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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

That, I think, is quite clearly fighting talk.

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.

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.

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...

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

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

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

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

…

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

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

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...

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 UN Ethics Office and administrative law

To get things rolling in 2009, a quick link to an interesting article in the Wall Street Journal on recent UN efforts to curb internal misconduct and corruption, including allegations of retaliation against legitimate whistleblowers. The article is generally negative in tone (a subsequent letter to the editor provides a brief corrective). It discusses, amongst other things, the relatively recent establishment of a New-York based UN Ethics Office, led by Robert Benson:

Canadian attorney Robert Benson says that when he arrived at the U.N. in May 2007 he assumed that his New York-based Ethics Office had jurisdiction over the entire organization. But he soon learned it only oversaw the U.N. Secretariat - the U.N.'s main administrative body. Assorted agencies and funds opted to set up their own ethics bureaus.

"I wasn't a student of the United Nations," said Mr. Benson in an interview. "Would it be better to have one office? Absolutely."

The UN says it has no immediate plans to consolidate the various ethics bureaus, but it is finalizing one set of ethical standards to be followed by all its agencies...

The UN... set up Mr. Benson's office to foster "a culture of ethics, transparency and accountability."

The link between administrative law and professional ethics is made absolutely clear in the final sentence. One key question that arises here, however, is the extent to which the unified "ethical standards" that the Ethics Office is elaborating are to have legal force. While it is unlikely that they will themselves be formally binding (as the use of "standards" terminology suggests), it does seem likely that they will be intended to aid interpretation of terms such as "misconduct" in the course of legal proceedings (before, for example, the new UN Disputes and/or Appeals Tribunals). As with so many international standards, then, it would be entirely misleading to assume that because they are formally non-binding they are thus deprived of all legal force or significance.

The Ethics Office thus seems to be one of those hybrid bodies that are increasingly common within global administration: not only is it to function as an administrative body in its own right (through, e.g., the development of standards and other administrative activities) but also as an accountability mechanism, through its general oversight role over the actions of UN officials, and of those of the disparate Ethics Committees. The Terms of Reference of the Ethics Office make this dual function clear:

3.1 The main responsibilities of the Ethics Office are as follows:

1. Administering the Organization’s financial disclosure programme;
2. Undertaking the responsibilities assigned to it under the Organization’s policy for the protection of staff against retaliation for reporting misconduct and for cooperating with duly authorized audits or investigations;
3. Providing confidential advice and guidance to staff on ethical issues (e.g., conflict of interest), including administering an ethics helpline;
4. Developing standards, training and education on ethics issues, in coordination with the Office of Human Resources Management and other offices as appropriate, including ensuring annual ethics training for all staff;
5. Such other functions as the Secretary-General considers appropriate for the Office.

It will be interesting to watch the development of the Ethics Office (by following, for example, the updates on the excellent Center for UN Reform Education website), and perhaps in particular the content of its unified ethical standards, the extent to which these contain administrative-law type considerations relating to transparency and accountability, and whether and how these standards are relied upon in proceedings before the UNDT and UNAT in the coming months and years. And it is not impossible that such standards could even begin to permeate those organizations outwith the UN system, in particular if they were to be picked up and relied upon by the ILOAT. In the meantime, the Ethics Office's "Whistleblower Protection Policy", in effect since January 2006 can be found here; the financial disclosure statement referred to above is here; and here is the Secretary General's report on the first 6 months of the Office's activities.

** Update ** Pursuant to a comment below by Carlos Ivan Fuentes, pointing out the extent to which the recent changes in the UN system follow the recommendations of the “Report of the Redesign Panel on the United Nations system of administration of justice”, here is a link to the Report itself, and here, courtesy again of the Center for UN Reform Education website, is a summary.

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.