Saturday, May 30, 2009

Accountability and humanitarianism...

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 26, 2009

Recent GAL events: Quick round-up

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sleep no more!

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

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

Friday, May 1, 2009

Kadi: Recent Developments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Krisch: GAL and the Constitutional Ambition

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

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

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