Neth Int Law Rev (2017) 64:177–181 DOI 10.1007/s40802-017-0076-3 BOOK REVIEW
D. Hovell, The Power of Process: The Value of Due Process in Security Council Decision-Making Oxford University Press, Oxford 2016, xxi + 193 pp. ISBN 978-0-19-871767-6 Kristen Boon1
Published online: 23 February 2017 T.M.C. Asser Press 2017
In recent years, there has been a considerable focus in legal scholarship on targeted sanctions and the procedures that ought to accompany them within the UN system. Prompted in part by high profile court cases that have challenged the Security Council’s criteria for listing and delisting individuals, and in part by a developing body of literature on administrative law and the relationship between procedural fairness and legitimacy, the evolution of decision-making rules within international public order bodies is a hot topic. Devika Hovell’s engaging and well-written book The Power of Process: The Value of Due Process in Security Council Decision-Making tackles this set of issues and usefully proposes a ‘values-based’ approach. After tracing the evolution of listing, notification and de-listing practices for UN anti-terrorism sanctions, Hovell discusses and develops three different models of due process: the instrumentalist model (emphasizing accuracy in application of substantive law), the dignitarian model (springing from individual interest representation and individual dignity) and the public interest model (extending decision making to the broader public). The argument is extended in a subsequent American Journal of International Law article entitled ‘Due Process in the United Nations’ to propose a global public law, which is then applied to sanctions and the somewhat different situation presented by the Haiti Cholera case.1 The stated aim of the book is to ‘examine the contextual nature of procedural fairness in normatively rich rather than formulaic terms. Underlying the differences in form between procedural fairness frameworks are different ideas as to the process values that a procedural framework can and should support in order to enhance the 1
Hovell (2016a).
& Kristen Boon
[email protected] 1
Seton Hall University School of Law, Newark, NJ, USA
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legitimacy of decision-making’.2 Moreover, Professor Hovell aims to respond to the sense amongst influential members of the international legal order that due process is a ‘restriction’ inflicted upon it rather than a legitimizing mechanism.3 She notes that the current debate about reform has focused on three different mechanisms: (i) a judicial mechanism, such as an internationalized court or a centralized arbitral body within the UN that would have the power to compel delisting; (ii) a pluralist and decentralized court based mechanism, which she notes has evolved organically, with domestic courts rendering significant decisions in cases like Kadi and Nada, and (iii) a non-judicial body within the UN system like the ombudsperson. In her view, these three structural frameworks would advance different process values in the normative models identified above (instrumentalist, dignitarian and public interest).4 In the final analysis, she advocates for an Ombudsperson type model on the theory that it offers the most appropriate response to legitimacy gaps in Security Council decision-making, while taking into account shifts in values consistent with the emerging ‘cosmopolitan constitutionalist’ school of thought.5 Along the way, however, she is critical of attempts at transplant that import procedural and legal safeguards from domestic legal settings without recognizing the sui generis position of the UN Security Council. She particularly dislikes a ‘one-size-fits-all’ adjudicatory model, because in her view context is everything. ‘Different legal contexts legitimately require different procedural standards and operate according to different principles and values’.6 She warns that the transplantation of procedural principles developed in the domestic context raises the danger of distortion when shifted to the Security Council.7 While the limits to analogies between the Security Council and domestic institutions are understandable, the core of the book, which engages with three models of due process, in fact draws heavily on domestic theories about governmental authority.8 Indeed, there is a paradox in Hovell’s sophisticated theorizing about the values behind due process in that on the one hand, she investigates the ideas that have been so heavily debated across legal cultures in domestic contexts while on the other she maintains that the Security Council is sui generis. For the most part, this demonstrates a historical poverty in analysis about the distribution of powers within multilateral institutions like the UN that have increasingly expanded their mandates and impacted the rights of individuals in more and more direct ways.9 Nonetheless, it also demonstrates how the comparisons have value: despite the unique context in which the UN works, we are richer for drawing 2
Hovell (2016b), p. 38.
3
Ibid., at p. 81.
4
The Chart at p. 82 of her book, and p. 47 in her AJIL article ‘Due Process in the United Nations’ lays out the relationship clearly. 5
Hovell (2016b), p. 143.
6
Ibid., at p. 37.
7
Ibid., at p. 52.
8
See ibid., at Part II, Theory.
9
Notable exceptions include Franck (1995), Johnstone (2011) and Fassbender (2006).
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from, questioning, and challenging the historical evolution of domestic decision making in order to understand what is appropriate for the Security Council as a public order body. As its mandate evolves, the implications for individual rights and freedoms are obvious. Her work has produced spirited debate, as evidenced by reactions in the AJIL Unbound symposium10 and in subsequent UN reports which attest to its relevance.11 One reaction was to suggest that the resort to domestic courts has been part of advocacy strategies and contestation in the law that have been productive and spurred the Council and the UN on to act more responsibly.12 Another was to point out that power politics have meant that the decision not to extend due process to other sanctions regimes has less to do with values, as such, and can be attributed instead to deliberate decisions by the P5 to ignore due process.13 Indeed she is content to protect and improve what has already developed within the UN. While the Ombudsperson institution has many merits, it also has shortcomings, which have been extensively detailed elsewhere.14 Moreover it has its opponents: valid proposals to extend the jurisdiction of the Ombudsperson to all sanctions regimes have never gotten off the ground. One of the contributions this book offers is a framework through which the value of due process can be evaluated in the international sphere that will be relevant beyond the sanctions context. One can imagine, for example, how the concept of ‘global public law’ would assist the proposed international investment court, which embraces a public law approach in investor-state dispute settlement.15 Indeed, the desire for reasons, accountability, transparency and legitimacy is one that can be located in multiple fields of law, and the framework proposed herein is valuable to conversations about progressive judicial agendas generally. On the other hand, the proposed due process analysis is not as easily transposed to the Haiti Cholera case as Hovell suggests. Although she asks: ‘what role do we require due process to play in this setting, and which procedural framework is best
10 For three reactions to her article, for example, see the AJIL Unbound Symposium of 22 July 2016, available at: https://www.asil.org/blogs. 11 See e.g., P. Alston, Report of the Special Rapporteur on Extreme Poverty and Human Rights, UN Doc. A/71/40823, 26 August 2016, available at: http://chrgj.org/wp-content/uploads/2016/08/G-A7140823.pdf. 12 A. Tzanakopoulos, ‘Theorizing or Negotiating the Law? A Response to Devika Hovell’, AJIL Unbound, 22 July 2016, https://www.asil.org/blogs/theorizing-or-negotiating-law-response-devikahovell. 13
J. Gordon, ‘Due Process and the Iraq Sanctions: A Response to Devika Hovell’, AJIL Unbound, 22 July 2016, https://www.asil.org/blogs/due-process-and-iraq-sanctions-response-devika-hovell. 14 One helpful overview of the achievements and deficiencies of the office is provided by the former UN Ombudsperson herself, Kimberly Prost. See K. Prost, ‘The Office of the Ombudsperson: A Case for Fair Process’, available at: https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/fair_process.pdf. See also this summary of a debate on working methods of the UN Security Council: https://europeansanctions.com/ 2014/10/28/un-security-council-debates-sanctions-due-process-the-ombudsperson/. 15
S.W. Shill, ‘The European Commission’s Proposal of an ‘‘Investment Court System’’ for TTIP: Stepping Stone or Stumbling Block for Multilateralizing International Investment Law?’, 20 ASIL Insights 9, 22 April 2016, https://www.asil.org/insights/volume/20/issue/9/european-commissionsproposal-investment-court-system-ttip-stepping.
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equipped to achieve it?’16 the legal issues presented in the Haiti case are very different from listing/delisting under UN sanctions regimes, involving instead questions of mass torts, the responsibility of international organizations, the distinction between public and private claims, and the scope of UN immunities.17 Hovell takes issue with both the framing of the claim as a tort, and analyses that focus on the scope of UN immunities (such as my own). While I agree that domestic courts are not a good venue for suits against the UN for reasons that range from bias to lack of specialization in UN affairs, her proposed solution—a public inquiry— would be better suited to a different kind of dispute about core values.18 Moreover, while the UN has commissioned reports to examine the Haiti case, it has not been willing to open its actions up to serious evaluation or to accept legal responsibility for the introduction of cholera. That the UN has not reacted as hoped is not a reason to discard the theory, of course. Nonetheless, the move by the IIJH (the lawyers for the Cholera Victims) to individualize the claim in the Haiti case was not prompted by a vision that tort was the ultimate vehicle for justice, but by the paucity of options available to the victims after the UN’s persistent stonewalling and refusal to develop an alternative mechanism for justice. As Alston wrote, ‘The abdication approach has thrived because sterile legal formalism, facilitated by a failure to explore constructive options, has been permitted to prevail’.19 The public inquiry recommended by Hovell, reminiscent of the commonwealth style Royal Commission, seems a useful choice when there are ongoing improprieties or serious differences of opinions about core values. For example, perhaps a public inquiry into the concept of UN operational necessity, which arose in the cases following the Srebrenica massacres, would have been productive.20 But in a simple, albeit mass case of negligence which lies at the heart of the Haiti case, its not clear why a judicial procedure is inappropriate. Hovell is undoubtedly right that a better mechanism within the UN system would have been preferable to a domestic court case, but this was not possible without the UN’s willingness to use existing (or envisioned) Alternative Dispute Resolution mechanisms, or to create a process by which the claimants had an opportunity to 16
Hovell (2016a), p. 2.
17
These are the central issues in the Haiti case in my opinion, as developed in my article. Boon (2016). Philip Alston notes there is debate about how to frame the claim: ‘First, scholars have debated whether the optimal approach for the United Nations to take is one that proceeds from the principles of human rights or from the law of torts. For academic purposes, a rich debate can and has already been had around some of these issues. From the perspective of the United Nations, neither of these regimes fits the situation perfectly and elements can be drawn from both in shaping the best response.’ Alston, supra n. 11, at para. 61. 18 See e.g., S. Sengupta, ‘UN Apologies for Role in Haiti Cholera Outbreak’, NY Times, 1 December 2016, http://www.nytimes.com/2016/12/01/world/americas/united-nations-apology-haiti-cholera.html (noting that the UN apologized for not better containing cholera but not for introducing it in the first place. Moreover, the $200 million in promised funds (material assistance) still need to be raised by member states). 19
Alston, supra n. 11, at para. 73.
20
See e.g. Stichting Mothers of Srebrenica v. Netherlands (Admissibility), App. No. 65542/12, 57 Eur. Ct. H.R. 114 (2013), available at: http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-122255.
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present their case before a neutral decision maker. The litigants were very successful at using the law to raise the stakes for the UN in the Haiti case, demonstrating the consequences that flowed from the introduction of cholera had the ultimate impact on individual autonomy: the loss of life. Indeed, the problem in the Haiti case has not been how the case was framed (in tort), or that the advocates used the vehicle of a class action, but that the UN systematically failed to acknowledge both its legal responsibility and its obligation to provide a forum.21 In this situation, the appeal to due process will not prevail. The book, written in an accessible style, demonstrates the continuing relevance of the rule of law and the importance of further thought about its role in the UN context. It is a valuable tool for further discussion and research, and will be of interest to academics, government lawyers, diplomats, think tanks, NGOs, journalists, students and all others with an interest in the UN Security Council, UN sanctions and claims against the UN generally.
References Boon K (2016) The United Nations as good Samaritan: immunity and responsibility. Chic J Int Law 16:341–385 Fassbender B (2006) Targeted sanctions imposed by the UN Security Council and due process rights: a study commissioned by the UN Office of Legal Affair and follow-up action by the United Nations. Int Organ Law Rev 3:437–485 Franck T (1995) Fairness in international law and institutions. Oxford University Press, Oxford Hovell D (2016a) Due process in the United Nations. Am J Int Law 110:1–48 Hovell D (2016b) The power of process: the value of due process in Security Council decision-making. Oxford University Press, Oxford Johnstone I (2011) The power of deliberation. Oxford University Press, Oxford
21 See P. Bodeau-Livinec, ‘UN Apologies for Cholera Outbreak: ‘‘Moral Responsibility’’ and ‘‘Legal Escapism’’’, Opinio Juris, 12 December 2016, http://opiniojuris.org/2016/12/12/un-apologies-for-choleraoutbreak-moral-responsibility-and-legal-escapism/.
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