The United Nations (UN) Security Council, with its immense powers under Chapter VII of the UN Charter, has taken centre stage in a recent ‘turn to accountability’ in international law.1 Calls for greater accountability are increasingly voiced in relation to one particular element of Security Council practice; that is, targeted sanctions under Article 41 of the UN Charter. The quantitative augmentation and qualitative mutation of sanctions has drawn attention to the capacity of the Council to significantly (negatively) impact upon individual’s lives, a capacity largely hidden during the long period of dormancy of the Cold War. This has given rise to important questions in relation to the legal regime that governs Security Council decision-making procedures in this ‘modern’ period of revitalisation. Indicative contributions to the debate include Jeremy Farrell, United Nations Sanctions and the Rule of Law (Cambridge University Press 2007) and Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford University Press 2011). Indeed, Tzanakopoulos states explicitly that ‘recent interest in the accountability of international organisations is owed primarily to this extensive activity of the Security Council’.2 Particular problems, from a lack of transparency in terms of listing and notification, to the absence of formal delisting procedures, speak to undoubtable ‘due process’ deficiencies in the implementation of targeted sanctions.3 It is therefore possible to situate Devika’s Hovell’s excellent monograph, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-Making, within this broader scholarly turn to Security Council accountability. Although the literature is already voluminous, The Power of Process provides an altogether welcome and necessary contribution. Its primary originality can be found by zooming in on the ‘value’ element of the book’s sub-title. In disproportionately concentrating on the what and the how of due process, international legal literature seems to have lost sight of the why. Proposals to reform Security Council decision-making uniformly rest ‘on a presumption that due process is essentially “a good thing”’ (p 2). To counter this, Hovell sets as her aim: ‘to provide strong and enduring theoretical foundation to support institutional practice’ (p 4, emphasis in original). In order to achieve this, the book is split into three parts: ‘Practice’, ‘Theory’ and ‘Application’. Part I traces the historical evolution of targeted sanctions, and surveys the various reform proposals that have accompanied these developments. This section is necessarily quite descriptive, but the level of engagement with, and range of, primary sources is particularly impressive. Hovell’s central finding is that all reform proposals to date enjoy something of a familial association, in that they all follow a traditional (formalist) source-based approach to due process. Therefore, the ‘book takes the starting point that the problem is predominantly one of methodology’ (p 30). Hovell is correct that ‘legal positivism remains the lingua franca of international lawyers’ (p 35). As applied to the context of the Security Council’s ‘muscular legislating’, an entirely modern phenomenon, the sources of the international legal landscape appear somewhat stale, and outdated, rooted as they remain around Article 38(1) of the Statute of the International Court of Justice. Hovell suggests that ‘the focus should be less on formulating and systemizing rules that already effectively exists in practice, and more on creating a new set of rules for an emerging governmental context’ (p 163). This resonates with a call to arms recently canvassed by Jean D’Aspremont: ‘The international legal scholarship specifically dedicated to the law of international organizations has fallen short of thinking out of the box of the current … paradigms around which most of the thinking on the subject articulates itself’.4 This would seem to be a wholly necessary move for the discourse to take. Part II takes a step back in order to lay out the conceptual foundations of a ‘value-based’ approach to due process in the Security Council. Three models are identified. The first is the ‘instrumentalist model’, which considers that the aim of fair procedures is to enhance the accuracy of decision-making outcomes. Hovell states that ‘the only but necessary role of procedural law under this model is to make sure that the rules are applied as enacted, thus fulfilling the positivist’s aim of achieving the accurate and objective implementation of the substantive law’ (p 65). This is, of course, no small task. In reality, it is difficult to identify any substantive law to govern the Security Council’s power under Chapter VII. To be sure, to trigger the competence to impose sanctions, the Security Council must first make a determination that a situation constitutes a threat to international peace and security (Article 39, UN Charter), and there is an expectation that this determination should remain within a reasonable ‘interpretative radius’ of these terms.5 But beyond this procedural obligation, the Security Council’s legal competence seemingly remains, in substantive terms, unbounded. The inapplicability of the ‘instrumentalist model’, and the formalist approach that underpins it, explains the normative force of the second and third models: namely the ‘dignitarian model’ and the ‘public interest model’. Departing from a strict ‘rule of law’ framework, the former focuses instead on the dignity and autonomy of the individual. It aims to ‘open up decision-making to the range of affected interests’, in order to provide ‘affected parties with an opportunity to assert their interests and preferences’ (p 76). The aim of the latter, conversely, is ‘to extend participation in decision-making not just to affected interests, but to the broader public’ (p 81). Both the ‘dignitarian model’ and the ‘public interest model’ offer valuable tools to help us move beyond the current (formalist) state of the debate. Building from this theoretical analysis, Part III compares and contrasts how due process might operate in practice. Three options are identified. The first is labelled the ‘internationalized judicial framework’: a court-based process or ‘adjudicatory framework’, under which a judicial organ would be vested with power to measure the legality of sanctions decision-making under international law. The second is labelled the ‘pluralist judicial framework’, referring to a recent trend in which domestic and regional courts increasingly accept challenges by individuals in order to measure the legality of sanctions decision-making according to the standards of each discrete legal regime. Of course, this was the judicial sleight of hand undertaken by the CJEU in Kadi, where the exercise of ‘judicial review’ over Council action was undertaken for the first time by a court outside the general structure of the UN.6 These two options are linked by an emphasis on the judiciary. Hovell asks, ‘why this fixation on courts? Are courts really necessary to instil fairness into sanctions decision-making about individuals?’ (p 3). Finally, the author identifies the ‘Ombudsperson framework’, which refers to the non-court-based Office of the UN Ombudsperson, and its capacity to protect the rights of individuals and entities listed under the sanctions regime. Although the rationale underpinning this section is analytical rather than normative, in that the aim is to provide ‘a more productive terrain for analysis and comparison between procedural frameworks than the formalist underpinnings of the contemporary legal debate’ (p 82), Hovell does ultimately take a position. She states that ‘the UN Ombudsperson offers the greatest potential for reconciliation of due process and confidentiality concerns’ (p 154), and ‘it is the UN Ombudsperson that provides the greatest prospect of enhancing the legitimacy of Security Council decision-making’ (p 166). The need to disassociate due process claims from an instrumentalist vision of the law (legality), therefore elevating the principle of legitimacy in this context is a key theme throughout the book. The author notes that ‘the essential aim of procedural fairness is to enhance the legitimacy of decision-making’ (p 61). In concluding Chapter 4, Hovell states that ‘there is a sense that due process is regarded by the Council as a “restriction” inflicted upon it, rather than a set of legal principles that have value as a legitimizing mechanism’ (p 81). This is an important observation.7 It upsets the status quo assumption that due process relates to constraining the Security Council in the straightjacket of international law. It is, instead, about legitimising the said power. This is seen most clearly in the context of Hovell’s ‘public interest’ model, in which ‘respect for decision-making authority is negotiated, not won by subordination to formal rules’ (p 79). This chimes with Thomas Franck’s classic articulation of legitimacy as exerting ‘a pull towards compliance which is powered by the quality of the rule or of the rule making institution not by coercive authority’.8 Taking a similar line, Hovell makes reference to the ‘court of public opinion’ within which decision-making authority ‘may be deemed illegitimate with consequences for its effectiveness if it persists in failing to provide public justifications for its decisions’ (p 152). This evaluation may have (non-legal) ‘reputational costs’ attached to it (ibid). To take this argument further, however, Hovell might have engaged with Scharpf’s seminal distinction between ‘output’ and ‘input’ legitimacy. Under this framework, output-oriented legitimacy focuses on the quality of the resulting decisions in terms of their substantial rationality. Conversely, input-oriented legitimacy elaborates on how interests, values and ideas of citizens are channelled into the decision-making process.9 Hovell clearly favours the former. She states that procedural safeguards ‘provide individuals with a modicum of dignity, autonomy, and self-respect … enabling them to assert their interests and preferences and placing an obligation on decision-makers to take these interests into account in decision-making’ (p 74). Engaging with Scharpf’s typology may have placed this argument on an even stronger conceptual footing. Where the book is perhaps less convincing is in the stark categories that it seeks to draw between different potential ‘value-based’ approaches to due process. To be sure, categorisation is a key analytical tool which can contribute towards deeper understanding of complex legal developments. However, seeking to demarcate so stringently between relatively arbitrary categories is an extremely difficult task and at times the book is guilty of some conceptual folding. One could question, for example, whether the ‘dignitarian model’ and the ‘instrumentalist model’ are as mutually exclusive as they first appear. Hovell suggests that the aim of the dignitarian model ‘is not to work within a legal hierarchy to ensure decision-making accords with a formal set of laws or standards … or the solution that accords best with a set of universally agreed norms or principles’ (p 75). Instead, as a result of its pluralist origins, ‘the dignitarian model rejects a hierarchical conception of law in favour of a heterarchical order’ (ibid). In other words, it conceives a horizontal rather than a vertical structure. On the one hand, legal pluralism may, according to this view, provide a compelling counter-narrative to the fallacy of a universalised (and universally applicable) ‘global law’.10 On the other hand, the rejection of universal principles, and hence the verticalisation of international law, actually reflects a quite conventional reading of international law as a decentralised order. As a result, it might actually be most applicable even from a formalist perspective. Additionally, there is something of a contradiction built into the model. Ensuring ‘access to a court to provide individuals with the opportunity to make an effective challenge to the reasons for their treatment’ is defined as one of the defining features of the dignitarian model (p 75). Judicial remedy would seem to be legal formalism par excellence. Yet, ultimately, Hovell concludes that the model ‘does not really cater to a ‘rule of law’ framework, such as the aim is not to ensure that decision-making accords with a set of legal rules’ (p 76). Indeed, this is not the only time that Hovell reverts to turns of phrase which would seem to contradict the (at other times) quite sharp critique of the judicial method. For example, reference to ‘the special legal expertise of judges, and their capacity to develop and fill gaps in the law utilizing powers of legal reasoning’ (p 123) jars against the ultimate argument in favor of the (non-judicial) Ombudsperson. A final constructive remark relates to the position of normativity in Hovell’s argument. Hovell sets her task as being ‘to develop procedural principles for the international institutional context using a normatively rich rather than formalistic approach’ (p 4). However, this prompts the question: whose normativity? As Franck admitted, ‘fairness will often be in the eye – the value system – of the beholder’.11 Would an interlocutor be permitted to subjectively select a contrary set of equally applicable due process values? Throughout, Hovell appears wary of generalised universal values and principles. However, to play the devil’s advocate, might we not say that due process itself is such a common value?12 Returning to our meta-theme, we might say that prevailing discourses on Security Council due process speak to only a partial conception of accountability, one based on the notion of ‘holding to account’. However, on the contrary, Hovell observes that ‘[d]ue process works by way of a form of “procedural dialogue” directed at strengthening the connection between decision-makers and the community to whom the decisions apply’ (p 163). Like the umbrella concept of accountability, due process is an inherently sociological idea. It involves striving for an equilibrium between the governmental authority and those over whom authority is exercised. This, in turn, invokes additional dimensions of accountability: the processes of ‘giving an account’, through explaining and justifying decisions, and ‘taking an account’ of the various interests at stake. To this reviewer, this is an important direction for the discourse to take. To this end, The Power of Process is to be highly commended. Not only are the arguments largely compelling, but they are surely relevant beyond the example of Security Council sanctions, to any element of Council practice, and perhaps beyond the Council altogether, to international institutional law more generally. Any points of departure or minor disagreements should in fact be welcomed, as this work should be seen as the start of a conversation about the value of due process norms, not an end in itself. It is difficult to see how any future study of this important concept—or of Security Council sanctions generally—could proceed without engaging with Hovell’s work. Footnotes 1 See, for example, P Webb and C Michaelsen (eds), Special Edition on ‘Strengthening the Accountability of the UN Security Council’ (2014) 19(3) Journal of Conflict and Security Law 385, and articles therein. 2 A Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2011) 2. 3 J Farrell, United Nations Sanctions and the Rule of Law (CUP 2007) 236: ‘of all the principles explored in this study, the one with perhaps the greatest resonance as a symbol of the rule of law is due process’ (emphasis added). 4 J D’Aspremont, Epistemic Forces in International Law: Foundational Doctrines and Techniques of International Legal Argumentation (Edward Elgar 2015) 160. 5 Tzanakopoulos (n 2) 62. 6 Joined Cases C-402/05 P and C-415/05 P Kadi v Council of the European Union  ECR I-0000. 7 On this point and others, Hovell has clearly been influenced by the scholarship of her LSE colleague Martin Loughlin. See, eg M Loughlin, The Idea of Public Law (OUP 2003). Hovell acknowledges this influence in ‘The Idea of Global Public Law’ (2016) AJIL Unbound 80. 8 T Franck, The Power of Legitimacy Among Nations (OUP 1990) 26. 9 FW Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999). The distinction is applied to the Security Council in SD Bailey and S Daws, The Procedure of the UN Security Council (3rd edn, OUP 1998) 393. 10 See, recently, N Walker, Intimations of Global Law (CUP 2014). 11 TM Franck, The Power of Legitimacy Among Nations (OUP 1990) 243. 12 See, eg EA Andersen and B Lindsnaes, ‘Public Goods: Concept, Definition and Method’ in EA Andersen and B Lindsnaes (eds), Towards New Global Strategies: Public Goods and Human Rights (Martinus Nijhoff 2007) 38: ‘The protection of human rights and due process ought to be pure public goods’. © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of Conflict and Security Law – Oxford University Press
Published: Jul 1, 2018
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