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A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making

Abstract
Abstract

This article proposes a different theoretical account of the role of domestic courts when engaged in judicial review of decision-making by international institutions. Many domestic courts in democratic societies operate in accordance with a ‘public-law model’ when adjudicating questions related to international decision-making, underwritten by respect for doctrines such as the rule of law and separation of powers. Drawing on a case study of domestic-court decisions in the Security Council sanctions context, this article seeks to demonstrate how the public law model's focus on concepts of ‘bindingness’ and hierarchy between judicial and political organs can lead to distorted outcomes when applied to decision-making by international institutions. As an alternative, the author proposes a different theoretical account of the judicial role, described as the ‘dialogue model’, of courts when engaging in the review of Security Council decision-making. The idea is that domestic courts should confine themselves to tools of ‘interpretation’ and ‘declaration’ in their approach to international decision-making, so as to position their judgments in a more theoretically supportable way in the broader legal context.

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1 Chayes A., ‘The Role of the Judge in Public Law Litigation’, (1976) 89 Harvard Law Review 1281.

2 Ibid., at 1284.

3 Spann G. A., ‘Expository Justice’, (1983) 131 University of Pennsylvania Law Review 585, at 585. See also O. Fiss, ‘The Supreme Court, 1978 Term – Foreword: The Forms of Justice’, (1979) 93 Harvard Law Review 1.

4 See G. Hernández, The International Court of Justice and the Judicial Function (forthcoming) for a conceptualization of the judicial function of international courts, though, as the analysis here demonstrates, that is a qualitatively different exercise from the present study.

5 In my discussion of ‘domestic courts’ in this article, I include reference to the case law of the European courts and also the UN Human Rights Committee as these bodies have each adopted a traditional public-law account of their reviewing function in the Security Council context, casting themselves in the same role as domestic courts vis-à-vis the Security Council.

6 R. (Al-Jedda) v. Secretary of State for Defence, [2007] UKHL 58, [2008] AC 332, para. 55.

7 The course of the Kadi litigation is well known. Mr Kadi, a Saudi Arabian resident, challenged an EU regulation implementing the 1267 sanctions regime under which his assets had been frozen by EU member states on grounds that it breached a number of his fundamental rights, including the right to a fair hearing, the right to respect for property, and the right to effective judicial review. In 2005, the Court of First Instance held that it was unable to review Security Council resolutions except to the extent that jus cogens norms had been violated, though it held ultimately that the relevant resolutions violated no jus cogens norms: Joined Cases T-306/01 and T-315/01, Kadi v. Council and Commission, [2005] ECR II-0000 (21 September 2005). This decision was overruled by the European Court of Justice, which determined that all EC regulations had to respect fundamental rights under the EC Treaty, regardless of their origin in Security Council resolutions: Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council of the European Union, [2008] ECR I-0000 (3 September 2008). The European Court of Justice invalidated the relevant EU regulation on grounds it violated Mr Kadi's rights of defence, right to an effective remedy, and right to effective judicial protection, and unjustifiably restricted the right to property, a decision that was followed subsequently by the General Court of the European Union: Case T-85/09 Kadi v. European Commission, [2010] EUECJ (30 September 2010) (General Court). The decision on appeal to the European Court of Justice in Kadi II had not been handed down at the time this article went to press.

8 See, e.g., T. Hickman, ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act’, [2005] Public Law 303; Roach K., ‘Dialogic Judicial Review and Its Critics’, (2004) 23 Supreme Court Law Review (2d) 49; Hiebert J. L., ‘Parliamentary Bills of Rights: An Alternative Model?’, (2006) 69 Modern Law Review 7; McDonald L., ‘Rights, “Dialogue” and Democratic Objections to Judicial Review’, (2004) 32 Federal Law Review 1; Gardbaum S., ‘The New Commonwealth Model of Constitutionalism’, (2001) 49 AJIL 707. Note that both Hiebert and Gardbaum would likely object to the use of ‘dialogue theory’ to characterize their analysis, though their articles also discuss the model of domestic-court engagement with which I seek to engage in this article.

9 Fuller L., ‘The Forms and Limits of Adjudication’, (1978) 92 Harvard Law Review 353, 357; Hart H. M. and Sacks A., The Legal Process: Basic Problems in the Making and Application of Law (1958), 185–6.

10 Stewart R. B., ‘The Reformation of American Administrative Law’, (1975) 88 Harvard Law Review 1667.

11 Waldron J., ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346; A. M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); J. Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1938).

12 Spann, supra note 3, 632–47; Barak A., ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’, (2002) 116 Harvard Law Review 19, 26; D. Dyzenhaus, ‘Formalism's Hollow Victory’, [2002] New Zealand Law Review 525; Shapiro M., ‘The Success of Judicial Review and Democracy’, in Shapiro M. and Stone Sweet A. (eds.), On Law, Politics and Judicialization (2000), 165–8, 176–82.

13 Dicey A. V., Introduction to the Study of the Law of the Constitution, ed. Wade E. C. S. (1959), 193 and 202.

14 See, for example, C. Louis de Secondat baron de Montesquieu, De l'esprit des lois (1979); A. Hamilton, J. Madison, and J. Jay, The Federalist: A Commentary on the Constitution of the United States (1947), at 47, 48, and 51; M. J. C. Vile, Constitutionalism and the Separation of Powers (1967); E. Barendt, ‘Separation of Powers and Constitutional Government’, [1995] PL 599; Lord Bingham, ‘The Rule of Law’, [2007] CLJ 67.

15 See Stewart, supra note 10, at 1672. See also J. Laws, ‘Law and democracy’, [1995] Public Law 72.

16 R. Dworkin, Law's Empire (1986), 229; Traynor R. J., ‘The Limits of Judicial Creativity’, (1978) 29 Hastings Law Journal 1025.

17 The conception of judicial review depicted is the classic positivist model favoured by scholars such as Wade: see H. W. R. Wade and C. F. Forsyth, Administrative Law (2004), 17. The model is open to critique, and is often contrasted with a ‘rights-based’ model of judicial review that recognizes an enlarged power of domestic courts decoupled from parliamentary intention: see, e.g., T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001); P. Craig, ‘Competing Models of Judicial Review’, [1999] Public Law 428; Dworkin, supra note 16.

18 Kadi v. Council of the European Union, Judgment of the Court of First Instance, 21 September 2005, [231]; Nada v. SECO, 133 BGE II 450; (CH 2007) ILDC 461 [3]. See also Sayadi and Vinck v. Belgium, UN Human Rights Committee, Communication No. 1472/2006, UN Doc. CCPR/C/94/D/1472/2006, 29 December 2008; A and Others v. The Netherlands, (3 February 2010) LJN: BL 1862/334949; (NL 2010) ILDC 1463.

19 Kadi v. Council of the European Union, Judgment of the Court, European Court of Justice, 3 September 2008, [283] and [326].

20 Federal Court of Canada, Abousfian Abdelrazik v. Minister of Foreign Affairs, Judgment of 4 June 2009, 2009 FC 580.

21 Her Majesty's Treasury v. Al-Ghabra, [2010] UK Supreme Court, 2.

22 For a global survey, see S. Guinchard et al., Droit processuel, droit commun et droit comparé du procès (2005).

23 Harlow C., ‘Global Administrative Law: The Quest for Principles and Values’, (2006) 17 EJIL 187, 204.

24 Zedner L., ‘Seeking Security by Eroding Rights: The Side-Stepping of Due Process’, in Goold B. J. and Lazarus L. (eds.), Security and Human Rights (2007), 265.

25 D. J. Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996), 315. For similar comments, see Lloyd v. McMahon [1987] AC 625, per Lord Bridge; R. v. Home Secretary; ex p Doody [1994] 1 AC 531, per Lord Mustill; Morrissey v Brewer, 408 US 471, 481 (1972); Joint Anti-Fascist Refugee Committee v. McGrath, 341 US 123 (1951).

26 See Fuller, supra note 9. See also M. Bayles, Procedural Justice (1990), 14.

27 See Kadi v. Council of the European Union, supra note 19, at [352].

28 Her Majesty's Treasury v. Al-Ghabra, [2010] UKSC 2, [145]–[156] per Lord Phillips; [184]–[185] per Lord Rodger; [246] per Lord Mance.

29 Ibid., at [81] per Lord Hope.

30 Case T-318/01, Othman v. Council and Commission, 11 June 2009, [83].

31 Scanlon T. M., ‘Human Rights as a Neutral Concern’, in Scanlon T. M. (ed.), The Difficulty of Tolerance: Essays in Political Philosophy (2003), 116.

32 One US official has indicated that the US would stop submitting names to the Security Council in the event full review was instituted: Adam Szubin, US Office of Foreign Assets Control, ‘The Terrorist Designation Process in the United States’, Countering Terrorism through Domestic and International Targeted Sanctions Conference, American University Washington College of Law, 15 September 2008.

33 See Bayles, supra note 26, Chapter 8 (see in particular 168–89). See also Galligan, supra note 25, 392–3, 402.

34 These include (1) the right to be presumed innocent, (2) the privilege against self-incrimination, (3) the right of silence, (4) the right to legal aid and assistance, (5) the right to be brought promptly before a court, (6) the right to release pending trial, (7) the right to disclosure of documents, (8) the right to confront witnesses, (9) the right to be tried on evidence not obtained by violation of fundamental rights, (10) the right not to be placed in double jeopardy: Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002).

35 CFI, Jose Maria Sison v. Council of the European Union, Case T-47/03, Judgment, 11 July 2007, paras. 101 and 129.

36 UN Human Rights Committee, Sayadi and Vinck v. Belgium (Communication No. 1472/2006, 29 December 2008) UN Doc CCPR/C/94/D/1472/2006, [10.11]. See also Individual Opinion (partly dissenting) by Sir Nigel Rodley, Ivan Shearer, and Iulia Antoanella Motoc, 27 (‘Nor do we understand on what basis [the Committee] believes that articles 14 and 15 could be relevant to actions that the State party quite rightly maintains are administrative, not criminal’).

37 See, for example, the decision of the Administrative Appeals Board of the Turkish Council of State in Al-Qadi v. The State, (TK 2007) ILDC 311, discussed in Tzanakopoulos A., ‘Domestic Court Reactions to UN Security Council Sanctions’, in Reinisch A. (ed.), Challenging Acts of International Organizations before National Courts (2010), 64. See also UN Human Rights Committee, Sayadi and Vinck v. Belgium (Communication No. 1472/2006, 29 December 2008), UN Doc. CCPR/C/94/D/1472/2006, Individual Opinion (partly dissenting) by Sir Nigel Rodley, Ivan Shearer, and Iulia Antoanella Motoc, 27 (‘the Security Council cannot be impleaded under the [ICCPR], much less the Optional Protocol’); Individual (dissenting) Opinion of Ruth Wedgewood, 30 (‘As the Committee acknowledges, it has no appellate jurisdiction to review decisions of the Security Council. Neither can it penalize a State for complying with those decisions. It would be inconsistent with the constitutional structure of the United Nations Charter, and its own responsibilities under the Covenant’); Individual Opinion of Ivan Shearer, 32 (‘The Committee's reasoning . . . appears to regard the Covenant as on a par with the United Nations Charter, and as not subordinate to it. Human rights law must be accommodated within, and harmonized with, the law of the Charter, as well as the corpus of customary and general international law’).

38 See Joined Cases T-306/01 and T-315/01, Kadi v. Council and Commission, [2005] ECR II-0000.

39 Ibid., para. 268.

40 Ibid., para. 288.

41 Nagendra Singh, Termination of Membership of International Organisations (1958), vii.

42 Mégret F. and Hoffmann F., ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’, (2003) 25 Human Rights Quarterly 314.

43 J. E. Alvarez, International Organizations as Law-Makers (2005), at 585.

44 M. Milanovic, ‘More on Nada v Switzerland’ (EJIL Talk!, 23 December 2010), available at http://www.ejiltalk.org/more-on-nada-v-switzerland, accessed 31 March 2012; Milanović M., ‘Norm Conflict in International Law: Whither International Law?’, (2009) 20 Duke Journal of Comparative and International Law 69.

45 ‘Dumbarton Oaks Proposals Concerning the Establishment of a General International Organisation: Amendments Submitted by the Belgian Delegation’ (4 May 1945), UN Doc. 2, G/7(k)(1), 3 UNCIO Docs. 335, 336.

46 UN Charter, Art. 24. For discussion of the drafters’ intentions, see Russell and Muther, 646; Frowein and Krisch, ‘Introduction in Chapter VII’, in Simma B. (ed.), The Charter of the United Nations: A Commentary, Vol. 1 (2002); G. Simpson, Great Powers and Outlaw States (2004), 184–8.

47 The ICJ has clearly stated that it has no power to review Security Council resolutions: Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep., 45.

48 Alvarez J. E., ‘Judging the Security Council’, (1996) 90 AJIL 1, 6. As shall become relevant in section 4 of this study, it is worth noting that, though the Court has not previously declared Security Council resolutions to be invalid, the International Court of Justice has in Namibia and Kosovo engaged in interpretation of Security Council resolutions. The point has been made that the very power to engage the Council amounts to a normative check on the Council's authority: see G. Hernández, The International Court of Justice and the Judicial Function (forthcoming), Chapter 3.

49 Statute of the International Court of Justice, Art. 38(1)(d).

50 This was recognized by Lord Hoffmann in Jones v. Saudi Arabia, [2006] UKHL 26, [63]: ‘It is not for a national court to ‘develop’ international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states’. See also Simpson G., ‘Is International Law Fair?’, (1996) 17 Michigan Journal of International Law 615, 625.

51 On this point, see the discussion of ‘systemic integration’ in the International Law Commission's Report, ‘Fragmentation of International Law: Problems Caused by the Diversification and Expansion of International law’, UN Doc. A/CN4/L.682 (13 April 2006), [37]–[43].

52 Krisch N., Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010), 13.

53 In detailing possible ‘blind spots’ in the domestic context, Aruna Sathanapally notes that ‘lawmakers may fail to recognize that the law could be applied in a rights-infringing way, or fail to anticipate its effect on particular groups of people, or may fail to perceive how rights claims can be accommodated without much or any cost to legislative objectives’: A. Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (2012), 63. See also Dixon R., ‘Creating Dialogue about Socio-Economic Rights: Strong-Form versus Weak-Form Judicial Review Revisited’, (2007) ICON 391, 402.

54 Although Article 38(1) technically applies only to the ICJ, its definition of the sources of international law has been adopted widely as canonical and has been recognized as having a more general character: M. Shahabuddeen, Precedent in the World Court (1996), 232; I. Brownlie, Principles of Public International Law (2003), 20.

55 Statute of the International Court of Justice (1945), Art. 38(1)(d).

56 R. Higgins, Problems and Process (1994), at 218; R. Jennings and A. Watts, Oppenheim's International Law (1996), at 41–42.

57 Nollkaemper A., ‘The Independence of the Domestic Judiciary in International Law’ (2006) XVII Finnish Yearbook of International Law 1, 12–13; Nollkaemper A., ‘Decisions of National Courts as Sources of International Law: An Analysis of the Practice of the ICTY’, in Boas G. and Schabas W. A. (eds.), International Law Developments in the Case Law of the ICTY (2003), 277; Slaughter A.-M., ‘A Typology of Transjudicial Communication’, (1994) 29 University of Richmond Law Review 99.

58 Roberts A., ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’, (2011) 60 ICLQ 57, at 60.

59 See Fuller, supra note 9; R. Dworkin, Law's Empire (1986); Allan T. R. S., ‘The Rule of Law as the Rule of Reason: Consent and Constitutionalism’, (1999) 115 Law Quarterly Review 221.

60 See Roberts, supra note 58, at 73.

61 Higgins R., ‘Aspects of the Case Concerning the Barcelona Traction, Light and Power Company, Ltd’, (1971) 11 Virginia Journal of International Law 327, 341.

62 See quote from Jones v. Saudi Arabia, [2006] UKHL 26, [63] per Lord Hoffmann, supra note 50.

63 I. Brownlie, Principles of Public International Law (2003), 6.

64 Shaw M., ‘A Practical Look at the International Court of Justice’, in Evans M. (ed.), Remedies in International Law: The Institutional Dilemma (1998), 11 at 27.

65 A. Boyle and C. Chinkin, The Making of International Law (2007), 301.

66 See Krisch, supra note 52, at 12; B. Kingsbury, ‘Weighing Regulatory Rules and Decisions in National Courts’, [2009] Acta Juridica 90; Moran M., ‘Shifting Boundaries: The Authority of International Law’, in Nijman J. and Nollkaemper A. (eds.), New Perspectives on the Divide between National and International Law (2007), 163.

67 See literature cited supra, note 8.

68 The case of Othman provides an example of the Security Council confirming the interpretation of a Security Council resolution by a domestic court. In Othman, the English High Court read into domestic mechanisms implementing Security Council Resolution 1333 (2000) an exemption to assets freezes where the freeze would place the individual's life or health at risk: R. (Othman) v. Secretary of State for Work and Pensions, [2001] EWHC Admin 1022, § 57. The Security Council subsequently passed a resolution allowing for exemptions to the assets freeze to allow for basic expenses: Security Council Resolution 1452, 20 December 2002, Section 1. This is described in Tzanakopoulos A., ‘United Nations Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v. Canada (Minister of Foreign Affairs)’, (2010) 8 Journal of International Criminal Justice 249.

69 For a depiction of the ‘dialectical’ nature of the dialogue between courts and legislatures at a domestic level, see Webber G., ‘The Unfulfilled Potential of the Court and Legislature Dialogue’, (2009) 42 Canadian Journal of Political Science 443.

70 Abousfian Abdelrazik v. Minister of Foreign Affairs 2009 FC 580, [4].

71 Ibid., at [129].

72 Tzanakopoulos, supra note 68, at 255.

73 Nada v. Switzerland, [2012] ECHR 1691 (12 September 2012).

74 Ibid., [170].

75 Ibid., [171], citing Al Jedda v. United Kingdom, [2011] ECHR 1092 (7 July 2011), [101]–[102].

76 Aruna Sathanapally details the value of declarations of incompatibility in ‘strengthening the institutional foundations of political deliberation – building up processes of reason-giving around rights – rather than further limiting judicial intervention’: A. Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (2012), 8.

77 Scholars who otherwise criticize traditional judicial review have recognized the benefit of less binding mechanisms by which to signal disagreement on the basis this accommodates the possibility of reasonable disagreement over judicial conclusions on the balance between rights and other pressing public interests: C. A. Gearty, Principles of Human Rights Adjudication (2004); F. Klug, Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights (2000).

78 T. Hickman, ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act’, [2005] Public Law 303, 335.

79 Abousfian Abdelrazik v. Minister of Foreign Affairs, 2009 FC 580, [51].

80 Ibid., [53].

81 It has been said that a thousand years of common law are a thousand years of changes in the law in order to adapt it to the needs of a changing reality: J. Stone, Legal System and Lawyers’ Reasoning (1964), 209–98.

82 Barak, supra note 12, at 25.

83 L. Fuller, Anatomy of the Law (1968), 94.

* Department of Law, London School of Economics and Political Science []. The author would like to thank Elizabeth Fisher, Gleider Hernández, Antonios Tzanakopoulos, and the anonymous referees for their immensely valuable contributions to the writing of this article.

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