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