Global Administrative Law

Transparency at the World Bank

2010-04-27T03:45:00.006-04:00

This seems like an unqualifiedly good move:

WORLD BANK GROUP OPENS DATA TO ALL

World Development Indicators, Global Development Finance, Africa Development Indicators, and Global Economic Monitor are now free, open, and easy to access at data.worldbank.org.

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.

“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. ”

The open data announcement coincides with the launch of the World Development Indicators (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 Global Development Finance (GDF), Africa Development Indicators (ADI), Global Economic Monitor (GEM), and indicators from the Doing Business report.

Access to these new resources is available at data.worldbank.org, a central web site that makes it easier to find, use, and manipulate data. A data catalog lists the available databases. The Bank will continue to add databases in the months ahead.

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.

Incidentally, the IILJ is leading its own Project on Indicators as a Global Technology, running in parallel to - and overlapping with - the GAL project more generally. Here's the blurb:

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.

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, Taking the Measure of Law: The Case of the Doing Business Project; on the project more generally, Kevin Davis, Benedict Kingsbury, and Sally Engle Merry, Indicators as a Technology of Global Governance).

Judge Adams and the Bertucci Case before the UNDT: An Update

2010-04-05T23:13:00.003-04:00

Following on from my earlier post on the facinating stand-off between the UN Secretary General and Judge Adams of the New York office of the UN Dispute Tribunal, 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 Ruling 59/Rev.1 On Production of Documents (26 March 2010). 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.

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 Art 7.5 of the Tribunal's Statute (ATS), 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):

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.
...
[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.

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:

1) That the Secretary General has no residual discretion as to the production of documents that have been required by the Tribunal:

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...

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.

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):

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.

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...

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.

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):

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.

4) That the Tribunal itself has jurisdiction to decide whether a putative appeal has caused proceedings before it to be stayed:

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.

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:

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.

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.

6) That the Orders for production and identification are not stayed:

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.

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.

There is a further GAL-related subtext to this issue. At the GAL Workshop in Geneva last year on the role of IOs in global governance, 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.

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...

The Strange Normativity of IOs: Part I

2010-04-01T02:11:00.002-04:00

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.

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.

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 s51 of the Australian Constitution, 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.

Of particular interest to me here, however, is the expansive interpretation that this has been given by the Australian High Court. In Commonwealth v. Tasmania (1983), it held that

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:

(a) implements any international law; or
(b) implements any treaty or convention whether general (multilateral) or

particular; or
(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;

And further that:

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.

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...

More on Chevron-Ecuador BIT arbitration

2010-04-01T02:02:00.003-04:00

Via Opinio Juris, a quick update on my post below: Chevron have just been awarded damages of circa $700 million 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 by not providing an effective means of asserting claims and enforcing rights.

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 Ecuador has rejected the finding of the arbitral panel; a course of action that is not, in international legal terms at least, really open to it. Chevron's own site (so perhaps not the least biased source around) notes that

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.

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.

Did the WHO "Cry Wolf" Over Swine Flu?

2010-03-28T21:05:00.005-04:00

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

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

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

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

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

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

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

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

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

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

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

2010-03-15T21:30:00.005-04:00

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

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

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

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

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

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

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

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

2010-03-15T02:32:00.009-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That, I think, is quite clearly fighting talk.

... And a conference on Private Military Companies

2010-02-21T18:43:00.005-05:00

As a quick follow up to my earlier post, a conference that may be of interest to readers - particularly Francophone readers - of the GAL blog has been brought to my attention:

Colloque
Université d’Auvergne - Faculté de droit de Clermont-Ferrand

Lucrum in bello:
Les entreprises militaires et de sécurité privées dans le monde contemporain

Clermont-Ferrand

4-5 mars 2010

The full programme is available here (and here). 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?".

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...

New publication on private military companies...

2010-02-21T18:16:00.003-05:00

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 par excellence) to private actors.

The recent volume edited by Simon Chesterman and Angelina Fisher, Private Security, Public Order: The Outsourcing of Public Services and its Limits (OUP, November 2009) deals squarely with the GAL aspects of this issue. The introductory chapter is available in full here. 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, From Mercenaries to Market: The Rise and Regulation of Private Military Companies, edited by Chesterman and Chia Lehnardt, was published by OUP in 2007.

Here is the (edited) blurb from the new volume:

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...

[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.

And the table of contents:

Introduction — Simon Chesterman & Angelina Fisher

Part I: Accountability gaps
1. The privatization of violence — Michael Likosky
2. The responsibility of states — Olivier De Schutter
3. Accountability to whom? — Angelina Fisher

Part II: Lessons from other sectors
4. The privatization continuum — Daphne Barak-Erez
5. Private prisons and the democratic deficit — Alfred C. Aman, Jr.
6. Regulatory choices in the privatization of infrastructure — Mariana Mota Prado
7. Human rights and self-regulation in the apparel industry — Rebecca DeWinter-Schmitt

Part III: Limits
8. Police informants — Jacqueline Ross
9. Intelligence services — Simon Chesterman
10. Peacekeeping — Chia Lehnardt

11. Conclusion: Private security, public order — Simon Chesterman & Angelina Fisher

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.

The Sixth Viterbo GAL Seminar

2010-02-19T00:27:00.006-05:00

And in the first post of the New Era, I return to a GAL Blog staple: the yearly Seminar in Viterbo, Italy. 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.

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" (as I have discussed before, 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:

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.

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.

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.

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?

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?

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.

The papers that have been selected are as follows (I was on the selection panel this year, 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):

“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).

“Global Financial Standards and Regulatory Failure”, Maurizia De Bellis (Lecturer, University of Roma “Tor Vergata”)

“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).

“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»)

“Towards a new Bretton Woods system or institutional fragmentation?”, Nikolaos Lavranos (Assistant Professor European Law and Senior Researcher International Law, University of Amsterdam).

“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).

“Protection of Investors in Financial Crises: Lessons of 1929 and 1930”, Martins Paparinskis (Hauser Research Scholar, New York University).

“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).

“The impact of the financial crisis on institutional transformation”, Myriam Senn (Swiss Federal Banking Commission).

“Banking Regulation in Mexico: Lessons from Financial Crises”, Karen B. Sigmond (PhD. Directora de Programa Tecnólógico de Monterrey, Campus Cd. de México).

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.

The Blog Is (Not Quite) Dead - Long Live the Blog!

2010-02-19T00:15:00.002-05:00

OK, so last year's resolution 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...

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.

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.

Anyway, a belated "all the best" for 2010 to whoever is still reading!

Spot the GAL...

2009-09-01T15:54:00.004-04:00

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

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

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

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

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

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

Post-Kadi progress within the EU?

2009-08-06T08:05:00.004-04:00

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

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

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

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

GAL fun in the world of international cricket...

2009-08-06T07:52:00.004-04:00

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

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

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

2009-08-06T07:00:00.006-04:00

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

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

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

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

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

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

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

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

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

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

2009-07-31T09:33:00.007-04:00

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

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

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

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

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

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

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

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

This, however, the Court declined to do:

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

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

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

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

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

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

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

More on the ski-jumping...

2009-07-30T11:27:00.004-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some thought on E-GAL, Edinburgh 2009

2009-06-28T09:47:00.004-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some brief reflections on Viterbo V

2009-06-24T21:00:00.002-04:00

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

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

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

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

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

Proactive Strategies in the Global Legality Review
Gianluca Sgueo

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

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

What Makes Networks Effective: Evidence from the SEC
David Zaring

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

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

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

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

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

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

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

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

Viterbo V papers up...

2009-06-09T21:13:00.003-04:00

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

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

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

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

2009-06-09T14:42:00.002-04:00

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

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

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

A little more still on the fallout from Kadi

2009-06-01T18:24:00.003-04:00

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

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

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

Accountability and humanitarianism...

2009-05-30T19:03:00.006-04:00

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

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

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

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

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

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

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

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

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

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

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

Recent GAL events: Quick round-up

2009-05-26T20:00:00.003-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sleep no more!

2009-05-26T19:37:00.006-04:00

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

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

Kadi: Recent Developments

2009-05-01T05:08:00.006-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Krisch: GAL and the Constitutional Ambition

2009-05-01T04:56:00.005-04:00

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

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

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

Transparency and investment arbitration

2009-04-25T05:16:00.003-04:00

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

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

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

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

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

2009-04-22T10:04:00.003-04:00

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

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

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

…

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

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

GAL and... women's ski-jumping

2009-04-21T13:49:00.007-04:00

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

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

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

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

2009-04-21T13:28:00.006-04:00

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

Well worth a look for those interested in the field.

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

2009-04-21T04:31:00.005-04:00

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

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

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

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

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

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

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

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

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

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

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

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

2009-04-12T17:39:00.006-04:00

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

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

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

New periodical: Journal of International Peacekeeping

2009-03-26T04:45:00.005-04:00

The first issue of the Journal of International Peacekeeping has just been published, and the full text of all the articles are available online.

The Journal of International Peacekeeping is devoted to reporting upon and analyzing international peacekeeping with an emphasis upon legal and policy issues, but is not limited to these issues. Topics include inter alia peacekeeping, peace, war, conflict resolution, diplomacy, international law, international security, humanitarian relief, humanitarian law, and terrorism. The journal is of scholarly quality but is not narrowly theoretical. It provides the interested public - diplomats, civil servants, politicians, the military, academics, journalists, and NGO employees - with an up-to-date source of information on peacekeeping, enabling them to keep abreast of the most important developments in the field. Peacekeeping is treated in a pragmatic light, seen as a form of international military cooperation for the preservation or restoration of international peace and security. Attention is focused not only on UN peacekeeping operations, but other missions as well.

The Journal of International Peacekeeping is the continuation of the journal and yearbook International Peacekeeping, founded in 1994.

Of course, from our perspective, the most interesting issues relate to the accountability of international organizations (and perhaps of private military companies) for the actions of their peacekeepers, whether taken out in furtherence of their mandate, or in blatant abuse of their position. This is a range of topics on which I have blogged a couple of times before. I've only had time for a quick look, but there are a range of articles in the first volume of the Journal of International Peacekeeping that are of interest (and will have to be added to the GAL Bbiliography): One on the role of the UN in promoting the rule of law in post-conflict societies; on the ECtHR's Behrami decision; another on the House of Lords' Al Jedda judgment; and another on the immunity of the UN over Srebrenica before a Dutch court. There are also some relevant reviews of books on UN peacekeeping in Lebanon, Somalia and Kosovo, legal implications of peacekeeping, on international territorial administration, and on the "unintended consequences" of peacekeeping missions.

That's a lot of GAL for the first issue of a journal. Definitely one worth keeping an eye on...

Call for papers: GAL syposium at Edinburgh University

2009-03-18T10:27:00.005-04:00

The events are coming thick and fast these days, but this one I find particularly interesting, for at least three reasons: 1) it's at Edinburgh University, my alma mater; 2) I've been asked to give the keynote address; and 3) most importantly, by far, this to my knowledge is the first GAL event to be organized that has not involved the participation of the Institute for International Law and Justice (IILJ) and/or the Institute for Research on Public Administration (IRPA) in Rome.

The event will be held on Tuesday the 16th of June 2009, is being run "by PhD students for PhD students" from the Edinburgh University International Law Discussion Group, and is sponsored by the Edinburgh Law School Postdoctoral Research Committee and the Scottish Centre for International Law. The idea is to give doctoral researchers an opportunity to present short (20 minute) papers on anything GAL-related, and is not limkited to those working in the legal field, but is expressly extended to those working on philosophy, history, sociology, etc. ; anyone who would like to present a paper is invited to submit a 250 word abstract by the 20th of April 2009 to edinburghGAL09@gmail.com. More information is available here. It should, I think, be an very worthwhile event.

If anyone is interested, below is an abstract of the paper that I am planning to present (although it may of course change between now and then):

Globalising the Discourse of Public Law: Constitutionalism, Democracy and the "Emergence" of Global Administrative Law:

The central purpose of this paper is to discuss the rhetoric of "emergence" within the field of global administrative law (GAL). The GAL Project has arisen out of – indeed largely in response to – the conditions of radical plurality and fragmentation that currently characterise the field of global regulatory governance. At the same time, however, the goals of the project have long been framed in terms of unity, as is illustrated by the rhetoric not simply of the singular form of the term “law”, but also of a unitary “global administrative space” within which it is to be applicable. This fundamental unity is at once affirmed and deferred, however, in the basic claim GAL is as yet only “emerging”; which, of course, begs the question of precisely what will have come into being when we can properly say that GAL has “emerged”. This is the issue that I seek to address in this paper.

It does so by comparing the development of two other - related but distinct - projects that seek to "globalise" public law discourses: constitutionalism and democracy. I identify three analytic "coordinates" in each project - the domestic, the extranational, and the global - and argue that the first two interact dialectically in the production of the third, thus justifying the use of the term "global". I illustrate some of the ways in which this is happening in GAL, leading to a relative homogenisation that speaks to the unitary rhetoric employed within the project; and argue that GAL remains a more realistic proposition than either global constitutionalism or global democracy precisely because the latter two project lack any sort of developed extranational coordinate.

Forthcoming event on GAL in International Organizations in Geneva

2009-03-17T10:20:00.006-04:00

A quick post to highlight the fact that this week (Friday and Saturday to be precise) a major GAL event will be held in Geneva, Switzerland, on Practical Problems of International Organizations: A Global Administrative Law Perspective on Public/Private Partnerships, Accountability, and Human Rights. The conference will feature Panels on the increasing use of public-private partnerships by international organizations; legal process and mandate issues; accountability and immunities; and human rights issues in field operations. There will also be a general round table discussion, involving the chief legal officers of a number of important organizations. A detailed overview and programme of the event is available here.

The conference is jointly organized and sponsored by the Department of Public International Law and International Organization (and in particular by Professor Laurence Boisson de Chazournes) at the University of Geneva Law School and NYU's Institute for International Law and Justice (where the GAL project, led by Professors Benedict Kingsbury and Richard Stewart, is based). The event is also sponsored by the Institute for Research on Public Administration of Rome (led by Professor Sabino Cassese), the Swiss Federal Department of Foreign Affairs, and the Carnegie Corporation of New York. Special mention must also go to my friend and colleague Lorenzo Casini, who has written more emails in this regard than I even knew existed.

The purpose of the meeting is 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 will bring together leading experts – both practitioners and academics – in the field.

Unfortunately, the meeting is by invitation only. The various contributions will, however, be collected into a volume for publication after the conference; and I will post some reflections on the event here at some point early next week.

More on IOs, Peacekeeping and Attribution...

2009-03-12T12:29:00.002-04:00

Just to keep things ticking over on here, I wanted to post a quick link to this interesting and detailed analysis by Antonios Tzanakopoulos over at the EJIL:Talk! blog on the vexed issues of attribution of the conduct of peacekeeping forces to the international organizations that have instigated or approved their presence. He focuses in particular on the issues surrounding the use of private military companies (PMCs), and concludes that here, at least where they are employed by IOs directly, attribution of their conduct is pretty much automatic. If, that is, the ILC´s Draft Articles on the Responsibility of International Organizations have called it right. Draft Article 4(1) states:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

As Tzanakopoulos notes, any PMC hired by an IO would automatically become an agent of the latter, and thus attribution of their conduct to the IO in question would be similarly automatic. Which makes it significantly easier to attribute the conduct of PMCs to IOs than it does that of national forces used in peacekeeping missions (where "effective control" must be demonstrated), and - perhaps more surprsingly - the conduct of PMCs to States that employ their services (in which case, according to Tzanakopoulos, "one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State). He then goes on to examine in more detail this difference, and other aspects of the issues surrounding attribution of peacekeepers´ conduct to IOs. Well worth a read.

Apologies...

2009-03-12T12:20:00.004-04:00

... for the lack of activity on here during the past little while. I have just left NYU, and am currently sojourning in the Low Tatras in Slovakia, and trying to get to grips with the relative difference in internet access between then and now (Slovakia, of course, has plenty; it is just my house that doesn´t...). Normal service will be resumed in about a week or so.

Call for papers on Sovereign Wealth Funds

2009-03-04T12:52:00.006-05:00

Just a quick note to flag a call for papers that is being circulated for a conference in Singapore in September this year on Sovereign Wealth Funds. Much of interest from a global administrative law perspective, in particular relating to transparency and accountability requirements for the management of such funds. Anyone wanting an introduction to the issues involved could do much worse than read this excellent IILJ Working Paper by Simon Chesterman on this very topic. Anyway, here's the conference blurb:

The National University of Singapore (NUS) and the Asian Society of International Law (AsianSIL) are pleased to invite applications to attend the NUS Law School-AsianSIL Conference on Sovereign Wealth Funds: Governance and Regulation. This will be held at the NUS Law School in Singapore from Wednesday to Friday, 9-11 September 2009. Paper-givers who are selected through a competitive process will have their reasonable expenses covered.

Sovereign wealth funds (SWFs) played an important role in the economic crisis of 2007-2009, incidentally acquiring large stakes in some financial giants. Yet that role has also raised questions about the influence of these state-owned investment vehicles. The United States and the European Union have expressed concerns that SWFs — coming largely from developing nations such as China, Russia and the Gulf states — have more than commercial aims. In particular, there are concerns that SWFs seek political and strategic leverage on top of financial gain. Such anxieties have been exacerbated by the relative opacity of these large investors.

Current discussion about these issues tends to concentrate on policy and economic matters rather than law. The aim of this conference — Sovereign Wealth Funds: Governance and Regulation — is to clarify the role that norms and law may play in future governance and regulation, including analysis of the governance potential of self-regulation and voluntary regimes.

A variety of processes have been initiated by both investor and investee countries, as well as the International Monetary Fund (IMF) and the World Bank, intended to bring a measure of clarity to the situation. In particular, the International Working Group of Sovereign Wealth Funds (IWG-SWF) has drafted a set of Generally Accepted Principles and Practices (GAPP) — the “Santiago Principles” — in the hope that this voluntary regime will help maintain the free flow of cross-border investment and open and stable financial systems.

The Santiago Principles define SWFs as “special purpose investment funds” owned and created by the general government for macroeconomic purposes. Generally established from the balance of payments surpluses, official foreign currency operations, proceeds of privatizations, fiscal surpluses, and/or receipts resulting from commodity exports, SWFs invest largely in foreign financial assets to achieve financial objectives.

Abstracts for new and unpublished papers are invited on these and related issues. All conference papers will be published as "working papers" on the AsianSIL website. A select number of accepted papers will subsequently be considered for formal publication in a special section of the Singapore Year Book of International Law.

The following subject areas are intended to be illustrative of possible topics that might be considered, but other approaches are welcome:

1. Regulation at home (for example, transparency and accountability requirements for SWFs; processes for determining appropriate allocation of assets)
2. Regulation abroad (for example, restriction on foreign SWF investment in “sensitive yet capital-intensive” industries)
3. Self-regulation and voluntary regimes (for example, the likely impact of the GAPP on SWF investment practices, corporate social responsibility)
4. SWFs and international trade (for example, the relationship between bilateral investment treaties and SWF capital investments, and the possibility of including regulatory clauses in future treaties)
5. Best practices in corporate governance (for example, emerging standards for risk management and rates of return on investment)
6. Avoiding conflicts of interest (for example, a government taking stakes in an entity that it is regulating)
7. Stakeholders and the lines of accountability (for example, who the stakeholders in such a fund are and to whom accountability for its activities should be directed)
8. The impact of the financial crisis on prospects for regulation of SWFs.
9. What is “sovereign wealth” anyway?

Proposals should be submitted on the attached Abstract Submission Form available here.

Please ensure that you include an abstract of not more than 250 words, indicating the relationship of the proposed paper to the conference theme and identifying one or more of the subject areas listed above to which the paper relates.

Completed forms must be emailed to asiansil-admin@nus.edu.sg by Friday, 24 April 2009. Those selected to participate in the conference will be notified by Friday, 1 May 2009. Further details about the conference will be made available at that time. Participation will be dependent on producing a draft of the paper (in the order of 8,000 words) by Friday, 31 July 2009.

For more details on the Conference, please refer to our conference website.

Best wishes,

Simon Chesterman
Global Professor and Director, NYU School of Law Singapore Programme Associate Professor, NUS Faculty of Law

Tan Hsien-Li
Asian Society of International Law Research Fellow, NUS Faculty of Law

The GAL Bibliography is now live...

2009-02-24T10:24:00.011-05:00

It is, I confess, a much-delayed announcement, but the Global Administrative Law Bibliography is now available online.

There are a number of challenges involved in presenting and maintaining a bibliography for an emerging field of this sort, vast in scope and rapidly increasing in popularity. The key issues are 1) ensuring that the resource is user friendly; and 2) ensuring that it is kept up-to-date, to the greatest degree possible, in as many areas as possible of this rapidly-developing field.

We have tried to confront these issues directly in the design of the bibliography, in two main ways. Firstly, we have tried to make it easier for users to navigate the wealth of information it contains - in the long-term at least - by introducing an "annotations" facility. Each entry has a cross in the top right-hand corner, and clicking on it will display the annotation where one is available. In this way, we hope, eventually, to be able to provide a more detailed account of the texts included than a title alone could offer.

Whence the second issue. Of course, annotating a bibliography of this size is a huge - not to mention Sisyphean - task. We have thus (magnanimously) decided to introduce a collaborative element to the bibliography, in order that users can suggest new entries and/or annotations simply by filling out this handy feedback form. The form can also be used for more general feedback/comments/criticisms on the resource in general. Any annotations published will, of course, be fully attributed.

Here is the structure of the bibliography, in full:

Bibliography homepage

I. The Field of Global Administrative Law
A. General Works
B. Global Administrative Law and International Law
C. Early/Historical Works

II. Global Norms for National Bodies
A. General
B. Trade, Competition and Intellectual Property
C. Foreign Investment
D. Development
E. Environmental Regulation
F. Others

III. Global Administrative Bodies
A. International Organizations - General
a. UN Security Council
b. UN Agencies
c. World Trade Organization
d. World Bank
e. International Monetary Fund
f. Others
B. Transnational Regulatory Networks
C. Hybrid Public-Private Bodies
D. Private Bodies with a Public Governance Function

IV. Issue-Specific Works
A. Accountability and Review
B. Transparency
C. Participation
D. Due Process
E. Fragmention, Defragmentation and Pluralism
F. Compliance and Effectiveness
G. Indicators as a Governance Tool

V. GAL Issues in Specific Regions
A. Europe
B. North America
C. Latin American and the Americas
D. Africa, the Gulf and the Middle East
E. South Asia
F. South-East Asia and the Pacific
G. East Asia

VI. Theoretical Works
A. Legal Theory
B. Political Theory
C. Democratic Theory
D. Postnational Constitutionalism
E. Legitimacy
F. International Relations Theory
G. Political Economy

VII. Other Related Works

Please do go and have a play around on it, and let me know what you think; and of course, feel free to use that feedback form...

Kevin Davis on "Can Lawyers Change the World?"

2009-02-20T10:56:00.005-05:00

A fortnight ago, on Tuesday 3rd February to be precise, Professor Kevin Davis of NYU gave his inaugural lecture as Beller Family Professor of Business Law, entitled “Law, Lawyers, and Global Development: Can Lawyers Change the World?”. The lecture is of real interest from a global administrative law perspective, for two important reasons. Firstly, Professor Davis himself is a central (if sometimes skeptical) figure within the project, a regular participant in the many workshops that NYU has sponsored in various parts of the world, and he will be leading a major research project within the IILJ on “Financing Development”, which will contain a significant GAL component. Secondly, and of more immediate importance to this particular post, the content of this fascinating lecture can be read as posing some key challenges to the desirability of the GAL project as a whole. A video of the lecture is now available here.

In this post, then, I want to begin by outlining the substance of Professor Davis’ talk, before going on to offer some critical reflections from a GAL perspective. The very first thing I want to do, however, is to extend my warmest congratulations to Professor Davis on his inauguration as Beller Family Professor of Business Law: I’m very much looking forward to his contributions – to the global administrative law project in particular – over the coming months and years, in the field of development finance and beyond; they will, I have no doubt, be of the very highest – and constructively provocative – quality.

Law and lawyers: good or bad for development?
Davis set the scene with a few observations about the desirability of lawyers for economic development, noting that some economists have, in the past, even argued that there is a negative correlation between the number of lawyers in a country and its level of development. In opposition to this, he sketched what is by now by far the majority view – that legal institutions, and the lawyers that man them, can and do make a positive difference in encouraging economic development. He was also keen to stress, however, that there are two different arguments concerning the positive difference that lawyers can make: one at the “retail” level, in which lawyers assist on a case-by-case, client-by-client basis; and the other at the “wholesale” level, in which lawyers can bring about broader, systemic change in legal orders in an effort to secure the conditions necessary for economic development and growth. This second argument he traces back to the Nobel prize-winning economist Douglass North for his work on linking the rise of Western Europe to the institution of effective regimes of property rights and contract enforcement. (We could perhaps go back even further, however; claims of this sort seem central to Marxist thought, and something very similar to this argument – albeit, perhaps, expressed in a different vocabulary – had already been worked through in 1924 by the Soviet legal theorist Evgeny Pashukanis, in his book on The General Theory of Law and Marxism). These different levels of optimism about the potential role of lawyers assumes some significance later on.

Davis accepted the basic thrust of this position – that law and lawyers can have a positive impact upon development – but immediately looked to problematise a claim that, to him, many accept far too easily as a corollary: the idea that there is thus a universal, “one size fits all” template for the “effective” legal/judicial system, and that this simply needs to be transplanted into whichever country in the world is experiencing developmental difficulties for these to vanish. The bulk of the rest of the lecture was devoted to criticizing three different “universalist approaches” – in terms, however, that were clearly intended to move beyond the examples he gave and apply to all “one size fits all” legal reform projects. One point that did link each of the approaches that Davis discussed here, however, is that they all rely, to some degree, on empirical, social scientific data collection and “measurement” in making their claim to be desirable templates for universal law reform; the extent to which this might impact upon his conclusions is something to which I will return briefly below.

Davis suggested three main obstacles or objections to any universalist approach to global legal reform. The first is the normative claim that different people, different societies have radically divergent values, and that the law can be calibrated in different ways in order to further different goals. The first objection, then, is that universalist endeavours simply ignore value pluralism. Secondly, Davis pointed to the importance of local substitutes for what are (perceived to be) important legal reforms, meaning that scarce resources might be better applied elsewhere. Lastly, he also signaled the crucial role that certain complements can play – elements that may, if not present in the target society, actually function to undermine the goals that the reforms in question were intended to further.

Three universalist approaches
Davis then went on to outline, and critique, three different “universalist’ law reform positions that have been suggested recently. The first, and least sophisticated, of these was what he referred to as the “common law” approach: the claim, based upon “the work of a very prominent group of economists at a number of Ivy League schools who have written a very influential, widely-cited set of papers that they summarized in a recent survey article this year”, that countries that adopt a common law system score better on many of the key indices of development (such as levels of investor protection, lower government regulation, less corruption, better labour markets and judicial systems, etc.) than did their civil law counterparts. This is then used in support of proposals for pretty wholesale systemic reforms.

To this, Davis opposed his three-pronged critical apparatus. The normative problem is that this approach is massively reductive in terms of radical differences over what societies want, and what developmental ends a legal system should further (he also pointed out, interestingly, that despite these intermediate findings, the works that he outlined previously had been unable to find evidence of a causal connection between the common law and levels of economic development itself). More fundamentally, he also noted that there may be some “intrinsic” ends that societies feel a civil law system furthers that are external – and superior – to its ability to promote development or otherwise. As an example of this, he discussed recent movements in the Caribbean to renounce the jurisdiction of the UK Privy Council, and instead to establish some form of Caribbean Court of Justice for hearing final appeals from courts in the region – despite the fact that the Privy Council brings with it all of the experience and expertise of one of the oldest common law jurisdictions in the world. This was summed up in the view of one commentator in terms of “self government being better than good government”. (Davis suggested that this is “paradoxical”, although I’m not entirely sure I see why. Certainly, if we accept the plausible proposition that self government and good government are two independent but valid normative goals, then any apparent paradox disappears – it is simply a statement of relative weighting).

The common law-fits-all approach also fails in terms of substitutes and complements. On the former, Davis notes simply that, even if there is a causal link between development and the common law, then many developed civil law countries have clearly found more than adequate causal substitutes. As to complements, Davis simply points out that, given the crucial role of judges in the common law system, transplanting it to any country that does not have the key complement of an independent and effective judiciary is likely to be profoundly counter-productive.

The second of the universalist approaches that Davis discussed was that offered by the World Bank’s Doing Business project (which made explicit use of the “one-size-fits-all” claim). That project involved an extremely broad data collection exercise in which the ease with which certain key economic transactions (property transfers, debt collection, etc.) could be conducted. Countries were then ranked along these lines, and encouraged to improve their positions in the relevant rankings. These rankings could then play a role in funding decisions of the Bank and other organizations, and as such can have a real impact.

Despite taking a more sophisticated, “functional” approach, Davis argued that this also fell foul of his three objections. Firstly, it is quite clear that (very) reasonable people might disagree with many of the Banks assertions as to what is desirable in a legal system (Davis took, as one example among many, the Bank’s belief that secured creditors should be able to enforce their rights as easily as possible, and take precedence over all others). As to substitutes, Davis told the story of a Ugandan lawyer’s reaction to the Bank’s finding that it took 30 days to set up a business in her country. This was certainly true in terms of formal rules; however, the informal network of lawyers was dense enough that, in almost all cases, it was unlikely to take more than 2-3 days wherever a local lawyer was involved. This, he argued, meant that there was a workable, informal solution that meant that scarce development resources would be better targeted elsewhere. Lastly, on the issue of necessary complements, Davis talked of the US in Afghanistan, and their “success” in reducing the time needed to start a business to 9 days. However, to actually become operational, it still took over a year, as all of the corruption had simply been shifted to the licensing phase. Thus, without the complement of an effective licensing system, the initial reform was effectively empty.

Lastly, Davis turned to what he termed a “procedural” universalist approach, although this was more based on a particular social science methodology than what we normally think of as proceduralism from a legal perspective (again, a point to which I will return below). This is the argument that no legal reform should be implemented without a fully controlled and randomised trial, of the same sort used for drugs (this is the example in which the social science slant of Davis’ choices, although present in all three, is most readily prominent). So, for any proposed reform in any given society, a controlled experiment should be run on a proportion of the relevant actors in that society before it can be legitimately extended to the society as a whole, and the results measured and evaluated in an objective manner.

Leaving aside the technical issues involved (e.g. is it even possible to “control” an experiment of this sort to the degree necessary?), Davis argued that this approach again fails to overcome his three hurdles. Firstly, although it doesn’t predetermine any substantive outcome, but rather a procedure to be followed, there are still normative concerns. For example, what are the ethics of using those in the treatment group as guinea pigs, particularly if those guinea pigs fear it may harm them? In terms of the other two obstacles, Davis argued that there may be more cost-effective ways of testing the proposed reform than through experiments of this type; particularly as, given the difficulties involved in designing, running and interpreting the results of such experiments, a crucial complement is to have a community of experts capable of doing so.

On the basis of the foregoing, Davis drew two conclusions – one pessimistic, and the other more optimistic (if fairly heavily circumscribed). The former is that “one-size-fits-all” approaches to law reform have to be abandoned; the universalist approaches simply cannot respond adequately to the three contextualist objections that he raised. Rather, solutions to problems have to be tailored to the context in which they are to be applied, meaning that, in his own words, “most of us in this room have relatively little to offer, at least in our capacity as lawyers, to the poor countries of the world because we know our own system”. So what, if anything, can lawyers do? In essence, what Davis is (relatively) optimistic about is their capacity to assist in a support role: helping to ensure that those with knowledge of the local conditions have the expertise (e.g. through information sharing) and the voice to bring about the required changes and to ensure those in power act in good faith. Lastly, he recalled the importance of working simply one case at a time, one client at a time – even if this only means encouraging clients to take contextual issues into consideration.

Some critical reflections
One of the questions posed to Professor Davis at the end of his lecture concerned just how far he intended his “contextualist” argument to apply: whether it was limited to the three – fairly controversial – examples of “one-size-fits-all” global norm generation that he had directly addressed, or whether instead it was a more general argument, applicable with equal force to, for example, the normative activity of the UN (be it in terms of treaties, standards, model laws, etc.). Davis’ response surprised me, at least:

I think I’m actually a pretty radical contextualist, so I would intend to cover those dimensions... Logicially, the argument would extend to any effort to have the same laws – and especially the same words – applied to every country; and so, if the claim is that that’s the best you can do for those countries, then I think that... that can’t be right. Now, if you’re saying as a pragmatic matter that this is the only way to achieve any sort of reform, that might be a different story... But if you want to argue that that’s going to generate good law, then I think that’s going to be a difficult argument to sustain. There’s also going to be a question of the legitimacy of these global actors, and the legitimacy of the products of their activities, when typically developing countries have a lot of trouble participating in those fora, having their voices heard. There aren’t many fora that matter, I don’t think, in which developing countries are happy with the amount of voice that they have... so I’m not particularly comfortable with the one-size-fits-all solutions that emanate from bodies other than the World Bank [either].

It is in many ways difficult to imagine a broader attack on the normative bases of the global administrative law project than that offered in this short passage. Crucially, it casts doubt on both “coordinates” of the project (which – in my view – are interacting dialectically in order to produce the whole). To recap this argument very briefly, we have seen empirical GAL scholarship split along two lines: those that examine the administrative law of global administrative bodies (the extranational coordinate, focusing on global subjects); and those that study the existence of global administrative law norms for national administrative actors (the domestic coordinate, focusing on global sources). In his response to the questioner, Davis effectively called into question both of these.

Firstly, his response to this particular question means that the entire lecture can be read as an attack on the desirability of global administrative law’s domestic coordinate (or, in the terms suggested in the original framing paper, on the element of “distributed administration” in global administrative law), which is largely about the development and implementation of a one-size-fits all set of administrative law rules that can be applied from sector to sector. The clearest example of this is perhaps the Aarhus Convention on environmental decision-making; however, it is in many ways the driving logic behind this entire section of the field, and can be witnessed in some of the administrative law provisions of the WTO agreements, in some of the pronouncements of the WTO’s Appellate Body, and also in much of the administrative law-type normative output of global administrative bodies themselves.

This tripartite distinction between the different global sources of GAL – treaties, judicial decisions and global administrative norm generation – is also important in the light of the second claim that Davis made pertaining to the legitimacy of the global processes that generate the one-size-fits-all proposals that he criticizes. The key question is, to what extent can increasing the legitimacy of the global source serve to overcome Davis’ contextualist objections? Might it be argued, for example, that treaties remain legitimate global sources of domestic administrative law given the required state mediation by an act of national ratification? Or that a legitimate global court might legitimately develop standards in this field? Is the function of Davis second point above – concerning the participation of developing countries in global administrative bodies – to undermine the power of the first, “radically contextualist” one? If so, we might suggest that the extranational coordinate of GAL – which aims precisely to increase voice and decrease disregard of marginalized interests in such bodies – could function to rescue the legitimacy of the domestic coordinate in a pleasingly circular fashion. All we need to do is increase accountability of and participation in these bodies and their one-size-fits-all approach to domestic administrative law reforms becomes legitimate.

Pleasing though this is, and plausible to an extent, I suspect that Professor Davis would find it a far from satisfying conclusion, for a number of different reasons. Firstly, it would only even purport to overcome the “normative” element of his objections; those relating to substitutes and complements would still remain. Secondly, there would be (very) plausible grounds to argue that often the acts of governments do not approximate particularly well to the collective will or values of those they purport to represent. The playing field of international politics cannot be levelled simply by a requirement of national ratification, or by the introduction of a formal right of participation or two; and this doesn’t even speak to the important issues of corruption or capture by vested interests. Thirdly, to accept this point would be to undermine what I took to be the central argument that Davis was making: that good solutions (in both normative and effectiveness terms) to concrete governance problems must of necessity reflect the particular circumstances and context in which they have arisen.

What hope for justifying global administrative law in this context? Here, I want to make a single tentative suggestion: that it is when faced with Davis three sets of contextualist objections – relating to the importance of values, substitutes and complements – that global administrative law distinguishes itself from all other “global law” projects. I can’t develop this in any real detail here, but I would go about forming a GAL-defence to Davis’ concerns along the following lines:

1) GAL (much like Davis’ “experimental” variant of universalism) does not seek to predetermine substantive outcomes, but focuses rather on the procedures by which such outcomes are obtained. Unlike that experimentalism, however, GAL is not limited to a particular type of scientific procedure (although, as I have argued elsewhere, there is no reason why it cannot be calibrated also to that end); to the contrary, it can be used to secure the conditions in which marginalized voices can be heard, and genuine local will-formation, genuinely reflecting local values, becomes possible.

2) This means, in turn, that we may be able to defend GAL (in the abstract at least – I’m talking here of potential, how this will cash out in any given context is of course a matter of real concern, to be contested anew in each new situation) as representing a universal (or at least universalisable) set of substitutes and complements; or, at least, in the case of the former, providing the conditions within which we can be relatively sure that the local substitutes that exist do not degenerate from informal workaround into institutionalised corruption

I suspect that my second claim here might benefit from a little further clarification and elaboration. Put simply, I am (tentatively) suggesting that, at its best, GAL in the domestic coordinate (that is, “one-size-fits-all” rules on accountability, transparency and participation for particular sectors of domestic administrative activity) can help to create the conditions in which 1) local, contextual will formation, that reflects more than simply the interests of the dominant local players, might be possible; 2) effective local particularities can be supported largely as is, while ate the same time reducing the possibility that they themselves will simply reflect, or come to reflect, local power relations; and 3) we can begin to reconcile a genuine concern for radically divergent values with the ever-present risk of mistaking local domination for local culture. To take some of the examples relied upon by Davis himself: an effective set of administrative law complements relating to transparency and accountability would have overcome the difficulty faced in Afghanistan, in which a successful reform simply relocated corruption to a different stage in the process of starting up a business; and – as one questioner suggested at the end of the lecture – a set of procedural guarantees would also ensure that access to the informal network of lawyers in Uganda that represented the local substitute there would be available to all on equal terms, and would be less open to other forms of patronage or abuse.

I want to conclude, however, with two more general – if related – reflections on Professor Davis’ lecture. The first relates to his choice of the three “universalist” approaches for discussion. As I noted above, all three are striking for their “scientific” bias – the idea that the governance of human affairs is something that can be properly universalized not because we all share the same values, but because “good governance” is in some sense objectively verifiable and quantifiable. While Davis presents these as “influential”, however (and they undoubtedly are so from an economics perspective), within the discipline of international law they appear, to me at least, to be fairly marginal positions (the exception here may be the World Bank’s “doing business” index, which has some real governance bite, but even that does not reflect the mainstream of international legal scholarship). The reason for this, I suspect, is that all three approaches are premised upon two basic assumptions that have few adherents amongst international lawyers: firstly, that they most important elements of human governance are in principle quantifiable (although this is a proposition that may be gaining some ground); and secondly, that “good governance” (of the particular type they identify) is in some sense objective – that is, it stands beyond local values as a universal good. In this sense, it is not surprising that Davis is able to level persuasive contextual normative concerns at each, as they are premised upon a theory that simply (and to my mind unpersuasively) rejects the relevance of values to their own approach. In this regard, his normative concerns, to some degree at least, risk talking past, rather than speaking to, the fundamentals of each approach.

Related to this, and on a more philosophical note, is my second concern. By attacking only these – what we might term “objective universalist” – one-size-fits-all approaches, there is a sense in which Davis makes his own task a little easier than it might otherwise have been. For while his contextualist (relativist) concerns seem to undermine the whole approach of each of his three examples (largely because they are based upon a different set of theoretical premises), their effect is much less radically destructive to some other global law approaches – as I think he implicitly recognized by including his second set of considerations, relating to the legitimacy of global bodies as currently constituted, in his response to the question on the broader applicability of his critique to, say, UN lawmaking. The implication being that, as suggested above, a more legitimate global body would make more legitimate – universal – laws.

When we move to these less extreme examples of global norms to be universally applied within domestic settings (less extreme in that they are not premised upon the neutrality, apoliticality or objectivity of their own claims), we begin to see that the debate is not properly one of universality versus contextualism, but rather – as always – of where to draw the line in any particular case. Only the crudest of normative relativists even attempt to claim that all localism everywhere must be respected in their entirety (and in my view lapse into philosophical incoherence in the attempt to do so); and very few today subscribe to the (in some ways) opposite position – that there is one normatively correct way of doing things, and that we know what it is. I suspect that Professor Davis, despite his claims of radical contextualism, would not fall into the former category: that is, I suspect that he would not argue that every and any local custom must be accepted (and indeed implicitly encouraged) by local law reforms. It is interesting to note in this regard Davis’ response to the question regarding the risk that informal workarounds become simple opportunities for corruption and abuse: he argued that it is for local communities to decide how much corruption in public authorities is tolerable. Quite apart from the practical difficulties of operationalising such a claim (how can the feedback mechanisms of a deeply corrupt political system be trusted to give an accurate account of local feeling?), I wonder just how far he would be prepared to push this: should a donor country or institution really – for normative reasons – have no say whatsoever in whether money goes to corrupt officials or not?

All of this speaks, to my mind, of the rhetorical (broadly conceived) limitations of framing an issue as complex as this in terms of a debate between universalism v. contextualism, or even generalism v. particularism. In practice, particularly since the advent of human rights, (almost) everybody accepts that there is the need for both universal and contextual norms, for the general and the particular: the debate is only really ever over the best balance of these things in any given context; and the criticism is not that something is “universal” per se, but rather that it is not contextual enough. Answering these questions, however, requires a set of argumentative resources that simply are not provided – at all – by the rhetorical framework of the universal/ contextual dichotomy. In this sense, the arguments offered by Davis cannot serve, beyond the three examples he uses (and others, if similarly-premised), to debunk all attempts at “one-size-fits-all” lawmaking. Rather, they provide us with one – extremely useful – half of a way of articulating the problems faced by attempts to formulate legitimate “global” law of this sort; problems that the global administrative law project itself – perhaps uniquely – provides significant resources for addressing.

***UPDATE***
Professor Davis was kind enough to clarify for me his point about the phrase "self-government is better than good government" being paradoxical:

...it has taken me a while to realize why I might have been the only person in the room who found the statement 'self government is better than good government' so intriguing. It is basically because I have an idiosyncratic interpretation of the term 'good government.' It stems from the fact that in Canadian constitutional parlance 'peace, order and good government' is often characterized more like an ideal than as a merely 'good' form of government. [Here is a Wikipedia entry that may give you a sense of what I had in mind] Consequently, I read the statement to mean something like 'self government is better than ideal government.' This may not quite qualify as a paradox, but it is a bit more interesting than the assertion that 'self government is better than ok government.' I should add, however, that upon reflection I am unsure whether even the author of the statement shared my understanding of the term "good government."

Participation as a buzzword

2009-02-19T17:18:00.003-05:00

William Easterly has an interesting post over at Aid Watch on "buzzwords" in development literature - focusing on an article that discusses the way in which the rhetoric of "participation" is used "to convey good intentions to give the 'power to the poor' over aid affairs, while never in fact ceding any such powers". Richard Stewart has made a similar point about the way in which using "accountability"as a slogan in global governance literature more generally has rendered it of little use analytically. Worth a read, anyway...

The UK and non-refoulement

2009-02-19T10:50:00.007-05:00

Some time ago, I posted a suggestion that, from a certain perspective, the international law norm prohibiting the refoulement of people to countries in which they risk being tortured could be viewed as part of global administrative law. This norm, enshrined in Article 3 of the Convention against Torture, is now also undoubtedly part of customary international law, and quite possibly part of the body of jus cogens. I am even less sure than I was previously of the GAL-relevance of non-refoulement, and i haven't had achance to read the case carefully, so I'll keep this brief; but I wanted to mention it, because it's important: the recent judgment of the House of Lords that upholds an earlier decision that the radical Muslim cleric Abu Qatada can be deported to Jordan, on the basis of diplomatic assurances as to his treatment should he be handed over. The judgment was joined with the cases of two other individuals that the UK was seeking to deport to Algeria, raising many of the same issues.

The first thing that I want to note is that, in strictly legal terms, I cannot see that the judgment represents a departure from or an exception to the universal and non-derogable requirement of non-refoulement. Contrary to the suggestion in some newspapers, (The Guardian, for example), the deportation of Abu-Qatada has not been approved "in spite of fears he may be tortured" - this would clearly be in violation of the UK's obligations under both international and European human rights law (the latter being the explicit basis upon which this judgment was rendered). Rather, the Lords upheld a decision by the Special Immigration Appeals Commission that any fears of torture were in the circumstances of the present case unfounded.

Nonetheless, this judgment has been strongly criticised, both in the press and by international human rights NGOs, and it is easy to see why: it does seem to mark a significant shift in emphasis from both the SIAC's treatment of "diplomatic assurances", and the Law Lords' willingness to protect the rights of detainees more generally. In particular, the House of Lords refused to undertake a full review of the decision of the SIAC, holding that the restriction of appeals to questions of law only prevented them from doing so. Therefore, although all parties that "accepted that neither Algeria, in the case of RB and U, nor Jordan, in the case of Mr Othman, was a country to which the appellants could safely have been returned had the United Kingdom not received assurances from the respective Governments as to the way in which they would be treated" (para. 107), the Lords refused to consider whether the assurances actually did reduce the risk of torture below the "susbstantial" level necessary to activate the non-refoulement prohibition, viewing this as a question of fact on which they had no jurisdiction to rule. Rather, they insisted that "the only ground upon which those conclusions can be attacked on an appeal restricted to questions of law is irrationality" (para. 117).

This is a hugely important finding. The House of Lords has effectively denied itself the capacity to oversee the factual conclusions of the SIAC as to whether assurances effectively remove the substantial risk of torture, and has limited itself to the much narrower - and much harder to establish - issue of whether the SIAC had acted "irrationally" in finding so. To give an example of just how much leeway this gives the lower tribunal, consider the following discussion from the judgment relating to the proposed deportation to Algeria. The SIAC had affirmed that 4 conditions had to be met for assurances to be acceptable (para. 23):

i) the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;

ii) the assurances had to be given in good faith;

iii) there had to be a sound objective basis for believing that the assurances would be fulfilled;

iv) fulfilment of the assurances had to be capable of being verified.

The Lords then recalled that (para. 29)

So far as the fourth condition was concerned, the United Kingdom government had sought to persuade the Algeria Government to agree to monitoring, but had not succeeded. For reasons given in the decision in relation to Y, SIAC concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified. British Embassy officials would be permitted to maintain contact with RB, if not in detention, and prolonged detention would itself be indicative of a breach of the assurances. Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicise the fact. Accordingly SIAC found that the fourth condition was satisfied.

This seems... unsatisfactory; apart from anything else, surely one of the purposes in ongoing monitoring is to enable potential breaches to be identified and prevented early, not simply actual breaches to be acknowledged ex post. Yet, despite these and other potential weaknesses, the self-limiting approach of the House of Lords meant that their review of this aspect of the SIAC's decision was limited to the following brief passages:

I have described earlier in this opinion the consideration given by SIAC to the reliance that could be placed on the Algerian assurances. This had particular regard to the general conditions in Algeria at the time that the assurances were given, the attitude of the Algerian authorities to the observance of human rights, the degree of control exercised by the Algerian authorities over the DRS, the internal security service, and the manner in which the performance of the assurances could be verified. SIAC paid careful regard to all relevant matters and applied to them the proper test of whether they amounted to substantial grounds for believing that RB and U would be at real risk of inhuman treatment if returned to Algeria.

SIAC gave consideration to the reasons why Algeria was not prepared to agree to monitoring and concluded that this was not indicative of bad faith and that there were alternative ways of ascertaining whether there was compliance with the assurances. These conclusions were not irrational. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

For these reasons the irrationality challenge to SIAC’s conclusions does not succeed. I would reject the appeals brought by RB and U.

This gives a pretty clear indication of the limited nature of the approach adopted by the House of Lords in this case: there is, it seems to me, a potentially huge difference between "there is no substantial risk of torture" and "it was not irrational to conclude that there was no substantial risk of torture". It's a long judgment, and there's a lot of important stuff in it that I haven't the time to read at present (including relating to the use of closed sessions in the Abu Qatada decision not only in relation to the threat that he posed to UK national security, but also in evaluating the risk of torture and the effectiveness of assurances - see paras. 76-98). In any event, even if the law remains effectively unchanged, this case does seem to indicate an important shift in emphasis in UK jurisprudence on the issue of assurances and non-refoulement.

An appeal has already been lodged before the European Court of Human Rights, and my own view is that they will block the deportation. Always risky, making predictions - on the upside, however, this one is likely to take at least two years, so even those few who have read this far are unlikely to remember it if I got it wrong...

A little more on GAL and science...

2009-02-19T09:13:00.007-05:00

Just a quick post to highlight an interesting paper just published my Bruce McCullough and Ross McKittrick entitled "Check the Numbers: The Case for Due Diligence in Policy Formation" (hat tip to Steve McIntyre over at Climate Audit). The paper focuses on an issue that I have mentioned once or twice in the past - the transparency of the scientific work upon which major public policy decisions are taken (it is worth noting that one of the authors, McKitrick, was also a co-author with McIntyre on a number of papers critical of the "hockey stick" graph relied upon by the Intergovernmental Panel on Climate Change). Here's the blurb:

Empirical research in academic journals is often cited as the basis for public policy decisions, in part because people think that the journals have checked the accuracy of the research. Yet such work is rarely subjected to independent checks for accuracy during the peer review process, and the data and computational methods are so seldom disclosed that post-publication verification is equally rare. This study argues that researchers and journals have allowed habits of secrecy to persist that severely inhibit independent replication. Non-disclosure of essential research materials may have deleterious scientific consequences, but our concern herein is something different: the possible negative effects on public policy formation. When a piece of academic research takes on a public role, such as becoming the basis for public policy decisions, practices that obstruct independent replication, such as refusal to disclose data, or the concealment of details about computational methods, prevent the proper functioning of the scientific process and can lead to poor public decision making. This study shows that such practices are surprisingly common, and that researchers, users of research, and the public need to consider ways to address the situation. We offer suggestions that journals, funding agencies, and policy makers can implement to improve the transparency of the publication process and enhance the replicability of the research that is published.

The paper discusses a number of cases in which science has formed the basis for important policy decisions and in which, in the authors' view, significant questions have emerged over the full disclosure and transparency of the data and methods used in generating the results. Firstly, and in many ways most strikingly, the authors insist that the pre-publication "peer-review" process, often presented as the arbiter of sound science, is - or should be - only in fact the beginning of the results verification and replication process. They quote the editor of the prestigious journal Science as saying

What we can’t do is ask our peer reviewers to go into the laboratories of the submitting authors and demand their lab notebooks. Were we to do that, we would create a huge administrative cost, and we would in some sense dishonor and rob the entire scientific enterprise of the integrity that 99.9 percent of it has ... it all depends on trust at the end, and the journal has to trust its reviewers; it has to trust the source. It can’t go in and demand the data books.

The most important part begins, then, when articles are published, and other scientists begin to try to replicate the results. It is in order to facilitate this crucial part of the process that, the authors argue, full disclosure of all data, code and methods used is needed to make the replication process as straightforward as possible. Whatever one thinks of the scientific issues raised by the author - and here, as ever, I plead straightforward ignorance - I find it difficult to come up with reasonable counter-arguments against this claim.

From a global administration perspective, there are two points of particular interest: firstly, the authors outline the "hockey stick" controversy, in which the IPCC was a significant player; and secondly, they refer to another case involving climate science relied upon by an international organisation, in a passage worth quoting at some length:

In late 2004, a summary report entitled the Arctic Climate Impact Assessment (ACIA) was released by the Arctic Council, an intergovernmental organization formed to discuss policy issues related to the Arctic region. The council had convened a team of scientists to survey available scientific information related to climate change and the Arctic. Impacts of a Warming Arctic: Highlights (Arctic Council, 2004) was released to considerable international media fanfare, and prompted hearings before a US Senate committee on November 16, 2004 (the full report did not appear until August 2005). Among other things, the Highlights document stated that the Arctic region was warming faster than the rest of the world, that the Arctic was now warmer than at any time since the late 19th century, that sea-ice extent had declined 15 to 20 percent over the past 30 years and that the area of Greenland susceptible to melting had increased by 16 percent in the past 30 years.

Shortly after its publication, critics started noting on web sites that the main summary graph (Arctic Council, 2004, Highlights: 4) showing unprecedented warmth in the Arctic had never appeared in a peer-reviewed journal (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004), and the claims of unprecedented warming were at odds with numerous published Arctic climate histories in the peer-reviewed literature (Michaels, 2004). Neither the data used nor an explanation of the graph’s methodology were made available (Taylor, 2004; Soon, Baliunas, Legates, and Taylor, 2004). When the final report was released eight months later, it explained that they had used only land-based weather stations, even though the region is two-thirds ocean, and had re-defined the boundaries of the Arctic southwards to 60N, thereby including some regions of Siberia with poor quality data and anomalously strong warming trends. Other recently published climatology papers that used land- and ocean-based data had concluded that the Arctic was, on average, cooler than it had been in the late 1930s (Polyakov et al., 2002). But while these studies were cited in the full report, their findings were not mentioned as caveats against the dramatic conclusions of the ACIA summary, nor were their data sets presented graphically.

This example indicates that empirical claims in assessment reports may need to be audited if they present new data or calculations; or to ensure that the findings are based on published, peer-reviewed journal articles (which themselves can be audited) if the mandate of the panel doing the report is confined to citing only published research. It also highlights the importance of timeliness. If a summary document is released to great fanfare, and contradictory information is quietly disclosed eight months later, the later information may not affect the way the issue was framed by the summary.

Of course, it might be argued that even if the presentation of science, or even the science itself, is in specific instances not ideal, this can be overlooked where that science lends support to an overwhelming need to act quickly to avert catastrophe. However plausible this might seem in the realm of climate change (and I leave that an open question), it is open to a very familiar criticism: how can we, in the absence of properly enforced procedural guarantees, ensure that such examples of less-than-desirable method and practice are limited to those that lend their supprot to an overwhelming public policy objective? My suspicion is that this would be well-nigh impossible. Moreover, and more basically, I can't imagine that any scientist would find this type of pragmatic subversion of the scientific method to be an intellectually satisfying solution.

The authors conclude with a number of recommendations designed to increase "due dilligence" (transparency of data, method and code), aimed at journals, researchers, funding bodies, and policy-makers. There seems to me to be no reason that these recommendations could not be framed as requirements where public authorities rely on scientific work in taking important policy decisions, as part of a administrative law of science (indeed, it is worth noting that McIntyre is no stranger to the use of US Freedom of Information Act in order to get access to the data he desires). It may even be that we are beginning to see the emergence of this type of thing globally, as rules are developed on the legitimate use of science by administrative authorities (particularly here by the WTO, and the scientific evidence required to justify the adoption of trade-restrictive measures under either Article XX GATT, or the provisions fo the SPS and TBT agreements). This would be an interesting article, that I hope to have time to write one day...

***DISCLAIMER***
As always, when writing blogs that refer to the Climate Audit site and to other works that might be seen as challenging the broad scientific consensus on climate change, I feel that a short disclaimer might serve to prevent misunderstanding of my position: I have no grasp whatsoever of the science involved in climate change - as discussed on either the Climate Audit or Real Climate sites, for example - and thus rely exclusively upon the weight of scientific authority. Here, it seems clear: that global warning is 1) happening; 2) our fault; and 3) very scary (although it might be worth mentioning in passing that I have never seen McIntyre "deny" any of these points). This is therefore not the place to discuss such issues; and I am not the person to discuss them with.

My interest in the Climate Audit site comes exclusively from the fact that regardless of the science, I find McIntyre's "due diligence" arguments to be compelling, due to a mixture of my interest in global administrative law, which I think could have an important role to play in ensuring that global public policy is based upon sound science; and my increasing amateur interest in what constitutes "good science" in general (which I owe almost entirely to this man).

Gordon Brown to lead the IMF?

2009-02-16T10:03:00.006-05:00

Maybe; then again, maybe not...

On one hand, as Jackey Ashley writes in today's Guardian,

It starts with the 2 April London G20 summit. This will be an important moment, with lots of red carpet, as leaders queue to be photographed with President Obama. But as the world stares at full-blown depression, with countries such as China and Germany under huge pressure to do more to revive the global economy, it's a lot more important than that. What will actually come out of it? Well, there's one near-certainty: agreement about the need for a new global financial regulator, whether based inside or outside the IMF.

I'm told the German chancellor, Angela Merkel, has a favourite candidate to head this new body - Gordon Brown. She is said to be quietly pushing the idea behind the scenes and getting quite a good reaction from other leaders. Obama can be won over, says my source, and even Sarkozy would be pleased to see the man he's been tussling with off the European stage.

While, on the other, as Martin Kettle responds in the same newspaper,

...would Brown really be the right man for the revamped IMF? Even if – and it's a big if – there is a successful G20 that reforms the global financial institutions in the way that the British would like, it does not follow that Brown would be the right choice to run it. For one thing, as Jackie says, he is one of the many authors of the failed financial regime that the new IMF would be replacing. For another, the French and Germans would be very reluctant to lose their existing control of the IMF managing directorship to a British candidate, while for yet another – and for me this is the clincher – Brown's style of working means he is simply not good at running large collegiate organisations.

One more reason to look forward to the next G20 meeting in London in April...

*** UPDATE ***

It's been officially denied. Then again, it's been officially denied (at 4 m 50 s in...)

Presentations from aid evaluation conference online

2009-02-11T12:47:00.003-05:00

Following up on my post below on Prof Easterly's talk, a number of the presentations from the conference, entitled "What Would The Poor Say: Debates In Aid Evaluation", are available here, on Easterly's Aid Watch blog. Besides his own, I found the talks by Lant Pritchett and Ross Levine to be of most potential relevance from a GAL perspective - the former on, inter aliam, the dangers of deriving policy decisions from technocratic research, the latter on the perverse incentive structures that (may) distort the policies of major aid agencies such as the World Bank - and if I have time I may blog on them in a little more detail later. But they are all worth a look.

Easterly on What the Poor Would Say...

2009-02-09T12:04:00.010-05:00

I was lucky enough to be able to attend the conference held last Friday by NYU's Development Research Institute entitled "What Would The Poor Say: Debates In Aid Evaluation". I had one or two grumbles about the format - as so often happens at these things, the way in which the presentations were structured meant that there was relatively little actual "conferring" - just a set of fairly heavily truncated Q&A sessions that were too short to develop into exchanges of real interest. This notwithstanding, I found the event - as a series of extremely interesting lectures - to be very worthwhile; perhaps particularly so from the perspective of those who, like me, were not overly familiar with the issues involved from an economics/social science perspective.

In this post, I wanted to discuss Professor Easterly's talk, "The Big Picture on Aid Accountability", and in particular to frame it within a global administrative law perspective (not a particularly difficult task). In it, he confronted squarely the question posed in the title of the conference, although was at pains to stress at the outset that he was in no position to offer a substantive response to "What the Poor Would Say". Rather, he was interested in how the institutional mechanisms of development aid could be recalibrated in order to ensure that this question was both regularly asked and effectively answered; insisting that the question itself was the "basic question" upon which aid should be judged.

Easterly argued that there were three basic components of any effective mechanism of this sort: transparency, feedback (or "voice") and accountability (see, I wasn't lying when I said that it wouldn't take much work to frame this from a GAL perspective...). The basic evidence for his claim was offered in the form of a series of structural analogues drawn from other (relatively) effective institutional frameworks for regulating and directing human endeavour: the provision of private goods (the market); the provision of public goods (democratic governance); and the production of knowledge (the scientific method and community).

Easterly's fundamental argument was that the success of each of these governance frameworks was dependent upon its being able to furnish an answer to the question of "What would people say"? - which in turn is clearly related to the issue of accountability, which he styled as the most important of the three components outlined above. (It should be noted that Easterly is using a farily broad understanding of "accountability" - many examples of such mechanisms that he cites have been rejected by those who have sought to take a more systematic approach to the concept - see e.g. here for Richard Stewart's approach, and here for Grant and Keohane). he then proceeded to give an outline of how each of the components cashes out in the effective frameworks, and contrasted each of these to the world of development aid.

In private markets, for example, Easterly argued that "transparency" was ensured by the fact that businesses advertise what they are selling, and so customers know what their buying options are. Feedback is ensured, inter alia, by the copious amounts of market research that companies do, by consumer choices themselves, and by the emergence of a decentralised form of review through customer opinion pages on a vast range of websites. Accountability is ensured by the fact businesses go bust if they fail to be sufficiently transparent, or to respond to consumer voice. According to Easterly, however, aid agencies have none of these characteristics: there is very scant information on what services are being provided by whom to whom; feedback is limited as target audiences rarely if ever get to choose with what they will be aided or how they are to be developed, and there are no equivalents of the decentralised "customer satusfaction" reports that we find on the internet; and the big aid agencies are never threatened with extinction.

It is worth pausing at this point to head off one potentially important objection that could be made (and I'm grateful to my colleague at the IILJ, Sarah Dadush, for making it). It is of course true that businesses are rarely if ever as transparent as consumers would want them to be; certainly, it is in their interest to advertise their own products, but it may well be equally so to suppress other relevant information. Very frequently, indeed, product advertisements contain entirely misleading claims, to say nothing of the potential presence of unethical business practices, etc. Moreover, do we really want to transfer the logic of the market to the provision of aid? Two quick points to make in this regard, on my own reading at least: firstly, Easterly was not seeking to suggest that the market was in any sense perfect, but rather that it was relatively effective at delivering private goods for consumption, and the existence of transparency, feedback and accountability mechanisms were vital to that. Secondly, and perhaps more importantly, his point was not to argue that market logics of transparency, feedback and accountability should rule supreme in the global governance of aid; but rather that these constitute basic principles of effectiveness that find expression in structurally analogous but substantively different ways within different governance frameworks. While market logics may well have an important role to play, these will have to be sometimes complemented, sometimes contradicted, by other competing logics. It is also worth noting in this regard that his basic contention - that "the poor" and their wants/needs are the relevant constituency for feedback and accountability - is a judgement that will have to be made and defended prior to discussions about institutional developments.

The point about structural analogues was confirmed by the fact that Easterly made a similar comparative analysis for the other two relatively effective governance frameworks that he discussed - for the provision of public goods, and the production of knowlegde. In terms of the former, he focused on democracy, arguing that transparency was provided by laws such as the US Freedom of Information Act; that feedback comes from many sources, such as elections, polls, an independent media, and opposition politicians; and that accountability is ensured by the prospect that unpopular politicians will be removed from power. Again, he argued that the governance of aid was lacking many of the mechanisms that render democracy an effective provider of public goods: indeed, he went so far as to argue that the "Aid State" was effectively totalitarian in nature, never sharing its operational documents with interested parties, and sticking rigidly to a dogmatic consensus that is extremely resistant to conflict and change (thus lacking "opposition politicians"). I have not the experience to know whether this is an accurate reflection of how these agencies operate, but it's a powerful metaphor - and one that cries out for a GAL perspective.

Lastly, Easterly also argued that structural analogues of these successful transparency, feedback and accountability mechanisms are to be found in the production of knowledge. Transparency is ensured through the "centralised" promulgation of regular textbooks, and through the "decentralised" existence of many independent journals. Feedback is ensured through fostering debate on published works, through the mechanism of peer review, and through the fact that anyone - regardless of qualification - can disprove orthodoxy by following the established (scientific) method. Accountability is largely reputational in form; yet not unimportant for that. Again, Easterly found aid agencies wanting in terms of the basic elements of good governance that enable knowledge to be effectively produced: there are only centralised and very partial databases of statistics in aid; there is a lack of scientific freedom of research within aid agencies, and little if any peer review; and there appear to be no penalties for refusal to provide data or other accoutnability mechanisms (including an interesting story about USAID, which I will blog on shortly).

I should note that I have altered the ordering of Easterly's talk a little here in seeking to frame these issues from within a global administrative law perspective. The GAL-relevance of the first two governance frameworks should be clear: GAL rules are very often enforced to ensure that the market is allowed to operate free from governmental distortions: very many administrative law provisions of the WTO agreements - and the TRIPS agreement in particular - are, indeed, explicitly aimed at this objective. Nor is it news that administrative law can be used to entrench democratic protections - or at least "surrogates" - for those individuals upon whose interests the activities of administrative bodies impact. Indeed, these in some ways map fairly neatly onto the different ("efficiency" and "justice") governance logics that I outlined here (although it is worth noting in this regard that Easterly's take on "democratic" governance was itself here largely framed in terms of its "efficiency" in the provision of public goods. While there may well be something to this, my own view is that reliance on this alone can only provide a distinctly impoverished, and deeply inadequate, account of what democracy brings to the legitimacy table).

As I suggested in an earlier post, however, there may be another logic that is based neither upon markets or morals (to use Benedict Kingsbury's formulation), but rather on the technocratic production of knowledge - a "global administrative law of science". This would seek to regulate not any particular substantive outcome, but would rather ensure the the basic elements of the scientific method - its own transparency, feedback and accountability mechanisms included - are enforceable by law. As science becomes increasingly important to policy decisions, and to global administrative action more generally, it seems reasonable to suggest that it to should be subject to some of the "requirements of publicness" (to steal from Kingsbury again) to which we routinely subject our administrative agencies.

As I noted in a previous post, this is one type of reading that can be made of the - hugely controversial - Wegman Report that was critical of some of the science used in one of the IPCC's reports on climate change; and it is a claim that has been made repeatedly by the - equally controversial - critic of much of the "hockey stick" climate science, Steve McIntyre, over on his Climate Audit blog. Indeed, McIntyre was kind enough to link to my previous post, including some thoughtful reflections of his own on the possibility and desirability of applying GAL to the works of global bodies such as the IPCC. Whatever the truth behind the science here(and, like all good lawyers - if not good scientists - I rely exclusively on the "argument from authority" here, placing me firmly behind the weight of scientific opinion that global warming is both real and terrifying), I'd reckon that it must be difficult for lawyers in general, and administrative lawyers in particular, not to feel sympathetic towards McIntyre's "due diligence" arguments relating to full transparency on data and code used in climate reconstructions. Clearly, however, the role of science in global administration - and hence the potential need for a global administrative law of science - goes far beyond the realm of climate change: it is implicated in a great many WTO controversies, for example (see e.g. Chapter 6.3 of the GAL casebook, for example, or the more recent EC-Hormones decision of the Appellate Body); and lies behind some recent concerns over CERN's activities with the LHC.

My key point here is that, although it exhausts none of them, GAL cuts across all three of the relatively effective governance frameworks identified by Easterly, serving to entrench many of the requirements of transparency, feedback and accountability not merely as governance desiderata but as legal obligation. In a field such as the provision of aid - which, in ideal form at least, provides a public good through the provision of private goods based upon robust knowledge of what works and what doesn't - it is clear that different measures of each is required, calibrated differently to each concrete context in which they are to be applied. Global administrative law thus provides an extremely useful framework and vocabulary for discussing the ways in which the law can be implicated, and can assist, in the good global governance of the provision of aid. One way of capturing this may be to acknowledge a third, "technocratic" governance logic to sit alongside the "efficacy" and "justice" logics that I outlined previously.

Easterly's point can thus, I think, be framed in this way, at a very general level: for any governance activity, first decide upon who the relevant "publics" or "constituencies" are, and then determine and apply the appropriate mixture of different transparency, feedback and accountability mechanisms - drawn from the structural analogues to be found in relatively successful public, private and technocratic governance logics - to ensure the effectiveness of the governance in question. Clearly, this does not provide us with a solution to any concrete governance problem; it may well, however, provide us with the outlines of a framework within which effective solutions can be conceived, developed and implemented. And, as I hope this post has shown, GAL can and should play an absolutely central role in this process.

The World Bank, government procurement and corruption

2009-02-05T11:54:00.004-05:00

An interesting little incident that slipped under the radar last month (thanks to my colleague Yunpeng Fan for bringing it to my attention): the World Bank, as a result of an internal investigation by its Integrity Vice Presidency (INT) (responsible for investigating allegations of fraud and corruption in Bank-financed operations), found evidence of "collusive practices" (price-fixing) by seven firms - including four State-owned Chinese companies - and one individual in a major Bank-financed public roads project in the Philippines. As a result, the World Bank Sanctions Board has debarred those involved from participating in future Bank-supported projects for varying lengths of time. According to the Integrity Vice President Leonard McCarthy,

This is one of our most important and far-reaching cases, and it highlights the effectiveness of the World Bank’s investigative and sanctions process. As the World Bank Group continues to ramp up its anti-corruption work, INT will remain vigilant in investigating allegations and holding wrongdoers accountable.

It is also interesting to note, however, that both the Governments of both China and the Philippines have made allegations of procedural irregularities within the procedures followed by the World Bank (although these, it should be added, seem to be very vague assertions of "lack of evidence", "not responding to the parties involved", and "not allowing key players to participate in the inquiry") - demonstrating an awareness of the Bank not simply as the source of administrative law rules (here relating to public procurement), but also as an administrative body in its own right, whose activities should thus in principle be subject to requirements of due process. For those interested in going further, the Bank's sanctions procedures can be found here.

Both Governments have also, it seems, requested that the details of the Bank's investigation be handed over, in order that they might either challenge it or launch judicial proceedings of their own, where appropriate. At present, I'm uncertain as to whether the Bank has furnished this information - although I can see no real reason why it should refuse... Will update on this more if and when I hear anything.

More on the G20 and the reform of the global financial system

2009-02-04T11:32:00.006-05:00

A quick post to keep those interested in the ongoing development of the G20's pl ans to respond to the global financial crisis, and in particular the GAL-related elements thereof, updated. The Washington Summit of November 15 last year established five different priorities for reform:

- Strengthening transparency and accountability
- Enhancing sound regulation
- Promoting integrity in financial markets
- Reinforcing international cooperation
- Reforming the International Financial Institutions

Although the 1st and the 5th of these are of the obvious relevance from a global administrative law perspective, there will likely be elements of interest in each. From IFIWatchnet, we learn that the G20 has established a set of Working Groups charged with the tasks of evaluating steps that have been taken and making recommendations for future reforms in their respective areas:

As Chair of the G20 in 2009 the UK, working closely with Brazil and Korea 2008 and 2010 Chairs respectively, has established four working groups to advance this work for the next Leaders’ Summit on 2 April in London. Each working group is co-chaired by two senior officials from the G20, one from a developed and one from an emerging market economy. Each G20 country is represented on each working group. Experts from relevant international financial institutions, standard setting bodies, non G20 countries, business and academia have also been invited by co-chairs to input into the work of the groups.

(Interesting to note here the participation of relevant private and civil society actors in the Working Groups).

Working Group 1 is to focus on "Enhancing sound regulation and strengthening transparency", and will, inter alia, "make... recommendations to strengthen international standards in the areas of accounting and disclosure, prudential oversight and risk management" (As an aside, I wonder what the relation of these recommendations to the work of the International Accounting Standards Board (IASB) might be).

Working Group 2 is to deal with "Reinforcing international co-operation and promoting integrity in financial markets", including "the regulation and oversight of international institutions and financial markets", and proposals to "protect the global financial system from illicit activities and non-co-operative jurisdictions" and "strengthen collaboration between international bodies".

Working group 3 will look at the specific issue of "Reforming the IMF", and will "review the appropriateness of the IMF’s lending instruments and the effectiveness of its surveillance function, and will consider the sufficiency of its resources, and its general arrangements and accountability; and will look at the issue of reform of the governance structure so that it more adequately reflect changing economic weights in the world economy".

Lastly, Working Group 4 will perform a very similar function to Working Group 3, but with a broader remit to investigate the activities of "The World Bank and other multilateral development banks (MDBs)" - including their mandates, governances structures and policy instruments.

Plenty of GAL there, then - although mostly, it should be noted, based upon an "efficacy-driven" rather than a "justice-driven" governance logic. The Working Groups are to report to the Finance Ministers and Governors of the Central Banks of G20 States on march 14th, ahead of the next summit in London on April 2 of this year.

New website: Public Contracts in Legal Globalisation

2009-01-29T13:58:00.005-05:00

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

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

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

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

Call for papers: Global and European Administrative Law

2009-01-29T13:35:00.004-05:00

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

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

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

A little more on networks...

2009-01-28T16:00:00.005-05:00

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

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

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

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

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

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

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

Conference on Debates in Aid Evaluation at NYU

2009-01-28T15:26:00.003-05:00

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

UNHCR overstepping its mandate at the World Economic Forum?

2009-01-28T12:54:00.015-05:00

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

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

New blog: Aid Watch

2009-01-28T12:36:00.003-05:00

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

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

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

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

GAL at the World Economic Forum?

2009-01-26T01:14:00.005-05:00

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

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

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

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

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

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

2009-01-23T12:51:00.004-05:00

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

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

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

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

2009-01-22T19:17:00.008-05:00

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

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

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

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

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

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

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

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

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

2009-01-20T13:47:00.019-05:00

Now read on...

When does it start?

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

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

In the Beginning, there was nothing, which exploded.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decision-making processes

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

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

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

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

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

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

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

*** POSTSCRIPT***

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

ARTICLE 16

Disputes of a private nature

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

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

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

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

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

d) disputes arising between the Organization and its officials;

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

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

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

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

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

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

2009-01-15T21:58:00.010-05:00

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

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

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

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

The right to health contains entitlements. These entitlements include:

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

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

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

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

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

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

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

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

Feeds n' emails...

2009-01-13T11:30:00.004-05:00

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

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

http://feeds.feedburner.com/http/globaladminlaw

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