'Glasnost in the Security Council: The Value of Transparency' Law Society and
Economy Working Paper Series 15-2016 (2016)
The value of transparency in decision-making is regarded as something of a
truism in the public sphere; something that is uncontroversial and requires
little by way of justification. In the Security Council setting, there are
mounting calls for greater transparency as if publicity is some form of
unconditional virtue. However, this easy embrace of transparency evades
difficult questions and fails to consider the tensions it conceals. The
principle of transparency is not as easy to sustain, either in theory or
practice, as it first might seem. Publicity might be necessary to justify
policy, but secrecy may also be necessary to effect some policies. The primary
aim of this essay is to ask a question to which an easy answer is sometimes
presumed: why do we need transparency in the Security Council sanctions context?
In this essay, I set the foundations for a value-based theory of transparency
for Security Council sanctions decision-making. It is only when we understand
‘why’ transparency is needed in this context that we can adequately answer other
questions, including the ‘who’, ‘what’, ‘when’ and ‘how’ questions.
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'Due Process in the United Nations' American Journal of International Law (2016)
110 (1) pp.1-48
Certain UN organs continue to resist procedural limitations on
their decision-making authority. Yet, paradoxically, failure to accord due
process has compromised the strength of UN authority, as seen in relation to the
targeted-sanctions regime and the 2010 Haiti cholera outbreak. This article
questions current, formalistic approaches to due process in the UN setting,
which rely on traditional sources of international law. As an alternative, it
presents a value-based approach that takes into account instrumentalist,
dignitarian, and public interest principles.
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For a symposium on this article, including contributions
by Alexandra Huneeus, Antonios Tzanakopoulos, Rosa Freedman and Joy Gordon,
‘Kadi: King-Slayer or King-Maker? The Shifting Allocation of Decision-making
Power between the UN Security Council and Courts’ (2016) 79 (1) Modern Law
This note analyses the twelve-year span of the Kadi litigation
in the European courts. The litigation raises the textbook question of the
relationship between international and municipal legal orders, yet demonstrates
that it is high time to move the description of this relationship beyond the
orthodox yet outdated monist/dualist dichotomy that was seen to provide the
answer in less complicated times. The note examines the different approaches
taken at the three key phases of the litigation: the ‘supremacy’ position
adopted by the Court of First Instance in 2005, the ‘subversive’ approach of the
European Court of Justice in 2008 and the ‘subsidiarity’ position of the Court
of Justice of the European Union in 2013. Ultimately, the note invites attention
to the ‘Solange equivalence’ approach taken by the Advocates-General and argues
that this strikes the best balance in normative terms for an enduring approach
to power-sharing between legal orders.
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'A Dialogue Model: The Role of the Domestic Judge in Security Council
Decision-Making' Leiden Journal of International Law (2013) 25 (3)
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
amore theoretically supportable way in the broader legal context.
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For a symposium on this article, including contributions by Piet Eeckhout and
Erika de Wet,
The Gulf Between Tortious and Torturous: UK Responsibility for Mistreatment of
the Mau Mau in Colonial Kenya' Journal of International Criminal
Justice (2013) 11 (1) p.223-245
Analyses the Queen's Bench Division judgment in Mutua v
Foreign and Commonwealth Office on whether the UK Government was liable for
the abuse of Kenyan Mau Mau detainees by the colonial administration in the
1950s and 1960s on the basis of: (1) primary liability; (2) vicarious liability;
(3) its alleged succession to the colonial government's primary liability on
Kenya's independence; or (4) negligence. Discusses the significance of the fact
that UK law does not recognise a tort of torture for each liability decision.
Outlines the court's later ruling on whether the action was time-barred.
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'The Deliberative Deficit: Transparency, Access to Information
and UN Sanctions' in Jeremy Farrall and Kim Rubenstein, Sanctions
Accountability and Governance in a Globalized World (Cambridge University
Press, 2009), pp 92-122.
'A Tale of Two Systems: The Use of International Law in Constitutional
Interpretation in Australia and South Africa' (2005) 29 Melbourne University
Law Review 95 (with George Williams), pp 95-130.
'Advice to the Hon Simon Crean MP on the use of force against
Iraq' (2003) 4(1) Melbourne Journal of International Law 183 (with George
Williams), pp 183-189.
'Deep Anxieties: Australia and the International Legal Order'
(2003) 25 Sydney Law Review 423 (with Hilary Charlesworth, Madelaine
Chiam and George Williams), pp 423-465.