday, and from 9.30am to 1pm on Saturday – was anything but overlong, and could perhaps have benefitted from an extra hour or two. Then again, perhaps it’s no bad thing to leave us wanting more…<br /><br />In, then, not-quite-so-short-as-I-had-intended, it was, as anticipated, an extremely worthwhile event; I’m looking forward to reading future iterations of the papers as they develop over the coming months. If anyone wants to add to - or, indeed, correct - this account of the event, please feel free to leave a comment below!<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-56700280070945302702009-06-09T21:13:00.003-04:002009-06-09T21:20:56.691-04:00Viterbo V papers up...<div style="text-align: justify;">The 5th annual Global Administrative Law seminar will take place in Viterbo, as always, on Friday and Saturday of this week (11-12 June). I'm fortunate enough to be going this year - it always is a fantastic event, attended by a great mix of younger and more experienced scholars (many of whom continue the day's discussions in the less formal setting of one of the city's wine bars in the evening, showing an impressive commitment to what we might call the "bottoms-up" approach to GAL...). And, of course, mid-June is a not-entirely-unpleasant time to visit Italy...<br /><br />This year's topic is "Legality Review in the Global Administrative Space", and most of the papers are already available <a href="http://www.iilj.org/GAL/GALViterbo.asp">here</a>.<br /><br />I will post up some reflections on this - and on the <a href="http://globaladminlaw.blogspot.com/2009/03/call-for-papers-gal-syposium-at.html">GAL event in Edinburgh</a> that immediately follows it - upon my return from the latter.<em></em> </div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com1tag:blogger.com,1999:blog-2111348014229466197.post-66042790017824747942009-06-09T14:42:00.002-04:002009-06-09T15:03:07.476-04:00EJIL:Talk! discussion on the role of courts in the international system<div style="text-align: justify;">A quick post to flag a discussion coming next week over at <a href="http://www.ejiltalk.org/"><span style="font-style: italic;">EJIL:Talk!</span></a> which will undoubtedly contain much of real interest from a GAL perspective:<br /><br /></div><div style="color: rgb(153, 0, 0); text-align: justify;"><span style="font-size:85%;">Starting next week, EJIL:Talk! will be hosting a discussion of the changing role courts and tribunals in the international legal system. This conversation will be structured around a discussion of two articles in the <a href="http://www.ejil.org/issue.php">current anniversary issue </a>of the European Journal of International Law. The articles are: Eyal Benvenisti & George W. Downs, “<em>National Courts, Domestic Democracy, and the Evolution of International Law</em>“ and Yuval Shany, “<em>No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judicia</em>ry”. Both are available <a href="http://ejil.oxfordjournals.org/content/vol20/issue1/index.dtl">here</a>.<br /></span></div><div style="text-align: justify;"><br />Professors Benvenisti and Downs in particular have written directly on GAL issues (see <a href="http://www.iilj.org/GAL/documents/10120510_Benvenisti.pdf">here</a> for some of Benvenisti's solo work on the development of GAL in international institutions, and <a href="http://iilj.org/publications/documents/2007-6.GAL.Benvenisti-Downs.web.pdf">here</a> and <a href="http://www.iilj.org/courses/documents/BenvenistiandDowns.GlobalChecksandBalances9-15-08.pdf">here</a> for work by him and Downs together on fragmentation and on checks and balances in global governance respectively). Definitely worth both reading the articles in question, and keeping an eye on what is sure to be an interesting exchange at <span style="font-style: italic;">EJIL:Talk!</span>.<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-12680733957581918322009-06-01T18:24:00.003-04:002009-08-06T07:41:03.863-04:00A little more still on the fallout from Kadi<div style="text-align: justify;">Thanks to Mathias Vermeulen over at the excellent blog <a href="http://legalift.wordpress.com/2009/05/05/european-commission-proposals-in-response-to-kadi/"><span style="font-style: italic;">The Lift</span></a>, we have the (belated) news of the steps proposed by the European Commission to address, in general terms, the concerns regarding the terrorist listing mechanism expressed by the ECJ in the <a href="http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&radtypeord=on&typeord=ALL&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=kadi&domaine=&mots=&resmax=100"><span style="font-style: italic;">Kadi</span> case</a>. These are contained in <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0187:FIN:EN:PDF">COM(2009) 187 final</a>, and are in essence simply a general expression of the particular measures relating to Kadi that I had blogged about previously <a href="http://globaladminlaw.blogspot.com/2009/05/kadi-recent-developments.html">here</a>.<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >5. The revised procedure should include providing to the listed person, entity, body or group the reasons for listing as transmitted by the UN Al Qaida and Taliban Sanctions Committee, so as to give the listed person, entity, body or group an opportunity to express his, her or its views on those reasons. The purpose of Regulation (EC) No 881/2002 is to freeze the funds and economic resources of persons, entities, bodies and groups included in the Al Qaida and Taliban list drawn up by the UN. As the relevant UN Security Council Resolutions provide that such freezing has to take place “without delay”, such measure must, by its very nature, take advantage of a surprise effect. Therefore, the Commission should be able to take a provisional decision before informing the person, entity, body or group concerned of the reasons for listing. The reasons for listing should, however, be notified to that person, entity, body or group without undue delay, after that decision has been published, to give the person, entity, body or group concerned an opportunity to make effectively his, her or its point of view known.<br /></span><br />And that - together with some recognition of the need for a similar procedure backdated to those who are already on the list - is more or less that. Remains to be seen, however, whether these fairly cursory tweaks will be sufficient to placate the ECJ in <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:090:0037:0037:EN:PDF">the next installment of the saga</a>. I would suspect - and hope - not; indeed, I wouldn't be surprised if they were a little miffed by what might well be styled as a pretty blunt challenge to their authority...<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com0tag:blogger.com,1999:blog-2111348014229466197.post-53732465696692112752009-05-30T19:03:00.006-04:002009-05-30T19:46:25.601-04:00Accountability and humanitarianism...<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLz9RraWDZlEvNkCwqWLdpfc2FqNwXzl6uhD6HDZ9iZ56i5ODlwds-SsvGyiH8-HdLwY94jjqMQqLXze4IwrXKRerLMSfO0dNKgYvHq4Ko6tYqEY9J1xhyphenhyphenPNSFWaSTYSret0AH7aPsf942/s1600-h/HAP-table.bmp"><img style="margin: 0px auto 10px; display: block; text-align: center; cursor: pointer; width: 400px; height: 217px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLz9RraWDZlEvNkCwqWLdpfc2FqNwXzl6uhD6HDZ9iZ56i5ODlwds-SsvGyiH8-HdLwY94jjqMQqLXze4IwrXKRerLMSfO0dNKgYvHq4Ko6tYqEY9J1xhyphenhyphenPNSFWaSTYSret0AH7aPsf942/s400/HAP-table.bmp" alt="" id="BLOGGER_PHOTO_ID_5341766604639075618" border="0" /></a><br /><div style="text-align: justify;">From the <a href="http://www.globalgovernancewatch.org/in_the_spotlight/bringing-accountability-to-humanitarianism"><span style="font-style: italic;">Global Governance Watch </span>website</a>, we learn of an interesting development in terms of the rising demand for global administrative law within the fields of humanitarian aid and intervention. The <a href="http://www.hapinternational.org/">Humanitarian Accountability Partnership</a> (HAP) has released its <a href="http://www.hapinternational.org/pool/files/2008-humanitarian-accountability-report.pdf">2008 Humanitarian Accountability Report</a>. It assesses a wide range of different organisations, from IGOs (the World Bank, the UNHCR, IOM, NATO, IAEA, amongst others), NGOs (Transparency International, ICRC, IOC, again amongst many others), and transnational corporations (amongst which are Haliburton, Goldman Sachs, Royal Dutch Shell and Carrefour); and it contains the following five chapters:<br /><br /><span style="color: rgb(153, 0, 0);font-size:85%;" >Chapter 1: An Overview of Humanitarian Accountability in 2008. The opening chapter provides an overview of materials relevant to humanitarian accountability published in 2008. The purpose of the annual humanitarian accountability essay is to offer an informed and independent view of progress made by the humanitarian system towards meeting HAP’s strategic vision of “a humanitarian sector with a trusted and widely accepted accountability framework, which is transparent and accessible to all relevant parties”.<br /><br />Chapter 2: Survey of Perceptions of humanitarian accountability. This chapter reports on the fourth annual survey of perceptions of humanitarian accountability.<br /><br />Chapter 3: Voices of disaster survivors. During 2008, HAP staff held extensive discussions with communities affected by disasters. Some of the direct quotes recorded at various locations are presented here.<br /><br />Chapter 4: Members’ Accountability Workplan Implementation Reports. In preparing for the 2009 General Assembly, most of HAP’s members prepared summary accountability workplan implementation reports. These are presented in tabulated form in this chapter.<br /><br />Chapter 5: The HAP Secretariat Annual Report. This chapter was prepared by HAP staff and provides a self-assessment of progress achieved against the objectives set out in the 2008 workplan and the headline targets described in the 2007-2009 medium term strategic plan.</span><br /><br />According to GGW, the general conclusion is that the major players in the field could do better:<br /><br /><span style="font-size:85%;"><span style="color: rgb(153, 0, 0);">The organization’s 2008 report reveals that there is room for improvement across the humanitarian sector. The report cites a </span><strong style="color: rgb(153, 0, 0); font-weight: normal;"><a href="http://www.oneworldtrust.org/index.php?option=com_docman&task=doc_view&gid=226&tmpl=component&format=raw&Itemid=55" target="_blank">study</a></strong><span style="color: rgb(153, 0, 0);"> completed by </span><strong style="color: rgb(153, 0, 0); font-weight: normal;"><a href="http://www.oneworldtrust.org/" target="_blank">One World Trust</a></strong><span style="color: rgb(153, 0, 0);">, which annually compares a select grouping of NGOs, IGO, and corporations, underscoring the need for UN accountability reform. In particular, </span><strong style="color: rgb(153, 0, 0); font-weight: normal;"><a href="http://www.unicef.org/" target="_blank">UNICEF</a></strong><span style="color: rgb(153, 0, 0);"> and </span><strong style="color: rgb(153, 0, 0); font-weight: normal;"><a href="http://www.unhcr.org/cgi-bin/texis/vtx/home" target="_blank">UNHCR</a></strong><span style="color: rgb(153, 0, 0);"> scored less than 30 points out of a possible 100 on organizational transparency. </span></span><br /><br />Actually, digging a little deeper, the HAP is itself an extremely interesting body from a global administrative law perspective. It styles itself "the humanitarian sector's first international self-regulatory body", and, amongst other things, develops standards for measuring accountability and quality of service within humanitarian aid institutions, and "certifies those members that comply with the HAP Standard in Humanitarian Accountability and Quality Management". Its 2007 <a target="_blank" href="http://www.hapinternational.org/pool/files/hap-2007-standard%281%29.pdf">Standard in Humanitarian Accountability and Quality Management</a>, "a quality assurance tool for humanitarian organizations", sets out the following six "benchmarks":<br /><br /><span style="color: rgb(102, 102, 102);font-size:85%;" ><span style="color: rgb(153, 0, 0);">1. The agency shall establish a humanitarian quality management system.</span><br /><span style="color: rgb(153, 0, 0);">2. The agency shall make the following information publicly available to intended beneficiaries, disaster-affected communities, agency staff and other specified stakeholders: (a) organisational background; (b) humanitarian accountability framework; (c) humanitarian plan; (d) progress reports; and (e) complaints handling procedures.</span><br /><span style="color: rgb(153, 0, 0);">3. The agency shall enable beneficiaries and their representatives to participate in programme decisions and seek their informed consent.</span><br /><span style="color: rgb(153, 0, 0);">4. The agency shall determine the competencies, attitudes and development needs of staff required to implement its humanitarian quality management system.</span><br /><span style="color: rgb(153, 0, 0);">5. The agency shall establish and implement complaints-handling procedures that are effective, accessible and safe for intended beneficiaries, disaster-affected communities, agency staff, humanitarian partners and other specified bodies.</span><br /><span style="color: rgb(153, 0, 0);">6. The agency shall establish a process of continual improvement for its humanitarian accountability framework and humanitarian quality management system.</span><br /></span><br />Haven't had time to look into this in much detail, but it is certainly a striking example of the kind of dual-natured global administrative body that are becoming more and more common - that is, an entity that is at once an oversight body and an administrative body in its own right (i.e. insofar as it develops standards, grants certifications, etc.). The other immediately striking feature of the report and the Standard is the apparent focus on the managerial side of accountability (as opposed to a more robustly legal side). I have <a href="http://globaladminlaw.blogspot.com/2008/06/save-children-report-on.html">blogged on this focus within the field of humanitarianism</a> before, on the issue of the Save the Children report on sexual abuse of children by aid workers; this HAP Report seems to take a very similar approach (indeed, the Save the Children report is itself reffered to with approval). A quick search of the 204-page report, for example, reveals that the term "criminal" does not appear, and there do not seem to be many - if any - real references to legal accountability mechanisms at all (for example, at p. 17 we learn that the "an organisation’s accountability capabilities [one of the categories in the table provided at the outset to this post, which can be found at p. 17] are measured by assessing the integration of key good practice principles in policies and procedures and the existence of management systems to support their implementation"). The key issue remains: managerial forms of accountability are certainly necessary; but are they - in this of all fields - even remotely sufficient?<br /><br /><br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com4tag:blogger.com,1999:blog-2111348014229466197.post-71997616880978039702009-05-26T20:00:00.003-04:002009-05-26T20:24:17.359-04:00Recent GAL events: Quick round-up<div style="text-align: justify;">To get the ball rolling, a quick round up of some of the recent major NYU-sponsored GAL events that have been taking place throughout the world:<br /><a href="http://www.iilj.org/GAL/GALGeneva.asp"><br /></a><span style="font-weight: bold;"><a href="http://www.iilj.org/GAL/GALGeneva.asp">1) Practical Legal Problems of International Organizations: A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights (Geneva, March 20-21, 2009).</a><br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br /></span></span><span style="color: rgb(153, 0, 0);font-size:85%;" >This conference was jointly organized and sponsored by the <a href="http://www.unige.ch/droit/fac/organisation/departements/inpub.html">Department of Public International Law and International Organization</a> at the University of Geneva Law School and the New York University (NYU) Institute for International Law and Justice. The event was also sponsored by the <a href="http://www.eda.admin.ch/eda/en/home.html">Swiss Federal Department of Foreign Affairs</a>, the <a href="http://www.carnegie.org/">Carnegie Corporation of New York</a>, and the <a href="http://www.irpa.eu/">Institute for Research on Public Administration</a> of Rome.The purpose of the meeting was to raise, analyze, and discuss important operational issues that confront major international organizations (IOs) that may not as yet have been sufficiently addressed in systematic fashion. In order to do so, the conference brought together leading experts – both practitioners and academics – in the field.<br /><br />A <a href="http://www.iilj.org/GAL/documents/REPORT-GAL_Geneva_2009.pdf">conference report is avaible here</a>; some photos <a href="http://www.iilj.org/newsandevents/2009Gallery.asp#Geneva">here</a>. This was the only one of these events that I was actually able to attend; I will post some reflections later in the week, on the assumption that late is indeed better than never...</span><br /><br /><span style="font-weight: bold;"><a href="http://www.iilj.org/climatefinance/default.asp">2) IILJ-Hauser Abu Dhabi Conference on “Climate Change: Financing Green Development” (May 3-5, 2009)</a><br /><span style="color: rgb(153, 0, 0);font-size:85%;" ><br /></span></span><span style="color: rgb(153, 0, 0);font-size:85%;" >NYU Law School held a conference in Abu Dhabi May 3-5, 2009 on Climate Change: Financing Green Development. The conference, held with the support of the Abu Dhabi government, addressed the legal and regulatory elements of carbon markets, climate finance, and climate-related investment in developing countries. The issues for discussion included market-based climate regulatory programs, the design, governance and linkage of carbon markets, climate-related conditions on various forms of development finance, international trade and investment law governing domestic climate regulation including of emissions trading and climate assets, and tax and distributional issues.</span> <p style="color: rgb(153, 0, 0);"><span style="font-size:85%;">Conference participants included leading representatives of the climate finance industry, carbon market regulators, developing countries, multinational businesses, sovereign wealth funds, international organizations, and NGOs as well as academic experts. NYU faculty, other academics, regulators, and expert practitioners presented papers on key legal, regulatory, and policy issues associated with climate finance and development in order to frame discussion and debate among all participants.</span></p>The conference blurb/agenda can be found <a href="http://www.ecssr.ac.ae/CDA/PDF_Bank/Bank_PDFs/2821_Invitation.pdf">here</a>; as soon as I locate a report, I'll post a link.<br /><br /><span style="font-weight: bold;"><a href="http://www.iilj.org/GAL/GALBeijing.asp">3) IILJ GAL Workshop in Beijing: "Legal Issues in the Process of Globalization: Globalization and Legal Governance” (May 22-23, 2009)</a><br /><br /></span><span style="color: rgb(153, 0, 0);font-size:85%;" >The IILJ held a GAL conference in Beijing on May 22-23, in collaboration with Tsinghua University School of Law. This event was also sponsored by The International Development Research Centre, Canada The event was another important part of the ongoing effort to actively encourage the participation of developing country scholars and institutions within the GAL Project, which has laready seen conferences held in Buenos Aires, Cape Town and Delhi over the last few years.<br /><br />Participants from NYU presented papers on various topics, ranging from the theoretical framework of GAL to its application in particular regulatory areas, such as climate change, financing development, sovereign wealth funds, and international trade and intellectual property. The participating Chinese scholars also applied a GAL approach in examining China’s participation in global governance, with a particular focus on the use of administrative law mechanisms to address urgent regulatory and institutional reform issues in response to financial turmoil, climate change and trade protectionism.<br /><br />A number of different global partners of the GAL project – from Argentina, Brazil, Canada, Colombia, India and South Africa – also attended this conference, and contributed their expertise from a comparative legal perspective. In addition, the IILJ is committec to developing a future research agenda for the GAL project with global partners and sponsors in Beijing.<br /></span><br />Again, if/when I find a link to a report, I'll post it here.<br /><br /><a href="http://www.facdyc.uanl.mx/avisos/derecho_administrativo/index.html"><span style="font-weight: bold;">4) Round Table on Global Administrative Law (Monterrey, Mexico, April 25 , 2009)</span></a><br /><br />Don't know much about this one. It was convened by the IILJ in conjunction with meetings of the International Association of Administrative Law and the Mexican Administrative Law Association. More info (for those who read Spanish at least) can be found <a href="http://www.facdyc.uanl.mx/avisos/derecho_administrativo/index.html">here</a>.<br /><br />Now we just have <a href="http://globaladminlaw.blogspot.com/2008/10/viterbo-v-gal-seminar-call-for-papers.html">the 5th annual GAL seminar in Viterbo</a> (always an extremely worthwhile event) and the <a href="http://globaladminlaw.blogspot.com/2009/03/call-for-papers-gal-syposium-at.html">GAL conference at Edinburgh</a> to look forward to next month. I am going to both, so will post up reflections on them here shortly afterwards.<br /> </div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2tag:blogger.com,1999:blog-2111348014229466197.post-45347088758961884652009-05-26T19:37:00.006-04:002009-06-09T15:05:33.124-04:00Sleep no more!<div style="text-align: justify;"><span style="color: rgb(153, 0, 0);font-size:85%;" >Methought I heard a voice cry "Sleep no more!<br />Macbeth does murder sleep," the innocent sleep,<br />Sleep that knits up the ravell'd sleave of care,<br />The death of each day's life, sore labour's bath,<br />Balm of hurt minds, great nature's second course,<br />Chief nourisher in life's feast—<br />...<br />Still it cried "Sleep no more!" to all the house:<br />"Glamis hath murder'd sleep, and therefore Cawdor<br />Shall sleep no more; Macbeth shall sleep no more." </span><br /><br />Right, apologies for having let things get so stale on here recently; life has quite literally overtaken me of late, in the shape of a very small, brand new person. However, in a doubtless ill-fated attempt to get back to some semblance of normality (not to mention re-establish myself as the dominant male in the household), I'm going to kick things off on here again. For the rest of this week (at least), I'll be playing catchup. Bear with me.<br /></div>Euan MacDonaldhttp://www.blogger.com/profile/06191651493895392340noreply@blogger.com2