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Theorizing or Negotiating the Law?: A Response to Devika Hovell

Part of: Devika Hovell, “Due Process in the United Nations”

Published online by Cambridge University Press:  20 January 2017

Antonios Tzanakopoulos
Antonios Tzanakopoulos*
Affiliation:
Public International Law, University of Oxford St Anne’s College, Oxford
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Devika Hovell’s article is a very welcome and useful contribution to the debate regarding the “accountability” (whatever the term may mean) of international organizations, and the United Nations in particular. The author argues that scholarship has tended to focus on (descriptive) state practice to the detriment of (normative) theoretical appeal, and so the relevant discussion “has received inadequate theoretical attention.” In response, she sets out to tell the story of the United Nations being held to account through a highly theorized (and, if I may venture even at the outset, perhaps a bit stylized) scheme of contrasting “instrumentalist,” “dignitarian,” and “public interest” approaches to due process. This she applies to two case studies, one regarding targeted sanctions imposed by the UN Security Council, mainly in the context of antiterrorism; and one regarding the cholera outbreak in Haiti, where the United Nations has been implicated. Hovell critiques both the instrumentalist and dignitarian approaches, which correspond in broad terms to legal action at the international, and the domestic/regional level, respectively, and argues in favor of a “public interest” approach as better reflecting a “value-based” due process.

Type
Symposium on Devika Hovell, “Due Process in the United Nations”
Information
AJIL Unbound , Volume 110 , 2016 , pp. 3 - 7
Copyright
Copyright © American Society of International Law 2016

References

1 On the difficulties with the term, see generally Antonios Tzanakopoulos, Disobeying the Security Council: Counter Measures Against Wrongful Sanctions, ch. 1 (2011).

2 Hovell, Devika, Due Process in the United Nations, 110 AJIL 1, 48 (2016)CrossRefGoogle Scholar.

3 Id. at 13.

4 Id. at 13.

5 ? Kelsen, Hans, Reine Rechtslehre – Mit einem Anhang: Das Problem der Gerechtigkeit (2d ed., 1960) 242 ffGoogle Scholar.

6 Hovell, supra note 2, at 13.

7 See Brownlie, Ian, The Decisions of Political Organs of the United Nations and the Rule of Law, in Essays in Honour of Wang Tieya 91, 95 (Macdonald, Ronald SJ ed., 1994)Google Scholar.

8 Hovell, supra note 2, at 14.

9 Id. at 11.

10 Which may well explain the UK Supreme Court’s position criticized id. at 12.

11 In cases where Hovell dismisses their critical comments as “nonbinding” and “subsidiary,” id. at 14.

12 Id. at 14.

13 See generally, Tzanakopoulos, Antonios, Domestic Court Reactions to UN Security Council Sanctions, in Challenging Acts of International Organizations Before National Courts 54 (Reinisch, August ed., 2010)CrossRefGoogle Scholar; and on the role of domestic courts in the development of international law see generally Tzanakopoulos, Antonios, Domestic Courts in International Law: The International Judicial Function of National Courts, 34 Loy. L.A. Int’l & Comp. L. Rev. 133 (2011)Google Scholar.

14 This was done in order to avoid a direct clash between the protected right and the (often misinterpreted) provision of Article 103 of the UN Charter, see generally Tzanakopoulos, Antonios, Collective Security and Human Rights, in Hierarchy in International Law: The Place of Human Rights 42 (de Wet, Erika & Vidmar, Jure eds., 2012)CrossRefGoogle Scholar.

15 See generally, Ryngaert, Cedric, The Immunity of International Organizations before Domestic Courts: Recent Trends, 7 Int’l Org. L. Rev. 121 (2010)Google Scholar.

16 A public inquiry is sometimes only the first step towards securing remedies; for example, the much delayed Chilcot inquiry on the Iraq war of 2003 which reported in July 2016 led to claims by those directly affected by the decision to go to war that they will now seek legal remedies on the basis of the inquiry’s report.