Thursday, December 11, 2008

ICANN, accountability and capture

The folks over at Intellectual Property Watch have a couple of extremely interesting (if not very recent) pieces detailing recent discussions and ongoing controversies regarding participation, accountability mechanisms and the role for - and risk of capture by - governments in the Internet Corporation for Assigned Names and Numbers (ICANN). Key to these seem to be the role of the US Government in overseeing the formally private regulatory body. ICANN itself seems keen to distance itself from this oversight, while many industry actors, on the other hand, see it as essential to providing effective accountability for ICANN decisions, and to staving off the risk of capture by other foreign governments, and thus losing the benefits of genuinely private regulation.

In the meantime, to add to this complex set of tensions, some states and other public actors - such as, for example, the UN's International Telecommunications Union - have been highly critical of the current role afforded to governments other than the US through the ICANN's Government Advisory Committee, claiming that its contribution is merely "cosmetic". Which, of course, for the most part suits both industry and the US Government down to the ground.

Few cases exemplify better the "added value" that the shift to understanding global regulation as global administration can bring; or the complexities and tensions of the putatively emerging "global administrative space". We have a formally private body clearly performing a public governance function; its activities are the site of ongoing struggles over the best and most effective way of allocating participatory rights and accountability mechanisms between a wide range of different public and private actors; and its administrative activity - the regulation of the internet - is both evidently a necessarily global endeavour (which simply cannot be accomplished by individual states alone) and one that combines the logics of national security, market efficiency and morality (privacy, fairness, obscenity, etc.) in almost equal measure.

Much more research is needed on this particular topic: the IPWatch articles are, however, a good place to start, as are the chapters by Lorenzo Casini and Bruno Carotti (2.1, 5.4 and 5.5) in the GAL Casebook.

Wednesday, December 10, 2008

The new EJIL:TALK! blog: GAL gets an early mention

Quick post to flag what promises to be an extremely interesting new blog for things international and legal - the European Journal of International Law's new EJIL:Talk! experiment (hat tip to Opinio Juris). They kick of with a (spirited) discussion between Ernst-Ulrich Petersmann and Rob Howse over Petersmann's latest EJIL article, entitled "Human Rights, International Economic Law and 'Constitutional Justice'". The discussion very much picks up - in both tone and content - from the 2002 discussion of an earlier article by Petersmann, again involving Howse, and also Philip Alston. Both are a fun read...

I just want to pick up on one quick point here: in his latest "rejoinder" to Howse, Petersmann notes:

Like most North American supporters of ‘global administrative law’ based on ‘constitutional nationalism’, Howse remains sceptical of European proposals that multilevel governance for the collective supply of international public goods requires multilevel constitutionalism. Yet, Hobbesian ‘principal-agent theories’ describing diplomats as the real masters of international organizations need to be challenged by ‘cosmopolitan constituencies’ (P. Lamy) and constitutional conceptions of citizens as ‘democratic owners’ of international governance institutions.

This raises the question of whether, and the extent to which, support for global administrative law is based on "constitutional nationalism", by which I take to mean the claim that the discourse of constitutionalism has no place outwith the context of the nation-state. (I am unsure whether Petersmann is claiming here that GAL itself if based on such constitutional nationalism, or only North American support for it - his formulation is a little unclear on this point).

The relation of constitutionalist discourse to global administrative law has been a major area of focus for me in the last couple of years, and a topic on which I hope to have a few things published in the near future (one early version of such a paper can be found here). In this post, however, I just want to challenge the idea that GAL is necessarily - indeed, at all - premised upon a"constitutional nationalism" of the type that Petersmann suggests.

This is an issue that I, along with Eran Shamir-Borer, have sought to address in detail of late (an early draft of our paper can be found here). In that paper, although we do style the administrative law and constitutional approaches to global governance as in many ways competing conceptions, we also stress the important ways in which they can be complementary.

Firstly, we distinguish between two different variants within the constitutionalist discourse:
1) The "extra-national" variant: these are the authors that argue that certain international bodies or regimes (almost always either the European Union or the WTO) now exhibit certain features that entitle us to refer to them as "constitutional; and
2) The "universal" variant: this group of authors (to which Petersmann himself undoubtedly belongs) see not a plurality of heterarchically arranged constitutional sites ("constitutional pluralism", to use Neil Walker's phrase), but that all of these sites are (or are becoming) themselves part of a universal heirarchy within a globally constituted polity.

(Actually, there is a third variant of "global constitutionalist" discourse: the "domestic" variant, in which global rules are seen as providing as source of domestic constitutional law. Although widespread, it's not massively relevant here.)

Next, we argue that any attempt to regulate global governance (as both the administrative and constitutional approaches do) will have to confront 3 main challenges:
1) Institutional diversity: characteristic of global governance has been the explosion of new types of actors within the global legal arena;
2) Fragmentation: these diverse actors and regimes are not - as yet, at least - all contained within one clear heirarchy of authority that is global in scope; and
3) Value pluralism: there appears to be irreducible difference between different conceptions of the "good" within the global legal order, notwithstanding the advent and proclaimed universality of human rights.

We make the following 3 points with regard to these challenges:

1) Constitutional discourse in its "extranational" variant limits itself to a tiny group of organizations and regimes - the EU, the WTO, occasionally the UN and perhaps the law of the sea. One of the main drivers of the global administrative law project is that the institutional diversity of contemporary global governance renders this a hopelessly inadequate discourse for encapsulating the activity of the vast majority of important governance actors. For every EU or WTO to whom a constitutionalist discourse can be plausibly applied, there are hundreds of ISOs, FATFs, Basel Committees, etc., in which the same discourse simply seems entirely inapplicable.

2) "Global" constitutionalism - of the type that Petersmann espouses - contains an appeal to unity that is simply not present within the contemporary global legal order. That order is, instead, fragmented, and shows no sign of becoming heirarchically arranged within a single authoritative structure, despite Petersmann's predicitions in this regard. This is not, of course, to say that such a move will not happen, or is a concpetual impossibility; far from it. But GAL has no need of the type of unity to which global constitutionalism requires; instead, it can work with the fragmented system "as is", rerpesenting each site at which public power is exercised as a battleground for increasing public control and accountability.

The combined effect of these two arguments is, firstly, that global administrative law can - indeed, must - exist alongside the limited constitutional discourses of the EU, WTO and others, in order to help regulate the activities of all of the other bodies that are playing important roles in the exercise of public power beyond the nation-state; and secondly, that GAL will precede global constitutionalism within the global legal order, and, importantly, will continue to exist even if we never move towards a single constitutional order at the global level. If we do move towards such an order, however, it seems clear that, given the depth and complexity of global administration, GAL will continue to be necessary as a complement to any eventual global constitutional law, fulfilling a role much more closely analogous to that of administrative law domestically.

3) The third issue, that of value pluralism, raises in many regards both the most important and the most difficult questions of the three. Almost all global constitutionalists rely - and Petersmann is no different in this regard, even if the content of what he proposes is more radical than others - of the existence of genuinely universal values. This, however, simply seems to be empirically untenable in the contemporary global order. While neo-Kantians such as Petersmann would insist that any disagreement from a fundamental (Western) orthodoxy is ultimately a failure of reason rather than an expression of legitimate and radical pluralism, many if not most internationalists would baulk at such an affirmation, fearing the specter of hegemony, imperialism and domination. Global administrative law, although emphatically not value neutral, tackles this issue in a different way, and one that is better calibrated to respecting legitimate and radical pluralism: through focusing, in large part at least, on a commitment, not to outcome but to voice, to procedural rather than substantive imperatives that seek to ensure that all positions are taken into consideration and none are disregarded without pre-empting the results of administrative processes.

Of course, these types of procedural protections are themselves far from perfect, and can lead in many cases to façade legitimation of actual domination (see here for B.S. Chimni's argument to this effect). This is a consideration of vital importance, and must be kept absolutely central in all efforts to make the extremely hard yet unavoidable move from the abstract potential of GAL to a normatively justifiable pratice. This problem, however, remains preferrable, in my view at least, to simply presuming then imposing a putative global consensus that finds precious little supporters - and a great many detractors - in actual practice.

ISO standardizes pasta cooking times

It has been a bit slow on here of late; apologies for that. To kick things off again, some good news for those dismayed by setback to the transnational standardization process represented by the sad news that the EU was to repeal its laws banning the sale overly-bendy bananas (and some 25 other types of fruit and vegetables inflicted with some aesthetic deformity). To reassure us that the global standardization community remains as productive and worthwhile as ever, the International Organization for Standardization has proudly presented ISO 7304-2:2008:

A new ISO standard offers the ingredient of objectivity to the delicate debate on the cooking of pasta which is so dependent on subjective taste: what is nice and firm for one is undercooked for the other, too this or too that…

Now, ISO 7304-2:2008... describes a test method for laboratories to determine a minimum of cooking time for pasta.

This International Standard specifies a method for assessing, by sensory analysis, the quality of cooked alimentary pasta in the form of long, solid strands (e.g. spaghetti) or short, hollow strands (e.g. macaroni) produced from durum wheat semolina, expressed in terms of the starch release, liveliness and firmness characteristics (i.e. texture) of the pasta. It does not apply to pasta in the form of small strands usually consumed in soups.

Gone are the days, then, of throwing bits of linguine at the wall; sighs of relief all round, I should think...

Shame about the soup, though.

Friday, November 21, 2008

Opinion piece on Africa and the global financial crisis

Just a quick post to flag (with hat tip to Opinio Juris) a short opinion essay by Daniel Bradlow - a law professor at the American University Washington College of Law, and one of the chairs/discussants in our sessions at the GAL IV Seminar in Viterbo in June of this year - on what approach African countries should adopt towards the global financial crisis and the international efforts to resolve it. Professor Bradlow suggests four main issues that should be confronted; and his familiarity with the emerging field of global administrative law comes through clearly in the following:

Enable African countries to engage in the institutional reform process: There's general agreement that the institutions of global financial governance, including the IMF, World Bank, and the Financial Stability Forum, need to be reformed. However, less attention is being paid to making the reform process itself transparent and participatory. Given the G20's central role in this process, it needs decision-making procedures that are responsive to the concerns of non-G20 stakeholders in its decisions. Thus, Africa should advocate for the creation of formal channels through which they can submit position papers and voice their concerns to the participants in the G20. They should also call for the G20 to establish a "notice and comment" period prior to all actions and decisions that are likely to have a substantial impact on the poor. This will ensure the views of all interested stakeholders on the proposed action or decision are considered in the G20 decision-making process. In addition, Africa should create regional institutions that focus more specifically on African concerns, and can interact with global institutions and other regional institutions to promote African interests. The African Union's efforts to create an African Monetary Fund and an African Investment Bank are noteworthy in this regard.

The entire piece can be found here, and contains a number of interesting insights from the financing development perspective, amongst other things; it's well worth a read.

Monday, November 17, 2008

The G-20 statement from the Washington Summit

As expected, not much in the way of significant progress was made at last weekend's meeting of the G-20 Head's of State in Washington DC. At least, none that can be discerned from the joint declaration issued at the end of the summit. Again, however, it is worth stressing that GAL mechanisms do play a prominent role in the rhetoric; increasingly, it seems accurate to state that one of the key questions in reforming the institutions of global governance is over which administrative law rules and principles should be applied in each context, not whether administrative law constraints are applicable at all. This can be taken as evidence of the emergence of a generalised "culture" of administrative law within global regulatory governance - which, as I have suggested in some detail elsewhere, should be viewed as one of the crucial elements of the "emergence" of GAL. Here are the key excerpts from the summit declaration:

We commit to implementing policies consistent with the following common principles for reform.

- Strengthening Transparency and Accountability: We will strengthen financial market transparency, including by enhancing required disclosure on complex financial products and ensuring complete and accurate disclosure by firms of their financial conditions. Incentives should be aligned to avoid excessive risk-taking.

- Enhancing Sound Regulation: We pledge to strengthen our regulatory regimes, prudential oversight, and risk management, and ensure that all financial markets, products and participants are regulated or subject to oversight, as appropriate to their circumstances. We will exercise strong oversight over credit rating agencies, consistent with the agreed and strengthened international code of conduct. We will also make regulatory regimes more effective over the economic cycle, while ensuring that regulation is efficient, does not stifle innovation, and encourages expanded trade in financial products and services. We commit to transparent assessments of our national regulatory systems.

- Promoting Integrity in Financial Markets: We commit to protect the integrity of the world's financial markets by bolstering investor and consumer protection, avoiding conflicts of interest, preventing illegal market manipulation, fraudulent activities and abuse, and protecting against illicit finance risks arising from non-cooperative jurisdictions. We will also promote information sharing, including with respect to jurisdictions that have yet to commit to international standards with respect to bank secrecy and transparency.

- Reinforcing International Cooperation: We call upon our national and regional regulators to formulate their regulations and other measures in a consistent manner. Regulators should enhance their coordination and cooperation across all segments of financial markets, including with respect to cross-border capital flows. Regulators and other relevant authorities as a matter of priority should strengthen cooperation on crisis prevention, management, and resolution.

- Reforming International Financial Institutions: We are committed to advancing the reform of the Bretton Woods Institutions so that they can more adequately reflect changing economic weights in the world economy in order to increase their legitimacy and effectiveness. In this respect, emerging and developing economies, including the poorest countries, should have greater voice and representation. The Financial Stability Forum (FSF) must expand urgently to a broader membership of emerging economies, and other major standard setting bodies should promptly review their membership. The IMF, in collaboration with the expanded FSF and other bodies, should work to better identify vulnerabilities, anticipate potential stresses, and act swiftly to play a key role in crisis response.

Both more global administration, then, and more global administrative law. Each paragraph here contains clear evidence of the emerging culture of administrative-law-as-regulatory-common-sense that I have referred to previously: commitments to strengthen accountability, oversight, information-sharing and - perhaps most strikingly, as it is the only point at which the rhetoric seems to go beyond the technocratic governance logic that otherwise is clearly dominant - the participation of even the poorest countries in formulating international standards, are all clear indicators of this shift. Talk, however, although clearly important, remains relatively cheap; and action is unlikely to be particularly rapidly forthcoming. Deadlines for taking initial actions have been set for the end of March 2009, with the likelihood of a further meeting just afterwards. For the next six months at least, then, it seems unlikely in the extreme that a radically reformed global governance structure will influence the manner in which the financial crisis plays out.

Global administrative law and the WTO: The Appellate Body decision in the EC-Hormones dispute

The recent(ish) decision by the Appellate Body of the WTO, the latest installment in the EC-Hormones saga (United States — Continued Suspension of Obligations in the EC — Hormones Dispute) contains much of direct global administrative law significance. As Gregory Schaffer, a commentator who has already published within the GAL project, the decision has a real "such issues as standard of review, burden of proof and due process". I will post on this in more detail later in the week; in the meantime, Schaffer's excellent analysis of the issues involved from a GAL-perspective can be found here, and the decision itself can be found here.

Friday, November 14, 2008

GAL and the "New Bretton Woods": Unrealistic expectations and conflicting governance logics

With the heads of the "G-20" States meeting in Washington DC tomorrow to discuss a global response to the current financial crisis, calls for treating these talks as a new "Bretton Woods" conference, in which the institutional framework of global financial governance would be radically restructured, have grown. As I posted previously, two things are striking about the current debates: firstly, that there appears to be a significant degree of consensus that increased global administration is required to deal with the crisis; and secondly, that almost all of the reforming voices, be they governmental or from civil society, explicitly endorse at least some form of administrative-law type regulation of the reformed administration. It is worth, however, making a couple of more cautionary points in this regard, relating in particular to the unrealistic expectations of major progress being made in Washington over the weekend; and the second, mroe conceptual, relating to the importance of differentiating the demand for global administrative law in function of the governance logic that lies behind it.

Unrealistic expectations
The folks over at Opinio Juris have a couple of posts cautioning that, whatever the desires of certain - in particular European - leaders, it is extremely unlikely that any radically or even major restructuring of the current institutional setup for governing international finance will be agreed upon this weekend. The Washington Post has more detail on precisely why this might be:

Different leaders bring to the meeting different perspectives and expectations.

"That's the dangerous part in trying to achieve a common agenda. They'll try to push their own perceptions of what a global architecture should look like and who should be the dominant players," said Charles Freeman, a former Bush administration trade official now at the Center for Strategic and International Studies.

"I'm not sure that even an Obama team wants to see the United States' style and method of capitalism and financial markets converted. We value our flexibility here, and I don't think we're willing to capitulate to as much regulation as the Europeans are suggesting, particularly the French."

Sarkozy and other European leaders are proposing an early warning system to watch for imbalances in financial markets. They also want an expanded role for the International Monetary Fund as the world's financial watchdog, improved supervision of financial players and action to close loopholes that let some institutions avoid regulation.

"We need monetary and fiscal policy coordination across the world," said British Prime Minister Gordon Brown in outlining his own broad proposals for the summit to address. Among other suggestions, he wants China to use its nearly $2 trillion in reserves to help top up an IMF emergency loan program.

But China indicated on Tuesday that its focus is on its own economy. Beijing unveiled what amounted to a $586 billion two-year economic stimulus package that includes more spending on construction, tax cuts and social programs in China - but no mention of efforts abroad to lift other economies out of the ditch.

Russia, meanwhile, doesn't want to expand the IMF's powers as European leaders propose. Instead, Moscow wants the IMF's role reduced to make way for entirely new international financial institutions.

Amid high-flying but dueling rhetoric, prospects for major breakthroughs at the summit seem scant.

This is before we even get to the desires of those not invited to Washington this weekend - which include, it should be recalled, the vast majority of the world's States. Moreover, as the IFIWatchnet and Bretton Woods Project websites amply demonstrate, global civil society actors are taking more than a passing interest in the outcomes of any talks. For example, in parallel to the G8(+) moves to deal with the problem, Miguel D'Escoto, the President of the UN General Assembly, has established a task force to review the global financial system, arguing that any efforts to deal with the crisis should be "inclusive, not exclusive", and noting further that "The place to discuss is neither the G8, nor the G20, nor the G25 or the G63. It is the G192, which is the General Assembly of the United Nations".

Given the vast array of different views, even amongst powerful actors, as to what the correct course of action should be, not to mention the Presidential situation in the most powerful actor of all, it is not in the least surprising that prospects of any lasting progress at all in Washington seem slim. At present, it would appear that we have universal consensus on only the major premise of what the classic British comedy series Yes Minister memorably referred to as the "politician's fallacy": "some thing must be done; this is something, ergo this must be done". It seems that it may will take some time and much negotiation before a sufficient amount of agreement exists on the minor premise for any actual action to be taken...

Conflicting governance logics
These, then, are the practical reasons why we should not expect a huge amount of GAL-signifcance to emerge from this weekend's summit. As I have suggested previously, however, one of the most striking features of the buildup has been the near-ubiquity of global administrative law-type rules and principles in the various reform proposals that have been put forward - further evidence, perhaps, of the emergence of GAL culture or sensibility as part of an increasing regulatory common sense. In the remainder of this post, however, I want to begin the necessary task of nuancing this claim a little, as it seems abundantly clear that, although there may be increasing convergence on a few key slogans (Accountability! Transparency! Participation!), it is equally clear that these do not mean the same thing to all of those rallying around. Rather, their meaning - and, crucially, the ways in which these abstract principles will "cash out" into concrete rules and mechanisms - will varying according to the dominant governance logic driving the claim.

For the sake of argument, I will identify two such broad logics here (there may well be good grounds for disaggregating these further, but they will serve to illustrate my point): a technocratic efficacy logic (which aims at simply securing the most effective way of dealing with a problem) and a justice logic (which posits that certain procedures or mechanisms - foten rights-based - should be observed, regardless of their effect on governance outcomes, for reasons of fairness, etc.). Consider, firstly, the following excerpt from the common position of the EU States for tomorrow's summit:

The new international financial system must be based on principles of accountability and transparency.
- Transparency of financial transactions must be ensured by means of a more comprehensive information system, which no longer omits vast swathes of financial activity from auditable, certifiable accounts.
- Arrangements conducive to excessive risk-taking must be overhauled, particularly debt securitisation procedures and pay policy.
- Both prudential and accounting standards applicable to financial institutions will have to be revised to ensure that they do not contribute to creating speculative bubbles in periods of growth and make the crisis worse at times of economic downturn.
- Standards bodies, in particular in the area of accountancy, will have to be reformed to allow a genuine dialogue with all the parties concerned, in particular prudential authorities.

And compare it to, for example, the following common proposal launched by IFI-watching and debt activist NGOs:

The statement supports the fundamental and far-reaching transformation of the international financial and economic system and a major international conference convened by the UN to review the international financial and monetary architecture, its institutions and its governance, but only if the meeting follows a process that:

- is inclusive and participatory of all governments of the world;
- includes representatives from civil society, citizen's groups, social movements and other stakeholders;
- has a clear timeline and process for regional consultations, particularly with those most affected by the crisis;
- is comprehensive in scope, tackling the full array of issues and institutions;
- is transparent, with proposals and draft outcome documents made publicly available and discussed well in advance of the meeting.

The civil society statement further lists among its goals for the architecture of the new system

- To create a new set of principles in which finance should be aimed at, and linked to, strengthening national and local real economies to meet the requirement of sustainable and equitable development.
- To move away from the market fundamentalism driving the recent past.
- To curb the power of the World Bank, the IMF and the WTO, and to enhance the accountability of global, regional and national economic governance institutions.
- A call for governments to take immediate action to develop a new international regulatory architecture with democratic checks and balances that is aimed at promoting the interests of workers, small-hold farmers, consumers, and the environment and preventing future financial crises, in which the United Nations should play a central role in its development.

Same words (accountability, transparency); really quite different meanings when we dig a little deeper. On the one hand, we have the apparent idea that all we need is "effective" technocratic regulation, and the powerful states more committed to holding financial institutions to account in terms of these standards. On the other, a whole host of substantive concerns - about fairness, sustainability, equity, inclusion, and, indeed, a direct challenge to the technocratic orthodoxy - are presented as absolutely central. Of course, these different logics cash out in various different answers to the recurring "to whom, for what?" questions that invariably (should) accompany discussions of accountability; however, they are by no means exhausted by this. Indeed, it seems arguable that almost all administrative law mechanisms will have qualitative differences in function of the governance logic that was dominant in their establishment. In order to illustrate this, I'll take a brief excursion into the transparency/participation mechanism - very prominent within US administrative law - of the "notice and comment" procedure.

A brief(ish) excursion: competing logics in notice and comment
At the beginning of The Hitchhiker’s Guide to the Galaxy, a group of aliens from the Galactic Hyperspace Planning Council come to Earth, and announce that, in order to encourage the development of the outlying regions of the galaxy, the planet will be destroyed in two minutes’ time to make way for a new hyperspatial express route through the solar system. When the howls of complaint begin from the understandably aghast earthlings, the aliens reply:

There's no point acting all surprised about it. All the planning charts and demolition orders have been on display in your local planning department in Alpha Centauri for fifty of your earth years, so you've had plenty of time to lodge any formal complaint and it's far too late to start making a fuss about it now.

The serious point to take from this vignette is, of course, that, where major development projects involve significant implications for both human rights and substantive justice, the bare elements of a notice-and-comment procedure may simply not be sufficient. Something more is required.

In many ways, the Aarhus Convention, with its explicitly provides us with an illustration of what a human rights driven administrative procedure might look like in such a case. Consider, for example, Article 5(1)(c), which deals with the collection and dissemination of environmental information. It states that

In the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected.

Article 5(8) provides that

Each Party shall develop mechanisms with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices.

Lastly, Article 7(2), which deals with public participation in decisions on specific activities, provides that

The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure…

These provisions give us some useful insights into what a notice-and-comment procedure intended to further or respect human rights might resemble. Crucially, the obligation to provide notice is framed as a positive obligation to disseminate, rather than merely publish (a proposition further bolstered by the requirement in Article 7(2) that the public be informed in an effective manner); moreover, Article 5(8) suggests that not only should steps be taken to ensure that potentially affected members of the public receive such information, but also that it is imparted to them in terms that they can understand. Given the overwhelmingly technical nature of much global regulatory governance, it is difficult to overstate the importance of this last point; without it, even stringent positive dissemination obligations are often likely to prove utterly ineffective.

By way of comparison, consider the notice-and-comment procedure initiated by the Basel Banking Committee in its preparation of the Basel II regulations. In order to take advantage of this procedure, concerned members of the public simply had to go to the Committee’s website – which is, I suspect, for the average citizen a fairly exact functional equivalent of the planning department in Alpha Centauri – and read, digest and reflect on a set of documents totaling a “mind-numbing” five hundred and forty-one pages of highly technical and complex banking and financial regulations.

It seems fairly clear, given the foregoing, that it is not a justice logic that has driven the establishment of notice-and-comment procedures within the Basel framework; rather, it is that of technocratic efficacy – designed, in particular, to head of increasing dissatisfaction with the main targets of the regulation (banks and banking regulators) with the previous arrangements under the 1988 accord. Of course, whether or not the Basel regulatory processes actually requires a human rights-driven administrative law framework is debatable; many feel that this is a prime example of a field in which technocratic processes should be allowed full reign, although some authors have suggested that more effort to engage with the general public and developing countries could improve the process (and, of course, whether the establishment of this notice-and-comment procedure did in fact lead to a gain in terms of the technocratic efficacy of banking regulations seems, given the current situation, at best an open question).

The important lesson to draw from this context, however, is how the meanings of transparency and participation differ depending upon the basic normative logic that is driving them, and how this change is embodied in the obligation to give “notice” intended to embody them. It is also worth noting that, were steps to be taken to introduce a human rights element by imposing a positive obligation to disseminate the relevant information in a generally digestible form, this would almost inevitably involve a loss in terms of technocratic efficacy – the very base upon which the administrative law mechanism was founded in the first place. Thus, not only do the different logics lead to different administrative law mechanisms, the they are also - often - mutually incommensurable.

The point is not to suggest that one logic is necessarily "better" than another in all contexts; simply to emphasise that, even if I am correct in my claim that we are witnessing the emergence of a culture of administrative law within global governance as part of a regulatory common sense, this common sense itself - the field of GAL - must be the subject of a whole set of different and complex distinctions and classifications. Not all of those currently rallying around the slogans of accountability and transparency in the reform of the global financial infrastructure are on the same side; often, indeed, it is quite the opposite.

Not much hope, then, despite the noise, for significant GAL-related developments at this conference, although "something must be done" at some point, and one suspects the eventual "something" will have some elements of (likely technocratic efficacy-driven) GAL incorporated within it. Of course, by this time tomorrow, I might have been proved wrong...

Tuesday, November 11, 2008

Obama on international law: Anything for GAL?

From Opinio Juris, we have this link to President-elect Obama's answers to a set of questions on his attitudes towards public international law, posed as part of an ASIL survey during the primary campaign. There's a lot of interesting stuff, ranging from the role of international law in US foreign policy, through trade and climate change to the law relating to the use of force and pre-emption. As might be expected given the timing of the survey, there is nothing particularly surprising in any of the responses (although there is the tantalising inclusion of a very cautious "maybe" to becoming a party to the International Criminal Court); from a GAL perspective, perhaps the only really noteworthy thing is the apparent willingness to leave behind the exceptionalism of the Bush years and re-engage with multilateral and global governance regimes. Here's a taste:

What priorities or goals would you establish for the development of existing or new international legal regimes?

The next president will have to prioritize restoring our traditions of adherence to international legal regimes and norms. When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again...

What would be your administration's international trade policy?

I would ensure that trade agreements include strong and enforceable labor and environmental standards. Companies operating overseas must not gain a competitive advantage by exploiting workers or the environment. But merely adding words to the core of our trade agreements is not enough. We must enforce our agreements through the World Trade Organization and other existing mechanisms..

What would be your strategy for shoring up the Nuclear Non-Proliferation regime and regulation of other weapons of mass destruction?

[amongst a number of other points, quoting from a Bill that he introduced...] it will be U.S. policy "(1) to strongly support the objectives of the Nuclear Non-Proliferation Treaty; (2) to strongly support all appropriate measures to strengthen the Treaty and to attain its objectives; and (3) to pursue a comprehensive and balanced approach to strengthen the global nuclear nonproliferation system in advance of and during the 2010 Nuclear Non-Proliferation Treaty Review Conference to realize a more robust and effective global nuclear nonproliferation system for the 21st century".

What policies would you have toward global climate change regulation?

As president, I will enact a cap on our country's greenhouses gases with a goal of an 80 percent reduction by 2050 - the level scientists warn us we must get to in order to limit the most damaging impacts of climate change. Getting our own house in order is the vital first step in assuring we can get the rest of the world's major polluters - like China, which just passed us as the world's largest emitter - to agree to binding caps.

Plenty of global administration then; for the global administrative law, we'll have to wait and see...

New website: IFIWatchnet

... Well, perhaps not exactly new, but the website IFIWatchnet is certainly of great interest from a GAL perspective; never more so than now, of course, when the financial crisis seems to have generated significant momentum for major change within the major international financial institutions. Here's what they have to say about themselves:

IFIwatchnet is a groundbreaking initiative in international NGO networking, currently in its sixth year of operation. It connects organisations worldwide which are monitoring international financial institutions (IFIs) such as the World Bank, the IMF, and regional development banks. Formed in response to a call by civil society groups to maximise the effectiveness of their communications and networking efforts, it is rapidly developing into a key tool for ever increasing degrees of collaboration between IFIwatching groups at national, regional and international levels. With nearly 60 organisations from 35 different countries in every region of the world, it has huge potential to increase the ability of civil society to make global governance institutions accountable to the people they serve.

Once again, this website demonstrates the extent to which the application of an administrative law sensibility to the institutions of global governance is rapidly coming to form part of the "common sense" of global civil society. I'll be blogging on these - potentially hugely significant - developments from a GAL perspective later in the week; in the meantime, have a poke around the IFIwatchnet site - there's a lot of great stuff on there...

Monday, November 10, 2008

Max Planck Institute project on International Institutions published

The Max Planck Institute for Comparative Public Law and International Law has just published the results of a major research project on The Exercise of Public Authority by International Institutions in the excellent, free online resource, the German Law Journal (full text of all articles available here). A table of contents is available here. Here's a brief overview:

Two articles set out the general approach adopted within the Project, which aims at a combination of global administrative law, constitutionalist discourse and international institutional law. The fifteen thematic studies cover a broad range of international governance mechanisms, including hard and soft forms of regulation, some familiar and others less so Seven cross-cutting analyses take stock of the developments and aim at advancing international legal doctrine. These papers will also be published as a book, together with additional papers and comments by international scholars.

I'll be reading these articles with great interest, and highly recommend that anyone interested in the field of global administrative law do the same. I will post some reflections here - particularly from a GAL perspective - later this week. However, it is readily evident from the outset that the fact that this Project has been brought to such a successful conclusion - both in the German Law Journal special issue, and the forthcoming book - is a major achievement, both for the scholars involved at the MPI and elsewhere, and in terms of the ongoing - and rapid - development of global administrative law more generally. Congratulations to all involved!

Wednesday, October 29, 2008

A new Bretton Woods?

As a quick p.s. to my last post, I wanted to flag a post by Julian Ku over at Opinio Juris in which he suggests that we should not expect - as some leaders such as Brown and Sarkozy are suggesting - that the G-2) meeting in Washington on November 15th will lead to a complete restructuring of the world financial system - to a "new Bretton Woods". His view is that the IMF and the WTO have fared rather badly since their inception; that the successes of the WTO cannot be attributed to Bretton Woods; and that, in any event, although "no doubt global cooperation is needed..., new international institutions are a highly doubtful mechanism for such cooperation".

Unfortunately, Ku does not consider the - eminently more likely - possibility of a fairly radical reform of existing institutions, which seems to be more along the lines of what Brown at least is proposing. The Telegraph notes that

It is understood that the Prime Minister wishes to see the IMF reformed to become a "global central bank" closely monitoring the international economy and financial system. There may also be global rules to prevent conflicts of interest and to boost transparency in the financial system.

Just a case of waiting-and-seeing for the time being, then; although it is worth recalling that Brown has received some fairly strong plaudits - notably in the US - for his handling of the financial crisis thus far...

How do we solve the global financial crisis?

With more global administration, according to the leaders of European and Asian States.

The International Monetary Fund (IMF) in particular is at the forefront of these issues, with loan agreements already in place for Iceland and Hungary, and with others requested by States such as Turkey, South Africa and Brazil (according to The Guardian at least; although see here for the suggestion that Brazil has been wrongly included in that group). In a sign of the shifting contours of global economic power, China and Russia have been approached as potential donors to these loan funds.

The central question, however, remains: will we see, in conjunction with this increased scope and reach of global administration, a comparable increase in the - until now sadly lacking - accountability measures? These seem particularly important given the fact that the IMF is sticking to its guns regarding loan conditionality - a fact that some have suggested is dissuading other States in trouble from seeking help there. In Iceland, the consequence of accepting IMF assistance has been a 6% interest rate hike, to 18%; in Hungary, it has been a commitment to introduce austerity measures, and to significantly curtail public spending.

The key thing to realise here is that this is not merely technocratic governance - apolitical decision making based upon the uncontested consensus among experts - but rather highly contested political choices that are being forced upon those States that accept these loans (it has not escaped The Guardian's attention, for example, that the IMF is demanding cuts in public spending while the US and the UK are proposing, at a domestic level, to take precisely the opposite path and attempt to spend their way out of recession). Of course, even ostensibly technocratic governance can fail (I wonder, for example, if the Basel Committee might be tempted to revisit its capital adequacy requirements in the wake of recent events in the world of banking...), raising questions about the accountability for expert error, and, indeed, giving the lie to the suggestion that any governance is ever purely "technocratic". However, when such overtly political questions are in play, the issues of accountability, participation and legitimacy more generally are brought even more dramatically to the fore.

The problem is that the IMF does not seem to have much in the way of administrative law type mechanisms ensuring participation or accountability to anyone other than the dominant (western) States among its membership. The Global Governance Watch website provides one fairly technical example of this, in which the IMF and the World bank have failed to incoporate benchmarks set within the context fo the Extractive Industries Transparency Initiative, which provide global standards for corporations and governments to disclose fully what has been paid and received for the right to extract natural resources. More generally, Aaron Shaw has noted that

The U.S. and Europe still retain a ridiculous share of the voting power within the IMF, World Bank, and the WTO, virtually guaranteeing that they will strong arm through whatever solutions they deem fit. While Ambassadors, Trade Representatives, and their ilk may talk a good game about promoting equality through increased multilateral liberalization, the bottom line is that truly equitable trade will not come about without a substantial sacrifice by the traditional “Great Powers” of the West. The recent trend of the U.S. and E.U. pursuing absurd schemes to evade accountability and transparency by undermining global forums also belies any rhetoric of good will.

It is encouraging to see, then, that with the call for increased global administration, we are also witnessing from many different sources calls for global administrative laws to regulate this. Whether or not these will be sucessful depends in large part on the willingness of major western States to accept some measure of control over their influence and activities within global financial institutions. If they do, it will represent another hugely significant step forward in the emergence of global administrative law; in any event, however, the fact that the debate alone is so prominent is testament to the extent to which the logic of administrative law is being increasingly applied to the institutions of global governance. Further evidence, I suggest, that we are moving towards an measure of GAL as part of a global regulatory "common sense".

Tuesday, October 28, 2008

Viterbo V GAL Seminar: call for papers released

The fifth installment of the extremely successful annual Global Administrative Law Seminars in Viterbo, Italy will held from 12-13 June 2009, and will discuss the issue of Legality Review in the Global Administrative Space. It will be hosted by Professors Stefano Battini, Giulio Vesperini and Edoardo Chiti (IRPA), together with an organizational team led by Martina Conticelli, at the University La Tuscia, Viterbo. A more detailed call for papers and provisional programme have just been released:

In the last fifteen years, the number of mechanisms and proceedings for review of the legality of decisions and norms adopted by global administrative bodies has grown rapidly. Review is exercised by international courts and arbitral tribunals and also by domestic courts. Review may also be exercised by reviewing entities that are a part of the global body making the decision reviewed. Further, other global administrative bodies or domestic administrative authorities may engage in legality review in the course of deciding whether to follow a decision or norm adopted by a global administrative body. Review can extend to both the substantive and procedural elements.

What is the current state of development of such reviewing practices and norms? Do such mechanisms and proceedings result in a coherent and coordinated system of review of global administrations’ action? Or do they generate a fragmented and diverse patchwork, composed of different approaches and standards? To what extent do review procedures depart from the traditional international modes of dispute resolution, basically centred on negotiation? And in what way does their gradual emergence of various forms of review affect the development of global administrative law?

The 5th Viterbo Gal Conference aims at discussing research and studies which, though focussing on specific issues, reviewing bodies or sectors, contribute to academic reflection on the general subject of review of global administrative decisions and the development of global administrative law.

Papers should deal with questions such as, for example, the following. What bodies exercise review? Who has access to such review? How are review mechanisms and proceedings shaped? Which global administrative decisions and measures can be held amenable to review? On which grounds? And what are the effects of the review decision? What remedies and incentives do various reviewing bodies provide? What is the relationship between non judicial and judicial review mechanisms and proceedings? And how do they interact with the review mechanisms and proceedings available at the domestic level?

These events bring together some of the most prominent administrative law scholars in Italy (led by Professor, and Constitutional Court Judge, Sabino Cassese), and a number of others from throughout Europe and the US. I have also always enjoyed the particular format that discussions take, in which papers are presented not by their authors but rather by one discussant per panel, and the authors then have some five minutes to respond. This allows for plenty of time for open discussion, which is, after all, the main benefit of conferences in the first place. Perhaps most important, however, is the focus given to encouraging the contributions of young and upcoming scholars to the emerging field of global administrative law. All of these elements and others combine to make these events, without fail, extremely worthwhile experiences.

Monday, October 20, 2008

IILJ's Global Administrative Law website available in Chinese!

A recent addition to the ongoing attempts to bring new, and in particular developing country, perspectives to the Global Administrative Law project, the project's webpage is now, thanks to the hard work of my colleague here at the IILJ Yunpeng Fan, available in Chinese.

Incidentally, for all those who have been wondering how "global administrative law blog" is translated into Chinese, wonder no more:


Spread the word!

Tuesday, October 14, 2008

The NYU Kadi panel discussion in full

What follows is the full and attributed account of the recent panel discussion at NYU on the Kadi judgment, held in the framework of the IILJ’s Hauser Colloquium on Globalization and Legal Theory, 17th September 2008. Involved in the discussions were the following professors and visiting faculty at NYU: Benedict Kingsbury (moderator), Richard Stewart, Thomas Franck, Eric Posner, Mattias Kumm, Robert Keohane, Robert Howse, Sujit Choudhry, David Dyzenhaus and Eyal Benvenisti. There is also an abridged, unattributed version available here, with some additional commentary from myself. For a GAL-related account of the judgment itself, see here; for some comment on the Advocate General's opinion, written prior to the judgment itself, see here and here. For an account of developments in the months after the judgment was handed down, see here.

Thomas Franck opened discussions with the observation that the Kadi judgment represented what he referred to as the “Texasization” of the European Union in its relations to the international law. This was in reference to the judgment of the US Supreme Court in Medellin v. Texas, in which it held that international treaty commitments entered into by the US Government (in this case, the Vienna Convention on Consular Relations) could not override the applicable criminal law standards of the State of Texas unless Congress had specifically legislated to that effect. Franck suggested that, in effectively granting national constitutional law precedence over international obligations, the ECJ had effectively mirrored the decision of the US Supreme Court in this regard.

He noted, however, that the ECJ in Kadi had created for itself a considerable amount of room for maneuver in striking down the Regulation implementing the Security Council’s Resolution. Firstly, in terms of timing: rather than annulling the Regulation with immediate effect, the Court allowed it to continue in effect for a brief period – not exceeding three months from the date of the judgment – in order to allow the Council to remedy the infringements of fundamental rights that the Court had found. Secondly, Franck noted that the Court explicitly mooted the possibility that any mechanisms created by the Security Council in order to increase the rights protection of those listed by its Sanctions Committee could in future result in it adopting a more deferential attitude towards Security Council Resolutions.

Franck stressed the importance of protecting the Security Council’s role in combating international terrorism, and the need for a coherent and universally binding approach to the issue of freezing the funds of those suspected of financing terrorism. He noted also the need for secrecy in such a process: funds can be moved or hidden with relative ease should advanced warning be given of any plans to freeze them; and the standard security concerns over making public evidence and sources also apply in this context. It is necessary, then, that a balance be struck between these considerations and the protection of individual rights; a balance that, in Franck’s view, the Security Council has not managed to achieve satisfactorily to date.

Franck concluded his comments with a proposal for improving the Security Council procedures, noting that it was being seriously considered by US officials. His proposal focuses on the idea of establishing “probable cause” for freezing funds, rather than “proof” that they will be used to finance terrorism, stressing in doing so that, firstly, the measures taken by the Security Council are temporary, not permanent; and secondly, that they involve merely a freezing of funds and not an expropriation, so that title to the property stays with the suspected individual. Franck suggested that the country seeking the listing of an individual or organization should give the name of perhaps 6 individuals, prominent legal scholars who do not work for the government in question and have not done so for a significant period of time, who would be cleared to see all of the evidence against the suspected individual, and could then give an opinion to the Sanctions Committee as to whether probable cause existed.

Although acknowledging that this, even if instituted, may not “pass muster” in a subsequent review by the ECJ, Franck felt that this kind of independent review might encourage the Court to be more deferential to the obligations imposed on Members by Security Council regulations in this field. In this regard, Franck noted that ordinarily, where one legitimate system has established the existence of probable cause, others will normally recognize that judgment without the need for further investigation – as happens as a matter of course in, for example, extradition proceedings. In his view, it would not be appropriate to establish another standing international court at the UN level to deal with this issue: there are too many of these already; this issue would not generate the workload necessary to justify a standing body; and in any event, it would be preferable to have different investigators used in each case, not a single group of judges.

Eric Posner began his comments by drawing attention to para. 285 of the judgment, according to which “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty”.

This, Posner suggested, was an extremely strong statement on behalf of the ECJ, and not one that it was compelled to take. In effect, the Court held that the constitutional principles of the European legal order will take precedence not only over international law, but over the UN Charter itself. As a result, Posner argued that what we have witnessed with the Kadi judgment is further evidence of the maturing of the European State.

Historically, States have been created through war and violence. Even if neither is present in this case, it might be observed that the birth of states nonetheless always violates international law. This, Posner suggested, could perhaps be explained as a matter of political psychology: that the new State feels the need to reassure its own people that they are its first priority, and that their values will be defended in the face of conflicts with any other legal orders, including the international one.

Posner suggested 4 different implications that the Kadi decision may have:

1) There was a real risk that it would weaken international law, undermining its coherence and favouring instead increased fragmentation, particularly as this decision may well encourage other national courts to adopt a similar stance. However, he also acknowledged that it may have the opposite effect: if the EU is indeed emerging and beginning to act as a single, powerful state, then its traditionally strong support for international law could ultimately lead to a strengthening of the system. Lastly, he noted that the ECJ had sent a clear message to France and Britain that they cannot expect their positions as permanent members of the Security Council to lead to any special treatment.
2) The judgment also raised significant questions over the issue of European constitutionalism. Given that recent attempts to bring an actual “European Constitution” into force have been rejected by the publics of a number of different EU Member States, it is perhaps surprising to see the ECJ rely so heavily on the idea of “constitutional principles” of the European legal order in this judgment. Although this is by no means a new tactic by the Court, the question remains of whether recalcitrant European publics will accept this judicial advancement of the European constitution, when the political route has been blocked.
3) There is a risk that the judgment might undermine the putative universality of human rights law, as the ECJ relies only upon the European human rights regime.
4) Lastly, there is a sense in which the European criticism of the US Supreme Court, and its frequent refusals to consider international law as a factor in its judgments, now rings hollow. Echoing Franck, Posner suggests that the ECJ has simply reaffirmed the US Supreme Court’s view that national constitutional standards take precedence over international law.

Mattias Kumm noted that there is always a temptation in analyzing judgments such as Kadi to place them into one of two categories: either as representative of a monist order, in which international law stands superior to any conflicting national laws; or as supporting a more traditional, dualist position, in which domestic courts apply domestic laws even where these conflict with international commitments.

The Kadi decision, Kumm argued, does not fit into either model. It clearly is not monist; neither, however, does it adopt a traditionally dualist attitude in its interaction with international law. Rather, it adopted an approach that has been central to the European integration project more generally – an approach that respects the principles of European law, but also recognizes and interacts with the wider context in which these are situated in a complex and jurisdictionally sensitive manner. The ECJ both referred to and acknowledged the special role of the Security Council in maintaining international peace and security and gave EU institutions some time to fix the problem without in the meantime undermining the effectiveness of the sanctions. It did not simply ignore the Council, but rather sought to engage in dialogue with it. In this way, it represents a third way of interacting with international law that can be reduced neither to monist or dualist categories.

In deciding in this way the ECJ has ensured that Member States cannot use Community institutions to circumvent national constitutional protections: in many Member States, national constitutional courts may well have struck down implementing legislation if it were introduced domestically – but, generally, actions of Community institutions are not subject to judicial review by national constitutional courts. Furthermore the ECJ protected its authority against possible challenges by national constitutional courts: a different decision by the ECJ may have led some of these national courts – such as, for example, the German Constitutional Court – to challenge the authority of the ECJ by refusing to recognize the ECJ's position as a final arbiter on individual rights. Furthermore the decision takes away the option of Member States to enforce the Sanctions through national rather than EU legislation by insisting that that EU standards regarding human rights would also apply to national implementation measures. In this way the ECJ ensured that the EU would remain the relevant institution to address the implementation of UN Sanctions.

Finally, Kumm observed that, as it currently operates, the UN listing procedure effectively enables the executive branches of government to act in a thoroughly authoritarian manner. The impact upon the human rights of those listed is extremely significant, and would never be countenanced in the context of a democratic state. It is, he said, in a real sense Kafkaesque – an individual can wake up one morning to find that he has no way of accessing any of his funds, but with no idea of what he is suspected of doing, of the evidence against him, or of any meaningful action he can take to remedy the situation.

Robert Keohane introduced a political science perspective to the discussion, noting that sometimes one of the most important consequences of a court decision is to open up a political process that had previously become frozen. There had been little opposition to the US in the Security Council and the Sanctions Committee given its position of dominance – there were few that could challenge it politically and force it to accept procedural guarantees for individuals in the listing procedure. However, this judgment – and the possibility that it will act as a catalyst for similar judgments in other national courts throughout the world – may well have the effect of unblocking the process.

Richard Stewart then suggested that the ECJ could have followed an alternative path to its result, using principles of clear statement used by the US Supreme Court in dealing with congressional statutes delegating very broad discretion to the executive, which exercised the discretion, e.g. to deny passports to asserted Communist sympathizers or denying them security clearances without a hearing, in ways that infringed basic liberty interests. Rather than ruling these actions unconstitutional, the Court found that they had not been authorized by the statutes in question. It stated that notwithstanding their apparent breadth, they should be construed narrowly where basic rights are at risk, thus “remanding” the matter to Congress if it chose to enact more specific legislation. In Kadi, the Security Council resolution was broad in terms but did not specifically prohibit states from providing due process hearing rights to those listed. The ECJ might thus have applied clear statement principles to conclude that those rights were not excluded, effectively requiring the Security Council to address the issue explicitly, perhaps generating a modified resolution that explicitly provides for a measure of procedural protections for listed individuals, while reserving the opportunity to address the “constitutional” relation between Security Council resolutions and Community law on a later occasion if required.

Robert Howse, picking up on Stewart’s suggestion, argued that a careful reading of the Kadi judgment suggests that the ECJ is hinting that there may be a hermeneutic solution to the problem. He cites, for example, para. 296 of the judgment, in which the Court states that “…the Community is to take due account of the terms and objectives of the resolution concerned and of the relevant obligations under the Charter of the United Nations” in relation to measures taken to implement Security Council Resolutions. It is thus open for the Community institutions, interpreting human rights protection as forming part of the goals of the UN and thus of any action taken by the Security Council, to assume that any implementing legislation must not violate those rights. Thus, para. 296 opens up the possibility for the EU to interpret the Security Council’s intentions as being to act in accordance with human rights, forcing the Council into explicitly stating the contrary should it so desire. The judgment contains no actual statement from the ECJ that the Security Council has obliged States to act in a manner that violates human or fundamental rights.

Sujit Choudhry noted that, notwithstanding the ECJ’s statement that it would not review the legality of Security Council resolutions under international law, it proceeded to offer an interpretation of Chapter VII in para. 298 of the judgment, as it states that “[i]t must however be noted that the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions adopted by the Security Council under Chapter VII of the Charter, since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member of the United Nations”. Although the ECJ did not explicitly say so, the requirements of a “domestic legal order” would include constitutional guarantees of human rights, such as those found in the EU. There are two ways to read para. 298. First, it may establish a clear statement rule, as Howse suggested. This approach to confining the scope of the Security Council’s powers under Chapter VII arguably underlies the recent decision of the UK House of Lords in the Al Jedda Case, in which it had found that a Security Council authorization to UK and US forces in Iraq to detain suspects without trial “where necessary for imperative reasons of security” did not entirely override Article 5(1) of the European Convention on Human Rights (on the right to liberty and protection against arbitrary detention), but rather merely modified or qualified its application (see para. 39 of that judgment: “the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee's rights under article 5 are not infringed to any greater extent than is inherent in such detention”).

Second, Choudhry also suggested that para. 298 may even be read in such a manner as to imply a doctrine of ultra vires applicable to the Security Council – i.e. that its powers are bounded by the human rights obligations that form part of the object and purposes of the United Nations. Benedict Kingsbury challenged this proposition, however, noting that it the Court seemed to have gone out of its way to avoid saying anything that could be construed in this manner, refusing even to consider the question, as the Court of First Instance had done, of whether the actions of Security Council could themselves be reviewed (as opposed to actions of Community institutions implementing them) for potential violations of jus cogens obligations.

David Dyzenhaus read the following passage from an early English case, Cooper v. The Board of Works for the Wandsworth District (1893), in which the Court referred to “…a long course of decisions, beginning with Dr. Bentley's case, and ending with some very recent cases, [which] establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, ‘The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?’”. Again, then, this seemed to provide further support for the idea, already suggested by a number of commentators, that an intention to grant a hearing to the accused should be attributed to any legislator, unless the latter explicitly states to the contrary.

Eyal Benvenisti, referring to the likelihood that the Kadi judgment would lead to the creation of some kind of hearings and review mechanism within the Sanctions Committee, argued that what we are witnessing is not (or not only) the birth of the European State, but also the Europeanization of the UN system. In further support of this, he referred to Advocate General Maduro’s suggestion, in his Opinion in the Kadi case and which displayed, in some respects at least, the same logic as that relied on by the Court, that all Member States are compelled, in all of their activities, to act in accordance with the basic principles of European law. “As Members of the United Nations, the Member States, and particularly – in the context of the present case – those belonging to the Security Council, have to act in such a way as to prevent, as far as possible, the adoption of decisions by organs of the United Nations that are liable to enter into conflict with the core principles of the Community legal order. The Member States themselves, therefore, carry a responsibility to minimise the risk of conflicts between the Community legal order and international law” (see para. 32 of the Opinion). This could, if it is an accurate reflection of EU law, have huge implications for the future direction of the UN. Benedict Kingsbury, however, noted that the ECJ itself had remained completely silent on this question.