Post-Kadi progress within the EU?

The second post that I wanted to flag today from over at the EJIL:Talk! blog is an excellent round-up and analysis of post-Kadi developments by Devika Howell: 'A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi'. The author discusses Kadi's new appeal, the Kadi case as precedent in the Othman judgment, and the proposal by the European Commission, on the 22nd of April 2009, for a new Council regulation.

Howell is more positive on the transformative potential last of these than I am at present. On one hand, she is correct in noting that

The proposed regulation provides for ‘a listing procedure ensuring that the fundamental rights of defence and in particular the right to be heard are respected’ in the case of all individuals and entities listed by the UN. The proposed regulation would replace the current system of automatic listing with a duty upon the Commission to consider the appropriateness of the listing independently. It also provides for a method by which to consider classified information of the UN and other member states. Due in large part to the failure of the Security Council to provide satisfactory due process protections, this proposed measure threatens to take decision-making about sanctions out of the hands of the Security Council and into the hands of a regional body.

On the other hand, however, as I have already blogged previously, the proposed regulation is little if anything more than a general formalisation of the - fairly paltry - concessions made to the individuals concerned in the light of the Kadi judgment: a short statement of reasons, an opportunity to make representations, and a promise to take these into consideration. As before, the really interesting question is whether or not the ECJ will view these as significant enough changes to fulfil human rights obligations; as it stands, I feel it is not a massively important adjustment.

GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

Abdelrazik v. Canadian Minister of Foreign Affairs: A Challenge to the Security Council's 1267 Regime?

The first of two quick posts today to flag some interesting and (relatively) recent posts (yeah, I've been on holiday...) over at EJIL:Talk!, both dealing in some way with the Kadi judgment and subsequent reactions to the UN' s sanctions listing mechanism. The first post that I want to discuss briefly is by Antonios Tzanakopoulos, and discusses a recent judgment from a Canadian Federal Court - Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada - which involved a claim by a Canadian/Sudanese citizen, trapped at the Canadian Embassy in Sudan, that Canada had violated his Charter right to return to Canadian soil. The interesting part for our purposes here is that Abdelrazik has been listed by the Security Council's 1267 Committee, and as such – Canada argued – he could not be allowed to return to Canada without violating the travel ban.

Tzanakopoulos' post, entitled 'An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation', gives a full account of the factual background to the case, and the legal arguments raised. In my view, however, he reads too much into it in suggesting that this is in any real sense a challenge to the Security Council's sanctions regime (although there is some dicta that makes the judge's distaste for that regime plain), or that it somehow 'goes further' than did the ECJ in Kadi. Two quick points in this regard.

Firstly, Tzanakopoulos argues that 'In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law'. Certainly, the judge did state openly, after listing the now/familiar problems with the UN system, that 'I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights (para. 51), and that 'is frightening to learn that a citizen of this or any other country might find himself on the 1267 Committee list, based only on suspicion' (para. 54). These strong statements, however, and the many others like them, are all in the 'legal background' section of the judgment; I could find little to suggest that they were more than obiter dicta, forming part of the actual substantive basis of the judgment other than a passage that notes that 'in light of these shortcomings, it is disingenuous of the respondents to submit, as they did, that if he is wrongly listed the remedy is for Mr. Abdelrazik to apply to the 1267 Committee for de-listing and not to engage this Court' – para 53). In that sense, this judgment is nothing like as important an indictment of the procedural deficiencies of the listing mechanism as was Kadi.

Tzanakopoulos seems to acknowledge this, arguing instead that these statements indicate the 'underlying rationale' of the judgment: the 'international ilegality of the 1267 regime'. Again, however, I find this to be overreaching somewhat. While there is no doubt of the judge's disdain for the sanctions regime, it is equally clear that he was at pains to point out that compelling Canada to return Abdelrazik would not in fact violate the Security Council Resolutions in question. Far from mounting a legal challenge to the 1267 regime then, the judge in effect reaffirmed it (even if through gritted teeth), and simply dismissed a pretty flimsy Canadian attempt to use the travel ban to circumvent its domestic constitutional obligations.

Canada had argued that it was the Security Council listing, not Canada itself, that had prevented Abdelrazik's return, as Canada was bound by the Security Council Resolutions in question. In response to this, the judge simply noted that

The UN 1267 travel ban provides that States shall “prevent the entry into or transit through their territories” of listed individuals, “provided that nothing in this paragraph shall oblige any State to deny entry into or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified.” (para. 121)

In response to Canada's argument that to get him back onto Canadian soil from Sudan he would have to transit through the airspace ('territory') of a number of other States, thus violating the travel ban, the judge first noted that such an interpretation of the Resolution ran contrary to that previously expressed by Canada itself; and that, in any event,

...the respondents’ interpretation of the 1267 travel ban leads to a nonsensical result. According to their interpretation, the Resolution permits a citizen to enter Canada if and only if he happens to be standing at the Canadian border crossing, but it prevents that same citizen from reaching that border crossing as he cannot transit over land or through air to reach it. On the respondents’ interpretation the exemption that provides that no State is obliged to prevent its citizens from entry becomes meaningless as there is virtually no possibility that a listed person will be located at a border crossing and there is no possibility under current technology that he will be able to simply transport himself to the border crossing without transiting over land or through the air. Quite simply that could not have been the intention of the drafters of the Resolution. (para. 127).

As I said, this is more a reaffirmation of the primacy of the Security Council resolutions – procedural warts and all – than any sort of challenge to them. Moreover, it is achieved not through any interpretative gymnastics, but rather on an entirelyreasonable and persuasive reading of the text in question. An interesting case then, and Tzanakopoulos' post is worth reading in full; but Kadi it ain't.

Some thought on E-GAL, Edinburgh 2009

Next things next, a brief account and a few reflections on the E-GAL event in Edinburgh on Tuesday the 17th of June. It was, as I suspected it would be, a huge pleasure to be involved in this event, not least of all because it was the first time since I returned to Edinburgh University in an official(ish) capacity since graduating almost ten years ago. More importantly, I think I am correct in saying that this is the first global administrative law event in whose organization neither NYU nor the IRPA in Rome played any role whatsoever. GAL has, of course, had to date some fairly serious institutional backing from some fairly serious institutions, and there can be no doubt that this has played a major role in its increasing prominence; however, if it is really to establish itself as a genuine field of research and study, the ideas and framework it proposes must stand or fall on their own, entirely independently of its initial institutional backers. Events such as these are a crucial next step in testing whether this is in fact possible.

And if this event is anything to go by, it is indeed possible. The organizers (Kasez Lowe, Pierre Harcourt and Danielle Rached) did a first class job of selecting the abstracts for presentation, and of inviting a good mix of those with some experience of the GAL field on one hand and those largely new to it on the other. Amongst the presentations, for example, were (excellent) contributions by Matthias Goldmann and Tiago Fidalgo de Freitas, both of whom have been involved in the GAL project for longer than I have; and, amongst professorial contributors, having the continued, challenging input of Neil Walker (who, incidentally, has a provocative new paper on postnational constitutionalism up on SSRN) was, as always, a real plus; unfortunately, Professor Janet MacLean from Dundee – another who was contributing to the GAL literature prior to my own involvement – had to pull out at the last minute due to illness. Hope she got well soon.

Many of the contributors, however, had no prior knowledge of the GAL project, and were weighing its usefulness as a frame of analysis within their own fields. It is here that GAL – if it is to flourish – must provide real traction. The various contributions provided, in my view at least, real grounds for optimism in this regard. It was also of real interest to have the input of Professor Alan Miller, Chair of the Scottish Commission for Human Rights; he sounded both interested in and cautious about the potential for GAL to drive progressive developments in his own field.

The abstracts of all of the papers are available here; for ease of reference, here is a list of the titles of presentations given:

Unpacking the "Concept" of "Global Administrative Law": Some Reflections on Form, Substance and Pedigree by Nuhaila Carmouche, European University Institute.

The Challenge of Global Governance to the Concept of International Law: Refurbishing Legal Positivism by Matthias Goldmann, Max Planck Institute.

The Added Value of Global Administrative Law by Tiago Fidalgo de Freitas, European University Institute.

The Dilemma of the People and Pluralist Approach in the Global Perspective by Younsik Kim, University of Edinburgh.

GAL, Investment Law and Equality by Jarrod Hepburn, Oxford University.

The Protection of Cultural Heritage: Between the European Legal Order and the Global One by Carmen Vitale, University of Bologna.

Good Governance and Electric Sector Reform in Nigeria: A Critique from a Human Rights Perspective by Oche Onazi, University of Edinburgh.

Weak Judicial Review: Lessons for Global Administrative Law? by Aruna Sathanapally, Oxford University.

If I was to make one minor critical comment about the event, it was that these abstracts, and not fully fledged papers, were all that was circulated in advance; I always find it difficult, under these circumstances, to engage fully and in detail with the arguments being made – particularly when they are as advanced and as complex as they were here – and that the actual “conferring” suffers as a result. In the event, the quality of the papers and the presentations went some considerable distance to offsetting this problem; however, there is to my mind ultimately no substitute for the possibility to read the substance of the arguments to be made in detail in advance.

A quick recap of what seemed to me some of the major points, in conclusion. Professor Alan Boyle (who I think could fairly be described as a traditional-European-international-lawyer-and-GAL-sceptic) raised the issue of what he called GAL’s “lack of focus”, and suggested that this was one of the major obstacles to it achieving more widespread adherence. By this, I think he intended the fact – to which I alluded in my previous post on Viterbo – that GAL can sometimes appear (indeed, be presented) as all things to all people; as a simple catch-all under which all global governance can be subsumed, and which consequently lacks in analytical clarity and bite. There is something of a fine line that must be tread in this regard; one one hand, I can but agree: those writing in the field of GAL must have a clear idea of what the “added value” of this framework is, and not allow it simply to become a placeholder for “global governance” (Tiago’s paper did examine precisely this issue of added value, but did so with reference to the global constitutionalist and international public authority projects; it did not discuss the other side / the added value of GAL as opposed to simply “governance”). On the other hand, there has been a real effort within the GAL project – and rightly so in my view – not to be too proprietorial about the definitions of the field, in order that it might be informed by as many different perspectives as there are national administrative laws. This balance has not yet been ideally struck.

Another theme that emerged from discussions, related to the above, was the difference between the “US” and the “European” conceptions of global administrative law (as an aside, an interesting point about the sociology of GAL: the project seems to be mostly popular with international lawyers in the US, and with administrative lawyers in Europe, where most international lawyers remain skeptical. This can be seen even in the two major institutional backers of the GAL project: the Institute for International Law and Justice at NYU and the Institute for Research on Public Administration in Rome). A useful distinction was introduced in a working paper by David Dyzenhaus to encapsulate this: administrative law can, he argued, be either “constitutive” (i.e. the actual rules establishing administrative bodies, delineating powers within them, etc.), “procedural” (i.e. the rules by which these bodies operate) or “substantive” (i.e. the norms, regulations and decisions that they actually produce). The US vision of GAL is limited fairly strictly to the second, procedural form (mirroring largely the limitations on the discipline of administrative law within the US academy); the European version, on the other hand, explicitly includes at least the first two elements, and often also the third (in Sabino Cassese’s work, for example, there is often a degree of slippage between the terms “global administrative law” and simply “global law” – indeed, I on occasion have the impression that for him these two terms are largely interchangeable). The extent to which these need to be reconciled before GAL can become a discrete “field” of study is, of course, an open question.

A third theme, and one that I addressed in my own paper, and was picked up by Tiago and Neil Walker, was that of the relationship between GAL and “global” constitutionalism. Neil insisted – I think probably correctly – that a legitimate GAL can ultimately not afford to ignore the issue of the “constitutive moment” of the bodies that it seeks to regulate; and – again, probably correctly – that there is no need to think of GAL and constitutionalism as in competition (I would agree entirely on this point, despite the manner in which I sometimes present the issues: I would, however, insist that GAL and global constitutionalism are different and not necessarily complementary projects, and that the image of community ultimately implied in the latter need not inform the former). A general level of agreement was, I think, reached on the idea that while any future global constitutionalism would need a global administrative law, the inverse did not hold; and that there was no need to view GAL as in any way opposed to the deployment of constitutional discourse in particular postnational regimes.

Other key themes touched upon in the presentations and in the discussion was that of the concept of “law” that informs GAL (Nuhaile Carmouche did a good job of critically mapping the various contenders, while Matthias made a strong argument in favour of using a “refurbished” notion of legal positivism); the various ways in which GAL might – and might not – contribute to the increasing legitimacy of global regulatory governance; and of the need for GAL to actually result in tangible improvements in concrete cases if practitioners are going to take it at all seriously (Alan Miller’s contribution was particularly illuminating on this point).

Unfortunately, memory dictates that I will have to stop at that point, which even I find entirely unsatisfactory given the amount of rich discussion that this brief recollection has omitted – particularly in terms of the more concrete papers (relating to investment arbitration, cultural heritage, etc; Jared Hepburn, for example, made an intriguing argument as to the interaction between the global and domestic levels in the interpretation of “fair and equitable treatment” in investment disputes). In any event, congratulations to the organisers on putting together a first-rate symposium; and I very much hope to get a chance to read the assorted presentations in more detail in the not-too-distant future. Again, if anyone present wants to add to or correct this account, please do leave a comment below!

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.

More on the UN sanctions listing mechanism: The Sayadi case before the Human Rights Committee

Did I say that last week would be busier on here? This week. I meant this week. Now, to get the ball rolling, a quick link to a subject that I have been meaning to post on for months: the Sayadi case before the Human Rights Committee (hat tip to Marko Milanovic over at EJIL:Talk!). It is not a massively important issue, and there isn't a huge amount of GAL in it, but it should provide an interesting footnote for those interested in the issues that arose in the Kadi judgment, and the Security Council's sanctions listing mechanism more generally. The text of the decision is available via the PHD Studies in Human Rights blog.

The case involved the listing of certain Belgian nationals on the basis of information provided to the Committee by the Belgian Government. The individuals involved challenged their listing before the Belgian Courts, who, interestingly, ordered that the Belgian Government "urgently initiate a de-listing procedure with the United Nations Sanctions Committee and to provide the petitioners with proof thereof, under penalty of a daily fine of €250 for delay in performance". The Belgian Government requested delisting, but at the time of the Communication to the HRC, this had been unsucessful. The Belgian courts also, incidentally, cleared the individuals involved of guilt in any alleged criminal activities.

The HRC was thus compelled to consider the relation between the ICCPR and the UN Charter, and Security Council resolutions in particular. It did so in the following passage, reminiscent at least in part of the ECJ's Kadi decision:

Although the parties have not invoked article 46 of the Covenant, in view of the particular circumstances of the case the Committee decided to consider the relevance of article 46. The Committee recalls that article 46 states that nothing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations. However, it considers that there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the Charter of the United Nations. The case concerns the compatibility with the Covenant of national measures taken by the State party in implementation of a Security Council resolution. Consequently, the Committee finds that article 46 is not relevant in this case.

Most striking here, however, is that there is no mention of Article 103 of the UN Charter, which of course establishes the supremacy of UN obligations over all others. Indeed, although Belgium raises art. 103 in its own submissions, the HRC seems to ignore it entirely (although it does arise frequently in the dissenting opinions appended to the decision).

The complainants alleged the violation of a raft of ICCPR provisions, including the right to an effective remedy, the right to travel freely, the right not to be subject to unlawful attacks on their honour and reputation, the principle of legality of penalties, respect for the presumption of innocence and the right to proceedings that afford procedural and structural guarantees (para. 10.4). Of these, the HRC foudn a violation of the right to travel freely and the right not to be subject to unlawful attacks on reputation.

The reasoning behind this is intruiging, although perhaps, as Milanovic notes, more for its odd rather than its compelling nature. In the case of the right to travel freely, the Committee noted that Article 12 could be restricted for certain purposes, amongst which was certainly compliance with UNSC resolutions; but that it retained nevertheless the right to "to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council" (para. 10.6). It then held, in a passage worht quoting at a little length,

The Committee notes that the obligation to comply with the Security Council decisions adopted under Chapter VII of the Charter may constitute a "restriction covered by article 12, paragraph 3, which is necessary to protect national security or public order. It recalls, however, that the travel ban results from the fact that the State party first transmitted the authors’ names to the Sanctions Committee. The proposal for the listing, made by the State party on 19 November 2002, came only a few weeks after the opening of the investigation on 3 September 2002. According to the authors, this listing appears to have been premature and unjustified. On this point, the Committee notes the State party’s argument that the authors’ association is the European branch of the Global Relief Foundation, which was placed on the sanctions list on 22 October 2002, and the listing mentions the links of the Foundation with its European branches, including the authors’ association. The State party has furthermore argued that, when a charitable organization is mentioned in the list, the main persons connected with that body must also be listed, and this has been confirmed by the Sanctions Committee. The Committee finds that the State party’s arguments are not determinative, particularly in view of the fact that other States have not transmitted the names of other employees of the same charitable organization to the Sanctions Committee (see paragraph 9.2 above). It also notes that the authors’ names were transmitted to the Sanctions Committee even before the authors could be heard. In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban (para. 10.7).

The Committee then held (para. 10.8) that the fact that Belgian courts had dismissed the criminal case against the complainants, and that Belgium had requested de-listing from the Sanctions Committee, meant that these resolutions could no longer be viewed as a legitimate grounds for restricting freedom under Article 12(3) of the ICCPR, as "the facts, taken together, do not disclose that the restrictions of the authors’ rights to leave the country were necessary to protect national security or public order". A similar argument was used to support the finding that Belgium was responsible for an unlawful attack on the honour or reputation of the individuals involved (para. 10.13).

Here, the Committee seems to have argued that the internationally wrongful act of the Belgian Government under the ICCPR was not the implementation of the Security Council Resolution itself, but rather the act of communicating the individuals' names to the Sanctions Committee without sufficient evidence to do so, and without giving them the right to be heard. Over at ESIL:Talk, Milanovic is dismissive of this claim ("[t]his is not reasoning, not even result oriented jurisprudence – this is simply the Human Rights Committee’s wishful thinking"). I'm not entirely sure that it can be dismissed so easily - I see no a priori reason why an act of a State in initiating a process without sufficient grounds to do so should not be wrongful, particularly where that process both denies the basic human rights of the accused and is irreversible by the initiating State alone - but the fact it is the UN Security Council acting under Chapter VII certainly complicates matters. Indeed, this may be the key point, if the HRC's decision relies on the implication that the UN procedure violates human rights, as this in turn implies a power to review Security Council proceedings - a possibility that the Committee did not entertain here. Milanovic is thus undeniably correct that the decision would have benefitted massively from addressing this point in general, and the Article 103 problem in particular, at massively greater length than it did.

The HRC ordered that Belgium do everything in its power to secure de-listing, and pay compensation to the complainants (para. 12). To end on a miscellaneous point of interest, the HRC rejected the complainants' claim that the action taken by Belgium represented a criminal charge or punishment under Article 14 of the ICCPR (para. 10.11).

New periodical: Journal of International Peacekeeping

The first issue of the Journal of International Peacekeeping has just been published, and the full text of all the articles are available online.

The Journal of International Peacekeeping is devoted to reporting upon and analyzing international peacekeeping with an emphasis upon legal and policy issues, but is not limited to these issues. Topics include inter alia peacekeeping, peace, war, conflict resolution, diplomacy, international law, international security, humanitarian relief, humanitarian law, and terrorism. The journal is of scholarly quality but is not narrowly theoretical. It provides the interested public - diplomats, civil servants, politicians, the military, academics, journalists, and NGO employees - with an up-to-date source of information on peacekeeping, enabling them to keep abreast of the most important developments in the field. Peacekeeping is treated in a pragmatic light, seen as a form of international military cooperation for the preservation or restoration of international peace and security. Attention is focused not only on UN peacekeeping operations, but other missions as well.

The Journal of International Peacekeeping is the continuation of the journal and yearbook International Peacekeeping, founded in 1994.

Of course, from our perspective, the most interesting issues relate to the accountability of international organizations (and perhaps of private military companies) for the actions of their peacekeepers, whether taken out in furtherence of their mandate, or in blatant abuse of their position. This is a range of topics on which I have blogged a couple of times before. I've only had time for a quick look, but there are a range of articles in the first volume of the Journal of International Peacekeeping that are of interest (and will have to be added to the GAL Bbiliography): One on the role of the UN in promoting the rule of law in post-conflict societies; on the ECtHR's Behrami decision; another on the House of Lords' Al Jedda judgment; and another on the immunity of the UN over Srebrenica before a Dutch court. There are also some relevant reviews of books on UN peacekeeping in Lebanon, Somalia and Kosovo, legal implications of peacekeeping, on international territorial administration, and on the "unintended consequences" of peacekeeping missions.

That's a lot of GAL for the first issue of a journal. Definitely one worth keeping an eye on...

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.

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...

UNHCR overstepping its mandate at the World Economic Forum?

... Unless, of course, it has a mandate for sponsoring crass, if well intentioned, activities.

Which it probably does. We can only assume that last year's promotion - "Experience Darfur!" - in Trafalgar Square, London, was a roaring success. That, at least, was not billed as a VIP-only event...

International organizations and mandate issues: controversy over the WHO's Right to Health "fact sheet"

One of the key roles of "global administrative bodies" - one of the clearest ways in which, we argue, they are exercising identifiably public power - is in the contribution that they make to normative development, most often through the drafting and promulgation of "soft" law standards that harden either through becoming accepted practice over time, or by being relied upon as authoritative by a different treaty regimes or tribunals. Another method - perhaps less common, but certainly not unimportant - is when certain international organizations issue putatively authoritative interpretations (for example, the General Comments of the old Human Rights Committee) or statements of what current international law on a given right or subject actually is.

In June 2008, the World Health Organization, in conjunction with the Office for the High Commission for Human Rights, published its "Fact Sheet 31" on the Right to Health, which purports

... to shed light on the right to health in international human rights law as it currently stands, amidst the plethora of initiatives and proposals as to what the right to health may or should be. Consequently, it does not purport to provide an exhaustive list of relevant issues or toidentify specific standards in relation to them.

Emphatically not, then, to be read as a hopeful expression of de lege ferenda, the document in question is the official position of the WHO and the OHCHR on the lex lata of the human right to health, binding on all States as a matter of general international law. This, of course, is suggested strongly by the title - somewhat odd, in my view - of "fact sheet" for an overtly normative endeavour. The document makes a number of strikingly strong claims for what the current status and content of this right actually currently is:

The right to health contains entitlements. These entitlements include:

- The right to a system of health protection providing equality of opportunity for everyone to enjoy the highest attainable level of health;
- The right to prevention, treatment and control of diseases;
- Access to essential medicines;
- Maternal, child and reproductive health;
- Equal and timely access to basic health services;
- The provision of health-related education and information;
- Participation of the population in health-related decision-making at the national and community levels.

(Eagle-eyed readers will, of course, have spotted the "distributed administration" GAL provision in the above excerpt - the suggested requirement that governments allow public participation in health-related decision-making domestically...).

A further important indicator of the public nature of the action taken here by the WHO/OHCHR is in their view of the role of the treaty monitoring bodies established to oversee the implementation of the various international human rights treaties. Consider the following passage:

...the treaty bodies that monitor the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child have adopted general comments or general recommendations on the right to health and health-related issues. These provide an authoritative and detailed interpretation of the provisions found in the treaties.

This claim is particularly significant in this context because many of the assertions of the Fact Sheet are based to a large degree on General Comment 14 of the Committee on Economic, Social and Cultural Rights. The WHO/OHCHR have thus, with this document, sought to issue a putatively authoritative account of the current status and content of the - notoriously hard to pin down - international human right to health.

From the Global Governance Watch site we learn that - perhaps unsurprisingly, given its continuing reluctance to become a party to the ICESCR, one of the three major pillars of the so-called International Bill of Rights - the US has recently (October 15, 2008) issued a set of official Observations on Fact Sheet 31, and called for the document to be rescinded. Despite what Gobal Governance Watch suggests, however, the US Observations are not explicitly formulated as an allegation that the WHO has acted ultra vires, beyond its mandate in purporting to issue an authoritative statement of "fact" on the right to health (incidentally, here is an earlier critical piece at the same site criticising the Fact sheet on precisely those grounds - not surprising, then, that they chose to read it in this manner); perhaps to do so would have risked suggesting that the document is of greater potential significance than the US at present wants to acknowledge. It contents itself, therefore, with the accusation that the fact sheet is misleading and wrong, with the occasional hint at mala fides on the part of the WHO/OHCHR:

3. As a general matter, the United States observes that the "Fact Sheet" is, in spite of its name, replete with unwarranted legal conclusions and opinions. The United States considers it misleading to sryle such a document as a "fact sheet", which conveys an impression to readers that the document contains factual information not reasonably open to doubt. Instead, the document contains sweeping and far reaching conclusions relating to the "right to health" and the associated obligations of States.
...
16. General comments and other documents issued by treaty monitoring bodies express the opinions of individuals acting in their expert capacities; such documents are not the results of deliberations among States. While the views of treaty monitoring bodies are entitled to respect and should be considered carefully by States Parties, they do not create legal obligations or "requirements".
...
18. Furthermore, the pronouncements of treaty monitoring bodies are directed only to the States Parties of the relevant treaty. The authors of the "fact sheet", perhaps inadvertently, repeatedly characterize the statements of the treaty bodies as applying to "States", regardless of whether a particular State has ratified the relevant treaty.

Although the claim that WHP/OHCHR have acted beyond their mandates is not explicitly formulated (the claim here rather seems to be "they have got it wrong"), it does seem to be implied throughout the US observations - that the WHO/OHCHR have no right to issue a document presenting controversial claims as settled fact (although it is certainly worth noting that the US does not assert that the Organizations have no right to issue such documents in general). The key question from a GAL perspective is, of course, What can the US do to ensure that these Organizations are held accountable for remaining within their mandates? To whom can their grievance be addressed? Thus far, all we know is that they have requested that the fact sheet be rescinded. I had a look on the websites of both the WHO and the OHCHR, but there was nothing I could find on either that shed light on what, if any, procedures were currently underway. I was unable to find the Fact Sheet on the WHO site (although I did find an earlier, shorter version from August 2007, helpfully filed under "T" for "The Right to Health"). Fact Sheet 31 is, however, available at the OHCHR's site, along with the interesting information that Fact Sheets Nos. 1, 8 and 15 are "no longer issued". It will be interesting to see whether No. 31 is similarly disappeared at some point in the next few months...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.