LJIL Symposium: Dialogue Without Hierarchy?

[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.]

Devika Hovell’s paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC).  That relationship has come about as a consequence of the UNSC’s smart sanctions policies, which intrude in the daily lives of those which are subject to them.  Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members.

The attraction of Hovell’s dialogue model is that it tries to plod a much-needed middle course – or to find a sweet spot – in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law.  The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration.  At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt.

The paper is perceptive and clear, and a major contribution to the literature.  A dialogue is of course needed, and its merits are undisputable.  To craft a dialogue model, however, is less straightforward.  Hovell is aware that hers is not the first attempt to reflect about dialogue between different legal systems.  In the EU context there is a long history of dialogue talk, on issues which are not wholly dissimilar from those raised by the domestic judge – UNSC setting: the protection of domestic human rights in the face of EU law and legislation.  This EU dialogue talk has nourished fertile theoretical fields: legal and constitutional pluralism, multi-level governance, cosmopolitanism, etc. Like Hovell, the cultivators of most of those fields seek to weed out bindingness and hierarchy. But the nature of the intra-EU judicial dialogue continues to suffer from indeterminacy.  The rejection of bindingness and hierarchy leaves a legal void that can only be filled with extra-legal conceptions of comity and cooperation [see my paper on “Human Rights and the Autonomy of EU Law: Pluralism or Integration?”] Judges should see themselves as political actors who ought to cooperate, but the law does not compel them to do so.

Hovell argues that bindingness and hierarchy/supremacy are ill-suited to the context of UNSC decision-making.  I agree, but question whether domestic judicial review should necessarily defer to that context.  Of course I recognise the vital role which the UNSC plays in trying to maintain peace and international security through multilateralism and international law.  But where it arrogates to itself the power to name and shame, and freeze the assets of and impose travel bans on individuals, this “context” of subjecting the individual to international sanctions seems to me equally, if not more, significant.  Yet it is a context which Hovell hardly mentions.  The dangers of discounting the subjected individual are rather clear.  In Hovells’s model the domestic judge ought to interpret UNSC resolutions in accordance with human rights.  But what room for interpretation is there where the Council categorically determines that the assets of Sheikh Kadi are to be frozen?  That leaves but a declaration of incompatibility which – if I understand the author correctly – does not annul the listing, but leaves it to the UNSC to act and adjust.  Will that be a sufficiently loud call for the UNSC to listen, though?

In light of the undeniable and significant harm caused by a UN listing, I am not persuaded that the public-law model should be abandoned.  Let us not be shy of piercing the institutional veil, or at least lifting it somewhat.  The august UNSC is a political body, which decides on listings pursuant to a diplomatic process which in many instances simply rubberstamps, frankly, domestic measures and nominations.  In a purely domestic context few would hesitate to confirm that the public-law model is appropriate for reviewing government decisions freezing a person’s assets.  Should that be any different at the international level?

I am also not persuaded that the public-law model does not promote dialogue.  Hovell praises the Canadian decision in Abdelrazik.  But there is general agreement that it is the Kadi judgment of the European Court of Justice which has pushed the UNSC to improve its listing and de-listing processes.  In the preambles to its latest Al Qaida resolutions the UNSC actually recognises the domestic and regional challenges to the implementation of its listings.  The EU Court’s emphasis on bindingness (of EU human rights norms) and hierarchy (of the EU constitutional imperative to respect human rights), coupled with the acceptance of the international primacy of a UNSC resolution, cannot be equated with the sweet spot for which Hovells is looking.  But these are hard cases, and the implementation review model does plot a middle course which, so far, seems to work.  We should not forget that Sheikh Kadi was not de-listed by the EU prior to his UN de-listing; and that his recourse to the UN Ombudsperson – an office which would not have been created if he had been unsuccessful in Luxembourg – led to that de-listing.

That does not mean that the public-law model is ideal, or is invariably ideally employed.  The second Court of Justice Kadi ruling of July of this year hardly mentions the Ombudsperson, and sets the UNSC a very high bar of organising “effective judicial protection” as it is construed in EU law – a bar which it may not want to attempt.  But I remain sceptical about abandoning concepts of bindingness and hierarchy – whilst recognising the very significant contribution which Devika Hovells’s excellent paper makes to the debate.