EU Terrorist Listing in a post-Kadi world: Othman v. Council

A quick post to update on some more post-Kadi developments within the European Union (hat tip to Amaury Reyes for passing this one on): on June 11th this year, the Court of First Instance handed down its judgment in the case of Omar Mohammad Othman v. Council and Commission. The case was so similar in legal and factual context to that of Kadi that it had twice been suspended pending judgment in the later case, first at first instance and then on appeal before the ECJ.

The Council and Commission (and the UK as intervener) basically made the same arguments as they had in Kadi. With basically the same result:

83. With regard, first, to the procedure leading to the adoption of the contested regulation, it must be pointed out that the Council at no time informed the applicant of the evidence adduced against him…

85. Because the Council neither communicated to the applicant the evidence used against him to justify the restrictive measures imposed on him nor afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, the applicant was not in a position to make his point of view in that respect known to advantage. Therefore, the applicant’s rights of defence, in particular the right to be heard, were not respected…

86. In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship… between rights of defence and the right to an effective legal remedy,the applicant was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed.

89. It must, therefore, be held that the contested regulation, in so far as it concerns the applicant, was adopted without any guarantee being given as to the communication of the inculpatory evidence against him or as to his being heard in that connection, so that it must be found that that regulation was adopted according to a procedure in which the applicant’s rights of defence were not observed, which has had the further consequence that the principle of effective judicial protection has been infringed.

The Court also noted that the infringement had not been remedied by the time of the judgment: the Council noted that they had made (some) efforts to do so (i.e. giving him some reasons and inviting his comments), but this had not yet been effected, and nor were they able to state when it would be. Therefore, the Court held that it had no choice but to annul the contested regulation as it applied to the applicant.

Basically the same result as Kadi; but not quite. The Council, Commission and the UK had argued strongly that, even if the Court should find in this manner and annul the regulation, it should, as the ECJ had done, maintain its effects for a period of time to allow for violations to be corrected, as “annulment with immediate effect would be capable of seriously and irreversibly prejudicing the effectiveness of the restrictive measures imposed by that regulation and which the Community is required to implement” (para. 79).

This, however, the Court declined to do:

95. In the circumstances of the case, there are no grounds for allowing the request made at the hearing by the Council and the interveners seeking to have the effects of the contested regulation maintained for a short period pursuant to Article 231 EC.

96. The period already elapsed since the delivery of the judgment in Kadi on appeal, on 3 September 2008, far exceeds the maximum period of three months from the date of delivery of that judgment considered reasonable by the Court of Justice in order to allow the Council to remedy the infringements found in that case, while taking account of the considerable impact of the restrictive measures concerned on the rights and freedoms of the persons concerned (see, to that effect, Kadi on appeal, paragraphs 375 and 376).

97 Although that period was determined by reference only to the case of the two persons involved in the cases giving rise to Kadi on appeal, namely, Mr Kadi and the Al Barakaat International Foundation, the fact remains that the Council could not have been unaware that the applicant’s situation, which is in all respects comparable (see paragraph 82 above), necessarily called for the same response on its part. Furthermore, the institutions that are parties to these proceedings have stated that they have taken steps, in particular by approaching the Sanctions Committee, immediately after the delivery of that judgment, for the purpose of making the Community fund-freezing procedures consistent with the principles laid down in that judgment (see paragraphs 72 and 73 above).

(Although the Court also noted that, in any event, Community procedures meant that the Council would have a period of some two months from the date of notification of the judgment in which to pass a new restrictive measure on the applicant).

No real surprises here. However, the Court decided not to confront – in any way – what is surely the most important issue at stake here in broader terms: that of whether the “steps taken” by the Council since Kadi are sufficient to satisfy the rights claims of listed individuals. I blogged on these earlier here; but here they are again, summarised nicely by the Court (para. 71):

In its observations… the Council acknowledged that, following Kadi on appeal, it was necessary to provide the applicant with a statement of reasons, to allow him an opportunity to comment on it and to take those comments into consideration before adopting a new decision to freeze funds affecting him.

Necessary, yes; but sufficient? I have my doubts. Presumably, however, the CFI is going to leave that question to the ECJ in the next installment of the Kadi saga.

A little more still on the fallout from Kadi

Thanks to Mathias Vermeulen over at the excellent blog The Lift, we have the (belated) news of the steps proposed by the European Commission to address, in general terms, the concerns regarding the terrorist listing mechanism expressed by the ECJ in the Kadi case. These are contained in COM(2009) 187 final, and are in essence simply a general expression of the particular measures relating to Kadi that I had blogged about previously here.

5. The revised procedure should include providing to the listed person, entity, body or group the reasons for listing as transmitted by the UN Al Qaida and Taliban Sanctions Committee, so as to give the listed person, entity, body or group an opportunity to express his, her or its views on those reasons. The purpose of Regulation (EC) No 881/2002 is to freeze the funds and economic resources of persons, entities, bodies and groups included in the Al Qaida and Taliban list drawn up by the UN. As the relevant UN Security Council Resolutions provide that such freezing has to take place “without delay”, such measure must, by its very nature, take advantage of a surprise effect. Therefore, the Commission should be able to take a provisional decision before informing the person, entity, body or group concerned of the reasons for listing. The reasons for listing should, however, be notified to that person, entity, body or group without undue delay, after that decision has been published, to give the person, entity, body or group concerned an opportunity to make effectively his, her or its point of view known.

And that - together with some recognition of the need for a similar procedure backdated to those who are already on the list - is more or less that. Remains to be seen, however, whether these fairly cursory tweaks will be sufficient to placate the ECJ in the next installment of the saga. I would suspect - and hope - not; indeed, I wouldn't be surprised if they were a little miffed by what might well be styled as a pretty blunt challenge to their authority...

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.

The UK and non-refoulement

Some time ago, I posted a suggestion that, from a certain perspective, the international law norm prohibiting the refoulement of people to countries in which they risk being tortured could be viewed as part of global administrative law. This norm, enshrined in Article 3 of the Convention against Torture, is now also undoubtedly part of customary international law, and quite possibly part of the body of jus cogens. I am even less sure than I was previously of the GAL-relevance of non-refoulement, and i haven't had achance to read the case carefully, so I'll keep this brief; but I wanted to mention it, because it's important: the recent judgment of the House of Lords that upholds an earlier decision that the radical Muslim cleric Abu Qatada can be deported to Jordan, on the basis of diplomatic assurances as to his treatment should he be handed over. The judgment was joined with the cases of two other individuals that the UK was seeking to deport to Algeria, raising many of the same issues.

The first thing that I want to note is that, in strictly legal terms, I cannot see that the judgment represents a departure from or an exception to the universal and non-derogable requirement of non-refoulement. Contrary to the suggestion in some newspapers, (The Guardian, for example), the deportation of Abu-Qatada has not been approved "in spite of fears he may be tortured" - this would clearly be in violation of the UK's obligations under both international and European human rights law (the latter being the explicit basis upon which this judgment was rendered). Rather, the Lords upheld a decision by the Special Immigration Appeals Commission that any fears of torture were in the circumstances of the present case unfounded.

Nonetheless, this judgment has been strongly criticised, both in the press and by international human rights NGOs, and it is easy to see why: it does seem to mark a significant shift in emphasis from both the SIAC's treatment of "diplomatic assurances", and the Law Lords' willingness to protect the rights of detainees more generally. In particular, the House of Lords refused to undertake a full review of the decision of the SIAC, holding that the restriction of appeals to questions of law only prevented them from doing so. Therefore, although all parties that "accepted that neither Algeria, in the case of RB and U, nor Jordan, in the case of Mr Othman, was a country to which the appellants could safely have been returned had the United Kingdom not received assurances from the respective Governments as to the way in which they would be treated" (para. 107), the Lords refused to consider whether the assurances actually did reduce the risk of torture below the "susbstantial" level necessary to activate the non-refoulement prohibition, viewing this as a question of fact on which they had no jurisdiction to rule. Rather, they insisted that "the only ground upon which those conclusions can be attacked on an appeal restricted to questions of law is irrationality" (para. 117).

This is a hugely important finding. The House of Lords has effectively denied itself the capacity to oversee the factual conclusions of the SIAC as to whether assurances effectively remove the substantial risk of torture, and has limited itself to the much narrower - and much harder to establish - issue of whether the SIAC had acted "irrationally" in finding so. To give an example of just how much leeway this gives the lower tribunal, consider the following discussion from the judgment relating to the proposed deportation to Algeria. The SIAC had affirmed that 4 conditions had to be met for assurances to be acceptable (para. 23):

i) the terms of the assurances had to be such that, if they were fulfilled, the person returned would not be subjected to treatment contrary to Article 3;

ii) the assurances had to be given in good faith;

iii) there had to be a sound objective basis for believing that the assurances would be fulfilled;

iv) fulfilment of the assurances had to be capable of being verified.

The Lords then recalled that (para. 29)

So far as the fourth condition was concerned, the United Kingdom government had sought to persuade the Algeria Government to agree to monitoring, but had not succeeded. For reasons given in the decision in relation to Y, SIAC concluded that there was nothing sinister in this. There were other ways in which the performance of the Algerian assurances could be verified. British Embassy officials would be permitted to maintain contact with RB, if not in detention, and prolonged detention would itself be indicative of a breach of the assurances. Amnesty International and other non-governmental agencies could be relied upon to find out if the assurances were breached and to publicise the fact. Accordingly SIAC found that the fourth condition was satisfied.

This seems... unsatisfactory; apart from anything else, surely one of the purposes in ongoing monitoring is to enable potential breaches to be identified and prevented early, not simply actual breaches to be acknowledged ex post. Yet, despite these and other potential weaknesses, the self-limiting approach of the House of Lords meant that their review of this aspect of the SIAC's decision was limited to the following brief passages:

I have described earlier in this opinion the consideration given by SIAC to the reliance that could be placed on the Algerian assurances. This had particular regard to the general conditions in Algeria at the time that the assurances were given, the attitude of the Algerian authorities to the observance of human rights, the degree of control exercised by the Algerian authorities over the DRS, the internal security service, and the manner in which the performance of the assurances could be verified. SIAC paid careful regard to all relevant matters and applied to them the proper test of whether they amounted to substantial grounds for believing that RB and U would be at real risk of inhuman treatment if returned to Algeria.

SIAC gave consideration to the reasons why Algeria was not prepared to agree to monitoring and concluded that this was not indicative of bad faith and that there were alternative ways of ascertaining whether there was compliance with the assurances. These conclusions were not irrational. The contention that the assurances did not, on their true construction, protect against inhuman treatment was not well founded.

For these reasons the irrationality challenge to SIAC’s conclusions does not succeed. I would reject the appeals brought by RB and U.

This gives a pretty clear indication of the limited nature of the approach adopted by the House of Lords in this case: there is, it seems to me, a potentially huge difference between "there is no substantial risk of torture" and "it was not irrational to conclude that there was no substantial risk of torture". It's a long judgment, and there's a lot of important stuff in it that I haven't the time to read at present (including relating to the use of closed sessions in the Abu Qatada decision not only in relation to the threat that he posed to UK national security, but also in evaluating the risk of torture and the effectiveness of assurances - see paras. 76-98). In any event, even if the law remains effectively unchanged, this case does seem to indicate an important shift in emphasis in UK jurisprudence on the issue of assurances and non-refoulement.

An appeal has already been lodged before the European Court of Human Rights, and my own view is that they will block the deportation. Always risky, making predictions - on the upside, however, this one is likely to take at least two years, so even those few who have read this far are unlikely to remember it if I got it wrong...

Call for papers: Global and European Administrative Law

One of the leading research institutes within the GAL project, the Institute for Research on Public Administration (Istituto di ricerche sulla pubblica amministrazione - IRPA - led by Prof Sabino Cassese in Rome), has begun a new research project on global and European administrative law, which is scheduled for completion in September 2010. They have published a call for papers on the following subject: "The relationship between global administrative law and European administrative law":

Little attention has been paid to the relationships between European administrative legal order and global regulatory regimes. Yet, such relationships can raise a number of problems. To name but a few: can global law be used in evaluating the legitimacy of European acts, and within which limits? How does European law filter the relations among the EU member States and global regulation? And what principles govern the co-existence among the various components of the legal discipline?

The call for papers details four seoparate research themes that the project will address. Accepted texts will be published firstly on the IRPA website, with the possibility of a print publication - particularly for articles written in English - at a later date. Deadline for submission of abstracts is February 29, 2009.

GAL - and The End Of The World As We Know It

Now read on...

When does it start?

There are very few starts. Oh, some things seem to be beginnings. The curtain goes up, the first pawn moves, the first shot is fired (probably at the first pawn) – but that’s not the start. The play, the game, the war is just a little window on a ribbon of events that may extend back thousands of years. The point is, there’s always something before. It’s always a case of Now Read On.

Much Human ingenuity has gone into finding the ultimate Before. The current state of knowledge can be summarized thus:

In the Beginning, there was nothing, which exploded.

(Terry Pratchett, Lords and ladies (1993) p. 7)

Picture the scene: a group of shadowy individuals hollow a huge underground chamber beneath the Swiss Alps, and within its depths construct a machine capable of smashing particles together at unfathomable speeds (a machine, incidentally, that, as the second picture clearly demonstrates, bears an uncanny resemblance to the big laser in the Death Star). They proudly display a statue of the Hindu deity Shiva, the destroyer of worlds, doing an end-of-the-universe dance (as seen in the first picture); proving that, whatever else, at least someone involved has a sense of humour.

Their stated goal is to reconstruct the conditions existing at the time of the mother of all explosions - the Big Bang itself. Their ends are benevolent - unsatisfied with he current state of scientific knowledge on the subject (as unforgettably described by Pratchett above), they seek only (but nothing less than) enlightenment on the beginning of all things; however, the lust for knowledge that drives them has led them to the conclusion that the risks inherent in their project - the danger that their machine will create black holes that will devour the entire planet and everything on it - are risks worth running. They are beyond the reach of the courts. The day is rapidly approaching when they will press the big red button that may signal the End of history (really, though, this time)...

Science fiction or science fact? Almost entirely the former, it seems (although some director will doubtless try to pass it off as "based on a true story" at some point). For anyone who doesn't already know, the situation sketched above is the doomsday scenario portrayed by a number of critics of the Large Hadron Collider at the European Organization for Nuclear Research (CERN). Firstly, CERN isn't particularly shadowy; indeed, you can even take a tour of their facility just outside Geneva (which, incidentally, comes highly recommended). And the existence of the "big red button" for turning the machine on appears, amusingly, to be rather the creation of the media's willful ignorance of the science on which they report. However, the scale and ambition of the project is indeed breathtaking:

The Large Hadron Collider (LHC) is a gigantic scientific instrument near Geneva, where it spans the border between Switzerland and France about 100 m underground. It is a particle accelerator used by physicists to study the smallest known particles – the fundamental building blocks of all things. It will revolutionise our understanding, from the minuscule world deep within atoms to the vastness of the Universe.

Two beams of subatomic particles called 'hadrons' – either protons or lead ions – will travel in opposite directions inside the circular accelerator, gaining energy with every lap. Physicists will use the LHC to recreate the conditions just after the Big Bang, by colliding the two beams head-on at very high energy. Teams of physicists from around the world will analyse the particles created in the collisions using special detectors in a number of experiments dedicated to the LHC.

A number of critics - including some scientists - have raised a variety of concerns over the safety of the project, prime among which is indeed - believe it or not - the possibility that the LHC will create miniature black holes that will sink to the Earth's core and eventually devour the entire planet and everything on it. Everyone seems to accept that the first part of this - the creation of little black holes - is a theoretical possibility. Almost everyone - and everyone qualified in the field of particle physics itself - appears to agree that even if this does occur, however, the black holes would be unstable and would evaporate, due to "Hawking radiation", which explains why the planet hasn't yet been devoured by the black holes that are theoretically created by the cosmic rays that frequently strike the earth at the same velocity that will be generated by the LHC.

Apologies in advance to those to whom my inevitably simplistic, doubtlessly reductive and quite possibly inaccurate account of the scientific issues above will have caused offence. There are (a few) actual scientists in the critics' camp, but they appear to have no formal training in the relevant field. This page is a good resource for those interested in taking reading on the issue further, including the papers in which the concerns are raised and those containing expert rebuttals of the points made. The science is, of course, entirely beyond me; but falling back instead on lawyerly instincts and arguments, it is worth making the point that the overwhelming weight of authority insists that there is absolutely no cause for concern. To give one example, here are some of the comments made by Prof. Dr. Hermann Nicolai, Director of the Max Planck-Institut für Gravitationsphysik, on speculations raised by Professor Otto Rössler about the production of black holes at the LHC:

…[T]here is also not the slightest reason from the point of view of a theorist specialized in relativity to take these considerations seriously, since - in my view - they are based on an elementary misunderstanding of the theory of general relativity.
...
To conclude: this text would not pass the referee process in a serious journal.

This is a topic I have been meaning to post on for a while now, after having read an excellent five-part analysis of the legal issues to which it gives rise over at PrawfsBlawg by Eric Johnson (part 1, part 2, part 3, part 4, part 5). Each part is worth reading in full,(comments included), providing a reflection upon a different aspect of the (largely hypothetical) case. Johnson also makes some extremely interesting suggestions, to which I will return briefly below. However, one thing that struck me while reading his posts was the lack of any general conceptual structure within which to frame the issues that he identifies, or the recommendations that he makes. Another thing that struck me was how well-calibrated global administrative law appears to precisely this task.

There have, as far as I can tell, been 2 legal challenges to date, seeking an injunction against the operation of the LHC. Both were, it seems, dismissed for a lack of jurisdiction: one in the US (Sancho v. DOE), dismissed because the US Government's contribution of over $500 million dollars was not sufficient, and did not buy sufficient control, to qualify as a "major Federal action" under the National Environmental Policy Act; and a European Court of Human Rights preliminary judgment that appears to have disappeared without a trace (the complaint, in German, is here; it seems that the complainants were arguing that an earlier case, in which a contractual dispute against CERN was rejected on the grounds of the Organization's immunity from suit before the domestic tribunals of Member States, meant that the requirement to "exhaust domestic remedies" had effectively been obviated).

There are three aspects of Johnson's analysis that I want to look at here from a GAL perspective (contained in parts 4, 3, and 5 respectively; part 2 offers a more detailed outline of the science involved than I have above): technocracy and review, procedure, and immunity. and jurisdiction I'll deal with each briefly in turn.

Technocracy and review
One of the key arguments against any form of legal evaluation of profoundly complex scientific issues is, of course, that few if any judges or lawyers can understand them well enough to formulate any sort of well-informed judgment upon the substance of such debates. This leads easily to the view that courts and lawyers simply shouldn't be involved in scientific debates, creating a kind of "scientocracy" in which majority views of scientists are placed beyond the scope of judicial review. Of course, within the broader field of GAL, it is often simply impossible for them not to be so involved - as the recent EU-Hormones decision of the WTO's Appellate Body amply demonstrates, there are very often occasions in which science and regulation are so inextricably interlinked that a reviewing tribunal cannot but consider scientific issues if it is to be able to perform its functions at all.

This is not true, however, in the case of the LHC; here, lawyers and judges could simply leave CERN and its activities to the scientists (which is, in fact, what it does at present). Given what is at stake in this and other cases - public interest issues par excellence, usually also involving the commitment of vast amounts of public funds - can we really rely on what is effectively an exclusively technocratic mode of governance and be sure that all of the relevant issues are being satisfactorily addressed? Martin Shapiro - amongst many others - has cast doubt on the asumptions underlying the preference for technocratic deliberation:

There are a number of reasons to be agnostic if not atheistic about deliberation. Most fundamentally, there is little reason to believe that people with substantial, long-term, material interests in achieving a particular outcome are going to abandon those interests and their dedication to those outcomes as sweet reason emerges from the talk fest.

It may be argued that science is different: the pursuit of truth can be distinguished clearly from the pursuit of interest; and the relative strength of a proposition can be evaluated in its own terms, divorced from the preferences and politics of those involved. This may be true - to an extent at least - in certain areas of science and with regard to certain issues (although again, as the Hormones saga has shown, where science isn't certain, politics can and should begin to colour the concept of "precaution"). Perhaps most importantly, however, it should be pointed out that the review mechanism upon which most scientists rely when faced with questions such as these - peer review - is often, even in the most respected of journals - much less of a profound and in-depth affair than most lay people suspect. Again, it is reasonable to ask whether, when the science involved speaks to the great political issues of our time or impacts upon matters of profound public interest, whether this type of essentially self-regulation is sufficiently robust.

Johnson puts the matter succinctly, noting that current discourse within the scientific community

... would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.

When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in....[But] the argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.

This argument strikes me as persuasive; and nor is it difficult to see how it dovetails with the agenda of the GAL project more generally. In many ways, the essence of GAL is obviated if exclusively "technocratic" governance modes are adopted. As it becomes increasingly accepted, however, the discourse of global administrative law will provide both a language and a framework within which demands for this type of review of important scientific activities - not to mention contribute greatly to the creation of a culture in which they are likely to be successful.

Procedure
We are still, however, left with a significant problem - the undeniable fact that, in many if not most cases, judges and lawyers are singularly ill-equipped to pronounce on the validity of one scientific proposition over another. Moreover, the normal lawyerly response to this - expert testimony - may be unsatisfactory in a number of circumstances: for example, where the science is hotly contested among experts; or, as arguably is the case with the LHC, where the community of experts capable of understanding and evaluating the issues is so small that we cannot be sure that a consensus has been achieved in a genuinely independent and autonomous manner.

Johnson's suggestion for overcoming this issue is essentially procedural (broadly understood) in nature, again dovetailing nicely with the GAL project (in its current form, at least):

While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made.

As I said, this passage is talking about an investigation into the "procedures" rather than the substance of scientific agreement in the broadest sense of the former term; and yet Johnson seems correct in his suggestion that there is nothing per se unreasonable about the idea of a court examining and evaluating such "psycho-social" processes in order to reassure itself that they were not subject to any pathologies or perversions that could have distorted the outcome. Any causes for concern could lead to a preliminary injunction against the activity in question, until they had been satisfactorily addressed.

We might even go further than this, and suggest that a more mature global administrative law would be able to develop and insist upon broad sets of procedural guarantees designed to weed out such pathologies ex ante, thus obviating the need for a reviewing judge to resort to ad hoc categories and tests in evaluating the ways in which agreement has been generated. The idea of a "global administrative law of science" is, of course, far from being realised, and would present a huge challenge to our collective institutional imagination, and yet it strikes me that it is one area that may well be interesting to pursue. I'll return to it in a later post.

For the moment, it is worth noting that, in the case in question the issue of the safety of CERN's activities appears to be left almost entirely for CERN itself to investigate and decide upon. I do not, of course, mean to imply by this that they have not done a full and thorough job in their investigations; to the contrary, as far as I can tell (not, admittedly, very far), the two recent safety reviews (the first in 2003, by a broup of independent scientists at the LHC Safety Study Group, then updated in 2008 by the LHC Safety Assessment Group to take account of new criticisms that had been raised) seem to be detailed and thorough, and at least confront head-on the concerns of critics with an impressive array of authority.

What is striking about CERN's activity in this regard, however, is the almost complete absence of any sense that procedural guarantees might be useful in securing and enhancing the legitimacy of conclusions. The reports have been reviewed and endorsed by The LSAG report has been reviewed and endorsed by CERN’s Scientific Policy Committee, a group of external scientists that advises CERN’s governing body, the Council. The Terms of Reference for the Committee, however, again give no real sense that processes are of any great import:

Decision-making processes

9. Except in the cases specified in paragraphs 5 (d) and 6 above, the SPC shall take its decisions by simple majority of its members present and voting (abstentions not counted). Consensus is desirable.

It is certainly arguable that in failing to set and keep to a more robustly-formulated set of procedural guarantees, CERN is missing a trick - and this on a number of levels. Firstly, it is losing a key opportunity to present itself as a transparent and accountable organization - two claims that would certainly increase its general legitimacy - and perhaps decrease some of the hysteria that has been generated over the LHC - without any real apparent risk of any adverse outcome for the project. Secondly, it loses the chance that any court that did agree to a review of the processes through which the scientific consensus had been reached will defer to its own procedural setup, thus potentially missing out on an opportunity to control the direction of judicial review. And thirdly, relatedly, it risks that an unsympathetic judge will create ad-hoc categories that fail to capture the degree to which the science really is settled, and undermine a consensus that had in fact been genuine and sound. Even if such a judgment would be extremely difficult to enforce, it could put significant pressure on CERN and the LHC, giving critics unwarranted ammunition in the process. If, on the other hand, CERN had in place a robust set of procedural guarantees ensuring transparency, participation and a genuinely independent process, then these risks woudl all be greatly reduced - particularly if they could point to the standards that they were applying as part of a more mature and generally accepted global administrative law of science.

Immunity and Jurisdiction
This brings us on nicely to last point that I wanted to discuss arising from Johnson's excellent blogs on the LHC: the related questions of immunity and jurisdiction. From a global administrative law perspective, there are two main possibilities for judicial review of the activities of an international organizations such as CERN: either by national courts or by an international body. The former appears certainly the most likely; indeed, Johnson's posts are mostly framed in terms of a hypothetical challenge before a US court. There are, however, two main difficulties with this route in the context of the LHC.

Firstly, as noted above, the challenge before the Swiss courts failed because of the Protocol on the Privileges and Immunities of the European Organization for Nuclear Research of March 2004, which provides in Article 5(1) that, excluding a few narrowly-defined exceptions, "in the exercise of its official activities, the Organization shall enjoy immunity from legal process" before the courts and tribunals of CERN Member States. This is a very common obstacle to the review of the activities of international organizations by domestic courts. Although there have been recent moves by a number of domestic and regional courts to discard this immunity should there not be a substantially equivalent access to justice mechanism available at the international level (see this paper by August Reinisch for more detail), these have to date been confined to staff disputes within international organizations. While the explicitly human rights rationale relied upon in many of these cases might lead us to expect that such an approach to immunity might be extended to the vexed issue of the impact of the activities of international organizations on third party rights, I am as yet unaware of any decision in which this has occurred. It is hard to imagine a more profound potential impact on third party rights than the destruction of the planet and all life on it; it would be interesting indeed to see whether a Swiss court would be as absolutist on the issue of immunity in this context as it was in the earlier contractual dispute.

Even if a domestic court did decide, however, to issue an injunction against the operation of the LHC, there would still be - as Johnson fully acknowledges - almost insurmountable problems of enforcement; indeed, it seems likely that only a Swiss court could make such an order effective. Certainly, courts may be able to stem the flow of funding from national sources, but would in all likelihood be insufficient to stop the machine being switched on at this stage. Short of military action (and Marko Milanovic over at ESIL:Talk! has sketched for us the entertaining - if probably exaggerated - argument that the way in which the US Government's legal advisors had framed the idea of "preventive self-defence", with the amount of "imminence" of a threat required inversely proportional to its "magnitude", would in fact entitle it to bomb Switzerland if it refused to turn off the LHC...), it is difficult to see what steps a foreign court could take to have its judgment enforced. CERN activities are different from many of those of other international organizations in this regard, in that they do not themselves require the mediation of national actors in order to be effective.

These issues combine to create the impression that, in this regard at least, national courts would not be the best fora in which to review the CERN's evaluation of the safety of its own operations. Of course, the other option - the creation of a supranational body with jurisdiction to do so - would solve all of these problems; it has the significant drawback, however, of not actually existing. To my mind, however, again here it is arguable that CERN is missing a trick, and again it is the general GAL framework that enables us to see clearly why this is so. Firstly, it would an independent review body would further strengthen the Organization's claims to accountability, thus increasing its legitimacy and decreasing the strength of opposition it faces. Perhaps most importantly, however, the creation of such a body would make it extremely unlikely that any domestic court would look to waive CERN's immunity and review its activities. This would result in more benefits along the lines suggested above - reducing the risk of unsympathetic judges giving unwarranted ammunition to critics, increasing skepticism among publics and perhaps even impeding the flow of funding. On the other hand, if the science is a clear as it seems to be, then CERN has little to fear from a genuinely independent and impartial scrutiny by a single international body of the ways in which that consensus has come about .

Unless, of course, the tribunal is as unnerved as I am by the Death Star thing...

*** POSTSCRIPT***

My wife, who has much more practical experience with the mysterious functionings of IOs than I do, has pointed out that most privileges and immunities protocols also make specific provision for the settlement of private disputes. I went back to the CERN Protocol, and sure enough:

ARTICLE 16

Disputes of a private nature

1. The Organization shall make provision for appropriate modes of settlement of:

a) disputes arising from contracts to which the Organization is a party;

the Organization shall include, in all written contracts into which it enters, other than those referred to in paragraph 1 d) of this Article, an arbitration clause under which any disputes arising out of the interpretation or execution of the contract shall, at the request of either party, be submitted to arbitration or, if so agreed by the parties, to another appropriate mode of settlement;

b) disputes arising out of damages caused by the Organization or involving any other non-contractual liability of the Organization;

c) disputes involving an official of the Organization who enjoys immunity from legal process, if such immunity has not been waived in accordance with the provisions of Article 5 of this Protocol;

d) disputes arising between the Organization and its officials;

the Organization shall submit all disputes arising from the application and interpretation of contracts concluded with officials of the Organization on the basis of the Staff Rules and Regulations of the Organization to the jurisdiction of the International Labour Organization Administrative Tribunal (ILOAT) or to any other appropriate international administrative tribunal to the jurisdiction of which the Organization is submitted following a decision by the Council.

2. For disputes for which no particular mode of settlement is specified in paragraph 1 of this Article, the Organization may resort to any mode of settlement it deems appropriate, in particular to arbitration or to referral to a national tribunal.

3. Any mode of settlement selected under this Article shall be based on the principles of due process of law, with a view to the timely, fair, impartial and binding settlement of the dispute.

Make of that what you will. On one hand, it seems to create a massive amount of wiggle-room for the Organization, in particular in relation to non-contractual damages and liability, where it doesn't even refer necessarily to third-party or judicial dispute settlement, but only what the Organization deems appropriate. On the other hand, it does seem to create some obligations, particular to settle disputes in a manner "based on the principles of due process of law"; it is certainly arguable that the "dispute settlement" measures taken by CERN to date - the commissioning of independent reports on the safety of the LHC - does not fulfil this. Of course, how one (and, indeed, who) might go about enforcing such an "obligation" in the face of CERN's recalcitrance remains an open question.

Here, incidentally, is CERN's own take on its own immunities, why they are there, how they came about, and what the new Protocol obliges them to do in terms of dispute settlement. Worth a read.

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.

NYU Panel Discussion on the Kadi judgment

What follows is an abridged account of a 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. As I didn’t obtain advance permission to publish comments beforehand, here I have, for the moment at least, made available an abridged and unattributed version of some of the key points of what was a wide-ranging and high quality set of exchanges. I have added some brief thoughts of my own at various points – these are in italics. For an 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.

Discussions were opened with the observation that the Kadi judgment represented the “Texasization” of the European Union in its relations to the international law (a reference, of course, to the SCOTUS judgment in Medellin v. Texas). Secondly, it was noted that the ECJ had left itself considerable room for manoeuvre its decision, by allowing the Regulation to stay in effect for three months while the rights violations were corrected, and by mooting the possibility that new procedures at the Security Council could lead to a more deferential approach.

This speaker underlined the importance of the Security Council’s role, and the need for secrecy in the process, while acknowledging that the Council had, to date, got the security/rights balance badly wrong. He concluded with a proposal – presently being seriously considered by US authorities – focusing 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. The country seeking the listing of an individual or organization would 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. Given that, in, for example, extradition cases, a finding of probable cause by one legitimate authority is usually accepted by others without the need for further investigation, this speaker hoped that such a system might “pass muster” before the ECJ even in terms of providing effective review of the action taken.

A couple of interesting points arise from this contribution from a GAL perspective. Firstly, it underlines just how diverging the lenses of public international law and global administrative law can be. When viewed from the former perspective, the Kadi case does indeed resemble Medellin, with a domestic constitutional court refusing to apply international law over conflicting national constitutional standards. However, from the standpoint of global administrative law, the two cases appear as opposites: in Medellin, a domestic court refused to apply the administrative law standards contained in an international treaty (the requirement to offer consular protection to those accused of crimes); in Kadi, the “domestic” court insisted upon the application of internationally recognized administrative law standards that had been ignored by the international lawmaker. In terms of global administrative law as requiring mutual recognition of certain requirements of “publicness” in administrative action, then, it is clear that the ECJ and the SCOTUS adopted quite different positions.

Secondly, it is of real interest to hear – from a leading scholar – that the US authorities are already seriously considering their options for ensuring that the listing procedure respects fundamental rights – a situation that would have been unthinkable without the ECJ’s intervention. Of course, it remains to be seen what, if anything, they come up with (and just how stringent any future review by the ECJ will in fact be), but for the time being, we have a dramatic example of the dynamism of the “bottom up” approach to GAL in action.

The second speaker drew attention to the use of strong constitutional language by the ECJ, and in particular para. 285, which states that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”. He suggested that what we have witnessed is further evidence of the maturing of the European State, and identified four sets of potential consequences:

1) There was a real risk that it would weaken international law, undermining its coherence and favouring instead increased fragmentation. However, 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.
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.
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.

Although interesting, and in many respects persuasive, I can’t help but wonder about the premise that drives at least some of the projected implications. I’m not at all convinced that it is helpful to simply assume that the ECJ’s strong – yet nuanced – affirmation of Europe’s autonomous, constitutional legal order is in any way “proof” of it emerging as a sovereign State. Of course, it might still move in that direction, but my feeling is that this does not represent a radical departure from previous judgments (indeed, the ECJ noted that it had already reviewed a Community measure implementing a Security Council resolution in an earlier – if less dramatic – case).

The next contribution argued that the Kadi judgment cannot be easily categorized either as fundamentally monist or dualist in character. 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 – 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. The judgment does contain elements of a very statist approach, but these are immediately attenuated by language that recognizes the role of the Security Council, and the need to take “special consideration” of its views.

Secondly, this commentator noted some of the institutional/political reasons for the Court acting as it had: the ECJ has thus 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 that had been introduced domestically – but, in most circumstances, actions of Community institutions are not subject to judicial review by national constitutional courts. Moreover, 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 its judgment. The Kadi decision, then, serves to protect the ECJ’s authority within the European regional framework.

This was, to my mind at least, an excellent analysis of the judgment, and one that influenced my own reading in my earlier post. Its central idea – of a “third way” between monism and dualism, characterised by a dialogical, open and accommodating pluralism, again captures for me one of the basic advantages that a global administrative law perspective can bring: by insisting on certain requirements of publicness, agreed upon internationally, but at the same time situating these in their wider institutional and substantive context, the ECJ in effect proposed the use of GAL as a language for mediating and defusing conflict between itself and the Security Council. Again, the difference between the perspective of GAL and that of traditional public international law – or why Kadi isn’t (or needn’t be) Medellin – is brought out quite strongly in this contribution.

The next speaker 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, suggesting that this may well lead to changes in the US-led listing procedures. Another speaker then suggested that the ECJ could have followed an alternative path to its result, using principles of clear statement used by the U.S. 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.

This last suggestion was picked up by the next speaker, who 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 cited 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.

Another speaker reaffirmed this point, arguing that the ECJ is thus careful not to state that there is a direct conflict between the requirements of international law and those of the European human rights regime in this case. He suggested that the UK House of Lords reached a similar decision in its judgment 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. (This speaker also suggested that certain paragraphs of the judgment could be read as implying a doctrine of ultra vires applicable to Security Council actions; others, however, disagreed, arguing that there was little in the judgment to support such a controversial position, and a number of passages that worked against it).

The next speaker read from an old English case, Cooper v. The Board of Works for the Wandsworth District (1893), in which the Court held 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 Court recalled an even older case, in which it was pointed out that even God had given Adam a hearing before casting him out of the Garden of Eden (“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.

These “hermeneutic” solutions fit well into the older categories of national and international law, and there is little need or possibility to re-conceive of them in GAL terms. However, they ultimately only postpone, rather than solve, the issue of conflict, particularly should the Security Council move on to institute a procedure that the ECJ still finds insufficient…

The last speaker, 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.

As a number of others pointed out, the ECJ itself is absolutely silent on this proposition; and given its thoroughly radical potential (as I noted in my post on the Advocate General’s opinion), it would seem excessive to interpret this silence as anything other than rejection on the part of the Court of this suggested doctrine. In remaining silent, however, it has left open the possibility of a challenge along these lines at some point in the future. However, such would, one suspects, be the proverbial “long shot”…