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The International Law of Global Governance. Session 5: Reviewing Global Governance Eyal Benvenisti The Hague 12 July, 2013. The main questions:. 1. Why Review IOs? 2. What are the legal bases for review? 3. Who Reviews Whom ? A t ypology of potential reviewers
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The International Law of Global Governance Session 5: Reviewing Global Governance Eyal Benvenisti The Hague 12 July, 2013
The main questions: 1. Why Review IOs? 2. What are the legal bases for review? 3. Who Reviews Whom? A typology of potential reviewers 4. The standard of review 5. Review of and by private actors
1. Why Review IOs? • Effective judicial review as a human right • Democracy • Effectiveness • Legitimacy • Just, equitable outcomes (Why not? Costs, delay, abuse of review power, “incorrect” outcomes)
2. How: What is the legal basis for review? Three options: • Internal inconsistency with the IO’s own norms (Bustani) • Incompatibility with the reviewer’s norms (domestic constitutional law, private law) (Bosphorous, Behrami, Kadi, Solangedoctrine) • Incompatibility with a general norm (human rights, general international law) (European CFI in Kadi)
3. Who Reviews Whom? Mapping of the potential reviewers: • Internal review: Within the IO • Inter-IO review (“peer review”) • Member states and the IO
a) Within the IO: Internal review • ICJ: The Lockerbie Interim Order (1992): The stunted challenge to UNSC authority • Staff vs. management – the Administrative Tribunals: UNDT, ILOAT, WBAT, etc. • Board-management control – the WBIP
a) Within the IO: Internal review (cont.) • Compliance Advisor/Ombudsman (CAO) – the International Finance Corporation • IOs as territorial administrators: The UN in Kosovo and Haiti: where are the “appropriate modes of settlement” under the Convention on the Privileges and Immunities of the United Nations?
b) Inter-IO review (“peer review”) • Formal Review: • ILOAT • HRC • Indirect Review: • ECtHR reviewing IOs • ECtHR Reviews ECJ (Bosphorous) & UNSC (Behrami) • Council of Europe and WHO • “Silent Review:” Ignoring Incompatible Decisions • WTO Brazil Tires; • ICJ Diallo
b) “Peer review” (Cont.): What limits the potential for peer review? Potential collusion due to • Lack of independence • Lack of interest • Worry about debilitating discord
b) “Peer review” (Cont.): When possible? • when the Reviewing IT is independent of the reviewed (ILO AT) • When it can rely on other actors for compliance (ECJ Kadi, Waite & Kennedy): This is why NC cooperation is critical
c) Review by member states Legislators: Council of Europe vs. WHO Executives: US FDA vs. ICH; EPA vs. Montreal Protocol Courts: • The problem of IO Immunity • Judicial motivations • The problem of collective action: court cooperation as a strategy • Promoting national or also global interests?
4. The proper standard of review What is the appropriate level of review? How to avoid recurring review? • The equivalent protection approach:solange; Waite and Kennedy, Bosphorous • The collaborative approach: deferring to institutional expertise: Kadi IV, Advocate General Bot’s opinion
5. The private dimension a) Review of public IOs by private actors (media, NGOs) b) Review of private GGIs • By national actors • Legislatures: (US and EU legislation disciplining credit ratings agencies) • National courts (e.g., examining arbitration clauses and awards: the Lance Armstrong case)
5. The Private Dimension (cont.) • Review of private GGIs by Public IOs: • Meca Medina: CAS • EU Data Protection hearing of WADA
