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

Following on from my earlier post on the facinating stand-off between the UN Secretary General and Judge Adams of the New York office of the UN Dispute Tribunal, I thought it might be interesting to post a quick update as to the latest developments. As far as I can see, these are to be found in Ruling 59/Rev.1 On Production of Documents (26 March 2010). This slightly lengthier ruling runs to some 30 pages, but it is worth reading in that Judge Adams begins with a detailed summary of "the story so far" of his orders regarding the production of certain documents and people, and the flat refusal of the Secretary to comply with them.

He then (at around para. 13) moves on to the most recent developments, which are, effectively, that the Secretary General has appealed the orders in question to the UN Appeals Tribunal, meaning that, in accordance with Art 7.5 of the Tribunal's Statute (ATS), execution of the specified orders was automatically stayed. Adams' response did not mince words (apologies in advance for all the blockquotes in this post, but part of what makes this so interesting is the tone in which the debate is being conducted):

This action should be seen in context. Despite five appearances so far, counsel for the respondent did not intimate that any appeal was contemplated. Had it been under contemplation, it would have been an easy step to have sought a stay from the Tribunal to permit due consideration to be given to the question. Moreover, in respect of the order requiring attendance of the responsible officer, counsel for the respondent explicitly declined to submit either that it was made without jurisdiction or erred in law. And the question in issue is not complicated, either in law or in fact. However, the path chosen was simply to disobey the orders of the Tribunal. This strongly suggests that the appeal is not bona fide but a procedural device to avoid obedience or at least delay it.
...
[T]he suspension under art 7.5 of the ATS (assuming it to apply) did not deal with the problem of past disobedience and noted that the legal situation is clear beyond debate: an order made by the Tribunal must be obeyed, whether it is legally in error or not. Accordingly, until it is reversed on appeal or stayed, it is extant and compliance by the party to whom it is directed is an undoubted legal obligation. I explained that, at the time of the respondent’s refusal to obey, the orders were relevantly valid and that a suspension under art 7.5 of ATS could only operate prospectively. Thus, even though if (and I did not necessarily accept that this was so) the Tribunal’s orders were presently not executable, this could not change the fact that they were disobeyed at a time when there can be no doubt that they were executable. As I put it, the suspension cannot turn obedience into disobedience.

There then follows a lengthy discussion of the meaning of the various relevant provisions of the Statutes of the Dispute and Appeals Tribunals respectively. The key elements of Adams' decision seem to be as follows:

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

29. The UN Administrative Tribunal itself authoritatively stated on a number of occasions, as I set out in my Order No. 42 (NY/2010), that it would not accept the legitimacy of disobedience of its orders and that it was not for the Secretary-General to decide what would be provided and what would not... The reform of the system of the administration of justice has not increased the powers of the Secretary-General. He was not then a judge in his own cause and is not now. The DTS in art 9 gives power in unqualified language to require the production of documents...

There is no reservation to the Secretary-General of any power to withhold documents required to be produced or to unilaterally determine the issue of confidentiality. Indeed, both the Statute and the Rules are manifestly inconsistent with the implication of any such power.

2) That simply drawing adverse conclusions in the particular case in question was an inadequate response to the Secretary General's failure to comply with the Tribunal's Orders, and the challenge to the administration of justice that this poses (this represents a hardening of Adams' position from previous orders, in which he had only stated his "inclination" not to hear Counsel for the Secretary General in other cases until the disobedience was purged):

31. ... As to the consequences of disobedience, in respect of the particular case, the Secretary-General cannot require the applicant to be put to proof of his or her case and at the same time withhold evidence that is relevant to that case and, accordingly, judgment must be given by default to the applicant. In respect of compensation, the Tribunal must draw all available adverse inferences, since the Secretary-General cannot be permitted to profit from his disobedience.

32. However, in my view, these outcomes are insufficient to deal with disobedience of an order to produce, since they are confined to the outcome of a particular case and do not vindicate or protect the jurisdiction of the Tribunal from the abuse of its proceedings that disobedience entails. As a matter of fundamental principle it cannot be proper that a party who defies the jurisdiction of the Tribunal can seek to take advantage of it and, in this respect, that must affect every case in which it seeks to do so until that disobedience is purged. This is not a matter of punishment, it is simply the logical consequence of refusing to acknowledge the jurisdiction of the Tribunal...

33. Put in another way, a party cannot pick and choose which orders it will obey and which it will not, nor can it purchase the right to disobey by being willing to pay the price of losing the case in which, as it happened, the disobeyed order has been made.

3) The Tribunal has the right to protect its own integrity, and that of its proceedings from abuse. (This was interesting, in that Adams had initially styled this as the "the common law approach to situations where a party is in defiance of an order of the court", and counsel for the Secretary General had indicated that this was an invalid importation of principles of national law to the UN system):

42. ... It follows from first principles that any judicial tribunal with the ability to make legally binding orders must possess inherent powers to control its own processes to protect its jurisdictional integrity, which follow necessarily from the very institution of the tribunal itself. Such a basic proposition does not depend on the national laws of States. As has been shown, the existence of such an inherent power has been asserted by the ILOAT and the UN Administrative Tribunal. The mere fact that the same situation is found in national courts is scarcely surprising, given the fundamental character of the rule and the essential logic that it embodies.

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

44. In my opinion, the Tribunal has not only the jurisdiction but the inescapable obligation to determine whether or not its proceedings are stayed... The effect of a decision to leave the matter to the Appeals Tribunal to decide is to grant a stay, the very lawfulness of which is in issue. Of course, the Appeals Tribunal – if the matter needs to be decided there – will have to exercise its own judgment about the matter. But that is what appeals entail.

5) That Orders of the Tribunal are not "judgments" in the sense of Art. 11 of the Statute of the Dispute Tribunal, which provides for appeals, and are thus not subject to appeal. In an interesting - and persuasive - discussion, Adams notes that the requirement for appeals to be filed within 45 days (under Art. 7.5 ATS) would, if applied to all orders in the manner suggested, simply produce absurd results:

47. Moreover, on the respondent’s contention, no order for production could have a shorter timescale for compliance than 45 days. It is no answer to this (as was submitted during argument) that it could voluntarily be obeyed more quickly... In many instances, the making of such an order occurs during a trial, as when there is an adjournment and witnesses are ordered to attend on the following day or particulars or information are required for the continuation of proceedings. The notion that none of these orders – both conventional and essential for effective case management – and which might well be cascaded could require things to be done before 45 days had expired after each one is so absurd as to lead ineluctably to the conclusion that art 11 and art 11.3 in particular cannot apply to executory orders at all, in particular orders to produce documents.

48. It is, of course, necessary to factor in – if these orders can be appealed – the time frames prescribed by the Appeals Tribunal’s Rules of Procedure. Under art 7 and 9 of these Rules, the appellant has 45 days to appeal a decision of the Dispute Tribunal and the respondent has 45 days in which to file an answer. Consequently, three months could well elapse even before the appeal of an order is ready for hearing. Cases interrupted by appeals against procedural orders could therefore experience very substantial delays indeed, possibly years. It is impossible to accept that such a consequence was contemplated, let alone intended, by the General Assembly.

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

64... Although a stay was not initially sought by the respondent despite its evident availability, I have considered in fairness whether in the present circumstances I should order a stay pending the outcome of the appeal. I do not do so for two reasons. A stay can only be justified for good reasons. Where the essential ground is that the order is subject to appeal, it is necessary to be persuaded that there are substantial grounds for appeal with significant prospects of success, or that irreparable injury would be occasioned, as by destruction of the subject matter of the litigation, or there is some other good reason for doing so. Here, the respondent has not, it appears, yet put its grounds of appeal in final form and will not do so for some time. This is surprising. It may be naïve, but one would have thought that, before deciding to disobey an order of the Tribunal, careful consideration would first have been given to the legal questions involved and a clear conclusion drawn about its legality. That it appears now that the legal issues were not clearly articulated and understood is troubling. It suggests that legality was thought to be immaterial, or at least, not problematical. If they are the same as has been proffered to me, they are not substantial and do not have significant prospects of success. Although it is said that irreparable injury would result, this is not identified. If it means that the Tribunal would be placed in possession of sensitive and confidential material, that is scarcely irreparable, since confidentiality can be maintained by the Tribunal. Any other injury can be corrected by the Appeals Tribunal on the assumption, of course, that the appeal succeeds. Further, the identification of the relevant decision-maker is not an injury of any kind.

As noted above, this is a fascinating incident; and it may well become something of a test case for the new administration of justice system at the UN. The stance of the Office of the Secretary General is pretty baffling: the refusal to identify the official concerned - indeed, the refusal by counsel to even identify the "bosses" to whom she is answerable (see para. 15) - is fairly preposterous in and of itself; while, barring any strings-pulled, ears-whispered-in travesty, Adams' contention that the chances of any appeal being successful seem remote in the extreme is also persuasive. Precisely why, then, they are not backing down on this issue - when it seems clear that Judge Adams will not - is something of a mystery.

There is a further GAL-related subtext to this issue. At the GAL Workshop in Geneva last year on the role of IOs in global governance, one issue that emerged was that head legal officers of international organisations were becoming increasingly concerned over the prospect of national court setting aside their immunities in disputes involving third parties where effective alternatives in terms of access to justice were not made available at the international level (and a concomitant acknowledgment that in many cases, existing arbitration provisions simply amounted to a denial of justice). One idea that was mooted, and received cautious support, was for extending the jurisdiction of administrative tribunals such as the UNDT and the ILOAT to cover third party disputes. So it is not inconceivable that the result of the current stand-off may have repercussion beyond simply the internal administration of the UN.

So what next for Judge Adams and the Secretary General? Who will blink first? Will the Appeals Tribunal get involved? Will it make any difference? Stay tuned...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

That, I think, is quite clearly fighting talk.

New publication on private military companies...

The issues surrounding the use of private military companies have long been of more than tangential interest to the field of global administrative law; it represents in many ways the paradigmatic example of "outsourcing" of public functions (indeed, the public function par excellence) to private actors.

The recent volume edited by Simon Chesterman and Angelina Fisher, Private Security, Public Order: The Outsourcing of Public Services and its Limits (OUP, November 2009) deals squarely with the GAL aspects of this issue. The introductory chapter is available in full here. This is the second edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies; the first, From Mercenaries to Market: The Rise and Regulation of Private Military Companies, edited by Chesterman and Chia Lehnardt, was published by OUP in 2007.

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

Private actors are increasingly taking on roles traditionally arrogated to the state. Both in the industrialized North and the developing South, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction...

[This volume] looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, the book examines private military and security companies through the wider lens of private actors performing public functions. In the past two decades, the responsibilities delegated to such actors - especially but not only in the United States - have grown exponentially. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally "public" functions. Can and should a government put out to private tender the fulfillment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? This discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.

And the table of contents:

Introduction — Simon Chesterman & Angelina Fisher

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

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

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

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

Essential reading for those working in this particular field, and well worth a look for anyone interested in the public/private nexus within the field of GAL.

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?

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

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

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

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

…

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

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

Forthcoming event on GAL in International Organizations in Geneva

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

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

The purpose of the meeting is to raise, analyze, and discuss important operational issues that confront major international organizations (IOs) that may not as yet have been sufficiently addressed in systematic fashion. In order to do so, the conference will bring together leading experts – both practitioners and academics – in the field.

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

More on IOs, Peacekeeping and Attribution...

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

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

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