Friday, May 23, 2008

Increasing complexity in the climate change regime: Proposal for the creation of a World Carbon Authority

In a striking example of the increasing complexification of the global regulatory regime on climate change, the International Scientific and Business Congress on Protecting the Climate (a monitoring body of the UN Framework Convention on Climate Change - UNFCC) has written (in April of the year) an open letter to Dr. Rajendra Pachauri, the Chair of the Intergovernmental Panel on Climate Change, proposing the establishment of a World Carbon Authority (WCA) under the auspices of the UNFCC. It suggests that this body should seek to implement and oversee a cap-and-trading scheme with regard to the carbon emissions related to international transportation, thus combining the roles currently undertaken by the International Civil Aviation Organization (ICAO) and the International Maritime Organization (IMO) in relation to aviation and shipping, repsectively.

The letter suggests that the role of the new Authority would be oversee the creation of international carbon markets and the setting of price of carbon that will be reliable for planning long-term investment in low-carbon technologies and products and sufficient to achieve decarbonisation of the global economy by 2050 or earlier.

There will be, however, significant resistance from industry actors to these proposals (a similar European scheme for an emissions trading system has met with strong criticism from the aviation industry), many of whom feel that the ICAO and IMO remain the best fora for developing policy and overseeing implementation of efforts to reduce carbon emissions. The key issue here is, of course, whether a voluntary, market-based scheme will most effectively produce the desired result (as industry actors (claim to) believe), or whether something with a little more binding bite will be required. (See this article on for more detailed analysis, and some quotes from both sides of the debate; hat tip to Global Governance Watch).

As noted at the outset, this proposal provides us with a good example of the increasing complexity and fragmentation of global administration - here, we have an oversight body recommending to one global administrative body (the IPCC) that another (the WCA) be established, with a remit that in part at least overlaps with that of two more (the ICAO and the IMO) - not to mention the role of the more general Clean Development Mechanism (CDM) of the Kyoto Protocol. Clearly, the relations between these actors, and their respective "jurisdictions", will need to be set out in detail. Another subtext here also concerns the participation of private actors in these various bodies: it seems evident, for example, that one reason that the aviation industry is so keen to keep this issue in the ICAO is thanks to the influence that it has within that Organization through the robust participation rights provided to the International Air Transport Association (IATA - for a detailed account of the role of IATA within the ICAO, see this paper by Tiago Fidalgo de Freitas).

These issues, of complex inter-institutional relations, and of the (not always complementary) relation between private participation and the legitimacy and efficacy of global administrative action, will of course be of central importance to any mature "field" of global administrative law. Whether this proposal, however, would contribute to greater unity, or rather greater fragmentation, within this field remains, however, for the moment an open question.

Friday, May 16, 2008

Can a double amputee compete in the Olympics? Pistorius v. the IAAF before the CAS

Apologies for two sports-related posts in one day, but a fascinating, if slightly strange, decision has just been handed down today by the Court of Arbitration for Sport (CAS) in Lausanne, relating to the right of a double-amputee sprinter to compete, using specially-designed prosthetic limbs, against able-bodied athletes in sporting events sanctioned by the International Association of Athletics Federations (including, of course, the forthcoming Olympic Games in Beijing). Oscar Pistorius, a 21-year old South African sprinter, is already the paralympic world record holder over 100, 200 and 400 metres.

The case before the CAS arose over whether Pistorius' use of the prosthesis known as the Cheetah Flex-Foot contravened IAAF Rule 144.2, which was newly amended in March 2007 (with, in the view of the Arbitration Panel at least, Pistorius' particular case in mind) to prohibit, inter alia,

(e) The use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.

The IAAF then conducted a series of scientific tests on Pistorius in 2007, in order to determine whether his prosthetic limbs did in fact give him such an advantage, culminating, in January 2008, with an IAAF Council Decision (no. 2008/01) that

a. running with these prostheses requires a less-important vertical movement associated with a lesser mechanical effort to raise the body, and

b. the energy loss resulting from the use of these prostheses is significantly lower than that resulting from a human ankle joint at a maximal sprint speed.

On this basis, then, the IAAF concluded that the Cheetah Flex Foot was a device prohibited under Rule 144.2(e), and thus banned Pistorius from participating in international sporting events that it sanctioned. The case before the CAS raised three points, each of which is of direct and significant interest from a global administrative law perspective (see para. 53 of the Decision):

1) Was the process leading to the IAAF Decision procedurally unsound?
2) Was the IAAF Decision unlawfully discriminatory?
3) Was the IAAF Decision wrong in determining that the use of the Cheetah Flex Foot contravened Rule 144.2(e)?

It's hardly necessary, but to frame this in terms of global administrative law in particular, we have the administrative action of a private global regulatory body (the IAAF) affecting the interests of a private individual (Pistorius) held to account ex post by a private arbitration tribunal (the CAS). In many ways an entirely "private" dispute, then; yet the influence (we may even say the application) of the rules and mechanisms of public administrative law is simply undeniable. The three issues dealt with in the case run the whole range of those commonly raised in terms of court-based oversight of administrative action: the formal, due process question; the human rights-based non-discrimination question; and even the the possibility of a critical re-evaluation of the substance of the administrative decision in question. (Indeed, had counsel for Pistorius not dropped (see para. 55) his initial claim - that the IAAF didn't have the jurisdiction to adopt the decision in the first place - we would also have had a consideration of ultra vires, making a pretty complete set of administrative oversight questions).

The actual Panel Decision itself is no less interesting than the facts promised it would be. The Panel spends some time dealing first with the procedural issue (paras. 56-71), and finds it wanting in a number of ways: finding that, for example, the second set of scientific tests was limited to finding only if the athlete had an advantage the part of the race in which he was strongest, and did not consider the balance of advantage and disadvantage over the race as a whole (para. 61); that the scientific experts nominated Pistorius had been denied participation, having effectively been "frozen out" of the testing process (paras 62-63); that the IAAF voting procedure was rushed and otherwise unsatisfactory, in that insufficient and inaccurate information was given to the IAAF Council (paras. 64-67); and that there was evidence of prejudice among some leading IAAF officials (para. 68).

There are two points of great interest in the Panel's Decision in this regard. Firstly, it seems clear that, despite the private nature of all parties involved, there is a public law sensibility being applied to the issue of procedural propriety. There is no attempt to evaluate the conduct of the IAAF according to its own standards (or those of an implied "contract" between that Organization and Pistorius); rather, the evaluation is informed by a more general sense of "fairness" and community expectation:

In the Panel's view, the manner in which the IAAF handled the situation of Mr. Pistorius in the period from July 2007 to January 2008 fell short of the high standards that the international sporting community is entitled to expect from a federation such as the IAAF (para. 77).

The second interesting, if slightly odd, feature of the Panel's Decision on the procedural issue is that, immediately after having made this finding, they go on to conclude that it "makes little difference, if any, to the outcome of the appeal" (para. 78). The proceedings before the CAS in this case were a de novo process, in which the facts are to be evaluated anew, "in a judicial manner", on the basis of the evidence and submissions of the parties in the case. The question remains, then, of why the Panel spent the time it did making the finding that the IAAF process was insufficient, only to find this issue irrelevant to the case...

Pistorius also argued that the IAAF Decision breached the legal requirement of non-discrimination, in that they did not seek to find an appropriate alternative solution to allow him to participate in IAAF-sanctioned events on an equal basis with all able-bodies athletes. Interestingly, the Panel deals with this (presumably pursuant to Pistorius' claim) in terms of the newly in force Convention on the Rights of Persons with Disabilities (see my earlier post on this Convention here).

The issue was not, however, whether the Convention was binding directly on the IAAF, but rather (apparently, the Decision isn't very clear on this point) whether it could be said to form part of the law of the Principality of Monaco, to which the IAAF is subject (as it has its seat there). This seems like an extremely weak argument, and was dismissed by the Panel. Not only did the Convention only enter into force in May 2008 (after the contested IAAF Council Decision in January), but Monaco has neither signed nor ratified it. Moreover, the Convention requires only that States "take appropriate measures" with "a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities". Hardly directly effective, or even particularly mandatory, language; and in any event, the "equal basis" requirement is precisely the question at issue in the contested IAAF Decision. All in all, then, the non-discrimination claim here seems to have been a bit of a non-starter; the attempted reliance on the new Convention is interesting, if a bit... odd.

Entertainingly, the Panel derides the amendment to IAAF Rule 144.2 ("without implying any criticism of the draftsman") as being a "masterpiece of ambiguity" (para. 80). In general, however, they find that the advantage conferred must be an overall net advantage; the fact that the prostheses help in one part of the race must be balanced against any part in which they are a hindrance (i.e. the Cheetahs help Pistorius gain speed over the final straight, but they actually impede his speed over the first 200 metres compared to an able-bodied athlete. This must be taken into consideration, and wasn't in the key stage of the IAAF's scientific testing). There was agreement that the burden of proof fell on the IAAF in the case, and that the relevant standard of proof was the "balance of probabilities" (paras. 86-87). On the basis of the scientific evidence available, the Panel concluded that the IAAF Decision had failed to satisfy even this burden of proof; on this basis, it revoked Decision 2008/01 with immediate effect, allowing Pistorius to compete in international IAAF-sanctioned sporting events.

An interesting judgment, then (even if the Panel insisted (paras. 101-104) on limiting any precedential value by stressing that this judgment applies only to this particular athlete using these particular prostheses; and that, moreover, should new evidence come to light, the IAAF would be entirely entitled to reintroduce its prohibition), and one that demonstrates with exceptional clarity the relevance of public, administrative law mechanisms to even ostensibly entirely private realms of global regulatory governance.

Chambers to take case against BOA to High Court

Like him or loathe him, it's great news for GAL: the BBC is reporting that Dwain Chambers has initiated proceedings before the High Court in England against the life ban imposed on him by the British Olympic Association (see my earlier post for more detail), arguing that a life ban for a first offence is illegal under the WADA Anti-Doping Code, which provides only for a two year suspension (with a life ban for a second offence). This will furnish us with an interesting insight into whether the standard-setting of a hybrid public-private global administrative body can be upheld in court as superior to those of a national administrative body (a private body in the case of the BOA, but other national Olympic associations - such as, for example, in Italy - are fully public bodies).

What makes this now particularly interesting is that Chambers has recently begun to cooperate fully with UK anti-doping authorities, providing them with a letter from Balco supplier Victor Conte detailing his precise drugs regime, and how he managed to evade the testers for so long. Whether the BOA will argue that this proves that his first time being caught was not his "first offence", or whether instead they will take it as an opportunity to soften their stance as a reward for "good behaviour", remains to be seen. In any event, we'll be keeping a close eye on this one...

Thursday, May 15, 2008

Just published - GAL: Cases, Materials, Issues (2nd edition)

Just a quick post to announce the publication of the second - considerably expanded - edition of the Global Administrative Law Casebook has just been published. The Casebook, developed by the Istituto di Ricerche sulla Pubblica Amministrazione (IRPA) in Rome in conjunction with the IILJ at NYU, seeks to analyze global administrative law through the elaboration and examination of a number of different cases and case studies. The structure of its contents mirrors the characteristics of this new field, with sections on the emergence of global standards; on the new, complex forms of governance; on global principles for national administrative procedures; on due process; on judicial globalization; on the enforcement of global decisions; on overlapping and conflicting jurisdiction; and on the important field of global security.

Each of the forty-one sections of the book has been considerably extended from the previous edition, and now they all follow the same basic schema: each has a section on the relevant background; a list of materials and sources (with hyperlinks wherever possible); an analysis of the example in question; and a discussion of the various issues to which it gives rise, enabling each author to flag some basic theoretical problems, and to highlight the relations between the different topics examined in the book. Each section concludes with list of recommended further reading, relating specifically to the topic with which it dealt. Lastly, a general bibliography provides an overview of the most relevant works on global legal issues, and particularly global administrative law, divided into twelve different categories.

The Casebook is edited by Sabino Cassese, Bruno Carotti, Lorenzo Casini, Marco Macchia, Mario Savino and myself. Our hope is that, in this and in future iterations, it can make a genuine contribution to the crystallisation of global administrative law as a discrete and important new field of legal theory and practice.

Tuesday, May 13, 2008

Voting today on the new DG of the WIPO

Following up on an earlier post on the process of electing the new Director General of the World Intellectual Property Organization (and their plans to increase accountability and transparency within the Organization), a quick post to note that the vote takes place today, when the field has been "dramatically" narrowed down to three candidates, from Australia, Brazil and Pakistan.

Indeed, you can follow all the action live here, on the excellent Intellectual Property Watch website.

GAL doesn't get much more exciting than this...


Australian candidate Francis Gurry has been elected as the new Director General of the WIPO. You can find his presentation here; and his responses to questions put by the IP Watch website, including his intentions for changing the internal management, staffing and procedures of the Organization, here.

Monday, May 12, 2008

Is there any GAL in the new UN Convention on the Rights of Persons with Disabilities?

Not much.

The latest UN human rights convention, on the Rights of Persons with Disabilities, was opened for signatures on March 2007, and entered into force barely a year later, on the 3rd of May 2008 (thanks to Opinio Juris for the heads' up). Despite, however, containing the usual provisions compelling states to "adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention" (Article 4), it does not seem - on a very quick reading - to impose any GAL obligations directly on national administrative authorities, in the manner of a number of other UN human rights conventions.

Perhaps the clearest example of GAL created by a human rights convention (excluding my somewhat tentative suggestion that we can read the non-refoulement provisions of the Convention Against Torture in that light) is to be found in Article 3(1) of the Convention on the Rights of the Child, which reads as follows:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(For a GAL-related analysis of the operation of this provision in the Canadian domestic setting, see this article by David Dyzenhaus). In a similar vein, the struggling International Convention on the Rights of All Migrant Workers and Members of their Families (**shameless plug** for an account of the difficulties facing the ratification of this Convention in a European context, see here) contains a number of provisions directly creating obligations for national agencies in a number of administrative decision-making processes (see e.g. Art. 22, banning collective expulsion measures even for those present illegally, and mandating that expulsion decisions must be reasoned, and communicated in a language that they understand; and Art. 43, mandating equal treatment with nationals for regular migrant workers in terms of access to certain social security benefits, vocational training, and so on).

Of course, in terms other than those of "distributed administration", the Convention on the Rights of Persons with Disabilities creates the obligatory global administrative body, named - you guessed it - the Committee on the Rights of Persons with Disabilities (see Art. 34 et seq). It establishes the normal accountability mechanism (a reporting requirement). However, it is worth noting that the Optional Protocol to the Convention continues the tradition of establishing a procedure whereby the Committee can consider individual complaints of violation, on the basis of which it can make "observations and recommendations" to the State concerned.

Thursday, May 8, 2008

Global administrative law: What's the point?

The major focus of global administrative law is, of course, about finding ways to regulate the activities of global regulatory bodies, in order that the exercise of public power beyond the nation-state remains responsive - and accountable - to the interests upon which it impacts. Is there any real point to this, however, when, as David Rothkopf has suggested recently, the real power and influence in global affairs is exercised by a small, networked group of super-rich individuals that he calls the "superclass", a group characterised by their individual capacity to profoundly influence the lives of millions? Here is Rothkopf's take on what is at stake:

In a world with only two kinds of international institutions -- weak and dysfunctional -- the members of this superclass are filling a power vacuum when it comes to influencing decisions about transnational issues such as financial-market regulation or climate change. (Many countries voted for the Kyoto accords on global warming, but it took just Exxon and a handful of other oil companies to successfully lobby the White House to opt out and undercut the entire initiative.) In so doing, they raise real questions about the future of global governance. Will the global era be more democratic or less so? Will inequality continue to grow, as it has for the past three decades of this group's rise, or recede? Will the few dominate because the government mechanisms that traditionally represent the views of the many are so underdeveloped on a global scale?

I heard an interesting discussion of this book (involving, amongst others, the author himself) on BBC Radio 4's Thinking Alllowed programme last week (available here, for the time being at least - the relevant section starts around 15 minutes in). Rothkopf notes that his book is intended as "a look at how the power structure of the global era is different from the power structure of eras in the past", citing the rapid rise in private actors among the most influential actors in global governance, who together form a relatively homogeneous, networked superclass, "knitted together" by such events as the World Economic Forum in Davos, at and through which they set the global agenda ("Davos is the factory where global conventional wisdom is manufactured", according to Rothkopf).

Is global administrative law useless in such a context? Quite the contrary: the power and influence of the 6000 or so members of this "superclass" can rarely be exercised directly; rather, it must be mediated through the public institutions that are still formally responsible for making decisions and adopting legislation. In theory, it is precisely through the establishment and application of robust administrative law mechanisms, ensuring transparency, participation and accountability, that it can be made much more difficult for public power to be influenced in an undue manner by private interests (without, of course, any naivety as to its capacity to achieve this goal in any ideal manner).

Far from rendering it useless, then, the emergence of the "superclass" provides us with one of the most pressing reasons for pushing on with the global administrative law project to the greatest extent possible (whilst remaining, of course, alert to the danger that the mechanisms and rules thus proposed can themselves function as instruments of capture for dominant interests). As Rothkopf himself notes, at the end of the radio piece referred to above, "we need the public sector empowered on the global stage to represent the interests of the many, so that the interests of the few don’t drive the car…".

This, of course, is precisely the point.