LJIL Symposium: A Response to Professor Eeckhout and Professor de Wet
Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below.
The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.
A Question of Politics
Professor Eeckhout expresses the concern that my attempt to locate a ‘sweet spot’ (or much-needed middle course) in the increasing competition between domestic courts and the Security Council could instead produce a legal void. ‘The rejection of bindingness and hierarchy leaves a legal void which can only be filled with extra-legal conceptions of comity and cooperation’. The result is to convert judges from legal into ‘political actors’.
I am grateful to Professor Eeckhout for drawing to my attention his recent article on ‘Human Rights and the Autonomy of EU Law’, in which Professor Eeckhout challenges prevailing theories of pluralism as a way to describe the relationships between legal systems in Europe and proposes an alternative paradigm: the integration of laws. In terms I wish I had thought to use myself (and shall find helpful to cite in the future), he proposes a principle of ‘limited and shared jurisdiction’ as a tool for resolving conflicts between courts that are used to regarding themselves as the supreme judicial authority within their separate legal systems.
I enthusiastically sign up to Professor Eeckhout’s legal integrationist mission. Indeed, far from seeking to prescribe an extra-legal framework, the ‘dialogue model’ I propose (limiting the judicial function to human-rights-compatible interpretation or declarations of incompatibility) attempts to situate domestic courts more squarely within a legal framework. The point is not that there is no legal framework, but that the legal framework is broader and more complex than the domestic legal framework within which domestic courts traditionally operate. My concern is that the judges in cases like Kadi I (European Court of Justice) and Ahmed (UK Supreme Court) rely on a dualist notion of the relationship between domestic and international law that emphasizes the polarization between legal orders at a time when far greater integration is needed. Domestic and regional courts engaged in review of decision-making by international institutions do not operate merely as part of their domestic or regional legal systems. As has become plainly clear, such decisions will reverberate and impact on a far broader system, whether they like it or not. Are domestic courts entitled to remain oblivious to this broader sphere of influence? My argument is that, as legal systems increasingly overlap, the power and limitations of domestic courts should be recalibrated having regard to the entirety of the order, not just for one part of it. And in this system, domestic courts are neither entitled to opt out and abdicate responsibility altogether nor to claim supremacy and invalidate measures derived from decision-making by an international institution.
The Question of Applicable Law
However, though I subscribe to Professor Eeckhout’s principle of ‘limited and shared jurisdiction’, it seems the extent of the limitations I propose are greater than Professor Eeckhout would like. This is a critique shared by Professor de Wet. Both Professors Eeckhout and de Wet raise the valid point that it was undoubtedly the declaration of invalidity by the European Court of Justice that led to long-awaited procedural reform by the Security Council and the introduction of the Office of the Ombudsperson. They make a strong argument that it is unlikely this reform would have been prompted by a mere declaration of incompatibility. However, even Professor de Wet describes this as an act of ‘judicial rebellion’. In other words, this was not a normatively justifiable move, but a political one. And this is reflected in the fact that the most significant result of the Court’s judgment was not the legal remedy so keenly desired (delisting), but a political remedy (the creation of the Office of the Ombudsperson). Therefore, contrary to Professor Eeckhout’s critique above, my dialogue model does not risk converting judges from legal to political actors: courts are quite clearly already engaging as political actors in this domain. Instead, the aim of my model is to ensure that the ‘political’ activity of courts takes place within normatively acceptable parameters. Professor de Wet concludes her contribution by noting that ‘[u]ntil such time as impartial and independent judicial review is introduced at the United Nations level for individuals and entities directly listed by UNSC sanctions committees, judicial rebellion is unlikely to subside in Europe’. This raises one of the key problems with both bindingness and hierarchy: it skews the content of the applicable law. Like the European Court of Justice, Professor de Wet seeks to apply European legal standards to the Security Council context: here, the right to effective judicial protection under EU law. Yet it is important to ask: is judicial review really an appropriate model of recourse against Security Council decisions? One need only contemplate the likelihood of the European Court of Justice being able to achieve the hurdle it sets for itself (and other domestic courts) in paragraph 115 of the Kadi II judgment (namely, to obtain from the Security Council ‘the disclosure of information or evidence, confidential or not, to enable [the Court] to discharge its duty of careful and impartial examination’ of listing decisions). The Ombudsperson seems far better placed to obtain access to this information. Shouldn’t courts pay greater attention to the contextual nature of due process, and apply their expertise to determine the most appropriate mechanisms to achieve due process values in the Security Council context, rather than merely applying law that is binding within their own domestic or regional contexts? Who knows, perhaps the Ombudsperson is a more appropriate mechanism for ensuring due process in the Security Council context than we have so far acknowledged. But that, patient readers in the blogosphere, is the subject of another article…