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, Solange doctrine)

• Incompatibility with a general norm (human rights, general international law) (European CFI in Kadi)

3. Who Reviews Whom?

Mapping of the potential reviewers:

a) Internal review: Within the IO

b) Inter-IO review (“peer review”)

c) 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