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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 - PowerPoint PPT Presentation
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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, 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