Did the WHO "Cry Wolf" Over Swine Flu?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

That, I think, is quite clearly fighting talk.

... And a conference on Private Military Companies

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...

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

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!

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!